, A

ANANDILAL & ANR.

RAM NARAIN & ORS.

B May 10, 191J4

[A.P. SEN AND V. BALKRISHNA ERADI, JJ, j

Limitation Act 1908 s: 15 U) and Code of Civil Procedure 1908 s. 48.

ExecUtion of decree-Partial .s"ay of-Decree_ holder whether etitftled to cliwm C eXlusion of j)erioi in computation -of limitation.

• • J Words and Phrases : l•Eecution'~-Meani'ng o/-_S. 15 . ( J) Limilatlon -1 Aci1908.

The predecess_orl.i:i-title of respon; Jeot No. 1 obtained a decree agaitist. the p_r-edeCessorin-:title 9f respondent Nos. 2and 3.

The decrtie was affirmed by the State High Court on April S, 1938. During the pendenoy of the app-al, the Higb-Cocirt &tayed execution of the decree uader Order XLI, r. 5 of the Code Clf Civil Procedure on .condition that the api)ellentsdefendants furn\sb.ed security for the"dlte satisfaction of the dCcree.· Against the decree Passed- .by the High Cciu.it tht defendants preferred all appeal

befr~ the' Judicial CotQmftteA of the State-~ -In.the_ appeai, the Judicial

Committe~ passed an interi.m order d1td August J.6, 194_0 directing that until .further orders "the prop.:.rties attached ill ex:ecutionshall -continue to remain undr attahrrient but further proceedings for the.saJe thereof Shall i-en1ain stayed on --Novomber 24, .-1944. the Judicial Committee distUissed th~ _sid -appeJl-anJ the ini'erim stay.stood diSsolved.

Respodent Nu. 1 ·-who h.td purGhased th~ decree fcom the beirS of ihe original dcreeholder resumcd-thC eXccution of th:i decree.

The exeCu tion applicati9n filed by him .wJs dismissed for default on June 11, 192f.5, restored 6n DeCemhcr I."4,- "1946 but again disdlisscd for default on Jai:iuary 2_1, 1954.

Thei'_eafter,. a fresh application for execution, was filed on FcbruarY. '1 s i 19 54.

This application was oPposed by 1hc surety .appeij_an ls on th~ grcund that it was barred by limitation having be-en filed beyond tho period of 12 years presCfibd .hY s, 48 of the Co'de of Civil Procedure ..

The DiStricf Judge rcjecied the objection by the appellants holding th.at alth.ouith the stay of execution wa:; par.tial .as only s.ale of. the attached properties had been ___ stayed .bytne Judicla_l Committee, the decree-holder was entilled to the benefit of s. lS (1) of the Limitation Act.

-'f

The appellants preferred an appeal before the. High Court which was

, A allowed by a Single JUdge, who held that an order of partial stay like .

the one granted by the Judicial Committee only postponed the sale of the

attached properties .d did not have the .effect of making the decree inexecutable ond therefore s. 15 \!)of .the Limitation Act was not attractd.

Respondent No. 1 preferred a Letters Patent Arpeal and a Full Bcch of the High Court held tha.t the word . "execU:tioii'-' ins: tS (1) must .be

contrued in a broad sense, tha:t fr did not exlude a part'ial stay of exeCll ·

tion aod therefore the deciecholder was entitled to tho exclusion o, f the

period from August 16, 1940 to November 24, 1944 under s. JS (l) of the -Limitation Act for_ computation of the period of 12 years prescribed under s .. 48 of the Code. of Civil Piocedurr.

Dismfasing the Appeal to this Court~ ·.

HELD,: 1:. The word ''execution,' ins; 15 (1) embraCes all the

appropriate means by which a decree is .• eriforcd.

It includes all processes and procedings iff.aid of, or supplemental to execution.

[814B]

- i

2. .There is no rational basis for adopting a narrow arid~ restricted construction On a beneficient provision Uke s, 15 (l).

There is no reason why I!. 15 (1) !ihould be giveil a -restricted meaning _as allowing the benefit to a decrcehoider where there is a complete or abolute stay of executioll. 3nd not a ':partia; i stay i.e. a sfay which makes the decree altogether inexe..

E eatable.

[814C] ,.

Stay of any process of execution is stay of executi_on within the , meaning of-s. 15 { 1).

Where an injunction or order has preventd the

detee .. holder from execut'iog the decree, then irrespe_ctive of the partiular stage of execution, or the"partic.ular proprty: against \Vhich, Or the Parti .. cular judgment-debtor against '\vhom, execution was stayed~ -ibe effect or such injunction or order is . to prolong tbe life of. the decree itself by the period during wbicb the injunction or oder remaided in force.--· [s-140.-El

Kundo Mal & OrS. ~· Firm Dau/at. Ram Vidya Prakash, AIR 1940 Lab. 15, Virchanif Kapur Chand v. Morua/appa. & Anr., AIR 1944 Born. 303, Chanbasappa v. Holibasappa, ILR (1924) 48 Bom. 485 and Kirtyqnand Singh v. PrithiC/umd Lal., AIR 1929 Pat: 59.7, reversed.

Bail/jam v. Bai Ruxmani, AIR 1914 B.om. 2i1 and GovindnaJh Chaudhuri v. Basiruddin Monda/, AIR 1921 Cot. 606, and Sitar.am and Others v. Chunnilalsa ILR 1944 Nag. 250 approved.

Kirtyanand Singh v. Prithi Chndla/, AlR 1933 PC $2 explioed.

CIVIL APPELLATE JUIUSDICTION: Civil Appeal No. 109 of 1971.

' Appeal by Certificate from the Judgment and Decree.dated 17th October, 1969 of the Madhya Pradesh .High Court, in Letters Patent Appeal No. 16 of i962

V.A .. Bobde and A.G.Ratnaparkhi for the appeilants.

S.S: Khanduja for the. respondents.

The Judgment of the Court was delivered by

. . SJJN, L The shmt point involved in this appeal by certificate fr?m the judgment and order of a Full Bench of the Madhya Pradesh H/gh Court dated October 17, !969 is whether a partial stay of execution. of the decree like the one. in question staying sale of the attached property is within sub-s (1) of s, 15 of the Iimita•ion Act,

.... 1

\ -\:' ..

190$ so as to erititle the decree-holder fo claim exclusion of the period durig whi.ch there .. was stay of sale but the property ·. was to .co.nt nue under a.ttachment,. for the purpose of computation of the p(jtiod of limitation provided by s .. 48 of the Code of' Civil Procedure, 1908.

Since the question involved is a substantial Question of law, the High Court _has granted a certiticae of fitness Under Art. 133 (!) CC'1 of the Constitution. ·· .

Facts are somewhat comp!ic'ated but it is necessary to diseri- . tangle them to bring out the poirit in controvers~. . One Ghasiram, the predecessor•in-title of the present respondent No, 1. Ram Narain obtained a decree for Rs. 5,548.18 p. from the Court of the District Jµdge, Ujjain against one Bheraji, the predecessor-in-title of 1espon• dents Nos. 2 and 3 Chunnilal and Anndilal, now the Judgment- debtors. The decree was affirmed in appeal by the Gwalior High Court : on April 5, 1938.

During the pendency of the appeal, the High Court stayed execution of the decree under Order XLI, r. 5 of the Code on condition that the appelfants-defendants furnished security . for the due satisfaction of. the decree.

Ratanlal, father of the two appellants Anandifal ancl Jarikilal; executed a surety dated August 3, 1927.

Against the decree passed by the High. Court, the defendants preferred a revision before the Judicial Committee of the. Gwalior

State .which came to be dismissed .oJL February 14, !94l. While the revision was pending before the Judicial. Committee, the decreeholder Ghasiram put the decree in execution against the judgmentdebtors as also against the surpty on February 23, 1939 for attachment and sale of their immoveable properties. It appears that some

• '

. )

houses and certain zamindari. lands of the surety Ratanlal were A attached in execution .,, f the decree.

He. raised objections to the attachment of his property but the same were rejected on December 9, 1939. Against the order dismissing his objections, the surety Ratanlal filed an appeal before the Gwalior High Court which was dismissed on July 22, 1940. He then filed a Mi8cellaneous Appeal before the Judicial Committee of th~ Gwalior State. B

It is common ground.that in thai appeal the Judicial Committee passed an interim order dated Augut 16, 1940 directing that until further order; the nroperties attached in execution shll conti!rne to rema; n under attachment but further proceedings for the sale thereof shall remain stayed. On November 24, 1944 the Judicial Committee dismissed the said appeal and consequently the interim stay stood dissolved. Thereafter, the present respondent No. 1 Ram Narain appears to have purchased the decree from the heirs of the original decree holder 11nd the execution proceedings were resumed. The execution application filed by him was however dismissed for default on June lt, l 945 . .It was restored on December 14, 1946 but was again dismissed for default on January 21, 1954 as the counsel for the dscreeholder stated that he had no instruction. : Thereafter, a fresh 'application for execution was filed by the decreehold<rr on February 18, 1954. This application was opposed by the surety Ratanlal inter ali'!. on the ground that it wa; barred by limitation having been filed beyond the period of 12 years prescribed by s. 48 ofthe Code.

The question is whether respondent No. 1 Ram Narain, the assignee'holder, was entitled.to exclusion.of the period from August 16, 1940 to November 241 1944 under. s. 15 (l) of the Limitation Act for computation of the period of 12 years prescribed under s. 48 of.the Code. The District Judge, Ujjain rejected the objection raised by the appellants holding that although the stay of execution was partial in as much as only sale of t]\e attached pro.perties had been staye'd by the Judicial Committee, the decreeholder was entitled to the benefit of s. 15 (!). The appellants preferred an appeal. beforethe High Court which was allowed by the learned Single .Judge by his order dated February 9, 1962.

The learned Single Judge held that an order of partial stay like the one in question granted by the Judicial Committee which only postponed the sale of the attached properties did. not have the effect of making the decree inexecutable. and therefore s. 15 (I) of the Limitation Act . •

81()

SUPRE!JE COURT REPORTS (1984] 3 s.cR.

I\ . was not attracted. He understood the decision of Grille, C.J. and J .. Sen, J. in Sitaram & .Ors. v. Chunilalsdi}) as laying. down that s. 15 (I) was applicable only when there is absolute stay of excution ..

a,

Aggrieved by the decision of the learned Single judge, respon- • dent No. 1 preferred a Letters Patent Appeal which was referred by a Division Bench to a Full Bench as the question wh, et.her a partial stay was within s. 15 (I) of , the Limitation Act was o! considerable importance. After dealing with.all the authorities on the subject, the Full Bench answered the question in the affirmative. It was of the view that the Limiiation Act . like any other enactment must receive a -, construction which the language in its . pl;\ in meaning is capable of bearing and that there was no justification for placing a narrow and restricted construction. on the word, ·"exec.ution" occurring in the phrase "execution of the decree'' in s. 15 (1) of the .

Limitation Act as implying an absolute bar to the execution of the , decree-~ AcGording to the Full Bench, such a construction was not warranted as it would involve reading into the section words such as "totally; wholly, as a whole, or. by all possible means" which are D.

. E.

notthere. According to its plain language,.it held, thats. 15(1) did not exclude a partial stay of execution. After referring. to several decisions of differcnf High Courts, the Full 'Aench particularly. placed

relianc~ on the deeisjon of the Culcutta High Court in Sreenath Roy

v. Radhanath. Mookerjfj!(2) holding that. the words "executioa of the decree"· mean enforcement of. the decree by what is known as by any of the "processes of execution'.'. It accordingly held that the word "execiltion" in S; 15 (I) mut be cconstrued in a broad sense taking in all or any of the v; irious processes of execution and ob- . served that the decision in Sitaram's case,' supra, does not fake a contrary view.. The Full Bench therefore held that the decreeholder was entitled to the exclusion of the•period from August 16,

1940 to November 24, 19.44 under s. 15 ( l) of the Limitation A.ct· ' in reckoning theperiod of 12 years prescribed by s. 48 of the Code.

We concur with the view expressed by the Full Bench.

G It is well settled that s. 48 ofthe Cde was controlled by

8, 15 (!) of the Limitation Act. S, 48 of the Code enacted a rule of limitation and prescribed a period of 12 years for an application fbr execution of decrees and orders.·· It has since been. repealed bys. 28 of the Limitation Act, 1963 which enact~ that "in the Code of Civil

(1) IL!l. (1944) Nag. 2SO

(Z) lLR (1983) 9 cal. 773.

\ .

~·.·

Proced.ure. 190.8, (Act V of 1908), s. 48 shall be omitted".

In its phcj a new provision Art. 136 has been introduced and that prescribes "for the execution of anydecree (other than a decree .granting a m1ndatory injunction)' or order of any Ci vii Court a period of 12 years, etc." Thus, the substanc' ofs.48 continues to be, the law and for that reason, and also for. the reason that with regard to pending applications,· the .law as laid down in the decisions foterpreting

s. 48 might have to be referred to, it is necessary to give reasons.

There has been a sharp divergence of jµdicial authority on the ._question whether a partial stay was within s. 15 (l) cf the Limitation

Act, The preponderance of judicial opinion appears to be in favour 'of the view that s. 15 ( l) contemplates an absolute stay. There .is aJong line of decisions starting from Kundo Mal & Ors. v. Firm

Daul~! Ram Vidya PrakashC'l where Din Muhammad, J. laid down . that if execution is not compktely and abs.olutely s\ayed, s. 1·5 {I)

of the Limitation Act does not come into play, down to Virchand Kapw Chand v. Maruq/appa & Anrl2l where Sen, J. reaffirmed . thats. 15 (!) contemplates an absolute stay which reneders the

decree-holder incapable of taking ont any proceeding for execution of the decree, w)lich are all b1sed on the dictum of. M2cleod, C. J .. in Chanbasappa v. Holiba.wppal3J to the effect that s. 15 (I) . only applies to an absolute stay. The Patm High Court also took the same view in Kirtyanand Singh v. Prithi Chand La/(4).

The dicta of Maclood, C. J. in Chanbbsappo's case and of Din Muhammad, J. in Kundo Mal's case do not give any reasons for the view taken.

Sen, J .. in Virchand's case and however gave .reasons for taking the view that s. 15 (1) contemplates an.absolute stay which renders the decree-holder incapable of taking out any proceeding for execution of the decree. The learned Judge observed that a partial stay e.g. a stay of ex, cution in one particular mode is not stay of execution 'within tho meaning -of s. 15 (I) if it is open to the decree.-holder to execute his decree in any other manner. He referred to the contrary . view taken by the Bombay. High Court in Bai Ujam v. JJai Ruxmani('l by the Rangoon High Court in Nachiappa Reddy v. M3tmg fe(6)'and

(I) AIR (1940) Lah. 75.

(2) AIR ( 194 0 Born. 303.

(3) !LR (1924) 48 Bom.4 85.

(4) AIR (1929) Pat. 597 • . (5) AIR (1914 Born. 2J.l.

(6) AIR 0918) UB 4.

by the Culcutta High Court in Govindnath Chqudhur; v. Basiruddin

Mondo1(1) where it had.'been held that st-;, y of execution Qf a part of the decree or against a particular property will nevertheless save limitation for execution of the decree as a whole, and remarked that in view of the decision of the Privy Council in Kirtyanand Singh v. Pl'i/hi ChandLaf,(2) these decisions were no longer good law. We find it difficult to accept the reasoning.

The decision of the Privy Council in Kirtyanand Singh' s case -\' does not lay do\vn any. contrary proposition. There, the point appears to have arisen from an order passed by the Court in the c Raj Suit to the effect that "the decre.e-holder were to wait for some time for payment". That order .was subsequently set aside having been in operation for about . seven months.. 1 he decree-holders' .contention was that they were entitled to the benefit of s: 15 (!)with

respect to the afore.said peri9d of seven months.

Lord Tomlin, deliv, ering the judgment of the Judicial Committee, construed the 4 D foresa; d order as meaning not an order staying execution within , s. 15 0) of the Limitation Act, and observed:

Now the first thing to be observed is that at lhe time when that order was made, there was in fact no application for execution pending tall. It was an order again made in the Raj Snit and not in the rent suits; it was a.n .order . made on application by the decr-ee-holders seeking leave to proceed against property in the hnds of the receiver in the Raj snit.

It was an order which did no: stay at al/, but simply said that so far as I.hat application in that suit. was con.cerned the appellants were to wait.

That seems to their Lordships not to to be in any sen!Je within th.e meaning of the section a stay of the execution by injuncti011 or order." - . (Emphasis supplied)

In Lala Baijnath Prosad & Ors. v. Nursinghdas Guji'ati(3) the Calcutta High Court appears to have adopted a middle , course.

Chakravarti, C. J. delivering the judgment of the Court observed:

"If the decreeholder is prevented altogether from --------·----

(I) AIR (1921) Cal. 606.

(2)· AIR (1933) PC 52.

(3) A{R (1958) Cal. J,

• ' 'f

, .

executing his decree, it is but reasonable that time should not run against him so long as he remaills disabled arid the section says so. But there seems to be no reason why the section should be construed as meaning that even when the ..

injunction or order is limited to one or some of sveral judgment-debtors or to one or some of their properties or to some particular mode. of execution and ve.n when the de, ree-holder is left free to proceed against the other judgement-debtors or other properties or in other way, he will be entitled to the benefit of the section.

The learned Chief Jutice observed tliat in such a case the execution of the !lecree is n()t stayed but only execution in c'ertain waysand against certain persons or properties 1s prevented, and then added : '

"B\lt assuming 'stayed' include 'stayed iu part', the utmost that Can be claimed under the terms of the section is that if a decree-holder is restrained for a time from proceeding against some particular judgment-debtor or some particular property or in some particular way, aud'whcn the bar is . lifted, he applies for execution against the same judgment' debter or the same property or in the same way, he will be entitled to exclude the period during ivhich )le remained Le.

strained.'~

We feel that, there is no justification for placing a rigid con: struction on a beneficent provision like s. 15(1) of the Limitation Act. It is not necessary for us to go into the history of the legisJa, lion which has been dealt with at length in many of the decisions laying down that s. 48 of the Code is controlled by s, 15('l) of the Limitation Act., All that' we need say is that both the enactments . have throughout been treated as supplementary to each other, and concern w:ith procedural law. rt is also true that in costruing statutes of limitati'on considerations of hardship and anamoly are out of place. Nevertheless, it is, we think, permissible to adopt a beneficent construction of a rule of limitation if alternative constructions arc possible. It is plain on the terms of s. 15(1) t)at the word "execution" appearing in the collocation of words "the executionof which has been stayed" must be consfru, d in a liberal and brod sense. As observed by the Calcutta High Court in

Sreeath Roy's case, Sl!pra, the w9rds "execution of the decree"

mean the enforcement of the decre by what js known as "process

of execution".

SUPREME COURT REPQKTS [1984) 3 s.c.a

Agreeing with the Full Bench, we aie inclined to the view that \he word "execution" ins. 15(1) embraces all the appropriate means by which a decree is enforced. It includes all process an, d proceeding in aid of, or supplemental to, execution. We find no rationai basis for adopting anarrow and restricted coµstniction on a beneficent provision like the one contained in s. 15(1).

There is no reason wby s 15 (!)should be given a restricted meaning as allowing the benfit to a decree-holder where there is a complete or 'absolute stay of execution and not a partial stay i e. a stay which make& the decree altogether inexecutable. Nor can we subscribe to the proposition that in cases of partial stay, the benefit nder s. 15(1) can be had only where &n execution application is directed against the same judgment-debtor or the ame property, as gainst whom an execution was previously. stayed. Stay of any process of execution is therefore. stay of execution within the meaning of the. section.

Where an injunction cir order has prevented the dec; n, eholder from executing the decree, then irrespective o~ the particular stage of execution, .or the particular property against which, or the particular judgment-debtor against whom, execution was stayed, the effect of such injunction or order is to prolong the life of the decree itself by lhe period during which the injunction or order. remained iu force. The majority view to the contrary taken by some of the High Courts overlooks the well settled principle that when the law prescribes more than one modes. of execution, it i~ for the decree-holder to choose which of them he will pursue ..

For these reasons, the appeal must fail and is dismissed with costs.

N.V.K.

Appeal dismis.•ed.

' ''

A

ANANDILAL & ANR

RAM NARAIN & ORS

A.P. SEN

V. BALKRISHNA ERADI, JJ

Limitation Act 1908

Code of Civil Procedure 1908

s. 48

Limitation Act

s. 15

Limitation Act

Limitation Act

s. 15

Kundo Mal

V.A .. Bobde

A.G.Ratnaparkhi

Khanduja

Art. 133

Ghasiram

Ram Narain

Bheraji

Chunnilal

Anndilal

Gwalior High Court

Ratanlal

Anandifal ancl Jarikilal

August 3, 1927

Ghasiram

Ratanlal

Judicial Committee of th~ Gwalior State

Augut 16, 1940

November 24, 1944

December 14, 1946

January 21, 1954

February 18, 1954

s. 48

August 16, 1940

s. 15

Limitation Act

s. 48

District Judge, Ujjain

s. 15

February 9, 1962

s. 15

Limitation Act

Grille

Sen

s. 15

s. 15

Limitation Act

s. 15

Limitation Act

Sitaram

August 16,

1940

November 24, 19.44

s. 15

s. 48

s. 48

Limitation Act

Limitation Act, 1963

s. 48

Art. 136

s. 48

s. 15

s. 15

Din Muhammad

s. 1

Limitation Act

s. 15

Patm High Court

Maclood

Chanbbsappo

Kundo Mal

Virchand

s. 15

s. 15

Bombay. High Court

Culcutta High Court

Kirtyanand Singh

Tomlin

s. 15

Limitation Act

Calcutta High Court

Chakravarti

s. 15(1)

Limitation Act

s. 48

Limitation Act

s. 15(1)

Sreeath Roy

s. 15(1)

s 15

s. 15(1)

N.V.K.


• s1?

PUNJAB U, NIVERSITY CHANDIGARH A

DEVJANI CHAKRABARTI & OTHERS

May 17, 1984 '

.. B . '

~ j [A.P SEN, A. VARADARAJAN AND V. BALAKRiSHNA ERADI, JJ.]

 Punjl:b University Act, Section 20 (5) and Section 31-Power of the Syndicate, to make rules, relating to the pattertr of education- No rule can -be S(lid to be retrospective merely because they subsequently applied to students C who. had earlier started their educadonal careers. ·

With the introduction of the system known as f'lO plus 2 plus 3" in the educat_ional L1sti1utions in the couutry, the Asscciation of the Indi'an Universities decided the equivalence of this 10+2+3 system with the old

11+3 yeafs degree course system still prevalent is some States and it suggested that in all States where the paitern of education is such as to require 14 years for the first degree i.e.-11 +3 years the new plus 2 stage of the Central Board of Seconda-ry Education be ireated as equivtilent to a pass in 1he first year or the three years degree course or fOr admission to

the first Y~'<ff of the t\vo years degree Course.

The appellant Punjab University, drcidd on 10:2.1977 that the 12th standard• exa, mination conducted by the Bords/Univcrsities under the new 10+2+3 system be recognised as equiva-lent to the Pre-Medical/Pre-Engineering/B.A. Part I/

B.sc:Part I/B. Com. Part I examination according to the combination of

the subjects.

Subsequently~ on .4.(i.1978 the Punjab Uliiversity decid6d to ireat the 11th standard of the new to+2+3 system as equivalent to . the Pre~LTniversity cxaminatioi:; i. of the Universi_ty.

These recognitions of the equivaleoce of th£se twO txaminations continued till the beginning of the year 1980.

But on 18.4.1980 the Punjab University decided that the first year student of 1he plus 2 course in the 10+2+3 system of the Central Board's schools who does not take a pub-lie examination at the-' end cf the first year should not be considered as equivalent to the student who has passed lhe pre-University examination of-the PuQjab Unive.rsity for joinirg the Pre-Medical/Prc.Enginceriog/B.A. Par! I/B. Sc. Part I/B Corn.

Part I of the University.

On 7.5.1980, the Punjab University decided that Ille 12th Standard Exainination in the new 10+2+3 system conducted " b)'. any recognised Board/Council/Unlv, er.sity shall be treated as equivalent to the prelJniversity Examination df the University.

lhe respondents in C~ 1977/80, namely 1 to 37 who had passed the I "th Stardard Examination in tbe!O+ 2+3. system of the Central Board of Education and respondents 38 to. 9.! who had been promoted. from the 11th . Standad to the 12th Standard in that system cha!Jeoged the two decisions

. F

li16

SUPREME COUl!T l!EPOl!TS

(1984) 3 s.C.R.

of the Pqnjab University dated 18.4;.1980, and 7.5.1980 by filing W.P.

1917 of 1980 contending that in view of the earlier" decisions Of the Universitynamely,.Annexures P. 2 and P. 3.dated 10.12.1977 and 4.6.1978 respec, tively they bad joined the classes in the plus 2 course with the object of joining .the coj\ege, s affiliated to. the University in the next class of . equivalence as alsq Engineering and Medical Colleges. and that the lJniversity cannot, therefore, change those decisions by the subsequent decisions,

(Annxures R. 2 and- R. 3) to their detrinient.

They invoked the doctrine of promissory cstoppCI in regard to th_at ground Or attack on ti:u::.c two decisions; The second groudd of<.1ttack by the petitioners in. _W.P. 1917 of 1980 was that the dcisions Annexures R-: 2& R-. 3 are _retrospective .in operation and they have taken away their vested right and. that the Univer~ sity bas no power, either under lhe Punjab University Act or under any, statute, regulation or rule to make any regulatio'o,) rule or ordinance adversely affecting their vested rights retrospectively,

The learned Judges of the D'ivision Bench rejected the con_teotipn of the petitioners before them thattb_e Syndicate bas no power which th6 Senate has under s.31 of the Act and held that the Syndicate has similar powe; rs under s.20 (5) of the Act.

They rejected the further contention .that there is any bar of promissory estoppel against the University in regdrd

to the mattt.."r and, however, held .that petitioiiers 1 to 37 had joined the t0+2'coursC in the Central School lying within the territOrial jurisdicti.oo of the Punjab Univorsity in 1978 and had passed the 12th Standard Examination and had _planned their education in a particular manner to join the co1leges ffili_3ted t.o the Punj<ib University in the second year of the 3 year degree course and other courses after passing the 12th staildard exa .. mination in the plus 2 system, Thfy. held that Annexure R.J wiil deprive petitioners f to 37 and Anncxtire R.2 will dep.rive petitioners 38 t'o 92 of right to seek admission in Engineering and -Medical Colleges after passing the 12th Standard in the 10+2 system.' and Anrtexures R.2 and and R.3 take away that r_igbt and are retrospective in nature.

In coming to this conciution the learned Judges of the DiVisioo Bt:nch relied vefy strongly upon the decision of the Full Bench of the Punjab & Haryana High. Court in Punjab University vs. Subflash Cander, 1976 P.L.R. 920.

In view of their decision in W.P. 1917 of 1980, another Bench allowed another W.P.' 2349 of 1980 fiied by the respondents Inc.A.. 2667/83. Hence the appeals by the. University. . ·

Allowing the appeals, the Court,

HELD : !. The decisions dated 10.12.1977. 4,6.1978, 18.4.1980 -and 7.5.1?80. respectively _are intra vireS the powers of the Syndicate' to make rules etcunder seation 20(5) of the Puajub University Act in tho same manner as the Senate can do undet's. 31 of that Act.

[819F)

In view of the decision ofthe Supreme Court dated 17.S 1984 rendered in Subha.ih Chander v. Punjab University (Civil Appeal No. 2828/ 1979 arising out. of 1976 I!.L.R. 920) and reversing the said decision of the Punjab High Court relying. on which the two Judgments . now uµder

l ·

PUNJAB v. D. Cl!A!<RABARTI (Varadarajqn, J.)

appeal, were pls<>ed,. in. the pre1e:1t ca<; e al'>O th3 two inpugl'l'd d~::id ons . ure prlma facie Po:; pctiv~ in op.::raUo'.l and th:y did not b.::,;:on1c rctro<; v pcctive merely b;:c:1.uc; e they sub5equntly applied. to stud.::nts who hld already started their edu:.itioual car.!ers: . HJwver, thi:r decision will not effect the right which nlight have bJen grailted to th~ peti'ipners in the writ petitions on the basis of the Judgments of the High Court which have been reversed io tllese appe1h [810F; 82lEF]

CIVIL APPELLATE JURISD!Cf!ON: Civil Ap 1eal No. 13.81 of 1980

Appeal by Specil leave, from the Judgment and Order dated the 7th July, 1980 of the Punjab and Haryana High Court in Civil Writ Petition No. 1917 of 1980.

A.nd

Civil Appeal No. 2667 of!983.

Appeal.by Special leave from the Judgment and: Order dated t]\c 8th July, 1980.ofth,; Punjab and. Haryana High Court in Civil Writ No. 2349 of 1980.

. Jawahar Lal Gupta, Janendralal abd B.R. Agarwal for the Appellant; .

Randhir Jain for the Respondents.

The Judgment of the Court , was delivered by

• A

VAR<ADARAJAN; l These appeals by special leave are 1'y the Punjab University and directed against two Division Bench judg- E men ts of tho Punjab and Haryana High Court in writ Petitions 1917 of 1980 and 2349 of 1980, allowing those W1it Petiiions without an~ order as to costs. W.P. 23~9 of 1980 was allow; d at the motion stage on 18 7.1980 as being covered by the decision in W.P. 19 l 7 of

1980 which was disposed of on.7.7.IY80. Kulwant Singh Tiwan.a, J. is a. pa, ty to both ti1e judgments and he sat with Harbans Lal,. J, for F hearing W.P. 1917 of J980 .. and with'M.M. Punchi,'J. for hearing W.P. 2349 of 1980. In these circumstances, it is necessary to state only the facts relating to W, P. 1917 of1980 alone briefly.

 The system known as "IO plus 2 plus 3 system" was introduced in the educational institutions in the cobl.lltry some years ago. The Association Of Indian universities c!ecided the equivalence of thiS ·

I 0+2+3 system with the .. old I l + 3 ye'ars degree course systein which was prevalent in some States and it suggested that in all States where the pattern of education is such as to require I 4 years for the first degree, i.e. 11 +3 years, the new plu; 2 stage of the Central Board of Secondary Education be treated as equivalent to a pass in the first year of the three-years dagree'course or for admission to the. first year 9f the twoyears degree cou'rse. This suggestion was ·

SUPREME COURT REPoi!.ts (1984] 3s.c.R.

conveyed by the Associatio.n of the Indian Universitre.s to the Chairman of the Central Board of Secondary. Education by a letter dated 18.4.1978. The appellant, Punjab University, decided on 10.2.1977 that the 12th .standard examination conducted by the Boards/Universities under thJ new rn+2+3 system be recognised as equivalentto the Pre-Medical/Pre-Engineering/]J.A. Part .!/B.Sc.

Part rm. Com Part I examination according to the combination of the subjects. Subsequently, on 4.6..1978 the Punjab University decided io treat the !Ith standard of the ew !0+2-f!3 system as . quivalent to Jhe pre-University examin.ation of the University.

Copies. of thoe dccis'ons dated 10.12.197'1 and 4.6.1978 , were

Annexures P. 2 and P. 3 .respectively in W.P. 1917 of 1980. These recognitions of the equ'lvalence of those tw'oexami, nations continued till the beginning of the year 1980. But on 18.4.1980 the Punjab University derided that the first y, ear student of the plus2 course in the 10+2+3 system of the Cent.ml Board's schools who does not take a public examination at the end of the f:trst year should not be considered as equivalent to the student who has p'1ss.ed the . pre- University examination of the Punjab University for joilling the Pre- Medical/Pre-Engineering/B.A Part I/B. Sc. Part I/B. <:'om. Part I oqhe Uniwrsity. On 7.5. 1980, the Punjab University decided that the IZth Standard Examination in the 'new 10+2+3 ystem conducted by any .recognized Board/Council. University shll M treated as equ:valenl to the pre University Examination of the University' These decisions dated 18.4.1980 and 7.5.1980 are Anaexures R2 and R.1 respectively in W.P, 1917 of !980.

Petitioners 1 to 37 in W.P. 1917 of 1980 had passed the 12th standard examination in the 10+2+3 system of the Central Board . of Education and petitioers 38 to 92 in the Writ Petition ad been promoted frotrJ.the 1 lth standard to the 12th standard in that system.

These 92 pctititll1ers f:t!ed W.f>. 1917 of 1980 challenging the Punjab University's decisions (Annexuies R-2 and R-3) dated 18.4.1980 and 7.5.1980 contending that in view of the earlier decisions of the University, namdy, Annexures P. 2 and P. 3 dated 10.12.1977 and 4.6.1978 respectively they had joined the classes in the plus 2 course with object ., f joining the colleges affiliated to the University .in tlie next class of equivalence as also Engineering and Medical Colleses and that the University cannot, therefore, change those decisiOns by the subsequent decisions, Anncxurcs R-2 and R-3 to their deteriment. They invoked the doctrine of promissory estoppel in regard to that g.round of attack on those two decisions. The sccoi1d ground of attk by the petitioners

' ;

• ' 'f

PlJNJl\il v. D. CHAKRABARTI (Varadarajmi. J.) 819

in. W.P. 1917 of 1980 was that the decisions Annexures R-2 aiid R-3 are retrospective in operation and they have taken away their vested right and that the University has no power, either under the

Punjab University Act or under any statute, reulation or rule to make any regulation, rule . or ordinance adversely affecting their vested. rights retrospectively.

' The: defence of the appellent-University was that' the deciswns, Annexures R-2 and R 3 were taken in the place' of the earlier deci- . sions, Annexures P.2 and P.3 in th" interest of eduction oi{ the ground that the I Ith standard examonation in the new 10+2+3 system was not a pubPc 'examination and the standard of education in the schools where that system was in vague was low and even themarking system in the examination Was lenient. The University further contended that even the syllabi in the equivalent examination in the schools and colleges were. not the same. The University stated that the Committee of Experts which was consti'tuted by the Vice-Chancellor of the University when the students in the engineering colleges started an agitation, went into the question and submitted a report suggecting the change in rgard to equivalenc~ in view of the difference in the syllabi and the deficiency in the teaching imparted in some subjects in the schools. The University, theteforc contended .that .the new decisions Annexures R.2 and R.3 were taken bonafide:i.nd are only prospective in'operetion anc( that the doctrine of promissory estoppel pleade-a by te petitioners in the Writ Pcti

tions does not appty to the University. •

The decisiops Annexures P.2, P.3, R.2 and R.3 arc of the Syndi<; ate wl1ich has power to make rules etc. under s'. 20 (5) of the Punjab Uniersity Act in the same manner as the Senate has similar power under s. 31 of that Act. The ]earned Judges of the . Divisio,-i Bench rjected the con{ention of th: petjtioners before ·.

them that the Syndicate has no power which the Senate has under

s. 31 of the Act and held that the Syndicate has similar powers under s . .20 (5) of the Act They rejected .the further contention that there is any bar of promissory estoppel against the University in regard to, the matter and, however, held. that petitioners 1 to 37 had j0ined the 10+2 co, urse in the Central Schools lying within the territorial jurisdiction of the Punjab University in 1978 aud passed • the 12th Standard Examination and had planned their education in a particular manner to join tlre colleges affiliated. to the Punjab University in the second year of the 3-year degree course and other courses after passing the 12th standard exmiintion in the plus 2

8 20

. -E

Sl; PREME COURT REPORTS [1984j 3 S.C.R.

system. They foJnd that similar is the cas~ of petitinors 38 to 92 in W.P. 1917 of 1980 who had l:ioen promoted from the 11th to the 12th standard i11 the plus 2 syscem. fhey held that Annexure R .. 3 will Jeprive petitioners 1 to 37 and Annexurn R.2 will deprive petiti, nicrs 38 to 92 of the right to seek admission in Engineering .and Medical Colleges after passing the 12th Standard in the 10+2

system, and Anncxnres R.2 and R.3' tah away that right and are retrospcetivc in natu1"<1.

In coming to this conclusion. the learned Judges of the Division Bench relied very strongiy upon. the decision of a Full Bench of the Punjab and HITTyana High Court in Punjab

Unirersity vs. S 1bhash Chander.(l) Tlie learned Judges accordingly allowed W.P. 1917 of 1980 on the sole. ground, namely,· that Annexures R.2 qnd R.3 arc bad as being retrospective in operation, without any order as to costs and held that Annexnres R.3 and R.2 will not stand in the way of potitio)1ers I to 37 and 38 to 92 respectively bofore them from seoking admission t() higher classes or in Engineering and Medical colleges on. tho basis of the old decisions, Annexnres P.2 and P3. The other Division Bench 'which heard W.P. 2349 of 19SO allowed that peiition Without any order as to

cots as being covered by the decision in WP. 1917 of \.98 I.

We are of the opinion that these appeals have to be allowed.

The learned Judges of the High Court allowed the Writ Petitions

only on the ground that the new dec:sions Annexures R.t and R.3 a<e. rtrospoctive in operation and that they cannot affect the writ petitioner> before them from seeking admission to higher classes cir in Engineer; Jl.g or Medical Colleges on tho basis of the earlier decis; ons Annexures P.2 and P .3, relying m 1inly upon the decis_ion of the Full Bench in Punjab University v. Subhash Ch1ner (supra).

We have, in our separc1te judg•mnt , clvered tod•1y in C.A. 2828 'of 1977, which arose out of that Full Bench decision, reversed that decision and hdd that there is nothing retrospective in the order challenged in that case.

In. that case one Subhash Chander was acijnitted to the integrated M.B.B.S. course in the Daya Nand Medical College, Ludhiana in tl)e y, ear 1965.

At the time of his. admission, under Regulation 25 read with r.7.l, a student who fails in one subject/paper was entitled to grace marks at I per cent of the total aggregate marks of all the subjects for which he appeared.

But in 1970. the rule was amended to the effect that the grace marks will be 1 per cent of the total aggregate marks for any particular subject of the examination in which he has failed. Subhash Chander appeared for the. final M.B.B.S, examination in 1974 and sec11red

(I) 1976° P.L.R, 920.

(- t

I .

. '

PUNJAB v. D. CHA,[(RAJlARTI (Varadarajan, J.) 821

106 out of 200 marks in the , practical examination and 95 out 200 marks in the teory. examination in Midwifery, which was one of the four subjects for which he appeared at that time. He had passed the examinations in the other three subjects for which the total aggregate was 1200 marks. Under the old rule he would have been entitled to 16 grace marks at 1 per cent of the total aggregate of all the four subjects, namely, 1600 marks. But he was allowed only 4 grace marks under the new rule being I p!r cent of the aggregate .for the subject in which he had failed, namely, Midwifery. The High CoUrt accepted his conten.tion that amendment of the rule made in 1970 was retrospective in operation .though it was made applicable Jo Subhash.Chander only' in 1974 merely becal!se

he had joined the integrated course in 1965 wlien the rule regarding the award of grace marks was more liberal. In allow\ng the appeal against the judgment of the Full Bench we have field that (there was no question of the rule having any retrospective operative as it was framed in 1970 and it did not say that it was operative from any earlier date and it was applied to Subhash Chander only in 1974. : It coul.d not be stated to be retrospeptive in operation nierely because

 it was applied to Subhash Chander who had joined the course in . 1965 before the amendment was made in 1970.

In the present case also the new decisions are prima facie prospective in operation and they did not become retrospective

erely because they; ubsequently, applied to students yvho. had already started their . educational careers. We, therefore, allow these appeals but without any order as'to costs and set aside the judgments of the High Court and dismiss the Writ Petitions . .How ever, this decision will not effect the right which might have been granted to the petitioners in th~ writ petitions on the basis of the judgments of the High Court which have been reversed in these appeals.

S.R.

Appeals allowed.

B •

' E

PUNJAB U, NIVERSITY CHANDIGARH

A

DEVJANI CHAKRABARTI & OTHERS

A.P SEN

A. VARADARAJAN

V. BALAKRiSHNA ERADI, JJ.

Section 20

Section 31

Punjab University

Punjab University Act

s. 31

Supreme Court

S 1984

Punjab High Court

Jawahar Lal Gupta

Janendralal abd B.R. Agarwal

Randhir Jain

Kulwant Singh Tiwan.a

Harbans Lal

with'M.M. Punchi,'J.

7.5. 1980

s. 31

s. 31

Unirersity

S 1

Subhash Chander

Daya Nand Medical College, Ludhiana

Midwifery


PUNJAB UNIVERSITY

SUBASH CHANDER AND.ANR.

May -17, }984 • [A.P. SEN, A. VARADA\lAJAN AND V. BALAKRIS!lNA BRAD!, JJ.)

Punfab University Calendar, 1965Rule 7.1 re'tating to M.8.B.S. course read - with Regu!dti(Jn 25 of Punjab University Regulations framed under P, iinjah. University Act'-Rule 7.1 a'"'!nded by Univmlty in May 1970 by way of addition of excep"tif; n to-Rule 2.J .of Punjab Univefsity.CalenUar, 1970 co_iresponding_ to ]J.ule 7.1of1965-Incorporated in Punjab University Calendar 1974-Whether amendtd rule had retrospective o'peration-Whether candidate joining ~M."B.B.S. course in 1965 and appearing for final exarnination in 1974 governed by old rule in force in 1965-or new rule in force in 1974-Whether student has ested right to claim benefit ofdny regulationot ru1e which was in 'force when he was admitted to th'e ' . c-ourse.

Words and Phrases-'etros.pctive"-Meaning of.

The first respondent joined M.B.B.S. course of the appellant Punjab University in 1965. At that ti1ne Regulation 25. of the Punjab University framed under s.31 of the Punjab Universit\)"-Act required a minimum of 50 pe~ cent of lnarks to pass in each subject and Rule 7.1 relating, inter alia, to M.B.B.S. "course IJfOvided that a candid<ite who fails in one or more papetsfsubjects /or aggregate may be given grace m1rks up.to 1 pr cent of the .total aggregate marks excluding-for _practical and internal assessment to h

0 is best advantage in order to have im declared tohave passed. the examination. In 1970, Rule 7.1 Was amended by the addition of an exception to Rule 2.1-which provided that in the case of M.J; i.B, S. examitlation however the grac; e marks shall be given upto 1 per cent of the total ms.rks of each subject and not upto t per cent of the aggregate marks of all the subjects. The first. respondent who appeared for the final M.B.B.S. examination in 1974 Was declared to have failed in one SUbjeCt b,:CaUS~ he COU]d fl Qt s'ecure. 50 petA cent in that Sl, lbject even after being award'ed the grace ars according to the new rule. This was cha1lenged before. the Hii:; h Court by the first respondent ort the grouud that the old R.egulaion 25

r, ed with the old Rule 7.1 which was in force when he joined the course in 1965 should be made applicable to him and he should be declared to.have Passed in that subj_ect. The Punjab University~ wntended that there was no element of retrospectivity in the application of the . amended rule and that students were bound to seure 1narks as per the regulation in force at the time of Commencement of the exaa1ination concerned and they had no !vested right to claim. the benefit of any regulation or rule.Which was in force when they , were admitted to the course. Confirming the judgment of a single Judge, a Fun Bench _of the High Court in a Letters Patent ilppealopined that there was nothing ill s.31 of the Punjab University Act bich would' clothe the Senat~, explicitly or iffipliedly

A •

,. .

PUNJAB UNIVERSITY v. S. Clli\NDER 823

With the power to frame-regulations retrospectively and held that the regulation, as amended in 1970, ha4. fetrospectively altered tJ?.e condition_ of the firsf respondent taking the examination to his detriment and could not be applied to him and that he was governed only by Regulation 25 read with Rule. 1.1 as it wa"' in force whl!n he joined the course in 1965. The 1-ligh CoU!t observed that M.B.B.S. was a siOgle integrated composite coure and the change in the regulations was a change in the C!?urse of that single Integrated course and was retrospective in natqre. Hence this iippeal.

Allowing the appeal,.

HELD : The Senate of the Punjab University had the necessary power under s.3J of the Act to fix, trom time to tin1e, the percentage of marks required for passing the examination and to grant or to refuse to grant grace marks o~ G to enhance .or reduce the quantum of grace marks. [8308]

The"re is rio element of retrospectivity in the change brought about by the addition of the excepti.on to Rtile 2.1 of the Ca la lid er for the year 1970. ''Retrospective" according to the Shorter Oxford English !Dictinoary, Third Edition. in relatiorito StatUtes etC. means ''Operath,·:;: \Vith regafd to past tirne 0 • The" change brought about by the addition of the exception to Rule 2.1 does not say tha'.t ; t sbaJl be oP'erative with effect from any earlier date. It is ob:viousljr.prospective.

Jt is Dot Possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to the first rcspondent; who apperred for the final eAamina:tion in 1974, after he had joined t.he courS""e earJ.ier in 1965. 'No prOmise was made or could be deemed to have been made to him at the time

of his admission in 1965 that there will be no ~Iteration of the rule or regulation in regrd to the percentage of marks required for passing any exatnination or award of grace marks and that the rules relating thereto which' were in force at the: time of his adII1iSsion Would continue to be applied to bim _until he finished his whole course. [8JOE-G]

Shorter Oxford English ictionary, Third Edition, referred to~

There is no question of the Cban.ge in the rule made in the year 1970 hav , ing retrospective operation merely because it was applied in 1974 to the firt

respondent who had joined the M.B.B.S. course in 1965 when the rtile regard ing award of grace marks was different. [832C]

The University was right in holding_ .that the first respondent was not -entitled to grace inarksunder the old rule but was entitled to grace marks under tho new rule and had therefore not passed the examination. (8320]

Sewa Ram v. Kurukshetra University.I LPA 97 of 1961 decided on 17.7.1968 by Punjab and Haryana High' Court, upheld.

B.N. Mishra v. State, [1965) 1 SCR 297, referred t9,

G ·.

...

('. r : A

CIVIL APPELLATE JuR1smc110N: Civil Appeal No. 2828

of 1977.

Appeal by Special leave from the Judgment and Order dated the 7th Septep'l.ber, 1976 of the Punjab &Haryana High Court in Letters Patent Appeal Nq. 352 of 1975. ·

Jmvahar Lal Gupta, . Janendralal and B.R. Agarwala for the -\ , Appellant.

Randhir Jain for the Respondent.

The Judgment of the Court Was delivered by

VARADARAJAN, J. This appeal by special leave is bY. Punjab University against the Judgment of a Full Bench of the Punjab and Haryana High Court in tqe Letters "Patent Appeal. 352 of 1975 confirming the judgment of a learned Single Judge in W.P. 1017 of 1975;

Subash Chander, respondent 1 in this appeal,, joined the Daya Nand Medical College, Ludhiana, for the M.B.B.S. course in 1965 when Regulation 25 of t~ Punjab University was in . force.

That regulation required a minimum of 50 per cent of. marks to pass in each subject. However Rule 7.1 relating to the M.B.B.S, and certain 0ther courses provided that-

"a candidate who fails in one .or mor~ papers/subjects and/or aggregate may be given grace marks up to 1 per cent of th.e total aggregate marks (including marks for practical and illtemaf assessment) to his best advantage in or de: tn be declared to have passed the examination."

But in May 1970 an amendment was made by the University in the form of an exception to Rule 2.1 which corresponds to Rule 7.1 which was in force in 1965 iri the following terms~ .

"2.\-, A candidate who appears in all subjects of the examination and who fails in one or . more subjects (written, practical, session al or viva voce and/or aggregate (if there is a separate requirement.of passing in the.aggregate) shall. be. given grace marks upto 1% of the total aggregate lll.arks ( excluiling marks for internal !ISSessment) to !Dake.

PUNJAB UNIVERSITY I'. s. CHANDER (Varadrajan, J.) 825 .. up forthe deficiency if by such addition the candidate can A pass the examination. While awardilltl grace marks fraction working to l /2 or more will be rounded to a whole." ' .

Exception-}n the case of M.B.B.S. and B.D.S. examinations, however, t]je grace marks shall be givn up to one per cent of the total of each subject and not upto one percent of aggregate of all thesubjects. In "other words, each subject will be, for this purpose, a separate unit, an.ct a candidate who fails in a subject \\jl not more than one per cent of the aggregate marks Of that subject may be given the requited number of marks in order to. pass in that subject."

Su bash Chander, ref pondent I, appeared for the final M.B.B.S. examination in 1974 and secured the following marks • and remarks :-

Medicine-202 out of 400 p.

Surgery--'-225 out of 400 p.

Eye and ENT-204 out.400 p. ·

Midiwifery : (i) Theory -95 out of 200)

(ii) Practical-106 out of 200) Reappear

According to Regulation 25 read with Rule 7.1 which was in force when Subash Chander joined the course in 196~ he would be eligible for grace marks .at I per cent of th.e aggregate marks of 1600 for all the above four subjects, which will be 16, and he would have passed in Midwifery also.

But he was given only I per cent of the total marks of 400 for Midwifery _as per the amended Regulation 25 read with Rule 2.1. of the Punjab. University Calendar, 1974, namely fo\lr as grace marks and held to have failed in Midwifery as the total of 95 marks which he actually scured and the 4

grac~ marks in the theory in that suhjed't fell short of 50 per cent by 1 mark. His contention is that the old Regulation 25 read with the old Rule 7.J which was in force when he joined the course in 1965 should be made applicable to him and he should be declared to hve passed the final ex, amination in ft)!! including Midwifery . . .

. Before the High Court, it was contended for the Punjab University that there is no clement of etrospetivity in the appli~ cation of the amended regulation and rule to students appearing for the examinations subsequent to the amendment. and that students are bound to secure marks as per the regulation in force at the time. of commencement of the examination concerned and they have no vested right to Claim the benefit of any regulation or rule which was in force when they were admitted to the course.

'Chief Justice .S.S. -Sandhawalia who spoke for the Full Bench in the Letters Patent Appeal out 'of which this appeal before us has arisen noticed certain decisions of the Punjab and Haryana High Court and obsenred that they did not lay down clear guidelines for deciding the question at issue, namely whether the University is entitled to changij_ the regulation relating to tile percentage of gaace mrks to be awarded to students and the basis for awarding the same i..e. whether it is on the aggregate or' the marks of an the subjects for which the students. appeared in the concerned • examination or the aggregate of the marks of tlie subject in which they had failed in that examination. The learned Chief Justice noticed this Court's observation in Hukum Chand v. Union of lndial1) which is this ;-

"The qnderlying principle is .that unlike sovereign legislature which has power to enact laws with retrospec- . tive operation authority vested with the power of makin_g

subordinate legislation has to act within the limit oi:: its power and.cannot transgress the same."

- And he proceeded to consider whether s. 31 of the Punjab University Act under which the regulations in question have been framed empowers the Senate to frame regulation with retrospective effect. Sectio'n 31 reads thus :-

"S. 31(1) The Senate,· with the Sanction of the G , Government, may from 'time to time make •regulations

consistent with this Act to provide for all matters relating to the University.

. . (2) In particular and without prejudice to the, generality of the foregoing power, such regulations may provide for.

(I) AIR 1972 SC :!427

,_ r .. ;; w

• ,,,,

,._y " ,, .

PUNJAB lJ,'l!VERi!TY v. s: ClH~DlR(Vara.larajan, J.). 821

(a) to (m) x x x x x

(n)° the courses of "study to be followed and the conditions to be comp.lied with by candidates. for any University exmination, and for degrees~ diplomas, licences, titles, niarks of honour .. scholarships and prizes conferred or granted by the University.''

The words ·"other than an examination for matriculation" . which previously occurred in sub-clause (n) have. been omitted by the Government of India notification dated 6.12.1969.

The learned <; hief Justice opined that there is not)iing in s.31 . c of the Punjab University Ac1 which would clothe the Senate, explicitily or impliedly, with the power to frme regulations retrospectively and held that the regulation, as amnded in 1970, has retrospectively altered the condition of Subash Chander, respondent 1, taking the exall}ination to his detriment and could not apply to him and that fa, is governed only by Regulation 25 read with Rule D 7.1 as it was in force when he joined the course ii). 1965 .. The learned Chief Justice thus differed from the view taken by a Division •Bench of the Punjab and Haryana .High Court (D.K. Mahajan and,· P.C. Jain, JJ.) in Sewa Rain v. Kurukshetra University(') in which it has been held thus:....:.

"The University is an autonomous body and has every . right in the matter of altering the . requisite rules concerning the conduct of examinations and the qualifying marks necessary. for a degree provided the xegulation are made well in advance [to the examination which a candidate is •. . . . reqmred to take." ' . ·· .

The learned .Chief Justice, rejected the submission made \ln behalf of the Punjab University thaf the change in .in th~ regulation made in 1970 by the addition or an exception to Rule 2.1 related to examinations to be held only in future and there is no question of . th, e rule having retrospective operation apd.held that when Subash

Chander respondent I, joined the course in 19.65 he Obviously did so with the intention of obtaining the degree in Medicine and Surgery ijnd that it \(a single integrated' composite course. The learned Chief Justice obseryed that the change in the regulation .. by

(I) LPA 97of1967 decided on 17.7.}!i68.

. ,

way of addition of the exception to Rule 2.1 is a change in th~ •tourse of that single integrated course and is.retospective in nature. The other two learned Jridges agreed with' thisvjew of the learned Chief Justice and the . Full Bench accordingly dismissed tlie appeal and directed the Punjab University to declare the result of Su bash . Chander, rcspond.ent l, afresh \lfter atforaing hini the benefit of .J 6 grace marks in accordance with the old Regulatioll' 25 read with Rule .J. l w4ich was . in force at the time of his adipission to the course in 1965 and no(only4 marks as per the amended regulation.

. We are of the opinion that thi{appeal bas to succeed. Section 31(1) of the Punjab University Act. extracted above 'enables the. Senate of the Punjab University, with the sanctions .of the Govern- : men!, to make from time to time, regulations, consistent. with the. ; provisions of that Act to provide for all matters relating to the

University. Sectfon 31(2)(n) provides that i!l'particular a!Jd with- . out prejudice to the generality of the foregoing power rnch regulati<in may provide for the courses •or study to be followed an<) the conditions to be compned with by candidates for any University examination and for degrees, diplomas, licences, tit!~, marks 1n honour, scholftrships net prizes conferred or granted by the, Universiry. Obtaining the requisite percentage of marks in the subject of the' examination falls under .the cliuse ."onditions .to be complied by candidates for any University examination" occuring in sub-clause (n) of s.31 of the. Act. Thyrefore, tlte S.enate had the power to award some percentage of marks as grace marks to candi• dates appearing in University exaiµinations in c0nsiderillg whether they are eiigible to pass the examination in the subject or'subjects . in which they had appeared. There is no dispute that the 'minimum . number of marks required for'passing the examination in a paper/ subject is 50 per cent of mar~. When Su bash Chander, respondent 1, was admitted to the .J\1.B.B.S. cpurse.in' 1965, Rule 7.1 as ii stood . then and extract; d above provided that the candidate who fails in

one or more papers/subjects/oraggregate may'be given grace marks upto I per cent of the fotal aggregate marks .. excluding for practical and internal assessment to his best advantage in order to have him declared to have passed the eJ1amination, Suhash Chander, respon dent 1, who appe.ared for the final M.B.B.S, .. examination only.nine years latter in 1974 had to pass in four subjects, namely, Medicine,· . Surgery Eye and ENT and Midwifery for each of which th.e aggre- . gate was 400 marks. He secured. 202, 225 and 204 marks in

Medicine, Surgery, arid Eye and ENT respectively and was 'declare<f

>-~ .

, .

I, . .1

PUNiAB uNfyERSITY v. s. CHANDER (Varqdarajan, J.) 829

A to have passed the examination jn those subjects. Midwifery .con· sists of two parts, namely, theory and practical for each of which the aggregate was 200. marks. Snbash Chander, respondent 1, secured

106 out of200 i.n the practical examination and only 95 out of200 in the theory examination. Since the total aggregate of all the four subjects fat.which he appeared in 1974 was 1600 m(!rks, under the old Regulation 25 ref!d with Rule 7.1 as. it stood at the tiine of his admission to. the course in 1965. he would be entitled .to Hi grace . marks and would have been declared to have passed the examination

as the addition of 16 grace marks to the 95 marks actiially secured

by him in the practical examination in Midwifery would satisfy the required minimum of 50 per cent. But long before Subash Chander. . C appeared for the final M.B.B.S. examination in.1974 the rule relat•·. ing to award of grace marks toM.B.B.S .. and B.D.S. students was changed by the Seate of the University in.1970 by the. t1ddition of an exception to R.ule 2.1 as men.tioned above. It is not contended that the S&rtction df the Government had not been obtaineded for making . this change. The exception says that in the case of M.B.B.S. and

B.D.S. examinations however the grace marks shall be given upto 1 per cent of the total marks of each subject. and not up to 1 per cent of the aggregate marks of all the subjects ; in other words each subject will be, for this purpose, a separate unit and a candidate who fails in a subject by not ate. than 1 per cent may be given the . requir.ed number of marks in order to pass in that subject. Uµder

this rule as amended in 1970 Subash Cltander, respondent 1, was. entitled to only 4 marks as grace marks being 1 per cent of the aggregate or4oo marks for-Midwifery alone.

A, s the addition or' 4 grace marks t~ . 9.5 marks actually secured by him in the practical examination in Midwifery for which the aggregate was 200 out of that total aggregate of 400_marks for that subjeci marks only 99 out of 200 it was less than 50 per cerit, and he was declared to have failed in. Midwifery and.asked.to eapper for that subject.

r "

 The minimum prescribed'for passing in each subject is' 50 per

cent~ Under the. old rule .as itslaod prior 1970, Subash Chander could have passed by getting 16 grace inarks being 1 per cent of the aggregate of all the four subjects, namely;· Medicine, Surgery, Eye

•. ' ' f . . and ENT a11d Midwifery even if he had secured only 84 marks out of 200 in the pra'ctical examination in Midwifery which comes to ovly 42per cent and he had secured more. than 50. per cent in the other subjects/papers. The Senate thought it fit to remedy this gladbg defect so for as M, B.B.S. andIB.D.S. examinations are con-

• 830 StlPRedB cot/RT RBPORTS

(1984) 3 S.ll.C •.. , -<-

cerned by:adding the excepection to Rule 2.1 in 1970 under which the.· grace marks would be only l per cent of the aggregate marks in the particular subject .. We do not think that the Senate did not have the necessary power to effect tha.t hange or-had acted unreasonably in making the change. We thillk that the Senate had the necessary power under s .. 31(2)(n) of the Act to fix, from time to time, the percentage of marks required for passing the xaminatio11 and to grant or to refuse togrant grace marks or to enhance.or yeduce the quantum of grace marks.. It has not been contended .. before us . that there. was any ma/a fides on the part of the Senate , in making :this change .. It could not be contended that .Subash

' ' Chander who appared for the final examination in 1974 did not :have . sufficient notice of the change brought about iri 1970 in the rule relating to award of grace marks or that he was prejuiced by the change;

We do not agree with the learned Judges of the Full Bench . of ~_, the High Court that there is any element of retrospectivity in the chimge b.rought about by the addition of the exception to ule :i..1

 of the Calender for the year 1970. ··. "Refrospe_ctive" according to the Shorter Oxford English Dictionary, Third Edition, in relation to Statutes etc. means "Operatiye with regard to past .time". The change brought about by the.addition ofthe exception to Rule 2.1 does not say that it shall .be operative with effect from any earlier .r . date. It is obviously prospective. It.is not possible to hold that it.is ' retrospectivein operation merely because though introduced in 1970 'it was applied to Subash Chander, respondent l, who appeared for " the final exmip.ation in 1974, after he had joined . the course earlier , . in 1965. N.o promise was made or could be deemed IQ have.· ben p. made to him at the time•ofhis admission in 1965 that there will be ·

no alteration of the rul~ or regulation in regard to the percentage of marks. required for passing any examination or award of. grace marks aild that the rulesrelating there to which were in force at the time bf his admission would continue to be applied to.· him until he finished his whole course. In the Calendar for 1979 we . find . tl)e folfowing at page 1 :

"Notwithstanding the integrated nature of a c.ourse spread over mote than one academic year; the regulations ·

in force at the tiine a'studentjoins a'course shall hold good . only for the e11aminations held during or -at the end of the academic. year. Nothing in these regulations shall e <Jeemed to debar . the University from. amending .· ihe

, I

PQNJAa ONlvERSiTY v. s. CHANDllR(Varai!arajan, /,) 831

 regulations subsequently and the amended regulations,. if any, shall apply to all students whether old or new."

• This is as it should be, though there was no such provision in .the Calendar of 196S when Subash Chander was admitted to the course. It is admitted that it was introduced only in 1971. The absence of such a provision. in the Calendar of 1965 is of. no consequence. It is necessary to note in this connection what this Court had said in regard to retrospectivity in such matters in B.N. Mishfa ,

v. State.(1) It is this : · .. "The next contention on behalf of the appellant is that the rule.is retrospective and that no retrospecti'(e rule can be made. As we read the rule we do not find any retrospectivity in it. All that. the rule provides is that from the date it comes into force the age of retirement wbuld he SS years: It _would therefore apply from that date to all government servants, even .though they may have been recruited before May 25, 196\in the same way as the rule o_f 1957 which incre_ased the age from 55 years to 58 years applied to all government servants. even though they were rec(uited before 19S7. Btit it.is urged that the proviso shows that the rule was applied retrospectively. We have already referred to .the proviso which lays down that government servants who had attained the age of 55 years on or be!ore.

June 17., 1957 and had not attained the age of 58 years on May. 25, 1961 would be deemed to have been retained in '

service after the dat_e of superannuation, namely 55 years.

This proviso _in our opinion does not m_ake the rule retrospective; it only provides as to how the period of servke beyond S5 years should be treated in view of the, earlier ·

rule of 1957 which was .being changed by the rule.of 1961.

Further the second order issued on the same day alo clearly shows. that there was no retrospective operation of the rule, for in actual effect no government servant 'was retired before the date ofnew rule i.e. May 25, 1961 and all of them were continued in service up to December 31, 1961 and were therefore to retire ou reaching the _age of superannuation according to the old rule. We ar_e, therefore, of opinion that the new ru\e reducing the age of retirement

~I) [1965] 1 S.C.R, 297.

from 58 years to 55 years camot be said to be retrospective.

The proviso to new rule and the second notification are oniy methods to tide over the difficult situation which would arise i~ the' public service . if the new rule was applied at once and als.o to meet any financial objectipn arising 0ut of the enforcement of the new rule. The new rule therefore, cannot be struck down <Jn the ground that it is retrospective in operation,"

• Therefore, we are clearly of the' opinion that there is no

. qu.estion of the change in the . rule made in. the year !'970 having retrospective operation merely because it was applied in 1974 to Subash Chander who had joined the M.B.B.S. coure in 1965 when the rukregardiug award of grace marks was different. ln these circumstances, we affirm the view of D.K. Mahajan and P.C. Jain, JJ. expressed .in the Division Bench judgment in Sewa Ram v.

Kurukshetra University (Supra) and; disapprove the view taken. by the. learned Judges of the Full Bench in the dec.ision under appeal in this case and bold that; the • u'nivetsity was right in holding that Su bash Chander, respondent I, was not entitled to 16 grace marks. under the old rule but was entitled to only. 4 grace marks under the ne.w rule and had therefore not passed the examina\ion: in Midwifery. We allow the appeal but without any order as to .costs. However, this decision will not effect the result of the examination of Subash €hander in Midwifery if it had been declared as per the directfon of . the learned Judges of the FulfBench in the Letters Pa.tent Appeal;

H.S.K.

Appeifl allowei

PUNJAB UNIVERSITY

SUBASH CHANDER AND.ANR

A.P. SEN

Punjab University Regulations

Punjab University~

Senate of the Punjab University

Punjab and Haryana High' Court

[1965) 1 SCR 297

Jmvahar Lal Gupta

Janendralal

B.R. Agarwala

Randhir Jain

VARADARAJAN

Subash Chander

Daya Nand Medical College, Ludhiana

Varadrajan

Su bash Chander

Reappear

According to Regulation

Subash Chander

Punjab University

.S.S. -Sandhawalia

Punjab and Haryana High Court

s. 31

S. 31(1)

Senate

Government of India

Subash Chander

D.K. Mahajan

P.C. Jain

Subash

Chander

Section 31(1)

Su bash Chander

Suhash Chander

Varqdarajan

Snbash Chander

Midwifery

.Subash

' ' Chander

May 25, 196\in

the rule provides is that from the date it comes into force the age of retirement wbuld he SS years: It would therefore apply from that date to all government servants, even .though they may have been recruited before May 25, 196\in the same way as the rule of 1957 which incre_ased the age from 55 years to 58 years applied to all government servants.

June 17., 1957

May. 25, 1961

May 25, 1961

that there was no retrospective operation of the rule, for in actual effect no government servant 'was retired before the date ofnew rule i.e. May 25, 1961 and all of them were continued in service up to December 31, 1961 and were therefore to retire ou reaching the age of superannuation according to the old rule.

December 31, 1961

Subash

H.S.K.


.... i

L.D. JAIKWAL

v . • •

STATE OF U.P.

May 17, 1.984

. [A.P. SEN AND M.P. THAKKAR, JJ .]

Contempt a/Courts Act 1971, Section 2(c)Jl)

Ad_vocate making written app/ichtion couched in sc.uri/lous language-Itn-putarion-Judgt! a corrupt Judge' 'and-_conta1ni11ating the seat of ju'stice'.- High

Gour~ convicting a_nd sentencig advocate_for contemPt of Court - appeal 10 . Supre1ne Court-Written apology'tendered to Judge 'as directed by the suPreme.

Court ·whether sufficient to set aside coni, iction by Ei[gh Cou'rt.

The appellant was a senior advocte. He was required to_ appear before the Special Judge to make his submissiori on the question of sentence to be imposed UpOn his cliept who was conVicted for an offence under s.5 (2) of the Prevention of Corru"ption Act, 1947: As .he appeared in a shirt-and-trous'!roUtfit aud n•t in Court attire, the Judg~ asked him to-<ippe"ar_ in the prescribed. formal attii"e for be_ing heard in his professional capacity. The appellant took um brage and left the.Court. -Sonle other advqcate appeared in the matter and the accused having being found gi:iilty of_the-thqrge ot corruption the Judge impOsed. a sentence of _four years R._I. ·

The appellarit niade a written application to the Judge couched in scurillous -lan8uage making the imputation that the Judge-was a 'corruPt Jlldge~ and added that he was 'contaminating the seat Of justice' ; andforwarded Copies, of the application, withOut occasion or Deed to the AdrnjnisttatiVe Judge, Chief Secretary and Other authOrities.

The 'High Court initiated contempt proceedings, found 't_heappellarit _guilty of having con1mitte<t cfiminal contempt under s. 2(c)(l) of the.Contempt of. , Courts Ao::t, 1971 and after affording fUll opportunity Of hear-ing, iinposed a . 1'Jt . sen.teoce Of simple imprisonment for one Week and a fine _of. Rs. 500. ·

Dismissing the Apl,·

HELD : 1. eonsideratiOns regarding maintenance of theindependence of the :i.uiiciary and' the morale of the Judges dema.nd that the appellant should not escape with iinpunify on the mere .tendering of an apology which in any case does not wipe_ o.ut the mischief. If uch a apology Were to be accepted, as a rule, an<i not as '.an eception, it \vo_uld vfrtua-IJy be tantamount to issuing 'licence' to i; Candalize corts and .commit OOQ.tompt of court with impunity. The

High ourt was justifiedin impoing a substantive Sentence and .the said sentence cannot be said to be excessive or out of proponion.[838E ; 837E ; 83.SFJ

834 SUPRl!ME COURT REPORTS. [19841.3 s.c.R.

No J adge can takea deCiSiori which does Dot displease one side or the other. By the vety flature of his work.he as to decide matters against One-or

oher_ of the parties. lf the fact that heenders a decision which is resented to -by a liigarit or _his lawyer Were to expose hitri to such a risk, it .will sound the death knell of the institution. The day must be dreaded when a Judge cannat work with independence ·-by (eaSon O:f tl1e fear that a disgruntleid member of the_ Bar can publicly humiliate him and heap disagree on himwith._lmpunity, if any ot his_ otdets, or the decision rendered by him displeas_es any-of the 'Advoc.ates ·-.11ppearing in the miittcr. A line has therefore to be drawn some ..

Where, some day, by some one, That -is why the Court is impelled to act (rather than merely. sermonise) much as the.Court dis1ike.s im:posiiig punish~ ment whilst.excising: tQe contempt jufisdiction; Wbih rto doubt has to be.

eercised .very sparingly and withcircurnspection. [837ll ; 838A-Bl . 2: An attituCI~ of unerited enienc.y cannot be adopted at the cost of princip.le an; d at the ex;1ense Of the Judge who has .been scanqalized. TO pursue a popl.llist line of showing indulgence _is not very difficult in fact jt is more difficult to resist the temptation .to do sO rather 'than tc;> ad4, Cre to. the m3.il~ studded. path of duty. Institutiorial perSpective demahds that considerations of populism are not allowed to.obstruct the path of duty. [338C]

. In the .instnt cse, the aPpeUan t sought to justify hiS co_ndct before the High C.ourt on the gronnd of the treatment alloged to have .been meted out'to him by the Special Jµdge. '.No remOr_se was felt.

No sorrow Was epfessed.

No apology was off erred. He .expressed his sorrow only before this Court •• saylng that ha had lost his m¢nta1 balaace, alld was granted ; an oPportunity to tender® apology. He appeared before the Special Judge and tendered a written apOJOgy indicaiing that be was doing so : ('as Qirected by the Hon'ble Si1prme Court. 0 This circumstance showS.it Was a -paper' apology, and that' the eXpression of sorrow came from bis pen, not fr6m-his heart.. It is one: thing to "say"

sorryit:_ is another to ."fetl" sorry. This Court cannot subscribe to the' ·

'slapsay sorryand forget' .school of thought in administration of contempi jurisdiction. [886H; 837A-C] ·

CRiMINAL APPELLAIB JUR1so1cr10N : Criminal Appeal No . . 611 of 1982.

From.the Judgment and Order dated the 5t!\ November, 1982 of the Allahabad High Court in Criminal Contempt Case No.

144/SL. •

N.N. Sharma, Mrs. Pankaj Appellant.

Verma & Mrs. Vijay Gupta for the

~ . .

Dalveer Bhandari for the Respondent. ·

T]le Judgment of the Court was delivered by . . ' . .

• •

ii.

j l

L.D. JAIKWAL v. U.P. STATE (Thakkar, J.) 835

THAKKAR, J. We are sorry to say we cannot. subscribe to the 'slap-say sorry-and forget' school of thought in administration of contempt j11risprudence, Saying 'sorry' does. not make the slapper poorer. Nor does the cheek which has iakell the slap smart less upon the said hypociitical word being uttered through the very lips which not long ago slandered a judicial officer without the slightest compunction. •

An Advocate whose client had been convicted by the learned Special Judge, Dehra4un; was required to appear before the learned . Judge to make his submissious on the question of 'sentence' to be imposed on the accused. upon his being found guilty of au of(ence . under Section 5(2) of the Prevention of Corruption Act by the Court.

The learned Advocate app'eared in a shirt-and-trouser-outfit in disregard of the rule requiring him to appear only in Court attire

when appearing in his professional Gapacity, The learned Judge aske.d him to. appear in the prescribed formal attire for being heard in his professio.nal capacity. The learned Advocate apparently took umbrageand left the Court. Some .other Advocate appeared on: behalf of. accused who had been found guilty of a . chatge of corruption. The learned. Judge iplposed a senteqce of 4 .

years' R.I. which may have been considered to be on the high side.

The matter in that case could have been carried to the High Court by way of an appeal, both, on the question of conviction as iilso, on the question of sentence.· But so far as the Court of the Special Judge was concerned; as .the judgment had been pronounced anci nothing more remained to be done by that Court, the matter should have rested there. The. appellant, a senior Advocate of longstanding (not an immature inexperienced junior), however made a wriiten application to the learned Special Judge couched .in scurillous language making the !tnputation that the Judge was a "corrupt

Judge'' and adding that he was . "contaminating the seat of justice".

A threat was also held 'OU! that a complaint was being lodged to higher authorities that he was corrupt and did not deserve to be retained in service .. The offending portion may better be quoted :- . .

"I am making a complaint against you to the' highest authorities in the country, that you are corrupt and do not deSe!'Ve to be retained in service. The earlier people like . ypu are bundled out the better for us all. ·

As for (juantUm of sentence, I will neyer bow down before you. You maY, award the mm11m senten9e. Any,

836 SDPREME COURT JiEPORTS (1984] 3 s.c.&. ,. -

way, you should feel ashamed of yourself that you are con taminating the seat of justice." • There is no known. pr.ovision for making such an application after a matter is disposed of by a Judge. Nor was any legal pur' pose to be .served by making such an application ..

Obviously application was made to terrorize and harass the . Judgfor imposing a sentence which perhaps be considered to be on

the high side whether or .not it was really .so was for the higher.

Co11rt to decide.

. . ''\

C As pointed.out carler, it was however notperinissible to adopt. a course of intimidatfori in order to frighten the Judge. His malicious purpose in making the application is estaplished by another telltale

circumstance by forwarding copy _of this application, witho11t any • occassion or need for it, to severaLauth.orities and; diginitaries. ·

. . (·

I. Administrative Jl!dge, Allahabad for favour of requisitioning case file S.T. No. 2 from.Dehradun and scann ing through the facts.

 2, Chief Secretary, Uttar Pradesh.Government Lucknow ..

3. Director~ Vigilance Commission; U.P., Lucknow:

.4. Prime Minister, Secretariat, Delhi..

5: State Counsel, Shri Pooran Singh, Court of Shri V.K. ·

Agarwal, Dehradun.

6. Shri D. Vira, I.C.S., Chaifman, Indian Police Comniis,

J ..

F sion, Delhi.

7. President, Bar Association, Dehradu~.

8. The Hon'ble. Chief fostice of Bharat ... . . .

The High Court of Allahabad intitiate.d contempt proceedings, found the appellant gulity of having committed.criminal contempt . under Section 2(c)(l) of. the Contempt of Courts Act, 197-1, after affording him full opportunity of hearing, and imposed a sentence of S:L for 1 week and a fine of Rs. 500/- (in default to undergo a further term of s:L for 1 week). Hence this appeal.

" Before the High Court the appellant sought to justify his

onduct on the ground of the treatment alleged to have been meted

' .

' •

• J

.J t

• LD. JA.iKWAI, v. U.i>. STATE (Thakkar, J.) . 837 " .out to him by the learned Judge. No remorse was felt. No .sorrow ·

was expressed. No apology was offered. Only when the appellant approached this Court he expressed his sorrow before this Court saying that he had lost his mental , balance. Upon finding that thi~ Court was reluctant to hear him even on the question of sentence, . . ' . as he had not even tendered his apology to the learned Judge who was scandalized, he .prayed for three weeks' time to.give him an opportunity to do:so. His request was granted. He appeared before the learned Judge and tendered a written apology wher.ein he stated that he was doing so "as directed by the Him'ble Supreme Court." . This circumstance in a way shows that it was a 'paper' apology and the expression of sorrow came from his pen, not from his heart.

For, it is one thing to "say" sorry-it is .another to "feel" .sorry. It is in this context that we have been obliged to make the opening remarks at the commencement of this judgment ..

We do not think that merelybecause the appellant hhs tendered his apology we should set asid~ the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making tlie grossest imputations against him has to do, is to go ahead and scap:dalize him, and later on .tender a formal empty apology which costs him practically nothing. ' ·

If such an apology were to be accepted, as a. rule, and not as an exceptiou; it would in virtually be tentamount to issuing a 'licenc.e' to scandalize courts and commit contempt of court with impunity; •

It will be rather difficult to persuade members of the.Bar, w)lo care for their self-respect, to join the judiciary if they are expected to pay such a price fodt. And no sitting Judge will feel free to decide any matter as pet the dictates of his conscience' on account

C>f .the fear .of being scandalized and persecuted by an Advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation . were to .be countenanced, advocates ·- . -. . who can cow down the Judges, make them fall in line with their wishes, by threats of character ass.asination and persecution, will be preferred by the litigants to the advocates who are. mindful of profes sional ethics and believe in maintaining the decorum of Courts. .

No Judge cah take a decision . which doi;~ not displease one side or the.othe.r. By the very nature of his work he has to decide . matters against one or other of the parties; If the fact that he

• .. .

SUPREME .COURT REPORTS

. (1984) 3 S.C.R.

renders a decision wh!th fa resented to by a. litigant or his laWyer ' were to expose him to.such risk, jt wmsound the death knell of the instituti0n, A line has therefore to be drawn somewhere, some day, by some orie. That is why the Court is impelled to act (rather than merely sermonize), much as the Court dislikes imposing punishment. whilst exerCising the'contempt jurisdictiop, which no doubt has to be . exercised very sparingly and with cir9umspection. we do not think that we can adopt an attitude of unmerited leniency at the cost of

priftcipe and at the expense <;>f th~ Judge who' has been sca.ndallzed.

We are fully aware that it is not very difticult to .show magnanimity when some one else is the victim rather than when oneself is the victim: To pµrslle a populist line of showing indulgence is not. very difficult-iii fact it is more difficult to resist the temptation to do so rather than to adhere to the nail-studded path of duty. Institutional perspective demands tlrnt considerations of populism are not allowed to obstructthe .path of duty.. We, therefore, . cannot take a lenient . or indulgent view of this matter,. the day. must be dreaded when a Judge cannot w9rk with independence by reason of the fear that a disgruntled member of the Bar can publicly humiliate him and heap disgrace ori.himwith impunity, if any of his orders, or .the decision rendered. by him,· displeases any of the Advocates appearing in the matter. . ',' . .

We firmly believe that considerations. regarding maintenance of the independence of'l)le judiciary and the morale of the Judges demand that we do not allow the appellant to escape with impnity on the mere tendering of an apology which in any case does not wipe out the mischief. We are of the opinion tba t the High Court was therefore justified in imposing a substantive sentence. And the sentence imposed cannot be said to be excessive or out of propor-

-.. .. t~OD.· '

G Appeal is accordingly dismissed. •

N.V.K.

Appeal dismssed.

"""' '

1 •

.~ I

D. JAIKWAL

v . • •

STATE OF U

A.P. SEN

M.P. THAKKAR, JJ

Courts Act 1971

Section 2(c)

s. 2(c)(l)

Allahabad High Court

N.N. Sharma

Pankaj

Verma

Vijay Gupta

Dalveer Bhandari

THAKKAR

Section 5(2)

Prevention of Corruption Act

Prime Minister, Secretariat, Delhi

State Counsel, Shri Pooran Singh

D. Vira

President, Bar Association, Dehradu~.

Chief fostice of Bharat

High Court of Allahabad

Section 2(c)(l)

Contempt of Courts Act

Thakkar

Supreme Court