Manisha Verma and ors. Vs. State of Uttarakhand and anr. - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]v.k. bist, j. i.a. no. 182 of 2010 (urgency application)1. heard learned counsel for the parties on the urgency application and perused the record.2. urgency application is allowed.wpsb no. 9 of 2010: 3. heard.4. admit the petition.5. learned addl. chief standing counsel for the state accepts notices on behalf of the state/respondent no. 1 and sri b.d. pandey, advocate has put in appearance on behalf of respondent no. 2. learned counsel appearing for the respondents pray for and are allowed four weeks time to file counter affidavit. list this petition on 22nd february, 2010 in the supplementary cause list.clma no. 115/2010 (interim relief application)6. also heard on the stay application.7. from perusal of the record it reveals that in the month of february, 2003 uttarakhand public services commission issued an advertisement for filling up 94 vacancies of upper division assistants for the secretariat, 10 vacancies of upper division assistants and 10 vacancies of lower division assistants for uttarakhand public service commission. pursuant to this advertisement, the petitioners applied for and appeared in the main examination in which they were declared successful. the petitioners were considered against the o.b.c. category and were selected against the o.b.c. category seats for the post of upper division assistants in the uttarakhand secretariat. thereafter, the petitioners joined their training and after completion of training they were posted in various departments under uttarakhand secretariat. the record further reveals that the services of the petitioners were confirmed w.e.f 28.10.2005/09.08.2005. thereafter, vide order dated 28.08.2009/30.09.2008 the petitioners were given promotion on the post of section officer. submission of the learned counsel for the petitioner is that without affording any opportunity of hearing to the petitioner all of a sudden vide letter dated 24.12.2009, the uttarakhand public services commission/respondent no. 2 purported to have reviewed its earlier recommendation dated 19.04.2004 and has sent a fresh recommendation to the state government, resulting into down grading the petitioner nos. 2 & 3 and throwing the petitioner no. 1 out of select list after a period of about more than five years. it is vehemently argued that as per their own criteria of selection when the petitioners were selected against the o.b.c. category, now it is not open for respondent no. 2 to review its own recommendation under the doctrine of approbation and reprobation as under the doctrine of approbation and reprobation, the authority is stopped from taking any such action against the interest of bonafide selected employees.8. the public service commission is known for its fairness, therefore, in case the commission is permitted to change the selection after a considerable period of more than five years, as has been done in the case in hand, it will adversely effect the whole process occupied in selection of the employees selected in pursuance of the aforesaid advertisement. even otherwise, the public services commission cannot cancel unilaterally the appointment of any person who has been selected six years back, joined the services and promoted to the higher post. this court is convinced with the arguments of the learned counsel for the petitioners that in case the commission is allowed to alter the selection it will put negative impact on the mind of people regarding functioning of the commission, further the commission cannot cancel appointment of an employee unilaterally after sending recommendation to the employer that too after a considerable period of more than five years.9. having heard learned counsel for the parties and after careful examination of the papers annexed with the record it is directed that till next date of listing, the reviewed recommendation dated 24.12.2009, issued by the public service commission, uttarakhand, reviewing its own earlier recommendation dated 19.04.2004, shall remain stayed.