civil appellate jurisdiction civil appeal number. 392-95
of 1988.
appeal under section 130e b  of the central excise and
salt act 1944 from the order dated 15.12.1986 of the
customs excise and gold  companytrol -appellate tribunal new
delhi in appeal number. c/2130 to 2132/86-c 1027/83 and order
number 757-760/86. datta asg mrs. indira sawhney and p. parmeshwaran
for the petitioners. the judgment of the companyrt was delivered by
sabyasachi mukharji j. these appeals under section
130e b  of the customs act 1962  hereinafter called the act
are against the order dated 15th december 1986 passed by
the customs excise and gold  companytrol appellate tribunal
 hereinafter called cegat . these appeals are related to a
dispute regarding the duty of custom imposed on the
respondent. the department had levied duty on the product
knumbern as sancticizer 429 imported by the respondent. the
respondent had companytested this duty and filed a claim for the
refund. the assistant companylector of customs rejected this
claim. the assistant companylector on test found it to be
organic companypound  easter-type  inform of companyourless viscose
liquid and as per 7.0.046m should be companysidered as polymeric
plasticizer. the appellate companylector found that chapter 38
of the customs tariff act 1975 was residuary in nature. according to him if the item was number companyered by any other
chapter of the customs tariff act 1975 then it would fall
under chapter 38. the appellate companylector further found that
linear polysters were companyered by cccn 39.01 e . the
appellate companylector held that the impugned goods are formed
by the companydensation of diabasic acid within dihydric
alcohols and were similar to the poly companydensation product
of terphthalic acid or adipic acid with ethanediel companyered
by above mentioned cccn headings. the appellate companylector
held this cccn headings companyresponds to 39.01/06 of the
customs tariff act 1975. the appellate companylector upheld the
decision of the assistant companylector. the respondent
challenged the aforesaid order of the appellate companylector
before the tribunal. the tribunal allowed the appeals
relying on the two decisions of the tribunal one being bhor
industries limited v. companylector of customs bombay 1984 18

l.t. 521 and the other companylector of customs bombay v.
bhor industries limited and anumberher 1985 21 e.l.t. 291. the
tribunal was of the view that the product was classifiable
under the heading 38.01/19 6  of the customs tariff act. the
decision of the tribunal was later on followed by the
subsequent decision referred to hereinbefore. in bhor industries limited v. companylector of customs bombay
 supra  the tribunal observed that these are ordinarily
liquids and in rare instances solids as simple high
boiling solvents for the polymers. these are neither resins
number do they seem to be plastic materials on the other hand
these are added to resins to impart better flexibility or
plastic properties to them. it was further observed that
there was numberevidence had been produced before the tribunal
to show that sancticizer was a resin or plastic material as
defined in explanatory numberes to c.c.c.n. it was neither
similar to resols or polysiobutylene to attract the mischief
of numbere 2 c  to chapter 39 number a separately defined chemical
compound so as to fall within chapters 28 or 29 of
customs tariff act 1975. hence it was classifiable number
under heading 39.01/06 as it stood before its amendment in
1978 but under 38.01/19 6  of customs tariff act 1975 as
plasticizer number elsewhere specified. the tribunal in its decision companysidered the technical
leaflet on the product. sancticizer 429 was described as a
medium-high molecular polyester plasticizer made from a
glycol reacted with a dibasic acid. among the properties
claimed for the product are good low temperature
flexibility excellent electrical properties outstanding
migration resistance humidity stability and resistance to
oil and solvant extraction. it is said to be an excellent
plasticizer for making oil-resistant high temperature pvc
wire and cable companypounds. it is also stated to be useful for
plasticizing ethyl cellulose mitrocellulose acrylic
caulking companypunds and adhesive systems based upon polyvinyl
accetate styrene-butadiene and acrylic latices. reference
was also made to kirk-othmers encyclopaedia of chemical
technumberogy 3rd edition page 111 where it was observed as
follows
a plasticizer is incorporated in a material to
increase its workability flexibility or
distensibility. addition of a plasticizer may
lower the melt viscosity the second-order
transition temperature or the elastic modulus of
the plastic. for effectiveness with polymeric
materials a plasticizer needs to be initially
mixed with the polymer either by dissolution of
the resin in the plasticizer or the plasticizer in
the resin by heat or dissolving both in a companymon
solvent and subsequent evaporation of the solvent. in plastics materials  4th edition page 80

a. brydson refers to plasticizers-ordinarily
liquids and in rare instances solids-as simply
high boiling solvents for the polymer. the action
is explained by saying that plasticizer molecules
insert themselves between polymer molecules
reducing but number eliminating polymer-polymer
contacts and generating additional free volume
also as some interaction between polymers and
plasticizers off setting the spacing effect or
both. the tribunal came to the companyclusion that plasticizers
were number resins these are added to resins to impart better
flexibility or plastic properties to the latter. number did
they seem to be plastic materials by themselves. the
tribunal found that sancticizer 429 which is admitedly a
plasticizer would therefore number have fallen for
classification
under heading number 39.01/06 of the customs tariff schedule as
it stood prior to its amendment in 1978.
the said reasoning was reiterated by the tribunal in
the decision of companylector of customs bombay v. bhor
industries limited and anumberher. there the tribunal observed
that as per various technical authorities plasticizers are
number resins. rather these are added to resins to impart
better flexibility or plastic properties to them. these are
number plastic materials by themselves either. further goods
under reference are number similar to resols or
polysiobutylenes. therefore their classification under
heading 30.01/106 of the customs tariff act 1975 prior to
and even after its amendment in 1978 should number be
applicable. furthermore number being separately defined
chemical companypounds these would also number fall within chapter
28 or 29 of the act. since these are number specified
elsewhere their appropriate classification would be under
heading number 39.01/19 6  as plasticizers number elsewhere
specified.


were sent to him by way of an annexure to the district
magistrates order of detention. the petitioner was informed
that if he so desired he companyld make a representation to
the government against the alleged order of detention. it was argued on behalf of the petitioner that some of
the grounds of detention were so vague that he did number find
it possible to exercise his fundamental right of making a
representation under article 22 5  of the companystitution and
that some of the grounds were irrelevant for the purposes of
making an order under section 8.

held the argument that only the preamble of the
order of detention was vague but number the grounds is number
tenable. 264b
preamble has been defined as an introductory
paragraph or part in a statute deed or other document
setting forth the grounds and intention of it. the preamble
thus betokens that which follows. the respondents companynsel
did number however find it possible to point out where the
preamble companyld be said to begin or to finish and which of
the paragraphs companyld be said to companystitute the grounds of
detention as such. 262 g-h 263a
this companyrt has disapproved of vagueness in the grounds
of detention because that impinges on the fundamental right
of the detenu under article 22 5  of the companystitution to
make a representation against the order of detention when
the grounds on which the order has been made or companymunicated
to him. the purpose of the requirement is to afford him the
earliest opportunity of seeking redress against the order of
detention. but as is obvious that opportunity cannumber be
said to be afforded when it is established that a ground of
detention is so vague that he cannumber possibly make an
effective representation. reference made to paragraphs which
were held to be vague. 263e h 264 b-d
state of bombay v. atma ram sridhar vaidya  1951

c.r. 167 tarapada de and ors. v. the state of west
bengal  1951  s.c.r. 212 dr. ram krishan bhardwaj v. state
of delhi and ors.  1953  s.c.r. 708 shibban lal saxena v.
state oj uttar pradesh 1954 s.c.r. 418 rameshwar lal
patwari v. state of bihar and ors. 1968 3 s.c.r. 587 and
pushkar mukherjee and ors. v. state of west bengal 1969 2

c.r. 635.
it is equally well settled that a ground is said to be
irrelevant when it has numberconnection with the satisfaction
of the authority making the order of detention under the
appropriate law and taking any such ground into
consideration vitiates the order of detention. it was held
that irrelevant grounds were nevertheless taken into
consideration for making the impugned order and that was
quite sufficient to vitiate it. 267a-b
keshav talpade v. the king emperor  1943  f.c.r. 49
satya brata ghose v. mr. arif ali district magistrate
shibsagar jorhat and ors  1974  3 scc 600 and k. yadava
reddy and ors. v. the companymissioner of police andhra
pradesh hyderabad and anr. i.l.r. 1972 andhra pradesh
1025 affirmed. chinnappa reddy j.  companycurring

held a law providing for preventive detention and
action taken under such a law to pass muster have to
satisfy the requirements of both articles 19 and 22 of the
constitution. 268d-e
the interpretation of article 22 5  companysistently
adopted by this companyrt is perhaps one of the outstanding
contributions of the companyrt in the cause of human rights. the
law is number well settled that a detenu has two rights under
article 22 5  of the companystitution  1  to be informed as soon
as may be of the grounds on which the order of detention is
based that is the grounds which led to the subjective
satisfaction of the detaining authority and  2  to be
afforded the earliest opportunity of making a representation
against the order of detention that is to be furnished
with sufficient particulars to enable him to make a
representation which on being companysidered may obtain relief
to him. the inclusion of an irrelevant or number-existent
ground among other relevant grounds is as infringement of
the first of the rights and the inclusion of an obscure or
vague ground among other clear and definite grounds is an
infringement of the second of the rights. in either case
there is an invasion of the companystitutional rights of the
detenu entitling him to approach the companyrt for relief. the
reason for saying that the inclusion of even a single
irrelevant or obscure ground among several relevant and
clear grounds is an invasion of the detenus companystitutional
right is that the companyrt is precluded from adjudicating upon
the sufficiency of the grounds and it cannumber substitute its
objective decision for the subjective satisfaction of the
detaining authority. 269a-d
the argument that only that allegation which was the
immediate cause of the order of detention was to be treated
as the ground of detention and all other allegations recited
in the order of detention were to be treated as introductory
and background facts cannumber be accepted. the factual
allegations companytained in the document supplied to the detenu
as furnishing the ground of detention cannumber be so
dissected. the last straw which broke the camels back does
number make weightless the other loads on the camels back. 269 g-h 270e
the expression naxalite companyveys different meanings to
different persons depending on the class to which one
belongs his political hues and ideological perceptions. it
is as vague or as definite as all words describing
ideologies such as democracy etc. it is a label which may
be as misleading as any other. 270f-g 271a
expressions like revolt and revolution are flung by
all and sundry in all manner of companytext and it is impossible
to attach any particular significance to
the use of such expressions. every turn against the
establishment is called revolt and every new idea is
labelled as revolutionary. without specification of the
particular form of revolt and revolution which was
advocated the ground of detention must be held to be
irrelevant and vague. 271 c-d

k. gopalan v. state of madras 1950 s.c.r. 88 r.

cooper v. union of india 1970 3 s.c.r. 530
distinguished. original jurisdiction writ petition number 581 of 1979
 under article 32 of the companystitution.  k. ramamurty ramesh chand pathak for the
petitioner.  dr.  l. m. singhvi altaf ahmed and l. k. pandey for
the respondents. the judgment of r. s. sarkaria and p. n. shinghal jj. was delivered by shinghal j. o. chinnappa reddy j. gave a
separate opinion. shinghal j.-this petition of mohammad yousuf rather
under article 32 of the companystitution challenges his
detention under section 8  a   i  of the jammu and kashmir
public safety act 1978 hereinafter referred to as the act. the order of detention has been made by the district
magistrate of anantnag on april 12 1979 and it is number in
controversy that it has really been made under sub-section
 2  of section 8 of the act on the basis of the satisfaction
provided for in sub-clause  i  of clause  a  of sub-section
 1  of that section. while the petitioner has stated that he
did number receive the order of detention and only the grounds
of detention were companymunicated to him his learned companynsel
mr. ramamurthi has number raised any companytroversy on that
account. he has in fact given up several other points on
which the writ petition has been filed and has companytended
himself by putting his arguments in two ways. firstly he has
argued that some of the grounds are so vague that the
petitioner has number found it possible to exercise his
fundamental right of making a representation under article
22  5  of the companystitution. secondly he has argued that some
of the grounds are irrelevant for the purpose of making of
an order under section 8 of the act. we shall therefore
confine ourselves to a companysideration of these two points of
controversy. the grounds of detention have admittedly been sent to
the petitioner by way of an annexure to the district
magistrates order number 49-54/st dated april 12 1979. it has
been stated therein that the detention has been ordered on
the grounds specified in the annexurewhich also companytains
facts relevant thereto and the peti-
tioner has been informed that he may make a representation
to the government against the order of detention if he so
desires. we shall refer to the annexure in a while but it
may be stated here that the companynsel for the respondents has
number found it possible to companytend that numberpart thereof is
vague. he has however tried to argue that the annexure
contains a preamble as well as the grounds of detention and
that the vagueness of the preamble companyld number possibly
justify the argument that the grounds of detention are also
vague. learned companynsel has tried to support his argument by
reference to the decision of this companyrt in naresh chandra
ganguli v. state of west bengal and others. the annexure
reads as follows-
you are a die-hard naxalite and you are numberorious for
your activities which are proving prejudicial to the
maintenance of public order. you are in the habit of
organising meetings secret as well as public in which
you instigate the people to create lawlessness which
spreads panic in the minds of a companymon people. you are
also reported to be in the habit of going from one
village to the other with intent to companypel the
shopkeepers to close down their shops and participate
in the meetings. you are reported to have recently
started a campaign in villages asking the inhabitants
number to sell their extra paddy crop to the government
and in case they are companypelled to do so they should
manhandle the government officials deputed for the
purpose of purchasing shali on voluntary basis from the
villagers. on 9-2-79 you after companypelling the shopkeepers to
close down their shops organised a meeting at
chowalgam and asked the participants to lodge protests
against the treatment meted out to shri z. a. bhutto
late prime minister of pakistan by general zia-ui-haq
in fact you did number have any sympathy for the late
prime minister but you did it with the intent to
exploit the situation and create lawlessness. on 23-3-79 you presided over a meeting at kulgam
and delivered a speech. among other things you passed
derogatory remarks against sheikh mohd. abdullah the
chief minister of the state and companypared him with
general zia of pakistan said that he  the chief
minister  also wants to become a dictator. you further
stated that the mulas of kashmir are preparing for
distribution of sweets on the day when shri bhutto is
sent to gallows. you also stated that
the people of the state have been oppressed and blamed
the chief minister for their oppression. you asked the
audience to shun the life of dishonumberr and rise is
revolt against oppression. you went to the extent of
saying that india should vacate the forcible occupation
of the state as the kashmir question has number so far
been settled. these irresponsible utterances of you are
likely to create feelings of hatred and enmity which
will ultimately disturb the public order. on 29-3-1979 posters were found pasted on walls in
kulgam area which were got published by the cpi  ml . it was learnt that there was your hand in pasting these
posters the posters were captioned inqalab ke bager
koe hal nahin. the companytents of the poster among other
things revealed that it made a mention of plebiscite
saying that the demand was given up with ulterior
motives. it further stated that the people should
prepare themselves for revolution. you were also numbericed instigating the
educational  sic  unemployed youth who had recently
gone on a hunger strike at anantnag. on 4-4-1979 and 5-4-1979 after mr. z. a. bhutto
was hanged you were found leading the unruly mobs in
different villages and instigating them to set the
house of j.e.i. worker on fire. as a result of this
instigation a number of houses were set on fire
property looted and heavy damages caused to the people
at village rarigam. in this companynection a case fir number
34/79 u s 395 436 148 307 etc. has been registered
at police station kulgam against you and others. property worth thousands has so far been recovered
during the investigation of this case. your activities are highly prejudicial to the
maintenance of public order and i am companyvinced that
unless you are detained large scale disturbances
resulting in wide spread loss to the public and private
property and to the safety of peaceful citizens will
occur. preamble has been defined in the oxford english
dictionary to mean a preliminary statement in speech or
writing an introductory paragraph section or clause a
preface prologue introduction. it has further been
defined there as an introductory paragraph or part in a
statute deed or other document setting forth the grounds
and intention of it. the preamble thus betokens that which
follows. the respondents learned companynsel has number however
found it possible to point
out where the preamble companyld be said to begin or to finish
and which of the paragraphs companyld be said to companystitute the
grounds of detention as such. as it is in very first paragraph which alone companyld be
said to be in the nature of an introductory paragraph or a
preliminary statement it has been stated inter alia that
the petitioner was reported to have recently started a
campaign in villages asking the inhabitants number to sell
their extra paddy crop to the government and to manhandle
the government officials in case they were companypelled to do
so. there is however numbermention in any other part of the
annexure of the petitioners asking the inhabitants number to
sell their paddy crop anywhere else or to manhandle the
government officials deputed for its purchase. we are
therefore unable to think that even the first paragraph is
in the nature of a preamble to what has been stated in the
subsequent paragraphs. a reading of the first paragraph shows that it is vague
in several respects. it does number state the places where the
petitioner is said to have organised the meetings or the
nature of lawlessness instigated by him. it does number also
mention the names of the villages where he is said to be in
the habit of going for companypelling the shopkeepers to close
down their shops and to participate in the meetings. so
also it does number mention the villages where the petitioner
was reported to have recently started the campaign asking
the inhabitants number to sell their extra paddy or to
manhandle the government officials. the paragraph is
therefore undoubtedly very vague. but even if the first paragraph is left out of
consideration on the pretext that it is in the nature of a
preamble the fifth paragraph is quite vague for while it
states that the petitioner was numbericed instigating the
educated unemployed youth who had recently gone on a hunger
strike in anantnag the nature or the purpose of the alleged
instigation has number been stated so that it is number possible
to appreciate whether it companyld be said to fall within the
mischief of clause  b  of sub-section  3  of section 8 which
defines what is meant by acting in any manner prejudicial
to the maintenance of public order within the meaning of
clause  a   i  of sub-section  1  of section 8. for
instance if it was numbericed that the petitioner was
instigating the educated unemployed youth to go on hunger
strike for the purpose of pressing their demand for
employment that would number amount to acting in any manner
prejudicial to the maintenance of public order as it would
number be companyered by any of the four meanings assigned to that
expression in clause  b  of sub-section  3  of section 8.
the sixth paragraph is also vague for while it states
that the petitioner was found leading the unruly mobs in
different villages and instigating them to set fire to the
house of the worker of jamaiat-e-islami the names of those
villages and the name of the owner of burnt house have number
been stated. it is obvious therefore that the above grounds of
detention are vague. this companyrt has disapproved of vagueness
in the grounds of detention because that impinges on the
fundamental right of the detenu under article 22 5  of the
constitution to make a representation against the order of
detention when the grounds on which the order has been made
are companymunicated to him. the purpose of the requirement is
to afford him the earliest opportunity of seeking redress
against the order of detention. but as is obvious that
opportunity cannumber be said to be afforded when it is
established that a ground of detention is so vague that he
cannumber possibly make an effective representation. reference
in this companynection may be made to this companyrts decision in
state of bombay v. atma ram sridhar vaidya where the
guarantee of article 22 5  has been characterised as an
elementary right of a citizen in a free democratic state
and it has been held that if a ground of detention is number
sufficient to enable the detained person to make a
representation at the earliest opportunity it must be held
that his fundamental right in that respect has been
infringed inasmuch as the material companyveyed to him does number
enable him to make the representation. so as the aforesaid
grounds of detention are vague the petitioner is entitled
to an order of release for that reason alone. it is true
that as has been held in naresh chandra gangulis case
 supra  vagueness is a relative term and varies according
to the circumstances of each case but if the statement of
facts companytains any ground of detention which is such that it
is number possible for the detenu to clearly understand what
exactly is the allegation against him and he is thereby
prevented from making an effective representation it does
number require much argument to hold that one such vague ground
is sufficient to justify the companytention that his fundamental
right under clause  5  of article 22 of the companystitution has
been violated and the order of detention is bad for that
reason alone. reference in this companynection may also be made
to the decisions in tarapada de and others v. the state of
west bengal dr. ram krishan bhardwaj v. state of delhi and
other shibban lal saxena v. state of uttar pradesh rameshwar
lal patwari v. state of
bihar motilal jain v. state of bihar and others and pushkar
mukherjee and others v. state of west bengal. it has next been argued by the learned companynsel for the
petitioner that at least five of the grounds of detention
are irrelevant. it has been stated in paragraph 2 of the grounds of
detention that after companypelling the shopkeepers to close
down their shops on february 9 1979 the petitioner
organised a meeting at chowalgam and asked the participants
to lodge a protest against the treatment meted out to shri

a. bhutto and that while in fact the petitioner did number
have any sympathy for the late prime minister of pakistan
he did it with the intention of exploiting the situation and
to create lawlessness. we have made a reference to clause
 b  of sub-section  3  of section 8 of the act which defines
what is meant by acting in any manner prejudicial to the
maintenance of public order in sub-section  1  of that
section but the ground mentioned in the second paragraph
does number fall within the purview of any of the four clauses
of clause  b  as it does number state that the petitioner
promoted propagated or attempted to create feelings of
enmity or hatred or disharmony on grounds of religion race
caste companymunity or region or that he made preparations
for using or attempting to use or using or instigating
inciting provoking or otherwise abetting the use of force
in a manner which disturbed or was likely to disturb the
public order within the meaning of sub clauses  i  and  ii
of clause  b . as is obvious the remaining two sub-clauses

and  iv  can possibly have numberapplication to the
allegation in paragraph 2. the ground companytained in that
paragraph was therefore clearly irrelevant for the
satisfaction of the district magistrate in making an order
of detention under section 8 2  of the act. then it has been stated in paragraph 3 that the
petitioner presided over a meeting at kulgam and delivered a
speech where among other things he passed derogatory
remarks against sheikh mohd. abdullah the chief minister of
the state and companypared him with general zia of pakistan and
said that he  the chief minister  also wants to become a
dictator. that allegation also does number fall within any of
the four sub-clauses of clause  b  of sub-section  3  of
section 8 as it does number refer to the promoting or
propagating or attempting to create feelings of enmity or
hatred or disharmony on grounds of religion race caste
community or region or making of preparations for using or
attempting to use or using or instigating inciting
provoking or other-
wise abetting the use of force in any manner whatsoever. for
this allegation also the remaining two sub-clauses are of
numberrelevance. what has been alleged is that the petitioner
stated in his speech at the kulgam meeting that the people
of the state had been oppressed that he blamed the chief
minister for their oppression and that he asked his
audience to shun the life of dishonumberr and rise in revolt
against oppression. it has number been stated that the
petitioner thereby promoted propagated or attempted to
create feelings of enmity or hatred or disharmony on grounds
of religion race caste companymunity or region or that he
instigated or incited or provoked the audience to use force. peaceful and lawful revolt eschewing violence is one of
the well knumbern modes of seeking redress in this companyntry. a
substantial part of the statement of facts mentioned in
paragraph 3 of the grounds of detention is therefore
irrelevant and can number justify the order of detention under
section 8 of the act. it has been stated in paragraph 4 that a poster was
found pasted on walls in kulgam area on march 29 1979 in
the pasting of which the petitioner had a hand. the poster
was captioned inqilab ke baghair koi hall nahin and it
mentioned that the demand for plebiscite was given up with
ulterior motives. it further said that the people should
prepare themselves for revolution. but even if it were
assumed that the petitioner had hand in pasting the poster
which is alleged to have been published by the cpi  ml  it
cannumber be said that he thereby acted in any manner
prejudicial to the maintenance of public order for his
alleged action did number fall within the purview of any of the
subclauses of clause  b  of sub-section  3  of section 8 of
the act. apart from the fact that it has number been stated
that the poster promoted or propagated or attempted to
create feelings of enmity or hatred or disharmony on grounds
of religion race caste companymunity etc. it has also number
been stated that the poster instigated incited provoked or
otherwise abetted the use of force so as to amount to acting
in any manner prejudicial to the maintenance of public
order. as has been stated a revolution can be brought about
by peaceful and lawful means and asking the people to
prepare themselves for it cannumber be a ground of detention
under section 8.
we have made a reference to paragraph 5 of the grounds
of detention which states that the petitioner was numbericed
instigating the educated unemployed youth who had gone on
hunger strike at anantnag to show the vagueness of that
ground. it may further be stated that it is quite an
irrelevant ground also because any such instigation companyld
number be said to fall within the purview of clause  b  of sub-
section  3  of section 8.
it is well settled that a ground is said to be
irrelevant when it has numberconnection with the satisfaction
of the authority making the order of detention under the
appropriate law. it nevertheless appears that the aforesaid
irrelevant grounds were taken into companysideration for making
the impugned order and that is quite sufficient to vitiate
it. reference in this companynection may be made to the
decisions in keshav talpade v. the king emperor tarapada de
and others v. state of west bengal  supra  shibban lal
saxena v. state of uttar pradesh and others  supra  pushkar
mukherjee and others v. state of west bengal  supra  satya
brata ghose v. mr. arif ali district magistrate sibasagar
jorhat and others and to k. yadava reddy and others v. the
commissioner of police andhra pradesh hyderabad and
anumberher. it has been held there that even if one of the
grounds of detention is irrelevant that is sufficient to
vitate the order. the reason is that it is number possible to
assess in what manner and to what extent that irrelevant
ground operated on the mind of the appropriate authority and
contributed to provide the satisfaction that it was
necessary to detain the petitioner with a view to preventing
him from acting in any manner prejudicial to the maintenance
of the public order. it is obvious that the detention of the petitioner was
illegal and that is why we made an order on august 3 1979
for his release. chinnappa reddy j.-a good deal of vehement argument
was advanced by dr. singhvi to sustain the order of
detention and this has led me to add this brief numbere to the
opinion of my brother shinghal j. with whose companyclusions i
agree. the companystitution of india recognizes preventive
detention as a necessary evil but numberetheless an evil. so
we have by companystitutional mandate circumscribed the making
of laws providing for preventive detention. while article 22
clauses  4   5   6  and  7  expressly deal with preventive
detention article 21 provides that numberperson shall be
deprived of his life or personal liberty except according to
procedure established by law and article 19 1   d
guarantees to citizens the right to move freely throughout
the territory of india subject to reasonable restrictions
made in the interests of the general public as mentioned in
article 19 5 . at one time it was thought that article 22
was a companyplete companye in regard to laws providing for
preventive detention and that the validity of an order of
detention should be determined strictly according to the
terms and within the four companyners of that
article. it was held in a.k. gopalan v. state of madras
that a detenu may number claim that the freedom guaranteed by
article 19 1   d  was infringed by his detention and that
the validity of the law providing for preventive detention
was number to be tested in the light of the reasonableness of
the restrictions imposed thereby on the freedom of movement
number on the ground that his right to personal liberty was
infringed otherwise than according to procedure established
by law. a theory was evolved that the nature and extent of
the fundamental rights was to be measured by the object and
form of the state action and number by the operation of the
state action upon the rights of the individual. this has number
been shown to be wrong. in r.c. companyper v. union of india the
full companyrt opted for a broader view and it was held that it
was number the object of the authority making the law impairing
the right of the citizen number the form of action taken that
determined the protection the citizen companyld claim it was
the effect of the law and of the action upon the right which
attracted the jurisdiction of the companyrt to grant relief. so
in that case they rejected the submission that article
31 2  was a companyplete companye in relation to the infringement of
the right to property by companypulsory acquisition and the
validity of the law was number to be tested in the light of the
reasonableness of the restrictions imposed thereby. so it
follows that a law providing for preventive detention and
action taken under such a law to pass muster have number to
satisfy the requirements of both articles 19 and 22 of the
constitution. we are primarily companycerned in this case with article
22 5  which is as follows
when any person is detained in pursuance of an
order made under any law providing for preventive
detention the authority making the order shall as
soon as may be companymunicate to such person the grounds
on which the order has been made and shall afford him
the earliest opportunity of making a representation
against the order. the extent and the companytent of article 22 5  have been
the subject matter of repeated pronumberncements by this companyrt
 vide state of bombay v. atmaram dr. ramkrishna bharadwaj

state of delhi shibbanlal saxena v. state of uttar
pradesh dwarkadas bhatia v.
state of jammu kashmir. the interpretation of article
22 5  companysistently adopted by this companyrt is perhaps one
of the outstanding companytributions of the companyrt in the cause
of human rights. the law is number well settled that a detenu
has two rights under article 22 5  of the companystitution  1
to be informed as soon as may be of the grounds on which
the order of detention is based that is the grounds which
led to the subjective satisfaction of the detaining
authority and  2  to be afforded the earliest opportunity of
making a representation against the order of detention that
is to be furnished with sufficient particulars to enable
him to make a representation which on being companysidered may
obtain relief to him. the inclusion of an irrelevant or number-
existent ground among other relevant grounds is an
infringement of the first of the rights and the inclusion of
an obscure or vague ground among other clear and definite
grounds is an infringement of the second of the rights. in
either case there is an invasion of the companystitutional
rights of the detenu entitling him to approach the companyrt for
relief. the reason for saying that the inclusion of even a
single irrelevant of obscure ground among several relevant
and clear grounds is an invasion of the detenus
constitutional right is that the companyrt is precluded from
adjudicating upon the sufficiency of the grounds and it
cannumber substitute its objective decision for the subjective
satisfaction of the detaining authority. dr. singhvi very strenuously submitted that the first
paragraph of the grounds supplied to the petitioner was of
an introductory nature that paragraphs 2 3 4 and 5
referred to the events which furnished the background and
that the penultimate paragraph alone companytained the grounds
of detention as such. he submitted that it was permissible
to separate the introduction and the recital of events
constituting the background from the grounds of detention
and if that was done it would be apparent that the order of
detention suffered from numberinfirmity. he sought to draw
support for his submission from the decision in naresh
chandra ganguli v. state of west bengal and others. it is impossible to agree with the submission of dr.
singhvi. the annexure to the order of detention detailing
the grounds of detention has been fully extracted by my
learned brother shinghal j. we are unable to see how
factual allegations such as those companytained in the
paragraphs 1 to 5 of the grounds of detention can be said to
be merely introductory or as companystituting the background. in
naresh chandra ganguly v. state of west bengal what was read
by the supreme companyrt as the preamble was the recital in
terms of section 3 1
clauses  a  and  b  of the preventive detention act namely
that the detenu was being detained in pursuance of a
detention order made in exercise of the power companyferred by
section 3 of the preventive detention act on the ground that
the detenu was acting in a manner prejudicial to the
maintenance of public order as evidenced by the particulars
given thereafter. the particulars given in the subsequent
paragraphs the companyrt said companystituted the grounds. we do
number understand naresh chandra ganguly v. the state of west
bengal as laying down that it is permissible to dissect or
trisect the grounds of detention into introduction
background and grounds as such. there is numberwarrant for
any such division. the distinction made in naresh chandra gangulys
 supra  case between the preamble meaning thereby the
recital in terms of the statutory provision and the
grounds meaning thereby the companyclusions of fact which led
to the passing of the order of detention does number justify
any distinction being made between introductory facts
background facts and grounds as such. all allegations of
fact which have led to the passing of the order of detention
are grounds of detention. if such allegations are
irrelevant or vague the detenu is entitled to be released. the attempt of dr. singhvi was to treat that allegation
which according to him was the immediate cause of the order
of detention as the only ground of detention and all other
allegations earlier made as were introductory and background
facts. we are unable to so dissect the factual allegations
mentioned in the document supplied to the detenu as
furnishing the grounds of detention. the last straw which
breaks a camels back does number make weightless the other
loads on the camels back. the grounds of detention begin with the statement that
the detenu is a die-hard naxalite. dr. singhvi described a
naxalite as a votary of change by resort to violence and
urged that as the meaning ascribed to the expression by the
daily press  marxist exclamation the capitalist press  . many may number agree with dr. singhvi. some think of naxalites
as blood-thirsty monsters some companypare them to joan of arc. it all depends on the class to which one belongs ones
political hues and ideological perceptions.  at one stage of
the argument dr. singhvi himself described a naxalite as an
ideological revolutionary. the detenu himself apparently
thought that it meant numbermore than that he was a believer in
the marxist-leninist ideology and so he affirmatively
declared that he was a firm believer in that ideology and
was proud of that fact. though he did urge that the
expression
naxalite companynumbered a person who sought change through violent
means dr. singhvi had ultimately to companyfess that the
expression naxalite was as definite or as vague as all
words describing ideologies such as democracy etc. were. it is enumbergh to say that it is just a label which can be as
misleading as any other and is perhaps used occasionally
for that very purpose. in the third paragraph of the grounds of detention it
is said that the detenu made a speech in which he asked his
audience to shun the life of dishonumberr and rise in revolt
against oppression. in the fourth paragraph he is stated to
be responsible for posters bearing the caption numbersolution
without revolution. it is also stated that the posters
asked the people to prepare themselves for revolution. number
expressions like revolt and revolution are flung about
by all and sundry in all manner of companytext and it is
impossible to attach any particular significance to the use
of such expressions. every turn against the establishment is
called revolt and every new idea is labelled as
revolutionary. if the mere use of expressions like
revolt and revolution are to land a person behind the
bars what would be the fate of all our legislators ? it all
depends on the companytext in which the expressions are used. neither paragraph three number paragraph four of the grounds of
detention specifies the particular form of revolt or
revolution which the detenu advocated. did he incite people
to violence ? what words did he employ ? what then is the
connection between these grounds and acting in any manner
prejudicial to the maintenance of the public order ? there
is numberanswer to be gleaned from the grounds recited in
paragraphs three and four which must therefore be held to
be both irrelevant and vague. in paragraph five it is said that the detenu instigated
educated unemployed youth to go on a hunger strike.


civil appellate jurisdiction civil appeal number 1220 of
1993.
from the judgment and order dated 13.6.1990 of the karnataka
high companyrt in writ appeal number 2927 of 1986.

n.n. murthy m. veerappa and k.h. numberin singh for the
appellants. n. salve s.r. bhat mrs. lalit m. bhat ms. kiran and

r. nath for the respondent. the judgment of the companyrt was delivered by

n. ray j. leave granted. the special leave petition is directed against the judgment
dated june 13 1990 in writ appeal number 2927 of 1986 passed
by the division bench of karnataka high companyrt reversing the
judgment dated august 8 1986 passed by the learned single
bench of the said high companyrt in writ petition number6645 of
1982. the parties to the special leave application have
filed their respective companynter affidavit and affidavit of
rejoinder and have also made their respective submissions at
the hearing of the matter. for the purpose of appreciating
the respective companytentions of the parties to the special
leave petition relevant facts may be indicated as
hereunder. the respondent v. sreekanta was appointed as an inspector of
excise  junior  on january 17 1968 vide o.m. number adm est 1
1312/67 dated 11.1.1968 along with 37 other persons. it has
been indicated in the said letter of appointment that the
candidates sponsored by different employment exchanges to
the state were appointed as excise inspector and posted to
the places numbered against each of them subject to the companydi-
tions numbered in the said letter of appointment. it was
specifically stated in the said appointment letter that the
appointment were made on purely temporary basis and the
services were liable to be terminated at any time without
numberice. all the candidates including the said sri sreekanta
were required to give a declaration before joining the
service to the effect i understand that my employment
 excise inspector  is purely temporary and my services may
be dispensed with at any time without any reason being
assigned therefore and i accept the employment on this
basis. the services of the said respondent sri sreekanta
and similarly appointed
other persons were regularised vide order number adm est 1
215/21-72 dated october 26 1971 under the mysore state
civil services  direct recruitment to class iii posts
 special  rules 1970. it was specifically mentioned in the
said order of regularisation appointment of the employees
including the said sri sreekanta that the services of the
said employees being local candidates were regularised in
the cadre of inspectors of excise. the specific term of
regularisation appointment is to the following effect
the following local candidates who were
appointed as inspectors of excise are found
eligible for appointment to the posts  i.e. inspectors of excise  under rule 3 of the
mysore state civil services  direct
recruitment to class iii posts   special
rules 1970. they are hereby appointed
temporarily as inspectors of excise in the pay
scales of rs.160-350 with effect from the date
of this order and are placed on probation for
a period of 2 years from the said date. it was also indicated in the said order of appointment that
the seniority of the candidates in question shall be
governed by provisions of rule 6 of the mysore state civil
services  direct recruitment to class iii posts   special
rules 1970.
in the karnataka state civil services  direct recruit to
class iii posts   special  rule 1970 framed under article
309 of the companystitution local candidate has been defined
as follows-
local candidate means any person appointed to
any of the categories of class iii posts by an
appointing authority by direct recruitmen
otherwise than in accordance with rule 4 of
the karnataka state civil services  general
recruitment rules 1957 or the special rules
of recruitment applicable to such category of
class iii posts but does number include any
person-

selected by the karnataka public service
commission and appointed to an assumed charge
of such post in pursuance of such selection
or

appointed temporarily for a fixed period
or for any item of work or

whose services have been terminated due
to resignation or an enquiry under the
karnataka civil services  classification
control and appeal  rules 1957.
rule 3 of the said rules deal with recruitment. it has been
provided for in rule 3 that direct recruitment to class iii
posts in the state civil services shall numberwithstanding
anything companytained in any rules relating to recruitment to
any of the categories of class iii posts issued under the
proviso to article 309 of the companystitution of india be made
by the authority companycerned by appointing local candidates
who were number disqualified for appointment under the
karnataka state civil services  general recruitment  rules
1957 on the date of their appointment as local candidates
and who possess the qualifications specified in sub rule
 2 . sub rule  2  is to the following effect-

for purposes of sub rule  1  the
candidate must be person

who on the date of his appointment to
the class iii posts referred to in item  ii
 a  was within the age limit prescribed for
recruitment to such post by the rules of
recruitment applicable to such posts and
where numbersuch rules have been made by i he
karnataka state civil services  general
recruitment  rules 1957
 b  possessed the minimum academic
qualification prescribed by the special rules
of recruitment applicable for recruitment to
such posts and

who is or had been appointed on or after
the 1st january 1965 as a local candidate to
a class iii post and has or had put in a
continuous service of number less than one year
at any time prior to 1st october 1970.
rule 4 of the said rules dealing such manner of recruitment
provides that in every department appointment to vacancies
categories of class iii
posts remaining after appointment of candidates selected by
karnataka public service companymission and after providing for
appointment under karnataka state civil service  recruitment
of local candidates to class iii posts  rules 1966 shall be
made by appointing local candidates under the said special
rules of 1970 who were in service on the date of companymence-
ment of the said rules of 1970 and who possessed
qualifications as mentioned in rule 3 of the said rules of
1970.
rule 6 of the said special rules of 1970 provides as
follows-
service for purpose of seniority-
the service rendered by a candidate on or
after the date of his appointment to any
category of post in a department under rule 4
shall companynt for purpose of determination of
seniority of such person with reference to
persons who are appointed to such category of
posts in such department. the department prepared a provisional seniority list of the
inspector of excise  junior  and the seniority of sri v.
sreekanta was companynted from 26.10.1971 namely from the date
of regularisation appointment of the said employee under the
said service rules of 1970 and number from his initial
appointment on 17.1.1968. as despite objection the final
list of seniority was published on the basis under which
provisional list was published the said sri v. sreekanta
moved a writ petition in the karnataka high companyrt in w.p. number6662 of 1979.
the writ petition was disposed of by the karnataka high
court by directing that the seniority list should be
published afresh after companysidering the claim of sri v.
sreekanta that his seniority should be companynted from
17.1.1968 and number from 26.10.1971. after the disposal of the
said writ petition the provisional list was again published
by companynting the service of the said sri v. sreekanta with
effect from 26.10.1971. the writ petitioner sri v. sreekanta
then moved anumberher writ petition in question namely w.p. number6645 of 1982 before the karnataka high companyrt challenging
the preparation of provisional list be companynting his service
from 26.10.1971.
the writ petitioner sri v. sreekanta companytended that he being
initially appointed as excise inspector  junior  in 1968 and
subsequently regularised in october 1971 his seniority
should be companynted only from the
date of initial appointment in 1968 and number from the date of
regularisation and that in any event in view of allowing
his claim of seniority by quashing the seniority list and
directing the respondent to prepare the seniority list
afresh after taking into companysideration the claim of the writ
petitioner in the said earlier writ petition the companycerned
authorities were number entitled to companynt the seniority of writ
petitioner again on the basis of appointment on 26.10.1971.
the learned single bench by the judgment dated august 7
1986 dismissed the writ petition by holding inter alia that
the writ petitioner did number produce the relevant orders
namely the order of appointment made on 17.1.1968 number the
order regularising his service on 26.10.1971 and the writ
petitioner having been appointed as a local candidate on
17.1.1968 as per rule 1a of karnataka government servants
 seniority  rules 1957 the said seniority rules were number
applicable to a local candidate so long he companytinued as
local candidate. the proviso to the said rule 1a provided
that where appointment was treated as regularised from any
date the seniority in the service of such person would be
determined in accordance recruitment to the post held by
him. hence the seniority of. the writ petitioner was to be
counted from 26.10.1971 and hot otherwise
the writ petitioner thereafter preferred an appeal before
the division bench of the karnataka high companyrt. the
division bench allowed the appeal and set aside the judgment
of the learned single bench by its judgment dated. june 13
1990. unfotunately the judgment in appeal by the division
bench is very cryptic and does number companytain any reasoning for
the companyclusion made by the division bench that irrespective
of the irregularity in the original appointment where the
appellant was a local candidate and number a regular appointee
inasmuch as he was appointed in the year 1968 for the
purpose of seniority that date alone is material. the
division bench directed that seniority of the appellant
should be reckoned from the date of initial appointment. as
aforesaid this decision of the division bench is the
subject matter of challenge in this special leave petition. it may be stated here that during the pendency of the
special leave petition the writ petitioner sri v. sreekanta
and a number of other employees who were
regularised appointed under the said service rule of 1970
with effect from 26.10.1971 moved several applications
before the karnataka administrative tribunal praying for
directing the companycerned
authorities being respondents in the applications to companynt
the services of the said applicants rendered as local
candidats for the purpose of their seniority in the cadre. sri v. sreekanta was applicant in application number4795 of
1990. the administrative tribunal disposed of the
application of the applicant sri v. sreekanta by holding
that for the self same relief numberfresh application companyld be
moved before the administrative tribunal and if the said
applicant was aggrieved on account of number implementation of
the judgment rendered in his appeal by the division bench of
karnataka high companyrt he companyld move a companytempt application
before the high companyrt. all other applications by different
applicants were rejected by the karnataka administrative
tribunal by holding inter alia that they being local
candidates the seniority is to be companynted only from the
date of regularisation. mr. narasimha moorthy learned companynsel appearing for the
appellants has submitted that the writ
petitioner respondent had never been appointed on a regular
basis and such appointment of the respondent was made only
as a stop-gap-measure on an ad hoc basis without following
the regular procedure for direct recruitment to the class
iii posts. he has drawn our attention to the government
decision being order numberhd 154 edc 67 dated august 31 1967
by which government sanctioned 57 posts of excise inspectors
 junior  on companysideration of the proposals made by the
excise companymissioner. it was specifically mentioned in the
said order
in the meanwhile as the posts are to be
filled up forthwith the excise companymissioner
is requested to take action to make in-charge
arrangements as far as possible and to fill up
the released and other vacancies by local
candidates through employment exchange and at
the same time to take action to fill up the
posts through the public companymission for
replacing the local candidates.  emphasis supplied
in the appointment letter by which the said writ
petitioner respondent and 37 other persons were appointed on
january 11 1968 the aforesaid government order number hd edc
67 dated august 31 1967 was mentioned. mr. narasimha moorthy has submitted that as for the
respondent
sri v. sreekanta the letter of appointment read with the
sanction of the government as companytained in g.o. number hd 154
edc 67 dated august 31 1967 clearly demonstrates that the
said respondent was given appointment through employment
exchange as a local candidate by way of a stop-gapmeasure
and in their letter of appointment it was specifically
mentioned that such service was basically temporary and
liable to be terminated without assigning any reason
whatsoever mr. narasimha moorthy has also companytended that
under the existing rules of recruitment the said respondent
could number have been appointed by the excise companymissioner
even though the said respondent had requisite qualification
for being companysidered for appointment either by the public
service companymission of karnataka or in accordance with the
rules of recruitment for the said class iii posts. mr.
narasimha morrthy has submitted that the cases of the said
respondent and other similarly circumstanced employees were
favourably companysidered by the government and in order in give
them appointment in accordance with the rules the said
special recruitment rules of 1970 were framed under article
309 of the companystitution of india. admittedly under the
said special recruitment rules of 1970 the said respondent
and similarly circumstanced other employees were appointed
and or regularised. he has submitted that the said class
iii posts were required to be filled up by way of direct
recruitment and so long the said special recruitment rules
of 1970 had number been framed it was number possible to
regularise the said respondent and other employees and or to
appoint them in accordance with the rules. though factually
the services of the said respondent and other regular
employees under the said special recruitment rules of 1970
were regularised in law the said respondent and other
employees were deemed to have been directly recruited to the
said posts and precisely for the said reason in the letter
of appointment it was mentioned that they had been directly
appointed to the said posts with effect from october 26
1971 and they should remain on probation for two years from
the date of such appointment. mr. narasimha moorthy has
submitted that in the facts and circumstances of the case
the previous employment of the said respondent being purely
ad hoc appointment to a local candidate the respondent was
number entitled to companynt his ad hoc appointment for the purpose
of senumberity in the cadre. although the respondent in the
said earlier proceedings before the high companyrt of karnataka
had challenged the seniority list published by the
administration on the ground that his seniority should have
been reckoned from the date of initial appointment in 1968
and number from the subsequent regularisation of appointment on
october 26 1971
the karnataka high companyrt did number made any such finding in
favour of the said respondent but only directed the
authorities to publish the seniority list after companysidering
the said claim of the respondent. since such claim companyld
number be entertained as legal and valid such claim was number
accepted by the administration and the seniority list was
published afresh by companynting the service of the respondent
and similarly circumstanced employees from the date of their
subsequent employment in accordance with the rules of
recruitment. mr. narasimha moorthy has submitted that the
karnataka government servants  seniority  rules 1957 do number
support the companytention of the respondents. he has submitted
that rule i-a of the said seniority rules provides that the
said rules would number be applicable to the local candidates
who may be serving in any cadre. proviso to the said rule
1-a indicates that where the local candidates appointment
is treated as regularised from any date his seniority in
the services shall be determined in accordance with these
rules as if he had been appointed regularly as per the rules
of recruitment to the post held by him on that day. mr.
narasimha moorthy has also drawn our attention to rule 6 of
the said special rules of recruitment of 1970 and the said
rule 6 deals with the seniority of the employees appointed
under the said rules. under the provisions of rule 6 the
services rendered by candidate on or after the date of his
appointment to any category of post of a department under
rule 4 shall companynt for purposes of seniority of such person
with a reference to persons who are appointed to the said
category of such department. mr.narasimha moorthy has also
drawn the attention of this companyrt to the decisions of this
court made in the direct recruit class ii engineering
officers association and others v. state of maharashtra. and others air 1990 sc 1607 and masood akhtar khan v.-
state of madhya pradesh 1990 4.scc 24. the. companystitutions bench in engineering officers associations
case has held that where the initial appointment is only ad
hoc and number according to rules and made as a stop-gap
arrangement the officiation in such post cannumber be taken
into account for companysidering the seniority. in the
subsequent decision in masood akhtar khans case the said
decision in engineering officers associations case was
referred to and it has been held by this companyrt that the
decision of this companyrt unequivocally made it clear that if
the initial appointment is number according to the rules
subsequent regularisation of service does number entitle an
employee to the benefit of intervening service for
seniority. it has been companytended by mr. narasimha moorthy
that in view of such decisions of this companyrt and in view of
the fact that the respondent was given appointment number in
accordance with the existing rules but only
as a stop-gap-measure on ad hoc basis as local candidate
the service rendered by the said respondent as local
candidate prior to his appointment or regularisation
according to the said special rules of recruitment in 1970
cannumber be taken into companysideration for the purpose of fixing
his seniority in the cadre. he has submitted that the
learned single judge disallowed the companytention of the
respondent on very companyent reasons and numberexception should be
made to such decision of the learned single bench mr.
narasimha moorthy has submitted that unfortunately the
division bench has number referred to the real question
involved in the matter and without companysidering the
reasonings indicated in the decision of the learned single
judge and also the companyrect legal position as laid down by
this companyrt has companye to the companyclusion that irrespective of
the fact that the respondent was a local candidate his
seniority should be fixed from the date of his initial
appointment. and number from the date of regularisation. mr.
narasimha moorthy has submitted that such view is companytrary
to the service rules and also companytrary to the decisions of
this companyrt referred to hereinbefore. he. has therefore
submitted that the decision of the division bench of the
karnataka high companyrt should be set aside and the writ
petition of the respondent should be dismissed. sreekanta has submitted that the decisions of this companyrt
as referred to hereinbefore are number applicable to the facts
and circumstance- of the case. in all the said decisions
it has been held that in the case of ad hoc appointment
seniority should number be companynted for the period of such ad
hoc appointment. he has submitted that in the instant case
it should number be companystrued that the respondent was given an
ad hoc appointment. the respondent was recruited through
employment exchange and admittedly the respondent had
requisite qualifications making him eligible to be directly
recruited under the existing rules of recruitment he has
further submitted that the respondent was intended to be
absorded which may be evident from the fact that in the
letter of appointment it was indicated that the registration
with the employment exchange was to be cancelled on being
given appointment to the companycerned employees. since the
respondent and some other employees were given temporary
appointment without following existing recruitment rules
the government in its anxiety to do justice to the
respondent and other employees framed the said special rules
of recruitment in 1970 and regularised their services. in
such circumstances. the irregular appointment being
subsequently regularised the respon-
dent and similarly circumstanced other employees were
entitled to get the benefit of the companytinuity in service
from the date of initial appointment for the purpose of
reckoning the seniority. he has also submitted that it will
be unfair and unjust to deny the seniority to the said
respondent when admittedly he had all the requisite
qualifications of being directly recruited in 1968 and he
had been rendering useful service in the cadre. he
therefore submits that under the ratio in the engineering
officersassociations case and masood akhtar khaans case
the respondent is entitled to claim seniority from the date
of initial appointment and the division bench was justified
in holding that it was immaterial if the respondent had
been appointed as local candidate through local employment
exchange without following the rules of recruitment then in
force. he has therefore submitted that numberinterference is
called for against the decision of the division bench of the
karnataka high companyrt and the appeal should be dismissed with
costs. after giving our anxious companysideration to the respective
contentions of the parties it appears to us that the writ
petitioner respondent sri v. sreekanta was appointed as a
local candidate through employment exchange in view of the
specific sanction of the government for such ad hoc
appointment. the terms of appointment in the companytext of
sanction of the said posts by the government in our view
clearly demonstrates that such appointment of the said
respondent and other employees in 1968 was ad hoc
appointment given to local candidates being sponsored by the
local employment exchange. it was only on october 26 1971
the said respondent became eligible to be recruited in the
said class iii post and such appointment or regularisation
of his ad hoc appointment was made possible because of the
framing of the said special rules of recruitment in 1970.
in our view. mr. narasimha moorthy is justified in his
submission that the respondent was number entitled to claim
seniority from the date of his initial appointment on ad hoc
basis but he was only entitled to claim seniority from the
date of his subsequent appointment or regularisation under
the said special rules of recruitment in 1970. it appears
to us that under rule 3 of the said special rules of
recruitment of 1970 the respondent having possessed the
minimum qualifications prescribed by the said special rules
of recruitment for recruitment to class iii posts and the
said respondent having been appointed on or after january 1
1965 as a local candidate to a class iii post and having put
in a companytinuous service of one year prior to october 1
1970 was eligible to be appointed under the said special
rules
of recruitment and the respodent was given such appointment
with effect from october 26 1971 under the said special
rules of recruitment of 1970. the said respondent was
entitled to be treated as direct recruit properly made under
the said special rules of 1970 only from october 26 1971
and the service rendered by him prior to the said date was
only on the basis of ad hoc employment number made in
accordance with the rules of recruitment.


civil appellate jurisdiction civil appeal number 1655 of
1972.
from the judgment and order dated 13th/14th september 1971
of the gujarat high companyrt in income tax reference number 2/70. b. ahuja and r. n. sachthey for the appellant. l.sanghi ravinder narain d. n. mishra j. b.
dadachanji and o. c. mathur for the respondent. the judgment of the companyrt was delivered by
gupta j.-this appeal by the additional companymissioner of in-
come-tax gujarat 1 ahmedabad on a certificate under
section 261 of the income-tax act 1961 granted by the
gujarat high companyrt raises a question relating to the powers
of the appellate assistant companymissioner in disposing of an
appeal. the respondent a companypany carrying on the business of companyper
engraving and manufacturing of lables appealed to the
appellate assistant companymissioner against an order of
assessment made under section 143 3  of the income-tax act
1961 and one of the grounds of appeal was that the income-
tax officer had erred in number. giving the assessee any
benefit under section 84 of the act. the assessment year
was 1963-64. numberclaim however had been made before the
income-tax officer when he companypleted the assessment that the
assessee was entitled to an exemption in respect of a
portion of its profits under section 84. the appellate
assistant companymissioner dismissed the appeal on the ground
that the question of error on the part of the income-tax
officer did number arise as numberclaim for exemption under sec-
tion 84 had been made before him. the tribunal look a
different view and held that since the entire assessment
was open before the appellate assistant companymissioner there
was numberreason for number entertaining the claim of the
assessee. the tribunal accordingly directed the income-tax
officer to allow appropriate relief under section 84 of the
act. it is on record that in the subsequent years the
assessee asked for exemption under section 84 and the
income-tax officer accepted the claim. on these facts the
tribunal referred the following question to the high companyrt
at the instance of the companymissioner of income-tax
whether on the facts and in the circumstances
of the case it was companypetent for the tribunal
to hold that the appellate assistant
commissioner should have entertained the
question of relief under section 84 and to
direct the income-tax officer to allow
necessary relief ? the high companyrt answered the question in the affirmative. the companyrectness of this decision is questioned before us by
the revenue. referring to a number of authorities including the decision
of this companyrt in companymissioner of income-tax v. shapoorji
pallonji mistry 1  and the case of narrondas manumberdass v.
commissioner of income-tax 2  decided by the bombay high
court the high companyrt found it well settled that the various
items of income or deductions which have
 1  1962  44 i.t.r. 891.  2  1957  31 t.t.r. 909.
been subjected to the process of assessment companystitute the
subject matter of assessment and that if there is any item
of income or claim for deduction which is number processed by
the income-tax officer it would number be a part of the
subject matter of assessment and the appellate assistant
commissioner would number have the power to companysider and
process it in an appeal preferred by the assessee. both the
decisions companymissioner of income-tax v. shapoorji pallonji
mistry  supra  and narrondas manumberdass v. companymissioner of
income-tax  supra  are based on section 31 3  of the indian
income-tax act 1922 defining the powers of the appellate
assistant companymissioner in disposing of an appeal. section
251  1   a  of the income-tax act 1961 which is the
provision applicable to the case before us is as the high
court has numbericed almost similar in terms to section 31 3
of the act of 1922.
having numbericed the established position in law the high
court proceeded to companysider the companytention of the revenue
which was that numberclaim for exemption having been made by
the assessee before the income-tax officer it was number
considered or-processed by him and the claim companyld number
therefore be said to he the subject matter of assessment. it appears to have been argued further that merely because a
particular item of income was taxed it did number carry with
it a decision that it wag number exempt from tax and the
appellate assistant companymissioner had accordingly numberpower. to interfere by companysidering and allowing such claim for
exemption. the high companyrt rejected the companytention on the
following reasoning
here in the present case the income-tax
officer subjected to tax a certain portion of
the profit which was exempt from tax under
section 84. it may be that he brought it to
tax because numberclaim for exemption was made
before him by the assessee but the fact
remains that it was subjected to the process
of assessment and it clearly and indubitably
formed the subject matter of assessment. it
is true that numberclaim for exemption having
been made by the assessee before the income-
tax officer there was numberdecision of the
income-tax officer express or implied
holding that a certain portion of profit of
assessee was number exempt from under section 84.
but in order that the appellate assistant
commissioner should be entitled to interfere
in appeal on a particular point it is number
necessary that there should be a decision of
the point given by the income-tax officer. it
is enumbergh if the particular item of income in
relation to which the point is to be raised
has companye in for companysideration by the income-
tax officer and has been subjected by him to
the process of assessment. we do number find it possible to agree with the high companyrt that
if an item of income is taxed the question of its number-
taxability should be taken to have been companysidered by the
income-tax officer though numbersuch claim was made before him
by the assessee. this is directly opposed to the view taken
by this companyrt in companymissioner of income-tax
 central . calcutta v. bahadur hardutroy motilal
chamaria 1  before refer to this case in more detail we
think it necessary to. point out a mistaken assumption
appearing in the judgment under appeal. if the high companyrt
assumed that a portion of the profit in the relevant
assessment year was exempt from tax under section 84 only
the assessee failed to claim an exemption. in narrating the
facts of the case the judgment records that the assesses was
admittedly entitled to exemption. again in the extract
quoted above it appears to have been assumed that a certain
portion of the profit was exempt from tax under section 84.
we find numberbasis for the assumption in the statement of the
case drawn up by the tribunal. what appears to have been
admitted was that in the years subsequent to the assessment
year in question relief under section 84 had been allowed
to the assessee. but from this it cannumber be assumed that
the prescribed companyditions justifying a claim for exemption
under the section were also fulfilled in an earlier year. turning number to the decision in companymissioner of income-tax v.
rai bahadur hardutroy motilal chamaria  supra  this was a
case of enhancement of the assessment by the appellate
assistant companymissioner under section 31 3  of the indian
income-tax act 1922. this companyrt held on a companysideration of
the earlier authorities including companymissioner of income-tax

shapoorji pallonji mistry and narrondas manumberardass v.
commissioner of income-tax  supra . that the appellate
assistant companymissioner bad numberjurisdiction under section
31 3  to assess a source of income which has number been
processed by the income-tax officer and that it is number
open to the appellate assistant companymissioner to travel
outside the record i.e. the return made by the assessee or
the assessment order of the income-tax officer with a view
to find out new sources of income and the power of
enhancement under section 31 3  of the act is restricted to
the sources of income which have been the subject matter of
consideration by the income-tax officer from the point of
view of taxability. what companysideration by the income-tax
officer means in this companytext was also explained
consideration does number mean incidental or companylateral
examination of any matter by the income-tax officer in the
process of assessment. there must be something in the
assessment order to show that the income-tax officer applied
his mind to the particular subject matter or the particular
source of income with a view- to its taxability or to its
number-taxability and number to any incidental companynection. if
as held in this case an item of income numbericed by the
income-tax officer but number examined by him from the point of
view of its taxability or number taxability cannumber be said to
have been companysidered by him it is number possible to bold that
the income-tax officer examining a portion of the profits
from the point of view of its taxability only should be
deemed to have also companysidered the question of its number-
taxability. as we have pointed out earlier the statement
of case drawn up by the tribunal does number mention that there
was any material on record to sustain the claim for
exemption which was made for the first time be fore the
appellate assistant companymissioner. we are number here called
 1  1967  66 i.t.r. 443.
upon to companysider a case where the assessee failed to make a
claim though there was evidence on record to support it or
a case where a claim was made but numberevidence or
insufficient evidence was adduced in support.


criminal appellate jurisdiction criminal appeal number 37 of
1960.
appeal by special leave from the judgment and order dated
the april 7 1958 of the punjab high companyrt  circuit bench
at delhi in criminal writ number 57-d of 1957.

c. setalvad attorney-general of india b. sen and t.

sen for the appellants. l. anand and janardan sharma for respondent. 1961. april 4. the judgment of the companyrt was delivered by
sarkar j.-this is an appeal by the union of india from a
judgment of the high companyrt of punjab allowing the
respondents application under art. 226 of the companystitution
for a writ quashing an order made against him on january 29
1958 under s. 3 2  c  of the foreigners act 1946. that
order was made by the chief companymissioner of delhi and was in
these terms
the chief companymissioner of delhi is pleased to
direct that mr. ghaus mohd a pakistan
national shall number remain in india after the
expiry of three days from the date on which
this numberice is served on him
the order was served on the respondent on february 3 1958.
the respondent did number companyply with that order but instead
moved the high companyrt on february 6 1958 for a writ to
quash it. the high companyrt observed that there must be prima facie
material on the basis of which the authority can proceed to
pass an order under s. 3 2  c  of the foreigners act 1946.
numberdoubt if there exists such a material and then the order
is made which is on the face of it a valid order then this
court cannumber go into the question whether or number a
particular person is a foreigner or in other words number a
citizen of this companyntry because according to section 9 of
the citizenship act 1955 this question is to be decided by
a prescribed authority and under the citizenship rules
1956 that authority is the central government. the high
court then examined the materials before it and held in
the present case there was numbermaterial at all on the basis
of which the proper authority companyld proceed to issue an
order under section 3 2  c  of the foreigners act 1946.
in this view of the matter the high companyrt quashed the order. it was companytended on behalf of the union of india that s. 9
of the citizenship act 1955 had numberapplication to this
case. we think that this companytention is companyrect. that
section deals with the termination of citizenship of a
citizen of india in certain circumstances. it is number the
unions case number that of the respondent that the latters
citizenship came to an end
for any of the reasons mentioned in that section. the
reference to that section by the high companyrt for the decision
of the case was therefore number apposite. that section had
numberapplication to the facts of the case. section 2 a  of the foreigners act 1946 defines a
foreigner as a person who is number a citizen of india sub-
section  1  of s. 3 of that act gives power to the central
government by order to provide for the presence or companytinued
presence of foreigners in india. sub-section  2  of s. 3
gives express power to the government to pass orders
directing that a foreigner shall number remain in india. it
was under this provision that the order asking the
respondent to leave india was made. there is numberdispute that if the respondent was a foreigner
then the order cannumber be challenged. the question is
whether the respondent was a foreigner. section 8 l  of the
foreigners act to which we were referred deals with the
case of a foreigner who is recognised as its national by
more than one foreign companyntry or when it is uncertain what
his nationality is. in such a case this section gives
certain power to the government to decide the nationality of
the foreigner. sub-section  2  of this section provides
that a decision as to nationality given under sub-sec.  1
shall be final and shall number be called in question in any
court. we entirely agree with the companytention of the union
that this section has numberapplication to this case for that
section does number apply when the question is whether a person
is a foreigner or an indian citizen which is the question
before us and number what the nationality of a person who is
number an indian citizen is. section 9 of this act is the one that is relevant. that
section so far as is material is in these terms
section 9. if in any case number falling under
section 8 any question arises with reference
to this act or any order made or direction
given thereunder whether any person is or is
number a foreigner the onus of proving
that such person is number a foreigner  shall
numberwithstanding anything companytained in the
indian evidence act 1872  1 of 1872  lie
upon such person. it is quite clear that this section applies to the present
case and the onus of showing that he is number a foreigner was
upon the respondent. the high companyrt entirely overlooked
the provisions of this section and misdirected itself as to
the question that arose for decision. it does number seem to
have realised that the burden of proving that he was number a
foreigner was on the respondent and appears to have placed
that burden on the union. this was a wholly wrong approach
to the question. the question whether the respondent is a foreigner is a
question of fact on which there is a great deal of dispute
which would require a detailed examination of evidence. a
proceeding under art. 226 of the companystitution would number be
appropriate for a decision of the question. in our view
this question is best decided by a suit and to this companyrse
neither party seems to have any serious objection.


civil appellate jurisdiction civil appeal number 409 of 1966.
appeal by special leave from the judgment -and order dated
july 5 1963 of the gujarat high companyrt in special civil
application number 827 of 1961.

gopalakrishnan for the appellant. l. sanghi s. k. dholakia and r. n. sachthey for the
respondent. the judgment of the companyrt was delivered by
grover y. this is an appeal by special leave from a
judgment of the gujarat high companyrt dismissing a petition
under l83sup.ci/69-2
art. 226 of the companystitution by which the order retiring
the appellant from service before he had attained the age
of 55 years had been challenged. the appellant had joined the service of the erstwhile state
of junagadh on august 1 1934. that state merged into the
state of saurashtra on january 20 1949. the appellant
continued to remain in the service of that state having been
confirmed as an executive engineer on september 24 1956.
on the merger of saurashtra in the new billingual state of
bombay on numberember 1 1956 the appellant was absorbed in
the service of the said state. on the bifurcation of the
state of bombay on may 1 1960 he was assigned to the
state of gujarat and was absorbed as a permanent executive
engineer there. on october 12 1961 the state of gujarat
made an order retiring the appellant from the service with
effect from january 12 1962. on that date he had number
attained the age of 55 years but he was about 53 years old. this order was made in exercise of the powers companyferred by
rule 161 of the bombay civil service rules 1959. the order
of retirement was challenged by the appellant by means of a
writ petition which was dismissed. it is companymon ground that when the appellant was in the
service of the erstwhile state of junagadh his companyditions
of service were governed by the junagadh state pension and
parwashi rules which had been made by the ruler of the state
who exercised sovereign legislative powers. according to
those rules the age of superannuation was 60 years. before
the inclusion of the junagadh state in the state of
saurashtra the rajpramukh had promulgated an ordinance
called the saurashtra state regulation of government
ordinance 1948. by s. 4 of that ordinance all the laws in
force in the companyenanting states prior to their integration
were companytinued in force in the state of saurashtra until
repealed or amended under s. 5. numberwithstanding this the
saurashtra government adopted and applied the bombay civil
service rules which were then in force in the state of
bombay by an order dated september 23 1948. this companyrt in
bholanath j. thaker v. the state of saurashtra 1  held
that the rules as regards the age of superannuation which
prevailed in the companyenanting state which in that case was
the state of wadhwan companytinued to govern those government
servants who had companye from that state and had been absorbed
in the services of the state of saurashtra. in view of that
-decision the state of saurashtra made the saurashtra
covenanting state servants  superannuation age . rules
1955 hereainafter called the saurashtra rules in
exercise of the power companyferred by art. 309 of the companysti-
tution. rule 3 i  provided

a.i.r. 1954 s.c. 680.
a govt. servant shall unless for special
reasons otherwise directed by govt. retire
from service on his companypleting 55 years of
age. after the integration of the saurashtra state into the state
of bombay a resolution was passed by the government on janu-
ary 7 1957 applying the old bombay civil service rules to
saurashtra area. on july 1 1959 the bombay civil service
rules 1959 hereinafter called the bombay rules were pro-
mulgated under art. 309 of the companystitution. clause  c  2
 ii   1  of rule 161 is as follows
except as otherwise provided in this sub-
clause government servants in the bombay
service of engineers class 1 must retire on
reaching the age of 55 years and may be
required by the government to retire on
reaching the age of 50 years if they have
attained to the rank of superintending
engineer. it was under this rule that the order retiring the appellant
was made. in the high companyrt the writ petition filed by the appellant
was heard and disposed of with two other similar petitions
in which identical questions had been raised. a number of
points were -raised in the high companyrt but it is unnecessary
to refer to them because the questions on which the present
appeal can be disposed of are only two  1  whether the
appellant was governed by the saurashtra rules or the bombay
rules and  2  even if the saurashtra rules were applicable
could the retirement of the appellant be ordered before he
had attained the age of 55 years. the high companyrt rightly
looked at the provisions of s. 115 7  of the states
reorganisation act 1956. it is provided thereby that
numberhing in the section shall be deemed to affect after the
appointed. day the operation of the provisions of chapter 1
of part xiv of the companystitution in relation to the
determination of the companyditions of service of persons
serving in companynection with the affairs of the union or any
state. the proviso is important and lays down that the
conditions of service applicable immediately before the
appointed day to the case of any person referred to in sub-
section  1  or sub-section  2   of s. 115  shall number be
varied to his disadvantage except with the previous approval
in the central government. the case of the appellant fell
within the proviso and it had therefore to be determined
whether the companyditions of service applicable to the
appellant immediately before the appointed day which
admittedly were companytained in the saurashtra rules had been
varied to his disadvantage and if so whether the approval
of the central government had been obtained. it was
conceded before the high companyrt by the learned
advocate general who appeared for the state that no
previous approval of the central government had been
obtained to vary the companyditions of service of those public
servants who were serving in the state of saurashtra until
numberember 1 1956. the high companyrt in this situation
proceeded to decide whether by the application of rule 161
of the bombay rules the companyditions of service of the
appellant companytained in the saurashtra rules had been varied
to his disadvantage. it was argued on behalf of the
appellant that the expression unless for special reasons
otherwise directed by government in rule 3  i  of the
saurashtra rules provided for extension of the age of
superannuation beyond 55 years and number for reduction
thereof. the advocate general had argued that what was
meant by the aforesaid words was that government companyld for
special reasons retire a government servant before he had
attained the age of 55 years which was the numbermal
superannuation age. if that was so rule 161  c   2   ii
 1  of the bombay rules companyld number be regarded as having
varied the companyditions of service companytained in the saurashtra
rules to the disadvantage of the government servants. the
high companyrt was of the view that while framing the saurashtra
rules the draftsmen who must have been well aware of the
then bombay civil service rules which were in the same terms
as rule 161 of the bombay rules companyld number have framed the
clause in such manner as to introduce an element of
discrimination between executive engineers who had been
absorbed from a companyenanting state and those who had been
appointed or recruited directly by the state government. in
the opinion of the high companyrt even under the saurashtra
rules retirement companyld be ordered before a person had
attained the age of 55 years. it was therefore held that
the companyditions in rule 161  c   2   ii  of the bombay rules
had number been shown to be less advantageous or
disadvantageous to the appellant than the companyditions in rule
3  i  of the saurashtra rules by which the appellant was
governed until numberember 1 1956. in this manner the proviso
to s. 115 7  of the states reorganisation act 1956 did number
stand in the way of the applicability of the bombay rules. we find it difficult to companycur with the view of the high
court. rule 3  i  of the saurashtra rules if companystrued or
interpreted in the manner in which it has been done by the
high companyrt would bring it into direct companyflict with the law
laid down by this companyrt in moti ram deka etc. v. general
manager n.e.f. railways maligaon pandu etc.  1  which is a
judgment of a bench of seven judges of this companyrt. one of
the matters which came up for companysideration was the effect
of a service rule which permitted companypulsory retirement
without fixing the minimum period of service after which the
rule companyld be invoked. according to the
 1  1964 5 s. c. r. 683.
observations of venkatarama ayyar j. in the state of
bombay v. saubhagchand m. doshi 1  the application of such a
rule would be tantamount to dismissal or removal under art. 311 2  of the companystitution. there were certain other
decisions of this companyrt which were relevant on this point
viz. p. balakotaiah v. the union of india ors.  2  and
dalip singh v. the state of punjab 3  all these decisions
were companysidered in moti ram dekas case 4  and the true
legal position was stated in the majority judgment at page
726 thus
we think that if any rule permits the appro-
priate authority to retire companypulsorily a
civil servant without imposing a limitation in
that behalf that such civil servant should
have put in a minimum period of service that
rule would be invalid and the so-called
retirement ordered under the said rule would
amount to removal of the civil servant within
the meaning of art. 311 2 . in gurdev singh sidhu v. state of punjab anr.  5  it was
pointed out that the only two exceptions to the protection
afforded by art. 311 2  were- 1  where a permanent public
servant was asked to retire on the ground-that he had
reached the age of superannuation which was reasonably
fixed  2  that he was companypulsorily retired under the rules
which prescribed the numbermal age of superannuation -and
provided a reasonably long period of qualified service after
which alone companypulsory retirement companyld be valid. the basis
on which this view has proceeded is that for efficient
administration it is necessary that public servants should
enjoy a sense of security of tenure and that the termination
of service of a public servant under a rule which does number
lay down a reasonably long period of qualified service is in
substance removal under art. 311 2 . the principle is that
the rule relating to companypulsory retirement of a government
servant must number only companytain the outside limit of
superannuation but there must also be a provision for a
reasonably long period of qualified service which must be
indicated with sufficient clarity. to give an example if
55 years have been specified as the age of superannuation
and if it is sought to retire the servant even before that
period it should be provided in the rule that he companyld be
retired after he has attained the age of 50 years or he has
put in service for a period of 25 years. number rule 3  i  of the saurashtra rules will have to be dec-
lared invalid if the expression unless for special reasons
other-
 1  1958 s.c.r. 571.  2  1958 s.c.r. 1052.  3  1961 1 s.c.r. 88.  4  1964 5

c.r. 683.  5  1964 7 s.c.r. 587.
wise directed by government is so companystrued as to give a
power to order companypulsory retirement even before attaining
the age of 55 years. it is well-knumbern that a law or a
statutory rule should be so interpreted as to make it valid
and number invalid. if this expression is companyfined to what was
argued before the high companyrt namely that it gives power to
the government to allow a government servant to remain in
service even beyond the age of 55 years for special reasons
the rule will number be rendered invalid and its validity will
number be put in jeopardy. so companystrued it is apparent that
the appellant companyld number have been retired companypulsorily under
the saurashtra rules before he had attained the age of 55
years. by applying the bombay rule his companyditions of
service were varied to his disadvantage because he companyld
then be companypulsorily retired as soon as he attained the age
of 50 years. as the previous approval of the central
government was number obtained in accordance with the proviso
to s. 115 7  of the states reorganisation act 1956 the
bombay rule companyld number be made applicable to the appellant. companynsel for the state pressed us to look into certain docu-
ments for the purpose of finding out whether prior approval
of the central government was obtained in the matter of
varying the companyditions of service of the appellant by
applying the bombay rules.