2013 (7) TMI 1257
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....rant him the Scale of Pay of District Judge (Selection Grade) with effect from 09.07.1997 and the Scale of Pay of District Judge (Super Time Scale) from 27.09.2000 with all consequential financial benefits, the Pensionary benefits and Domestic Help Allowance and Medical Allowance as applicable to District Judges/Retired Judicial Officers as prescribed in G.O. (Ms) No. 289, Home (Courts IA) Department dated 31.03.2003 and G.O. (Ms). No. 581, Home (Courts IA) Department, dated 30.06.2003. The Petitioner/Registrar General (1st Respondent in M.P. No. 1 of 2012) has focussed the instant Review Application as against the order dated 15.06.2010 passed by this Court in W.P. No. 1534 of 2007. Earlier, this Court has allowed the Writ Petition No. 1534 of 2007 filed by the Petitioner (Petitioner in M.P./1st Respondent in Review Application), by setting aside the impugned order passed by the 1st Respondent (High Court of Madras) with a direction to the Respondents to grant him the benefits as prescribed in G.O.Ms. No. 1351 dated 18.12.2003 within a period of four weeks from the date of receipt of a copy of the order. 2. The Epitome of Factual Matrix of M.P. No. 1 of 2012 in W.P. No. 1....
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.... Accordingly, the Government of Tamil Nadu issued G.O.Ms. No. 289 and 581, Home (Courts-IA) Department, dated 31.03.2003 and 30.06.2003 respectively, granting the scale of pay to the Judicial Officers as recommended by the Commission with effect from 01.07.1996 and to credit the arrears of salary into the General Provident Fund Account of the Judicial Officers concerned. The pay scale of the District Judge were divided into three categories as follows: i) District Judge (Entry Level) - Rs. 16750-400-19150-450-20500 ii) District Judge (Selection Grade)- Rs. 18750-400-19150-450-21850-500-22850 iii) District Judge (Super Time Scale) Rs. 22850-500-24850 (vi) In the High Court, the post of Registrar had always been treated on par with the post of District Judge for the purpose of pay. Apart from District Judges, who are on deputation to the High Court, as the Registrar General/Registrar (Judicial)/Registrar (Vigilance), there were two Registrars from the High Court Administration itself, viz., Thiru R. Venkatesan, Registrar (Administration) and Thiru G. Chinniah Naidu, Registrar (Management), who drew the pay of Rs. 15000-400-18600 on par with District Judge. When the ....
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....plicable to him. His representation was rejected by the High Court by an order dated 19.07.2005. A reconsideration Petition was also submitted, but it had not yielded any result. 3. The Relevant Counter Averments [filed by the 1st Respondent/Review Applicant]: (i) This Court passed a reasoned order dated 15.06.2010 in the Writ Petition by directing the Respondents therein to grant the Petitioner the benefits prescribed in G.O.Ms. No. 1351 dated 18.12.2003 which was duly complied with in terms of G.O.Ms. No. 393, Home (Cts-I) Department dated 15.07.2011 by granting the scale of pay of the Petitioner revised as per District Judge (Entry Level) at Rs. 16750-400-19150-450-20500 with effect from 01.07.1996 (i.e.) the date from which the revised scales of pay were implemented to the Judicial Officers. Also that, the Government had granted the Petitioner the revised scale of pay as District Judge (Selection Grade) at Rs. 18750-400-19150-450-21850-500-22850 with effect from 01.07.2001 (i.e.) on completion of five years from 01.07.1996. (ii) The District Judges were granted the pay scales as recommended by the First National Judicial Pay Commission from 01.07.1996, wher....
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....007 had not directly claimed any benefits on par with those available to the District Judges. His stand was that the post of Registrar in the High Court has been treated always on par with the post of District Judge for the purpose of pay. Also, the post of Registrar General and Registrar are borne on Category-I of Division-I of the Madras High Court Service Rules. (viii) Added further, the post of Official Assignee has always been treated on par with that of Registrar after the merger of the service as the post of Official Assignee was also included in the same category and division of the High Court Service Rules. As such, the benefits available to the post of Registrars should be made available to the post of Official Assignee also. That apart, according to the Petitioner, the post of Official Assignee has onerous responsibilities as that of Registrars and on that score also, he has laid the claim. (ix) The post of Official Assignee, to which the Petitioner was appointed on and from 07.11.1990, came to be merged in the Category-I and Division-I of the High Court Service by virtue of Notification in R.O.C. No. 9404/92/C1 pursuant to the decision taken by the Com....
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....stwhile Registrar (Administration) viz., G. Chinniya Naidu entered the service as Steno-Typist in the Sub Court, Vellore, on 08.09.1969. He entered the High Court service as P.A. to the Hon'ble Judges on 28.09.1979. He was promoted as Assistant Registrar on 21.04.1993. initially, he was Assistant Registrar O.S.. Later, he was posted as Assistant Registrar (Administration). On 01.07.1998, he was promoted as Deputy Registrar (Protocol). On 27.01.1999, he became the Private Secretary to the Hon'ble Chief Justice in which capacity he served till 30.04.1999. He was appointed as Master on 01.05.1999 and served as such till 05.09.1999. With effect from 06.09.1999, he served as Additional Registrar O.S. (later the said post was re-designated as Registrar (Management) and served as such till 01.05.2005. He was posted as Registrar (Administration) on 01.05.2009 and served as such till his retirement on 31.08.2009. He retired on completion of period of extension of service by three years. He passed B.L., Degree from Bangalore University in November 1988 and later, passed M.L., examination. (ii) The former Registrar (Administration) viz., R. Venkatesan entered into service as ....
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....on attaining superannuation at the age of 58 years. (v) The said S. Balalsubramanian made a representation on 09.06.2004, claiming the scale of pay which was given to the said G. Chinniya Naidu and R. Venkatesan (then Registrars of this Court) and the said representation was rejected by the High Court by means of an Official Memorandum, dated 29.11.2005. (vi) In regard to Ms. Padmavathi (then Chief Editor of Tamil Nadu Law Journal), she entered into the High Court service as Clerk on 23.08.1968. She became Section Officer with effect from 15.02.1987 and was promoted as Assistant Registrar on 13.12.1990. She served in that capacity till 10.06.1996. She was posted as Official Referee on 11.06.1996 and served as such till 01.02.1998. She became Deputy Registrar on 02.02.1998 and served as such till 11.07.2000. From 12.07.2000 to 17.08.2001, she served as Master. Thereafter, she was promoted as Chief Editor of Tamil Law Journal from 17.08.2001 and served as such till 30.06.2004 on which date she retired on attaining superannuation. She made representation on 05.02.2004 praying for scale of pay on par with what was given to the then Registrars viz., G. Chinniya Naidu a....
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....ice on 31.07.2001. By that time, he had rendered service as Official Assignee, after coming into force of the amendment to High Court Service Rules as mentioned supra, only for a period of 4 years and one month and therefore, he would not be entitled to any benefits thereunder. As such, he could not claim any benefits on par with the District Judges or Registrars of the High Court. Moreover, the benefits conferred under G.O.Ms. No. 1351 dated 18.12.2003 were showered on the concerned Registrars individually as one time measure and in the G.O., it was made clear that such benefits could not be claimed by any person, who is a non-Judicial Officer. 6. The contents of Counter Affidavit in Review Application filed by the 1st Respondent (Petitioner/Writ Petitioner): (i) The order passed by the W.P. No. 1534 of 2007 which is the subject matter of the present Review Petition was dated 15.06.2010. The order was made ready on 02.07.2010. As such, the Review Petition should have been filed on or before 01.08.2010. There was a delay of over 1000 days in filing the present Review Petition. Also, no petition for condonation was filed. (ii) In fact, the Review Petitioner acce....
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.... of 1990 against the said order was also dismissed on 15.02.1990. The said order was implemented in G.O. (Ms). No. 864, Home Department, dated 23.04.1990; so also the post of Official Assignee was always at the same scale of pay as that of the District Judge. (vi) The 1st Respondent/Writ Petitioner made a representation that he should also get the same scale of pay as that of two then Registrars viz., R. Venkatesan, Registrar (Administration) and G. Chinniah Naidu, Registrar (Management). From the year 1997, the Official Assignee service was merged with the High Court Services and the pay of the post of Official Assignee was equated with the pay of the post of Registrar General, which at that time was the same as that of District Judge. Only when the representation of the 1st Respondent/ Petitioner was rejected by this Court on 19.07.2005, the Petitioner was constrained to file Writ Petition before this Court. The order passed by this Court in W.P. No. 1534 of 2007 dated 15.06.2010 is a valid and well considered order. Hence, the Review Application is liable to be dismissed. The Background Facts: 7. It is to be pointed out that R. Venkatesan, the then Registrar (Admi....
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....n dated 23.05.2002, on 04.04.2003, the Office of the Registry was directed by the then Hon'ble Chief Justice put up a Note to him. Accordingly, an Office Note in R.O.C. No. 5580-A/2002-B2 was prepared and submitted before the then Hon'ble Chief Justice for perusal and praying for necessary orders in regard to the request made by the then Registrars, through their representation dated 23.05.2002. In the Office Note, it was mentioned, inter alia, that by tradition, the post Registrar General (the erstwhile post of Registrar) is filed up on deputation by a District Judge from the Tamil Nadu State Judicial Service and the present scale of pay of the post of Registrars including the Registrar General, is Rs. 15000-400-18600 and if the posts are presided over by the District Judges (Super Time Scale) or such other cadre, they shall draw their respective scale of pay in the respective posts. Also that the Note referred to the copy of the G.O.Ms. No. 289, Home (Courts-IA) Department dated 31.03.2000 wherein the orders were issued by the Government granting the scale of pay to the Judicial Officers of Tamil Nadu State Judicial Service as recommended by the First National Judicial Co....
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....r to the Secretary to Government, Home Department, Government of Tamil Nadu, Chennai, inter alia, mentioning that the posts of Registrar General and Registrars, mentioned in the said letter, could be equated since they are filled up by posting the District Judges Grade II by transfer and by promotion from the High Court Service and parity in the scale of pay has also been maintained till date. Since the Government in Letter No. 37275/Courts-IA/03-6 dated 29.09.2003 after examining the proposal of the High Court in regard to the revised scale of pay be made applicable to the post of Registrar (Administration) and Registrar (Management) had stated that the aforesaid proposal was examined by them and decided that the proposal was not acceptable. 13. As such, the Office Note so put up by the then Registrar General on 08.10.2003 before the then Hon'ble Chief Justice of this Court, among other things, mentioning that R. Venkatesan was promoted as Additional Registrar (now Registrar, Administration) on 16.10.1998 and that he functioned in the said post for the past five years and he was about to retire during the month of April 2005 and that G. Chinniya Naidu was permitted as Addit....
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....ment, dated 31.03.2003 and communicated thereto. Ultimately, the Government issued G.O.Ms. No. 1351, Home (Courts. IA) Department, dated 18.12.2003 extending the revised scale of pay to Registrar (Administration) and Registrar (Management) from pay scale of Rs. 15000-400-18600 to Rs. 16750-400-19150-450-20500 with effect from 16.10.1998 and 06.09.1999 respectively subject to the condition specified therein. Representation: 16. On 02.07.2008, G. Chinniya Naidu, the then Registrar (Administration) addressed a letter to the Registrar General (Review Applicant), has, inter alia, stated that the Government in G.O.Ms. No. 717, Home (Courts. I) Department, dated 20.06.2008, have now ratified the action of the High Court in having granted Selection Grade scale of pay to himself and R. Venkatesan, then Registrar (Administration) now retired and allowed the benefits extended by G.Os. aforesaid, in its entirety, as a person oriented benefit and requested for the grant of super time scale of pay of Rs. 22,850-500-24850 to him, as on 06.09.2007, which scale of pay is next above the Selection Grade scale of pay, since he has completed a period of three years of service from the date of his....
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....19. The grant of one time personal monetary benefits granted to the then Registrar (Administration) and Registrar (Management) has paved way for others like, S. Balasubramanian, S. Sitrarasu, V. Padmavathi and the present Petitioner (T.P. Parameswaran) to make similar claims before this Court through their representations and ultimately, they were rejected by this Court. Representation of the Petitioner/Writ Petitioner: 20. The Petitioner/Writ Petitioner [1st Respondent in Review Application] submitted his representation dated 24.01.2005 addressed to the Registrar General wherein he prayed for the extension of revised scale of pay to him, among other things, mentioning that the duties and responsibilities of the Registrar General and other Registrars and that of the Official Assignee are similar and equal as they deal with the subjects as allotted by the Hon'ble Chief Justice and that the post of the Official Assignee and the Registrars including that of Registrar General are borne on Category 1 Division I of the Madras High Court Service Rules and further requested that as per G.O. Ms. No. 1351, Home (Courts. IA) Department dated 18.12.2003, he may be considered for move....
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....e indisputable element, which comes to the aid of the Petitioner, who is now in the category of Deputy Official Assignee, with reference to his plea for refixing the scale of pay on par with that of the Subordinate Judges effective from 22.05.1986 the date on which, he assumed the post and that is the principle equal pay for equal work. The post of Deputy Official Assignee has been treated all along on par with the post of the Subordinate Judge. This is not being disputed by Respondents 1 and 2. Dealing with a similar plea by the Deputy Registrar and the Special Officer for Grouping of cases of this Court, a Bench of this Court in S. Jayaraman and Another V. The State of Tamil Nadu Represented By Its Commissioner and Secretary To Government, Home Department, Madras-9 and Others (W.P. No. 4229 of 1984, Order dated 07.11.1984) applied the principle equal pay for equal work and countenanced the plea for equalisation of their scale of pay with that of the Subordinate Judge. Nothing convincing is stated before me on behalf of Respondents 1 and 2 to make any departure in the case of the post of Deputy Official Assignee, which post the Petitioner is occupying' and resultantly, allowed....
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.... and 06.09.1999 respectively, whereas the Petitioner was appointed as Official Assignee on 07.11.1990 and that the aforesaid individuals had the liberty to move only to the scale of pay of Rs. 18750-22850, which is equivalent to the scale of pay of District Judge (Selection Grade), but they did not have the opportunity to move to the scale of pay of Rs. 22850-24850, which is equivalent to the scale of pay of District Judge (Super Time Scale). As such, if the District Judge scale of pay is extended to the case of the Petitioner from the date of appointment as Official Assignee, then, he would have drawn the scale of pay of entry level from 07.11.1990 notionally with monetary benefit from 01.07.1996 and would have drawn the scale of pay as applicable to that of District Judge (Selection Grade) with effect from 09.07.1997, when the vacancy arose in the Selection Grade, though in the normal course the Petitioner would have got it after expiry of five years; also that the Petitioner would have moved to the Super Time Scale on 27.09.2000 when the vacancy arose on completion of three years. 28. According to the Petitioner, a perusal of the Annexure to R.O.C. No. 53/2003 Con. B1 dated 1....
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.... him stating that it was an establishment matter and could not be sought under the Right to Information Act and as such, the information sought for was rejected. 31. It is the further submission of the Petitioner/Writ Petitioner (1st Respondent in Review Application) that the Review Petition filed by the Petitioner [Registrar General] is not maintainable because of the fact that as per orders of this Court in W.P. No. 1534 of 2007 dated 15.06.2010, the High Court and the Government accepted the same and certain benefits were granted to the Petitioner/Writ Petitioner. 32. Furthermore, the plea of the Petitioner/Writ Petitioner is that under the guise of Review Petition, the Review Applicant [Registrar General] is not entitled to re-argue the original case and as such, the Review Petition cannot be made as a substitute for an Appeal. 33. Per contra, it is contended on behalf of the Review Applicant/ Registrar General, High Court, Madras that the Review Application is perfectly maintainable in law for the reason that the orders passed by this Court dated 15.06.2010 in W.P. No. 1534 of 2007 require re-examination or reconsideration, since certain factual aspects, which goes to....
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....ay be prescribed; and to take such part and give such assistance in relation to the prosecution of any fraudulent insolvent as the court may direct or as may be prescribed. 39. As a matter of fact, the Official Assignee is entitled to hold enquiry and for that purpose receive evidence of oath to decide whether the debt is genuine and owing to the creditor. If a false statement is made, by an insolvent in his examination by the Official Assignee conducted under Section 33(2) of Presidency Towns Insolvency Act, 1909, he does so in a judicial proceedings as defined in Section 4(1)(m) of Cr.P.C. 40. As per Section 68 of the Presidency Towns Insolvency Act, the Official Assignee has a duty to realise the property of the insolvent, with all convenient speed and Section 68(1), (a) sell all or any part of the property of the insolvent; (b) give receipts for any money received by him; and may, by leave of the Court, do all or any of the following things; (c) carry on the business of the insolvent so far as may be necessary for the beneficial winding up of the same etc. Glimpse of Case Laws: 41. At this juncture, we deem it appropriate to point out that in the decision of the Hon....
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....Special Page 793, it is held that The High Court has not only the power, but a duty to correct any apparent error in respect of any order passed by it. This is the plenary power of the High Court. (c) In the decision of the Honourable Supreme Court in In re: Mahamaya Banerjee, [AIR 1989 CAL. 106], it is held that The words sufficient reason in Order 47 Rule 1 of Code of Civil Procedure include misconception of fact and/or of law of Advocate and further, an inherent power may be invoked by a Court of Law to correct erroneous view of Advocate. All such powers as may be necessary to do the right and to undo a wrong in the course of its functioning. Also that, an inherent power may be invoked and exercised to meet any judicial exigency. (d) In the decision of the Honourable Supreme Court in M.A. Murthy V. State of Karnataka and others, [ (2003) 7 SCC 517], at Special Page 518, it is held that 'The effect of review Judgment is that it erases the previous Judgment and hence, operates as the law from inception.' (e) In the decision of the Honourable Supreme Court in Sureshkumar Kanhaiyalal Jethlia V. State of Maharashtra and others, [AIR 2001 Bom. 438], ....
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....1986 till 06.11.1990. He was promoted as Official Assignee on 07.11.1990 and continued in that capacity at Chennai till 31.07.2001. Further, till his retirement, he has not made a claim that the post of Official Assignee was equated with that of the District Judge [notwithstanding the fact that the Official Assignee Service was merged with the High Court Services on 03.06.1997 and also his post of Official Assignee was included in Division I Category 1, B of Madras High Court Service Rules]. 46. The Petitioner/Writ Petitioner, in his representation dated 24.01.2005, addressed to the Government of Tamil Nadu and Registrar General of this Court, has, among other things, stated that since his juniors are getting more pay as per G.O.Ms. No. 1351, Home (Courts-IA) Department, dated 18.12.2003, the same principles for revision of scale of pay extended in the case of Registrars of High Court Service may kindly be extended in his case and that consequently he may be considered for movement to the Selection Grade Scale from 07.11.1995 and also to the Super Time Scale with effect from 07.11.1998 for having served as Official Assignee for 10 years 8 months and 24 days in the same cadre of ....
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....olvent's property vests in his hand as 'Owner' though only for the benefit of others and in such a matter, he is only a litigant. 51. On going through the order passed by this Court in W.P. No. 1534 of 2007 dated 15.06.2010, in paragraph 5, it is clear that the Writ Petitioner, on a misconception of fact, has been incorrectly mentioned as a Judicial Officer holding the post of Official Assignee equal to that of District Judge, from the year 1990 and therefore, he is entitled for extension of the same scale of pay on par with two individuals viz., R. Venkatesan, Registrar (Administration) and G. Chinniya Naidu (Management), which is self-evident and in this regard, obviously an error apparent on the face of record has crept in. The Petitioner also in the Writ Petition claims the entry level District Judges pay of Rs. 16750-400-19150-450-20500. 52. Further, the conferment of benefits by way of ACP (As per First National Judicial Pay Commission Report) is not automatic but on the appraisal of Judicial Officer's work and performance by a Committee of Senior Judges of the High Court constituted for the purpose. Indeed, the award of Selection Grade Scale of Pay of R....
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....ction in the matter of the service conditions of the employees of the High Court. The only person competent is the Chief Justice of the Court or such other Judge or Officers of the Court as directed by the Chief Justice. No rules applicable to the employees of the State Government are applicable to the employees of the High Court, except the Rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice. Revision of Scales of Pay: 54. It cannot be gainsaid that as per R.O.C. No. 907/08/G2 dated 07.08.2009, the Hon'ble Chief Justice of this Court has revised and refixed the Scales of Pay in respect of the Officers of Madras High Court Service [including Office of the Official Assignee, High Court, Madras and Madurai Bench of Madras High Court, Madurai] and the relevant portion is extracted hereunder: Name of the post Revised Scale of Pay (in Rs.) 1. Registrar (Administration) Registrar (Management) 37, 400-67, 000-PB4-8, 800 (if promoted from the Madras High Court Service) 2. Chief Editor (T.L.J.) 37,400-67,000-PB4-8,800 3. Official Assignee 37, 400-67, 000-PB4-8, 800 Equal Treatment: ....
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....ular benefit. Where he fails to do that and only relies on the fact that a similarly situated person has been illegally granted that benefit, he cannot make it a ground for also granting such benefit'. 61. In the decision of the Hon'ble Supreme Court in Bihar Public Service Commission and others V. Kamini and others, [(2007) 5 SCC 519], it is, inter alia, held that 'even if some ineligible candidates were wrongly treated as eligible, it could not give rise to doctrine of equality'. 62. On a careful consideration of respective contentions and also taking note of the fact that the Petitioner/Writ Petitioner/1st Respondent appears before Courts and assists the Courts in insolvency and other matters and also bearing in mind another important fact that as on date, there is no express order from this Court equating the post of Official Assignee to that of District Judge, we hold that the observations of this Court mentioning the Petitioner as 'Judicial Officer' in its order dated 15.06.2010 in W.P. No. 1534 of 2007 and conferring the benefits of extension of same scale of pay on par with two erstwhile Registrars of this Court and resultantly, granting benefi....
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....cial Assignee can be equated for the purpose of pay parity (in order to claim Entry Level, Selection Grade and Super Time Scale of Pay in the cadre of District Judge) in view of the differences in duties and responsibilities and nature of work assigned and performed by Registrar General, other Registrars and the Official Assignee; (d) Whether the benefits conferred to former Registrar (Administration) and Registrar (Management) are personal to them; (e) Whether the two then Registrars are his juniors and getting more pay as per G.O.Ms. No. 1351, Home (Courts-IA) Department, dated 18.12.2003 and incidental/ancillary, allied matters] afresh, once and for all in a complete and comprehensive manner, [so as to bury the hatchet with a view to put an end to this sort of litigation in future] and to pass a reasoned order on merits, of course, after providing due opportunities to the Petitioner/Writ Petitioner, as expeditiously as possible. 64. Ordinarily, there cannot be any straight jacket formula for ordering recovery from an Employee, in case he has received excess payments. If a recipient has received certain monetary benefits to which he is not entitled to, then, his case may come ....
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.... unjust enrichment. (c) In the decision of the Hon'ble Supreme Court in Mahabir Kishore and others V. State of Madhya Pradesh, [AIR 1990 SC 313], it is laid down as follows: The principle of unjust enrichment requires: first, that the defendant has been 'enriched' by the receipt of a benefit; secondly, that this enrichment is at the expense of the plaintiff; and thirdly; that the retention of the enrichment be unjust. This justifies restitution. Enrichment may take the form of direct advantage to the recipient's wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved. 66. In the instant case, the Petitioner/Writ Petitioner would have reaped the fruits of benefits, based on the earlier orders of this Court passed in W.P. No. 1534 of 2007 dated 15.06.2010 and the passing of G.O.Ms. No. 393, Home (Courts-I) Department dated 15.07.2011 by the State Government. 67. Inasmuch as while allowing the Review Application, we have set aside the order of the 1st Respondent/High Court, represented by its Registrar General dated 19.07.2005 and directed the representation of the Petitioner dated 24.01.2005, ....
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