J.S.Yadav vs State Of U.P & Anr

J.S. Yadav ...Appellant

Versus

State of U.P. & Anr. ...Respondents

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1. Leave granted.

2. This appeal is focused animadverting upon the judgment and

order dated 21.4.2009 passed by the High Court of Judicature at

Allahabad in Civil Misc. Writ Petition No. 27315 of 2008, by which

the High Court dismissed the writ petition filed by the appellant,

challenging the Notification dated 28.5.2008, by which on the date of

reconstitution of the U.P. State Human Rights Commission

(hereinafter referred to as `Commission'), the appellant was declared

to have ceased to hold the office as a Member of the said

Commission.

3. Compendiously and concisely, the relevant facts necessary and

germane to the disposal of this appeal run as under:

(A) Appellant entered the U.P. Judicial Services as Munsiff

in the year 1972 and was promoted to the post of Additional District

Judge in the year 1985 and further promoted to the post of District

Judge w.e.f. 14.1.2003.

(B) The appellant while working as a Principal Secretary

and Legal Remembrancer, Government of U.P., was appointed as a

Member of the Commission on 29.6.2006 for a period of five years

i.e. till 30.6.2011. The appellant joined on the said post on 1.7.2006.

(C) Sections 21, 23, 25 and 26 of The Protection of Human

Rights Act, 1993 (hereinafter called `the Act 1993'), stood amended

vide The Protection of Human Rights (Amendment) Act, 2006

(hereinafter referred to `Amendment Act 2006'). The said

amendment came into force on 23.11.2006.

(D) After completion of the tenure by the then Chairperson

of the Commission and other Members in October 2007, the

appellant remained the lone working Member of the Commission.

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The State of U.P. issued Notification dated 28.5.2008 to the effect

that appellant ceased to hold the office as a Member of the

Commission.

(E) The appellant challenged the said Notification dated

28.5.2008 by filing Writ Petition No. 27315 of 2008, mainly on the

grounds that he had been appointed for a tenure of five years and that

period could not be curtailed. The amendment Act 2006 could not

take away the accrued rights of the appellant as he had been

appointed prior to the said amendment.

(F) The appellant did not implead anyone except the State of

U.P. and its Principal Home Secretary as respondents in the said writ

petition. However, the vacancies on the post of the Chairperson as

well as of the Members of the Commission were filled up on

6.6.2008 and, in view thereof, no interim order could be passed by

the High Court.

(G) The High Court dismissed the writ petition vide

impugned judgment and order dated 21.4.2009. Hence, this appeal.

4. Shri V. Shekhar, learned senior counsel with Ms. Shilpa

Singh, appearing for the appellant, has submitted that as the appellant

was holding the tenure post for a period of five years, he was entitled

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to continue till 30.6.2011; the Amendment Act 2006 could not be

applied retrospectively and it could not curtail the tenure of the

persons who had been appointed and continuing as a

Chairperson/Member of the Commission prior to the commencement

of the amended provisions in force. Appointments subsequent to

22.11.2006, could be made as per the provisions of the Amendment

Act 2006. Even otherwise, the appellant fulfilled the eligibility of

having seven years experience as a District Judge required under the

Amendment Act 2006, in view of the fact that the U.P. Higher

Judicial Service Rules, 1975 (hereinafter referred to as `the Rules

1975'), clearly provided that there would be a single cadre

comprising the posts of District and Sessions Judges and Additional

District and Sessions Judges. More so, Article 236(a) of the

Constitution of India clearly stipulates that District Judge includes

the Additional District Judge and Assistant District Judge. Thus, the

appellant was fully eligible/qualified to be appointed afresh as a

member of the Commission even as per the Amendment Act 2006.

The appellant did not incur any disability during the period of

holding the post as a Member of the Commission, thus, could not be

removed from the service, except in the manner set out under Section

23 of the Act 1993. More so, it was not a case where the

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Commission itself stood dissolved/disbanded as a whole and new

Commission has been constituted under the amended provisions of

law. Thus, the impugned judgment and order is liable to be set aside.

The appeal deserves to be allowed.

5. Per contra, Shri Pramod Swarup, learned senior counsel

appearing on behalf of the respondents, has opposed the appeal

vehemently contending that High Court could not have entertained

the writ petition on merit as no relief could be granted to the

appellant for the reason that fresh appointments on the posts of

Member of the Commission had been made on 6.6.2008 itself.

During the pendency of the writ petition, the appellant did not amend

his petition impleading the newly appointed member(s), thus,

petition was liable to be dismissed only on the ground of non-joinder

of necessary parties. Even this Court cannot grant pecuniary benefits

to the appellant for the reason that the public exchequer of the State

of U.P. cannot be fastened with liability of the payment of salary to

two persons on one post. The appellant suffered the disability by

virtue of operation of the amended law and ceased to be competent to

hold the post in view of the Amendment Act 2006. Thus, he has

rightly been declared to have ceased to hold the post as a Member of

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the Commission. The Legislature is competent to alter the service

conditions of an employee unilaterally, and that too, with a

retrospective effect. The appellant has submitted before the High

Court that he did not want any relief so as to dislodge the newly

appointed Member(s) of the Commission and was seeking only a

declaration that he had unlawfully been discontinued, so as to avoid

to further exercise the power so vested in the State Government.

Thus, the matter remained purely academic before the High Court.

Peculiar facts of the case do not warrant deciding the appeal on

merit. Even otherwise, the appeal lacks merit and is liable to be

dismissed.

6. We have considered the rival submissions made by learned

counsel for the parties and perused the records.

7. Relevant provisions of the Act 1993 and provisions inserted by

Amendment Act 2006 read as under:

UNDER ACT NO. 1 OF 1994 Under the Amendment Act 2006

(AS IT STOOD ON THE DATE (w.e.f. 23.11.2006)

OF APPOINTMENT OF THE

APPELLANT)

SECTION 21:

(2) The State Commission shall (2) The State Commission shall,

consist of with effect from such date as the

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State Government may by

Notification specify, consist of:-

(a) ................... (a) ..............................

(b) one member who is, or has (b) one member who is, or has

been, a Judge of a High Court. been a Judge of a High Court or

(c) one member who is, or has District Judge in the State with a

been, a district Judge in that minimum of seven years

State. experience as District Judge;

SECTION 23:

23. Removal of a Member of 23. [Resignation and Removal of

the State Commission - (1) Chairperson or a Member of the

Subject to the provisions of Sub- State Commission]

section (2), the Chairperson or, [(1) The Chairperson or a Member

any other member of the State of a State Commission may, by

Commission shall only be notice in writing under his hand

removed from his office by order addressed to the Governor, resign

of the President on the ground of his office.

proved mis-behaviour or (1A) Subject to the provisions of

incapacity after the Supreme Sub-section (2), the Chairperson

Court, on a reference being or, any other member of the State

made to it by the President, has, Commission shall only be

on inquiry held in accordance removed from his office by order

with the procedure prescribed in of the President on the ground of

that behalf by the Supreme proved mis-behaviour or

Court, reported that the incapacity after the Supreme

Chairperson or such other Court, on a reference being made

Member, as the case may be to it by the President, has, on

ought on any such ground to be inquiry held in accordance with

removed. the procedure prescribed in that

behalf by the Supreme Court,

reported that the Chairperson or

such other Member, as the case

may be ought on any such ground

to be removed.

........................ ............................

SECTION 26:

26. Terms and conditions of 26. [Terms and conditions of

service of Members of the State service of Chairperson and

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Commission - The salaries and Members of the State

allowances payable to, and other Commission-

terms and conditions of service The salaries and allowances

of, the Members shall be such as payable to, and other terms and

may be prescribed by the State conditions of service of, the

Government. Chairperson and Members shall be

such as may be prescribed by the

State Government.

Provided that neither the salary Provided that neither the salary

and allowances nor the other and allowances nor the other

terms and conditions of service terms and conditions of service

of a Member shall be varied to of the Chairperson or a

his disadvantage after his Members shall be varied to his

appointment. disadvantage after his

appointment.

(Emphasis added)

8. The other legal provisions which may be relevant for

consideration of the Court are as under:

(i) Article 236(a) of the Constitution of India reads as under:

"(a) the expression "district judge" includes judge of a

city civil court, additional district judge, joint district

judge, assistant district judge, chief judge of a small

cause court, chief presidency magistrate, additional

chief presidency magistrate, sessions judge, additional

sessions judge and assistant sessions judge".

(ii) Section 3(17) of the General Clauses Act, 1897 (hereinafter

referred to as `the Act 1897'), provides that "District Judge" means:

"(17) "District Judge" shall mean the Judge of a

principal Civil Court of original jurisdiction, but

shall not include a High Court in the exercise of its

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ordinary or extraordinary original civil

jurisdiction."

Section 6: Effect of repeal- Where this Act or any Central

Act or Regulation made after the commencement of this Act, repeals

any enactment hitherto made or hereafter to be made, then, unless a

different intention appears, the repeal shall not -

(a) ...........................

(b) affect the previous operation of any enactment

so repealed or anything duly done or suffered

thereunder; or

(c) affect any right, privilege, obligation or

liability acquired, accrued or incurred under

any enactment so repealed; or

(d) .......................

(e) .......................

(iii) Rule 4 of the Rules, 1975 reads:

Strength of the Service: (1) The service shall consist of a

single cadre comprising the posts of -

(a) District and Sessions Judges, and

(b) Additional District and Sessions Judges. (Emphasis added)

9. Against the aforesaid backdrops and in view of the aforesaid

statutory provisions, it has been canvassed on behalf of the appellant

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that as the experience of Additional District Judge can also be taken

into consideration as that of a District Judge, the appellant possessed

the eligibility even under the amended provisions and thus, was not

liable to be dislodged

The High Court dealt with the issue elaborately and came to

the conclusion that ordinary and natural meaning is not to be

controlled by supposed intention of the Legislature. A court cannot

stretch the language of a statutory provision to bring it in accord with

the supposed legislative intent underlying it, unless the words are

susceptible of carrying out that intention. Thus, considering the

object and purpose of the amendment, it cannot be held that

experience of the appellant as Additional District Judge could also be

taken into consideration as that of a District Judge. Much reliance

has been placed by Shri Shekhar, learned senior counsel for the

appellant on the language of Rule 4 of the Rules 1975 that there is a

single cadre comprising the posts of District and Sessions Judges and

Additional District and Sessions Judges. Thus, there is no basic

difference between the said two posts.

10. The aforesaid submission seems to be very attractive but has

no substance for the reason that a cadre generally denotes a strength

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of a service or a part of service sanctioned as a separate unit. It also

includes sanctioned strength with reference to grades in a particular

service. Cadre may also include temporary, supernumerary and

shadow posts created in different grades. The expression "cadre",

"posts" and "service" cannot be equated with each other. (See:

Union of India v. Pushpa Rani & Ors., (2008) 9 SCC 242; and

State of Karnataka & Ors. v. K. Govindappa & Anr., AIR 2009

SC 618). There is no prohibition in law to have two or more separate

grades in the same cadre based on an intelligent differential.

Admittedly, the post of District Judge and Additional District Judge

in the State of U.P. is neither inter-changeable nor inter-transferable.

The aforesaid Rules merely provide for an integrated cadre for the

aforesaid posts. Thus, the submission is liable to be rejected being

preposterous.

11. Same remains the position so far as the provisions of Article

236(a) of the Constitution of India are concerned. The said Article

relates to the procedure of appointment on the post of the District

Judge and other Civil Judicial posts inferior to the post of District

Judge. The definition in Article 236 covers the higher section of the

State Judicial Service both in the civil and criminal sides. (See: All

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India Judges' Association v. Union of India & Ors., AIR 1992 SC

165).

12. In such a fact-situation, we do not see any cogent reason to

take a view contrary to the same for the reason that in case the

Legislature in its wisdom has prescribed a minimum experience of

seven years as District Judge knowing it fully well the existing

statutory and constitutional provisions, it does not require to be

interpreted ignoring the legislative intent. We cannot proceed with an

assumption that Legislature had committed any mistake enacting the

said provision. Clear statutory provision in such a case is required to

be literally construed by considering the legislative policy. Thus, no

fault can be found with the impugned judgment and order of the

High Court on this count.

13. The question does arise as to whether the State could issue the

Notification making a declaration that the appellant ceased to be the

member of the Commission and whether the said Notification could

take away the accrued rights of the appellant?

14. The appellant had joined as a member of the Commission vide

order dated 29.6.2006 under the Act 1993. Section 26 of the Act

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1993 specifically provided that neither the salary and allowances nor

other terms and conditions of service of a member shall be varied to

his dis-advantage after his appointment. The submission so made on

behalf of the appellant in this regard has not been considered by the

High Court taking into consideration the provisions of Section 26 at

all. As the appellant was fully eligible and competent to be

appointed under the Act 1993 and he had duly been appointed and

worked for about 2 years including the period after the

commencement of the Amendment Act 2006, the declaration that he

ceased to hold the post as a Member of the Commission, is in

flagrant violation of the statutory provisions contained in Section 26

of the Act 1993 itself.

15. Needless to say that "the expression `terms of service' clearly

includes tenure of service". (Vide: Dr. D.C. Saxena v. State of

Haryana & Ors., AIR 1987 SC 1463).

16. The view taken by the High Court in this respect is not in

consonance with the statutory provisions. The amendment would

apply prospectively, particularly in view of the fact that the

Amendment Act 2006 does not expressly or by necessary implication

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suggest that such a drastic step is permissible giving retrospective

effect to the Amendment Act 2006.

17. An employee appointed for a fixed period under the Statute is

entitled to continue till the expiry of the tenure and in such a case

there can be no occasion to pass the order of superannuation for the

reason that the tenure comes to an end automatically by afflux of

time. (Vide: Dr. L.P. Agarwal v. Union of India & Ors., AIR 1992

SC 1872; and State of U.P. & Anr. v. Dr. S.K. Sinha & Ors., AIR

1995 SC 768).

18. In P. Venugopal v. Union of India, (2008) 5 SCC 1, this

Court considered the case wherein the Director of All India Institute

of Medical Sciences, New Delhi, having been duly appointed for a

period of five years had been removed prior to completion of the said

period. The court observed as under:

"Service conditions make the post of Director a tenure

post and as such the question of superannuating or

prematurely retiring the incumbent of the said post

does not arise at all..... The appointment is for a

tenure to which the principle of superannuation does

not apply. `Tenure' means a term during which the

office is held. It is a condition of holding the office.

Once a person is appointed to a tenure post, his

appointment to the said post begins when he joins and

when it comes to an end on the completion of tenure

unless curtailed on justifiable grounds. Such a person

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does not superannuate. He only comes out of the

office on completion of his tenure."

(Emphasis added)

19. Justifiable grounds, as referred to hereinabove by this Court

in P. Venugopal (supra), means the grounds of incurring any

disqualification while holding the post i.e. the grounds incorporated

in Section 23 of the Act 1993. If we give the dictionary meanings to

the said expression, it means: "done on adequate reasons sufficiently

supported by credible evidence, when weighed by unprejudiced

mind, guided by common sense and by correct rules of law. The

showing in court that one had sufficient reason for doing that which

he is called to answer; the ground for such a plea. Lexically, the

sense is clear. An act is "justified by law" if it is warranted, validated

and made blameless by law". (Vide: Raj Kapoor v. Laxman, AIR

1980 SC 605).

20. "The word 'vested' is defined in Black's Law Dictionary (6th

Edition) at page 1563, as vested; fixed; accrued; settled; absolute;

complete. Having the character or given the rights of absolute

ownership; not contingent; not subject to be defeated by a condition

precedent.' Rights are 'vested' when right to enjoyment, present or

prospective, has become property of some particular person or

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persons as present interest; mere expectancy of future benefits, or

contingent interest in property founded on anticipated continuance of

existing laws, does not constitute vested rights. In Webster's

Comprehensive Dictionary (International Edition) at page 1397,

'vested' is defined as (law held by a tenure subject to no contingency;

complete; established by law as a permanent right; vested interest."

(See: Mosammat Bibi Sayeeda & Ors. etc. v. State of Bihar & Ors. etc.,

AIR 1996 SC 1936).

21. The word "vest" is normally used where an immediate fixed

right in present or future enjoyment in respect of a property is

created. With the long usage the said word "vest" has also acquired a

meaning as "an absolute or indefeasible right". It had a "legitimate"

or "settled expectation" to obtain right to enjoy the property etc.

Such "settled expectation" can be rendered impossible of fulfilment

due to change in law by the Legislature. Besides this, such a "settled

expectation" or the so-called "vested right" cannot be countenanced

against public interest and convenience which are sought to be

served by amendment of the law. (Vide: Howrah Municipal Corpn.

& Ors. v. Ganges Rope Co. Ltd. & Ors., (2004) 1 SCC 663).

22. Thus, "vested right" is a right independent of any contingency.

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Such a right can arise from a contract, statute or by operation of law.

A vested right can be taken away only if the law specifically or by

necessary implication provide for such a course.

23. The appellant had been appointed under the provisions of the

Act 1993 which did not require seven years' experience as a District

Judge. In the instant case, the Amendment Act 2006 came into force

on 23.11.2006. The State of U.P. did not take any step for

discontinuation of the appellant upto May 2008 on the ground that he

did not possess the eligibility as per the Amendment Act 2006.

24. The Legislature is competent to unilaterally alter the service

conditions of the employee and that can be done with retrospective

effect also, but the intention of the Legislature to apply the amended

provisions with retrospective effect must be evident from the

Amendment Act itself expressly or by necessary implication. The

aforesaid power of the Legislature is qualified further that such a

unilateral alteration of service conditions should be in conformity

with legal and constitutional provisions. (Vide: Roshan Lal Tandon

v. Union of India & Ors., AIR 1967 SC 1889; State of Mysore v.

Krishna Murthy & Ors., AIR 1973 SC 1146; Raj Kumar v. Union

of India & Ors., AIR 1975 SC 1116; Ex-Capt. K.C. Arora & Anr.

17

v. State of Haryana & Ors., (1984) 3 SCC 281; and State of

Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors., AIR 1984

SC 161).

25. In Union of India & Ors. V. Tushar Ranjan Mohanty &

Ors., (1994) 5 SCC 450, this Court declared the amendment with

retrospective operation as ultra vires as it takes away the vested

rights of the petitioners therein and thus, was unreasonable, arbitrary

and violative of Articles 14 and 16 of the Constitution. While

deciding the said case, this Court placed very heavy reliance on the

judgment in P.D. Aggarwal & Ors. v. State of U.P. & Ors., AIR

1987 SC 1676, wherein this Court has held as under:

"...the Government has power to make retrospective

amendments to the Rules but if the Rules purport to

take away the vested rights and are arbitrary and not

reasonable then such retrospective amendments are

subject to judicial scrutiny if they have infringed

Articles 14 and 16 of the Constitution."

26. In the instant case, the Amendment Act 2006 is not under

challenge. However, the issue agitated by the appellant has been that

the Legislature never intended to apply the amended provisions with

retrospective effect and therefore, the appellant could not be

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discontinued from the post. His rights stood protected by the

provisions of Section 6 of the Act 1897.

The issue of applicability of the said provision has been

considered by this Court in State of Punjab v. Mohar Singh Pratap

Singh, AIR 1955 SC 84; M.S. Shivananda v. The Karnataka State

Road Transport Corpn. & Ors., AIR 1980 SC 77; Commissioner

of Income Tax U.P. v. M/s. Shah Sadiq & Sons, AIR 1987 SC

1217; and Vishwant Kumar v. Madan Lal Sharma & Anr., AIR

2004 SC 1887, wherein it has been held that the rights accrued under

the Act/Ordinance which stood repealed would continue to exist

unless it has specifically or by necessary implication been taken

away by the repealing Act.

27. This Court in State of Punjab & Ors. v. Bhajan Kaur &

Ors., AIR 2008 SC 2276, while dealing with the provisions of

Section 6 of the Act 1897 held as under:

"A statute is presumed to be prospective unless

held to be retrospective, either expressly or by

necessary implication. A substantive law is presumed

to be prospective. It is one of the facets of the rule of

law.....Where a right is created by an enactment, in the

absence of a clear provision in the statute, it is not to

be applied retrospectively."

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28. In Sangam Spinners v. Regional Provident Fund

Commissioner I, AIR 2008 SC 739, this court held as under:

"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 retrospective

operation. The absence of a saving clause in a new

enactment preserving the rights and liabilities under

the repealed law is neither material nor decisive of the

question. In terms of Section 6(c) of the General

Clauses Act 1897 unless a different intention appears

the repeal shall not affect any right, privilege or

liability acquired, accrued or incurred under the

enactment repealed."

29. A Constitution Bench of this Court in Chairman, Railway

Board & Ors. v. C.R.Rangadhamaiah & Ors., AIR 1997 SC 3828,

dealt with the case where the pension admissible under the Rules in

force at the time of retirement was reduced with retrospective effect.

This Court held such an action to be unreasonable and arbitrary being

violative of Articles 14 and 16 of the Constitution of India. The

Court observed as under:

"It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively...............

In many of these decisions the expressions "vested rights" or "accrued rights" have been

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used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution."

Thus, from the above, it is evident that accrued rights cannot be

taken away by repealing the statutory provisions arbitrarily. More so,

the repealing law must provide for taking away such rights, expressly

or by necessary implication.

30. There is no specific word in the Amendment Act 2006 to

suggest its retrospective applicability. Rather the positive provisions

of Section 1 suggests to the contrary as it reads:-

Short Title and Commencement-

(1)........................................

"(2 )It shall come into force on such date as the

Central Government may, by notification in the

Official Gazette, appoint".

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Undoubtedly, the amended provisions came into force on

23.11.2006 vide S.O. 2002 (E), dated 23.11.2006, published in the

Gazette of India, Extra Pt.II, Section 3(ii) dated 23.11.2006. In fact,

date 23.11.2006 is the pointer and put the matter beyond doubt.

31. Thus, in view of the above, we do not have any hesitation to

declare that the Notification dated 28.5.2008 is patently illegal.

32. No order can be passed behind the back of a person adversely

affecting him and such an order if passed, is liable to be ignored

being not binding on such a party as the same has been passed in

violation of the principles of natural justice. The principles

enshrined in the proviso to Order I Rule 9, of the Code of Civil

Procedure, 1908 provide that impleadment of a necessary party is

mandatory and in case of non-joinder of necessary party, the

plaintiff/petitioner may not be entitled for the relief sought by him.

The litigant has to ensure that the necessary party is before the Court,

be it a plaintiff or a defendant, otherwise the proceedings will have to

fail. In Service Jurisprudence if an unsuccessful candidate challenges

the selection process, he is bound to implead at least some of the

successful candidates in representative capacity. In case the services

of a person is terminated and another person is appointed at his place,

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in order to get relief, the person appointed at his place is the

necessary party for the reason that even if the plaintiff/petitioner

succeeds, it may not be possible for the Court to issue direction to

accommodate the petitioner without removing the person who filled

up the post manned by plaintiff/petitioner. (Vide: Prabodh Verma

& Ors. etc. etc. v. State of U.P. & Ors. etc., AIR 1985 SC 167;

Ishwar Singh & Ors. v. Kuldip Singh & Ors., 1995 (supp) 1 SCC

179; Tridip Kumar Dingal & Ors. v. State of West Bengal &

Ors., (2009) 1 SCC 768; State of Assam v Union of India & Ors.,

(2010) 10 SCC 408; and Public Service Commission, Uttaranchal

v. Mamta Bisht & Ors., AIR 2010 SC 2613).

More so, the public exchequer cannot be burdened with the

liability to pay the salary of two persons against one sanctioned post.

33. The appellant did not implead any person who had been

appointed in his place as a Member of the Commission. More so, he

made it clear before the High Court that his cause would be

vindicated if the Court made a declaration that he had illegally been

dislodged/restrained to continue as a Member of the Commission. In

view of the above, he cannot be entitled for any other relief except

the declaration in his favour which had been made hereinabove that

the impugned Notification dated 28.5.2008 is illegal.

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34. In view of above, the appeal is allowed to the extent as

explained hereinabove. However, in the peculiar facts and

circumstances of the case, the appellant is entitled for cost to the tune

of Rs. 1 lakh which the respondents must pay within a period of two

months from today.

.................................J.

(P. SATHASIVAM)

New Delhi, .................................J.

April 18, 2011 (Dr. B.S. CHAUHAN)

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