SYED YOUSUF Y\RKHAN & ORS.

\',

SYED MOHAMMED YARKHAN & ORS.

January 4, 1967

(K. N. WANCHOO, R.S. BACHAWAT AND J. M. SHELAT, JJ.j Part B States (Laws) Act, 1951-Indum Vmitation Act, 1908 txtend d to Hyderabad-Hyderabad Act II of Fl322 repealed-Possession of muslim wakf property situated in Hyderabad lost in 1937-Suit for recovery filed in 1956-Suit whether fi/Rd wit/Jin time-Indian Act or Hyderabad Act to apply-Effect of Indian Limitation Ac•, .r. 30.

The Dargah Hazarat Habeeb Ali Shah Saheb, a muslim wakf had certain property in Hyderabad of which it was dispossessed in 1937. The Hyderabad Limitation Act 11 of 1322F did n.ot apply to wakf properties and thus there was no limitation under it for a suit for recovery of such property.

On April 1, 1951 the Part B States (laws) Act, 1951 came into force and extend< d the Indian Limitation Act. 1908 to Hyderabad and the corresponding law in Hyderabad accordingly stood repealed. By s. 30 the Indian Act laid down that any suit for which the period of limitation prescribed under the Indian Act, was shorter than that prescribed in the State Act could be instituted "within the period of two years next after the coming into force of this Act in that Pan B State or within the period .Prescribed for such suit by such corresponding law, whichever period expires first." Jn 1956 the mutawalli of the aforesaid Dargah and the Board of Muslim Endowmenli, Hyderabad filed the present suit for recovery of the wakf property. The trial court, on the footing that the Indian Limitation Act applied, dismised the suit as time barred under Art. 142. The High Court however held that the application of the

Indian Limitation Act, I 908 to the suit would bar and confiscate the existing cause of action for the recovery of the suit property, as the P&rt B States (Laws) Act while ••tending the Indian Limitation Act to Hyderahad did not allow a reasonable time to the plaintiffs for enforcing the existing cause of action and consequently the Indian Limitation Act could not affect the suit and the suit was governed by the Hyderabad Limitation Act.

Some of the defendants appealed to this Court.

HELD : The trial court had rightly held the suit to be time-barred.

(i) The ••tension of the Indian Limitation Act, 1908 to Hyderabad artd t'te consequential change in law prescribing shorter period of limita tion did not confisc.1te the existing cause of actron and must be regarded as an alteration in the Jaw of procedure for its enforcement Therefore the normal rule that the law of limitation applicable to the suit is 1he

law in furce at the date of the inst'tution of the suit must apply. (321 C-DJ G The period of limitation for the suit prescribed by the Indian Limita• tion Act was shorter than the period prescribed by the Hydcrnbad Act.

Therefore s. 30 of the Indian Act enabled the plaintiffs to institute th: suit within a period of two years after April I. I951. The suit not having been instituted within that period the r!aintiffs could not avail themselves of the benefit of s. 30. [321 DJ

(ii) The Bo.rd of Muslim Endowments was not an agent of the State Government by virtue of any provr.iion of the Muslim Wakf Act, I 954 and a suit instituted by it for the recovery of wakf property was not a

A suit by or on behalf of the State Government to which Art. 149 of the Indian Limitation Act, 1908 was applicable. [322 C]

Tamlin v. Hannafored. (1949)2 A.E.R. 327, and State , 0•"ng Corporation of India Ltd. v. Commercial Tax Officer, A.l.R. 1963 S.C. 811, referred to.

Since the passing of the Religious Endowments Act, 1963 the Mutawalli eannot be regarded as a proeurator of the Government. A suit by him for the recovery of wakf property cannot be regarded as a suit on its behalf, [322, E-FJ

Jewan Doss Sahoo v. Shah Kubeer.o<xl-Deen, 2 Moo. I.A. 390 Shaikh Laul Mohomed v. Lalla Bri/ Kishore, 17 Weekly Refnrter (Sutherland) 430 and Beharl Lal & Sons. v. Muhamad Muttaki, .L.R. 20 All. 482, referred to.

On his appointment the Mutawalli acquires no new right of suit and his appointment does not give him a fresb 1tarting point .of limitation for the recovery of the property. [322 F-0)

(iii) The contention that as limitation did not run under the Hyderabad Limitation Act, the date when the Indian Limitation Act, 1908 came into force in Hyderabad should be regarded • the starting point of limitation has no force.

During the currencyof lhe Hydernbad Limitation Act limitation did not run, but the Act did not change the date of dispossession. That date was September 20, 1937. For the purpose of Art, 142 of the Indian Limitation Act, 1908 under which. the case fell, that date must be regarded as the starting point of limitation. [322 G.H;

323 A-BJ CML APPELLATE JURISDICATION: Civil Appeal No.760 of 1964.

Appeal by special leave from the judgment and decree dated December 12, 1962 of the Andhra Pradesh High Court in C.C.C Appeal No. 5 of 1960.

R. V. Pillai and /'.1. M. Kshatriya, for the appellants.

Daniel A. Latifi and M. /. Khowaja, for the respondents.

The Judgment of the Court wa& delivered by

Bachawat, J. This appeal arises out of a suit for the recovery of possession of the house known as Sama l(hana and five tiled rooms inside the compound of a dargah at Katalamandi, Hyderabad. The property belongs to Dargah Hazarat Habbeeb Ali Shah Saheb. The dargah while in possession of the property was dispossessed by the defendants long ago. Counsel for the plaintiffs conceded before us that the dargah was dispossessed of the property on or about September 20, 1937, when the defendants filed objections in the course of certain proceedings for enrolmeat of the property as endowed property under the Hyderabad Endowment Regulations. While the Hyderabad Limitation Act Tl of i322 F was in force il1 Hyderabad, there was no limitation for a suit for recovery of a wakf property. Section 29(c) of the Act applied to suits relating to wakf. By virtue of s. 29(c), a suit for recveryofawakfpropertywasoutside the Act. On April I, 1951,

the Part B States (Laws) Act, 1951, came into force and extended the Indian Limitation Act 1908 to Hyderabad, and the corresponding law in force in Hyderabad stood repealed. On February 3, 1956, the mutawalli of the dargah and the Board c-f Muslim Endowments, Hyderabad, instituted the present suit for recovery of the property from the defendants. The suit was substantially a suit on behalf of the wakf who while in possession of the property had been dispossessed.

On the assumption that the Jndi:i Limitation Act, 1908 applies to the suit, primafacie the suit would be governed by art. 142 of that Act and would be barred by limitation. The trial court dismissed the suit on the ground that it was so barred. On appeal, the High Court of Andhra Pradesh

held that the suit was governed by the Hyderabad Limitation Act and was not barred by limitation.

On this finding the High Court decreed the suit. Some of the defendants now appeal to this Court by special leave.

The High Court held that the application of the Indian Limitation Act 1908 to the suit would bar and confiscate the existing cause of action for the recovery of the suit property, as the Part B States (Laws) Act while extending the Indian Limitation Act to Hyderabad did not allow a reasonable time to the plaintiffs for enforcing the existing cause of action and consequently the Indian Limitation Act could not affect the suit and the suit was governed by the Hyderabad Limitation Act.

Now, the Part B States (Laws) Act 1951 was passed on February 22, 1951. The Act came into force on April 1, 1951 by virtue of a notification of the Central Government dated March 7,

I'J51 and published in the gazette on March 10, 1915.

It extended to the Part B States the Indian Limitation Act 1908 as amended with the addition of s. 30 which is in these terms:

"30. Provision for States for which the period prescribed is shorter than that prescribed by any law previously in force in a Part R State.

Notwithstanrling anything herein contained, any suit for which the per'Jd of limitation prescribed by this Act is shorter than the period of limitation prescribtJ by any law corresponding to this Act in force in a Part B State which is repealerl bv the Plrt B States (Laws) Act, 1951. may be instituted within the period of two years next after the coming into force of this Act in that Part B States or within the period prescribed for such suit by such corrsponding law, whichever period expires first."

Section 30 should be construed liberally considering that it is intended to alleviate hardship consequential on the introduction of a shorter period of limitation.

Ex-facie, s. 30 applies to a suit for which the period of limitation prescribed by the Indian Limitation Act 1908 is shorter than the period of limitation prescribed

.lo

by the corresponding Jaw in force in the Part B State.

N<:>w, the Hyderabad Limitation Act did noply to a suit for recovery of possession of a wakf property. The result was that under the corresponding law in force in Hyderabad, there was no limitation for such a suit. In other words, the period of limitation prescribed for the suit by the corresponding law in Hyderabad was an unlimited period. Article 142 of the Indian Limitation Act 1908 applies to a suit for recovery of possession of the wakf property.

As it prescribes a shorter period of limitation for the institution of the suit, s. 30 enabled the plaintiffs to institute the suit within a period of two years after April 1, 1951. The Part B States (Laws) Act 1951 while extending the Indian Limitation Act 1908 to Hyderabad thus allowed the plaintiffs reasonable time to institute the suit for recovery of the property. The extension of the Indian Limitation Act 1908 to Hyderabad and the consequential change in law prescribing a shorter period of limitation did not confiscate the existing cause of action and must be regarded as an alteration in the law of procedure for its enforcement. We must, therefore, apply the normal rule that the law of limitation applicable to the suit is the law in force at the date of the institution of the suit.

The suit is, therefore, governed by the Indian Limitation Act 1908.

The laintiffs did not institute the suit within two years after April 1, 1951. They cannot therefore avail themselves of the benefit of s. 3Ci.

Counsel submitted that the present suit was a suit by or on behalf of the State Government and was therefore governed by art. 149 of the Indian Limitation Act 1908. He submitted that the Board of Muslim Endowments, Hyderabad, which ; tccording to him was the Board of Wakfs constituted under the Muslim Wakfs Act 1954, was an agent of the Central Government.

By s. 9(2) of the Muslim Wakfs Act, 1954, the Board of Wakfo is a body corporate and by s. 15 of this Act, the Board is vested with the right of general superintendence of wakfs and is empowered to take measures for the recovery of the lost properties of any wakf and to initiate and defend suits and proceedings relating to wakfs. Counsel submitted that a corporation may be an agent of the State Government, . and in support of this con!ention relied upon Halsbilry's Laws ofEngland, 3rd Ed., Vol. 9, p. IO-Tamlin v.

Hannaford('), and the observations of Shah, J. in State Trading Corporation of India Limited v. The Commercial Tax Officer(2). He submitted that the State Government has delegated its functions of superintendence over wakfs to the Board of Wakfs and the Board should therefore be regarded as an agent of the State Government.

We are unable to accept this contention. By the Religious Endowments Act 1863, the Government divested itself of the management and superintendence of religious endowments which was vested in

(I) [1949) ~All E. R. 327.

(2) A.I.R. 1963 S.C. 8ll, 849, 850, paras. 115-ll7.

MlSup. C. I/67-7

it under Reg. 19 of 1810 and Regulation 7 of 1817. The Board of Wakfs though subject to the control of the State Government, is a statutory corporation and is vested with statutory powers, functions and duties. The Board has power to hold property and is in control of the wakf fund (ss. 9 and 48). The State Government has no concern with the property vested in the Board save during the pc:iod of supersession of the Board under s. 64. Nor is the State Government liable fo1 any expenditure incurred by the Board in. connection with the administration under the Act (s. 54).

The Board of Wakfs is not discharging a government?.! function.

The Act nowhere says that the Board would act as the agent of the State Government. It rather indicates that tne Board is not the agent of the Government and the Government is not responsible for its acts. 'Ne must, therefore, hold that the Board of Wakfs is not an agent of the State Government and a suit instituted by it for the rccoverv of a wakf property is not a suit by or on behalf of the State Government.

Counsel next submitted that the mutawalli is the agent of the State Government and that in any event the limitation for a suit by the mutawalli starts on the date of his appointment. In support of this contention counsel relied upon the decision in Jewun Doss Sahoo v. Shah Kubeer-ood Deen,(') where the Privy Council held that under the law then in force it was the duty of the Government to protect endowments and the mutawalli in that case was the procurator of the Government and his right to sue arose on his being appointed mutawalli. This ruling of the Privy Council was given under Regulation 19 of 1810. Since the passing of the Religious Endowments Act 1863, the mutawalli cannot be regarded as a procurator of the Government. He is not appointed by the Government, nor does he manage the endownment on its behalf and a suit by him for the recovery of the wakf property cannot now be regarded as a suit on its behalf, see Shaikh Lau/ Mahomed

v. Lalla Brij Kishore (2) and Behari Lal & Ors. v. Muhammad Muttaki(J). If the wakf while in possession of its property is dispossessed, it has an immediate right to sue for recovery of the property and the limitation for the suit begins to run.

On his appointment, the mutawalli acquires no new right of suit and his appointment dot's not give him a fresh starting point of limitation for the recover)' of the property. The suit, therefore, is not by or on behalf of the State Government and art. 149 has no application.

The suit is governed by art. 142. The date of dispossession of the wakf is the start'ng point of limitation under this article. "It was suggested that as limitation did not run under the Hyderabad Limitation Act, the date when the Indian Limitation Act 1908 came into force in Hyderabad should be regarded as the starting point of limitation.

This suggestion has no force.

During the currency of the Hydera- -(T)2M0o-;-CA-:-39oai p. 222

(2) 17 Weekly Reporter (Surbcrland) 430. (3). I.LR 20 All 482, 488.

"YED YOUSUF v. SYED MOHAMMED (Bachawat, J.) 323

bad Limitation Act, limitation did not run but the Act 1did no~ change the date of dispossession. That date was September 20,

1937. For the purposes of art. 142 of the Indian Limitation Act 1908, that date must be regarded as the starting point of limitation.

We may now briefly .notice two contentions based on ss.14 and 15 of the Indian Limitation Act, 1908 On August 13, 1941 the defendants instituted a suit for a declaration of there title to the property and obtained an injunction restraining the enrolment of the property in the Book of Endowment. On. March IO, 1942, the suit was dismissed. On May 18, 1942, the property was enrolled inthe Book of Endowment. On May 21, 1942, summary proceedings for the recovery of the property by the dargah were started under s. 14 of the Hyderabad Endowme1; t Regulation before the Addi.

Chief Judge, City Civil Court, Hyderabad at the instance of the Director, Ecclesiastical Department of the Government of Hyderabad. On June 20, 1942; the defendants filed in the High Court an appeal from the decree dismissing their suit and obtained an interim injunction restraining their eviction from the property.

On July 25, 1942, the interim irijunction was made absolute. By an order dated February 14, 1942, the Addi. Chief Judge consigned the records of the proceeding under s. 14 to the record room and directed that action would be taken after the disposal of the case in the High Court. On October IS, 1945 the High Court allowed the appeal arid remanded the suit to the trial court for disposal according to law. On August 28, 1948, the trial court dismissed the suit. On Septem6er 21, 1955, an appeal filed by the defendants from this decree was dismissed On these facts, it was contended before the High Court that in view of s. 15 of the Indian Limitation Act 1908, in computing the period of limitation prescribed for the suit, the plaintiffs were entitled to exclude the period of time during which ejectment of the defendants in the proceeding under s. 14 of the Hyderabad Endowment Regulation had been stayed by the order of injunction. The High Court rightly pointed out that there was no injunction restraining the institution of the present suit, and the plaintiffs were not entitled to any exclusion of tim~ under s. 15.

This contention is no longer pressed. In this Court however for the first time counsel sought to argue thPt under s. 14 of the Indian Limitation Act 1908 the plaintiffs were entitled to the exclusion of the entire period from May 21, 1942 during which the summary proceeding under the Hyderabad Endowment Regulation was pending. The contention based on s. 14 raises mixed questiclns of law and fact. It was not raised in the courts below. There i:> no mention of this contention even in the petition for special leave to appeal or in the statement of case. We think that the plaintiffs ought not to be allowed to raise this contention in this Court for the first time. Counsel submitted that the plaintiffs are entitled to revive and continue the proceeding under s. 14 of the Hyderabad

Endowment Regulation. We do not know whether that procceeding is still pending. The question whether the plaintiffs are entitled to revive and continue that proceeding under the laws now in force does not arise for consideration in this case and we epress no opinion on it. All we need say is that our decision in this appeal will not affect the right, if any, of the plaintiffs to revive and continue the proceeding.

As the suit was instituted more than 12 years after the date of dispossession, it is barred t-y limitation and must be dismissed. The trial court rightly dismissed the suit. The High Court was in error in reversing this decree.

Jn the result the appeal is allowed. The decree of the High Court is set aside and the decree of the trial court is restored. The

sui~ is dismissed. There will be no order as the costs of this appeal.

G.C.

Appeal alloll'erl.

SYED YOUSUF Y\RKHAN & ORS

SYED MOHAMMED YARKHAN & ORS

January 4, 1967

K. N. WANCHOO

R.S. BACHAWAT

M. SHELAT, JJ

Indum Vmitation Act, 1908

Jin time-Indian Act or Hyderabad Act

Limitation Act

April 1, 1951

Limitation Act

Hyderabad

s. 30

Limitation Act

Art. 142

Limitation Act

Limitation Act

Limitation Act

Limitation Act

Indian Limitation Act, 1908

s. 30

s. 30

Art. 149

Indian Limitation Act, 1908

Mutawalli

Mutawalli

Limitation Act

Indian Limitation Act, 1908

Indian Limitation Act, 1908

R. V. Pillai

M. Kshatriya

Daniel A. Latifi

M. /. Khowaja

Bachawat

While the Hyderabad Limitation Act

Section 29(c)

s. 29(c)

April I, 1951

Indian Limitation Act 1908

February 3, 1956

Limitation Act, 1908

art. 142

High Court of Andhra Pradesh

Limitation Act

Limitation Act

Limitation Act

Limitation Act

February 22, 1951

Central Government

March 7,

I'J51

March 10, 1915

s. 30

Section 30

s. 30

Indian Limitation Act 1908

Limitation Act

Article 142

Indian Limitation Act 1908

s. 30

Indian Limitation Act 1908

Indian Limitation Act 1908

s. 3C

art. 149

Indian Limitation Act 1908

Board of Muslim Endowments, Hyderabad

s. 9(2)

Muslim Wakfs Act, 1954

Board of Wakfo

s. 15

Shah

By the Religious Endowments Act 1863

ss. 9 and 48

s. 64

s. 54

Behari Lal

art. 149

art. 142

Limitation Act

Indian Limitation Act 1908

Limitation Act

art. 142

Indian Limitation Act 1908

ss.14 and 15

Indian Limitation Act, 1908

August 13, 1941

March IO, 1942

May 18, 1942

May 21, 1942

s. 14

June 20, 1942

July 25, 1942

February 14, 1942

s. 14

October IS, 1945

August 28, 1948

Septem6er 21, 1955

s. 15

Indian Limitation Act 1908

s. 14

s. 15

s. 14

Indian Limitation Act 1908

s. 14

s. 14


D. R. NIM, I. P. S.

l'.

UNION OF INDIA

January 5, 1967

[K. SUBBA RAO, C.J., J. C. SHAH, S. M. SIKRI, V. RAMASWAMI

AND C.A. VAIDIALINGAM, JJ.)

Civil Service-l11diqn folice Service (Regulation of Se1tiority) Rules, 1954, r. 3-0ffic.r appoint.ed by promotion-Seniurity, lww determined.

Under r. 3 of the Indian Police Service (Regulation of Seniority) Rules 1954, issued under s. 3(1) of the All India Services Act, 1951, the ,;, ode of determining the seniority of officers of the Indian Police Service is as follows : The officers are divided into categories : (I) those in the Service at the commencement of the Rules, and (2) those appoint~ ed to the Service after the commencement of the Rules. The second category is divided into two sub-<:ategories : (a) officers appointed as a result of a competitive examination, and (b) officers appointd by promotion in accordance with r. 9 of the Recruitment Rules. The year of allotment of an officer which determines hi& seniority, is determined according to r. 3(3)(a) or (b}. But if an officer started officiating continuously in a senior post from a date earlier than the date on which any of the officers was recruited to the Service by competition, the year of allotment had to be determined ad hac by the Central Government, under proviso (1) tor. 3(3)(b}, and undor proviso (2) tor. 3(3)(b) the period of officiation before the date of inclusion of the name of an officer in the Select List prepared in accordance with the ref!uirements of the Indian Police Service (Appoint.men! by Promotion) Regulatio...,. would be counted, only if such period was approved by the Central Govemm1,,.nt in consu1tation with the Public Service CoIDm.Ission.

The appellant was officiating as Superintendent of Police from June 1947; that is from a date earlier than the date of any officer recruited by competition, and was appointed to the Indian Police Service by promotion in 1955 after the commencement of the Seniority Rules. His name was included in the Select List in 1956.

The Goverwnent passed an order on 25th August 1955, that officers promoted to the Indian Police Service should be allowed the benefit of their continuous officiation with effect only from 19th May 1951. The appellant challened the order by a petition under Art. 226, because the period of his officiation from June 1947 to May 1951 has excluded for the purpose of fixatio" of his seniority.

The High Court dismissed the petition.

, In appeal fo this Court, HELD : The impugned order dated 25th August 1955 should be quashed and the Central Government directed to fix the year of allotment and seniority of the appellant accarding to law.

The date 19th May 1951, was an artificial and arbitrary date having nothing '.O do with the application of the fit and the second t>rovisos to

r. 3(3). It has some relevance for the Indian Administrative Service, but why it should be applied to the Indian Police Service was not adequately explained.

Under the two provisos, the Central Government had to determine ad hoc the year of allotment after approving or not approving the period of officiation in consultation with lhe Public Service Commission. taking jnto consideration all the .relevant facts.

The Central

Government cannot pick out a date and say that a period prior to that A dale would not be deemed to be approved by the Central Government wit.bin tho second proviso. [331 B, E-G)

(2) In view of the facts that he was officiating for eight years, that tc hJ.<1 nev"< been revened and that he was appointed to the post wh.n vacancies fell .. it could not be held that the appellant's continuous officiation a mere temporary or local or stop-gap arranbement, within the

meaning of Explanation I tor. 3(3)(b). [332 GJ B

CIVIL APPELLATE JURISDICnos : Civil Appeal No. 371 of 1965

Appeal by special leave from the judgment and order dated December 8, 1961 of the Punjab High Court Circuit Bench at Delhi in Civil Writ No. 507-D of 1961.

B. P.. L. Iyengar, B. llutta, 0. C. Mathur and Ravinder Narain• for the appellant.

N. S. Bindra, R. Ga11apathy Iyer and R. S. Saclzthey, for the respondent.

Basudcv Prarad, K. Raje11dra Chaudhuri and K. R. Chaudhuri,

for the intervener.

The Judgment of the Court was delivered by

Sikri, J. This appeal by special leave is directed against the jun -nent of the Circuit Bench of the Punjab High Court at Delhi,

d1>missing in /imi11e the petition under art. 226 of the Constitution filed by the appellant, D. R. Nim. The appllant had impugned in this petition an order dated August 25, 1955, passed by the Government of India, (Ministry of Home Affairs)-herc; nafter referred to as the impugned order-as being contrary to law and art. 14 of the Constitution.

The relevant facts for the determination of the validity of the impugned order are as follows: The appellant was appointed to the U.P. Police Service as a result of a competitive examination held in

1938. In course of time he was appointed officiating Superintendent of Police with effect from June 25, 1947.

He continued to officiate till he was appointed to the Indian Police Service against the promotion quota of the Indian Police Service Cadre of Uttar

Pradesh with effect from October 22, 1955.

By the time he was appointed to the Indian Police Service various Rules and Regulations goveriing the Indian Police Service had been issued by the Central Government in exercise of the powers conferred by sub-s. (1) of s. 3 of the All India Services Act (LXI of JQ51).

We are concerned rarticularly with the Indian Police Service (RegiJlation of Seniority) Rules, 1954, hereinafter referred to as the Seniority Rules. The seniority of the appellant has to be determined under these Seniority Rules. The fust thing to be done under the Seniority Rules is to determine the year of allotment of the appeliant. The

appellant claims that a wrong year of allotment has been given to him by the application of the impugn d order, which, according to him, is a void order. Rule 3, which deals with the o":.,~-.1.•nt nf the year of allotment reads as follows:

"3. Assignment of Year of Allotment.-(!) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule.

(2) The year of allotment of an o'llcer in service at the commencement of these rules shall be the same as has been assigned to him or may be assigned to him by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules:

Provided that where the year of allotment of an officer appointed in accordance with rule 9 of the Recruitment Rules has not been determined prior to the commencement of these Rules, his year of allotment shall be determined in accordance with the provision in clause (b) of sub-rule (3) of this rule and for this purpose, such officer shall be deemed to have officiated in a senior post only if and for the period for which he was approved for such officiation by the Central Government in consultation with the Commission.

(3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be-

(a) where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held;

(b) where the officer is appointed to the Serv; ce by promotion in accordance with rule 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with rule 7 of th9se Rules who officiated continuously in a senior post from a date earlier than the date of commencement of suh officiation by the former: Provided that the year of appointment of an officer appointed to the Service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officersrecruited td the Service, in accordance with rule 7 of those Rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned ; Provided further that an officer appointed to the Service after the commencement of tl:ese Rules in accor-

SUPIU!ME COURT REPORTS

[1967) 2 S.C.R.

dance with rule 9 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the I ndiarr Police Service (Appointment by Promotion) Regulations framed under rule 9 of the Recruitment Rules, ifthe period of such officiation prior to that date is approved by the Central Government in consultation with the Commission.

Explanation 1.-An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion as senior post otherwise than as a purely temporary or local arrangement.

Ewlanation 2.-An officer shall be treated as having officiated in a 5enior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post of any other exceptional circumstance."

Sub-rule (I) clearly makes Rule 3 the Controlling Rule for the purposes of assignment of the year of allotment. The Rule then divides officers into two categories: (1) an officer in the Indian Police Service at the commencement of the Rules, and (2) an officer appointed to the Indian Police Service after the commencement of the Rules. We are concerned with the second category as the appellant was appointed to the Indian Police Service in 1955. The second category !s again divided into two sub-categories: (a) officer appoin•ed to the service as a result of a compet; tivc examination, and (b) officer appointed to the service by promotion in accordance with Rule 9 of the Recruitment Rules. As the appellant was appointed to the Service by promotion, we are concerned with the second sub-category. The formula adopted works out as follows: first find out the year of allotment of the junior-most among the officers recruited to the service by competition, who officiated ::ontinuously in a senior post from a date earlier than the date of commencement of officiation of the appellant. We may again mention that the appellant started officiating as Superintendent of Police on June 25, 1947.

But, according to the first proviso, if the appellant started officiating continuously in a senior post from a date earlier than the date of any officer recruited by competition his allotment had to be determined ad hoc by the Central Government. According to the facts of this case, the first proviso applies and not the test provided in rule 3(3) (b) of the Seniority Rules. The second proviso limits the operation of the first proviso by dividing the officiating period into two classes: first, a period

before the date of inclusion of an officer in the Select List and, secondly, the period after that date. The first period can only be counted if such period is approved by the Central Government in consultation with the Commission. The appellant's name was included in the Select List of 1956. Therefore, in the case of the appellant, the period prior to 1956 had to be approved by the Central Government in consultation with the Commission.

We may here notice Explanation I to Rule 3, because the Government of India also say that the appellant officiated continuously as a temporary or local arrangement. We will deal with this aspect later, but for the time being we assume that there is no force in the Government of India's contention and the Explanation does not apply to the facts of the present case. Therefore, according to the Rule the Central Government had to determine ad hoc the year of allotment after approving or not approving the period of officiation of the appellant before 1956. The GoverllJTlent of India say that they determined this by issuing the impugned order, the rclevaut part of which reads as follows:

"The Government of India have now decided with the concurrence of the Commission that the State Civil Service Officers who were officiating prior to 19th May, 1951, but have been appointed to the .Indian Administrative Service after that date should, for purposes of fixation of seniority, be allowed the benefit of their continuous officiation in senior posts with effect from the 19th May, 1951. The same decision will also apply in the case of State Police Officers promoted to the Indian Police Service after the 19th May, 1951."

The result of this decision, as far as the appellant is concerned, is that the period of officiation as Superintendent of Police from June 25, 1947 to May 19, 1951, is excluded for the purpose of fixation of seniority. Why the date May 19, 1951, was chosen is explained by the Government of India in the following terms in paras 8 and 9 of the affidavit dated May 15, 1966:

"8. While recruitment to the Service through these diverse unconventional sources was being made over the years, the question of fixation of seniority and year of allotment was subseqently considered and instructions were issued vide

Shri R. C. Dutt's letter No. 1/18/51-AIS dated 22nd June, 1951 prescribing the detailed procedure as to how the seniority and the year of allotment of each officer aad for ea<:h category of recruitment should be fixed. The said letter finds mention in the appeal paper book at pages 45-49. It can be said that with the issue of this Jetter the position regarding principles for the fixation of seniority and year of allotment of officers that had been recruited to

SUPREME COURT REPORTS [1967] 2 S.C.lt.

the Services prior to !his date had been finalised and stabilised.

9. At this stage, it was noticed that there still were some State Police Service Officers V!hO had not qualified at the various recruitments made for the Service in previous years and continued to hold senior posts on account of paucity of officers. It was fu. ther realised that if, for determination of seniority and year of allotment, the principle of date of continuous officiation is applied in such cases such State Police Service Officers who had been rejected on earlier occasions would on eventual absorption into th• 3ervice through the regular promotion quota become entitled to higher seniority and .year of allotment than those who had been selected in preference to them at the time of the promotions made and the Special Recruitment held in earlier years. This would have been a very anomalous position for those selected on such occasions who would have found themselves junior to those who had been rejected at the time of such selection. In consultation with States and with the Union Public Service Commiss; on, it was, therefore, decided that in the case of State Police Service Officers appointed to the Service after 19th May, 1951, their officiation prior to this date would not count for purposes of seniority and year of allotment In other words, all such officiation prior to this date would be regarded as fortuitous. It was also felt that since 19th May, 1951 was the date on which the Gradation List for all the earlier persons recruited to the Service had been finalised and issued in a somewhat stable stage, this may be a crucial date, and officiation prior to which could be r::garded as fortuitous .. It may be mentioned that this date refers to the finalisation of the Gradation List for the I.A.S. but since the same principles were extended to the I.P.S. as well, it was decided to retain this as the crucial date.

It may be reiterated that this decision was taken after consultation with the State Governments and the U.P.S.C. I would say that there is no arbitrariness in this matter and that this was done atter consulting all concerned and.after evolving a sound principle which would be consistent with the view that those who had been selected for recruitment on earlier occasions should not, by appl; cation of a principle, become junior to those who on such occasions had been rejected. I may also mention that the said date had been uniformly applied to all officers in this category."

It would be noticed rhat the date, May 19, 1951, to begin with had nothing to do with the finlisation of the Gradation List of the Indian Pclice Service because it was a date which had

reference to the finalisation of the Gradation List for the l.A.S. Further this date does not seem to have much relevance to the question of avoiding the anomalous position mentioned in para 9 of the affidavit, reproduced above. This date was apparently chosen for the I.A.S. because on this date the Gradation List for all the earlier persons recruited to the Service had been finalised and issued in a somewhat stable stage. But why should this date be applied to the Indian Police Service has not been adequately explained. Mr. B. R. L. Iyengar, the learned counsel for the appel !ant, strongly urges that selection of May 19, 1951, as a crucial date for classifying people is arbitrary and irr.ational. We agree with him in this respect. It further appears from the affidavit of Mr. D. K.

Guha, Deputy Secretary to the Government of India, Ministry of Home Affairs, dated December 9, 1966, that "the Government of India have recently decided in consultation with the Ministry of Law that the Ministry of Home Affairs letter No. 2/32/51-AIS, dated the 25th August, 1955, will not be applicable to those SCS/ SPS oftk.ers, who were appointed to IAS/IPS prior to the promulga-· tion of IAS/IPS (Regulation of Seniority) Rules, 1954, and the date of the issue of the above letter if their earlier continuous officiation was approved by the Ministry of Home Affairs and Union Public Service Commission." It further appears that "in the case of Shri C. S. Prasad also, an IPS officer of Bihar, a decision has been taken to give the benefit of full continuous officiation in senior posts and to revise his year of allotment accordingly." But, it is. stated that "as Shri Nim was appointed to IPS on the 22nd October, 1955, i.e. after the promulgation of JPS (Regulation of Seniority} Rules, 1954, and after the issue of letter dated 25-8-1955, his case does not fall even under this category." The above statement of the case of the Government further shows tliat the date, May 19, 1951 was an artificial and arbitrary date having nothing to do with the application of the first and the secoRd provisos to Rule 3(3). It appears to us that under the second proviso to Rule 3(3) the period of officiation of a particular officer has to be considered and approved or disapproved by the Central Government in consultation with the Commission considering all the relevant facts. The Central Government cannot pick out a date from a hat-and that is what it seems to have done in this case-and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso.

Mr. Iyengar had cdntended before us that on a proper construction of the rules, the entire period of officiation in a senior post has to be counted toward~ the seniority cf the appellant.

We have already discussed this point above and, in our opinion, there is no force in this contention. As we have said, the Central Government must consider the question of approval of the officiation period and come to an ad hoc decision after considering

all the relevant circumstances in consultation with the State Govern- A ment concerned and fix the year of allotment.

The next point Mr. Iyengar raised was that the letter dated August 25, 1955, was without any legal authority and was contrary to rules. It seems to us that the fixing of an artificial date, like May 19, 1951, as the date prior, to which period of officiation would not be deemed to be approved by the Central Government B is contrary to Rule 3.

The last point which Mr. Iyengar raised was that the appellant for no valid reason has been treated unequally among his equals.

It is not necessary to decide this point because the appeal has to be accepted on the ground that the selection of May 19, 1951, as a crucial date for classifying people is arbitrary and contrary to C Rule 3.

We had earlier left open the point raised by the Government of India that the appellant's continuous officiation was a temporary or local arrangement within Explanation 1 to Rule 3. This is sought to be sustained by the following statement in the affidavit dated March i5, 1966: D "When vacancies could not be filled up even by this method, recruitment from the open market was resorted to. All officers thus recruited to the Service were initially appointed in the Junior Scale of the I.P.S. The result was that there were some senior posts that had to be filled and some State Police Service Officers who had not been selected to the Service through any of the above recruitment methods were, in view of the existing paucity of ofliocrs, allowed to officiate on senior posts as a stop-gap arrangement. I say that all such State Police Service Officers who were officiating on senior posts due to shortage of officers were primarily those who had been considered for absorption into the l.P.S. under the Promotion Quota or under the Emergency Recruitment but had not been found fit for such absorption." This statement is denied by the appellant. We agree with him that such a stop-gap arrangement cannot last for eight years and it has not been shown that the appellant was appc>inted temporarily in place of some persons as subsequently he has never been reverted. Further the fact that be was appointed to the post at the time when vacancies fell negatives that it was merely a temporary arrangement.

In the result we accept the appeal, quash the impugned order dated August 25, 1955, and direct the Central Government to fix the year of allotment aad seniority of the appellant in accordance with this judgment and the law. The respondent will pay costs of the appellant in th:s apperu.

V.P.S.

Appeal allowed.

D. R. NIM, I. P.

UNION OF INDIA

K. SUBBA RAO, C.J.

C. SHAH

S. M. SIKRI

s. 3(1)

All India Services Act, 1951

Central Government

25th August 1955

Indian Police Service

Art. 226

Central

Government

B. P.. L. Iyengar

C. Mathur

Ravinder Narain•

N. S. Bindra

R. Ga11apathy Iyer

R. S. Saclzthey

Basudcv Prarad

K. Raje11dra Chaudhuri

K. R. Chaudhuri

Sikri

art. 226

D. R. Nim

Government of India

art. 14

U.P. Police Service

s. 3

June 25, 1947

may here notice Explanation I to Rule

19th May, 1951

25, 1947

May 19, 1951

May 15, 1966

C. Dutt

22nd June, 1951

Union Public Service Commiss

I.A.S.

I.P.S.

U.P.S.C.

B. R. L. Iyengar

D. K.

Guha

December 9, 1966

Ministry of Home Affairs

Union Public Service Commission

C. S. Prasad

Bihar

Nim

22nd October, 1955

Iyengar

August 25, 1955

March i5, 1966


THE STATE OF UTTAR PRADESH

MADAN MOHAN NAGAR

January 5, 1967

(K. SUBBA RAO C. J., J.C. SHAH, S.M. SIKRI, V. RAMASWAMI

AND C.A. VAIDIALINGAM JJ.]

Civil S?rvice-Officer retired stating "outlived his service"-Whether casts a stignia, and a1nounts to puntsl11ne11t.

The respondent was compulsorily retired from service under article 465A, note (I) of the U.P. Civil Service Regulation, after be had completed more than 25 years of qualifying service. The order of retirement stated that the respondent "haJ outlived hh utility". The responden~

challenged the order in the High Court. The High Court quashed the order.

In appeal to this Court. the appellant contende~ that the reason that the respondent bad outlived bis utility did not show that the order of compulsory retirement amounted to an ordcr of dismissal or removal because in every case of compulsory retirement it was implied that the person had outlived his usefulness.

HELD : There was no force in the contention.

The test to he applied is : coes the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsorily. In the present case the order did cast a stigma on the respondent. [336 G]

Jagdish Mitter v. U11io11 of India A.I.R. [1964] S.C. 449. followed

Two tests are derived from Shayam Lal's case : the first is whether the action is by way of punishment and to find that out it is necessary that a charge or imputation against the officer is made the copdition of the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he bas already earned as be does by dismissal or removal. If the first test is applied in this case it is quite clear that the charge or imputation "that the respondent had outlived bis utility" was made the. condition of the exercise oi the power. [338 E]

Shyam Lal v. The State of Uttar Pradesh [1965) I S.C.R. 26 followed.

Abdul Ahad v. The Inspector General of Po/ic.c, U.P. A.I.R. (1965) All. 142. overruled.

CIVIL' APPELLATE JURISDICTION : Civil Appeal No. 997 of 1965.

Appeal by special leave from the judgment and order dated.

July 25, 1963 oftheAllahabadHigh Courtin Special Appeal No. 431 of 1962.

S. V. Gupte, Solicitor-General, C. B. Agarwa/a and 0. P. Rana,. for the appellant.

J.P. Goyal and B. P. Jha, for the respondent.

The Judgment of the Court was delivered by

Sikri, J. The respondent, Shri Madan Mohan Nagar, filed a Writ Petition in the High Court of Judicature at Allahabad for quashing the order of compulsory retirement dated July 28, 1960, passed against him. The order of compulsory retirement was in the following terms:

"I am directed to say that the Governor has been pleased to order in the public interest under Article 465A and Note(!) thereof of the Civil Service Regulations, the compulsory retirement with effect from September I, 1960 of Sri Madan Mohan Nagar, Director State Museum

Luckow who completed 52 years of age on July 1, 1960, and 2g years ar.d 3 months of qualifying service on 31-5-1960 as he has outlived his utility."

The learned Single Judge who heard the petition quashed the order on the ground that "Rule 465 of the Civil Service Regulations as amendeo hy the U .P. Go.vernment while providing a criterion for 1he guidance of Government when inflicting compulsory retirement on a government servant never .heless violates the guarantee of equality of opportunity in matters relating to employment under Article 16(1 )" of the Constitution. He further held that the order i!•? ting compulsory retirement on the petitioner was invalid because it was passed in violation of the principles of natural justice.

The State appealed and the Division Bench on appeal upheld the order passed by the learned Single Judge on the ground that the order of compulsory retirement was passed in violation of the provisions of art. 311 of the Constitution and was, therefore. ultra 1ires.

The State having obtained special leave, the appeal is now before us.

Before we deal with the arguments of the learned counsel for the appellant, we may give a few facts and set out Article 465(A) and Note(!) thereof of the Civil Service Regulation, as amended by the Government of Uttar Pradesh. The facts, in brief, are that the respondent was first appointea in 1931 on one year's probation to the post of Custodian, Sarnath Museum, Banaras, under the Archaeological Department of the Government of India. In l'.139, he was posted to Mathura Museum as Curator, and he was appointed substantively to this post from January 5. 1941.

Later, he was appointed on the recommendation of the Provincial Public Service Commission as Curator of the State Museum, Lucknow, on a scale of pay Rs. 250/- to Rs. 850/-. The post of Curator was upgraded to the po>t of Director, State Museum, Lucknow, in the U.P. Educational Service, Senior Scale, and the respondent was appointed to it.

Thereafter the respondent continued in service as Director of State

• •

( .'

Museum, Lucknow, until he was compulsorily retired by the order of the Government, dated JuJy.28, 1960, which has already been set out above. It is common ground that no enquiry as contemplated by Art. 311(2) was held.

The relevant part of Article 465A of the Civil Ser.vice Regulation is in the following terms:

"Government retains the right to retire any Government servant after he has completed 25 years qualifying service without giving any reasons, and no claim to special compensation on this account shall be entertained.

This right shall only be exercised by Government in the Administrative Department when it is in the public interest to dispense with the services of Government servant who has outlived his usefulness." This learned Solicitor General, who appears on behalf of the appellant has urged that the fact that the impugned order of compulso.y retirement states the reason for compulsory retirement, namely, that the respondent had outlived his utility, does not lead to the conclusion that the order amounts to dismissal or removal because in every case of compulsory retirement it is implied that the person who is compulsorily retired had outlived his usefulness.

He refers to Shyam Lal v. The State of Uttar Pradesh('} and says that in that case it was implied that Shyam Lal was not fit to be retained in service. We are unable to read Shyam Lat's case(') in that manner because the Court expressly said at p. 41, as follows:

"It is true that this power of compulsory retirement may be used when the au.thority exercising this power cannot substantiate the nilsconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the powr. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity." In the present case there is not only no question of implication but a clear statement appears on the face of the order that the repondent had crutlived his utility; in other words, it is stated that he was incapacitated from holding the post of Director, State Museum, Lucknow. The order clearly attaches a stigma to him and any person who reads the order would immediately <A>nsider that there is something wrong with him or his capacity to work.

In our opinion this case is covered by the principle applied in Jagdish Mitter v. Union of India (2). It is true that that was a case of a temporary servant, but that does not matter. The order

(l) (19551 I S. C. R!26.

(2) A. I. R. 1964 S.C.449

in that case reads as follows:

"Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office !laving heen found undesirable to be retained in Government service is hereby served with a month's notice of discharge with effect from November I, 1949." Gajcnderagadkar, J., as he then was, speaking for the Court, said:

"No doubt the order purports to be one of discharge and as such can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in government service, it expressly casts a stigma on the appellant and in that sense must be held to be an order of dismissal and not a mere order of discharge."

Later, he observed:

"It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appc.lant was found to be undesirable, and that must necessarily impc>rt an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: docs the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order. the termination of service must be held, in substance, to amount to dismissal.,.

It seems to us that the same test must apply in the case of compulsory retirement, namely: docs the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsorily? In '.he present case there is no doubt that the order does cast a stigma on the respondent.

Mr. Gupte relies on T. G. Shil'ac/zarana Singh 1•. State of Mysore(').

But this case docs not assist him because it does not appear that the order in that case contained any stigma, and under Ruic 285 of the Mysore Civil Service Ruic,, 1958, retirement

(I} A.l.R. 1965 S. C. 280.

could be effected if it was considered necessary in the public interest.

There was no question of requiring that there should be a finding that the government officer had outlived his utility.

In Ram Parshad v. State of Punjab( ) no such question appears to have been argued.

In para 32 of the judgment Satyanarayana Raju, J., while considering the validity of Rule 27 of the Staff Rules, reproduced an extract from the judgment of this Court in Moti Ram Deka v. N. E. Frontier Railway(2). We will presently

onsider the effect of the decision in Deka's case.

In Deka' s case(2) Moti Ram Deka, who was a peon employed by the North East Frontier Railway, challenged the order of termination of his services under Rule 148 of the Indian Railway Establishment Code on the ground that the said Rule was invalid.

There were some other appellants before the Court who challenged the validity of Rule 149 of the Railway Establishment Code. The question posed for decision by Gajendragadkar, J., at page 699 was: if the service of a permanent civil servant is terminated otherwise than by operation of the rule of superannuation, or the rule of t:ompulsory retirement, does such termination amount to removal under Art. 311 (2) or not? The Court was thus not concerned with the question of compulsory retirement under a rule similar to Rule 465A, note (I), of the Uttar Pradesh Civil Service Regulation, but it reviewed some cases dealing with compulsory retirement.

Subba Rao J., as he then was, who delivered a concurring judgment also reviewed the cases, but he pereferred to follow the principle laid down in Parshotam Lal Dhingra v. Union of India ('), in respect of permanent government servants in preference to that accepted in Shyam Lal' s case(') and the subsequent decisions following it_ But it is not necessary for us to resolve the conflict, if any, which exists between Dhingra's case(') and Shyam Lal's case(•) because here we have an order which on the face of it casts a stigma on the respondent. It is true, as pointed out by Subba Rao J., that in Doshi's case State of Bombay v. Saubhagchand M. Doshi('} Rule 165-A of the Bombay Civil Services Rules laid down that the right of compulsory retirement will not be exercised except when it is in the public interest to dispense with the further services of a Government servant such as on account of inefficiency or dishonesty, but in Doshi' s case it does not appear that the order contained any aspersion that Doshi was inefficient or suffered from some other defect. What was challenged in that case was the validity of Rule 165-A of the Bombay Civil Services Rules, and it was held that it did not violate art. 311(2) of the Constitution.

(1) A.l.R. 1966 S.C. 1607 : [1966] 3 S. C.R. 486

(3) [1958] S.C.R. 828

(5) [1958] S.C.R. 571.

(2) [1964] S S.C.R. 683.

(4) [1955) 1 S.C.R. 26

Similarly, in Balakotaih v. The Union of India(') in Rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1949, dealing with compulsory retirement, the proviso provided that "a member of the Railway Service shall not be retired or have his service so tenninated unlt'Ss the competent authority is satisfied that his retention in public sericc is prcjudical to national security, and unles,, where the competent authority is the Head of a Department, the prior approval of the Governor-General has been obtained." In this case also it does not appear that the order terminating the services contained any stigma on the public servant concerned.

In. Da/ip Singh v. State of Punjab(2) the order read as follows:

"His Highness the Rajpramukh is pleased to. retire from service Sardar Dalip Singh, Inspector General of Police, Pepsu (on leave) for administrative reasons with effect from the 18th August 1950."

It was held that the order did not amount to dismissal or removal from service within the meaning of art. 311(2) ofthe Constitution. The Court derived two tests from Sh yam IA/' s case(') and formulated them as follows: the first is whether the action is by way of punishment and to find that out the Court said that it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power; the second is whet'ier by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal. If the first test is applied in this case it is quite clear that the charge or imputation "that the respondent had outlived his utility" was made the condition of the exercise of the power.

The learned Solicitor General also brought to our notice the decision of the Full Bench of the Allahabad High Court in Abdul Ahad v.

The Inspector General of Police, U.P.(4) The decision certainly helps him, and as a natter of fact, the Full Bench overruled the judgment of the Division Bench under appeal. But, with respect, we arc unable to agree with the conclusion that even if the order of compulsory retirement recites the fact that the public servant had outlived his utility, it would not amount to a punitive order. The Full Bench was of the view that "compulsory retirement will always be on the ground that he can no longer render useful service. The position certainly does not become worse because

(I) (115~] S.C.R. !052

(3) [1955] I S.C.R. 26.

(2) 11961) I S.C.R. 88.

(4) A.I.R. 1965 All. 142.

what is implied is expressed." We are unable to agree that the position does not become worse because a stigma is attached expressly.

We may say thi.t the question whether Article 465-A, note (1), violates art. 311 of the Constitution was not argued before us and we say nothing about it.

In the result the appelll fails and is dismissed with costs.

Y.P.

Appeal dismissed.

THE STATE OF UTTAR PRADESH

MADAN MOHAN NAGAR

January 5, 1967

K. SUBBA RAO

C. SHAH

S.M. SIKRI

V. RAMASWAMI

article 465A

Civil Service Regulation

Shayam Lal

S. V. Gupte

C. B. Agarwa

. P. Rana

J.P. Goyal

B. P. Jha

Sikri

High Court of Judicature at Allahabad

Article 465A

July 1, 1960

Article 16(1 )

art. 311

Article 465(A)

Government of Uttar Pradesh

Mathura Museum

January 5. 1941

Lucknow

Art. 311(2)

Article 465A

Shyam Lal

Shyam Lat

article 465

Jagdish Mitter

Gajcnderagadkar

Gupte

T. G. Shil'ac

zarana Singh

State of Mysore

Satyanarayana Raju

Deka

Moti Ram Deka

North East Frontier Railway

Gajendragadkar

Art. 311

Subba Rao

Dhingra

Doshi

art. 311(2)

[1966] 3 S. C.R. 486

[1955) 1 S.C.R. 26

Rajpramukh

Sardar Dalip Singh

Pepsu

18th August 1950

art. 311(2)

Allahabad High Court

Article 465

art. 311


R. S. SETH GOPIKRISHAN AGARWAL

R. N. SEN, ASSISTA~T COLLECTOR OF CUSTOMS & ORS.

January 5, 1967

[K. SUBBA RAO, C. J., J. C. SHAH, S. M. SIKR!, V. RAMASWAMI

AND C. A. VAIDlit.LINGA~, JJ.]

Defence of India (Amendmem) Rules 1963 (Gold Control Rules) r. 126(L)(2) and the Customs Act, 1962 (52 of 1962), ss. 2(34), 105 and I 10-0rder of Assistant Collector authorising search of premises, requirements of-Procedure of search, s. 165(1) of the Code of Criminal

Procedure how far applicable--Ofjicer authorised by Collector whether 'proper o[Jicer'-Va/idtty of s. 105.

Constitution of India, Art. 14--Section 105 of Sea Customs Act, 1962

~.., hether gives unguided and arbitrary power-Whetlrer ultra vires.

The Assistant Collector of Central Excise issued an authorization under s. 126(L) (2) of the Defence of India (Amendment) Rules, 1963 (Gold Control Rules) for searching the premises of the appellant.

As a result of the search undeclared gold and certain other articles as well as doc11111ents were seized. The appellant's writ petition under Art. 226 challenging the search on various grounds was dismissed.

In appeal by certificate 1

HELD : (i) Mala {ides had not been proved against the officer authorized to make the search [342 CJ

(ii) The authorization order could not be said 10 be defective merely because it did not expressly employ the phrase 'reason to believe' occurring in s. 105 of the Customs Act. The phraseology used in the order meant, in effoct and substance, the same thjo.g. [342 E-F]

(iii) While it may be advisable and indeed proper for the Assntant Collector to $ive in the authorization order the reasons for his belief that a search IS necessary, the non-mention of reasons would not by itself vitiate the order. Nor can all the particulars of the nature of the goods

and of the documents be mentioned in the order as they will be known only after the search is made. The specifications given in the present case were sufficient to enable the officer authorized to make the search

[343 C-DJ

(iv) The word 'by' ins. 2(34) refers both to the Board and the Collector and therefore both the Board and the Collector of Customs can assign functions to an officer of Customs. (343 H]

(v) It cannot be said that the Assistant Collector of Customs must in authorizing search also record his reasons for doing so on the ground that•· 165(1) of the Code of Criminal Procedure which makes such a prowion is made applicable to searches under s. 105 of the Cwtoms Act. While under s. 105 of the Act the Assistant Collector of Customs either makes the search personally or authorizes any officer of Customs to do so, if he has reasons to believe tha facts mentioned therein, under s. ! 65 ( 1) of the Code of Criminal Procedure the recording of the 1 easons for believing the facts is only to enable him to make a. search urently in a case wh.erc search warrants in the ordinary course cannot be obtained.

It is. therefore, not possible to invoke the condition and apply it to a situation arising under s. 105 of the Act [345 B-OJ

GOP!KR!SHAN V. COLLECTOR (Subba Rao, C.J.) 341

(vi) Section 105 of the Customs Act does not confer an unguided and arbitrary power on the Assistant Collector of Customs to make a search.

A deeper scrutiny of the provisions indicates not only a policy but abo effective checks on the exercise of the power of search by the Assistant Collector. The section dots not therefore oO'end Art. 14 of the Constitution. [346 DJ

(vii) The High Court on the materials placed before it, held that the Assistant Collector had acted with reasonable belief in the facts mentioned in s. 105.

Ther~ was no justification for interfering with the findings of the High Court. [346 E-F]

Durga Prasad v. H. R. Goines, Superintendent (Prevention) Central Excise, Nagpur, A.I.R. 1966 S.C. 1209, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 998of1965.

Appeal from the judgment and order dated February 24, 25, 1964 of the Bombay High Court, Nagpur Bench in Special Civil Application 459 of 1963.

B. K. Sanghi, G. L. Sanghi and 0. C. Mathur, for the appellant.

D Niren De, Addi. Solicitor-General, N. S. Bindra and R. H.

Dhebar, for the respondents.

The Judgment of the Court was delivered by

Subba Rao, C. J. This appeal by certificate raises the question whether the search of the preinises of the appellant and the seizure of the articles and the documents found therein were valid.

The relevant facts are as follows: The appellant is a mining proprietor and holds several manganese mines in different States.

He has also been doing business in many articles apart from being an exporter of manganese ore. On information alleged to have been received to the effect that the appellant was in possession of a large quantity of undeclared gold, the Assistant Collector of Customs and Central Excise, Raipur, issued an authorization under r. 126 (L) (2) of the Defence of India (Amendment) Rules, 1963 (Gold Control Rules) hereinafter called the Rules, for searching the premises of the appellant. Pursuant to that authorization, the appellant's premises were searched and as a result of the search gold and other articles, foreign currency and other documents were seized. The appellant filed a petition under Art. 226 of the Constitution in the High Court of Bombay (Nagpur Bench) challenging the validity of the said search and the seizure of the articles and documents belonging to him. The petition was heard along with similar petitions filed by other persons whose premises were likewise searched and goods and documents seized therefrom. The High Court dismissed all the petitions. The several petitioners before the High Court, along with the appellant, preferred appeals to this Court and the appeals other than that filed by the appellant were heard by this Court : see Durg

Prasad v. H.R. Gomes, Superintendent (Prevention), Central Excise Nagpur('). Therein this Court considered the various contentions raised by them and dismissed the same. For one reason or other, this appeal was not heard along with them.

Obviously the points covered by that judgment cannot be permitted to be reagitated in this appeal. Accepting that position, learned counsel for the a, ipellan! raised before us only the questions that were not decided by the said judgment. We shall now proceed to consider the questions that are peculiar to this aopeal.

The contention that the Assistant Collector and the officer authorized by him to make the search cted with ma/a fides has no substance. The High Court considered the evidence and rejected it. We do not see any justification to take a different view on the material placed before us.

The second contention is that under s. 105 of the Customs Act, hereinafter called the Act, the Assistant Collectcr shall have reason to believe that some goods are secreted before he can authorize any officer of Customs to search for them or the relevant documents, but the authorization given by the Assistant Collector to the Customs

Officer did not say that he had reason to believe so.

The relevant part of the authorization reads thus :

"Whereas information has been laid before me of the suspected commission of offence under section 11 read with section 111 of the Customs Act 1962 (52of1962) and it has been made to appear that the production of contraband goods and documents relating thereto are essential to the enquiry about to be made in the suspected offence" ..... :

Though the words "reason to believe" arc not in terms embodied in the authorisation, the phraseology used in effect and substanr.e meant the same thing.

The next contention is that on a reasonable construction of the said provision it should be held that the Assistant Colle:tor of Customs should not only give reasons for his belief but also the particulars of the natu:e of the goods and of the documents, for, if the reasons and the particulars are not given the officer authorized may make a roving search of the house which is not in the contemplation of the said section. This argument may be dealt with in two parts. In terms s. 105 of the Act does not say that the Assistant Ccllector shall give reasons. The power conferred on him under s. 105 is not subject to any such condition. Though he cannot make a search or authorize any officer to make a search

(I) A.1.R. 1966 S.C. 1209.

unless he has reason to believe the existence of the facts mentioned in the section, the section does not compel him to give reasons. While it may be advisable, and indeed proper, for him to give reasons, the non-mentior. of reasons in itself does not vitiate the order. Nor can we agree with the appellant that the particulars of the nature of the goods and of the documents should be given in the authorization. Obviously, no question of giving of particulars arises if he himself makes the search, but if he authorizes any officer to do so, he cannot give the particulars of the documents, for they will be known only after the search is made. Doubtless he has to indicate broadly the nature of the documents and the goods in regard to which the officer authorized by him should make a search, for without that his mandate cannot be obeyed. The authoriza; ion issued by the Assistant Collector of Customs in this case clearly mentioned that on information received it appeared that the .. ppellant was in possession of contraband goods and documents relating thereto and also described the office and the resldential premises wherein those goods and documents would be found. In the circumstances of the case we are satisfied that the specifications are sufficient to enable the officer authorized to make the search.

The next argument is based upon the provisions of s. 110 of the Act. Under s. 110(3) of the Act only a proper officer can seize any documents or goods which in his opinion will be useful for or relevant to any proceedings under the Act. "Proper officer" has been defined 'by s. 2(34) of the Act thus :

". "Proper Officer," i'l relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Collector of Customs." It is contended that, on a true construction fJf s. 2(34) of the Act the Collector of Customs should himself seize the goods, that he has no power to authorize another to do so and that in this case the Collector of'. Customs did not make the seizure. This argument turns upon the terms of the said provision. It is said that the Board only can assign functions to another officer and that the Collector of Customs cannot assign but can function personally. The controversial.expression ins. 2(34) is "by the Board or the- Collector of Customs''. The clause "who is assigned those functions", the argument proceeds, refers only to the Board and not to the Collector. A fair reading of the provision, in our view, is that the preposition "by" refers both to the Board and the Collector.

Both the Board and the Collector of Customs can assign functions to an officer of Customs.

It is then contended that the search made was void inasmuch as in making the search the relevant provisions of Code of Criminal

Procedure had not been complied with. This argument is based upon s. 105(2) of the Act.

I~ reads :

"The provisions of the Code of Criminal Procedure, 1898, relating to searches shall, so far as may be, apply to searches under this section subject to the mod; fication that sub-section (5) of section 165 of the said Code shall have effect as if for the word "Magistrate", wherever it occurs, the words "Collector of Customs" were substituted."

Now, if we look at the Code of Criminal Procedure, s. 165 deals with searches. The relevant part of that section reads :

(I) Whenever an officer in charge of a police station or a police-officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police-station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtuined without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is .o be made, search, or cause search to be made, for such thing in any place within the limits of such station.

(2)

(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may after recording in writing his reasons for so doing require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing specifying the place to be searched and; so far as possible, the thing for which search is to be made, and such subordinate officer may the1 eupon search for such thing in such place.

( 4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in section 102 and section 103 shall, so far as maybe, apply to a search made under this section.

(5) Copies of any record made under sub-section (I) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate.

• B

- B

F ·,

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The argument is that the expression "so far as may be" in s. 105(2) of the Ac; t attracts s. 165(1) of the Code of Criminal Procedure and under that section, as the police-officer has to record in writing the grounds of his belief foe Assistant Collector of Customs shall also in authorizing the search record his reasons for doing so. But, in our view, s. 105 of the Act ands. 165(1) of the Code of Criminal Procedure are intended to meet totally different situations. While under s. 105 of the Act the Assistant Collector of Customs either makes the search personally or authorizes any officer of Customs to do so, if he has reason to believe the facts mentioned therein, under s. 165(1) of the Code of Criminal Procedure the recording of the reasons for believing the facts is only to enable him to make a search urgently in a case where search warrants in the ordinary course cannot be obtained. It is, therefore, not possible to invoke that condition and apply it to a situation arising under s. 105 of the Act. It is not necessary in this case to particularize which of the other clauses or part of the clauses of that section can be applied to a search under s. 105 of the Act. We, therefore, reject this contention also.

Then it iF contended that s. 105 of the Act confers an unguided) and arbitrary power on the Assistant Collector of Customs to make a search, the only condition being that he has reason to believe in the existence of the facts mentioned therein. It is said that the said belief is practically a subjective satisfaction and the section neither lays down any policy nor imposes any effective control on his absolute discretion.

So stated the argument is attractive, but a deeper scrutiny of the provisions indicates not only a policy but also effective checks on the exercise of the power to search by the Assistant Collector of Customs. The object of the section is to make a search for the goods liable to be confiscated or the documents

se~Teted in any place which are relevant to any proceeding under the Act. The legislative policy reflected in the section is that the search must be in regard to the. two categories mentioned therein, namely, goods liable to be confiscated and documents relevant to a proceeding under the Act. No doubt the power can be abused.

But that is controlled by 0ther means. Though under the section the Assistant Collector of Customs need not give the reasons, if the existence of belief is questioned in any collateral proceedings, he has to produce relevant evidence to sustain his belief. That apart, Ulider s. 165(5) of the Code of Criminal Pr cedure, read with s. 105(2) of the Act, he has to send forthwi, h to the Collector of Customs a copy of any record made by him. The Collector would certainly give necessary directions if the Assistant Collector went

wrong, or if his act was gliided by mala .fides.

But the more effective control on him is found in s. 136(2) of the Act.

It reads : If any officer of customs,. ..

(a) requires a11y person to be searched for goods liable to confiscation or a1.y document relating thereto, without having reason to believe that he has such goods or documents secreted about this person; or

(b) arrests any person without having reason to believe that he has been guilty of an offence punishable under section 135; or

.(c) searches or authorises any other officer of customs to search any place without having reason to believe that any goods, docurr, ents or things of the nature referred to in section 105 are secreted in that place,

he shall be p11nishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

No doubt he can be prosecuted or.ly with the previous sanction of the Central Government, but his liability to criminal prosecution fo_ dereliction of duty under s: 105 of the Act is certainly an effective control on his arbitrary acts. It is, therefore, clear that not only a policy is laid down in s. 105, but also that the acts of the Asdstant Collector are effectively controlled in the manner stated above.

We cannot, therefore, say that s. 105 offends Art. 14 of the Constitution.

Lastly, it is contended that the Assistant Collector of Customs in fact has not placed any material before the High Court to sustain his reasonable belief. The High Court, on the material placed before it, held that the Assistant Collector had acted with reasonable belief in the facts mentioned in that section. There is no justification for our interference with the findi.ngs of the High Court.

In the result, the appeal fails a11d is dismissed with costs.

It is represented to us that three years have elapsed since the documents were seized and it appears that nothing further has been done in the matter. We hope and trust that the Customs Authorities will take appropriate and immediate steps to finish their investigation and return the documents which are not required, to the appellant.

G.C.

Appeal dismissed.

R. S. SETH GOPIKRISHAN AGARWAL

R. N. SEN, ASSISTANT COLLECTOR OF CUSTOMS & ORS

K. SUBBA RAO

C. SHAH

V. RAMASWAMI

Gold Control Rules

Customs Act, 1962

ss. 2(34), 105

s. 165(1)

s. 105

Constitution of India

Art. 14

Section 105

Sea Customs Act, 1962

s. 126(L)

Gold Control Rules

Art. 226

s. 105

Customs Act

Code of Criminal Procedure

s. 105

s. 105

Code of Criminal Procedure

s. 105

GOP!KR!SHAN V. COLLECTOR

Subba Rao

Section 105

Customs Act

Art. 14

s. 105

CIVIL APPELLATE JURISDICTION

Bombay High Court, Nagpur Bench

B. K. Sanghi

G. L. Sanghi

0. C. Mathur

D Niren De

S. Bindra

R. H.

Dhebar

Raipur

Gold Control Rules

Art. 226

High Court of Bombay (Nagpur Bench)

s. 105

Customs Act

section 11

section 111

Customs Act 1962

s. 105

s. 105

s. 110

s. 110(3)

s. 2(34)

s. 2(34)

s. 105(2)

Code of Criminal Procedure, 1898

section 165

Code of Criminal Procedure

s. 165

section 102

section 103

s. 105(2)

s. 165(1)

Code of Criminal Procedure

s. 105

Code of Criminal Procedure

s. 105

s. 165(1)

Code of Criminal Procedure

s. 105

s. 105

s. 105

s. 165(5)

s. 105(2)

s. 136(2)

section 135

section 105

Central Government

s. 105

s. 105

Art. 14