PUSHPENDRA SINGH BHATI,J. - (1.) Petitioner was appointed as Plant Protection Mukkadam w.e.f. 12/11/1963 in the respondent-department. Thereafter, he was appointed as LDC on 01/06/1966 and was regularized on the post of LDC from 14/09/1972. He was promoted as UDC on 01/04/1986. The petitioner attained the age of superannuation on 30/09/2003. He was served a notice on 24/02/2004 seeking explanation for his long time wilful absence from and in reply to which he submitted that due to death of his wife and disappearance of his son, he was under severe mental agony and therefore, was suffering from depression and was not even able to attend the duties. The respondents issued charge-sheet to the petitioner under Rule 16 of the Rajasthan Civil Services (CCA) Rules, 1958 (hereinafter referred to as 'the Rules of 1958') and commenced with the enquiry. The disciplinary authority held that the charges were proved in totality and therefore, the proceedings under Rule 16 of the Rules of 1958 were decided by ordering that his absence shall be treated as extra ordinary leave (without salary) and the proceedings were thus closed. Once the disciplinary proceedings had culminated into a final order on 17/05/2006, then it was a legal obligation upon the respondents to give him retiral benefits. However, the petitioner was informed vide letter dated 17/04/2007 by the respondents that the retiral benefits cannot be paid to him as his past services were forfeited vide order dated 02/02/1999. The petitioner has preferred this writ petition seeking retiral benefits.
(2.) The respondents filed a detailed reply and stated that though the petitioner had discharged his services but his past services were forfeited by order dated 02/02/1999 under Rule 86(1) of Rajasthan Service Rules, 1951 (hereinafter referred to as the 'Rules of 1951'). Once the petitioner has been punished for habitual absence by forfeiture of past services by invoking Rule 86 of the Rules of 1951, then there was no question of retiral benefits as the petitioner then had a valid service only from 02/02/1999 to the date of superannuation i.e. on 30/09/2003 and the same was also subject to order Annexure-4 dated 17/05/2006 whereby the absence prior to the retirement was treated to be without salary. A copy of another decision is also placed on record by the respondents which is dated 18/01/2002 whereby due to the wilful absenteeism of the petitioner, he has been tried under Rule 16 of the Rules of 1958 and on account of the absenteeism, the period of absence has been treated as without salary and was not to be counted for the purpose of retiral benefits. The respondents have also taken a preliminary objection that these orders are not under challenge and therefore, the main prayer of the writ petition cannot be allowed without quashing these orders.
(3.) Counsel for the petitioner Shri Satyapal Poshwal has drawn attention of the Curt to the judgment passed by this Court in the case of Suresh Chand Choudhary v. State of Rajasthan and ors (SB Civil Writ Petition No.3365/1999), decided on 04/01/2017 , the relevant portion of which is as follows:- "Learned counsel for the respondents Shri Kushal Singh thus made out a case that the prayer sought by the petitioner cannot be granted in the light of the aforementioned judgment and thus the merit list had acquired finality and no relief could be granted. Learned counsel for the petitioner Shri Himanshu Jain made an excellent effort to fortify his argument that the prayer clause cannot be used as a limitation for grant of relief and, for the same, learned counsel relied upon the judgment of B.C. Chaturvedi v. Union of India and Ors. Cited in (1995) 6 SCC 749. The relevant para is as follows:- "22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of long line of decision of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may However, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penality awarded shocks the judicial conscience. 23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh's case AIR (1963) SC 1909, that the High Courts too can exercise power of review, which inheres in every Court, of Plenary jurisdiction. I would say that power to do complete justice also inheres in every Court, not to speak of a Court of plenary jurisdiction like a High Court. Of course, this power is not as wide which this Court has under Article 142. That, however, is a different matter." Learned counsel for the petitioner also cited the case in Rajesh Kumar and Ors. v. State of Bihar and Ors. reported in (2013)4 SCC 690. The relevant portion of the judgment is as follows:- "12. We have in the above backdrop heard learned Counsel for the parties at some length who have taken us through the impugned orders and other material placed on record. Appearing for the Appellants, Mr. P.P. Rao, learned senior Counsel, argued that the High Court had committed an error in quashing the entire selection process even when the Petitioners had not made any prayer to that effect. Mr. Rao was at pains to argue that a relief which was not even prayed for by the writ Petitioners could not be granted by the Court whatever may have been the compulsion of equity, justice and good conscience. Reliance in support of that proposition was placed by him upon Bharat Amritlal Kothari v. Dosukhan (2010) 1 SCC 234 and State of Orissa and Anr. v. Mamata Mohanty (2011) 3 SCC 436. There is, in our view, no merit in that contention. The reasons are not far to seek. It is true that the writ Petitioners had not impleaded the selected candidates as party Respondents to the case. But it is wholly incorrect to say that the relief prayed for by the Petitioners could not be granted to them simply because there was no prayer for the same. The writ Petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the "Model Answer Key" which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the "Model Answer Key" was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the "Model Answer Key" to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in 'A' series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination in so far as the same pertained to 'A' series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key. 13. The decisions of this Court in Bharat Amritlal Kothari v. Dosukhan (2010) 1 SCC 234 and State of Orissa and Anr. v. Mamata Mohanty: (2011) 3 SCC 436 , relied upon by Mr. Rao are clearly distinguishable. The power of the Court to mould the relief, according to the demands of the situation, was never the subject matter of dispute in those cases. That power is well-recognised and is available to a writ Court to do complete justice between the parties. The first limb of the argument advanced by Mr. Rao fails and is accordingly rejected." Learned counsel for the petitioner also referred to the case of Om Prakash Gupta v. Ranbir B. Goyal reported in (2002)2 SCC 256. The relevant portion of the judgment is as follows:- "11. The ordinary rule of civil is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied:(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note as such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. The Motor and General Traders - [1975] 3 SCR 958 this Court held that a fact arising after the lis, coming to the notice of the Court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the Court cannot be blinked at. The Court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that Court can, so long as the litigation pends, take not of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy. (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautions, and (iv) the rules of fairness to both sides should be scrupulously obeyed. 12. Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on the notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6, Rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan and Co. v. R.M.N.N. Nagappa Chettiar - [1953] 4 SCR 789 this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleading the Court would not be entitled to modify or alter the relief. In Mahant Govind Rao v. Sita Ram Kesho and Ors. - (1898) 25 IndApp 195 (PC) , their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted." Learned counsel for the petitioner cited the case of Rajesh D. Darbar and Ors. v. Narasingrao Krishnaji Kulkarni and Ors. Reported in (2003) 7 SCC 219. The relevant paras of the same are as follows:- "4. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Alabama (1934) 294 U.S. 600 , illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events same where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad v. Keshwar Lal falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs - cannot deny rights - to make them justly relevant in the updated circumstances. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. This Court's judgment in P. Venkateswarlu v. The Motor and General Traders [1975]3 SCR 958 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of the litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of statute cannot be divested by this equitable doctrine (See V.P.R.V. Chokalingam Chetty v. Seethai Ache and Ors. 5. The law stated in Ramji Lal v. State of Punjab , is sound: "Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of the proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment (see Steward v. The North Metropolitan Tramways Company(1885) 16 QBD 178 and a fresh suit by him would be so barred by limitation." 6. These aspects were highlighted by this Court in Rameshwar and Ors. v. Jot Ram and Ors. [1976] 1 SCR 847 . The Courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principle cannot, however, stand on the way of the Court adjudicating the rights already vested by a statute. This well settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the above said maxims has been approved by this Court in Raj Kumar Dey and ors. v. Tarapada Dey and Ors. [1988] 1 SCR 118 , Gursharan Singh v. New Delhi Municipal Committees [1996] 1 SCR 1154 and Mohammed Gazi v. State of M.P. and Ors. [2000] 2 SCR 871 ." Learned counsel for the petitioner referred to the judgment of this Court passed in Mathura Lal Mundra v. State of Rajasthan reported in (2005) 5 RDD 1320 . The relevant portion of the judgment are as follows:- "11. Though the validity of the order dated 31.10.1996 is not under challenge in prayer clause of the writ petition, but a writ Court exercising powers under Article 226 read with Article 215 of the Constitution of India is having ample power to mould the relief in a petition for writ to impart substantial justice. As a Court of plenary jurisdiction the writ Court while exercising powers under Article 226 of the Constitution of India is free to adopt its own procedure and to follow that with view to get the ends of justice in circuit. The principles of pleadings are certainly applicable in writ jurisdiction, however, the same cannot be extended to the extent of making them as a hurdle in imparting substantial justice. If sufficient facts are available on record then a writ Court exercising its plenary jurisdiction and extra ordinary powers have sufficient authority to wash out an illegality though may not have challenged in specific words by the person aggrieved. A writ Court cannot close its eyes and permit an illegality to be perpetuated on the ground that a challenge has not been given to the same in specific terms, specially in the circumstances when the sufficient facts are available on record for adjudication or the question sought to be adjudicated is purely a legal one. 12. In the present writ petition the relief claimed by the petitioner is dependent to the examination and adjudication of validity of the order dated 31.10.1996. The challenge to this order is given purely on legal question and on basis of the facts admitted by the parties, therefore, the Court can very well examine validity of the order dated 31.10.1996 in the instant writ petition." Learned counsel for the petitioner referred a case of Dr. Anil Kumawat and Ors. v. Naveen Agarwal and Ors. 2012(4) WLC Rajasthan 31. The relevant para is as follows:- "40. Hon'ble the Apex Court in Kedar Nath Agrawal (Dead) And Another v. Dhanraji Devi (Dead) By LRs. And Another (supra), held that events happening after institution of a suit/proceeding, should be considered. It is the power and duty of the Court to consider changed circumstances. A Court of law may take into account subsequent events. Para 16 of the judgment is reproduced as under:- In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: the basis rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/ action. This, however, does not mean that events happening after institution of a suit/ proceeding, cannot be considered at all. It is the and of the Court to consider changed circumstances. A Court of law may take into account subsequent events inter alia following circumstances: (i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or (ii) it is necessary to take notice of subsequent events in order to shorten litigation; or (iii) it is necessary to do so in order to do complete justice between the parties." Learned counsel for the petitioner also relied upon the maxim of equity as explained in Wikipedia for the purpose of moulding of relief. The relevant para of the same is as follows:- "This maxim, also expressed as Aequitas sequitur legem, means more fully that "equity will not allow a remedy that is contrary to law." The Court of Chancery never claimed to override the Courts of common law. Story states "where a rule, either of the common or the statute law is direct, and governs the case with all its circumstances, or the particular point, a Court of equity is as much bound by it as a Court of law, and can as little justify a departure from it. "According to Edmund Henry Turner Snell, "it is only when there is some important circumstance disregarded by the common law rules that equity interferes." Cardozo wrote in his dissent in Graf v. Hope Building Corporation, 254 N. Y 1v at 9 (1930) , "Equity works as a supplement for law and does not supersede the prevailing law." Maitland says, "We ought not to think of common law and equity as of two rival systems." "Equity had come not to destroy the law, but to fulfil it, Every jot and every title of law was to be obeyed, but when all this had been done yet something might be needful, something that equity would require." The goal of law and equity was the same but due to historical reasons they chose a different path. Equity respected every word of law and every right at law but where the law was defective, in those cases, equity provides equitable right and remedies." Learned counsel for the petitioner Shri Himanshu Jain has definitely convinced this Court that moulding of relief was very much required in this case and this Court would be within its jurisdiction to mould the relief so as to do substantial justice in the case. This Court is of the view that as a Court of plenary jurisdiction, the writ Court while exercising powers under Article 226 of the Constitution of India is free to evolve its own procedure and to follow that view to get substantial justice. The powers envisaged under Articles 226 and Article 215 of the Constitution of India are sufficient for moulding any relief so as to impart substantial justice. Thus the impediment raised by the respondents regarding the relief clause is overruled and this Court proceeds to examine the case on its merits.";