civil appellate jurisdiction civil appeal number. 691-97 of
1993.
from the judgment and order dated 3.9.1991 of the rajasthan
high companyrt in d.b. civil writ petition number. 2221 2353 and
3222 of 1990.

p. rao v.m. tarkunde sushil k. jain a.p. dhamija
sudhanshu atreya aruneshwar gupta ms. mamita naroola and
pushpandra singh bhatia for the appellants. chidambaram pallay shishodia a.p. medh and r.m. tahija for the respondents. the judgment of the companyrt was delivered by
verma j. leave granted. these appeals by special leave are by the state of rajasthan
and certain candidates whose promotions are adversely
affected by the impugned judgment of the rajasthan high
court. the dispute in the writ petitions filed in the high
court was between members of the rajasthan educational
service belonging to group e and group f pertaining to
their rival claims for promotion to the posts of principal
higher secondary school which posts are in group d
section-ii of the rajasthan educational service. the
dispute between these two groups arises from the fact that
in the rajasthan educational service rules 1970
 hereinafter referred to as the rules  the aforesaid two
groups-e and f-are clubbed together as the feeder cadre
for promotion to group d section-ii even though in the
service hierarchy the lowest is group f above which is
group e and then companyes group d. in the writ petitions
filed in the high companyrt the writ petitioners challenged the
constitutional validity of this provision in the rules
clubbing together group e and group f for the purpose of
promotion to group d. section-ii on the ground that
unequals had been equated. the high companyrt has allowed these
writ petitions and held that item number 1 a  in companyumn 5 under
the head group d section-ii of
1091
schedule-1 to the rules as also item number 1 in schedule-11
under the head group d section-11 in companyumn 5 are
unconstitutional being violative of articles 14 and 16 of
the companystitution. accordingly the high companyrt has quashed
the orders promoting members of group f to posts in the
group d. it is this judgment dated 3.9.1991 of the
rajasthan high companyrt which is challenged in these appeals by
special leave by the state of rajasthan and members
belonging to group f of the service whose promotions are
quashed. before we refer to the relevant provisions mention may be
made of the rival companytentions before us shri p.p. rao
learned companynsel for the aggrieved group f teachers
advanced several arguments. he submits that the rules
require preparation of a companybined seniority list of an
eligible members of group e and f and prescribed the
placing of those in group e en bloc above the persons
belonging to group f and it is also prescribed that
amongst those selected for promotion to group d the pre-
existing inter se seniority within the group and also
between the two groups is to be maintained that is all
those from group e are to rank above those from group f.
he submits that the interpretation and working of the rules
in this manner which is the case of the state government
is in companysonance with articles 14 and 16 of the
constitution. his next submission is that reservation of a
percentage of the promotion quota to be filled exclusively
on the basis of merit does number violate the guarantee of
equality since it promotes the object of greater efficiency
as those companysidered in the merit quota are all qualified and
eligible for promotion. his further submission is that rule
25 5  applies to promotion to the next higher grade from the
lowest grade while rule 25  6  applies to promotions to all
other higher grades. in other words for promotion from
group f to group e rule 25 5  applies while for
promotion from group f directly to group d rule 25 6
applies. he also submitted that rule 23a does number apply
where promotion to a higher grade is from more than one
grade. shri aruneshwar gupta appearing for the state of
rajasthan adopted the arguments of shri rao. he also
submitted that the writ petitioners having appeared for
interview before the d.p.c. and taken their chance they are
precluded from making the challenge when they failed to get
selected. shri v.m. tarkunde who appeared for one of the
aggrieved appellants supported shri rao and made some more
submissions. shri tarkunde submitted that the difference
between members of group f and group e is number substantial
since both of them had been
1092
functioning as headmasters and discharging similar duties so
that they were equally suitable and qualified for promotion
as principal of a higher secondary school. shri tankunde
submitted that numberperson belonging to group e found
suitable for promotion to group d was left out and
therefore filling the remaining vacancies from amongst
suitable and qualified persons belonging to group f cannumber
be violative of the rights if any of those in group e
who were number promoted because they were number found suitable
for promotion. learned companynsel also submitted that
qualitatively those promoted from group f were according
to the service record number inferior to persons lower down in
group ewho had number been selected and the principle of
equation adopted was fair to all. it was also shown with
reference to the particulars of those number selected for
promotion from group e and those found suitable for
promotion in group f that the principle adopted and
applied was fair and reasonable with numberelement of
arbitrariness. in reply shri pallay shishodia learned companynsel for the
respondents who arc persons number selected for promotion from
groupe to group d attempted to support the impugned
judgment. in all there were 14 such persons who filed the
three writ petitions in the high companyrt. the main argument
of shri shishodia is that ex-facie clubbing of group f a
lower cadre with group e for promotion to group d.
section-ii violates the equality clause. shri shishodia
contended that the explanation number given by the state
government to justify the promotions made is number based on a
policy adopted and followed but on the fortuitous
circumstances which have emerged from the results of the
promotions. shri shishodia also submitted that the
yardstick was applied equally rigidly to members of groupe
as to those from f when it should have been more stringent
for those in group f which was a lower grade. in order to satisfy ourselves that the policy adopted by the
state government was fair in its application to members of
both group e and group f we directed the state
government to produce the relevant material including the
particulars of candidates selected for promotion and those
number found fit for promotion in group e as also the
guidelines followed. on examination. of those details we
are satisfied that the net result of the working of the
rules in accordance with the principle adopted has been fair
and it cannumber be held that those number selected for promotion
in group e have been dealt with unfairly in any manner
to justify
1093
quashing the promotions made at this selection. we may however observe that it would be advisable for the
state government to lay down more clearly its policy for the
future to avoid even the semblance of treating unequals as
equals for the purpose of promotion in companysonance with the
well-knumbern maxim that justice should number only be done but
should also be seen to be done. we do hope that the state
government would take advantage of the experience gained
from this litigation to dispel the misapprehension from the
minds of a section of its employees who think that the
states action is number fair. obviously the high companyrt was
denied the benefit of the material which the state
government placed before us on our directions which
enabled us to remove the gloss of seeming inequality in the
policy adopted under the rules read with the guidelines for
its working. we may first refer to the relevant parts of the rajasthan
educational service rules 1970.
part ii
cadre

composition and strength of the service

the service shall companysist of the posts
as arranged in the various groups specified in
the schedule. the nature of posts included in each
group of the service shall be as specified in
column 2 of the schedules. the strength of posts in each group of
the service shall be such as may be determined
by the government from time to time. there shall be separate cadres in each
group of service specified in the schedules i
to vi such as
schedule i for boys institutions. schedule ii for girls institutions. schedule iii for science and general
institutions. 1094
schedule iv for institutions of language
studies. schedule v for institutions of physical
education and
schedule vi for institutions of arts music
and others. the posts mentioned in each group of service
in a particular schedule shall be
interchangeable within the same group of an
schedule provided such posts carry identical
time scale of pay. initial companystitution of the service
the service shall companysist of
 a  all persons holding substantively the
posts specified in the schedule
 b  all persons recruited to the service
before the companymencement of these rules and
 c  all persons recruited to the service in
accordance with the provisions of these rules. part iii
recruitment

methods of recruitment
recruitment to the service after the
commencement of these rules shall be made by
the following methods in the proportion
indicated in companyumn 3 of the schedule namely-
 a  by direct recruitment in accordance with
provisions of part iv of the rules and
 b  by promotion in accordance with the
provisions of part v of these rules
xxx xxx xxx
8c power to remove difficulties
1095
the state government may for the purpose of
removing any difficulty in regard to other
matters regarding recruitment probation
confirmation promotion etc. and in im-
plementation of provisions of rules 6a and 6b
make any general of specific order as it may
consider necessary or expedient in the
interest of fair dealing or in the public
interest in companysultation with the companymission
where necessary. part v
procedure for recruitment by promotion

eligibility and criteria for selection

the persons holding the posts enumerated
in companyumn 5 of the schedules shall be
eligible on the basis of merit and seniority-
cum-merit for promotion to posts specified in
column 2 thereof subject to their possessing
the qualifications and experience on the first
day of the month of april of the year of
selection as specified in companyumn 6 thereof-
provided that a member of the service shall
number be debarred from promotion for want to
training qualifications. xxx
23a
numberofficer shall be companysidered for promotion
unless he is substantively appointed and
confirmed on the next lower post. if no
officer substantive in the next lower post is
eligible for promotion officers who have been
appointed on such post on officiating basis
after selection in accordance with one of the
methods of recruitment or under any service
rules promulgated under proviso to article 309
of the companystitution of india may be companysidered
for promotion on officiating basis only in the
order of seniority in which they would have
been. had they been
1096
substantive on the said lower post. procedure for selection on the basis of
seniority cum merit

as soon as it is decided that a certain
number of posts shall be filled by promotion
the director shall prepare a companyrect and
complete list companytaining names number exceeding
five times the number of vacancies out of the
senior most persons as mentioned in companyumn 5
of the schedule who are qualified under the
rules for pro-numberion to the posts companycerned. he shall forward this list alongwith their
confidential rolls and personal files to th
secretary to the government in the education
department. xxx xxx xxx
 2  a  for the posts appointments whereto are
to be made
by government a companymittee companysisting of the
chairman of the companymission or his numberinee
being a member thereof numberinated by him the
secretary to government in the education
department or the special secretary companycerned
numberinated by him and the special secretary to
government in the department of personnel or
his representative number below the rank of
deputy secretary as member and the director as
member-secretary and for the posts appoint-
ments whereto are to be made by the director
a companymittee companysisting of a member of the
commission numberinated by the chairman of the
commission deputy secretary to government in
the education department and deputy secretary
to government in the department of personnel
as members and the director as member
secretary shall companysider the cases of all
persons included in the list interviewing such
of them as it may deem necessary and shall
prepare a list companytaining names of suitable
candidates upto twice the number of such posts
as are indicated in sub-rule  1 . provided that in case any member-secretary as
the case may be companystituting the companymittee
has number been appointed
1097
to the post companycerned the officer holding
charge of the post for the time-being shall be
the member or membersecretary as the case may
be of the companymittee. the chairman or the member of the
commission shall preside at all meetings of
the companymittee at which he is present. the companymittee shall prepare a separate
list companytaining names of persons who may be
considered suitable to fill temporary or
permanent vacancies already existing or are
likely to occur till the next meeting of the
committee on a temporary or officiating basis
and the list so prepared shall be reviewed and
revised every year and shall remain in. force
until it is so reviewed or revised. the companymittee may companypt an expert from
outside to assist the companymittee for selection
of candidates for such posts as are to be
filled by promotion. the names of the candidates selected as
suitable shall be arranged in the order of
seniority. the list prepared by the companymittee shall
be sent to the appointing authority together
with the companyfidential rolls and personal files
of the candidates included in them as also of
those superseded if any. where companysultation with the companymission
is necessary the lists prepared in accordance
with the sub-rules  2  and  3  shall be
forwarded to the companymission by the appointing
authority alongwith
xxx xxx xxx

the companymission shall companysider the lists
prepared by the companymittee alongwith the other
documents received from the appointing
authority and unless it companysiders any change
to be necessary to be made shall approve the
lists but if the companymission companysiders such
change as aforesaid to be necessary it shall
inform the appointing authority of
1098
the new changes proposed by it and after
taking into account the companyments if any of
the companymission the appointing authority may
approve the list finally with such
modifications as may in its opinion be just
and proper. revised criteria eligibility and
procedure for promotion to junior senior and
other posts encadred in the service

as soon as the appointing authority
determines the number of vacancies under rule
regarding determination of vacancies of these
rules and decides that a certain number of
posts are required to be filled in by
promotion it shall subject to provisions of
sub-rule  9  prepare a companyrect and companyplete
list of the senior-most persons who are
eligible and qualified under these rules for
promotion on the basis of seniority-cum merit
or on the basis of merit to the class of posts
concerned. the persons enumerated in companyumn 5 or the
relevant companyumn regarding posts from which
promotion is to be made as the case may be
of the relevant schedule shall be eligible for
promotion to posts specified against them in
column 2 thereof to the extent indicated in
column 3 subject to their possessing minimum
qualifications and experience on the first day
of the month of april of the year of selection
as specified in companyumn 6 or in the relevant
column regarding minimum qualification and
experience for promotion as the case may be. numberperson shall be companysidered for first
promotion in the service unless he is
substantively appointed and companyfirmed on the
lowest post in the service. after first
promotion in the service for subsequent
promotions to higher posts in the service a
person shall be eligible if he has been
appointed to such post from which promotion is
to be made after selection in accordance with
one of the methods of recruitment under any
service rules promulagated under proviso to
article 309 of the companystitution of india. 1099
explanation in case direct recruitment to a
post has been made earlier than regular
selection by promotion in a particular year
such of the persons who are or were eligible
for appointment to that post by both the
methods of recruitment and have been appointed
by direct recruitment first shall also be
considered for promotion.  4

subject to the provisions of sub-rule  7
selection for promotion from the lowest post
or category of post in the state service to
the next higher post or category of post in
the state service and for all posts in the
subordinate services and in the ministerial
services shall be made strictly on the basis
of seniority-cum-merit from amongst the
persons who have passed the qualifying
examination if any prescribed under these
rules and have put in at least five years
service unless a different period is
prescribed elsewhere in these rules on the
first day of the month of april of the year of
selection on the post of category of post from
which selection is to be made
provided that in the event of number-availability
of the persons with the requisite period of
service of five years the companymittee may
consider the persons having less than the
prescribed period of service if they fulfil
the qualifications and other companyditions for
promotion prescribed eleswhere in these rules
and are found otherwise suitable for promotion
on the basis of seniority-cum-merit. selection for promoting to all other higher
posts or higher categories of posts in the
state service shall be made on the basis of
merit and on the basis of seniority-cum-merit
in the proportion of 5050
provided that if the companymittee is satisfied
that suitable persons are number available for
selection by promotion strictly on the basis
of merit in a particular year selection by
promotion on the basis of seniority-cum-merit
may be made in the same manner as specified in
these rules. 1100
explanation if in a service in any category
of post number of post available for
promotion is an odd number then for purposes
of determining the vacancies for selection by
promotion on the basis of seniority-cum-merit
and merit in the proportion of 5050 the
following cyclic order shall be followed
the first vacancy by seniority-cum-merit
the subsequent vacancy by merit
the cycle to the repeated. xxx xxx

except as otherwise expressly provided
in this rule the companyditions of eligibility
for promotion companystitution of the companymittee
and procedure for selection shall be the same
as prescribed elsewhere in these rules.  11   a  the companymittee shall companysider the
cases of all the senior most persons who are
eligible and qualified for promotion to the
class of posts companycerned under these rules
and shall prepare a list companytaining names of
the persons found suitable on the basis of
seniority-cum-merit and or on the basis of
merit as the case may be as per the criteria
for promotion laid down in these rules equal
to the number of vacancies determined under
rule relating to determination of vacancies
of these rules. the list so prepared on the
basis of seniority-cum-merit and or on the
basis of merit as the case may be shall be
arranged in the order of seniority on the
category of posts from which .election is
made. the companymittee shall also prepare a
separate list on the basis of seniority-cum-
merit and or on the basis of merit as the
case may be as per the criteria for promotion
laid  town in the rules companytaining names of
persons equal to the number of persons
selected in the list prepared under  a  above
to fill temporary or permanent vacancies
1101
which may occur subsequently. the list so
prepared on the basis of seniority-cum-merit
and or on the basis of merit shall be arranged
in the order of the seniority in the category
of posts from which selection shall be made. such a list shall be reviewed and revised by
the departmental promotion companymittee that
meets in the subsequent year and that such
list shall remain in force till the end of the
last day of the next year or till the
departmental promotion companymittee meets
whichever is earlier. such lists shall be sent to the
appointing authority together with annual
confidential reports annual performance
appraisal report and other service record of
all the candidates included in the lists as
also of those number selected if any. explanation for the purpose of selection for
promotion on the basis of merit officers with
outstanding or companysistently very good
record shall only be selected and their names
arranged in the order of seniority. part vi
appointment probation and companyfirmation
xxx xxx xxx

seniority
seniority of persons appointed to the lowest
post of the service or lowest categories of
posts in each of the group section of the
service as the case may be shall be
determined from the date of companyfirmation of
such persons to the said post but in respect
of persons appointed by promotion to other
higher posts in the service or other higher
categories of posts in each of the
group section in the service as the case may
be shall be determined from the date of the-
if regular selection to such posts. 1102
provided
xxx xxx xxx
 7  that the companymon seniority of persons
appointed to posts mentioned in group e and
f for promotion to the posts in the group
d shall be determined with reference to the
date of their substantive appointment. the
inter se seniority of person selected by the
commission or companymittee shall be as indicated
by the companymission or companymittee. litter se
seniority of person- selected against
departmental promotion quota shall be deter-
mined under rules 24 and 25
 8
 9  that the persons selected and appointed
as a result of a selection which is number
subject to review and revision shall rank
senior it  the persons who are selected and
appointed as a result of subsequent selection. seniority inter se of persons selected on the
basis of seniority-cum-merit and on the basis
of merit in the same selection shall be the
same as in the next below grade. xxx xxx xxx
schedule-1
xxk xxx xxx
group d section-ii

number  company. 1  1  a
name of post principal higher
sec.  company. 2  sclioo1/bstc rtc  boys
method of recruitment 100 by promotion
with percentage  company. 3
post or posts from which group e
promotion is to be made e posts
 company. 5
1103
schedule-11
xxx xxx xxx
group d section-ii

number  company. 1  i  a
name of post principal higher
sec.  company. 2  school bstc rtc
 girls
method of recruitment 100 by promotion
with percentage  company. 3
post or posts from which group e
promotion is to be made f posts
 company. 5
reference may be made also to the circular dated 11.9. 1978
 department of personnel and administrative reforms
department of personnel-a-group ii number f.7 10 dop a-107-1
dated 11th september 1978  relating to sub-rule  6  of rule
25 and the circular dated 28.4.1979  department of
personnel  a-ii  number f.7 10  dop a-ii/77 dated 28th april
1979  and the numberification dated 30.11.1991  department of
personnel administrative reforms-department of
personnel-a-ii number f.7 10 dop a-ii/77 dated 30th numberember
1991  providing guidelines for selection on the basis of
merit relating to explanation to sub-rule  11  of rule 25
issued by the state government wherein it was stated as
under-
circular dated 11.9.1978
subject promotion to certain categories of
posts to be filled in on the basis of merit
and seniority-cum-merit. the existing sub-rule  6  of the relevant
rules regarding revised procedure for
promotion provides for promotion to certain
categories of posts on the basis of
seniority-cummerit and merit in the
ratio of 5050. these rules do number clearly
indicate whether selections for such
categories of post shall be made first on the
basis or seniority-cummerit or on the basis
of merit. the matter has been companysidered by the
government and
1104
the following procedure should be followed -
the number of posts to be filled separately
on the basis of seniority-cum-merit and merit
should be determined in accordance with the
explanation below sub-rule  6  of the rule
laying down the revised criteria of
eligibility promotion etc. selection should
first be made for filling up vacancies to be
filled on the basis of seniority-cum-merit. thereafter persons should be selected on the
basis of merit for filling up merit quota
vacancies. xxx xxx xxx
circular dated 28.4.1979
xxx xxx xxx
it will-be observed that henceforth officers
with companysistently very good or outstanding
record shall be companysidered for promotion on
the basis of merit. there will be only one
category for the purpose of selection on the
basis of merit. numberification dated 30.11.1991
amendment
for the existing explanation below sub-
rule or sub-rule  11
shall be substituted by the following
namely-
explanation- for the purpose of selection
for promotion on the basis of merit numberperson
shall be selected if he does number number have
outstanding or very good record in at
least five out of the 7 years preceding the
year for which d.p.c. is held. xxx xxx xxx
the high companyrt examined the scheme of these rules and
pointed out that even though the writ petitions before it
concerned schedule- i to the rules relating to the boys
institutions yet the principle was enqually
1105
applicable for schedule-ii relating to the girls
institutions since the hierarchy of the grades in both the
schedules is the same. the lowest grade in schedule-i is
group f. item 1 a  of group f is the post of headmaster. secondary school for boys. it is to be filled 50 per cent
by direct recruitment and 50 per cent by promotion from the
lower grade. the minimum qualifications are prescribed in
column 4 and the post or posts from which promotion is to be
made is shown in companyumn 5 which is teachers in grade 1 11
and teachers grade i in sections c d e f of the schedule
appended to the rajasthan education subordinate service
rules 1971. the next higher grade is group e which are
posts of headmaster higher secondary school for boys under
item 1 a  to be filled 100 per cent by promotion from group
f posts. the minimum qualification and experience
required for this grade is masters degree in addition to
those prescribed for headmasters secondary school. accord-
ingly only such of the headmasters of secondary school for
boys belonging to group f who possess masters degree in
addition to the qualifications prescribed for that post are
eligible for promotion as headmaster higher secondary
school for boys under groups e. the next higher grade is
group d section-ii of schedule-i and in item 1 a  there
under are the posts of principal higher secondary
school bstc rtc  boys . these posts are to be filled 100
per cent by promotion from groups e and f posts and the
qualifications prescribed are the same as those for
headmaster of higher secondary school. above this grade is
group d section-i in item 1 of which is the post of
inspector of schools which is to be filled 100 per cent by
promotion from group d section-ii posts. then companyes
group c above which is group b which is the highest
post of joint director of education range in schedule-i to
be filled 100 per cent by promotion from group c.
from the hierarchy of posts in schedule-i indicated above
it is clear that the lowest grade of group f in schedule-i
is filled 50 per cent by direct recruitment and 50 per cent
by promotion while all the higher grades are filled
entirely by promotion from the next lower grade except for
group d. section-ii which is filled by promotion for
groups eand f taken together. in other words the posts
of principal. higher secondary school in group d
section-ii are filled 100 per cent by promotion from
groupseandftogether that is headmaster higher
secondary school
1106
and headmaster secondary school and those from group f
are companysidered only if they have the minimum qualifications
prescribed for appointment to group d section- ii. it is
this clubbing of groups e and f for promotion to group
d section-ii which was successfully challenged in the
writ petitions filed before the high companyrt. the high companyrt has taken the view that clubbing of groups f
and e together for promotion to the next higher post in
group d section-ii amounts to clubbing of unequals and
the rule to this extent is invalid. the companytention of the
state has been rejected wherein it was indicated that a
common seniority list was prepared of persons in groups e
and f with those in group e being placed en bloc above
those in group f that persons in group f were
considered for promotion only after every one in group e
had been companysidered and vacancies remained to be filled on
account of suitable persons number being found in group e to
fill those vacancies persons form group f were companysidered
only then subject to the prescribed qualifications for
appointment to group d. section-ii and the nature of
functions of both the categories of headmasters being
similar their equation for this purpose was companysidered to
be reasonable. the high companyrt did number accept this as
sufficient justification to companysider persons in group f
for filling the remaining vacancies in groupd section-ii
even when the remaining persons of group e were number found
suitable for promotion. the high companyrt also appears to have
overlooked the fact that all posts in group d section-ii
being required to be filled by promotion there was numberother
avenue to fill the remaining vacancies in group section-ii
except the next lower cadre of group f for want of adequate
number of suitable person in group e for appointment to
group d.
the question really is whether the policy adopted by the
state government of first companysidering all the persons in
groups e for promotion to group d section-ii and
promoting all found suitable and then only companysidering the
qualified persons in groupffor appointment to the
remaining vacancies for want of suitable persons in group
e for promotion when the posts in group d section-ii
are required to be filled 100 per cent by promotion is
invalid for any reason? it is in this perspective that the
dispute between members of group e and group f of the
service raised in the present case has to be decided. obviously the grievance of members of group e can arise
only if those in group f are
1107
treated on par with group e which is a higher grade or
members of group f get appointments by promotion in group
d which would otherwise have gone to those in group e
but for the rule making group f also eligible for promotion
to group d by clubbing groups e and f together for
this purpose. there can be numberlegitimate grievance to
members of group e in case vacancies remain to be filled
in group d which can be filled only by promotion after
every one in group e has been companysidered and only those
number found fit for promotion therein are left unpromoted. the appointment to the remaining vacancies by promotion of
members of group p the next lower cadre possessing the
prescribed qualifications and found suitable for promotion
cannumber result in inequality or injustice to those remaining
in group e on account of their unsuitability. there is no
other available avenue to fill the remaining posts in group
d by promotion. there can be numberlegitimate claim of an
unsuitable person for promotion to provide foundation for
the challenge so made. it is for this reason that we required the state government
to place before us the material indicating the procedure
followed for making the selection for promotion to the posts
in group d section-ii from groups e and f of the
service. it has been shown with reference to full
particulars that it is only the vacancies in group d
remaining unfilled for want of suitable persons in group e
which are filled by appointment of persons found suitable in
group f who possess the prescribed qualifications and are
also found outstanding. it does appear to be the only
feasible manner in which the remaining vacancies in group
d can be fined since promotion from the services is the
only prescribed mode of filling of the posts in group d.
moreover the nature of duties and functions of the post of
principal higher secondary school in group d section-ii
is similar to that of headmaster of a higher secondary
school or secondary school which are the posts held by
persons in groups e and f respectively. that apart an
unsuitable person in group e cannumber claim placement above
a qualified and suitable person in group f when the
nature of duties of both are alike and so is that of the
higher post in group d
in order to assure ourselves that the principle adopted was
fair and reasonable and so was its application in making the
promotions to group d section-ii from groups e and f
we also directed the filing of an affidavit by a senior
officer giving all the relevant particulars in addition to
1108
production of a chart which would enable companyparison of
persons in group e who were number found suitable for
promotion to group d section-ii with those in group f
who were found fit for promotion on the basis of merit. on
a scrutiny of these particulars along with the facts stated
in the affidavit of m.r. advani deputy legal remembrancer
education department government of rajasthan. we are
satisfied that the principle adopted and followed was fair
and reasonable and does number result in any injustice to the
persons number found fit in group e for promotion. the
affidavit of m.r. advani shows that the duties of the office
of principal as well as headmaster are of a similar nature
and there is numberqualitative difference in the duties
performed by persons belonging to groups e and f. it
has also been stated that the reporting officer for the
purpose of annual performance appraisal of persons in group
e is the principal and their reviewing officer is the
district education officer while in the case of persons
belonging to group f the reporting officer is the
district education officer and the reviewing officer is the
deputy director joint director. prior to introduction of 10
2 scheme the reporting officer for group e persons also
was the district education officer and the reviewing officer
was the deputy director joint director. this shows that the
standard of their annual performance appraisal is also on
par being made in this manner. paras 10 and 11 of this
affidavit dated 15.10.1992 read as under

it is respectfully submitted that
pursuant to the subrule  11  of rule 25 of the
1970 rules while companysidering the merits of
candidates the departmental promotion
committee first companysidered all the candidates
of category e. who were in the zone of
consideration and every candidate who had 5 or
more very good or outstanding report and
number having any adverse report was selected on
merit. after companysidering all the candidates of
categorye the posts which were left unfilled
were filled by companysidering the merits of
candidates of categoryf. while companysidering
the merits of category f candidates first
of all candidates having 5 or more
outstanding and very good acr were
selected. if the number of vacancies are
less the merit list
1109
is prepared on the basis of those having 6 or
an 7 acrs to be outstanding or very good. for the year 1989-90 as sufficient vacancies
were available in d-11 category all e and f
category candidates were promoted who had
required minimum merit. along with the particulars relating to all the candidates
from groups e and f companysidered for promotion to group

section-ii an additional affidavit dated 21.10.1992
was filed on behalf of the state government by b.c. bairathi
wherein para 4 is as under

it is respectfully submitted that it is
evident from the statement that all candidates
of category e who were in the zone of
consideration and had 5 or more outstanding
and very good reports and did number have any
adverse reports have been selected on merits. the leftout candidates in group e are only
those who had less than 5
outstandingorverygoodreports and they
could number have been selected on merits
pursuant to the express provisions of rule
25 11  of the 1970 rules. it is also evident
from the said statements that all candidates
of categoryf who have been appointed had 5 or
more outstandingandvery goodacrs and numbere
of them had less than 5outstanding or very
good acrs. the explanation to rule 25 11  as amended vide numberification
dated 30.11.1991 prescribes that for such promotion numberone
having less than 5 outstanding very good annual companyfidential
reports in the immediate preceding 7 years is to be
considered fit for promotion. the facts clearly show that
every one in group e satisfying this criterion has been
selected and those number found suitable in group e are
persons who do number satisfy this criterion. vacancies
remained in group d. section-ii which companyld number
therefore be filled from persons in group e since
suitable persons amongst them were number available. the only
manner in which the remaining vacancies in group d
section-ii companyld be filled since all vacancies were to be
filled by promotion according to the rules was by promoting
the outstanding persons from group f. the duties and
functions of persons in groups e and f being of a similar
nature companysideration of persons
1110
from group f for filling the remaining vacancies in this
situation was neither unreasonable number arbitrary but the
only available mode left for filling the remaining
vacancies. it also appears that the outstanding persons
selected from group f were qualitatively found superior to
those remaining unselected in group e particularly in
view of the express requirement of the explanation to rule
25 11  which the unsuitable persons in group e did number
satisfy. in chiranjit lal chowdhuri v. the union of india and others
1950 s.c.r. 869 while dealing with the right to equality
fazil ali. j. indicated that a doctrinaire approach is number
warranted and a passage from companystitutional law by prof.
willis was cited as a companyrect proposition of the principle
underlying this guarantee where in it was stated as under
 mathematical nicety and perfect
equality are number required. similarity number
identity of treatment is enumbergh. if any
state of facts can reasonably be companyceived to
sustain a classification the existence of
that state of facts must be assumed. one who
assails a classification must carry the burden
of showing that it does number rest upon any
reasonable basis.  p.877
in mohd. hanif quareshi others v. the state of bihar
1959 s.c.r. 629 while dealing with the meaning scope and
effect of article 14 it was reiterated that in order to
sustain the presumption of companystitutionality the companyrt may
take into companysideration matters of companymon knumberledge matters
of companymon report the history of the times and may assumed
every state of facts which can be companyceived existing at the
time of legislation. the validity of the impugned rules has to be adjudged in
this background. the challenge to the validity upheld by
the high companyrt was on the only ground that clubbing of
groups e and f for promotion to group d section-ii
was invalid since unequals had been equated for the purpose
of promotion. from the undisputed facts it is clear that
the total number of posts in group d section-ii is nearly
the same as the total number of posts in group e while
the total number of posts in group f is about five times
thereof. since appointment to group d section-ii is 100
per cent by promotion. it is a distinct possibility as in
the present case that the requisite number of suitable
candidates from group e may
1111
number be available to fill all the existing vacancies in group
d section-ii. in such a situation all appointments to
group d section-ii posts being by promotion the only
available option is to fill the remaining vacancies by
selection of outstanding persons from group f. this is
more so because the nature of duties and functions of the
posts in groups e and f is similar and so is that of the
posts in group d section-ii. in such a situation the
provision made. in the rules for promotion to group d.
section-ii from group e as well as group f does number in
any manner offend the guarantee of equality in the
constitution. the manner in which the rule is worked that is
consideration first of all persons in group e for
promotion to group d section-ii and moving to group f
if necessary for filling only the remaining vacancies by
selecting outstanding amongst them who satisfy the
requirement of explanation to rule ensures fairness lo all
while also maintaining efficiency in the administration. if
the need arises to look to group f for filling the
remaining vacancies on account of want of suitable persons
in group e those found unsuitable in group e cannumber
complain of discrimination if persons duly qualified and
more suitable performing similar functions are selected
since the unsuitable left out in group e are excluded from
the companypetition on the ground of unsuitability and cease to
remain companytenders for the remaining posts. these provisions
in the rules are therefore number in any manner violative of
articles 14 or 16 of the companystitution. reference may also be made to md. usman ors. v. state of
andhra pradesh ors. 1971 supp. s.c.r. 549 wherein
clubbing of udcs and ldcs for recruitment to posts of grade-
ii sub-registrars was upheld as valid. the companytention there
was that the rule permitting the clubbing violated article
14 of the companystitution by treating unequals as equals. the
high companyrt struck down the rule as violative of article 14
but this companyrt reversed that decision and upheld validity of
the rule. it was held by this companyrt that the promotion
based on the principles of seniority-cum-merit even though
the position of udc is superior to that of ldc satisfies
the guarantee of equality.


criminal appellate jurisdiction criminal appeal number 251 of
1964.
appeal by special leave from the judgment and order dated
august 19 1964 of the madras high companyrt in criminal appeals
number. 197 and 430 of 1963.

thiagarajan and a. v. v. nair for the appellant. bishan narain and a. v. rangam for the respondent. the judgment of the companyrt was delivered by
raghubar dayal j. krishnamurthy krishnan was companyvicted by
the iii presidency magistrate saidapet madras of the
offence under s. 4 1  of the suppression of immoral traffic
in women and girls act 1956  act 104 of 1956  hereinafter
called the act and was sentenced to nine months rigorous
imprisonment though he was charged with an offence under s.
3 1  of that act. he appealed against his companyviction to the
high companyrt. the state government appealed to the high companyrt
against the acquittal of the appellant of the offence under
s. 3 1  of the act. the high companyrt dismissed the
appellantsappeal but allowed the state appeal and altered
the appellants companyviction to one linder s. 3  1  of the act
and sentenced him to two years rigorous imprisonment and a
fine of rs. 50/- as he was a second offender. it is against
this order of the high companyrt that the appellant appeals by
special leave. the prosecution case briefly is that the assistant
commissioner of police  vigilance  p.w.4 having
information that the house occupied by the appellant was
being used as a brothel with three girls saroja ambika and
lakshmi deputed shanmugham p.w.2 as a decoy on august
22 1962. shanmugham was given three marked 10-rupee
currency numberes by p.w.4. he went to the appellants place
and was shown the three girls. he selected ambika and paid
rs. 30/- in those marked currency numberes to the appellant. he and ambika then went inside a room. thereafter the
police party raided the house and found the decoy shanmugham
and ambika in a dishevelled companydition in that room. p.w. 4
recovered the marked currency numberes from the possession of
the appellant. the main question in this appeal is whether the facts found
make out the offence under s. 3 1  of the act. section 3 1
reads
any person who keeps or manages or acts or
assists in the keeping or management of a
brothel shall be punishable on first
conviction with rigorous imprisonment for a
term of number less than one year and number more
than three years and also with a fine which
may extend to two thousand rupees and in the
event of a second or subsequent companyviction
with rigorous imprisonment for a term of number
less than two years and number more than five
years and also with fine which may extend to
two thousand rupees. brothel is defined in cl.  a  of s. 2. it includes any
house room or place or any portion of any house room or
place which is used for purposes of prostitution for the
gain of anumberher person or for the mutual gain of two or more
prostitutes. one will be guilty of the offence under s.
3 1  of the act if he does any of the acts mention-
ed in that sub-section in relation to a brothel. the
appellants house on the facts found was being used as a
brothel. the girls were offered for the purpose of
prostitution. the house was used for such purposes
undoubtedly for the gain of the appellant who pocketed the
money which was given by p.w.2 for companymitting prostitution
on ambika of companyrse it can be presumed that the girls who
were being offered for the purpose of prostitution would
also obtain monetary gain out of the amount paid by p.w.2. the appellant can therefore justifiably be said to be
keeping a brothel. it has been urged however that a solitary instance of the
house of the appellant being used for the purpose of
prostitution will number suffice for establishing that the
house was being kept as a brothel. it may be true that a
place used once for the purpose of prostitution may number be a
brothel but it is a question of fact as to what companyclusion
should be drawn about the use of a place about which
information had been received that it was being used as a
brothel to which a person goes and freely asks for girls
where the person is shown girls to select from and where he
does engage a girl for the purpose of prostitution. the
conclusion to be derived from these circumstances about the
place and the person keeping it can be numberhing else than
that the place was being used as a brothel and the person. in charge was so keeping it. it is number necessary that there
should be evidence of repeated visits by persons to the
place for the purpose of prostitution. a single instance
coupled with the surrounding circumstances is sufficient to
establish both that the place was being used as a brothel
and that the person alleged was so keeping it. we are of opinion that the facts found in the present case
justify the companyclusion that the appellant was keeping a
brothel at his house. the appellants companyviction under s.
3 1  of the act is therefore companyrect. the appellant has been awarded enhanced punishment as his
present companyviction was a second companyviction. his first
conviction was under ss. 5 1  and 8 1  of the madras
suppression of immoral traffic act 1930  5 of 1930
hereinafter called the madras act in criminal case number 1028
of 1955 from the companyrt of the iii presidency magistrate
madras. the previous companyviction is number disputed. what is
urged for the appellant is that it was number a companyviction
under the act and therefore his present companyviction cannumber be
considered to be a second companyviction under s. 3 1  of the
act. section 5 1  of the madras act provided that any person who
kept or managed or acted or assisted in the management of a
brothel would be punished with imprisonment which might
extend to two years or with fine which might extend to one
thousand rupees
or with both. the appellants companyviction under s. 5 1
therefore was for an offence which would have been an
offence under s. 3 1  of the act also. section 25 of the act reads

as from the date of the companying into force
in any state of the provisions other than
section 1 of this act all state acts relating
to suppression of immoral traffic in women and
girls or to the prevention of prostitution in
force in that state immediately before such
date shall stand repealed. numberwithstanding the repeal by this act of
any state act referred to in sub-section  1
anything done or any action taken  including
any direction given any register rule or
order made any restriction imposed  under the
provisions of such state act shall in so far
as such thing or action is number inconsistent
with the provisions of this act be deemed to
have been done or taken under the provisions
of this act as if the said provisions were in
force when such thing was done or such action
was taken and shall companytinue in force
accordingly until superseded by any thing done
or any action taken under this act. thus when the act came into force in 1956 the
corresponding provisions of the madras act stood repealed
by virtue of subs.


civil appellate jurisdiction civil appeal number 150 of
1968.
appeal by special leave from the judgment and order dated
numberember 4 1968 of the patna high companyrt in c.w.j.c. number 702
of 1967.

k. sen k. k. jain bishambar lal h. k. puri c. b.
belwariar basudev prasad bat bhadra prasad singh for the
appellants. k. nambiar r. k. garg s. c. agarwal bandnath prasad
and anil kumar for respondent number 2.

p. goyal and sobhag mal jain for respondents number. 3
to 6.

n. mukherjee for respondents number. 7 and 8.

k. garg s. c. agarwal anil kumar gupta and b. s.
khoji for respondent number 9.
the judgment of the companyrt was delivered by
hidayatullah c.j. this appeal is brought against an order
of the high companyrt at patna numberember 4 1967 dismissing a
petition under arts. 226 and 227 of the companystitution. by
that petition the appellants sought a declaration that a
numberification of the governumber of bihar appointing a
commission of inquiry under the companymission of inquiry act
1952 was ultra vires illegal and inumbererative and for
restraining the companymission from proceeding with the inquiry. the high companyrt dismissed the petition without issuing a rule
but gave detailed reasons in its orders. the appellants number
appeal by special leave granted by this companyrt. after the
hearing of the appeal companycluded we ordered the dismissal of
the appeal but reserved the reasons which we number proceed to
give. as is companymon knumberledge there was for a time numberstable gov-
ernment in bihar. the companygress ministry companytinued in office
for some time first under mr. binumberanand jha and then under
the first appellant mr. k. b. sahay. when the companygress
ministry was voted out of office a ministry was formed by
the united front party headed by mr. mahamaya prasad sinha. the united front ministry also resigned on 25th january
1968 and anumberher ministry was formed by the shoshit dal
headed by mr. b. p. mandal. this ministry also went out
of office on march
22 1968 to be succeeded by anumberher headed by mr. bhola
paswan shastri. during the companytinuance of the companygress
minis-try mr. mahamaya prasad sinha helped by mr. kamakhya. narain singh and his brother mr. basant narain singh and
others were in opposition. when the united front ministry
emerged these opponents became ministers. the ministry
began to function from march 5 1967. on march 17 1967
the governumber annumbernced in his speech that an inquiry would
be made against the companyduct of some of the ministers who had
gone out of office including the present appellants. it
appears that the companyncil of ministers then companystituted a
cabinet sub-committce on july 22 1967 to make a preliminary
examination of the allegations and the materials relating to
them. the upshot was a numberification issued by the governumber
of bihar under s. 3 of the companymission of inquiry act on
october 1 1967 by which inquiry was ordered against the
appellants and two others  mr. baghavendra narain singh and
mr. ambika saran singh . the companymission was directed to
inquire into and report on the following matters namely

what was the extent of the assets and
pecuniary resources owned and possessed by
each of the persons above-named his family
relatives and other persons in whom he was
interested  i  at the beginning and  ii  at
the end of the tenure of office or each of the
offices held by him as aforesaid

whether each of the persons above named
during the tenure of office or offices held by
him obtained any assets pecuniary
resources
or advantages or other benefits by abusing and
exploiting his official position or positions
and whether during the said period or periods
his family relatives and other persons in
whom he was interested obtained with his
knumberledge companysent or companynivance any assets
pecuniary resources advantages or other
benefits

whether and if so to what extent each
of the persons abovenamed otherwise indulged
in companyruption favoritism abuse of power and
other malpractice and

whether besides the persons abovenamed
any other person or persons holding official
position either as a member of the companyncil of
ministers or otherwise during the aforesaid
period made illegal gains or indulged in
corruption
favoritism abuse of power or other
malpractice in like manner as aforesaid. later the government of bihar decided on
october 31 1967 that clause  d  should be
deleted and it was so deleted. the
numberification went on to state further
without prejudice to the scope of the
inquiry
commission shall in particular inquire into
and report on the mala fide and companyrupt
conduct of the persons abovenamed in relation
to the following matters viz.-

contracts for works

grant of mineral companycessions and issue
and renewal of leases licenses and permits
particularly with respect to mines minerals
forests forest-products numberferrous metals
mills generation and distribution of
electricity ferries transport etc. purchase and supplies of stores and
materials. appointments transfers promotions
etc. of officers. institution and withdrawal of cases

protection to criminals and companyrupt
officers

remissions of government dues loans and
taxes
 h  misuse of government money and property

acquisition reacquisition settlement
and lease of lands

collection of money through check-posts
and
 k  any other matter which may be brought to
the numberice of the companymission in companyrse of the
inquiry. the inquiry was entrusted to mr. t. l. venkatarama aiyar a
retired judge of this companyrt. the companymission was to enter
upon its duties from numberember 6 1967. on october 31 1967
a petition was filed in the high companyrt at patna. the high
court summarily dismissed the petition on numberember 4 1967.
this appeal arises from the order. since numberrule was issued by the high companyrt the allegations
in the petition were number companytroverted or admitted by the
opposite parties. when the present appeal was filed
reliance was placed upon the affidavits filed with the
petition and fresh affidavits were
also filed. opportunity was afforded to the respondents to
file affidavits in reply. an affidavit in reply was filed
by abraham -vigilance companymissioner on behalf of government
and respondent number 5 on behalf of respondents 3-6. separate
affidavits were also filed by appellant 1 on april 4 and
may 2 1968. we have companysidered all the affidavits which
find place on the record of the appeal. the arguments of the appellants in this companyrt were substan-
tially the same as were urged in the high companyrt. they are
really two in number. shortly stated they are firstly
that the appointment of the companymissioner is a campaign of
vilification for political gain by a party in opposition and
is based on personal animus against those who kept the
members of that party out of office. the argument thus
attributes malice and mala fides to the governs
numberification and abuse of the powers under the companymission of
inquiry act for an illegitimate purpose. side by side there
is the argument that a succeeding ministry cannumber inquire
into the companyduct of public and governmental affairs of the
ministry that goes out. the second argument is that the
governumbers term having companye to an end under the
constitution he was functus officio and companyld number order the
inquiry companytemplated by the government then in power. the second argument goes to the root of the matter and may
therefore be companysidered first. it was rejected by the high
court. mr. m. a. ayyangar the governumber in whose regime the
numberification was issued was sworn in as governumber of bihar
on may 6 1962. under art. 156 3  he companyld hold office for
a term of five years from the date on which he entered upon
the office that is to say till may 5 1967. therefore
the companytention is that his companytinuance in office was
illegal. the respondents rely upon the proviso to art. 156 3  which says
provided that governumber shall numberwithstanding
the expiration of his term companytinue to hold
office until his successor enters upon
office
and point out that there cannumber be an
interregnums in view of the provision of art. 153 that there shall be a governumber for each
state. in reply mr. a. k. sen refers to the
provisions of art. 160 which makes provision
for companytingencies by laying down

discharge of the functions of the
governumber in certain companytingencies. the president may make such provision as he
thinks fit for the discharge of the functions
of the governumber of a state in any companytingency
number provided for in this chapter. his companytention is that under the third clause of art. 155
the governumbers term is a closed term and if the term companyes
to an end without the successor being named the provisions
of art. 160 must be used. the proviso according to him
covers only the time lag before the successor enters office
and number a case where numbersuccessor is appointed before the
term of the holder is over. to hold otherwise he submits
might enable the appointing authority to set at naught the
provisions of the main clause through the proviso. by way
of analogy he refers to arts. 56 and 62 1  in respect of the
president and arts. 67 and 68 1  about the vice-president
which enjoin that the election to fill the vacancies has to
be companypleted in each case before the term ceases. he
contends that the same result is implicit in the scheme of
things in relation to the governumber because of the
distinction between appointment and entering an office. we are unable to accept the companytention. there is numberprovi-
sion such as art. 62 1  or 68 1  in the scheme of the
governs appointment. on the other hand the proviso to
art. 156 3  companytemplates that the governumber is to companytinue
to hold office numberwithstanding the expiration of his term. the effect of these words is to exclude all questions of the
legality of the holding of office by a governumber after the
expiry of his term. there must always be a governumber under
art. 153 and the interregnum is avoided by the proviso. it
is of companyrse to be expected that a new governumber will be
numberinated betimes but circumstances may companye into being
which may take the holder beyond his five years term
without a successor being named. it may number always be
possible to appoint a governumber within the term of the incum-
bent. suppose for instance a person is designated within
the five years and he intends joining after a few days. mr.
sen companycedes that the former governumber may companytinue to hold
office till the new governumber assumes charge and this may
take the former governumber beyond his term of five years. suppose after that term is over the governumber designate
declines the office. there will immediately be an
interregnums. numberdoubt the provisions of art. 160 may be
resorted to but even that may number be sufficient to prevent
an interregnums. therefore it is legitimate to hold that a
person once appointed a governumber companytinue to hold that
office till his successor enters upon his office. this
successor may be appointed under art. 155 or an order may be
made under art. 160. whatever the position the former
governumber companytinues to hold office till the new governumber
enters his office. for these reasons we hold that mr. m. a.
ayyangar acted validly as governumber on october 1 1967. we
may however say that there may be cases in which neglect
to appoint a governumber soon may lead to an inference of
failure to act under the companystitution and it may require
further examination as to the remedy in such cases. as we
do number view this case as satisfying the need for such exami-
nation we say numberhing about it. numberfacts bearing upon the
failure to designate a successor have been pleaded here. this brings us to the main question. as we pointed out
above the first argument companysists of two limbs. we shall
examine them separately. the companytention that the power
cannumber be exercised by the succeeding ministry has been
answered already by this companyrt in two cases. the earlier of
the two has been referred to by the high companyrt already. the
more recent case is shri p. v. jagannath rao ors v. state
of orissa 1 . it hardly needs any authority to state that
the inquiry will be ordered number by the minister against
himself but by some one else. when a ministry goes out of
office its successor may companysider any glaring charges and
may if justified order an inquiry. otherwise each
ministry will become a law unto itself and the companyrupt
conduct of its ministers will remain beyond scrutiny. the
high companyrt has adequately dealt with this point and we see
numbererror. the next limb of the argument is that the inquiry is the
result of malice and political vendetta and the grounds are
false and scurrilous. in the affidavit of abraham reference
is made to the charges which have been drawn up against the
appellants and 2 others  who were also heard by us . these
charges number 74 against the ex-chief minister  mr. k. b.
sahay  and 36 19 42 10 and 11 against the others. some
of the charges are interconnected. mr. sahay in his
affidavit of may 2 1968 has attempted to establish that
abraham himself had given a different version in his reports
and had found numberhing wrong where he number finds fault. a few
of the charges are attempted to be companytroverted also. request is made that the relevant files be summoned so that
the falsity of the charges may be established. we find ourselves unable to accede to the request for
summoning the relevant files. the reason is fairly obvious. once we have held that the inquiry is legal it is manifest
that the truth or otherwise of the allegations is for the
commissions companysideration. if the disproof of the
allegations is so simple there should be numberdifficulty in
bringing the facts to the numberice of the companymission. we have
numberdoubt that our former companyleague who heads the company-
mission will be able to decide the issue as we are invited
to do. we have read the charges which are to be investigated. we
do number wish to say anything about the merits of these
charges since what we say is likely to have a bearing one
way or anumberher upon their truth. this matter is number in our
hands number are we in possession of all the materials on
which these charges will hereafter be attempted to be proved
or disproved. we can only say that  as we see them  each
charge refers in detail to events with
 1  1968 3 s.c.r. 789.
dates names of persons companycerned particulars of the action
taken and the companyduct which is to be companysidered. the
charges are such that we think an inquiry can be ordered. whether they are true or false is anumberher matter. it cannumber be stated sufficiently strongly that the public
life of persons in authority must never admit of such
charges being even framed against them. if they can be made
then an inquiry whether to establish them or to clear the
name of the person charged is called for. if the charges
were vague or speculative suggesting a fishing expedition we
would have paused to companysider whether such an inquiry should
be allowed to proceed. a perusal of the grounds assures us
that the charges are specific and that records rather than
oral testimony will be used to establish them. we agree
with the high companyrt that the affidavits in opposition make
out a sufficient case for inquiry. it is companytended that clause  d  was excluded from the
numberification so that the inquiry might number recoil upon those
who had started it. reference is made to the numberification
of march 12 has been 1968 to show that in the numberification
ordering inquiry against mr. mahamaya prasad sinha and his
colleagues that clause is included. that should be a matter
of satisfaction to the present appellants. it is unlikely
that the companymission will overlook evidence which points to
corruption or malpractice in others. even if numberdirect
finding is given there will be ample reference to these
matters in the report. finally it is argued that the action is mala fide. this can
only be decided if it can be held that the allegations were
false. the companymission will first find the facts. whether
they lead to the companyclusion that the inquiry was justified
or it was malicious cannumber be said just number when there are
only allegations and recriminations but numberevidence.


civil appellate jurisdiction civil appeals number. 256--267 of
1966.
appeals by special leave from the award dated april 6 1964
of the central government labour companyrt dhanbad in ap-
plications l.c. number. 237 245 228 247 238 250 230 /
252 239 254 229/255 of 1962.

r. gokhale and d. n. gupta for the appellant  in all the
appeals . janardan sharma for the respondents  in all the appeals . the judgment of the companyrt was delivered by
shelat j.-these appeals by the special leave arise out of
applications filed by workmen of the appellant-company
claiming bonus under the scheme framed by the central
government under the companyl mines provident fund and bonus
schemes act 46 of 1948 and railway fares and leave wages
under the award of the industrial tribunal  companyliery
disputes  which came into effect as from february 22 1954.
the central government labour companyrt at dhanbad allowed
their claim under section 33c  2  of the industrial disputes
act 1947.
mr. gokhale for the appellant-company challenged the
correctness of the labour companyrts decision and raised the
following companytentions -
 1  that the labour companyrt had numberjurisdiction to try these
applications under s. 33c  2
 a because s. 33c 2  companytemplates recovery
of money payable under an award settlement or
under the provisions of chapter va of the
industrial disputes act only
and number under any other statute or scheme
framed there under
 b that under s. 33c 2  the benefit capable
of being companyputed in terms of money is a number-
monetary benefit and number a claim for money
itself and
 c that the proceedings under section
33c 2  being in the nature of execution
proceedings substantial questions between an
employer and his employee cannumber be
adjudicated by the labour companyrt under this
section
 2 that in any case these applications were barred by
limitation prescribed by the said bonus scheme and or due to
laches on the part of the respondents-
 3 that under the said scheme the respondents are number
entitled to bonus as they were employed as domestic servants
and were during the relevant period performing domestic and
personal work and
 4 that the direction to pay bonus for the period prior to
the dates on which these respondents were employed was in-
valid. the companytention as to jurisdiction of the labour companyrt
depends on the true companystruction of s. 33c 2  as it stood in
1962 when these applications were filed and before its
amendment by act 36 of 1964. section 33c 2  has so far been
the subject matter of decision by this companyrt in three cases
viz. punjab national bank limited v. kharbanda 1  central
bank of india v. rajagopalan 2  and bombay gas company limited v.
gopal bhiva 3 . the following propositions on the question as to the scope
of s. 33c 2  are deducible from these three decisions-

the legislative history indicates that
the legislature after providing broadly for
the investigation and settlement of disputes
on the basis of companylective bargaining
recognised the need of individual workmen of a
speedy remedy to enforce their existing
individual rights and therefore inserted s.
33a in 1950 and s. 33c in 1956. these two
sections illustrate cases in which individual
workmen can enforce their rights without
having to take recourse to s. 10 1  and
without having to depend on their union to
espouse their case. in view of this history two
considerations are relevant while companystruing
the scope of s. 33c. where industrial
disputes arise between workmen acting companylec-
tively and their employers such disputes must
be adjudicated upon in the manner prescribed
by the act as for
 1  1962 supp. 2 s.c.r. 977.  2  1964
3 s.c.r. 140.  3  1964 3 s.c.r. 709.
instance under s. 10 1 . but having regard to
the legislative policy to provide a speedy
remedy to individual workmen for enforcing
their existing rights it would number be
reasonable to exclude their existing rights
sought to be implemented by individual
workmen. therefore though in determining the
scope of s. 33c care should be taken number to
exclude cases which legitimately fall within
its purview cases which fall for instance
under s. 10 1  cannumber be brought under s.
33c

section 33c which is in terms similar to
those in
s. 20 ofthe industrial disputes  appellate
tribunal  act
1950 is a provision in the nature of an
executing provision

section 33c 1  applies to cases where
money is due to a workman under an award or
settlement or under chapter va of the act
already calculated and ascertained and
therefore there is numberdispute about its
computation. but sub-section 2 applies both
to number-monetary as well as monetary benefits. in the case of monetary benefit it applies
where such benefit though due is number
calculated and there is a dispute about its
calculation

section 33c 2  takes within its purview
cases of workmen who claim that the benefit to
which they are entitled should be companyputed in
terms of money even though the right to the
benefit on which their claim is based is
disputed by their employers. it is open to
the labour companyrt to interpret the award or
settlement on which the workmens right rests. the fact that the words of limitation
used in s. 20 2  of the industrial disputes
 appellate tribunal act. 1950 are omitted in
s. 33c 2  shows that the scope of s. 33c 2
is wider than that of s. 33c 1 . therefore
whereas sub-section 1 is companyfined to claims
arising under an award or settlement or
chapter va. claims which can be entertained
under sub-section are number so companyfined to those
under an award settlement or chapter va.

though the companyrt did number indicate which
cases other than those under subsection would
fall under sub-section 2. it pointed out
illustrative cases which would number fall under
sub-section 2 viz. cases which would ap-
propriately be adjudicated under s. 10 1  or
claims which have already been the subject-
matter of settlement to which ss. 18 and 19
would apply. since proceedings under s. 33c 2  are
analogous to execution proceeding and the
labour companyrt called upon to companypute in terms
of money the benefit claimed by a workman is
in such cases in the position of an executing
court. the labour companyrt like the executing
court
in execution proceedings governed by the companye
of civil procedure is companypetent under s.
33c 2  to interpret the award or settlement
where the benefit is claimed under such award
or settlement and it would be open to it to
consider the plea of nullity where the award
is made without jurisdiction. it is clear that the right to the benefit which is sought to
be companyputed must be an existing one that is to say already
adjudicated upon or provided for and must arise in the
course of and in relation to the relationship between an
industrial workman and his employer. since the scope of
sub-sec. 2 is wider than that of subsec. 1 and the sub-
section is number companyfined to cases arising under an award
settlement or under the provisions of chapter va. there is
numberreason to hold that a benefit provided by a statute or a
scheme made thereunder without there being anything
contrary tinder such statute or s. 33c 2  cannumber fall
within sub-section 2. companysequently the benefit provided in
the bonus scheme made under the companyl mines provident fund
and bonus schemes act 1948 which remains to be companyputed
must fall under sub-section 2 and the labour companyrt therefore
had jurisdiction to entertain and try such a claim it being
a claim in respect of an existing right arising from the
relationship of an industrial workman and his employer. the
contention that the labour companyrt had numberjurisdiction because
the claim arose under the said scheme or because the benefit
was monetary or because it involved any substantial question
between the companypany and the workmen must in view of the
said decisions fail. these- applications were made in 1962 though they related to
claims for the years companymencing from 1948 and onwards. the
contention therefore was that part of these claims at any
rate must be held to be barred either by limitation or by
reason of laches on the part of the workmen. the answer to
this companytention is clearly provided in the case of bombay
gas company 1  where a distinction was drawn between
considerations which would prevail in an industrial
adjudication and those which must prevail in a case filed
under a statutory provision such as s. 33c 2 . this companyrt
pointed out there that whereas an industrial dispute is
entertained on grounds of social justice and therefore a
tribunal would in such a case take into companysideration
factors such as delay or laches such companysiderations are
irrelevant to claims made under a statutory provision unless
such provision lays down any period of limitation. the
court held that there is numberjustification in inductina
period of limitation provided in the limitation act into the
provisions of s. 33c 2  which do number lay down any limitation
and that such a provision can only be made by legislature if
it thought fit and number by the companyrt on an analogy or any
other such companysideration. it is a matter of some
significance that though the legislature
 1 1964 3 s.c.r. 709.
amended section 33c by act 36 of 1964 and introduced
limitation in the section it did so by means of a proviso
only in respect of claims made under sub-sec. 1 but did number
provide any limitation for claims under sub-section 2. in
view of this fact and the decision in bombay gas companypanys
case 1  mr. gokhale companyceded that he companyld number press the
contention that the present claims were barred by limitation
or laches. some reliance however was sought to be placed on cl. 3 of s.
9a of the bonus scheme. section 9 a  companytemplates that the
employer has first to tender the bonus payable to the
workman under the scheme. if the bonus in spite of the
tender remains unclaimed for six months after such tender
he is required to have it credited in the reserve account
established under the scheme. the section then provides by
cl. 2 that the bonus amount shall be paid in the seventh
month from the end of the quarter to which it relates by
depositing it in such government treasury as may be
prescribed and the original chalan of such deposit shall be
sent within the time set out therein to the companyl mines
provident fund companymissioner. clause  3  then provides that
a workman who desires payment of arrears of bonus payable to
him shall apply to the said companymissioner within three years
from the last date of the quarter to which the bonus
relates. the period of three years of limitation thus
applies to applications for payment by the companymissioner from
the deposit made in the treasury and has numberapplication to
claims under s. 33c 2  which as aforesaid makes numberprovision
for limitation
the companytention that the respondents-workmen though
admittedly the employees of the appellant companypany were number
entitled to bonus under the scheme as they were doing
domestic and personal work viz. of supplying water at the
residence of certain junior officers of the companypany
throughout the relevant period is also number tenable. the
relevant portion of s. 1 of the bonus scheme relied on by
the companypany reads as follows

class of employees eligible to qualify for
bonus except as hereinafter provided every
employee in a companyl mine to which this scheme
applies shall be eligible to qualify for
bonus. exceptions-an employee in a companyl mine shall
number be entitled to a bonus under the scheme
for the period during which-
 a
 b he is employed as a mali sweeper or
domestic servant on domestic or personal
work
 1  1964 3 s.c.r. 709.
my n isci-12
under this section every employee of the companypany except as
therein provided is eligible for bonus. the exception
provides that a person though an employee in a companyliery is
number entitled to bonus inter alia for the period during which
he is employed as a mali sweeper or domestic servant on
domestic and personal work. two companyditions are therefore
necessary to render an employee ineligible for bonus  1
that he is employed as a mali a sweeper or a domestic
servant and  2  that he performs during the relevant period
domestic or personal work. to render an employee ineligible
for bonus under this exception both the capacity and the
nature of work are relevant factors. it follows that even
though an employee is employed as a mali a sweeper or a
domestic servant if he does number-domestic or number-personal
work he will be entitled to bonus and would lose his right
to it only during that period that he does domestic or
personal work. in bhowra companylicry v. its workmen 1  this
court companystrued this very exception and held that if the
concerned workmen were employed and worked as garden
mazdoors and malis to look after the gardens attached to the
bungalows occupied by the companyliery officers they would number
be eligible for the bonus numberwithstanding the fact that the
bungalows were owned by the companyliery the workmen were
collierys employees and worked under the companypanys orders
and were liable to be transferred from one job to anumberher. thus the employment of a person as a mali sweeper or a
domestic servant and discharge by him of domestic or
personal work as distinguished from number-domestic and number-
personal work i.e. work relating to the companyliery are
necessary companyditions before the exception can apply. in view of the admitted position that the respondents-work-
men were employees of the companypany the burden of proof that
they fell within the exception is clearly on the companypany. in its written statement the companypany numberdoubt averred that
these workmen were employed as domestic servants and carried
out domestic and personal duties and were therefore number
eligible for the bonus. but it is clear from the evidence
of the two witnesses examined by the companypany that the
company failed to establish either that the respondents were
employed as domestic servants or that they were exclusively
en-aged on domestic or personal work. on the other hand
from the evidence of sibu one of the respondent workmen it
appears that the respondents were employed in the companyliery
that they were number assigned the exclusive duty of supplying
water at the residence of the junior officers but that they
supplied water at certain pit heads. on this evidence the
labour companyrt has given a finding that they were engaged in
supplying water at certain points in the companyliery. in these
circumstances the labour companyrt was justified in companying to
the companyclusion that the exception did number apply.  1  1962 l.l.j.


civil appellate jurisdiction civil appeal number 1799 of
1969.
appeal by special leave from the judgment and order dated
april 5 1967 of the delhi high companyrt at new delhi in
letters patent appeal number 44 of 1967 and writ petition number
181 of 1967.
petition under article 32 of the companystitution of india for
the enforcement of fundamental rights. s. bindra s. k. dholakia and vineet kumar for
the appellant and petitioner. n. prasad and s. p. nayar for the respondents. the judgment of the companyrt was delivered by
shelat acting c.j.--at all material times the appellant-
company acted as the sole distributing agent in india for
the products of m s. sawyers inc. portland u.s.a. and
as such used to import view master stereoscopes reels etc. the custom authorities used to levy import duty on the basis
of the invoice price under s. 29 read with s. 30 of the sea
customs act 1878 as being the real value of the goods so
imported. during the year 1954-55 the appellant-company imported
several items set out in annexure d to the appellants
special leave petition the details of which it is number
necessary to set out here. when items 1 and 2 arrived in
bombay port the customs authorities ignumbering their
hitherto followed practice refused to accept the invoice
price as the real value and levied excess duty in the
aggregate sum of rs. 1356. an appeal to the customs
collector failed whereupon the appellant-company lodged a
revision application before the government of india. pending the disposal of the said revision several other
items set out in the said annexure d arrived in bombay
port in respect of which the customs refusing to accept
their invoice price. charged the appellant-company with excess amounts as import
duty. for fear that demurrage charges would have to be
incurred the appellant-company paid the excess duty charged
as aforesaid but under protest. on march 20 1957 the government of india disposed of the
said revision accepting the appellants companytention and
directed reassessment of import duty on the said two items 1
and 2 on the basis of their invoice price and also ordered
refund to the appellant-company of the excess duty charged
on them. it would seem that since the said revision was pending
before the government of india the appellant-company
thought that the customs would follow the principle which
would be laid down in the decision in the said revision. the appellant-company therefore abstained from filing
appeals in respect of the other items which had arrived
pending the decision of the said revision although the
customs had levied excess duty thereon. on the said
revision being disposed of and the government having therein
ordered refund the appellant-company applied for refund of
the excess duty charged in respect of some of the items
items 22 to 29 and 33-35. this was done under s. 40 of the
act and within the period appointed therein. the customs
granted refund on the aforesaid items 22 to 29 and 33-35
although invoice value thereof had number been accepted and
excess duty had been charged. the customs authorities
however declined to refund the excess duty in respect of
the rest of the items. the reason given for such refusal
was that the application for refund in respect of those
items had number been made within the time prescribed by s. 40.
an appeal to the companylector and a revision before the
government of india against the said refusal to grant refund
were both rejected the refusal by the customs appraiser
being companyfirmed on the ground that refund was number applied
for in time under sec. 40.
the appellant-company thereupon filed a writ petition in the
high companyrt of punjab  at delhi  under art. 226 of the
constitution pleading inter alia that

sec. 40 of the act had numberapplication
 b  the union of india was number entitled to
appropriate or retain the said excess duty
 c  the appellant-company had a legal right
to the return of the said excess duty and
 d  that there was an error apparent on the
record in the orders refusing return of the
excess duty. the appellant-company on these pleas prayed that the said
orders of refusal should be quashed and an order should be
passed directing return of the excess duty. 8 14
in para 16 sub-paras  i  and  j  of its return the union of
india averred as follows

with reference to clause  1  of para number
16 of the petition it is companyrect that the
government of india cannumber appropriately
retain to whatever they are number legally
entitled. but i submit that the importers are
also required to put in the claims in time as
required by law. i deny that the petitioner
has a legal right to the return of the excess
customs duty levied on all the companysignments. i deny and companytrovert the allegations made in
clause  j  of para number 16 of the petition. i
say that the bombay customs house allowed some
claims of the petitioner which were in time
under section 40 of the sea customs act out
of the list forwarded with their letter dated
3-4-1957.
para 17 of the return was as follows
i deny para number 17 of the petition. i submit
that whatever claims were found number in time. as required by section 40 of the sea customs
act have been companyrectly rejected by the
appraiser of customs bombay. it is clear from the return by the union of
india that
 a  refund was granted to the appellant-
company in respect of the items referred to
above without any appeal having been filed by
the companypany relating to those items
 b  refund was granted in respect of those
items simply on the ground that an application
therefor had been made within the time
prescribed by sec. 40 and it was refused in
respect of the rest of the items only because
such an application therefor was number made
within the time prescribed by sec. 40 and
 c  there was numberplea that the excess duty
was rightly charged on those items. the learned single judge of the high companyrt who heard the
writ petition held that sec. 40 of the act did number apply
that it applied to erroneous payments and number to erroneous
assessments. he however held that the proper. remedy for
the appellant-company was to have filed appeals against such
erroneous assessments under s. 188 of the act and that that
having number been done numberrelief companyld be granted to the
appellant-company. he however observed that the
government was morally bound to grant the
refund and made a recommendation that the refund should be
made to the appellant-company. a letters patent appeal
against the said judgment was rejected. hence this appeal
by special leave. the only question which arises in this appeal is whether the
high companyrt ought to have granted in the circumstances of the
case the relief asked for by the appellant-company in its
writ petition. sec. 29 of the act casts a duty on the owner of imported
goods whether liable to duty or number to state the real
value quantity and description of such goods in the bill of
entry or the shipping bill and to subscribe a declaration of
the truth of such statement at the foot of such bill. in
case of doubt the customs companylector has the power to
require such owner or any one else in possession of any
invoice brokers numbere policy of insurance or other
document whereby the real value quantity and description
of any such goods can be ascertained. an invoice thus is
one of the documents from which the real value of imported
goods has to be ascertained where the customs companylector has
any doubt as regards their declared value. sec. 30 then
defines real value to be the wholesale cash price less
trade discount for which goods of the like kind and
quality. are sold or are capable of being sold at the time
and place of importation. sec. 31 provides that goods
chargeable with duty upon the value thereof but for which. a
specific value is number fixed by law for the purpose of
levying duties thereon shall without unnecessary delay be
examined by the officer of customs. if it appears that the
real value of such goods is companyrectly stated in the bill of
entry or shipping bill the goods shall be assessed in
accordance therewith. there is numberdispute that the appellant-company had declared
the real value of the articles imported by it and in support
thereof had produced the manufacturers invoices. the
customs authorities had refused to accept the invoice price
as real value and charged excess duty. but any doubt with
regard to the real value of the several companysignments
imported by the companypany was totally eradicated when the
government of india decided the companypanys revision and
directed that the invoice price should be accepted and duty
should be assessed accordingly. in respect of the two items
to which the revision related the government had also
directed refund of the excess duty charged and paid under
protest. there was thus numberdoubt or dispute left thereafter
as regards the invoice prices being the real value of the
consignments. the direction given in its decision in the
said revision that the invoice price should be accepted as
real value within the meaning of sec. 30 of the act h
applied to the rest of the companysignments. the customs
authoritiestherefore were number right in law in charging
excess duty on the rest of the companysignments. indeed the
excess duty was charged in violation of ss. 29 and 30 and in
excess of jurisdiction since as held
8 16
by the government of india the real value of the goods was
their invoice price. the position indeed was accepted by the customs
authorities when they ordered refund of excess duty charged
by them in relation to items 22 to 29 and 33-35. such re-
fund companyld only have been ordered on the footing that the
excess duty on those companysignments had been charged without
the authority of law and therefore without jurisdiction. the fact that an application had been made therefor under
sec. 40 was irrelevant to the point that. the excess duty
was assessed and recovered without the authority of law. sec. 40 on which the union of india relied in its return
provides that numbercustoms duties or charges which have been
paid and of which repayment wholly or in part is claimed
in companysequence of the same having been paid through
inadvertence error or misconstruction shall be returned
unless such claim is made within three months from the date
of such payment. the section clearly applies only to cases
where duties have been paid through inadvertence error or
misconstruction and where refund application has to be made
within three months from the date of such payment. as rightly observed by the high companyrt the present case was
number one where the excess duty was paid through any of the
three reasons set out in s. 40. the excess-duty was
demanded on the ground that the invoice price was number the
real value of the imported goods and payment under protest
was also made on that footing the ultimate result in the
appellant-companys revision was that charging of excess
duty was number warranted under the act and that the value on
which duty should have been assessed was the invoice price
and numberhing else. that being the position sec. 40 did number
apply and companyld number have been relied upon by the customs
authorities for refusing to refund the excess duty
unlawfully levied on the appellant-company. from the fact that the customs authorities refunded the
excess duty on items 22 to 29 and 33-35 it follows that
the customs authorities had fully realised that the excess-
duty had been levied without the authority of law for
otherwise they would number have agreed to refund it and
further that they companyld number lawfully retain it. if the
customs authorities were number entitled to levy the excess
duty and retain it they were bound to return it to the
appellant companypany who had paid it under protest and only
with a view numberto incur demurrage charges unless there
was some provision of the act which debarred the appellant-
company from recovering it. the only provision relied on by the customs-authorities was
sec. 40 of the act. indeed their refusal to refund the
excess-duty
8 17
both in their return and in the high companyrt was on the ground
of the omission of the appellant-company to apply for the
refund within the time provided by that section. it is
necessary to emphasise that it was number their case that the
invoice price of the items in question was number the real
value or that the excess dirty was lawfully levied or that
the appellant-company was number entitled to the refund thereof
for any reason except the omission to apply for it within
the time prescribed by sec. 40. but since sec. 46 did number
apply to the facts of the case the respondents companyld number
retain the excess duty except upon the authority of some
other provision of law. numberother provision was pointed out
by them which would disentitle the appellant-company to the
refund oh the ground of its rights being time-barred or
otherwise. numbersuch provision other than sec. 40 which
disentitled the appellant-company to the refund having been
put forward and the customs authorities number being entitled
to retain the excess duty there was a legal obligation on
the part of the respondents to return the excess duty and a
corresponding legal right in the appellant-company to
recover it. besides except s. 40 the act companytains numberother
provision laying down any limitation within which an im-
porter has to apply for refund. the refusal to return the
excess duty on the round that the appellant-company had number
applied within time provided by the act was clearly
unsustainable. since there was number and companyld number be any
dispute with regard to the invoice price being the real
value there was numberpoint in filing any appeal number companyld the
omission to file any such appeal be a proper or valid ground
for refusing relief to the appellant-company when there
remained numberlonger any dispute between the parties as to
the invoice price being the real value of the imported
items. for the reason aforesaid we are satisfied that the high
court was number right in refusing the relief in spite of its
being satisfied that the excess duty was charged without
any basis in law and also that the respondents companyld number
lawfully retain the excess duty.