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<s>[INST] Summarize the judgementCivil Appeals No. 2815 & 2816 of 1980. 110 Appeals by special leave from the Award dated the 3rd September, 1980 of the National Industrial Tribunal at Bombay in Complaint No. NTB 2 and NTB 3 of 1980 arising out of Reference No. NTB 1 of 1979. WITH CIVIL APPEAL NO. 2607 of 1980 Appeal by special leave from the Award dated the 3rd Sept. 1980 passed by the National Industrial Tribunal, Bombay in Complaints Nos. NTB 2 & 3 of 1980 in Reference No. NTB 1 of 1979. AND CIVIL APPEAL NO. 3150 of 1980 Appeal by Special leave from the Award dated 3rd September, 1980 passed by the National Industrial Tribunal, Bombay in Complaints Nos. NTB 2 & 3 of 1980 in Reference No. NTB 1 of 1979. F.S. Nariman R.A. Shroff, H.S. Parihar and Shradul section Shroff, for the Appellant in CAS 2815 16/80, for Respondent No. 2 in CA. 2607/80 & for Respondent No. 1 in C.A. 3150/80. C. N. Murthy and P. P. Mittal for Respondent No. 1 in CA. 2815 16/80. M.K. Ramamurthy, P.S. Khera and S.K. Dawar, for RR 2 70 in CAS. 2815 16/80, for Respondent No. 3 in CA 2607/80 & for Respondent Nos. 3 & 40 67 in CA. 3150/80. K.K. Venugopal, C.N. Murthy and P.P. Mittal 1980 for the Appellants. A.K. Sen, A.K. Gupta, Brij Bhushan, N.P. Mahendra and Miss Renu Gupta, for the Appellants in CA. 3150/80. S.K. Bisaria for RR. 2 4 and 6 39 in CA. 3150/80. The Judgment of the Court was delivered by GUPTA, J. These are four appeals by special leave from an Award of the National Industrial Tribunal, Bombay, made on September 3, 1980 disposing of two complaints under section 33 A of the holding that the employer, 111 Reserve Bank of India, Bombay had changed to the prejudice of the complainants their conditions of service by modifying the existing scheme of promotion during the pendency of a reference before the Tribunal and had thereby contravened the provisions of section 33 (1) (a) of the Act. Civil Appeals 2815 and 2816 of 1980 have been preferred by the Reserve Bank of India, Bombay. In civil appeal 2607 of 1980 the appellants are some of the stenographers employed in the Bombay office of the Reserve Bank of India. The four appellants in civil appeal 3150 of 1980 are also employees of the Reserve Bank of India, Bombay, one of whom is a clerk grade I and the other three are officiating as staff officers grade A. How the appellants in Civil Appeals 2607 and 3150 are affected by the Award will appear from the facts stated below. The facts leading to the making of the complaints under section 33 A are as follows. On June 16, 1979 the Government of India, Ministry of Labour, in exercise of powers conferred by section 7B of the constituted a National Industrial Tribunal with headquarters at Bombay and referred to it for adjudication an industrial dispute existing between the Reserve Bank of India and their class III workmen. The dispute as described in the schedule to the order of reference related to "specific matters pertaining to class III workmen" enumerated in the schedule. The schedule listed 35 matters in all, item No. 12 of which is described as 'Promotion '. On May 13, 1972 appellant Reserve Bank of India, Bombay, had issued Administration Circular No. 8 introducing a revised scheme for promotion of employees as Staff Officers Grade A. This Circular No. 8 prescribed as a condition for promotion passing a test consisting of three papers on the following subjects: noting, drafting, precis & essay writing, (ii) Reserve Bank of India Act, and (iii) functions and working of the Reserve Bank of India. Candidates with less than 15 years ' service in class III cadre at the time of the test and who had not passed in the subjects 'Practice and Law of Banking ' and 'Book keeping and Accounts ' in Part I of the Institute of Bankers Examination were to appear and pass in an extra paper divided into two parts on the aforesaid two subjects. Candidates who had passed in either or both these subjects in part I of the Institute of Bankers Examination were exempted from appearing in the corresponding part or both parts of this paper. The circular further provided that an estimate of the vacancies anticipated to occur in each office during a 'panel year ' i. e. from September 1 to 112 August 31, was to be declared by the Bank in advance and the number of candidates in that office to be called for the test to fill the vacancies in that office was not to exceed twice the number of such vacancies. A candidate who had been unsuccessful in more than one test was to be treated as a repeater and the number of such repeaters sitting for a test would be in addition to the aforesaid number of candidates. An employee in the substantive rank of teller, stenographer grade II, stenographer grade I or personal assistant was eligible to appear in the test under this circular provided he had put in a minimum period of 15 years ' service in class III cadre. A further condition relating to these three types of employees, tellers, stenographers and personal assistants, was that they could be called to appear in the test only if a clerical candidate of the same length of service found a place within twice the number in the combined seniority list. The said three types of employees were required to pass both parts I and II of the Institute of Bankers examination, or if they were graduates, in part I only. Those of them who would pass the test were to be posted on the clerical desk for one year for acquiring experience and thereafter they were to be absorbed in the next list to be prepared on the result of the test succeeding the one in which they had passed. They were to rank in seniority below the juniormost successful candidate in the test in which they qualified. A further requirement was that the stenographers and personal assistants should have worked for at least 5 years as such; this condition was thought necessary because it was possible that some of them may have been employed as typists for some time. Feeling that the aforesaid circular No. 8 adversely affected them, the Stenographers filed a writ petition in the Andhra Pradesh High Court challenging the validity of the circular. The main grievance seems to have been that by the said Circular No. 8 they were placed en bloc below the clerks which made the chances of promotion so far as they were concerned illusory. The Andhra Pradesh High Court dismissed the writ petition with the following observations: ". .the clerks and the stenographers who have passed at the qualifying written examination do not acquire any right to promotion by merely being put in a panel. As observed by the Supreme Court in the case cited in Gangaram vs Union of India, A.I.R. 1970 S.C. 2178, the effect of passing at the qualifying examination is only 113 to remove a hurdle in their way for further promotions to the posts of staff officers, grade II. In the matter of actual promotion there is nothing illegal in the department promoting the clerks as a group in the first instance and postponing the promotions of the stenographers to a later stage. .It is urged on behalf of the petitioners that previous to the new scheme, the stenographers were placed at the top of the clerks en bloc and that they have now been brought to the bottom. This argument is based upon a misconception that the panel creates any rights. Hence nothing turns upon the place fixed in the panel". The High Court however made certain recommendations "to avoid frustration and dissatisfaction among the stenographers". It was suggested that "the Reserve Bank may frame suitable rules for fixing the seniority among the staff officers, grade II, on some rational and equitable principles, i.e., by length of service or marks obtained at the qualifying examination or by adopting a reasonable ratio between the two classes, so that the chances of further promotions for the stenographers may not be illusory". This judgment was delivered on March 5,1973. In the months of March and November, 1973 charters of demand were submitted respectively by the All India Reserve Bank Workers Organisation and the All India Reserve Bank Employees Association. The latter Association is the one which is recognised by the Bank. On January 23, 1976 by Administration Circular No. 5 the Bank modified Circular No. 8 to remedy the alleged adverse effect suffered by the stenographers as a result of Circular No. 8. On June 16, 1979 the order referring to the National Tribunal at Bombay the dispute between the Bank and the class III workmen was made. The All India Reserve Bank Employees Association filed a writ petition in the Calcutta High Court in July 1979 challenging this order of reference. The High Court at Calcutta issued an injunction restraining the National Tribunal from adjudicating on the reference until the writ petition was disposed of. A settlement was thereafter reached between the Bank and the All India Reserve Bank Employees Association and the injunction was vacated. On November 21, 1979 the Bank and the Association applied to the Tribunal jointly for making an award on the basis of the settlement. In the meantime on October, 10, 1979 the impugned Circular No. 6 was issued. The following changes were introduced by Circular 114 No. 6 in the scheme of promotion set out in Circular No. 8 relating to personal assistants, stenographers, tellers and the clerical staff: (1) The eligibility period so far as these three types are concerned was reduced from 15 years to 10 years service. (2) The condition requiring stenographers and personal assistants to put in 5 years service as such was dispensed with. (3) Their period of training on clerical desk was reduced from 1 year to six months. (4) They were to be fitted according to the length of their service in the panel for the year in which they passed the test and not in the next panel as before. (5) Those who are graduates among these three groups, even if they had not passed in all the subjects in part I of Indian Institute of Bankers examination, would be eligible for exemption from appearing in the additional paper on 'Practice and Law of Banking ' and 'Book keeping and accounts ' if they had passed in these two subjects in the said examination. (6) This benefit of exemption which was available to the clerical staff of 15 years ' standing previously was extended to those of them who had put in only 10 years service. The two complaints (complaint Nos. 2 and 3 of 1980) on which the impugned award has been made were filed respectively on July 22, 1980 and August 1, 1980. The complainants who were clerks grade I had passed the test in the panel year 1978 79 and were empanelled for promotion to the post of staff officer grade A. The grievance made in the two complaints is that the result of the changes introduced in the promotional scheme by Circular No. 6 relaxing for the stenographers and personal assistants the conditions they were required to satisfy to be able to sit for the test and permitting them to be fitted according to the length of their service in the panel for the year in which they had passed the test, was that many who could not have been considered for promotion in preference to the complainants had circular No. 8 been in force, would 115 now be entitled to a higher preference. According to the complainants the alterations made during the pendency of the reference before the National Tribunal amounted to changing their conditions of service to their prejudice in violation of section 33 (1) (a) of the . The complainants in complaint No. 2 of 1980 stated that if the alterations introduced by Circular No. 6 were allowed to continue "the chances of promotion would become bleak for them '; complainants in complaint No. 3 of 1980 also expressed a similar apprehension that as a result of the changes introduced "their chances of promotion would recede further and further". The appellants in civil appeal 2607 of 1980 who are stenographers acquired eligibility to appear in the qualifying test because of the modifications introduced in the existing scheme by Circular No. 6. All the four appellants in civil appeal 3150 of 1980 are from clerical cadre, three of whom are officiating as staff officers grade A; they are also beneficiaries of the relaxations made in the existing scheme by circular No. 6. The appellants in both these appeals are obviously affected by the Award allowing the complaints and declaring circular No. 6 as invalid. Section 33 (1) (a) prohibits the employer during the pendency of a proceeding in respect of an industrial dispute before a Labour Court or Tribunal or National Tribunal from altering to the prejudice of the workmen concerned in the dispute their existing conditions of service. Sub section (2) of section 33, however, permits the employer to alter the conditions of service in regard to any matter not connected with the dispute in accordance with the standing orders applicable to the workman concerned or in accordance with the terms of the contract between the employer and the workman. The right given to the employer under sub section (2) is subject to the condition laid down in sub section (3) of section 33 that the right can be exercised only with the express permission in writing of the authority before which the proceeding is pending. Section 33 A of the Act provides that where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention may make complaint in writing to such Labour Court, Tribunal or National Tribunal, and on receipt of such complaint the Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to it or pending before it in accordance with the provisions of the Act and submit its award to the appropriate government. Section 31 (1) of the Act provides for penalty for contravention of the provisions of section 33; an 116 employer found guilty of such contravention is punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both. In this case circular No. 6 was not introduced with the permission of the National Tribunal, Bombay, before which the reference was pending; to determine whether thereby the provisions of section 33 have been contravened, the question that requires to be answered is whether the alterations introduced by Circular No. 6 are connected with the dispute pending in reference before the National Tribunal. This again leads to the question, what was the dispute that was referred to the National Tribunal for adjudication? According to the complainants their promotional prospects were adversely affected by the impugned circular. Item 12 of the schedule annexed to the order of reference is described as 'Promotion '. Demand No. 19 in the charter of demands presented by the All India Reserve Bank Employees Association mentions 'Promotional avenues ' but, as the National Tribunal itself noticed, the matters specified under the head 'promotional avenues ' relate to the creation of more promotional posts and the upgrading of certain posts. Demand No. 19 does not thus relate to the promotional scheme in question. The impugned award also refers to demand No. 27 of the charter of demands submitted by the All India Reserve Bank Workers organisation. Demand No. 27 is described as 'Promotional Policy ' and all that is said in the charter of demands under this head is that the matter "should be discussed and finalised on the basis of pre requisites of promotional policy submitted in 1969". It is not therefore clear how demand No. 27 could have a connection with the promotional scheme set out in circular No. 6 issued in 1979. The award does not refer to the statements of claim filed on behalf of the workmen; it is likely that because of the order of injunction issued by the Calcutta High Court to which we have earlier referred, the unions representing the workmen were not able to file their statements of claim before the National Tribunal disposed of the complaints under section 33A. The Tribunal however held: " contemplates reference in wider terms than the actual item in dispute. Section 10 (IA) of the which provides for the appointment of the National Tribunal shows that the Central Government could form its opinion not only on the existing dispute but also on the apprehended dispute and the order of reference can cover not only the dispute but any matter appearing to be connected with or relevant to the dispute. In view of it, it cannot be said that when the item 'Promotion ' has been referred to 117 the Tribunal, it has the limitation of remaining in the frame work of the demand. the Tribunal has the jurisdiction to decide on the natural meaning of the words used in the item of reference. The item seems to have been deliberately stated in terms. it looks to be referring to the process involving promotions." Having said so the Tribunal added: "The extent of such process will have to be carefully defined because there is no dispute with the axiomatic principle that promotion is a matter in the discretion of the employer". It is difficult to follow the steps of reasoning in the extract from the award quoted above; it is also not clear how the view expressed therein helps in ascertaining what was the dispute referred to the Tribunal for adjudication. No one can deny that under section 10 (IA) the Central Government could refer to the National Tribunal an existing or an apprehended dispute; the order or reference in this case however shows that it was not an apprehended dispute but an industrial dispute that "exists between the employers in relation to the Reserve Bank of India and their class III workmen in respect of the matters specified in the schedule" annexed to the order which was referred to the Tribunal for adjudication. As section 10 (IA) expressly says, any matter appearing to be connected or relevant to the existing or apprehended dispute can also be referred to the National Tribunal for adjudication, but obviously unless it is determined what the dispute was that has been referred for adjudication, it is not possible to say whether a particular matter is connected with it. The Tribunal thought it unjust to restrict the meaning of the word 'promotion ' to what was suggested by the charters of demand and decided to give it its "natural meaning" which according to the Tribunal includes "the process involving promotion". The question however remains how did the Tribunal satisfy itself that when by the order of reference a specific matter, namely, 'promotion ' was referred to it for adjudication, it was implied that the word should be given a "natural meaning" in the sense in which the Tribunal understood it. We do not think it reasonable to suppose that the order of reference required the Tribunal to adjudicate on all possible matters relating to promotion. We therefore accept the contention of the appellants that the Tribunal should have defined the area of the dispute referred to it for adjudication before proceeding to consider whether the promotional scheme set out in Circular No. 6 could be said to be connected with that dispute. 118 Having reached this conclusion we should have sent the matter back to the National Tribunal for ascertaining the scope of the dispute referred to it for adjudication, if the assumption were correct that the alterations in the promotional scheme introduced by Circular No. 6 amounted to changing the conditions of service of the complainants; if not, remitting the matter to the Tribunal will be unnecessary. What Circular No. 6 did was to relax for stenographers and personal assistants the conditions they had to satisfy to be able to sit for the test. If they passed the test, they would get into the penal along with employees belonging to the clerical cadre who also had passed the test. Vacancies in the post of staff officer Grade A are filled by recruiting employees from the panel. The panel, it appears from the award, is a permanent one. How those who come out successful in the test are to be fitted in the panel has been stated earlier. The panel is made up of employees belonging to different cadres. It is difficult to see how alteration of the conditions of eligibility governing employees belonging to a particular cadre can amount to changing the conditions of service of employees who belonged to another cadre, assuming for the present that the said conditions were conditions of service. The changes introduced in respect of the stenographers and personal assistants may have an impact on the promotional prospects of employees from another cadre who are already in the panel or even of those who were expecting to be included in the panel, but it is not possible to agree that this would amount to changing their conditions of service. It is difficult to think of the conditions of service of an employee as including an implied right to prevent the employer from altering the conditions of service of other employees. In a given case such alteration may be inequitable, and a way may be found in the to redress the grievance of the employees affected thereby, but in this case the question is whether if amount to altering the condition of service of the complainants. In Reserve Bank of India vs N.C. Paliwal this Court upheld the validity of the combined seniority scheme introduced by the Reserve Bank for the clerical staff. The first paragraph of the head note to the report summarizes the facts on which challenge to the scheme was based: "At every centre of the Reserve Bank of India there were five departments, the General Department and four Specialised Departments. There was a separate 119 seniority list for the employees in each Department at each centre and confirmation and promotion of employees was only in the vacancies arising within their Department at each centre. There were two grades of clerks in each Department, namely, Grade I and Grade II. The pay scales of Grade I and Grade II clerks in all the departments were the same and their conditions of service were also identical. There was automatic promotion from Grade II to Grade I and when a clerk from Grade II was promoted to officiate in Grade I, he got an additional officiating allowance of Rs. 25/ per month. There were also several categories of non clerical posts in the General as well as Specialised Departments, and their pay scale was the same as that of Grade II clerks. In view of expanding activities in the Specialised Departments, there were greater opportunities for confirmation and promotion for employees in the Specialised Departments than in the General Department. This gave rise to dissatisfaction amongst employees in the General Department and they claimed equal opportunities by having a combined seniority list for all the clerks for confirmation and promotion. The Reserve Bank, sought to justify the separate seniority lists on the ground that the work in each department was of a special nature and inter transferability was undesirable and hard to achieve. As a result of the recommendation of the National Tribunal. however, the Reserve Bank introduced the Optee Scheme of 1965 as a first step towards equalization of opportunities. Under the scheme, the option to go over to the Specialised Departments was confined to confirmed Grade II clerks and officiating Grade I clerks in the General Department. If he exercised the option, he was eligible to be selected. If he was selected. he would be entitled to be absorbed only as Grade II clerk in one of the Specialised Departments with the result that if he was an officiating Grade I clerk in the General Department at the time of the exercise of the option, he would lose the benefit of officiation in Grade I in the General Department as also the monetary benefit of Rs. 25/ . His seniority in the cadre of Grade II clerks in the Specialised Department in which he was absorbed would be deter 120 mined on the basis of his length of service calculated from the date of his recruitment if he was a graduate when he joined service, or from the date of his graduation if he became a graduate whilst in service. It was argued in Paliwal 's case that the combined list was invalid because it discriminated against the petitioners vis a vis other grade II clerks who had opted under the optee Scheme of 1965. This Court held: "The contention of the petitioners was that some of the Grade II clerks who had opted under the optee Scheme of 1965 were promoted as Grade I Clerks, while the petitioners continued as Grade II Clerks and before their turn for promotion could arrive, the Combined Seniority Scheme was brought into force and that prejudicially affected their promotional opportunities and thus brought about unjust discrimination between persons belonging to the same class. This contention has no force and must be rejected. We have already discussed and shown that it was competent to the Reserve Bank to introduce the Combined Seniority Scheme for the purpose of integrating the clerical staff in all the departments and the Reserve Bank was not bound to wait until all the transferee Grade II Clerks under the optee Scheme of 1965 were promoted as Grade I Clerks in their respective Specialised Departments. There was no such assurance given by the Reserve Bank when it introduced the optee Scheme of 1965. What it did was merely to equalise the opportunities of Grade II Clerks in the General Departments with those of Grade II Clerks in the Specialised Departments. The Reserve Bank did not undertake that it will not take any steps for bringing about total integration of the Clerical services until all the transferee Grade II Clerks were promoted. The Reserve Bank was entitled to introduce the Combined Seniority Scheme at any time it thought fit and the validity of the Combined Seniority Scheme cannot be assailed on the ground that it was introduced at a time when some of the transferee Grade II Clerks still remained to be promoted and was discriminatory 121 against them. It may be that some transferee Grade II Clerks had already obtained promotion as Grade I Clerks by the time the Combined Seniority Scheme was introduced, while others like the petitioners had not. But that cannot be helped. It is all part of the incidence of service and in law, no grievance can be made against it." These observations in Paliwal 's case are equally applicable to the case before us. It was competent for the Bank to introduce a combined promotional scheme for the clerical staff, stenographers, and personal assistants and the Bank was not bound to wait until all employees belonging to the clerical cadre whose names were already in the panel when circular No. 6 was introduced had been promoted as staff officers Grade A. There was no such assurance given by the Bank when it introduced circular No. 8 on which the complainants rely. The Bank did not undertake that it would not take any step to change the conditions the stenographers and the personal assistants were required to satisfy to be able to appear in the test until all the clerks already empanelled were promoted. Circular No. 6 cannot therefore be assailed on the ground that it was introduced when some employees belonging to the clerical grade whose names were already in the panel remained to be promoted. That cannot be helped, and, as observed in Paliwal 's case, "it is all part of the incidence of service and in law no grievance can be made against it". Being in the panel in any particular year does not ensure a fixed place in the panel for an employee until he is promoted. It may be recalled that in 1964 and again by circular No. 8 in 1972 the stenographers conditions of service were altered to their prejudice. The right the complainants now claim is based on the change in the conditions of service of the stenographers made to their detriment earlier. The grievance of the complainants really relates to the changes affecting their chances of promotion. We have earlier quoted from the charters of demand to show that the complainants themselves looked upon the alterations made by circular No. 6 as affecting their "chances of promotion". It is well settled that a rule which affects the promotion of a person relates to his condition of service but this is not so if what is affected is a chance of 122 promotion only. This Court in Mohd. Shujat Ali and others etc. vs Union of India & Ors. etc. held: "But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion the latter would certainly not be a condition of service. that though a right to be considered for promotion is a condition of service, mere chances of promotion are not." In Shujat Ali 's case the respondents went down in seniority and it was urged that this affected their chances of promotion. In Shujat Ali reference was made to earlier decision of this Court, State of Mysore vs G.B. Purohit where also it was held that though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service. The facts of Purohit 's case and what was decided in that case have been summarized in Shujat Ali 's case as follows: "What happened in State of Mysore vs G.B. Purohit was that the districtwise seniority of Sanitary Inspectors was changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected. This contention was negatived and Wanchoo J., as he then was, speaking on behalf of this Court observed: It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. " The fact that as a result of the changes made by circular No. 6 the complainants lost a few places in the panel affects their chances of promotion but not the right to be considered for promotion. 123 that being so, it cannot be said that the alterations made by circular No. 6 amount to changing the conditions of service of the complainants; the grievance made by the complainants does not therefore appear to have any basis. The appeals are accordingly allowed and the complaints dismissed, in the circumstances of the case the parties will bear their own costs. V.D.K. Appeals allowed. [/INST]The Aviation Research Centre was a temporary and ad hoc organisation set up in 1962 for carrying out the work of collecting intelligence by the use of highly sophisticated techniques. For manning this Task Force, persons with experience in the specialised nature of the work were taken on deputation basis from different sources, such as the Intelligence Bureau, the Departments of Defence Science, Wireless Planning 'and Coordination, the Directorate General of Civil Aviation and the Police Cadres of different States and they were grouped together to form the ARC. To supplement the man power some persons were also directly recruited to the organisation on a purely ad hoc basis. The ARC organisation was initially treated as an extension of the Intelligence Bureau. In February 1965, it was brought under the control of the Director General of Security. The administrative control over the organisation which was originally vested in the Ministry of External Affairs and later with the Prime Minister 's Secretariat was transferred to the Cabinet Secretariat in 1965. The sanction for continuance of the temporary organisation was accorded by the Government from year to year till the year 1971 when a decision was taken by the Government to make the ARC a permanent Department. The finalisation of the principles to be adopted for constitution of the new permanent Department took considerable time and it was only on April 26, 1976 that the President of India promulgated the Aviation Research Centre (Technical) Service Rules ]976 providing for tho constitution of a new service the Aviation Research Centre (Technical) Service. 876 Rule 6 of the said Rules dealt with the initial constitution of the new ARC permanent Service and provided that all persons holding, as on the appoint ed day, any one of the categories of posts specified in rule 4, whether in a permanent or temporary or officiating capacity or on deputation basis, shall be eligible for appointment to the service at the initial constitution thereof. Rule 7 laid down the principles to be applied for fixation, of seniority of those appointed to the various posts at the time of its initial constitution, while Rule 8 dealt with the filling up of vacancies in various grades remaining unfilled immediately after the initial constitution of the service and all vacancies that may subsequently arise in the Department. Rule 12 provided that in regard to matters not specifically covered by the rules or by order issued by the Government, the members of the service shall be governed by general rules, regulations and orders applicable to persons belonging to the corresponding Central Civil Service. The petitioners, who were persons recruited directly to the ARC organisation during the period between 1965 and 1971 challenged in their writ petition, the validity of the promotion given to respondent nos. 8 to 67 from the year 1968 onwards officers whose services were borrowed on deputation. They contended that the deputationists were occupying the posts in the Department only on an ad hoc basis and such ad hoc appointees who were having the benefit of lien in their parent departments and were getting promotions in those departments had no claim whatever to seniority or promotions in the borrowing department viz. A.R.C. They also assailed the Aviation Research Centre (Technical) Service Rules as conferring arbitrary powers on the controlling authority to equate the ad hoc service rendered by the deputationists in the ARC with the regular service rendered by persons like the petitioners who had been directly recruited to the Department on a regular basis which resulted in permanently blocking all the future chances of the petitioners in matters of promotion and other service benefits. The Rules were highly arbitrary and infringed Articles 14 and 16 of the Constitution since it was based on illegal treatment of unequals as equals by equating persons functioning on a mere ad hoc basis with those holding posts in the organisation on a regular basis. Rule 6(2) conferred arbitrary and unfettered powers on the Screening Committee and suffered from the vice of excessive delegation. Rule 7 in so far as it empowered the Department to reckon the seniority of the deputationists by giving them the benefit of the ad hoc service rendered by them in the ARC as well as the prior service put in by them in their parent departments was arbitrary. Rule 8(1) enabled the deputationists to consolidate the illegal advantage gained by them at the initial constitution by further promotions/appointments to still higher posts in the ARC, and by specifying the method of recruitment to the various posts in the Service and fixing a quota as between the vacancies to be filled up by promotions and those to be filled up by direct recruitment/deputation or re employment in Schedule II of the rules, the deputationists have been treated on a par with regular departmental personnel and this involved a clear violation of Articles 14 and 16 of the Constitution. It was further contended that the position of the deputationists being that of persons permanently transferred from the parent departments to the ARC, under Article 26 of the Civil Service Regulations, such persons appointed by transfer shall be ranked below all the direct recruits as well as the promotees already functioning in the Department and the seniority list dated November 6, 1978 having been drawn up in contravention of the aforesaid principle laid down in Article 26, the said list should be declared to be illegal and void. 877 The case of the petitioners was resisted by respondent No. 1, who contended that the appointments made by direct recruitment were merely temporary and ad hoc in character. While the deputationists were persons with rich experience and long years of service, the direct recruits were inexperienced and new to the job. The delay in promulgation of the rules was due to the fact that because of the special features of the Department and the sensitive nature of the functions to be discharged by it, various circumstances and factors had to be taken into account before the draft rules were finally cleared by the several Ministries concerned. There is no principle of law prohibiting the absorption in a newly constituted Department of persons who are functioning on deputation in a temporary organisation which was later constituted into a permanent service. The Service Rules extend equal treatment to all categories of employees who were in position on the crucial date viz., April 26, 1976 in the matter of absorption as well as determination of seniority at the initial constitution, irrespective of whether they were direct recruits or deputationists. The Screening Committee prepared the seniority List of the persons found suitable for absorption in accordance with the provisions contained in Rule 6(2) read with Rule 7. The Rules cannot be said to be arbitrary or violative of the principles of equality enshrined in Articles 14 and 16. Dismissing the writ petition, ^ HELD: l(i) A party seeking the intervention and aid of this Court under Article 32 of the Constitution for enforcement of his fundamental rights, should exercise due diligence and approach this Court within a reasonable time after the cause of action arises and if there has been undue delay or laches on his part, this Court has the undoubted discretion to deny him relief. [900 H 901 A] (ii) The challenge raised by the petitioners against the validity of the promotions given to respondent nos. 8 to 67 during the period between 1968 and 1975 is liable to be rejected on the preliminary ground that it is most highly belated. There is no valid explanation from the petitioners as to why they did not approach this Court within a reasonable time after those promotions were made. This writ petition has been filed only in the year 1979 and after such a long lapse of time the petitioners cannot be permitted to assail before this Court the promotions that were effected during the years 1968 to ]975. [900 F G] (iii) There is also no satisfactory explanation from the petitioners as to why no action at all was taken to challenge the validity of the promotions given to respondents nos. 8 to 67 for a period of nearly seven years subsequent to the judgment of the High Court in 1972. [901 F] Rabindra Nath Bose and ors. vs Union of India and ors ; referred to. So long as there was no regular cadre and hierarchy of posts and no rules laying down the mode of appointment/promotion to those posts, it was perfectly open to the Government to fill up the posts by securing the services of persons who in its opinion were by virtu. Of their experience and qualifications, best suited for being on trusted with the specialised kinds of functions attached to the various posts. [902 E] 878 In the instant case the petitioners had been appointed as ACIOs II only on a temporary and ad hoc basis. Such appointments did not confer on them any rights even to the posts of DFOs. It had also been categorically made clear to them in the letters containing the offers of appointment that such appointments will not confer on them any right to be permanently absorbed in the post if and when it was made permanent. There was also not even any executive order or administrative instruction declaring the post of DFO as the feeder category for appointment to the higher posts. The petitioners, therefore, had no legal right or claim for being appointed by promotion to the higher posts of ACIO I (FO), ATO, etc. [902 F G] 3(i) When a new service is proposed to be constituted by the Government, it is fully within the competence of the Government to decide as a matter of policy the sources from which the personnel required for manning the service are to be drawn. [903 F] (ii) It is in the exercise of the said power, that provision has been made by sub rule (1) of Rule 6, that all the persons who, as on the appointed day, were already working in the ARC organisation on a temporary and ad hoc basis and had thereby acquired valuable experience in the specialised kinds of work would be eligible for appointment to the new service at the stage of its initial constitution. Equal opportunity was given to all to get permanently appointed in the new ARC (Technical) Service subject to their being found fit by the Screening Committee under sub rule (2) of Rule 6. The provision cannot be said to be violative of Articles 14 and 16. [903 G, 904 A] 4(i) The provision for Constitution of a Screening Committee for adjudging the suitability of the persons in the field of eligibility for permanent appointment to the service is absolutely reasonable. [904 D] (ii) The power conferred on the controlling authority to issue general or special instructions to a Screening Committee is really in the nature of a safeguard for ensuring that the rules relating to the initial constitution of the service were applied fairly and justly. The controlling authority is the "Secretary Department of Cabinet Affairs". When supervisory powers are entrusted to such a high and responsible official, it is reasonable to assume that they will be exercised fairly and judiciously and not arbitrarily. The contention that the provisions of sub rule (2) of Rule 6 suffer from the vice of arbitrariness or excessive delegation therefore, fails. [904 E] 5(i) When recruitment to the new Service was being made from two different classes of sources, it was necessary for the Government to evolve a fair and reasonable principle for regulating the inter se seniority of the personnel appointed to a new Department. What has been done under Rule 6 is to give credit to the full length of continuous service put in by all the appointees in the concerned grade, whether such service was rendered in the temporary ARC organisation or in other departments of the Government. The criterion applied, namely the quantum of previous experience possessed by the appointees measured in terms of the length of continuous service put in by them in the concerned or equivalent grade is perfectly relevant to the purpose underlying the framing of tho rule. The principle laid down in rule 6(2) for determination of 879 inter se seniority was quite reasonable and fair and did not involve any arbitrary or unfair discrimination against the petitioners. [905 C E] In the instant case while the petitioners had no substantive lien in respect of or title to any post in any department, the deputationists were having a lien on the posts held by them in their parent departments. The petitioners, therefore, formed a different class consisting of persons who were virtually being recruited for the first time into regular Government service, as distinct from respondents 8 to 67 who had been holding posts in their parent departments for several years on regular basis who formed a separate class. [905 B] 6. The provisions contained in Rule 7 that the seniority of persons appointed on permanent basis in each grade at the initial constitution of the service shall be in the order in which they are shown in the relevant list prepared by the Screening Committee in accordance with the provisions of Rule 6 was upheld as perfectly valid and constitutional. [905 F G] 7. At the time of constituting a new service and laying down the mode of appointment to the various posts it is fully within the powers of the President of India to prescribe the methods by which vacancies arising in the different categories of posts in the department should be filled up. In the instant case this is precisely what has been done by Rule 8 and the provisions of Schedule II. [906 B] 8. The draft rules were prepared by the Directorate of ARC and submitted to the Government in 1972 itself but on a detailed scrutiny being made it was found that the said draft required substantial modification in several respects. Revised rules were, therefore, drafted and submitted to the Government late in 1974. The time taken in finalising the rules was due to the fact that intensive examination of all the relevant aspects had to be done by the various concerned Ministries before the draft rules could be finally approved and issued. The plea of malafides put forward by the petitioners is not established. [906 H 907 B] 9. Article 26(7)(iii) of the Civil Services Regulations applies to cases "where a person is appointed by transfer in accordance with a provision in the recruitment rules providing for such transfer in the event of non availability of candidates by direct recruitment or promotion". The absorption of the erstwhile deputationists in the ARC (Technical) Service at the time of its initial constitution was not by such transfer. The provisions of Article 26(7)(iii) are, therefore not attracted. [909 F G] 10. The provisions of Rule 6(3) and Rule 7 will be strictly conformed, to both in letter as well as in spirit, by respondents nos. 1 to 7. In case it is found on examination that the ranking assigned to any of the petitioners in the impugned seniority list dated November 6, 1978 is not consistent with the principles laid down in the aforementioned rule, necessary action should be immediately taken to rectify the said defect. If the promotional chances of any of the petitioners have been adversely affected by reason of any defect in the seniority list, such promotions should also be reviewed after following the requisite procedure. The petitioners may bring to the notice of the first respondent specific instances, if any, of deviation from the principles enunciated in Rule 6(3) and Rule 7 resulting in incorrect assignment of seniority and rank by sub 880 mitting representations. Such representations, if received, will be duly examined and appropriate orders passed thereon as expeditiously as possible. [910 F 911 A] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 740 of 1978. From the Judgment and Decree dated 18.3.1975 of the Andhra Pradesh High Court in C.C.C.A. No. 106 of 1969. G.A. Shah, V.J. Francis and N.M. Popli for the Appellant. S.B. Bhasme, P.K. Pillai and Dilip Pillai for the Respondents. The Judgment of the Court was delivered by SAWANT, J. Although the leave granted by this Court is limited to the question whether the plaintiff is entitled to an amount of Rs.75,000 which according to him he had actually advanced and the respondents had received for the purpose of prosecuting their litigation, and, therefore, the issue to be answered lies within a narrow 331 compass, it is necessary to state the relevant facts briefly to understand correctly the significance of the question to be answered. Nawab Salar Jung III, a celebrity of the erstwhile State of Hyderabad expired on March 2, 1949 leaving behind him no issue but a vast estate. As was expected, several persons came forward claiming to be his heirs, and among them were Sajjid Yar Jung and Turab Yar Jung who claimed to be his first cousins. The Nizam by a notification of May 9, 1949, appointed a Committee to administer the estate of the late Nawab Salar Jung. On the merger of the Hyderabad State, the Central Government by the , continued the Committee and also provided that no suit or other legal proceeding for the enforcement of any right or remedy in respect of any asset, shall be instituted in any court by any person other than the Committee except with the previous consent of the Central Government. In the meanwhile, on May 31, 1949, the Nizam had already appointed a Commission to enquire into the question of succession to the estate, and one of the questions referred to the Commission was whether the Jagir of the late Nawab Salar Jung escheated to the Government and another was the ascertainment of his heirs. The Commission was unable to proceed with the inquiry as some of the claimants filed a writ petition in the High Court of Andhra Pradesh challenging the jurisdiction of the Commission to enquire into the question of succession. The High Court, by its decision of September 23, 1952 held that the Commission was not the proper forum for determining the question of succession and directed that the management of the estate should remain with the Committee until the question was settled by a Civil Court. The question was ultimately settled by compromise between the various claimants including the Government. The compromise was incorporated in a decree dated March 5, 1959 passed in a suit being Suit No. O.S. 13/58 which was filed by some of the claimants. The present proceedings are an offshoot of the said suit. Sajjid Yar Jung who claimed to be one of the first cousins of the late Nawab Salar Jung did not have the wherewithal to establish his claim to a share in the estate. He approached the plaintiff who was a businessman of Bombay for financial help to enable him to establish his claim. According to the plaintiff, he agreed to do so and Sajjid Yar Jung agreed to return all amounts to be advanced to him from time to time and also to give the plaintiff one anna share in the amount that 332 would be received by him from the estate. The agreement was executed in writing on June 27, 1952 which is the subject matter of the present proceedings. Pursuant to this agreement Sajjid Yar Jung and his agents drew large amounts from the plaintiff from time to time, totalling to about Rs.75,000. Sajjid Yar Jung expired before the plaintiff received his share of the amount as per the agreement but after Sajjid Yar Jung successfully established his claim to the share in the estate. According to the plaintiff, the amount due to Saijid Yar Jung from the estate was about Rs.60 lakhs and hence he claimed Rs.3 lakhs as his share (calculated at one anna in a rupee) in addition to the return of the sums advanced by him which as stated above was Rs.75,000. The plaintiff, therefore, filed the present suit against the heirs of Sajjid Yar Jung for accounts and for administration of his estate and for distribution of the amount among the plaintiff and the defendants. He also joined the receiver of the estate of Nawab Salar Jung Bahadur as one of the defendants to the suit. The heirs of the late Nawab Sajjid Yar Jung (hereinafter referred to as "Nawab") contested the suit and denied that the plaintiff had advanced any amounts to the Nawab. They also raised other contentions including the contentions that the suit was barred by limitation and that the agreement of June 27, 1952 was unenforceable in law as it was in the nature of a champerty deal which was opposed to public policy and forbidden by law. The City Civil Court where the suit was filed found that the agreement was genuine, that it was admissible in evidence, that the amounts were advanced by the plaintiff to the Nawab and that the suit was not barred by limitation. However, the Court found that the agreement was opposed to public policy as the object of the agreement was that the plaintiff should wield his influence with Central and State Ministers to have the Nawab recognised as the heir to the estate in return for his being given one anna share in the amount to be received by the Nawab. The Court, therefore, held that the agreement in question was not enforceable. The Court also held that even the amounts actually advanced by the plaintiff and received by the Nawab could not be recovered by the plaintiff. Accordingly, the Court dismissed the suit with costs. The plaintiff preferred an appeal to the High Court. The Division Bench of the High Court held that the appeal had abated against all the respondents on account of the failure of the plaintiff appellant to bring on record the heirs of one of the respondents, viz., Askar Nawab Jung who had died pending the appeal. On 333 merits, the Bench also held that the agreement was against the public policy. The Court further held that the agreement was one whole agreement and hence the plaintiff was not entitled to recover even the amount of Rs.75,000 which was actually advanced by him to the Nawab for prosecuting the litigation. It is this decision which is challenged before us. As stated earlier, leave has been granted only in respect of the said amount of Rs.75,000 and, therefore, we are concerned in the present appeal only with the question as to whether the conclusion arrived at by the High Court, i.e., that the agreement is opposed to public policy and the actual advance of Rs.75,000 was a part of the whole agreement and was, therefore, also tainted by the vice of being contrary to public policy is correct. That the amount of Rs.75,000 was advanced by the plaintiff to the Nawab for prosecuting his claim as a sharer in the estate, is not disputed. In fact, the Nawab had to approach the plaintiff and had to enter into the agreement in question for the express purpose of successfully prosecuting his claim. The plaintiff cannot also contend that he had agreed to and did advance the said amount of Rs.75,000 only because he wanted and expected the Nawab to be successful in the prosecution of his claim. The advance was not a friendly loan or without consideration. The agreement itself stipulated that on the successful establishment of the claim, the Nawab would not only return the said advance but would also pay to the plaintiff consideration for the said advance. That consideration was agreed to be at the rate of one anna in a rupee. It is, therefore, apparent on the face of the record that the advance and the share in the estate, were a part of the same contract one as a consideration for the other. The two stand together and none can stand without the other. Hence, I am not impressed by the contention advanced by Shri Shah for the appellant that the amount of Rs.75,000 which was advanced by the appellant can be separated from the other agreement or could be treated differently. I am in agreement with the High Court that the agreement has to be treated as a whole and the two parts, viz., the advance and the consideration for the same cannot be separated from each other. The next question is whether the advance in question was opposed to public policy. On this question, Shri Shah took us through the law on the subject, and contended that both the City Civil Court as well as the High Court have created a new head of public policy to declare the agreement as void, although according to the relevant 334 statutory Provisions as well as the decisions of the Court, the agreement is not void. In the first instance, he referred us to the provisions of Sections 23, 65, 69, 70 and Part (ii) of Section 73 of the Indian Contract Act. Section 23 states that the consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. He then pointed out to us that the specific rule of English law against maintenance and champerty have not been adopted in India and a champertous agreement is not per se void in this country. He contended that before a champertous agreement is held to be void, it must be shown that it is against public policy or against justice, equity and good conscience. He contended in this connection that the Nawab admittedly did not have sufficient finance to prosecute his claim though, he had a valid claim as shown by the result of the litigation in that behalf. The plaintiff, therefore, did not do anything wrong in advancing the amount in question to him to enable him to establish his claim successfully since the Nawab could not have repaid the amount unless he got a share in the estate. It was a legitimate exercise to reduce the agreement to writing and to stipulate therein that the amount should be repaid along with a share in the estate when the Nawab 's claim was established. The share in the estate being only one anna in a rupee could not also be said to be on the high side and conscionable. The High Court has given a finding in that behalf in favour of the appellant. The High Court has, however, held against the appellant only on the ground that the agreement was against public policy. He strenuously urged that if the champertous nature of the agreement is ignored which it is legitimate to do so in this country, there is no other ground of public policy on which the agreement can be struck down. In this connection, he referred us to the decision of this Court in the matter of Mr. 'G ', a Senior Advocate of the Supreme Court, where it is reiterated that a champertous contract would be legally unobjectionable if no lawyer was involved and that the rigid English rules of Champerty and Maintenance do not apply in India. In that case, he pointed out to us that the agreement was held unenforceable because it was agreement between a lawyer and his client and it amounted to professional misconduct. However, this Court has also observed there that if such an agreement had been 335 between a third party "it would have been legally enforceable and good. It may even be that it is good in law and enforceable as it stands though we do not so decide because the question does not arise; but that was argued and for the sake of argument even that can be conceded. It follows that there is nothing morally wrong, nothing to shock the conscience, nothing against public policy and public morals in such a transaction per se, that is to say, when a legal practitioner is not concerned. But that is not the question we have to consider. However much these agreements may be open to other men what we have to decide is whether they are permissible under the rigid rules of conduct enjoyed by the members of a very close professional preserve so that their integrity, dignity and honour may be placed above the breath of scandal". His second leg of the argument rested on the other provisions of the Indian Contract Act to which I have made reference above. He contended that even assuming that it was an agreement to receive consideration a share in the claim that was to be established by the Nawab, it was not against public policy. He contended that the amount in question was admittedly advanced and an advantage of it was taken by the Nawab to establish his claim. He had, therefore, to return the same to the appellant. In this connection, he referred to us to the other provisions of the Indian Contract Act to which I have made a reference earlier. Section 65 states that when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract, is bound to restore it, or to make compensation for it, to the person from whom he received it. Section 69 states that a person who is interested in the payment of moneys which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other. Section 70 declares that where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit therefore, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered. Part (ii) of Section 73 states that when an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it, is entitled to receive the same compensation from the party in default as if such person had contracted to discharge it and had broken his contract. Shri Shah also referred us to the provisions of Section 84 of the which reads as follows: 336 "84. Where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor. Relying on these statutory provisions as well as the judicial decisions, he contended firstly that assuming that the agreement was a champertous one, it was neither immoral nor against public policy, and secondly even de hors the agreement, the appellant is entitled to the said advance of Rs.75,000 under Section 70 of the Indian Contract Act. The High Court referred to the evidence on record in appeal which had an intimate bearing on the nature and the purpose of the agreement in question and came to the following conclusions. The Court held that the plaintiff appellant was approached by the Nawab because being a businessman of eminence, he was highly influencial. He had an access to the ministers and other worthies in the Government. He was in a position to secure to the Nawab his claim by wielding his influence. The Nawab knew about it and the plaintiff was also confident about it. It 'was immaterial that those whom he had approached were men of high repute and great integrity of character. The fact that because of his accessibility he could get things done through them or could make use of his other standing with them to deliver goods to the Nawab, was enough to taint the entire agreement with the vice of introducing corruption in public life. The High Court also found that the advance which was made was in the nature of an investment to share the booty. There was no reason for the plaintiff who was a total stranger to the Nawab to undertake the financing in question which was in those days on a considerably high scale. No person who was not confident of delivering the goods would have embarked on financing on such a liberal scale. The plaintiff admittedly was a businessman who knew the value of each pie he was spending. He was doing it as a fruitful investment with sure returns. That is evident from the terms of the contract themselves since both the advance and the consideration for which the advances were made form part of one integral contract. On these facts which are on record, the High Court came to the conclusion that the parties had entered into the agreement in question with the avowed purpose that the plaintiff would use his then prevailing influence with the worthies in the 337 Government to secure the gains for the Nawab. The Court On this evidence came to the conclusion that the agreement was nothing but one obviously made to lend services as a "go between" or a "carrier" for commission. This being so, it was against public interest and detrimental to the health of body politic. The High Court further repelled the contention that either the City Civil Court or it was evolving a new head of public policy by referring to a decision of this Court in Ghurelal Parakh vs Mahadeodas Maiya & Ors., AIR 1959 SC 781=(1959) Suppl. 2 SCR 406 and the decisions of the English Court and to opinions of the jurists/experts in treatises and essays on the subject of public policy. The Court also pointed out that this was by no means a new head of public policy and it can come under the head "agreements tending to injure the public" as mentioned at page 325 of Anson 's Law of Contract (23rd ed). I am in respectful agreement with the conclusion arrived at by the High Court. It cannot be disputed that a contract which has a tendency to injure public interests or public welfare is one against public policy. What constitutes an injury to public interests or welfare would depend upon the times and climes. The social milieu in which the contract is sought to be enforced would decide the factum, the nature and the degree of the injury. It is contrary to the concept of public policy to contend that it is immatable, since it must vary with the varying needs of the society. What those needs are would depend upon the consensus value judgments of the enlightened section of the society. These values may sometimes get incorporated in the legislation, but sometimes they may not. The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna. When courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society. Or to put it negatively, to prevent the frustration of the legislation or perversion of the goals and values of the society. So long as the courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurbish them, their role in this respect has to be welcomed. It is true that as observed by Burrough, J. in Richardson vs Mellish, [ ; at 252 public policy is "an unruly horse and 338 dangerous to ride" and as observed by Cave, J. in re Mirams, [189] 1 QB 594 at 595 it is "a branch of the law, however, which certainly should not be extended, as judges are more to be trusted as interpreters of the law than as expounders of what is called public policy". But as observed by Prof. Winfield in his article 'Public Policy in the English Common Law ' [1928]42 Harv. L. Rev. 76, 91]: "Some judges appear to have thought it [the unruly horse of public policy] more like a tiger, and refused to mount it at all perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balaam 's ass which would carry its rider nowhere. But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community. " All courts are at one time or the other felt the need to bridge the gap between what is and what is intended to be. The courts cannot in such circumstances shirk from their duty and refuse to fill the gap. In performing this duty they do not foist upon the society their value judgments. They respect and accept the prevailing values, and do what is expected of them. The courts will, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good. The contract such as the present one which is found by the City Civil Court as well as the High Court to have been entered into with the obvious purpose of influencing the authorities to procure a verdict in favour of the late Nawab was obviously a "carrier" contract. To enforce such a contract although its tendencies to injure public weal is manifest is not only to abdicate one 's public duty but to assist in the promotion of a pernicious practice of procuring decisions by influencing authorities when they should abide by the law. To strike down such contracts is not to invent a new head of public policy but to give effect to its true implications. A democratic society is founded on the rule of law and any practice which seeks to subvert or circumvent the law strikes at its very root. When the Court discountenances such practice, it only safeguards the foundation of the society. Even assuming, therefore, that the Court finds a new head of public policy to strike down such practice, its activism is not only warranted but desired. 339 The appeal is, therefore, dismissed. In the circumstances of the case, there will be no order as to costs. FATHIMA BEEVI, J. I have had the advantage of perusing the judgment prepared by my teamed brother, Sawant, J. I agree with him that the appeal must fail. I wish to say a few words. The only point that arises for decision in the appeal is whether an amount of Rs.75,000 which the plaintiff claims to have advanced, is recoverable from the respondents. The relevant facts have been stated by my learned brother and it is not necessary to repeat the same. The City Civil Court found that the agreement on the basis of which the plaintiff claimed relief was opposed to public policy. The object of the agreement according to the trial court was that the plaintiff should wield his influence with Central and State Ministers to have Sajjid Yar Jung recognised as the heir of late Nawab Salar Jung in return for his being given one anna share in the assets to be received by Sajjid Yar Jung from the estate of late Nawab Salar Jung. The High Court has confirmed that under the agreement the plaintiff was to promote the cause of Sajjid Yar Jung in his being recognised as heir of the Nawab Salar Jung and for the help thus rendered to receive a share of one anna in a rupee out of the assets obtained. The plaintiff appears to have advanced an amount of Rs.75,000 in promoting the cause of Sajjid Yar Jung as agreed upon. The help in promoting the cause was much more than mere financing. On the evidence the High Court found that the help Sajjid Yar Jung wanted from the plaintiff was to bring to bear his influence with the Central and State Ministers and the request for financial help was secondary to the request to represent the cause with the use of influence. The High Court affirmed that the object of agreement was to influence the Central and State Ministers and to advance and expand all amounts necessary in that connection. In the face of the concurrent findings with which we agree, I have no doubt in our mind that the contract relating to the payment of the amount is not severable from the agreement to promote the cause of Sajjid Yar Jung by wielding the influence the plaintiff had. Every agreement of which the object or consideration is unlawful is void. The consideration or object of an agreement is unlawful when the court regards it as opposed to public policy. If anything is done against the public law or public policy that would be illegal in as much as the interest of the public would suffer in case a contract against public policy is permitted to stand. Public policy is a principle of judicial 340 interpretation founded on the current needs of the community. The law relating to public policy cannot remain immutable. It must change with passage of time. A bargain whereby one party is to assist another in recovering property and is to share in the proceeds of the action and such assistance is by using the influence with the administration, irrespective of the fact that the persons intended to be influenced are not amenable to such influence is against protection and promotion of public welfare. It is opposed to public policy. In this view, we would hold that the plaintiff cannot enforce the agreement to recover the amount from the respondents. ORDER The appeal is, therefore, dismissed with no order as to costs. R. section section Appeal dismissed. [/INST]Appellant 's land was acquired by the Agra Town improvement Trust under the provisions of the U.P. Town Improvement Act, 1919. For the land acquired, the appellant was paid a paltry sum. No solatium was awarded as none was awardable under the Act. [391B]. The appellant sought a reference before the Nagar Mahapalika Tribunal. The Tribunal raised the compensation to Rs.1,45,839 and also awarded interest at the rate of 4 1/2 percent. Still dissatisfied, the appellant moved the High Court in appeal. The Nagarpalika also filed a cross appeal against enhancement. The High Court allowed the appeal of the appellant and further enhanced the compensation by Rs.48,613 and the rate of interest to 6 percent. On the amount of Rs.48,613 solatium at the rate of 15% was awarded by the High Court. No solatium was however awarded on the slim Of Rs. 1,45,839 awarded by the Tribunal, on the ground that the appellant had not made a grouse or laid any claim to it in his grounds of appeal. The High Court negatived the contention of the appellant that his claim to solatium was not based on any demand at his instance but it was rather a statutory duty of the Court to grant it. Allowing the appeal, this Court, HELD: (1) Solatium, as the word goes, is "money comfort" quantified by the statute, and given as a conciliatory measure for the Compulsory acquisition of the land of the citizen, by a welfare state such as ours. [392D E] 390 (2) The importance of the award of solatium cannot be undermined by any procedural brocades. It follows automatically the market value of the land acquired, as a shadow would to a man. It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. That it falls to be awarded by the Court "in every case" leaves no discretion with the court in not awarding it in some cases and awarding in others. [393A B] Om Prakash vs State of Uttar Pradesh, [19741 2 S.C.C. 731, referred to. (3) Solatium in the scheme of section 23(2) of the Land Acquisition Act is part of the compensation and sections 28 and 34 of the said Act Provide for payment of interest on the amount of compensation. [394H 395A] Periyar & Pareekanni Rubbers Ltd. vs State of Kerala, ; , referred to. (4) Solatium being part of compensation must fetch statutory interest from the date of dispossession of the land owner tin date of payment. [395D] Dr. Shamlal Narula V. Commissioner of Income Tax Punjab, ; , referred to. </s>

<s>[INST] Summarize the judgementCivil Appeals Nos. 1910 to 1912 and 2112 of 1968, and 1102 to 1105 of 1971. Appeals by certificate/special leave from the judgments and orders dated July 28, 1967, March 29, 1968, May 24, 1968 of the Calcutta High Court in Income tax References Nos. 170 of 1963. 40 of 1965 and 4 of 1967. V. section Desai, N. R. Khaitan, B. P. Maheshwari and Krishna Sen. for the appellants (in all the appeals). I B. Sen, K. section Suri, R. N. Sachthey and B. D. Sharma, for the respondent (in C.As. 1910 to 1912 of 1968, and 1102 to 1104 of 1971). B. D. Sharma, for the respondent (in C.As. 2112 of 1968 and 1105 of 1971). The Judgment of the Court was delivered by Grover, J. These appeals from judgments of the Calcutta High Court in Income tax References involve a common question. We shall refer to the facts in the batch of appeals of Jaipuria Samla Amalgamated Collieries Ltd. The assessee is a public limited company incorporated under the Indian Companies Act 1913. It carried on the business of raising coal from coal mines and selling the same to its constituents. It had taken on lease several coal mines from the owners of the coal bearing lands. As lessee of the mines the assessee incurred liability for payment of (i) Road and Public Works cess under the Bengal Cess Act of 1880; (ii) Education cess levied under the Bengal (Rural) Primary Education Act, 1930. , The amounts payable by the assessee on account of the aforesaid, cesses were claimed by it as deduction under section 10 of the Income tax Act, 1922, hereinafter referred to as the "Act", in the computation of ,.its profits. The income tax authorities disallowed that claim relying on section 10 (4) of the Act. The assessee went up, in appeal to the 512 Appellate Tribunal which agreed with the orders of the departmental authorities. The questions which were submitted by the Tribunal with the statement of the case relating to the assessment years 1954 55, 1955 56 were as follows : "(1) Whether, on the facts and in the circumstances of the case, the Road, the Public Works and the Education Cesses were levied either on the profits or gains of the business or were assessed at a proportion of or otherwise on the basis of any such profits within the meaning of section 10(4) of the Income tax Act, 1922 ? (2) Whether, on the facts and in the circumstances of the case, the amounts provided for or paid by the assessee company, as Road and Public Works Cess and the Education Cess was allowable as a deduction under section 10 (2) (ix) or 10 (2) (xv) of the Indian Income tax Act, 1922, read with section 10(4) of the said Act ?" , The High Court answered the questions against the assessee. The assessee filed appeals to this Court after obtaining a certificate of fitness but the same was found defective owing to want of any reasons or grounds in the order granting the certificate. Instead of getting the matters remitted to the High Court for giving reasons petitions for special leave were filed before us and leave was granted. We have heard the appeals by special leave on the printed record of the appeals by certificate. It may be mentioned that this position obtains in all the appeals by certificate before us. Section 10(1) of the Act provides that tax shall be payable by an assessee under the head "profits and gains of business, profession or vocation" in respect of the profits and gains of any business profession or vocation carried on by him. Sub section (2) says that such profits or gains shall be computed after making the allowances set out therein. Clauses (ix) and (xv) of this subsection are as follows : "(ix) any sums paid on account of land revenue, local rates or municipal taxes in respect of such part of the premises as is used for the purpose of the business, profession or vocation." "(xv) any expenditure not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation." Sub section (4) of section 10 to the extent It is material is in the following terms : 513 (4) Nothing in clause (ix) or clause (xv) of subsection (2) shall be deemed to authorise the allowance of any sum paid on account of any cess, rate or tax levied on the profits or gains of any business, profession or vocation or assessed at a proportion of or otherwise on the basis of any such profits or gains The essential question that has to be determined is whether the cesses levied under the aforesaid Bengal Acts fell within the mischief of section 10(4) of the Act. It is common ground that these cesses are not levied on the profits or gains of any business, profession or vocation but it has been claimed on ' behalf of the Revenue and that contention was accepted throughout that the cesses are assessed on the basis of such profits or gains and therefore they would be covered by the said provision. According to the preamble to the Bengal Cess Act 1880, the road and works cesses were levied on immovable property interalia to provide for the construction and maintenance of roads and other works of public utility. Under section 5 all immovable property with certain exceptions was to be liable to the payment of road cess and public works cess. Section 6 laid down that these cesses were to be assessed on the. annual value of lands and until provision to the contrary was made by the Parliament on the annual not profits from mines, quarries, tramways, railways and other immovable property on such rates as were to be determined in the manner prescribed. Under section 72 the Collector of the district had to serve a notice upon the owner etc. of every mine, quarry and immovable property requiring him to lodge a return of the net annual profits of such property cal culated on the average of the annual net profits thereof for the last three years for which accounts had been made up. Section 75 provided for a contingency where a return was not furnished within the prescribed period. The Collector in that case or if he found that the return made, was untrue or incorrect was to proceed to ascertain and determine by such ways or means as seemed expedient the annual net profits of such property calculated as aforesaid. If the Collector was unable to ascertain the annual net profits he could ascertain and determine the value of the property and thereupon determine 6% of such value to be the annual net profits thereon (section 76). The scheme of the Bengal (Rural) Primary Education Act 1930 may next be referred to. The preamble to that Act was as follows: "Whereas it is expedient to make better provision for the progressive expansion and for the management and control of primary education in rural. areas in Bengal so as to make it available to all children and with a view to make it compulsory within ten years 514 According to section 29 all immovable property on which the road and public works cesses were assessed were to be liable to the payment of primary education cess. The rates on which the education cess was to be levied varied according as the property ,consisted of mines and quarries or of tramways, railways and other immovable property. As regards mines and quarries it was to be levied at the rate of three and a half piece on each rupee of annual net profits. Now it is quite clear that the aforesaid cesses would be allowable deductions either under clause (ix) or clause (xv) of sub section (2) of section 10 unless they fell within section 10(4). We have already referred to the provisions of both Acts under which the cesses are levied which show that their assessment is not made at a proportion of the profits of the assessee 's business. What has to be determined is whether the assessment of the cesses is made on the basis of any such profits. The words "profits and gains of any business, profession or vocation" which are employed in section 10(4) can 'in the context, have reference only to profits or gains as determined under section 10 and cannot cover the net profits or gains arrived at or determined in a manner other than that provided by s.10 The whole purpose of enacting sub section (4) of section IO appears to be to exclude from the permissible deductions under clauses (ix) and (xv) of sub section (2) such cess, rate or tax which is levied on the profits or gains of any business, profession or vocation or is., assessed at a proportion of or on the basis of such profits or gains. In other words sub section (4) was meant to exclude a tax or a cess ' or rate the assessment of which would follow the determina tion or assessment of profits or gains of any business, profession or vocation in accordance with the provisions of section 10 of the Act. The road cess and public works cess are to be assessed on the annual net profits under sections 72 to 76 of the Cess Act 1880. The net annual profits have to be calculated on the average of the net profits for the last three years of the mine or the quarry and if the annual net profits of the property cannot be ascertained in the aforesaid manner then it is left to the Collector to determine the value of the property first in such manner as he considers expedient and determine 6 per cent on that value which would be deemed to be the annual net profits: The Cess Act of 1930 follows the same pattern so far as the ascertainment of annual net profits is concerned. These profits arrived at according to the provisions of the two Cess Acts can by no stretch of reasoning be equated to the profits which are determined under section 10 of the Act. It is not possible to see, therefore, how section 10(4) could be applicable at all in the present case. Thus on the language of the provisions both of the Act and the two Cess Acts the applicability of section 10(4) cannot be attracted. But even according to the decided cases 515 such cesses cannot fall within section 10(4). The Privy Council in Commissioner of Income tax, Bengal vs Gurupada Dutta & Others(1) had to consider whether the rate imposed under the provisions of the Bengal Village Self Government Act 1919 on a person occupying a building and using the same for the purpose of business was an allowable deduction in computing the profits of the business under section 10 of the Act. Their Lordships laid down the law in the following words : . "It will be noted that, in the absence of the necessary powers and machinery, which are not provided by the Act, the estimate of the annual income from business can only proceed on a rough guess, which is in no way comparable with the ascertainment of profits and gains under the Income tax Act, an d, in the opinion of their Lordships, the inclusion of this element of business income as part of the "circumstances" of the assessee with a view to the imposition of the union rate does not fall within sub section (4) of Section 10 of the Income tax Act. It is conceded that the union rate is not "levied on the profits or gains", which clearly implies an ascertainment of such profits and gains, and the words " assessed. . on the basis of any such profits or gains" in the later part of the sub section must also be so limited. No such ascertainment of the profits and gains of the business can be undertaken for the purposes of the union rate. ,, The main argument for the Crown, therefore fails. " In our judgment this decision is quite apposite and fully covers the points under consideration. It has been followed by the Allahabad High Court in Simbholi Sugar Mills Ltd. vs Commi ssioner of Income tax, U.p. & V.p.(2) in which the question related to the deductibility of tax payable under the U.P. District Boards Act 1922 which was imposed on persons assessed according to their circumstances and property. Similarly in Commissioner of Income tax, Delhi and Rajasthan vs Banarsi Dass & Sons(3), the Punjab High Court held that a tax imposed under the U.P. District Boards Act on circumstances and property could be legitimately claimed as an allowance and the above decision of the Privy Council was followed. In the Income tax Act 1961, section 28 relates to the income which shall be chargeable to income tax under the head "profits and gains of business or profession '. Section 30(b) (ii) is equivalent to cl. (ix) of section 10(2) of the Act, Section 40 (a) (ii) corresponds to section 10 (4) of the Act. It is significant that in spite of the decision of the Privy Council in (1) (3) (2) 516 Gurupada Dutta 's case(1) the Parliament did not make any change in the language of the provisions corresponding to section 10(4). It can, therefore, legitimately be said that the view of the Privy Council with regard to the true scope and ambit of section 10(4) of the Act was accepted. We are unable to concur in the reasoning or the conclusion of the Calcutta High Court in Commissioner of Income tax, West Bengal, vs West Bengal Mining Co.(2) in which it was held that the two cesses being related to profits would attract section 10(4) of the Act. In the result Civil Appeals Nos. 1102 to 1105 of 1971 which are by special leave are allowed and the answers returned by the High Court are discharged. The questions referred shall stand answered in favour of the assessees and against the Revenue. The assessee shall be entitled to their costs in this Court. Civil Appeals Nos. 1910 to 1912 of 1968 and 2112 of 1968 in which the certificates are defective and have to be revoked shall stand dismissed. G.C. Ordered accordingly. [/INST]The petitioner was a Deputy Inspector of Schools and a member of the Education department of the respondent State. On September 2, 1953, the Director of Public Instruction passed an order directing a censure to be recorded in the character roll of the petitioner. On March 5, 1960, he was reverted to the Lower Division of the Subordinate Educational Service, as a result of an inquiry into certain charges. He filed a suit challenging the two orders. On August 5, 1961, the Munsiff passed an order restraining the respondent from enforcing the order dated March 5, 1960. On April 3, 1962, the temporary injunction was vacated by the Subordinate Judge. On April 11, 1963, the suit was decreed and the respondent was prohibited from enforcing the order dated March 5, 1960. This decree was set aside in appeal by the Subordinate Judge on June 24, 1964, and the petitioner 's second appeal was dismissed by the High Court on February 11, 1965. On August 5, 1966, the Director of Public Instruction passed an order that the petitioner 'having not been on his duties for more than five years since March 1, 1960 has ceased to be in Government employ since March 2, 1965 under r. 76 of the Bihar Service Code. ' The petitioner having completed 58 years of age addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange for the payment of her. pension, and on June 12, 1968 the Director of Public Instruction passed orders stating that under r. 46 of the Bihar Pension Rules he was not entitled to any pension. The petitioner filed the present writ petition under article 32 challenging the various orders. HELD: (1) No relief could be granted in respect of the orders dated September 2, 1953 and March 5, 1960, as, (a) they were already covered by the decision of the High Court in second appeal. (b) no relief could be granted with respect to an order passed as early as 1953; and (c) the orders did not infringe any fundamental rights of the petitioner. [652G H 653A B] (2) The order dated August 5, 1966, declaring, under r. 76 of the Service Code that the petitioner had ceased to be in Government service should be set aside. [653 A B] (a) The essential requirement for taking action under the said rule is that the government servant should have been continuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. Admittedly the petitioner, in the present case, was on duty till March 10, 1960 and he ceased to attend to his duty only from March 635 11, 1960. Therefore, the order stating that he 'ceased to be in government employ on March 2, 1965, was on the face of it erroneous. ' [643C D, E; 644A C] (b) Assuming that the order should be read that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966 the date of the order even then, the order would be illegal. From August 5, 1961, the date of temporary injunction granted by the Munsiff till April 3, 1962, when that order was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty in the senior post in spite of several letters written by him. Again on April 11, 1963 when the Munsiff granted a decree in favour of the petitioner, the respondent did not obtain any stay order from the appellate court, and so, the decree of the trial court was in full force till it was set aside in appeal on June 24, 1964. During that period, that is, from April 11, 1963 to June 24, 1964 the petitioner wrote several letters requesting the respondent to permit him to join duty in the senior grade, but the respondent did not permit him to do so. Therefore, there was no question of the petitioner being continuously absent from service for over 5 years during the period referred to when he was willing but the respondent did not allow him to serve, and hence, r. 76 of the Service Code was not applicable. [644E F; 645A D,G; 646D H; 647A B,E F] (c) Even if the r. 76 was applicable and it was a question of automatic termination of service, article 311 applies to such cases also. According to the respondents a continuous absence from duty for over five years apart from resulting in the forfeiture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the office to receive pension. The respondent did not give an opportunity to the petitioner to show cause against the order proposed. Hence there was violation of article 311. [647GH ; 648D E] Jai Shankar vs State of Rajasthan, ; , followed. (3) The order dated June 12, 1968 stating that under r. 46 of the Pension Rules the petitioner was not entitled to any pension should also be set aside. [649C] Payment of pension under the rules does not depend upon the discretion of the State Government but is governed by the rules and a government servant, coming within those rules is entitled to claim pension. Under r. 46 a Government servant dismissed or removed for misconduct, insolvency or inefficiency is not eligible for pension. In the present case it was contended that the petitioner 's absence for over five years, amounted to misconduct and inefficiency in service. But when the order dated August 5, 1966 has been held to be illegal then the order dated June 12, 1968 based upon it also falls to the ground. [649B C;D H;65OA B] (4) The grant of pension does not depend upon any order. It is only for the purpose of quantifying the amount having regard to the service and other allied matters that it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of any such order but by virtue of the rules. The right of the petitioner to receive pension is property under article 31(1) and by a mere executive order the State had no power to withhold it. Similarly, the said claim is also property under article 19(1) (f). It, therefore follows, that the order dated June 12, 1968 denying the petitioner the right to receive pension affected his fundamental right and as such the writ petition was maintainable. [650G H; 652B C, D F] K. R. Erry vs State of Punjab, I.L.R. [1967] Punjab & Haryana 279, (F.B) approved. 636 (5) The bar against the Civil Court entertaining any suit relating to the matters under the Pension Act does not stand in the way of a writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. </s>

<s>[INST] Summarize the judgementil Appeal No. 2341 of 1978. From the Judgement and Decree dated 16.11.1977 of the Andhra Pradesh High Court in Writ Appeal No. 358 of 1976. Altaf Ahmed, Additional Solicitor General, P. Parmeshwaran and Dilip tandon for the Appellant. 128 A.S. Nambiar and B. Parthasarthy for the Respondent. The Judgement of the Court was delivered by AHMADI, J. This appeal, on certificate, is directed against the decision of the High Court of Andhra Pradesh which was quashed the imposition of duty and levy of penalty on the ground that the show cause notice was issued after the expiry of the period of six months from the accrual of the cause of action. The facts leading to this appeal are as follows: The respondent M/s. Ramdev Tobacco Company, a sole proprietory concern, was at all material times a dealer in tobacco having a licenced warehouse at Guntur. The dealer was liable to pay duty on the tobacco received at his warehouse and transported to another dealer. On August 30, 1972 the appellant issued a notice calling upon the respondent to show cause why duty should not be demanded under Rule 160 of Central Excise Rules, 1944 (`the Rules ' hereafter) on 64,444 kgs. of VFC Farmash Tobacco removed from his warehouse and not accounted for in the warehouse register maintained under the Rules. The respondent was also asked to show cause why penalty should not be imposed for infraction of Rules 151 and 32(1) of the Rules for illicit removal of the aforementioned quantity of tobacco. This show cause notice was founded on the allegation that in 1970 the respondent obtained six transport permits (T.P. 2) dated January 13, 1970, February 10, 1970, March 26, 1970, May 16, 1970, July 24, 1970 and August 5, 1970 and transported under each permit more than the quantity of tobacco allowed thereunder in contravention of the aforementioned rules. The respondent sent a detailed reply to the said show cause notice on November 4, 1972. After giving a personal hearing to the respondent on September 18, 1973 the appellant came to the conclusion that the respondent had evaded payment of duty on 1272 bags weighing 48,304 Kgs, of VFC Farmash tobacco and issued a demand under Rule 160 in the sum of Rs.1,66,165.76 under adjudication order No. 173/74 dated April 9, 1974. In addition thereto the appellant imposed a penalty of Rs. 100 for contravention of Rules 151 and 32(1) of the Rules. Thereupon the respondent filed a writ petition No.2600 of 1974 under Article 226 of the Constitution challenging the aforesaid order of the appellant. This writ petition was heard and disposed of by a learned Single Judge of the High Court who took the view that the appellant 's action was time barred inasmuch as it was initiated after the expiry of the period of six months from the accrual of the cause of action. According to the learned Judge under section 129 40(2) of the (`the ' hereinafter) no suit, prosecution or other legal proceeding could be instituted for anything done or ordered to be done under the law after the expiration of six months from the accrual of the cause of action. Since a period of more than six months had indisputably expired from the dates on which the excess tobacco was transported under the six transport permits in question, the action was clearly time barred. In this view of the matter the writ petition was allowed and the demand made under the impugned adjudication order both in respect of duty and penalty was quashed. The present appellant questioned the correctness of this view in appeal, Writ Appeal No. 358 of 1976, but in vain. The Division Bench found the view taken by the learned Single Judge in accord with its view in Writ Petition No. 2516 of 1974 decided on April 1, 1976. It, therefore, dismissed the appeal but since it had granted a certificate to appeal in the case relied on, it also granted a similar certificate which has given rise to this appeal. Sub section (2) of section 40 of the as it stood at the relevant point of time before its amendment by Amendment 22 of 1973 read as under: "No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under the after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of". Before we proceed to analyse this sub section it would be advantageous to bear in mind that sub section (1) of this section bars the institution of any suit, prosecution or other legal proceeding against the Central Government or its officer in respect of any order passed in good faith or any act in good faith done or ordered to be done under the . The second sub section prescribes a period of limitation for suits, prosecutions and other legal proceedings instituted, lodged or taken for anything done or ordered to be done under the . That is why in Public Prosecutor, Madras vs R.Raju & Anr., etc.; , it was urged on a conjoint reading of the two sub sections that sub section (2) applied only to Government and could not come to the rescue of a tax payer. Rejecting this contention this Court held: "The two sub sections operate in different fields. The first sub section contemplates bar of suits against the Central Government or against the officers by protecting them in 130 respect of orders passed in good faith or acts done in good faith. It is manifest that the second sub section does not have any words of restriction or limitation of class of persons unlike sub section (1). Sub section (2) does not have any words of qualification as to persons. Therefore, sub section (2) is applicable to any individual or person. " This the appellant 's contention that sub section (2) was confined only to the Government officers was found to be unwarranted on the plain words of the provision and was also repelled by reference to other comparable statutes which went to show that whenever the legislature intended to limit the application against the Government officers, the Legislature had chosen appropriate words of limitation to restrict the operation of the provision. It follows, therefore, that the application of the sub section extended to any person, not being a Government Officer, against whom any suit, prosecution or other legal proceeding was commenced for anything done or ordered to be done under the . The next contention convassed in that case by the learned counsel for the appellant was that the words "anything done or ordered to be done" employed in the sub section would not include anything done in violation of the . This Court after referring to the definition of the word `act ' in the , which extended to illegal omissions also, and the case law on the subject observed at page 820 as under: "These decisions in the light of the definition of the word `act ' in the establish that non compliance with the provisions of the statute by omitting to do what the act enjoins will be anything done or ordered to be done under the . The complaint against the respondents was that they wanted to evade payment of duty. Evasion was by using and affixing cut and torn banderols. Books of account were not correctly maintained. There was shortage of banderols in stock. Unbanderolled matches were found. These are all infraction of the provisions in respect of things done or ordered to be done under the . " It is, therefore, clear from the above observation that any omission or infraction of the statutory provision would also fall within the ambit of the provision. Non payment of duty or dues which a dealer is under an obligation to pay under the statute was, therefore, held to fall within 131 the scope of the provision. In that case the complaint against the respondents was that to evade the payment of duty they had used and affixed cut and torn banderols and had failed to maintain the accounts correctly resulting in shortage in stocks. The respondents were prosecuted for contravention of the Rules punishable under sections 9(b) and 9(d) of the as also under section 420 read with section 511 and 109, I.P.C. The respondents pleaded the bar of section 40 of the as it then stood. The High Court upheld the contention that the prosecution was barred by the rule of limitation incorporated in section 40 as the same was instituted after the expiry of six months from the date of the commission of the alleged offences. This Court on the aforesaid line of reasoning affirmed the High Court 's decision. But the question is whether the issuance of a show cause notice and the initiation of the consequential adjudication proceedings can be described as `other legal proceedings ' within the meaning of sub section (2) of section 40 of the ? If the said departmental action falls within the expression `other legal proceeding ' there can be no doubt that the action would be barred as the same indisputably was initiated six months after the accrual of the cause action. So the crucial question is whether the issuance of the show cause notice dated August 30, 1972 and the passing of the impugned order in adjudication proceedings emanating therefrom constitutes `other legal proceeding ' within the meaning of section 40(2) of the to fall within the mischief of that sub section which bars such proceedings if commenced after a period of six months from the accrual of the cause of action. The learned Additional Solictor General submitted that the expression `other legal proceeding ' must be read ejusdem generis with the proceeding expressions `suit ' and `prosecution ' and if so read it becomes crystal clear that the department 's action cannot come within the purview of `other legal proceeding '. How valid is this contention is the question which we are called upon to answer in the present appeal. The rule of ejusdem generis is generally invoked where the scope and ambit of the general words which follow certain specific words (which have some common characteristic and constitute a genus) is required to be determined. By the application of this rule the scope and ambit of the general words which follow certain specific words constituting a genus is restricted to things ejusdem generis with those preceding them, unless the context otherwise requires. General words must ordinarily bear their natural and larger meaning and need not be confined ejusdem generis to things previously enumerated unless the language of the statute spells out an intention to that effect. Courts 132 have also limited the scope of the general words in cases where a larger meaning is likely to lead to absurd and unforeseen results. To put it differently, the general expression has to be read to comprehend things of the same kind as those referred to by the preceding specific things constituting a genus, unless of course from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. But unless there is genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specific words. There can be little doubt that the words `other legal proceeding ' are wide enough to include adjudication and penalty proceedings under the . Even the learned Additional Solicitor General did not contend to the contrary but what he said was that since this wide expression is preceded by particular words of a certain genus, namely, words indicating reference to proceedings taken in courts only, the wide words must be limited to things ejusdem generis and must take colour from the preceding words and should, therefore, receive a limited meaning to exclude proceedings of the type in question. There can be no doubt that `suit ' or `prosecution ' are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one. The use of the expression `instituted ' in section 40(2) strengthens this belief. Since this sub section has been construed by this Court in Raju 's case (supra) not to be confined in its application to only Government servants but to extend to others including the assessees and since the words `for anything done or ordered to be done under this ' are found to be comprehensive enough to include acts of non compliance or omissions to do what the and the Rule enjoin, the limitation prescribed by section 40(2) would undoubtedly hit the adjudication and penalty proceedings unless the expression `other legal proceeding ' is read ejusdem generis to limit its ambit to legal proceedings initiated in a court of law. The scope of section 40(2) as it stood before its amendment pursuant to Raju 's case came up for consideration before a Division 133 Bench of the Madhya Pradesh High Court in Universal Cables Ltd. vs Union of India, [1977] ELT (J92) wherein the question raised for determination was whether penalty procedings taken under Rule 173Q for the infraction of Rule 173C with a view to evading payment of duty fell within the expression `other legal proceeding ' used in the said sub section. The High Court conceded that the expression when read in isolation is wide enough to include any proceeding taken in accordance with law, whether so taken in a court of law or before any authority or tribunal but when read with the preceding words `suit ' or `prosecution ' it must be given a restricted meaning. This is how the High Court expressed itself at page J 106: "Now the language of section 40 (2) is: `no suit, prosecution or other legal proceeding shall be instituted '. `Suit ' and `prosecution ' which precede the expression `other legal proceeding ' can be taken only in a Court of Law". After stating the expanse of the ejusdem generis rule, as explained in Amar Chandra vs Excise Collector, Tripura, AIR. at 1868 (Sutherland, Volume 2 pages 399 400) the High Court observed that there was no indication in the said sub section or elsewhere in the that the said general words were intended to receive their wide meaning and were not to be construed in a limited sense with the aid of the ejusdem generis rule. A departmental proceeding like penalty proceedings were, therefore, placed outside the scope of the said sub section. This view was quoted with approval by a learned Single Judge of the Bombay High Court in C.C. Industries & Others vs H.N. Ray and Another, at 453. These two cases, therefore, clearly support the view canvassed before us by the learned Additional Solicitor General. We have given our careful consideration to the submission made on behalf of the appellant, reinforced by the view expressed in the aforesaid two decisions. In considering the scope of the expression `other legal proceeding ' we have confined ourselves to the language of sub section (2) of section 40 of the before its amendment by 22 of 1973 and should not be understood to express any view on the amended provision. On careful consideration we are in respectful agreement with the view expressed in the aforesaid decisions that the wide expression `other legal proceeding ' must be read ejusdem generis with the preceding words `suit ' and `prosecution ' as they constitute a genus. In this view of the matter we must uphold the contention of the learned Additional Solicitor General that the penalty and adjudication 134 proceedings in question did not fall within the expression `other legal proceeding ' employed in section 40 (2) of the as it stood prior to its amendment by 22 of 1973 and therefore, the said procedings were not subject to the limitation prescribed by the said sub section. Mr. Nambiar, the learned counsel for the respondents strongly argued that we should not entertain the submission based on the ejusdem generis rule since it was not raised before the High Court. That indeed is true but being a pure question of law we have though it fit to entertain the same. We therefore, do not entertain this objection. In the result we allow this appeal and set aside the order passed by the learned Single Judge as well as the Division Bench which affirmed it and dismiss the respondent 's writ petition itself. We also set aside the order by which the appellant was directed to pay costs. We restore the adjudication order dated April 4, 1974 and all consequential orders, if any, passed thereunder. Interim stay granted on August 16, 1979 is vacated and the appellant will be entitled to recover the dues from the security furnished pursuant to that order. The appeal is allowed accordingly with no order as to costs. R.S.S. Appeal allowed. [/INST]When cloth control was introduced in Rewa State, 25 cloth dealers of Budhar, including the thirteen appellants, formed themselves into an Association to collect the quota of cloth to be allotted to them and to sell it on profit. The Association functioned through a President and a pioneer worker; they kept accounts and distributed profits. After cloth had been decontrolled and the work of the Association had come to an end, the appellants filed a suit against the first respondent for rendition of accounts for a portion of the period that he had been President of the Association and for realisation of the amount found due with interest. The suit was decreed by the trial Court but was, on appeal, dismissed by the judicial Commissioner. In appeal before the Supreme Court, the first respondent raised, for the first time, a preliminary objection that the suit was not maintainable as the Association consisting of more than 20 persons was not registered as required by section 4(2) Of the Rewa State Companies Act, 1935, and that consequently the members of the Association had no remedy against each other in respect of its dealings and transactions. The appellants objected to the raising of the new plea and contended that, nevertheless, the suit was maintainable Held, that the suit was not maintainable. In view of section 4(2) of the Act the Association was illegal. The reliefs claimed for rendition of accounts in enforcement of the illegal contract of partnership necessarily implied recognition by the Court that the Association existed of which accounts were to be taken. The Court could not assist the plaintiffs in obtaining their share of the profits made by the illegal Association. U.Sein Po vs U. Phyu, Rang. 540, not applicable. Held further, that the new point ought to be allowed to be raised. The question was a pure question of law and did not require the investigation of any facts. The objection rested on the provisions of a public statute which no court could exclude from its consideration. Surajmull Nargoremull vs Triton Insurance Company Ltd., (1924) L.R. 52 I.A. 126; Sri Sri Shiba Prasad Singh vs Maharaja Srish Chandra Nandi, (1949) L.R. 76 I.A. 244, followed. The analogy of section 69(3)(a) of the , did not apply, an under that Act an unregistered firm was 97 770 not illegal. Besides, the suit was not one for accounts of a dissolved firm but of an illegal Association which was in existence id at the relevant time. </s>

<s>[INST] Summarize the judgementeal No. II of 1949. Appeal by special leave from the judgment of the Allaha bad High Court (Harish Chandra J.) dated 11th November, 1949, in Criminal Miscellaneous Case No. 960 of 1949. The facts of the case and the arguments of counsel are set out fully in the judgment. Alladi Krishnaswami Iyer (Alladi Kuppuswami with him) for the appellant. M.C. Setalvad, Attorney General for India (V. N. Sethi, with him) for the respondent. May 5. The judgment of Kania C.J. and Patanjali Sastri J. was delivered by PATANJALI SASTRI J. This is an appeal by special leave from an order of the High Court at Allahabad dismiss ing an application under sections 491 and 561 A of the Code of Criminal Procedure for release of the appellant who was arrested in pursuance of an extradition warrant issued by the Regional Commissioner of the United State of Rajasthan who is the principal officer representing the Crown in the territory of that State. The appellant who is a member of the Uttar Pradesh Civil Service was appointed in 1948 to serve what was then known as the Tonk State in various capacities, and during such service he is alleged to have helped the Nawab in obtaining the sanction of the Government of India to the payment of Rs. 14 lakhs to the Nawab out of the State Treasury for the discharge of his debts, and to have induced the Nawab by threats and deception to pay the appellant, in return for such help, sums totalling Rs. 3 lakhs on various dates. On these allegations the appellant is charged with having committed offences under section 383 (Extortion) and 575 section 420 (Cheating) of the Indian Penal Code which are extraditable offences under the (hereinafter referred to as "the Act"). The warrant was issued under section 7 of the Act to the District Magis trate, Nainital, where the appellant was residing after reverting to the service of the Uttar Pradesh Government, to arrest and deliver him up to the District Magistrate of Tonk. The appellant 's case is that the sum of Rs. 3 lakhs was paid to him by the Nawab to be kept in safe deposit in a bank for the Nawab 's use in Delhi, that no offence was committed and that the amount was returned when demanded by the authorities of the Tonk State. The warrant was issued mala fide on account of enmity. Various technical objections were also raised to the validity of the warrant and to the jurisdiction of the Magistrate at Nainital to take cogni sance of the matter and arrest the appellant. The High Court overruled all the objections and dismissed the application for the release of the appellant. On behalf of the appellant Mr. Alladi Krishnaswami Aiyar contended that section 7 of the Act under which the warrant purports to have been issued had no application to the case and that the entire proceedings before the Magistrate were illegal and without jurisdiction and should be quashed. Learned counsel, relying on section 18 of the Act which provides that nothing in Chapter III (which contains section 7) shall "derogate from the provisions of any treaty for the extradition of offenders," submitted that the treaty entered into between the British Government and the Tonk State on the 28th January, 1869, although declared by section 7 of the Indian Independence Act, 1947, to have lapsed as from the 15th August, 1947, was continued in force by the "Stand still Agreement" entered into on the 8th August, 1947, that that treaty exclusively governed all matters relating to extradition between the two States, and that, inasmuch as it did not cover the offences now charged against the appel lant, no extradition of the appellant could be demanded or ordered. 576 The Attorney General appearing for the Government ad vanced three lines of argument in answer to that contention. In the first place, the standstill agreement entered into with the various Indian States were purely temporary ar rangements designed to maintain the status quo ante in respect of certain administrative matters of common concern pending the accession of those States to the Dominion of India, and they were superseded by the Instruments of Acces sion executed by the Rulers of those States. Tonk having acceded to the Dominion on the 16th August, 1947, the stand still agreement relied on by the appellant must be taken to have lapsed as from that date. Secondly, the treaty was no longer subsisting and its execution became impossible, as the Tonk State ceased to exist politically and such sover eignty as it possessed was extinguished, when it covenanted with certain other States, with the concurrence of the Indian Government "to unite and integrate their territories in one State, with a common executive, legislature and judiciary, by the name of the United State of Rajasthan," the last of such covenants, which superseded the earlier ones, having been entered into on the 30th March, 1949. Lastly, even assuming that the treaty was still in operation as a binding executory contract, its provisions were in no way derogated from by the application of section 7 of the Act to the present case, and the extradition warrant issued under that section and the arrest made in pursuance thereof were legal and valid and could not be called in question under section 491 of the Criminal Procedure Code. As we are clearly of opinion that the appellant 's contention must fail on this last ground, we consider it unnecessary to pronounce on the other points raised by the AttorneyGeneral especially as the issues involved are not purely legal but partake also of a political character, and we have not had the views of the Governments concerned on those points. It was not disputed before us that the present case would fall within section 7 of the Act, all the requirements thereof being satisfied, if only the applicability of 577 the section was not excluded, under section 18, by reason of the Extradition Treaty of 1869, assuming that it still subsists. The question accordingly arises whether extradi tion under section 7 for an offence which is not extradita ble under the treaty is, in any sense, a derogation from the provisions of the treaty, which provides for the extradition of offenders for certain specified offences therein called "heinous offences," committed in the respective territories of the high contracting parties. Under article 1 the Gov ernment of the Tonk State undertakes to extradite any per son, whether a British or a foreign subject, who commits a heinous offence in British territory. A reciprocal obliga tion is cast by article 2 on the British Government to extradite a subject of Tonk committing such an offence within the limits of that State. Article 3 provides, inter alia, that any person other than a Tonk subject committing a heinous offence within the limits of the Tonk State and seeking asylum in British territory shall be apprehended and the case investigated by such Court as the British Govern ment may direct. Article 4 prescribes the procedure to be adopted and the conditions to be fulfilled before extradi tion could be had, and article 5 enumerates the offences which are "to be deemed as coming within the category of heinous offences" which, however, do not include the of fences charged against the appellant. The argument on behalf of appellant was put thus: The maxim expressio unius est exclusio alterius is applicable, as pointed out by McNair on The Law of Treaties, (1938 pp. 203, 204), to the interpretation of treaties. According to that rule the treaty in question should be read as allowing extradition only for the specified offences and for no others, that is to say, as implying a prohibition of extra dition by either State for any other offence than those enumerated in article 5. Further, while the treaty entitled each of the high contracting parties to demand extradition on a reciprocal basis, an unilateral undertaking by the Indian Government to grant extradition for an offence for which it could not claim extradition under the treaty 578 violates the principle of reciprocity which is the recog nised basis of all international compacts for extradition. Such an arrangement places the State of Tonk in a more advantageous position which was not contemplated by the framers of the treaty. And where, as here, the person whose surrender is demanded is an Indian subject who is not liable to be extradited under the treaty, his surrender under section 7 trenches upon the liberty of the subject. In so far, therefore, as that section authorises extradition of a person, especially when he is an Indian subject, for an offence which is not extraditable under the treaty, it derogates from the provisions of the treaty within the meaning of section 18, and its application to the present case is thereby excluded. The argument proceeds on a miscon ception and cannot be accepted. No doubt the enumeration of "heinous offences" in arti cle 5 of the treaty is exhaustive in the sense that the high contracting parties are not entitled, under the treaty, to claim extradition of criminals in respect of other offences. But we cannot agree that such of enumeration implies a prohibition against either those parties providing by its own municipal laws for the surrender of criminals for other offences not covered by the treaty. It is difficult to imagine why the contracting States should place such a fetter on their respective legislatures in advance not only in regard to their subjects but also in regard to alien offenders, for, if such prohibition is at all to be implied, it should cover both. As pointed out in Wheaton 's Interna tional Law, there is no universally recognised practice that there can be no extradition except under a treaty, for some countries grant extradition without a. treaty: (Fourth Edition, sections 116 (a) to (d), pp. 186 189). No doubt the constitutional doctrine in England is that the Crown makes treaties with foreign States for extradition of criminals but those treaties can only be carried into effect by Act of Parliament: (Ibid section 116 (b), p. 187). Accordingly, the extradition Acts are made applicable by an Order in Council in the case of each State which enters into an extradition treaty 579 with the Crown, and they are made applicable only so far as they can be applied consistently with the terms and condi tions contained in the treaty. Under such a system where the high contracting parties expressly provide that their own subjects shall not be delivered up, as in the case of the treaty between England and Switzerland, the power to arrest and surrender does not exist: Regina vs Wilson(1). This, it was observed by Cockburn C.J. in that case, was a "serious blot" on the British system of extradition, and the Royal Commission on Extradition, of which he was the chairman, recommended in their report that "reciprocity in this matter should no longer be insisted upon whether the criminal be a British subject or not. If he has broken the laws of a foreign country his liability to be tried by them ought not to depend upon his nationality . The convenience of trying crimes in the country where they were committed is obvious. It is very much easier to transport the criminal to the place of his offence than to carry all the witnesses and proofs to some other country where the trial is to be held:" (Wheaton, section 120 (a), pp. 197, 198). Evidently, similar considerations led to the passing of the Act by the Indian Legislature providing for the surrender of criminals, including Indian subjects, for a wide variety of offences, with power to the Governor General in Council to add to the list by notification in the Gazette generally for all States or specially for any one or more States. This statutory authority to surrender cannot of course enlarge the obliga tion of the other party where an extradition treaty has been entered into, and this is made clear by section 18. But it is equally clear that the Act does not derogate from any such treaty when it authorises the Indian Government to grant extradition for some additional offences, thereby enlarging, not curtailing, the power of the other party to claim surrender of criminals. Nor does the Act derogate, in the true sense of the term, from the position of an Indian subject under the treaty of 1869. That treaty created no right in the subjects of either (1) 580 State any more than in fugitive aliens not to be extradited for other than "heinous offences. " It is noteworthy that even in Wilson 's case, (ubi supra) where there was an excep tion in the treaty in favour of the subjects of the con tracting States, the decision was based not on the ground that the treaty by itself conferred any right or privilege on English subjects not to be surrendered but on the ground that the Order in Council applying the Extradition Act, 1870, to Switzerland limited its operation, consistently with the terms of the treaty, to persons other than English subjects. It is, therefore, not correct to say that, by providing for extradition for additional offences, the Act derogates from the rights of Indian citizens under the treaty or from the provisions of the treaty. We are accord ingly of opinion that the arrest and surrender of the appel lant under section 7 of the Act is not rendered unlawful by anything contained in the treaty of 1869, assuming that it still subsists. The appeal fails and is dismissed. FAZL ALI J. I have had the advantage of reading the judgments prepared by my brothers Sastri and Mukherjea, who have given different reasons for arriving at the same con clusion. As I am inclined to agree with the line of reason ing in both the judgments, I concur in the order that this appeal should be dismissed. MAHAJAN J. I agree with the judgment going to be deliv ered by my brother Mukherjea. For the reasons given therein this appeal should be dismissed. MUKERJEA J. This appeal, which has come up before us on special leave granted by this Court, is directed against a judgment of Harish Chandra J. of the Allahabad High Court dated 11th of November, 1949, by which the learned Judge dismissed an application of the appellant under sections 491 and 561 A of the Criminal Procedure Code. The facts which are material for purposes of this appeal are not in controversy and may be shortly stated as follows: The appellant Dr. Ram Babu 581 Saksena, who is a resident of the United Provinces, was a member of the Executive Civil Service in that province, and during his official career, extending over SO years, held various important posts, both in and outside that province. In January, 1948, he was appointed Administrator of the Tonk State, where a dispute was going on at that time regarding succession to the rulership of the State between two rival claimants. On 11th of February, 1948, the dispute was set tled and Ismail Ali Khan was recognised as the Nawab or the Ruling Prince of the State and appellant was then appointed Dewan and Vice President of the State Council, of which the Nawab was the President. In April, 1948, the Tonk State, together with several other States in Rajputana, integrated and formed together the United State of Rajasthan and the appellant thereupon became the Chief Executive Officer of the Rajasthan Government. Towards the end of July, 1948, he got another special post under the Rajasthan Government, but soon afterwards, he took leave and proceeded to Naini Tal, where he has been residing since then. On 23rd May, 1949, he was arrested at Naini Tal on the strength of a warrant issued under section 7 of the , by Shri V.K.B. Pillai, Regional Commissioner and Political Agent of the United State of Rajasthan. The warrant, which is dated the 8th of May, 1949, was addressed to the District Magistrate of Naini Tal and directed the arrest of Dr. Saksena and his removal to Rajasthan, to be delivered to the District Magistrate of Tonk for enquiry into certain of fences against the laws of that State which he was alleged to have committed. After his arrest, the appellant was released on bail in terms of the warrant itself and was directed to be present before the District Magistrate of Tonk on the 7th of June, 1949. The allegations against the appellant in substance are, that while he was 'the Dewan of the Tonk State and Vice President of the State Council, the Nawab, being in urgent need of money to meet his personal demands, requested Dr. Saksena to help him in obtaining for his own use 582 a sum of Rs. 14 lakhs from the State Treasury. Dr. Saksena promised his assistance on condition that the Nawab would give him a sum of Rs. 3 lakhs out of this amount as his share. By dint of his efforts, the appellant succeeded in inducing the State Ministry to pay the full amount of Rs. 14 lakhs to the Nawab in different instalments. The first instalment, amounting to over Rs. 21/2 lakhs was paid on 31st March, 1948, and a further sum of Rs. 5 lakhs was paid on 21st of April following. On that date, it is said, the Nawab paid to Dr. Saksena a sum of Rs. 1,50,000 which was only half of the promised amount. A few days later, Dr. Saksena pressed for payment of the balance and held out threats to the Nawab that in case the money was not paid, the latter would find himself in serious difficulties as his position as a Ruling Prince of the State was not at all secure and there were grave charges against him. As a result of these threats and misrepresentations, the Nawab was induced to pay to the appellant the balance of Rs. 1,50,000 in two instalments. The matter became known to the Regional Commissioner some time in November 1948 and he called Dr. Saksena for an interview and succeeded in getting back from him the entire sum of Rs. 3 lakhs which the Nawab had paid. On the basis of these facts, Dr. Saksena has been accused of having committed offences under sections 383 and 420 of the Indian Penal Code. On 3rd June, 1949, Dr. Saksena filed an application in the High Court of Allahabad under sections 491 and 561 A of the Criminal Procedure Code, complaining of illegal and unauthorised detention under the warrant of the Regional Commissioner of Rajputana dated the 8th of May, 1949. The legality of the warrant and of arrest thereunder was at tacked on a number of grounds. It was contended, first of all, that the applicant was falsely implicated by the Nawab on account of enmity which grew up between them for various reasons and the allegations made were totally false. It was next said that the District Magistrate of Naini Tal could not take cognizance of the matter without the previous 583 sanction of the U.P. Government under section 197 of the Criminal Procedure Code and that the sanction of the Rajpra mukh of the United State of Rajasthan was also necessary before any proceeding could be initiated. The third and the main contention was that the alleged offences being said to have been committed in the State of Tonk, the case would be governed by the provisions of the Extradition Treaty entered into between the British Government and the Tonk State on 28th of January, 1869, and as neither "extortion" nor "cheating" was mentioned in the list of offences for which extradition was permissible under that Treaty, the warrant of arrest issued under section 7 of the Extradition Act was wholly illegal and unauthorised. It is admitted that these offences are specified in the Schedule to the Indian Extra dition Act of 1903, but it was said that section 18 of the Extradition Act expressly made the Act inapplicable when its provisions "derogated" from those of a Treaty. Lastly, it was urged that the extradition warrant was a mala fide step taken by the Nawab of Tonk with the help of his friend the Regional Commissioner of Rajasthan for ulterior purposes and that it constituted a fraud upon the Statute and an abuse of the processes of law. The application was heard by Harish Chandra, J. sitting singly, and by a judgment dated 11th of November, 1949, which fully and elaborately dis cussed the different points raised in the case, the learned Judge rejected the application of the petitioner. No cer tificate was given by the High Court under section 205 (1) of the Government of India Act, 1935, and the present appeal has been brought to this Court on the strength of special leave granted by it. Sir Alladi Krishnaswami Aiyar, who appeared in support of the appeal, has very properly not pressed before us all the points that were canvassed on behalf of his client in the Court below. His contention, in substance, is that the rights of extradition in the present case should be regulat ed exclusively by the provisions of the Extradition Treaty that was entered into between the Tonk State and the British Government 584 on 28th of January,. 1869, and was subsequently modified by a supplementary ,Treaty in the year 1887. This Treaty, it is argued, has not been abrogated or rendered ineffective in any way by reason of the merger of the Tonk State in the United State of Rajasthan, and the decision of the High Court on this point is erroneous. According to the provi sions of this Treaty, no extradition is permissible in respect to offences of "extortion" and "cheating" with which the appellant is charged and the warrant of arrest issued by the Political Agent is consequently illegal and ultra vires. It is conceded by Sir Alladi that if section 7 of the , is held to be applica ble to the facts of the present case, the warrant of arrest issued by the Political Agent of Rajasthan could not be assailed as invalid or inoperative; but his contention is that section 18 of the Extradition Act makes an express reservation in cases where Treaty rights exist and to the extent that the provisions of Chapter III of the Extradition Act derogate from those of any Treaty relating to extradi tion of offenders, the Treaty is entitled to prevail. To appreciate the merits of this contention, it may be convenient to refer at this stage to a few sections of the of 1903 as well as to the material provisions of the Extradition Treaty between the Tonk State and the British Government which have a bearing upon the present question. Chapter 111 of the deals with surrender of fugitive criminals in case of States other than foreign States and section 7, with which this chapter opens, provides as follows: "(1) Where an extradition offence has been committed or is supposed to have been committed by a person, not being a European British subject, in the territories of any State not being a foreign State, and such person escapes into or is in British India, and the Political Agent in or 1or such State issues a warrant, addressed to the District Magis trate of any district in which such person is believed to be, (or if such person is believed to be in any Presidency town 585 to the Chief Presidency Magistrate of such town), for his arrest and delivery at a place and to a person or authority indicated in the warrant such Magistrate shall act in pursu ance of such warrant and may give directions accordingly. " * * * * The expression "extradition offence" has been defined in section 2 (b) and means "any such offence as is described in the First Schedule to the Act. " The First Schedule gives a catalogue of offences described with reference to specific sections of the Indian Penal Code and it includes offences punishable under sections 383 and 420 of the Indian Penal Code prima facie, it seems therefore that all the conditions laid down in section 7 of the Extradition Act are fulfilled in the present case. the warrant has been issued by the Political Agent of a State which is not a "foreign State" as defined by the Act and the offences with which the appellant is charged are "extradition offences" as specified in Sched ule i. Sir Alladi 's contention, as stated above, is that section 7, which is in Chapter III of the Extradition Act, is controlled by section 18 which lays down that "nothing in this chapter shall derogate from the provisions of any treaty for the extradition of offenders, and the procedure provided by any such treaty shall be followed in any case to which it applies, and the provisions of this Act shall be modified accordingly. " Turning now to the Extradition Treaty between the Tonk State and the British Government, it will be seen that the First Article of the Treaty provides for extradition, where a British subject or a foreign subject commits a "heinous" offence in British territory and seeks shelter within the limits of the Tonk State. The Second Article deals with an offender who is a subject of the Tonk State and having committed a "heinous" offence within the State seeks asylum in British territory; while the Third Article relates to a person other than a Tonk subject who commits a "heinous" offence within the limits of the Tonk State and seeks asylum in British territory. The conditions 586 under which extradition could be had in all such cases and the procedure to be followed are laid down in article 4. Article 5 then gives a list of offences which would be deemed as coming within the category of "heinous" offences. It is not disputed that neither "cheating" nor "extortion" are mentioned in this list. The whole controversy, there fore, centers round the point as to whether in view of the provisions of the Extradition Treaty mentioned above, extra dition could legally be made or demanded in respect of offences coming under sections 383 and 420 of the Indian Penal Code which are mentioned in the list of offences specified in Schedule I to the Extradition Act but do not find a place in article 5 of the Treaty. Could it be said that the provisions of the Extradition Act, derogate in this respect from the Treaty between the Tonk State and the British Government and consequently, the terms of the Treaty would override the statute as indicated in section 18 of the Extradition Act ? The learned Attorney General, who appeared for the Government of India, put forward a two fold argument in reply to the contention of Sir Alladi. He argued in the first place, that section 18 of the has no application to the present case inasmuch as the Extradition Treaty between the Tonk State and the British Government, upon which the appellant relies, does not subsist and cannot be enforced, at the present day. The other contention is that even if the Treaty still subsists, there is nothing in its terms which prohibits extradition for offences other than those described as heinous offences in article 5. It is argued that "to derogate" means "to detract" or "to take away" and the Schedule to the Extradi tion Act by mentioning certain offences, which do not occur in the list of "heinous offences" as given in the Treaty, cannot be said to have derogated from the terms of the Treaty. Both these points were fully argued on both sides and it is clear that if on either of these points a decision is reached adverse to the appellant, the appeal is bound to fail. 587 So far as the first point is concerned, Mr. Setalvad has drawn our attention to various political changes that have come over the Tonk State since the conclusion of the Extra dition Treaty in 1869. In 1869 Tonk was one of the Native States in India with a "separate" political existence of its own and the Treaty that was entered into in that year was meant to regulate exclusively the rights and obligations in matters of extradition of offenders as between the Tonk State on the one hand and the British Government on the other. In 1887 there was a modification of the Treaty but it is not disputed that the modification made certain alter ations in the procedure which are not material for our present purpose. The major political change with regard to all Indian States which vitally affected their existing Treaties with the British Government occurred on the 15th of August, 1947, when India became an Independent Dominion. Section 7 of the Indian Independence Act provided inter alia that: "(1) As from the appointed day (b) The suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States . . As a result of this provision, the Extradition Treaty between Tonk and the British Government must be deemed to have lapsed with effect from the 15th of August, 1947. If matters stood there, obviously there would be nothing left upon which section 18 of the could possibly operate. There was, however, a Standstill Agreement entered into by the Indian Dominion with the Indian States, the first article of which runs as follows: "1. (1) Until new agreements in this behalf are made, all agreements and administrative arrangements as to matters of common concern now existing between the Crown and any Indian State shall, in so far as may be appropriate, contin ue as between the Dominion of 588 India or, as the case may be, the part thereof, and the State. (2) In particular, and without derogation from the generality of sub clause (1) of this clause the matters referred to above shall include the matters specified in the Schedule to this agreement. " The Schedule does mention "extradition" as one of the matters to which the Standstill Agreement is applicable. This was certainly intended to be a temporary arrangement and Mr. Setalvad argues that as there was no Treaty in the proper sense of the term but only a substitute for it in the shape of a temporary arrangement, section 18 of the Extradition Act which expressly mentions a Treaty cannot be applicable. While conceding that prima facie there is force in the conten tion, I think that this would be taking a too narrow view of the matter and I should assume for the purposes of this case that under the Standstill Agreement the provisions of the Treaty of 1869 still continued to regulate matters of extradition of criminals as between the Tonk State on the one hand and the Indian Dominion on the other till any new agreement was arrived at between them. Though the Standstill Agreement was to take effect after the establishment of the Indian Dominion, the In strument was actually signed on 8th of August, 1947. On the 16th of August, 1947, Tonk acceded to the Dominion of India and one of the terms in the Instrument of Acces sion is that the "Ruler accepts the position that with regard to matters specified in the Schedule to the Instrument, the Dominion Legislature would be entitled to make laws for the State." "Extradition including the surrender of criminals and accused persons to parts of His Majesty 's Dominion outside India" is one of the matters specified in the Schedule. Thus the State gave up and surrendered in favour of the Dominion Legislature its right, to legislate in respect to extradition after the date of accession. Whether the existing Extradition Treaty was ipso facto abrogated by this Instrument of Accession is not so clear. Obviously, the Indian Dominion 589 could pass any legislation it liked regarding matters of extradition between the Tonk State, and any other State, either Indian or Foreign. No such law was, however, passed by the Indian Legislature except that very recently under an Adaptation Order the Extradition Act of 1903 has been made applicable to States under Group B in the Indian Constitution in which Rajasthan is included. It is to be noted that the Extradition Act itself, which is made applicable to the United State of Rajasthan, contains an express provision in section 18 which safeguards exist ing treaty rights. It is somewhat unusual that an Extradi tion Treaty would be subsisting even after the State had acceded to India but we have no materials before us upon which we could definitely hold that the Treaty has been expressly superseded or abrogated by the Indian Legislature. The next important thing is that in April, 1948, there was a Covenant entered into by the Rulers of nine States including Tonk, by which it was agreed by and between the covenanting parties that the territories of these nine States should be integrated into one State by the name of the United State of Rajasthan. This was done with the concurrence of the Dominion of India. Later on, on 12th of May, 1949, Mewar also became a party to this Covenant and the United State of Rajasthan was reconstituted by the integration of the territories of all the ten States. By the Covenant of Merger, the Covenanting States agreed to unite and integrate their territories in one State known as the United State of Rajasthan and to have a common executive, legislature and judiciary. The Rulers of all the States became members of the Council of Rulers and the President was designated as the Raj Pramukh of the United State. Article VI of the Covenant of Merger runs as follows: "(1) The Ruler of each Covenanting State shall, as soon as practicable and in any event not later than the first day of May, 1948, make over the administration of his State to the Raj Pramukh; and thereupon 590 (a) all rights, authority and jurisdiction belonging to the Ruler which appertain or are incidental to the Govern ment of the Covenanting State shall vest in the United State and shall hereafter be exercisable only as provided by this Covenant or by the Constitution to be framed thereunder; (b) all duties and obligations of the Ruler pertain ing or incidental to the Government of the Covenanting State shall devolve on the United State and shall be discharged by it; and (c) all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the United State. " The question now is how far was the Extradition Treaty between the Tonk State and the British Government affected by reason of the merger of the State into the United State of Rajasthan. When a State relinquishes its life as such through incorporation into or absorption by another State either voluntarily or as a result of conquest or annexation, the general opinion of International Jurists is that the treaties of the former are automatically termi nated. The result is said to be produced by reason of com plete loss of personality consequent on extinction of State life(1). The cases discussed in this connection are gener ally cases where independent States have ceased to be such through constrained or voluntary absorption by another with attendant extinction of the former 's treaties with other States. Thus the forceable incorporation of Hanover into the Prussian Kingdom destroyed the previous treaties of Hanover. The admission of Texas into the United States of America by joint resolution extinguished the Treaties of the Independent Republic of Texas(2). The position is the same when Korea merged into Japan. According to Oppenheim, whose opinion has been relied upon, by Sir Alladi, no succession of rights and duties ordinarily takes place in such cases, and as political and personal treaties presuppose the exist ence of a contracting State, (1) Vide Hyde on International Law, Vol. III, p. 1529. (2) Vide Hyde on International Law, Vol. II1, p. 1531, 591 they are altogether extinguished. It is a debatable point whether succession takes place in cases of treaties relating to commerce or extradition but here again the majority of writers are of opinion that they do not survive merger or annexation(1). The remarks quoted above do not, however, seem quite appropriate to a case of the present description. Here there was no absorption of one State by another which would put an end to the State life of the former and extinguish its personality. What happened here was that several States voluntarily united together and integrated their territories so as to form a larger and composite State of which every one of the covenanting parties was a component part. There was to be one common executive, legislature and judiciary and the Council of Rulers would consist of the Rulers of all the Covenanting States. It may not be said, therefore, that the Covenanting States lost their personality altogether and it is to be noted that for purposes of succession of Ruler ship and for counting votes on the strength of population and other purposes the Covenant of Merger recognises a quasi separation between the territories of the different States. But although such separation exists for some pur poses between one State territory and another, it is clear that the inhabitants of all the different States became, from the date of merger, the subjects of the United State of Rajasthan and they could not be described as subjects of any particular State. There is no such thing as subject of the Tonk State existing at the present day and the Ruler of Tonk cannot independently and in his own right exercise any form of sovereignty or control over the Tonk territory. The Government, which exercises sovereign powers, is only one, even though the different Rulers may have a voice in it. It seems to us that in those altered circumstances the Extradi tion Treaty of 1869 has become entirely incapable of execution. It is not possible for the Tonk State, which is one of the contracting parties to act in accordance with the terms of the treaty, for it has no longer any independent (1) Oppenheim on International Law, Vol. I, p. 152, 592 authority or sovereign rights over the Tonk territory and can neither make nor demand extradition. When as a result of amalgamation or merger, a State loses its full and inde pendent power of action over the subject matter of a treaty previously concluded, the treaty must necessarily lapse(1). It cannot be said that the sovereignty of the Tonk State in this respect is now vested in the United State of Rajasthan. The authority, so far as extradition was concerned, was already surrendered by the Tonk State in favour of the Dominion Government by the Instrument of Accession. But even assuming that these treaty rights could devolve upon the United State of Rajasthan by reason of article 6 of the Covenant of Merger, the latter, it seems to me, could be totally incapable of giving effect to the terms of the treaty. As has been said already, there could be no such thing as a subject of the Tonk State at the present moment and article 2 of the Treaty which provides for extra dition of Tonk subjects accused of having committed heinous offences within Tonk territory and seeking asylum elsewhere would be wholly infructuous. The United State of Rajasthan could not possibly demand extradition on the basis of this article, and if reciprocity, which is the essence of an Extradition Agreement, is gone, the Treaty must be deemed to be void and inoperative. The decision in Terlinden vs Ames (2) which was relied upon by Sir Alladi in course of his arguments, rather forti fies the view that I have taken. The question there was whether an Extradition Treaty between Prussia and the United States of America, which was entered into in 1852, could be given effect to after the incorporation of Prussia into the German Empire. The question was answered in the affirmative. It was pointed out inter alia that the Constitution of the German Empire left sufficient independent power and sover eignty to the States composing the confederation to enable them to act upon these treaties and it was observed by Chief Justice Fuller, who delivered the opinion of the Court, that where sovereignty in respect (1) Vide Hyde on International Law, Vol. p. 1535. (2) ; 593 to the execution of treaties is not extinguished and the power to execute remains unimpaired, outstanding treaties cannot be regarded as void. This is the real criterion and as obviously the power of the Tonk State to execute the treaty is altogether gone after the Covenant of Merger, the treaty cannot but be regarded as void. The other case cited by Sir Alladi, viz., that of Lazard Brothers vs Midland Bank Ltd.(1) has absolutely no bearing on this point. It laid down the well accepted proposition of International Law that a change in the form of government of a contracting State does not put an end to its treaties. The treaty entered into by the Czarist Russia could be given effect to after the Revolution, once the new government was recognised as a person in International Law. My conclusion, therefore, is that the Extradition Treaty between the Tonk State and the British Government in 1869 is not capable of being given effect to in the present day in view of the merger of the Tonk State in the United State of Rajasthan. As no treaty rights exist, section 18 of the has no application and section 7 of the Act has been complied with, there is no ground upon which we can interfere. In view of my decision on the first point, the second point does not require determination and I refrain from expressing any opinion upon it. In the result, the appeal fails and is dismissed. DAS J I substantially agree with the reasonings given in the judgment just delivered by my learned brother Mukher jea and concur in dismissing this application. Appeal dismissed. [/INST]While greasing the spur gear wheel of an oil mill, one of the hands of a workman got caught and had to be amputated. It appeared that at the time of the accident the cover of the spur gear wheel was not there. The respondent, who is the manager of the mill was prosecuted under section 92 of the for having failed to comply with section 21(1) (iv) (c) of the Act. The workman said that the cover had been removed by the respondent for repairs, while the case of the respondent was that the workman had himself removed it. The trial Judge was unable to accept either version and he acquitted the respondent observing that he could not be held liable if the cover was removed by someone, without his consent or knowledge. On appeal, the High Court affirmed the acquittal. Held: (i) The mere fact that someone else had removed the safeguard without the knowledge, consent or connivance of the occupier or manager does not provide a defence to him. When the statute says that it will be his duty to keep a guard in position while the machine is working and when it appears that he has not done so, it will be for him to establish that notwithstanding this he was not liable. (ii) Even where the occupier or manager could establish that somebody else had removed the fence, he has further to prove that he exercised due diligence to see that the fence, which under the Act was his duty to see was kept in position all along, had not been removed. </s>

<s>[INST] Summarize the judgementivil Appeal No. 479 of 1986. 578 From the Judgment and Order dated 18.3. 1985 of the Assam High Court in Civil Rule No. 139 of 1979. A.K. Ganguli, A. Mariarputham, A.D. Sikri and Dilip Tandon for the Appellant. Kapil Sibal, Additional Solicitor General, Rajiv Dhawan, Gopal Singh, C.V.S. Rao, Adv. (NP) and R.B. Misra for the appearing respondents. Hardev Singh and section Ravindra Bhat for the intervenor. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by special leave calls in question the judgment of the Guwahati High Court dated March 18, 1985, dismissing the appellant 's writ petition. The appellant is a resident of Tripura State. In his application in a representative capacity before the High court he main tained that he belonged to the Laskar community which had always been treated in the erstwhile State of Tripura as a Scheduled Tribe and on that basis in the State records was included in the Deshi Tripura community long before integra tion of the Ruler 's State of Tripura with the Union of India. Members of the Laskar community freely enjoyed all the benefits available to members of the Schedule Tribes until in 1976 the State Government decided to treat members of that community as not belonging to the Scheduled Tribes and issued instructions to the State authorities to imple ment the Government decision. That led to the filing of the petition before the High Court. In the writ petition appel lant prayed for appropriate directions to continue to treat the appellant and members of his community as belonging to the Scheduled Tribes and for a direction to the State Gov ernment to extend all the benefits admissible to members of the Scheduled Tribes to members of the Laskar community. Before the High Court the respondents disputed the claim and maintained that the Laskar community was never included in the Scheduled Tribes Order and as such there was no question of exclusion from the list. A historical study of the claim would show that in the past Tripura/Tripuri/Tippera which have been included in the Presidential Notification never included the Laskar community. Tripuras were. a TibetoDurman race akin to the Shan tribe and Tipperas were divided into four groups, namely, (i) Puran or original Tipperas; (ii) Jamatias; (iii) Noatias or Nutan Tripuras and (iv) Riangs. Respondents relied upon Government records and official publications in support of the aforesaid stand. 579 Before the High Court two circulars of the erstwhile State of Tripura, one being of December, 1930, and the other of February, 1941, as also the census report of the ex State of Tripura were produced in support of the claim advanced by the appellant. Several authorities of this Court were relied upon for finding out the scope of enquiry in a claim of this type and ultimately by the impugned judgment the High Court dismissed the writ petition but on the basis of a statement made by the Advocate General appearing for the State, it recorded: "We keep on record the statement made by the learned Advo cate General, Tripura, on instruction that as a result of the impugned Memorandum No. 18887 19077/TW/6 4(L D) dated 28.4. 1979 the certificates already issued would be treated as infructuous prospectively and not retrospectively and those who have already enjoyed the benefits by virtue of such Scheduled Tribe certificates they shall not be deprived of the benefits they have already enjoyed and the Memorandum shall be effective from its date prospectively insofar as the future benefits are concerned. " This appeal had come up for final hearing earlier and by a brief judgment reported in , a two Judge Bench recorded the following order: "The record before us shows that the people of the Laskar community have been treated as members of the Scheduled Tribes and there have been some letters from the Government of India to the State Government in support of that posi tion; it is, however, a fact that there has been no clear inclusion of the community in an appropriate Presidential Order. The appellant has maintained that even in the absence of such a clear specification in a Presidential Order, as a sub group under one of the notified categories, the appel lant 's community has been enjoying the privileges. We have been told by the learned counsel for the Union of India that the representation made by the appellant and members of his community for inclusion in the Presidential Order under Article 342 of the Constitution is being looked into and is being placed before the Parliamentary Committee in accord ance with the prescribed procedure for a review of the position. He has assured us that the Government of India will take steps to finalise the matter at an 580 early date and may in compliance with the procedure as prescribed, take a final decision. In case the community is not included in the Presidential Order, it would be open to the appellant to take such action as may be available in law. " The appellant waited for some time and approached the Government of India for quick action but when nothing hap pened, an application for directions was made in this Court. Several adjournments were taken but Government could not take any decision. Ultimately, by consent of parties, the order disposing of the appeal was recalled and the appeal was directed to be set down for re hearing. That is how the appeal is now before us. Articles 341 and 342 of the Constitution deal with Scheduled Castes and Scheduled Tribes respectively and contain almost identical provision. We may extract Article 342 dealing with Scheduled Tribes: "342.(1) The President may, with respect to any State or Union Territory and where it is a State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. (2) parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. " Article 366(25) defines 'Scheduled Tribes ' to mean such tribes or tribal communities or parts or groups within such tribal communities as are deemed under article 342 to be Sched uled Tribes for the purposes of this Constitution. The Constitution (Scheduled Tribes) (Union Territories) Order, 1950 relating to Tripura included 19 tribes within the notification. Items 15, 16, 17 and 18 are relevant for our purpose and they were: "15. Tripura or Tripuri, Tippera. 581 16. Jamatia 17. Noatia 18. Riang" Following the Reorganisation Act (37 of 1956), the Ministry of Home Affairs on October 29, 1956, notified the list of Scheduled Castes and Scheduled Tribes. In respect of the then Union Territory of Tripura the same communities were relisted. Then came the NorthEastern Area (Reorganisa tion) Act (81 of 1971) which in the Fourth Schedule con tained amendment to the Constitution (Scheduled Tribes) Order, 1950. Items 15 to 18 in the Scheduled contained the same descriptions. The Scheduled Castes & Scheduled Tribes Orders (Amendment) Act, (108 of 1976) in relation to Tripura in the Second Scheduled carried the same in Entries 7, 14, 16 and 18. It is, therefore, clear that in Tripura the scheduled tribes within the meaning of the definition given in article 366 of the Constitution have been the following: 'Jamatia, Noatia, Riang and Tripura/Tripuri/Tippera ' apart from 15 other tribes as specified. It is not necessary to refer to the 15 others inasmuch as it is the case of the appellant that Laskars are a part of the tribe named as Tripura, Tripuri or Tippera covered by Entry 18. Before adverting to the evidence upon which the appel lant relies in support of his stand, it is necessary that the scope of enquiry to be conducted in this regard by the Court may be determined. There are precedents of this Court which have to be first referred to. A Constitution Bench in the case of B. Basavalingappa vs D. Munichinnappa, ; examined the provisions of article 341 which contained similar provisions for the scheduled castes with reference to an election dispute. Wanchoo, J. spoke for the Constitu tion Bench thus: "Clause (1) provides that the President may with respect to any State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State. The object of this provision obviously is to avoid all disputes as to whether a particular caste is a Scheduled Caste or not and only those castes can be Scheduled Castes which are notified in the Order made by the President under article 341 after consultation with the Governor where it relates to 582 such castes in a State. Clause (2) then provides that Par liament may by law include in or exclude from the list of scheduled castes specified in a notification issued under cl. (1) any caste, race or tribe or part of or group within any caste, race or tribe. The power was thus given to Par liament to modify the notification made by the President under cl. Further cl. (2) goes on to provide that a notification issued under cl. (1) shall not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by cl. Clearly therefore article 341 provides for a notification and for its finality except when altered by Parliament by law . . Therefore in view of this stringent provision of the Constitution with respect to a notification issued under cl. (1) it is not open to any one to include any caste as coming within the notification on the basis of evidence Oral or documentary, if the caste in question does not find specific mention in the terms of the notification . . It may be accepted that it is not open to make any modification in the Order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also a part of caste A and there fore must be deemed to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in Order. Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order. " The factual dispute raised in the case before the Con stitution Bench was whether Voddar caste was included in Bhovi caste which was one of the notified castes. The Con stitution Bench dealt with the evidence and ultimately said: "In the circumstances therefore we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order. We may again repeat that we have referred to the evidence in this case only because there was undoubtedly no caste known as Bhovi in the Mysore State as it was before 1956 and we had to find out therefore which caste was meant by the word 'Bhovi ' as used in the Order. But for this fact it would not have been open to any party to 583 give evidence to the effect that caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies. " A similar dispute again came before a Constitution Bench in Bhaiyalal vs Harikishan Singh & Ors., ; with reference to a scheduled tribe in an election dispute. Gajendragadkar, CJ speaking for the Court said: "It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examina tion of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. " What we have extracted above clearly supports the view of the other Constitution Bench, namely, the list is intend ed to be final. We may now refer to a two Judge Bench decision in the case of Parsram & Anr. vs Shivchand & Ors. , ; Here again, the Scheduled Castes Order was in issue in an election dispute and the question for consideration was whether mochi was included in the notified caste of chamar. The Court referred to both the Constitution Bench judgments and indicated: "These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazeteers and the glossaries on the Punjab castes and tribes 584 to which reference was made at the Bar to find out whether Mochi and Chamar in some parts of the State at least meant the same caste although their might be some difference in the professions followed by their members, the main differ ence being that Chamars skin dead animals which Mochis do not. However that may be, the question not being open to agitation by evidence and being one the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a Mochi, he could still claim to belong to the scheduled caste of Chamars and be allowed to contest an election on that basis. " In Kishorilal Hans vs Raja Ram Singh & Ors., ; a two Judge Bench was called upon to decide whether jatav caste not mentioned in the scheduled castes of Datia district of Madhya Pradesh in the Order was included in chamar caste. The Court indicated: "If the matter were res integra we would have felt a good deal of difficulty in reconciling with the constitutional provisions the scheme followed in the state and the Orders concerned by which some caste has been includes in some districts of the same State and excluded in the other dis tricts. This Court, however, has in Bhaiyalal vs Harikishan Singh & Ors., supra, made observations repelling the conten tion that under article 341 of the Constitution the President was not authorised to limit the notification to parts of a State . . In Bhaiyalal 's case the appellant 's election had been challenged on the ground that he belonged to the Dohar caste which was not recognised as a scheduled caste for the district in question and so his declaration that he belonged to the Chamar caste which was a Scheduled Caste was improperly and illegally accepted by the Returning Officer. It was held that the plea that though the appellant was not a Chamar as such he could claim the same status by reason of the fact that he belonged to Dohar caste which is a sub caste of the Chamar caste could not be accepted. An enquiry of that kind would not be permissible having regard to the provisions contained in article 341 of the Constitution. " We may now refer to two separate judgments of this Court in the case Dina vs Narayan Singh, and Bhaiya Ram Munda vs 585 Anirudh Patar & Ors., ; Both were rendered by a common Bench of Shah (as he then was) and Bhargava, JJ. In the first case the question for consideration was inter pretation of Entry 12 in the Scheduled Tribes Order. The entry read. 'Gond including Mana '. The Court interpreted that Mana community was a substitute of Gond and on a proper construction of the entry Manas not being Gonds were not intended to be included. The decision in that case is not relevant for our purpose. In Bhaiya Ram 's case, the tribe specified in the Sched uled Tribes Order was Munda. The respondent was a Patar but he maintained that it was included in the notified tribe. The Bench was of the view that evidence was admissible for the purpose of showing what an entry in the Presidential Order was intended to mean though evidence could not be accepted for modifying the order by including a new tribe. Since the respondents ' case was that Patars were Mundas, evidence could be given to show that the entry 'Munda ' included 'Patar '. These authorities clearly indicate, therefore, that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated. It is, however, not open to the Court to make any addition or subtraction from the Presidential Order. The evidence in this case on which reliance has been placed in support of the claim that Laskars are included in the tribe described as 'Tripura/Tripuri/Tippera ' mainly consists of two circulars of the erstwhile State of Tripura. Circular No. 9 is of December, 1930. There is a narration therein to the following effect: "In this State Tripura Sampradaya means the following five communities ' 1. Puratan Tripura 2. Deshi Tripura (related to Laskar Class) 3. Noatia 4. Jamatia 5. Riang" 586 In Circular No. 10 which is of the year 1941, it has been said: "In this State Tripura Kshatriya denotes the following classes: 1. Puratan Tripura 2. Deshi Tripura (related to Laskar Class) 3. Noatia 4. Jamatia 5. Riang" The latter document related to census operation in the State. From these two documents it is clear that Deshi Tripura covered the Laskar class while there was another class called 'Tripura/Tripuri/ Tippera ' which did not relate to Laskar class. The Presidential Order has admitted the three tribes of Noatia, Jamatia and Riang in terms but while dealing with the two classes of Puratan Tripura and Deshi Tripura covering the Laskar class, it has adopted the de scription of those three terms without referring to Puratan or Deshi. The two Constitution Bench judgments indicate that enquiry is contemplated before the Presidential Order is made but any amendment to the Presidential Order can only be by legislation. We do not think we should assume jurisdic tion and enter into an enquiry to determine whether the three terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community; but we consider it appropriate to commend to the authorities con cerned that as and when the question is reviewed it should be examined whether the claim of the appellant representing the Laskar community to be included in the scheduled tribes is genuine and should, therefore, be entertained. Reservation has become important in view of the increas ing competition in society and that probably had led to the anxiety of the appellant and the people in his community to claim reservation. As pointed out by the Constitution Bench judgments which we have referred to above, the basis on which inclusion into or exclusion from the enumerated list made under article 342 is contemplated is the changing econom ic, educational and other situations of the members of any 587 particular tribe. Keeping that in view the State Government may initiate appropriate proposals for modification in case it is satisfied and after appropriate enquiry if the author ities are satisfied that the claim is genuine and tenable, amendment may be undertaken as provided by the Constitution. This Court has indicated in some of the judgments re ferred to above that as a result of the detailed enquiry made as to the economic status, the level of education and the necessity of protection, inclusion into or exclusion from the Order is made. This material relating to the Laskar tribe in 1930 or 1941 may not have been considered suffi cient before the respective Orders were made for including the Laskars, said to have been covered by the description of Deshi Tripura. Therefore, even if historically this tribe was covered by the general description of Tripura, that by itself may not justify its inclusion in the Order as a scheduled tribe. That is an additional feature which has weighed with us in taking our decision not to interfere in the matter. The claim of the appellant is dismissed so far as this Court is concerned but the observations which we have made may be kept in view. There shall be no order for costs through out. Y. Lal Appeal dismissed. [/INST]These writ petitions have been fried by Group 'C ' (class III) employees of the Railways working in its Transportation (Traffic) Department. The said Department has different streams e.g. 'Control Stream ' and 'Traffic Stream ' and the employees working therein have different scales of pay. For purposes of their promotion to Group B posts, it was neces sary to fix their inter se seniority, as only those employ ees from the different streams could be considered for promotion as would fall within the zone of consideration as per seniority list. As the zone of consideration is deter mined with reference to the number of vacancies in Group B for which selection is held, at any point of time, the position of the employee in the combined seniority list of all the streams is important. The zone of consideration of the employees for promotion Is fixed in the order of the combined seniority of the employees from the different streams. The Department prior to the implementation of the recommendations of the Third Pay Commission fixed the inter se seniority of the employees of Group C employees on the basis of the grade i.e. employees working In a higher grade on a regular basis were treated senior to those working in the lower grade and the said principle worked well until the enforcement of the recommendations of the Third Pay Commis sion w.e.f. 1.1.1973, when higher or lower scales of pay came to be fixed in respect of certain posts which were having the same scale of pay upto 31.12.1972. This presented difficulty in fixing the inter se seniority of the employees and the Railway Board in order to resolve the difficulty issued circulars from time to time indicating how their seniority should be fixed but for some reason or the other, the dissatisfaction amongst the employees in the matter of seniority continued. Being aggrieved by the experiments which according to the petitioners only resulted in chaos and confusion, employees of the Control Stream have flied the writ petition on the Issue of a combined seniority list published by the administration on the basis 451 of instructions on 15.6.85, as they found themselves exclud ed from the panel of staff to be taken into consideration for promotion to Group B. They pray that the circular dt. 6.1.84 and the follow up action taken culminating in the Selection List be set aside. The petitioner challenge the validity of two circulars issued by the Board, one on 29.7.83 and the other on 26.1.2.1983, restructuring the cadres as discriminatory as according to them they envisage 'mass upgradation ' to their detriment. The question for determination is whether the principle adopted on the strength of these circulars for fixing the inter se seniori ty of these employees is proper. Dismissing the writ petitions with liberty to the Peti tioners to move the Central Administrative Tribunal, if so advised with fuller facts, this Court, HELD: The inequity is not apparent. Having to deal with two different streams, differently placed, the Government has to find out an equitable solution and it has been grop ing towards it. One method would perhaps have been to have fixed quotas for promotion from each of the streams but that is not necessarily the only method. An alternative method is being attempted here and the principle that grades of Rs.700 900 and above should be considered together being conceded the Department is trying to give some weightage by granting upgradation to each stream based on its total strength in order to balance the promotional chances in both the streams. It is possible that some individual cases may be affected but no answer to the question whether any class discrimination has resulted can be given unless fuller details are available and the practical impact of the latest position is placed before the Court. [463A C] </s>

"<s>[INST] Summarize the judgementiminal Appeal No. 14 of 1968.\nAppeal by special leave from the ju(...TRUNCATED)

"<s>[INST] Summarize the judgementAppeal No. 124 of 1951.\nAppeal by Special Leave granted by His Ma(...TRUNCATED)

"<s>[INST] Summarize the judgementivil Appeal No. 1347 of 1981 From the judgment and Order dated 24.(...TRUNCATED)

"<s>[INST] Summarize the judgementSpecial Leave Petition (Civil) Nos.\n12 12A of 1988.\nFrom the Jud(...TRUNCATED)