' D

J. FERNANDES & CO.

THE DEPUTY CHIEF CONTROLLER OF

IMPORTS & EXPORTS AND ORS.

March 7, 1975

[A. N. RAY, C. J. AND K. K. MATHEW, J.]

cdnstitution of India, 1950, Articles 73(l)Ca), 239(1), 240 a11d 264(4)- depen¥ing 011 whether licence was granted before or after liberation of Goa-

C/assication, if valid.

Co11stitwio11 of India, 1950, A rt. 32-Grant of import licence-Petitioner no't cha//e11gi11g the validity of the Statute or statutory orders-Wrong application of law, if ll iiolation of fundamental. right. ·

Constitution of India, 1950, Ardcles 73(l)(a), 239(1), 240 and 246(4)- Unfrm Territory, administration of-Union Government, if can issue executive directions to Administrator.

Goa, Daman and Diu (Administration) Ordinance No. 2 cf 1962, Ss. 3, 4 and 7 and Goa, Daman and Diu (Administration) Act No. 1 of 1962, Ss. 4, 5

and 9-Validarion of all actions taken in good faith and for peace and r:ood

Govemment of Goa, Damon and Diu-Licence granted contrary to prccedure or by mistake or inadvertence, if could be val(dated.

Co11stitution of India, 1950, Article 19(1) (/)-Rejection of application for grant of impo/'f /icence-Petitione.r, if can claim fu11damen1a/. right to the grant of licence on the basis of a policy statement.

lmcmaticna/ Law-Acquisition of new Territory by Union of lndia-Rir:hts, if could be founded on pre-liberation law-Central Govemment (new Sovereign), E if can alter pre 1existing procedure for issuing impot licence.

The petitioners are a partnership firm.

They are successors to J .. Fernandes & Comriany (Original concern) of which Joshino Fernandes was the sole proprietor. Jn '.he month of October, 1961 the original concern booked orders for

rurchn"~ of Surveying & Mathematical Instruments and Surgical & Sdentific Instruments with a German fir'm.

The orders were accepted by the German firm on 7th November, 191!1.

On 19/20 December, 1961 Goa was liberated, On 18 Ja.nunry, 1962 the original con, cern applied to the Administrator of Goa for issuing an import licence for £32,652.10 for Surveying and Mathematical lnstru. ment< nd Surgical and Laboratory Equipments, along with necessary papers of .firm commitments. The original concern obtained a licence on 12 February,

1962. The licence was No. 47. It opened a letter of credit on 21 February, 1962 for 50 per cent of the licence. The Central Government on 21 February, 1962 informed the Administrator, Goa, that the Central Government withheld, actio; i on all pending cases where import had been authorised. Pursuant thereto the Administrator, Goa issued directions to suspend issue of letter of credit and

all cases refoting to firm commitments entered into before 18 December. 1961 which were till then not disposed of, should be frozen.

On April 2, 1962 the Administrator of Goa issued a Press Note that imports into Goa, Daman and Diu would be governed by three principles. First import would be allowed in cases (a) where letters of credits had been opened with the Banco National Ultra Marines on or before 18 December, 1961; (b) where goods were shipped on or before 20 December, 1961.

Second, imports of certain specified items were banned. Third, imports would be allowed of certain goods to the extent of 50 per cent of imports actually made in the quarter of September, October

and November, 1961.

The petitioner's licence No. 47 was revalidated on 28 May, 1962 for £ 16,000 for which the peytfoner had not till then opened letter of credit.

SUPREME COURT REPORTS Cl 97 51 3 s.c.It.

27 February, 1962 is the date when the Administrator of Goa suspended issue of

fo:sh letter of credit. In 'the month of July, 1962 the petitioner effected imports of goods for the full value.

The Imports and Exports Control Act, 1947 was applied to Goa, Daman & Diu from 1 October, 1963.

In October, 1964 the original concern was taken over by the petitioner.

In 1967 the Hamd Book for the year 1967 declared the period 1 April, 1961 to 31 March, 1966 as the basic period and any one year during the period could be: seleted a5 the basic import by the concerned party who would become the established importers.

On 15 May, 1967 the petitioner applied to the licensing authorities for recognising the change in the constitution of the firm and fixation of quota for whkh they could import the goods. The licensing authorities recognised the

ch~ge in. the constitution but refused to x the qu.ota on the ground that the Ongmal !tcence. No. 47 grante~ to the original concern on 12 February, 1962 was not 1SSued 111 accordance with the procedure followed for the issue of licence at. that time. The petitioner filed an appeal against the order. The appeal ':Vas re1ected.

This writ. pettion has been filed by the petitioners praying for a writ of mandamus directmg the respondents to cancel four orders mentioned in the petition and to issue quota certificate to the petitioners.

It was contended for the petitioners : (i) The petitioners' fundamental right under Art. 14 is violated because the re!pondents discriminated aga'inst the i1etitioners. The respondents granted licences to six parties. There is no diinction

b<itween the cases of the petitioners and the ca~~ of the six traders.

(ii) Tbe licence No. 47 dated 12 February, 1962 was a licence issued in accordance ,,1ith the procedure followed for the issue of licence at that time. The directions of the Central Government were illegal. The Central Government was not com pctent to issue directions to the Administrator of Goa except through the President in view of Arts. 239 and 240 ot the Constitution. (iii) The provisions of the Goa, Daman and Diu (Administration) Ordinance No. 2 of 1962, :and

Goa, Daman and Diu. Administration Act 1 ot 1962 cured all irregularities of the State, if any, for the grant of Hcence. And (iv), the refusal to consider the application affects the fundamental right of the petitioner to carry on trade and business. ,

Rejecting the contentions and dismissing the writ petitions,

HELD: (i) T)l(: classificatio'! of persons with reference o the. grant of import licence depending on whe!her it as .granted befor~ the. lberaton or .after !he liberation of Goa is a vahd class1ficat1011 based on mtelhgible differenha having a rational nexus with the object of import' licence policy. There is no violation of Art 14. The petitioner stands on a different footing and does not belong to the class of persons who were given import licences durini: the Portuguese Rule before liberation of Goa. [872 G-H]

(ii) The petitioner does not challenge the validity of paragraph 33(n) of the Hand Book of Rules of Procedure. There is no challenge to the authority of the Deputy Chief . Controller of Imports and Exports to pass an order in the light of paragraph 33(n) of the Hand Book. [873 C]

Really the petitioner's contention is that the licensing authorities misapplied or wrongly applied tiJe Imports and Exports Control, Act. A ptition under Art. 32 will not be competent to challenge any erroneous decision of an authority. [873 DJ

Gulabdas & Co. v. Assistant Collector of Customs, A.I.R. 1957 S.C. '/33, Sta:e of Jammu & Kashmir v. Mir Gulam Rasul, [1961] 3 S.C.R. 969, Smt. Ujfam Bai v Stale of U J°., [1963] I S.C.R. 778 and Bhatnagars & Co. Ltd. v. Union

ol India, [1957] S.C.R. 701 at 712, relied on.

Parliament has'power under Art. 246( 4) to make laws with respect to any Union Territory. The executive power of the Union under Art. 73 (1)(a) shall extend to the matters with respect to which Parliament has power to make laws.

The Union Government has. therefore, power to issue executive directions to the Administrator of a Union Territory. So long as there is no conflict between a direction issued by the Central Governmeut and a Presidential Regulation made under Art. 240, the Administrator of a Union Territory is bound to carry out the orders and directions given by the Central Government. [875 G-H]

Shamsher Singh v. Stale of Punjab & Anr., A.LR. 1974 S.C. 2192, referred to.

There is no particular statute or Portuguese law which confers any right on the petitioner to get an import Hcence in the circumstances in which it was issued to him. Even if pre-liberation laws continued to be in force with effect from 5 March, 1962 that would not take away power of the Central Government to modify or alter the pre-existing procedure for issuing import licences, after liberation, in exercise of its executive .l)Owers under Art. 73(1) of the Constitution. [876 DJ

(iii) Section 3 and 4 of the Goa, Daman and Diu (Administration) Ordinance No. 2 of 1961 and Section 4 an!f 5 of the Goa, Daman and Diu (Administration) Act No. 1 of 1962 do not support the case of the petitioner. These provisions io the Ordinance and the Act came into force on 5 March. 1962. The import licence was issued on 12 February, 1962 which is prior to the coming into force of the provisions of the Ordinance and the Act. After the liberation of Goa the

Portuguese laws were not in force and, therefore, the petitioner cannot take recourse to the Portuguese laws for the validity of the licence which was issued on 12 Februar.v. 1962. The Chief Civil Administrator was subordinate authority to the Government of India and was bound to obey the directions of the Central Government. The Chief Civil Administrator had no authority to issue a licence m disregard of the directions of the Central Government. Such a licence would not confer any right on the petitioner. [874 C-E]

The petitioner cannot draw any sustenance either from section 7 of the Ordinance or section 9 of the Act for three reasons.

First, the scope of validation is limited to such acts which were done in good faith and with the reasonable belief that they were necessary for peace and good Government. The licence was issued in contravention of lawful dLrections given by the Government of India. The licence was not issued in good faith or in a reasonable belief that

they were necessary for the peace and good Government of Goa, Daman and Diu. Second, the validation was not intended to protect breaches of directions

:ssued by the new sovereign. [874 E-G]

Pam~ Chi bar v. Union of India, (1966] 1 S.C.R. 357, referred to.

Third, in the year 1967 the Government of India laid down the conditions that imports m'ade under licences issued through inadvertence or mistake in the past would not be considered for issuing the import quota certificate. This is a matter of polky. The policy decision is also not challenged by the petitioner.

If the policy is followed and in a given case a licence was issued contrary to the procedure or by mistake or inadvertence the decision in the year 1968 in the light of the. policy enunciated in 1967 cannot be regarded. erroneous simply on the ground that the original licence erroneously issued in 1962 might be validated under s. 7 of the Ordinance. [874 H-875 BJ

Revalidation was in violation of the terms and conditions set out by the Chief Civil Administrator in his Press Note dated 2 April. 1962. It is not correct to say that the Chief Civil Administrator revalidated the licence dated 12 February 1962 on 28 May, 1962. The Chief Civil Administrator merely extended. the validity of the licence for a further period of 90 days. It is not a case of revalidation of a defective licence but a case of extension of the duration of the licence. [875 C-D]

(iv) No mat1:rials were shown to establish that the original concern was I.\ A regular registered importer, That apart, no person can on the basis of a policr

stakment claim a right to the grant of an import licence.

This Court has held that there is no absolute right much less a fwidamental right, to the grant of an import licence. In the present case, there is no misconstruction of any i, tatulory provbion. It cannot be said that there is no authority of law to reject

an application for import licence. [876 E-E; 877 C-E]

Smt. Ujjam Bai v. Stae of U.P., [1963] J SCR 778, M js. A11dhra Industrial B Works v. C/1ief Controller of Imports and Others, AIR 1974, SC 1539, and Deputy Asofawnt Iron and Stee! Cont.roller v.

L. Manickchand, Proprietor, Kuoclla Met<!l Corporation, Madras, [1972] 3 SCR I, relied on.

Tata Iron and Steel Co. Ltd. v. S. R. Sarkar, [1961] 1 SCR 379, K. T. Moopil Nair v. The Stare of Kera/a, [1961] 3 SCR 77, Shri Madan/al Arora v. 1 he Excise and Taxation, Officer, [1962] 1 SCR 823, referred to.

ORIGINAL JURISDICTION : Writ Petition No. 615 of 1970. c

Petition under Art. 32 of the Constitution of India.

Y. S. Chitale, H. N. Ramachandra and B. R. Aganwria, petitioners.

P. f .. Rao and S. P. Nayar, for the respondents.

The Ju:igment of the Court was delivered by

for the

RA[Y., C. J.--This writ petition is for a mandamus directing the

r:spondents to cancel for orders mentioned in the petition and to issue quota certificate to the petitioners in respect of their past irniports.

The petitioners are a partnership firm.

The petitioners are E successors to J. Fernandes & Compa•11y of, which Joshino Fernandes was the sole proprietor, hereinafter referred to as the original concern.

In the month of October, 1961 the original concern booked orJcrs for purchase of Surveyi1,1g & Mathematical Instrume11ts and Surgical & Scientific Instruments with a German firm.

The orders were accepted by the German firm, as will appear from the letter F dated 7 November, 1961.

On 19/20 December, 1961 Go>a was liberated.

Prior to the liberation of Goa import licences were granted to the citizens of Goa by a Government Department known as "Junta do Comercio Externo" which means the Board of External Trade.

The original concern is alleged to be an importer registered with the Junta priior G to the month of December, 1961.

After the liberation of Goa the representatives of Goa Chamber of Commerce and Industry saw the Administrator of Goa wiith regard to applications for import.

On 18 January, 1962 the original concern applied to the Administrator of Goa for issuing an import licence for £ 32,652.10 for Surveying anJ Mathematical Instruments and Surgical and Laboratory Equipments, along with necessary papers for firm commitments.

The original concern obtained a licence on 12 February, 1962.

Thi~ licence was No. 47. The original concern was allowed to import

J, EERNANDES & CO. V. DY. CHIEF CONTROLLER (Ray, C.J.) 871

instruments, microscopes, laboratory apparatus and utensils all worth £32,652-10-0. The original concern opened a letter of credit on 21 February, 1962 for 50 per cent of the licence.

The Central Government on 21 February, 1962 informed the Administrator, Goa, that the Central Govem.ment withheld action on all pending cases where import had been authorised. The Central Government gave two reasons.

First, the Government were of the view that any relaxation o~ import would result in serious drain on foreign exchange, and second that it was difficult for any :;.uthority to be satisfied about the firm commitments and some abuse was possible.

Pursuant thereto. the Administrator, Goa issued direcfrons to suspend issue of letter of credit and all cases relating to firm commitments entered into before 18 December, 1961 which were till then, not disposed of, should be frozen.

On 2 April, 1962 the Administrator of Goa issued a Press Note that imports into Goa, Daman and Diu would be governeJ by three principles. First, import would be allowed in cases (a) where letters of credits had been opened with the Banco National Ultra Marines 01,1 or before 18 December, 1961; (b) where go'Ods were shipped on or before 20 December, 1961. Second, imports of certain specified items were banned.

Third, imports would be allowed of certain goods to the extent of 50 per cent of imports actually made in the quarter of September, Octuber and November, .1961.

The petitioner's licence No. 47 was revalidated on 28 May, 1962 for £ 16,000 for which the petitioner had not till then opened letter of credit. 27 February, 1962 is the date when the Administrator of Goa had suspended to issue fresh letter of credit.

In the month of July, 1962 the petitioner effected imports of goods for the full value.

The Imports and Exports Control Act, 1947 was applied to Goa, Daman & Diu from 1 Octber, 1963.

F In October, 1964 the original concern was mken over by the

petitioner.

In 1967 the Hand Book for the year 1967 declared the peri'od 1 April, 1961 to 31 March, 1966 as the bask period and any one year during the period could be selected as the basic import by the concerned party who would become the established importers.

On 15 May, 1967 the petitioner applied to the licensing authorities for recognising the change in the constitution of the firm and fixation of quota for which they could import the goods. The Iicens-. ing authorities recognised the change in the constitution but refused to fix the quota on the ground that the original licence No. 47 granted to the original concern on 12 February, 1962 was not issued h1 accordance with the procedure followed for the issue of licence at that time.

The petitioner filed an appeal against the order.

The appeal was rejected.

The petitioner filed a review application which was rejected.

The petitioner's grievances are these: First, licence No. 47 d'ated 12 February, 1962 was a licence issued in accordance with the proc; edure followed for the issue of licence at that time.

The directions of the Central Government were illegal.

The Central Government was not competent to issue directions to the Administrator of Goa except through the President in view of Articles 239 and 240 of the Constitution.

Second, the provisions of the Goa, Daman, Diu Administration Ordinance No. 2 of 1961, hereinafter referred to as lthe Ordinance and Goa, Daman, Diu Administration Act 1 0£ 1962 hereinafter referred to as the Act cured all irregularities of the State, li! any, for the grant of licence. Third, refusal to consider the applicat10n affects the fundamental right of the petitioner to carry ota trade and. buiness. Fourth, the petitioner's fundamental right under Article

1_4 1s v1lated because the responde_nts discriminated against the petitroner. fhe respondents granted hcences to six parties. It is said that the conditions, namely, shipping . before 20 December 1961 and opening of letters of credit before 18 December 1961 'could only operate in respect of licences issued by the Portu'guese Government.

When by reason of policy, hese were the conditions applied, the same should have been applied even to those who were given licences under the old laws by the Portuguese Government or those who were given licences by the AJministrator of Go:1 under the operation of the old laws.

There is no distinction between the cases of the petitioner and the case of six traders mentioned in Annexure R-4 at page 169.

The contention of the petitioner tlrnt six traders have been granted licences whereas the petitioner was not, and, there was violation under Article 14 is unacceptable.

These six licences were issued before liberatio!l between the period 12 February, 1961 and 4 December, 1961.

TI1c six licences were issued prior to the liberation of Goa.

The liberation 'Of Goa was on 19 December, 1961.

On 20 December, 1961 Goa became a Union Territory.

The licence on which the petitioner bases the claim was dated 12 February, 1962.

The petitioner was not admittedly issued any licence before the liberation of Goa.

Between the liberation of Goa and the application of the petitioner for licence, the Government of India issued on 3 January, 1962 to the Chief Civil Administrator, Goa certain directions regarding the issue of import licence.

The original concern had not opened letter of credit before 18 December, 1961 and the goods in question were not shipped prior to 20 December, 1961.

The application of the petitioner was subsequent to the issue of directions dated 3 January, 1962 by the G.:ivernment of India that imports would be allowed if letter of credit had been opened before 18 December, 1961 or shipment had taken place before 20 December, 1961.

The classification of per:; ons with reference to the grant of import licence depending on whether it was granted before the liberation or after the liberation of Goa is a valid classification based on intelligible differentia having a rational nexus with the object of import licence policy.

There is no violation of' Article 14. 'The petitioner stands on a different footing and docs not belong to the class of pers:ons who were given import lic:ences during the Portuguese Rule before the liberation of Goa.

The petitioner challenges the orders doate~ 28 September, 196~ rejecting the petitioner's applicati?n for the issue of quota certificate.

The Government rejected rt on the ground that hcence No. 4 7 dated 12 February, 1962 was not issued in acc?rdance with the procedure prescribed for issue of licences, at that time. The Government relied on paragraph 33 (n ) of the Hand Book ?f Rules, 1968. In shor.t, that paragraph is that licence would be given only for the ?as1c period between 1 April 1961 and 31 March, 1966 to establlshe<l importers. The Governrhent took. th~ stand tat the titioner is not eligible because there was , no valid hcence. fhe petitioner does not challenge the validity of any provision of the Imports and Bports

(Control) Act, 194 7, oc any provision of any statutory. orders issued thereunder.

The petitioner does not challenge the vahd1ty of para graph 33 (n) of the Hand Book of Rules of Procedure. There is no challenge to the authority of the Deputy Chief Controller of Imports and Exports to pass an .order in the light of paragraph 33(n) of the Hand Book.

Reoally, the petitioner's contention is that the licensing authorities misapplied or wrongly applied the Imports and Exports Ce1,1trol Act.

A petition under Article 32 will not be competent to challenge any erroneous decision of an authority. (See Gulabdas & Co. v. Assistant Collector of Customs(!) and State of Jammu & Kashmir v. Mh Gulam Rasul). (2) A wrong application of Jaw would not amount to a violation of fundame\1tal right.

Das, C.J. said in the case of Gulabdas & Co. (supm) that ; f the provisions of Jaw are good and the orders passed are within the jurisdiction of the authorities there is no infraction of fundamental right if the authorities are right or wrong on facts.

In the case of Gulabdas & Co. (supra) the petitioners challenged the order of the Assistant Collector of Customs.

The Customs authorities assessed duty under Item 45 ( 4) of the Indiaf,1 Customs Tariff.

The petitioners in that case contended that the duty should have been assessed under Item 45 (a). This Court held that there was neither any violation of fundamental right under Article 19 or any unequal treatment and the petition was not maintainable. This Comt in the case of Smt. Ujjam Bai v. State of U.P.( 3) as also in the case of Bhatnagars & Co. Ltd. v. Union of India,(4 ) held the same view that any erroneous decision would not be a violation of fundamental rights ..

The petitioner relied 01,1 sections 3, 4 and 7 of the Goa, Daman & Diu (Administration) Ordinance 1962. Section 3 of the Ordinance G in short stated that authorities who immediately before the commencement of this Ordin•ance were exercising lawful fu 1.1ctions in connection with the Administratio11 of Goa, Daman and Diu or any part thcreofl shall, unless otherwise directed continue to exercise in connection with such administration thei't' respective functions. Section 4 or the Ordinance speaks of continuance of existi'ng laws and their adaptation l H until amended or repealed by a competent legislature. Section 7 says -ihat all things done and all actions taken on or 11.fter the appointed day

(I) A.l.R. 1957 S.C. 733.

(3) [1963] l S.C.R. 778.

(4) [1957] S.C.R. 701 at 712.

which was 20 December, 1961 and before the commencement of the on: nance, viz., 5 March, 1962 by the Administrator. or any other

offkcr which have been done or taken in good faith and in a reasonable belief that they were necessary for the peace and good Government of Goa, Daman and Diu, shall be as valid and operative as if they had been done or taken in accordance with Jaw.

The petitio~1er also relied on sections 4, 5 and 9 of the Act. Section 4 speaks of officers who before the commencement of the Act were exercising lawful functions would continue to exercise their rnspective functions.

Section 5 of the Act speaks of continuance of existing. laws and their adaptation until a.mended or altered by the competent Legislature.

Sectioi.1 9 of the Act speak~ of validation of ce:rtam action and indemnity of officers for certain acts similar to section 7 of. the Ordina.nce ..

Sections 3 and 4 of the Goa, Daman and Diu (Administration) Ordianance No. 2 of 1961 and Sections 4 and 5 of the Goa, Dama1,1 and Diu (Administration) Act No.1 of 1962 do not support the case of the petitioner. These provisions in the Ordinance and the Act came into force on 5 March, 1962. The import licence was i1:sued on 12 Febmary, 1962 which is prior to the comi'ng into force of the provisions of the Ordinance and the Act. After the liberation of Goa the Portuguese laws were not in force and, therefore, the petitioner cannot take recourse to the Portuguese laws for the validity of the licence which was issued en 12 February, 1962. The Chief Civil Administrator was subordinate authority to the Government of India a.nd was boirad to obey the directions of the Central Government. The Chief Civil Administrator had no authority to issue a licence in disregard of the directions of the Central Government.

Such a Iicenct~ would not confer any right on the petitioner (See State of Punjab v. Jagdip Sm&h) ((I).

The petitioner cannot draw a'ay sustenance either from section 7 of th~ Ordinance or section 9 of the Act for three reasons. First, the scope of validation is limited to such acts which were done in good faith and with the reasonable belief that they were necessary for peace and good Government. The licence was issued in cO'ntravention of lawful directions given by the Government. of India.

The licence was not issued in good faith or in a reasonable belief that the:y were necessary for the peace and good Government of Goa, Dama~1 and Diu.

Second, the validation was not intended to protect breaches of directions issued by the new soveeign. (See Pama Chibar v. Union of India) (2).

If the licence dated 12 February, 1962 was validated by section 7 of the Ordinance that validatida would be an answer to any move on the part of the responde11ts to cancel that particular licence.

What was deemed to be valid by legal fiction for a certain purpose, notwithstanding the infirmity in granting it, cannot confer any right ml the petitioner to claim in future as a matter of right, any import quota.

The validation would be only in respect of past transactions.

Third, in the year 1967 the Govemment of India laid down the conditions that imports made under licences issued through inadvertence or mistake in the past would not be considered for issuing the import quota l.!ertificate.

This is a matter of policy.

Normally, courts do not go into such policy decision.

The policy decision is also not challenged by the petitioner.

If the policy is followed and in a given case a liceace was issued contrary to the procedure or by mistake or inadvertence, the decision in the year 1968 in the light of the policy enunciated in 1967 cannot be regarded erroneous simply on the ground that the original licence erroneously issued in 1962 might be validated under section 7 of the Ordinance.

A1,1y revalidation of the licence on 28 May, 1962 by the Administra tor would not assist the petitioner in regard to obtait1ing CjUOla dghto;.

On 12 April, 1962 the Administrator himself issued a Press Note specifying the conditions subject to which imports would be allowed. • Revalidation was in violation of the terms and conditions set out by the Chief Civil Administrator in his Press Note dated 2 April, 1962.

It is not correct to say that the Chief Civil Administrator revalidated the licence dated 12 February, 1962 on 28. May, 1962. The Chief Civil Admi~1istrator merely extended the validity of the licence for a further period of 90 days.

It is not a case of revalidation of a dfec tive licence but a case of extension of the duration of the licence. If the original licence was defective mere extension of the duratio1a of the licence could not cure the defect.

In any event, the protection, if any, of the validating section in the Ordinance would not extend beyond 4 March, 1962 because the acts validated u'nder section 7 of the Ordinance must have been done between 20 December, 1961 and 4 March, 1962.

The directions issued by the Central Government 'are impeached by the petitioner to be in violation of Articles 239 and 240 of the Constitution.

Under Article 1 (3) (c) of the Constitution, Goa, Daman and Diu became part of the territory of India by acquisition.

Goa, Daman and Diu became a Union Territory on and from the date of their acquisition by the Government of India.

Under Article 239 ( 1) a Union Territory shall be administered by the President acting through an Administrator.

Article 240 empowers the President to make regulations for the peace, progress and good Government of the l~ 1nion Territory. In the present case no Presidential Regulation was relied on by either side.

Parliament has power under Article 246 ( 4) to make laws with respect to any Union Territory. The executive power of the Union under Article 73 (1) (a) shall extend to the matters with respect to which Parliame'nt has power to make laws.

The Union Government has, therefore, power to issue executive directions to the Administrator of a Union Territory.

So long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation made under Article 240, the Administrator of a Union Territory is boul1d to carry out the orders and directions given by the Central Government.

The decision of this Court in Shamsher Singh v. State

of Punjab & Anr.(I) is that the powers conferred on the Prsident by Article 239 are to be exercised by him on the aid and advice of the Cabinet. Therefore, the directions issued by the Central Government are valid because of the combined effect of Article 73 and Atricle 246 which CO'a.fers power on the Union executive to exercise powers in respect of matters with respect to which Parliament has competence to make laws.

ln the present case, ihe Chief Civil Administrator himself declared in a Press Note dated 2 April, 1962 the terms and conditions subject to which import licence would be grante.d .. The alleged revalidation of licence No. 47 in the month of May, 1962 took place subsequent to

tle Press Note a.nd contrary to the terms and conditions. It was really not a revalidation of the licence but an extension of the period, If the licence itself was defective, there could not be any validation of the licence as was c:ontended for by the petitioner.

There is no par1:icular statute or Portuguese law which confers a!ay right on the petitioner to get an import licence in the circumstanies . in which it was issued to him. Even if pre-liberation laws continued

to be in force with effect from 5 March, 1962 that would not take D away power of the Central Government to modify or alter the preexisting procedure for issuing import licences, after liberation, in exercise of its exei::utive powers under Article 73 (1) of the Constituti<Jl11.

The: petitioner contended that the original concerh was an importer registered with t:he Ju1ata prior to December, 1961. The respondents denied th•at allegation. The petitioner in the rejoinder alleged that it is

J<: to be presumed that the original importer must have been registered wiith the Ju'nta, prior to the liberation. No materials were shown to establish that thi~ original concern was a regular registered importer.

The contu1tion on behalf of the respondents that tbe licence was issued without following the regular procedure and by inadvertence or misrake is borne by the facts and circumstances of the case particularly because the Chief Civil Administrator had no authority to issue a11y import F licences in contravention of the directions of the Central Government issued on 3 January, 1962.

The petitioner relied on the decision of this Court in M/s. Andhra Industrial Works v. Chief Controller of Imports and others(2) in support of t_he proposition appearing at page 1542 of the Report. The proposition stated there in that one of the instances in relation to laws G regulating the citizen's right to carry on trade or business guarantef:d by Article l 9(1) (g) may be catalogued as where the impugned acticin. is based on a misconstruction of the intra vires statute or is so contrary to the established procedure or rules of natural justice that it resul:ts in violation of •,1 fundamental right.

In the case of M /s. A ndhra Industrial Works (supra) the proposition which was extracted from

Ujjmnhai's case (supra) is that an order of assessment made by an . authority under a taxing statute which is intra vires, cMnot be challeng- H ed under Article 32 as repugnant to Article 19(1) (g) on the sol~

(l) A.LR.1974 S.C. 2192.

(2)A.I.R. 1974 S.C. 1539,

ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder. fa Ujjambai's case (supra) it was said that when assessment proceedings are repugnant to rules of natural justice there is an infringement of the right guaranteed under Article 19 (1 )(f) and 19 (1 )(g). In support of that proposition reference was .made to Tata lrO, n and Steel Co. Ltd. v. S. R. Sarkar('), K. T. Moopil Nair v. The State of Kerala( 2 ) and Shn Madan. lal Arora v. The Excise and Taxation Officer(8 ).

In the case of Andhra Industrial Works (supra) an objectfon was raised on behalf of the resondents that the petition was not compe tent because there was no violation of fundame111tal rights. This Court upheld that objection and said that neither the Imports and Exports (Control) Act nor any order thereunder was alleged to be ultra vires nor was the Import Control Policy impeached. A policy statement was held to be not a statutory document. No person can dn. the basis of a policy statement claim a right to the grant of an import licence.

This Court. also held that there is no absolute right much less a fundamental right, to the grant of an import licence.

This Court in Deputy Assistant Iron and Steel Controller v. L Manickchand, Proprietor, Katrella Metal Corporation, Madras(') held that no one has any vested right to an import licence in terms of the policy in force at the time of his application. There is no misconstrue tion of any statutory provision in the present case. In the present case, it cannot be said that there is no authority of law to reject an application for import licence.

For these reasons, the petition fails and is dismissed. Parties will pay and bear their own costs.

V.M.K.

(3) [196211 S.C.R. 823.

Petition dismissed.

(4) [197l] 3 S.C.R. 1.

D

J. FERNANDES & CO

A. N. RAY

K. K. MATHEW, J.

Articles 73(l)

Constitution of India

Ss. 3, 4 and 7

Goa, Daman and Diu (Administration) Act

Ss. 4, 5

and 9

Article 19(1)

J .. Fernandes & Comriany

Joshino Fernandes

7th November, 191!1

19/20 December, 1961

18 Ja.nunry, 1962

Goa

12 February,

1962

21 February, 1962

Central Government

18 December.

April 2, 1962

Daman

Diu

Banco National Ultra Marines

Cl 97

Imports and Exports Control Act, 1947

1 October, 1963

15 May, 1967

12 February, 1962

Art. 14

Arts. 239 and 240

Art 14

Art. 32

[1961] 3 S.C.R. 969

Art. 246( 4)

Art. 73

Parliament

Art. 240

5 March, 1962

Art. 73(1)

Section 3 and 4

Section 4

Goa, Daman and Diu (Administration) Act

5 March. 1962

12 Februar.v. 1962

Government of India

section 7

section 9

Diu

(1966] 1 S.C.R. 357

s. 7

[1961] 1 SCR 379

[1961] 3 SCR 77

[1962] 1 SCR 823

Art. 32

Constitution of India

Y. S. Chitale

H. N. Ramachandra

B. R. Aganwria

P. f .. Rao

S. P. Nayar

J. Fernandes

7 November, 1961

Go

Junta do Comercio Externo

Goa Chamber of Commerce and Industry

18 January, 1962

18 December, 1961

2 April, 1962

28 May, 1962

27 February, 1962

Imports and Exports Control Act, 1947

1 Octber, 1963

31 March, 1966

Articles 239 and 240

Diu Administration Ordinance

Diu Administration Act

Article

1

18 December 1961

Portu'guese Government

Article 14

20 December, 1961

3 January, 1962

India

Article 14

Article 32

Das

Gulabdas & Co.

Article 19

sections 3, 4 and 7

Section 3

Daman

Section 4

Section 7

sections 4, 5 and 9

Section 4

Section 5

section 7

Sections 3 and 4

Sections 4 and 5

12 Febmary, 1962

section 7

section 9

section 7

Govemment of India

section 7

28. May, 1962

4 March, 1962

section 7

Articles 239 and 240

Article 1

Daman

Article 239

Article 240

Article 246

Article 73

Article 240

Article 239

Article 73

Article 73

A ndhra Industrial Works

Ujjmnhai

Article 32

Article 19(1)

Article 19

Andhra Industrial Works


:8'.18

ANIL KUMAR CHOWDHURY

STATE OF ASSAM & OTHERS

March 7, 1975

[A. N. RAY, C. J., K. K. MATHEW AND V. R. KRISHNA IYER, JJ.]

l.A.S. (Appointment by promotion) Regulations, 1955-Rule 3(3) (b)--· Wiletiler holding posrs equivalent to cadre posr but not declared to be so sufficiq111 compliance with rule 3(3)(b)-Whe1her gap of one week breaks the continuity ill se.1vice.

'The pctitione!' joined Assam Civil Se!'Vlcc Class J i11 1949 nnd wa~ confirmed as 11uch in 19'7. lll 1961 he was included in the Select List prepared unde:r the provisions of the J.A.S. (Appointment by Promotion) Regu, lations, !95S.

He was admittedly functioning in senior posts equivulcnt to cadre posts reserved ior I.A.S. personnel right from the year 1960 till he was inducted in I.A.S. cadre except for a week's gap in ! 966.

The petitioner claims to be placed i11 the I.A.S. Gradation List above Serial No. 34 and not at rial No. 65 011 the ground that the srvkes rendered by him between 1960-67 should be taken into consideration for determining his real length of service.

Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 reads .as under:

"Rule 3 (3 )--The year of allotment of an Officer appointed to the service after the commencement of these rules shall be :

(b) Where the Office'r is appointed to the service by p:omotion in accordance with sub-rule ( 1) of Rule 8 of the Recruitment Rules, the yea.r

of allotment of the junior-most among the officers recruited to the service in accordance with rule 7 of these rules, who officiated contimw11sly in a senior post from a date earlier than the date of commencement of such officiation by th(: former.

Provided that th(: year of allotment of an officer appointed to the se, vice in accordance with sub-rule (1) of Rule 8 of the recruitment rules who sta:ie:l

offic.iating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the service in accordance with rule 7 of these rules, 60 started officiating, shall be determined ad hoc bv the Centn.l Government in consultation with the State Government concerned.

Provided further that an officer appointed to the service after the commencement of these rules i:n accordM'!ce with sub-rule (1) of rule 8 of the recruitment rules shall be deemed to have been officiating continuously i11 a senior post prior to date of inclusion of his name in the 'Select List' prepared in accordance with the requirenients of the Indian Administrative &rvice (Appointment by Promotion) Regulations framed under sub-rule (l) of rule 8 of the Recruitment Rules, if the pe,.iod of such officiation prior to that date is approved by the Centre[ Government in consultation with the Commission.

Explanation [.-The officer shall be deemed to haie officiated continuousl:v in a senior post from a certa;.n date if during the period from that date to the date of his Confirmation in the Senior Grade he continues to hold without any

break or reversion, a senior post otherwise than as a purely temporary or local arrangenzent."

The various posts held by the petitioner during the period 1960-67 were cadre posts rankwise. Those posts were not formally declared equivalent to cad'e posts as required by rule 3(3) (b). In effect some of the posts held by the petitioner du.ring the period in question were superior to the cadre posts. .

HELD : Although the petitioner has occupied responsible positions vis-a-vis cadre post. the formal requirements of rule 3 (3) (b) are basic to his claim for pre-dating his entry int0 the I.A.S.

Secondly, the rule requires as a condition

]<'

ANIL KUMAR v. NSSAM (Krishna Iyer, J.) 879

precedent that offbation must be in a particular post declared as cadre post by the State Governmeat with the approval of the Central Government. The argument that the declaration of the State Government must be inferred from the counter affidavit filed in this Court was negatived on the ground that the Gover;1m.en:s speak and act formally and in solemn writing and not informally.

Even 1f It is assumed that the State Government has made such a declaration in the C"tH1ter affidavit no such declaration has been approved by the Central

Gov,_rnmem as required. [883 D-E, G-H; 884 DJ

HE:L D FURTHER : The petitioner's officiation was not continuous since '.here w_n, gap of one week and that, therefore, the legal ingredient of 1:ontinulty

m s-:r\'Jr.c 1s not covered up. It was observed that this Court hopes that the Sta!e will have compassionate regard to the substantial fulfilment of the qualifi cu :ions for pre-datir, g petitioner's seniority in the J.A.S. when promotional prospects arise not because the petltioner has a right but because his past should not nltogether be lost. [884 DF]

ORIGINAL JURISDICTION': Writ Petition No. 379 of 1972.

Petition. Under Article 32 of the Constitution.

Sachin Choudhury, U. P. Singh, Sukumar Mitter and S. N. Chaudhry, for the Petitioner.

S. K. Nandy, for respondent No. 1.

L. N. Sinha, Solicitor General of India, P. P. Rao and Girish Chandra, for respondent No. 2.

D. N. Mukherjee and G. S. Chatterjee, for respondent Nos. 3, 4, 8, 9, 11, 12, 15, 19, 22, 26, 31 & 32.

The Judgment of the Court was delivered by-

KRISHN A IYER, J.-A senior civil servant of the Indian Administra. tive Service, brought In by promotion and borne on the cadre of the Assam St'ate (now of the joint cadre of Assam & Meghalaya), seeks, in this petition under Art. 32, redres cf alleged infraction of his fundamental right to equality under Art. 16, vis a vis certain direct r&ruits.

We will proceed to sea' the ca•e to see if, on the merits, this public servant has suffered a birr illeP,~1 blow by disminishing his length of service, that bdng the core of the controversy. For this reason, we are not disposed to rebuff the petitioner in limine on the preliminary objection urged by the learned Solicitor General To bar the processual doors of iustice like harsh judicial janitors-if one has a right to relief-is the reluctant refuge of a Court-and that at the instance of the State, at the final stage.

Stripped of details and in simplr, terms, the gravamen of the peti.: tioner's grievance is that while he is eligible to be placed above serial number 34 in the I.A.S. Gradation List (Ann{(ure F), he , has been illegally pitch-forked into serial number 65. His real length of service has been lopped off by denial of a considerable period ·pent in posts equivalent in status & responsibility to I.A.S. cadre posts and in violation of Rule 3(3) of the l.A.S. (Regulation of Seniority) Rules, 1954.

We will amplify this case and examine the alleged infraction of his right.

The story of the Indian Administrative Service, its genesis, the sources of recruitment and kindred matters have been delienated in some detail in a case where rule 3 ( 3) (b) aforesaid fell for consideration. That is R. P. Khanna v. S. A. F. Abbas('). We need not go ov1erJ the ground once again since the necessary rules and reguiatio:ns have been fully set out in that judgment so that we will conhue our selves to the specific provision that needs a close look.

The 1954 Cadre Rules defiiaed 'cadre post' to mean any of the po.sts. spccificd in item 1. of the Schedule to the. In. dian Adm.. inistrative Service (Fixation of Cadre Strength) Regulations.

Another ter:lll which crops up in the various rules is 'senior post' which means, ac,:ording to the Regulation of Seniority RuleR, 1954, a post includr.(l. and specified under item 1 of the Cadre of each State in the Schedule to the Fixation of Cadre Strength Regulations, 1955. The question of seniority as b1tween promotees and direct recruits is covered by . r. 3(3) (b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954. The crucial rule that is decisive may be extract€~ to facilitate further discussion :

"Rule 3(3)-The year of allotment of an Officer appointed to the service after the commencement of these rules shall be : * *

(b) Where the officer is appointed to the service by promotion iln accordance with sub-rule ( 1) of Rule 8 of the Recruitment Rules, the year of allotment of the junior most among the officers recruited to the service in acoord ance with rule 7 of these rules, who officiated continuously in a Senior Post from a date earlier than the date of commencement of such officiation by the former.

Provided that the year of allotment of an officer appointed to the service in accordance with sub-rule ( 1) of Rule 8 of the recruitment rules who started officiating continuously in a senior post from a date earlier than the date on which any of the Officers recruited to the service in accordance with rule 7 of these rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned.

Provided further that an officer appointed to the service after the commencement of these rules in accordance with sub-rule ( 1) of rule 8 of the recruitment rules shall be deemed to have been officiating continuously in a senior post prior to the date of inclusion of his name in the 'Select List' prepared in accordance with the requirements of the Indian Administrative Service (Appointmcr.t by Promotion) rcgu lations framed under sub-rule (i) of rule 8 of the recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission. ---------

(!) [1972] 3 S.C.R. 548.

ANIL KUMAR \', ,\ '1.\\l (Krp}llfa Iyer, ]. ) 88 1

Explanation J.--The officer sh.all be deemed to have 1)/jiciated continuously in a Senior Post from a cerrain date if during the perwd from that date to the date of his confirmation in the Senior Grade he continues to hotd without

any break or reversion, a Senior post otherwise than as a purely temporary or local arra11geme111."

(emphasis, Ol!fS) The four-fold components of the 'year of allotment formula' emer ging from the cumbrous rule are (a) the year of allotment of the juniormost amoag the officers recruited to the service by the direct method; (b) the year from when the claimant officer 'officiated con tinuously in a senior post from a date earlier than the date of commencement of like officiation by the juniormost direct recruit of the year; ( c) the promoteo shall be deemed to have been officiating continuously in a senior post even prior to his inclusion in the select list 'if the period of such officiation is approved by the Central Government in consultation with the (Union Public Service) Commission'; and

(d) the deemed continuous officiation in a senior post shall have its genesis on that date from which 'he continues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement'.

The applicant has thus four hurdles to surmount before he can link his prior officiating service and ante-date his baptism into the IAS category.

Back to the facts.

The petitioner came into the Assam Ovil Service, Class I, in 1949, was confirmed as such in 1957 and since th.an spiralled his way up to fill a set of responsible positions. By the end of 1961 he was included in the Select List prepared under the provisions of the I.A.S. (Appointment by Promotion) Regulation, 1955.

Although this officer was admittedly functioning in senioc positions equivalent to cadre posts reserved for IAS personnel, his actual induction into this coveted Indian Administrative Service took place only on February 1, 1967 and his confirmation therein, in the Senior Scale, only a year later. The dispute centres round the claim of the petitioner to credit for alleged continuous officiation in his offices, equivalent to cadre posts, while fixing his date of birth into this privileged All India Service.

His official horoscope and even post-rc'irement prospects will very much depend on the year of entry into this close IAS preserve.

The impressive set of posts occupied by the petitioner do credit to his claim, They begin with June 2, 1960 and run on without a break upto when he was regularly promoted into the . IAS except for a week's gap early in March 1966.

The contra-temps is that while rank-wise these offices are cadre posts whein the petitioner filled them, no declaration as demanded by the relevant rule 3(3)(b) had been made. This legal omission is being pressed into service y the Solicitor General to deny what i, n morality belongs to the petitioner.

The bone of contention is that these posts were not . formally declared equivalent to 'cadre posts'. with the Union Government's approval and service therein was insufficient to back the right set up.

[9.--564SCI/75

Moreover, there was an interregnum of a week when, on his own showing, he was not officiating in a cadre post. A miss is as good as a mile and continuity means con:iriuity.

The short hiatus destroy:> the credential for seniority accmnulated by long officiation.

We will deal with these submissions in opposition in the background of the~ relevant law.

The capacities in which the petitioner served Government sin~~ 1960 are catalogud by him and asserted to be 'factually equivalent to the post of Additional District Magistrate and in fact superior to that post'. The Additional District Magistrate's post is a cadre post reserved for IAS personnel.

The short issue here is whether legally these various posts were declared cadre posts. They were not.

We have no doubt that the petitioner has o<'.cupied responsibfo positions vis-a-vis cadre posts. Even so, the formal requirements of the rule just quote:d are basic to his claim for adding special antece- dent merit to pre-date his entry into the IAS. We may safely proceed on the facts affirmed in the counter-affidavit of the Union of India since no exception can ordinarily be, or has been, taken to that course.

Paragraph 3 .1 of that affidavit states :

"On a careful scrutiny of the relevant records, however, it is seen that the petitioner, Shri Anil Kumar Choudhary, was actually officiating in the non-cadre post of Additional Deputy Commissioner, United Mikar and North Cachar Hills and held the current charge of the post of Deputy Commissioner, Unite:d Mikar and North Cachar Hills. When the proposal for the appointment of Shri Ani.l Kumar Chou- . Jhary and the determination of his seniority was sent for the first time by the Government of Assam, under their No.

AAI/56/64 dated 1st June, 1966, the Government of Assam had indicated that Shri Anil Kumar Choudhary was holding the non-cadre post of Additional District Magistrate, United Mikar and North Cachar Hills with effect from 9-12-1964 to 3-3-1966. A copy of the proposal sent by them is given as Annexure S-II to this Supplementary Counter Affidavit.

Subsequently, the Government of Assam issued orders on 19th August 1966 appointing Shri Anil Kumar Choudhary retrospectively appointing the petitioner to officiate as Deputy Commissioner, United Mikar and North Cachar Hills, with effect from the 10th December, 1964 to the 2nd March, 1966.

A copy of the said order of the Government of Assam is exhibited as Annexure S-11 to this Supplementary Counter Affidavit."

The plain consequence of this denial is disastrous because the posts. he had occupied in the intervening years anterior to his appointment. as JAS officer are non-cadre posts and cannot, therefore, possess the. sanctity which officiation in cadre-posts may have.

Secondly, the rule requires. as a condition precedent. officiation in a particular post

ANIL KlJMAR v. ASSAM (Krishna Iyer, J.) . . 583.

declared as cadre post by the State Government plus approval thereof, by the Central Government. The affidavit on behlf of the Central . Government has categorically stated ths :

. "From the 9th March, 1966, till the date c.f his appointment to the Gervicc .hat is 1st Feb. 1967, he held non-cadre post of Chairman, Gauhati Development Authority and Liaison Offi:er, Industries. His officiation in the cadre post was not approved and his officiation in the ex cadre post was not counted for the purposes of his seniority because the ex cadre post of Chairman, Gauhati Development Authority and Liaison Officer, Industries was not declared equivalent to a Cadre post by.the State Government. Hence, the date of his appointment to the Service was the relevant date for the fixation of his seniority." · (emphasis, ours)

We have already pointed out-with reference to the rule in question that the declaration of equivalence has to be made by the State Government. Counsel for the petitioner rightly argues that such declaration can be made ex-post facto and there is authority of this Court for n that proposition vide R. P. Khanna's Case, (supra). However, Shri Sachin Choudhary is not able to pµt his finger on any specific declaration of equivalence 'made by the State Government except. to state that in the counter affidavit by the State Government there is a statement admitting the post of Additional District Magistrate and those · higher in rank claimed to have been occupied by the petitioner to be factually correct.

Super-added is the State's averment which goes in E substantiation of the petitioner's contention and may well be extracted : ,. ·, " ·· , , . "The posts mentiQned in sub:paras (i). to (v) are equivalent to cadre ; posts ·· of Additional District Magistrate . Deputy Secretary or Settlement Officer. The post mentioned in sub-para (vi) is a cadre.oost and the posts mentioned in . r: rnb-para (vii) were regarded in rank, statu., and resi>onsibi lity as above the cadre posts of Additiooal District Magistrate

and Deputy Secretary. These posts are equivalent to the cadre post of Deputv Commissioners or Heads of Departments post like Commissioner of Taxes and Registrar of Cooperative Societies of the I.A.S. Cadre."

Could there be a declaration without a formal notification to that effect? We think not.

Governments speak and act formally and in solemn writing, not informally. In the present case no formal declaration is found but the State Gover:iment is prepared to go to the extent of helpin~. the petitio'ler woth the Statement :-

"Formal declarations under Rule 9 of the J.A.S. (Pay) Rules, 1954. are not necessary when non cadre officers hold such rx cadre cu!v:tent posts."

 Shri Sa chin Chouclhory mes this :werme01t to rontend that the State Government'< affidavit may be treated as a formal declaration of

c-, quivalence but the difficulty is that there has been an amendment of the Rules in April 1967 whereby the power of the State Government to make retroactive declarations is deleted. Moreover, as the Solicitor General points out such declaratiom as is found to have been made

hy the State has reference to the Pay Rules and not the Seniority Rules which bear upon the present dispute.

Another impediment confronting the ur.fortunatc petiticmer is that the proviso to Rule 3(3)(b) requires not merely the State Government's declaration regarding the p:>sts being equal to cadre post but such officiation must be with the appro; ral of the Central Government: none such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Government. The Solicitor General not content with these vitai flaws points out two more shortcomings. In his submission, some of the posts occupied by the petitioner were pure-- ly temporary and this is testified by the record. And so such shortterm ad hoc officiation is insufficient. . Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March, 9, 1966. Contilnuity once disrupted, the claim breaks down.

Service for long years comes to nought me1-ely because of a we,::-k's discontinuity. In law a short gap may prove a costly failure.

The plea that this little interval was bridged by the joining time taken by the official may be good as an explanation for not taking charge immediately, but cannot cover up the legal ingredient of continuity in iervice.

True, on account of certain formal non-conformance with the strictness of the rules, the petitioner loses the battle, but we hope the State will fyave compassionate regard to the substantial fulfilment of the qualifications for pre-dating his seniority in the IAS the r111les predicate.

The long but unavailing officiating experience of the petitioner may judiciously be taken into account by the State when promotional prospects arise, is not because the petitioner has a r.fght

hut becaust! his past should not altogether x lost.

The writ petition is dismissed.

Parties wil1 pay and bc•ar their own costs.

P.H.P.

Petition dismissed'.

18

ANIL KUMAR CHOWDHURY

STATE OF ASSAM & OTHERS

A. N. RAY

K. K. MATHEW

V. R. KRISHNA IYER, JJ.

Krishna Iyer

Central Government

Article 32

Sachin Choudhury

U. P. Singh

Sukumar Mitter

S. N. Chaudhry

S. K. Nandy

L. N. Sinha

P. P. Rao

Girish Chandra

D. N. Mukherjee

G. S. Chatterjee

KRISHN A IYER

Art. 32

Art. 16

Regulation of Seniority RuleR, 1954

[1972] 3 S.C.R. 548

ANIL KUMAR

Union Public Service) Commission

February 1, 1967

June 2, 1960

Union of India

Anil Kumar Choudhary

Ani.l Kumar Chou- . Jhary

Government of Assam

Anil Kumar Choudhary

R. P. Khanna

Sachin Choudhary

Sa chin Chouclhory

March 3, 1966

March, 9, 1966