REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS…8378-8392 OF 2010 (Arising out of S.L.P.(C) Nos.6432-6446 of 2008)

State of Assam                                      ………… Appellant

Versus

Union of India and Ors. Etc.                      ………….. Respondents

J U D G M E N T

H.L. Dattu, J.

1)           Leave granted.  

2)           The appellant, being aggrieved by the judgment  

and order in WA No. 535/2001 and other connected appeals  

and also the dismissal of the Review Petition No. 124/2006  

by the Division Bench of High Court of Gauhati, is before  

us in these appeals.

3)           The factual matrix in brief is as under :  

The  Union  of  India  (Respondents  herein)  had  introduced  

“Family  Welfare  Scheme”  under  its  Family  Planning  

Programme  with  effect  from  1st day  of  September,  1966.  

Under  the  said  scheme,  there  was  a  provision  for  the  

appointment of ‘Voluntary Female Attendants’ on a monthly  

honorarium of  `50/- per month from the inception of the  

scheme,  which  was  subsequently  increased  to  `100/-  per

month with effect from February, 2001. According to the  

Union  of  India,  the  work  of  these  attendants  is  to  

motivate people in their locality to have a small family.  

This assertion of the Union of India is disputed by the  

private respondents.  They assert that though they were  

appointed as `Volunteers’, they were made to assist the  

Auxiliary nurses-cum-midwives in the Health sub-centers at  

the time of field visit and for miscellaneous works like  

cleaning, etc. in the sub-centers.

4)           Sometime in the year 1993, one such Voluntary  

Female Attendant - Nandeshwari Bora filed a writ petition  

CR No. 3847/1993 before the High Court of Gauhati against  

the State of Assam, on the ground that the work of the  

Voluntary Female Attendant under the aforesaid scheme and  

that  of  the  regularly  appointed  ‘Ward  Girls’  by  the  

respondents therein was similar and, therefore, demanded  

parity in the pay scale as ‘Ward Girls’, which at that  

time was `900-1435 per month. The single Judge of the High  

Court allowed the writ petition and directed the State  

Government to pay the minimum pay-scale in the time-scale  

of pay i.e. `900/- per month. Unfortunately, the text of  

this judgment of the learned Single Judge is not before us  

for our perusal, as the counsel appearing on both sides  

have  stated  that  though  they  have  made  all  efforts  to  

secure a certified copy of the judgment, they have been  

unsuccessful, as the same is not available in the Registry

of the High Court of Gauhati.  Therefore, we will have to  

proceed  without  having  the  advantage  of  seeing  the  

reasoning  of  the  learned  Judge  in  his  conclusion.  

However, in the subsequent judgment passed by the High  

Court,  there  is  some  reference  to  the  findings  and  

conclusion  reached  by  the  learned  Single  Judge  in  

Nandeshwari  Bora’s  case.   This  may  help  us  in  

understanding  the  reasoning  and  conclusion  reached  in  

Nandeshwari Bora’s case.  

5)           After the decision of the High Court in  

Nandeshwari Bora’s case in C.R. No. 3847 of 1993, nearly  

54  (fifty four) Voluntary Female Attendants filed writ  

petition in the High Court, inter alia seeking the same  

relief that was granted in Nandeshwari Bora’s case.  The  

lead case was by Jalini Brahma being C.R. No. 3073 of  

1995.  The relief that was sought in the writ petition was  

for regularization of their services and for payment of  

salary as per the existing pay scale.  In the light of the  

decision  of  the  Court  in  Nandeshwari  Bora’s  case,  the  

learned Single Judge of the High Court by judgment and  

order dated 22.02.2000, partly allowed the writ petition  

and directed all the respondents (which included the Union  

of  India  and  the  State  Government)  to  pay  `900/-  per  

month,  the  minimum  of  the  pay  scale  to  the  Voluntary  

Female Attendants.  The operative portion of the Judgment  

and order is extracted.  It reads :-

“…Learned Counsel for the respondents have not been  

able to show anything whereby the petitioners can  

be deprived of their minimum wages. It is submitted  

that the ROP Rules of 1990 provide a pay scale of  

Rs.900-1435/-  for  the  post  of  Female  Attendant.  

Accordingly, I direct all the 7 respondents to pay  

the petitioner the minimum wages of Rs. 900/- per  

month from the month of July 1990 or from the date  

of their employment, whichever is later…”

6)            However, with regard to the question of  

regularization of service, the learned Single Judge has  

observed that it was for the State of Assam to consider  

the same in accordance with law.

7)           Subsequently, another Writ Petition No. 5496 of  

2001  came  to  be  filed  by  Hazera  Khatoon  for  the  same  

relief as in Jalini Brahma’s case.  There were 5 (five)  

respondents in the petition, amongst them were the Union  

of India and the State of Assam. The learned Single Judge  

of the High Court disposed of the same in light of the  

decision of the Court in Jalini Brahma’s case.

8)           After disposal of the writ petition filed by  

Hazera Khatoon, the Union of India, being aggrieved by the  

said order and the orders passed in Jalini Brahma’s case,  

filed appeals before the Division Bench of the High Court.  

In the appeals so filed, the Union of India, strangely,  

did not implead the State of Assam as a party to those  

proceedings.    

9)           In their appeals, the Union of India contended  

that  these  Voluntary  Female  Attendants  were  not  their  

employees and, therefore, the learned Single Judge ought  

not to have issued any direction to the Union of India,  

much less for payment of minimum of pay scale.  It was  

further  brought  on  record  that  the  State  of  Assam  had  

issued appointment letters to these Female Attendants and  

there was no mention in those appointment letters that  

they were appointed under the Centrally Sponsored Scheme.  

Hence, the Union of India requested the Court to discharge  

them  of  the  liability  of  any  payment  of  wages  to  the  

private respondents appointed by the State Government by  

issuing  orders/letters  of  appointment.   The  Division  

Bench, while accepting the stand of the Union of India,  

has observed :-  

“…However, it will be seen as discussed in this  

judgment that the appointment letters in question  

have  nothing  to  link  them  with  the  centrally  

sponsored  scheme  of  Voluntary  Workers  at  fixed  

honorarium  espoused  by  the  present  appellant.  

Neither in the assertion in the writ petitions nor  

in the appointment letters there are any contention  

to invite and fix any liability on the Union of  

India  for  minimum  wages.  Any  such  dispute  is  a  

matter to be settled by the Union of India and the  

State of Assam without effecting the rights of the  

Writ petitions.

Appeals filed by the Union of India are allowed.  

The  Union  of  India  has  no  liability  in  these  

connected  Writ  Appeals,  vis-à-vis  the  writ  

petitions…”

10)           By this order, the Division Bench of the High  

Court absolved the Union of India of the responsibility of  

making  payment  of  minimum  of  the  pay  scale  to  these  

Voluntary Female Attendants, but fixed this liability on  

the State of Assam.    

11)            Aggrieved by the judgment and order of the  

Division Bench, a Review Petition was filed by the State  

of Assam, inter alia, on the ground, that they were not  

heard before an adverse order was passed against them.  By  

an innocuous order, the Division Bench has dismissed the  

same.   Hence  the  State  of  Assam  is  before  us,  being  

aggrieved by the judgment and order of the Gauhati High  

Court  in  the  said  Writ  Appeals  and  also  against  the  

dismissal of the Review Petition.

12)          Shri. Krishnan Venugopal, learned senior counsel,  

appeared on behalf of the appellants. Shri. H.P. Rawal,  

the learned Additional Solicitor General, appeared for the  

Union of India. The private respondents were represented  

by  Sh.  Vijay  Hansaria,  learned  senior  counsel  and  Sh.  

Sanjiv Sen, learned counsel.

13)          The State of Assam has raised several grounds in  

their petitions for Special Leave.  However, at the time  

of hearing of these appeals, the learned senior counsel  

for the State of Assam contended that the State of Assam

was not arrayed as a party to the proceedings and without  

impleading the State and without affording an opportunity  

of hearing, the Division Bench ought not to have passed an  

adverse order against the State.  He further contended  

that the State of Assam was a necessary party to the lis  

before the High Court and the non-impleadment was contrary  

to the well settled principle of Natural Justice, namely  

audi  alterem  partem.  In  aid  of  this  submission,  the  

learned senior counsel has placed reliance on the law laid  

down  by  this  Court  in  the  case  of  Udit  Narain  Singh  

Malpharia Vs. Additional Member, Board of Revenue, Bihar  

(AIR 1963 SC 786), wherein it was held that in proceedings  

for a writ of certiorari, it is not only the Tribunal or  

Authority whose order is sought to be quashed but also the  

parties  in  whose  favour  the  said  order  is  issued,  are  

necessary parties and that it is in the discretion of the  

Court  to  add  or  implead  proper  parties  for  completely  

settling all the questions that may be involved in the  

controversy either suo-moto or on the application of a  

party to the writ or on application filed at the instance  

of such proper party.   

14)            We respectfully agree with the observations  

made by this Court in Udit Narain’s case (supra) and adopt  

the same.  We may add that the law is now well settled  

that a necessary party is one without whom, no order can  

be made effectively and a proper party is one in whose

absence an effective order can be made but whose presence  

is  necessary  for  a  complete  and  final  decision  of  the  

question involved in the proceeding.

15)            In the appeals filed, the State of Assam has  

specifically joined the issue with the respondents that  

the  appellant  was  neither  impleaded  as  a  party  to  the  

proceedings nor it was heard in the matter before passing  

an adverse order against it.  The specific issue raised  

reads as under:   

“c)  For that, the Division Bench of the Hon’ble  Court  while  exercising  its  review  as  well  as  writ appellate jurisdiction failed to appreciate  the facts of the case and overlooked the fact  that  the  State  of  Assam,  present  leave  petitioner, was not made party to the said 14  numbers  of  Writ  Appeals  preferred  by  the  Respondent  No.1  while  allowing  the  said  Writ  Appeals absolving the responsibility of Union of  India/Respondent No.1 from making payment of the  honorarium at the enhanced rate of Rs. 900/- per  month to the writ petitioners and imposing the  entire burden of such payment on the State of  Assam and more particularly when the State of  Assam was not made a party in the aforesaid Writ  Appeals.  In view of commission of such gross  error of law as well facts, the said impugned  order dated November 16, 2007 and judgment and  order dated September 02, 2003 is liable to be  interfered  with  for  meeting  the  ends  of  justice.”

16)            The Union of India has filed its counter  

affidavit.  It has denied various assertions made by the  

appellants, but in so far as the aforesaid assertion of  

the appellants, it is not stated by them that they had  

arrayed the State of Assam as a party to the proceedings

nor do they assert that the learned counsel for the State  

was heard in the matter.  In our view, the respondents  

must deal specifically with each allegation of fact of  

which, it does not admit to be true. The allegation of  

fact, if not denied/controverted in the counter affidavit,  

normally  it  shall  be  taken  to  be  admitted  by  the  

respondents.

17)           The learned A.S.G. Shri H.P. Rawal drew our  

attention to the observation in the impugned judgment of  

the Writ Appeal to contend that though State of Assam was  

not arrayed as a party in the Memorandum of Appeal filed,  

the learned Government Advocate was heard in the matter.  

In support of his submission, the learned ASG invites our  

attention to the following observations made by the Court  

in the course of the order :-

“5.  We  have  heard  the  learned  Sr  CGSC  and  the  

Government  Advocates  in  length,  considered  all  

relevant materials in these appeals and perused the  

judgment and order passed by the Single Benches.”

18)  Keeping  the  aforesaid  observation  in  view,  Sh.  Rawal  

urged before us that an inference can be drawn from the  

reference made in the judgment, that the State of Assam  

was heard through their Government Advocate. Therefore, he  

submits that it cannot be contended by the State of Assam  

that they were not heard before passing of the impugned  

judgment.  We are not inclined to accept this argument.

19)           State of Assam, while filing these appeals, has  

enclosed  the  copies  of  the  memorandum  of  writ  appeals  

filed by the Union of India before the Division Bench of  

the High Court. On a perusal of the same, we are of the  

view  that  in  light  of  the  grounds  raised  and  relief  

sought, the State of Assam should have been joined as a  

necessary party. The reason being, firstly, the State of  

Assam was the first respondent in the writ petition that  

was filed by the private respondents. Secondly, the main  

grievance of the Union of India was against the direction  

issued  by  the  learned  Single  Judge  to  pay  minimum  pay  

scale to the volunteers, since it is their stand in the  

writ appeal that under the scheme, their liability is only  

to the extent of `100/- per month as honorarium payable to  

Voluntary Female Attendants and anything over and above,  

requires to be paid by the State Government.  Thirdly, the  

Division Bench of the High Court has imposed the burden of  

payment  of  the  salary/wages  as  directed  by  the  Single  

Judge on the State of Assam in view of the fact that the  

appointments were made by the State Government.  In our  

view, this omission or default cannot be characterized as  

technical  breach  nor  just  an  irregularity,  since  this  

omission  has  resulted  in  a  party  suffering  an  adverse  

order without getting a fair hearing.

20)  We cannot also agree with the contention of Shri Rawal,  

learned  Additional  Solicitor  General,  that  the  learned  

Government counsel for the State of Assam was heard by the  

Division Bench before passing the impugned order for the  

reason that it is consistently held by this Court that we  

need  to  look  into  the  impugned  judgment  for  the  facts  

stated therein and not infer facts based on what is urged  

before  us.  In  other  words,  the  appellate  court  always  

proceeds on the assumption that whatever is on record in  

clear terms is the correct factual position, and not what  

can be inferred by interpreting stray observations. This  

principle is now well settled by several decisions of this  

Court. [See: State of Maharashtra v. R.S. Nayak, (1982) 2  

SCC 463; Apar Pvt. Ltd. v. Union of India, (1992) Supp (1)  

SCC 1; Registrar, Osmania University v. K. Jyoti Lakshmi,  

(2000) 9 SCC 177].  

21)  We are also unable to comprehend any possible reasons  

for the Union of India to omit the State of Assam from the  

array  of  parties  in  the  writ  appeals  filed  before  the  

Division Bench of the High Court. The fact remains that  

they were not made parties to the proceedings.  The High  

Court, in our view, while allowing the appeals filed by  

the Union of India and shifting the liability of payment  

of  salary/wages  to  Voluntary  Female  Attendants  on  the  

State of Assam, should have taken a little more care and

caution to find out whether the State of Assam is arrayed  

as a party to the proceedings and whether they are served  

with the notice of the appeals and in spite of service,  

whether they have remained absent. This is the least that  

is expected from the Court.  Without making this small  

verification, the Division Bench of the High Court has  

fixed  huge  recurring  financial  liability  on  the  State  

Government.  In our opinion, in matters of this nature,  

even by mistake of the party, the proper parties were not  

arrayed in the proceedings, it is the duty of the Court to  

see that the parties are properly impleaded.  It is well  

settled principle consistent with natural justice that if  

some  persons  are  likely  to  be  affected  on  account  of  

setting aside a decision enuring to their benefit, the  

Court should not embark upon the consideration and the  

correctness  of  such  decision  in  the  absence  of  such  

persons.

22)           In light of the above findings, we have no other  

alternative except to set aside the impugned judgment and  

remand the matter to the Division Bench of the High Court  

for de-novo hearing.    

23)           The next issue that needs our attention is: what  

is to be done to protect the interests of the private  

respondents who are working as volunteers for the last two  

decades.  Whether they should wait till the writ appeals

are decided by the High Court or whether they should be  

paid some remuneration during the interregnum.  If they  

have to be paid immediately, what is the amount and who  

should pay?  

24)           Sh. Vijay Hansaria and Sh. Sanjiv Sen, appearing  

on  behalf  of  the  private  respondents,  have  vehemently  

argued before us that the matter may be remanded only to  

decide who should shoulder the burden of payment of salary  

to the private respondents.

25)           In support of their submission, they have urged  

before us that the issue whether the liability of payment  

of salary exists or not, has attained finality. The only  

issue that requires to be gone into by the High Court is  

who should shoulder the responsibility.  It is pointed out  

that in Jalini Brahma’s case, the learned Single Judge of  

the Gauhati High Court has placed the responsibility of  

payment of salary to the private respondents and similarly  

placed persons, on all the respondents, viz. the Union of  

India and the State Government (or their functionaries).  

They further stated that the question of liability, as  

decided by the learned Single Judge, was never appealed  

against and in so far as the payment of minimum wages to  

the Voluntary Female Attendants at par with the regularly  

appointed Ward Girls has also attained finality.  They

fairly conceded that with respect to their request for  

regularization of their service, the learned Single Judge  

had  decided  against  the  private  respondents,  and  since  

they never appealed against the same, it had also attained  

finality.  Therefore, the learned counsel would contend  

that till the appeals are decided by the Division Bench of  

the High Court, the State of Assam should be directed to  

pay  the  minimum  of  the  pay  scale  to  the  private  

respondents.   

26)  Having considered the rival opinions suggested by the  

learned  counsel  for  the  parties  to  the  lis  and  also  

keeping in view the interim orders passed by this Court  

dated 20.04.2009, pursuant to which it is the State of  

Assam which is paying minimum of pay scale to the private  

respondents,  we  are  of  the  view  that  the  private  

respondents in these appeals require to be paid at least  

minimum wages payable under The Minimum Wages Act during  

the pendency of the appeals before the High Court,  by the  

State of Assam, subject to the final orders that may be  

passed by the High Court.    

27)           In view of the above, we allow these appeals and  

set aside the impugned judgment and orders passed by the  

Division Bench of Gauhati High Court and remand the matter  

to the High Court with a request to dispose of the appeals  

as early as possible, at any rate, within six months from

today after ensuring that proper parties are impleaded.  

During the interregnum, we direct the State Government to  

pay  the  minimum  wages  under  the  provisions  of  Minimum  

Wages Act, as notified in their official Gazette to the  

private  respondents.  Liberty  is  reserved  to  all  the  

parties to raise all such contentions which are available  

to  them  including  the  contentions  raised  before  this  

Court.  In  the  facts  and  circumstances  of  the  case,  we  

direct the parties to bear their own costs.  

   ………………………………J.   [ D.K. JAIN ]  

  ………………………………J.                [ H.L. DATTU  

]

New Delhi, September  30, 2010.

ITEM NO. 1-A  ( For Judgment )

           COURT No.5     SECTION XIV

              S U P R E M E   C O U R T   O F   I N D I A                            RECORD OF PROCEEDINGS

CIVIL APPEAL NOS. 8378-8392 of 2010 @ PETITION FOR SPECIAL LEAVE TO APPEAL © NOS. 6432-6446 OF 2008  

State of Assam .. Appellant(s)

   Versus

Union of India & Ors. Etc. .. Respondent(s)

                        DATE : 30/09/2010     These matters were called on for                        pronouncement of judgment today.     For Appellant(s) Mr. Avijit Roy, Adv.

for M/s Corporate Law Group, Advs.       For Respondent(s) Mr. Sanjeev Sen, Adv.

Mr.Jai Prakash Pandey, Adv.

Mr. Rajiv Mehta, Adv.

Mr. D.S. Mahra, Adv.

Mr. Shankar Divate, Adv.

Mr. Goodwill Indeevar, Adv.

Mr. Gopal Singh, Adv.                ---

Hon'ble Mr. Justice H.L. Dattu pronounced the  judgment of the Bench comprising Hon'ble Mr. Justice  D.K. Jain and His Lordship.

Leave granted. The appeals are allowed in terms of the signed  

order.  In the facts and circumstances of the case, the  parties are directed to bear their own costs.  

   [ Charanjeet Kaur ]        Court Master  

   [ Kusum Gulati ]   Court Master  

 [ Signed reportable judgment is placed on the file ]