18 6

DULAI. ROY A v.

THE DISTRICT MAGISTRATE, BURDWAN AND ORS.

January 15, 1975

[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]

Maintenance of l11ternal Security Act, 1971. Section 3-Passing of order

• B of detemion dn the same facts while petitioner was in custody as an undertrial-Arrest and dete11tion of petitioner as soon as he was discharged- Detention, if illegal.

In connection with two incidents of theft, two cases, one on 21-7-72 and the other on 1-8-72, under sec. 379, Penal Code, were registered with the police. The petitioner was not named in the F.l.R.

His complicity was detected in the course of investig'ation..

He was consequently arrested on 3-8-72 and sent up before the Judicial Magistrate. On 21~8-72 when the C petitioner was in custody as an undertria\, and order of detention was made by the District Magistrate, the respondent, under Sec. 3 of the Maintenance of Intrnal Security Act, 1971, with a ".icw to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the commodity.

After further investigation, the police submitted a final report and 1he petitioner was discharged in both the cases on 3-9-72. on the sal):l.e day,, he was taken into custody pursuant to the order of detention which is impugned in the writ petition instituted by him on a letter dated August 24, 1974, from D the jail.

It was contended that the order of detention has been made to subvert the process of ordinary penal law, as a colourable exercise or jurisdiction and was, therefore illegal.

Accepting the contention and making the rule absolute,

HELD : While it .is true, as an abstract legal proposition that an order of preven1ive detention under .the Act may be validly pasSed against a person in jail c.ustody on the same f<!_cts on which he is being prosecuted for a substantive offence in a court, such an prder of detention is more easily vulnerable-than the one against a person not in such custody-to the charge that without there being any basis whatever for the satisfaction of the detaining authority, which is a. condition precedent for taking action under s. 3 the power has been misused as a cloak solely for the purpose of puni:; hing the detenu for the substantive offence for which he was being prosecuted by subverting and circumventing the penal Jaw and irksome court procedure. To make the di:tention order immune against such an attack, the detaining authority in its counter-allidavit must particularise all the material circumstances on the basi5 of which he was satisfied as to the nessity of the preventive action despite the detenu being already in jail custody and having no freedom of action on the date of the detention order. Jn the present cas1~ this bas not ben done.

No counter.affidavit bas been filed by the person who had made the impugned order. Even the Deputy Secretary who has :filed the counter aftr gathering some information from the record docs not disclose all the material facts from which it would be rationally possible for the detaining authority to predi'catc that if the impugned order was not made against the petitioner, though in judicial custody, he could be able to indulge in the prejudicial activities indicated in the impugned order. There is no avertment v1hatever that the charges against the petitioner were tru'e but the evidence cojlected against the netitioner was deficient, or, for reason other than the charge being groundless, the prosecution of the petitioner for substantive offences was foredoomed to failu_re.

The circumstances in which the petitioner was discharged by the Judicial Magistrate have not been set out. A bare statement that a "final report" was submitted by the Police is neither here nor there. The counter-affidavit is silent with regard to the nature of this police report and the situation in which the petitioner was discharged. It does not say whether this repqrt had reference to deficiency or sufficiency of\evidence or groundlessness of the charge against the petitioner.

[189E-H; J90R-B]

I I

The grounds of detention relate to two incidents of theft simpliciter in respect of which the petitioner could easily be prosecuted utider the penal law.

J ~1 the absence of any explanation or apparent reason as to why his prosecution .for the substantiv~ offences resulted in his discharge and as. to why the

making of the preventive order was deemed necessarv even wbile he was in jail custody and had no freedom of action the conclusion is inescapable that the impugned order has been passed mechanically and as a colourable exer- . cise of jurisdiction. f 190Hl .

Noor Chand Sheikh v. State of West Bengal, AIR 1974. S.C. 2120 relied on.

Rameslnrar Shaw v. District Magistrate Burdwan, [1964] 4_ S.C.R. 921, Sri Lal Shaw v. State of West Bengal. Wr:t Petition No. 453/74 decided on 4-12-1974, and Kartick Chander Guha v. State of West Bengal, A.I.R. 1974 S.C. 2149, referred to.

The failure to furnish the counter-affidavit of the authority who bad passed the order of detention where the order of detention is attached on the ground of being a colou.rable exerdse of jurisdiction, "may assume the shape of serious infirmity leading the court to declare tbe detention illegal." [18901

Sliaik Hanif v. State of West Bengal, A.LR. 1974 S.C. 679 referred to.

ORIGINAL JURISDICTION: Writ Petition No~ 428 oi 1974.

Under Art. 32 of t.he Constitution of J ndia.

D A. K. Gupta, for the petitioner.

G. S. Chattujee, for respondents.

The Judgment of the Court was delivered by

SARKARIA J.-Dulal Roy, the petitioner challenges the order, dated August 21, 1972, of his detention made by the District Magistrate, Burdwan under s.3 of the Maintenance of Internal Security Act, 1971 (hereinafter called the Act).

The order tates that it is necessary to detain him with a view to preventing him from acting in any manner prejudicia1 to the maintenance of supplies and services essential to the community.

The grounds of detention communicated to the detenue run as F under:

"1. On 21.7.72 at I a.m. you wit!\ your associates Kartick Kannaker and others committed theft of Electric wire from Tower Nos. 23 and 24 situated near Dhangachha village and QY such act you cause stoppage of electric

supply which is essential for maintenance of supplies and services to the community, in Memari area and its vicinity.

2. On 29-7r 72 at 2 a.m. you with your associates committed theft of Tower Members from Tower Nos. 246, 247, 248 situated on the field near Dewandighi, P. S..

Burdwan and by commission of such theft the towers were likely to fall resulting in stoppage of supply electricity which is essential for maintenance of supplies and services to the community, in Calcutta area and its suburbs."

Jn connection with the above thefts, two cases, one on 21-7-72 :and the other on 1-8-1972, under s. 379, Penal Code were registered with the police.

The petitioner was not named in the F.I.R His complicity was detected in the course of investigation. He was consequently arrested on 3-8-72 and sent up befori:: the Judicial Magistrate.

After further investigation, the police submitted a final report and the petitioner was discharged in both the cases on 3-9-72.

On the same day, he was taken into custody pursuant to the impugned order of detention.

Mr. A. K. Gupta appearing as amicus curiae fer the petitioner contends that the impugned order has been passed to subvert the process -of the ordinary penal law, as a colourable exercise of jurisdiction. It is stressed 1hat on 21-8-72 when the detention order was passed, the petitioner was already in custody as an undertrial.

In the absence -'Of anything in the counter affidavit showing that his custody w2, s going to terminate. soon, proceeds the argument, it was not reawnably possible for the authority to be satisfied that the petitioner might indulge in prejudicial activities unless he was detained. It is urged that the detaini!lg authoritly never applied its mind to satisfy itself with reg11rd to this impera1ive requirement of s. 3 and consequently the order of detention is illegal. To highlight the casualness of the authority in. taking the impugned action, Counsel has pointed out that the counter-affidavit has not been filed by the District Magistrate who had made the impugnled order. In support of these contentions, learned Counsel has relied upon Rameshwar Shaw v. DWrict Magistrate Burdwan( 1) Noor Chand Sheikh v. State of Wes~ Bengal( 2 ) and the recent judgment of this Court in Sri Lal Shaw v. State of West Bengal.(B)

Mr. Chatterjee, learned Counsel for the Respondent-Stale submits that the mere fact that the petitioner was on the date of the detention

order in judicial custody did not stand in the way of the detaining authority being satisfied about his propensity to act preinliicially in future after his release from judicial custody.

It is emphasised that the authoriy must have been aware that the petitioner was likely to be released shortly as in fact he was released by the Judicial Magistrate on 3-9-72, i.e. about 13 days after the making of the detention order.

Reference, in this connection, has been made to Kartick Chander Guha v. State of West Bengal.(4 )

Section 3 of the Act provides that the Central Government or the State Government may if satisfied with respect to any perwn that with a view to preventing him from acting in any manner prejudicial to ...... , . (iii) the maintenance of supplies and services essential to the community, it is necessary so to do, make an order directing that such person be detained.

Tt will be seen that the satisfaction of the authority as to the inclination of such person to act in any prejudicial manner indicated in sub-clauses (i) to (iii) of s.3 (I )(a) is the sine

qua non for making an order of his detention.

The scheme of the section presupposes that on the date of the order of detention or in

(1)[1964] 4, S.C.R. 921.

(2) A.LR. 1974 S.C. 2120.

(3) Writ Petition No. 453/74 decided on 4-12-1974.

( 4) A.LR. 1974 S.C. 2149.

.... .. -.. 't" , ... -_-. • . ,;!"-.:· ~--·.- .......... - ~- -

the near future, the person sought to be detained has or will have freedom of actior.. If a person therefore is serving a long term of imprisonment or is in jail custody as an undertrial and there is no• immediate or early prospect of his being released on bail or otherwise,. the authority cannot legitimately be satisfied on the basis of his I past history or antecedents that he is likely to indulge in similar prejudicial activities after his release in the distant or indefinite future.

There must be a proximate nexus between _the preventive action and the past. activity of the detenu on which it is founded.

This Court has time and again emphasised that where in a habeas corpus petition a Rule Nisi is issued, it is incumbent upon the State to satisf.y the Court that the liberty of the detenue has been taken away strictly in accordance with law and due compliance: with the constitutional requirements of Article 22(5) of the Constitution. The best informed person, therefore, to file the counter-affidavit in response to Rule Nisi is the authority who made the detention order under s. 3 of the Act. In Sheik H, anif v. Stare of West Bengal,(') it was pointed out that the failure to furnish the counter-affidavit of the authority who had passed the order of detention where mala fides or eX:-:.

traneous considerations are attributed to it, "may assume the lnpe. of serious infirmity leading the court to declare the detention illegal".

This observation equally holds good in a case where the detention order is exposea to the risk of attack on the ground of being a colourable exercise of jurisdiction.

While it is true, as an abstract legal proposition, that an order. of preventive detention under the Act may be validly passed against a person in jail custody on the same facts on which he is being proscut ed for a substantive offence in a court, such an order of detention is more easily vulnerable--than the one against a person not in such custody-to the charge that without there being any basis whatever for the satisfaction of the detaining authority, which is a condition precedent for taking action under s.3, the power has been misused as a cloak solely for the purpose of punishing the detenu for the substantive offence for which he was being prosecuted, by subverting and circumventing the penal law and irksome court procedure.

To make the detention. order immune against such an attack, the detaining authority in its counter-affidavit must particularise all the material circumstances on the basis of which he was satisfied :is to the neces•

sity of the preventive action µespite the detenu being already in jail custody and having tio freedom of action on the. date of the detention order.

In the present case this has not been done .. No counteraffidavit has been filed by the person who had made the impugned order.

Even the Deputy Secretary who has filed the counter after gathering some information from the record, does not disclose all the material facts from which it could be rationally possible for the detaining authority to predicate that if the impugned order was not made .

against the petitioner, though in judicial custody, he could be able to indulge in the prejudicial activities indicated in the impugned order.

(1) A.J.R. 1974 S.C. 679;

There. is no averment whatever that the charges against the .petitioner were true but the evidence collected against the petitioner was deficient, or, for reasons other than the charge being groundles,, the prosecution of the petitioner for substantive offences was foredoomed to failure.

The circumstances in which the petitioner was discharg- •.ed by the Judicial Magistrate have not been set out.

A bare state ment that a "final report" was submitted by the Police is neither here nor there.

Such a report.coulJ have been made by the Police in any of the situations referred' to in Sections 169, I 70. and 17 3 of the Code of Criminal Procedure, 1898.

Section 169 envisages two di !ferent situations in which an accused person can be released.

On~ is when there is not sufficient evidence against him.

The other is when

'110 reasonable ground or suspicion is revealed by the investigation in regard to his being concerned in the commission of the offence.

Such a release can be made by the investigating olftcer himself without

~•ending the accused before a Magistrate. Section 170 contemplates .a situation where there is sufficient evidence or reasonable ground to

jt:stify the forwarding of the accused under custody for trial to a Magistrate.

It is s.173 that provides .for a final report, popularly 'known as Polic.e Challan or charge-sheet, which is submitted in the prescribed form after completion of the investigation. The counteraffidavit is silent with regard to the nature of this police report and ihe situation in which the petitioner was discharged.

It does not say wliether this report had reference to deficiency or sufficiency of eviden- •ce or groundlessness of the charge against the petitioner.

Mr. Chatterjee submits that since the petitioner was about 13 days after the impugned order, in fact, discharged by the Judicial Magisirate, it should be presumed that his discharge was due to paucity of evidence and not on account of the charge being baseless.

We are afraid no such conjecture can be drawn when the lib<:rty <Jf a citizen is at stake. The counter-affidavit apart, we asked Mr. 'Chatterjee if he could show us any official record to support his con

tention.

Counsel was unable to do so.

He however, submitted that if a sufficiently long adjournment was granted, he would be able to fornish a better and comprehensive affidavit of the officer who had passed the impugned order, clarifying all these obscurities. The case was instituted on a letter dated August 24, 1974 "from the detenu.

Rule Nisi was issued on October 3, 1974 for November 25, 1974. On the latter date no counter affidavit was praduced, and on the request of the State Counsel an adjournment was granted to enable the Resoondents to file the return.

Jnspite of this the counter filed is 1leither clear and complete nor by the best informed person. We are therefore, not disposed to put a further premium on this casualness and laxity on the part of the Respondent.

The grounds of detention relate to two incidents of theft simpliciter in respect of which the petitioner could easilv be prosecuted -under the penal law.

In the absence of any explanation of appar.ent reason as to why his prosecution for the substantive offences resulted in his discharge and as to whv the making of the preventive order was deemed necessary even while he was in jail custody and had no

freedom f action, the conclusion is in ;:scapable that the impugned order has been passed mechanically and as a colourable exercise of jurisdiction.

In the view that it is incumbent on the detaining authority in such cases to disclose to the court all the matf, rial circumstances on which its subjective satisfaction 'is based, we are fortified by the observations of this Court in Noor Chand Sheikh v. State of ' West Bengal,

(supra) wherein A. C. Gupta J. speaking for that Bench said : ·

"We do not think it can be said that the: fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance; it is a circumstance which the detaining authority cannot altogeth.er disregard, In the case of Bhut Nath Mate v. State of West Bengal(') this Court observed :

" .... detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code.

The immune expedient of throwing into a prison cell one whom the ordinary law would take care of, merely because it is irksome to undertake the inconvenience of proving guilt in court is unfair abuse."

If, a_s the petitioner has asserted, he was discharged because there was no material against him and not because witnesses were afraid to give evidence against him, there would be apparently no ratiom' basis for the; subjective satisfaction of the detaining authority.

It is for the detaining authority to say that in spite of the discharge he was satisfied, on some valid material, about the petitioner's complicity in the criminal acts which constitute the basis of the detention order. But, as stated already, the District J\fagistrate, Maida, who passed the order in this case has not affirmed the affidavit that has been filed on behalf of the State.

Apart from the question whether the explanation is satisfactory, the fact remains that in 1his case there is nothing to show that tber.: was any rational material for the subjective satisfaction of the authority who passed the order of detention. Therefore, we find it difficult in the' circumstances of this case to reject the contention that the order of detention was passed mechanically and was a colourable exercise of the power conferred by the Act."

The ratio of Kartik Chandra Guha v. State of West Bengal (supra), cited by Mr. Chatterjee does not advance his case.

There, the District Magistr<\te who had passed the detention order had clearly explained and disclosed-en affidavit all the material circumstances on which his satisfaction was based, and further averred :

(1) A.LR. 1974 S.C. 806.

"Having regard to the activities o:E the detenu as disclosed in the grounds of detention and having regard to the possibility of (his) being enlarged on bail, I was satisfied that th1~

detenu should be detained under the Act."

In the present case, there is nothing in the counter-affidavit to show that on 21-8-1972, the date of the detention order, the petitioner was about to be released on bail or discharged for deficiency of evidence or difficulty of its production in court. Nor is ther1! any averment that the District Magistrate was otherwise satisfied from credible information received that the charges against the detenu were true.

In the light of what has been said above, we would quash the impugned order, make the rule absolute and direct the lease of the petitioner.

VM.K.

Petition allowed,

6

DULAI. ROY

January 15, 1975

V. R. KRISHNA IYER

R. S. SARKARIA, JJ.

Security Act, 1971

Section 3

sec. 379

Penal Code

Sec. 3

August 24, 1974

s. 3

Art. 32

D A. K. Gupta

G. S. Chattujee

SARKARIA J.-Dulal Roy

29-7r 72

Dewandighi

Calcutta area

s. 379

Penal Code

A. K. Gupta

s. 3

Chatterjee

Section 3

Central Government

Article 22(5)

s. 3

Sections 169

Code of Criminal Procedure, 1898

Section 169

Section 170

Chatterjee

October 3, 1974

November 25, 1974

A. C. Gupta

Penal Code

District J\fagistrate, Maida

VM.K.


BABULAL DAS

THE S'.f ATE OF WEST BENGAL

January 17, 1975

[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]

Maintnance of ~1uenwl Security Act, 1971 (Act XXVI of 1971), Section 3( l) (a)(11)-Detentron order, whether illegal on account of solitary incident.

The petitioner has been detained in pursuance of the order of detention'. passed by tbe District Magistrate under sub-s. (l)(a)(ii) of s. 3 of the Maintenance of Internal Security Act, 1971.

The act imputed to the deten\l'e is as. follows:

"That on 16-2-73 between 10..08 and 10-14 hours you along with your other associates, being armed with gun and other wapons com mitted a dacoity In a 3rd class compartment of running train S 11 O Dn. between Habibpur R.S. and Kalinarayanpur Junction R.S. in Ramaghat-Santipur Section and snatched away cash Rs, 30,000 /. from Shri Ashutosh Pal of Calcutta causing bullet injuries to him putting all passengers to fear of death." It was contended for the detenu that ?. solitary incident canno't imperrn i11ternal security and therefore, the order is illegal.

Rejecting the contention and dismissing the writ .petition.

HELD : One who reads the ground of detention, will be alarmed by the training and planning and sinister preparation of skill and spirit which has. made possible the commission of the act imputed-organised dacoity in a running railway train by an armed gang equipped with fire-arms and putting innocent passengers to Peril to life and property.

Such action is so manifestly suggestive of desperate daring. organised ganging and habitual proclivity to violenee that. it cannot be held unreasonable to infer therefrom a trendy course of criminal conduct-, a!though intercepted or detected but oncelikely to break public order in a brazen manner and panicking the community by show of force.

In this view, the petitioner's detention cannot be castigated as illegal. [194F-Gl Obiter : It is fair that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recoure to the parole power under s. 15. Calculated risks. by release for short periods may, perhaps, be a social gain, the beneficient jurisdiction being wisely exercised. [195Fl

ORIGINAL JURISDICTION : Writ Petition No. 444 of 1974.

Petition under Art. 32 of the Constitution of India.

0. P. Mcdviya, for the petitioner.

M. M. Kshatriya, and G. C. , Chatterjee, for the respondent.

The Judgment of the Court was delivered. by

KRISHNA IYER, J.-A single act of outrageous violence in a running train on February 16, 1973 by an armed gang, of which the petitioner was alleged t9 be a member, persuaded the District Magistrate of Nadia to direct his detention under sub-s. (1) (a)(ii) of s. 3 of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971) (hereinafter called the MISA, for short). The subsequent statutory requirements have been fulfilled impeccably and the only maior sub-

14- L379 Sup.C 175

SUPREME COURT REPORTS

[1975) 3 S.C.R.

mission of the petitioner is that on merit~, he is not guilty, that a case charge-sheeted against him has ended in a discharge and that a single incident is insufficient to constitute 'a. stream of tendency' warranting preventive detention.

M.ost of the submisions urged have no force.

The fact that the petitioner was discharged by a court for the :same crime does no bear o:i. the power to detain, nor are we impressed with the other arguments urged before us. Learned counsel Sri Malviya, appearing amicus curiae, strenuously contended that one swallow does not make a summer and likewise a solitary incident cannot imperil maintenance of internal security and so the order is bad. He relied on certain rulings of this Court and, rightly so.

This Court has been vigilant to see that isolated offences are not exploited by executive authorities for clamping down preventive d1ten

tion, insouciantly to by-pass the normal judicial processes. But there is one exceptional category of cases where an only dangerous deviance may itself demonstrate its potentiality for continuing criminality and indicate previous practice, experiment and expertise. In such a narrow category oj' causes it is difficult to predicate abuse of power or absence of applicati-On of mind by the authority if preventive detention is directed solely on one specialised crime.

In the present case the act imputed to the detenu is set out in the detention order thus :

"That on 16-2-73 between 10-08 and 10-14 hours you, along with your other associates, being armed with gun and other weapons committed a dacoity in a 3rd class compartment of running train S. 110 Dn. between Habibpur R.S. and Kalinarayanpur Junction R. S. in Ramaghat-Santipur Section : and snatched away cash Rs. 30,000/- from Shri Ashutosh

Pal of Calcutta causing bullet injuries. to him putting all passengers to fear of death .. "

He who runs a.nd reads-if the statement were true and its veraciity is unavailable for judicial scrutiny-will be alarmed by the training and planning and sinister preparation of skill and spirit which has made possible the commission of the act imputed-organized dacoity in a running railway train by an armed gang equipped with firearms and putting innocent passengers to peril to life and property. Such action is so manifestly suggestive of desperate daring, organized ganging .and habitual proclivity to violence thatit cannot be held unreasonable to infer therefrom a trendy course of criminal conduct-although inter- ;:epted or detected but once-likely to break public order in a brazen manner and panicking the community by show of force. We arc not concerned with the merits of the alleged offence, since that is assigned by the Legislature t9 the_ subjective satisfiaction of the authority. In this view, the petitioner's detention cannot, in the present case, be castigatetl as illegal, since we regard it as exceptional.

. While disch.arging the rue issued and dismissing the petition, we wish to emphasize_ that s. 15 1s otlten Jost sight of by the Government in

BABULAL v. WEST BENGAL (Krishna Iyer, J.) 195

such situations, as long term preventive detentions can be self-defating or criminally counter-productive. Section 15 reads:

"15. Temporary release of persons detained.- ( 1) The appropriate Government may, at any time, direct that iiny person detained in pursuance of a detention order may be released for any specified _ period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release.

(2) In directing the release of any person under subsection (1), the appropriate Government may require him to enter into a bond with or without sureties for the due .observance of the conditions specified in the direction.

(3~ Any person released under sub-section (1) shall surrender himself at the time and place, and to the authority, specified in the order directing his release or cancelling his release, as the case may be. ( 4) If any person fails without sufficient cause to surrender himself in the manner spedfiect in sub-section (3), he shall be. punishable with imprisonment for a term may exted to two years, or with fine, or with both.

(5) Hi any person released under sub-section

(1) fails to fulfil any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof."

We consider that it is fair that persons kept incarcerated andembittered without trial should be given some chance to reform themselves by reasonable recourse to the parole power under s. 15. Calculated risks, by release for short periods may, perhaps, be a social gain, the beneficient jurisdiction being wisely exercised.

In this context we would recall the observations made by this Court in Anil Dey v. Staie of West Bengal. ( 1)

"The petition, therefore, deserves to be dismissed. However, the fact remains that the petitioner was arrested in September 1972, and has been in deterrent incarceration for nearly a year and half. Prolonged imprisonment without trial alienates the individual against society and makes him a vengeful enemy when he ultimately emerges from the prison cell.

Indeed~ it is a serious injury inflicted on an individual by the State which can be justified as a measure of social defence

o:ily in extreme circumstances. Bnt to jail a man on subjective satisfaction of possible prejudicial activity and to forget. about him after the statutory formalities have been perform-

( I) A.I.R. 1974 S.C. 832.

196 SUP!l_EME COURT REPORTS [19751 3 s.c.R.

ed is not fair to the constitutional guarantees. It is appropriate A tor a democratic government not merely to confine preventive dett:ntion to serious cases but also to review. periodically the need fur the continuance of the incarceration. The rule of law and public conscience must be respected to the max:imum extent risk-taking permits, and we dismiss the present petition with the hopeful thought that the retitioner and others like him will _not languish in prison cells for a day 8 longer than the administrator thinks is absolutely necessary for the c:ritical safety of society."

The State may be reminded, in its own interests, of this Court's anxious admonition in Gama( 1) :

"If the detaining authority takes the chance of conviction and, wh1!n the court verdict goes against it, falls back on it:; detention power to punish one whom the Court would not convict, it is an abuse and virtual nullificatio11 of the judicia1l process. !fl honestly finding a dangerous person getting away with it by over-awing witneses or concealing the commission devcrly, an authority thinks, on the material before:

him that there is likelihood ofl and need to interdict public disorder at his instance he may validly direct detention. The distinction is fine but real."

We hope the humanist mandate in s. 15 of the MISA will not rust in the statute book but will be used by Government to humanise, by gradual assimilation into society, those who, with blood-shot eyes., hate and intimidate their fellow men. The rare use of this provision suggests tha~ the compassion and conscience of the law must be actively shared by the men who operate the machine from executive cells ..

V.M.K.

Petition dismissed.

( 1) [1974] 4 s.c.c. 530, 534,

DAS

THE S'.f ATE OF WEST BENGAL

January 17, 1975

V. R. KRISHNA IYER

R. S. SARKARIA, JJ.

Security Act, 1971

Section 3( l)

s. 3

S 11

Kalinarayanpur Junction R.S.

Ramaghat-Santipur

Ashutosh Pal

Calcutta

s. 15

Art. 32

Constitution of India

P. Mcdviya

M. M. Kshatriya

G. C. , Chatterjee

KRISHNA IYER

District Magistrate of Nadia

s. 3

Malviya

S. 110

Ashutosh

s. 15

Section 15

s. 15

Gama

s. 15

V.M.K.


GOPAL BAURI v.

THE DISTRICT MAGISTRATE BURDWAN AND OTHERS

January 17, 1975 B [V. R. KRISHNA IYl!R, P. K. GOSWAMI AND R. R. SARKARIA, JI.]

Me1/111e1u111ce of /11/trnal Security Act, (26 of 1971), Stctlon 3(2) read with s11bscctlo11 ( 1 )-Recovery of tlie stolen articles from one of thr dettnu's as.vo. elates weiglllng wi1/I District Magistrau i11 making the impugned order-Omi~.1/011 to disclose t/1e name of associate 111 the grounds1 whether amo1mts de11la'/ of opportunity to the petitioner to represent agal11s1 111e order of detention.

The petitioner was arrested on March 26, 1973, in connection with two inci dents of theft said to have been committed by him on 20th and 21st March, 1973.

He was released by the Court on bail on the same day. The police, however, in due course submitted the final report and the accused was.discharged on July 22, 1974.

But .the respondent made the impugned order of detention on June 25, 1973 under sub-section (1) read with sub-section (2) of section 3 of the Main tcnance of Internal Security Act, 1971. The order was made in order to prevent the petitioner from 11cting in a manner prejudicial to the maintenance of su]iplies and services essential to the community. The petitioner was detained in pursuance of that order on July 13, 1973. The grounds which have been furnished to the detenu describe the occurrence of two successive days, namely 20th and 21st March, 1973. In the counter-affidavit submitted by the respondent it Is stated thaf both the acts stated in the grounds of detention were committed by the de tenu along with his associates in quick succession In the course of these successive days. . Allowing the petition under Article 32 challenging the order of detention,

HELD : The '\three" successive incidents may include reference to the recovery of some stolen ball bearings from the possession of "one of your associates on 23-3-1973". Even so, it was absolutely necessary to communicate to the detenu the name ctf the particular associate from whose possession the recovery of the stolen articles, the subi.ect matter of the thefts disclosed in the two grounds, was made. Since the sin of the recovery from "one of your associates" visits the detenu against whom a prejudicial inference has been made by the detaining authority resulting in his subjective satisfaction in making the impugned order, omission to disclose the name of the associate in the grounds amounts to denial of an effective opportunity to the petitioner to represent against the order. [l99BE)

In this case either the District Magistrate did not know .the name of the associate for which alone it was not possible for him to. disclose it to the detenu or knowing the same he. has refrained from furnishing it to tht: detenu. In the first case bis subjective satisfaction was influenced by an unreal and non-existent material circumstance, the Diatrict Magistrate not having considered whether the associate could be in fact an associate of the detenu. In the second case a reason able opportunity has not been given to the detenu to know a very relevant and material particular in the grounds to afford making an effective representation against the order. In either case the order will be reckoned as invalid under the law. [199H]

ORIGINAL JURISDICTION: Writ Petition No. 406 of 1974.

(Under Article 32 of the Constitution).

H M. Qamaruddin, A.C., for the Petitioner.

Prodvot Kumar Chakravarti, and G. S. Chatterjee of Sukumar Basu & .Co. for the respondents.

SUPREME COURT REPORTS [1975j 3 s.c, R.

The Judgment of the Court was delivered by

GosWAMI, J.-This application for a writ of habeas corpus under Article 32 of the Constitution arises out of an order of detention Jitadc on June 25, 1973, by the District Magistrate Burdwan under subsection {1) read with sub-section (2) of section 3 of the Maintenance of Internal Se<:urity Act, 1971. The order was made in order to prevent the petitioner from acting in a manner prejudicial to the maintenance of supplies and service~ essential to the community. The groumts on which the said order is based are as follows :-

" (1) On 20-3-73 night at about 01.00 hrs. you with your other associates committed theft of ball bearings and wheels of w~ bucket carriage& of the rope-way lines

mar Harishpur village and the supply of sand to the collieries was suspended. By such act you adversely affected the raising of supply of coal from the collieriies which is essential for human consumption and for the maintenance of supplies and services essential to the community.

(2) On 21-3-73 at about 03.00 hrs. you with your other

a11sociates committed theft of ball bearings and wheels: of the bucket carriages from the rope-way lines at Palashbon village causing sension of supply of sand to the collieries. Some stolen ball bearings were recoveredfrom the possession of one of youir

associates on 23-3-73. The resultant effect was that coal which is essential commotlities cannot be processed out of the mines for human and other consumption and for the maintenance of supplies and services essential to the community." The petitioner was arrested by the police in connection with the aforesaid two incidents on March 26, 1973 and was released by the court on bail on the same day. The police, however, in due coum~ submitted the fi11al report on November 25, 1973 and the accused was discharged 011 July 22, 1974.

As seen earlier the impugned oraer of detention was made. on June 25, 1973 and the petitioner was detained in pursuance of that order on July 13, 1973. It is submitted by Mr. Quamruddin, foarne~ counsel appearing as amicus curiae that based on the grounds as given, there is an inortlinate delay in making the detention order. Se1ondly

he submits that the grounds are vague inasmuch as there is no mention of the number of ball bearings nor of the number of associates in the grounds. We are not impressed by these submissions in this case.

We. however, find from paragraph 5 of the counter-affidav'it submitted by the Deputy Secretary, Ministry of Commerce, Government of India, who was the District Magistrate of Burdwan at the relevant time the foUowing statement:-: "I further say that having regard to the nature of the act~ committed by the detenu (as disclosed in the grounds fu:r-

GOPAL BAUR! v. DIST. MAGISTRATE (Goswami, J.) 199

nish4{ to the detenu), I was bona fide satisfied that the said acts were sufficient for making the detention ord.er. Both the acts stated in the grounds of detention were committd

by the etenu along with his associates in quick succession in course of three successive days ... "

The grounds which have been furnished to the detenu describe the occurrence of two successive days, namely, 20th and 21st March, 1973 Even giving some allowance to the affidavit of the District Magistrate it may be t.hat the "three" successive incidents may include reference to the recovery of some stolen ball bearings from the possession of "one of your associates on 23-3-73'' mentioned in the second ground.

Even so, it was absolutely necesary to communicate to the detenu the name of the particular associate from whose possession the recovery of the stolen articles, the subject matter of the thefts disclosed in the two grounds, was made. Since it is clear. from the District Magistrate' s affidavit that the recovery of the stolen articles from one of the detenu's associates weighed with him in making the impugn~ order, the petitioner should have been apprised of that material fact in a specific manner the least of which was to furnish the name of the associate. It may be that omission to give names of indeterminate associates who run away after committing illegal acts at dead of night may not be of consequence but here the name of the associate from whom the stolen baU_l:>earings were recovered was a definite fact known to the authority in oi:der to connect the detenu with the particular thefts. Since the sin of the recovery from "one of your associates" visits the dctenu against whom a prejuijicial inference has been made by the detaining authority resulting in his subjective satisfaction in making the impugned order, omission to disclose the name of the associate in the grounds amounts to denial of an effective opportunity to the petitioner to represent against the order. For this infirmity in the grounds the petitioner is de.nied the constitutional protection under article 22 ( 5) of the Constitution.

F It is submitteti on behalf of theJesponderrts that even a, disclosure .of the name of the associate woul have evoked the same plea of denial by the detenu and, therefore,- would be inconsequential. We are unable to accept such a submission. In case of preventive detention the duty to furnish the relevant material particulars in the grounds which reasonably influence the subjective satisfaction in making the

order of detention is not to be judged by what the answer the deu:nu

will make but whether the detenu will be able to make an effective representation against the order. The possibility or probability of detenu's ultimate denial of the allegations is not relevant in that context.

In this case either the District Magistrate did not know the name of the associate for which alone 1t was not possible for him to disclose it to the detenu or knowing the same he has refrained from furnishing it to the detenu.

In the first case his subjective satisfaction was influenced by an unreal and non-existent material circumstances, the District Magistrate not having considered whether the associate could / (

200 SUUBMB C01JllT llBPORTS [1975) 3 s.c.R.

bo in fact at11 associate of the detenu. In the second case a reasonable A opportunity has not been given to the deteo.u to know a very ri'levant and material particular in the grounds to afford making an e!l!ective representation aaainst the order.

In either case the order will be reckoned as invalid under the law.

In the result the impuaned order is invalid and the same is 8 quashed. 1'he rule nisi is made absolute and the petitioner s:llall be released from detention forthwith. . . ·

V.M.K.

Petition allowed.

GOPAL BAURI

January 17, 1975

P. K. GOSWAMI

R. R. SARKARIA

20th and 21st March, 1973

July 22, 1974

section 3

Article 32

Article 32

H M. Qamaruddin

Prodvot Kumar Chakravarti

G. S. Chatterjee

GosWAMI

Article 32

section 3

mar Harishpur village

Palashbon village

November 25, 1973

June 25, 1973

July 13, 1973

Quamruddin

article 22


P. C. SETHI & ORS.

UNION OF INDIA & ORS. January 17, 1975

[M. H. BEG, V. R. KRISHNA IYER AND P .. K. GOSWAMI, JJ.]

Constitution of India, Art. 16-Civil Service-Ctntral Secretariat Service (Re organisation and Reinforcement) Scheme-Home Ministry circular dated 22nd June, 1949-Whether subsequent direct recruits can supersede tliose who . are absorbed in service earlier-Delay and /aches. . .

Petitioners are Assistants in Grade IV Class II of the Central Secretariat Service. Petitioners were appointed as Assistants during the period 1944-54. The respondent Union of India appointed a large number of persons as Assistants by direct recri.itment and many of those appointed after the petitioners have been confirmed in the grade and have since been promoted to the next higher grade of Section Officer. In 1948, the Government framed a Scheme known as the Central Secretariat Service (Reorganisation & Reinforcement) Scheme. Thereafter instructions for the initial constitution of the Assistants Grade were issued In March, 1949. Thereafter, the Ministry of Home Affairs issued Office Memorandum dated June 22, 1949, dealing with ti:~ qu.estion of seniority. Para 2 of the office memorandum provided that the rule of seniority on the basis of length of service should be takeq as a model in framing the rules of seniority for other Services. The main question to be determined in the present petition is whether the office memorandum of June, 1949 is applicable in determining seniority of the petitioners.· . ' HELD. Office Memorandum of June 22, 1949 is no bar to the Government making separate provision for the mode of constitution and future maintenance of the service of Assistants. The classification made in the instructions cannot be characterised as unreasonable. There is no discrimination amongst equals nor any arbitrary exercise of powers by the Government. In the absee of any statutory rules prior to the Central Secretariat Service Rules 1962 it was open to G, overnment in exerc.ise .of its executive .PO'Yer to issue adinistrative instructio'!s with regard to constitution and reorganisation of the. Service as long as there IS no violation of ArtS. 14 and 16 of the Constitution. The instructions of the Government issued from time to time do not violate any fundamental rights of the petitioners. In the present petition, the Civil List of 1962 has not been challenged as invalid. Only office Memorandum of 1971 is challenged. The said Memoran dum of 1971 is based on the civil list of 1962. The validity of which is not specifically challenged in the petition. There is no infirmity in the Memorandum of 1971 simply because it is not in conformity with the Memorandum of 22-6-1949.

[207H; 208B-EJ

HELD FURTHER : Once the temporary Assistants have been absorbed in the Service after they are found to be eligible in accordance with the instructions their claim for seniority cannot be superseded by the direct recruitment if appointed after the farmer's absorption in the service. It appears that the quota of direct recruitment was not enforced and perhaps for good reasons. Administrative in structions if not carried into effect for obvious and good reasons cannot confer a right upon entrants on later recruitment to supersede the claims of others already absorbed in the service in. accordance with the appropriate and valid instruction.,, Nothing has been brought to our notice which could justify such a wholesale or en bloc discrimination in favour of those who suddenly enter the same Rtade of service by direct recruitment. It could if 11ermitted be violative of Art: 16 of the Constitution. The direct recruits who are appointed after the absorption of the Assistants in conformity with the instructions on tile initial constitution or in the regular temporary establishment. shall rank junior to the ltter. [209B; 0]

HELD FUR.'I'HU : Jn view of the entire circumstances of the case and the hopes held out by the Government from me to time we are not prepared to dismiss the petition on account Qf delay and !aches. [210B]

ORIGINAL JuR1s01cr10N : Writ Petition No. 163 of 1972.

Petition under Art. 32 of the Constitution of India.

S. S. Javali and B. P. Singh, for the petitioners.

M. N. Phadke and R. N. Sachthey, for respondent No. L

P. P. Rao and A. K. Ganguli, for respondent No. 2 & the intl.!rveners.

T. V. S. Narasimhachari, for respondent Nos. 27-32.

The Judgment of the Court was delivered by

GOSWAMI, J.-The petitioners are Assistants in Grade IV (Class II Non-gazetted) of the Central Secretariat Service (briefly the

Servic~) and have been working in the various Ministries of the Ooverr.ment of India. They were appointed as Assistants during tire period

between 1944 and 1954. Their next promotional post is now that of Section Officer (Class II, Gaz.etted). They have raised in this Writ Petition the question of their seniority and challenged the validity of the Office Memodandum of 7th September,.1971, issued by the first Respondent fixing zones for promotion to the grade of Section Officer on the basis or ranks assigned in the Civil List of 1962 for the grade of Assistant on the ground of being in contravention of the Office Memorandum of June 22, 1949, of the Ministry of Home Affairs.

They also challenge the validity of rule 18(1) of the Central Secre tariat Service Rules, 1962 (briefly the Rules) in so far as it is con strued to protect the seniority determined prior to the commencement of the said Rule fa violation of the Office Memorandum of Ju11c 22,

1949. Th~ petitioners allege that the Government havoe not fo:l!owed any consistent principle or rule in regulating the seniority of the Assistants. It: is said the first Respondent prepared lists of ofti<:ers in the Assistant's Grade by different combination of classifications, such as initial constitution, regular temporary establishments, nontest cate gory, first test category, second test category, hard cases category, displaced persons, direct recruits, etc. and effected promotions in utter disregard of the dates of confirmation. The first Respondent appointed a large number of persons as Assistants by direct recruitment and many of those appointed after the petitioners have been confirmed in the grade and have since bee.n promoted to the next higher grade of Section Officer. Acording to the petitioners gla.ring instance of arbitrary action is the assignment of en bloc seniority to persons appointed by direct recruitment in 1956 exceeding 800 in number who have been assigned seniority over all the petitioners appointed as Assistants long prior thereto. Such instances' were there also in 1958 and 1959.

In retrospect, on July 19, 1948, the Government.framed a scheme known as the Central Secretariat Service (Re-organisation and Reinforcement) Scheme (briefly the Scheme). It constituted four grades in the Service, namely, Under Secretary (Grade I), Superintiendent (Grade ID. Assistant Superintendent (Grade III) and Assistant (Grade IV). The Scheme was, owever, not implemented until November 1951. Under para 15 of the Scheme, the authorised 1iermanent strength of the Service will be fixed by the Ministry of Home Affairs with th~ concurrence of the Ministry of Finance. It was recog-

' 1'

P. c. SETHl v, UNlON (Goswami, J.) 2-03

nised therein that "it is essential' from the poin~ of Yiew alike of economy and efficiency , that as large. a proportion as possible of the members of the Service should be recruited on a permanent basis. A flexible system of fixation of Authorised Permanent Strength will therefore be followed. . . . should be revised once in every three years". It is also mentioned in the same paragraph that "if as a result of any such triennial refixation, the Authorised Permanent Strength is reduced,. effect should given to such reduction by equivalent reduction in the following triennium of the rate of direct recruitment to the Service and' :Promotions from grade to grade .... ". It is also particularly men-·

tioned in the said paragraph that "the rights of members appointed to the Service on a permanent basis will not be prejudiced by any revision of permanent strength, effected subsequent to such appointment".

Under Paragraph 19 of the Scheme, after the Authorised Permanent Strength of the Service is determined, the initial coustltution of the Service will be undertaken, and, inter alia, appointments to Grade IV will be completed within thirty months. Under para 25 of the: Scheme, the mode of constitution of Grade IV is as follows :-

"Assistants who have already been appointed on a permanent basis and are not appointed . to a higher grade in the Service as reorganised will be appointed permanently to Grade IV first. The remaining vacancies in Grade IV will be filled by persons who are 'qualified' in terms of the Ministry of Home Affairs bffice Memorandum No. ~3/20/48-NGS, dated the 25th May, 1948. A'.s contemplated in that Memorandum two tests will be held by the Federal Public Servi~ Commission in which the temporary 'qualifiables' as defin"d therein will be enabled to qualify for permanent absorption in Grade IV. In the first of two ests only qualifiable tempcrary Assistants will be allowed to appear. H \Jl'.OUld then be considered with reference to the number of vacancies to be filled as well as the number of qualifiable candidates remain ing whether, and if so Jo what extent, the. second test should be thown open partialy to the outsiders also". .

Paragraph 26 in Part V of the Scheme dealing with future maintenance of the Service, provitles, i111er alia, for the recruitment as follows:-

"Permanent vacancies in the Authorised Permanent Strength of this Grade will be filled in two ways. One out of every 4 vacancies will be filled, Ministry-wise, by promotion from the Ministerial Grades below the rank of Assistant. The remaining 3 vacancies will be poofod for the Central Secretariat as a whole and filled from among the successful candidates at the competitive Ministerial Services Examination held by the Federal Public Service Commission, The qualifications for admission to this examination will continue to be graduates in the age-groups 20-22 with relaxation of age limit for the Scheduled Castes".

/ \

SUP~EME COURT REPORTS

[197 5} 3 S.C:.R0

With regard to promotion it is stated in the said paragraph as follows:-

"Assistants who have completed 5 years' but not more than 1 O y1ars' service in_ their grade will be eligible for promotion by selection based strictly on the result of .a limited competitive test held among Assistants of that erv1ce group to the rank of Assstant Superintendent, prov1dd that no Assistant will be allowed rnore than three consecutive chances to compete in this test. _Those Assistants who are not. so promoted will also be eligible in due course for promotion based on seniority, subject to the rejection. of the unfit,. to vacancies in the Grade of Assistant Supermtendent which would. be reserved for being filled by such promotion".

Under para 31 of the Scheme, leave, pension and other con4_itions of service will be as applicable at present to all offi(ferS of Central Services, Class I or II, as the case may be. -

After the publication of the Scheme, the Ministry of Home Affairs -on.October 25, 1948, circulated an explanatory memorandum explaining the nature and purpose of the Service. The Central Secretariat is pithily described therein as ''the workshop of policy" which helps the Government to make and revise policies and to create, maintain and direct the organs which execute the policies. The Assistants, we are concerned with, are -the fifth layer at the lowest rung of the Secretariat Department and are engaged on case work as distinguished from clerks and typist~ employed on routine work in a separate lower service.

It was pointed out that there was a phenomenal expansion in the Service as would be reflected from the figures, for example, of Assistants in 1939 at 493 which rqse upto 2306 in 1948. This is said: to have affected the quality of the Service which includes a large nu1mber of staff employed on a temporary basis. In 1948 itself the , entire number of 2306 Assistants, except 95, were temporary employees. It was further mentioned in the explanatory note that "reinforcement is not required at the lowest level, viz., the Assistants' Grade. Here what is necessary is the weeding out of the poor quality material and the improvement of _efficiency of the rest through a permanent tenure and better training and guidance".

Then in S'equence came the instructions for the initial constitution of the Assistap.ts' Grade of the Service on March 1, 1949. These ins~ tructions gov1!med the manner in which the sanctioned permanent strength of the grade of Assistants would be filled by existing perma~ nent Assistants and from various categories of existing temporary employees.

The scheme of the Instructions contains these broad features : ( 1) All existing permanent Assistants who are not appointed to higher grades in the Service will forllll pa.rt of the permanent strength of the Service.

f I

p, c. SETHI v. UNION (Goswami, J.) 205

(2) The remaining number of permanent vacancies in the Grade will be divided among three categories, namely, (i) The Non Test Category, (ii) The First Test Category and (iii) The Second Test Category.

A particular specified number of vacancies will be allotted to the Non Test Category and the remaining vacancies will be divided among the First Tesi Category and the Second Test Category in the ratio 2 : 1.

There is also reservation of a specific number of vacancies for allotment to Displaced Government servants. There are five categories of employees which are included in the Non Test Category and for them there will be two separate lists, ijamely, (a) for Displaced Government servants and (b) for others. Both the lists will be drawn up ranking the employees in order of seniority according to their length of service. The employees who are included in these lists will be eligible for permanent appointments in accordance with their position in the lists upto the respective quotas prescribed for them. I.t will, therefore, appear that although there may be a large number of employees included in the lists of Non Test Category, all may not be absorbed in the permanent vacancies but only these in order of St)niority in the lists upto the sanctioned strength of the vacancies in the Non Test Category.

Next comes those Assistants who are eligible to be considered for permanent. appointment to the vacancies reserved for the First Test Category by qualifying at the first test to be held by the Federal Pub!ic Service Commission. Here again on the results of the fiirst test candidates in order of merit upto the number of vacancies allotted to this category will be confirmed in the grade. That is to say, although there may be a large number of temporary Assistants who may have qualified at the first .test, only the candidates in order of merit upto their quota in this category will l;>e confirmed. Similarly there will also be a &cond Test Category which will .include candidates who have qualified in the test but only these candidates in the order of merit upto .the number of vacancies allotted to this Category will be confinned.

The inter se seniority of the .confirmed employees it). the Non Test Category, The First Test Category and The Second Test Category will' be according to their !ength of sec; e.

Paragraph 8 of the instructions which deals with seniority of Assistants in. Grade IV as newly cQnstituted, which is even quoted in G . the Office Memorandum of June 22, 1949, provides in substance as: follows:-

All existing permanent Assistants who were confirmed in their posts prior to October 22, 1948, will be arranged in the first instance Ministry-wise in accordance with the rules in force then. They will be senior to all others confirmed thereafter in vacancies arising upto October 22, 1950. Those who ar~ confirmed after 1943 in vacancies arising upto October 22, 1950, will be arra11ged in a single list for all Ministries and their seniot:'ity inter se will be detennined orr

the basis of their length of continuous service temporary or permanent in the grade of Assistant or in an equivalent grade.

After the sanctioned strength of the permanent establishment has

ben filled up as set out earlier, the :remaining persons in the Non Test, flrst Test and Second Test Categories, because of lack of sanctioned strength in the various categories, could not be absorbed will form a regular temporary establisment (R.T.E.). There will be a s'.ngle seniority list for such R.T.E. and seniority will be determined on the basis of the length of contin\10us service. The sanctioned strength of the service upto Oqtober ~. 1950, will be filled as above. Thereafter a proportion of future permanent vacancies will be filled by appointments, based upon seniority from the list of members of the R.T.E.

The next stage is reached when instructions for the constitution and maintenance of the regular temporary establishment of Asshtants were issued on August 26, 1952. The R.T.E. as initiallv constituted is as follows :-- ·

A list (List A) arranged in order of seniority as Assistants shall be prepared of all existing Assistants that is those holding Posts of Assistant as on July 1, 1952 and not confirmed in Grade IV and of others specifically mentioned in sub-para (2) (i) of para 3 of the instructions. These left over from the two Non Test lists mentioned eadier are entered in one list (List B) in accordance with seniority with some weightage for Displaced Government servants. The lists of persons who have qualified m the First and the Second Test Categories but not confirmed in the service are ref :rred to as Lists C and D respectively. For the first time a rotation system is introducf:d as

per sub-para ( S) of these instructions in so f11r as appointments ti:> the R.T.E. shall now be made one from each lillt in serial order from the top of each Ii1it until 1200 persons are chosen. There is, however, an overall reservation of 12i% for Scheduled Castes and 5% for 'Schedulel:i Tribes. Persons who are neither ermanent members of 'Grade IV nor members of the R.T.E. of Assistants are referred to as "Ex-cadre" As1sistants. Under para 4 of these instructions the !fat of R.T.E. prepare.d in accordance with para 3(5) shall be the Gradat'.on List of the R.T.E. at its initial constitution. Para 6 provides that the per 800$ appofoted to the R.T .E. at its initial CC'lnstitution shall be senior to these appointed later. The Ja"er shaU rank inter se in the order of their appointment to the R.T.E. in accordance with para 5 ( 4) of the instructions. Para 9 provides that all permanent vacancies in Grade IV not filled by direct recruienent on the results of competitive examination held by the Umon Public Service Commission shall be filled from the R.T.E. in the order of the Gradation List subject to certain 1proviso, the first one being that not lss than one-fourth of the vacancies 1; hall be reserved for petmanent Clerks.

Then in the wake of these instructions came the Ministrv of Home Affairs' Office Memorandum of June 22, 1949, dealing with th~ 1mbjiect of "seniority of the displaced Government servants who have been absorbed temporarily in service under the Central Government".

J>aragraph 2 of the said Office Memorandum may be set out :

P. c. SETHI \/, UNION (Goswami, /.) 207

"The question of seniority of Assistants in the Secretariat was recently examined very carefully in consultation with all the Ministries and the Federal Public Service Commission and the decisions reached are incorporated jn para 2 of the Instructions far the initial constitution of the grade of Assistants .... "

B This paragraph 8 which is mentioned is the orie which is quoted earlier from the Instructions of March 1,.1949, which was expressiy intended for the initial constitution of the Assistant's Grade of the Central Secretariat Services. The principle which was adumbrated in the . Office Memorandum of June 22, 1949, is the same as has been earlier

mentioned in paragraph s of the Instructions of March 1949.

In paragraph. 11 .of the counter-affidavit of the Deputy Secretary to the Government of India, Department of Personnel, Cabinet Secretariat, it is stated as follows :-

"I say that the statement that persons who were appointed Jong after the petitioners' appointment as Assistants have been further promoted in supersession of the claims of the petitioners is a statement made shorn of its context. That criticism would have been valid if with regard to the Assistants of the Central Secretariat Service the Office Memorandum of 1949 was applicable under which length of service was the

crierion in the matter of determining seniority ... " with reference to Annexure 'B' to the writ petition I am advised to submit that if the 1949 or 1959 Office Memorandum were applicable to the petitioners' case, then Annexure 'B' would be valid and this respondent would have 110 reply thereto but, unfortunately, for the petitioner, they being governed by different principles as regards seniority and at any rate they being hot governed by 1948 or 1959 Office Memoranaum, it is only. a futile exercise to find out what would have been their seniority in the Civil List of 1962 and 1949 Office Memorandum applied to them".

It may be noted that Annexure 'B' to the Petition is a statement showing the order "of seniority had it been based on length of service as Assistant. ·

The principal question that arises for consideration in this case is whether the Office Memorandum of June 22, 1949, is applicable in G determining seniority of the petitioners. Para 2 of the Office Memo- . randum as quoted above clearly shows that paragraph 8 which contnins th~ rule of seniority being length of' continuous service was in terms applicable to the initial cons(itution of the grade of Assistants.

The said rule of seni-0r1ty should be taken as "the medal in framing the rules of seniority for other services". This w-0uld go to demonstrate that the Office Memorandum of June 22, 1949, is no bar ta the H Government in making separate prO'Visions for the mode of onstitu

tion and future maintenance of the service of Assistants. There is, therefore, no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bal~ length of continuous

service irrespective of other considerations then the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assistants properly observed keeping in view the question of quality and efficiency as well as at the same where regard being ha9. to, accommodate as large number as possible for gradual absorption. In doing so we are unable to hold. that the Government has violated the _provisions of articles 14 or 16 of the Constitution. The clas:sification under the instructions for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure security of temporary employees assistant with efficiency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exerc:ise of power by the Government. In absence of any statutory rules prior to the Central Secretariat Rules 1962 it was open to the Government in exercise of its executive power to issue administrative instructions with regard to constitution and reorganisation of the Service as long as there is no violation of article 14 orarticle 16 of the Constitution. Subje, ct to what is observed hereafter, as held above we do not find that the instructions of the Government made from time to time violated any fundamental rights of the petitioners. We should also observe that the various Office Memorandum and instruc1ions including the Civil list of 1962 have not been challenged as invalid with the solitary exception of the Office Memorandum of 1971 ( Annexure I). This Office Memorandum again is based on the Civil List of 1962 the validity of which is not specifically challenged in this

Petition. We, therefore, do not find any infirmity in the Office Me morendum of 1971 (Annexure I), simply because it is not in conformity with the Office Memorandum of June 22, 1949. Besides, it is stated ii11 the countet-.affidavit of the Deputy Secretary (page 176 of the record) that "the Office Memorandum of 1971 is no longer operative .. , " We have seen that the rule of length of continuous servk~ has been adopted in the case of different categories reconstituted in

p the Service in accordance with the administrative instructions of the Horne Ministry issued after consultation with the Union Public .Service Commission, The grievance that the said Office Memorandum should have been applied to all the temporary employees without the req11drement of their being eligible in accordance with other instructions is without any foundation and cannot be upheld. A regular set of separate instructions governed the Service the existence of wch cannot be explained if th(l Office Memorandum of June L2, 1949, alone were

applicable, de hors the!ie other instruction.~. . , .. a It is further contended that rule 18 of the Rules is invalid in . so far as it protectl1 the seniority of _the Assistants already observed vioiating the rule of continuous length of servfoe amongst the entire gmup as a whole. This argument is untenable as the rule of continuous length of service cannot be invoked unl(!ss the temporary Assistants are

absorbed in the Service in accordance with the instructions which are valid. The entirn group of temporary Assistants canno~ claim senio:rity by the rule of length of continuous service without prior c.omplia:nce with the conditions ld down under the instructions. Rule 18 is, the:re-

P., c. Sl!THI v. UNION (Goswami,}.) 209

fore not violative of article 14 or article 16 of the Consti.tutiol\ on the

scor~ of giving effect to the' earlier or other instructi011s which are not lound to be othe.rwise objectionable.

That leaves one more question to be resolved, that is, with refe . rence to the direct recruits. Once the temporary Assistants have been nbsorbed in the service after they are found to be ~Hgible in accordance with the instructions their claim for seniority can11llt be superseded by the direct recruits if appointed after the farmer's absorption in the Service. This conclusion is based on the following factors :-

Although the Scheme was made in July 1948 it was not enforced until November 1951. Even then there. was no direct recruitment until 1956. The reasons for delaying direct recruitment can be foumi from a perusal of paragraph 1 S of the 1948 Scheme itself, that "it is essential from the point of view alike of economy and efficiency tha~ as large a proportion is possible of the members of the service should be recruited on a permanent basis ..... If the Authorised permanent strength is reduced, effect should be given to such reduction by equivalent reduction in the following triennium of the rate of direc~ recruitment to the Service ... " It was, therefore, not the intention of the scheme to prejudice the seniority of the Assistants after their absorption in the Service nor such an intention was evident in the. explanatory memorandum annexed to the Office Memorandum of October 25, 1948. In para 11 of the latter Memorandum it is unambiguously stated the "reinforcement is not required at the lowest level, namely, the Assistants' Grade. Here what is necessary is the weeding out of the poor quality material . and the improvement of efficiency of the re_st through permanent tenure and better training and guidances. This is also clear from the instructions for the constitution and maintenance of the regular .temporary establishment of Assistants dated August 26, 1968. Para 9 thereof provides that "all permanent vacancies in Grade IV not filled by direct recruitment on the results of Competitive Examination, held by the Union Public Service Commission shall be filled from the Regular Temporary Establishment in the order of Gazetted List" subject lo certain provisions with which we are not concerned.

It appears the quota, if any, of direct recruitment was not enforced and perhaps for good reasons as noted above;- the policy of the Government being different.

Administrative instructions, if not carried into effect for obvious and good reasons, cannot .:onfer a right upon entrants on later recruitment to enforce the same to supersede the claims of others already absorbed in the Service in accordance with the _appropriate and valid instructions._ Nothing was broug!1t to our notice which could justify such a wholesale or en bloc discrimination in favour of those who suddenly enter the same grade of service by direct rec:ruitment. It would, if permitted, be violative of article 16 of the Constitution which should never be overlooked in such cases.

We are, therefore, clearly of opinion that the direct ; ccruits who were appointed after the absorption of the Assistants, in conformity with the instructions of the initial constitution or in regular temporary 15-L379 Sup. CI/75

SUPREME COURT REPORT~ [1975] 3 s.c.R.

1i:stablishment shall ranlc junior to the latt1r. We, th@refore, direct that the seniority of such Assistants shall be adjusted and the seniority list corrected accordingly. This will, J?owever, not affect the cases of these Assistants who are already promoted and confirmed in a higher 1rank

prior to the date of this petition.

The learned counsel for the respondents strenuously contended 1that the petition may dismissed on account of delay and laches. Jn view of the entire circl)mstances of the case and the hopes held out by 1the Government from time to time we are not prepared to acced1~ to this submission.

The petitioners also sought to take advantage of what they describeji as admission in Government's affidavits filed in connection with certain earlier proceedings of similar nature and other admissions in Parliament on behalf of the Government. We, are, however, unable to hold that such admissions, if any, which are mere expression Of opinion limited to the context and also being rather vague hopes, not specific assurances, are binding on the Government to create an estoppel.

In the view we have tilken the case is distinguishable from Union of India and Ors. v. M. Ravi Varma and Ors. etc.(1) principally relied upon by the petitioners.

In the result the petition is partly allowed only to the extent that the Assistants who have been absorbed in the Service in conformity 1vith the instructions will rank senior to the direct recruits appointed 111fter such absorption. The seniority list shall be adjusted and correc:ted accordingly. This direction will, however, not affect those Assistants who have already been promoted and confirmed m a higher rank p.rior to the date of this petition. In the circumstances of the case we leave the parties to bear their own costs.

P.H.P.

Petition allowed in part.

I. [1972] 2 S.C.R. 992;

P. C. SETHI & ORS

UNION OF INDIA & ORS

January 17, 1975

M. H. BEG

V. R. KRISHNA IYER

P .. K. GOSWAMI, JJ.

Constitution of India

Art. 16

Ministry of Home Affairs

June 22, 1949

Art. 32

Constitution of India

S. S. Javali

B. P. Singh

M. N. Phadke

R. N. Sachthey

L

P. P. Rao

A. K. Ganguli

T. V. S. Narasimhachari

GOSWAMI

July 19, 1948

Ministry of Finance

Goswami

25th May, 1948

Federal Public Servi~ Commission

Federal Public Service Commission

October 25, 1948

March 1, 1949

October 22, 1948

October 22, 1950

July 1, 1952

Umon Public Service Commission

articles 14

article 14

article 16

Union Public .Service Commission

article 14

article 16

August 26, 1968

Union Public Service Commission

article 16

Parliament

[1972] 2 S.C.R. 992