UNION OF INDIA AND ANR. versus MALTI SHARMA

Citation: [2006] 2 S.C.R. 547 · Decided: 24-02-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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l 
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UNION OF INDIA AND ANR. 
A 
v. 
MAL Tl SHARMA 
FEBRUARY 24, 2006 
[S.B. SINHA AND P.P. NAOLEKAR, JJ.] 
B 
Administrative law: 
Administrative action-Abolition of post-Writ petition filed by employee. 
challenging her termination order-During pendency of writ petition, post C 
abolished-legality of-Held: Action clearly illegal and malafide-Service 
law-Abolition of post. 
Respondent, an Inspector under the Nursing Council Act was 
terminated from service. She filed Writ Petition in High Court challenging D 
the Termination Order. However, during pendency of Writ Petition, 
Executive Committee ratified the order passed by President of Nursing 
Council. 
Union of India had filed Affidavit stating that though there was 
proposal for abolition of post but it had not been abolished but converted E 
into the post of Assistant Secretary. 
Single Judge of High Court after hearing both the parties reserved 
its judgment. Before the pronouncement of judgment, Government of 
India (GOI) issued a letter dated 17.6.1999 directing the council to issue 
order of abolition· of post of Inspector. GOI in terms of office F 
memorandum dated 3.5.1993, declared that post of inspector stood 
abolished. 
Single Judge held that affirmation of termination was passed without 
taking note of the fact that Writ Petition was pending. Single Judge also 
opined that having regard to the fact that post of Inspector which was G 
statutory post was abolished, consequent relief of reinstatement cannot be 
granted. However, it gave liberty to respondent to challenge the order 
dated 17.6.1999. 
547 
H 
548 
SUPREME COURT REPORTS 
120061 2 S.C.R. 
A 
Respondent filed LPA against the said judgment which was dismissed 
holding that it would be open for her to file a fresh petition challenging 
order of abolition. In view of this observation, respondent filed another 
writ petition before High Court which was allowed by Single Judge holding 
that termination of respondent was mala fide. On appeal, Division Bench 
B dismissed the appeal having regard to the finding of fact arrived at by 
Single Judge. Hence the present appeal. 
c 
Union of India contended that it was not apprised that Writ Petition 
was pending and that the Council had merely informed that the post was 
lying vacant for more than one year. 
Allowing the appeal, the Court 
HELD: I. The Division Bench of the High Court was right in saying 
that in the facts and circumstances of this case it was not necessary for it 
to go into the question as to whether the post or Inspector carries a 
D statutory status or not. (554-Fl 
2. It is neither denied nor disputed that the post of Inspector is an 
essential one so as to enable the Council to carry out its statutory function. 
He inspects the colleges only for the purpose of grant of recognition and 
on the basis of the report of the Inspector alone, ~he Executive Council 
E considers the proposal for grant of recognition of such institution. The 
main purpose of the Council, therefore, cannot be performed in absence 
of an Inspector or a person authorised to perform the said duties. In any 
event, the Office Memorandum dated 3.5.1993 will have no application 
in the instant case as the post was not held in abeyance. It was filled but 
the services of the Respondent were terminated which was questioned by 
F her by filing a writ petition before the High Court. The said writ petition 
was admittedly pending. In fact, the judgment wa:> reserved. Despite the 
fact that the writ petition was pending for a period of three years, why 
the Government of India was approached for the purpose of obtaining a 
direction that the post stood abolished is not known. Even in view of the 
G findings of fact recorded by the High Court, the concerned authority took 
recourse to suppressio veri and suggestio falsi. It had not been disclosed 
that a writ petition was pending. [555-C-GI 
3. It is furthermore not in dispute that after the judgment of the High 
Court, the Respondent has been reinstated. Whether the post had been 
H revived before such reinstatement again has not been disclosed. It is, 
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U.0.1. v. MAL Tl SHARMA [SINHA. J.) 
549 
therefore, evident that the Appellant No. 2 tried to overreach the court. A 
Its action was plainly ma/a fide both on facts as well as in law. 
(555-G-H; 556-A( 
Union of India Through Govt. of Pondicherry and Anr. v. V. 
Ramakrishnan and Ors., (2005) 8 SCC 394, referred to. 
CIVIL APPELLATE JURISDICTION: Civil Ap
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