BADRINATH v. GOVERNMENT OF TAMIL NADU AND ORS.

sec 537, this Court held that in the absence of statutory compulsion, the A principle of 'necessity' does not apply. This Court observed that :

''In the Regulations there was nothing to suggest that decision could not be taken by the other members of the Disciplinary Committee who were not disqualified." B In Election Commission ofIndia v. Dr. Subrahmanyan Swamy, [ 1996] 4 SCC 104, it was observed that in a multi-member Commission, when the Chief Election Commissioner is found to have likelihood of bias, his participation is not mandatory, and that the doctrine of necessity will not apply. The proper course for him was that he could call for a meeting and withdraw from the meeting leaving it to the other members to decide. In case their was a C difference then the doctrine of necessity would apply. We may state that there the matter was governed by statute. In case the Committee is constituted by an administrative order, the Chief Secretary could withdraw, leaving it to the remaining two to decide and in case of difference, he could ask the Government to substitute a third member in the Committee. The doctrine of necessity would not apply even if there was difference between the other two.

For the aforesaid reasons, we reject the plea of the respondents based on the doctrine of necessity.

We have already held that the very presence of Sri V. Karthikeyan in the Joint Screening Committee has vitiated the entire recommendations and this defect is not also cured because of the remedy of an appeal. The recommendation of the Committee dated 30.8.79, the decision of the State Government dated 22.5.80 accepting and sending the same to the Central Government, and the decision of the Central Government dated 7.8.80 on appeal are all liable to be quashed in view of the legal position referred to above.

This reasoning of ours is independent of any need to go into the other . allegations of mala tides alleged against respondents 3 and 4. This conclusion is also reached independent of our finding on points 2 and 3 quashing the recommendation and the orders of the State and Central Governments on G Wednesbury unreasonableness. Points 4 and 5 are decided accordingly in favour of the appellant.

Point 6:

The effect of our decision on point l is that the censure order dated H

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A 8.4.80 on the fourth disciplinary case must be held to be without jurisdiction ! and also illegal on merits. Under Points 2 and 3, the old adverse remarks and in particular all these adverse remarks prior to the promotion of the appellant on 1.11.72 to the selection grade have become weak and have lost their sting; the adverse remarks which have been expunged, though long after the impugned recommendation dated 30.8. 79, have to be treated as non-est and B the adverse remarks from 1973 upto the date of promotion of the appellant's immediate junior on 16.11.77, - in so far as they are based on the four disciplinary cases that have been dropped - must be treated as non-existent. Further, the remarks in his favour throughout his career, and the good work recorded in his service book and in addition the various other reports on c various aspects e.g. Labour Policy, Urban Development, Tenancy & Land Reforms, Modem history, Public Access to records, Preservation of historical records, Archives etc; including the one which was noticed by the Supreme Court in K. Chandru v. State of Tamil Nadu, AIR (I 986) SC 204, have to be given their due weight. Further, the appellant's case for promotion to super- time scale is to be judged afresh by applying the same standards which were applied to other officers promoted to that scale. The appellant in his writ petition has given specific instances of cases of other officers who have been promoted to super-time scale in spite adverse remarks of a comparatively graver nature having been recorded against the said officers. We do not propose to list them. They are already part of the record. All that we are saying is that if certain standards have been applied in the case of other officers, the appellant is entitled to be judged by the same yardsticks. We are making these remarks in the light of the long and unfortunate history of this case.

Learned senior counsel appearing for the respondents, however, contended that it is not the province of this Court to issue a mandamus to promote the appellant to the super-time scale nor to assess his grading. (See Union of India and Ors. v. Lt. Genl. Rajinder Singh Katyan and Anr., (2000) S SCALE 327. This Court, it is true, does not normally make any such assessment on its own nor does it ordinarily issue a mandamus to promote an officer to the super-time scale. This is the general principle. G l ~

We may, however, '">oint out that it is not as if there are no exceptions to this general principle. The occasions where the Court· issued a writ of ~ certiorari and quashed an order and had also issued a mandamus at the samt: time to the State or public authority could be very rare but we might emphasise H that the power of this Court to mould the relief in the interests of justice in

BADRINATHv.GOVT.OFTAMIL,NADU[M.JAGANNADHARAO,J.] 613 extraordinary cases cannot be doubted. In Comptroller and Auditor General A of India v. K.S. Jagannathan, (1986] 2 SCC 679 such a power on the part of this Court was accepted by a three Judge Bench. Madon, J. referred to the observations of Subba Rao, J. (as he then was) in Dwarkanath v. ITO, (1965] 3 SCR 536 wherein the learned Judge explained that our Constitution designedly used wide language in Article 226 to enable the Courts to 'reach justice wherever found necessarily' and 'to mould the reliefs to meet peculiar and B complicated requirements of this country'. Justice Madon also referred to Mayor ofRochester v. Regina, (1858) EB & E 1024; King v. Revising Barrister for the Borough ofHanley, (1912) 3 KB 518; Padfieldv. Minister ofAgriculture, Fisheries and Food, (1968) AC 997 and to a passage from Halsbury's Laws of England. 4th Ed. Vol. 1, p. 59. Finally Madon, J. observed: C "There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred D upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials ( or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case E a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itselfpass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion." We emphasise the words underlined in the above passage to the effect that the Court may in some rare situations itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. The same view was expressed by another three judge Bench in B. C. Chaturvedi v. Union of India, (1995] 6 SCC 749 even regarding disciplinary cases. Verma, J. (as he then was) observed (at p. 762, para 18) as follows : H

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A " ..... The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some· other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the consciences of 'the High Court/Tribunal, it would appropriately ;:..10uld the relief, either directing the discipli!1ary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof"

The underlined words reiterate the powers of this Court in rare and exceptional cases.

De Smith also states in his Administrative Law (5th Ed. para 6 P. 89) that normally, the proper form of mandamus will be one to hear and determine according to law, though by holding inadmissible the considerations on which the original decision was based, the Court may indirectly indicate the par~icular manner in which the discretion has to be exercised. R v. Manchester JJ., (1899) 1QB571 (576): R v. Flintshire CC Country License (Stage Plays) Committee, (1957) I QB 350; Padfield v. Minister of Agriculture, Fisheries and Food, (1968) AC 997 and R. v. Lord (City of) Licensing J.J. exp. Stewart, (1954) I WLR 1325. E In the light of the above precedents, we have considered whether this is a fit case where this Court should issue a mandamus or remit the matter back to the State Government. After.giving our anxious consideration to the facts of the case, we are of the view that having regard to our findings on Points 1 to 5 and to the continuous unfair treatment meted out to the appellant by the State of Tamil .Nadu. - even as accepted by the Central Government in its comments - this is a pre-eminently fit case requiring the issue of a manJamus. We are, therefore, constrained to exercise all the powers of this Court for rendering justice and to cut short further proceedings. The consideration of the appellant's case for the said promotion has been hanging fire and going up and down for the last twenty five years. Disgusted with the delays, the appellant has also taken voluntary retirement. In the light of our decision on Points I to 5, we declare the censure on the fourth case as void and without jurisdiction and in the alternative also as liable to be quashed under Wednesbury principles. The adverse remarks of by-gone years prior to 1972 have lost all their sting. The positive factors in the appellant's favour both recorded (at the compulsion of the Central Government) and others to which

BADRINATHv.GOVT.OFTAMILNADU[M.JAGANNADHARAO,J.] 615 we have referred to earlier as meriting consideration are, in our opinion, sufficient to entitle him for promotion to the super-time scale. The appellant's case is, in our view, no less inferior to the cases of the other officers who were conferred the similar benefit of super-time scale by the State of Tamil Nadu, details of which have been profusely given in the writ petition. For the aforesaid reasons, we quash the punishment of censure, the assessment made by the Joint Screening Committee, the orders passed by the State and Central Government refusing to grant him supertime scale and in rejecting the appeal of the appellant and we further direct as follows.

In the special and peculiar circumstances of the case, we direct the respondents to grant the appellant the benefit of the supertime scale from the date on which the appellant's junior Sri P. Kandaswamy was granted super time scale. The respondents are accordingly directed to pass an order in this behalf within eight weeks of the receipt of this order and to give him all · consequential benefits attendant thereto. The said benefits shall also be reflectedfri his pension and other retiral benefits. They shall be worked out and paid 1to him within the time aforementioned. D The Civil Appeal is allowed and disposed of in terms of the above directions. We also award costs of Rs. 10,000 in each of the two writ petitions to be paid by the State of Tamil Nadu.

R.A. Appeal allowed.