PREM NATH & ORS.

v.·

STATE OF RAJASTIIAN & ORS.

March 15, 1967

[K, SUBBA R.Ao, C.J., J. C. SHAH, J •. M. SHBLAT, V. BHAROAVA

AND 0. K. MITTER, JJ.] Constitmion of India Art. 233-Selection Committe.f consisting of Chief Justice and two other Judges only-List of eligible candidates prepared by

th_e Committee transmitted by the High Court-I/ proper consultation.

Art. 233A-Appointments of Civil and Additional Sessions Juda• to thR Rajasthan Higher Jw#cial Service if v"lidated.

Art. 236-Civil Judge appointed as Additional Sessions Judge rmdor tire Rajasthan Higher Judicial Service Rules, 1955-I/ "District Judge" within tire definition of fhe Article.

The Rnjas•han Higher Judicial Service Rules, 1955, provided that recruitment to the Hiher lud'.cial Service had to be made by the Governor from out of the lists of eli&ible candidates sent up by the Hi1!11 Court but prepared by a Selection Committee of the Hi&h Court cons11ting of the Chief Justice, the Administrative Judae and another Judae of the High Court nominated )>y the Chief Justice.

When recruitments to the posts of Civil and Additional Sessions Judge were made in accordance wit'h this procedure they were challen_ged on the JP:OUnd that the Rulea contravened Art. 233 _of the Constitutron. The Hrgh Court upheld the validity of the Rules and the appointments made thereunder. In this Court it was contended that (i) the Rules were ultra vires Art. 233, and (ii) the post of a, Civil and Additional Sessions Judge is not included in the definition of a "District Judge" in Article 236 and therefore the appoint ments were not validated by Article 233A introduced by the Constitution (Twentieth Amendment) Act, 1966.

Held : The Rules contravened Article 233 and therefore the appointments were illegal; but tbe appointments were validated by Article 233A.

( i) Consultation as provided in Art. 233 is consultation with the High Court and n.ot with any other authority such as the Selection Committee appointed under the Rules. The Committee, though composed of Judges of the High Court, is not the High Court. The only function entrusted 10 the High Court under the Rules is to transmit the lists prepared by the Committee and there is nothing in the Rules empowering the High Court. before submitting the lists to vary those lists if tbe High Court were tr disagree with the Committee. [190 A-CJ

Chandra Mohan v. State of Uttar Pradesh, [1967] I S.C.R: 77, followed

(ii) When a Civil Judge is appointed as an Additional Sessions Judge, which is precisely what has happened in the instant case, such an appointment is made in exercise of the powers conferred by s. 9 of the Code of Criminal Procedure. The Civil Judge exercises the powers of an Additional Sessions Judge not because he is a Civil Judge but because he is appointed as an Additionµ! Sessions Judge .• The two posts, therefore, cannot be said to have been clubbed together. So, when a person appointed as a Civil Judge is also intended to work as an Additional Sessions Judg~ an

appointment has to be made under s. 9 of the Code of Criminal Procedure, as an Additional Sesoions Judge. Such an appointment has to be COii sidered u an ap, POintment fallina under the deflnltlon of "District Judie" within the meanma of Art. 236, Therefore Article 233 and the RajastD&n Higher Judicial Service Rules 1955 apply to such a post and not Article 234 or the R•jasthan Judicial Service Rules, 1955. [195 E-Hl

C1v1L APPELLATE JuR1so1CTION : Civil Appeal No. 93 of 1966.

 Appeal from the judgment und order dated November 27, 1964 of the Rajasthan High Court in D. B. Writ :Petition No. 803 <>f 1964.

M. B. L. Bhargavu and Naunlt Lal, for the appellant.

S. V. Gupte, Solicitor-General, G. C. Ka.r//wal, Jtdvocate-G1111ral for the State of Ra/asthan and K. Bcildev Mehta, for respon dents Nos. k~·

Sarjoo Prasad, S. N. Prasad, and 0. C. Mathur, for respondents Nos. 6 and 7 and Interveners Nos. I and 2.

R. K. Garg, S. C. Agarwal and D. P. Singh, for intervener No. 3.

Sami Bhushan, Addi. Advocate-General, State of U.P. and

0. P. Rana, for intervener No. 4.

The Judgment of the Court was de\lvered by

Sbelat, J. This appeal, by certificate, mises two questions : ( l) whether the Rajasthan Higher Judicial Service Rules, 1955 are ultra vircs Art. 2.33 and, therefore, the selections made by the Selection Committee appointed thereunder and appointments made on the 1'asis of such selections are invalid, and (2) if so, whether the appointments are validated by the Constitution (Twentieth Amendment) Act, 1966 which introduces Art. 233/\ in the Constitution.

On May 9, 1955, the Rajpramukh of the then (Part Bl State of Rajasthan, in exercise of the powers conferred by the proviso to Art. 309 of the Constitution, promulgated the Rajasthan Hiohcr Judicial Service Rules, 1955. In pursuance of the said Rules," the High Court of Rajasthan published a notice dated November 20.

1963, inviting applications for direct recruitment to four posts of Civil and Additional Sessions Judge.

A number of applica tions were received by the High Court and after scrutiny thereof and interviews granted to the applicants, the Selection Committee. appointed under the said Rules and consisting of the Chief Justice, the Administrative Judge and another Judge of the High Court nominated by the Chief Justice, selected four candidates.

Besides these four posts, there were fourteen posts to be filled up from amongst the members of the Rajasthan Judicial Service by

promotion. The 5aid Committee selected eligible candidates from amongst those members and prepared another list.

The High Court submitted the two lists prepared by the Committee to the Governor for appointments.

The appellants who are members of the Rajasthan Judicial Service filed a writ petition in the High Court of Rajasthan challenging the validity of the selection done, the lists prepared by the Selection Committee and the appointments made on the basis of those lists on the ground that they were done in contravention of Art. 233. The High Court dismissed the writ pe\ition holding that the said Rules were valid, and, therefore, the proceedings of the said Committee, the lists prepared by it and submitted to the Governor by the High Court and the appointments made were all valid. Hence this appeal.

Rule 1 (2) of the Rajasthan Higher Judicial Service Rules provides that the said Rules shall apply to the members of the Service consisting of District and Sessions Judges and Civil and Additional Sessions Judges. Rule 6 provides that the strength of the Service and of each class of posts therein shall be determined by the Governor from time to time in consultation with the High Court and the permanent strength of the Service and of each class of posts therein shall be as specified in Schedule I. Sub-rule (3) of Rule 6 empowers the Governor, from time to time and in consultation with the High Court, to leave unfilled or hold in abeyance any post in the Service or create such additional temporary or permanent posts in the Service as may be found necessary. Schedule I provides the strength of District and Sessions Judges at 18, i.e., 15 judgeships, one post of Legal Remembrancer, one post of Registrar of the High Court, and one post of Joint Legal Remembrancer and that of the Civil and Additional District Judges

at 20. Rule 7 provides sources of recruitment, viz., by promotion from among the members of the Rajasthan Judicial Service and by direct recruitment in consultation with the High Court.

The persons eligible for direct recruitment are Advocates or Pleaders of more than seven years' standing.

Rule 10 reads as under:-

"(l) Subject to the provisions of these rules, the number of persons to be recruited at each recruitment from each of the two sources specified in rule 7 and the period (not exceeding three years) for which such recruitment is to be made shall be determined by the Governor.

Provided that the number of persons appointed to the Service by direct recruitment shall at no time exceed one-fourth of the total strength of the Service and the number of persons so appointed during any one period

of recruitment shall not exceed one-fourth of the total number of vacancies occurring during that period".

Rule 13 provides that after a decision is taken under Rule 10 as to the number of persons to be recruited by promotion, selection shall be made from among the eligible members of the Rajasthan Judicial Service by a Selection Committee consisting of the Chief Justice, the Administrative Judge and a Judge of the High Court nominated by the Chief Justice. It also provides that the Cororoittee shall select from among the eligible officers those whom they consider suitable for appointment to the Service.

A list of the officers selected shall theu be made in the order of their inter se seniority in the Rajasthan Judicial Service. As regards direct recruitment, Rule 17 provides that applications shall be invited by the High Court. Rule 21 provides that the Selection Committee shall scrutinise such app1ications and require such of the eligible candidates as seem best qualified for appointment to the Service under these Rules to appear before the Committee for interview.

Under Rule 22 the Selection Committee have to prepare a list of candidates whom they consider suitable for appointment to the Service.

Under Rule 21 the High Court has to submit to the Governor two copies each of the two lists of candidates considered suitable for appointment to the Service from the two sources. of recruitment as prepared in accordance with Rules 13 and 22.

Rule 24 provides that all appointments to posts in the Service shall be made by the Governor on the occurrence of substantive vacancies by taking candidates from the lists prepared under Rule 13 and Rule 22 in the order in which they stand in the respective lists.

The first three vacancies shall be filled from the list prepared under Rule 13 and the fourth vacancy shall be filled from the list prepared under Rule 22 and so on.

It is clear from Rule 13(2) that the selection from amongst the eligible officers for appointment to the Higher Service is made by the Selection Committee and not by the High Court as a whole though the list prepared thereunder by the Committee is forwarded by the !figh Court to the Governor. There is no provision in Rule 13 o: m any other Rule empowering the High Court to modify !he hsts prepared by the Committee either by substituting others m the lists whom the High Court considers more suitable or by withdrawing or deleting any one of those selected bv the Committee-and named in the lists. So far as direct recruitment is concerned, under Rule 21 it is the Comm; ttee which scrutinise the applications and it is again the Committee which decide whom to reject and whom to call for interview.

The Hieh Court has nothing to do with the scrutiny of applications. It is again the Selection Committee which interview the candidates considered eligible for appointment and not the High Court. It is also the

Selection Committee which prepare the lists of eligible candidates selected by them. The only function entrusted to the High Court under the Rules is, therefore, to transmit the two lists prepared by the Committee under Rules 13 and 22.

As aforesaid, there is no provision in the Rules empowering the High Court before submitting the lists to the Governor to vary those lists even if the High Court were to disagree with the selections made by the Committee.

Obviously, the Committee is not the High Court. 'the High Court thus is only a transmitting authority. The con

sultation as provided in Article 233 is consultation with the High Court and not with any other authority such as the Selection Committee appointed under the Rules. The Rules, therefore, are clearly inconsistent with the nuuidate provided for in Art. 233 and are, therefore, invalid. Consequently, the selections made by the Committee, the lists prepared by them and appointments made thereunder would be invalid. ·

Recently, the U.P. Higher Judicial Service Rules for recruit ment of District Judges, which were similar, if not almost idcnti cal, with the Rules in this appeal, came up for consideration by tliis Court in Chandra Mohan v. State of Uttar Pradesh('). After an analysis of the said Rules, this Court held that the said Rules were not in consonance with and contravened Art. 233 and further held that the appointments made thereunder were illegal.

The Court observed :-

"The Constitutional mandate of Art. 233 is clear.

The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a son to the post of District Judge in consultation with the High Court.

The object of consultation is apparent.

The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the Judicial Service or to the Bar, to be appointed as a District Judge. This mandate can be disobeyed by the Governor in two ways; directly, by not consulting the High Court at all, and indirectly by consulting the High Court and also other persons.

That this constitutional mandate has both a negative and positive significance is made clear by the other provisions of the Constitution. See Articles 124(2) and 217(2) and

222. These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein". ----···----

(!) )1967] I S.C.R. 77.

The Court also observed that :

"the U .P. Higher Judicial Service Rules were consti tutionally void as they clearly contravened the constitu tional mandate of Art. 233(1) and (2). Under the Rules the consultation of the High Court is an empty formality.

The Governor prescribes the qualifications, the Selection .

Committee appointed by him selects the candidates and the High Court has to recommend from the lists prepared by the Committee. This is a travesty of the Constitutional provision. The Governor in effect and substance does neither consult the High Court nor act on its re

commendations".

It is obvious that under the Rajasthan Higher Judicial Service Rules the entire work of scrutinisfng the applications, interviewing the applicants, selection of eligible candidates from both the llOUl'CCS and preparation of the two lists is done by the Selection Committee and not by the High Court. The only function en trusted under the Rules to the High Court is that of transmitting to the Governor the two lists prepared by the Committee. The Rules, therefore, do not provide for consultation of the High Court and, therefore, contravene Art. 233 which envisages con~

Bultation with the High Court and not with any other body such as the Selection Committee which cannot substitute the High Court even though the members thereof happen to be three Judges of the High Court. The learned Solicitor-General who appeared for the :I State frankly conceded that it was not possible for him to dis

liilguish these Rules from the U.P. Higher Judicial Service Rules and, therefore, the decision in Chandra Mohan's case(') would apply to the present Rules. Consequently, the said Rules cannot be sustained and have to be declared invalid. The proceedings taken by the Selection Committee and following them the action r talcen must also be held to be invalid.

The next question is : whether appointments made by the Governor from amongst those in the said lists are validated by the Constitution (Twentieth Amendment) Act, 1966.

Article 233A introduced. by the said Act, inler alia, provides .

"Notwithstanding any judgment, decree or order of any court (a)(i) no appointment of any person already in .the judicial service of a State or of any person who has been for not less than seven years an Advocate or a Pleader, to be a District Judge in that State, and (ii) no posting, promotion or transfer of any such person as a . District Judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act,

11)(1967] I S.C.R, 77.

1966, otherwise than in accordance with the provisions of Art. 23 3 or Art. 23 5 shall be deemed to be illegal or void or ever to have become illegal or void by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions".

The amendment thus validates the appointment, posting or promotion of a person as a District Judge if such appointment, by reason of its not being in accordance with Art. 233 or Art. 235, would have been illegal or void. The question raised by counsel is whether appointment to the post of a Civil and Additional Sessions Judge can be said to be one of a District Judge.

Article 236{a) defines a 'District Judge' as including Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge. A Civil and Additional Sessions Judge does not apparently find place in thedifferent categories of judicial officers included in this definition. Mr. Bhargava for the appellants, therefore, argued that Art. 236, while defining a District Judge, does not include a Civil and Additional Sessions Judge; therefore,

a person appointed as a Civil and Sessions Judge is not a District Judge and consequently Art. 233A does not validate the appointment of a person to the post of a Civil and Additional Sessions

Judge if that appointment was invalid. In order to make good his submission, he relied on the Rajasthan Civil Courts Ordinance, 1950, section 6 of which provides for four categories of C:::ivil Courts, viz., ( 1) the Court of the District Judge, (2) the Court of the Additional District Judge, (3) the Court of the Civil Judge, and (4) the Court of the Munsif. Section 13 of the F Ordinance provides that appointments of persons to be Civil Jtidges and Munsifs shall be made by the Rajpramukh in accordance with the Rules made by him in that behalf after consultation with the Rajasthan Public Service Commission and the High Court. Section 19 provides that the Court of a Civil Judge shall have jurisdiction to hear and determine all original suits and proceedings of a civil nature and the Court of a Munsif shall havjurisdiction to hear and determine all original suits and proceedmgs of a civil nature of which the value does not exceed five thousand rupees.

Sections 16 and 17 provide for the place of sitting and seals of the Courts. On May 9, 1955, the Rajpramukh of Rajasthan promulgated the Rajasthan Judicial Service Rules in exercise of powers under Art. 234 read with Art. 238 and the proviso to Art. 309.

Rule 4 defines a 'member of the service' as meaning a person appointed in a substantive capacity to a post in .the cadre of the

Service under the provisions of these Rules or of any Rules or orders superseded by Rule 2. Clause (f) of that Rule defines 'service' as meaning the Rajasthan Judicial Service. Rule 6 lays down the "strength of the Service and provides that such strength of the Service and of each class of posts therein shall be determined by the Rajpramukh from time to time in consultation with the High Court. Sub-rule (2) provides that the permanent strength of the Service and of each class of posts therein shall be as specified in Schedule I. According to that Schedule, the number of posts of Civil Judges was determined at 30 and that of the Munsifs at 80.

Mr. Bhargava's contention was that neither under the Rajasthan Higher Judicial service Rules nor under the Rajasthan Judicial Service Rules, there is any provision for appointment as an Additional Sessions Judge of a person who holds the post of a Civil Judge, that when respondents 6 and 7 were appointed they were appointed as Civil Judges with additional powers of an Additional Sessions Judge, that, therefore, as Civil Judges they would be amenal;>le to the Rajasthan Judicial Service Rules, 1955 and not to the Rajasthan Higher Judicial Service Rules and consequently Art. 233A would not apply to their appointments. He also contended that before Art. 233A can apply, the appointment must be to the post of a District Judge and that it is not so as the post of a Civil and Additional Sessions Judge is not included in the de- "linition of a 'District Judge' in Art. 236. Mr. Garg appearing tor the interveners argued that the appointments as Civil and Additional Sessions Judges club together the post of a Civil Judge and that of an Additional Sessions Judge, that though these posts are so clubbed together, such appointments would be governed by Art. 234 and not by Art. 233 and therefore Art. 233A would neither apply nor validate such appointments. Such appointments, according to him, would have to be made in accordance with the provisions of Art. 234.

He also sou!!ht to arP.:ue that since the Rajasthan Higher Judicial Service Riiles were "not distinguishable from those of Uttar Pradesh. the Rules are invalid, that Art. 233A does not validate such invalid Rules and that as the said appointments have been made under invalid Rules, they were not cured by Art .. 233A. w~ mav at thi< stage make it clear that the qnestion of constitutional validity of Art. 233A has not been rai<ed in this appeal.

The appointments are challengt', d as invalid because they were made in contravention of Art. 233. The vir~ of Art. ~33A not having been challenged we disallowed Mr. Garg apoear mg for e interveners to go into that question iJ) this appeal and we refram, therefore, from deciding that question .

. . Mr. Garg then referrrd to us the Ben!!nl. Agra and Asam CIVIi Courts Act. 1887, section 3 of which provides for the same

foo~ classes of Civil Courts as is done in section 6 of the Rajasthan Ordinance and contended, as did Mr. Bhargava, that the appoint-

'1·9.'4 S!IPREMI! COURT Jl, BPORTS

[1967] 3 S.C.K,

ment of a person as a Civil and Additional Sessions Judge is sub stantially. the appointment of such a person as a Civil Judge upon whom additional powers of an Additional Sessions .Judge are conferred.

Therefore, said he, such an appointment cannot be said to be an appointment of a District Judge within the meaning of Art. 236.

The learned Solicitor-General, on the other hand, argued that the-appointment of a person as a Civil and Additional Sessions Judge would not mean that he is only a Civil Judge or that he is not an Additional Sessions Judge included in the defini tion of a 'District Judge' b;,- Art. 236.. Such a Civil Judge when appointed also as an Additional Sessions Judge would have all the powers of a Sessions ~1 udge and would jossess jurisdiction in a

Sessions Court of a ssions division an all the , Jurisdiction and .J!Owers which an Add1tlonal Sessions Judge would have under the

Code of Criminal Procedure.

The learned Deputy Advocate General appearing for the State of Uttar Pradesh as an inter vener supported the Solicitor-General and added that Judicial Service under Art. 236 falls into two parts; (I) a Service con'

isting exclusively of persons intended to fill the post of a District Judge and (2) other civil judicial posts inferior to the post of a District Judge. He relied on the words "appointments of persons to be District Judges" used in Art. 233. According to him, these two Articles apply to persons who are appointed in the first instance to Civil Judicial posts inferior to the post of a District Judge bllt who are intended to fill the post of a District Judge at some tinie in the future and, therefore, such rsoils also are District Judges and to whom Arts. 233 and 233A would apply. It is not neceS sary in the present case to go into the question of interpretation and scope of Arts. 233 and 236 as the question raised hy Mr. Bhargava and Mr. Garg can well be resolved by a consideration of some of the provisions of the Code of Criminal Procedure. Section 6 of the Code provides for five classes .of courts apart from the High Court, viz., (1) Courts of Sessions, (2) Presidency Magistrates, (3) Magistrates of the first class, (4) Magistrates of the. second class, and (5) Magistrates of the third class.

Sect.ion 7 provides that every State, excluding the Presidency Towns, sha11 be a sessions division or shall consist of sessions divisions; and every sessions division shall, for the purposes of this Code, be a district or consist of districts. Section 9 provides that the State Govern.- men! shall establish a Court of Session for every sessions division, .and appoint a Judge of such Court. Sub-section (3) of s. 9 em'

powers the State overnment to appoi?t -:'d?iti.oal essions Judges and Assistant Sessions Judges to exercise iunsd1ctton m one or more .such Courts.

Section 36 lays down that District Magistrates, Sub-Divisional Magistrates and Magistrates of the first, second and the third class shall'have powers thereinafter respectively conferred upon them and specified in the third Schedule.

Such

PREM NATH v. RAJASTHAN (Shelat, 1.) 195

powers are called 'ordinary powers'.

Section 37 authorises. the State Government or the District Magistrate, as the case may be, to invest any Sub-Divisional Magistrate or any Magistrate of the first, second or third class with what are called 'additional powers'.

Under section 39 the State Government can confer such additional powers on persons by name or by virtue of their office or on classes of officials generally by their official titles. It is manifest that sections 36 to 39 cannot apply to the case of a Civil Judge appointed also as an Additional Sessions Judge, for these sections contemplate vesting of additional powers on District Magistrates, Sub-Divisional Magistrates and Magistrates of the first, second and third class. Therefore, the power to appoint a Civil Judge as an Additional Sessions Judge is to be found not in sections 36 to 39 but in section 9 which as aforesaid empowers the State Government to appoint Additional or Assistant Sessions Judges.

That is precisely what appears to have been done in Rajasthan.

By a notification dated June 2, 1950 the Rajasthan Government appointed with effect from July 1, 1950, Civil Judes therein mentioned by virtue of their office to bei Additional SeSS1ons Judges to exercise jurisdiction in courts of session mentioned in column 2 thereof. Therefore, when a Civil Judge is also apointed as an Additional Sessions Judge or when a person is appomted both as a Civil Judge and also as an Additional Sessions Judge such appointment as an Additional Sessions Judge is made in exercise of power. under s. 9 of the Code. When such a Civil Judge exercises the power of an Additional Sessions Judge, he does so not because he is a Civil Judge but because of his being appointed as an Additional Sessions Judge under s. 9 of the Code.

The two posts, therefore, cannot be said to have been clubbed together.

Factually what happens is that a person who is or who is appointed a Civil Judge is ato appointed an Additional Sessions Judge.

It makes no difference whether he is first appointed as a Civil Judge and then as an Additional Sessions Judge or whether he is appointed both as a Civil Judge and an Additional Sessions Judge at the same time. When such an appointment is made, the appointee exercises both the powers of a Civil Judge and those of

n Additional Sessions Judge. From such a combination of powers m the same person it does not follow that he is not an Addi tional Sessions Judge or that he is a Civil Judge and, threfore, does not fall under the definition of a 'District Judge' in. Art. 236 (a).

Since such a post falls under that definition it would be Art. 233 and the Rajasthan Higher Judicial Service Rules which would apply to him and not Art. 234 or the Rajasthan Judicial Service Rules, 1955.

Articles 233 and 234 contemplate.appointments falling under one or the other. It cannot be that an appointment would fall under both the Articles. If such a construction were to be

adopted, it would render the two Articles unworkable.

Therefore, in deciding which of the two Articles applies in a particu!ar case, what has to be determined is what was the intention when such appointment was made.

Was the appointment to the post of a Civil Judge under s. 13 of the Rajasthan Civil Courts Ordinance or one under s. 9 of the Code of Criminal Procedure. If it is the latter, Art. 233 and not Art. 234 would apply.

Besides, there is no provision in the Code of Criminal Procedure under which a Civil Judge can be invested with powers of an Additional Sessions Judge. Where, therefore, a person appointed as a Civil Judge is also intended to work as an Additional Sessions Judge, an appointment has to made under s. 9 of the Code of Criminal Procedure as an Additional Sessions Judge. Therefore, such an appointment has to be considered as an appointment falling under the definition of 'District Judge' within the. meaning of Art. 236. Consequently, Art. 233 would apply to an appointment of a Civil Judge as an Additional Sessions Judge.

Since the appointments in question were made in contravention of Art. 233 and were, therefore, illegal they must be held to have been validated under the new Art. 233A.

Mr. Bhargava, however, contended that even assuming that .Art. 233A applies, the appointments in the present case were still invalid as in making them Rules 10 and 24 of the Rajasthan Higher Judicial Service Rules were infrjnged. As already state<f, Rule 7 provides that recruitment to the Higher Service shall be made from two sources; (1) by promotion from among the members of the Rajasthan Judicial Service, and (2) by direct recruitment.

Rule 10 deals with . the number of appointments to be made and provides that the number of persons to be recruited at each recruitment from each of the two sources and the period (not exceeding three years) for which the recruitment is to be made shall be first determined by the Governor. The first proviso to thai Rule states that the number of persons appointed to the Service by direct recruitment shall at no time exceed one-fourth of the total strength of the Service and the number of persons so appointed during any one period of recruitment shall not exceed one-fourth of the total number of vacancies occurring during that period.

Accoroing to Rule 24, the Governor has to make appointments on the occurrence of substantive vacancies by taking candidates from the two lists prepared under Rules 13 and 22 in the order in which the eligible candidates stand in the respective lists.

The result is that given a certain number of appointments, the first three have to be filled in from the promotees and the fourth by the candidate selected by direct recruitment and so on. lt appears from the Government's letter dated December 8, 1962, that under Rule 10 the Governor fixed the number of

PREM NATH v. RAJASTHAN (Shelat, !.) 197

appointments to be made as 18, 14 out of which were to be filled up by promotion and 4 by .direct recruitment and th~ proped recruitment for these vacancies was to be upto the penod endmg 1962.

The contention was that under Rule 10, the period of recruitment is prospective and for a period not exceeding three years and, therefore, while determining the number of posts for which recruitment was to be made the Governor could not take into account vacancies remaining unfilled at the time. Therefore, it was urged that determination by the Governor of the number of appointments was contrary to Rule 10 and Rule 24 and conse quently the proceedings of the Selection Committee based on such invalid determination were also invalid.

It is true that out of the 18 posts as determined by the Governor, there were 9 vacancies which were not filled up and were included in the .number of appointments determined by the Governor. As a first step in the recruitment, Rule 10 no doubt provides that the number of appointments at each recruitment from each of the two sources shall be determined by the Governor.

Rule 24 also provides that the appointments so determined have to be filled in from the two lists prepared by the Committee and submitted by the High Court, three from those selected from the Judicial Service and the fourth from those selected for direct recruitment and so on.

But if certain posts intended to be filled up at the time of the last recruitment have remained vacant for one reason or the other, they would be vacancies which can be filled up in the next recruitment It is difficult to see why those unfilled posts cannot be regarded as vacancies to be filled up at the next recruitment.

There is in fact nothing in Rule 10 or Rule 24 to preclude the Governor from including them in the number of appointments to be determined by him. Even if per sons are appointed to officiate to such posts since their appointme.nt wold not be substantive appointment, they would not acqulfe a hen thereon and, therefore, those posts remain unfilled until substantive appointments in respect of them are made. They can, therefore, be included in the number of appointments determined by the Governor under Rule 10.

Rule 6(3) in terms provides that the Governor in consultation with the High Court, can leave unfilled or hold in abeyance a post for the time being. If it is decided to fill up that post at the next recruitment, there is no reason why that appointment cannot be included in !he. number. of appointments determined by the Governor. There 1s, m our view, therefore, no validity in the contention that the determination of the number of appointments by the Governor was contrary to Rule 10 or that such determination rendered the subsequent proceedings of the Selection Committee bad in law.

The contention, besides, iS academic for it

198 SUPllEME COURT REPOllTS

(1967] 3 S.C.R.

appears that on November 9, 1960, 9 Judicial Officers were con• firmed in 9 out of the 18 posts with the result that only 9 posls

remained to be lilied up. In view of this fact the High Court held that there were only 9 posts for which recruitment had to be made and, therefore, only 2 out of these 9 posts would go to the direct recruitees instead of 4 if those 9 officers had not been con~ firmed.

The contention that the determination of appointments under Rule 10 was bad in law has, therefore, to be re1ected. We leave the question of the claim of seniority of Respondents 6 and 7, if any, open as it does not strictly arise in this appeal.

These were the only contentions raised on behalf of the appellants. In our view, they cannot be sustained. The appeal is, therefore, dismissed. In the circumstances of the case we do not pass any order as to costs.

R.K.P.S.

Appeal dismissed.

B .

PREM NATH & ORS

STATE OF RAJASTIIAN & ORS

March 15, 1967

C. SHAH, J

0. K. MITTER, JJ.

Art. 233

Art. 233A

Art. 236

Higher Judicial Service Rules, 1955

Art. 233

Art. 233

Article 236

Article 233A

Article 233

Article 233A

Art. 233

s. 9

Code of Criminal Procedure

s. 9

Code of Criminal Procedure

Art. 236

Article 233

Higher Judicial Service Rules 1955

Article 234

Judicial Service Rules, 1955

M. B. L. Bhargavu

Naunlt Lal

S. V. Gupte

G. C. Ka.r//wal,

K. Bcildev Mehta

Sarjoo Prasad

k~·

Sarjoo Prasad, S. N. Prasad, and 0.

S. N. Prasad

. C. Mathur

R. K. Garg

S. C. Agarwal

D. P. Singh

Sami Bhushan

P. Rana

Sbelat

Art. 2

Art. 233

May 9, 1955

Rajpramukh

Art. 309

High Court of Rajasthan

November 20.

1963

Rajasthan Judicial Service

Art. 233

Schedule I

Schedule I

Article 233

Art. 233

Higher Judicial Service Rules

Art. 233

Art. 233

Articles 124(2) and 217(2) and

222

Higher Judicial Service Rules

Art. 233(1)

Art. 233

Higher Judicial Service Rules

Chandra Mohan

Article 233A

Art. 23

Art. 23

Art. 233

Art. 235

Article 236

Bhargava

Art. 236

Art. 233A

Rajasthan Civil Courts Ordinance, 1950

section 6

Court of the District Judge, (2)

Section 13

Rajasthan Public Service Commission

Section 19

Sections 16 and 17

Art. 234

Art. 238

Art. 309

Schedule I

Rajasthan Judicial Service Rules, 1955

Art. 233A

Art. 233A

Art. 236

Garg

Art. 234

Art. 233

Art. 233A

Art. 234

Uttar Pradesh

Art. 233A

Art. 233A

Art. 233

Agra and Asam CIVIi Courts Act

section 3

section 6

Art. 236

Art. 236

Code

State of Uttar Pradesh

Art. 236

Art. 233

Arts. 233 and 233A

Arts. 233 and 236

Code of Criminal Procedure

Section 6

Section 9

s. 9

Section 36

Section 37

section 39

sections 36 to 39

sections 36 to 39

section 9

Rajasthan

Rajasthan Government

s. 9

s. 9

Art. 236

Art. 233

Art. 234

Rajasthan Judicial Service Rules, 1955

Articles 233 and 234

s. 13

s. 9

Code of Criminal Procedure

Art. 233

Art. 234

Code of Criminal Procedure

s. 9

Code of Criminal Procedure

Art. 236

Art. 233

Art. 233

Art. 233A

Art. 233A

December 8, 1962


R. B. CHAUDHARY RAGHURAJ SINGH

MURARI LAL & ORS.

March 16, 1967

[K. N. WANCHOO AND V. BHARGAVA, JJ.J

U.P. Zamindar's D.ebt Reduction Act (15 of 1953), ss. 2(m), 3 and 4-''Suit relating to secured debt" and "decree relating to secured debt", meaning oj.

A suit was filed by the respondents, on the basis of a promissory note executed in their favour by the appellant, and a decree was passed against the appellant.

The decree provided for payment of the amount due in instalments and contained a default clause under which the whole decre.: could be executed. The decree also created a charge on certain immovable properties of the appollan.t.

As default was comm'.tted by the appellant, the respondents sought execution of the decree. The appellant thereupon applied to the Court which passed the decree, under s. 4 of the U.P.

Zamindar's Debt Reduction Act, 1953 to reduce the decretal amount.

The first Court and the High Court on appeal, dismissed the appellant'; ;.tpplication.

Jn appeal to this Court,

HELD : Section 4 of the Act did not apply in the pre•ent ca>e, and th\'!refore the decretal amount could not be reduced.

Sec!ion 3 of the Act provides for the reduction of debt at the time of the passing the decree in "a suit ... :relating to secured debt", and s. 4 provides for reduction of the debt'S after the passing of ''a decree ...•.. relating to a secured debt".

Whether the debt was secured or not is .i matter that has to be tested, both for s. 4 as well as for s. 3, on the date the suit \Vas file<l.

If on tha~ date the debt was secured, as per lhq dfini tion of a secured debt in s. 2(m) of the Act, by a mortgage or a charg< und.;::r s. 100 of the, Transfer of Property Act, the suit would be relatiiig to a secured debt and so would be. the decree which might later be pa; sed m that suit. But if on that date, the debt was not secured it cannot be l>llid that lhe decree related to a secured debt 9imply bec::i.use the dcree cr.:atcd a charge.

The legislature could not hav~ in:cnded, that the fact th:u th!! decree created a charge should result in converting what was an unsecured debt into a secured debt for the purpose of s. 4. [202 A; C-G; 20J

E, H; 204 AB]

CIVIL AP PELLA TE JURISDICTION : Civil Appeals Nos. 952 and 953 of 1964.

Appeals by special leave from the judgment and order dated July 24, l 961 of the Allahabad High Court in Execution First Appeal No. 440 of 1953 and Civil Revision No. l 402 of 195'.l.

C. B. Aganvala and K. P. Gupta, for the appellant (in both ff the appeals).

S. P. Sinha and S. Shaukm Hussa[n, for respondent No. l ! in both the appeals)

SUPR.BMB COURT REPORTS (1967] 3 s.c.R.

The Judgment of the Court was delivered by Wanchoo, J. These are two connected appeals by special leave from a common judgment of the Allahabad High Court.

The facts necessary for present purposes may be briefly indicated. The appellant borrowed some money on a promissory note from the respondents' predecessors.

The suit was filed by the respondents on the basis of the promissory note and a decree for Rs. 2,71,000/· and odd was passed against the appellant. The decree provided for 20 instalments payable half-yearly. The decree also provided for one or more instalments for pendente lite and future interest beyond the twentieth instalment. The first instalment was payable in November 1938 and thereafter each instalment was payable on or before July 31 and December 31 each year. There was also a default clause providing that in case there were three defaults in the payment of instalments, the whole decree could be executed.

Finally the decree created a charge on 18 villages belonging to the appellant. It may be added that the charge was created under s. 3 of the U.P. Agriculturists' Relief Act, No. XXVII of 1934.

The appellant paid the first 17 instalments in time. He paid the eighteenth instalment on July 31, 1948 but this was late as by then the 20th instalment had also fallen due. As the 19th and 20th instalments as well as pendente lite and future interest had not been paid the decree was put in execution by the respondents on April 26, 1951 for recovery of Rs. 49,000/- and odd by the sale of a kothi and an Ahata belonging to the appellant. The decree-holder respondent also prayed that in case the whole amount was not realised from the sale of the above property, zamidari property on which a charge had been created might be put to sale.

The appellant raised objections under s. 47 of the Cooe of Civil Procedure against the execution. He also filed an application under ss. 4 and 8 of the U.P. Zarnindar's Debt Reduction Act, No. XV of 1963, (hereinafter referred to as the Act). It is unnecessary to refer to the objections in detail, for in the present appeals we are concerned only with one point, namely, whether s. 4 of the Act applies to the present case.

Under that section the appellant had applied to the court which passed the decree to reduce the amount as provided therein. Further in his objection under s. 47 of the Code of Civil Procedure the appellant claimed the same relief.

That is how there were two proceedings in the first court, one und_er s. 4 of the Act and the other an objection under s. 4 7 of the Code of Civil Procedure.

The first court held that s. 4 of the Act did not apply.

In consequence it held that the amount for which execution had been taken out was not .liable to reduction.

It therefore dismissed both the' application under s. 4 as well as the objection under s. 4 7 of the Code of Civil Procedure. There was also a question

:aAGHTJRAJ SINGH v. MlJRAill LAL (Wanchoo, /.) 201

A of limi'atiOn, but we are not concerned in the present appeals with that question.

This gave rise to two proceeding1 before the High Court.

The appellant went in appeal against th.e dismissal of his objection under s. 4 7 of the Code of Civil Procedure.

He also filed B 11 civil revision against the dismissal of his application under s. 4 of the Act. Pie two matters we1e heard together by the High Cour!, which held that s. 4 did not apply and therefore the amount could not be reduced.

The High Court having refused to grant leave to the appellant, he secured special leave from this Court; and that is how the matter arises before us.

C The Act was passed in 1953 to give relief to zamindars whose lands had been acquired by the State under the U.P. Zamindari Abolition and Land Reforms Act, No. l of 1951.

Section 2 defines certain terms out of which it is necessary to refer to the following :-

D "(m) 'secured debt' means a debt secured by mortgage of an estate and other immovable property;

( i) 'mortgage' with its cognate expressions shall have the meaning assigned to it in the Transfer of Property Act, 18 82 and includes a charge as defined in sec- E tion 100 of that Act;

( o) 'suit to which this Act applies' means any suit or proceeding relating to a debt whether secured or otherwise;

( e) 'decree to which this Act applies' means a decree passed either before or after the commencement of this Act in a suit to which this Act applies;

( f) 'debt' mea1JS an advance in cash or in kind and includes any transaction which is in substance a debt but does not include an advance as aforesaid made on or before the first day of July 1952 ........ "

Certain debts are exempt from this definition but we are not concerned with them in the present appeals.

It will be seen from these definitions that a decree in a suit based on any debt is a decree to which the Act applies and such decrees can be of two kinds, namely, (i) those based on a secured 8 debt, and (ii) those based on an unsecured debt. A secured debt is a debt secured by a mortgage and includes a debt secured by a charge under s. 100 of the Transfer of Property Act.

202 SUPJ.EMB COUJ.T l.EPOllTS.

(1967] 3 S.C.K.

Then comes s. 3 which provides for reduction of debt at the time of passing of decree. Sub-section (1) thereof lays down that "notwithstanding anything in any law, agreement or document, in any suit to which this Act applies relating to a secured debt, the court shall, after the amount due has been ascertained, but before passing a decree, proceed as heremafter stated." Then follow provisions as to the manner in which the debt, would be reduced, but we are not concerned with the details thereof. Section 3 therefore applies to a case where a decree relating to a secured debt had not been passed before the Act came into force. In such a case the court passing the decree has to reduce the amount in the manner provided in that section. It is however clear that before the court can act under. s. 3, it has to come to the conclusion that the debt in question is a secured debt i.e. a debt secured by a mortgage or a charge under s. 100 of the Transfer of Property Act. The mortgage or the charge must be there on the date ot the suit and the suit must be with respect to a secured debt. The date therefore on which the court has to see whether the debt in the suit before it is a secured debt or not is the date on which the suit is filed.

The High Court seeins to be in error when it held that under the definition of "'secured debt" only such debts as are secured by a mortgage come in and not debts which are secured by a charge. It seems to have overlooked that part of the definition of the word "mortgage" which lays down that a mortgage will include a charge as defined in s. 100 of the Transfer of Property Act. Therefore, even though a debt may be secured by a charge it will be a secured debt for the purpose of s. 3 provided the charge was there before the date of the suit. We have referred to s. 3 in some detail because we are of opinion that the interpretation to be put on s. 3 will have a direct bearing on the interpretation of the words of s. 4 where also the material words are the same as in s. 3.

Section 4 provides for reduction of debts after passing of decrees, and sub-s. (i) thereof reads thus;

"(I) Notwithstanding anything in the Code of Civil Procedure, 1908, or any other law-the court which passed a decree to which this Act applies relating to a secured debt, shall, on the application either of the decree-holder or judgment-debtor, proceed as hereinafter stated."

Then come provisions as to the reduction of debt; but we are not concerned with the details thereof.

The question that has been posed before us is the meaning of the words "a decree ...... relating to a secured debt".

The

RAGHURAJ SINGH v. MURARI LAL (Wanchoo, J.)

20J.

comparable words in s. 3 are "a suit ...... relating to a secured debt". As we have already said, so far as s. 3 is concerned itis the date on which the suit is filed which has to be seen to determine whether the suit relates to a secured debt as defined in the Act. It has been urged on behalf of the appellant that s. 4 applies undoubtedly to a case where the debt was a secured debt at the time the suit was filed. But it is further urged that in an application under s. 4, the court may also take into account the fact that though the debt may not have been a secured debt on the date the suit was filed in which the decree was passed, the decree having created a charge the debt becomes secured and the decree relates to a secured debt, the relevant date in such a case being the date on which the application under s. 4 has been made to the court.

It is said that the words "a decree ...... relating to secured debt" means a decree which has secured a debt whether the debt was secured before the suit. was filed or not.

We are of opinion that this meaning cannot be given to the words "a decree ...... relating to a secured debt". We have already indicated that the comparable words in s. 3 are the same and there the words "a suit ...... relating to a secured debt" clearly mean a suit which is based on a debt which was secured before the suit was filed.

On the same reasoning when s. 4 speaks of "a decree ...... relatin11: to a secured debt" it means a decree passed in a suit which was based on a secured debt as on the date of the suit. The legislature could not have intended by using these words in s. 4 that the fact that the decree created a charge should result in converting what was an unsecured debt into a secured debt for the purpose of s. 4. It seems to us that if one were to ask in a case of this kind whether the decree related to a secured debt or not, the answer would clearly be that the decree does not relate to a secured debt but to an unsecured debt based on a promissory note. It is true that the decree itself created a charge but that is very different from saying that the decree relates to a secured debt. We have no doubt that if the legislature intended that a decree which relates to an unsecured debt but which itself creates a charge for any reason would also be covered by s. 4, it

ould have used different and appropriate words to convey that idea. Thus to our mind, as the words "suit relating to a secured debt" mean a suit relating to a debt which was secured on the date the suit was filed, a decree relating to secured debt must also mean the same thing i.e. decree in respect of a debt which was secured when the suit in which the decree was passed was filed.

The mere fact that the decree created a charge for certain reasons, as in this case, under the U.P. Agriculturists Relief Act, is no reason for holding that the decree relates to a secured debt. Whether the debt was secured or otherwise is a matter which in our opinion bas t-0 be tested both for s. 4 as well as for s. 3 on the

204 SUPllEMR 'CO'lll!.T 1!.EPOll.TS

(1967) 3 B.C.R.

date the suit is tiled. If on that date the debt was secured, the f. suit would be relating to a secured debt and so would be the decree which might later be passed in that suit. But if on the date of the suit the debt was not secured it cannot be said that the decree related to a secured debt simply because the decree created a charge for some re11son or other. We are therefore of opinion that the High Court was right in the view it took that this case B was not covered by s. 4 of the Act.

The , appeals therefore fail and are hereby dismissed with costs-one hearing fee.

V.P.S.

Apptals dlsmlsud.

R. B. CHAUDHARY RAGHURAJ SINGH

MURARI LAL & ORS

March 16, 1967

K. N. WANCHOO

V. BHARGAVA, JJ

ss. 2(m), 3 and 4

s. 4

Debt Reduction Act, 1953

Section 4

s. 4

s. 4

s. 3

s. 2(m)

s. 100

Transfer of Property Act

s. 4

C. B. Aganvala

K. P. Gupta

S. P. Sinha

S. Shaukm Hussa[n

Wanchoo

Allahabad High Court

July 31 and December 31 each year

s. 3

July 31, 1948

April 26, 1951

s. 47

ss. 4 and 8

Debt Reduction Act

s. 4

s. 47

the Code of Civil Procedure

s. 4

s. 4

the Code of Civil Procedure

s. 4

s. 4

s. 4

the Code of Civil Procedure

s. 4

the Code of Civil Procedure

s. 4

s. 4

Section 2

Transfer of Property Act

s. 100

Transfer of Property Act

s. 3

Section 3

s. 3

s. 100

Transfer of Property Act

s. 100

Transfer of Property Act

s. 3

s. 3

s. 3

s. 4

s. 3

Section 4

Code of Civil Procedure, 1908

s. 3

s. 3

s. 4

s. 4

s. 4

s. 3

s. 4

s. 4

s. 4

s. 4

Agriculturists Relief Act

s. 4

s. 3

s. 4


RAJENDRA PRASAD JAIN

SHEEL BHADRA Y AJEE & ORS.

February 28, 1967

[K. N. WANCHOO, R. S. BACHAWAT AND V. BHARGAVA, JJ.J

Election Petition-Bribery and offer of bribery alleged-Facts which court can take into consideration-Offer of bribe whether must be of specific aniount to be corrupl practice.

Letters J'atent.--Difference among Judges constituting Dlvi.rion Bench-Reference , whether can be made to a single Judge-'Bench' whether includes single Judge.

Respondent No. 1 challenged the election of the .appellant. t~ the Rajya Sabha on the a)leged ground of corrupt practice com1s11ng of bribery as well as offer of bribery.

Th~ Tribunal held that "!>th the above mentioned o/t>OS of corrupt pracuces were proved ag01nst the appellant.

The High Court upheld the order of the Tribunal holding only that offer of brib~ in two cases was proved .. The appellant. ~"!'le to this Court with certificate. It was urged that (1) when the Div1S1on Bench which oriJ!inally heard the appeal,, on difference arising among the Judges consututing it, asked for a reference to another bench, the Chief Justice had no power under Art. 28 of the Letters Patent to refer the matter to a single Judge, (ii) this Court should examine the evidence as to offer of bribe to cenain persons for itself, as the High Court had misread the evidence and bad relied on certain irrelevant pieces of evidence, (iii) the facts proved did not justify a finding that bribe was offered by the appellant.

HELD : (i) Under Art. 28 of the Letters Patent the 'reference of the case to a single Judge was competent. The word 'Bench' in the Article includes a single Judge. [21 HJ

(ii) In considering the allegations of bribery against the appellant the court was entitled to take into consideration the fact that the appell"!'t was a man of means and that he had no political background in B1har. wher~ he did not have a permanent residential house. There was no mISreadmg of the evidence by the High Court and no case had been made out fot a reappraisal of the findings. [23 B.C, HJ

(iii) The proposition cannot be accepted that an offer of bribery cannot be held to be such unless a specific amount is mentioned in the offer. [27 DJ

Emperor v. Amiruddin Salebhoy Tyabjee, A.LR. 1923 Born. 44, Emperor v. Choubt Dinkar Rao & Ors. A.I.R. 1933 All. 513.

Jn the matter 7'f Balls v. The Metropolitan Board of Works, (1865-66)

1 Q.B.

Cases 3~7, Mohan Singh v. Bhanwarlal & Orr. A.LR. 1964 S.C. 1366 and Union of India v. H. C. Goel, A.I.R. 1964 S.C. 364, distingui>hed.

Charturbhuj Vithaldas Jasani v. Moreshwar Parashram & Ors. [1954J S.C.R. 817, Cast No. XII of Borough of Staleybridge, (1869) I O'Malley and Hardcastle p. 66 and Case No. XV of Borough of Coventry, (1869) I O'Mal!ey and Hardcastle p. 97,, relied on.

20 SUPllBMB COUllT REPORTS

[1967] 3 S.C.R

C1v1L APPELLATE Ju&rsmcnoN : Civil Appeal No 1454 of 1966. .

Appeal from the judgment and order dated March 3 1966 of the Patna High Court in Election Appeal No. 3 of 1965.

Veda Vyasa,' K. K. Jain and R. Gopalakri&hnan, for the ap pellant.

K. P. Varma and D. Goburdhun, for respondent No. 1.

The Judgment of the Court was delivered by.

Bhargava, J. In 1964, there were eight vacancies in the Rajya Sabha for which members had to be elected from the constituency of the Legislative Assembly of Bihar; The election was to be held on 26th March, 1964. It appears that the Congress Party put up 6 candidates out of the total of 13 candidates who were nominated fdr these eight vacancies. Two of the candidates withdrew after scrutiny of nomination papers and, consequently, for the actual election there were 6 Congress candi

dates and 5 others. . Amongst these 5 others was the appellant Rajendra Prasad Jain who was standing as an Independent candidate. One of the Congress candidates was respondent Sheel

Bhadra Yajee.

At the election, Rajendra Prasad Jain was declared as one of the elected candidates, . while respondent Sheel

Bhadra Yajee was unsuccessful. Respondent No. 1, Sheel Bhadra Yajee, then filed an election petition challenging the election of the appellant to the Rajya Sabha. The main ground for challenge was that the appellant had committed the corrupt practice of bribery or offer of bribery in order to secure his election. In the election petition as originally filed, Schedule I contained the names of five persons to whom, it was alleged, bribe had actually been paid by the appellant. Schedule II contained the names of five persons to whom bribe had been offered by the appellant. By a subsequent amendment, three fresh names were added in Schedule I and five in Schedule II. The amendment having been allowed by the Election Tribunal, , the petition, at the stage of the trial, contained allegations of payment of bribe to ight persons and of offer of bribe to ten persons. In the actual tnal, howver, evidence was not tendered in respect of some of these allegatmns.

The Election Tribunal, after full trial of the petition, held that respondent No. 1 had succeeded in proving that the appellant had given bribes .to three of the persons mntiond in Schedule I and had offered bribe to four persons mentioned m Schedule II. 1:'he

appellant appealed to the High Court t. i:-atna.

In the High Court, when the appeal was heard by a D1v1s10n ench, one member Mahapatra, J., held that none of the allegatJons of paym.ent of bribe or of offer of bribe had been proved and was of. e v1w that the appeal should be allowed and the election petition d!s missed. The other member, Ramratna Singh, . J., agreed with

R. P. JAINv. s. B. YAJEE (Bhargava, J.) 21

A Mahapatra, J. with regard to the three instances of giving bribe to the three persons mentioned in Schedule I and also with regard to the offer of bribe to two of th.e persons mentioned in Schedule II. With regard to two instances of offer of bribe in Schedule 11, he disagreed with Mahapatra, J. and upheld the decision of the Election Tribunal. The two persons in whose cases the offer of 8 bribe was held proved by Ramratna Singh, J. were Shah Mustaq Ahmad and Ram Narain Choudhary who were both members of the Bihar Legislaive Assembly and belonged to the Congress Party. Owing to this difference of opinion, the two learned Judges directed that the case may be placed before the Hon'ble the Ch1d Justice for reference of the point of difference to another Bench under Art. 28 of the Letters Patent. Under the directions of C the Chief Justice, the appeal came up before U. N. Sinha, J., who, in both cases, agreed wi'.h the view taken by Ramratna Singh, J. and, consequently, in accordance with the view of the majority, the Court ultimately dismissed the appeal holding that the offer of bribe by the appellant to Shah Mustaq Ahmad and Ram Narain Choudhary had been proved. The appellant has o now come up in appeal to this Court under certificate granted by the High Court at Patna against this judgment of that Court.

In his appeal, three points were urged by Mr. Veda Vyas, learned counsel for the appellant. The first question of law raised was -that the Division Bench of the Patna High Court, which first heard the appeal, made a direction that the case is to g be placed before the Chief Justice for reference of the point of difference to another "Bench" under Art. 28 of the Letters Patent

and, consequently, the reference made subsequently by the Chief Justice to a single Judge was not competent. It was urged that the use of the expression "another Bench" in the referring order meant that '.he case had to be laid by the Chief Jmtice before a I' Bench of two or more Judges and not before a single Judge.

There are two reasons why, in our opinion, this submission has no force. The first is that the word "Bench" used in the referring order cannot be interpre'.ed as necessarily indicating that the cae must be laid before two or more Judges. In this connection, the language of Rule 1 (xi) and r. 3 of Chapter II of the Rules of the High Court at Patna is significant.

Under r. 1 (xi), a case G under the. Inian Companies Act is to be heard by a single Judge; and r. 3 md1cates the nature of one of the orders which can be passed by a Bench hearing the case under r. I (xi).

Thus, in

~· 3 of the Rules of the High Court at Patna itself a single Judge is rferred to as a Bench. In fact, it is well-known that, when referrmg .to Judges of the High Court sitting to decide a case, the H express10ns frequently used are Single Bench and Division Bench.

The wor~ "Bench" used in the refening order, even in its ordinary

connota'.1on, would. therefore, include a single Judge.

The second aspect is that the order of reference mentions that the case

22 SUPllEMB

COURT llBPOllTS

[1967] 3 S.C.R.

is to be placed for reference under Art. 28 of the Letters Patent.

Article 28 of the Letters Patent lays down that, in such circumJtances, the case is to be referred to one or more of the other Judges of the High Court. This reference to Art. 28 of the Letters Patent also thus clarifies that under the order of reference made by the Division Bench which first heard the appeal, the case was intended (o be placed before the Chief Justice for reference to one or more of the other Judges of the Court. Further, under the Rules of the High Court at Patna, the Chief Justice had the discretion to decide whether a case placed before him under Art. 28 of the Letters Patent should be heard by one Judge or more Judges than one, and this power of the Chief Justice was actually exercised when, in this case, he directed that the case be laid before U. N. Sinha, J. The reference to U. N. Sinha, J. and his decision were, therefore, not incompetent.

The second point urged by learned counsel was that the finding recorded by the High Court of Patna that the two instances of offer of bribe by the appellant to Shah Mustaq Ahmad and Ram Narain Choudhary were proved was incorrect. He urged that we should go into the merits of this finding on the ground that at least one of the Judges who recorded that finding, viz., Ramratna Singh, J., had misread evidence and had taken into consideration irrelevant matters.

He pointed out to us that Ramratna Singh, J., had held at p. 454 of the Paper-book that "it is true that P.W. 2 did not disclose the names of P.Ws. 9 and 14 to Yajee before September or October, 1964, but the non-disclosure of the names of persons to whom he had spoken about the incident when the first talk with Yajee took place is not material." P.W. 2 was Ram Narain Choudhary who was one of the persons to whom bribe was alleged to have been offered by the appellant, and P.Ws. 9 and 14 were two persons examined to corroborate him. . Respondent Yajee, in the trial of the election petition, did not disclose the names of P.Ws. 9 and 14 to the Court when he gave the first list of his witnesses in October, 1964, and it was from this circumstance that the learned Judge drew the inference that the names of these two persons had not been disclosed by P.W. 2 to respondent Yajee before September or October, 1964.

Learned counsel pointed out that Yajee had admitted that the names of these two witnesses had been disclosed to him in September, 1964. It, however, appears that it cannot be held that the learned Judge committed an error of misreading evidence if he chose not to rely on this admission of Yajee and preferred the evidence which showed that the names of these two witnesses had not been disclosed to him before September or October, 1964. This may be at best a question as to the weight to be attached to different pieces of evidence and cannot be held to be an instance of misreading of evidence.

' (

As regards the second aspect of reliance on irrelevant evidence by Ramratna Singh, J., it was urged that in his judgment at p. 444 of the Paper-oook he referred to the fact that the appellant is a man of means and that he had no political background in Bihar where he did not have a permanent residential house.

It was urged that facts were totally irrelevant to the charge of giving or offering of bribe in order to secure his election. We fail to see how it can be held that the fact that the appellant had no political background in Bihar and was a man of me.t11> is irrelevant. These considerations could certainly be relevant for holding whether it was probable that the appellant would offer bribes or give bribes to secure his election. Obviously, a person who had no meam; at all could not possibly offer bdbes or give bribes inducing voters to vote for him, and the fact that he had no political background could easily be the reason why the appellant might have resorted to this corrupt practice for securing

votes.

Reference was also made to a part of the judgment at p. 451 of the Paper-book where the learned Judge ocld that a candidate who wanted to bribe a voter would at first send some feeler before making the offer; but there was not much time left, as the allotments to different Congress candidates ware made by the leader of the party only on the 24th or 25th Marh and election was to take place on the 26th March. It was urged on behalf of the appellant that this reference to the allotment to different Congress candidates was irrelevant. We are unable to find any force in this submission. It appears that the system was

that the members of the Congress Party in the Bihar Legislative Assembly were divided into six groups and each group was asked to vote for a particular camidate. Thii was the ailotment reierred to by the learned Judge. This circumstance is quite relevant, because it is obvious that another candidate seeking to bribe a voter of the Congress Part}' would only approach that voter who may have been allotted for voting to a candidata whom he did not like or whom, for some Other reason, he would not be keen to support, while it would be futile to approach a v.:ter who had a asked to voe for a candidate with whom he wa£ on fri.!ndly

terms or whom he was himself keen to support. It cannot be said in these circumstances that any irrelevant material was taken into account by the learned Judge at this stage. We cannot, therefore, hold that there was any such misreading of evidence or admission of irrelevant evidence which would justify our reopening findings of fact which have been concurrently recorded by the Election Tribunal at the stage of trial and by the High Court at the stage of appeal. Consequently, we reject the suggestion of learned

cunsel taat we should for oul'Selves go through the evidence and

re-examine on merits, after weighing evidence, the concurrent tinding of fact that the appellant was proved to have offered bribes to Shah Mustaq Ahmad and Ram Narain Choudhary.

SUPllEMB

COURT RBPOllTS (1967] 3 s.c.R.

The last and the third point urged by learnd counsel was that, even on findings of fact recorded by the High Court, . we must hold as a question of law that there was in fact no offer of bribe by the appellant.

This argument was urged on the basis that the finding recorded did not show that any specific amount was offered as bribe to either Shah Mustaq Allmad or Ram Narain Choudhary. In the case of Shah Mustaq Ahmad, th~ finding is that the appellant had said to him : •'fn your election a lot of money is spent and, therefore, take some money from me and cast your first preference vote in my favour." In the other case of Ram Narain Choudhary, 1he significance of the olft>r is very clear when the actual words in Hindi used by the appellant are considered. They were as follows :-

"Is Par Jain Saheb Ne Kaha Ki Apko Bhi To Election Men Kharch Burch Hua Hoga. Isliye Ham Upko Kuchh Seva Karna Chahete Hain. Ap Hamare Madad Kijiye."

It is true that in these words there was no direct offer of giving money, but the language used clearly indicated that the appellant was offering his services in the form of contribution towards the expenditure which Ram Narain Choudhary had incurred in his own election to the Bihar Legislative Assembly. In both cases, therefore, it is clear that an offer of payment of money was made by the appellant to these voters to induce them to cast votes for him in the lection to the Rajya Sabha.

Learned counsel, however, urged that as long. as no specific amount was offered by the appellant, there was, in fact, no offer of bribery. According to him, it was still a stage when an intention of offering bribery was expressed, but no offer of bribery was actually made. An offer, it was urged, must be held to he made only when a specific sum is mentioned as the amount of bribe to

be given and there is to be no negotiation about the amount. In this connection, learned counsel drew our attention to the meaning given ·!o the word "offer" as explained in Halsbury's Laws of England, 3rd fain., Vol. 8, at p. 69.

Halsbury, at that stage, deals with the meaning of the word "offer" as used in connection with the law of contract; and we do not think any assistance can lJe taken from the principle laid down therein. He also made a reference to some Indian cases dealing with the meaping of the word "offer" in connection with the offer of bribery under the Criminal Law.

The case mainly relied upon was Emperor v.

Amimiddin Salebhoy Tyabjee('), where the accused was alleged to have used the words : "my cousin wishes to give you Rs. 5,000" to a government servant.

It was held that these words did not constitute an offer of bribery. W.e do not think that that case is

(1) A.LR. 1923 Born. 44.

R. P. JAIN v. s. B. YAJEB (Bhargava, J.) 2 s.

A at all parallel with the case before us. In that case, the accused himself did not offer any bribe and all that he did was to indicate to the government servant .that his cousin wanted to give to the government servant the sum of Rs. 5,000. There was, thus, no direct offer by the accused of bribery to the government servant.

B In Emperor v. Choube Dinkar Rao and 01hers('), Dinkar Rao accused admitted that he went to a Judge and told him that the plaintiff would pay Rs. 10,000 if the suit were decreed, but denied that he had gone on behalf of the plaintiff. Once again, that was a case where there was no offer of payment of any money by the accmed to the Judge. In the instant case, the words used c by the appellant clearly amounted to an offer to give money himself to the two voters.

Similarly, we do not think that any assistance can be taken from the decision of Blackburn, J. in In the Matter of Balls v.

The Metropolitan Board of Works('), where it was held in connection with compensation for land that "the offer of compensation is to be an offer which the claimant can either accept or reject; if it is of one sum for compensation and costs, the claimant cannot know how much he is to have for the injury to his land and how much for his costs. He might, therefore, be misled by it." That was again a case where the point which came up for consideration before the learned Judge related to offer of compensation for land which would be in the nature of an offer in connection with a contract and not an offer of bribe under the election law.

Reliance was also placed on the view expressed by this Court Moha'! Sinh v. Bhanwarlal lll!d Others("), in which, dealing with gratification under the Election Law it was held : "Gratification in its ordinary connotation means stisfaction. In the context in "".hich. the expression is ued, nd its deli!Ilitation by the Explanat10n, 1t must mean something valuable which is calculated to satisfy a person's aim, object or desire whether or not that thing is estimable in terms of money; but ; mere offer to help in securing employment to a person with a named or unnamed employer would not amount to such gratification." We again fail to see how that decision affects the point before us. In that case, all that as held was that a mere offer of help in securing employment with another person does not amount to gratification. In e case bef<?re us, the offer was clearly in respect of money and, if accepted, 1t would naturally satisfy the voter's desire to acquire money.

(!) A.I.R. 1933 All. Sl3.

(2) (1865-66) I Q.B. Cases 337.

(3) A.I.R. 1964 S.C. 1366.

IAS..pCl/67-3

SUPRBMB COURT 11.BPORTS

Reference was also made to the decision of this Court in A Union of India v. H. C. Goel('), where it was held that the res pondent harl taken out a hundred rupee note from his wallet in the presence of a government servant whom he had approached in connection with his work, and the government servant showed his stern disapproval of this conduct, whereupon the respondent

aid "No" and put the wallet with the note in his pocket.

The B facts in that case were also clearly different, because all that was held by this Court was that the mere takin~ out of the note from the wallet did not amount to an offer, wlnle, in the case before us, the finding was that there was a clear offer to give money.

In this connection, we may refer to the decision of this Court c in Chatturblmj Vithaldas Jasani v. Moreshwar Parashram and Others ("), where the Court had to consider existence of a contract for supply of goods in connection with deciding the disqualification of a candidate as set out in s. 7 ( d) of the Representation of the Pcop1e Act 1951. The Court, in dealing with thi.s aspect, distinguished between a contract for purposes of th!!

Contract Act and a contract for pu1poses of the Eiection Law. . D In ou'r 3pinion, when conside; ing the scope of the words "offer of bribery" in the Election Law, we should not place a narrow

construction on that expression.

In fact, the scope of that expression should be extended in order to ensure. that elections are held in an atmosphere of absolute purity, and a wide meaning should be given to the expression "offer of bribery".

In Case No. Xll of Borough of Sta/eybridge( 8 ), Blackburn, J. had to deal with the question of interpreting the giving of bribery under the election law then prevalent in England. At that time, the offer of a bribe was not a corrupt practice under the law there, and yet Justice Blackburn said that : "There can be no doubt that a promise or offer to cause a workman or other person to be no loser by his coming to vote comes within the meaning of the Act, and is an act of bribery and corruption.

Thornley and Vaughan distinctly offered and promised two voters that they should have their day's wages paid them if they would come and vote.

That amounted to an act of bribery on the part of those who accepted it, and on the part of those who offered it."

Jn Case No. XV of Borough of Coventry('), it was said: "With respect to bribery, as well as with respect to treatin~, r shall ever hold it to be a wise and beneficial rule of constituuonal law, quite apart from the 17 & 18 Viet. c. 102, that for the purpose of securing purity and freedom of election, candidates should be answerable for the acts of their agents, as well as for their own --- --·------~---·---- ·------

(!)A.LR. 1%\ S.C. 364.

(2) !1954] S.C.R. 817. (J) (1869) IO' :-.!alky and Hardcastle p. 66.

(4) (1859) I 0'\111lcy & H"dc,, tlcp. 97.

acts'', and proceeding further, with regard to mere offers of bribe, it was said : "Although these cases have been classed below those of bribery by both the learned counsel, it cannot be supposed that an offer to bribe is not as bad as the actual payment of money. It is a legal offence, although these cases have been spoken of as being an inferior class by reason of the difficulty of proof, from the possibility of people being mistaken in their accounts of conversations in which offers were m11de; whereas there can be no mistake as to the actual payment of money." In England, thus, the law relating to corrut practice of giving bri bery was extended to include offers of bnbery, though it was held that stricter proof of offer of bribery should be insisted upon on the ground that there was a possibility of misunderstanding. In the case before us, the offer was in such clear terms that there could be no misunderstanding. In both cases, and particularly in the case of Shah Mustaq Ahmad, the offer was of money to be paid in order to secure the votes. We are unable to accept the proposition suggested by learned counsel that an offer of bribery cannot be held to be such unless a specific amount is mentioned in the offer. No such requirement is laid down by law, and if we were to accept this proposition, it would lay the field open for corruption in such a manner as to make the provision totally ineffective. A candidate wanting to secure a vote by bribery can always go and first ask the voter whether he is prepared to accept money as a bribe and need offer a specific sum only after the voter has signified his assent.

Once the voter actilally accepts the offer, it is not likely that evidence of that instance of bribery will be available.

The mere fact that a candidate goes and offers some money is enough to show that he has already made his offer to corrupt the voter and secure his vote, though there may still be a possibility that, if subsequently the negotiations as to the precise amount to be paid as bribe fail, he may not actually succeed in his objective. The offer of bribery in the manner proved in this case, in our opinion, clearly. satisfies the requirements of section 123 of the Representation of the People Act. The decision of the High Court upholding that of the Election Tribunal setting aside the election of the appellant to the Rajya Sabha was, therefore, right and must be upheld. The appeal fails and is dismissed with costs.

G.C.

Appeal dismissed.

RAJENDRA PRASAD JAIN

SHEEL BHADRA Y AJEE & ORS

February 28, 1967

K. N. WANCHOO

R. S. BACHAWAT

V. BHARGAVA, JJ

Art. 28

Art. 28

Patna High Court

Veda Vyasa

K. K. Jain

R. Gopalakri&hnan

K. P. Varma

D. Goburdhun

Bhargava

Legislative Assembly of Bihar

26th March, 1964

Congress Party

Rajendra Prasad Jain

Sheel

Bhadra Yajee

Sheel Bhadra Yajee

Schedule I

Schedule II

Schedule I

Schedule II

Schedule I

Schedule II

Mahapatra

Ramratna Singh

R. P. JAINv

s. B. YAJEE

A Mahapatra

Schedule I

Schedule II

Schedule 11

Election Tribunal

Shah Mustaq Ahmad

Ram Narain Choudhary

Bihar Legislaive Assembly

Art. 28

U. N. Sinha

Shah Mustaq Ahmad

Ram Narain Choudhary

High Court at Patna

Veda Vyas

Art. 28

Chapter II of the Rules

Inian Companies Act

Art. 28

Article 28

Art. 28

Art. 28

High Court of Patna

Yajee

Yajee

Ram Narain Choudhary

Yajee

Bihar

Bihar Legislative Assembly

Shah Mustaq Allmad

Rajya Sabha

England

Dinkar Rao

Blackburn

s. 7

Thornley

Vaughan

section 123

Representation of the People Act