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STATE OF'MADHYA PRADESH v.

RAMRATAN

May 9, 1980

[Y. V. CHANDRACHUD, C.J., S. MURTAZA FAZAL AU AND

D. A. DESAI, JJ.]

Disciplinary proceediflgs and second show cause notice to ternzinate the service of a government servant-No specification in the shott• cause notice of tf(e particular penalty proposed to e inflicted tind impositipn of penalty other than $UCh proposed penalty, whether bad and illegal-Constitution of India, Article 311(2) and Rule 15(4)(i)(b) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966.

Practice and Procedure-Supreme Court is not bound to set aside the order of the High Court directing reinstatement of the employee when; he has succeeded. in two Courts below-Constitution of India, 1950, Art .. 136.

Respondent Ram Ratan was empJoyed as a Forest Guard in 1the Forest Department of Madhya Pradesh Government. He was served with a barge~

sheet dated March 6, 1969, in which he was accused of misconduct. Respondent refuted the charges. A departmental eilquiry was held by the Divisional Forest Officer, Mr. Malhotra, in respect1 of the charges framed against the respondent.

Charge of misconduct was held pro\led whereupon the punishing authority served respondent with a second show cause notice dated February 12, 1970, as contemplated by Article 311(2) of !lie 'constitution os it stood prior to its E amendment in 1976.

After the respondent rep1ied to the notice the disciplinary--cum-punishing authority imposed the penalty of compulsory retirement on the respondent. The1 respondent questioned the validity and correctness of the punislunent in Civil Suit No. 227-A/73 filed by him in the Court of the Civil Judge. Civil Court.

Class II, Sabalgarh. The trial Court decreed the suit and set aside the order' imposing the m~.joI' penalty of compulsory retirement _and granted a declaration thaf respondent continues in service.

On appeal by the State of Madhya Pradesh, the Second Additional District Judge, Morena, set aside the decree of the trial Court and dismissed the suit of the respondent.

On appeal by the respondent to the High Court a learned single judge of the Madhya Pradesh High Court allowed the appeal of respondent and set aside the decree made by the District Judge and restored the one passed by the trial Court with the result that a declaration was granted that the respondent. would continue inl service till the date of his superannuation. Hence this appeal by special leave by tho State of Madhya Pradesh.

Allowing the appeal, the Court

HELD: I. Article 311(2) as it stood at the relevant time prior to its amendment in 1976 imposed a constitutional obligation upon the punishing authority to serve a second show cause notice where it was proposed after departmental inquiry to impose on the delinqueitt Governn1ent servant any or the

pcnai.t1es refererd to in Art. 311 so a~ to give a reasonable opportunity of lnaking representation on the penalty proposed.

Rule 15 ( 4) (i) (b) of the 1966 Rules prescribes proc¢ure to be fo1lo¥ied by the disciplinary authority before imposing punishtnent to the effect that the concerned authority should give1 a notice setting out the penalty proposed to be imposed on the .concen:;:ed guvernn1nt se1rvant, and calling upon him to submit within 15 days of the receipt of notice or such further time not exceeding 15 days, as may be allo, ved, such representation as he may wish to make on the proposed penalty on thel basis of the evidence adduced during the inquiry held under rule 14. 'fhe punishing authority has in the second show cause notice to specify the punishment which it tentatively or provisionally decides upon to impose looking to the gravity of the charge which is held proved. At that stage the decision of the punishing: authority is a tentative decision and in the1 very nature of things it must be so because an opportunity has to be given to the delinquent government servant to make a representation on the nature of penalty. This would imply that if the delinquent officer in his representation makes out a case tor a lesser punishment the disciplinary authority would keep an open mind and after applying its mind to the representation made by the delinquent government servant, the

authority may either confirm its earlier tentative decision or it v1ould be open to it to award a lesser penalty then the one tentatively decided. [1247 C-H]

2. Principle of naturnl justice and fair play implicit in Art. 311(2) and rule 15(4)(i)(b) would require that the disciplinary authority has to take into consideration the representation made by the delinquent gOventment servant in response to the notice which is a constitutional obligation, and if the delinquent officer is in a position to pursuade by his representation. to so mcxlulate the punishment as would accord with the gravity of the misconduct and other mitigating or extenuating circumstances' all pf which may enter into the verdict of deciding upon the penalty. and consequently the disciplinary authority would bo free to impose a lesser penalty than the. one proposed' in the0 second notice. This is the constitu.tional scheme. [1248 A-BJ

If the view, namely, that the disciplinary authority must 'tentatively decide upon the penalty and specify the penalty in the second sho"r cause notice and after taking into consideration the representation made by the delinquent government servant in response to the notice it can only confirm te tentative decision but cannot award a lesser punishment, the exercise of giving second show cause notice becomes self-defeating and giving of the notice inviting the representation -f'

on the question of penalty would be an exercise in futility. Such an approach \VOuld render a tentative decision as final and the rest being an empty formality.

Such could not be the underlying. object in enacting a constitutional n1andate for the protection of government servants. {1248 C-E]

In service jurisprudence for different types of misconduct various penalties are prescnbed in service rules. 1966- Rules prescribe M, many as 9 penalties which can be awarded for good and sufficient reasons.. Compulsory retirement is one of the major penalties. Similarly, removal from service which shall not be a disqualification for future appointment in government service and dis:nlissal from service which shall ordinarily be a disqualification for future employment under the government are the other two major penalties. The disciplinary authority keeping in view the gravity of misconduct committed by the government servant will tentatively determine the penalty to be imposed upon the- <letinquent government servant. Degree of seriousness of misconduct will ordi-

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M. P •. V. RAM RATAN 1245

nily determine the penalty keeping in view the degree of harm that each penalty can inflict upon the government servoo.t Before serving the second show cause notice the disciplinary authority will determine tentatively the penalty keeping in view the seriousness of misconduct. But this is a tentative decision.

On receipt of representation in response to notice, the disciplinary authority will apply its mind to it, take into account any extenuating or mitigat ing circumstances pleaded in the representation and finally determine what should be the penalty that would bC commensurate with the circumstances of the case. [1248 E-H, 1249 A]

If a major penalty was tentatively decided upon and a lesser or minor penalty Cannot be awarded because this wasi not the specified penalty, the govern ment servant to whom a notice proposing major penalty is served would run the risk of awarded major penalty because it would not be opea. to. award a lesser or a minor penalty than the on~ specified m the ihow cause notice. Such a view runs counter to the principle of penology. In criminal and\ quasi-criminal jurisprudence where the penalties are prescribed it ii implicit thereunder tha~ a major penalty would comprehend within its fold the minor penalty. If a major penalty is proposed looting to the circumstancei of the case, at that stage, after taking into consideration the representation bearing on the subject and having an impact on the question of penalty a minor penalty can .always be1 awarded.

In penal statute maximum sentence for each offence is provided but the matter is within the discretion of the judicial officer awarding sentence to award such sentence within the ceiling prescribed by law 8$ would bo commensurate with the gravity of the offence and the surrounding circumstances except where minimum sentence is prescribed and Court's discretion is by legislation fettered.

[1299 AD]

Therefore, if any particular penalty is specified. as tentatively proposed iii the second show cause notice the disciplinary authority after taking into consider&-- E tion the representation made by the delinquent government servant can awan:t. that penalty or any lesser penalty and in so doing Art. 311 (2 )' will not be violated. In fact, this leaves open) a discretion to the punishing. authority which accords with reason, fair play and justice. [1251 B-C]

Hukam Chand Malhotra v. Union of India, [1959] Suppl.

SCR 892; followed.

Union of India and Ors. v.

K. Raiappa Menon, [1969] 2 SCR 343; explained.

3. Supeme Court while exercising its extraordinary jurisdiction under Att.

136 of the Constitution, is not bound to set aside the order of the High Court directing reinstatement of the employee, when he has 'succeeded in the two courts below. Quantifying the backwages and the costs would accord with the G demands of social justice, reason and fairplay. [1252 D-El ·

A .

Punjab Beverages P. Ltd. v. Suresh Chand and Ors. [1978] 3 SCR 370; r -...r followed. .

Crvn. APPELLATE JURISDICTION : Civil Appeal No. 422 of 1980.

Appeal by Special Le.ave from the Judgment and Order dated the H 23-8-1979 of the Madhya Pradesh High Court (Jabalpur Bench) at Gwalior in Second Appeal No. 42 of 1979.

A S. K. Gambhir for the Appellant.

Mr. N. S. Das Bahl for Respondent.

The Judgment of the Court was delivered by

DESAI, J .-Respondent Ram Ratan was employed as a, Forest B Guard iu the Forest Department of Madhya Pradesh Government. He was served with a chargesheet dated March 6, 1969, in which he was accused of misconduct. Respondent refute>! the charges. A departmental enquiry was held by the Divisional Forest Officer, Mr. Malhotra, in respect of the charges framed against the repondent. Charge of misconduct was held proved whereupon the punishing authority served Cf respondent with a second show cause notice dated February 12, 1970,

as contemplated by Article 311 (2) of the Constitution as it stood prior to its amendment by the Constitution (Fortysecond Amendment) Act, 1976.

The dispute in this appeal centres around the construction of this notice No. E/1/2053 dated February 12, 1970, and its relevant portion macv be extracted : D

". . . the Enquiry Officer bas concluded in the report that he is guilty of the above-mentioned charges. Hence as a result of the abovesaid charges having been established, why you shall not be imposed major penalty under the M. P. Civil Services Act ? ...

Why you will not be removed from the State Service by imposing the abovesaid punishment ?"

After the respondent replied to the notice the disciplinary-cumpunishing authority imposed the. penalty of compulsory retirement on the respondent. The respondent questioned the validity and correctness of the punishment in Civil Suit No. 227 A/73 filed by him in the Court of the Civil Judge, Civil Court, Class II, Sabalgarh. The trial f Court decreed the suit and s'et aside the order imposing the major penalty of compulsory retirement and granted a declaration that respondent continues in service. On appeal by the State of Madhya Pradesh, the Second Additional District Judge, Morena, set aside the decree of the trial court and dismissed the suit of the respondent. On appeal by the respondent to the High Court a learned single judge of the Madhya Pradesh High Court allowed the appeal of respondent and set aside the decree made by the District Judge and restored the one passed by the trial court with the result that a declaration was granted that the H respondent would continue in service till the date of his superannuation.

Hence this appeal by special leave by the State of Madhya Pradesh.

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The High Court was of the opinion that strict compliance with Art. 311(2) of the Constitution along with rule 15(4)(i)(b) of the M. P.

Civil Services .(Classification, Control and Appeal) Rules, 1966 ('1966

_j__ Rules' for short) , must be insisted upon because it provides a safeguard gains_! arbitrary removal from service of Government servants.

Consistent with this approach and drawing sustenance from the decision of this Court in Unipn of India & Ors. v. K. Ra; appa Menon,(') it was held that unless the disciplinary or competent authority tentatively determines to inflict a particular penalty and specifies the particular penalty to be inflicted on the delinquent Government servant, the show-cause notice cannot be sustained without such a particular penalty being specified and the final order cannot be sustained uuless the Y-specified and no other penalty is imposed.

Article 311 (2) as it stood at the relevant time prior to its amendment in 1976 imposed a constitutional obligation upon the punishing authority to serve a second show cause notice where it is proposed after a departmental inquiry to impose on the delinquent Government servant any of the penalties referred to in Art. 311 so as to give a reasor1able opportunity of making representation on the penalty proposed. Rule 15(4) (i)(b) of the 1966 Rules prescribes procedure to be followed by the disciplinary authority before imposing punishment to the effect that the concerned authority should give a notice setting the penalty proposed to be imposed on the concerned govert:unent servant calling upon him to submit within 15 days of the receipt of notice or such further time not exceedihg 15 days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis if the evidence adduced during the inquiry held under rule 14. It would thus appear that the punishing authority has in the second show cause notice to specify the punishment which it tentatively "-.... or provisionally decides upon to impose looking to the gravity of the

~ charge which is held proved.

At that stage the decision of the punis-

1 hing authority is a tentative decision and in the very nature of things it must be so because an opportunity has. to be given to the delinquent government servant to make a representation on the nature of penalty.

This would imply that if the delinquent officer in his representation makes out a case for a lesser punishment tlw disciplinary authority would keep an open mind and after applying mind to the representation made by the delinquent government servant, the authority may either confirm its earlier tentative decision or it would be open to it to award a lesser penalty on them the one tentatively decided.

(!) [!969] 2 SCR 343.

Principle of na.tural justice and fair play implicit in Art. 311 (2) and rule 15(4)(i)(b)would require that the disciplinary authority has to take into consideration the representation made by the delinquent government servant in response to the notice which is a constitutional A obligation, and if the delinquent officer is in a position to persuade by his representation, to so modulate the punishment as would accord with the gravity of the misconduct and other mitigating or extenuating circumstances all of which may enter into the verdict of deciding upon the penalty, and consequently the disciplinary authority would be free to impose a lesser penalty than the one propsed in the second notice.

This is the constitutional scheme.

If the view that the High Court has taken is to be accepted that . the disciplinary authority must tentatively decide upon the penalty and-'( specify the penalty in the second show cause notice and after takihg into consideration the representation m>!_de by the delinquent government servant in response to the notice it can only either confirm the tentative decision but cannot award a lesser punishment, the exercise of giving second show cause notice becomes selfdefeating and giving of the notice inviting te representation on the question of penalty would be an exercise in futility. Such an approach would render a tentative decision as final and the rest beihg an empty formality. Such cotild not be the underlying object in enacting a constitutional mandate for the protection of government servants.

In service jurisprudence for difl'erent types of misconduct various penalties are prescribed in service rules. 1966 Rules prescribe as many as 9 penalties which can be awarded for good and sufficient reasons.

In the list of penalties the first three are styled as 'minor penalties' and the remaining six are styled as 'major penalties'. Com pulsory retirement is one of the major penalties. Similarly, removal from service which shall not be a disqualification for future appoint ment in govel'nment service and dismissal from service which shall ordinarily be a disqualification for future employment under the gov- 1 ernment are the other two major penalties.

The disciplinary authority keeping in view the gravity of misconduct committed by the government servant will tentatively determine the penalty to be imposed upon the delinquent government servant. Degree of seriousness of misconduct will ordinarily determine the penalty keeping in view tbe

degree of harm that each penalty can inffict upon the government scr- , van!.

Before serving the second show cause notice the disciplinary -pt authority will determine tentatively the penalty keeping in view the seriousness of misconduct. But this is a tentative decision.

Oh H receipt of representation in response to notice, the disciplinary authority will apply• its mind to it, take into account any extenuating or mitigating circumstances pleaded in the representation and finally

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cletermine. what should be penalty that would be commensurate with the circumstances of the case.

Now, if a major penalty was tent'atively decided upon and a lesser or minor penalty cannot be awarded on the view taken by the High Court because this was not the specified penalty, the government servant to whom a notice proposing major penalty is served would run the risk of being awarded major penalty because it would not be open to award a lesser or a minor penalty than the one specified i'n the show cause notice.

Such a view runs counter to the principle of penology.

In criminal and quasi-criminal jurisprudence where the penalties are prescribed it is implicit thereunder that a major penalty would comprehend withi'n its fold the minor penalty. If a major penalty is proposed looking to the circumstances of the case, at that stage, after taking into consideration the representation bearing on the subjects apd having an impact on the question of penalty a minor penalty can always be awarded. In penal statute maximum sentence for e1tch offence is provided but the matter is within the discretion of the judicial officer awardinc; sentence to award such sentence within the ceiling prescribed by law as would be commensurate with the gravity of the offence and the surrounding circumstances except where minimum sentence is prescribed and Court's discretion is by legislation fettered.

This is so obvious that no authority is needed for it bnt if one is needed, a constitution Bench of this Court in Hukam Chand Malhotra v. Union of India(') dealt with this very aspect. Relev, ant portion of the second show cause notice which was before this Court may be extracted :

'On a careful consideration of the report, and in particular of the conclusions reached by the Enquiry Officer in

resrcct of the charge< flomed against yu the Pre<idcnt is

provisionally of opinion that a major penalty viz., dismis- F sal, removal or reduction should he enforced on you .... '

Ultimately, after taking into consideration th~ representation made by the concerned government servant penalty of removal from service was imposed upon him.

It was contended before this Court that in ' view of the decision of the Privy Council in High Commissioner for India and High Commissioner for Pakistan v. I. M. Lall,(') and Khem Chand v. Union of India(') it is well settled that the punishing authority must either specify the 'actual punishment' or 'particular punishment' in the second show cause notice otherwise the notice would be had. Repelling this contention this Court observed as under :

(I) [1959] Suppl. I SCR. 892.

(2) [1948] L. R. 75 I. A. 225

(3) [1958] SCR 1080

SU~REME COURT REPORTS [ l980J 3 s.c.R.

Let' us examine a little more carefully what consequences will follow if Art. 311 (2) requires in every case that the

"exact" or "actual" punishment to be inflicted on the Govern- . ment servant concerned must be mentioned in the show cause notice issued at the second stage. It is obvious, and Art. 311 (2) expressly says so, that the purpose of the issue of a show cause notice at the second stage is to give the Government servant concerned a reasonable opportunity of showing cause why the proposed punishment should not be inflicted on him, for example, if the proposed punishment is dismissal, it is open to the Government servant concerned to say in his representation that even though the charges have been proved against him, he does not merit the extreme penalty of dismissal, but, merits a lesser punishment, such as removal or reduction in rank. If it is obligatory on the punishing authority to state in the show caue notice at the second stage the "exact" or "particular" punishment which is to be inflicted, then a third notice will be necessary if the State Government accepts the representation of the Government servant concerned.

This will be against the very purpose for which the second show cause notice was issued".

" , . . If in the present case the show cause notice had merely stated the punishment of dismissal without mentioning the other two punishments it would still be open to the punishing authority to impose any of the two lesser punishments of removal or reduction in rank and no grievance could have been made either .about the show cause notice or the actual punishment imposed".

The High Court in support of s decision has relied upon K. Rajappa Menon's rnse (Supra). The High Court appears to be of the view that the decision in Raiappa Menon's case is an authority or the proposition that if the punishing authority fails to specify any particular punishment to be imposed on the Government servant the show cause notice cannot be sustained without such a particular punishment being specified. Such was not the case before this Court in Rajappa Menon's case.

The contention canvassed before this Court was that 'if disciplinary authority specifies the penalty tentatively decic\cd upon by it, it would indicate that th~ authority has finally made up its mind and, therefore, the notice would be bad.

This conte)ltion was in terms negaliived relying upon Khem Chand's case (Supra) and it was observed that the procedure which is to be followed. under Art. 311 (2) of the Constitution of affording a reasonable opportunity includes giving of two notices, one, at the enquiry stage and

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the other when the competent authority as a result of the enquiry tentatively determines to inflict a particular punishment. It is quite obvious that mtless the disciplinary or the competent authority arrives at some tentative decision it will not be in a position to determine what particular punishment to inflict and a second show cause notice cannot be issued without such a tentative determination. This is of no assistance in the case under discussion. ·

It is thus incontroverttible that if any particular penalty is specilied as tentatively proposed in the second show cause notice the disciplinary authority after taking into consideration the representation made by the delinquent government servant can award that penalty or any lesser penalty and in so doing Art. 311 ( 2) will not be violated. In fact, this !, eaves open a discretion to the punishing authority which accords With reason, fair play and justice. ·

The fact situation in this appea'L is that in the notice dated February 12, 1970, the disciplinary authority stated that it was tentatively proposed to impose major penalty, viz., removal from service. Originru

notice is in Hindi language.

Its translation in English language is placed on record. It clearly tranpires from the notice that the punishing authority tentatively proposed to impose a major penalty of removal from service.

Ultimately, after taking into' consideration the repre-; sentation of the respondent the disciplinary authority imposed penalty of compulsory retirement. In relation to penalty of removal from service the penalty of compulsory retirement inflicts Jess harm and, therefore, it is a lesser penalty compared to removal from service.

Compulsory retirement results in Joss of service for certain years depending upon the date of compulsory retirement and the normal age of superannuation, but the terminal benefits are assured. In removal from service there is. a further disqualification which may have some repercussion on terminal benefits. It was not disputed before us that in comparison to removal from service compulsory retirement is a lesser penalty. Therefore, when in the second show notice rila.ior

penalty of removal from service was tentatively proposed, it did comprehend within its fold every other minor penalty which can be imposed on the delinquent government servant.

That having been done, no exception can be taken to it.

The High Court was accordingly\ in error in holding that the second show cause notice was invalid and on this ground allowing the second H appeal of the respondent, and decreeing his suit. Accordingly this appeal will have to be allowed. ·

The next question is, what order we should make in this appeal.

If the appeal is allowed, naturally the suit of the respondent will stand qismissed.' The respondent was a Forest Guard, a petty servant, serving in the Forest Department of the State.

The charge against him was that he removed some forest wood worth about Rs. 310.12P.

He has been in this litigation for the last 10 years.

He won in the trial court and in the High Court. This appeal wa~ preferred by the State for a decision on the question of law which may affect other cases. Allowing the State appeal would clarify the legal position and that would serve the purpose of the State in prnferring the appeal.

A welfare State would hardly be interested in pursuing its employee serving in the lower echelons of service as would inflict, unbearable .., burden on him. Further, if the order by the High Court is not interfered. ~

with, the respondent would have to be reinstated in service but by the\. . passage of time he would have by now retired on uperannuation als.o and accordingly he would be enttitled to his salary for the period commencing from date of his compulsory retirement to the date of his normal retirell)ent on superannnation.

Since we are e, xercising our extraordinary jurisdiction under Art. 136 of the Constitution, we are not bound to set aside the order of the High Court directing reinstatement of the respondent but as he would now only be entitled to his back wages, we quantify the same at Rs. 10,000/- and direct that the State shall pay the same with costs quantified at Rs. 1,000/- to

the respondent. Such an approach accords with the demands of social )' justice, reason and fair play. [See Punjab Beverages Pvt. Ltd. v. Suresh Chand & Ors.(')]

The State shall pay the amount herein directed to be paid within two months from today and the respondent shall be entitled to his terminal benefits from the date of his retirement on superannuation.

This appeal stands disposed of accordingly.

S.R.

Appeal allowed.

(I) [1978JJ

STATE OF'MADHYA PRADESH

Y. V. CHANDRACHUD, C.J.

D. A. DESAI, JJ.

Constitution of India

Article 311(2)

Constitution of India

Ram Ratan

Malhotra

February 12, 1970

Article 311(2)

State of Madhya Pradesh

Madhya Pradesh High Court

Article 311(2)

Art. 311

Art. 311(2)

Art. 311

[1969] 2 SCR 343

[1978] 3 SCR 370

A S. K. Gambhir

N. S. Das Bahl

DESAI

Ram Ratan

Article 311

Civil Services Act

Art. 311(2)

Article 311

Art. 311

Art. 311

L. R. 75 I. A. 225

Art. 311

Art. 311

K. Rajappa Menon

Raiappa Menon

Rajappa Menon

Khem Chand

Art. 311

Art. 311

Forest Department

Art. 136


NISHI MAOHU ETC. ETC.

l. ,

STATE OF JAMMU AND KASHMIR AND ORS.

May 9, 1980

[A. C. GUPTA, S. MVRTAZA FAZAL ALI AND P. S. KAILASA.'11'., JJ.J

Selecrion t>f candidates admitted to the: G01•ernment Medical College, Jan1mu-Whe1her the notifications issued by the Government of Jammu and Kashmir indicating different categories under clause (2) and earmiirking seats arbitrary and unconstitutional-Articles 14 and 15 of the Constiution--lnter view method of selection whether a valid test.

The selection of ca.ndidates admitted to the Government Medical College, J ammu are to be made in accordance with the manner and procedure laid down in the various orders issued by the Government of J ammu; and Kashmir from time to time. The earliest order made on July 9, 1973 concerns admission t6 technical institutions which include medical colleges and says that ''the man power requirements of various parts, of the State have not received unifc-nn and equal treatment with the result that there has been imbalance in the development of human resources in these parts", and "since the admissions to technical institutions also lead to the development of human resources'~, it had, therefore, "become necessary to provide equal opportunities to the permanent residen~ candidates of all parts of the State and all sections of the. society,'. Asi per this order 50% of the seats were eMmarked for selection on open competition, 25% of the seats were reserved for candidates belonging to the categories specified in clause (2) of the order according to the percentage indicated against each. It was further provided in the order that after selection, as above,,: the remaining 25 % of the seats "should be filled on the basis: of inter se merit to ensure rectification of imbalance in the admissions for various parts of the State, if any~ so as to give equitabler and uniform treatment to those parts". In case there. was no ''visible imbalance" or where no candidates were available under a particular category mentioned in clause (2) above the seats earmarked under these two heads "shall be added to the percentage under [clause] I above". The annexure to the order contained instructions concerning the "idenUfication of th.e persons claiming benefit" under cJause 2 of the order and "the procedure connected therewith". The instructions defined the different categories men tioned in clause (2) :

"Areas adjoining actual line of control-Candidates permanently

residing in any village of the' State specified in Appendix I to these' G instructions''.

"Bad pockets-Candidates permanently residing in any village of the State specified in Appendix Il to these instructions".

"Social Castes-Candidates of the State belonging to any of the castes indicated in Appendix Ill to these instructions".

The instructions also provided for the issue of a certificate by tho concerned authority stating that a candidate fell under any of the categories.

on June 27, 1974 another order was issued refixing the percentage of seats reserved for the different categories "with a view to affording more accommo-o dation for open merit". Open merit perc.entage was increased to 60, by reducing by 5 % the percentage of seats allotted for children of freedom fighters and by reducing the percentage of seats of 25% earmarked to ensure "rectification of imbalance" from 25% to 20%. 3% of seats reserved for candidates from areas known as. bad pockets which included Ladakh under the category "socially and educationally backward classes" was reduced to 1 t; O and the resultant diff~ rence of 2% was earmarked to candidates from Ladakh which was excluded from the above category. By another order dated April 21, 1976, the existing reservation of 20% for meeting regional imbalance \V<i.'S reduced to I 8 'lo and the .. resultant 2 % vacancies earmarked for candidates possessing outstanding proficiency in sports". An order made on April 16, 1976 earmarked. 10 seats at the Governn1ent Medical College, Jammu, for girl students "subject to enough girl students being found otherwise suitable''. The ordeii also laid down the procedure to be followed by the selection committee in selecting cand!dates fer admission to technical training course.

By this order, comparative performnnce Qf the candidates at an interview to be; conducted for the purpose by the selec~ tion committee was made the only basis of selection.

The order added that the marks obtained by a• candidate in the qualifying university examination should

be taken into consideration only to determin~ the initial eligibility to compete for selection. This order was modified by a subsequent order issued on April 3, 1978. Instead of the marks obtained. by a candidate in the qualifying university examination being treated as relervant only to determine eligibility, the subsequent order provided : "there will be 100 ma-rks for academic merit 'vhich shall be allotted to each candidate in accordance with the percentage of marks secured by hifl1/her in the basic qualifying examination or its equivalent". This order further provided that 50 marks would be allotted for interview:, 10 marks for each of the five factors : physical, fitness, personality,_ aptitude general knowledge and general intelligence.

By notification published in the Jammu and Kashn1ir Government Gazette on June 21, 1979 applications were invited for admission to the M.B.B.S. course in the aforesaid college.

Only those candidates who had passed the Pre-Medical or Inter-Science or First Year T.D.C. (Medical Group) examination from the University of Jammu or any other equivalent examination 3.nd had secured not less than 50 per cent marks in science subjects in aggregate (theory and practical) were eligible to apply for admission; however, for scheduled castes. scheduled tribes Bakarwal and Gujjar candidates and candidates from Ladakh district and 'Bad pockets' the qualifying marks was 45 per cent. Candidates. who had been selected or nominated by the Government of Jammu and Kashmir or had been alrady selected by a selection committee constituted by the Government' for any training course in or outside the State were not eligible to apply or to appear for interview for admission to this college. The notification added : "Comparative merit of the candidates will be adjudged with respect to physical fitness, aptitude, personality, general knowledge and general inte1ligence1 in the interview, for which marks will be a.warded according to the perlormance of the candidates". It was further provided that the selection would be made in accordance with the manner and procedure laid down in the various orders H issued by the Government from time to time. The total number of seats filled by selection in this college for the year 1979-80 was 52. The candidates numbered 526, out of which 473 actually appeared for interview. In addition 10

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NISHI MAGHU v. J. & K. 1255

seats were filled by candidates nominated by the Government. The nomina- A tions had to be made only from two sources : \vards of non-resident Defence personnel, and students from other states.

The petitioners challenged the selection of candidates admitted to the Government Medical College, Jammu for the academic year 1979-80 as bad and that the categories mentioned in the several orders as arbitrary and unconstitu tional.

HELD : 1. The classification made for rectification of regional imbalance is vague and the selections (serial Nos. 43 to 51 to the List) made under this head are invalid for the following reasons : [1263 C-D, J

(i) The notification dated June 21, 1979 by which applications were invited for admission to the medical college provided thatr the selection of candidates would be made in accordance with the manner and procedure laid down in the C va•rious orders issued by the Government from time to time, but none cf these orders contains an explanation 9ffered in the supplenientary affidavit filed by the State of J ammu & KaShmir that '~ " ...... the State Government has found that for peculiar historical, geographical and topographical reasons there prevails an imbalance in the matter of development of the various part<> of the.

State which has resulted in certain areas being ba.ck\var~ as compared with the rest. In order therefore to rectify the distinction which inevitably would other- D wise creep in to the selection, the State Government has reserved 18% of seats for rectification of such imbalance". Even with thiS explanation~ the affidavi~ does not identify the area of imbalarice. There was thus no objective standard to guide the selection committee.

[1261 E~H, 1262 A]

(ii) Even in the supplementary affidavit it is not claimed that the area of imbalance is only another name for the areas adjoining the actual tine of con- E trol and the bad pockets, as contended on behalf of the State. What is said in the affidavit is that the areas of imbalance are similar to thei aforesaid areas in being equally backward. But this does not mean that these categories are all identical and co-extensive in all respects.

Further in spite of similarity, even areas adjoining the actual line of control and the bad pockets. have been put under different categories; and [1262 B-DJ

(iii) The contention was that the classification was justified on the report of the Anand Committee. The Selection Committee was required to follow not the Anand Committee report but what was provided in the orders passed by the Government. There is no order containing any reference to the Anand Committee Report. Neither the Government adopted the Anand Committee's report nor did the Selection Committee; proceeded on the basis of that report.

Though tlie Anand Committee did not accept "social castes" as a category indicative of backwardness, the Selection Coinmittee has selected one candidate under this category which clearly shows that the Selection Committee was not guided by the Anand Committee Report, the selection made was not and could not be on the basis of that report. [1263 A-CJ

2. In Janki Prii.sad Parimoo and Ors. etc. etc. v. State of Jammu and Kashmir and Ors., [1973] 3 SCR p. 236, the Supreme Court did not approve 4 out of 23 "low social castes" mentioned in the Wazir Committee Report "as educationally and economically .extremely backward'', as having no basis for inclu-

1256 SlJPRE:VIE COURT REPORTS [1980] 3 s.c.R.

A sion in the List. In Appendix III, 19 of these castes have been retained which were not disapproved in Parimoo's case. Chapter XIlI of the Wazir Committee report makes it clear that the classification is with reference to the nature of occupations which the people belonging to this category pursue. That being so, the classification does not offend Article 14 or Article 15 of the Constitu tion.

The selection of Edwin Khakkar, a Christian is in order since he falls under one such category listed and since the category is based on occupation B and not on caste as such.

[1263 G-H, 1264 A-BJ

3. The areas adjoining actua1 line of control and bad pockets are rea.lly backward areas and the residents of these areas are indisputably socially and educationally backward. Reservations made for such candidates from such back\vard classes cannot be said to offend Article 14 of the Constitution.

[1264C-D]

Janaki Prasad Parimoo and Ors. etc. v. State of Jammu & Kashmir and Ors., [1973] 3 SCR p. 236; followed.

4. Though the contention that "interviewing candidates to judge their sullability was not a reliable test as many uncertain factors were likely to affect the result of the interview" reflects a legitimate point of view, but it is

a point of view only and cannot be taken as the last word on the subject.

D However, it is impossible within allotted span of time (4 minutes) to make a fair estimate of a candidate's suitability on a consideration of the five specified factors which are not capable of easy determination such as physical fitness, persooolity, aptitude, general knowledge and general intelligence.

By merely looking at a candidate, the selection committee could not come to a conclusion about on.p's physical fitness. Therefore, the fact that the allotment of marks is in accordance with a policy decision may not conclude E the matter in all circumstances; if that decision is found to be arbitrary and infringing Article 14. of the Constitution it cannot claim immunity from challenge.

[1264 E-H, 1265 G-H, 1266 AJ

R. Chitralekha and anr. v. State of Mysore and Ors. [1964] 6 SCR 368; A. Peeriakaruppan etc. v. State of Tamil Nadu and Ors., [1971] 2 SCR 430; distinguished and held inapplicable to the facts of the instant case.

5. The selection under the category "wards of Medical College Staff" is invalid as such a category does not find place in any of the orders. [1266 G-H] j

6. Reservation for students from other States on reciprocal basis, as seen from Anita Jain's case bas not worked in practice and she is entitled to a seat. Nor did the two clauses 17 and 18 of the notification dated June 21, G 1979 apply to Kulbbusban Gupta since be was not selected or nominated by the Government of J ammu and Kashmir for admission to the Engineering College nor was he selected by any selection committee constituted by the Government of fammu and Kashmir.

[1267 E-H, 1268 G-H]

ORIGINAL JUR1smcnoN: Writ Petition Nos. 1488-89, 1556-57, H 1571/79 and 29, 201, 222, 249, 260-263, 267, 268-271, 278, 279, 304, 305. 309, 310 and 326 of 1980.

(Under Article 32 of the Constitution)

1 41

't~ • •

Iii

• .I ..

~--

NISHI MAGHU v. :r. tit 'K. (Gupta, !.) 1257 ' Anil Dev Singh, S. s. Jauhar and Lalit Kumar Gupta for the Peti- A tioners in WP Nos. 148~-89, 1571/79 and 304, 309-310/80.

A nil Dev Singh and S. K. Sabharwal for the Petitioners in WP Nos.

JI,., 201, 249, 267, 278, 279 and 326/80.

Naunlt Lal for the Petitioners in WP Nos. 1556-57 /79, 29, 222, 260-63, 268-271 and 305/80.

S. N. Kackar for the Respondent in WP Nos. 1488-1489/79 .

Y. S. Chitale and.Mukul Mudgal for the Respondent in WP Nos. 1556-1557 /79.

Alta/ Ahmed for Respondent Nos. 1-3 in WP 1488 and RR. 1-6 in WP 1489 /79 and in all the matters.

ATM Sampath and P. N. Ramalingam for RR. 7 in WP No. 1488/79 and 1551-1557 /79.

C.S.S. Rao for RR. 12 in WP No. 1488/79.

S. P. Gupta, V. K. Pandita, R. Satish and E. C. Agarwala and

Dwarka Nath Gupta for the Intervener i:n WP Nos. 1556-1557 /79.

D A. K. Sen, V. K. Pandita, R. Satish, S. P. Gupta, Dwarka Nath Gupta and E. C. Agarwala for the Intervener in WP Nos. 1488-1489/ 79.

L. M. Singhvi (Dr.), L. K. Pandey and Mr. Naunit Lal for the I Petitioner in WP No. 29/80.

The Judgment of the Court was deilvered by

GUPTA, J.-The selection of candidates admitted to the Government Medical College, Jam.mu, for the academic year 1979-80 is challenged in these petitions under Article 32 of the Constitution by some of the candidates who were not selected. By notification published in the Jam.mu and Kaslunir Government Gazette on June 21, 1979 appli- F

' cations were invited for admission to the M.B.B.S. course in the aforer said college. Only those candidates who had passed the Pre-Medical or Inter-SCience or First Year T.D.C. (Medical Group) examination from the University of Jam.mu or any other equivalent examination and had secured not less than 50 per cent marks in science subjects in aggregate (theory and practical) were eligible to apply for admission; however, for scheduled castes,, scheduled tribes, Bakarwal and Gujjar candi- dates and candidates from Ladakh district and 'Bad Pockets' the. qualifying marks was 45 per cent Candidates who had been selected or nominated by.the Government of Jammu and Kashmir or had been already selected by a selection committee constituted by the Government

for any training course in or outside the State were not eligible to apply

c;>r to appear for interview for admission to this cOllege. The notification

21-610 SCI/80

added : "Comparative merit of the candidates will be adjudged with respect to physical fitness, aptitude, personality, general knowledge and general intelligence in the interview,. for which warks will be awarded. according to the performance of the candidates". It was further provided that the selection would be made in accordance with the manner and procedure laid down in the various orders issued by the Govern- B . ment from time to time. The total number of seats filled by selection in this college for the year 1979-80 was 52. The candidates numbered 526, out of which 4 73 actually appeared for interview. In addition

10 seats were filled by candidates nominated by the Government. It appears from the supplementary affidavit filed on behalf of the State of c Jannnu and Kashmir that the nominations had to be made only from two sources : wards of non-resident Defence personnel, and students from other States.

Before we proceed to .consider the grounds on which the selection is challenged, it will be necessary to refer to the contents of the orders issued by the Government of J ammu and Kashmir to regulate the selection. The earliest order which is relevnt in this context was made on July 9, 1973. This concerns adntission to technical institutions which include medical colleges. The order starts by saying that ''the man power requirements of various parts of the State have not received uniform and equal treatment with the result that there has been imbalance in the development of human resources in these parts", and ''since the admissions to technical institutions also lead to the development of human resources", it had therefore "become necessary to provide equal opportunities to the permanent resident cndidates of all parts of the State and all sections of society". The order then lays down the following rules for admission until further orders, it is said, with the aforesaid F object in view :

( 1) 50 per cent of the seats "should be straightaway earmarked for being filled upon the basis of open merit in accordance with the criteria to be adopted by the concerned selection committee constituted by the Government in this behalf''.

(2) Of the remaining seats, 25 per cent is reserved for candidates falling under the categories specified below to the extent indicated against each, to be filled on the basis of merit in each category : ·

(a) Scheduled castes.

(b) Children of freedom fighters.

{ c) Children of permane!lt resident Defence personnel.

..It ' .. • • •

i f

~ ..

NIS!ll MAGHU v. J. & K. (Gupta, /.) 1259

( d) Candidates belonging to the following socially and educationally back.ward classes at recommended by the Backward Classes Committee; ·

(i) Areas adjoining actual line of control

(ii) Areas known as bad pockets including Ladakb..

(iii) Social castes

39'o

It is further provided in the order that after selection as indicated in clauses (1) and (2) above had beeu made, the remaining 25 per cent of the seats "should be filled on the basis of inteHe merit to ensure rectification of imbalance in the admissions for various parts of the State, if any, so as to give equitable and uniform treatment to those parts". It is added that in case there is no ''visvble imbalance"· or where no candidates are available under a particular category mentioned in' clause 2 above the seats earmarked under these two heads "shall be added to the percentage under 1 above".

The selection committee while making selections is required by the

ord~ to indicate separately the category under which a candidate falls.

There is an annexure to the order contauung instructions concerning the "identification of the persons claiming benefit" under clause 2 of the order and the "procedure connected therewith".

The instructions define the different categories mentioned in clause (2). For the present purpose it will be necessary to refer to the definitions of "Areas adjoiming actual line of control", "Bad pockets'', and "Social castes".

"Areas adjoining actual line of control-Candidates permanently residing in any village of the State specified in Appendix I to these illlstructions."

"Bad pocket8-eandidates permanently residing in any village of the State specified in Appendix II to these instructions." ·

"Social castes-eandidates of the State belonging to any of the castes indicated in Appendix III to these instructions."

I The instructions also provide for the issue of a certificate by tlie B concetnecl authority stating that a candidate falls under any of ' the categories.

SIJPREME COURT REPORTS [1980] 3 s.c.R.

A On June 2 7, 197 4 anoµier order was issued refuting the percentage of seats reserved for the different categories "with a view to affording more accommodation for open merit".

The following changes were made to the earlier order:

( 1) Instead of 50 per cent, 60 per cent of the seats is now earmarked for admission on the basis of "open merit".

(2)

(3)

Instead of 25 per cent, 20 per cent is earmarked for admission under the categories mentioned in clause 2 of the order dated July 9, 1973. The percentage of seats allotted for children of freedom fighters is reduced from 7 per cent to 2 per cent. Under the category "socially and educationally backward classes" the earlier order had reserved 3 per cent of the seats for candidates belonging to areas known as bad pockets including Ladakh, by this order Ladakh is excluded from that category reducing the percentage of seats from 3 per cent to 1 per cent and a separate category has .been made for candidates from the Ladakh district allotting 2 per cent of the seats to' them.

Whereas in .the earlier order 25 per cent of the seats was earmarked to ensure rectification of imbalance, here the figure is reduced to 20 per cent.

About two years later, on April 21, 1976 another order was issued reducing the existing reservation of 20 per cent for meeting regional imbalance to 18 per cent and allotting "the resultant 2% vacancies" for candhlates "possessing outstanding proficiency in sports".

It is necessary to refer to two more orders.

An order made on April 16, 197 6 provides that 10 seats at the Government Medical College, J ammu, shall be earmarked for girl students "subject to G enough girl students being found otherwise suitable". The order also lays down the procedure to be followed by the selection committee in selecting candidates for admission to technical traimng courses. By this order, comparative performance of the candidate.s at an interview to be conducted for the purpose by the selection committee is made the only basis of selection.

The order adds that the H marks obtained by a . candidate in the qualifying university examination shall be taken into consideration only to determine the initial eligibility to compete for selection. This order was modified by a

.. •

' ' \

~~ ; ,,,_ . '.ifk~--

subsequent order issued on April 3, 1978. Instead of the marlcs obtiiined by a candidate in the qualifying university examination be- . ing treated as relevant only to determine eligibiJ.ity, the subsequent order provides: "there will lie 100 marks for academic merit which shall be allotted to each candidate in accordance with the percentage of marks secured by him/her fo the basic qualifying examination or its equivalent".

This order further provides that 50 marks will be allotted for interview, 10 marks for each of the five factors; physical fitness, personality, aptitude, general knowledge and general intelligence.

Some of the categories mentioned in these orders have been challenge9 as arbitrary and unconstitutional.

We may begin witli the classification made for 'rectification or regional imbalance' for which

18 per cent of the seats is reserved.

The crilicism is that the order creating this category does not identify the . areas which suffer from imbalance nor does it S'UQPly any guidelines for the selection committee. It appears that the selection committee has admitted 9 candidates under this head whose names appear at serial Nos. 43 to 51 D

of the list of selected candidates annexed to .the supplementary affidavit filed on behalf of the first respondent, State of Jammu and Kashmir.

How exactly the selection committee understood what regional imbalance was and on what basis they accepted certain areas of the State as suffering from imbalance is not known.

The supplementary affidavit seeks to explain the category as follows : " .... the State Government has found that for peculiar. historical, geographical and topographical reasons there prevails an imbalance m the matter of development of the various parts of the State which has resulted i!ll certain areas being backwarl! as compared with the rest. In order therefore to rectify the distortion which inevitably would otherwise creep into the selection, the State Government has reserved 18% of seats for rectification of such imbafance" . . The affidavit refers to the disadvantages suffered by areas which adjoin the actuai line of control and the bad pockets and states: "likewise there are other areas in the. State which have recived lesser att- . ention in the past in the matter of economic development These

areas, inter alia, are either inaccessible on account of difficult geographical terrain or suffer from difficult climatic condition .... Naturally therefore the human resources from those areas have also not developed". It may be recalled that the notification dated June 21, 1979 by which applications were invited for admission to the medical college provided that the selection of candidates would be made in accordance with the manner and procedure laid down in the various orders issued by the Government from time to time, but none

, .

of these orders contains an explanation as the one now offered .in the supplementary affidavit.

Even with this explanation the affidaVit does not identify the, areas of imbalance. There was thus no objec- J. tive standard tel guide the selection committee. Mr. Kacker appearing for the State of J ammu and Kashmir sought to argue that by area of imbalance what was meant was really the same thing as areas adjoinll ing actual line of control and bad pockets. But in all the orders issued by the Government from time to time the area of imbalance has been treated as a distinct category. Even in the supplementary affidavit it is not claimed that the area of imbalance is only another name for the areas djoining the actual line of control and the bad pockets, what is C said is that these are similar in being equally backward. But this does ....... . not mean that these categories are all identical and co-extensive in all •.

respects. It will be noticed that, in spite of the similarity, even areas

adjoining the actual line of control and the bad pockets have been put l!lilder different categories.

Mr. Kacker also urged that as the areas suffering from imbalance were backward areas, constituting a separate category for candidates coming from such backward areas was in accordance with . the report of a committee headed by Mr. Justice Anand of Ja.mmu

and Kashmir High Court. The Anand Committee w:is appointed on August 24, 1976 to examine and remove defects in the Jammu and Kashmir Soheduled Castes $d Backward ClasSes (Rese1'Va6on) Rules, 1970 and the Jammu and Kashmir Scheduled Castes and Backward Classes (Reservation of Appointment by Promotion) Rules 1970.

These rules were framed on the basis of the recommendations of a committee, called the Wazir Committee, set up in 1969 for drawing up a list ol' back.ward classes in the State.

Mr. Justice J.N. Wazir, a former Chief Justice of Jammu and Kashmir High Court, was the Chairman of this Committee. The Wazir Committee submitted its report in November 1969 recommending several classes of citizens to be clisrufied as backward classes.

The validity of these Rules came up for .scrutiny before this Court in Janki Prasad Parimoo G and others etc. ef(:. v. State of Jamrnu and Kashmir and others.('} In Parimoo's case certain defects in the 1970 Rules were pointed out and the Anand Committee was constituted, as stated already, "with a view , to examine removal of. defects" in the 1970 Rules. The Anand Committee sbmitted its report in September 1~77. Mr. Kacker drew our attention to the fact that the report was debated on the fibor of both H houses of the Jammu and Kashmir !egislatilre which resolve.I as

(1) [1973] 3 S. C. R. 236

j '

' 1

follows : "The report need to be adopted by the Government as .quickly as po5sible and rules made so that the backward classes could -Oerive benefits quickly''. It is no! necessary to examine whether the ' Anand Commitree report identifies the areas of imbalance in the State

.because the selection committee was required to follow not the Anand • Committee report but what was provided in the orders passed by the

Government. There is no order containing any reference to the Anand .Committee report. There iSi also nothing to show that the Government

had adopted the report of that the selection committee proceeded on the basis of tliat report. It appears from page 59 of the Anand , r • • Committee report that the Committee did not accept "social castes" Y as a category indicative of backwardness, but the selection committee has selected one candidate under this category which plajnly shows that the selection committee was not guided by the Arland Committee report. There can be no doubt that the selections made were not mid could not be on the basis d that report. It must therefore be held that the classification made for rectification of regional imbalance without identifying the areas suffering from imbalance is vague and the selections made under this head are accordjngly invalid.

In support of this contention tha_t area of imbalance was only anothec name for bad pocketSi or areas adjoining actual line of control, Mr. Kacker claimed that the 9 candidates selected for 'rectification of imbalance' an came from either bad pockets or froin areas adjoining actuail line of control The claim was questioned by the petitioners who sought to disprove it by reference .to the material on record. We do not consider it necessary to examine the individual cases here. . It may be that some of these candidates really came from areas adjoining actual line of control or bad pockets, yet they cannot be accommodated unless the percentage d seats reserved for these two categories was raised.

Another category under challenge is "social castes''. Included in

this category are candidates of the State belonging to any of the castes indicated in appendix m to the instructpns forming part of the order G dat!ld, JUiy 9, 1973 to which reference has already been made. The Wazir Committee in their rep9rt mentioned 23 low social castes "as

educationally and economically extremely backward" but 4 of them have been held 'by this Court in Parinwo' s case as having no basis for inclusion in the list. In appendix m 19 of these castes have been retained which were not disapproved in Parinwo's case. Chapter XIII R , of the Wazir Committee report makes it cleiµthat the classification is with reference to the nature of occupations which the people belong-

SUPREME COUR.T REEORTS

[1980] 3 $.C.R.

ing to this category pursue. That being so we find no substance in. the challenge that the classification offends Article 14 or Article 15 of the Constitution. Under this category only one candidate has been selected whose name, Edwin Khokkar, appears at serial No. 33 in the list of selected candidates annexed to the supplementary affidavit filed on behalf of the State of Jammu and Kashmir.

An objection was raised against his selection that he being a Christian, as his name s; hows, could not belong to any of the castes mentioned in appendix III. But as the category is based on occupation and not on caste as such, the objection must be overruled.

The classifications based on areas adjOiJiliig actual line of control ( ., and bad pockets are also challenged as violative of Article 14 of the 1 Constitution. These are really backward areas and the residents of these areas are indisputably socially and educationally backward.

Reservations made for candidates from such backward classes cannot be said to offend Article 14. In fact in Parimoo's case the rese, rvation made for residents of bad pockets which were identified in the report of the Wazir Committee, was accepted .'llS valid. We therefore hold. that the challenge to these two categories is not justified.

Apart from the challenge to some of the categories mentioned in the Government orders, the validity of interview as a test for selection has also been questioned, not only in principle but also 'in regard to the manner in which it was conducted. It was contended that interviewing candidates to judge their suitability w:i.s not a reliable test as many uncertain factors were likely to affect the result of the interview.

The criticism reflects legitimate point of view but it is a point of view only and cannot be mken as the last word on the subject.

In this connection we may refer to the observations of this Court in R.

Chitralekhd and another v. State of Mysore and others : (') "In the f. field of education there are divergent views as regard the mode of tesir ing the capacity and calibre of students in the matter of admissions to colleges.

Orthodox educationists stand by the marks obtained by a:

' "

student in the annual examination. The modern trend of opinion ..[ insists upon other additional tests, such as interview, performance in extra-curricular activities, personality test, psychiatric test etc.

Obviously we are not in a position to judge which method is preferable l or which test is .the correct one". In A. Periakaruppan, etc. v. State

of Tamil Nadu awl others(') this Court said : "In most cases the first impression need not necessarily be the best impression.

But under tlte

(!) (19641 6 S. C. R. 368.

(2) (1971] 2 S. C. R. 430.

existing conditions in ibis country we are unable to accede to the con- A. tention of the petitioners that the system of intrview as in vogue in this country is so defective as to make it useless".

In almost all the writ petitions before us the onil test as conducted has been described as a "farce". The criticism is based on the allegation that the time spent on each candidate was between t and 2 minutes within which, it was contended, one could hardly assess the suitability of the candidate on a consideration of the five factors : physical fitness, aptitude, personality, general knowledge and general intelligence, some of which are also difficult to evaluate objectively.

In an affidavit filed on behalf of the State of J ammu and Kashmir,

•C' sworn by Dr. A. H. Fazli, Professor of Pharmacology, Srinagar, who was one of the members. of the selection committee, it is stated that on an average the time spent for interview was "4 minutes per candidate".

Mr. Kacker for the State of Jammu and Kashmir submitted that it was a policy decision by the Government to convert the full marks of the qualifying examinations to 100 marks and allot 50 marks for interview for l:he purpose selection.

He explined that the conversion was necessary because the candidates had appeared in different qualifying examinations and the total marks in the different examinations varied between 550 and 300. It was pointed out on behalf of the writ petitioners that allotment of 50 marks for interview after reducing the total marks of the written examination, where it was 550 to 100, amounted to allotting 275 marks for interview as against 550 marks for written examination. It was contended that this was beyond all reasonable proportion especially considering .the fact that only 4 minutes were spent in evaluating a candidate's performance in the intervie, w. Our attention was drawn to Periakaruppan's case where -Olis Court thought "earmarking 75 marks out of 275 marks for intervillW

as interview marks prima fade appears to be excessive". However the conclu.<ion reached in Periakaruppan' s case on the point was : "While we do feel that the marks allotted for interview are on the high >ide and it may be appropriate for the Government to re-examine lho question, we are unable to uphold the contention that if was not within the power of the Government to provide such high marks for interview ...... ". Reserving 50 marks for interview out of a total of 150 (100 for written examination and 50 for interview) does seems excessive. especially when the time spent was not more than 4 minute' on each candidaie. It is difficult to see how it is possible within this short span of time to make a fair estimate of a candidate's suitability on a consideration of the five specified factors which are not capable of easy . determination, such as physical fitness, personality aptitude,. general knowledge and general intelligence. It is also not clear how by1

-.y

'Cl

merely looking at a candidate the selection committee. could come to a conclusion about his or her physical fitness.

The fact that the allotment of marks is in ac; cordance with a policy decision may not conclude the matter in all circumstances; if that decision is found to be arbitrary and infringing Article 14 of the Constitution, it cannot claim immunity from challenge. When we say this we are not unmindfl)l of the observations in Per/akaruppan's case quoted above, . which were made in a somewhat similar but not altogether identical situation. It wiis also contended for the writ petitioners that reserving such high marks for interview leaves room for discrimination and manipulation. It has been held in Chitralekha' s case that the faC! that a system is capable of abuse is not a ground for quashing it. There is y no reliable material before us to prove that there has been discrimiqa- !ion or manipulation of the interview marks in any of these eoases.

That being so, and considering the possible hardship, if the selections were now 'Set aside, to the students in whose case the validity of the selection canuot otherwise be questioned and who have nearly completed two terms, we are not inclined to annul the entire selection, though allotment of 50 marks for interview in the circumstances stated above seem to us excessive. However, we expect the Government of Jamrtm and Kashmir to reconsider the matter in the light of what we have sa.id above and, other things remaining the same, for future years to reduce the percentage of marks allotted for interview to a reasonable proportion of the total marks for the selection test.

Counsel for the petitioners in Writ Petitions 1556-57 of 1979 sought '

to make a point that the regulations framed by the Indian Medical Council under the Indian Medical Council Act, 1956 do not c:ontemplate interview as a selection device regulating admission of students.

The position is not so clear from the affidavit filed on behalf of the petitioners and in any case these regulations came into effect after the j interviews were concluded in September 1979.

The selection of one candidate has been questioned on the , groundi that he does not fall under any of the categories mentioned in the orders. Shri Sanjay Pathania whose name appears at serial No. 52 in the list of candidates annexed to the supplementary affidavit filed on behalf of the St&te of .J ammu and Kashmir appears to have been selected under the category "Ward~ of Medical College Staff". It was argued that this category is not based on a valid classification' and infringes Article 14 of the Constitution.

It is not necesi; ary ta exanilne the validity of the classification for. the simple reason that this is not a category mentioned in any of the orders. That being so the selection of Shri Pathania must be set aside.

~··

Earlier in this Judgment it has been stated that following a request 1llllde by the Government of India 10 per cent of the seats in the College was reserved for tudents from other States on reciprocal basis.

This was a policy decision.

However, the way the policy has been worke(! is criticised by the writ petitioner in writ petition No. 29 of

1980, Miss Anita Jain.

Pursuant to this policy 5 students from Rajasthan and 1 from Andhra Pradesh were admitted to the Government Medical College, J ammu.

Miss Jain states that she was a candidate for admission to the Medical College, Jammu, for the session 1919-80. On November 8, 1979 the Government of )ammu and Kashmir informed her by a letter that she had been nominated for tj admission to the first year M.B.B.S. course in one of the medical coll' 1egei; in Madhya Pradesh.

When she went to Bhopal for admission on the basis of the said letter she was refused admission on the ground that the State of Jammu and Kashmir had not admitted nominees of the Madhya Pradesh Government and unless they were admitted she

would not lie admitted to any medical college in the State of Madhya Pradesh. Her grievance is that even after she had informed the Government of Jammu and Kashmir of what had happened, the Government did 11ot take 1111y step to get her admitted to any medical college in the State or outside. It does not appear from the affidavits filed by the State of Jammu and Kashmir if the candidates admitted to the Government Medical College, J ammu, from outside the State are equal in number to those from the State who have been nomil; ated for admission to outside institutions, anq on what basis the nominations, whatever the number is, have been made. Anita Jain's case makes it clear that the reciprocity policy, has not worked as it should have.

Miss Jain's counsel informed us that Miss Jain was willing to go to

aaiy State for admission to a medical college.

Having npminated her for admission to an outside institution, we do not think the Govern-

\< ment can avoid responsibility now.

We therefore direct the first res-

~ pondent, State of Jammu and Kashmir, to find her a seat in any medi- •Cal college outside the State on the basis of reciprocity, unless as a result of our Judgment a few more seats are available in the medical .college at Jammu and she is entitled to one of them on merit. For

disposing of this writ petition it is not necessary to dilate on the problems that failure of the reciprocity policy in Miss Jain's case brings to prominence.

It now remains to deal with two more individl!'al cases, one of improper nomination and the other of unjU:St rejection. In the list of nominated candidates, the name of Harish Kumar appears against 11erial No. 62.

Nomination, as stated earlier, was to be made from two classes of students--<:andidates from outside the State nf Jammu

and Kashmir and wards of Defence personnel (non-residents). There is no dispute that Harish Kumar belongs to the State of Jammu and Kashmir and it is not claimed that he falls in the other class.

There was therefore no basis on which .!:Iarish Kumar could be validly nominated. Mr. Kacker; counsel for the State of Jammu and Kashmir, also did not try to justify Harish Kumar's' nomination.

Harish Kumar's admission to the medical college must therefore be set aside.

The petitioner in writ petition No. 201 of 1980\Kulbhushan Gupta • obtained 104 marks out of total 150 marks.

Of the 31 candidates who were selected on open competition, the one whose name appears 25th in order of merit got 103.25 marks out of f50.

But Kulbhu-\.r shan Gupta was not selected on the plea that he had been selected '\. earlier for Regional Engineering College. The notification dated Junec ' 21, 1979 by which applications were invited for admission to medical college, Jammu, for the year 1979-80 includes to clauses Nos. 17 and 18 which are as follow : ·

"17. The candidates, while applying for admission to the M.B.B.S. Course, should specifically mention in their application forms that they have not been selected/nominated by the Govt. of J & K for any training course within or outside the J & K State.

18. The candidates, who have already been selected by any other selection committee constituted by the Govt. of J & K for any other trainmg course within or outside the

State, are not eligible to apply or to appear for interview for

admission to this college.

A candidate who tries to cheat

1 the Selection Committee on this account, will be disqualified and even if selected under false pretence will not be given admission, or if he/she has secured admission, his/bee admission will stand null and v<lid."

It was contended that in view of these conditions Ku!bhushan Gupta was not eligible for selection though no objection was .n!ised G when he appeared for interview.

That he is a student of the Regional Engineering College is not disputed, but it appears that he was not selected or nominated by the Government of Jammu and E:as.hmir for admission to the engineering. college nor was he selected by any selection committee constituted by the Government of Jammu and Kashmir.

Clearly, therefore, the bar in clause 17 or clause 18 cannot H apply to his case, and it must be held that he was improperly ~

admission to the Government Medical College, Jaminu.

Kulbbusban Gupta is entitled n merit to a seat in the College.

The conclusions we have reached on the various jssues do not A . wlitra.rlt cancellation of the entire list of candidates admitted to the

Gm>ilrilrl!ent Medical College, Jammu, for the 1979-80 session of the }- M; B.B.S. conrse but call for a revision of the list.

We therefore direct

JlS f(ifiows :-

( 1) As the classification made for "rectification of regional

imbalance" without identifying the areas of imbalance has been held invalid, the seats reserved under this head may be added to the quota of seats earmarked for selection on the basis of merit and filled accordingly.

Even if some of the candidates who have been selected under this category were eligible for selection as candidates from areas adjoining actual line of control or bad pockets, they cannot be accommodated unless the percentage of seats reserved for these two categories was raised.

(2) As the selection of Shri Sanjay Pathania (No. 52 in

the list of selected candidates) under the category "wards of medical college staff" has been set aside, one more seat should therefore be added to the "open merit"quota and filled accordingly. ' ·

(3) The Government must find a seat for the petitioner in writ petition No. 29 of 1980. Miss Anita Jain, who was nominated for admission to an outside inStitution, in any medical coilege outside the .State unless as a result of the revision of the list of candidates admitted she finds a place in the Medical College, Jammu, on the basis of merit.

{ 4) The admission of Harish Kumar (No. 62 in the list of admitted candidates) has been set aside.

To com- , plete the quota of nominated candidates another candidate in his place may be nominated if the Government so desiires.

(5) The petitioner in writ petition No. 201 of 1980

Kulbhushan Gupta, it has been found, was wrongly refused admission.

He is entitled on merit to a seat.

The writ petitions therefore sncceed to the extent indicated above. [n the circumstances of the cases there will be no order as to cost!!.

A We are conscious that revision of the list of selected candfdates at this stage will not only cause hardship to the students who will be excluded but some of those who might get into the list npw are also likely to experience certain difficulties.

We are also conscious that the late revision of the list will create problems for the authorities but that, we are afraid, cannot be helped. We hope e authorities will deal & sympathetically with the cases where it may be possible for them to render some help to the students in this situation and relax the rigour of the rules to the utmost permissible extent for the purpose.

S.R.

Petitions allowed.

NISHI MAOHU ETC. ETC

STATE OF JAMMU AND KASHMIR AND ORS

May 9, 1980

A. C. GUPTA

S. MVRTAZA FAZAL ALI

Articles 14 and 15

Government of J ammu

July 9, 1973

June 27, 1974

Ladakh

April 21, 1976

April 16, 1976

Governn1ent Medical College, Jammu

April 3, 1978

June 21, 1979

University of Jammu

Bakarwal

Ladakh district

Government of Jammu and Kashmir

Government Medical College, Jammu

KaShmir

Supreme Court

Parimoo

Article 14

Article 15

Edwin Khakkar

Article 14

Article 14

[1964] 6 SCR 368

[1971] 2 SCR 430

Anita Jain

June 21, G 1979

Kulbbusban Gupta

Government of J ammu and Kashmir

Government of fammu and Kashmir

Article 32

S. s. Jauhar

Lalit Kumar Gupta

A nil Dev Singh

S. K. Sabharwal

Naunlt Lal

Naunlt Lal for the Petitioners in WP Nos.

S. N. Kackar

S. N. Kackar for the Respondent in WP Nos.

Y. S. Chitale

Mukul Mudgal

Mukul Mudgal for the Respondent in WP Nos.

ATM Sampath

ATM Sampath and P. N. Ramalingam for RR.

P. N. Ramalingam

C.S.S. Rao

S. P. Gupta

V. K. Pandita

R. Satish

E. C. Agarwala

Dwarka Nath Gupta

D A. K. Sen

K. Pandita

R. Satish

S. P. Gupta

Dwarka Nath Gupta

L. M. Singhvi

L. K. Pandey

Naunit Lal

GUPTA

Article 32

University of Jam.mu

State of c Jannnu and Kashmir

clause 2

clause 2

June 2 7, 197

clause 2

April 16, 197 6

Government Medical College, J ammu

State of Jammu and Kashmir

Kacker

State of J ammu and Kashmir

Anand of Ja.mmu

and Kashmir High Court

J.N. Wazir

Jammu and Kashmir High Court

[1973] 3 S. C. R. 236

Parinwo

Article 14

Article 15

Edwin Khokkar

State of Jammu and Kashmir

Article 14

Article 14

(1971] 2 S. C. R. 430

A. H. Fazli

Srinagar

Periakaruppan

Article 14

akaruppan

Chitralekha

Government of Jamrtm and Kashmir

Sanjay Pathania

Article 14

Pathania

Government of India

Rajasthan

Andhra Pradesh

Jain

Medical College, Jammu

November 8, 1979

Government of )ammu and Kashmir

Bhopal

Madhya Pradesh

Jammu

Harish Kumar

Jammu

and Kashmir

Jammu and Kashmir

.!:Iarish Kumar

Kulbhu-\.r shan Gupta

Junec ' 21, 1979

Ku!bhushan Gupta

Government of Jammu and E:as.hmir for

clause 17

clause 18

Government Medical College, Jaminu

Harish Kumar

Kulbhushan Gupta


DEPUTY COMMISSIONER, SALES TAX (LAW) BOARD OF A,

REVENUE (TAXES) ERNAKULAM v.

PIO FOOD PACKERS

May 9, 1980

[P. N. BHAGWATI, V D. TuLZAPURKAR AND R. S. PATHAK, JJ.]

Kera/a General Sales Tax Act, Section 5-A(l)(a) "conmmes such goods in the malrufacture of other goods for sale or otherwise", meaning of-ExigibiliJy to tax of pineapple ffuit. when processed into slices for the purpose of being IO!d in sealed cans.

-..; Tho respondent assessee, Pio Food Packers carries on the business of manu- . facturing and selling canned fruit besides other products. The Pineapple purchased by the assessee is washed and then the inedible portion, tbe end crown,

skin and inner core are removed, thereafter the fruit is, sliced and the slices are filled in cans, sugar is added as a preservative, the cans are sealed under temperature and then put in boiling water for sterilisation.

In its return for the year 1973-74 under the Kerala General Sales Tax Act, 1963 the assessee claimed that a turnover of Rs. 3,84,138-89 representing the purchase of pineapple fruit was not covered by Section 5-A(l)(b) of the Act.

It was asserted that the pineapple was converted into pineapple slices, pineapple jam, pineapple squash and pineapple juice. The assessee maintained that by

the conversion Of pineapple fruit into its products no new commodity was created and it was erroneous to say that there was a consumption of pineapple E K fruit "in the manufacture of" these goods. The Sales Tax Officer did not accept the contention and completed the assessment on the finding that a manufacturing process was involved and that, therefore, the case fell within s. 5-A

(t):(a). In revision before tbe Sales Ta:ii Appellate Tribunal, the assessee c0nceded that pineapple jam and pineapple squash would be covered by s. 5-A(l)(a), and in regard to pineapple juice the Tribunal found that s. S-l(a) was attracted. The only question which remained was whether the prepara- F lion of pineapple slices fall within s. 5-A(l) (a). On that question two mem- ' bers of the Tribunal. found in favour of the assessee, and the third member

fDund. in favour of the Revenue. The Revenue then applied in revision to

the High Court and the High Court, has by its judgment dated 24th January, 1978, .maintained the order of the Tribunal.

Dismissing the appeal, by special leave, the court

HEID : 1. Wiien pineapple fruit is processed into pineapple slices for. the purpose of being sold in sealed cans, there is no .<:onsumption of the original pineapple fruit for the purpose of manufacture within the meaning of Section 5A(l)(a) of the Kerala General Sales Tax Act, 1963

[1277 E-FJ

2. Section 5-A(l)(a) of the Kerala General Sales Tax Act envisages the consumption of a commodity in the manufacture of another commodity. The goods purchased should be consumed, the consumption should be in the proceos !>f !llllluf&cture, and the result must be the manufacture of other goods.

- : ,;..

. E

.G

SUPREME COURT REPORTS

(1980] 3 S.C.R.

There are several criteria for determining whether a commo<lity is consumed in the manufacture of another .. The generally prevalent test is whether the article produced is regarded in the trade, by those who deal in it, as distinct in identity from the commodity involved in its manufacture.

Co1LI1monly, manufacture is the end result of one or more processes through which the original commodity is madf', to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commcxlity experience a c:h.an.ge.

But it is only when the change, or a series of changes, take the commodity to the point where commercially it coo no longer be. regarded as the original comm°9ity but instead is recognised 1l8 a new and distinct article that a manufacture can bei said .to take place. Where there is no essential difference in identity between the original commcxlity and the processed article, it is not possible to say that one commodity bM been consumed in the manufacture of another. Although it has. undergone a degree of processing, it must be regarded as still retaining its orfginal identity. [1274 F-H, 1275 A-BJ

In the present oase, there is no essential difference between pineapple fruit and the canned pineapple slices. The dealer and the consumer regard both as pineapple. The only difference is that the sliced pineapple is a presentation of fruit in a more convenient form 'and by reason of being canned it :is capable of storage withont spoiling.

The additional sweetness in the canned pineapple arises from the sugar added as a preservative. The pineapple slices continue to possess the same identity as the original pineapple fruit.

[1275 G-H, 1276-A]

Tunghabhadr.a Industr:ies Ltd., Kurnool v. Commercial Tax Offecer, Jurnool, [1960J 10 S.T.C. 827 (SC); Commissioner of Sales Tax, U.P., Lucknow v .

Harbilas Ral & Sons, [1968J 21 S.T.C. 17 (SC); followed.

East Texas Motor Freight Lines v. Frozen Food Express, 100 L.ed. 917; Anheuser-Busch Brelving Association v. United States, 52 L. ed. 336~338; quoted with approval.

Anwarkhan Mahboob Co. v. The State of Bombay and Ors., [1960J 11 STC 698, A Hajee Abdul Shukoor and Co. v. The State of Madras, [1964J 15 STO

719; The State of Madras v. Swasthik Tobacco Factory, [1966J 17 STC 316 and Ganesh Trading Co. Karna/ v. State of Haryana and Anr., [1973J 32 STC 623; J. held inapplicable. ' '

3. The fact that the pineapple slices have a higher price in the market than I the original fruit does not imply that the slices constitute a diffd'ent commercial commodity. The higher price, is occasioned only because of the labour put into making the fruit more readily consumable and because of the can employed to contain it. It is not as if the higher price is claimed because it a different commercial commodity. [1277 A-BJ

4. The faot that the pineapple slices appeal to a different sector of the trade and that when a customer asks for a can of pineapple slices he has in mind something very different from fresh pineapple fruit does not give to the canned pineapple slices a sep<>rate identity either. The distinction in the mind of the consumer arises nOt from any difference in tho essential identity of the two, but is derived from the mere fOim in which the fruit is desired. (1277 II-CJ

I SALES TAX BOARD v. PIO FOOD PACKEfS (Pathak, /.) 1273

$. Claiise (l)(a) of Section 5-A of the Kerala General Sales Tax Act, •peaj<s of goods consumed in the manufacture of other goods for sale or goods

consum~ in the manufacture of other goods for purposes other than , sale.

[1277 C-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2398 of 1978.

Appeal by Special, Leave from the Judgment and Order dated 24-1-1978 of the Kerala High Court at Emalrulam in T.R.C. No. 2 of 1976.

M. M. Abdul Khader, V. J. Francis and M.A. Firoz for the Appellant.

"'.1.-:- S. T. Desai, P. A. Francis and Mrs. S. Gopalakrihnan for the

c _, J' Respondent.

The Judgment of the Court was delivered by

PATHAK, J.

This appeal by special leave is directed against the judgment of th~ Kerala High Court holding that the turnover of pineapple fruit purchased for preparing pineapple slices for sale in sealed cans is not covered by s. 5-A(l)(a) of the Kenila General Sales Tax Act, 1963.

The respondent, Messrs. Pio Food Packers ("the assessee"), carries on the business of manufacturing and selling canned fruit

besides other products. In its return for the year 1973-74 under Ii. the Kerala General Sales Tax Act, 1963 the assessee claimed that a turnover of Rs. 3,64,138-89 representing the purchase of pineapple fruit was not covered by s. 5-A(l)(a) of the Act. It was asserted that the pineapple was converted into pineapple slices, pineapple jam; pineapple squash and pineapple juice.

Section 5-A(l) {a) of the Act provides : F

"5-A Levy of purchase tax-

{ I) Every dealer who, in the course of his business, purchases from a registered dealer or from any other person any goods the sale or purchase of which is liable to tax under this Act, in circumstances in which no tax is payable under section 5, and , either-

(a) consumes such goods in the manufacture of , other goods for sale or otherwise; or . ' . . shall, whatever be the quantum of the turnover relating to such purcllase for a year, pay tax

22-610SCI/80

Jl , ...

SUPREME CO~T REPORTS

(1980] 3 S.C.R.

on the taxable turnover relating to such purchase for the year at the rates mentioned in section 5."

The assessee maintained that by the conversion of pineapple -{ fruit into its products no new commodity was created and it was erroneous to say that there was a consumption of pineapple fruit

"in the manufacture of" those goods. The Sales Tax Offirer did not accept the contention and completed the assessment on the ' finding that a manufacturing process was involved and that, therefore, the case fell within s. 5-A(l )(a). In revision before the Sales Tax Appellate Tribunal, the assessee conceded that pineapple jam and pine-apple squash would be covered by s. 5-A(l)(a), and in regard to pineapple juice the Tribunal found that s. 5-1 (a) was Y attracted. The only question which remained was whether the preparation of pineapple slices fell within s. 5-A(l) (a). On that question two members of the Tribunal found in favour of the assessee, and the third member found in favour of the Revenue. 'Ibe Revenue then applied in revision to the High Court and the High Court has, by its judgment dated 24th January, 1978, maintained the order of the Tribunal.

It appears that the pineapple purchased by the assessee is washed and then the inedible portion, the end crown, skin and inner core E are removed, thereafter the fruit ii; sliced and the slices are filled in cans, sugar is added as a preservative, the cans are sealed under temperature and then put in boiling water for sterilisation. Is the pineapple fruit consumed in the manufacture of pineapple slices ?

Section 5"A(l )(a) of the Kerala General Sales Tax Act envisag- F

es the consumption of a commodity in the manufacture of another commodity.

The goods purchased should be consumed, the oon- - sumption should be in the process of manufacture, and the resnlt i must be the manufacture of other goOds. There are several criteria . , for determining whether a commodity is consumthl in the manufacture of another.

The generally prevalent test is whether the article produced is regarded in the trade, by those who deal in it, as distinct

in identity from the commodity involved in its manufacture. Commonly, manufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and lll:deed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the 1:"igina! cOS11111odity experiences a change.

But it is only when the change, er a series of changes, take the_ commodity to the point wbeJe

... . .

SALl.S TAX BOARD v. PIO FOOi> PACKERS (P11thak, !.) 12 7 5 ,, commerciiilly it can no longer be regarded as the original commodity but instead is recognised as a new and distjnct article that a maa1$cture can be said to take place.

Where there is no essential differelJCll in identity between the original commodity and ' the processed article it is not possible to say that one commodity has been COllSUIIled in the manufacture of another.

Although it has undergone a degree of processing, it must be regarded as still retaining i1S original identity .

A Jarge number of cases has been placed before us . by the parties, and in each of them the same principle has been applied :

~ r1Joes the processing of the Original commodity bring into existence . 'j a commercially different and distinct article ?

Some of the cases where it was held by this Court that a different commercial article had come into existence include Anwarkhan Mehboob Co. v. The

State of Bombay and Others(') (where raw tobacco was manufactured into bidi patti), A Hajee Abdul Shukoor and Co. v.

The State of Madras(') (raw hides and skins constituted a different commodity from dressed hides and skins with different physical properties), The State of Madras v. Swasthik Tobacco Factory(') (raw tobacco manufactured into chewing tobacco) and Ganesh Trading Co. Kamal v. State of Haryana and Another,(') (paddy dehusked into rice). On the other side, cases where this Caurt has held that although the original commodity has undergone a degree of process- )( ing it has not lost its original identity include Tungabhadra Industril!s Ltd., Kurnool v. Commercial Tax Officer, Kurnoo/( 5 ) (where hydrogenated groundnut oil was regarded as groundnut oil) and Commissioner of Sales Tax, U.P.; Lucknow v. Harbilas Rai and sons(6 ) (where bristles plucked from pigs, boiled, washed with soap and other chemicals and sorted out in bundles according. to their , size and colour were regarded as remaining the same commercial

\commodity, pigs bristles).

In the present case, there is no essential difference tween pineapple fruit and the canned pineapple slices.

The dealer and the consumer regard both as pineapple.

The only difference is that the sliced pineapple is .!I presentation of fruit in a more convenient form and by reason of being canned it is capable of storage without

(!) (1960) II S. :r C 698.

(2) (1964) 15 S. T. C. 719

(3) (1966) 17 S. T. C. 316.

(4) (1973) 32 S. T. C. 623,

(S) (1960) 11 S. T. C. 827.

(6) (1968) 21 S. T. C. 17.

'.Jft.i:-~~4 'tt

···. l

.,_,,,,.;.;'~

1276 SUPREME C(1t1RT REPORTS

[1980) 3 S.C.R.

A spoiling.

The additional sweetness in the canned pineapple arises from the sugar added as a preservative. On a total impression, it seems to us, the pineapple slices must be held to possess the same

identity as the original pineapple fruit.

While on the point, we may refer to East Texas Motor Freight Lines v. Frozen Food Express,(!) where the U.S. Supreme Court held that dressed and frozen chicken was not a commercially distinct article from the original chicken. It was pointed out :

"Killing, dressed and freezing a chicken is certainly a change in the commodity.

But it is no more drastic a change than the chang6 which takes place in milk from pasturising, homogenizing, adding vitamin concentrates, standardising and '""\ r bottling." ".

It was also observed:

" .................. there is hardly less difference between cotton in the field and cotton at the gin or in the bale

01 between cottonseed in the field and cottons~ at the gin, than between a chicken in the pen and one that is dressed.

The ginned and baled cotton and the cottonseed, as well as the dressed chicken, have gone through a processing stage But neither has been "manufactured" in the normal sense of the word."

Referring to /ifntheusercBusch Brewing Association v. United States(2 ) the Court said:

"Manufacture implies a change but every change is not manufacture and yet every change in an article is the result F of treatment, labour and manipulation. But something more is neci, ssary. . . . . . . . . . . . . . . . . . There must be transformation; a new and different article must emerge, having a l distinctive name, character or use."

And further:

G "At some point processing and manufacturing will merge.

But where the commodity retains a continuing substantial identity through tJhe processingj stage we cannot say that it

has been "manufactured"." ~~

The comment applies fully in the case before us.

Although a ft degree of processing is involved in preparing pineapple slices from r

(!) 100 L. Ed. 917.

(2) 52 L. Ed. 336-338.

SALES TAX BOARD v, PIO FOOD PACKERS (Pathak,!.) 1277

the original fruit, the commodity continues . to possess its original identity, notwitibstanding the removal of inedible portions, the slicing .... and thereafter canning it on adding sugar to preserve it. It is contended fur the Revenue that pineapple slices have a higher price in the • madet than the original fruit and that implies that the slices constitute a different commercial commodjty. The higher price, it seems to us, is occasioned only because of the labour put into making the fruit more "" readily consumable and because of the can employed . to contain it. It .,.

. is notl as if the higher price is claimed because it is a different commercial commodity. It is said that pineapple slices appeal to a different sector of the trade and that when a customer asks for a can of pineapple 'Jsf"Ces he has in mind something very different from fresh pineapple

fruit Here again, the distinction in the mind of the consumer arises not from any difference in the essential identity of the two, bnt is derived from the mere form in which the fruit is desired.

Learned counsel for the Revenue contends that even if no manufacturing process is involved, the case still falls within .s. 5~ A( 1) (a) of the Kerala General Sales Tax Act, because the statutory provision speaks not only of goods consumed in the manufacture of other goods for slile bnt also goods consumed otherwise. There is a fallacy in the

subuiission. The clause, truly read, speaks of goods consumed in the m8nufacture of other goods for sale or goods consumed in the manu- )( facture of other goods for purposes other than sale.

In the result, we hold that when pineapple fruit is processed into pineapple slices for the purpose of being sold in sealed cans there is no

consumption of the original pineapple fruit for the purpose of manufacture.

The case does not fall within s. 5-A(l)(a) of the Kerala General Sales Tax Act.

The High Court is right in the view ta ken -~~ F

\ The appeal fails and is dismissed with costs.

S.R.

Appeal dismissed.

_)(

DEPUTY COMMISSIONER, SALES TAX (LAW) BOARD OF REVENUE (TAXES) ERNAKULAM

P. N. BHAGWATI

V D. TuLZAPURKAR

R. S. PATHAK, JJ.

General Sales Tax Act

Section 5

Pio Food Packers

Kerala General Sales Tax Act, 1963

Section 5

s. 5

s. 5

s. 5

24th January, 1978

Section 5A(l)(a)

Kerala General Sales Tax Act, 1963

Section 5

Section 5

Kerala High Court at Emalrulam

M. M. Abdul Khader

V. J. Francis

M.A. Firoz

S. T. Desai

P. A. Francis

S. Gopalakrihnan

PATHAK

Kerala High Court

s. 5

Kenila General Sales Tax Act, 1963

Pio Food Packers

Kerala General Sales Tax Act, 1963

s. 5

Section 5

section 5

section 5

s. 5

Sales Tax Appellate Tribunal

s. 5

s. 5

s. 5

Section 5

State of Madras

Tungabhadra Industril!s Ltd.

U.S. Supreme Court

s. 5

s. 5