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Part 7 K. Saraswathi v. State of Tamil Nadu 763 (N. Anand Venkatesh, J.) (iii) What meaning is to be given to the word “paid” used in Section 24(2) and “deposited” used in the Proviso to Section 24(2) ? (iv) What are the consequences of payment not made? (v) What are the consequences of the amount not deposited ? (vi) What is the effect of a person refusing to accept the Compensation ?” 11. These questions were answered by the Constitution Bench at Paragraph No.402 of the Judgment and the same is extracted hereunder: “402. In view of the aforesaid discussion, we answer the questions as under: 1. Under the provisions of Section 24(1)(a) in case the Award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013. 2. In case the Award has been passed within the window period of five years excluding the period covered by an Interim Order of the Court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed. 3. The word ‘or’ used in Section 24(2) between possession and Compensation has to be read as ‘nor’ or as ‘and’. The deemed lapse of Land Acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of Authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor Compensation has been paid. In other words, in case possession has been taken, Compensation has not been paid then there is no lapse. Similarly, if Compensation has been paid, possession has not been taken then there is no lapse. 4. The expression ‘paid’ in the main part of Section 24(2) of the Act of 2013 does not include a deposit of Compensation in Court. The consequence of non- deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (Landowners) as on the date of Notification for Land Acquisition under Section 4 of the Act of 1894 shall be entitled to Compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of Compensation (in Court) does not result in the lapse of Land Acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, Compensation under the Act of 2013 has to be paid to the “Landowners” as on the date of Notification for Land Acquisition under Section 4 of the Act of 1894. 5. In case, a person has been tendered the Compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of Compensation in Court. The obligation to pay is complete by tendering the amount under Section 31(1). Landowners, who had refused to accept Compensation or who sought reference for higher Compensation, cannot claim that the Acquisition proceedings had lapsed under Section 24(2) of the Act of 2013. Current Writ Cases / April 01 – 15/2021

764 CURRENT WRIT CASES 2021 (1) CWC 6. The Proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b). 7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of Inquest Report/Memorandum. Once Award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2). 8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for Land Acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of Interim Orders passed by Court has to be excluded in the computation of five years. 9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of Land Acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow Landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of Compensation in the treasury instead of Court to invalidate acquisition.” 12. For the purpose of deciding the issue in the present Writ Petition, Clauses (3), (4), (5), (7) & (9) at Paragraph No.402 requires proper understanding. 13. The Hon’ble Supreme Court, while clarifying the purport of the word ‘or’ used in Section 24(2) of the Act, held that it has to be read as ‘nor’ or as ‘and’. Therefore, any person, who wants to claim the benefit of Section 24(2) of the Act, must satisfy both the requirements of taking possession as well as payment of Compensation and mere fulfillment of one of the conditions will not render the Acquisition proceedings lapsed. 14. There are four important issues, which requires consideration in the present Writ Petitions and they are [a] whether the physical possession of the subject properties was taken by the State from the Owners of the properties ?; [b] whether the Compensation has been paid by the State to the Owners of the properties ?; [c] whether the Petitioners are trying to reopen/revive concluded proceedings ?; and [d] whether the Petitioners have come to this Court at a belated stage seeking for the relief under Section 24(2) of the Act and ought to have challenged the illegality in taking possession or payment of Compensation at the contemporaneous time ? 15. In order to understand the first issue with regard to taking of physical possession, it is important to unravel from the Judgment of the Constitution Bench and find out what act of the State constitutes taking possession from the Owner of the property. For this purpose, the relevant portions in the Judgment are extracted hereunder: Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 765 (N. Anand Venkatesh, J.) “278. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an Award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word “possession” has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression “physical possession” is used. It is submitted that drawing of Panchnama for taking over the possession is not enough when the actual physical possession remained with the Landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and Award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land, which vests in the State free from all encumbrances. 279. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression “physical possession” used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a Memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise, which is acquired, the Government is not supposed to put some other person or the Police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc. is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real Owner that is the State Government in the case. 287. Under Section 16 of the Act of 1894, vesting of title in the Government, in the land took place immediately upon taking possession. Under Sections 16 & 17 of the Act of 1894, the acquired land became the property of the State without any condition or limitation either as to title or possession. Absolute title thus vested in the State. 292. The word ‘vest’ has to be construed in the context in which it is used in a particular provision of the Act. Vesting is absolute and free from all encumbrances that includes possession. Once there is vesting of land, once possession has been taken, Section 24(2) does not contemplate divesting of the property from the State as mentioned above. 293. Now, the Court would examine the mode of taking possession under the Act of 1894 as laid down by this Court. In Balwant Narayan Bhagde (supra) it was observed that the act of Tehsildar in going on the spot and inspecting the land was sufficient to constitute taking of possession. Thereafter, it would not be open to the Government or the Commission to withdraw from the acquisition under Section 48(1) of the Act. It was held thus: “28. We agree with the conclusion reached by our brother Untwalia, J., as also with the reasoning on, which the conclusion is based. But we are writing a Current Writ Cases / April 01 – 15/2021

766 CURRENT WRIT CASES 2021 (1) CWC separate Judgment as we feel that the discussion in the Judgment of our learned Brother Untwalia, J., in regard to delivery of “symbolical” and “actual” possession under Rules 35, 36, 95 & 96 of Order 21of the Code of Civil Procedure, is not necessary for the disposal of the present Appeals and we do not wish to subscribe to what has been said by our learned Brother Untwalia, J., in that connection, nor do we wish to express our assent with the discussion of the various authorities made by him in his Judgment. We think it is enough to State that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, LA, it must take actual possession of the land since all interests in the land are sought to be acquired by it. There can be no question of taking “symbolical” possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the Appellant was not present when this was done by the Tehsildar, but the presence of the Owner or the Occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that Notice should be given to the Owner or the Occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such Notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the Owner ever coming to know of it.” 294. In Tamil Nadu Housing Board v. A. Viswam (supra), it was held that drawing of Panchnama in the presence of witnesses would constitute a mode of taking possession. This Court observed: “9. It is settled law by series of Judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a Memorandum or Panchnama by the LAO in the presence of Witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take Physical possession of the acquired land. It is common knowledge that in some cases the Owner/interested person may not cooperate in taking possession of the land.” (Emphasis supplied) 295. In Banda Development Authority (supra), this Court held that preparing a Panchnama is sufficient to take possession. This Court has laid down thus: “37. The principles, which can be culled out from the above noted Judgments are: “(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land. Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 767 (N. Anand Venkatesh, J.) (ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a Panchnama will ordinarily be treated as sufficient to constitute taking of possession. (iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the Authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the Authority concerned will have to give Notice to the Occupier of the building/structure or the person, who has cultivated the land and take possession in the presence of independent Witnesses and get their signatures on the Panchnama. Of course, refusal of the Owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken. (iv) If the acquisition is of a large tract of land, it may not be possible for the Acquiring/Designated Authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent Witnesses and getting their signatures on such document.” (v) If beneficiary of the acquisition is an Agency/Instrumentality of the State and 80% of the total Compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken.” 305. In the Raghbir Singh Sehrawat v. State of Haryana, 178, the observation made was that it is not possible to take the possession of entire land in a day on which the Award was declared, cannot be accepted as laying down the law correctly and same is contrary to a large number of precedents. The decision in Narmada Bachao Andolan v. State of M.P. is confined to particular facts of the case. The Commissioner was appointed to find out possession on the spot. DVDs. and CDs were seen to hold that the Landowners were in possession. The District Judge, Indore, recorded the statements of the tenure-holder. We do not approve the method of determining the possession by appointment of Commissioner or by DVDs and CDs as an acceptable mode of proving taking of possession. The drawing of Panchnama contemporaneously is sufficient and it is not open to a Court Commissioner to determine the factum of possession within the purview of Order 27, Rule 9, C.P.C. Whether possession has been taken, or not, is not a matter that a Court appointed Commissioner cannot opine. However, drawing of Panchnama by itself is enough and is a proof of the fact that possession has been taken. 311. The Court is alive to the fact that are a large number of cases where, after acquisition land has been handed over to various Corporations, Local Authorities, Acquiring Bodies, etc. After depositing Compensation (for the acquisition) those Bodies and Authorities have been handed possession of lands. They, in turn, after development of such acquired lands have handed over properties; Third party interests have intervened and now declaration is sought under the cover of Section 24(2) to invalidate all such actions. As held by us, Section 24 does not intend to cover such cases at all and such gross misuse of the provisions of law must stop. Title once vested, cannot be obliterated, without an express legal provision; in any case, even if the Landowners’ argument that after possession too, in case of non-payment of Compensation, the acquisition would lapse, were for arguments’ sake, be accepted, these Third party Owners would be deprived of their lands, lawfully acquired by them, without Compensation of any Current Writ Cases / April 01 – 15/2021

768 CURRENT WRIT CASES 2021 (1) CWC sort. Thus, we have no hesitation to overrule the Velaxan Kumar (supra) and Narmada Bachao Andolan (supra), with regard to mode of taking possession. We hold that drawing of Panchnama of taking possession is the mode of taking possession in Land Acquisition cases, thereupon land vests in the State and any re-entry or retaining the possession thereafter is unlawful and does not inure for conferring benefits under Section 24(2) of the Act of 2013.” 16. A close reading of all the above portions culled out from the Judgment, clearly point out the fact that drawing of Panchnama of taking possession is the correct mode of taking possession in Land Acquisition cases, more particularly where the property acquired is a vacant land or a large tract of land. Taking possession by adopting to this mode, gives a lot of authenticity to prove that the land has been taken possession. Under the Transfer of Property Act, in cases of vacant land, possession always follow title. However, in the Land Acquisition proceedings, it works the other way round and here the title vests with the State only after taking possession. In other words, title follows possession. This position is very clear on a bare reading of Section 16 of the 1894 Act. 17. While applying the above principles to the facts of the present case, it is seen that the only document that is available in order to prove the taking of possession is the Possession Certificate, dated 16.12.2005 issued by the Assistant Grade Revenue Inspector, O/o. The Special Tahsildar [LA], Housing Scheme, to the Surveyor of the O/o. The Executive Engineer and Administrative Officer, Coimbatore Housing Unit. This is the document that has been produced evidencing the handing over of the property by the revenue to the Requisitioning Body, viz., the TNHB. Even in Paragraph No.6 of the Counter Affidavit filed by the 3rd Respondent, this is the only document relied upon by the Respondents to prove taking of possession. 18. The State Government has not filed any Counter Affidavit in the present case. There is no material available and nowhere any statement has been made as to when the State took possession of the properties from the Landowners. The insistence made under Section 24(2) of the Act as well as the Judgment of the Constitution Bench is with regard to taking of possession by the State from the Landowners. The handing over of possession by Acquiring Body to the Requisitioning Body may not be very relevant for this purpose since it is an internal document between two Departments. This handing over of the properties to the Requisitioning Body will happen only after the possession is taken by the State from the Owners of the lands and therefore, it is more consequential in nature. 19. Unfortunately, in this case, the learned Advocate General made a very shocking revelation during the course of hearing that the entire original records have gone missing and it is not traceable. This reveals the shocking state of affairs on the side of the Respondents and it is not known whether the original records are genuinely missing or it has gone missing due to the Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 769 (N. Anand Venkatesh, J.) intervention of some human agency. Due to the non-availability of the original records, this Court is not in a position to ascertain as to when the State had taken possession of the properties from the Landowners and the mode that was adopted for taking possession. In the absence of the State not filing any counter and not coming out with a clear stand as to when the possession was taken from the Landowners and the mode that was adopted for taking possession, this Court is not in a position to satisfy itself with regard to the taking of possession of the property by the State from the Landowners. 20. In order to understand the second issue with regard to payment of Compensation by the State to the Owners of the properties, it is important to unravel from the Judgment of the Constitution Bench and find out as to when it constitutes tendering/paying/depositing Compensation. For this purpose, the relevant portions in the Judgment are extracted hereunder: “229. Section 24(2) deals with the expression where Compensation has not been paid. It would mean that it has not been tendered for payment under Section 31(1). Though the word ‘paid’ amounts to a completed event however once payment of Compensation has been offered/tendered under Section 31(1), the Acquiring Authority cannot be penalized for non-payment as the amount has remained unpaid due to refusal to accept, by the Landowner and Collector is prevented from making the payment. Thus, the word ‘paid’ used in Section 24(2) cannot be said to include within its ken ‘deposit’ under Section 31(2). For that special provision has been carved out in the Proviso to Section 24(2), which deals with the amount to be deposited in the account of beneficiaries. Two different expressions have been used in Section 24. In the main part of Section 24, the word ‘paid’ and in its Proviso ‘deposited’ have been used. 255. The Landowners had argued that the obligation to pay gets discharged only when Compensation is actually paid and/or deposited. Even if it is received under protest under Section 31(1), it is finally accepted by the Landowners post- settlement by the Reference Court. We are not able to accept the submission as Section 34 of the Act of 1894, is clear even if the amount is not paid or deposited, it carries interest. The logic behind this is that if the State is retaining the amount with peace and its liability to pay does not cease, but it would be liable to make the payment with interest as envisaged therein. Once Tender is made, obligation to pay is fulfilled so that the amount cannot be said to have been paid, but obligation to pay has been discharged and if a person who has not accepted it, cannot penalise the other party for default to pay and non-deposit carries only interest as money had been retained with the Government. 256. Thus, in our opinion, the word “paid” used in Section 24(2) does not include within its meaning the word “deposited”, which has been used in the proviso to Section 24(2). Section 31 of the Act of 1894, deals with the deposit as envisaged in Section 31(2) on being ‘prevented’ from making the payment even if the amount has been deposited in the treasury under the Rules framed under Section 55 or under the Standing Orders, that would carry the interest as envisaged under Section 34, but acquisition would not lapse on such deposit being made in the treasury. In case amount has been tendered and the Landowner has refused to receive it, it cannot be said that the liability arising from non- payment of the amount is that of lapse of acquisition. Interest would follow in Current Writ Cases / April 01 – 15/2021

770 CURRENT WRIT CASES 2021 (1) CWC such a case also due to non-deposit of the amount. Equally, when the Landowner does not accept the amount, but seeks a reference for higher Compensation, there can be no question of such individual stating that he was not paid the amount (he was determined to be entitled to by the Collector). In such case, the Landowner would be entitled to the Compensation determined by the Reference Court.” 21. The conclusion of the above findings culminates at Clause (4) in Paragraph No.402 of the Judgment. Once the Compensation amount is tendered to the Landowner, as provided under Section 31(1) of the Act, the obligation to pay gets fulfilled. If it is refused to be received by the Landowner, that cannot be put against the State and that will not amount to non-payment of the Compensation amount. Again, where the Compensation is refused to be received and the Landowner seeks for enhancement of Compensation, that will also not amount to non-payment of Compensation. Section 31(2) of the Act provides different situations where the Compensation tendered by the State does not actually reach the Landowner under the following circumstances: (i) If the Landowner does not consent or receive it; (ii) No competent person having title is available to receive the Compensation; (iii) There is dispute as to title over the property among various persons claiming right over the property; and (iv) There is dispute with regard to the apportionment of Compensation among the co-owners of the property. In all the above four contingencies, the District Collector will have to deposit the amount of Compensation in the Court to which a reference under Section 18 of the Act is normally preferred. 22. While applying the above principles to the facts of the present case, it is seen that the only document that is available to prove payment of Compensation, is found at Page Nos.59 to 61 of the Typed Set of Papers filed by the 3rd Respondent. A reading of the Award proceedings, dated 31.12.1999 reveals the fact that the Petitioners were recognized as the notified persons of the subject property and it is stated that no one turned up for the Enquiry that was conducted on 26.11.1999. It is further stated that it was decided to deposit the amount into the Civil Court under Sections 30 & 31(2) of the 1894 Act. 23. The Scheme of the 1894 Act shows that after the Award Enquiry is concluded under Section 11 of the Act and the Compensation is determined, Section 12(2) mandates the Collector to give immediate Notice of his Award to such of the persons, who are interested and who were not present personally or through their representatives when the Award was made. In the Counter Affidavit, it has been stated that the Compensation amount of a sum of `1,33,370 was deposited by way of a Cheque under Sections 30 & 31(2) of the 1894 Act, before the Principal Subordinate Court, Coimbatore on 4.6.2000. Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 771 (N. Anand Venkatesh, J.) 24. The 3rd Respondent, except filing the relevant document in the Typed Set of Papers, has not furnished any details with regard to the actual deposit of the Compensation, reference that was made under Sections 30 & 31(2) of the 1894 Act and also as to whether the Compensation amount is still lying in the Court deposit or not. It is to be borne in mind that what was handed over to the Court was only a Cheque. A Cheque deposited will constitute tendering the amount and it will not amount to actual deposit like that of a Revenue deposit. This deposit is said to have taken place twenty years back and till date, there is not even a scrap of paper to show that the Petition was taken on file by the Court and notice was issued to the Petitioners and the Petitioners also received the amount from the Court deposit. There is no material to show that even a single pie had actually gone out of the revenue and reached the Petitioners towards the acquisition of the subject property. The Petitioners were not issued with any notice by Respondents 1 & 2 with regard to the reference being sent to the Court and this is where the Notice under Section 12(2) of the 1894 Act becomes significant and there is absolutely no proof to show that this Notice was issued to the Petitioners. 25. When such a deposit is made before the Court, there is a very important document, which accompanies the Petition and that is ‘Form - D’. A format of the said Form-‘D’ is reproduced hereunder: FORM-D Name of work for which land has been acquired. For the formation of Neighbourhood Scheme, Coimbatore. To The Judge of the Court at The Principal Subordinate Judge Court, Coimbatore. The sum of Rs... ... ... on account of Compensation for the land taken up for the above purpose payable as detailed below is tendered for deposit in Court under Section 31(2) of the Act I of 1894. S. No. in Award Name of Area of land Amount Remarks Statement Parties payable to each Dated Land Acquisition Officer Special Tahslidar [LA] Housing No.III Coimbatore-18 Received the above amount for credit in Civil Court deposits. Note: Judge Current Writ Cases / April 01 – 15/2021

772 CURRENT WRIT CASES 2021 (1) CWC This form should be used when the amount of Compensation due are sent to a Civil Court for deposits. Laid by Cheque No. On the treasury. Decree dated................” 26. The above said Form has necessary particulars with regard to the name of the parties, amount payable etc. At the bottom of the Form, the Court is also supposed to acknowledge the receipt of the amount to the credit of Court deposit. This is the most crucial document, which will show that the amount deposited, was received in the Court. Unfortunately, this Form is not available. Therefore, what ultimately comes out of the statement made by the 3rd Respondent in the Counter Affidavit and the document filed in the Typed Set of Papers is that some Application has been thrown into the Court along with a Cheque and thereafter, no one bothered to follow it up and see that the amount actually reached the Landowners. The Petitioners cannot be blamed for this, since there is no proof to show that the Petitioners were put on notice under Section 12(2) of the 1894 Act, before this so-called Court deposit was made by the Respondents. 27. The next question is whether this deposit made by the Respondents satisfies the requirement of tendering/paying the Compensation to the Landowner. The learned Advocate General submitted that even assuming without admitting that the Respondents did not follow the correct procedure for deposit of the Compensation amount, the same cannot be questioned at this length of time and it should have been questioned during the contemporaneous time at, which it was deposited. In order to appreciate this submission made by the learned Advocate General, this Court must clearly enunciate as to what constitutes tendering/paying of Compensation amount to a Landowner after the Compensation is fixed in the Award proceedings under Section 11 of the 1894 Act. 28. The term “tendering of amount” involves an offer made for payment of money to the person, who is entitled to receive the same. That would mean that the Collector must be armed with the amount of Compensation payable to the persons interested and sufficient notice must be given to them to assemble in a place in order to receive the Compensation amount. It is only for this purpose, Section 12(2) of the 1894 Act provides for issuance of notice to the Landowner after the Award Enquiry and determination of Compensation and if this Notice is issued and the Landowner, either refuses to receive this amount or does not appear even after the receipt of the Notice, the Court Deposit made thereafter, will amount to a proper tendering/paying of the Compensation amount. Even for the sake of arguments if the contention raised by the learned Advocate General that the deposit made without strictly following the letter of law will not vitiate the deposit, is taken as it is, that stage will be reached only if a Notice is given to the Landowner asking him to receive the Compensation under Section 12(2) of Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 773 (N. Anand Venkatesh, J.) the 1894 Act and admittedly, in the present case, no such Notice has been issued to the Landowners. Therefore, the Landowners may not even be knowing that the Compensation amount has been deposited in some account. When the State with its eminent domain powers, acquires the land of a person, it is the duty of the State to tender/pay the Compensation by calling the Owner of the property and the Owner of the property is not expected to voluntarily go and stand before the authority with a begging bowl. This position of law has been made clear by the following Judgments of the Hon’ble Supreme Court of India: (a) DDA v. Sukhbir Singh, 2016 (6) CTC 624 (SC) : 2016 (6) SCC 258 : 2017 (5) SCC (Civ) 779 and the relevant portion is extracted hereunder: “9. The scheme of the Land Acquisition Act, insofar as the making of Award and the payment of Compensation to persons interested, is as follows. On the day fixed, the Collector after the inquiry that is contemplated under Section 11, has to make an Award, which must contain the necessary ingredients mentioned in Section 11. As soon as the Award is made, under Section 12(2) of the Act, the Collector is to give immediate notice of the Award to such of the persons interested as are not present personally. This provision, when read with Section 31 of the Act, makes it clear that the Statutory scheme is that the Collector is to tender payment of Compensation awarded by him to the persons, who are interested and entitled thereto, according to the Award, on the date of making the Award itself. It is, therefore, clear that under the Statutory scheme, the Collector must be armed with the amount of Compensation payable to persons interested as soon as the Award is made. Such persons have to be paid the sum mentioned in the Award, it being well settled that the Award is only an offer, which may be accepted or rejected by the Claimants. If accepted, whether under protest or otherwise, it is the duty of the Collector to make payment as soon as possible after making the Award. It is only in a situation where the persons interested refuse consent to receive monies payable, or there be no person competent to alienate the land, or if there be any dispute as to title to receive Compensation or its apportionment, is the Collector to deposit the amount of Compensation in the Reference Court. It is only after these steps have been taken that the Collector may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. The Act further makes it clear, on a reading of Section 34, that where such Compensation is neither paid or deposited on or before taking possession of the land, Interest is payable @ 9% p.a. for one year and 15% p.a. thereafter. This is because a person becomes divested of both possession and title to his property without Compensation having been paid or deposited, as the case may be. This Statutory scheme has been adverted to in some of the decisions of this Court.” The Court then considered the provisions of the Standing Orders applicable to the NCT of Delhi and observed as under: “17. Far from the aforesaid Standing Order coming to the assistance of the Appellants, it is clear that the said Standing Order fleshes out Section 31 of the Land Acquisition Act by insisting that Compensation must be paid as soon as the award is announced, vide Para 71. Sufficient notice must be given to enable all Current Writ Cases / April 01 – 15/2021

774 CURRENT WRIT CASES 2021 (1) CWC payees to assemble at a place where they will receive their du es immediately. It is emphasised by the said Paragraph that much trouble will be avoided if the principle that payment of Compensation should be made at the time of the Award, is strictly observed. Also, it is important that the Authorities draw in advance a sum sufficient to cover the probable amount of the Award and to make payments.” (b) The expression “tender” occurring in Section 31(2) was considered by a Three-Judge Bench in Indore Development Authority v. Shailendra, 2018 (3) SCC 412. Arun Mishra, J. has observed as under: “Meaning of “paid” in Section 31 of the 1894 Act and Section 24(2) of the 2013 Act: “34. The question arises what is the meaning of the expression “paid” in Section 24 and “tender” in Section 31(2) of the 1894 Act. Whether the tender of Compensation amount to discharge of obligations to make payment. The meaning of expression “tender”: is when a person has tendered the amount and made it unconditionally available and the Landowner has refused to receive it, the person, who has tendered the amount cannot be saddled with the liability, which is to be visited for non-payment of the amount. “Tender” has been defined in Black’s Law Dictionary thus: “Tender, n. (16c) 1. A valid and sufficient offer of performance; specific, an unconditional offer of money or performance to satisfy a debt or obligation a tender of delivery. The tender may save the tendering party from a penalty for non-payment or non-performance or may, if the other party unjustifiably refuses the tender, place the other party in default. Cf. offer or performance; consignation.” (Emphasis supplied) It is apparent from aforesaid that “Tender” may save the tendering party from the penalty for non-payment or non-performance or penalty if another party unjustifiably refusing the Tender, places the other party in default. A formal offer duly made by one party to another especially an offer of money in discharge of liability fulfils the terms of the law and of the liability. Tender is to offer money in satisfaction of a debt, by producing and showing the amount to a creditor or party claiming and expressing verbally, willingness to pay it. The expression “Tender” has been used in Section 31. The concept of deposited in Court is different from Tender and “paid”. In his supplementing opinion Shantanagoudar, J has also adverted to the essentials of a valid “tender” in the following passage: “238. The definition of “Tender” has been outlined by this Court in Tata Cellular v. Union of India, 1994 (6) SCC 651 as follows: (SCC p. 675, para 69) “69. A Tender is an offer. It is something, which invites and is communicated to notify acceptance. Broadly stated, the following are the requisites of a valid tender: 1. It must be unconditional. 2. Must be made at the proper place. Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 775 (N. Anand Venkatesh, J.) 3. Must conform to the terms of obligation. 4. Must be made at the proper time. 5. Must be made in the proper form. 6. The person by whom the Tender is made must be able and willing to perform his obligations. 7. There must be reasonable opportunity for inspection. 8. Tender must be made to the proper person. 9. It must be of full amount. 29. It is clear from the above Judgments that it is the duty of the Collector to make payment by issuing proper Notice to the concerned Landowner and calling him to receive the Compensation amount. Unless this crucial step is followed, the Landowner may not even know whether it was deposited and if so, when the amount was deposited. Even if a notified person or his representative participates in the Award proceedings, that will not amount to a presumption that he has the notice of the Compensation amount being readily available for payment. That is why Section 12(2) of the 1894 Act specifically mandates issuance of such Notice. If the Notice is issued and thereafter, the Landowner refuses to receive the Compensation or does not come to the specified place to receive the Compensation and the Compensation amount gets deposited in a Treasury Account or the Court, as the case may be, the Landowner cannot be permitted to turn around at a later point of time and complain that the Compensation amount was not tendered/ paid to him. 30. In the facts of the present case, the deposit made in the Court on 4.6.2000 by the Special Tahsildar [LA], Housing Scheme Unit 1, Coimbatore, does not amount to a valid tender/payment of Compensation. This finding is given not by finding fault in the procedure adopted in the deposit of amount in the Court, but based on the most crucial fact that there was no notice issued to the Landowners after the Award Proceedings, under Section 12(2) of the 1894 Act and therefore, there was no valid tender/ payment of the Compensation to the Landowners. The Judgments cited supra and the Judgment of the Constitution Bench clearly supports this finding on the issue of valid tender/payment of Compensation. 31. The Third and Fourth issues can be taken up together since they are in a sense, inter related. In order to properly understand the scope of these two issues, it is important to unravel the meaning assigned to the terms “concluded proceedings” and “revival of stale claims”. The relevant portions in the Judgment of the Constitution Bench are extracted hereunder: “275. It is clear that once land is acquired, Award passed and possession has been taken, it has vested in the State. It had been allotted to beneficiaries. A considerable infrastructure could have been developed and a Third party interest Current Writ Cases / April 01 – 15/2021

776 CURRENT WRIT CASES 2021 (1) CWC had also intervened. The land would have been given by the Acquiring Authorities to the beneficiaries from whose schemes the land had been acquired and they have developed immense infrastructure. We are unable to accept the submission that merely by deposit of amount in treasury instead of Court, we should invalidate all the acquisitions, which have taken place. That is not what is contemplated under Section 24(2). We are also not able to accept the submission that when law operates these harsh consequences need not be seen by the Court. In our opinion, that submission is without merit in as such consequences are not even envisaged on proper interpretation of Section 24(2), as mentioned above. 276. The Proviso to Section 24(2) of the Act of 2013, intends that the Collector would have sufficient funds to deposit it with respect to the majority of landholdings. In case Compensation has not been paid or deposited with respect to majority of land holdings, all the beneficiaries are entitled for higher Compensation. In case money has not been deposited with the Land Acquisition Collector or in the treasury or in Court with respect to majority of landholdings, the consequence has to follow of higher Compensation as per Proviso to Section 24(2) of the Act of 2013. Even otherwise, if deposit in treasury is irregular, then the Interest would follow as envisaged under Section 34 of Act of 1894. Section 24(2) is attracted if Acquisition proceeding is not completed within 5 years after the pronouncement of Award. Parliament considered the period of 5 years as reasonable time to complete the Acquisition proceedings i.e., taking physical possession of the land and payment of Compensation. It is the clear intent of the Act of 2013, that provision of Section 24(2) shall apply to the proceeding, which is pending as on the date on, which the Act of 2013, has been brought into force and it does not apply to the concluded proceedings. It was urged before us by one of the Counsel that lands in the Raisina Hills and Lutyens’ Zones of Delhi were acquired in 1913 and Compensation has not been paid. The Act of 2013 applies only to the pending proceedings in, which possession has not been taken or Compensation has not paid and not to a case where proceedings have been concluded long back, Section 24(2) is not a tool to revive those proceedings and to question the validity of taking Acquisition proceedings due to, which possession in 1960s, 1970s, 1980s were taken, or to question the manner of deposit of amount in the treasury. The Act of 2013 never intended revival such claims. In case such Landowners were interested in questioning the proceedings of taking possession or mode of deposit with the treasury, such a challenge was permissible within the time available with them to do so. They cannot wake from deep slumber and raise such claims in order to defeat the acquisition validly made. In our opinion, the law never contemplates nor permits misuse much less gross abuse of its provisions to reopen all the acquisitions made after 1984, and it is the duty of the Court to examine the details of such claims. There are several litigations before us where Landowners, having lost the challenge to the validity of Acquisition proceedings and after having sought enhancement of the amount in the Reference succeeding in it nevertheless are seeking relief arguing about lapse of acquisition after several rounds of litigation. 277. The expression used in Section 24(1)(b) is ‘where an Award under Section 11 has been made”, then ‘such proceedings shall continue’ under the provisions of the said Act of 1894 as if the said Act has not been repealed’. The expression “proceedings shall continue” indicates that proceedings are pending at the time; it is a present perfect tense and envisages that proceedings must be pending as on the Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 777 (N. Anand Venkatesh, J.) date on, which the Act of 2013 came into force. It does not apply to concluded proceedings before the Collector after which it becomes functus officio. Section 24 of the Act of 2013, does not confer benefit in the concluded proceedings, of which legality if question has to be seen in the appropriate proceedings. It is only in the pending proceedings where Award has been passed and possession has not been taken nor Compensation has been paid, it is applicable. There is no lapse in case possession has been taken, but amount has not been deposited with respect to majority of land holdings in a pending proceeding, higher Compensation under the Act of 2013 would follow under the Proviso to Section 24(2). Thus, the provision is not applicable to any other case in which higher Compensation has been sought by way of seeking a Reference under the Act of 1894 or where the validity of the Acquisition proceedings have been questioned, though they have been concluded. Such case has to be decided on their own merits and the provisions of Section 24(2) are not applicable to such cases. 374. Before proceeding further, in our opinion, Section 24 contemplates pending proceedings and not the concluded ones in, which possession has been taken, and Compensation has been paid or deposited. Section 24 does not provide an arm or tool to question the legality of proceedings, which have been undertaken under the Act of 1894 and stood concluded before five years or more. It is only in cases where possession has not been taken, nor Compensation is paid, that there is a lapse. In case possession has been taken, and compensation has not been deposited with respect to majority of landholdings, the beneficial provision of the Statute provides that all beneficiaries shall be paid Compensation as admissible under the Act of 2013. The beneficiaries, i.e., Landowners contemplated under the Proviso to Section 24(2), are the ones, who were so recorded as beneficiaries as on the date of issuance of Notification under Section 4 of the Act of 1894. The provision is not meant to be invoked on the basis of void transactions, and by the persons, who have purchased on the basis of Power of Attorney or otherwise, they cannot claim the benefit under Section 24 as is apparent from proviso to Section 24(2) and the Shiv Kumar v. Union of India, AIR 1969 Del. 64. 375. This Court is cognizant that Section 24 is used for submitting various claims, by way of filing Applications in the pending proceedings either before the High Court or this Court. There are cases in which in the first round of litigation where the challenge to Acquisition proceedings has failed, validity has been upheld, and possession has been taken after passing of the Award. It is contended that drawing of Panchnama was not the permissible mode to take possession, and actual physical possession remains with such Landowners/ Purchasers/Power of Attorney holders as such benefit of Section 24 should be given to them notwithstanding the fact that they have withdrawn the Compensation also. 376. This Court is cognizant of cases where reference was sought for enhancement of Compensation, money was deposited in the Treasury, enhancement was made, and possession was taken. Yet, acquisitions have been questioned, and claims are being made under Section 24, that acquisition has lapsed, as the deposit (of Compensation amount) in the treasury was not in accordance with the law, the amount should have been deposited in reference Court. Further, this Court also notes that there have been cases in which after taking possession, when development is complete, infrastructure has developed despite, which claims are being made under Section 24, on the ground that either Current Writ Cases / April 01 – 15/2021

778 CURRENT WRIT CASES 2021 (1) CWC the possession has not been taken in accordance with law or Compensation has been deposited in the treasury, thus questioning the acquisitions. The Mahavir v. Union of India, C.W.P. No.7302/2009 & C.M.A. No.3062/2009, dated 29.42009, was an instance in which a claim was made that acquisition was made more than a century ago, and Compensation has not been paid as such acquisition has lapsed relating to the land of Raisina Hills in New Delhi. The importance of Raisina Hills is well-known to everybody. The grossest misuse of Section 24 has been sought to be made, which is intended to confer benefit. It was never intended to revive such claims and be used in the manner in which it has been today, where large numbers of acquisitions and development projects, such as construction of Roads, Hospitals, Townships, Housing Projects, etc. are sought to be undone, though such acquisitions have been settled in several rounds of litigation. In several matters, the validity has been questioned under the guise as if the right has been conferred for the first time under the Act of 2013, claiming that such acquisitions have lapsed. There are also cases in which the claims for release of land under Section 48 of the Act of 1894 have been dismissed. Now, claims are made that as land is open and Landowners/intermediaries/POA holders continue to be in physical possession, thus, it should be returned to them, as the acquisition has lapsed under Section 24(2). Before us also arguments have been raised to grant relief in all such cases by making purposive interpretation of benevolent provisions. It was urged that this Court is bound to give relief as Section 24 is retrospective in operation, and the Authorities have not cared to take possession for more than five years or more, and they have not paid the Compensation and deposited it in treasury, which cannot be said to be legal. It is declared that the acquisition has lapsed, and the land is given back to them. In case any infrastructure is existing, the State Government should acquire the land afresh after following the process of Act of 2013. Earlier, injustice was done to Landowners, as observed in various decisions mentioned above. We should not disturb the decisions of this Court and are bound to follow the law laid down in Pune Municipal Corporation (supra) and the Principle of stare decisis. 380. Section 24(2) is sought to be used as an umbrella so as to question the concluded proceedings in which possession has been taken, development has been made, and Compensation has been deposited, but may be due to refusal, it has not been collected. The challenge to the Acquisition proceedings cannot be made within the parameters of Section 24(2) once Panchnama had been drawn of taking possession, thereafter re-entry or retaining the possession is that of the trespasser. The legality of the proceedings cannot be challenged belatedly, and the right to challenge cannot be revived by virtue of the provisions of Section 24(2). Section 24(2) only contemplates lethargy/inaction of the Authorities to act for five years or more. It is very easy to lay a claim that physical possession was not taken, with respect to open land. Yet, once vesting takes place, possession is presumed to be that of the Owner, i.e., the State Government and land has been transferred to the beneficiaries, Corporations, Authorities, etc., for developmental purposes and Third party interests have intervened. Such challenges cannot be entertained at all under the purview of Section 24(2) as it is not what is remotely contemplated in Section 24(2) of the Act of 2013.” The above discussion on these issues ultimately culminates into an answer at Clause [9] of Paragraph No.402, which has already been extracted supra. Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 779 (N. Anand Venkatesh, J.) 32. A careful reading of the above findings of the Hon’ble Supreme Court of India clearly points out to the fact that the term “concluded proceedings” will take within its fold Section 4(1)-Notification, Section 6- Declaration, Section 11 - Award proceedings, Section 12 - Notice of the Award to the persons notified or their representative, Section 31 - Payment of compensation or Section 32 - Deposit in the Court, Section 16 - taking of possession. Once all this process is complete and the land ultimately vests with the State absolutely under Section 16 of the 1894 Act, the same will be construed to be conclusive proceedings. The Constitution Bench of the Hon’ble Supreme Court in more than one place, has categorically held that such concluded proceedings cannot be permitted to be reopened and Section 24(2) of the Act cannot be used as a tool to revive those proceedings and to question the validity of the same. The Hon’ble Supreme Court gives various instances where the lands are acquired and thereafter it is handed over to the Requisitioning Body and the project also starts or in some cases, where the Landowners have sought for a reference for higher Compensation and thereafter turned around to take advantage of Section 24(2) of the Act and in all those instances, the Hon’ble Supreme Court has come down very heavily and said that Section 24(2) of the Act should not be allowed to be misused and no Landowner should be permitted to revive concluded proceedings. 33. The observations made by the Hon’ble Supreme Court and which has been extracted supra, also makes it very clear that stale claims should never be allowed to be made by taking advantage of Section 24(2) of the Act. The Hon’ble Supreme Court quotes the instance of a claim that was made for an acquisition that took place a century ago and for which, it was alleged that no Compensation was paid. The Hon’ble Supreme Court also took into consideration cases where, after the acquisition of the property development projects such as construction of Roads, Hospitals, Townships, Housing projects, etc. are sought to be undone even after such acquisitions have been settled in several rounds of litigations earlier. The Hon’ble Supreme Court said that Section 24(2) of the Act does not confer any new right and thereby, stale claims cannot be revived. 34. The learned Advocate General vehemently argued that the Petitioners have knocked the doors of this Court at a very belated stage and are claiming the benefits of Section 24(2) of the Act. He would further contend that the cause of action for the Petitioners to have taken the benefit of Section 24(2) of the Act arose immediately after the 2013 Act came into force with effect from 1.1.2014. The Petitioners never chose to file any Writ Petition before this Court seeking for the benefit of Section 24(2) of the Act. They have filed the present Writ Petition after nearly six years after the 2013 Act came into force. Therefore, the learned Advocate General would submit that the claims made by the Petitioners has become stale and it is hit by laches and there is an unexplained and inordinate delay in approaching this Court and therefore, this Writ Petition must be dismissed on that ground alone. The Current Writ Cases / April 01 – 15/2021

780 CURRENT WRIT CASES 2021 (1) CWC learned Advocate General would further submit that the project has been undertaken in different phases right from the year 1995 to 2017 and therefore, the Petitioners were aware about this work undertaken by the TNHB and in spite of it, they never chose to come before this Court and question with regard to taking of possession and payment of Compensation if it is not done in accordance with law, at the contemporaneous period of time. The learned Advocate General submitted that the Hon’ble Supreme Court has frowned upon and cautioned the Courts about the delays and has held that delay is fatal in questioning the Land Acquisition proceedings and it should not be entertained by the Courts if it is not questioned within a reasonable time and the parties choose to approach Courts after a lapse of several decades. 35. As per the Counter Affidavit filed by the 3rd Respondent and also the Status Report filed by the 3rd Respondent, it is seen that the proposal to carry on with the Housing Scheme came up for discussion before the Assembly only in the month of March 2020. It is thereafter that the Housing Board started calling for tender in order to undertake the Scheme work and the Tender is said to have been opened on 26.6.2020. Right from the year 1998, when the Section 4(1) Notification was issued, upto the year 2020, the revenue records stood in the name of the original Owners. In fact, even some Sale Deeds have been entertained and transactions have taken place and for the first time, the name of the TNHB finds its place in the Patta only after the proceedings of the 5th Respondent, dated 15.6.2020. This is much after the discussion that took place in the Assembly for undertaking the project, during the month of March 2020. Therefore, for a very long time, there was absolutely no indication from any quarters about the TNHB taking possession of the subject property or paying Compensation to the Petitioners and the Petitioners continued to enjoy the subject property. Since the original records have gone missing, this Court is not able to get any particulars from the State with regard to the taking of possession or payment of Compensation and this Court does not have the advantage of looking into the records due to the fact that it is not available. It is not known as to whether the records are intentionally concealed in order to prevent this Court from taking cognizance of some very material facts. This Court is forced to make such an observation since it is nothing but recklessness on the part of the officials to come and state before a High Court that the records are missing, more particularly, when it is claimed that the project is being undertaken in a phased manner from the year 1995 onwards. 36. Section 24(2) of the Act was brought into force in order to meet those cases where the authorities have failed, due to their inaction, to take possession and to pay Compensation for five years or more before the 2013 Act came into force. The Constitution Bench, in more than one place categorically states that Section 24(2) of the Act is a penal provision to punish the Acquiring Authority for its lethargy in not taking physical possession nor Current Writ Cases / April 01 – 15/2021

Part 7 K. Saraswathi v. State of Tamil Nadu 781 (N. Anand Venkatesh, J.) paying the Compensation after making the Award five years or more before the commencement of the 2013 Act. This observation made by the Hon’ble Supreme Court has a lot of significance in the facts of the present case. In the present case, the Respondents have not only shown recklessness when it came to not taking possession in the manner known to law and not paying/tendering Compensation in the manner known to law, but also it continues till date when they come and tell this Court that the entire original records has gone missing. Such an attitude on the part of the Respondents really requires penal consequences as provided under Section 24(2) of the Act. 37. Section 24(2) of the Act provides for a deemed lapse of the entire Acquisition proceedings where the conditions stipulated therein are fulfilled. Such a deemed lapse happens by operation of law. In other words, it does not require a specific declaration by the Court to declare that the Acquisition proceedings has become bad unless the situation warrants. The Statute has created such a provision contemplating deemed lapse on the coming into force of the 2013 Act where the conditions stipulated under Section 24(2) of the Act are fulfilled, viz., not taking possession and non payment of Compensation. In the present case, this Court has already held that the possession has not been taken and Compensation has not been paid in the manner known to law. At the risk of repetition, this Court again reiterates that this Court is not trying to pin point some mistakes committed by the authorities while taking possession or paying/tendering Compensation. This Court is holding that the possession, which has to be taken in a particular mode and the payment of Compensation, which has be tendered/deposited in a particular mode, has not been done in the facts of the present case and therefore, there is no taking of possession and payment/tendering of Compensation in the eye of law. Therefore, the deeming provision under Section 24(2) of the Act automatically comes into play in favour of Petitioners by operation of law. 38. The cause of action arose for the Petitioners to approach this Court only when the officials of the Housing Board started entering into the property and doing some work and when the name in the revenue records was changed in favour of the TNHB and a Tender Notification was issued. Such action taken on the part of the Respondents, made the Petitioners come before this Court and question the action of the Respondents on the ground that they are not entitled to do so by virtue of the acquisition itself getting lapsed by operation of law under Section 24(2) of the Act. Therefore, this Court in answer to the third and fourth issues, hereby holds that the Petitioners are not reopening any concluded proceedings and the Petitioners are not reviving any stale claims and they knocked the doors of this Court at the right time when the Respondents started performing certain actions from the month of June 2020. 39. In view of the above discussion, this Court holds that the Petitioners satisfy the twin requirements of Section 24(2) of the Act, viz., that the physical possession of the lands was not taken and the Compensation has not Current Writ Cases / April 01 – 15/2021

782 CURRENT WRIT CASES 2021 (1) CWC been paid/tendered/deposited in accordance with law. This Court further holds that the Petitioners are not reopening any concluded proceedings and they are not reviving any stale claims and they have approached the Court at the right time. These findings are rendered in line with the Judgment of the Constitution Bench of the Hon’ble Supreme Court referred supra. The Petitioners are entitled for the relief claimed by them in this Writ Petition and the Acquisition proceedings insofar as the Petitioners are concerned stands lapsed by operation of law under Section 24(2) of the Act. 40. Before parting with this case, this Court wants to express its deep anguish at the sorry state of affairs that is prevailing in some of the State undertakings. Even if the State Government wants to implement projects taking into consideration the Public interest, there are black sheeps, both at the level of the Government as well as the State Undertakings, who will put spokes into those developments for their self-aggrandizement. This is a classic case, which falls under this category. 41. There shall be a direction to the State Government to immediately initiate an Enquiry into the missing records and take all attempts to trace the original records and also initiate Departmental action against persons, who were instrumental in ensuring that the original records went missing. This Court is confident that the original records are not actually missing, but safely available with someone and probably after this order, attempts may also be made to destroy the original records. If the State finds that Private parties are also involved in this illegal act, Criminal Complaint shall be initiated and they should be brought to books. If such stringent actions are not taken, the black sheeps will go scot-free and this type of illegal activities will continue and ultimately, it will have a direct impact on the Public interest. This Court, therefore, expects the State to act with alacrity immediately after the receipt of this Order. 42. In the result, the Writ Petition stands allowed. No Costs. Consequently, the connected Miscellaneous Petition is closed.  Current Writ Cases / April 01 – 15/2021

Part 7 Puneet Sharma v. Himachal Pradesh State Electricity Board Ltd. 783 (SC) (S. Ravindra Bhat, J.) 2021 (1) CWC 783 IN THE SUPREME COURT OF INDIA U.U. Lalit & S. Ravindra Bhat, JJ. C.A. Nos.1318-1322 of 2021 (S.L.P.(C) Nos.10533-10537 of 2020), C.A. Nos.1323-1324 of 2021 (S.L.P.(C) Nos.10538-10539 of 2020) & W.P. (Civil) No.1028 of 2020 7.4.2021 Puneet Sharma and others .....Appellants Vs. Himachal Pradesh State Electricity Board Ltd. and others .....Respondents Recruitment — Himachal Pradesh State Electricity Board Ltd. Junior Engineer (Electrical)/Junior Engineer (IT), Class III (Non-Gazetted) Recruitment and Promotion Rules, 2006, Rules 10(a)(ii) — Whether Degree in Electrical Engineering/Electrical & Electronics Engineering, technically a higher qualification than Diploma in that Discipline — Whether Degree Holders eligible for appointment as Junior Engineer — H.P. Staff Selection Commission advertised 222 posts of Junior Engineers — Degree holders in that discipline applied for said post and called for interview after qualifying in Written test — Final results not declared — Approached High Court alleging that they cannot be denied consideration because of their higher qualification — Claim opposed by Diploma Holders — High Court held that Petitioners cannot be permitted to urge that higher qualification would meet requirement of specific qualifications specified in Rules or Advertisement — On challenge, held, it cannot be inferred that a higher qualification necessarily presupposes acquisition of another, albeit lower qualification — Prescription of qualification for a post is matter of Recruitment policy — It is no function of Judicial Review to expand upon ambit of prescribed qualifications — It is trite law that exigencies of administration fall within domain of Administrative decision making — While prescribing qualifications for a post, State may bear several factors in mind that require creation of jobs across societal structure — All these are matters of policy where Judicial Review must tread warily — Rules provide for 5% sub-quota for Degree holders — Amendment brought about on 3.6.2020 provides that candidates holding higher qualifications, can apply for post of Junior Engineer, fortifies Court’s view — Rules, though amended prospectively, should be deemed to have been inserted from inception — Appeals succeed — Respondent directed to process candidature of all Applicants including Degree holders and proceed to issue final Selection List of all successful candidates after holding interviews — Impugned Judgment set aside — Appeals allowed — Writ Petition allowed partly. (Paras 26, 27, 31 to 33, 38 & 39) Current Writ Cases / April 01 – 15/2021

784 CURRENT WRIT CASES (SC) 2021 (1) CWC CASES REFERRED A.K. Raghumani Singh v. Gopal Chandra Nath, 2000 (2) LLN 925 (SC) ................................. 7 CHD v. Usha Kheterpal Waie, 2011 (9) SCC 645 ..................................................................... 7 Chief Manager, Punjab National Bank v. Anit Kumar Das, 2020 SCC Online SC 897 .......... 28 Govt. of A.P. v. P. Dalip Kumar, 1993 (2) SCC 310 ................................................................. 5 Jyoti, KK v. Kerala Public Service Commission, 2010 (15) SCC 596 .............. 7, 15, 23, 27, 37 Manish Kumar v. Union of India, 2019 (8) SCC 416 .............................................................. 35 P.M. Latha v. State of Kerala, 2003 (2) LLN 1078 (SC) .............................................. 22, 27, 37 State of Punjab v. Anita, 2015 (2) SCC 170........................................................... 15, 25, 27, 37 Vijay v. State of Maharashtra, 2006 (6) SCC 289.................................................................... 34 Yogesh Kumar v. Government of NCT Delhi, 2003 (2) LLN 429 (SC) ............................ 22, 37 Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, 2019 (2) LLN 283 (SC)....... 8, 15, 20, 26, 37 Zile Singh v. State of Haryana, 2004 (8) SCC 1 ...................................................................... 33 Kaveeta Wadia, Advocate for Appellants. C.As. ALLOWED — W.P. PARTLY ALLOWED — NO COSTS JUDGMENT S. Ravindra Bhat, J. 1. Leave granted. With consent of Counsel, the Appeals and Petition were heard finally. 2. Whether a Degree in Electrical Engineering/Electrical and Electronics Engineering is technically a higher qualification than a Diploma in that discipline and, whether Degree-holders are eligible for appointment to the post of Junior Engineer (Electrical) under the relevant Recruitment Rules, is the issue that falls for decision in these Appeals arising out of a Common Judgment of the Himachal Pradesh High Court1. As is evident, this issue is not novel and has an almost endemic tendency requiring judicial attention, albeit in myriad and diverse contexts. 3. The Himachal Pradesh Staff Selection commission (“HPSSC” hereafter), acting on the requisition sent by the Himachal Pradesh State Electricity Board Ltd., (“HPSEB” hereafter) advertised 222 posts of Junior Engineer (Electrical-hereafter referred to as “JE”) on 27.6.2018. Degree- holders in the concerned discipline applied for the post; after qualifying the Written examination, they were called for verification of documents but the final result was not declared. They approached the High Court in Writ proceedings, claiming that since they possessed Educational qualifications that were higher than the prescribed minimum (and advertised) qualifications, they could not be denied consideration. The Diploma-holders opposed this claim, and argued that that the qualifications possessed by Degree-holders was neither higher nor can be considered in teeth of the recruitment Rules as also on the basis of the advertisement issued by the 1. In C.W.P. No.138 of 2020, C.W.P.O.A. No.3601 of 2019 and C.W.P.O.A. No.3633 of 2019 filed by the Degree-holders (hereafter ‘Degree-holders’) claiming the right of consideration, and C.W.P.O.A. No.6534 of 2019 and C.W.P.O.A. No.6252 of 2020 have been filed by the Diploma-holders (“Diploma-holder”) opposing the claim of the Degree-holders. Current Writ Cases / April 01 – 15/2021

Part 7 Puneet Sharma v. Himachal Pradesh State Electricity Board Ltd. 785 (SC) (S. Ravindra Bhat, J.) Himachal Pradesh Staff Selection Commission. The HPSEB adopted a neutral position; however, it highlighted that per the applicable Regulations, the minimum essential qualification provided for recruitment to the post of Junior Engineer (Elect.) was “matriculation with Diploma in Electrical/ Electronics/Electronics and Communication/Computer Science from the recognized Institution/Board/University duly recognized by the Central or State Government”. HPSEB further stated that the HPSSC could not traverse beyond the Regulations, and was bound to make Recruitments in accordance with them. The HPSSC, which issued the advertisement and conducted the selection, opposed the Petitions and asserted that Degree-holders could not be considered for Recruitment. 4. By the impugned Judgment, the High Court considered the parties’ submissions, the position in the recruitment rules, and various decisions of this Court1 besides its own decisions2, and concluded that: “40. It would be noticed that the Hon’ble Supreme Court has categorically held that normal Rule would be that Candidate with higher qualification is deemed to be fulfilled the lower qualification prescribed for the post. But that higher qualification has to be in the same channel, which is not the position in the present case. Therefore, the guiding factor while considering the case of higher qualification is that it must be in the same line. The Degree in engineering is not in the same line as diploma in engineering and it, therefore, cannot be considered to be a higher qualification. 41. Judged in light of the aforesaid exposition of law, a Diploma in Engineering and Degree in Engineering are two distinct qualifications and a Degree in the field in question cannot be viewed as a higher qualification when compared to Diploma in that field. Consequently, the Degree-holder Petitioners cannot be permitted to urge that they possess higher qualification, which would meet the requirement of specific qualifications specified in the Rules or advertisement. 42. In addition to the aforesaid, it would be noticed that the Respondent Electricity Board has itself not considered the Degree in Electrical Engineering/ Electrical & Electronics Engineering to be superior to the diploma and rather treated these to be two separate and distinct qualifications and that is why it vide Notification, dated 3.6.2020 has amended the Recruitment and Promotion Rules for the post of Junior Engineer (Electrical/Junior Engineer (IT) Class III (Non Gazetted) in the following manner....” 1. Jyoti KK v. Kerala Public Service Commission, 2010 (15) SCC 596; State of Uttarakhand and others v. Deep Chandra Tewari and another, 2013 (15) SCC 557; State of Punjab v Anita, 2015 (2) SCC 170; Parvaiz Ahmad Parry v. State of Jammu and Kashmir and others, 2015 (4) LLN 273 (SC) : 2015 (17) SCC 709; Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, 2019 (2) LLN 283 (SC) : 2019 (2) SCC 404; Maharashtra Public Service Commission v. Sandeep Shriram Warade and others, 2019 (6) SCC 362; Zonal Manager, Bank of India Zonal Office, Kochi and others v. Aaraya K. Babu and another, 2019 (8) SCC 587; Himachal Pradesh Staff Selection Commission and others v. Pawan Thakur, 2019 (3) Shim. L.C. 1676; Bhupinder Sharma v. State of H.P.M and others, C.W.P. No.161/2019); Avinash Koundal v. Himachal Pradesh Staff Selection Commission, C.W.P. No.1155 of 2020. 2. Himachal Pradesh Staff Selection Commission & ors. v Pawan Thakur, 2019 (3) Shim. L.C. 1676; Bhupinder Sharma v State of HP & ors, C.W.P. No.161 of 2019; Avinash Koundal v. Himachal Pradesh Staff Selection Commission, C.W.P. No.1155 of 2020 Current Writ Cases / April 01 – 15/2021

786 CURRENT WRIT CASES (SC) 2021 (1) CWC Arguments of the Degree-holders: 5. Ms. Kavita Wadia, appearing for the Degree-holder Appellants, contended that the expression “minimum”1 was deliberately used without any bar under the Rules and did not prevent appointment of Degree-holders to the post of JE (Elect.) in HPSEB, and that diploma was only a minimum requirement. This, she argued is established beyond doubt from Clause 11 of the Rules for appointment to higher promotional post of Assistant Engineers (Elect.) where under 5% quota is provided for those, who possessing degree at the time of their appointment as JE (Elect.) and 5% separately for those who acquired degree during their service as JE (Elect.) after their confirmation. She relies on the decision of this Court in Govt. of A.P. v. P. Dalip Kumar, 1993 (2) SCC 310 (Ref. Para 13 & 15), which held that the expression ‘minimum’ entitles the Employer to choose a person with higher qualification. A minimum acts as a cut-off filter for the same, and does not debar recruitment of higher qualified Candidates. 6. Ms. Wadia submits that the arguments of diploma-holders, i.e. that the “with” in the rules, is disjunctive (in Column 7)-while providing that the qualification stipulated would be “Minimum Matriculation with diploma in electrical engineering/electrical & Electronics Engineering...”-defies logic because if ‘with’ were disjunctive and expression ‘minimum’ was used for making matriculation as a minimum educational requirement, then there was no need to use the expression “minimum” since to pursue the diploma course a Candidate has to have passed matriculation as is reflected in the requirements for admission to diploma courses in prospectuses of Government Colleges. In other words, contends Ms. Wadia, the minimum qualification would only be matriculation in that case, defeating the purpose of the rule, which is that those diploma-holders with matriculation would be considered as possessing the minimum or threshold qualification. It is submitted that “minimum” was intentionally used without any bar under the Rules concerning the appointment of Degree-holders to the Post of JE (Elect.) in HPSEB, making diploma as only a minimum requirement. This is established beyond doubt from Clause 11 of the Rules for appointment to higher promotional post of Assistant Engineers (Elect). The expression ‘minimum’ entitles the Employer to choose a person with higher qualification as ‘minimum’ acts as a cut off filter for the same and does not debar recruitment of those who are higher qualified. 1. Occurring in the rules, (The HPSEB amendments in Column 2, 7 & 10 of the Recruitment and Promotion regulations to the post of Junior Engineer (Elect.) Notified by Notification No. HPSEC (SECTT) R&E/106-10/2006-93342-562, dated 13.12.2006 and further amended by Notification No. HPSEC (SECTT)R&E/106-10/2010-22792-991, dated 25.5.2010) which read as follows: “Minimum matriculation with diploma in Electrical Engineering/Electrical & Electronics Engineering from a recognized institution/Board University duly recognized by the Central/State Government for JE (Elect.) post.” Current Writ Cases / April 01 – 15/2021

Part 7 Puneet Sharma v. Himachal Pradesh State Electricity Board Ltd. 787 (SC) (S. Ravindra Bhat, J.) 7. It is also argued that the term “with” in Clause 7, (reproduced above) is adjunctive in the said group of words, since it adds to the meaning of a sentence but when removed, makes no harm to its grammar. As a noun, an adjunctive joins two components of same weight such as co-ordinating conjunctions. It is further urged that, the decision in A.K. Raghumani Singh and ors. v. Gopal Chandra Nath and ors., 2000 (2) LLN 925 (SC) : 2000 (4) SCC 30, is inapplicable since the issue there was whether experience required with the qualification equivalent to degree was subsequent to attaining the degree or prior to it. To have held that the experience was to be attained after acquiring the degree would have led to “with” being read as “subsequent to”. Further, this Court held that “with” has to be contextually interpreted and was to be a disjunctive in the context of the said rule. It is argued, that in the present case, if the term were to be interpreted contextually to mean that the diploma would not be a minimum while matriculation would be,-a construction that renders the expression ‘minimum’ useless, for diploma cannot be pursued without matriculation and at the same time renders otiose the co-related Clause 11(v). This is contrary to purposive interpretation of the Rules, which ought to apply to gather the intention of the lawmaker. The Appellant relies on CHD v. Usha Kheterpal Waie, 2011 (9) SCC 645, where this Court observed that so long as the qualification prescribed by the Employer is reasonably relevant and has a rational nexus with the function and duties attached to the post, and are not violative of the provisions of Constitution or the statute and Rules, it must be upheld. Counsel submitted that the impugned judgment fell into error in distinguishing, and not following Jyoti, KK v. Kerala Public Service Commission, 2010 (15) SCC 596. 8. It was lastly argued that the High Court erred in applying the Judgment of this Court in Zahoor Ahmad (supra) since it pertained to appointments to the Post of Technician III which is relatable more to field jobs, and restricted the consideration of ‘ITI’ Certificate holders for the said Post to the exclusion of diploma-holders. In the present case, the relevant post is a higher post of JE (Elect.) of which the promotional post is that of AE (Elect.). Also, in Zahoor Ahmad (supra) no expression viz. “minimum” was used in the Rules and the same was mentioned in a note in the advertisement therein, which was interpreted by this Court. It was lastly urged that it is not in dispute that the Appointing Authority cannot defy the Rules or make appointments and, or support a view contrary to the governing and applicable rules. However, in the present case the applicable Rules ought to be read meaningfully, purposively and in a way that is not destructive of the entire scheme and balance sought to be maintained in the Rules, keeping in mind the needs of the posts and the State as well as domiciles. It is submitted that the interpretation of the earlier Rules and the 2020 Rules in Para 40 to 42 of the impugned order is destructive and does complete violence to the intent of the Rule makers. Current Writ Cases / April 01 – 15/2021

788 CURRENT WRIT CASES (SC) 2021 (1) CWC 9. On behalf of the contesting Respondents, i.e. the diploma-holders, Mr. Maninder Singh, learned Senior Counsel requested this Court not to interfere with the well-reasoned Judgment of the High Court. It is submitted that the expression “minimum” is used with the academic qualification, i.e. matriculation and not the essential technical qualification, viz. a diploma. A diploma in electrical engineering can be obtained after pursuing a three years course. That should be preceded by a matriculation or after completing a two years study-after 10th standard in School. Therefore, a candidate to be eligible should have obtained a diploma after matriculation or after 10+2. This clearly eliminated Degree-holders from the zone of eligibility. 10. It was argued that the use of “with” between minimum “matriculation” and diploma operates as a disjunctive. It cannot be read with the word diploma. It is submitted that only diploma-holders such as the contesting Respondents could be considered for selection; their selections were finalized on 2.9.2020 and the select list was prepared by the Commission. Having fulfilled the eligibility conditions and after getting selected through a valid and legal selection process, the entire recruitment process was valid. Accordingly, such of the contesting Respondents, who qualified in the exam and were successful deserved to be appointed. 11. Learned Counsel relied upon the relevant Rules to submit that direct recruitments are made to select category of posts by the Board, i.e. the Sub- Station Attendant, Electrician and Lineman for whom the essential educational qualifications are matriculation with ITI. For these categories of posts, there was conscious change in the Rules with effect from 3.5.2018 when the words “or any other higher qualification in the same trade” were deleted. Thus, from 3.5.2018 diploma-holders were ineligible for consideration for the post of Sub- Station Attendant, Electrician and Lineman. Secondly, for the post of Junior Engineer (Electrical), the essential qualification-which is under challenge, is reserved only for diploma-holders. Thirdly, direct recruitment is possible for Assistant Engineers with regular/ full time degree in electrical or electronic engineering or AMIE or those with full time computer science and electronics and electrical engineering or its equivalent. Therefore, diploma-holders cannot be directly recruited either in the lower grade of Sub-Station Attendants with effect from 3.5.2018 or as Assistant Engineers. 12. It is pointed out that 15 Government polytechnic colleges offer diploma courses in Himachal Pradesh whereas only three Government Colleges offer Degree courses in electrical engineering. The student intake in the diploma course college is as much as 400, whereas the intake in degree courses in electrical engineering in Government colleges is 170 students. Keeping this in mind, if the Degree-holders were permitted to Current Writ Cases / April 01 – 15/2021

Part 7 Puneet Sharma v. Himachal Pradesh State Electricity Board Ltd. 789 (SC) (S. Ravindra Bhat, J.) compete with diploma-holders, the latter would suffer severely and would be disadvantaged. 13. It is submitted that a close look at the recruitment Rules for the HPSEB would further reveal that even in respect of higher posts of Assistant Engineer, Degree-holders are entitled to 36% direct recruitment; diploma- holders are entitled to be promoted in a quota of 64%. The relevant portions of the recruitment rules, it is submitted indicate the following: “[(i) Junior Engineers/Junior Engineer (Sub-station)/Junior Engineer (C/Room)/ Junior Engineer (Power House)/Junior Engineer (Test)/Junior Engineer (Installation)/Junior Engineer (Telephone)/Foreman in the trade concerned, who are Diploma Holder with 7 years’ service in the grade, to the extent of 40% (ii) Junior Engineers/Junior Engineer (Sub-station)/Junior Engineer (C/Room)/ Junior Engineer (Power House)/Junior Engineer (Test)/Junior Engineer (Installation)/Junior Engineer (Telephone)/Foreman in the trade concerned, i.e. persons, who are ITI qualified having 12 years’ service in the trade. (b) Junior Engineers/Junior Engineer (Sub-station)/Junior Engineer (C/Room)/ Junior Engineer (Power House)/Junior Engineer (Test)/Junior Engineer (Installation)/Junior Engineer (Telephone)/Foreman in the trade concerned, i.e. non-ITI holders with 15 years’ service in the grade (a) + (b) = 10%. (iii) From amongst those persons, who pass/acquire the qualification of AMIE (Section A & B) or who acquire Full time/Regular Degree in Electrical Engineering/Electrical & Electronic Engineering/Computer Science Engineering. Electronics & Communication Engineering & Information Technology in service after confirmation to service to the extent of 5%. (iv) Drawing Staff Circle Head Draftsman with diploma in Electrical Engineering or Diploma Certificate of draftsmanship from a recognized institute with 5 year service in the grade having which 10 years’ service as Draftsman/Circle Head Draughtsman and with combined 15 years’ service in the Draftsman Cadre: 4% (v) Before joining the service as JE who possess Regular/Full time degree in Electrical Engineering/Electrical & Electronic Engineering/Computer Sciences Engineering Electronics and Communication Engineering & Information Technology from a recognised University approved by AICTE, Ex Servicemen who have the relevant qualification equivalence to a recognised degree in Electrical Engineering or Electrical & Electronic Engineering stream/discipline recognized by Govt. of India or person who possess AMIE qualification in above stream/discipline from Institute of Engineers (India Calcutta) after confirmation of service = 5%.]” 14. It is submitted that the break-up of promotional quota shown with that of the total promotional quota show that 59% is clearly set out for diploma- holders and those Junior Engineers having a degree, can apply in the 5% quota. This also implies that some Degree-holders can be appointed provided they also had a diploma. Reliance is placed upon certain extracts of Current Writ Cases / April 01 – 15/2021

790 CURRENT WRIT CASES (SC) 2021 (1) CWC a Seniority List, setting out names of nine individuals, who have both diploma and B. Tech/AMIE qualifications. It is submitted that such individuals were recruited not on the basis of degree qualifications but rather because they held the requisite diploma qualifications. 15. It is submitted furthermore that there is nothing in the recruitment rules, either express or implied, which permitted the state authorities to consider and process the candidature of those possessing degrees in electrical engineering but not possessing diploma. It is submitted that the impugned judgment quite correctly surmised that the decision in Jyoti K.K. (supra) was no longer a binding authority in view of the later Judgment of this Court in State of Punjab v. Anita, 2015 (2) SCC 170; and Zahoor Ahmad Rather (supra). Those decisions held that the prescription of a minimum qualification does not (absent given compelling circumstances) permit candidates possessing higher qualifications in the discipline, to apply and be considered for appointment. 16. The HPSEB submits that the Rule in question should be so interpreted and applied to permit Degree-holders a chance at selection. It is submitted that any interpretation of Rules to exclude better qualified persons is irrational and robs the Employer the chance of choosing a better qualified candidate. It is also argued that the post of Junior Engineer (Electrical) is technical and Public interest demands that the interpretation of the Rule extends consideration to someone holding degree. 17. Counsel for the HSEB argued that it is the inherent right of the Employer to seek out better qualified individuals for public appointment; furthermore equivalence of qualification is not a matter for the Courts to determine. HSEB argued that the High Court in the present case decided that a degree is not a better qualification than a diploma, without any expert view and contrary to settled law. It further argued that the Notification, dated 3.6.2020 is an outcome of an attempt to rationalize the recruitment norms throughout the State Government for technical posts in all departments and is an outcome of an exercise beginning in the year 2019 and has nothing to do with the present litigation, and that Notification is applicable prospectively. It cannot, at any rate be challenged before this Court for the first time merely on the ground that an erroneous interpretation has been taken qua the said Notification by the High Court. Analysis and Conclusions: 18. The relevant Rules stipulating essential qualifications for the post of JE, were framed and brought into force on 13.12.2006; they repealed the then existing Rules framed by HPSEB in 1996. The Notification to the extent it is relevant is extracted below: Current Writ Cases / April 01 – 15/2021

Part 7 Puneet Sharma v. Himachal Pradesh State Electricity Board Ltd. 791 (SC) (S. Ravindra Bhat, J.) 7 Minimum Educational Essential and other qualification (I) Minimum matriculation with diploma in required to direct Electrical/Electronics and Communication/ recruits computer Sciences from the recognised institution/Board/University duly recognised by the Central or State Government. Desirable (II) Knowledge of customs, manners and dialects of Himachal Pradesh & suitability for appointment in peculiar conditions prevailing in the State. 10 Method of Recruitment Method of Recruitment whether by direct (I) 80% by direct recruitment on regular or on recruitment or by contract basis through the HPSSB or the promotion, deputation, recruiting agency including Departmental transfer Recruitment Committee as constituted by the Board from time to time. (II) 20% by Promotion. 18 Power to Relax Where the Board is of the opinion that it is necessary or expedient to do so, it may, by order for reasons to be recorded in writing relax any of the provisions of these rules with respect of any class or category of persons or posts, the competent authority shall be the WTM’s of the Board. 19. On 12.1.2007, the All-India Council for Technical Education (AICTE) prescribed that a student acquires a diploma in Engineering through a minimum of 3 years of institutional study (after 10+2 Secondary Examination). Diploma- holders were to be academically equivalent to students who passed the first year of the 4 year engineering degree programme. On 24.5.2010 by Clause 11 the Recruitment and Promotion Regulations applicable to HPSEB were amended; they provided for essential qualifications for promotion from the post of Junior Engineer (Electrical) to the post of Assistant Engineer (Electrical). Effective from 21.6.2012, the Rules of recruitment and Regulations were amended-inter alia, to the cadre of Assistant Engineer, by HPSEB providing two distinct quotas in the promotion quota (from amongst serving Junior Engineers). The existing quota of 6% available to those who acquired AMIE/Degree in Electrical Engineering qualifications, etc. in service with minimum one years’ regular service after confirmation was reduced to 5% quota by the amendment. In addition, the promotional quota to the post of Assistant Engineer, from the cadre of Junior Engineers (with which the present dispute is concerned) was to the extent of 5% eligible for consideration. This quota was specifically identified as those, who had completed their engineering degree “before joining the service Current Writ Cases / April 01 – 15/2021

792 CURRENT WRIT CASES (SC) 2021 (1) CWC of Junior Engineer.” The relevant extract of amendments-of 2012 are set out below: “Assistant Engineer (E) Col.7 (Direct Recruitment) Minimum educational and other qualification required for direct recruits. Existing Provisions Amended Provision (i) Recognized Degree in (i) Regular/Full time Degree in Electrical Engineering or electrical & Electronics Electrical Engineering or Engineering from recognized electrical & Electronics Institution/University duly approved by the AICTE or AMIE from Institution of Engineering from recognized Engineers (India Calcutta) or Exservicemen who have the relevant Institution/University duly equivalence to a recognized Degree in above stream/ discipline recognized by the recognized by the Central/State Govt. of India for AE(E) posts. Govt. for AE(E)posts. (ii) Regular/Full time Degree in Computer Science Engineering or Electronic & (ii) Recognized Degree in Communication Engineering or Information technology OR its equivalent from a Computer Science Engineering recognized Institution/ University duly or Electronic & Communication approved by the AICTE or AMIE in above stream/discipline recognized by the Govt. of Engineering or Information India for AE (E) post. technology OR its equivalent Desirable from recognized by the Central/ (a) Experience of working in State Govt. for AE (IT) post. Design/Construction in hilly areas. Desirable (b) Knowledge of Customs, manners and dialects of Himachal Pradesh & Suitability (a) Experience of working in for appointment in Peculiar conditions Design/Construction in hilly prevailing in the state areas. (b) Knowledge of Customs, manners and dialects of Himachal Pradesh & Suitability for appointment in Peculiar conditions prevailing in the state. Assistant Engineer (E) Col. No.11(iii) (iv) & (v) In case of recruitment by promotion, deputation, transfer, grades from which promotion/deputation/transfer is to be made. Existing Provision Amended Provisions (iii) from amongst those persons (iii) from amongst those persons, who pass/acquire the qualification of AMIE who pass/acquire the qualification (Section A & B) or who acquire Full time/Regular Degree in Electrical of AMIE/Degree in Electrical Engineering/Electrical & Electronic Engineering/Computer Science Enginee- Engineering/Electrical & ring. Electronics & Communication Engineering & Information Technology Electronic Engineering/Computer in service after confirmation to service. = 5% Science Engineering, Electronic & Communication Engineering & Information Technology in Service having minimum one year regular service after confirmation to service = 6% Current Writ Cases / April 01 – 15/2021

Part 7 Puneet Sharma v. Himachal Pradesh State Electricity Board Ltd. 793 (SC) (S. Ravindra Bhat, J.) (iv) Drawing Staff: (iv) Drawing Staff: Circle Head Draftsman possessing Circle Head Draftsman possessing Diploma in Elect. Engineering or Diploma in Elect. Engineering or Diploma Certificate of Draftsmanship from a recognized Institute having 5 Diploma Certificate of years’ service in the grade failing which 10 years’ service as Draftsman/Head Draftsmanship from a recognized Draughtsman/Circle Head Draughtsman and failing both total 15 years services in Institute having 5 years’ service in the Draftsman cadre. = 4% the grade failing which 10 years’ service as Draftsman/Head Draughtsman/Circle Head Draughtsman and failing both total 15 years services in the Draftsman cadre. = 3 % (v) Before joining the service as JE (v) Before joining the services as JE who who possess degree in Electrical Engineering/Electrical & Electro- possess Regular/Full time degree in nic Engineering/Computer Science Engineering. Electronics & Electrical Engineering/Electrical & Communication Engineering & Information Technology from a Electronic Engineering/Computer recognized university including AMIE & having minimum one Science Engineering. Electronics & year regular service in the cadre of JE after confirmation in the Communication Engineering & service. =5% Information Technology from a recognized university approved by the AICTE. Ex-servicemen who have the relevant qualification equivalence to a recognized Degree in Electrical Engineering or Electrical & Electronic Engineering Stream/discipline recognized by the Govt. of India or person who posses AMIE qualification in above stream/discipline from Institute or Engineers (India Calcutta) after confirmation to service. =5% Note: other terms and conditions shall remain unchanged. These amendments will be applicable with immediate effects. 20. By the advertisement in question, HPSEB invited applications for direct recruitment to 222 vacancies in the cadre of JE (Electrical). Several Candidates including the present Appellants, (who are Degree-holders) applied. They were allowed to participate in the written test and many of them were even called for an interview and verification of documents- sometime in April 2019. When matters stood thus, diploma-holders preferred an application1 before the State Administrative Tribunal. By order dated 21.12.2018 the Tribunal interdicted the recruitment process. As there was some conflict and confusion with respect to the interpretation of the Rules on the question i.e. whether Degree-holders could compete for the post of Junior Engineer, other Writ Petitions were preferred. The High Court2 constituted an expert committee to examine all issues of equivalence 1. O.A. 7397 of 2018 2. By an Order, dated 21.5.2019 Current Writ Cases / April 01 – 15/2021

794 CURRENT WRIT CASES (SC) 2021 (1) CWC of academic/technical qualification and also whether persons possessing equal qualifications were eligible for the advertised post. The committee by this report, dated 15.6.2019; influenced by this Court in Zahoor Ahmad Rather (supra) expressed the opinion that Candidates possessing higher qualifications were not eligible for consideration. Other Writ Petitions too were preferred before the High Court. 21. During pendency of the litigation, on 3.6.2020, the HPSEB further amended the Rules inserting a provision enabling Candidates with a minimum matriculation with diploma in Computer Science Engineering or Electronic & Communication Engineering as well as those with degrees. The amendment reads as follows: “Diploma or degree in Computer Science Engineering or Electronic Engineering & Communication Engineering or Information Technology from recognised Institute/University established by Law by the State/Central Govt. OR AMIE from Institution of Engineers (India) (only those candidates who are enrolled for AMIE with the Institute of Engineers (India) Kolkata will be permanent recognition up to 31.5.2013) would be eligible.” After taking into account the submission of the parties, the High Court by the impugned Judgment, endorsed the opinion of the committee and was of the view that only those with matriculation and holding diploma in the relevant subject are considered eligible for the post of Junior Engineer. In W.P.(C) 1028/2020, the Petitioners argue that the Notification of 3.6.2020 is arbitrary as it is prospective; in the alternative, they claim that it should be read as clarificatory and therefore always applicable. 22. The question whether the stipulation or prescription of the particular academic qualification excludes an applicant who possesses what is termed as a higher qualification, from their candidature to the concerned post has often arisen for consideration by this Court. In P.M. Latha and anr. v. State of Kerala and ors., 2003 (2) LLN 1078 (SC) : 2003 (3) SCC 541, the issue which arose for consideration was whether, for primary class Teachers, the prescribed (and advertised) qualification Trained Teacher Certificates (TTC), included those, who held B.Ed. degrees. This Court was forthright in holding that the B.Ed. qualification could not be considered as a higher qualification than the TTC and that the TTC qualification was “given to teachers especially trained to teach small children “primary classes”, whereas those with B.Ed. were trained to impart education to students of “higher classes”. A similar view was expressed in Yogesh Kumar and ors. v. Government of NCT Delhi and ors., 2003 (2) LLN 429 (SC) : 2003 (3) SCC 548, vis-à-vis the same stipulation i.e., B.Ed. and TTC qualifications. The Court further held in Yogesh Kumar (supra) that “a specialized training given to teachers for teaching small children at primary level cannot be compared with training given for awarding B.Ed. Degree.” 23. The next Judgment is Jyoti, K.K. and ors. v. Kerala Public Service Commission and ors., 2010 (15) SCC 596, where the issue was whether Current Writ Cases / April 01 – 15/2021

Part 7 Puneet Sharma v. Himachal Pradesh State Electricity Board Ltd. 795 (SC) (S. Ravindra Bhat, J.) Degree-holders could be considered for the post of Sub-Engineer (Electrical) in the Kerala State Electricity Board, which had prescribed diploma in Electrical Engineering or SSLC or its equivalent as the eligibility criteria. This Court took into consideration Rule 10-A and inter alia observed as follows: “6. Rule 10(a)(ii) reads as follows: 10.(a)(ii). Notwithstanding anything contained in these Rules or in the Special Rules, the qualifications recognised by executive orders or standing orders of Government as equivalent to a qualification specified for a post in the Special Rules and such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post. 7. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant Rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for that post in order to attract that part of the Rule to the effect that such of those higher qualifications which presuppose the acquisition of the lower qualifications prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same Faculty, such qualifications can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far. 8. Under the relevant Rules, for the post of Assistant Engineer, degree in Electrical Engineering of Kerala University or other equivalent qualification recognised or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification that has to be obtained, obviously gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of Sub-Engineer. In that view of the matter the qualification of degree in Electrical Engineering presupposes the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post. 9. In the event the Government is of the view that only diploma-holders should have applied to post of Sub-Engineers but not all those, who possess higher qualifications, either this Rule should have excluded in respect of Candidates who possess higher qualifications or the position should have been made clear that Degree-holder shall not be eligible to apply for such post. When that position is not clear but on the other hand the Rules do not disqualify per se the holders of higher qualifications in the same Faculty, it becomes clear that the Rule could be understood in an appropriate manner as stated above. In that view of the matter the order [Jyothi K.K. v. Kerala Public Service Commission, Original Petition No.9602 of 1998, Order, dated 30.3.2000 (Ker)] of the High Court cannot be sustained. In this case we are not concerned with the question whether all those, who possess such qualifications could have applied or not. When statutory Rules have been published and those Rules are applicable, it presupposes that everyone concerned with such appointments will be aware of such Rules or make himself aware of the Rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of the Appellants would amount to fraud on the public.” 24. It is evident therefore, that this Court was of the opinion that for the post of Sub-Engineer (which can be termed as comparable to the post of Current Writ Cases / April 01 – 15/2021

796 CURRENT WRIT CASES (SC) 2021 (1) CWC Junior Engineer in the present case), the Kerala State Electricity Board felt that those possessing degree as well could be considered. This Court upheld the contention. 25. In Anita (supra) this Court was concerned with JBT teachers, where the minimum qualification was two years’ junior basic teachers’ training. Those with MSc, B.Ed. and MA qualifications were held ineligible, looking at the nature of the job i.e. teaching primary classes. Jyoti (supra) was distinguished because the Appointing Authority had the option of considering appointment of persons with higher qualifications. 26. In Zahoor Ahmad Rather (supra) the post in question was “Technician-III” in the Power Development Department in the State of Jammu and Kashmir. The relevant stipulation with respect to qualification was “Matric with ITI in the relevant trade.” The Appellants held diploma in Electrical Engineering and were included in the list of disqualified Candidates. This resulted in litigation which ultimately culminated in the Judgment of this Court. This Court held in its Judgment Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, 2019 (2) LLN 283 (SC) : 2019 (2) SCC 404: “Under the above provisions as well as in the advertisement which was issued by the Board, every candidate must possess the prescribed academic/professional/ technical qualification and must fulfil all other eligibility conditions. The prescribed qualifications for the post of Technician III in the Power Development Department is a Matric with ITI in the relevant trade. The Board at its 116th meeting took notice of the fact that in some districts, the interviews had been conducted for candidates with a Diploma in Electrical Engineering while in other districts Candidates with a diploma had not been considered to be eligible for the post of Technician III. Moreover, Candidates with an ITI in diverse trades had also been interviewed for the post. The Board resolved at its meeting that only an ITI in the relevant trade, namely, the Electrical trade is the prescribed qualification specified in the advertisement.” 27. Thereafter, the Court discussed the previous rulings in P.M. Latha, Jyoti K.K. and Anita (supra), then concluded that the candidature of the diploma-holders was correctly rejected and held as follows: “26. We are in respectful Agreement with the interpretation, which has been placed on the Judgment in Jyoti K.K. v. Kerala Public Service Commission, 2010 (15) SCC 596 : 2013 (3) SCC (L&S) 664, in the subsequent decision in Anita [State of Punjab v. Anita, 2015 (2) SCC 170 : 2015 (1) SCC (L&S) 329. The decision in Jyoti K.K. v. Kerala Public Service Commission, 2010 (15) SCC 596 : 2013 (3) SCC (L&S) 664, turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The State as the Employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of Judicial review. Whether a particular qualification Current Writ Cases / April 01 – 15/2021

Part 7 Puneet Sharma v. Himachal Pradesh State Electricity Board Ltd. 797 (SC) (S. Ravindra Bhat, J.) should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti K.K. v. Kerala Public Service Commission, 2010 (15) SCC 596 : 2013 (3) SCC (L&S) 664, turned on a specific statutory Rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a Rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, L.P.A.(SW) No.135 of 2017, dated 12.10.2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J & K] of the learned Single Judge and in coming to the conclusion that the Appellants did not meet the prescribed qualifications. We find no error in the decision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No.135 of 2017, decided on 12.10.2017 (J&K)] of the Division Bench. 27. While prescribing the qualifications for a post, the State, as Employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public Employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. v. Kerala Public Service Commission, 2010 (15) SCC 596 : 2013 (3) SCC (L&S) 664, must be understood in the context of a specific statutory Rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific Rule that the decision in Jyoti K.K. v. Kerala Public Service Commission, 2010 (15) SCC 596 : 2013 (3) SCC (L&S) 664] turned.” 28. It would be also useful to notice a later Judgment of this Court, in Chief Manager, Punjab National Bank and anr. v. Anit Kumar Das, 2020 SCC Online SC 897, where the issue was, whether for the post of peon in the Appellant Bank, a Degree-holder (graduate) could be appointed, given the conscious decision of the Employer, that only those who held 10+2 pass qualifications would be considered and those with graduation qualification could not be considered. This Court held that the appointment of the Respondent, who was a graduate, after he suppressed the fact that he held a degree, and did not disclose it, was unsupportable. In this context, it was observed that as to what qualifications are applicable to what class of posts, is a matter of discretion to be exercised by the Employer, which the Courts would be slow to interdict. This decision too supports the conclusions in the present case, since the Employer, HPSEB asserts that it considers Degree- holders eligible for appointment to the post of JE. 29. In the present case, what is evident from the Rules is that direct recruitment to the post of JEs in HPSEB is to the extent of 72%. Undoubtedly, eligibility is amongst those, who passed in matriculation or 10+2 or its equivalent qualification. However, this Court is of the opinion Current Writ Cases / April 01 – 15/2021

798 CURRENT WRIT CASES (SC) 2021 (1) CWC that the diploma-holders’ contention that the minimum qualification is matriculation and that the technical qualification is diploma is incorrect. The minimum qualification for the post cannot be deemed to be only matriculation but rather that only such of those matriculates, or 10+2 pass students, who are diploma-holders would be eligible. The term “with” in this category has to be read as conjunctive. 30. As far as the merits of the main question i.e. whether Degree-holders too can apply for the post of JEs, a close examination of the Rules shows that a lion’s share of the posts at the JE level is set apart for direct recruitment. However, when it is at the level of the higher post i.e. Assistant Engineer which is a promotional post direct recruitment is only to the extent of 36%. Of the balance 64%, various sub-quotas have been stipulated for feeder cadres; the largest percentage being for Junior Engineers. For a long time, even on the date of the advertisement, two distinct quotas (of 5%) had been set apart for promotion of Junior Engineers holding degree qualifications in the concerned subject. 31. This Court is conscious that the issue in question is whether the minimum qualification of a diploma in electrical or electronic engineering or other prescribed qualifications includes a degree in that discipline. However, the Rules have to be considered as a whole. So viewed, the two sub-quotas are: (1) 5% enabling those diploma-holders, who acquire degree qualifications during service as Junior Engineers; and (2) 5% enabling among those, who hold degrees before joining as Junior Engineers; 32. The latter (2) conclusively establishes that what the Rule making authority undoubtedly had in mind was that Degree-holders too could compete for the position of JEs as individuals holding equivalent or higher qualifications. If such interpretation were not given, there would be no meaning in the 5% sub- quota set apart for those who were Degree-holders before joining as Junior Engineers-in terms of the recruitment Rules as existing. 33. The Court’s opinion is fortified by the latest amendment brought about on 3.6.2020. This clarifies beyond doubt that even for the post of Junior Engineers, those individuals holding higher qualifications are eligible to compete. In the opinion of this Court, though the amending Rules were brought into force prospectively, nevertheless, being clarificatory, they apply to the recruitment that is the subject matter of the present controversy. Such a position (i.e. clarificatory amendments operative retroactively, despite their enforcement prospectively) has been held in several previous Judgments of this Court. In Zile Singh v. State of Haryana, 2004 (8) SCC 1, this Court examined the various authorities on statutory interpretation and concluded: (SCC pp. 8-9, Paras 13- 14) Current Writ Cases / April 01 – 15/2021

Part 7 Puneet Sharma v. Himachal Pradesh State Electricity Board Ltd. 799 (SC) (S. Ravindra Bhat, J.) “13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the Rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only—‘nova constitutio futuris formam imponere debet non praeteritis’--a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at page 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., page 440). 14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain’ an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid., pp. 468-69).” 34. In Vijay v. State of Maharashtra, 2006 (6) SCC 289, this Court held as follows: “12. The Appellant was elected in terms of the provisions of a statute. The right to be elected was created by a statute and, thus, can be taken away by a statute. It is now well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid Rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. The Appellant does not and cannot question the competence of the legislature in this behalf.” 35. Likewise, in Manish Kumar v. Union of India, 2019 (8) SCC 416, it was held that: “Declaratory, clarificatory or curative Statutes are allowed to hold sway in the past. The very nature of the said laws involve the aspect of Public interest which requires sovereign Legislature to remove defects, clarify aspects which create doubt. The declaratory law again has the effect of the legislative intention being made clear. It may not be apposite in the case of these Statutes to paint them with the taint of retrospectivity.” 36. It would also be relevant to notice that in the Appeal, it has been specifically averred that the HPSEB has been making contractual appointments from amongst Degree-holders in the cadre of Junior Engineers, Current Writ Cases / April 01 – 15/2021

800 CURRENT WRIT CASES (SC) 2021 (1) CWC and that an order was issued upon the recommendation of the Screening Committee, which through its meeting held on 11.4.2018 had cleared the regularization of 28 such candidates. These Degree-holders are equivalent to Junior Engineers, and had been working for periods ranging between 4 to 6 years. A copy of that order has been produced as Annexure P-10 in the Special Leave Petition.1 37. The considerations which weighed with this Court in the previous decisions i.e. P.M. Latha, Yogesh Kumar, Anita (Supra) were quite different from the facts of this case. This Court’s conclusions that the prescription of a specific qualification, excluding what is generally regarded as a higher qualification can apply to certain categories of posts. Thus, in Latha and Yogesh Kumar as well as Anita (supra) those possessing degrees or post-graduation or B.Ed. degrees, were not considered eligible for the post of primary or junior Teacher. In a similar manner, for “Technician-III” or lower post, the equivalent qualification for the post of Junior Engineer i.e. diploma-holders were deemed to have been excluded, in Zahoor Ahmed Rather (supra). This Court is cognizant of the fact that in Anita as well as Zahoor (supra) the stipulation in Jyoti (supra) which enabled consideration of Candidates with higher qualifications was deemed to be a distinguishing ground. No such stipulation exists in the HPSEB Rules. Yet, of material significance is the fact that the higher post of Assistant Engineer (next in hierarchy to Junior Engineer) has nearly 2/3rds (64%) promotional quota. Amongst these individuals, those who held degrees before appointment as a Junior Engineers are entitled for consideration in a separate and distinct sub- quota, provided they function as a Junior Engineer continuously for a prescribed period. This salient aspect cannot be overlooked; it only shows the intent of the Rule makers not to exclude Degree-holders from consideration for the lower post of Junior Engineers. 38. As noticed previously, in addition to the above considerations, an amendment to the Rules was made on 3.6.2020 declaring that those, with higher qualifications are also entitled to apply or be considered for appointment. This amendment was brought in to clear all doubts and controversies and, in that sense, the amending provisions should be deemed to have been inserted from inception. 39. For the foregoing reasons, these batches of Appeals by the Degree- holders have to succeed. The Respondent HPSEB is directed to process the candidature of all Applicants, including the Degree-holders who participated, and depending on the relative merits, proceed to issue the final selection list of all successful Candidates, after holding interviews, etc. The impugned Judgment is accordingly set aside; the Appeals are allowed and Writ Petition is allowed partly, in the above terms, without order on costs.  1. SLP (C) 10533-37 of 2020 Current Writ Cases / April 01 – 15/2021

Part 7 Government of India v. Sitakant S. Dubhashi 801 (SC) (Ashok Bhushan, J.) 2021 (1) CWC 801 IN THE SUPREME COURT OF INDIA Ashok Bhushan & Navin Sinha, JJ. C.A. No.987 of 2020 (S.L.P.(C) No.27297 of 2017) 11.2.2020 Government of India and others …..Appellants Vs. Sitakant S. Dubhashi and another …..Respondents Swatantrata Sainik Samman Pension Scheme, 1980, Paras 3 & 4 — Grant of Pension — Cut off Date — Validity — Benefit of 1980 Scheme granted to participants of Goa Liberation Movement Phase II in relaxed criteria — Persons not included in relaxed criteria challenging Scheme on basis of equality — Held, intelligible differentia and nexus with object in determining relaxed criteria — Objection of Respondent, who did not fulfil cut off criteria, unsustainable — Writ Petition filed by R1 dismissed — Civil Appeal allowed. (Paras 17 - 19 & 30) CASES REFERRED Mukund Lal Bhandari v. Union of India, 1993 Supp. (3) SCC 2 ....................................... 29, 30 Vikramjit Banerjee, ASG, Akshay Amritanshu, Sunita Sharma, Siddharth Sinha, Prashant Rawat, Om Prakash Shukla, Shubham Sharma & B.V. Balaram Das, Advocates for Appellants. Mugdha Pande, Pallav Mongia, Pratap Venugopal, Surekha Raman & Akhil Abraham & P.S. Sudheer, Advocates for Respondents. C.A. ALLOWED JUDGMENT Ashok Bhushan, J. 1. This Appeal has been filed against Judgment of High Court of Bombay at Goa at Panaji, dated 20.3.2017 allowing the Writ Petition filed by Respondent No.1. The Writ Petition was filed by Respondent No.1 challenging the Notification, dated 17.2.2003 issued by Government of India as well as Orders, dated 16.11.2009 & 13.11.2014 issued by the Government of India rejecting the claim of Respondent No.1 for Pension under Swatantrata Sainik Samman Pension Scheme, 1980. 2. Brief facts of this case for deciding this Appeal are: 2.1. The Government of India has introduced Freedom Fighters Pension Scheme, 1972. With certain modifications, the scheme was renamed as Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as “SSSP Scheme, 1980”). For grant of pension under the SSSP Scheme, 1980, there were eligibility conditions. The freedom fighters having suffered Current Writ Cases / April 01 – 15/2021

802 CURRENT WRIT CASES (SC) 2021 (1) CWC minimum imprisonment of six months were eligible for benefit of the Scheme. The Government of India decided to extend the SSSP Scheme to the participants of Goa Liberation Movement who fulfilled the eligibility conditions under SSSP Scheme. The Respondent had made an application to the Government of India for grant of SSSP Scheme on 19.3.1982. The Respondent No.1 was informed by the Government of India in the year 1985 that his case having not recommended by the State he is not entitled for SSS Pension. The Government of India received representation from various quarters for grant of pension to all the participants of Goa Liberation Movement particularly to those who participated in the second phase of the movement (1954-55). The Government of India decided to grant freedom fighter pension to participants of Goa liberation Movement Phase-II (1954- 55) under SSSP Scheme, 1980 by Government Order dated 17.02.2003. 2.2. After liberation of Goa in 1961, the State of Goa has initially framed Goa, Daman & Diu Freedom Fighters Welfare Rules, 1973. In supersession of 1973 Rules, the State framed the Goa freedom fighter’s welfare rules, 1988. Freedom fighters were defined in Rule 2. 2.3. The Respondent had made an Application for State Pension by Application, dated 28.7.2001. On the application of the Respondent, the Government of Goa asked for reports from Inspector General of Police which was submitted by Deputy Inspector General of Police, dated 9.5.2002 opining that name of the Respondent No.1 is not figuring in the freedom fighters register. The Application of Respondent No.1 was considered by the Government and the application of Respondent No.1 for grant of State Pension was rejected on 18.12.2002. 2.4. The Respondent No.1 made an Application, dated 15.4.2003 for grant of Pension under the SSSP Scheme, 1980 for Freedom Fighters of Goa Liberation Movement Phase-II (1954-55). The State of Goa wrote a Letter, dated 13.2.2004 to the Respondent No.1 that copy of Samman Pension order cannot be issued to him since his case has not been approved so far. The Respondent No.1 was, however, informed that his application for State Pension will be placed before the Committee for further action. The Committee constituted by State of Goa to consider the cases for grant of State Pension considered the case of Respondent No.1 and by Proceeding, dated 23.7.2004 opined to reject the claim. 2.5. In pursuance of announcement of State of Goa for re-opening of Freedom Fighters Scheme in 2003, the claim of large number of persons were entrusted to a Committee constituted under the Chairmanship of Chief Secretary. After several deliberations ultimately a list of 22 persons was approved on 26.12.2007 for State pension in which Respondent No.1 was also included. On 26.12.2007, the name of Respondent No.1 was approved for grant of State Pension and consequently, a Pension Payment Order was issued on 11.3.2008 to Respondent No.1 for grant of State Pension w.e.f. 1.12.2007. Current Writ Cases / April 01 – 15/2021

Part 7 Government of India v. Sitakant S. Dubhashi 803 (SC) (Ashok Bhushan, J.) After receipt of State Pension, the Respondent No.1 sent a Representation, dated 6.8.2009 to the Government of India for grant of SSS Pension from the Government of India. The Government of India vide Letter, dated 16.11.2009 communicated Respondent No.1 that case of Respondent No.1 has been examined and it is found that Respondent No.1 has been granted State Pension in 2008 only, hence, he was ineligible for grant of SSS Pension under the relaxed criteria for Goa Liberation Movement Phase-II. The Respondent No.1 was communicated that participants who were in receipt of State Pension by 1.8.2002 are only eligible. On a further representation by Respondent No.1, again a similar communication was sent by the Government of India to Respondent No.1, dated 13.11.2014. 2.6. The Respondent No.1 filed a Writ Petition No.229 of 2016 in the High Court of Bombay, Goa at Panaji, praying for following relief: “A. Declaration that the decision of Government of India, dated 4.2.03 and the Notification, dated 17.2.03 to the extent it restricts the entitlement of pension to freedom fighter participants of Goa Liberation Movement Phase II who were in receipt of pension as on 1.8.2002 is arbitrary null and void being violative of Article 14 of Constitution of India and for a declaration that freedom fighters recognized by the Government of Goa and in receipt of State Government pension notwithstanding the date being later than 1.8.02 are entitled to Pension. B. Writ of Mandamus, Writ in the nature of mandamus directing the Respondent to consider the application of Petitioner for grant of Pension under the Swatantrata Sainik Samman Pension Scheme, 1980 Goa Liberation Movement Phase-II (1954-55). C. For Writ of Certiorari, a Writ in the nature of certiorari or any other Writ direction and other quashing and setting aside Communication, dated 16.11.09 & 13.11.2014 passed by the Ministry of Home Affairs.” 2.7. The Appellant could not file any reply to the Writ Petition nor case of the Respondent No.1 was specifically denied. The High Court after hearing the parties allowed the Writ Petition and directed the Appellant to grant the Pension under SSSP Scheme to the Respondent No.1 w.e.f. 11.3.2008. The Government of India aggrieved by the said Judgment has come up with this Appeal. A Counter Affidavit has been filed by Respondent No.1 as well as Respondent No.2, the State of Goa. The Government of India has filed an Additional Affidavit, dated 2.12.2019. A rejoinder Affidavit has also been filed by the Appellant. 3. We have heard Shri Vikramjit Banerjee, ASG for Appellant, Mrs. Mugdha Pande has been heard for Respondent No.1 and Shri Pratap Venugopal has appeared for State of Goa. 4. Learned Counsel for the Appellant submits that to the participants of Goa Liberation Movement, Phase-II, the SSSP scheme was extended with Current Writ Cases / April 01 – 15/2021

804 CURRENT WRIT CASES (SC) 2021 (1) CWC the conditions that only those applicants shall be eligible to receive the benefits of the scheme who are in receipt of State Pension on 1.8.2002. It is submitted that issue of fixation of date was deliberated and consciously included in the scheme which is apparent from relevant noting brought on record along with the Additional Affidavit. 5. It is submitted that the Respondent No.1 has been granted State Pension on 11.3.2008 only and he did not fulfill the condition of the scheme which was introduced by the Government Order, dated 17.2.2003. The Government of India did not commit an error in rejecting the claim of the Respondent No.1. High Court has erred in holding that cut-off date 1.8.2002 has no relevance. It is further submitted that High Court committed error in allowing the Writ Petition of Respondent No.1 who did not fulfill the eligibility for grant of SSSP Scheme. 6. Counsel appearing for Respondent No.1, Ms. Mugdha Pande, vehemently refuting the submission of Counsel for the Appellant contends that the Respondent No.1 had been issued Identity Card of freedom fighter in the year 1984 and he had made an application for grant of State Pension on 28.7.2001 which although was rejected in December 2002 but subsequently State itself having granted Pension w.e.f. 1.12.2007, the Respondent No.1 is eligible for grant of SSS Pension. 7. It is submitted that there is no rationale for fixing cut-off date 1.8.2002 for grant of SSS Pension to participants of Goa Liberation Movement, Phase- II and there is no nexus with object sought to be achieved. All freedom fighters who are in receipt of State Pension are eligible to SSSP Scheme. 8. Learned Counsel appearing for State of Goa submitted that claim of Respondent No.1 for grant of State Pension was rejected in December 2002 after due Enquiry and after obtaining the report from the Deputy Inspector General of Police and other authorities. Learned Counsel for the state of Goa has also produced the Original Records pertaining to claim of State Pension by Respondent No.1 which contains the Application made by Respondent No.1 in the year 2001. The reports obtained on the said Application and decision, rejecting the claim. The record also contains the subsequent Application of Respondent No.1 after reopening of the State Pension Scheme in year 2003 and approval of grant of pension to twenty-two freedom fighters which included the name of Respondent No.1 also w.e.f. 1.12.2007. 9. We have considered the submissions of learned Counsel for the parties and perused the record. 10. The issue to be considered in the Appeal is as to whether the Respondent No.1 was entitled for grant of SSS Pension as per the Scheme, dated 17.2.2003 of the Government of India and whether the High Court had taken correct decision in allowing the Writ Petition of Respondent No.1 and further as to whether cut-off date as fixed in the Government Order, dated 17.2.2003 that Applicant should be in receipt of State Pension by 1.8.2002 is a valid condition. Current Writ Cases / April 01 – 15/2021

Part 7 Government of India v. Sitakant S. Dubhashi 805 (SC) (Ashok Bhushan, J.) 11. For grant of State Pension, the State of Goa has framed Rules in the year 1973 and 1988. Goa Freedom Fighter’s Welfare Rules, 1988 contains the eligibility for grant of freedom fighters’ Pension to persons, who participated in National Liberation Movement or Liberation of Goa. Rule 2 is a definition clause, Rule 2(1) defined freedom fighters which is to the following effect: “2(i). “Freedom Fighter” means any person who on account of participation in National Liberation Movement or liberation of Goa, had undergone the sufferings listed below: (a) He/she had been sentenced to imprisonment for not less than 15 days: or (b) He/she was had suffered imprisonment for not less than 15 days (including detention as under trial prisoner; or as prisoner in police custody for interrogation) (c) He/she was killed in action; or (d) He/she was sentenced to death; or (e) He/she died due to police or military firing or lathi charge or hit by any instruments; or (f) He/she died after release from Portuguese prison or Custody provided that the death is directly attributable to ill treatment/brutalities/torture meted out to him/her during detention or (g) He/she lost his/her job or means of livelihood or the whole or substantial part of his/her property due to such participation, dismissal or removal from Government service/semi-Government Organisation/educational institution any other registered body duly supported by the record of the said body; or (h) He/she had gone underground for not less than one year but did not suffer imprisonment if he/she was declared by the Portuguese authorities as proclaimed offender or a warrant of arrest was issued against him/her by the Portuguese or an order of detention was issued against him/her by the Portuguese; or (i) He/she became permanently incapacitated on account of participation in the liberation movement;” 12. Swatantrata Sainik Samman Pension Scheme, 1980, is a scheme of Central Government for grant of Pension for those who participated in freedom movement of the country. Paragraph 3 of the SSSP Scheme, 1980 provides for who is eligible, which is to the following effect: “3. Who is Eligible ? For the purpose of grant of Samman Pension under the scheme, a freedom fighter is: (a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However, ex-INA personnel will be eligible for Pension if the imprisonment/detention suffered by them was Current Writ Cases / April 01 – 15/2021

806 CURRENT WRIT CASES (SC) 2021 (1) CWC outside India. The minimum period of actual imprisonment for eligibility of Pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1.8.1980. Explanation: 1. Detention under the Orders of the Competent Authority will be considered as imprisonment. 2. Period of normal remission up to one month will be treated as part of actual imprisonment. 3. In the case of a trial ending in conviction, under trial period will be counted towards actual imprisonment suffered. 4. Broken period of imprisonment will be totalled up for computing the qualifying period. (b) A person who remained underground for more than six months provided he was: 1. a proclaimed offender; or 2. one on whom an award for arrest/head was announced; or 3. one for whose Detention Order was issued but not served. (c) A person interned in his home or externed from his district provided the period of internment/externment was six months or more. (d) A person whose property was confiscated or attached and sold due to participation in the freedom struggle. (e) A person who became permanently incapacitated during firing or lathi charge. (f) A person who lost his job (Central or State Government) and thus means of livelihood for participation in national movement. A MARTYR is a person who died or who was killed in action or in detention or was awarded capital punishment while participation in a National Movement for emancipation of India. It will include an ex-INA or ex-Military person who died fighting the British.” 13. The eligibility under the SSSP Scheme, 1980 is, thus, entirely different from the eligibilities for grant of pension under the Goa Rules, 1973 and 1988. The applicability of SSSP Scheme, 1980 was also extended to other movements apart from mainstream of the liberation struggle of the country. Paragraph 4 of the SSSP Scheme, 1980 deals with “What are the movements/mutinies connected with National Freedom Struggle”, which is to the following effect: “What are the Movements/Mutinies Connected With National Freedom Struggle: 4. Apart from the mainstream of the liberation struggle the movements/mutinies which were directed against the British (French in case of Pondicherry and Portuguese in case of Goa) with freedom of the country as its ultimate goal are also treated as part of National Freedom Struggle for the purpose of grant of Current Writ Cases / April 01 – 15/2021

Part 7 Government of India v. Sitakant S. Dubhashi 807 (SC) (Ashok Bhushan, J.) Pension unless any movement(s) is specifically decided as not qualifying for the grant of Samman Pension. The Movements for merger of erstwhile Princely States within the Indian Union after 15th August 1947 and the freedom struggle in the former French and Portuguese possession in India (Colonies) are considered as part of the National Freedom Movement for the purpose of grant of Samman Pension under Scheme.” 14. Thus, movements/mutinies, which were directed with regard to Portuguese in case of Goa was also covered by the said SSSP Scheme. Thus, Freedom Fighters of the Goa, who were eligible according to the SSSP Scheme, 1980 were also eligible to apply for SSSP Scheme, 1980. The Respondent No.1 himself had applied for grant of SSS Pension Scheme, 1980 in the year 1982 itself as noted above. 15. Although, Goa Freedom Fighters, who fulfil the conditions under SSSP Scheme, 1980 were eligible for grant of pension, the Representations were received from various quarters for grant of pension to all the participants of Goa Liberation Movement particularly to those, who participated in second phase of movement (1954-55), which issue was under examination by the Home Ministry. The letter dated 19.08.2002 written to the Chief Secretary of Government of Maharashtra/Rajasthan/Haryana/Goa/ Madhya Pradesh/Uttar Pradesh clearly mentions the above fact, which is to the following effect: “No.8/10/99-FF(P) Government of India/Bharat Sarkar Ministry of Home Affairs/Girh Mantralaya Freedom Fighters Division … Lok Nayak Bhawan, Khan Market, Date, New Delhi, the 19th August 2002. To The Chief Secretary, Government of Maharashtra/ Rajasthan/Haryana/Goa/Madhya Pradesh/Uttar Pradesh. Subject: Grant of Freedom Fighters Pension to the participants of Goa Liberation Movement under the “Swatantrata Sainik Samman Pension Scheme, 1980” … Sir, I am directed to say that the participants of Goa Liberation Movement who fulfilled the eligibility criteria of “Swatantrata Sainik Samman Pension Scheme, 1980” have been sanctioned freedom fighters’ Pension by the Central Government. However, representations/requests have been received from various quarters including VIPs for grant of pension to all the participants of Goa Liberation Movement particularly to Current Writ Cases / April 01 – 15/2021

808 CURRENT WRIT CASES (SC) 2021 (1) CWC those who participated in the Second phase of the Movement (1954-55). This issue is under examination of this Ministry for quite a long time. 2. You may be aware that the Second phase of the Movement was organized in 1954-55. It is said that Portuguese Military authorities shot dead various Satyagrahis including some batch leaders and a large number of participants were physically pushed back into the adjoining territories. Thus, the participants of this Movement were never arrested, tried and punished by the Portuguese Government and/or by the Martial Law Court but physically thrown back out of Goa. There is no authenticated record as to how many Satyagrahis were thrown back primarily because no such records were maintained. In the absence of any records of the sufferings of die participants, they could not be sanctioned FF pension as they do not fulfill the eligibility criteria laid down under the Scheme. 3. Ministry of Home Affairs is considering that the eligibility criteria may be relaxed to provide pension under the “SSSP Scheme,1980” to the freedom fighters of Goa Liberation Movement, Phase II (1954-55) who have already been sanctioned pension by the State Government by 1.8.2002. To examine this proposal further, it is requested that the authenticated list of all those freedom fighters (indicating details of their names, father’s name, addresses and date of sanction of Pension by the State Government) who have been sanctioned freedom fighters Pension by State Government up to 1.8.2002 for their taking part in the above Movement, may be sent to the Ministry of Home Affairs (Freedom Fighters Division) urgently so that the proposal may be processed further. Yours faithfully, (Abdul Rashid) Deputy Secretary to the Govt. of India” 16. The Central Government after examining the representations received from various quarters decided to extend the SSSP Scheme, 1980 to the participants of Goa Liberation Movement. 17. The SSSP Scheme has been extended by relaxing the conditions contained therein to the participants of Goa Liberation Movement, Phase-II (1954-55) by Government Order, dated 17.2.2003. Paragraph 1 of the scheme is as follows: “1. I am directed to refer to this Ministry’s letter of even number, dated 16th/19th August 2002 on the above subject and to inform you that it has now been decided to grant Central Pension to the participants of 2nd Phase of Goa Liberation movement (1954-55) who have been granted freedom fighters pension by the State Government by 1st August 2002, by relaxing the eligibility criteria under the Swatantrata Sainik Samman Pension Scheme, 1980.” 18. The Scheme, dated 17.2.2003 clearly provided that the Central Pension is to be granted to the participants of the second phase of Goa Liberation Movement who have been granted freedom fighter Pension by the State Government by 1.8.2002. Whether the condition of cut-off date of 1.8.2002 as fixed in the Scheme has any rationale or the said date is arbitrary and despite not fulfilling the such condition, the Respondent is entitled for grant of Pension are the main questions to be answered. Current Writ Cases / April 01 – 15/2021

Part 7 Government of India v. Sitakant S. Dubhashi 809 (SC) (Ashok Bhushan, J.) 19. We may notice that before the High Court the Appellant had not filed any reply nor gave any justification to restrict the entitlement of Pension of freedom fighters, who were in receipt of State Pension as on 1.8.2002. The Appellant having not filed any reply, the High Court held that so far as the averments and prayers of the Writ Petitions are concerned, there being no specific denial nor even reply filed by the Respondent, therefore, contentions and ground raised by the petitioner need to be accepted. 20. When this case was being heard by this Bench, a query was put to the Counsel for the Appellant as to what is the rationale for fixing cut-off date 1.8.2002. By Order, dated 19.11.2019, parties were permitted to file Additional Affidavits within two weeks and it was thereafter the Appellant has filed Additional Affidavit on 3.12.2019. 21. Learned Counsel for the Appellant has brought on record the notes of the meeting, dated 2.8.2002 chaired by Deputy Prime Minister where cut-off, date 1.8.2002 was fixed. Note contains the details of list of freedom fighters received from different states with regard to freedom fighters who took part in second phase of Goa Liberation Movement. The Government of Maharashtra had enclosed a list of 1716 freedom fighters, the Government of Rajasthan had sanctioned pension to 24 persons. It has been noticed that total number of freedom fighters who may be eligible from State of Maharashtra, Rajasthan, Madhya Pradesh, Uttar Pradesh, Goa and Haryana could be approximately 3,500. It was noticed that the scheme cannot be kept open ended and the date fixed to consider only those freedom fighters eligible for relaxation under SSSP Scheme who had taken part in second phase of Goa Liberation Movement (1954-55) and who had already been sanctioned the freedom fighters Pension by the concerned State Government before a fixed date such as 1.8.2002. It is useful to refer to paragraphs 3, 4, & 5 of the Note: “3. Hon’ble Dy.PM expressed the view that a large number of senior leaders like Prof. Madhu Dhandavate, Shri Ram Naik, Shri Sharad Pawar had pleaded the case of freedom fighters of Phase II of Goa Liberation Movement and the matter was pending for more than two years now. There was merit in granting them the benefits of the SSS Pension Scheme in relaxation of the eligibility criteria on similar grounds on which the relaxation was given to freedom fighters of Dadra and Nagar Haveli. While appreciating our apprehension that if the scheme was kept open ended, we may be flooded with more and more applications, the Dy.PM was of the view that we may fix a date and consider only those freedom fighters eligible for the relaxation under the SSS Pension Scheme who had taken part in Phase II of the Goa Liberation Movement in 1954-55 and who had already been sanctioned the freedom fighters pension by the concerned State Governments before a fixed dated such as 1.8.2002. 4. When the delegation led by Prof. Dhandavate called on the Dy.PM and handed over the representation as at FR, Dy.PM asked them about how many freedom fighters from which States would be eligible for the Pension in case relaxation under the Scheme were provided. It was pointed out by the delegates that there would be approximately 3500 freedom fighters who may become Current Writ Cases / April 01 – 15/2021

810 CURRENT WRIT CASES (SC) 2021 (1) CWC eligible from the States of Maharashtra, Haryana, Rajasthan, Madhya Pradesh, Uttar Pradesh and Goa. The figure excluded the freedom fighters from Karnataka (2225) who had been sanctioned pension by the State Government but whose pension was subsequently cancelled by the Government of Karnataka in 1995. 5. After discussions, Dy.PM desired that we may take action as under: (i) Provide relaxation under the SSS Pension Scheme, 1980 to the freedom fighters of Goa Liberation Movement, Phase II (1954-55) who had already been sanctioned Pension by the State Governments of Maharashtra, Rajasthan, Haryana, Madhya Pradesh, Uttar Pradesh and Goa by 1.8.2002. (ii) We may write to the State Governments concerned to send us a list of such freedom fighters, immediately, However, such lists should be confined to cases where the freedom fighters’ Pension had been actually sanctioned by the State Government by 1.8.2002. (iii) The approximate figure of the freedom fighters eligible for this relaxation is 3500. Eligibility criteria for the grant of SSS Pension will be the grant of freedom fighters’ pension by the State Government by 1.8.2002 for his having taken part in the Goa Liberation Movement during the years 1954-55.” 22. Subsequently, the cabinet approved the scheme and scheme, dated 17.2.2003 was issued by the Government of India incorporating the cut-off date to 1.8.2002. 23. From the material which has been brought on record, it does appear that Government of India deliberated on the issue of cut-off date and the cut- off date was consciously fixed for extending the benefit of SSSP scheme to participants of Goa Liberation Movement, Phase-II. The eligibility under the SSSP Scheme, 1980, is entirely different from the eligibility of the State pension under the Goa Rules. Goa was liberated in 1961. State has framed the rules initially in 1973 and thereafter in 1988. Freedom Fighters were sanctioned Pensions in aforesaid Goa Rules at least after 1973. The question of extension of SSSP scheme to the participants of Goa Liberation, Phase-II was being considered by the Central Government from the year 2000 and ultimately, it was extended by Scheme, dated 17.2.2003. Already, more than forty years have been passed for Goa Liberation and more than 30 years have been passed for start of sanction of Pension by the State of Goa. SSSP Scheme, 1980, had been extended to Goa Liberation Movement, Phase-II by relaxing the conditions which were there for grant of SSS Pension Scheme, 1980. When a benefit is granted in relaxation of Scheme, it is open for the Government to put conditions for eligibility. 24. In view of the above, we are of the considered opinion that there is a rationale for extending the Scheme with a cut-off date. The submission of learned Counsel for Respondent No.1 is that there was no nexus with the object sought to be achieved in fixation of cut-off date i.e. 1.8.2002. Learned Counsel for the Respondent No.1 submits that when the object of SSS Pension Scheme is to grant the benefit of Pension to all Freedom Fighters, who participated in the Goa Liberation Movement, there is no intelligible Current Writ Cases / April 01 – 15/2021

Part 7 Government of India v. Sitakant S. Dubhashi 811 (SC) (Ashok Bhushan, J.) differentia between Freedom Fighters, who were granted State Pension by 1.8.2002 and those, who were granted Pension subsequent to 1.8.2002. Elaborating the argument, it is further submitted that in any view of the matter in the Cut-off date, there is no nexus with the object sought to be achieved. It is submitted that due to there being no intelligible differentia and there being no nexus with the object sought to be achieved, the cut-off, date 1.8.2002 was clearly arbitrary and liable to be struck down. 25. We have already noticed that the SSSP Scheme, 1980 provided for eligibilities for Freedom Fighters to make an application under the SSSP Scheme, 1980. Freedom Fighters of the Goa were also included and those who fulfill the conditions therein were entitled to grant of the Pension. In the present case, we are concerned with the SSSP Scheme, 1980. The object of the Scheme was to sanction pension under the Scheme, 1980, who fulfill the eligibilities as per the Scheme. The State pension for which Scheme and Rules have been formulated by different States including the State of Goa were on different eligibilities and the mere fact that a person is eligible or entitled to a State Pension does not ipso facto makes him eligible for the SSSP Scheme, 1980. The object of the SSSP Scheme, 1980 was to grant the Freedom Fighters Central Pension to those, who fulfill the eligibility which object was clearly fulfilled in including the Goa Liberation Movement also under the Scheme. As noted above, representations were received from various quarters to extend the SSSP Scheme, 1980 to participants of Goa Liberation Movement particularly, those, who participated in the Second phase of the Movement (1954-55). The Central Government decided to relax the conditions of eligibility under SSSP Scheme, 1980 by Scheme, dated 17.2.2003 and while relaxing the Scheme cut-off, date 1.8.2002 was fixed for making eligible the participants of Goa Liberation Movement. We have already noticed the rationale for fixing the cut-off date, which was fixed after due deliberation and consideration of relevant facts. 26. The submission of learned Counsel for the Respondent No.1 is that there was no nexus with the object sought to be achieved by fixing the cut- off, date 1.8.2002. As noticed above, the object of SSSP Scheme, 1980 was to grant Central Pension to those who were eligible under the said Scheme The Freedom Fighters of the Goa Liberation Movement were already included in the Scheme, 1980, who were eligible as per the said Scheme. Thus, with regard to Freedom Fighters of Goa Liberation Movement, the Scheme, 1980 covered them and the object was to grant only those Freedom Fighters of Goa Liberation Movement, who fulfilled the eligibility of SSSP Scheme, 1980. When Scheme was relaxed and extended to participants of the Goa Liberation Movement Second Phase, relaxation was granted in the eligibility as provided in the SSSP Scheme, 1980 with the condition that those who are in receipt of State pension by 1.8.2002 should be extended the benefit of relaxation. The Scheme was not an open-ended Scheme and relaxation was granted to a particular category of persons, who were in Current Writ Cases / April 01 – 15/2021

812 CURRENT WRIT CASES (SC) 2021 (1) CWC receipt of the State Pension by 1.8.2002. The relaxation granted by Order, dated 17.2.2003 cannot be said to be the object of the Central Government. The object under SSSP Scheme, 1980 was always and still is to grant Freedom Fighters pension to those who fulfill the eligibility of SSSP Scheme, 1980. The submission of the learned Counsel for the Respondent No.1 that object of SSSP Scheme, 1980 was to grant Central Pension to all those, who are in receipt of the State Pension cannot be accepted. By relaxing, the SSSP Scheme, 1980 for a limited category, the object of the main Scheme shall not be lost nor those who are not covered by relaxed conditions can claim right to grant of SSSP Scheme, 1980. We, thus, are of the view that the Scheme, dated 17.2.2003 has intelligible differentia and also nexus with the object. When relaxation is granted to a limited category, the others, who are not covered by the Scheme cannot claim any violation of right of equality. Right of equality can be claimed only by those who fulfill the eligibilities under the SSSP Scheme, 1980. 27. The submission which has further been pressed by the Counsel for Respondent No.1 is that when ultimately the state has accepted the Respondent No.1 was entitled for State Pension, although, in the year 2008, there is no justification for denying him the benefit. It is submitted that Respondent No.1 had applied for grant of State Pension much before 1.8.2002 and if the State had wrongly rejected it earlier, the claim of the Respondent No.1 cannot be prejudiced. 28. We have carefully examined and looked into the materials before us as well as the Original Records. In the subsequent grant of Pension to the Respondent No.1 in the year 2008, there is no reference or claim that earlier rejection of claim of Respondent No.1 was unjustified or was wrong. The scheme was reopened in the year 2003 by the State of Goa and in response to the reopening of the scheme, applications were received and after scrutinizing the claim of Respondent No.1 sanctioned w.e.f. 1.12.2007. The Sanction of the Scheme granted to the Respondent from 1.12.2007 cannot be read to mean that he was sanctioned from the date when his earlier application was rejected or from the date, he made the application. 29. The High Court has referred to and relied on the Judgment of this Court in Mukund Lal Bhandari and others v. Union of India and others, 1993 Supp. (3) SCC 2. In the above case, one of the grounds for rejecting the Application for grant of SSS Pension was that the Petitioner had made an application after the date for making the application as specified in the scheme expired. This Court held that the date prescribed inviting the claim was more of the matter of administrative convenience than as a rigid time limit. In Paragraph 7 of the Judgment, following has been laid down by this Court: “7. As regards the contention that the Petitioners had filed their applications after the date prescribed in that behalf, we are afraid that the Government stand is not justifiable. It is common knowledge that those, who participated in the freedom Current Writ Cases / April 01 – 15/2021