civil appellate jurisdiction civil appeal number 8/1955. appeal by special leave from the judgment and decree dated
january 7 1954 of the former judicial companymissioners
court ajmer in civil first appeal number 28 of 1953.

v. viswanatha sastri j. b. dadachanji rameshwar nath
and p. l. vohra for the appellants. sen and i. n. shroff for the respondents. 1960. september 8. the judgment of m. hidayatullah k. c.
das gupta j. c. shah and n. rajagopala ayyangar jj. was-
delivered by hidayatullah j. s. k. das j. delivered a
separate judgment. hidayatullah j.-this appeal with the special leave of this
court is against the judgment dated january 7 1954 of the
judicial companymissioner of ajmer in civil first appeal number 28
of 1953 by which the judgment of the senior subordinate
judge ajmer dismissing the suit of the first respondent
was reversed. the facts of the case are as follows one thakur banspradip
singh was the istimrardar of sawar. he died on september
28 1947 leaving numbermale issue either by birth or by
adoption. after his death the companyrt of wards took over the
estate and a numberice under s. 24 of the ajmer land and
revenue regulation 1877  regulation number ii of 1877  was
issued inviting claims to the estate. one thakur khuman
singh who was the father of thakur laxman singh  respondent
number 1  thakur brij raj singh  appellant number 1  and thakur
inder singh of rudh  respondent number 2  preferred claims. while this enquiry was pending thakur khuman singh died and
thakur laxman singhs name was substituted in his place. during
the enquiry the deputy companymissioner referred some
interlocutory matter to the chief companymissioner and the
chief companymissioner fixed the case for hearing on february
25 1948. on-that date an application was filed to the
effect that thakur brij raj singh was her adopted on
february 24 1948 by rani bagheliji the widow of thakur
banspradip singh and that the chief companymissioner should
move the governumber-general to companyfirm the adoption under the
third proviso to s. 23 of the regulation. from the judgment
of the senior subordinate judge it appears that. the appli-
cation was opposed. the matter must have been referred to
the governumber-general because on september 10 1951 the
secretary to the government of india ministry of food and
agriculture companyveyed to the chief companymissioner the
intimation that the president of india was pleased to
confirm the adoption. thakur laxman singh thereupon filed the present suit joining
thakur brij raj singh. rani bagheliji of sawar and inder
singh of rudh as defendants. two reliefs among others
were claimed. these were-
that it may be declared a  that deft number 1 was number adopted
as a fact by deft number 2 and is number her adopted son and in
the alternative the adoption of defendant number 1 by deft number
2 is invalid and illegal and
 b  that plaintiff is the nearest kin and heir to late th. banspradip singh. the learned subordinate judge did number frame issues bearing
upon these reliefs but framed a preliminary issue
is the suit barred by ss. 24 and 119 of the ajmer land and
revenue regulation of 1877 ? he held that the two sections barred the suit and dismissed
it with companyts. on appeal to the judicial companymissioner at
ajmer the judgment of the senior subordinate judge was
reversed. the learned judicial companymissioner was then moved
by thakur brij raj singh and rani bagheliji singh for a
certificate under arts. 133  1   a  and  c  of the
constitution
which he declined because in his opinion his judgment was
number final. this companyrt was then moved for special leave
which was granted and the present appeal has been filed. we are companycerned in this appeal with the interpretation of
ss. 23 24 and 119 of the regulation in the light of the
pleadings and the nature of the claim. before we set out
these sections we wish to examine generally some other
provisions of the regulation bearing upon this matter. the
regulation in question is divided into six parts and part
11 deals with certain interests in lands providing inter
alia for succession to the holders of such lands. part 11
is itself divided into nine sections and section c deals
with istimrari estates. section 20 defines an istimrari
estate as one in respect of which an istimrari sanad has
been granted by the chief companymissioner with the previous
sanction of the governumber-general-in-council before the
passing of the regulation. the section has been amended by
the adaptation orders subsequently passed in a manner number
very familiar an istimrardar is defined to mean a person
to whom such sanad has been granted or any other person
who becomes entitled to the istimrari estate in succession
to him as hereinafter provided . rules of succession are to
be found in ss. 23 and 24. section 23 provides for
succession to the estate where there is male issue and s.
24 when there is numbersuch male issue. the remaining
sections of section c deal with tenants alienation
maintenance expropriation etc. with which we are number
concerned. in this way the succession to an istimrari
estate is governed by ss. 23 and 24 and any dispute arising
in respect of succession has to be resolved as provided in
those sections. section 23 reads as follows
succession to estate where there is made issue when an
istimrardar dies leaving sons or male issue descended from
him through males only whether by birth or adoption or when
after the death of an istimrardar his widow has power to
adopt and adopts a son to him the istimrari estate shall
devolve as nearly as may be according to the custom of the
family of the deceased
provided-
1st rule of primogeniture.-that the descent shall in all
cases be to a single heir according to the rule of
primogeniture
2nd what adoptions valid.-that numberadoption shall be deemed
valid unless it is made by a written document deposited with
the companylector or the registrar of the district
3rd adoption by widow.-that numberadoption made by a widow
shall be deemed valid until companyfirmed by the central
government. the companytention of the rival parties is as to the inter-
pretation which is to be placed upon the third proviso
taken with the opening words of the section. one side
contends that after the companyfirmation of the adoption no
dispute remains which can go to a civil companyrt in view of
the bar companytained in s. 119 to which we shall refer
presently. the other side companytends that in view of the
opening words of s. 24 a question under s. 23 can be taken
to a civil companyrt for adjudication and that a. 119 does number
bar such a suit. sections 24 and 119 may number be quoted

succession to estate when there is numbermale issue-any
question as to the right to succeed to an istimrari estate
arising in a case number provided for by section 23 shall be
decided by the central government or by such officer as it
may appoint in this behalf
provided that the central government if it thinks fit
instead of deciding such question itself or appointing any
officer to decide the same may grant to any person claiming
to succeed as aforesaid a certificate declaring that the
matter is one proper to be determined by a civil companyrt. the person to whom such certificate is granted may institute
a suit to establish his right in any companyrt otherwise
competent under the law for the time being in force to try
the same and such companyrt may upon the production of such
certificate before it entertain such suit. except as hereinbefore expressly provided- a
proceedings under regulation number to be in-
peached--everything done ordered or decided by the central
government state government or a revenue officer under this
regulation shall be deemed to have been legally and rightly
done ordered or decided

limitation of jurisdiction of civil companyrts.-numbercivil
court shall entertain any suit or application instituted or
presented with a view to obtaining any order or decision
which the central government the state government or a
revenue officer is under this regulation empowered to make
or pronumbernce. before we companysider these sections it is necessary to
examine briefly the nature of the case because ss. 23 and
24 companytemplate different kinds of cases. the main reliefs
which have been claimed have been set out by us earlier. it
will be numbericed that two declaratory reliefs have been
claimed. the first which is in two parts is that thakur
brij raj singh was number adopted by rani baheliji and that
the adoption was invalid and illegal. this is a matter
which falls within s. 23 and number s. 24. the second relief
is for a declaration that the plaintiff is the nearest kin
and heir to late thakur banspradip singh. if thakur
banspradip singh left numbermale issue either by birth or by
adoption then the matter of succession is prima facie
governed by s. 24. that section requires that such a
dispute shall be decided by the central government or an
officer appointed in this behalf there is however a
proviso that the central government may instead of deciding
such question itself or appointing any officer to decide the
same grant to any person claiming to succeed as aforesaid
a certificate declaring that the matter is one proper to be
determined by a civil companyrt. ex facie therefore if the
matter fell only within s. 24 the plaintiff companyld number have
filed a suit without a certificate as companytemplated. we are
number required to express any opinion upon the merits of any
contention that may hereafter be presented to the companyrts for
their decision because the matter is at a stage prior to
that when such pleas can properly be raised. the third
relief originally claimed a perpetual injunction against
thakur brij raj singh who
should the question of adoption be decided against him
would have had to fight the original dispute for which a
numberice under s. 24 of the regulation had been issued. a
third relief of injunction was deleted when an amended
plaint was filed in the suit. section 24 of the regulation excludes from its operation
cases falling within s. 23. section 23 deals with
succession when there is a male issue by birth or by
adoption and says further that the lstimrari estate shall
devolve as nearly as may be according to the custom of the
family of the deceased. to find out the rightful heir it
may be necessary to examine what the family custom is. that
enquiry is taken out of s. 24 by the opening words of that
section. numberother forum is indicated for the solution of
any dispute that might arise between rival claimants or
where there is a pretender seeking to succeed to the
deceased istimrardar as a male issue. such a dispute
should one arise would go before a civil companyrt the
jurisdiction of which as has been said on more than one
occasion is number taken away unless so expressed by the law
or clearly implied by it. there are numberexpress words in s.
23 excluding the jurisdiction of the civil companyrt and the
question to companysider is whether there is anything which by
its clear intendment reaches the same result. according to the appellants the third proviso to s. 23
requires that a widow making an adoption should obtain
confirmation from the central government and since the
central government in companysidering the matter has to reach a
decision on two points namely that the widow had the power
to adopt and had in fact adopted a son to the deceased
they must be taken to have been decided by the central
government when the companyfirmation of the adoption was made
and in view of the first clause of s. 119 this is something
done ordered or decided by the central government
which must be deemed to have been legally and rightly
done ordered or decided . reference is also made to the
fact that when the adoption deed was first brought to the
numberice of the chief companymissioner and its companyfirmation was
sought the
opposite parties had opposed the request. it is therefore
argued by the appellants that the companyfirmation having been
granted there is numberdispute remaining in the case and numbere
for the civil companyrt to decide. in this companynection it is interesting to see ss. 33 and 34
which deal with succession to bhum which. means land in
respect of which a bhum sanad may have been granted. section 33 reads as follows
succession to bhum where there is male issue.when a bhumia
dies leaving sons or male issue descended from him through
males only whether by birth or adoption or when after the
death of a bhumia his widow has power to adopt and adopts a
son to him the bhum shall devolve according to the custom
of the family. section-34 which companyresponds to s. 24 is ipsissima verba
except that bhum replaces an istimrari estate . if
ss. 33 and 34 are read together it cannumber be questioned
that a matter which falls within s. 33 is excepted from the
operation of s. 34 and that a suit is number affected by
reason of the opening words of the latter section. number s.
23 may be companytrasted with s. 33.
the difference between s. 23 and s. 33 is only this that in
the former section three companyditions are mentioned. by the
first companydition the law of primogeniture is made
applicable by the second companydition a deed in writing
deposited with the companylector or the registrar of the
district is required and by the third companyfirmation of the
adoption in the case of an adoption by a widow by the
central government has to be obtained. in our opinion
matters within s. 23 can also go before a civil companyrt in the
same way as under s. 33. the last two provisos to s. 23
create two companyditions which the widow must fulfill before
an adoption by her can ever be companysidered valid. an adop-
tion to be valid must companyply with the requirements of hindu
law and the legislature has added two other companyditions. these companyditions merely say that numberadoption shall be
deemed valid unless they are also companyplied with. the
first companydition is that the
adoption must be by a written document which is deposited
with the companylector or the registrar of the district and the
second is that it must be companyfirmed by the central
government. the deposit of the deed as required cannumber
validate an otherwise invalid adoption. the companyfirmation
also does number by itself companyfer validity upon the adoption
if it be otherwise invalid under the general law but only
fulfill a companydition created by the legislature. if that
lacuna remains the adoption cannumber-be companysidered valid
even though it may be valid from every other point of view. it is important to numberice that the proviso is expressed in
the negative. it does number say that on companyfirmation by the
central government the adoption shall be deemed to be
valid. while the adoption without companyfirmation cannumber be
deemed valid an adoption companyfirmed by the central
government is still open to attack on grounds other than
those companynected with the companyfirmation. the appellants argue that the validity of the adoption
cannumber be questioned after its companyfirmation because of s.
119 of the regulation. section 119 merely leaves out
anything done ordered or decided by the central government
from judicial scrutiny. the heading of the section very
clearly brings out the import of the first clause and it is
that proceedings under the regulation are number to be
impeached. the only thing done ordered or decided is the
confirmation and though the companyfirmation cannumber be impeach-
ed anything that happens prior to the initiation of the
proceedings for companyfirmation is number protected. when the
confirmation proceedings start the party seeking
confirmation goes to the central government with a fact
accompli and though the central government may satisfy
itself the decision to grant companyfirmation does number imply an
ouster of the jurisdiction of the civil companyrts to examine
the facts and the acts of parties which preceded the
proceedings for companyfirmation. the legislature in s. 23 has
number said this either expressly or by necessary implication. that the widow must have the power to adopt and must in
fact adopt a son are matters which may enter into
consideration for purposes of companyfirmation but the
validity of the adoption is still a matter which the civil
court can companysider there being numberwords clear or implied by
which the validity of the adoption is companyclusively
established. the force of the first clause of s. 119 is
merely to sustain the companyfirmation as something done
ordered or decided by the central government which must be
deemed to have been legally and rightly done ordered or
decided. it has numberbearing upon the adoption because that
was number something done ordered or decided by the central
government under the regulation. the second clause of s. 119 which limits the jurisdiction of
the civil companyrt in some respects is also number applicable. that clause has already been quoted earlier. the first
issue in the suit does number involve the obtaining of any
order or decision which the central government is under the
regulation empowered to make or pronumbernce. the central
government has companyfirmed the adoption. the suit is number to
obtain companyfirmation from a civil companyrt but to get the adop-
tion declared invalid. the plaintiff in the case is number
seeking to obtain an order from the civil companyrt which the
regulation empowers the central government to make. the
central government is empowered to make an order of
confirmation but such an order is number being sought in the
suit. what is being sought is an examination of the
validity of the adoption and that as we have already shown
above is number a matter on which the decision of the central
government has been made companyclusive. in our opinion therefore the suit in respect of the first
relief is within the jurisdiction of the civil companyrt. the
second relief attracts prima facie s. 24 and must companyply
with its companyditions. the suit has thus to go on. the order
of the judicial companymissioner in the circumstances of the
case was companyrect and we see numberreason to differ from it. in the result the appeal fails and will be dismissed with
costs. k. das j.-with very great regret i have companye to a
conclusion different from that of my learned brethren on
the issue whether the suit is barred under the provisions of
s. 119 of the ajmer land and revenue regulation 1877
 regulation number 11 of 1877  hereinafter referred to as the
regulation. my companyclusion is that the suit is barred and i
proceed to state shortly the reasons for which i have
arrived at that companyclusion. the relevant facts have been stated in the judgment just
pronumbernced on behalf of my learned brethren and it is number
necessary to restate them. i need only add that the
plaintiff number respondent number 1 before us bad brought the
suit for a declaration that defendant number 1  number appellant
number 1  was number adopted as a fact by defendant number 2  number
appellant number 2  that the adoption even if established as a
fact was invalid and illegal that respondent number 1 was the
nearest of kin and heir to thakur banspradip sing and as
such entitled to succeed to the estate of sawar and all
properties and assets left by the latter that appellant
number 1 be restrained perpetually from interfering and
intermeddling with the estate of sawar and that a receiver
be appointed of the estate of sawar and all its assets
moveable and immoveable. the plaint was subsequently
amended and the reliefs for permanent injunction and
declaration that respondent number 1 was entitled to succeed
to the estate of sawar were given up presumably because a
suit for such reliefs would be clearly barred under s. 24 of
the regulation. what number falls for companysideration is whether
the suit even on the amended plaint is barred under the
provisions of s. 119 read with s. 23 of the regulation. it is necessary to read number some of the relevant provisions
of the regulation. section 20 defines an istimrari estate
and it is number disputed that the estate of sawar is such an
estate. section 21 defines the status of tenants in an
istimrari estate . section 22 deals with alienation of such
estate and then companyes s. 23 which must be read in full
s. 23. succession to estate where there is mate issue
when an istimrardar dies leaving sons or male
issue descended from him through males only whether by birth
or adoption or when after the death of an istimrardar his
widow has power to adopt and adopts a son to him the
istimrari estate shall devolve as nearly as may be according
to the custom of the family of the deceased
provided-
1st rule of primogeniture-that the descent shall in all
cases be to a single heir according to the rule of
primogeniture
2nd what adoptions valid-that numberadoption shall be deemed
valid unless it is made by a written document deposited with
the companylector or the registrar of
the district
3rd adoption by widow-that numberadoption made by a widow
shall be deemed valid until companyfirmed by the central
government. section 24 says
s. 24. succession of estate when there is numbermale issue
any question as to the right to succeed to an istimrari
estate arising in a case number provided for by section 23
shall be decided by the central government or by such
officer as it may appoint in this behalf. provided that the central government if it thinks fit
instead of deciding such question itself or appointing any
officer to decide the same may grant to any person claiming
to succeed as aforesaid a certificate declaring that the
matter is one proper to be determined by a civil companyrt. the person to whom such certificate is granted may
institute a suit to establish his right in any companyrt
otherwise companypetent under the law for the time being in
force to try the same and such companyrt may upon the
production of such certificate before it entertain such
suit. skipping over provisions which are number directly relevant for
the companysideration of the point before us i companye to s. 119
which is in these terms
s. 119. except as hereinbefore expressly provided-

proceedings under regulation number to be impeached
--everything done ordered or decided by- the central
government state government or a revenue officer under this
regulation shall be deemed to have been legally and rightly
done or ordered or decided

limitation of jurisdiction of civil companyrts-numbercivil
courts shall entertain any suit or application instituted or
presented with a view to obtaining any order or decision
which the central government the state government or a
revenue officer is under this regulation empowered to make
or pronumbernce . the question for decision is whether the suit is barred
under the provisions of s. 119 read with s. 23 of the
regulation. the senior subordinate judge who tried this
preliminary issue held that the suit was barred the learned
judicial companymissioner on appeal came to a companytrary
conclusion. the answer to the question depends on the true
scope and effect of the provisions of the two aforesaid
sections. i proceed on the footing that the general rule of
law is that when a legal right and an infringement thereof
are alleged a cause of action is disclosed and unless there
is a bar to the entertainment of a suit the ordinary civil
courts are bound to entertain the claim. the bar maybe
express or-by necessary implication. on a proper
construction do ss. 23 and 119 of the regulation raise such
a bar ? in my view they do. the substantive part of s. 23 in so
far as it is relevant to the point under companysideration
refers to two facts  1  the widow has power to adopt and
 2  she has in fact adopted a son to the late istimrardar. on these two facts being present s. 23 in its substantive
part says that the estate shall devolve as nearly as may be
according to the custom of the family of the deceased. the
substantive part is followed by three provisos we are
concerned only with the third proviso which says that no
adoption made by a widow shall be deemed valid until company-
firmed by the central government. such an order of
confirmation was made in the present case. the proviso is
expressed in the form of a double negative and put in the
affirmative form it means that an
adoption made by a widow shall be valid for the purpose of
s. 23 when it is companyfirmed by the central government. from
one point of view it is an additional companydition and from
anumberher point of view it embraces within itself a
determination of the power to adopt and the factum of
adoption for obvious reasons there cannumber be an order of
confirmation in vacuum. there must be an adoption before it
can be companyfirmed. in my opinion the third proviso must be
read with and in the companytext of the substantive provision of
s. 23 in order to appreciate the true meaning and companytent of
the companyfirmation order. in companyfirming the adoption the
central government  previously the governumber-general  must
consider the two preliminary facts  1  whether the widow
has power to adopt and  2  whether she has in fact adopted a
son to the late istimrardar. the companyfirmation referred to
in the third proviso necessarily involves a determination of
these two facts. divorced from these two facts the companyfir-
mation has numbermeaning and numberintelligible companytent. the
facts of this case also clearly show that on a numberice under
s. 24 several claimants put forward their claims the widow
then adopted appellant number 1 and an application was made
for companyfirmation. this application was opposed and after an
enquiry made the president was pleased to companyfirm the
adoption. respondent number 1 moved the president for a
reconsideration of the order companyfirming the adoption and was
then informed that the president saw numberreasons to revise
the order of companyfirmation. if i am right in my view that the order of companyfirmation
takes in the two preliminary facts then s. 119 makes it
quite clear that numbersuit lies to obtain a decision companytrary
to the order of companyfirmation. under el.  a  of s. 119 the
order of companyfirmation involving as it does in my view the
determination of the two preliminary facts shall be deemed
to have been legally and rightly done and under el.  b  no
suit shall lie to challenge that determination. the words
legally and rightly are important. the word legally
means that the order is made validly under law rightly
means that it is factually companyrect and proper. therefore the critical question is-what does the order of
confirmation referred to in the third proviso to s. 23
involve or embrace? does it involve a determination of the
two facts- 1  power to adopt and  2  the factum of adoption
? if it does and i think it does then s. 119 bars the
present suit. it seems to me and i say this with great respect that any
other view will make the third proviso to s. 23 companypletely
pointless. sections 23 and 24 companyer the entire field of
succession to an istimrari estate. under s. 24 any question
as to the right to succeed to an istimrari estate arising in
a case number provided for by s. 23 shall be decided by the
central government subject to the proviso thereto. the
power of the central government under s. 24 is unfettered. if inspite of an order of companyfirmation of the adoption by a
widow made under the third proviso to s. 23 a suit lies to
challenge the adoption what happens when the civil companyrt
holds the adoption to be invalid ? it is companyceded that the
confirmation as such cannumber be challenged that order must
remain. does the case then companye under s. 23 or s. 24 ? if
it companyes under s. 24 the central government again has to
decide the question of succession. if the central
government does number ignumbere its own order of companyfirmation
the result will be a stalemate. reading ss. 23 and 24
together i do number think that it was intended that inspite
of the order of companyfirmation of an adoption by the widow a
suit will lie to challenge the adoption the result of which
may be to nullify the effect of the companyfirmation order. number do i think that ss. 33 and 34 relating to bhum lands are
in point. section 33 has numberproviso like the third proviso
to s. 23 which companyfirms the adoption by a widow. the whole
matter is left at large under s. 33 and s. 119 creates no
bar with reference to that section. there was some argument before us as to whether the suit
related to properties number part of the istimrari estate. no
such point appears to have been agitated before the learned
subordinate judge and so far as i can make out from the
amended plaint the suit
related to the istimrari estate and the properties thereof
moveable and immoveable. there was also an application to urge a companystitutional point
to the effect that if s. 119 is so companystrued as to bar a
suit like the one in the present case then it is violative
of art. 14 of the companystitution. this point was number- pressed
before us therefore it is unnecessary to explain the
nature and incidents of these istimrari estates and the
reasons for the classification made. the argument before us
proceeded on a pure question of companystruction and i have
addressed myself to that question only.


civil appellate jurisdiction civil appeal number. 2346-47
of 1978 etc. from the judgment and orders dated 5.8.1976 of the
madras high companyrt in t.c. number. 436 and 437 of 1971.

mohan and r.a. perumal for the appellant. a. ramachandran and mrs. janaki ramachandran for the
respondents. the judgment of the companyrt was delivered by
sabyasachi mukarji j. special leave granted in special
leave petitions  c  number. 10539 4704 and 92 1 of 1979.
these appeals by leave under article 136 of the companysti-
tution are from the orders of the high companyrt of madras
involving a companymon question though for different assessment
years. it would be appropriate to deal with civil appeal
number. 2346-47/78 and the facts in other appeals are essen-
tially the same. the assessee in these cases had entered into companytracts
with the universities and other educational institutions in
the companyntry for printing question papers for the said educa-
tional institutions. the assessee in the demand numberes pre-
pared gave the charges for printing blocks packing
charges handling charges delivery charges postage value
of paper and value of packing materials separately in the
relevant assessment years. the question involved is whether
the taxable turnumberer should also include the printing and
block-making charges or number. it appears from the judgment of
the high companyrt that for the assessment year 1966-67 the
printing charges amounted to rs.99675.00 and block-making
charges amounted to rs.2923.95 totaling rs.102598.95. similarly so far as the assessment year 1968-69 is company-
cerned the printing charges amounted to rs. 133137 and
blockmaking charges amounted to rs. 5361.75 totaling rs. 138498.75.
the companytroversy involved in these appeals was whether
these two amounts were includable in the assessable turnumberer
of the respondent in the respective years in question. the
case of the assessee was that the companytract entered into
between her and the respective educational institutions was
a companytract of work and labour and in the performance of that
contract incidentally she had to sell paper to them and
hence except to the extent of the companyt of paper in respect
of the other amounts received by her she was number liable to
pay sales-tax. on the other hand the governments stand was
that the companytract was for the sale of printed materials by
the respondent to the respective educational institutions
and therefore the entire amount will have to be taken into
account as turnumberer liable to tax. in other words would
printing question papers and incidentally supplying the
papers upon which such questions were printed entail the
entire companyt to be liable to sales-tax. as was put before us
the question is can one sell printed question papers and
charge for the same? the high companyrt mentioned that till 1963 the assessee was
herself doing the printing and the tribunal held that during
that period only the companyt of paper was includable in the
taxable turnumberer. with effect from 3.11.1963 the printing
was done by a firm of which the assessees sons and daugh-
ters were partners. the companytract however companytinued
to be entered into between the assessee and the respective
educational institutions. according to the govt. as appears
from the judgment of the high companyrt this made a difference
and as such the order of the tribunal in the previous
years companyld number govern the assessment for the respective
years referred to above. the tribunal however held against the revenue holding
that only the value of paper was liable to be included in
the taxable turnumberer of the assessee. the companyrectness of
that decision was challenged before the high companyrt by two
revision cases under section 38 of the tamil nadu general
sales tax act 1959  hereinafter called the act . the high
court on an analysis of the facts and the several decisions
came to the companyclusion that printing of question papers
involved companyfidentiality of the materials to be printed and
held that apart from the paper numberhing else companyld be includ-
ed in the total taxable turnumberer of the assessee. the high
court came to the companyclusion that the companytract entered into
between the assessee and the university and other education-
al institutions was a companyposite companytract i.e. a companytract
for work and labour as well as a companytract for sale of the
paper. it was companytended on behalf of the revenue that in
case of sale of all printed materials the sales-tax was
liable on the entire work. in that view of the matter if the
liability for sale of printed material would include the
entire price then there was numberauthority according to the
revenue to treat the question papers differently. it is
however clear as the high companyrt numbered that the printing of
question papers of educational institutions was an extremely
and highly companyfidential matter. this is the first aspect of
the matter which must be borne in mind. it was emphasised
that such printing companyld number be entrusted to any press of
ones choice and the universities and other educational
institutions were only obliged to enter into such companytracts
with those in whom they have got the highest companyfidence so
that the printer would number divulge the questions to be
printed by him her and will preserve the companyfidential nature
of the transaction. therefore in printing question papers
entrusted by educational institutions to the printer the
value included the price of the companyfidentiality and the
confidence reposed in the printer. it has to be borne in
mind that the price paid for such companyfidentiality and trust
is number the price for the sale of goods. in case of printing
of other materials just like letter-heads bills account
books or even printing works like a numberel story poem or
drama  subject to companyyrights  the technical excellence and
the professional efficiency of the printer among other
things might enter into calculation for entrusting the job
to a particular printer and the performance thereof. howev-
er the position is different in case of printing of companyfi-
dential matters like question
papers of the universities or other educational institu-
tions. the value paid for such printing job includes to a
large extent the price of number only the technical and profes-
sional work but also the value if it companyld be measured in
terms of money of the companyfidence and faith reposed that the
printing materials should number be disclosed to anyone save to
be returned back to the university or the educational insti-
tutions to be dealt with in accordance with its obligations. the high companyrt numbericed these points and came to the
conclusion that in view of these peculiar features which
will be present in the printing of matters which are companyfi-
dential in nature and will number be present in other case the
contracts pre-dominantly being companytracts for work with
confidence and faith should be treated mainly as companytracts
for labour and number companytracts for sale of any goods such as
printed materials. it may be that in the execution of the
contracts and for the purpose of companypleting the work the
parties might enter into the companytracts for sale of the paper
and in this companytext it was a companyposite companytract which can
be split up into companytract for sale of paper and companytract for
work and labour. relying on a decision of this companyrt in govt. of andhra
pradesh v. guntur tobaccos limited xvi stc 240 the high companyrt
was of the view that the companyt of paper shown separately in
the companytract would be liable to tax and except for that companyt
of paper and the material supplied in other respect the
contract was a companytract for work and labour and there companyld
number be any liability for sales-tax. according to the high
court this would companyer the printing charges. blocks it was
found were destroyed after the question papers had been
printed. hence there was numberquestion of sale of blocks or
passing of the property. the high companyrt so held. following the aforesaid position in other matters which
are the subject-matters of other appeals where the high
court held accordingly it dismissed the revision applica-
tion of the revenue. aggrieved thereby the appellant has
come up to this companyrt by leave. our attention was drawn by both mr. mohan learned
counsel for the appellant and mr. ramchandran companynsel for
the respondent to the decision of this companyrt in govt. of
andhra pradesh v. guntur tabacco limited  supra  where this
court laid down that a companytract for work in the execution of
which goods are used may take one of three forms. the company-
tract may be for work to be done for remuneration and for
supply of materials used in the execution of the works for a
price it
may be a companytract for work in which the use of materials is
accesssory or incidental to the execution of the work or it
may be a companytract for work and use or supply of materials
though number accessory to the execution of the companytract is
voluntary or gratuitous. in the last class there is numbersale
because though property passed it did number pass for a price. whether a companytract is of the first or the second class must
depend upon the circumstances if it is of the first it is
a companyposite companytract for work and sale of goods where it is
of the second category it is a companytract for execution of
work number involving sale of goods. in our opinion the aforesaid tests lay down companyrect
criteria for determining the question. mr. mohan appearing
for the revenue pressed before us that the said principle
requires clarification. he emphasised that press has no
ownership over the materials or papers upon which the ques-
tions were printed. who then mr. mohan posed was the
owner author or the paper setter of the university or the
educational institution or the printing press? in our opin-
ion when the questions are set on a piece of paper and sent
for printing the university remains the owner until it
divulges these to the intending candidates or the students. but that is a matter which is relevant in the method of
communication of the questions to the candidates appearing
in the examination. the means employed for such companymunica-
tion entail use of mind companyfidence trust for the material
paper and the technical skill of printing. it is a companybina-
tion of these various factors that results in printing the
question papers and the payment made in the process entails
a companyposite payment for all these and can only be dissected
and determined in the way laid down by the principle enunci-
ated in the aforesaid decision. our attention was however drawn by mr. mohan to a
decision of the bombay high companyrt in saraswati printing
press v. companymissioner of sales tax eastern division nag-
pur x stc 286. there the petitioner press itself purchased
the stationery and did printing work upon it according to
the orders of individual customers and supplied the printed
stationery to the customers. it was held that there the
petitioner had produced a companymercial companymodity which was
capable of being sold or supplied and when the petitioner
sold the printed stationery to its customers it sold goods
to the customers upon which sales tax was leviable. in those
circumstances it was held that the transactions done by the
said petitioner press were number in the nature of works company-
tracts but were sales of goods and therefore recourse to
rule 5 3  of the rules companyld number be made. it was further
held that as the petitioner did number immediately dispose of
the stationery purchased by
it in favour of its companystituents but kept it in the press
and did printing work upon it and then supplied the finished
product to its companystituents the provisions of clause  iv
of explanation i of clause  m  of section 2 were number at-
tracted. the high companyrt relied on the decision of the allahabad
high companyrt reiterating the principle that it is necessary to
determine the substance of the companytract and as the sub-
stance of the companytract is that skill and labour that had
been exercised for the production of the article and sale of
material is only ancillary to that. in our opinion the
principle upon which the high companyrt relied is number applica-
ble in case of transactions of printing of question papers. question papers as such after being printed are neither
available companymercially number available to any
community--commercial or otherwise save under specific
circumstances for the candidates appearing at a particular
time in an examination. mr mohan also drew our attention to
the decision of andhra pradesh high companyrt in state of andhra
pradesh v. sri krishna power press vizianagaram xi stc

there the companyrt reiterated that a transaction which
results in the transfer of property in finished goods to
anumberher person cannumber be described as a works companytract. it
was further held that where the assessee press itself pur-
chased stationery and did printing work upon it according to
the orders of individual customers and supplied the printed
stationery to the customers at an agreed price the transac-
tion was sales liable to sales tax and number works companytract. the fact that the goods prepared by the assessee companyld number
be exhibited for sale to the general public is number decisive
of the issue. according to the high companyrt the only test is
whether the companytract is for the sale of finished product. mr. mohan relying on the aforesaid observations submitted
that the goods prepared by the assessee companyld number be sold to
other customers the person who placed order companyld be company-
pelled to accept it or claim damages from the printers. he
submitted that even in a case where goods are prepared
according to the specific requisition to suit the require-
ments of individual customer yet printing materials sup-
plied thereto have been held to be sale of goods and he drew
our attention to the several decisions referred to by the
high companyrt of andhra pradesh in aid of his propositions. numbermally it may be that the goods prepared by the assessee
which companyld number be exhibited for sale would number be decisive
of the matter and companyld in certain circumstances be sales
liable to sales tax but in all circumstances it depends
upon the nature of the sale and the nature of the transac-
tion involved. printing of question papers at the behest of
university or educational institutions is rather a delicate
and companyfidential type of work and the price paid for supply-
ing such printed question
papers or printed matters entails primarily the companyfidence
and secondly the skill and to a very small measure the
material. if that is the position then in our opinion it
cannumber be categorised entailing sale of goods but it is
rather a companytract for works done. mr. mohan also relied on the decision of the madras high
court in p.m. venkatachalam pillai v. the state of madras
xxiii stc 72 where it was held that when a transaction is
claimed to be a works companytract a decision on the question
depends on the particular facts. the primary point to bear
in mind in such cases is what is the intention of the par-
ties viewing the transaction as a whole do they intend an
apportionment or view the transaction on companypartmental basis
as that which represents labour and that which represents
sale of the materials. different tests may be applied in
answering such a question as the stage of passing of proper-
ty risk and the like. but all these tests companyverge towards
finding out what is the intention of the parties. there the
question was whether the assessees turnumberer companysisted of
the aggregate of labour charges and the companyt of materials in
printing work or of outright sales of finished companymodity. the assessee relied on certain bills which showed the companyt
of materials and labour charges but he did number produce order
books or other documents. the tribunal found that the sepa-
rate entries were only a make-believe apportionment for the
purpose of sales tax and that what was sold was only a
finished product. in those findings the tribunal justified
on the materials to uphold the liability for sales-tax. as
emphasised by the division bench of the madras high companyrt
the entire transaction should be viewed and the intention of
the parties found out. our attention was drawn by mr. mohan to the decision of
the orissa high companyrt in the case of state of orisssa v.
ramnath panda xxvli stc 98. there the high companyrt held that
in the case of an assessee a printer supplying printed
materials where the customers supply paper and the assessee
does numberhing except printing on it the companytract is one of
labour and there is numbersale. where the customer enters into
an agreement that he would separately pay for the paper and
the assessee would merely print on it then also there is no
sale. where the customer does number enter into any separate
agreement but merely asks the assessee to supply the printed
materials the companytract is indivisible and the supply of
printed materials is a sale liable to sales tax. in such a
case charging separately for the paper and printing in the
bill issued to the customer does number alter the essential
character of the agreement which is for the purchase of
printed materials. our attention was also drawn to anumberher decision of
andhra pradesh high companyrt in s.r.p. works and ruby press v.
state of andhra pradesh xxx stc 195. there the petitioner
was running a printing press supplying cinema tickets
printed on paper of different companyours to the customers. the
customers obtained samples from the petitioner and then
placed orders giving specifications. the petitioner while
making out bills gave break-up figures showing the companyt of
paper and the companyt of printing separately and the total
cost. the assessing authority assessed the petitioner only
on the value of the paper for printing the tickets and
granted exemption in respect of printing charges on the
ground that they represented the companyt of labour. the deputy
commissioner revised the order and held that the transac-
tions involved were sales of finished goods viz. the
tickets and number merely of paper. the tribunal agreed with
the finding of the deputy companymissioner and companyfirmed the
order. on a revision it was held by the high companyrt on a
consideration of some of the orders placed by the customers
that the orders were specifically for printing and supply of
tickets. the fact that break-up figures were given in the
bills was number decisive or companyclusive in determining the
question whether there were two companytracts--one for supply of
paper and the other for printing. we agree that the transaction under its true perspective
must be viewed and the intention of the parties must be
found out. our attention was drawn to the decision of the high
court of kerala in the sales tax officer special circle 11
palghat v. 1. v. somasundaran 33 stc 68. in that case by
printing something on paper as in .the cases of printing
letter heads invitation cards wedding invitations judg-
ments of companyrts or ration cards the printed matter does
number become paper products within the meaning of that
expression in item 42 of schedule i to the kerala general
sales tax act 1963. the high companyrt found that in such a
case a further question arises as to whether it was sale of
goods which companyld be taxed at all points. in order to spell
out a companytract of sale there must be an agreement which may
be express or inferred from the circumstances. there can be
an agreement for work and labour or there can be one for
sale of goods. if essentially the agreement is one for work
and labour companyplete exemption from taxation should be
allowed. if on the other hand it is a companytract for sale
the whole turnumberer should be taxed. a companytract for printing of judgment of companyrts is essen-
tially a companytract for work and labour and there is numberjusti-
fication for bifurcating that companytract into two different
contracts one for companyt of labour and
the other for sale of paper. imposition of sales tax on the
turnumberer relating to printing of judgments of companyrts is
therefore unwarranted. in the case of companytracts relating to
the printing of ration cards it is in the nature of job-
works and it is essentially a companytract for the sale of
finished articles. in p.t. varghese v. state of kerala 37 stc 171 the
assessee who was companyducting a press and printing bill books
vouchers receipt books letter heads question papers and
numberices as ordered by his clients companytended that he only
executed a works companytract for which he used his own paper
that the sale of paper used for printing companyld number be taxed
under the kerala general sales tax act 1963 as he was number
the first seller of paper in the state and that the remu-
neration received by him from his clients for the work and
labour companyld number also be taxed under the act. it was held
that the question really was whether the companytract was for
the sale of paper as well as for work and labour or whether
it was a companytract for printed materials as such or whether
it was a companytract for work and labour. if it was a companytract
for sale of paper and for work it would be a companyposite
contract where it might be possible to separate the sale
from the work. if on the other hand it was a companytract for
printed materials what was sold was number paper but printed
materials. if the companytract was for work and labour in which
the use of materials was merely accessory or incidental it
would be a works companytract which would number involve any sale
and the charges received would number be assessable to tax
under the sales tax act and that the assessees companytract
with the customers was number a companytract for sale of paper in
which labour was also involved making it a companyposite trans-
action which was capable of bifurcation into a companytract for
sale of materials and a companytract for work and labour. what
was sold was something other than paper. it companyld number be
said that printed materials such as bills books vouchers
and the like were mere paper or products of paper. hence
the supply of bills books vouchers etc. was liable to be
taxed under the act as finished products. it was further
held that the question papers however were the subject-
matter of a companytract for work and labour and the charges
realised by the assessee for printing them were number liable
to tax. the high companyrt at page 176 of the report observed
only in respect of those goods to which title
has passed as a result of companytract can it be
said that the goods have been sold. where a
person buys a picasso or a ravi varma he
does number intend to buy or pay for the canvas
or the paint although canvas and paint are
involved in the production of
the painting and title to such materials is
transferred to him. but such transfer of title
to the materials is number pursuant to any agree-
ment for the sale of the materials as such. it
would never have been in his mind to pay
separately for the materials and for the
labour. what the buyer buys is a finished
product which is a work of art. on the other
hand when a person gets his manuscript print-
ed as an article or a book of verses the
printer does numbermore than a mechanical or
technical job. the printer does number create the
article or the poem but merely renders his
services to print which is in the nature of a
job-work. the manuscript as such is the result
of the skill industry and scholarship of the
author. in such a case there is numbersale of
the article or book by the printer number would
it be possible in such a case to spell out an
agreement for the sale of materials such as
paper or ink which may have been incidentally
used in the production of the printed work. while the painter sells a finished product
which is a work of art quite distinct and
different from the materials used in its pro-
duction the printer merely does a job-work
involving numbersale one is the work of an
artist who is endowed with the finer qualities
of imagination and taste and the other that of
an artisan who is trained as a mechanic or
technician- a printer of judgments for exam-
ple does number produce and sell them his work
is purely that of a technician. this companyrt has
therefore held that printing of judgments is
only a works companytract. the work of a printer
in certain cases may involve more than print-
ing he may be a producer of finished articles
such as bill books vouchers and the like. when such articles are printed and sold to the
customers what is sold is number paper or paper
products but printed materials which are
finished products. such companytracts cannumber be
considered as companytracts for the sale of paper
coupled with an agreement to render service. the sale of paper had never been the subject-
matter of the agreement between the parties. like in the case of painting which is a fin-
ished product being a work of art the bill
books and voucher are new products being
printed materials and the sale of such goods
does number involve a companyposite companytract which
can be bifurcated into an agreement for the
sale of goods-be they canvas and paint or
paper and ink--and an agreement for work. in our opinion the high companyrt tightly applied the test
in that case. further our attention was drawn by mr. mohan
to a decision of the madras high companyrt in a.s. hameed bha-
rath press v. state of tamil nadu 54 stc 379. there the
tribunal found that the companytracts between the assessee and
his customers were indivisible companytracts under which the
assessee undertook to deliver printed material in accordance
with the customers instructions and therefore companysidered
the receipts in the assessees business as representing
turnumberer in sales of goods taxable under the tamil nadu
general sales tax act 1959 and that the order form was a
make-believe and did number reflect the real nature of the
transactions between the assessee and his customers. it was
held that given the finding by the tribunal the printed
conditions in the order form were number to be accepted at face
value and that the transactions between the assessee and the
customers involved only the supply of printed material at a
price. the high companyrt held that the decision of the tribunal
that the entire receipts in the assessees business must be
held to be sales turnumberer liable to tax under the act must
be upheld. as mentioned hereinbefore the high companyrt was dealing
entirely with sample printed materials of order forms of
bill books. the allahabad high companyrt had to companysider this
question in companymissioner of sales tax v. uma art press 56
stc 300. the decision in that case rested on the facts of
that case and in the nature of the companytentions urged before
us in this case it would number be relevant to discuss the
said decision in greater details. in chandra bhan gosain v. the state of orissa ors. xiv stc 766 at 769 it was reiterated that in case of a
composite companytract how to determine whether there was sale
of goods or there was works to be done depended upon the
facts of each case and the intention of the parties what
was the essence of the companytract has to be found out. this
court had to companysider in c.s.t. gujarat v. m s. sabarmati
reti udyog sahakari mandali limited 38 stc 203 whether the
contract was a works companytract or companytract for sale. there
the assessee had entered into a companytract with the public
works department of the govt. of gujarat for the manufacture
and supply of kiln-burnt bricks to that department. the
contract was found to be in a tender for supply of materi-
als companytaining a memorandum of the companyditions. the nature
of the work was described as manufacturing and supplying
kiln-burnt bricks for companystruction. in the tender the
assessee stated the companydition and analysing the decision in
the light of chandra bhan gosains case this companyrt held
that the companytract was one for sale and number a works companytract. mr. mohan further drew our attention to the observations
of the english decision in marcel  furriers  limited v. tapper
1953 1 wlr 49. there the defendant on behalf of his
wife ordered from the plaintiffs a firm of furriers a
mutation mink companyt. the defendants wife selected skins of
the companyour she desired and specified the style of the companyt
she required directing that it should be made with the
skins running horizontally. her instructions were carried
out but the companyt was eventually rejected by her. the plain-
tiffs brought an action against the defendant claiming pound
950 for work done and materials supplied in the making of
the companyt. by his defence the defendant pleaded that the
contract was one for the sale of goods of the value of pound
10 or over and was unenforceable pursuant to section 4 of
the sale of goods act 1893 of england by reason of the fact
that there was numbernumbere or memorandum in writing of the
contract signed by the party to be charged or his agent. it
was held that although a high degree of skill and craftsman-
ship might be required in making of the companyt the companytract
was numbermore than one for the making of an article for the
special use of the customer by someone whose business it was
to make it. the nature of the transaction therefore was
that it was one for the making and supply of a particular
article at a price and number one for work and labour done and
materials supplied and there being numbermemorandum in writing
to satisfy the requirements of section 4 of the sale of
goods act 1893 the companytract was unenforceable. hence the
principle following from the decision is that the nature of
transaction has to be found out whether it is making and
supply of particular article or printing material. mr. ramchandran however submitted before us that in
view of the principles laid down by this companyrt in the state
of madras v. gannumber dunkerley company  madras  limited ix stc
353 and hindustan aeronautics limited v. state of karnataka 55
stc 314 the high companyrt was right. he submitted that the
contract in essence was for supply of question papers which
are number companymercial companymodities. the blank papers ceased to
be the property of the dealer the moment questions were
printed on these. these are the exclusive properties of the
university or other educational institutions and were to be
kept secret until the university chose to divulge these at
the time of the examinations. the dealer cannumber deal with
the printed question papers. upon printing he lost his
capacity to companytract ceased to be the sole owner and companyld
number sell to anybody he chose. he had to hand-over the entire
question papers to the university. it was a special kind of
job entrusted for companyfidence reposed and for the delicate
matter of the job to be performed. the work in companynection
therewith was predominantly
in the transaction. the material and the skill in doing so
both are incidental. in that view of the matter he submitted
that the high companyrt was right and indeed a companytract for
sale pre-supposes the capacity in the dealer to companytract
with regard to the finished item. for this reliance was
placed on the observations of this companyrt in the state of
madrass case  supra  and also on hindustan aeronautics
ltds case  supra  at pages 320 323 327. the thing pro-
duced must have individual existence as the sole property of
the party who produced it which can be passed on for a
price in order to be a sale. reliance was placed on the
observations in patnaik company v. the state of orissa xvi
stc 364 and t.v. sundram lyengar sons v. the state of
madras 35 stc 24 the test is whether work and labour are
bestowed on anything that can properly become the subject of
sale. the companyrt has to find out the primary object of the
transaction and intention of the parties. in this companynec-
tion it is necessary to rely on the observations of this
court in hindustan aeronautics limited case  supra  at pages
327333-334 of the report. the primary difference between a companytract for work or
service and a companytract for sale is that in the former there
is in the person performing or rendering service numberproperty
in the thing produced as a whole numberwithstanding that a
part or even the whole of the material used by him may have
been his property. where the finished product supplied to a
particular customer is number a companymercial companymodity in the
sense that it cannumber be sold in the market to any other
person the transaction is only a works companytract. see the
observation in the companyrt press job branch salem v. the
state of tamil nadu 54 stc 383 and companymissioner of sales
tax m.p. v. ratna fine arts printing press 56 stc 77.
in our opinion in each case the nature of the companytract
and the transaction must be found out. and this is possible
only when the intention of the parties is found out. the
fact that in the execution of a companytract for work some
materials are used and the property goods so used passes to
the other party the companytractor undertaking to do the work
will number necessarily be deemed on that account to sell the
materials. whether or number and which part of the job work
relates to that depends as mentioned hereinbefore on the
nature of the transaction. a companytract for work in the execu-
tion of which goods are used may take any one of the three
forms as mentioned by this companyrt in the government of andhra
pradesh v. guntur tobaccos  supra . in our opinion the companytract in this case is one having
regard to the nature of the job to be done and the companyfi-
dence reposed for work to be done for remuneration and
supply of paper was just incidental. hence the entire price
for the printed question papers would have been entitled to
be excluded from the taxable turnumberer but since in the
instant case the deemed numberes prepared by the assessee
showed the companyts of paper separately it appears that it has
treated the supply of paper separately. except the materials
supplied on the basis of such companytract the companytract will
continue to be a companytract for work and labour and numberliabil-
ity to sales-tax would arise in respect thereof. the high
court was therefore fight in the view it took in civil
appeals number.


civil appellate jurisdiction civil appeal number 1238 of 1966.
appeal by special leave from the judgment and order dated
january 15 1963 of the mysore high companyrt in writ petition
number 48 of 1962.

gopalakrishnan and s. p. nayar for the appellants. c. mazumdar m. m. kshatriya and g. s. chatterjee for
the respondent. the judgment of the companyrt was delivered by
ramaswami j.this appeal is brought by special leave from
the judgment of the mysore high companyrt dated january 15 1963
in writ petition number 48 of 1962 granting a writ -in the
nature of mandamus directing the appellants to accord to the
respondent that benefit of both the revised higher pay
scales for the matriculate tracers with effect from the
respective dates on which they came into force. the respondent narasing rao was employed as a tracer in the
engineering department in the ex-hyderabad state on the
scale of pay rs. 65-90.in the cadre of tracersof that
statethere were matriculates as well as number-
matriculates.but there was numberdistinction made in the scale
of pay for that reason and all the tracers were placed in
the -same scale. the respondent was a number-matriculate. there was re-organisation of states in 1956 and as a result
of the re-organisation a part of the area of hyderabad state
became part of the new mysore state. the respondent was
allotted to the new mysore state. after the transfer of the
respondent to the new state. the cadre of tracers into which
tracers from bombay state had also been absorbed was re-
organised into two grades one companysisting of matriculate
tracers whose scale of pay was fixed at rs. 50-120 and the
other of number-matriculates
at rs. 40-80 with effect from january 1 1957. it is
necessary to state that in the old mysore state even before
numberember 1 1956 there were two grades of tracers viz. number-s.s.l.c. tracers on the pay scale of rs. 30-50. and

s.l.c. tracers on the pay scale of rs. 40-60. as the
respondent was a number-matriculate he was given the option to
accept the new scale of pay i.e. rs. 40-80 or remain in the
old hyderabad scale of rs. 65-90. but the respondent
refused to exercise the option and claimed that the cadre of
tracers in the new mysore state should number have been divided
into two grades and that numberdistinction should have been
made between matriculates and number-matriculates. the respon-
dent insisted that his pay should be fixed in the grade rs. 50-120. the claim was rejected by the superintending
engineer on march 19 1958 and the respondent was told that
he companyld only be fixed in the new revised scale of rs. 40-80
as he had number passed the s.s.l.c. examination. meanwhile
by an order of the government dated february 27 1961 the
pay scales of the tracers in the new state of mysore were
further revised and the revised pay scales were directed to
come into force with effect from january 1 1961. under
this government order the tracers who had passed the

s.l.c. examination were entitled to opt in favour of the
pay scale rs. 80-150 and those who had number passed that
examination were entitled to get into pay scale of rs. 70-1

the respondent claimed that he was entitled to the pay
scale applicable to the tracers who had passed the s.s.l.c. examination viz. rs. 80150. the claim of the respondent
was rejected. thereafter the respondent filed a writ
petition in the mysore high companyrt praying that the order of
the superintending engineer dated march 19 1958 fixing his
pay in the scale of number-matriculate tracers and giving him
the option to retain his old scale may be quashed and for a
writ in the nature of mandamus to fix his pay in the scale
prescribed for matriculate tracers. the high companyrt allowed
the writ petition holding that there was a violation of the
guarantees given under arts. 14 and 16 of the companystitution
and granted the relief claimed by the respondent on the
ground that there was numbervalid reason for making a
distinction as both matriculate and number-matriculate tracers
were doing the same kind of work. the first question to be companysidered in this appeal is
whether the creation of two scales of tracers in the new
mysore state who were doing the same kind of work amounted
to a discrimination which violated the provisions of arts. 14 and 16 of the companystitution. the relevant law on the subject is well-settled. under art. 16 of the companystitution there shall be equality of
opportunity for all citizens in matters relating to
employment or appointment to any office under the state or
to promotion from one office to a higher office thereunder. article 16 of the companystitution is only an incident of the
application of the companycept of equality enshrined in
art. 14 thereof. it gives effect to -the doctrine of
equality in the matter of appointment and promotion. it
follows that there can be a reasonable classification of the
employees for the purpose of appointment or promotion. the
concept of equality in the matter of promotion can be
predicated only when the promotees are drawn from the same
source. this companyrt in dealing with the extent of
protection of art. 16 1  observed in general manager
southern rly. v. rangachari 1
thus companystrued it would be clear that matters
relating to employment cannumber be companyfined only
to the initial matters prior to the act of
employment. the narrow companystruction would
confine the application of art. 16 1  to the
initial employment and numberhing else but that
clearly is only one of the matters relating to
employment. the other matters relating to
employment would inevitably be the provision
as to the salary and periodical increments
therein terms as to leave as to gratuity as
to pension and as to the age of
superannuation. these are all matters
relating to employment and they are and must
be deemed to be included in the expression
matters relating to employment in art. 16 1  this equality of
opportunity need number be companyfused with absolute
equality as such. what is guaranteed
is the
equality of opportunity and numberhing more. article 16 1  or  2  does number prohibit the
prescription of reasonable rules for selection
to any employment or appointment to any
office. any provision as to the
qualifications for the employment or the
appointment to office reasonably fixed and
applicable to all citizens would certainly be
consistent with the doctrine of the equality
of opportunity but in regard to employment
like other terms and companyditions associated
with and incidental to it the promotion to a
selection post is also included in the matters
relating to employment and even in regard to
such a promotion to a selection post allthat
art. 16 1  guarantees is equality of
opportunity to all citizens who enter ser-
vice in this companynection it may
be relevant to remember that art. 16 1  and
 2  really give effect to the equality before
law guaranteed by art. 14 and to the
prohibition of discrimination guaranteed by
art. 15 1 . the three provisions form part of
the same companystitutional companye of guarantees and
supplement each other. if that be so there
would be numberdifficulty in holding that the
matters relating to employment must include
all matters in relation to employment both
prior and subsequent to the employment which
are incidental to the employment and form part
of terms and companyditions of such employment.  1  1962 2 s.c.r. 586 596.
the argument was stressed on behalf of the respondent that
success in the s.s.l.c. examination had numberrelevance to the
post of tracer and the tracers of the erstwhile state of
hyderabad who were allotted to the new state of mysore were
persons similarly situated and there was numberjustification
for making a discrimination against only some of them by
creating a higher pay scale for tracers who had passed the

s.l.c. examination. it was companytended for the respondent
that all the tracers who were allotted to the new state of
mysore were persons who were turning out the same kind -of
work and discharging the same kind of duty and there was no
rational basis for making two classes of tracers one company-
sisting of those who had passed the s.s.l.c. examination and
the other companysisting of those who had number. in our opinion
there is numberjustification for the argument put forward in
favour of the respondent. it is well-settled that though
art. 14 forbids class legislation it does number forbid
reasonable classification for the purposes of legislation. when any impugned rule or statutory provision is assailed on
the ground that it companytravenes art. 14 its validity can be
sustained if two tests are satisfied. the first test is
that the classification on which it is founded must be based
on an intelligible differentia which distinguishes persons
or things grouped together from others left out of the
group and the second test is that the differentia in
question must have a reasonable relation to the object
sought to be achieved by the rule or statutory provision in
question. in other words there must be some rational nexus
between the basis of classification and the object intended
to be achieved by the statute or the rule. as we have
already stated arts. 14 and 16 form part of the same company-
stitutional companye of guarantees and supplement each other. in other words art. 16 is only an instance of the
application of the general rule of equality laid down in
art. 14 and it should be companystrued as such. hence there is
numberdenial of equality of opportunity unless the person who
complains of discrimination is equally situated with the
person or persons who are alleged to have been favoured
article 1.6 1  does number bar a reasonable classification of
employees or reasonable tests for their selection. it is
true that the selective test adopted by the government for
making two different classes will be violative of arts. 14
and 16 if there is numberrelevant companynection between the test
prescribed and the interest of public service. in other
words there must be a reasonable relation of the prescribed
test to the suitability of the candidate for the post or for
employment to public service as such. the provisions of
art. 14 or art. 16 do number exclude the laying down of
selective tests number do they preclude the government from
laying down qualifications for the post in question. such
qualifications need number be only technical but they can also
be general qualifications relating to the suitability of the
candidate for public service as such. it is therefore number
right to say that in the appointment to the post of tracers
the government ought to
have taken into account only the technical proficiency of
the candidates in the particular craft. it is open to the
government to companysider also the general educational
attainments of the candidates and to give preference to
candidates who have a better educational qualification
besides technical proficiency of a tracer. the relevance of
general education even to technical branches of public
service was emphasised long ago by macaulay as follows
men who have been engaged up to one and two
and twenty in studies which have numberimmediate
connexion with the business of any profession
and the effect of which is merely to open to
invigorate and to enrich the mind will
generally be found in the business of every
profession superior to men who have at
eighteen or nineteen devoted themselves to
the special studies of their calling. indeed
early superiority in literature and science
generally indicates the existence of some
qualities which are securities against vice-
industry self-denial a taste for pleasures
number sensual a laudable desire of honumberrable
distinction a still more laudable desire to
obtain the approbation of friends and
relations. we therefore think that the
intellectual test about to be established will
be found in practice to be also the best moral
test can be devised.  hansard series 3 cxxviii 754 755
in our opinion therefore higher educational qualifications
such as success in the s.s.l.c. examination are relevant
considerations for fixing a higher pay scale for tracers who
have passed the s.s.l.c. examination and the classification
of two grades of tracers in the new mysore state one for
matriculate tracers with a higher pay scale and the other
for number-matriculate tracers with a lower pay scale is number
violative of arts. 14 or .16 of the companystitution. we proceed to companysider the next question raised on behalf of
the respondent viz. that the companydition of service of the
respondent has been adversely affected by the creation of
two new pay scales and that there was a violation of the
provisions of s. 115 of the states reorganisation act 1956
 act number 37 of 1956  which states

provisions relating to other services-

every person who immediately before the
appointed day is serving in companynection with
the affairs of the union under the
administrative companytrol of the lieutenant-
governumber or chief companymissioner in any of the
existing state of ajmer bhopal companyrg kutch
and vindhya pradesh or is serving in
connection with the affairs of any of the
existing states of mysore punjab patiala and
-east punjab states union and saurashtra
shall as from
that day be deemed to have been allotted to
serve in companynection with the affairs of the
successor state to that existing state. every person who immediately before the
appointed day is serving in companynection with
the affairs of an existing state part of whose
territories is transferred to anumberher state by
the provisions of part 11 shall as from that
day provisionally companytinue to serve in
connection with the affairs of the principal
successor state to that existing state unless
he is required by general or special order of
the central government to serve provisionally
in companynection with the affairs of any other
successor state. as soon as may be after the appointed day
the central government shall by general or
special order determine the successor state
to which every person referred to in
subsection  2  shall be finally allotted for
service and the date with effect from which
such allotment shall take effect or be deemed
to have taken effect. every person who is finally allotted under
the provisions of sub-section  3  to a
successor state shall if he is number already
serving therein be made available for serving
in that successor state from such date as may
be agreed upon between the governments
concerned and in default of such agre
ement as
may be determined by the central government. numberhing in this section shall be deemed to
affect after the appointed day the operation
of the provisions of chapter i 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
provided that the companyditions of service
applicable immediately before the appointed
day to the case of any person referred to in
sub-section  1  or sub-section  2  shall number
be varied to his disadvantage except with the
previous approval of the central government. it was stated that in the erstwhile hyderabad state the
respondent was kept in one grade along with matriculate
tracers and there has been a violation of the proviso to s.
115 7  of the states reorganisation act 1956 because in
the new mysore state the respondent has been made to work in
a separate grade of number-matriculate tracers. we do number
think there is any substance in this companytention. we do number
propose in this case to companysider what is the full scope
and meaning of the phrase companyditions of
sci-13
service occurring in the proviso to s. 115 of the states
reorganisation act. it is sufficient for us to say that in
the present cast there is numberviolation of the proviso and
the respondent is number right in companytending that his companydition
of service is adversely affected because he is made to work
in the grade of number-matriculate tracers in the new mysore
state. it was alleged by the respondent that according to
hyderabad rules 20 per cent of the vacancies of suboverseers
were to be from the grade of tracers and for those who were
number promoted there was anumberher grade of rs. 90-120 and if
the order of the superintending engineer dated march 19
1958 was to stand the respondents chance of promotion
would be affected. in their companynter-affidavit the
appellants have said that 10 percent of the tracers in the
new state of mysore are entitled to be promoted to the grade
of assistant draftsmen in the scale of rs. 110-220. the
basis of promotion to the higher grade was the inter-state
seniority list prepared under the provisions of the states
reorganisation act. it was stated that the seniority of the
respondent was number affected and he had number been deprived of
any accrued benefits. the basis of promotion to the higher
grades was selection based on merit-cum-seniority. in other
words both matriculate and number-matriculate tracers were
eligible for promotion on the basis of the inter-state
seniority list prepared for this department.