[K.

S. G. JAISINGHANI

UNION OF INDIA AND ORS.

(With Connected Writ Petition)

February 22, 1967

SuBBA RAo, c. J., J. c. SHAH, s. M. SIKRI,

V. RAMASWAMI AND C. A. VAIDIALINGAM, JJ.J

lncomt-tax Service-Seniority Rules, 1952, r. 1(/) (iii) and (iv)- 3eniority between direct recruits and promotees-lf violative of Arts. 14 and 16 of Constitution-Promotion Rules, r. 4--Promotion from Class I,

Grade If to Grade I-Different periods of service for direct recruits and

promotee:r-If discriminatory-Income-tax Officers (Class I, Grade II) Service Recruitment Rules, r. 4--Fbcation of quota-Duty to follow, if 11iandatory.

In 1944, the Government of India created two classes of Income-tax Servie<:, namely, Class I service with Grades I and II, and Class II service with Grade III. Recrwtment to Class I, Grade II was to be made : (a) by direcrecruitment through a competitive examination, and (b) by promotion from Class II, Grade Ill. A Class II officer is considered by the Departmental Promotion Committee for promotion to Class I, Grade Il, after 5 years' service in Class II ( 2 years of probation and 3 years as Income-tax Officer).

In 1951, ti: ... ratio between direct recruits and prOmotees was fixed at 2 : I, presumably under r. 4 of the Income-tax Officers

(Class I Grade II) Service Recruitment Rules.

Under r. 1 (f)(iii) of the Seniority Rules, 1952, dealing with seniority between direct recruits and promotees, a promotee becomes senior to a ditect recruit who has completed the probationary period of two years in the very year in which the Department Promotion Committee recommends the officers in Class II for promotion to Class I. Rule 1 (f) (iv) deals with a special situation in , vhich an officer initially appointed to Class 11 service is given seniority in the same manner as a departmental promotee, if subsequent to his passing the departme.ital examination he is appointed in Class I on the results of the competitive examination.

Rule 4 of the Rules of Promotion of the Central Board of Revenue Office Procedure Manual, states; that the prescribed minimum service for an officer of Class I, Grade II for promotion to Grade I is 5 years gazetted service including 1 year in Cla~ I, Grade II.

For a promotee from Class II, the minimum period of service for promotion to Class I, Grade I, would be actually 4 years service in Class II and 1 year service in Class I, Grade II.

Respondents 4, 5 and 6 were appointed in Class II, Grade Ill Service in 1947. They and the appellant (who was a direct recruit) were appointed in Class I, Grade II service in 1951 after having successfully completed in the 1950 competitive examinf..tion The three respo!ldents were however hown as seniors to the appellant as "deemed promotees" under r. 1 H (f)(iv).

The appellant filed a writ petition in the High Court and contended that (I) r. l(f)(iii) and (iv) of the Seniority Rules and r. 4 of the Promotion Rules were discriminatory and violative of Arts. 14 and 16 of the

704 SUPREME COURT llEPORTS

[1967) 2 S.C.R.

Constitution. and (2) that during 1951-56 there was excessive recruit- A meat of pron1otces. in violation of the quota rule prescribing the ratio Of 2 ; I.

TI1c High Court rejected the petition.

In appeal to this Ccurt,

HELD: (l)(a). Ruic l(f)(iii) ol' the Seniority Rules, 1957, does not violate the guarantee under Arts. 14 and 16.

It is pot corrected to say that all officers appointed to Class I, Grade II scivice formed one class and that after the officers have been once recruited there could be no distinction between direct recruits and promo-. tees.

It is really a case of recruitment to the service from two different sources and the adjustment of seniority between them.

The concept of equality in the matter of promotion can be predicated only when the promotces arc dra\VIl from' the same source.

If the preferential treatment of one source in Telation to the other is based on the differences between the t\\'O sources, and the said differences have a reasonable relation to the nature of the office it can legitimately be sustained on the basis of a valid classification.

The reason for the classification in the present case was that the higher echelons of the service should be filled by experienced officers possessing not only a high degree of ability but also first-rate experience.

A rule which gives seniority to outstanding officers with consider~ able experience, and selected on merit and limiting the promotion to a pcrcen:agc not exceeding the prescribed limit cannot per se be regarded as unreasonable. The net effect of the rule is that 3 years of outstanding work in Class II is equated to 2 years of probation in Class I, Grade II

crvice. and on a consideration of this aspect of the mattet, the promotee is given seniority over a direct rccrPit completing the period of probation in the same year. [711 E-H; 712 B. E, G-H]

The General Manager, Soutliem Railway v.

Rangachari,

(1962) 2 S.C.R. 586. 596, followed.

(b) Rule 1 (f) (iv) is also based on a reasonable classification and does not offend the guarantee under Art. 14 or Art. 16(1) of the Constitution [715 DI

The "deemed promotees" were appointed in Class II, Grade III ser~ F vice in 1947 and completed 5 years service in that Class by the year 1952 and if the Departmental Promotion Committee had then recommended their promotion to Class I, Grade II, each one of them would have be- "me senior to the appellant by :.1e operation of r. ~(f) (iii). Further, if •,:

(iv) did not exist there would be no incentive to a promotee of this type to sit for the competitive examination. Also, if the service of the promotees in Class II, Grado HI was entirely ignored and if they join Oass I, Grade II service as direct recruits, they might become junior to G others by the operation of r. l(f) (iii).

[715 B-D) ' (cl Once it is held that r. \(f) (iii) of the Seniority llules is legally valid. he rule of promotion cannot be held to lead to any discrimination as bctllteQli direct recruits and p'fOmotees.

The object of the rule of promotioi; is really to carry out the policy of r. l(f)(iii) and not allow it to be defeated by the requirement of 5 years •ervice in Class I, Grade II itself, before consideration for ?romotion to Class I, Grade I. Otherwise, H, a promotee certified fit by the Departmental Promotion Committee in 1952 wil1 be senior to the direct recruits who completed their probation in that year, but the seniority would be an empty formality. For, if the

JAJSINGHANI v. UNION (Ramaswami, !.) 705

promotee-officer is not allowed to count his period of service in Class II for the purpose of promotion to Gr?de I Clas> I, he will have to wait till 1957 or 1958 to go to Grade I, ..:lass I, while direct recruits who completed their probation in 1952 or 1953 could go. to Grade I, Class I in 1955 er 1956 counting the 5 years' period from the date on which they were placed on probation [714 A-D, E-G]

(2) The appellant was entitled to a writ in the nature of ma11damus commanding respondents 1 to 3 to adjust the. seniority of the appellant and other officers similarly situated and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1956 and onwards in accordance with the quota rule. [718 D-E]

Rule 4 of the Income-tax Officers (Class I, Grade II) Service Recruitment Rules is a statutory rule and there is a statutory duty cast on the Government under this rule to determine the method to be employed for the purpose of filling the vacancies and the number of candidates to be recruited.

Having fixed the quota under the rule, there is no discretion left with the Government to alter it according to the exigencies of the situation or to deviate from it, in any particular year, at its own will and pleasure.

The absence of arbitrary pO\\ler is the first essential of the rule of law and discretion, \Vhen conferred upon executive authorities,

must be confined \Vithin clearly defined Jimits, and their decisions should be made by the application of known principles and rule•. The quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice, it will be difficult to hold that the seniority rule, that is, rule l(f) (iii) and (iv) of the Seniority Rules, is not unreasonable and docs not offend Art. 16.

Therefore, the promotees from Class II, Grade III to Class I, Grade II service, in excess of the prescribed quom for each of the years 1951 to 1956 and onwards stoul<l be held to have been illegally promoted. [717 H; 718 A.D, G-Hl

[The. order will not affect such Class IT officers who have been appointed permanently as Assistant Commissioners of Income-tax. [718 F]

For the future years Government should adopt the roster system, by framing an appropriate rule for working out the quota between the direct recruits and the promotees and the roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion, in accordance with the percentage fixed under the statutory rules.] [719 Fl

CrVTL

APPELLATE/ORIGINAL JURISDICTION : Civil Appeal No. 1038 of 1965.

Appeal from the judgment and order dated the March 11, 1964 of the Punjab High Court, Circuit Bench at Delhi in Civil Writ Petition No. 189-D of 1962.

AND

WRIT PETITION No. 5 OF 1966.

H Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights.

The aopellant appeared in person (in C.A. No. 1038 of 1965).

706 SUPllllMI OOUllT llPOllTS ( 196 i] 2 S.C.R.

S. V. Gupre, Soliciror-Gcneral. N. S. Ril/(lm, R. Ge111e1parhy IJW. R. H. Dhebar and R. 711iagaraj11n. for. rcspundc1m '\c)S. 1-3.

A. K. Sen, N. S. Binclra, R. Ganaparh,1 Iyer and R. Thillg<ll'aian, for rc, pondent No. 4.

A. "· Sen, R. Gmwparhy !ya and R. Thic:g11mja11, for resp, m- B dents :-; os. 5 and 6 .

. If. N. Shroff for / .. V. Shroff, for re, pondcnts Nos. 12, 22, 25, 28. ~9. 38. 40. 43, 54, 79. 86. 107 and 117.

, Viren De, Addi. Soliciror-General, R. Ganaparhy [J't'r and R. T/1i11f?11rajan, for respondents Nos. 20, 116 and 123.

The respondent No. 34 appeared in person.

R. Gopalakrisl1111111, Bislwmberlal Khanna and H. K P11ri, for intervener.

H. R. Goklw/e, A. S. R. Chari, A. N. Sinha. J.B. Dadaclwnji,

0. C. Marhur and Rarinder Narain. for the petitioner (in W. P.

D No. 5 of 1966).

S. V. Gupre, Soliciror-Grnera/, N. S. Bindra. R. Ganapathy [)'er. R. H. Dlwhar and R. Thiagamim1, for respondenls Nos.

1--4.

S. V. G11pte, Soliciror-General, R.

Gmwparhy Ira, and R. T/1i11f.al'!lint1, for respondents Nos. 6. 7. 9, J2 .. 17, 19. 22, 24, 26, 30, 31, 35, 37. 41. 42-50. 52 ·-61, 63, 64, 66, 68 -iO, 72-- 74, 80, 82-85, 87, 91, 95 and 96.

A. S. R. Chari, R. Gopalakrishnan, Bi.1lu1111halal Klu11111a and II. K. Puri, for intervener.

The Judgment of the Court was delivered by Ramaswami, J.

Cil'il Appeal No. 1038 of 196:>

This appeal is brought. by certificate, from the judgment of the High Court of Punjab dated March 11. 1964 dismissing the writ petition of the appellant---Civil Writ No. 189-D of 1962.

In hi_: petition under Art. 226 of the Constitution. the appellant, S. r Jaisinghani. challenged the constitutional validity of what has t-ecn described as the .. seniority rule" in regard to Incometax Service, Class I, Grade JI along with the improper implementation of the "quota" recruillne<1t to that Scr\'ice as infringing the guarantee of Arts. 14 and 16(1) of the Constitution. The original respondents to the petition were 1he Union of India, Secre-

JAISINGHANI v. UNION (Ramaswami, I.) 707

tary to the Government of India in !he Ministry of Finance and the Central Board of Revenue-respondents 1 to 3. Subsequently, respondents 4 to 126 were added and those are promotees in the Income-Tax Service who will be affected by the result of the petition.

In order to improve the Income Tax administration the Government of India, on September 29, 1944, reconstituted and classified the existing Income-Tax Services as Class I and II. The re-organisational scheme provided for recruitment of Income-Tax Officers, Class I Grade II Service partly by promotion and partly by direct recruitment. The re-organisational scheme was set out in Government of India, Finance Department (Central Revenues) letter dated September 29, 1944 (Ex. B). It created two classes of Income-Tax Service, Class I with Grade I and Grade II and Class II Service with Grade III. Recruitment to Class I Grade II Service was to be made : (a) by direct recruitment through a competitive examination, and lb) by promotion from Class II Grade III, the ratio prescribed in paragraph 2( d) of the letter being 80% by direct recruitment nnd 20% by promotion from Class II Grade III Service, and in case sufficient number of suitable candidates was not available for promotion, surplus vacancies would be filled by direct recruitment. In Government of Ind; a, Ministry of Finance (Revenue Division) letter dated January 24,

1950 (Ex. G to the writ petition), the rules of seniority were laid down. These rules laid down the principle for determination of seniority (a) as between direct recruits recruited on the result of the combined competitive examination; (b) as between promo tees selected from Class II and (c) as between the direct recruits who complete their probation in a given year and the promotees in the same year for appointment to Class I. These rules were revised on September 5, 1952 by the Government of India, Ministry of Finance, Revenue Division, letter No. F. No. 58(3)-Ad. IT/50, dated September 5, 1952. The relevant rule, viz., rule I (f) as framed in 1950 was as follows :-

"The seniority of direct recuits recruited on the results of the examinations held by the :Federal Public

Service Commission in 1944, and subsequent years shall be reckoned as follows :-

(i) Direct recruits of an earlier examination shall rank above those recruited from subsequent examination.

(ii) Direct recruits of any one examination shall rank inter se in accordance with the ranks obtained by them at that examination.

(iii) The promotees who have been certified by the Commission in any calendar year shall be senior to all M2Sup. Cl/67-16

708 SUPllBMB COUIT UPOl.TS

(1967] 2 S C.R.

direct recruits who complete their probation during thal year or after and are confirmed with effect from a date in that year or after.

Provided that a person initially recruited as Class II Income-tax Officer, but subsequently appointed to Class I on the results of a competitive examination conducted by the Federal Put-lie Service Commission shall, if he has passed the departmental examination held before his appointment to Class I Service, be deemed to be promo tee for the purpose of seniority."

The rule, as revised in 1952 was to the following effect:-

"The seniority of direct recruits recruited on the results of the examinations held by the Federal Public Service Commission in 1944, and subsequent years shall be reckoned as follows :-

(i) Direct recruits of an earlier examination shall rank above those recruited from a subsequent examination.

(ii) Direct recruits of any one examination shall rank inter se in accordance with the ranks obtained by thell' at that examination;

(iii) Officers promoted in accordance with the reconm; endation of the Departmental Promotion Committee before the next meeting of the Departmental Promotion Committee shall be. senior to all direct recruits appointed on the results of the exa,-.; nations held by the Union Public Service Commission during the calendar year in which the Departmental Promotion Committee met and the three previous years.

(iv) Notwithstanding anything contained in clause (iii) a Class II Income-tax Officer subsequently appointed to Class I on the results of a Competitive Examination conducted by the Federal ?ublic Service Commission shall, if he has passed the Departmental Examination held before his appointment to Class I Service be deemed to be a promotee for the purpose of seniority." Clau'c (iv) of the 1952 Rule is almost a reproduction of the proviso to clause (iii) of the rule framed in 195ll and clause (iii) has been recast in somewhat different language, though in substance it contains what the main body of clause (iii) of the Rule of 1950 stated. The effect of clause (iii) of 1952 Ruic is that the promotec becomes senior to the direct recruit who has completed

I!.

JAISINGHANI v. UNION (Ramaswmni, /,) 709

A a probationary period of two years in the very year in which the Departmental Promotion Committee meets recommending the officers in Class II for promotion to Class I. The following illustrations clarify the application of the rule :

Year of Competitive Exam.

Illustration 'A'

Year Year Departof of mental appointcomplepromoment ti on tion by of Comdirect 2 mittee recruityears' met ment probation

2 3 4

1947 the three 1948 previous

years. 1948

1949 1951

Position of direct recruit

Promotees seniority

Has completed Senior probation.

Has no< completed Do. probation.

Has not completed probation. i950

1953 1950 Do.

Do.

1950 thethree 1951

prev10us

1952 1953

years. 1952

1953 1954

Illustration 'B'

1955 1956 in 1953

Has completed probation.

H>ls not completed probation.

Do.

Do.

Senior

Do.

Dr.

Do.

A Class II Officer when directly recruited had to be on probation for two years during which period he had to undrgo a course of theoreticr.l and practical training and shou:d pass a departmental examination for being confirmed. After a minimum

710 SUPllBMB COURT RBPOllTS [I 967)2 S.C.ll.

period of thre} years of work as Income-tax Officer (after his probation of two yea rs} he is considered by the Departmental Promotion Committee for promotion to Class I. That is to say that he has to have a minimwn service of 5 years in all in Class II before he is qualified for being considered for promotion to Class I, Grade II Service. Clause (iv} of rule l(f) deals with a special situation in which an officer initially appointed to Class II Service is given seniority in the same manner as a departmental promotee if &ubsequent to his passing the departmental examination in Class II he is appointed to Class : on the results of the combined competitive examination held by the Union Public Service Commission.

On October 18, 1951 the recruitment quotas of 80% and 20% under the re-organisation scheme dated September 29, 1944 were revised.

Under the revised recruitment quota rule 66-2/3% of the vacancies in Grade II Class I would be filled by direct recruitment and the remaining 33-1/3% by promotion frcm Grade III Class II Servi re. Any surplus vacancies which could not be filled by promotion for want of suitable candidates we!"} to be added to the quota or vacancies to be filled by direct recruitment.

Rule 4 of the Rules of Promotions at_ page 251 of the Central Board of Revenue Office Procedure Manual has also been the subject-matter of controversy in this appeal and is set out below.

"Income-tax Officer, Class I (Grade !}.-Promotions to this grade are made from the grade of Incometax Officers Class I, Grade II. The promotions are made on the basis of seniority subject to fit11ess, and not by selection. Normally promotions from Class II are made to Grade II of Class I only in the first instance. Howeve'l in the initial stages of the re-organisation of the Income-tax Services, several senior officers were promoted direct from Class II to Class I, Grade I, but such promotions will not ordinarily take place in future.

NoTB.-The Union Public Service Commission has ruled that the promotion to Class I, Grade I of officiating l.T.Os., Class I, Grade II-whose retention in that grade has been approved by the Departmental Promotion Committee would also be in the nature of promotion from l.T.O., Class II, Grade III to I.T.O., Class I, Grade I and require consultation with the Commission, even though the promotion from I.T.O., Class I, Grade II to Class I, Grade I is made on the basis of scniori!ycum-fitness without reference to the Departmental Promotion Committee. Appointments to Class I, Grade I

~\\Q\\\d, therefore, be referred to the Commission for approval so long as the officers have not been confirmed in the Class I, Grade ll post.

• c

JAISINGHANI \'. UNION (Ramaswami, J.)

Basis of promotion is seniority-cum-fitness and prescribed minimum service is five years gazetted service including one year in Class I. Grade II."

TJ-.e Full Bench of the Punjab High Court rejected the writ petition of the appellant holding that the principles for determining seniority between direct recruits and promotees laid down in rule l(f)(iii) and (iv), 1952 were not discriminatory and there was no infringement of Arts. 14 and 16(1) of the Constitution. It was also decided by the Full Bench that the quota ru~· announced by the Government of India was merely a policy statement and had no statutory fuce a;:d departure from the quota did not give rise to any justiciable issue. It was further observed that the promoti0n rule from Class I, Grade II to Class I, Grade J was not discnminatory and ultra vires of Arts. 14 and 16 of the Constitution.

The first question to be considered in this appeal is whether rule l(f}(iii) of the seniority rules as framed in 1952 violates the guarantee under Arts. 14 and 16 of the Constitution. It was contended on behalf of the appellant that the impugned rule was based upon an unjustifiable cla~, ification between direct recruits and promotees after they had entered into Class I, Grade II Service and on the basis of that classification promotees are given seniority with weightage over direct recruits of the same year and three previous years. It was contended that there was a discrimination between officers of Clas I, Grade II Service after their recruitment and the actual working of the rule kept on pushing down the direct recruits and postponing their chances of promotion to higher posts in Class I Service. It was submitted that all officers appointed to Class I, Grade II Service formed one class and after the officers have been once recruited there could be no distinction between direct recruits and promotees. In other words, it was contended that the promotees and direct recruits became one class immediately on entry and thereafter there cannot be any class within that class.

We are unable to accept the conteution of the appellant as correct.

In our opinion, it is not righi to approach this problem as if it is a case of classification of one service into two classes for the purpose of promotion, and as the promotion rule operating to the disadvantage of one of the two classes. It is really a case of recruitment to the Service from two different sources and then adjustment of seniority between the recruits coming from the two sources. So far as Art. 16(1) is concerned, it cannot be said that the rule of seniority proceeds on an unreasonable basis. The reason for the classification is the objective of filling the higher echelons of the Income Tax Service by experienced officers possessing not only a high degree of ability but also first-rate experience.

Having regard to the particular circumstances of this case, we

712 SUPllllME COUllT llEPORTS [196712 s.c.R.

are of opinion that the seniority rule is n, t unreasonable when read with the quota rule which provides for a special reservation of a small perc, ntage of posts for the promotees who are selected by a special Committee, which determines the fitness of the candidates for promotic.n after they have put in at least three years of service as Income-tax Officers.

A rule which gives seniority to outstanding officers with considerable experience, and selected on merit and limiting the p• ., motion to a percentage not exceeding the prescribed limit cannot per se be regarded as nreasonable.

As we have already pointed out, the direct recruits joinir.g Class I, Grade II Service have to undergo a penod of two years training and thereafter they become qualified for confirmation. A promotee having already undergone the very same training during the period of probation of Class II, Grade Ill, joins Class 1, Grade II with three years period of assessment and working experience of the Income-tax Department.

It is necessary to add tha• the sek-<:tion of a promotee to Class I is based on merit and great weightage is given by the Departn1ental Promotion Committee to outstanding qualifications, record of work and the ability of the candidate, so that those who come to Class 1, Grade II are officers who have shown outstanding capability as' Income-tax Officers in Class II Service. The statement in Annexure 2 of the affidavit on behalf of respondents 1 to 4 in Writ Petition No. 5 of 1966 shows that the standards of selection are very stiff inasmuch as a very small proportion o:- officers considered for selection is actually promoted. The net effect of rule I (f)(iii) therefore is that three years of outstanding work in Class II is equated to two years of probation in Class I Service and on consideration of this aspect of the matter the promotee is given seniority over a direct recruit completing the period of probation in the same year.

The relevant law on the subject is well-settled.

Under Art. 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one oflice to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Art. 14 thereof.

It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of •he employees for the purpose of appointment or promotion. The concert of equality m the matter of promotion can be predicated only when the promoteL. are drawn from the same S')urce.

If the preferential treatment . Jne source in relation to ti.~ other is based on the differences

betwee:i the said two sources, and the said differences have a reasonable relation to the nature of the oflice or offices to which recruitment is made, the said recruitment can legitimately be sustained on the b~; is of a valid classification. Dealing with the

, c

JAJSJNGHANJ v. UNION (Ramaswami, 1.) 713

extent of protection of Art. 16(1) of the Constitution, this Court -observed in The General Manager, Southern Railway v. Rangachari(1) :

"It would be clear that matters relating to employment cannot be confined only to the initial matters prior to the act of employment. The narrow construction would confine the application of Art. 16 (I) to the initial employment and nothing e!se; but that clearly is only one of the matters relating to employment. The other matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are, and must be, dee.med to be included in the expression 'matters relatmg to employment' in Art. lo(!). What Art. 16{1) guaran tees is equality of opportunity to all eiti2erts in respect of all the matters relating to employment illustrat~.d. by us as well as to an appointment to any office as explained by us. The three provisions Art. 16(1 ), Art. 14 and Art. 15(1) form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to empluyment must include all matters in relation to employment both prior, and subsequent, to the employment which are inc:dental to the employment and form part of the terms and conditions of such emrloyment."

This Court further observed in that case :

"Art. 16(2) prohibits, discrimination and thus assures the effectiv" enforcement of the fundamental right of equality of opportunity guaranteed by Art. 16{1 ).

The words, in respect of any employment used in Art. 16(2) must, therefore, include all m1tters relating to employment as specified in Art. 16(1). Therefore, we are satisfied that promotion to selection posts is included both under Art. 16(1) and (2)."

We next proceed to consider the argument of the appellant that fle rule of promotion from Income-tax Officers Class I, Gra.de II to Class I, Grade I is discriminatory in character. It was contended that while a direct recruit has to put in 5 years as Income Tax Officer Class I, Grade II, a promotee oftker gets into Grade I with a minimm of one Far's service in Class I, Grade II, the other four years being counted in Class II, Grade III.

It was

(I) [1962] 2 S.C.R. 586, 596-598.

714 !uPREMB COURT

REPORTS

(1967) 2 S.C.R.

therefore submitted that the rule operated against the direct re cruit in a discriminatory manner. In our opinion, there is no -Jb

stance in the contention of the appellant. Once it is held that the rule of senior'.ty enacted in rule I (f)(iii) is !gaily valid, the rule of promotion i.e., rule 4 of Ch. IX of the Central Board of Revenue Office Procedure Manual cannot be held to lead to any discrimination as between direct recruits and promotces.

Rule 4 states that the prescrid minimum service for Class I, Grade II Officer in the matter of promotion to Grade I of that ServicP is bve years gazetted service including one year in Class I, Grade II. For a promotee therefore th• minimum period rif service for promotion to Class I, Grade I is actually 4 years service in Class

II, Gr.1<1e Ill and one year service in Clas> I, Grade II. The object of the rule is really to carry out the policy of rule l(f) (iii) of the Rules of Seniority and not allow it to be defeated by the require ment of five years service in Class I, Grade II itself before consideration for promotion to Class I, Grade I. The promotee is placed senior to a direct recruit who completes probation in the year in which the promotee is selected by the Depa:tmental Promotion Committee. If it should be laid down that the past service as Income-tax Officer in Class ll is not to be counted, then rule l(f)(iii) would be nullified, because directly recruited ofli cers junior to the promotecs would go to Grade I earlier than the promotce officers.

For example. a promotee certified fit by the Departmental Promotion Commit!ee in 1952 will be senior to the dirL-c! recruits who comp!ete their probation in that year. And if it is to be laid dowi; that the promotee officer shall not count his period of service in Class II for the purpose of promotion to Grade I. Class I he will have to wait till 1957 or 19)8 to go to Grade I, Class I. while direct recruits who completed their probation in 1952 or 1953 would have gone to Grade I. Class I in 1955 or

1956, counting the five years period from the date on which they were placd on probation. To remove this anomaly the promotion rule has been framed and we arc unahle to accept the argument of the appellant that ther~ is any discrimination in the working of this rule. The rule of promotion is inextricably linked with the rule of weightage and seniority in Grade II. If in the ru'~ of promotion the service in Grade III is not to be taken i, , to account, seniority in Grade II would be an empty formality.

In regard to rule l(f)(iv) of the Seniority Rules, there are only thr!:'! respondents i.e., respondents 4, 5 and 6 who have been pro mot ' as "deemed promotees" under this clause of the rule.

Each one of them was appointed in Class II, Gade III Service in 1947 and was appointed in Class I, Grade II Service in 1951 after having successfully competed in the competitive examination of the year

1950, the sam~ year in which the appellant was successful. The arpcllant also joined Class I, Grade II Service in 1951. The

JAISINGHANI v. UNION (Ramaswami, ].) 715

three respondents have been shown as senior to the appellant in the seniority list. The objection of the appellant.is that while they qualified in the same competitive examination, they had become senior to him because of the operation of the artificial rule by which they are treated as "deemed promotees"; otherwise they would have remained junior to him. On behalf of these respondents it was argued by Mr. Bindra that they had been appointed to Class 11, Grade III Service in 1947 and completed 5 years service in that class by the year 1952 and if the Departmental Promotion Committee met in 1953, as it actually did meet, and if it rewmmnded their promotion to Class I, Grade II, each one of them would have become senior to the appelli1nt by the operation of cl. (iii) to rule l(f). There was also the further consideration that if rule l(f)(iv) did not exist there was no incentive to a promotee of this type to sit for the competitive examination. It should also be taken into account that if the service of the promotees in Class II, Grade Ill is entirely ignored and if they join the Class I, Grade II Service as direct recruits they might well find themselves becoming junior to those who were left behmd in Class II, Grade III Service by the operation of rule l(f)(Hi). We are accordingly of the opinion that rule l(f)(iv) is based on a reasonable classification and does not offend the guarantee under Art. 14 or Art. 16(1) of the Constitution.

We proceed to consider the next question arising for consideration in this appeal, viz., the allegation of the appellant that there was excessive recruitment of proll'_otees in viC'lation of the quota rule. Rule 3 of the Jncome-tax Officers (Class I, Grade II) Service Recruitment Rules is to the following effect :-

"The Service shall be recruited by the tollowing

method~:-

(i) By competitive examination held in India in accordance with Part lI of these Rules.

(ii) By promotivn ori the basis of selection from Grade III (Class II Service) in accordance with Part Ill of these Rules."

Rule 4 reads :

"Subject to the provisions of Rule 3, Government shall determine the method or methods to be employed for the purpose of filling any particular vacancies, or such vacancies as may require to be filled during any particular period, and the number of candidates to be

recruited by each method."

716 SUPllMI! COURT RE.POllTS (1967] 2 S.C.ll.

Ruic 5 states :

"Vacancies in the Sccvicc which arc filled otherwise than by promotion shall 0e apportioned between the various communities in India in accordance with the provisions of the Government of India (Home Department) Resolution No. F. 14/17-B/33-Ests. dated the 4th July, 1934 (regarding communal representation in the services) and No. 23/5/42-Ests. (S) dated the I I th August, 1943 (regarding representation of Scheduled Castes in the Services) and the supplementary

instructions connected therewith."

Jn the Jetter of the Government of India dated September 29, 1944 (Ex. B to the writ petition of the appellant) it is stated that the recruitment to Grade II of Class I will be made partly by prom1, tion and partly by direct recruitment and that "80% of the vacancies arising in the Grade will be filled by direct recruitment through the Indian Audit and Allied Serv:.:cs Examination and the remaining 20% vacancies will be filled on the basis of promotion by selection provided suitable number of men are available for promotion". It was also stated in the letter that if there are any vacancies which could not be filled by promotion for want of suitable candidates. these will be added to the quota 'Of vacancies to be filled by direct recruitment. The quota was altered by the Government of India subsequently in their letter dated O<:tober 18, 1951 (Ex. E to the writ petition).

In this letter the Government of India said that they had decided in consultation with the Union Public Service Commission that fnr a period of five years, in the first instance, 66-2/3 % vacancie. in Class I, GradP. II will be filled by direct recruitment and the remaining 33-1/3% vacancies on the basis of promotion and any surplus vacancies which cannot be filled for want of suitable candidates will be added to the quota of acancies to be filled by direct re- , cruitmcn'.. There has been no argument, in this case, with regard to the operation of the rule between the years 1945 and 1950,

though in the petition the appellant has alleged that in those years .also there were excessive recruitments of promotecs. It appears from the affidavit of respondent No. I that these were formative years of the Income Tax Service and re-organisation of the Department was being completed and the initial period of re-organisation lasted uptill 19~0.

The argument was confined to the years 1951 to

1956. According to the appellant, there was excessive recruitment of 7 I promotees more than the figure permitted by the quota 1ulc. In the judgment under appeal the High Court has examined the matter and found that the excess number of promotees was 3 I or the four years 1951 to 1954.

During the hearing of the .appeal "c had ordered the Secretary of the Finance Ministry to

JAISINGlL\Nl v. UNION (Ramaswami, J.) 717

furnish the number of vacancies which had arisen from year to year from .1945 onwards, the nature of the vacancies-permane.nt or temporary and the chain of vacancies and such other details which are relevant to the m"ltters pending before this Court. In his affidavit dated January 31, 1967 Mr. R. C. Dutt said that he was not able to work out, in spite of his best endeavours, the number of v&cancies arising in a particular year. However, a stament, Ex. E, was furnished showing the number of o!ficers ecrmtd by the two methods of recruitment to Class I Service durmg the relevant years :

Year

1951 1952 1953 1954 1955 1956

lJPSC Exam. recrui\s

52 44 45

War Officers Service selected candifrom dates Class

2 49 38 30 24 . 25

It is not clear from the affidavit of Mr. R. C. Dutt wheth\.r the quota rule was strictly followed for the years in question. In the counter-affidavits of respondents I to 4 in Writ Petition No. 5 of 1966 there is however an assertion that the quota rule "has been substantially complied with."

The Solicitor-General on behalf of respondents I, 2 and 3 .submitted that the quota rule was merely an administrative direc

tion to determine recruitment from two different sources in the proportion stated in the rule and a breach of that quota rule was not a justiciable issue. The Solicitor-General said that there was, however, subst::ntial compliance with the quota rule. But in the absence of figures of permanent vacancies in Class I, Grade II for the relevan: years the Solicitor-General was unable to say to wllat extent there had. been deviation from the rule. We are unable to accept the argument of the Solicitor-General that the quota rule was not legally binding on the Government. It is not disputed that rule 4 of the Income-tax Officers (Class I, Grade II) Service Recruitment Rules is a statutory rule and there is a statutory duty cast on the Government under this rule to determine the method or methods to be employed for the purpose of filling the vacancies and the number of candidates to be recn.ited by each rr>ethod.

In the letter of the Government of India dated October 18, 19~1

SUPREME COURT REPOR7S

there is no specific reference to rule 4, but the quota fixed in their letter must be dct>med to have been fixed by the Government of India in exercise of the statutory power given under rule 4. Having fixed the quota in that letter under rule 4, it is not now open to t:1e Government of India to say that it is not incumbent upon it to follow the quota for each year and it is open to it to alter the quota on account of the particular situation (See para 24 of the counter affidavit of respondents I to 3 in Writ Petition No. 5 of 1966). We are of opinion that having fixed the quota in exercise of their power under rule 4 between the two sources of recruitment. there is no discretion left with the Government of lndie. to alter that quota according to tre exigencies of the situation or to deviate from the quota, in any )>articular year, at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice. it will "'- difficult to hold that the seniority rule i.e., rule l(f)(iii) & (iv), is not unreasonable and d~

not offend Art. 16 of the Constitution.

We are accordingly of the opinion that prOf!IOtees from Class II, Grade Ill to Clas~ I, Grade II Service in excess of the prescribed quotas for each of the years 1951 •O 1956 and onwards have been iUegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents I to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of fndia No. F. 24(2)-Admn. l.T./51 dated October 18, 1951.

We, however, wish to make it clear that this order will not affect such Class II Officers who have been appointed pt.mancntly as Assisti>.nt Commissioners of Income Tax.

But this order will apply to all .:ithcr officers including those who have been appointed Ais tant Commissioners of Income Tax provisionally pursuant to the orders of the High Court.

In this context it is important to emphasize that the absence of a1bitrary power is the first essential of the rule of law upon which our whole constitutional 'ystem is based.

In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits.

The rule of Jaw from this point of view means that decision., should be made by the application of known principles and rules and, in general, such decisions shouid be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it i~ unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey-·"Law of the Constitution"-Tenth Edn., Introduction ex). "Law has reached its finest moments", stated Douglas, J.

.TAISINGHANI v. UNION (Ramaswami, J.)

in United States v. Wunderlick('), "when it has freed man from the unlimited discretion of some ruler .. : ..... Where discretion is absolute, man has a, lways suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes(>), "means sound discretion guided by law. It must be governed by rule, not by humour : it must not be arbitrary, vague and fanciful."

We should also like to suggest to the Government that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments are made Ly direct recruitment and by promotion in accordance with the percentages fixed under the statutory TUle for each method of recruitm.ent.

For these reasons we allow this appeal in part and order that a writ in the nature of mandamus should be granted to the appellant to the. extent indicated above. There will be no order as to costs in this appeal.

Writ Petition No. 5 of 1966 The questions arising for determination in this case are similar in character to the questions which have been the subject-matter of consideration in Civil Appeal No. 1038 of 1965. For the reasons given in that case, we hold that this petition should be allowed and a writ in the nature of mandamus under Art. 32 of the Constitution should be granted commanding' respondents I to 3 to adjust the seniority of the petitioner and other officers similarly placed like him and to prepare a fresh seniority !i;; t in accordance with law after adjusting the rec1uitment for the period 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter No. F. 24(2) Admn. I.T./51 dated October 18, 1951. of the Government of India. There will be no order a.s to costs.

V.P.S.

Petition allowed.

Appeal allowed in part.

(1) 342 U.S. 98.

(2) (1770) 4 Burr. 2528 at 2539.

G. JAISINGHANI

UNION OF INDIA AND ORS

SuBBA RAo

c. SHAH

s. M. SIKRI

V. RAMASWAMI

Service-Seniority Rules, 1952

Arts. 14 and 16

Service Recruitment Rules

Government of India

Service Recruitment Rules

Seniority Rules, 1952

Arts. 14 and 16

Seniority Rules, 1957

Arts. 14 and 16

(1962) 2 S.C.R. 586

Art. 14

Art. 16(1)

Service Recruitment Rules

Art. 16

Art. 32

Constitution of India

S. V. Gupre

N. S. Ril/(lm

R. H. Dhebar

R. 711iagaraj11n

S. 1

A. K. Sen

N. S. Binclra

R. Ganaparh,1

R. Thillg

R. Gmwparhy

R. Thic

N. Shroff

Viren De

R. Ganaparhy

R. Gopalakrisl1111111

Bislwmberlal Khanna

H. K P11ri

H. R. Goklw

A. S. R. Chari

A. N. Sinha

J.B. Dadaclwnji

C. Marhur

Rarinder Narain

S. V. Gupre

Soliciror-Grnera/

N. S. Bindra

R. Ganapathy

R. H. Dlwhar

R. Thiagamim1

S. V. G11pte

R. Gopalakrishnan

. K. Puri

Ramaswami

Art. 226

S. r Jaisinghani

Arts. 14 and 16(1)

Union of India

Government of India

September 29, 1944

Government of Ind

January 24,

1950

September 5, 1952

Ministry of Finance, Revenue Division

Federal Public

Service Commission

Federal Put-lie Service Commission

Federal Public Service Commission

Union Public Service Commission

Federal ?ublic Service Commission

October 18, 1951

Punjab High Court

Arts. 14 and 16(1)

Arts. 14 and 16

Arts. 14 and 16

Art. 16(1)

Art. 16

Article 16

Art. 14

Art. 16(1)

Art. 16

Art. 16

Art. 16(1 )

Art. 14

Art. 15(1)

Art. 16(2)

Art. 16

Art. 16(2)

Art. 16(1)

Art. 16(1)

[1962] 2 S.C.R. 586

Bindra

Art. 14

Art. 16(1)

Service Recruitment Rules

India

Part Ill of these Rules

January 31, 1967

R. C. Dutt

s

52

Service Recruitment Rules

October 18, 19~1

Government of lndie

Art. 16

Douglas

Mansfield

John Wilkes

Art. 32

S. 98


COMMISSIONER OF SALES TAX, MADHYA PRADESH A

JASWANT SINGH CHARAN SINGH

February 23, 1967

(J. M. SHELAT AND G. K. MITTER, JJ.J

Madhya Pradcsli G•neral Sales Tax Act, 195S-Charcoal whether 'coal withit• meaning of Entry I Part III of Seil. II to the Act-Rat~ of tax applicable.

The r"'pondent was a dealer in firewood and charcoal. In proceed ings for assessment of sales tax under the \iadhya Pradesh General Sales Tax Act, 1958, the respondent claimed that charcoal was 'coal' witlun the meaning of Entry I of Part Ill of the Schdule II to the Act and therefore was taxable at the rate of 2 % . The sales tax au:horities however held that charcoal was not 'cool' and was taxable at 4% as it fell under the residuary Entry I of Part VI of Schedule JI. The Board of Revenue and the High Court held in favour of the respondent relying on the dictionary meaning of the word 'coal'. The Commissioner of Sales-tax appealed.

It was urged on behalf of the appellant that coal was a mineral while charcoal was manufactured from products like wood and other things by human agency and therefore the dictionary meaning ought not to have been relied upon.

Reliance was also placed on legislative practice which had treated co:J:I and charcoal as different items.

HELD : In interpreting items in >tatutes like the Sales Tax Acts re- .<ort should be had not to the scientific or technical meaning of the terms

used but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, in their commucial sense. Viewed from this angle, both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'.

Under the Entries., 'coal' as well as 'firewood' were taxed at 291'>.

It could not have been intended to tax charcoal a!one at 4%.

Entry I of Part Ill of Sch. II must therefore be read broadly and held to include charcoal. It was not possible to adopt its connotation from other statutes pas..00 for different purposes or in the context of different objects.[713 B; ns A-E; 126 CJ

Ramavatar Budhaiprarad etc. v. Assistant Sales Ta:c Officer, Akola. ( 1962) I S.C.R. 279 and Hi• Majesty the King v. Pla11ters Nut and Chow- /ate Company Limited, (1951] C.L.R. (Ex.) 122, relied on.

Attorney-Ge11eral v. Winstanley, (1831) 2 D & Cl. 302, Grenfell v. /11/and Re\•enue Co1n11Jissiot1er) ( 1876) 1 Ex. D. 24! Holt & Co. v. Col/ytr• ( 1881) 16 Ch. D. 718, referred to.

CIVIL APPEi.LATE JUR1smcrro:; : Civil Appeal No. 2011 of 1966.

Appeal by special leave from the judgment and order dated H February 23, 1966 of the Madhya Pradesh High Court in M.C.C.

No. 169 of 1965.

C. S. T. v. JASWANT SINGH (She/al, /.) 721

A B. Sen and I. N. Shroff, for the appellant.

Rameshwar Nath and Mohinder Narain, for the respondent.

The Judgment of the Court was delivered by Sbelat, J. The appellant has been carrying on business and is a dealer in firewood and charcoal. For the period from March 29, 1962 to April 29, 1962, he was assessed to sales tax under s.18(6) of the Madhya Pradesh General Sales Tax Act, 1958 as he did not have any registration certificate in •espect of this period. The Additional Sales Tax Officer, Ujjain, and the Additional Appellate Assistant Commissioner, Indore, both held that charcoal in which the ;; ppellant. was dealing was not covered by Entry I of Pa : III of Sch. II to the Act, but that it felt under the residuary Entry I of Part VI of that Schedule; and consequently was liable to be assessed at the rate of 4 % of the price of charcoal.

In a further appeal before the Board of Revenue, the Board, relying on the dictionary meaning of the word 'coal' as given in Blackies' Concise Dictionary, held that charcoal would be included in the term 'coal'; and, herefore, Entry I in Part III of Schedule II would apply and the tax chargeable would be at 2 % only. At the instance of the Commissioner of Sales Tax, the Board referred the following question to the High Court :-

"Whether charcoal is covered under Entry I of Part III of Sch. II to the M.P. General Sales Tax Act, 1958, a!'d is taxable at the rate of 2 ~~ or will be taxable at the rate of 4 % under Entry I of Part VI of Sch. II to the M.P. General Sales Tax Act, 1958 ?" T! .~ High Court held that while construing entries in a statute like the Sales Tax Acts, the court should prefer the popular meaning of the terms used in such entries and not their dictionary meanings and that so construed charcoal would be included in the word '.; oal'.

Consequently, it answered the "Uestion in favour of the respondent. According to the High Court, charcoal would be covered by Entry I of Part Ill of Sch. II and was taxable at 2 %· Hence this appeal by special leave.

Entry I of Part III of Sch. II reads as follows :-

"I. Coal, including coke in all its forms .. 2 per cent"

Entry I of Part VI of the said Schedule reads as follows :-

" 1 <\ll other goods not included in Schedule I or any other part of this Schedule .. 4 per cent" H We may aim reproduce Entry 8 of Part III of Schedule II which is:-

"8. Firewood .. . . 2 per cent"

SUPREME COURT UPORTS

(1967] 2 S.C.R.

The meaning given to the word 'Coal' in Blackies' Concise Dictionary, New Edition, page 134 relied on by the Board reads as follows :-

"Coal : Kol : A piece of wood or other combustible substance burning or charred; charcoal; a cinder; now, usually a solid black substance found in the earth, largely employed as fuel, and formed from vast masses of vegetable matter deposited through the luxurious growth of plants in former epochs of the eanh's history."

The Shorter Oxford English Dictionary at pages 330 and 331 gives the meaning of coal as follows :-

"I. -A piece of carbon glowing without a flame. 2.

A piece of burnt wood, etc. that is still capable of combustion without flame, cinder, ashes, 3.

Charcoal.

4. A mineral, solid, hard, opaque black or blackish, found in seams in tlte earth, and largely used as fuel; it consists of carbonized vegetable matter".

Ai page 293, the said Dictionary gives the meaping of charcoal as follows >-

"The uggestion that Char=Chare v. or sb. as if turncoal, i.e. wood turned into coal, lacks support.

I. The black porous residue, consisting (when pure) wholly of carbon, obtained from partly burnt wood, hones, etc.

Hence specified as wood, vegetable, animal etc.".

The Web; ter's New International Dictionary gives the following meaning of charcoal at page 452 :-

"(Char to burn, reduce to coal; Coal); J. A dark coloured or blak porous form of carbon prepared from vegetable or animal substance, as that made by charging wood in a kiln, retort, etc., from which air is excluded."

According to these Dictionaries 'coal' would appear to include 'charcoal'. The contention of the respondent was that charcoal is one of the species of coal, and, therefore, would be covered by Entry I of Part III, and, therefore, the answer given by the High Court is correct. Counsel for the State, however, raised three contentions; (l) that coal and charcoal are different products, one being a mineral product and the other prepared from wood and other .irticles by human agency, and, therefore, the term 'coal' would not cover charcoal; (2) that while construing such entries, the dictionary meaning should not he preferred to the popular meaning or the meaning in the commercial sense; and (3) that the Legislative policy in rderence to the term 'coal'

shows that it is not used by the Legislature in India so as to include charcoal.

Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is now well-set.:ed that while interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense.

In Ramavt; tar Budhaiprasad etc. v. Assistant Sales Tax Officer, Ako/a,(') the pet1t10ners who were dealers in betel leaves were assessed to sales tax under the C.P. and Berar Sales Tax Act, 1947. They contended that under section 6 read with the Second Schedule of the Act betel leaves were not taxable. Section 6 provided that articles mentioned in that Schedule were exempt from sales tax and articles not mentioned were taxable. There were two items in the Schedule, namely, item 6, "vegetables", and item 36, "betel leaves", but s:ibsequently item No. 36 was deleted by an amendment of the Act. This Court held that the use of two distinct and different items i.e., 'vegetables' and 'betel leaves' and the subsequent removal of betel leaves from the Schedule were indicative of the Legislature's intention of not exempting betel leaves from taxation. The Court laid down that the word 'vegetable' must be interpreted not in a technical sense but in its popular sense as understood in common language i.e., denoting a class of vegetables which are grown in a kitchen garden or on a farm and are used for the table.

The same principle was also laid down in His Majesty the King v. Plamers Nut and Chocolate Company Limited.(2), The question there was whether salted peanuts and cashew nuts fell within the category of either fruits or vegetables. A considerable expert opinion was led in that case, but thecourt ultimately found that the Parliament in enacting the Excise Tax Act, 1927, Part XIII and Schedule III was not using words which were applied to any particular science or art and, therefore, the words used are to be construed as they are understood in common language. It also held that what constitutes a 'fruit' or 'vegetable' within the meaning of the Excise Tax Act is what would ordinarily in matters of commerce in Canada be included therein and not wlu:t would be a botanist's conception of the subject matter. If a statute uses the ordinary words in every day use, such words should be construed according to their popular sense. At page 128 of the Report Cameron, I. observed, ''The object of the Excise Tax Act is to raise revenue, and for this purpose to class substance according to the general usage and known denominations of trade. In my view, therefore, it is not the botanist's conception as to what constitutes a

(I) [1962) I S.C.R. %79.

(2) [1951] C.L.R. 122.

M2Sup. CI/67-17

724 SUPIU!MB COUJlT llBPOllTS

(1967] 2 S.C.R.

'fruit' or 'vegetable' which must govern the i'1torpretatioo to be

placed on the words, but rather what would ordinarily in matters of commerce in Canada be included therein. Botanically, oranges and lemons arc berries, but otherwise no one would consider them as such." This rule was stated as early as 1831 by Lord Tenterden in Attorney-General v. Winstanley(•). Similarly, in Grenfell v.

Inland Revenue Commissioner(2) Pollock, B. observed, "that if a statute contains language which is capable of being construed in a popular sense such statute is not to be construed according to the strict or technical meaning of the lanfUage contained in it, but is to be construed in its popular : ense, meaning of course, by the words 'popular-sense', that sense which peoplr conve:-sant with the subject-matter with which the statute is deali.1g would attribute to it." But "if a word in its popular sense and read in au ordinary way is capable of two constructions, it is wise to adopt such a construction as is based on the assumption that Parli:-.ment

merely intended to give so much power as was necessary for -carrying out the objects of the Act and not to give any unnecessary powers. In other words, the construction of the words is to be adapted to the fitness of the matter of the statute". On the other hand, as Fry, J. said in Holt & Co. v. Col/yer(')"Ifit is a word which is of a technical or scientific character then it must be construed according to that which is its primary meaning, namely, its technical or scientific meaning."

Our attention was drawn to the decision in K. V. Varkey v, Agricultural /11come Tax and Rural Sales Tax Officer, Peelmedu Jnd others("), where gret"n leaves plucked from tea bushes were held to fall under the word \ca'. But this decision turned on ;!Je definitio'ls of turnover in s. 3 of the Travancore General Sales Tax Act, XVTII "f 1124 which while including sales of agricultural or horticultural produce included 'tea, coffee, rubber' etc. in the turnover. The court held there that 'tea' was not in the statute in the sense in which it is used in commerce but in the sense of a product of plant life, and, therefore, green leaves plucked from tea plants were covered by the term 'tea'.

The result emerging from these decisions is that while construing the word 'coal' in Entry I of Part III of Sch. II, the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word.

A sales tax statute is being one levying a tax on aoods must in the absence of a technical term or a term of science or art, be presumed to havt used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed

(I) [1~31) i D a: CJ; 302.

(2) [1176) l Ex-D. 242, 248.

(3) [18111) 16 Ch. D. 718, 72/J.

(4) [19~ S S.T.C. 3M.

from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'. It is only when the question of the kind or variety of coal would arise that a distinction would be .made betwe<en coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal.

There is another aspect also from which Entry I of Part III may be considered. Section 14 of the Central Sales Tax Act, 1956 declares certain goods as goods of special importance in inter-State trade or commerce. One of these is 'coal including coke in an its forms'. Section 15 of that Act provides that the State Legislatures in their respective sales tax Jaws can impose only 2 % tax on these goods. That is why in Entry I of Part III 'coal' is stated to include 'coke in an its forms', and coal including coke in all its forms is charged at 2 % tax. The State Legislature, however, knew or must be presumed to know that firewood is also used by the people as fuel, but would not ran within that Entry, and, therefore, provided 2 % tax on it by a separate entry, namely, Entry 8 in Part III. Having taxed coal and firewood at 2 %, it does not appear to be possible that the Legislature deliberately left out charcoal from the connotacion of the word 'coal' and left it to be cha; ged at 4 % under the residuary Entry I in Part VI. The object of the Legislature clearly was to tax coal and firewood as articles used as fuel and did not make a separate entry in regard to charcoal as it must be aware that coal fs understood in ordinary and commercial sense would include charcoal. Had that not been so, instead of leaving it to be dealt with under the residuary item, it would have enacted a separate entry just as it did in the case of firewood which it knew would not in ics ordinary meaning fall under the term 'CJal'. In this view, the contention of counsel for the State must be rejected.

Counsel then relied upon s. 5 of the Colliery Control Order, 1945, in order to show that the Legislature there had dealt with coal in its strict and technical meaning. He also relied upon certain other statutory provisioris with a view to show that the Legislature has an along been using the word 'coal' as a mineral product only. The Colliery Control Order deals with collieries and obviously, therefore, the term 'coal' there is used as a rrineral product.

It is a well-settled principle that in construing a word in an Act caution is necessary in adopting a meaning ascribed to that word in other statutes. As Lord Loreburn stated in Macbeth v. Chis-

/ett,(I) 'it would be a new terror in the construdion of Acts of Parliament if we were required to limit a word to an unnatural

(!) 119101 A.C. 220. 224.

7 :L fi SUPREME COURT REPOl\Ti

(1967] 2 S.<:.R

; cnse because •n some Act which is not incorporated or referred to such an interpretation is given to it for th~ purposes of that Act alone'. The strict sense in which such a word is to be found in another statute may mean the etymological or scientific sense and would not in the context of another statute be applicable.

From the Colliery Control Order, 1945 or the other provisions to which our attention was drawn, it would neither be possible nor safe to adopt the meaning of the word 'coal' given in those povisions for the purposes of the Act under construction. Nor can we infer that there is a Legislative policy consistently followed by the Legi;- lature merely because the word 'c-0al' has been used as meaning a mineral product in the context of these statutes. It would no:. therefore, be possible to discard the meaning of the word 'c0al' in this statute as understood in its commercial or popular sense and to adopt its conn<1tation from other statutes passed for different purposes or in context of different objects.

We agree with the meaning of the word 'coal' given by the High Court and hold that charcoal would be taxable at the rate of 2% only.

The appeal is consequently dismissed with costs.

G.C.

Appeal di<mi . ..-cd.

A

JASWANT SINGH CHARAN SINGH

February 23, 1967

M. SHELAT

G. K. MITTER, JJ

Sales Tax Act

Pradesh General Sales Tax Act, 1958

Cl. 302

A B. Sen

I. N. Shroff

Rameshwar Nath

Mohinder Narain

Sbelat

Additional Sales Tax Officer, Ujjain

Schedule II

General Sales Tax Act, 1958

General Sales Tax Act, 1958

Schedule I

Schedule II

India

Berar Sales Tax Act, 1947

section 6

Second Schedule

Section 6

Schedule III

Canada

Cameron

Tenterden

Fry

s. 3

Section 14

Central Sales Tax Act, 1956

Section 15

s. 5

Loreburn

SUPREME COURT REPOl\Ti

(1967] 2 S.<:.R


SHER SINGH & ORS.

STATE OF UTTAR PRADESH

February 23, 1967

[M. HJDAYATULLAH, J. M. SHELAT AND

G. K. MITTER, JJ.].

Criminal /aw-Acquittal-If High Court in appeal can reverse-Value of inter-relationship between witness and victim.

The appellants were charged for murder under s. 302/34 I.P.C and were acquitted by the Sessions Judge. On appeal the High Court reversed the acquittal and convicted the appellants under s. 302/34 I.P.C. In appeal to this Court the appellants contended that (i) since an acquittal "reinforces" the presumption of innocence, it was not a fit case for rever sal of an acquittal. and (ii' the testimony of the eye witnesses in the case was found by the Sessions Judge to be unsatisfactory.

HELD : The High Court rightly convicted the appellants.

(i) The powers of the High Court in an appeal from an acquittal arc in no way different from those in an appeal from a conviction. The High Court can consider the evidence and weigh the probabilities. It can accept evidence rejected by the Sessions Judge and reject eviden-.::e accepted by him, unless the Sessions Judge relied upon his observation of the demeanour of a particular witness.

In departing from the conclusions of the Sessions Judge the High Court must pay due attention to the grounds on which the acqu ttal is based on repeal those grounds satisfactorily, bearing in mind always that an accused starts with a presumption of innonce in his favour and this presumption cannot certainly be les..c;. strong after the acquittal. If these matters are properly kept in view and the acquittal is reversed, there can no objection because the High Court is empowered to reverse an acquittal. [729 E..G]

Sanwat Singh v. State of Rajasthan [1961] 3 S.C.R. 120, referred to.

(ii) The evidence of the eye witnesses was consistent, convincing and credible The. Sessions Judge lost sight of the main issue, namely, '¥hether what the eye witnesses said was credible, in an attempt 'to examine the inter-relation of the witnesses.

This i" an inquiry of value up to , a point but is not canclusive because there is no crime proved in small village communities where some kind of relationship cannot be estabished between witnesses and the victim and some petty quarrel shown to have taken place in the past. between some of the witnesses and the accused. To decide a case on the basis of .such circumstances, unless they are of great or significant magnitude, is to place reliance on collateral circumstances at the expense of direct evidence of guilt " !ch really matters.

The first serves as a check upcn the latter but no more. [731 B-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 191 of 1964.

ff Appeal by special leave from the jLdgment and order dated May 20, 1964 of the Allahabad High Court in Government Appeal No. 1386 of 1962.

SUPREME COURT REPORTS

[1967] 2 S.C.R

A. S. R. Chari and A. K. Nag, for the appellants

0. P. Rana, for the respondent.

The Judgment of the Court was delivered h>

Hidayatullah, J. The three appellants have been convicted by the High Court of Allahabad under s. 302i34 of the Indian Penal Code for the murder of one Harpal and sentenced to rigorous imprisonment for life, after reversing their acquittal by the Sessions Judge, Meerut. Originally five persons were tried for this offence; All of them were acquitted by the Sessions Court. On appeal, the acquittal of the other two (Shanker and Tarif) was maintained but the three appellants (Shersingh, Baljor and Vijaipal) were convicted. They now appeal hy special leave granted by this Court.

The appellants are brothers and sons of arayansingh.

Tarif and Shanker arc brothers of Narayansingh. The deceased Harpal was the brother of Naharsingh (P. W. 1) and Amichand (P. W. 5). The house of Amichand and his brothers is in front of that of the appellants, in Mauza Amanullahpur, Police Station Jani, D!strict Meerut, where the offence was committed.

As frequently happens this murder was the result of a petty quarrel earlier over the taking of carts throug:. fields.

It is hardly necessary to recount in detail what had then happened. Suffice it to say that Shersingh took his cart through Harpal's field and there was a wordy quarrel.

Next Shcrsingh stopped a cart in which Harpal was carryir.g sugarcane and Harpal kicked Shersingh and beat him with fist blows.

Nahar Singh (P. W. 1) and Khazan (P. W. 7) separated them. The murder followed close upon the heels of the second incident.

The case of the prosecution is that a fortmght later on the morning of November 26, 1961 at acout 7 a.m. Harpal left his ghair (compound) to answer a call of nature.

Near the gate of his house the appellants and the two accused (since acquitted) fell upon him. Sher Singh and Vijaipal had spears and Shanker and Baljor had lathis. They beat H.1rpal with their weapons.

Tarif, who also had a stick, took no part in the beating but exhorted the others to kill Harpal.

Harpal was pierced in the chest and abdomen with spears and struck with sticks. On his shout for help his brothers Naharsingh and Amichand, who were working in the back portion of their house came running and three or four witnesses Bhupal (P. W. 2), Tara (P. W. 3), Katara (P. W. 4) and one Atarsingh (who was not examined) came from different sides.

The assailants then fled.

Harpal .vho had fallen down was lifted, placed on a cot and covered with a quilt.

He was however dead.

The autopsy later disclosed two penetrating wounds in his chest

D ..

each of wl>ich had torn through his heart, a penetrating wound transfixing the stomach and some contusions. He must have died in a matter of minutes. The five accused were tried for his murder but were acquitted. On appeal the three appellants were convicted and sentenced.

The learned Sessions Judge in a long judgment exhaustively discussed the evidence but lost himself in the details of family relationship and other irrelevant matters sedulously brought out in a desultory cross-examination. He found it difficult , o accept any part of the testimony of the eye-witnesses. The High Court on a reappraisal of the evidence came to a contrary conclusion although it maintained the acquittal of Shanker an<!! Tarif by giving them the benefit of the doubt. In this appeal Mr. Chari, learned counsel for the appellants, drew our attention to the evidence of the. eye-witnesses and contended that their testimony was unsatisfactory. He submitted that this was not a fit case for the reversal of an acquittal regard being had to the observations of this Court in Sanwat Singh & Others v. State of Rcqasthan(') since an acquittal "reinforces" the presumption of innocence. We shall deal with both the aspects of his argument.

It has been pointed out before by this Court as also the Judicial Committee that the powers of the High :::ourt in an appeal from an acquittal are in no way different from those in an appeal from a conviction. The High Court can consider the evidence and weigh the probabilities. It can accept evidence rejected by the Sessions Judge and reject evidence accepted by him, unless the Sessions Judge relied upon his observation of the demeanour of a particular witness. In departing from the conclusions of the Sessions Judge the High Court must pay due attention to the grounds on which the acquittal is based and repeal those grounds satisfactorily, bearing in mind always that an accused starts with a presumption of innocence in his favour and this presumption cannot certainly he less strong after the acquittal. If these matters are properly kept in view and the acquittal is reversed, there can be no objection because our Criminal jurisdiction empowers the High Court to reverse an acquittal.

In this case the High Court reassessed the evidence and considered the grounds for its rejection by the Sessions Judge.

Mr. Chari contended that the High Court ignored several factors.

His argument was that the High Court ought to have seen that the medical evidence contradicted the oral testimony, the evidence clearly showed that the attack must '1ave taken plac" elsewhere and that the eye-witnesses were interes, ed in the victim and hostile to the accused. We shall now consider these objections,

(l) (196113 S.C.R. 120.

730 SUPl.BMB OOUR T 1.BPOR TS fl 961] 2 S.C.R.

Harpal had three penetrating injuries on his chest and abdomen.

One was a stab wound chest cavity deep and the direction was medially downwards. The second was a stab wound 3!" below the left nipple in the 7th inter costal space near stomach. The wound was partially medial and upward aiid chest deep. The third was a stab wound on the mid part of the eoig1stric region in the midline and it was up to the back from the front and abdominal deep. The other injuries may b~ ignored. The first two injuri>!S had punctured the heart and the third the stomach. There was 8 oz. of clotted blood in the pleura, 3 oz. of clotted blood in the peritoneum and I lb. semi-clotted blood in the pericardium.

The large intestines contained faecal matter and the bladde1 was empty.

Mr. Chari said that the description of th~ injuries shows that Harpal must be lying down and not standing when the first and second blows were given becausP. one stab was downwards and the other upwards. This is not conclusive.

Much depends upon the respective heights of the assailants in relation to that of the victim, the lie of the land and the moves to avoid the blows by the latter. There is nothing inherently improbable in the situation and direction of the injuries which can b~ said to contradict flatly the evidence of the eye-witnesses. The injuries were :; uch as could be inflicted at the gate of the house or elsewhere and no inference against the testimony of th~ eye-witnesses can be drawn.

Mr. Chari sought to strengther. this argument from the circumstances that no blood was found at the spot, or in the tidri where the cot was spread or on the clothes. The Sub-Inspector Chauhal (P. W. 10) said that the place of the attack was sandy and blood had probably been trampled upon.

We have .shown that the body contained I lb. and 11 ounces of blood in its various parts and this showed considerable internal bleeding. It must be remembered that Harpal had worn a kurra, a dhoti and a khes.

It is likely that these between them absorbed the external bleeding which appears to be comparatively small.

At least one witness described that the clothes were <.lrenched in blood which they must have been wherever the murder took place. It is a pity that the clothes were not sent to the serologist but we do not think that an adverse inference can be drawn from this circumstance.

The evidence of the eye-witnesses is consistent. That the incident took place at the very door step of Harpal makes the presence of his brothers probable because they were in the house. The offence took place in day light and there could be no mistake. The report was m:.de almost at once and the names of the assailants and eye-witnesses were mentioned in it. Although it said that many other villagers saw the attack, it is perhaps because the maker presumed that this must have been so. The emptiness of the bladder

showed that the victim had voided but the fullness of the larger intestines supported the prosecution version that he was going out to ease himself.

We have had the evidence of the eye-witnesses read to us and after careful consideration we are satisfied that it is consistent, convincing and credible. The Sessions Judge lost sight of the main issue, namely, whether what the eye-witnesses said was credible, in an attempt to examine the interrelation of the witnesses. This is an inquiry of value up to a point but is not conclusive because there is no crime proved in small village communities where some kind of relationship cannot be established between witnesses and the victim and some petty quarrel shown to have taken place in the past between some of the witnesses and the accused. To decide a case on the basis of such circumstances, unless they are of great or significant magnitude, is to place reliance on collateral circumstances at the expense of direct evidence of guilt which really matters. The first serves as a check upon the latter but no more.

The evidence of the eye-witnesses here is clear.

We accept the findings of the High Court which. are supported by evidence of sufficient probative force to satisfy us. The appeal fails and will be dismissed.

Y.P.

Appeal dismissed.

SHER SINGH & ORS

STATE OF UTTAR PRADESH

February 23, 1967

M. SHELAT

G. K. MITTER, JJ.

s. 302

I.P.C

s. 302

I.P.C

[1961] 3 S.C.R. 120

Allahabad High Court

A. S. R. Chari

A. K. Nag

P. Rana

Hidayatullah

High Court of Allahabad

s. 302

Indian Penal Code

Harpal

Shanker

Tarif

Shersingh

Baljor

Vijaipal

arayansingh

Narayansingh

Naharsingh

Amichand

Amichand

Mauza Amanullahpur

Police Station Jani, D!strict Meerut

Shersingh

Shcrsingh

Nahar Singh

Khazan

November 26, 1961

Sher Singh

Vijaipal

Shanker

Baljor

Tarif

Naharsingh

Bhupal

Tara

Katara

Atarsingh

Harpal .vho

Chari

Chauhal


STATE OF ASSAM & ANR.

\'.

GAUHATJ MUNICIPAL BOARD

February 24, 196 7.

[K. N. WANCHOO, R. S. BACHAWAT A1'1> V. BHARGAVA, JJ.)

Auam Municipal Act (IS of 1957) s. 298-State Government Issuing 1181/fication superseding Municipal Board for incompetence etc.-Notificatlon after considering aplanotion to show cause notice-Whether opportunity for oral hearing also to be given-Whether principles of natural justice violated-Indication of tentative conclusion to supersede Board given In show cause notice-Whether amounted to pre-fudging before considering explanation.

The appellant issued a notice to the respondent Municipal Board on Jun.o 9, 1964, under s, 298 of tho Assam Municipal Act (XV of 1957) which &tated, Inter alla that tho Slate Government was of opinion that tho Boord was mcompetcnt to perform its duties and it had como to tho tentative conclusion that the Board should bt. superseded. The charges which wero tho basis of the tenatativo conclusion woro set out in the notice and tho Board was asked to give an explanation in reply to these.

Afler cooaiderinll the explanation given ny tho Board, tho State Government issued a notiftcallon on December 9, 1964, superseding the Board for one year with effoct from December 14, 1964 for reasons which were state<! in the notil!cation.

Tho Board thereupon filed a writ petition challenging tho notlllcatioo on tho grounds, Inter a/la, ( i) that in passing tho order of supersession tho State Government bad violated the principles of natural justice inasmuch as tho proceedings resulting in aupersession being quasi-judicial proceeding., tho Board had been denied the opportunity of being per- 80Dally board and of producing evidence; (ii) that tho charges which woro found prm"Cd in the notification of December 9, 1964 were not the same which were the subject matter of the notice of June 9, 1964; nod

(iii) that tho Slate Government bad already come to the conclusion that tho Board should be superseded when it gave notice on June 9, 1964 and had thus pro-judged tho issue even before tho exrlanation of the Board had been received. Tho High Court accepted al these contentions and allowed tho petition.

On appeal to this C<>urt, HELD : allowing tho appeal :

(i) Even assuming that the proceedings in question were quasi-judicial proceedings, there wu no violation of the principles of natural justice in this case. What tho section provides is that a notice should be given to tho Board by the State Government and ita explanation taken before an order under s. 298 is passed.

When tho provtsioos of •. 298 are fully complied with, as in this case, and the Board does not ask for an opportunity for a personal hearing, principles of natural justice do not require

that the State Government 1hould aslr. tho Board to appear for a personal hearing and to produce materials in support of tho explanation. [7~5 D-E;

736 CJ

(ii) A careful examination of the notice and the notification slfowed that tho charges found proved were substantially the same as the charges levelled. [736 Fl

(iii) The High Court had wrongly used the analogy of Art. 311 for lhe purp05e of s. 298 in holding that the appellant should not have indicated its tentative conclusiQn in the notice because s. 298 provides for two courses I.e., supersession ar dissolution, and the appe)Jant could not decide between the two alternatives even tentatively iiefore taking into consideration the explanation of the Board. There was no reason why, when giving notice, the State Government should not indicate to the Board

tentati\"ely which of the two alternatives it intends to Plll'SllC Such tentative conclusion communicated to the Board does not mean that the State Government is not open to conviction at all and whatever the explanation it would pass an order in accordance with its tentative conclusion.

[737 B-0]

CIVIL APPELLATE JURISDICTION : Civil Aprea! No. J 268 of 1966.

Appeal by special leave from the judgment and order dated May 21, 1965 of the Assam and Nagaland High Court in Civil Rule No. 306 of 1964.

S. V. Gupte, Solicitor-General and Naunit Lal, for the appellants.

K. R. Chaudhuri and B. P. Singh, for the respondent.

The Judgment of the Court was delivered by

Wancboo, J. This is an appeal by special leave against the judgment of the Assam High Court. The appellant is the State of

Assam and the respondent is the Gauhati Municipal Board, (hereinafter referred to as the Board). After the municipal election, new members of the Board began to function from July 7, 1962.

The term of the members is four years and would in the normal course have expired on July 6, 1966. On June 9, 1964, the &ppellant issued notice to the Board under s. 298 of the Assam Municipal Act, No. XV of 1957 (hereinafter referred to as the Act).

That section gives power to the State Government, if it is of the opinion that a Board is incompetent to perform or persistently makes default in the performance of the duties imposed on it by or under the Act or otherwise by Jaw, or exceeds or abuses its powers, either to dissolve the Board or to supersede it for a period not exceeding one year at a time, and where dissolution is ordered to order a fresh election as soon. as possible. The section further provides that this power can be exercised by the State Government after giving the Board an opportunity for submitting its explanation in regard to the matter in question. On receipt of such explanation the State Government has to consider it and thereafter by notification stating reasons for so doing it may declare that the Board is •<\Competent to perform or persistently makes default in the rerformance of its duties or has exceeded or abused its powers. The State Government may by such notification either dissolve the Board or supersede it as already indicated.

The State Government issued n0tice to the Board on June 9,

1964. In this notice the State Government said that it was of the opinion that the Beard was incompetent to perform or had persistently made default in the performance of the iutics imposed on it by or under the Act or otherwise by law and that the Board had abused its powers. The notice went on to say that the State Government had come to the tentative conclusion that the Board should be superseded under s. 298 of the Act and asked the Board to show cause why this should not be done. The notice also stated eight charges which were the basis of the tentative conclusion of the State Government and asked the Board to give an explanation in full with respect to these charges." The Board gave the explanation on August IO, 1964. That explanation was apparently considered by the State Government and on Decernhcr 9, 1964, the State Government issued the notification superseding the Board for one year with ctTcct fr0m December 14, 1964 for reasons which were stated in the notification. Thereupon the Board filed a 1>rit petition in the High Co~!ft on December 24. 1964 on various grounds.

It is however unm:ce>sary for present purposes to mention all the grounds raised in the writ petition. It is sufficient to say that three of the grounds raised therein 1"ere-{i) that in passing the order of superscssion the State Government had violated the principles of natural jus•icc inasmuch as the Board had been dc:1icd the opportunity of h:ing personally heard ard uf producing evidence, as the proceedings resulting in supersession were quasijudicial proceedings, (ii) that the charges which 1-.uc fol!nd proved in the n.>tification of December 9, 1964 wnc not the same which were the subject matter of the notice of June 9, 1964, and (iii) that the State Government had already come to the conclusion that the Board should be superseded when it gave notice of June 9, 1964 and had thus pre-judged the issue even before the explanation of the Board had been received.

The application was opposed by the appclknt, and its case was that proceedings resulting in an order under s. 298 of the Act were administrative proceedings and not quasi-judicial proceedings. In any case even if they were quasi-judicial proceedings, the appellant contended that it had given a hearing to the Board as required by s. 298 and there was no violation of the principles of natural justice. The arpcllant futher contended that the charges

found proved were the si\me as the charges levelled agaimt the Board. Finally it was contended that though the action to be taken was tentatively indicated in the notice, the State Government had not pre-judged the issue and was open to conviction after the receipt of the explanation from the Board.

The High Court held that the proceedings culminating in an order under s. 298 of the Act were quasi-judicial and that there was

violation of the princi!)les of natural justice in this case. The High Court also held that .the charges found proved in the notification of December 9, 1964 were different from the charges levelle<'. in the notice J..:ne 9, 1964. Tre High Court finally held that the State Government had already made up its mind to supersede the Board when it issued notice and therefore presumably all the proceedings subsequent to the issue of the notice were a farce.

For these reasons the High Court allowed the writ petition and quashed the order of December 9, 1964. It is this order of the High Court which is being challenged before us in the present appeal.

We are of opinion that the appeal must succeed. We shall take up three grounds on the basis of which the High Court has allowed the writ petition in the order indicated above.

Re. (i).

It is not necessary in the present appeal to decide whether the proceedings resulting in an order imder s. 298 of the Act are quasi-judicial proceedings or merely adininistrative proceedings.

Assuming that the High Court is right that the proceedi11gs arc quasi-judicial proceedings, the question is whether there was any viohtion of the principles of natural justice in this case. What the section provides is that a notice should be given to the Board by the State Governme:lt and its explanation taken before an order under s. 298 is passed. It is not disputed that the appellant had given notice to the Board and had indicated the ch<trges on the basis of which it had formed its tentative conclusion ai1d also had asked for an expbnation from the Board. The explanation was received in August 1964 and considered by the appellant and thereafter the appellant by its order dated December 9, 1964 decided to suversede the Bo<:1rd. Now it is clear from these facts that the appellant acted in full compliance with the procclure provided in s. 298. Ordinar_ily therefore there is no reason why it should be held, when the procedure provided in s. 298 was complied with, that the principles of natural justice were violated.

But the High Court was. of •he view that the appellant should have given an oral hearing to the Board which should also have been given an opportunity to produce materials before the appellant in support of the explanation. According to the High Court, the right of hearing includes the right to produce evidence in support of an explanation and this opportunity was not given to the Board.

Here again it is unnecessary to deside whether s. 298 which merely says that the State Government should give opportunity to the Board for submitting an explanation in regard to the matter envisages production of evidence-oral or documentary-at some later stage by the Board in support of its explanation. The High Court has conceded that a personal hearing of the nature indicated above is not always a concommitant of the principles of natura1

'36

SUPIU!MB COURT IU!PORTS

(1967] 2 S.C.R.

justice. But it was of the view that in the presen: case principles A of natural justice required that the Board should have been given a personal hearing and an opportunity to produce materials in support of the explanation. We should have thought that when the Board is given a notice as required by s. 298 it would naturally submit its explanation supported by facts and figures and all relevant. material in SUPJ>?t tLereof.

Howver, we are definitely B of op1ruon that the prov1S1ons of s. 298 bcmg fully comphoo with iL cannot be said tha: ther~ was \iolation of principles of natural justice in this case when the Board never demanded what is called a perscnal hearing and never intimated to the Government that it would like to produce materials in support of its explanation at some later stage. Therefore where a provision like s. 298 is fully complied with as in this case and the Board does not ask for an C opportunity for personal hearing or for production of materials in support of its explanation, principles of natural justice do not require that the State Government should ask the Board to appear for a personal hearing and tci produce materials in support of the explanation. In the absence of any demand by the Board of the nature indicated above, we cannot agree with the High Court that merely because the State Government did not call upon the Board to appear for a personal hearing and to produce material in support of its explanation it violated the principles of natural justice.

This ground in support of the order of the High Court therefore fails.

Re. (ii) Then we come to the finding of the High Court that the charges found proved in the notification were different from the charges levelled in the notice. We regret to say that the High Court did not carefully look into the matter If it had done so, it would have found that there was no difference in substance between what was charged and what was found proved. Eight charges were indi cated in the notice of June 9, !964. Six of them related to acts of omission and commission t J the Board; the seventh and eighth cl .ges were mere matters of inference from the first six charges and were not strictly speaking charges of which any explanation was necessary. In the notification superseding the Board the appellant found six charges proved. We have compared the notificat; on of December 9, 1964 with the notice of June 9, 1964 am• find th~! the first charge found proved in the notification is the third ci -rge in the notice; the second charge found proved in the notifica .1 is the fifth charge in; tho notice; tho third charge found proved 1.1 the notification is the fourth charge in the cotice; the fourth charge four.d proved in the notification is the second charge in the notice; the fifth charge found proved in the notification !5 the sixth charge in the notice and the sixth charge found proved m the notification is the first charge in the notice. It will thus be

~ -

ASSAM v. MUNICIPAL BOilD (Wanchoo, /.) 737

seen that though there was a change in the order in which charges were enumerated, the charges found proved were substantially the same as the charges levelled. We have afready indicated 'that the seventh and eighth charges in the notice were really not charges and were mere ifuerences and that is why we find no_ mention of them in the notification. The view of the High Court that the charges proved were different from the charges levelled therefore also fails.

Re. (iii)

Finally the High Court found that in the notice the State Government indicated its tentative conclusion to the effect that the Board should be superseded and _thus it had made up its mind afready even before considering the explanation of the Board that it shCJuld be superseded, and that the rest of the proc..-edings were a farce. The High C-ourt thought that the appellant should not have indicated its tentative conclusion because s. 298 provides for two courses, i.e. supersession or dissolution, and the appellant could not decide between the two alternatives even tentatively before taking into consideration the explanation of the Board.

In this connection the High Court relied on decisions under Art. 311 of the Constitution relating to removal, dismissal and reduction in rank of public servants and was apparently of the view that the State Government should first have considered the explanation and then made up its mind as to which one of the two alternatives provided in s._ 298 should be used and then presumably given a second notice to the Board to show cause why one of the a!erna tives tentatively decided upon should not be pursued. We are of opinion that it is not correct to use the analogy of Art. 311 for he purpose of s. 298 of the Act. The issue of two notices under Art. 311 is a very special procedure depending upon the languaz~ of that Article. We find no comparable words in s. 298. We aiso see no reason why when giving notice the State Government should not indicate to the Board tentatively which of the two alternatives it intends to pursue. Such tentative conclusion communicated to the Board does not mean that the State Government is not open to conviction at all and w)latever the explanation it would pass an order in accordance with its tentative conclusion. There is therefore no reason to think that all proceedings subsequent !o the issue of notice dated June 9, 1964 were in this case a farce. The third ground on which the High Court decided in favour of the respondent must fail.

It appears that the respondent had secured a stay ordr and practically c9ntinued to function for the full period of four years under the cover of the stay order. Before us, though the respondent has appeared, it did not seriously contest the appeal, for, the

period of all members who took office on July 7, 1962 came to an end on July 6, 1966.

We therefore allow the appeal, set aside the ordr of the High Court and dismiss the writ petition. In the circumstance<> we pass no orders as to costs.

R.K.P.S.

Appeal allowed.

STATE OF ASSAM & ANR

GAUHATJ MUNICIPAL BOARD

February 24, 196

K. N. WANCHOO

R. S. BACHAWAT A1'1> V. BHARGAVA, JJ.

Auam Municipal Act

s. 298

Assam Municipal Act

December 9, 1964

June 9, 1964

s. 298

Art. 311

s. 298

s. 298

CIVIL APPELLATE JURISDICTION

Assam and Nagaland High Court

S. V. Gupte

Naunit Lal

K. R. Chaudhuri

B. P. Singh

Wancboo

Assam High Court

State of

Assam

Gauhati Municipal Board

July 7, 1962

July 6, 1966

s. 298

June 9,

1964

s. 298

August IO, 1964

Decernhcr 9, 1964

December 14, 1964

December 24. 1964

s. 298

s. 298

s. 298

s. 298

s. 298

s. 298

s. 298

s. 298

s. 298

s. 298

s. 298

June 9, !

s. 298

Art. 311

Art. 311

s. 298

Art. 311

s. 298