UNION OF INDIA AND ORS. v.

M. RA VI VARMA AND ORS. ETC.

January 4, 1972

JJ. M. SHELAT, I. D. DUA, H. R. KHANNA AND G. K. MITTER, JJ.) B

Civil Service--0/]ice Memorandum of Union Mjnistry oi Home ADair& dated June 22, 1949 laying. down that seniority of Central Government &trvt.:nts , in the same gradt shalt be !fOVerned by length o/ jervice-Sub1• que'!t(v Office Memorandum dated December 20, 1959 lavin.~ down that

.s~lority to be deter1nined on 1he basis of general principles anne:ced 10

Memorandum-Memorandum of 1959 is not retrospective--Persons DPpo/hted 6efore it are goverlled by 1949 Memorandum.

In. fdel" t~ provide for the seniority of Centrai Government servants displ, aeed 'from Pakistan the Home Ministry by Office Memorandum dated JUne 22, 1949 laid down that the seniority o( all Central Government servants in the same grade shall be governed by the length of their service in that grade.

By 1959 the object underlying that memorandum had been achieved.

Accordingly by another memorandum dated Ocember 20, 1959 the Home Ministry decided that in respect of persons appointed after that date the' !}'neral rules annexed to the memorandJm sl\all apply, one of those being that seniority shall be governed by the date of cbn- firmation and not length of service.

In 1957 the Central Board of ReVenue issued a circular wheteby seniority in. the: offices under it was to be determined on the basis of date of eonfirmation. In. 1962 a revised seniority list of employees under the Central Board pf Revenue was prepared on the basis of date of confirmation~ As a result respondents G and R wh<i were Inspectdrs of Central Excise lost several positions in the seniority. These respondents had been appointed in 1947 and confirmed in 1956. They filed writ petitions in the High . Court of Mysore. The High Court held that the memoran- , dum of ,1949 applied to their case and their sen'ority must.be decided on the basis. of length of service and not the date of confirmation.

S and T wore employees under the Directorate General of Health Services, Government of India.

They had jo'ned service in 1950 and !951 respectively.

In the seniority list, which had h'en prepared on the basis of leng'h of service in accordance with the Office Mem0ranum of 1949 their po, itions were 32 and 34. Su'Jsequent!y Memorandum dated June 19 1963 was is•ued by the D'rectdrate Ge"eral of Hea!th Services in which it was stated that Scheduled Cas'tes and Sched•_1Jrd TriJ., es

c"andidates who _were confirrMd in reserved vacancies wo'11d rank senior to temryorary. includin~ quasi-permanent pers0n'\ ir .. eoective of their pOsitions in the seniority list.

As a t-eslllt of the a'"lolicat:on of this orin- ciple S and T lost seniority bv several positions. Tliev filed writ "etitions in the Hioh Court of Puni•h and Haryana.

The Single Judge di•missed their petitions but the Division Bench allowed them on the ground that the Memorandum d1ted June 19, 1963 iss•ied by the Directorate of Health S<>:rvicP:S--wfl~ not in consonance with the Home Ministry's Memo--- randa 1949 and 1959.

Against the judl!IIlents of the High Courts the Uriioo of India and -0thcrs 3ppealed to this Court,

Dismissing the appeals,

HELD : (I) The Ollie'!: Memorandum dated December 22, 1959' expressly made it clear that the general principles embodied in the anoexure thereto were not to have retrospective effect.

In order to put. the matter beyond any pale of controve'rsy, it was mentioned that "hereafter the seniority of all persons appointed in the various Central Services after the date of these instructions should be determined in accordanceo with the General .principles annexed hereto".

H was, therefOre, manifest. that except in cenain cases with which the present appeals were not COD• cerw..d the Office Memorandum dated Dec'ember 22, 1959 and the provisions laid do\.\'ll in the Annxure thereto could not apply to pefsons ap pointed to the various central services before the date of that Mem<>- randum. LI 000 G]

there was thus no escape from the conclusion that the seniority of G arid respondents who were appointed p:rior to December 22, 1959 would C have to be determined on the basis of their length of servire in accordance with the Office Memorandum dated June 22, 1949 and not on the basis of date of their confirmation, This position was conJirm'd by the Ceritral Board of Revenue in its letter dated August 27, 1971 addressed. to all Collectors of Central Excise. [1002 B; 1001 El

Merv.vn Coutindo &: Ors. v. Collector of Custon1s, Bonr.bay & Ors., [1966] 3 S.C.R. 600, reforred to.

(ii) It was no doubt tru' that a direction was given in the Memoranand R respondents who were appointed prior to December 22, 1959 would and Scheduled Tribe candidates confirmed in reserv'd vacancies should be ranked senior to temporary, including quasipermanentpersons ifres pective of their pos.ition in the seniority Jist but such direction Went beyond the rule of seniority contained in the office Memorandum dated'.

December 22, 1959 .issued by the Ministry of Home Affairs in respect of employees appointed bef<*e the' date.

It was not disputed that accord-· ing to the Government of India allocation of Business Rules, 1961 gene' ral questions relating to recruitment promotion and seniority in Central services had to be dealt with by the Min'stry of Home Affairs.

As S and: T respondents were apoointed prior to December 22, 1959 their seniority wac; governed by the rule of length of service_ as contained in the A.nnexurelo the Memorandum dated December 22, 1959. [I 003 E-HJ

C1v1L APPELLATE 1UR1SDICTION: Civil Appeals Nos. 1845 and 1846 of 1968.

Appeals by spi; cial leave from the judgment and order dated' January JO. 1968 and October 20, 1967 of the Mysore High Court in Writ Petitions Nos. 1519 of 1967 and 1216 of 1965

respectiv~'y. ·

Jagdish Swarup .. Solicitor-General of India al; td S. P. Nayar, for the appellants ( m all the appeals). ·

S. S. Jam/i an1 M. Veerappa, C.As. Nos. 1845 and l 846 of 1968). for respondent No. I (irr

S. L Bhatia, for respondents Nos. I and 2 (in C.A. No. 5() of 1969).

S. K. Mehta, K. L. Mehta and K. R. Nagaraja, for the Inter- A vener (in C.A. No. 1845 of 1968).

the Judgment of the Court was delivered by

Khanna, J, Whether the criterion to determine the seniority -Of Ravi Varma and Ganapathi Kini resp0ndents shou:d be length of service in accordance with the Office Mem()randum dated June 22, 1949 issued by the Ministry of Home Affairs,' as claimed by the said respondents, or wheLher it should be the date of confirmation, as claimed by the appellants, is the main question which arises for decision in civil appeals Nos. 1845 and 1846 of 1968 which have oeen filed by the Umon of India and two others by special leiive against the judgment of Mysore High Court. Simi.ar question arises in respect of the seniority of Suresh Kumar and.

Tara Chand Jain, respondents in civil appeal No. 50 of 1969 which has been filed by the Union of India and two others on a certificate granted by the Punjab and Haryana High Court agdinst the judgment of that Court reversing in Letters Patent appeal the -Oecision of the single judge and i; suing a writ in favour of those respondents.

The High Court heid jn all the cases that the seniority of the concerned respondents should .be determined on the basis of the length of service in accordance with the above mentioned Office Memorandum. '

Before giving the facts of the three cases, it would be pertinent to refer to two Office Memoranda issued biy the Ministry of HJme Affairs. One of 'the memoranda is dated June 22, 1949.

It was mentioned in this memorandum that the Government of India had under consideration the question of the. fixation of seniority of displaced government servants and tempoary employees in the various grades.

Employees of the Central Government who were displaced' from their offices in Pakistan, according to the memorandum, had been absorbed in offices under thi: control of the same administrative ministry or on nC'mination by the Transfer Bureau of the Ministry of Home Affair~ in other offices.

All those persons had been appointed, with a few exceptions, on temporary basis.

The Ministry of Home Affairs accordingly con-

- veyed the following decision :

"It has now been decided in consultation with the Federal Public Service Commission that the question of seniority in each grade should also be examined in the same context and specific rules suitable for each service prescribed in framing those instructions.

The question of seniority of Assis•ants in the Secret1riat was recently examined very carefully in consultation with all the Ministries and Federal Public Service Comm.ission and the decisions reached are incorporated iii para 8 of the 'Instructions for the initial constitution ol

the grade of Assistants' an extract of which is attached.

It has been decided that this rule should genera]. y be taken as the model in rraming tlie rules of seniority for other services and iii respect of persons employed in any parucular grade seniority should, as a general rule, be deterniilied on the l; jasis of the length of service in that Grade irrespective of whether the latter was under .the Central or Provincial Gove.nment of India or Pakistan. It has been found difficult to work on the basis of 'comparable' posts or grades and it has therefore been deciJed that 'Service in an equivalent Grade', should, generally be defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned.

The seniority of persons appointed on permanent or quasi-permanent basis before the 1st J anuary, 1944 should, however not be disturbed."

Direction was accordingly issued by the Ministry of Home Affairs that the principles given in the Mcmoandum be borne in mind in determining the seniority of 'Government servants of various categories employed under the Minis ry of Finance, etc.' On December 22, 1959 another Office Memorandum was issued by the Ministry of Home Affairs on the sutect of the general principles for determining seniority of various ca•egories of ]*t!rsons employed in Central services.

Material part of this memorandum was as under :

"The instructions contained in this Ministry's Office Memorandum No. 30/44/48-Apptts, dated the 22nd June, 1949, were issued in order to safeguard the interests of disp1aceu Government servan!s appointed to the Central Services affer partition.

As it was not possible to reu'ate the seniority of only di 0placed Government servants by giving them credit for previous service, the instructions were made applicable to all categories of persons appoin:ed to Central S 'rvices.

The principles contained in the 22nd June, 1949, orders were extended to-

(i) ex-Government servants of Burma appointed to Central Services; and

(ii) the employees of former part 'B' States taken over to the Centre as a result of Federal Financial Integration.

996 SUPREME COUkT REPORTS [1972J 2 s.c.:a.

The instructions contained in this Ministry's Office Memorandum No. 32/10/49-CS dated the 31st March,

1950 and No. 32/49-CS(C), dated the 20:h September, 1952 similarly regulate the seniority cf candida1es with war service appointed to the Central Services.

2. The question has been raised whether it is neces. sary to contmue to apply the instructions contained in the Office Memoranda cited above. Displaced Govern- 1rient servants have by and large been absorUed" in the various Central Services and their seniority has been fixed with ret'erence to the p:.evious service rendred by them.

Similarly, the seniority of ex-employees of the Govemmrnt of Burma and of Part 'B' States as we I as of candidates with war service has already been determined in accordance with the instructions ci1ed above.

As the specific objects underlying the instructions cited above have been achieved, there is no longer any re1son to apply those instructions in preference to the normal principles for determination of seniorLy.

It has, therefore, been decided in ccnsultation with the Union PubEc Se'.vice Commis; io:i, that hereafter the sen:ority of all persons appointed to the variou'i Central Services a.ter the date of these instructions shou:d be determined in accordance with the General principles annexed hereto.

3. The instructions contained in the variou5 office memoranda cited in paragrah l above are hereby cancelled, except in regard to delennimtion of senicr'.ty of persons appointed to the va"iou; Central Service; prior to the dale of this Office Memcrandum.

The revised General pinciples emtodied in the Anncxure wi'l not apply with retrospective effect, hut wi11 ccme into force with effect from the date of issue of these orders. unless a differen• date in ,-espect of any particular service/ grade from which these revied princip:es are to be adopted for ourposs of cetenninin!!; senbritv _has already been or is hereafter agreed to by this Ministry."

i::.

Re!evant parts of paragrarh; 1. 3 and 4 of the Annexure to this

 G Memorandum were as under :

"2. Subject to the provi, ion of para 3 bi!low. persons appointed in a substantive or officiating capacity to a grade prior to the issue of these general principles shall retain the relative seniority already asil!/nej to them or such seniority as may hereafter be assined to them under the existing orders applicable to their cases H •

. ; f

and shail en-bloc be senior to all .others in that grade.

3. Subject to the provisions of para 4 below, permanent' officers of each grade shall be ranked senior to persons who are officiating in that grade.

4. Direct Recruiis :

Notwithstanding the provisions of para 3 ab'ove, the 1elative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment, on the recommendations of the U.P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection. . .... "

Ravi Varma, respondent No. 1 in civil appeal No. 1845 .:•: 1968, was appointed as an Inspector in the Central Excise Co'- lectorate in Madras on 27-5-47 and was confirmed on 7-4-56.

Ganapathi Kini, respondent No. 1 in civil appeal No. 1846, was appointed as an Inspector in the Central Excise Collectorate in Madras on 28-5-47.

In view of the war service rendered by Ganapathi Kini, his service for purposes of seniority was computed with effect from 10-10-46 and he was confirmed on 7-4-56.

Ganapathi Kini and Ravi Varma were shown at serial Nos. 115 and 141 in accordance with the length of service in seniority list of inspectors prepared in 1959.

Subsequently on the directions of the Central Board of Revenue contained in letter dated October

19, 1962, a revised seniority list was prepared in 1963 by computing seniority from the date oi confirmation.

In the revised list Ganapathi Kini and Ravi Varma were shown at serial Nos. 149 and 150, junior to persons to whom they had been shown senior in the earlier seniority list. Ganapathi Kini and Ravi Varma thereupon filed petitions under article 226 of the Constitution of India praying for quashing the revised seniority list prepared in

1963. The main ground taken in the wri't petitions was that the seniority should be determined according: to length of service in terms of Office Memorandum dated June 22, 1949 of the Ministry of Home Affairs.

Impleaded in the writ petitions as respondento were the Union of India. the Central Board of Revenue and !he Collector of Central Excise as also those inspectors of Central Excise who, according to the petitioners, were junior to them but who on account of being shown senior to the petitioners in the revised seniority list, had been appointed as Senior Grade Inspectors of Central Excise.

1 0 The above mentioneJ writ petitions were resisted by the appellants.

The learned judges of the Mysore High Court referred to the memoranda dated June 22, 1949 and Decem1*r 22, 1959 1&-L7JoSuvcrnz

and held that the altered rule embodied in the Memorandwn dated December 22, 1959 for the determination of seniority would be inapplicable to persons appointed before June 22, 1949 like Ganapathi Kini.

Argument was advanced on behalf of the appellants that on July 3, 1957 the Central Board of Revenue had again adopted the rule that the date of the confirmation should form the basis for determination cl seniority.

This argumen't did not find favour with the learned judges and it was observed :

"But what is however clear is that in the case of a person like the petitioner who was appointed before June 22, 1949 the rule made by the Ministry of Home Affairs on that date was what constituted the basis for the determination of seniority and not the rule which was revived by the Central Board of Revenue on July 3, 1957."

Direction was accordingly issued that Ganapathi Kini's seniority should be determined on the basis of the formula contained in the Office Memorandum dated June 22, 1949 and the revised seniority D list be rectified accordingly.

In the petition filed lt' Ravi Varma the High Court made a short order wherein, after referring 'the decision in the case of Ganapathi Kini, the learned judges granted similar relief to Ravi Varma.

Suresh Kumar, respondent No. 1 and Tara Chand Jain, respondent No. 2 in civil appeal No. 50 of 1969 were appointed as Lower Division Clerks in the Medical Stores Depot, Kamal under the Directorate General of Healih Services on October 9, 1950 and November 26, 1951 respectively.

Both of them were confirmed on March 31, 1960. In the seniori'; y list which was prepared in accordance with Office Memorandum dated June 22, 1949 Suresh Kwnar and Tara f:hand Jain, respondents, were shown at serial Nos. 32 and 34 in accordance with their forigth of service. Subsequently Memorandum dated June r9, 1963 was received from the Directorate General of Health Services in which there was a reference to the Ministrv of Home Affab Office Memorandum dated December 22: 1959. It was stated in the Memorandum from the Directorate Geneoal of Health Services that scheduled castes and scheduled tribes candidates who were confirmed in reserved vacancies would rank senior to temporary, including quasi-permanent persons irrespective of their positions in the seniority list. A revised seniority list was thereafter prepared and a .number of scheduled castes candidates who had been ; recruited later but had been confit"med earlier than Suresh Kumar

and Tara Chand Jain were shown senior.

Suresh Kumar and

H -(

A Tara Chand Jain were thus shown at serial Nos. 40 and 42 in the revised seniority lit. Suresh Kumar and Tara Chand Jain thereafter filed petition under article 226 and 227 of the Constitution of India for quashing the instructions contained in the Memorandl!m dated June 19, 1963 issued by the Directorate General of Health Services as we!J as the revised seniority list and other conse- B quential reliefs.

Impleaded as respondents in the petition were the Union of India, the Director General of Health Services, the Deputy Assistant Director General Medical Stores, as well as 10 other scheduled castes employees of the Medical Stores Depot .

Kamal who had been shown senior to the peti'tioners in the revised

• H

seniority list.

The above petitions were resisted biy the appellants and \Yere dismissed by the learned single judge. On Letters Patent appeal the judgment of the single judge was reversed and it was held that Suresh Kumar and Tara Chand Jain having been appointed prior to December 22, 1959 were governed by the rule of seniority contained in the Office Memorandum dated June 22, ,1949 issued by the Ministry of Home Affairs.

This position, in the opinion of 'the learned judges, was not affected by tl)e subsequent Office Memorandum issued by the Ministry of Home Affairs.

So far as the Memorandum dated June 19, 1963 issued by the Directorate General of Health Services was concerned, it was found to be. not in consonance with the Office Memoranda issued by the Ministry of Home Affairs on June 22, 1949 and December 22, 1959. As such, the Memorandum issued by the Directorate General of Health Services, according to the learned judges, could not affect the seniority of Suresh Kumar and Tara Chand Jain. . In the result the revised seniority list was held to be invalid and the Union of India and two other appellants were directed to prepare a revised seniority list in accordance with the original seniority o.f Suresh Kumar and Tara Chand Jain.

The learned Solicitor General on behalf of the appellants has at the outset referred to Memoranda dated June 22, 1949 and Decemtler 22, 1959 issued by the Ministry of Home Affairs and has argued that after the issue of the latter Memorandum the seniority of all Central Government employees should be determined by the date of their confirmation and not on the basis of the length of service.

In this connection, we find that the migration of a la1'ge number of Government employees after the partition of the country from areas now forming part of Pakistan, resulted . in J situation wherein the Government had to review the rules

re!ating to seniority.

As most of those displaced Government

srvants had been employed on temporary basis and as it was felt that they , should be given some weightage in the marter of seniority on compassionate grounds, the rule was evolved ihat the seniority

should be determined on the basis of the length of service in equivalent grades.

The seniorrty of persons appointed on permanent basis or quasi-permanent basis be.fore January l, 1944 was, however, left undisturbed.

Further, as it was not possible to regulate the seniority of only displaced Government servants by giving them credit for previous service, the instructions were made applicable to ali categories of persons appointed to Central services. Office Memorandum dated June 22, 1949 was consequently issued. The above principles were also extended to other category of Government employees, including those with war service.

The matter was reviewed thereafter in 1959. The Government then found that dispraced Government servants had by and large been absorbed in the various Central services and their seniority had been fixed with reference to the previous service rendered by them.

Same was found to be the position of other Government servants who had been given the benefit of the prineiples contained in Memorandum dated June 22, .1949. As the objects underlying the instructions of June 22, 1949 had been achieved and it was no longer considered necessary 'to apply those instructions in preference to the normal principle for determination of seniority, it

was decided that the seniority of Central Government employees would henceforth be determined in accordance with the general principles contained in Annexure 'to the Office Memorandum issued by the Ministry of Home Affairs on December 22, 1959.

One of those principles was that permanent officers of' each grade would bie ranked senior to persons who were officiating in that grade.

The effect of that, as submitted by the learned Solicitor General, was that the seniority was to be determined by the date of confirmation and not on the basis of length of service as was the rule contained in the Office Memorandum dated June 22, 1949.

The Office Memorandum dated December 22, 1959, however, expressly made it clear that the general principles embodied in the Annexure thereto were not to have retrospective effect.

In order to put the matter beyond any pale of controversy, it was mentioned that 'hereafter the seniority of all persons' appointed to the various Central Services after the date of these instructions shonld be determined in accordance with the General principles annexed hereto'. It is, therefore, manifest that except in certain cases with which we are not concerned, the Office Memorandum dated December 22, 1959 and the provisions laid down in the Annexure _thereto could not apply to persons appointed to the various Central services before the date of that Memorandum.

Tt may also be mentioned that while dealing with the above Memorandum, this Court in the case of Mervyn Coutindo & Ors.

• ' c

v. Collector of Customs, Bombay & Ors. (1) observed that these principles were not to apply retrospectively 1*it were given effect to fonn the date of their issue, subject to certain reservations with which we are not concerned.

It has next been argued by the learned Solicitor General that whatever might be the position in respect of the employees in other Central services, so far as the clerk;, supervisors and inspectors under the Central Board of Revenue were concerned, a decision was taken that for purposes of promotion, the pennanent employees should have precedence before non-permanent employees.

Our attention in this connection has been invited to letter dated March 15, 1958 sent by the Central Board of Revenue to all Collectors of Central Excise. In this letter there was a reference to an earlier Jetter dated July 3, 1957 from the Board and it was mentioned that the instructiQIIS contained in the earlier letter that for purposes of promotion from ministerial grade to inspectors grade, permanent clerks would first be considered before considermg persons who were non-permanent, should be followed in respect of promotions to other grades also.

The Solicitor General accordingly contends that the direction contained in the Memoranduin dated December 22, 1959 that it could not apply to employees appointed before that date would not hold good in the case of clerks, supervisors and inspectors functioning under the Central Board of Revenue.

It is, in our opinion, not necessary to go into this aspect of the matter because we find that the Central Board of Revenue as per letter dated August 27, 1971 addressed to all Collectors of Central Excise, gave fresh instructions regarding the principles of seniority.

In this letter there was a reference to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and it was stated :

"In supersession of all previous orders on the suQject, it has now been decided that in so far as the nongazetted staff in the Central Excise. Customs and Narcotics Departments and other subordinate offices are concerned, the seniority of persons appointed to various posts and services after receipt of these orders should be regulated in accordance with the Ministry of Home Affairs 0.Ms. referred to above."

It would follow from the above that so far as the non-gazetted staff H in the Central Excise, Customs and Narcotics Departments and other subordinate offices of the. Central Board of Revenue are

(ll !l966] l S.C.R. 600.

concerned, the question of seniority would have to be decided in accordance with the Office Memorandum dated 19,10-1959. As the said Office Memorandum has, except in certain cases with which we are not concerned, applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of. that Memorandum, there is no escape from the conclusion that the seniority of Ganapathi Kini and Ravi Varma, respondents, who were appointed prior to December 22, 1959, would have to be determined on the basis of their length of serviee in accordance with Office Memorandum dated JU; ne 22, 1949 and not on the basis of the date of their confirmation.

In civil appeal No. 50 of 1969 the learned Solicitor General has referred to.Office Memoranda dated January 28, 1952, April 20, 1961 a.nd March 27, 1963 issued by the Ministry of Home Affairs to show a departure from the rule of seniority for the bonefit o.f members of scheduled castes and scheduled tribes. Office Memorandum dated January 28, 1952 makes provision for communal representation in services for candidates longing to scheduled castes and scheduled tribes as also the Anglo-Indian community. The Memorandum gives a model roster which should be applied in filling the vacandes.

Perusal of the Memorandum shows that it relates only to recruitment and has nothing to do with the rule of seniority.

Office Memorandum dated April 20, 1961 deals with the question of sel).iority of direct recruits who were confirmed jn an order different from the original order of_ merit.

According to the Memorandum, it often happens that a scheduled caste or scheduled tribe candidate occupying a lower position in the merit list is appointed permanently to a reserved vacancy, while candidates above him in the merit list are not appointed at that time. If such candidates are appointed in the following year, they are not entitled to a higher seniority on the ground that in the previous year they had obtained a higher position in the merit list. It is pfain that the above Office Memorandum did not deal with the question of seniority on the basis of length of service as contained in Office Memorandum dated June 22, 1949 but with the question as to what would be the effect if a direct recruit scheduledcaste or scheduled tribe candidate though occupying a lower position in the merit list, is confirmed earlier in a reserved vacancy. We are in the present case not concerned with any merit list nor with any question of seniodty based on s11cb a list. As such, Office Memorandum dated Aµri! 20, 1961 is also of not any material help to the appellants. It may be stat.ed that. the. counsel for the appellants in the High Court conceded that the above Memorandum had no direct relevance in the present controversy.

• A

• c

The third Office Memorandum dated March 27, 1963 referred to by the learned Solicitor General deals with the subject of maintenance of roster for giving effect to the reservations provided for scheduled castes and scheduled tribies in Central Government services.

This Memorandum has a bearing only on the question of recruitment and provides no guidelines for determining seniority.

We, thus, jind that none of the three Office Memoranda relied upon by the Solicitor General is of any material assistance to the appellants. '

We may now advert to the Memorandum dated June 19, 1963 issued by the Directorate General of Health Services.

AFJ mentioned earlier, it was after the receipt of this Memorandum that the seniority list of class III employees of the Government Medical Stores Depot, Karnal was revised. and the seniority was determirled

on the basis of the date of confirmation and not on the bsis of length of service. The above Memorandum from the Directorate General of Health Services expressly refers to the Office Memorandum datd December 22, 1959 issued by the Ministry of_ Home Affairs and seeks implementation of that. It is no doubt true that a direction was given in the Memorandum of the Directorate General of Health Services that scheduled caste and scheduled tribe candidates confirmed in reserved vacancies should be ranked senior to temporary, inclu.ding quasi-permanent persons, irrespective of their position in the seniority list, but such a direction went beyond the rule of seniority contained in the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs in respect of employees appointed bfore that date. As mentioned earlier Office Memorandum dated December 22, 1959 did not disturb the seniority of Central Government employees who had been appointed prior to the date of that Memorandum, except in certain cases with which We are not concerned.

It is not disputed that according to the Government of India Allocation of Business Rules, 1961 general questions relating to recruitment, promotion and seniority i.n Central services like the one with which we are concerned, have to be dealt with by the Ministry of Home Affiars.

As Suresh Kumar and Tara Chand Jain, respondents, were appointed prior to December 22, 1959 their eniority was governed by the rule of length of service as contained in Office Meinorandum

A dated June 22, 1949 and not by the rule based upon date of confumation as contained in the Annexure to the Memorandum dated December 22, 1959.

Reference was made by the learned Solicitor General to the case of Roshan Lal Tandon v. Union of lndia( 1) wherein it has been laid dow.n that the service rules may be framed and altered unilaterly by the Government.

No occasion for invoking the above dictum arises in this case because the learned counsel for the contesting respondents have not questioned the right of the Government to frame and alter unilaterly the service rules.

In the result, all the three appeals fail, and are dismissed with costs.

One hearing fee.

G.C.

Appeals dismissed .

.t)ll96SJ 1s.c.R.1ss.

-;;;:

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1V ,.

UNION OF INDIA AND ORS

M. RA VI VARMA AND ORS. ETC

JJ. M. SHELAT

I. D. DUA

H. R. KHANNA

G. K. MITTER, JJ.

Central Board of ReVenue

High . Court of Mysore

Hioh Court of Puni•h and Haryana

Ceritral Board of Revenue

[1966] 3 S.C.R. 600

Mysore High Court

Jagdish Swarup

S. P. Nayar

S. S. Jam

S. L Bhatia

S. K. Mehta

K. L. Mehta

K. R. Nagaraja

Khanna

Ravi Varma

Ganapathi Kini

Umon of India

Suresh Kumar

Tara Chand Jain

Union of India

Ministry of HJme Affairs

June 22, 1949

Government of India

Central Government

Pakistan

Ministry of Home Affairs

The Ministry of Home Affairs accordingly con-
veyed the following decision :

"It has now been decided in consultation with the Federal Public Service Commission that the question of seniority in each grade should also be examined in the same context and specific rules suitable for each service prescribed in framing those instructions.

Federal Public Service Commission

India

1st J anuary, 1944

December 22, 1959

22nd June, 1949

U.P.S.C.

Ravi Varma

Madras

Ganapathi Kini

Ganapathi Kini

article 226

Constitution of India

Central Board of Revenue

July 3, 1957

Central Board of Revenue

Suresh Kumar

Kamal

October 9, 1950 and

November 26, 1951

March 31, 1960

Suresh Kwnar

Tara f:hand Jain

June r9, 1963

Tara Chand Jain

article 226 and 227

Constitution of India

June 19, 1963

Directorate General of Health Services

Union of India

Decemtler 22, 1959

June 22, .1949

Mervyn Coutindo

March 15, 1958

January 28, 1952

April 20, 1961

Government Medical Stores Depot, Karnal

Ministry of_ Home Affairs

Ministry of Home Affiars


STATE OF TAMIL NADU & ORS. ETC.

S. K. KRISHNAMURTBI, ETC. ETC.

January 18, 1972

(K. S. HEGDE, P. JAGANMOHAN REDDY AND D. G. PALBKAR, JJ.)

Madras EducaUonal Rules and Text-Book Committu Rules-Nature of-Rights of Publishers .of approve!{ text-books-Government, if .stopped from chan11in11 text books.

Jn furtherance of the policy of the appellant.State to nationalise textbooks for schools, directions were issued to District Collectors and Local Board authorities that they should intimate publishers of the text-boob which were prescribed for the year 1969-70, that, after .the end of the school year they will no longer be prescribed. The publishers challenged the validity of the directions. The . High Court allowed the petitions on the ground that though the. Madras Educational Rules and the Tex1>-Book Committee Rules-under which lists of approved text-books are published in the Gautte-are administrative instructions and are not framed for the benefit of publishers, nonetheless, under those rules, a publisher of text-books could proceed on the basis that be has an assurance that once his books had been selected and prescribed as text-books, they will continue to be prescribed .for 3 year8.

Allowing the appeal to this Court,

HELD : (!) The Ru)es are in the nature of Departmental Instructions and do not confer any right on the publishers, nor are they designed to safeguard the interest of publishers. They are conceived in public interest and the Government is at liberty to change the textbooks and delete from and add to the list of approved text-books or even

prescribe books which are not in the list. Therefore, the impugned directions have been issued by the Government in exercise of the powers reserved to it by the Rules themselves, !IOS C.E, F-01

(2) There is no warrant for concluding that the Rules held out any kirid of representation or assurance to the publishers, or that the Rules envisaged their participation in the scheme and as such the Government was estopped fro01 resiling from the representation that the period of 3 vears will not be altered. f107 D-Fl

The selection of text ))oaks by the Text-Book Committee does not involve any assurance to the publishers that their text-books will be prescribed. The selection only implied that the books have been approved. ll any of the schools prescnbed any of the appro,-ed text-books there is no assurance as to the number Of books that may be required. The period during whicih a text book once prescribed is to continue, is an injunction to the Managers of schools tel avoid hardship to failed candidates or to poor students intending to buy second hand books.

It is not an aSStbnce to the publishers, because, the Managers can change the text-books within the specffied period with the approval of the prescribed authority. [108 E-H:

109 A-CJ H

Stale of Assam v, Ajit Kumar Sharma & Ors., U96S] 1 S.C.R., 890, followed.

TAMlL NADU v. KRISHNAMURTHI (Jagallfr!Ohan Reddy, I.) 105

A Union of l1tdia v. Mjs. Indo-Afglian Agencies Ltd., Ll968] 2 S.C.R.

366, Sank,;; ranarayanan, etc. v. State of Kera/a, [1971] 2 S.C.R. 361 and M/s. Narinderchand Hemraj & Ors. v. LD. Gbvernor, Union Tern'tory Himadwl Pradesh & Ors., C.A. No. 1313/70 dt. 5-10-71, referred to.

CIVIL APPELLATE JURISDICTION : C.A. No. 557 to 575 of 1971.

Appeals from the judgment and order dated September 3, 1970 of the Madras High Court in Writ Petitions Nos. '768, 1465 and 1483 of 1970.

S. Govind Swaminadhan, Advocate-General for the State of Tamil Nadu, S. Mohan and A. V. Rangam, for the appellants (in all the appeals) .

K. K. Venugopal and K. R. Nanibiar, for the respondents (in (C.A.s No. 557 to 559 and 561to575 of 1971).

The Judgment of the Court was delivered by P. Jaganmoban Reddy, J. 22 Writ Petitions were filed in the 0 High Court of Madras by publishers of text-books for Government Schools, Dist!. Board and Municipal Council Schools challenging the directions of the Deputy Secretary to Government, Education Department, contained in his D.O. letter No. 454582/ E5/69. Education, dated 12th August 1969, addressed to District Collectors and Local Board authorities that they should intimate to the publishers of the books which are prescribed for the year E 1969-70 that after the end of the School year they will no longer be prescribed. A Division Bench of the High Court .allowed the Writ Petitions. From this decision, 19 appeals are before us by certificate.

It appears that the Government of Tamil Nadu in furtherance of its policy to nationalise text-books for schools, was intending to publish them through the Tamil Nadu Text Books F Corporation pursuant to which it had issued the impugned D.O.

Jeiter.

The writ petitions which are the subject matter of these appeals raise similar grounds and we will adopt the averments in Writ Petition No. 768/70 as being typicl of the other Writ Petitions, wich course was also adopted by the High Court.

The respondent in that appeal, alleged that the impugned D.O.

G letter giving the aforesaid directions is illegal and void as being coqtrary to the Madras Educational Rules and the Text-Book Committee Rules made by the Governor of Tamil Nadu in pursuance of the powers vasted under Article 162 of the Constitution and affected respondent's fundamental rights under Article 19 (1) ( g) of the Constitution inasmuch as his business of publishing Text- H Books has been seriously jeopardised and has practically been brought to a stililld-still; that it is not open to the Government of Tamil Nadu to act contrary to the general rules made under Article 162 of the Constitution; tha~ the policy of nationalisation of the 8-L864SupCl{72

text-books is itself illegal and void; that the principles of natural A justice have been violated in that under the rules once text-books have been approved and selected for the schools arid have been prescribed. they remaiiied current for three years, as such to cancel this continuance for the remaining period without notice and

- without hearing would result in heavy financial loss; and that as under Article 19(6) of the Constituon the trade carrfod out 'by B the private citizens can be restricted only in pursuance of a law which enables the State to have a monopoly of that trade, it will not be open to the State to set up a Text Books Society to have a monopoly over the text-books trade without the authority: of law and an executive order purporting to do this would be violative of Article 19(1){f) & (g) of the Constitution. It was further c averred that even if it is assumed that Article 19(6) does not apply to their case, their fundamental rights cannot be restricted only for the purpose of enabling a State or the Corporation owned or controlled by the State to carry on the particular trade to the exclusion of private citizens. The High Court disposed of the Writ Petitions merely on the ground !, hat even though the Madras Education Rules like the Text Book Committee rules have been issued D in exercise of the administrative powers vested in the Government, the inhibition against change of selected text-books within a period of three years is not for the purposes of safeguarding the interest of the publishers but is conceived in public interest, namely, that the instit; ution concerned should not be at liberty to change the books every year \vhich may involve hardships to the students.

E Nonetheless it was of the view that a publisher of text-books could proceed on the basis that he has some sort of assurance that once his books have been selected _and prescribed as text-books, those books will remain to be so prescribed for three years, on which expectation he may, from a business point of view, have the requisite nnmber of text-books printed.in advance or stock the same.

F It further observed that the publisher can well say unless the rules _ are changed, by no administrative instructions, the three years' period can be curtailed to his prejudice. On this assumpt)ion it held that "if a representation is made to some one of a particular state of affairs to continue over a time and he acts on it and as a result does something which has cost him time and money the representator or the person who induced the belief and expectation G will not be at liberty to go back upon his representation or holding out of expectation and withdraw hjs stand to the prejudice of the one who has acted upon it". The petitioner was, therefore, entitled to invoke this principle in his favour in the instant case. The contention urged on behalf of the State of Tamil Nadu that the rules being merely in the nature of administrative instructions, do H not have the force of law and cannot be enforced in courts was negatived on two grounds, firstly, that even as an administrative instruction, if it has the -force of representation which a n11blisher

A may well rely 01;1 and commit himself to a certain position, it is not open tx:> the authority to resile from it to his prejudice and secondly, that .the rules referred io. are obviously traceable to the executive power of• the Government under Article 162 of the Constitution and provide for the procedure for registration of

publisher~, submission of books by them for approval and their B selection, which. books if approved !llld selected, are to be valid for

. a certain duration.

For these reasons the High Court observed that "even 11$ an administrative instruction when it is codified in that form, it is boui; td to be followed", and therefore, the executive cannot say that because they have the administrative power they are enl; itled to use and invoke such administrative power and act c for the purpose of its adoption in individual cases contrary to the generality and tenor .of ihe rules.

Before us it is submitted on behalf of the State of Tamil Nadu by the learned Advocate General that the High Court adopted two contradictory positions in that while holding that the rules approving the text-books and prescribing them for schools though D administrative in character are not for the benefit of the publishers nonetheless a representation is said to have been made to them that once. they are prescribed they will not be changed for three years.

There is in our view no warrant for concluding that the Madras ·.Education Rules and the Text Book Committee Rules :hold out any.representation or eVen an assurance. to the publishers E lhat the books once prescribed will not' be changed nor as contended by the respondent's advocate is there any justification for the assumption that these rules envisage the participation of the publishers in the scheme and as such tbll Government will be estopped from resiling from the representation that the period will not be altered.

The Madras Education Rules though called rules are

II' administrative instructions for !:he guidance pf !he Department. .Rule 58 which deals with the text-books, staies that a consolidated list oftext-books authorised by the Governmenn to be used under the several subjects is published annually in the Fort St. George Gazette; that Managers of schools. are at liberty. to select from the latest list such books as they may deem most suitable proVi.ded that the text-books so selected shall not be changed within. three G years of their introduction in any of the schools except with "the previous approval of the Distric~ Education Officer in -the. :cise .of . bofs' schools and the Inspectress in the case of girls' scho6ls. It further states that no books (other than books for relie:ious instruction) not authorised by the Government 'shall be used in any recognised school. The Government, however, reserve to itself the H right to forbid or to prescribe the use of any book or books in the recognised schools. The rules relating to Madras text-books . Committee which were iss11ed on November 26. 1965, set out the ob.iects of the Committee, its constitution, fhe general grounds on

A which the books may be described as unsuitable, expression, printlii ing and get-up, registration of publishers, rules relating to recognised schools, fees for scrutjny of books submitted for approval of the text-book committee,, etc. In Rule 27, it i$ provided that any book approved _for use in recognised schools as text-book shaU retain its approval for five Yelll'S and in. Rule 30 it is provided that all text-books used in recognised schools shall be selected B only from the approved list of text-books issued during the year excepting books published by or on behalf of the Government.

It is also provided in Rule 32 that under the powers delegated to him by the Government, the Director retains on behalf of the Government the right to prescribe text-books in a particular subject for use in recognised schools, even though such books have C not been approved by the text-book committee.

A perusal of these rules show that they are in the nature of Departmental instructions and do not confer any right on the publishers. Nor are they, as held by the High Court, designed to safeguard the interests of the publishers but are conceived in public interest.

The Government is at liberty to change those text-books or to delete from or add to the list or even prescribe books which are D not in the list.

When once it is accepted tliat those instructions do not confer any right on nor create an interest in the publishers but are conceived in the public interest and the Government has full liberty in the matter of approval as well as the power of control over the kind of books that should be prescribed in the schools, the p\!blishers cannot say that once they are prescribed I: they cannot be changed within the period for which they are stated to be current.

The period during which a Text-book once prescribed is to continue is more an injunction to the Managers of the schools than an assurance to the publishers that they will not be changed because that power, even if it is conferred by administrative rules made under Article 162, which in our view r they are not, empower the manage!'$ subject to the approval of the authority concerned to change them within the period specified therein or the Government to forbid or prescribe the use of any book or books in the recognised schools.

The impugned letter in this case can, therefore, be said to have been issued by the Government in exercise of the power reserved to it under those very rules.

G Even dehors these provisions the instructions do not extend to the publishers any kind of representation or assurance.

The selection of any text-books by the Committee does not confei: any rights on the publishers that their text-books will be prescnbed.

All that the selection implies is that the books have been approved

as fit and of the standard which can be prescribed (or respective fl classes in the schools by their managers.

There is no undertaking that they will be prescribed. If any of the schools prescribe the books in the approved list for their classes there is no

A -assurance or a holding out by them that a particular number of

books will be required. If the books that are printed are not sold the risk is that of the publishers.

Nor can the schools which have prescribed the book hold the publishers responsible if they cannot at any time supply sufficient number of books to cope with the needs of the school.

All that the instructions that a book B prescribed should not be changed for three years imply, as the High Court rightly recognised, is to avoid any hardship to the students.

Students may fail and have to repeat the course the next year, or those who are promoted may not afford new books but might go in for second hand books used in the previous years.

These are some of the hardships that may be sought to be avoided by requiring the books prescribed to be current for three C school years.

It is true that a representation can be made to a person either directly or indirectly if it was intended to be made to him when it is brought to his notice.

But that is not the case here as it D was in the Union of India & Ors v. Ml si lndo-Afghan Agencies Ltd. ( 1), where under a scheme to increase exports of woollen textiles, as an incentive it was provided that an exporter will be granted certificates to import raw materials of a total amount equal to 100% of the f.o.b. value of his exports.

The scheme was under the Imports (Control) Order 1955 made pursuant to

E section 3 of the Imports and Exports (Control) Act 1947.

Clause I 0 of the scheme provided that the Textile Commissioner could grant an import certificate for a lesser amount if he is satisfied, after holding an enquiry, that the declared value of the goods c.ported is higher than the real value of the goods.

The Textile Commissioner collected evidence ex-parte and acting upon the report of a Committee appointed by him, passed orders reduc- F ing the import entitlements of the respondents without informing th_em or giving them an opportunity to explain the materials on the basis of which the said action was taken.

This Court held that it could not be assumed merely because the policy is general in terms and deals with the grant of licences for import of goods and related matters, that it is statuory in character. But even if G it is only executive or administrative in character, courts have power in appropriate cases to compel perfonnance of the ob!ia tions imposed by the scheme upon the Departmental authonttes.

On the terms of the scheme and the facts of the case, the action of the Textile Commissioner in reducing the "import entitlement" was considered to be bad and struck down.

This case was later considered and explained in Sankaranarayanan, etc. etc. v. The H State of Kerala('), and in an unreported decision in M/s.

(I) [1968) 2 S.C.R. 366.

.Varinderchand Hemra; and Ors. v. Lt. Governor, Union Terri- A tory, Hlmachal Pradesh. &: Ors.(1), to both of which one of \IS

(Hegde, J.) was a party. In the fonner case it was pointed out that "there is .no question of any :representation having been made by the Government which was acted upon to their detriment by the appellants". In the later case one of us, Hegde J, pointed out tliat in the Indo-Afghan Agencies' case "This Court did not B hold that the Government was not competent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters.

In that event the Court was competent to compel the Government to act according to the scheme. If on the other hand the scheme contained merely administrative instructions then the Government having made the C representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from gomg back on the representation made by it''.

The case which is more analogous to the one before us is The State of Assam and Another v. Afit Kumar Sharma and Others(')

where a Constitution Bench of this Court which considered the claim of the teacher of a private College affiliated to the Gauhati D Unive,">ity in Assam which received grants-in-aid from the State on certain conditions set out in the form of Rules held that the was not entitled to maintain a Writ Petition under Article 226 of the Constituti9n. In that case Rule 7 of the Rules provided that if a teacher stood for elections to the Legislature, he should be on compulsory leave without pay from the date of the filing of E his nomination till the end of the next academic session or till the termination of the term of office to which he may be elected as the case may be.

The respondent who had recourse to this Rule had after obtaining permission, stood as a candidate for Parliament and was defeated.

Thereafter, he rejoined his post but was informed that he has been granted compulsory leave without pay till the end of the academic session.

It was against this direction F lhat he filed a Writ Petition challenging the rules as being with out legal force and not binding on the Governing Body or the respondent, which contention was, negatived on the ground that the rules were merely administrative instructions not having the force of the law as statutory rules and govern matters between private colleges and the Government. In any view of the mat- G ter, the claim of the respondents that there was any representation made to them or intended to be made is not justified.

In this view, the appeals are allowed but as some of the contentions raised im ihe petitions have not Ileen considered by the High Court, the matter is remanded to it for disposal according to law.

There will be no order as to costs.

V.P.S.

Appeals allowed.

(t) C.A. 1313/70 decided on 5-10-71.

(2) [I 965] I S.C.R. 890.

STATE OF TAMIL NADU & ORS. ETC

S. K. KRISHNAMURTBI, ETC. ETC

January 18, 1972

K. S. HEGDE

P. JAGANMOHAN REDDY

Madras Educational Rules

Book Committee Rules

[1971] 2 S.C.R. 361

S. Govind Swaminadhan

S. Mohan

A. V. Rangam

K. K. Venugopal

K. R. Nanibiar

P. Jaganmoban Reddy

Government of Tamil Nadu

Tamil Nadu Text Books F Corporation

Tamil Nadu

Article 162

Article 19

Article 162

Article 19(6)

Article 19(1)

Article 19(6)

Article 162

Madras

November 26. 1965

Article 162

section 3

[1968) 2 S.C.R. 366

Hegde

Assam

Gauhati D Unive,">ity

Article 226

Parliament


DHARMADEO RAI

RAMNAGINA llAI

January 18, 1972

(J. M. SHELAT AND K. K. MATHEW, JJ.]

Indian Registration Act, 1916, 4' 83(1)-Section is permissive and not prohibitive-Does not prevent an aggrieved private person from filing a complaint.

A private complaint in connection with the forgery of a zerpeshgi lease and its registration under the Indian Registration Act was filed against several persons including the appellant.

The appellant was aC<1uitted by the trial court.

In an appeal .filed by the complainant the High Court .cpnvioted the appellant under s. 82( d) of the Indian Registration Act for abetment of an offence under s. 82 after overriding his contention that the complaint was not maintainable without the permission as requied by s. 83 of the AcJ.

Under s. 83(1) a prosecution for any offence under the Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector-General, the Registrar or the Sub-Registrar in whose territories, district or sub~ distriGt as the case may be, the offence has been committed. In appeal by special leave before this Court the only point argued on behalf of the appellant \\:as that the complaint was incompetnt as it wa-s filed _by a person \vithout obtaining the necessary permission under s. 83 of the Act and therefore the conviction of the appellant was bad and must be set aside.

HELD : On a reading of the section it would be clear that it deals only \\'ith procution for an offence under the Act coming to the knowledge of the Registering Officer in his official capacty. It, in effect, provides that \vhere an offence comes to the knowledge of the Registering Officer in his official capacity, a prosecution may be commenced by or with the pennission of any of the officers mentioned in the section. The section can possibly ha\"e no applic+ation to cases in which the offences are committed under the Act, but the offences do not come to the knowledge of the .Re

gistering Officer in his official capacity. 'fl 13 HJ

The section is not prohibitory in that it does not preclude a private

peron from commencing a prosecution.

Even in a case where the commission of offence comes to the knowledge of the Registering Offir in his official capacity, the section does not prohibit a private person.from commencing a prosecution as the section is clearly permissive in Ianguae and intent. [114 BJ

One would have expected a more apt phraseology if the purpose of the Legislature was to prohibit the prosecution of an offence under the Act by a private individual.

Seeing that a private person will be mdre seriously injured by the action of an offender who not only forges a document but endeavours to give it a higher effiejacy by registering it, there is no reason why the private person should be deprived of the liberty to J*ose cute the offender.

There is also no reaoon why a regi!; tering officer guilty of an offence under s. 81 of the Act should get Immunity from prosecution by a private individual injured ther<lby, In. s. 195(1) of the Criminal

Procedure Code, s. 70(1) of the Indian Stamp Act ands. 29 of the Indian A Arms Act, !878 the language employed is prohibitory in character. Section 83 (I) of the Act is not prohibitory either in terms or in intention.

[!16A-G]

The view taken by the Allahabad and Rangoon High Courts that the weird 'may' ins. 83(1) should be read as 'must' was not correct. [114 H•l 15 DJ

Gopinatlz v. Kulrflp Singh and Anr., I.LR. Calcutta Series, Vol. XI, 566, Re Piranu Nadathi and Anr. and Emperor v. Yesa Nana Didwagh and Ors., A.LR. 1937. Bombay 191, approved.

Nge Pan Gaing and Ors. v. King Emperor, A.I.R. 1927 Ranaoon 61 and Emperor v. Mohd. Mehdi and Ors., A.l.R. 1934 Allahabad, 963, dis approved.

Ganga Dibya and Anr. v. Emperor, A.LR. 1943 Patna 227 and Habib C Shah v. Mehda Shah, A.l.R. 1960 J & K. 18, referred to.

K. M. Kane.vi v. State of Mysore, [11968] 3 S.C.R. 821. held inapplicable.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 33 of 1969.

Appeal by Special Leave from the Judent and Order dated the 12th November, 1968 of the Patna High Court in Criminal Appeal No. 58 of 1966.

S. N. Prasad, for the appellant.

K. K. Sinha, for the respondent.

R. C. Prasad, for the State of Bihar.

The Judgment of the Court was delivered by

Mathew, J.

This appeal, by special leave, is directed against the judgment passed in Criminal Appeal No. 58/1966 F whereby the High Court of Patna set aside the acquittal of the appellant by the Additional Sessions Judge of Chapra and convicted him under section 82 ( d) of the Indian Registration Act (hereinafter referred to 'as the Act) and sentenced him to six months' rigorous imprisonment

One Ramnagina Rai filed a complaint before the Sub-Divi- G sional Officer, Sadar, Chapra, against Bishundeo Rai, Sheo Deo Prasad Rai, Mohan Rai, Jangli Rai and the appellant stating that they entered into a conspiracy and forged a Zerpeshgi deed on 25-1-1964 purporting to be executed by Bishundeo Rai and Nageshwar Rai in favour of Jangli Rai in which Sheo Deo Prasad Rai falsely personated Nageshwar Rai. The Sessions Court, to which the case was committed, after trial, came to the conclusion H thatSheo Deo Prasad Rai, posing as Nageshwar, son of Bujhawan, executed the Zerpeshgi deed and that Sheo Deo Prasad

A Rai falsely personated as Nageshwar before the Sub-Registrar,

tha'. no such person as Nageshwar existed and that Bishundeo . Rai, the father of Sheo Deo Prasad Rai and co-executant of the document was a party to the forgery.

The Court, therefore, convicted Bishulldeo Rai and Sheo Deo Prasad Rai of offences under section 467 and section 120 B of the Indian Penal Code. Bishun- 11 deo and Sheo Deo Prasad were also convicteq under section 82(d) and 82(c) respectively of the Act.

The remaining three accused were given the benefit of doubt and acquitted.

Two appeals were filed from this judgment to the High Court, namely, Criminal Appeal No. 205/1966 and Criminal Appeal No. 58/ 1966.

We are only concerned with the appeal filed by the com C plainant against the acquittal of the appellant, namely, Criminal Appeal No. 58/ 1966. Jn that appeal, the High Court came to the conclusiQn that the Sessions Judge was wrong in acquitting the appellant as there was clear evidence that it was he who identified Sheo Deo Prasad Rai as Nageshwar, son of Bujhawan, before the Sub-Registrar.

The Court, therefore, convicted him under section 82(d) of the Act for abetment, of an offence under D s. 82 after overruling his contention that the complaint was not maintainable without the permission as required by section 83 of the Act.

In this Court, the only point argued on behalf of the appellant was that the complaint was incompetent as it was filed by a per- E son without obtaining the necessary permission under section 83 of the Act and, therefore, the conviction was bad and must be set aside. Section 83 of the Act provides :

"83 ( 1) A prosecution for any offence under this Act oming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector General, the Registrar or the Sub-Registrar, in whose territories, district or subdistrict, as the case may be, the offence has been committed.

(2) Offences punishable under this Act shall be triable by any Court or officer exereising powers not

' G less than those of a Magistrate of the second class."

On a .reading of the section, it would be clear that it deals only with prosecution for an offence under the Act coming to the knowledge of the Registering Officer in his official capacity. It, in effect, provides that where 8!l offence comes to the knowlge H of the Registering Officer in his official capacity, a prosecution may be commenced by or with the permission of any of the officers mentioned in the section.

Th~ section can possibly have no application to cases in which offences are committed under the

Act, but the offences do not come to the. knowledge of the Regis- A tering Officer in his official capacity.

If the Registering Officer does not know in his official capacity that the document produced before him is a false document or that the person appearing before him is personating some other person, the section has no application.

The section is not prohibitory in that it does not preclude a private person from commencing a prosecution. Even B in a case where the commission of an offence comes to the know ledge of the Registering Officer in his official capacity, the section does not prohibit a private person from commencing a prosecu tion as the section is clearly permissive in its language and intent.

In other words, the section is an enabling one. It enables the rersons mentioned therein to commence a prosecution in cases C where the commission of the offence under the Act comes to the knowledge of the Registering Officer in his official capacity. The Section enables the officers named to use their official position for the purpose of prosecution without. personal risk.

In Gopinath v. Kuldip Singh and otliers(1), the question whether the section prohibits a private person from commencing D a prosecution without the permission as provided in the section, came up for consideration and a Full Bench of the Calcutta High Court answered the question by saying that the section is not prohibitory in character and that it does not preclude a private person from commencing a prosecution for an offence under the Act without the permission as envisaged in the section. This case E has been followed. by the Madras High Court in Re Piranu Nadathi and others('). There also the Court has taken the view that the section is an enabling one in that it only authorises the authorities ment.ioned therein to commence a prosecution, and does nut prohibit a private person from commencing a prosecu tion without the permission as required by the section. In r Emperor v. Yesa Nana Bidwagh and others(•), Beaumont; C.J., speaking for the Court, said that the section is intended to provide only for cases where the knowledge of an offence under the Act comes to a Registering Officer in his official capacity and that it has no application when he has no such knowled$e• .. and that even in cases where he has knowledge of the comm1ss1on of the offence in his official capacity, the section is only enabling and G does not preclude a private person from launching a p.rosecution for the offence.

The same view was taken by a Bench . of the Patna High Court in Ganga Dibya and another v. Emperor(<) and also by the High Court of Jammu and Kashmir in Habib Shah v. Mehda Shah(").

In Nge Pan Gaing and other v. King Emperor('), the Rangoon High Court held that the word 'may' ff

(1) l.L.R. Calcutta Series, Vol. XI, 566.

(3) A.1.R. 1937 Bombay 191.

(5) A.IR. 1960 J & K 18.

(2) J.L.R. 40 Madras 880.

(4) A.I.R. 1943 Patna 2'1:7.

DHAIWADBO v. RAMNAGINA (Mathew, J.) 115

A in section 8 3 of the Act should be read as equivalent to 'must be•

and that a prosecution for an offence under the Act coming to theknowledge of a Registering Officer in his official capacity cannot be commenced by a private person without the permission mentioned in the section. A Full Bench il the Allahabad High Court, in Emperor v. Mohd. Mehdi and others('), took the view B that section 83 lays down a special procedure for prosecution of

the offences created by the Act and, therefore, that procedure should be followed; that although the word 'may' occurring in the section cannot be read as 'must', it has to be read in the context as having a mandatory character.

The Court said that the offences contemplated by sections 81 and 82 of the Act are c offences committed against registering authority, that only in-· directly that private persons would be affected and, therefore, the provisions of the section are prohibitory in character.

In our view, this reading of the section is inadmissible for the obvious reason that the section, as we have said, provides only for one type of cases, namely, cases in which the commission of an offence under the Act comes to the knowledge of the Registering l> Officer in his official capacity and even there, the language of the section is permissive and not mandatory.

Section 81 of the Act makes the endorsing, copying, translating or registering of a document by a Registering Officer charged with those duties in a manner which he knows or believes to be incorrect, intending

thereby to cause injury as defined in the Penal Code to any person, an offence punishable with impnsonment which may extend to seven years or with fine or with both.

Section 82 deals with four classes of offences classified under (a), (b), (c) and (d) of the section.

Clause (a) deals with intentionally make false statements before officers acting under the Act, (b) with intentionally delivering to a registering officer a false copy or translation of a document or a false copy of a map or plan; and ( c) with false personation and presentation of a document or the making of an admission or a statement in the assumed character in any proceeding or enquiry under the Act.

Clause ( d) deals with the abetment of the above offences.

If the authorities mentioned in section 83 of the Act were tc>· collude with the person guilty of an offence under section 82 of the Act, or if they fail to launch a pution against the registering officer for an offence under section 81 of the Act, therewould be a total bar to prosecution by a private person in case we accept the reasoning of the Rangoon and Allahabad High Courts.

We do not think that a construction which would lead to that

result is warranted by the plain language of fhe section.

(I) A.l.R. 1934 A11ahabad, 963.

One would have expected a more apt phraseology if the pur- A

pose of the Legislature was to prohibit the prosecution of an offence under the Act by a private individual.

Seeing that a private person will be more seriously injured by the action of an offender who not only forges a document but endeavours to give it a higher e_fficacy by registering it, we can perceive no reason why the private person should be denied the liberty to prosecute B the offender.

We also see no re?son why a registering officer guilty of an offence under section 81 of the Act should get immunity from prosecution by a private individual injured thereby.

Counsel for the appellant referred to the decision of this Court in K. M. Kanavi v. State of Mysore(') and contended that section 83 of the Act is prohibitory in character. There is no merit in c this contention as the language of the provision there considered was totally different.

It is permissible in this connection to look into the language employed in similar sections in other statutes where the legislature intended a prohibitory effect.

Section 195(1) of the Criminal Procedure Code provides that D "No Court shall take cognizance, (a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned".

Section 70(1) of the Indian Stamp Act states that

"No prosecution in respect of any offence punishable under the Act. . . shall be instituted without the sanction of . the Collector or such other officer as the State Government generally, or the Collector specially authorises in that behalf".

Section 29 of the Indian Arms Act, 1878, says:

"No proceedings shall be instituted against any person in respect of such offence without the previous sanction of the Magistrate of the District or, in a presidency town, of the Commissioner of Police".

In ull these sections, the language employed is prohibitory in G character.

Section 8 3 ( 1) of the Act 1s not prohibitory either in terms or in intention.

We think that, on the point under consideration, the decisions in Gopinath v. Kuldip Singh and others('), Re Piranu Nadathi and others('), and Emperor v. Yesa Nana Didwagh and others(') lay down the correct law.

(I) [1968] 3 S.C.R. 821.

(2) J.L.R Calcutta, Vol. XI l66. (.l) l.L.R. 40 Mad•as 880.

(4) A.J.R. 1937 Bom. 191.

We cannot appreciate or approve the reasoning in Emperor

v. Mohd. Mahdi and others(') lliild Nga Pan Gaing and others v.

King Emperor(') or the cases followed in these rulings.

The result is that the appeal has to be dismissed and we do so.

G.C.

Appeal dismissed.

DHARMADEO RAI

January 18, 1972

M. SHELAT

K. K. MATHEW, JJ.

Indian Registration Act, 1916

Registration Act

s. 82( d)

Registration Act

s. 82

s. 83

s. 83(1)

s. 83

s. 81

s. 195(1)

s. 70(1)

Indian Stamp Act

Arms Act

Section 83

Allahabad and Rangoon High Courts

1968] 3 S.C.R. 821

S. N. Prasad

K. K. Sinha

R. C. Prasad

Mathew

High Court of Patna

section 82

Registration Act

Ramnagina Rai

Chapra

Bishundeo Rai

Sheo Deo Prasad Rai

Mohan Rai

Jangli Rai

Nageshwar Rai

thatSheo Deo Prasad Rai

Nageshwar

Bujhawan

Sheo Deo Prasad

Bishundeo . Rai

Bishulldeo Rai

section 467

section 120

Indian Penal Code

section 82(d) and 82(c)

section 82(d)

s. 82

section 83

section 83

Section 83

Calcutta High Court

Madras High Court

Piranu Nadathi

Patna High Court

High Court of Jammu and Kashmir

Rangoon High Court

A.1.R. 1937 Bombay 191

A.I.R. 1943 Patna

section 8

Allahabad High Court

section 83

sections 81 and 82

Section 81

Penal Code

Section 82

section 83

section 82

section 81

Rangoon

Allahabad High Courts

section 81

section 83

Section 195(1)

sections 172 to 188

Indian Penal Code

Section 70(1)

Indian Stamp Act

Section 29

Indian Arms Act, 1878

Section 8

[1968] 3 S.C.R. 821

J.L.R Calcutta