TaxTMI 
TaxTMI 
2014 (9) TMI 1174
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....ellant college, an aided college affiliated to Mahatma Gandhi University, through Ext. P-l dated 15-9-1993. The appointment is said to be in a short term leave vacancy, during the period from 15-9-1993 to 31-1-1994. Later, he was regularly appointed as Lecturer by Ext. P-2 order dated 9-6-1995. Soon thereafter, while the first respondent was under probation, Sree Sankaracharya University of Sanskrit, Kalady, ('the University' for brevity) appointed him as a Lecturer in Hindi through Ext. P-3 order dated 1-9-1995. The appointment of the first respondent in the said University is said to be in response to the application made by him before securing employment in the appellant college. 3. As a matter of better career prospects, the first respondent submitted Ext. P-4 application dated 20-9-1995 requesting the appellant Manager to grant leave without allowances for a period of two years with effect from 20-9-1995 so as to enable him to join duty in the University. Before he could get any response from the appellant, the first respondent, however, joined the University. As it turned out, the appellant, through Ext. P-5 dated 25-9-1995, declined to sanction the leave applied f....
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.... the University. Having considered the request as a special case, Government issued Ext. P-11 Order dated 17-3-1997 permitting those Lecturers, who had been working in Government/aided colleges before their appointment in the University, to rejoin duty in their parent colleges, if there are vacancies. 7. In the light of the above developments, the Registrar of the University sent Ext. P-10 letter dated 21-3-1997 to the first respondent, informing him that his services had been terminated and that, if he wish to avail himself of the benefit of Ext. P-11 Government Order, he must submit an application for onward transmission to the parent college, the appellant, by way of repatriation. At this juncture, the first respondent is stated to have addressed a letter on 17-4-1997 to the appellant enquiring about the vacancy position in the Department of Hindi, but he did not get any reply. The University, however, through Ext. P-12 dated 5-9-1997, terminated the first respondent's services with effect from 8-9-1997. 8. Stranded in the procedural wrangles, the first respondent sent Ext. P-13 letter dated 11-9-1997 to the appellant, referring to his earlier letter dated 17-4-1997 an....
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....since there was no response either from the appellant or from the authorities concerned to his various requests, he filed Complaint No. 152/1999 before the Kerala Lok Ayukta, which, however, held that the complaint was not maintainable. Under those circumstances, the first respondent filed O.P. No. 21638/2000 on 31-7-2000, assailing the inaction of the appellant in implementing the binding directives of the Government, namely, Exts. P-11 and P-14. LIS PENDENS DEVELOPMENT: 13. Pending disposal of the O.P., this Court, a learned Single Judge, issued an interim direction on 13-12-2005 to the appellant to consider the representations of the 1st respondent in Exts. P-15, P-16 and P-18 and pass appropriate orders thereon after affording him an opportunity of being heard. In compliance thereof, the appellant passed Ext. P-24 order dated 2-1-2007, rejecting the claim of the 1st respondent. 14. By amending the pleadings, the 1st respondent has also laid challenge against Ext. P-24 rejection order. THE IMPUGNED JUDGMENT: 15. The learned Single Judge has, on appreciation of the rival contentions, held that since the appellant, the fourth respondent therein, did not choose to ch....
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....ed counsel has placed reliance on P. Bhaskaran v. Addl. Secretary & ors. 1987 K.L.J. 1461 (F.B.). As to the procedural parameters to be followed in the matters of recruitment, the learned counsel has placed reliance on the following decisions: Janardhanan v. Joint Registrar 1990 (1) K.L.T. 530, Ganga Pratap Singh v. Allahabad Bank Ltd. A.I.R. 1958 S.C. 293', Bharathidasan University v. All India Council for Technical Education (2001) 8 S.C.C. 676, Nawabkhan Abbaskhan v. State of Gujarat (1974) 2 S.C.C. 121, Union of India v. Arulmozhi Iniarasu (2011) 7 S.C.C. 397, Usman v. State of Kerala 2003 (1) K.L.T. 2 and Mamleshwar Prasad v. Kanhaiya Lal A.I.R. 1975 S.C. 907 and also the commentaries of Craig and de Smith on Administrative Law. 19. According to learned counsel for the appellant, since Exts. P-14, P-21 are in violation of the recruitment procedure established by law, the appellant college has rightly ignored them. It is the specific and repeated contention of the learned counsel that challenge against an executive order made by an authority bereft of power can be made directly or collaterally. 20. The learned counsel has further contended that the learned Single Judg....
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....ondent: 24. Per contra, the learned counsel for the 1st respondent has submitted that, all through, the appellant has exhibited a grossly nonchalant attitude towards rule of law, including judicial directives of this Court. In elaboration of his submissions, the learned counsel has submitted that beginning from 1997 till 2000, when 1st respondent filed the original petition, he went on making representations to the appellant, some of them being Exts. P-13, P-15, P-16 and P-18. The appellant, however, has not chosen to respond, at least by placing on record the reasons for its persistent refusal to follow the Government Orders. The learned counsel has drawn our attention to the fact that present writ appeal came to be filed only belatedly when 1st respondent filed a contempt petition against the appellant for not complying with the judgment of the learned Single Judge. 25. Placing reliance on Mohinder Singh Gill v. Chief Election Commissioner A.I.R. 1978 S.C. 851, the learned counsel for the 1st respondent has further contended that since the appellant has not provided any reasons for not obeying Exts. P-11 and P-14 either to the 1st respondent or to the Government at the earl....
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....htra (2007) 5 S.C.C. 211, Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group (2011) 3 S.C.C. 363, Pavithran v. State of Kerala 2009 (4) K.L.T. 20 (F.B.) and MCD v. Qimat Rai Gupta (2007) 7 S.C.C. 309. 28. The learned counsel has submitted that 1st respondent began his efforts in 1997 to secure reemployment in his parent college, the appellant, on the strength of the binding directives of the Government, the paymaster and went on waging the legal battle for nearly a decade and half. Presently, pending the writ appeal, 1st respondent attained the age of superannuation in March 2014 and deemed to have retired from service. 29. The learned counsel for the 1st respondent has also sought to sustain Exts. P-11, P-14, P-17 and P-21 with statutory support under Sections 56, 62(2)(b), 77, 100 and 101 of the M.G. University Act. These provisions shall be referred to and discussed at a later stage of our adjudication. 30. Eventually, the learned counsel for the 1st respondent has assailed, what is in his view, the inadequacy of the judgment under challenge. According to the learned counsel, having held that the appellant college had not been justified in refusing to im....
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....& Forsyth. The Issues: "* Whether Exts. P-11, P-17 and P-21 orders are permissive in nature, granting privilege or liberty to the appellant to reappoint the 1st respondent? * Whether Exts. P-11 and P-14 and also the consequential orders in Exts. P-17 and P-21, are ultra vires of the powers of the Government authorities who issued them? * Whether a statutory authority or agency can ignore or refuse to honour the Government Orders on an assumed premise that they are void? * Whether a Government Order of perceived voidness or voidability can be assailed collaterally? * If Exts. P-11 and P-14 as well as Exts. P-17 and P-21, are held to be enforceable at the behest of the 1st respondent, whether the first respondent is entitled to pay and other service benefits for the interregnum period from the date of his ceasing to be an employee of the University till the date of his actual reemployment in his parent college, the appellant?" The Scope of Precedents: 34. Before we proceed further to appreciate the dictum laid down in the plethora of precedents cited at the Bar by both the learned counsel, it is well to bear in mind the adjuration....
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....cision is a precedent on what it actually decides. In the same breath, it is to be stated that in Narayanan's case the adjudication does not take into fold the case of a resigned employee. In our considered view, the reference to the instance of supposed non-applicability of the proceedings of the Government to an employee who resigned from the parent institution is, at best, only an obiter. As such, it can safely be held that the issue of applicability of Government Orders to a resigned employee remains an unexplored arena. 38. Though, neither party to the present proceedings is affected by the judicial pronouncement in Narayanan's case to the extent stated above, there is another issue which stood decided. As has been contended by the learned counsel for the appellant, in Narayanan's case too, the respondents raised an objection that the Government have absolutely no right to intervene in administrative matters of private colleges. Repelling the said contention, it was held in Narayanan's case that under the subsisting system, as evidenced by Ext. P-16 Government Order therein, Government have the responsibility to pay for those teachers and as such Government ....
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....ay permissive in nature. We, therefore, are inclined to hold that Exts. P-11, P-17 and P-21 are peremptory and binding, subject to their validity, which aspect is discussed hereinbelow. In re: Issue No. 2: Statutory Scheme: 42. As can be seen, the appellant college, an aided private college affiliated to Mahatma Gandhi University (M.G University), is primarily governed by the provisions of the M.G. University Act, especially Sections 59(1) and (1A) of the Act. Since, the appellant has raised the issue of ultra vires, it is profitable to extract Sections 59(1) and (1A), which are as follows: "Appointment of teachers in private Colleges. -- ['(1) Appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government.'] ['(1 A) Appointments to the lowest grade of teacher in each department of a private college shall be made by the educational agency by direct recruitment on the basis of merit.']" 43. Before discussing the statutory impact on the issue on hand, we may have to examine a few more provisions of the A....
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....ed, it is associated with executive autocracy, as has been symbolised by 16th Century King of England, Henry VIII. 47. Section 101, as is well established, enables the Government to remove the difficulties in implementation of the parent enactment, the pre-condition being that the purported act of removal shall not be inconsistent with the provisions of the parent Act. Be that as it may, in the manner stated above, Section 101 is only a legislative devise, but not a carte blanche for overcoming the day-to-day administrative exigencies. 48. At any rate, Section 62(2)(b) of the Act, relied on by the learned counsel for the 1st respondent, has some bearing on the issue, though it may not be squarely applicable to the present case. It is profitable to extract the said provision, which is as follows: "62(2)(b)--a teacher relieved from a private college on or after the 14th day of March, 1974 due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him shall be given preference in the matter of future appointments in the private college or, as the c....
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....pt of welfare state. It has attained the status of a truism to state that the extent and scope of general administrative power of modern Government cannot be defined precisely. The power is amorphous, unstructured, broad and undefined. Government can carry on general administration so long as it does not infringe a constitutional or legal provision or does not infringe on legal right of any person. 54. Formulation of policy and its implementation is pre-eminently a function of the Executive and the task of the Executive is facilitated by the Parliamentary system of Government which operates both at the Centre and the States in India. An important point to note with respect to functioning of the administrative organ is that it does not always need a statutory authorisation to act and execute a policy. Many a time, the administration can implement policies without any statutory sanction. Government are not confined to discharge only such functions as specifically conferred on it by the legislation or the Constitution. The executive power is not, however, free from ultimate legislative control (see MP Jain & SN Jain's Principles of Administrative Law, Vol.1, 7th Edn.). 55. I....
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....powers of the State and that under Indian Constitution the Executive does not have the police powers. 59. With clear demarcation of legislative fields under Articles 245 and 246 of the Constitution, read with Schedule VII and with residuary powers remaining with the Union, India has never had the need of adopting the vague and indefinite doctrine of police powers, first propounded by Chief Justice John Marshall in Brown v. Maryland 25 U.S. 419 (1827). In Lochner v. New York 198 U.S. 45 (1905), Justice Peckham, delivering the majority opinion, has himself stated that 'police powers' is vaguely termed and its exact description and limitation has not been attempted by the Courts. 60. In Charanjit Lal Chowdhuri v. Union of India A.I.R. 1951 S.C. 41, a Constitution Bench of the Supreme Court has observed that in interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution-makers and the imparting expression like 'police power', which is a term of variable and indefinite connotation in American law, can only make the task of interpretation more difficult. It has subsequently been affirmed by other Constitution Benches of ....
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....the jurisprudential divergence, if any, between the English Law and the Indian Law, confining the discussion only to the aspect of collateral challenge, though. Continental Contours of Administrative Law: 65. It is to be seen that copious references have been made by the learned counsel for the appellant to various commentaries on this issue by the redoubtable English Authors. In due deference to their wisdom, it is still to be stated that the English jurisprudential fidelity to the principle of Wednesbury is too steadfast, for too long a time, to the comfort of the cross currents of the droit administrative demands from the Continental France or to the American administrative advances from across the Atlantic. In the meanwhile, Indian Administrative Jurisprudence took a leap--a leap of liberality--to temper the tentative and nascent field of administrative law with the fortifying factor of Article 14 of the Constitution, to suggest one aspect of its growth. 66. Even otherwise, on a comparative scale, in the formative years of the branch of Administrative Law, which is still nebulous and amorphous, England had the shackles of the Diceyan Rule of Law; the USA, the doctrinai....
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....re accommodative in sending the selectees to the University on deputation basis; some insisted that the employee could leave the parent institution at his own peril, by resigning. In fact, the first respondent, on his failure to secure leave, did resign from the appellant college to join the University. Later, selection of the first respondent and his batch gave rise to certain litigation. Eventually, this Court through judgment in Sree Sankaracharya University of Sanskrit v. State 1996 (2) K.L.T. 378 declared that the teachers thus recruited had to be repatriated. 70. When first respondent and his batch were caught in the web of litigation and were eventually ousted from their newly secured employment, they looked upon the Government as their saviour. Under those circumstances, it felt to the Government to ameliorate their difficulties and redress their grievances. Collateral Challenge: 71. 'Collateral Challenge', variably referred to as 'Collateral Attack' as defined in Black's Law Dictionary, is as follows: "An attack on a judgment in a proceeding other than a direct appeal; esp., an attempt to undermine a judgment through a judicial proceed....
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....nction to constitutional courts, do not enjoy much adjudicatory discretion, since they function on the premise of ubi jus ibi remedium, subject to the statutory mandate, though. On the other hand, judicial review in itself is a collateral challenge against the State in terms of Article 12 and against the Government or other authorities in terms of Article 226 of the Constitution. They are discretionary and can be refused, despite the suitor meeting all the requirements, under well established principles governing the prerogative writs. The issue of laches and equity may also weigh with the courts. By laying a collateral challenge, the 1st respondent, who ought to have approached the court for a positive relief, may as well use this shield to circumvent those limitations. 75. Neil Parpworth, in his Constitutional and Administrative Law (p. 263, 7th Edn., Oxford), accepting existence of the general principle that public law decisions ought to be challenged by way of judicial review, opines that it raises a related issue--Whether such a principle prevents a person from challenging the validity of a public law decision in proceedings brought against him? In short, can a public law m....
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....would stress that anything I say in this case must be understood as referring only to an order as plainly invalid as one which contains a restraint to preventing the defendant from committing any criminal offence. There's great force, in my judgment, in the submission... That there will be a danger of opening floodgates if challenges to (ASBOs) could be made in breach proceedings, but in all these cases there are exceptions which are as plain as the exception this case." (as quoted in Neil Parpworth, P. 267) 78. Fluctuating as the judicial dicta have been, Chief Justice Bray of the Supreme Court of South Australia (the federal apex court of Australia paradoxically being the High Court) in Hinton Demolitions Pty. Ltd. v. Lower (No. 2) (1971) 1 S.A.S.R. 512, has observed as follows: "[The] authorities are in such a state of flux and confusion that it is hardly likely that this Court will be able to construct an enduring causeway through the flood. The task of imposing order on this chaos must, I think, be reserved for the High Court, the Privy Council and the House of Lords. It seems to me that is hardly possible to disentangle any general principle whi....
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....sion of the regulatory authorities when dealing the shares of the company concerned. Given the need for certainty and speed in the financial markets and given the interests of third parties, retrospective nullification may be practically impossible or contrary to the wider public interest. In the education field, a decision to close a school may have been taken. Arrangements may have been made for children and staff to be transferred to other establishments. Considerable disruption and cost may occur if that decision is set aside at a late stage in the implementation of the closure plans. Challenges to measures of general application may also have a wide impact on a wide range of interest and persons. Retrospective quashing may create difficulties and unfairness for individuals and administrators who have relied upon the measure: unraveling the consequences of invalid acts may impose a heavy burden on the administration and divert resources towards re-opening decisions taken on the basis of the invalid regulations." 80. In Administrative Law Text and Materials (p. 106, Oxford, 3rd Edn.), Mark Elliott speaks of the limits of collateral challenge in the following manner: ....
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....But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own.... But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights...." (emphasis original) 84. Continuing in the same vein, we can state that a collateral challenge or attack is cl....
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....onableness." 87. Since the order violated the audi alteram partem principle, thereby affecting the fundamental rights of a person, the Supreme Court has held that the order of experiment is void ab initio. Once it is void ab initio, its invalidity is retroactive, as if it were non-existent. Ipso facto, quashing of the order one year after its violation is of no consequence. It is stated that it can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon; in other words, it is subject to 'collateral attack'. 88. Placing reliance on Ridge v. Baldwin 1964 A.C. 40, Rubinstein (Discretion to Disobey), etc., the Supreme Court took note of the adjudicatory difficulties faced by the Courts in demarcating the boundaries of the orders which are void and which are voidable. Yet again, it is worth quoting the inimitable expressions of the centenarian, V.R. Krishna Iyyer, J: "18. The test of ex facie illegality or bad on its face or in Lord Radcliffe's words 'it bears no brand of invalidity on its forehead', is also unworkable in the work-a-day world of law. Error of jurisdiction and error within jurisdictio....
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....ement has persistently refused to reinstate the teacher in compliance with the direction of the competent authority. The aggrieved teacher approached the court. 92. Before the court, the management has contended that the Educational Officer has no authority to pass such an order of reinstatement. It has also contended that the very order was passed without giving an opportunity to it. In that context, the Division Bench has observed as follows: "11. That apart, though the order declining approval was passed by the competent authority as early as 21-4-1994, so far the 3rd respondent management has not chosen to take any steps to challenge the same in a manner known to law either before the statutory authorities stipulated under the Act or before this Court under Article 226 of the Constitution of India. While that be the position, it is not permissible for the 3rd respondent to collaterally attempt to attack the order while opposing the claim of the appellant in this case under of the Article 226 of Constitution." Analysis of the Authorities cited at the Bar: 93. In State of Rajasthan v. D.R. Laxmi (1996) 6 S.C.C. 445, the question is whether absence of publication....
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....n be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. 99. In P. Bhaskaran v. Addl. Secretary & ors. 1987 K.L.J. 1461, a Full Bench of this Court has examined Rule 200 of the Kerala Co-operative Societies Rules. What actually fell for consideration was the meaning and purport of the expression "any right or privilege of emoluments". It was in the context of an employee's right or privilege to emoluments, which he is entitled to in terms of any contract or agreement or conditions of service subsisting between such person and a Co-operative Society. In that backdrop, the Full Bench has made copious reference to various statutes, lexicons and standard legal commentaries, such as Corpus Juris Secundum, Salmond, G.W. Paton, Dias, Hohfeld. 100. Eventually, Their Lordships have held that where there is a right, there is a duty. Where it is only a privilege, it is only liberty without any corresponding duty. Privilege provides an opportunity to ....
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.... such, the observations made by the learned Single Judge in that context cannot be telescoped into the present factual context. 104. In Ganga Pratap Singh v. Allahabad Bank Ltd. A.I.R. 1958 S.C. 293, the respondent, a scheduled bank, sued the appellant in the court of the Civil Judge, Sitapore in Uttar Pradesh, for recovery of money due under an instrument of mortgage. The appellant, claiming to the statutory benefit of debt relief, contended that definition of 'debt' offended Article 14 of the Constitution. This defence, therefore, raised a question as to the validity of a provision in the Act. So, the appellant made an application to the Civil Judge, under the proviso to Section 113 of the Code of Civil Procedure seeking reference for the opinion of the High Court of Allahabad on the issue. The unsuccessful appellant initially approached the High Court of Allahabad and later the Supreme Court. In that backdrop, the Hon'ble Supreme Court has held that appellant's case comes within the proviso to Section 113 of the Code as also Article 228 of the Constitution. It can be seen that the question contemplated by the proviso to Section 113 of the Code is as to the val....
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....ty Statutes and the Direct Payment Agreement and the workload that is available as per the sanctioned new courses will have to be reckoned for payment of salary and other benefits. We fail to see any factual parity or applicability of the ratio to the present case. 107. In State of W. B. v. Subodh Gopal Bose A.I.R. 1954 S.C. 92, a Constitution Bench of the Supreme Court, by placing reliance on another Constitution Bench in Charanjit Lal Chowdhury v. Union of India, has held that the American doctrine of police power as a distinct and specific legislative power is not recognised in our Constitution and it is, therefore, contrary to the scheme of the Constitution. 108. The learned counsel for the appellant has laid heavy stress on Bharathidasan University v. All India Council for Technical Education (2001) 8 S.C.C. 676. The important question of law that has arisen for consideration in that case is whether the University created under the Bharathidasan University Act, 1981 should seek prior approval of AICTE to start a department for imparting a course or programme in technical education or a technical institution as an adjunct to the University itself to conduct technical cour....
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....ngs of any kind. On a rigorous interpretation of O' Reilly v. Mackman it was argued that a defendant who wished to attack the validity of some official act or order should do so by separate proceedings for judicial review, and apply for an adjournment' of the main proceedings meanwhile. But the House of Lords, once again refraining from the extreme course, held that it would be wrong to deprive a defendant of the opportunity to raise any available defence as a matter of right... The House held that it could not be an abuse of the process of the court to raise the familiar defence of ultra vires, which can normally be pleaded as a collateral issue, when the defendant was not able to select the procedure adopted. 'In any event', Lord Fraser said, 'the arguments for protecting public authorities against unmeritorious or dilatory challenges to their decisions have to be set against the arguments for preserving the ordinary rights of private citizens to defend themselves against unfounded claims'. A defendant is entitled to make his defence as a matter of right, whereas judicial review proceedings are subject to the discretion of the court. (emphas....
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....e. 118. It may be appreciated that, all through, the challenge is with regard to subordinate legislation, but not an administrative order. In any event, we have already discussed the impact of Bharathidasan on the present issue at length. Further, State of Kerala v. Arun George 2009 (4) K.L.T. 972 and U. Sharafali, Deputy Commandant v. State of Kerala an unreported judgment rendered on 17-6-2010 by one of us (Antony Dominic, J.), are two other judgments which are based on the findings on the ratio laid down in Bharathidasan's case. It is pertinent to state that in U. Sharafali's case, the issue has already attained finality, having been dealt with in another writ petition, to which Government is a party. As such, it is held that even in the absence of a formal challenge against the validity of the order, the court can justifiably ignore the order, particularly when the party in sufferance is the respondent to the proceedings. Collateral Challenge & Rule of Law: 119. Constitution is a matter of limitation of powers, while statutes are regulatory in nature. For a common man, Court of law is the last resort and as such, to preserve his rights and to negate the State&#....
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....ccuracy is required, void can e properly applied only to those provisions that are of no effect whatsoever-those that an absolute nullity. 123. Most of the English case law on the concept of 'void', including Ridge v. Baldwin 1964 A.C. 40, concern themselves with the denial of fair hearing or the negation of principles of natural justice. In this case, we are concerned with orders of the Government on the principle that they are ultra vires of the powers of the authorities. Thus, it is voidness borne out of being ultra vires. Criticising Durayappah v. Fernando (1967) 2 A.C. 337, the learned Author, Wades, says that although action which is ultra vires is properly described as void or a nullity, this voidness necessarily depends upon the right remedy being sought successfully by the right person. Citing an example, the learned author says that if a person is dismissed without being heard, his dismissal may be held as void if he challenges it. But, if he has not challenged it, other people have to accept it also, for, as against 3rd parties, whose rights are not infringed, a void act may well be valid, if they have no legal title to challenge it. In that context, he conclu....
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....e a de facto operation unless and until it is declared to be void and null by a competent body or court. In this regard, the Supreme Court has relied on the oft-quoted remark of the House of Lords in Smith v. East Elloe Rural District Council, wherein Lord Radcliffe observed: (All ER p. 871) "An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." 129. Further, the Supreme Court also quotes with approval the observations of Prof. Wade: "The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the ....
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....tent forum. W.A. No. 1645 of 2000: In re: Issue No. 5: Denial of Pay & Allowance for the Interregnum: 135. While allowing the O.P., the learned Single Judge has directed the respondents therein to reckon the interregnum period from the date of the first respondent's termination from the University till the date of the his reappointment in the college for the purpose of seniority and pay fixation, etc., but without pay and allowances for the said period. Contending that denial of pay and allowance, after the learned Single Judge holding that the action of the respondent college is illegal, is totally unsustainable. In support of his submissions, the learned counsel has relied on the following decisions: Commissioner, Karnataka Housing Board v. C. Muddaiah (2007) 7 S.C.C. 689, State of U.P. v. Dayanand Chakrawarty (2013)7 S.C.C. 595 and Shiv Nandan Mahto v. State of Bihar (2013) II S.C.C.626. Despite the unquestionable efficacy of the judicial dicta of the above judgments of the Apex Court, the issue is whether the ratio laid down therein applies to the present factual situation. 136. In this case, it is the Government, which is the paymaster. All along it has been....