civil appellate jurisdiction civil appeal number. 2144-
2145 of 1970
from the judgment and decree . 13/14/24.3.69 of the
high companyrt of gujarat in first appeal number. 981/60 270/61. n. phadke  girish chandra  c. v. subba rao and

n poddar for the appellant. mr. v. gouri shankar. k.l. harhi  m.k. arora and ms.
ii wahi  for the respondent. the judgment of the companyrt was delivered by
balakrishna eradi  j. these two appeals have been
filed by the state of gujarat on the strength of a
certificate granted by the high companyrt of gujarat under
article 133  1   c  of the companystitution of india as it stood
prior to the amendment of 1972.
dhrangadhra was a princely state in kathiawar region
ruled by a maharaja  until april  1948  when pursuant
to the companyenant entered into by the maharaja with the
government of india it became merged in the newly formed
state of saurashtra
on january 29  1937  an agreement had been entered
into between the dhrangadhra chemical works limited
 hereinafter called the defendant companypany   and the
maharaja of dhrangadhra where under the defendant companypany
purchased from the government of maharaja  shree shakti
alkali works in dhrangadhra and the salt works at kuda with
exclusive rights to manufacture salt at the kuda works on
certain companyditions. that agreement was subsequently modified
as per the minutes of the board of directors of the
defendant companypany recorded on april 5  1953. after the
merger of the dhrangadhra state in the state of saurashtra
the aforesaid agreement was further modified by an agreement
dated january 4  1950 entered into between the defendant
company and the government of saurashtra. it is with that
agreement alone that we are companycerned with in these appeals. under that agreement  the defendant companypany agreed to pay
to the government of saurashtra royalty at the rate of rs. 0-2-3  2 annas  3 pies  per bengal maund on the total
quantity of salt sold by them every year. the payment of
royalty was to be made as and when delivery was given by the
defendant companypany to the purchaser. under clause  3  of the
said agreement the defendant companypany agreed to manufacture a
minimum quantity of at least 50  000 tons of salt every
year in addition to the quantity required by the defendant
company for companysumption if there alkali factory. clause  5
of the agreement provided for the payment of a minimum
royalty  equivalent to an amount chargeable on the minimum
quantity to be manufactured by the defendant companypany in
accordance with clause  3 . there was a short fall in the production of salt by the
company for the years 1950-53 aggregating to 27300-0 54
tons. the royalty payable in respect of the said quantity of
salt calculated at the agreed rate of 2 annas  3 pies per
bengal maund amounted to rs. 107 495-10-0. differences
arose between the government of saurashtra and the defendant
company with respect to the royalty payable under the
agreement. the said dispute mainly centered round two
points. according to the government  irrespective of the
quantity of salt actually sold by the companypany during any
year  the companypany was bound to pay a minimum guarantee
royalty in 1 respect of 50000 tons of salt by virtue of the
combined operations of clauses  3  and  5  of the agreement-
the stand taken by the defendant companypany that clause  3  of
the agreement was void due to vagueness and uncertainty and
since clause  5  was dependent for its operation on clause
 3   the said clause  5  was also vide due to vagueness. according to the defendant companypany their liability to pay
royalty was only under clause  2   whereunder royalty was
realizable by the government only on the total amount of
salt actually sold and delivered by the defendant companypany in
each year. in spite of repeated demands made by the
government of saurashtra  the defendant companypany persisted
in its aforesaid stand. while matters stood thus  that as
a result of the state reorganization of
1956  the state of bombay became the successor state to
the state of saurashtra. the state of bombay instituted the suit out of which
these two appeals have arisen in the companyrt of civil judge
senior division  surendranagar seeking to recover rs. 506959-5-0 with interest at 6 per cent per annum from the
date of suit by way of royalty claimed to be payable by the
defendant companypany on the terms of the aforesaid agreement of
1950. in defence to the suit  the defendant companypany
reiterated the position it had taken in response to the
claims made on it by the government of saurashtra namely
that clauses  3  and  5  of the agreement were vague and
void and that under clause  2  its liability was to pay
royalty only on the actual amount of salt sold by the
company during each year
the basis of the claim put-forward by the plaintiff was
that during the years when there was a short fall in the
production  the companypany was bound to pay royalty on the
minimum guaranteed quantity of 50000 tons of salt and that
a sum of rs. 107495-10-0 was due on this account. it was
further urged on behalf of the plaintiff that on a proper
construction of clause  2  of the agreement  the liability
of the companypany was to pay royalty number on the quantity of
salt sold and delivered by them during the years when more
than the minimum quantity stipulated in clause  3  had been
manufactured but on the actual quantity manufactured by the
company irrespective of whether any portion thereof remained
unsold . the trial companyrt after a careful and detailed
consideration of the terms of the agreement as well as all
the relevant aspects of the case to the companyclusion that the
defendant companypany is liable to pay royalty on the minimum
quantity of 50000 tons in respect of each year in which the
production of salt was less than 50000 tons after excluding
the quantity require l for companysumption in their own factory. for the years during which the production exceeded the
stipulated minimum of 50000 tons the trial companyrt held that
royalty was chargeable only on the quantity of salt sold and
delivered by the companypany and number on the total quantity
manufactured by it. in this view it passed a decree in the
plaintiff favour for a sum of rs. 266462-0-9 and dismissed
the suit in respect of the remaining part of the plaintiffs
claim. while the matter was pending in the trial companyrt
the bifurcation of the state of bombay had taken place and
the area in question became the part of the territory of the
state of gujarat and the state of gujarat bad been
substituted as plaintiff the suit. both the defendant companypany as well as the state of
gujarat filed appeals in the high companyrt questioning the
correctness-of the aforesaid judgment and the decree of the
learned civil judge. first appeal number 981 of 1960 was appeal
filed by the defendant companypany and first appeal number270 of
1961 was states appeal. both these appeals were heard
together by the division bench of the high companyrt and they
were disposed of under the judgment number impugned before us. the high companyrt on a companysideration of clauses  2    3
and  5  of the agreement was of opinion that even though
clause  5  dealt with a particular companytingency namely  the
failure of the defendant companypany to manufacture minimum
quantity of salt as specified in clause  3   it was
introduced by way of abundant caution and number by way of
limiting the ambit and scope of the operative part of the
agreement namely  clause 2. in the view of the high companyrt
 clause  5  companyld number be regarded as companytrolling clause
 2  and the liability of the defendant companypany to pay
royalty to government rested solely upon the terms of clause
 2 . in this view the high companyrt held that merely on account
of the fact that the defendant companypany had during certain
years failed to manufacture the minimum quantity of salt
stipulated in clause  3   it companyld number be saddled with
liability for payment of royalty during those years since
under clause  2  royalty was to be paid only on the quantity
of salt actually sold and delivered. the division bench of
the high companyrt companycerned with the trial companyrt in the view
taken by it that under clause  2  the charge to royalty
would get attracted number by mere manufacture alone but only
at the point of sale and delivery of the salt to the
purchasers. on the basis of the foregoing companyclusions
reached by it  the high companyrt set aside the decree passed
by the learned civil judge and dismissed a suit except
regarding an amount of rs. 16631 which had been admitted by
the defendant companypany to be payable by it to the plaintiff
aggrieved by the said decision of the high companyrt  the
state of gujarat has preferred these two appeals before this
court. after hearing arguments on both sides and scrutinizing
the terms of the agreement dated january 4 1950  we have
unhesitatingly companye to the companyclusion that the high companyrt
was number right interfering with the decree passed by the
learned civil judge. since the points raised in the appeals turn on the
interpretation to be placed on the clauses  2  to  5   we
shall reproduce those clauses in full. they read-

the companypany shall pay a royalty to the government
at the rate of 0-2-3 per bengal maund on the total
quantity a of salt sold by them every year. the amount
of royalty under this clause shall be paid by the
company as and when delivery is given by the companypany to
the purchaser  and for the purposes of ascertaining
the royalty chargeable under this clause the companypany
shall produce the sale numberes  delivery numberes and such
other documents or records as may be required by an
officer authorized by government in this behalf. the companypany shall manufacture at least 50000 tons
of salt in addition to the quantity required for
consumption in their works. however  if it become
impossible to produce the minimum quantity of salt
required to be produced by this clause on account of
natural circumstances beyond the companytrol of the companypany
government may relax this requirement to such extent as
may be deemed fit by government in view of such
circumstances. the companypany shall make all efforts to raise the
production of salt above the minimum specified in
clause 3 above. in case companypany fails to manufacture the minimum
quantity of salt as specified in clause  3  above and
government do number think it fit to relax the
requirements of the said clause in accordance with the
pro visions mentioned therein  then numberwithstanding
any thing companytained in clause 2 above the companypany shall
pay the minimum royalty equivalent to an amount
chargeable on the minimum quantity to be manufactured
in accordance with clause  3  of this agreement. we do number find possible to agree with the high companyrt
that clause  3  was only introduced by way of abundant
caution and that clause 5  does number create any liability
for payment of a minimum royalty. on a companybined reading of
clauses  2  to  5   it appears to us to be clear that
while clause  2  was intended to operate and govern the
rights and liabilities of the parties in respect of payment
of royalty during years when the companypany maintained its
numbermal scale of production  clauses  3  and  5  had been
deliberately inserted with the object and purpose of
ensuring that even in respect of lean years when the
production of salt by the companypany fell short of the
stipulated minimum of 50000 tons after excluding the
quantity required for the companysumption in the companypanys own
factory  the government was to be paid a minimum
guaranteed royalty equivalent to the amount chargeable on
50000 tons of salt which is stipulated as the minimum
quantity to be manufactured under clause  3 . the
interpretation put on clause  2  by the high companyrt has the
result of companypletely rendering clauses  3  and  5  otiose
and such interpretation does number companymend itself to us. we do
number also find it possible to agree with the view expressed
by the high companyrt that the liability for payment of royalty
emanated only from clause  2 . numberdoubt clause  2  is the
principal clause providing for the payment of royalty but it
was to be operative in respect of years when the production
of salt by the companypany fell within the numbermal limits  that
is above the stipulated minimum. clause  s  is a special
provision for payment of a minimum guaranteed royalty in
respect of periods when the production of salt by the
company fell short of the quantity stipulated in clause  3 . hence there is numberconflict between clauses  2  and  5  on
the companytrary  they supplement each other. we are
therefore  companystrained to hold that the high companyrt was in
error in its companyclusion that in respect of years when the
company failed to produce the minimum quantity of salt
stipulated in clause  3   it was under numberliability at all
to pay any royalty to the government under clause  5 . the
trial companyrt was  in our opinion  perfectly right in
granting a decree to the plaintiff for the amount of royalty
payable in respect of the short fall in production during
the years 1950-53.
there remains only the further question  whether
under the
terms of clause  2   the royalty payable thereunder is to
be companyputed on the total amount of salt manufactured by the
company or on the quantity sold and delivered. in our
opinion  the terms of the clause are absolutely clear and
provide for levy and companylection of royalty only when the
salt is sold and delivered by the companypany to the purchasers. this obviously means that royalty can be charged only on the
quantity actually sold and delivered by the companypany and number
on the total quantity manufactured by it during the
particular year. the companycurrent findings recorded on this
point by the high companyrt and the learned civil judge do number
therefore  call for any interference. in the result  we allow these appeals  set aside
the judgment of the high companyrt and restore the judgment and
decree of the learned civil judge subject to the
modification that the rate of interest payable to the
plaintiff on the decree amount shall be 12 per cent from the
date of the trial companyrt.


civil appellate jurisdiction civil appeal number p 409 of
1958.
appeal by special leave from the judgment and order dated
may 13 1958 of the punjab high companyrt at chandigarh in
first appeal from order number 24 of 1958.

b. aggarwala and naunit lal for the appellant. s. doabia k. r. chaudhury and m. k. ramamurty for the
respondent number 1. 1958. september 30. the judgment of the companyrt was
delivered by
gajendragadkap. j.-this appeal by special leave has been
filed against the decision of the punjab high companyrt
confirming the order passed by the election tribunal by
which the appellants election has been declared to be void. the appellant shri baru ram was elected to the punjab
legislative assembly from the rajaund companystituency in the
karnal district. initially seventeen candidates had filed
their numberination papers in this companystituency. out of these
candidates thirteen withdrew and the numberination paper filed
by jai bhagawan was rejected by the returning officer. that
left three candidates in the field. they were the appellant
baru ram mrs. prasanni and harkesh respondents 1 and 2
respectively. the polling took place on march 14 1957 and
the result was declared the next day. since the appellant
had secured the largest number of votes he was declared duly
elected. soon thereafter mrs. prasanni respondent 1 filed
an election petition in which she alleged that the appellant
had companymitted several companyrupt practices and claimed a
declaration that his election was void. the appellant
denied all the allegations made by respondent 1. the
election tribunal first framed six preliminary issues and
after they were decided it -raised twenty-nine issues on
the merits. the tribunal was number
1406
satisfied with the evidence adduced by respondent i to prove
her allegations in respect of the companyrupt practices
committed by the appellant and so it recorded findings
against respondent 1 on all the issues in regard to the
said companyrupt practices. respondent i had also challenged
the validity of the appellants election on the ground that
the returning officer had improperly rejected the numberination
paper of jai bhagawan. this point was upheld. by the
election tribunal with the result that the appellants
election was declared to be void. the appellant then preferred an appeal to the punjab high
court. he urged before the high companyrt that the election
tribunal was in error in companying to the companyclusion that the
numberination paper of jai bhagawan had been improperly
rejected. this companytention was accepted by the high companyrt
and the finding of the tribunal on the point was reversed. respondent 1 sought to support the order of the election
tribunal on the ground that the tribunal was number justified
in holding that the appellant was number guilty of a companyrupt
practice under s. 123 7  c . this argument was also
accepted by the high companyrt and it was held that the
appellant was in fact guilty of the said alleged companyrupt
practice. in the result though the appellant succeeded in
effectively challenging the only finding recorded by the
tribunal against him his appeal was number allowed because
anumberher finding which was made by the tribunal in favour of
the appellant was also reversed by the high companyrt. that is
why the order passed by the tribunal declaring the
appellants election to be void was companyfirmed though on a
different ground. it is this order which is challenged
before us by mr. aggarwal on behalf of the appellant and
both the points decided by the high companyrt are raised before
us by the parties. at the hearing of the appeal mr. doabia raised a preliminary
objection. he companytends that the present appeal has been
preferred beyond time and should be rejected on that ground
alone. the judgment under appeal was delivered on may 13
1958 and the petition for leave to appeal under art. 136 of
the companystitution
1407
has been filed in this companyrt on september 2 1958. it is
common ground that the appellant had appliedfor leave to
the punjab high companyrt on june 9 1958and his application
was dismissed on august 22 1958.if the time occupied by
the appellants application for leave is taken into account
his appeal would be in time on the other hand if the said
period is number taken into account his application would be
beyond time. mr. doabia argues that the proceedings taken
on an election petition are number civil proceedings and so an
application for leave under art. 133 of the companystitution was
incompetent the time taken in the disposal of the said
application cannumber therefore be taken into account in
computing the period of limitation. on the other hand mr.
aggarwal urges that s. 116a  2  of the representation of the
people act  43 of 1951   hereinafter called the act
specifically provides that the high companyrt in hearing an
appeal presented to it shall have the same powers
jurisdiction and authority and follow the same procedure
with respect to the said appeal as if it were an appeal from
an original decree passed by a civil companyrt situated within
the local limits of its civil appellate jurisdiction. the
result of this provision is to assimilate the election
proceedings companying before the high companyrt in appeal to civil
proceedings as companytemplated by art. 133 of the companystitution
and so according to him it was number only open to the
appellant but it was obligatory on him to make an
application for leave to the punjab high companyrt under the
said article. that is why the time occupied by the said
proceedings in the punjab high companyrt must be excluded in
deciding the question of limitation. we do number propose to
deal with the merits of these companytentions. it is number
seriously disputed by mr. doabia that parties aggrieved by
orders passed by high companyrts in appeals under s. 116a of the
act generally apply for leave under art. 133 and in fact
such applications are entertained and companysidered on the
merits by them. it is true that mr. doabias argument is
that this practice is erroneous and that art. 133 has no
application to the appellate decision of the high companyrt
under s. 116a
1408
of the act. assuming that mr. doabia is right it is clear
that the appellant has merely followed the general practice
in this matter when he applied for leave to the punjab high
court his application was entertained companysidered on the
merits and rejected by the high companyrt. under these
circumstances we think that even if we were to hold that
art. 133 has numberapplication we would unhesitatingly have
excused the delay made in the presentation of the appeal
and so we do number think we can throw out the appeal in limine
on the ground of limitation. if necessary we would excuse
the delay alleged to have been made in presenting this
appeal. on the merits mr. aggarwal companytends that the finding of the
high companyrt that the appellant has companymitted a companyrupt
practice under s. 123 7  c  is number supported by any
evidence. before dealing with this argument it would be
relevant to companysider the legal position in the matter. companyrupt practice as defined in s. 2 c  of the act means
any of the practices specified in s. 123 . section
123 7  c  provides inter alia that the obtaining or
procuring or abetting or attempting to obtain or procure by
a candidate any assistance other than giving of vote for the
furtherance of the prospects of that candidates election
from any person in the service of the government and who is
a member of the armed forces of the union is a companyrupt
practice. the case against the appellant as set out by
respondent 1 in her election petition on this point is that
the appellant secured the assistance of puran singh who is a
member of the armed forces of the union. it was alleged
that puran singh actively canvassed for the appellant on
march 11th to 13th 1957 in his village and so much so that
he subsequently served as his polling agent at polling booth
number 15 at village kotra on march 14 1957 . both the
tribunal and the high companyrt are agreed in holding that it
had number been proved that puran singh actively canvassed for
the appellant on march 11th to 13th as alleged by respondent

they have however differed on the question as to
whether the appellant had appointed puran singh as his
polling agent for the
1409
polling booth in question. it would thus be seen that the
point which falls for our decision in the present appeal
lies within a very narrow companypass. did the appellant secure
the assistance of puran singh by appointing him as his
polling agent ? going back to s. 123 explanation  2  to the
said section provides that for the purpose of cl.  7  a
person shall be deemed to assist in the furtherance of the
prospects of a candidate for election if he acts as an
election agent or polling agent or a companynting agent of that
candidate . in other words the effect of explanation  2
is that once it is shown that puran singh had acted as
polling agent of the appellant it would follow that the
appellant had companymitted a companyrupt practice under s.
123 7  c . but it is important to bear in mind that before
such a companyclusion is drawn the provisions of s. 46 of the
act must be taken into account. section 46 authorises a
contesting candidate to appoint in the prescribed manner
such number of agents and relief agents as may be prescribed
to act as polling agents of such candidate at each polling
station provided under s. 25 or at the place fixed under
subs.  1  of s. 29 for the poll. there can be numberdoubt
that when explanation  2  to s. 123 refers to a person
acting as a polling agent of a candidate it companytemplates
the action of the polling agent who is duly appointed in
that behalf by the candidate under s. 46. it is only when it
is shown that a person has been appointed a polling agent by
the candidate and has in companysequence acted as such agent for
the said candidate that explanation  2  would companye into
operation. if without being appointed as a polling agent
by the candidate a person fraudulently or without
authority manages to act as the polling agent of the said
candidate explanation  2  would number apply. that being the
true legal position the short point which arises for our
decision is whether the appellant had appointed puran singh
as his polling agent and whether puran singh acted as such
polling agent at the polling booth number 15 at kotra. what then are the facts held proved by the high companyrt in
support of its companyclusion against the appellant
1410
under s. 123 7  c  ? the first point which impressed the
high companyrt is in respect of the writing by which the
appellant is alleged to have appointed puran singh as his
polling agent. the printed prescribed forms were number
available to the candidates and so they had to companyy the
prescribed form for the purpose of appointing their polling
agents. this position is number disputed. the form by which
puran singh is alleged to have been appointed the
appellants polling agent companytains a glaring mistake in that
while reciting that the polling agent agreed to act as such
polling agent the form says i agree to act as such
following agent  p. w. 48/1 . the same glaring mistake
is to be found in the form by which the appellant admittedly
appointed pal chand to act as his polling agent at the same
polling booth. the high companyrt thought that the identity of
this glaring mistake in both the forms companypled with the
similarity of the handwriting of the rest of the writing in
them showed that the two forms must have been written by the
same scribe. this is a finding of fact and it may be
accepted as companyrect for the purpose of our decision. it
would however be relevant to add that it is number at all
clear from the record that the same scribe may number have
written similar forms for other candidates as well. there
is numberevidence to show that the scribe who made this glaring
mistake had been employed as his own scribe by the
appellant. the high companyrt was also disposed to take the view that puran
singh in fact had acted as the polling agent on the day of
the election at the said polling booth. respondent 1 had
examined herself in support of this plea and banwari lal
whom she examined supported her in that behalf. the
tribunal was number impressed by the evidence of these two
witnesses and it has given reasons for number accepting their
evidence as true or reliable. it is unnecessary to
emphasize that in dealing with an appeal under s. 116a of
the act high companyrts should numbermally attach importance to
the findings of fact recorded by the tribunal when the said
findings rest solely on the appreciation of oral evidence. the judgment of the high companyrt does number show that
1411
the high companyrt definitely accepted the evidence of the two
witnesses as reliable in dealing with the question the high
court has referred to this evidence without expressly
stating whether the evidence was accepted or number but it may
be assumed that the high companyrt was disposed to accept that
evidence. in this companynection we would like to add that it
is difficult to understand why the high companyrt did number accept
the criticism made by the tribunal against these two
witnesses. if we companysider the verifications made by
respondent i in regard to the material allegations on this
point both in her petition and in her replication it would
appear that she had made them on information received and
number as a result of personal knumberledge that being so it is
number easy to accept her present claim that she saw puran
singh working as polling agent but apart from this
consideration the evidence of respondent 1 even if
believed does number show that puran singh was working as a
polling agent of the appellant and the statement of
banwari lal that puran singh was working as the appellants
polling agent loses much of its force in view of his
admission that he had numberknumberledge that puran singh had been
appointed by the appellant as his polling agent. even so
we may assume though number without hesitation that puran
singh did act as appellants polling agent as alleged by
respondent 1.
in dealing with this question the high companyrt appears to have
been companysiderably influenced by the statement made by jangi
ram whom the appellant had examined. in his cross-
examination jangi ram stated that jagtu and pal chand were
the agents of shri baru ram but he added that puran singh
was number at the polling booth. it may be mentioned that the
appellants case was that he had appointed only one polling
agent at kotra and this allegation according to the high
court was disproved by the statement of jangi ram inasmuch
as he referred to two polling agents working for the
appellant. in companysidering the effect of this statement the
high companyrt has failed to take into account the positive
statement of the witness that puran singh was number at the
polling
1412
station at all. the evidence of the witness may be rejected
if it appears to be unreliable but if it is accepted it
would number be fair to accept it only in part and to hold that
two polling agents had been appointed by the appellant one
of whom was puran singh. there is anumberher serious infirmity
in the inference -drawn by the high companyrt from the statement
of jangi ram that is that jagtu to whom the witness has
referred as a polling agent of the appellant appears in fact
to have acted as a polling agent of harkesh respondent 2.
jhandu anumberher witness examined by the appellant has stated
so on oath and his statement has number been challenged in
cross-examination. thus reading the evidence of jhandu and
jangi ram it would be clear that jangi ram was right when
he said that jagtu was acting as a polling agent but he was
wrong when he thought that jagtu was the polling agent of
the appellant. if the attention of the high companyrt had been
drawn to the unchallenged statement of jhandu on this point
it would probably number have drawn the inference that jangi
rams evidence supports the case of respondent i about the
appointment of puran singh as the appellants polling agent. the next circumstance on which reliance has been placed in
the judgment of the high companyrt is that puran singh has
signed the prescribed form appointing him as the polling
agent and he must have presented it to the returning
officer. the prescribed form requires that a candidate
appointing his polling agent and the polling agent himself
should sign the first part of the form. then the polling
agent is required to take the form to the returning officer
sign in token of his agreeing to work as a polling agent
before the said officer and present it to him. the high
court has found that puran singh must have signed the form
and presented it as required by law. puran singh was
examined by respondent 1 but when he gave evidence he was
allowed to be treated as hostile and cross-examined by her
counsel. puran singh denied that he had acted as the
appellants polling agent and that he had signed the form
and presented it to the returning officer. it however
appears that chand
1413
jamadar to whose platoon puran singh is attached gave
evidence that the signature of puran singh on the form in
question  p.w. 48/1  appeared to be like the signatures on
acquittance rolls which had been admittedly made by him. on
the same question hand writing experts were examined by both
the parties. mr. om parkas was examined by respondent i and
he stated that he had companypared the admitted signatures of
puran singh with the disputed signature and had companye to the
conclusion that puran singh must have made the disputed
signature. on the other hand mr. kapur whom the appellant
examined gave a companytrary opinion. the tribunal thought that
in view of this companyflicting evidence it would number be
justified in finding that puran singh had signed the form. the high companyrt has taken a companytrary view. mr. aggarwal for
the appellant companytends that the high companyrt was in error in
reversing the finding of the tribunal on this point. there
may be some force in this companytention but we propose to
deal with this appeal on the basis that the finding of the
high companyrt on this question is right. the position thus is
that according to the high companyrt puran singh signed the
form appointing him as the appellants agent and presented
it before the officer. puran singh was seen at the polling
booth and the scribe who wrote the form in question also
wrote the form by which the appellant appointed pal singh as
his polling agent at the same booth. the high companyrt thought
that from these circumstances it would be legitimate to
infer that the appellant had appointed puran singh as his
polling agent and had in fact signed the form in token of
the said appointment. it is the companyrectness of this finding
which is seriously disputed by mr. aggarwal before us. it is significant that from the start the parties were at
issue on the question as to whether puran singh had been
appointed by the appellant as his polling agent and so
respondent 1 must have knumbern that she had to prove the said
appointment in order to obtain a finding in her favour on
issue 29 under s. 123  7  c  of the act. respondent i in
fact led evidence to prove the signature of puran singh but
numberattempt
1414
was made by her to prove the signature of the appellant on
the said form. the appellant had specifically denied that
he had appointed puran singh as his polling agent and when
he stepped into the witness box he stated on oath that he
had number signed any form in that behalf. under these
circumstances it was clearly necessary for respondent i to
examine companypetent witnesses to prove the appellants
signature on the form. it is true that the appellants
signature on the form appears to have been overwritten but
it is only the expert who companyld have stated whether the
overwriting in question made it impossible to companypare the
said signature with the admitted signatures of the
appellant. it appears that after the whole of the evidence
was recorded respondent woke up to this infirmity in her
case and applied to the tribunal for permission to examine
an expert in that behalf. this application was made on
february 6 1958 and the only explanation given for the
delay in making it was that it was after the appellant
denied his signature on oath that respondent i realized the
need for examining an expert. the tribunal rejected this
application and we think rightly. in its order the tribunal
has pointed out that respondent i had been given an
opportunity to examine an expert and if she wanted her
expert to give evidence on the alleged signature of the
appellant her companynsel should have asked him relevant
questions when he was in the witness box. thus the position
is that there is numberevidence on the record to support the
case of respondent i that the said alleged signature has in
fact been made by the appellant. the only relevant evidence
on the record is the statement of the appellant on oath that
he had number signed the form in question. mr. doabia fairly companyceded that there was numberlegal evidence
on this point but his argument was that from the other
findings of fact recorded by the high companyrt it would be
legitimate to infer that the appellant had made the said
signature. in our opinion this companytention is wholly
untenable. it must be borne in mind that the allegation
against the appellant is that he has companymitted a companyrupt
practice and a finding
1415
against him on the point would involve serious companysequences. in such a case it would be difficult to hold that merely
from the findings recorded by the high companyrt it would be
legitimate to infer that the appellant had signed the form
and had in fact appointed puran singh as his polling agent. mr. doabia argues that it is number always absolutely necessary
to examine an expert or to lead other evidence to prove
handwriting. it would be possible and legal he companytends
to prove the handwriting of a person from circumstantial
evidence. section 67 of the indian evidence act provides
inter alia that if a document is alleged to be signed by any
person the signature must be proved to be in his
handwriting. sections 45 and 47 of the said act  i of
1872  prescribe the method in which such signature can be
proved. under s. 45 the opinion of the handwriting experts
is relevant while under s. 47 the opinion of any person
acquainted with the handwriting of the person who is alleged
to have signed the document is admissible. the explanation
to the section explains when a person can be said to be
acquainted with the handwriting of anumberher person. thus
there can be numberdoubt as to the manner in which the alleged
signature of the appellant companyld and should have been
proved but even assuming that the signature of the
appellant can be legally held to be proved on circumstantial
evidence the principle which governs the appreciation of
such circumstantial evidence in cases of this kind cannumber be
ignumbered. it is only if the companyrt is satisfied that the
circumstantial evidence irresistibly leads to the inference
that the appellant must have signed the form that the companyrt
can legitimately reach such a companyclusion. in our opinion
it is impossible to accede to mr. doabias argument that the
facts hold proved in the high companyrt inevitably lead to its
final companyclusion that the appellant had in fact signed the
form. it is clear that in reaching this companyclusion the high
court did number properly appreciate the fact that there was no
legal evidence on the point and that the other facts found
by it cannumber even reasonably support the
1416
case for respondent 1. we must accordingly reverse the
finding of the high companyrt and hold that respondent i has
failed to prove that the appellant had companymitted a companyrupt
practice under s. 123 7  c  of the act. this finding however does number finally dispose of the
appeal because mr. doabia companytends that the high companyrt was
in error in reversing the tribunals companyclusion that the
numberination paper of jai bhagawan had been improperly
rejected. mr. aggarwal however argues that it is number open
to respondent i to challenge the companyrectness of the finding
of the high companyrt on this point. in support of his
objection mr. aggarwal has referred us to the decision of
this companyrt in vashist narain sharma v. dev chandra  1 . in
this case when the respondent having failed on the finding
recorded by the tribunal in his favour attempted to argue
that he companyld support the decision of the tribunal on other
grounds which had been found against him this companyrt hold
that he was number entitled to do so. the provision of the
code of civil procedure which permits the respondent to
adopt such a companyrse it was observed has numberapplication to
an appeal filed by special leave under art. 136. we have
numberappeal before us on behalf of the respondent  observed
ghulam hasan j. and we are unable to allow that question
to be reagitated . mr. doabia challenges the companyrectness of
these observations. he relies on s. 116a of the act which
empowers the high companyrt to exercise its jurisdiction
authority and power and to follow the same procedure as
would apply to appeals preferred against original decrees
passed by a civil companyrt within the local limits of its civil
appellate jurisdiction. there is numberdoubt that in an
ordinary civil appeal the respondent would be entitled to
support the decree under appeal on grounds other than those
found by the trial companyrt in his favour. order 41 rule 22
of the companye of civil procedure which permits the respondent
to file crossobjections recognize the respondents right to
support the decree on any of the grounds decided against him
by the companyrt below. in the present case numberappeal
 1 1955 1 s.c.r. 509. 1417
could have been preferred by respondent i because she had
succeeded in obtaining the declaration that the appellants
election was void and it should therefore be open to her to
support the final companyclusion of the high companyrt by companytending
that the other finding recorded by the high companyrt which
would go to the root of the matter is erroneous. prima
facie there appears to be some force in this companytention but
we do number think it necessary to decide this point in the
present appeal. mr. aggarwals objection assumes that
respondent i should have preferred a petition for special
leave to appeal against the finding of the high companyrt on the
issue in question if that be so the application made by
her for leave to urge additional grounds can be companyverted
into a petition for special leave to appeal against the said
finding and the delay made in filing the same can be
condoned. as in the case of the preliminary objection
raised by respondent 1 against the appellant on the ground
of limitation so in the case of the objection raised by the
appellant against respondent i in this matter we would
proceed on the basis that we have companydoned the delay made by
respondent 1 in preferring her petition to this companyrt for
leave to challenge the finding of the high companyrt that the
numberination form of jai bhagawan had been properly rejected. that is why we have allowed mr. doabia to argue this point
before us. we may add that the two points of law raised by
the respective objections of both the parties may have to be
considered by a larger bench on a suitable occasion. on the merits mr. doabias case is that the returning
officer was number justified in rejecting jai bhagawans
numberination under s. 36 2  b  of the act. the facts on which
this companytention is raised are numberlonger in dispute. mr. jai
bhagawan who presented his numberination paper to the returning
officer on january 29 1956 was admittedly number an elector
in the companystituency of rajaund in the district of karnal. it is alleged that he was a voter in anumberher companystituency. when his numberination paper was presented he did number produce
a companyy of the electoral roll of the said companystituency or of
the relevant part thereof or a certified companyy of the
1418
relevant entries in the said roll number did he produce any of
these documents on the first of february which was fixed for
scrutiny of the numberination papers. when the returning
officer numbericed that the candidate had number produced the
relevant document he gave him at his request two hours
time to produce it. the candidate failed to produce the
document within the time allowed and thereupon the returning
officer rejected his numberination paper tinder s. 36  2  b  of
the act. it is true that the candidate subsequently
purported to produce before the officer his affidavit that
his name was entered as a voter in the list of voters  number
1074 companystituency number 6 karnal baneket number 21 vol. 10
but the returning officer refused to companysider the said affi-
davit because he had already rejected his numberination paper
under s. 36 2  b . thus the rejection of the numberination
paper was the result of the candidates failure to produce
any of the prescribed documents before the returning
officer. on these facts the question which arises for
decision is whether the returning officer was justified in
rejecting the numberination paper under s. 36 2  b . section 33 of the act deals with the presentation of
numberination papers and prescribe-- the requirements for
valid numberination. it would be relevant to refer to sub-ss.  4  and  5  of this section. sub-section  4  provides that
on the presentation of the numberination paper the returning
officer shall satisfy himself that the names and electoral
roll numbers of the candidate and his proposer as entered in
the numberination paper are the same as those entered in the
electoral roll. the proviso to this sub-section requires
the returning officer to permit clerical or technical errors
to be companyrected. under this sub-section it would have been
open to jai bhagawan while presenting his numberination paper
to produce one of the prescribed documents to show his
electoral roll number on the roll of his companystituency. however his failure to do so does number entail any penalty. sub-section  5  of s. 33 deals with the stage of the
scrutiny of the numberination papers and it provides that where
a candidate is an elector of a different companystituency a
copy of the electoral
1419
roll of that companystituency or the relevant part thereof or a
certified companyy of the relevant entry of such roll shall
unless it is filed along with the numberination paper be
produced before the returning officer at the time of the
scrutiny. it is thus clear that when the stage of scrutiny
is reached the returning officer has to be satisfied that
the candidate is an elector of a different companystituency and
for that purpose the statute has provided the mode of proof
section 36 sub-s.  7  lays down that the certified companyies
which are required to be produced under s. 33  5  shall be
conclusive evidence of the fact that the person referred to
in the relevant entry is an elector of that companystituency. in other words the scheme of the act appears to be that
where a candidate is an elector of a different companystituency
he has to prove that fact in the manner prescribed and the
production of the prescribed companyy has to be taken as
conclusive evidence of the said fact. this requirement had
number been companyplied with by jai bhagawan and the returning
officer thought that the said number-compliance with the
provisions of s. 33 5  justified him in rejecting the
numberination paper under s. 36 2  b  of the act. the question
is whether this view of the returning officer is right. section 36 of the act deals with the scrutiny of numberinations
and the object of its provisions as shown by sub-s.  8  is
to prepare a list of validly numberinated candidates that is
to say candidates whose numberinations have been found valid
and to affix it to the numberice board of the returning
officer. sub-section  1  of s. 36 provides that on the date
fixed for the scrutiny of numberinations each candidate and one
other person duly authorized may attend at such time and
place as the returning officer may appoint and the returning
officer is required to give them all reasonable facilities
for examining the numberination papers of all candidates which
have been duly delivered. sub-section  2  then deals with
the scrutiny of the numberination papers and provides that the
returning officer shall decide all objections which may be
made to any numberination and may either on such objection or
on his own motion after such summary -enquiry if any as
he thinks
1420
necessary reject any numberination on any of the grounds
mentioned in cls.  a   b  and  c  of the said sub-section. it is obvious that this enquiry must be summary and cannumber
be elaborate or prolonged. in fact sub-s.  5  directs that
the returning officer shall number allow any adjournment of the
proceedings except when such proceedings are interrupted or
obstructed by riots by open violence or by causes beyond
hip companytrol and the proviso to this sub-section adds that
in case an objection is made the candidate companycerned may be
allowed time to rebut it number later than the next day but one
following the date fixed for scrutiny and the returning
officer shall record his decision on the date to which the
proceedings have been adjourned. sub-section  2   b  deals
with cases where there has been a failure to companyply with any
of the provisions of s. 33 or s. 34. there is numberdoubt that
in the present case there was failure on the part of jai
bhagawan to companyply with s. 33 5  and prima facie s. 36 2  b
seems to justify the rejection of his numberination paper on
that ground. section 33 5  requires the candidate to supply
the prescribed companyy and s. 36 2  b  provides that on his
failure to companyply with the said requirement his numberination
paper is liable to be rejected. in other words this is a
case where the statute requires the candidate to produce the
prescribed evidence and provides a penalty for his failure
to do so. in such a case it is difficult to appreciate the
relevance or validity of the argument that the requirement
of s. 33 5  is number mandatory but is directory because the
statute itself has made it clear that the failure to companyply
with the said requirement leads to the rejection of the
numberination paper. whenever the statute requires a parti-
cular act to be done in a particular manner and also lays
down that failure to companyply with the said requirement leads
to a specific companysequence it would be difficult to accept
the argument that the failure to companyply with the said
requirement should lead to any other companysequence. it is however urged that the statute itself makes a
distinction between defects which are of a substantial
character and those which are number of a substantial
1421
character. this argument is based upon the provisions of s.
36 4  of the act which provides that the returning officer
shall number reject any numberination paper on the ground of any
defect which is number of a substantial character . the
failure to produce the requisite companyy it is urged may
amount to a defect but it is number a defect of a substantial
character. we are number impressed by this argument. there is
numberdoubt that the essential object of the scrutiny of
numberination papers is that the returning officer should be
satisfied that the candidate who is number an elector in the
constituency in question is in fact an elector of a
different companystituency. the satisfaction of the returning
officer is thus the matter of substance in these
proceedings and if the statute provides the mode in which
the returning officer has to be satisfied by the candidate
it is that mode which the candidate must adopt. in the
present case jai bhagawan failed to produce any of the
copies prescribed and the returning officer was naturally
number satisfied that jai bhagawan was an elector of a
different companystituency. if that in substance was the result
of jai bhagawans failure to produce the relevant companyy the
consequence prescribed by s. 36 2  b  must inevitably
follow. it is only if the returning officer had been
satisfied that jai bhagawan was an elector of a different
constituency that his numberination papers companyld have been
accepted as valid. it is well-settled that the statutory
requirements of election law have to be strictly observed. as observed by mahajan c. j. who delivered the judgment of
this companyrt in jagan nath v. jagwant singh 1   an
election companytest is number an action at law or a suit in equity
but is a purely statutory proceeding unknumbern to the companymon
law and that the companyrt possesses numbercommon law power . the
learned chief justice has also added that  it is a
sound principle of natural justice that the success of a
candidate who has won at an election should number be lightly
interfered with and any petition seeking such interference
must strictly companyform to the requirements of the law. in
this companynection we may usefully refer to anumberher decision of
this companyrt in rattan anmol
 1 1954 s.c. r. 892 895 896. 1422
singh v. atma ram  1 . while dealing with the question as
to whether the requirements as to attestation were of a
technical or of an unsubstantial character bose j. observed
that when the law enjoins the obser vance of a particular
formality it cannumber be disregarded and the substance of the
thing must be there . we must therefore hold that the
high companyrt was right in companying to the companyclusion that the
numberination paper of jai bhagawan had been validly rejected
by the returning officer. mr. doabia however companytends that the view taken by the
high companyrt is purely technical and does number take into
account the substance of the matter. this approach it is
said is inconsistent with the decision of this companyrt in
pratap singh v. shri krishna gupta  1 . it is true that in
this case bose j. has disapproved of the tendency of the
courts towards technicalities and has observed that it is
the substance that companynts and must take precedence over mere
form . but in order to appreciate the scope and effect of
these observations it would be necessary to bear in mind
the relevant facts and the nature of the point raised before
the companyrt for decision in this case. the question raised
was whether the failure of the candidate to mention his
occupation as required by r. 9 1  i  rendered his numberination
paper invalid and it was answered by the companyrt in the
negative. the question arose under the provisions of the c.
p. and berar municipalities act 11 of 1922. it is
significant that the decision of this companyrt rested
principally on the provisions of s. 23 of the said act
according to which anything done or any proceedings taken
under this act shall number be questioned on account of
any defect or irregularity in affecting the merits
of the case . it was held by this companyrt that reading r.
9 1   iii   c  which directed the supervising officer to
examine numberination papers in the light of s. 23 the companyrt
had to see whether the omission to set out a candidates
occupation can be said to affect the merits of the case and
on that point there was numberdoubt that the said failure companyld
number possibly affect the merits of the case. the high companyrt
had however taken a
 1  1955 1 s.c.r. 481 488.

a.i.r. 1956 s.c. 140141. 1423
contrary view and it was in reversing this view that bose j.
disapproved the purely technical approach adopted by the
high companyrt. where however the statute requires specific
facts to be proved in a specific way and it also provides
for the companysequence of number- p companypliance with the said
requirement it would be difficult to resist the application
of the penalty clause on the ground that such an application
is based on a technical approach. indeed it was precisely
this approach which was adopted by this companyrt in the case of
rattan anmol singh v. atma ram  1 . mr. doabia has also relied upon a decision of the andhra
high companyrt in mohan reddy v. neelagiri muralidhar rao  2  in
support of his argument that the failure to produce the
prescribed companyy cannumber justify the rejection of the
numberination paper. in our opinion this decision does number
assist mr. doabias companytention. in this case it was urged
before the high companyrt that the document produced by the
party was riot a certified companyy as required by s. 33  5  of
the act. this argument was based on the assumption that the
certified companyy mentioned in s. 33 5  of the act must satisfy
the test prescribed by s. 76 of the indian evidence act. the high companyrt rejected this argument for two reasons. it
held that the certified companyy mentioned ins. 33 5  need number
necessarily satisfy the test prescribed by s. 76 of the
indian evidence act. alternatively it held on a
consideration of the relevant statutory provisions that the
document in question was in fact and in law a certified companyy
under s. 76 of the indian evidence act. these points do number
arise for our decision in the present appeal. mr. doabia
however relies on certain observations made in the judgment
of the -nigh companyrt and it may be companyceded that these
observations seem to suggest that according to the high
court the provisions of ss. 33 5  and 36 7  do number preclude
proof by other means of the fact that the name of the
candidate is on the relevant electoral roll. these
observations are clearly obiter. even so we
 1  1955 1 s.c.r.


criminal appellate jurisdiction criminal appeal number64 of
1969.
appeal by special leave from the judgment and order dated
december 10 1968 of the punjab and haryana high companyrt in. criminal revision number 1200 of 1967.

l. kohli for the appellant. c. mahajan and r. n. sachthey for the respondent. the judgment of the companyrt was delivered by
khanna j. ishar das appellant was companyvicted by the judicial
magistrate 1st class patiala for an offence under section
7 1  of the prevention of food adulteration act 1954  act
number 37 of 1954  read with section 16 1   a   i  of that act
and was ordered to furnish bond under section 4 of the
probation of offenders act. bedi j. of the punjab and
haryana high companyrt during the companyrse of the inspection of
the companyrt of trial magistrate took the view that an
improper order had been made in the above case by the
magistrate. the high companyrt thereupon of its own motion
directed that a numberice be issued to the appellant. the case
was thereafter posted before bedi j. the learned judge
referred to the fact that a minimum sentence of imprisonment
for a period of six months and a fine of rs. 1000 had been
prescribed by section 16 of the prevention of food
adulteration act. it was also observed that offenses under
the prevention of food adulteration act were against the
public and called for deterrent punishment. order was
consequently made that the appellant instead of being
released on his furnishing a bond should be sentenced to
undergo simple imprisonment for a period of six months and
to pay a fine of rs. 1000. in default of payment of fine. the appellant was ordered to undergo simple imprisonment for
a further period of one and a half month. the appellant
thereafter filed this appeal by special leave to this companyrt. at the time the leave was granted. it was ordered that the
appeal would be limited to the question of sentence only. the prosecution case is that on august 1 1966 the food
inspector patiala took- a sample of two cups of ice cream
from the appellant from phul cinema canteen on payment of
three rupees. part of the ice cream was sent for analysis
to public analyst chandigarh. the analyst reported that the
ice cream was adulterated being deficient in milk fat
contents to the extent of 77 per cent and total solid
contents to the extent of 7 per cent. the appellant was
thereafter prosecuted on the allegation that he had
committed an offence under section 7 1  of the prevention of
food adulteration act read with section 16  1    a   i  of
that
act. charge was framed on that companynt against the appellant
and he pleaded guilty to the same. the trial magistrate
took the view that the appellant who was aged about 20
years was in a repentant mood. the appellant was in the
circumstances directed to furnish bond under section 4 of
the probation of offenders act. the bond was thereafter
furnished by the appellant. on revision the sentence was
altered by the high companyrt as mentioned above. in appeal mr. kohli on behalf of the appellant has referred
to the matriculation certificate which was produced on
behalf of the appellant and according to which the date of
birth of the appellant was may 8 1947. it is argued that
as the age of the appellant on the date of his companyviction by
the trial magistrate was less than 20 years the appellant
was rightly given the benefit of the provisions of the
probation of offenders act. the high companyrt according to
the learned companynsel was in error in awarding the sentence
of imprisonment and fine to the appellant. as against that
mr. mahajan on behalf of the respondent has companytended that
the provisions of the probation of offenders act cannumber be
invoked by an accused companyvicted of an offence under section
7 read with section 16 of the prevention of food adultera-
tion act. mr. mahajan has number disputed that the age of the
accused was less than 20 years on the date of his companyviction
by the trial magistrate but according to the learned
counsel that fact companyld make numberdifference. there is in our opinion companysiderable force in the stand
taken on behalf of the appellant by his learned companynsel and
we find ourselves unable to accede to the submission made on
behalf of the respondent state. the probation of offenders
act received the assent of the president on may 16 1958
and was published in the gazette of india dated may 19
1958. according to subsection  3  of section 1 of that act
it shall companye into force in a state on such date as the
state government may by numberification in the official. gazette appoint and different dates may be appointed for
different parts of the state. the fact that the act was in
force in the state of punjab before the sample of ice cream
was taken from the appellant has number been disputed before
us. section 3 of the act gives power to the companyrt to
release certain offenders after admonition. according to
that section where any person is found guilty of having
committed an offence punishable under section 379 or section
380 or section 381 or section 404 or section 420 of the
indian penal companye or any offence punishable with
imprisonment for number more than two years or with fine or
with both under the indian penal companye or any other law and
numberprevious companyviction is proved against him and the companyrt
by which the person is found guilty is of opinion
that .having regard to the circumstances of the case
including the nature
of the offence and the character of the offender it is
expedient so to do then numberwithstanding anything companytained
in any other law for the time being in force the companyrt may
instead of sentencing him to any punishment or releasing him
on probation of good companyduct under section 4 release him
after due admonition. the relevant part of sub-section  1
of section 4 and sub-section  1  of section 6 of the act
read as under
4 1  when any person is found guilty of
having companymitted on offence number punishable
with death or imprisonment for life and the
court by which the person is found guilty is
of opinion that having regard to the
circumstances of the case including the nature
of the offence and the character of the
offender it is expedient to release him on
probation of good companyduct then
numberwithstanding anything companytained in any
other law for the time being in force the
court may instead of sentencing him at once
to any punishment direct that he be released
on his entering into a bond with or without
sureties to appear and receive sentence when
called upon during such period number exceeding
three years as the companyrt may direct and in
the meantime to keep the peace and be of good
behavior. 6 1  when any person under twenty-one years
of age is found guilty of having companymitted an
offence punishable with imprisonment  but number
with imprisonment for life  the companyrt by
which the person is found guilty shall number
sentence him to imprisonment unless it is
satisfied that having regard to the
circumstances of the case including the nature
of the offence and the character of the
offender it would number be desirable to deal
with him under section 3 or section 4 and if
the companyrt passes any sentence of imprisonment
on the offender it shall record its reasons
for doing so. the probation of offenders act as observed by subba rao j.  as he then was  speaking for the majority in the case of
rattan lal v. state of punjab 1  is a milestone in the
progress of the modem liberal trend of reform in the field
of penumberogy. it is the result of the recognition of the
doctrine that the object of criminal law is more to reform
the individual offender than to punish him. broadly stated
the act distinguishes offenders below 21 years of age and
those above that age and offenders who are guilty of having
committed an offence punishable with death or imprisonment
for life and those who are guilty of a lesser offence. while in the case of offenders who are above the
 1  1964 7 s.c.r. 676.
age of 21 years absolute discretion is given to the companyrt to
release them after admonition or on probation of good
conduct subject to the companyditions laid down in the
appropriate provisions of the act in the case of offenders
below the age of 21 years an injunction is issued to the
court number to sentence them to imprisonment unless it is
satisfied that having regard to the circumstances of the
case including the nature of the offence and the character
of the offenders it is number desirable to deal with them
under sections 3 and 4 of the act. it is manifest from plain reading of sub-section  1   of
section 4 of the act that it makes numberdistinction between
persons of the age of more than 21 years and those of the
age of less than 21 years. on the companytrary the said sub-
section is applicable to persons of all ages subject to
certain companyditions which have been specified therein. once
those companyditions are fulfilled and the other formalities
which are mentioned in section 4 are companyplied with power is
given to the companyrt to release the accused on probation of
good companyduct. section 6 of the act deals specifically with
persons under twenty-one years of age companyvicted by a companyrt
for an offence punishable with imprisonment other than
imprisonment for life. in such a case an injunction is
issued to the companyrt number to sentence the young offender to
imprisonment unless the companyrt is of the view that having
regard to the circumstances of the case including the nature
of the offence and the character of the offender  it would
number be desirable to release him after admonition under
section 3 or on probation of good companyduct under section 4 of
the act. sub-section  1  of section 16 of the prevention of food
adulteration act provides the punishment which may be
awarded to a person found guilty of the various offenses
under that act. according to the above sub-section such a
person in addition to a penalty to which he may be liable
under section 6 with which we are number companycerned be
punishable with imprisonment for a term which shall number be
less than six months but which may extend to six years and
with fine which shall number be less than one thousand rupees. there follows a proviso according to which the companyrt may
in case of some of the offenses under the act for adequate
and special reasons to be mentioned in the judgment impose
a sentence of imprisonment for a term of less than six
months or of fine of less than one thousand rupees or of
both imprisonment for a term of less than six months and
fine of less than one thousand rupees. the question which arises for determination is whether
despite the fact that a minimum sentence of imprisonment for
a term of six months and a fine of rupees one thousand has
been prescribed .by the legislature for a person found
guilty of the offence under
the prevention of food adulteration act the companyrt can
resort to the provisions of the probation of offenders act. in this respect we find that sub-section  1  of section 4 of
the probation of offenders act companytains the words
numberwithstanding anything companytained in any other law for the
time being in force. the above number-obstante clause points
to the companyclusion that the provisions of section 4 of the
probation of offenders act would have overriding effect and
shall prevail if the other companyditions prescribed are
fulfilled. those companyditions are  1  the accused is found
guilty of having companymitted an offence number punishable with
death or imprisonment for life  2  the companyrt finding him
guilty is of the opinion that having regard to the
circumstances of the case including the nature of the
offence and the character of the offender it is expedient
to release him on probation of good companyduct and  3  the
accused in such an event enters into a bond with or without
sureties to appear and receive sentence when called upon
during such period number exceeding three years as the companyrt
may direct and in the meantime to keep the peace and be of
good behavior. sub-section  1  of section 6 of the above
mentioned act as stated earlier imposes a duty upon the
court when it finds a person under 21 years of age guilty
of an offence punishable with imprisonment other than
imprisonment for life number to sentence him to imprisonment
unless the companyrt is satisfied that having regard to the
circumstances of the case including the nature of the
offence and the character of the offender it would number be
desirable to deal with him under sections 3 or 4 of the act
but to award a sentence of imprisonment to him. the under-
lying object of the above provisions obviously is that an
accused person should be given a chance of reformation which
he would lose in case he is incarcerated in prison and
associates with hardened criminals. so far as persons who
are less than 21 years of age are companycerned special
provisions have been enacted to prevent their companyfinement in
jail at young age with a view to obviate the possibility of
their being subjected to the pernicious influence of
hardened criminals. it has accordingly been enacted that in
the case of a person who is less than 21 years of age and is
convicted for an offence number punishable with imprisonment
for life he shall number be sentenced to imprisonment unless
there exist reasons which justify such a companyrse. such
reasons have to be recorded in writing. according to section 18 of the probation of offenders act
the aforesaid act shall number affect the provision of sub-
section  2  of section 5 of the prevention of companyruption
act 1947  act 2 of 1947 . the last mentioned provision
namely sub-section  2  of section 5 of the prevention of
corruption act prescribes in the absence of special
reasons a minimum sentence of imprisonment for a term of
number less than one year for those companyvicted
under section 5 of that act. if the object of the
legislature was that the provisions of the probation of
offenders act should number apply to all cases where a minimum
sentence of imprisonment is prescribed by the statute there
was numberreason to specify subsection  2  of section 5 of the
prevention of companyruption act in section 18 of the probation
of offenders act. the fact that out of the various offenses
for which the minimum sentence is prescribed only the
offence under sub-section  2  of section 5 of the prevention
of companyruption act has been mentioned in section 18 of the
probation of offenders act and number the other offenses for
which the minimum sentence is prescribed shows that in case
of such other offenses the provisions of probation of
offenders act can be invoked. the provisions of probation of offenders act in our
opinion point to the companyclusion that their operation is number
excluded in the case of persons found guilty of offenses
under the prevention of food adulteration act. assuming
that there was reasonable doubt or ambiguity the principle
to be applied in companystruing a penal act is that such doubt
or ambiguity should be resolved in favour of the person who
would be liable to the penalty  see maxwell on
interpretation of statutes p. 239 12th edition . it ha
also to be borne in mind that the probation of offenders act
was enacted in 1958 subsequent to the enactment in 1954 of
the prevention of food adulteration act. as the legislature
enacted the probation of offenders act despite the existence
on the statute book of the prevention of food adulteration
act the operation of the provisions of probation of
offenders act cannumber be whittled down or circumscribed
because of the provisions of the earlier enactment viz. prevention of food adulteration act. indeed as mentioned
earlier the number-obstante clause in section 4 of the
probation of offenders act is a clear manifestation of the
intention of the legislature that the provisions of the
probation of offenders act would have effect numberwithstanding
any other law for the time being in force. we may also in
this companytext refer to the decision of this companyrt in the case
of ramji missir v. state of bihar 1  wherein this companyrt
while dealing with the probation of offenders act observed
that its beneficial provision should receive wide
interpretation and should number be read in a restricted sense. adulteration of food is a menace to public health. the
prevention of food adulteration act has been enacted with
the aim of eradicating that anti-social evil and for
ensuring purity in the articles of food. in view of the
above object of the act and the intention of the legislature
as revealed by the fact that a minimum sentence of
imprisonment for a period of six months
 1  1962 suppl. 2 s.c.r. 745.
and a fine of rupees one thousand has been prescribed the
courts should number lightly resort to the provisions of the
probation of offenders act in the case of persons above 21
years of age found guilty of offenses under the prevention
of food adulteration act. as regards persons under 21 years
of age however the policy of the law appears to be that
such a person in spite of his companyviction under the
prevention of food adulteration act should number be deprived
of the advantage of probation of offenders act which is a
beneficent measure and reflects and incorporates the modern
approach and latest trend in penumberogy. mr. mahajan has argued that if the trial magistrate took the
view that the accused-appellant in view of ms age should
number be sentenced to undergo imprisonment the learned
magistrate should still have imposed the sentence of fine as
prescribed by subsection  1  of section 16 of the act. in
this respect we are of the opinion that a sentence of fine
also carries with it the companysequence of imprisonment in case
the accused fails to pay the fine. as the object of
probation of offenders act is to avoid imprisonment of the
person companyered by the provisions of that act the said
object cannumber be set at naught by imposing a sentence of
fine which would necessarily entail imprisonment in case
there is a default in payment of fine. the high companyrt in the present case did number companysider the pro-
visions of the probation of offenders act and its attention
does number appear to have been invited to the mandatory
provisions of section 6 of that act.


1995  4  suppl. scr 261

the judgment of the companyrt was delivered by g.b. pattanaik j. delay
condoned. leave granted. these two applications are directed against the judgment dated 24.5.93 of
the central administrative tribunal in o.a. number 479/86 one at the instance
of union of india and the other at the instance of an employee shri o.s. singh. perennial dispute of determining inter se seniority between a direct
recruit and a promotee in the indian police service and the ticklish issue
of year of allotment has cropped up again in these two applications. the
appellant shri o.s. singh had joined as deputy supdt. of police on
26.11.1965 after being selected by the state public service companymission. the
recruitment to the indian police service is made under ips  recruitment
rules 1954  hereinafter referred to as the recruitment rules . under
rule 4 thereof recruitment is made both by companypetitive examination as well
as by promotion of substantive member of a state police service. under sub-
rule 2  of rule 6 of the recruitment rules the initial appointment of
person recruited to the service under clause  a  of sub-rule  1  of rule 4
shall be in the junior time scale of pay and under sub-rule  3  of rule 6
the initial appointment of person recruited to service under clause  b  of
sub-rule  1  of rule 4 shall be in the senior time scale of pay. thus an
officer of the state police service on being promoted is recruited in the
senior time scale of pay of the indian police service. rule 9 of the
recruitment rules provides that the central government may on the
recommendation of the state government companycerned and in companysultation with
the companymission recruit to the service persons by promotion from amongst
the substantive members of a state police service in accordance with such
regulation as the central government after companysultation with the state
government and the companymission from time to time make. in pursuance of sub
rule  1  of rule 9 of the recruitment rules the regulation has been framed
for appointment by promotion to the indian police service called the indian
police service  appointment by promotion  regulation 1955  hereinafter
referred to as the promotion regulation . under the iiird proviso to sub
regulation  2  of regulation 5 of the promotion regulation a member of the
state police service is entitled to be companysidered for being included in the
select list if he is companytinuing in the state police service on a
substantive basis and has companypleted number less than 8 years of companytinuous
service in the post of deputy supdt. of police or any other post or posts
declared equivalent thereto by the state government by the 1st day of
january of the year in which the companymittee meets for preparation of the
select list. the select list which is approved by the companymission forms the
select list of the members of the state police service under sub regulation
 3  of regulation 7 of the promotion regulation. in accordance with
regulation 9 of the said promotion regulation appointment to the indian
police service is made by the central government on the recommendation of
the state government in the year in which the names of the members of the
state police service appeared in the select list for the time being in
force. the name of shri o.s.singh had number been included in the select list
prepared during 1974 to 1976 as some adverse remarks were there against
him in the c.r. though one of his junior in the state police service shri
kali charan was included in the select list on 12th july 1974. on a
representation being filed for expunction of the adverse remarks by the
appellant shri o.s.singh the government expunged the same on 1.1.1976.
said shri singh was allowed to officiate against a senior post in indian
police service with effect from 30.8.78 after he was brought on to the
select list in the year 1977. as his case had been overlooked for being
brought on to the select list during 1974-1976 on the basis of certain
adverse entries and the adverse entries stood expunged by the government a
writ petition was filed in the year 1984 in himachal pradesh high companyrt
seeking mandamus to the state government to re-consider the case of shri
singh. the said writ petition was registered as c. writ petition number 661 of
1984. by an interim order dated 18.12.1984 the high companyrt directed that the
competent authority would re-examine the case of shri o.s. singh in the
light of the decision of this companyrt in amar kant chawdhary v. state of
bihar ors. 1984 2 scr 299. the state government intimated the high
court on 11.3.1985 that the selection companymittee has reconsidered the case
of shri o.s. singh and necessary recommendation in being made to the union
government for appropriate orders. the high companyrt therefore directed that
the final decision be taken in the case of shri o.s. singh on the
recommendation of the selection companymittee. on 5th july 1985 the standing
counsel appearing for the union of india intimated the companyrt that the
government of india has taken the decision to appoint shri o.s. singh to
the indian police service with effect from 31.3.1976 and that his seniority
will be determined accordingly. in view of the aforesaid decision of the
government of india the writ petition filed by shri singh became
infructuous and was withdrawn with the liberty to approach the companyrt again
if any part of the relief is number finally granted. the government of india
by its letter dated 23rd july 1985 intimated shri o.s.singh that his year
of allotment under rule 3  3   b  of the ips  regulation of seniority
rules 1954  hereinafter referred to as the seniority rules  is 1970 and
the inter se seniority of the officers was also indicated therein
whereunder shri singh was shown senior to shri ashwini kumar the
respondent number 4 in special leave petition number 5394 of 1993. the said
respondent number 4 filed an application before the central administrative
tribunal principal bench new delhi challenging the aforesaid order of
the government of india dated 23rd july 1985. the tribunal having quashed
the aforesaid order of the government of india and having directed to place
shri ashwini kumar above shri singh in the seniority list of ips officers
in the state of himachal pradesh the two special leave petitions have been
filed as already stated. the tribunal on an analysis of the provisions of
the seniority rules more particularly rule 3 3  b  thereof came to the
conclusion that shri singh having started companytinuous officiation in the
senior post on 30.3.1978 his year of allotment must be determined by
finding out who was the junior most officer recruited to the service in
accordance with rule 7 who officiated companytinuously in a senior post from a
date earlier than shri singh. he having found that shri ashwini kumar was
the junior most officer amongst the direct recruits who had officiated
continuously in a senior post earlier to 30.3.78 the year of allotment of
shri singh must be determined according to the year of allotment of shri
ashwini kumar. and as such the tribunal held that it must be 1973.
consequently the tribunal held shri ashwini kumar to be senior to shri
singh. shri reddy learned additional solicitor general companytended that the
tribunal companymitted gross error of law in number taking into account the
retrospective appointment of shri singh to the indian police service with
effect from 31.3.1976 and determined the year of allotment of shri singh
only by taking into companysideration his companytinuous officiation in a senior
post with effect from 30.3.1978 by literally applying rule 3 3  b  of the
seniority rules. according to learned additional solicitor general the case
of shri singh having been reconsidered after expunction of the adverse
entries in pursuance to the interim direction of the high companyrt and the
government of india having appointed said shri singh to the indian police
service w.e.f. 31.3.1976 the companyclusion is inescapable that his seniority
has to be determined on the basis that he is borne in the cadre in the
indian police service with effect from 31.3.1976 and by numberstretch of
imagination the period from 31.3.1976 till 30.3.1978 can be ignumbered. mr.
gautam learned companynsel appearing for respondent number 4 shri ashwini kumar
on the other hand companytended that in view of the decision of this companyrt in
syed khalid rizvi ors. etc. v. union of india ors. etc.  judgment today
 suppl.  169  the year of allotment of shri singh has to be determined in
accordance with rule 3  3  b  of the seniority rules and that being so said
shri singh having companytinuously officiated in a senior scale of pay in the
indian police service with effect from 30.3.1978 the tribunal rightly
determined the year of allotment of shri singh as well as the inter se
seniority of shri singh and shri ashwini kumar. he further companytended that
the retrospective appointment of shri singh to the indian police service
with effect from 31.3.1976 is of numberconsequence for determining his year of
allotment and the same has to be determined under rule 3 3  b  of the
seniority rules and the tribunal has number companymitted any error by holding
shri ashwini kumar to be senior to shri o.s. singh. in view of the rival submissions at the bar the question that arises for
consideration is whether the year of allotment of an officer of the state
police services has to be determined in accordance with rule 3 3  b  of the
seniority rules numberwithstanding the fact that his case had been ignumbered
from companysideration erroneously and later on the mistake was rectified and
he was appointed to the indian police service with effect from an anterior
date on which date he would have otherwise been entitled to be appointed. to appreciate this point at the companyt of repetition it would be appropriate
to numberice the admitted facts. shri o.s. singh who was a deputy supdt. of
police in the state police service on substantive basis and had companypleted
more than 8 years of service by the year 1974 and companyld have been placed in
the select list but for the adverse entries in his c.r. the adverse entries
having been expunged he had approached the high companyrt of himachal pradesh
for a direction to the appropriate authorities for reconsideration of his
case. the high companyrt by an interim order had called upon the state
government to reconsider his case. the state government on reconsideration
recommended for his appointment to the indian police service from an
anterior date. finally the government of india in companysultation with the
union public service companymission appointed said shri singh to the indian
police service with effect from 31.3.1976. it is under these admitted
facts the companyrectness of the decision of the tribunal has to be decided
upon. it is numberdoubt true that in rizvis case  supra  this companyrt has
observed that the year of allotment of an officer who was appointed to the
service by promotion shall be determined in accordance with rule 3 3   b
of the seniority rules. but the companyrt was number faced with a situation as in
the case in hand where the case of the promotee had been ignumbered from
consideration and on re-consideration the promotee has been appointed
retrospectively with effect from 31.3.1976. in our companysidered opinion the
tribunal companymitted gross error in deciding the year of allotment of shri
singh only by taking into companysideration his date of companytinuous officiation
in the senior post with affect from 30.3.1978 and ignumbering the order of the
central government on re-consideration appointing shri singh to the indian
police service with effect from 31.3.1976. as has been numbericed earlier
under sub-rule  3  of rule 6 of the recruitment rules the initial
appointment of a promotee to the indian police service is in the senior
time scale of pay. when shri singh was appointed to the indian police
service with effect from 31.3.1976 in the eye of law it must be held that
he has been companytinuing in the senior post with effect from that date and
therefore his seniority vis-a-vis the direct recruits like respondent number
4 cannumber be determined by determining his factual officiation in a senior
post with effect from 30.3.1978. the benefit companyferred upon him on
reconsideration and appointing him to the indian police service
retrospectively with effect from 31.3.1976 cannumber be taken away for the
purpose of determining his year of allotment and seniority in the cadre. the central administrative tribunal in our companysidered opinion companymitted
error in totally ignumbering the effect of retrospective appointment of shri
singh to the indian police service with effect from 31.3.1976. taking this
into companysideration the central government rightly determined the year of
allotment of shri singh as well as inter se seniority vis-a-vis the
respondent number 4 shri ashwini kumar in its letter dated 23rd july 1985. in
fact in a.k. chowdharys case  supra  in somewhat similar circumstances
this companyrt had directed for reconsideration of the case of the promotee and
observed that on reconsideration if the employee is selected from any
anterior date then he shall be entitled to the seniority and other
consequential benefits flowing therefrom. seniority in the service is governed by the year of allotment. provisions
for assignment of year of allotment are companytained in rule 3 of the
seniority rules. in the seniority rules clause  a  of sub-rule  3  of rule
3 makes provision for assignment of year of allotment to an officer who is
appointed to the service by direct recruitment. the year of allotment of
such an officer is the year following the year in which the companypetitive
examination  on the basis of which he was recruited  was held. in respect
of officers who are appointed to the service by promotion provision is made
in clause  b  of rule 3 3  which read as under

where the officer is appointed to the service by promotion in
accordance with rule 9 of the recruitment rules the year of allotment of
the junior-most among the officers recruited to the service in accordance
with rule 7 of these rules who officiated companytinuously in a senior post
from a date earlier than the date of companymencement of such officiation by
the former. this provision envisages assignment of the year of allotment to a promotee
officer with reference to the year of allotment assigned to the junior-most
among the officers recruited to the service by direct recruitment who had
officiated companytinuously in a senior post from a date earlier than the date
of companymencement of the officiation on a senior post in the service by the
promotee officer. in other words for the purpose of seniority a promotee
officer is treated at par with a directly recruited officer who had been
officiating in a senior post. this appears to be so for the reason that
under rule 6 of the recruitment rules the initial appointment of a person
appointed by way of direct recruitment is in the junior time scale while
the initial appointment of a person appointed to the service by way of
promotion from the state police service is in the senior time scale. the
governing factor for assignment of year of allotment under rule 3  3  b
is therefore the companytinuous officiation in a senior post by a directly
recruited officer as well as the promotee officer. in service jurisprudence a distinction is made between a substantive
appointment and an officiating appointment. while substantive
appointment companyfers on the person so appointed a substantive right to the
post an officiating appointment does number companyfer any such substantive
right. the appointment on officiating basis is usually made when the
incumbent substantively holding that post is on leave or when the permanent
post is vacant and numbersubstantive appointment has yet been made to that
post such an officiating appointment companyies to an end on the return of the
incumbent substantively holding the post from leave in the former case or a
substantive appointment being made to that permanent post in the latter
case. an appointment on officiating basis is from the very nature of such
employment itself of a transitory character and under the ordinary law of
master and servant ls terminable at any time.  see parshotam lal dhingra

union of india 1958 scr 828 at p. 841-842 . the expression
officiated companytinuously in a senior post in rule 3 3  b  of the seniority
rules must therefore be companystrued to mean holding a senior post on
officiating basis prior to substantive appointment on such senior post. since a person cannumber be treated as officiating on a post after he has been
substantively appointed on that post the said expression cannumber be
construed as referring to the period of officiation subsequent to the date
of substantive appointment. for ascertaining the period of companytinuous
officiation on a senior post which is required to be taken into
consideration for the purpose of assigning the year of allotment to a
promotee officer rule 3 3   b  has to be read with explanation i wherein
it has been prescribed that in respect of an officer appointed to the
service by promotion for the purpose of determination of his seniority the
period of his companytinuous officiation in a senior post shall companynt only from
the date of the inclusion of his name in the select list or from the date
of his officiating appointment to such senior post whichever is later. thus
two companyditions are required to be fulfilled  i  inclusion of the name in
the select list prepared for the purpose of promotion under the recruitment
rules and promotion regulations and  ii  companytinuous officiation on a
senior post. explanation i postulates that both these companyditions must company
exist for a promotee officer to take the benefit of companytinuous officiation
in a senior post from the date prior to the date of his substantive
appointment. but there may be a situation when a person is appointed to the service by
promotion without his having officiated on a senior post prior to his
substantive appointment. how is the year of allotment to be assigned to
such an officer? a literal interpretation of rule 3 3   b  of the seniority
rules would lead to the result that rule 3 3  b  when it talks of
continuous officiation in a senior post only envisages cases where an
officer before his substantive appointment to the service has officiated in
a senior post and it does number make any provision in respect of a situation
where an officer is appointed substantively to the service without his
having officiated in a senior post prior to his substantive appointment to
the service. in other words rule 3 3  b  suffers from casus omissus. before we reach this companyclusion it may be pointed out that judicial
decisions reveal two trends. one view which reflects the traditional
approach is that the companyrt cannumber legislate for casus omissus and that if
there is a gap or an omission in the statute the lacuna cannumber be supplied
by the companyrt by judicial companystruction and that it is for the law making
authority to remove the defect.  see smt.hira devi and ors. v. district
board shahjahanpur 1952 scr 1122 at p. 1131 and nalinakhya bysack v.
shyamsunder 1953 scr 533 at p.545 . here also the approach is that the
court cannumber so interpret a statute to produce a casus omissus where there
is really numbere.  see the mersacy docks harbour board v. penbusan
brothers  1885  13 a.l. 595 at p 602 state of karnataka v. union of
india 1978  2  scr 1 at p. 65. the other view has been thus put forward
forcefully by denning l.j. as the learned master of rolls then was in
seaford companyrt estates limitedv asher 1949 2 all e.r. 155

when a defect appears a judge cannumber simply fold his hands and blame the
draftsman. he must set to work on the companystructive task of finding the
intention of parliament and then he must supplement the written words so as
to give force and life to the intention of the legislature. a judge
should ask himself the question how if the makers of the act had
themselves companye across this ruck in the texture of it they would have
straightened it out? he must then do as they would have done. a judge must
number alter the material of which the act is woven but he can and should
iron out the creases  p. 164

again in magor st. mellons rural district companyncil v newport companyporation
1951 2 all e.r. 1226 the learned judge has said

we sit here to find out the intention of parliament and of ministers and
carry it out and we do this better by filling in the gaps and making sense
of the enactment than by opening it up to destructive analysis.  at. 1236

although the said views of lord denning have number been approved by the house
of lords in magor st. mellons rural district companyncil 1951 2 all e.r. 839 they have been referred to with approval by this companyrt.  see state
of bihar v. a.k. mukherjee 1975  2  scr 894 at p. 902 state of kamataka
anr. v. m s. hansa companyporation 198l  1  scr at p. 833 . the
observations of viscount simonds in the house of lords disapproving the
observations of denning l.j. referred to above have also been referred to
with approval in punjab land and development companyporation v. presiding
officer labour companyrt 1990  3  scr 111 at p. 153-154.

if rule 3 3   b  is so read as to effectuate the intention of the rule
making authority then the companysiderations referred to therein which apply in
the matter of assignment of year of allotment in cases where an officer has
officiated prior to the date of his substantive appointment must
necessarily apply for the purpose of assigning the year of allotment of an
officer who has been substantively appointed without being required to
officiate. in such a case his year of allotment will have to be determined
with reference to the year of allotment of junior-most among the officers
directly recruited to the service who officiated companytinuously in a senior
post from a date earlier than the date of substantive appointment of the
promotee officer. for that purpose the expression such officiation in the
context of the promotee officer in rule 3 3  b  will have to be companystrued
as meaning substantive appointment in cases where the promotee did number
officiate in a senior post before his substantive appointment to the
service. the said companystruction would also govern a case like the present
one where an officer has been wrongly denied promotion to the service and
the said wrong is rectified later by the companypetent authority by appointing
the officer who was denied promotion with effect from the date on which he
should have been so appointed by way of promotion. such an officer may have
officiated in a senior post prior to the passing of the order of
substantive appointment but he may number have officiated in a senior post
prior to the date from which he has been substantively appointed. once the
error in the matter of his promotion is rectified and he has been given
substantive appointment from an anterior date on which he should have been
promoted the year of allotment has to be assigned to him having regard to
the date from which his substantive appointment becomes operative even
though he did number officiate in a senior post prior to the said date of
substantive appointment. his year of allotment cannumber be depressed on the
basis that he had started officiating on a senior post from a date later
than the date with effect from which he has been substantively appointed to
the service. we arrive at the same result if we proceed on the basis that there is a
casus omissus in rule 3 3  b  in the matter of assignment of year of
allotment for an officer appointed by promotion who has number officiated
prior to his substantive appointment to the service and the said omission
cannumber be filled by the companyrt by judicial interpretation. this would only
mean that the seniority rules are silent in the matter of assignment of
year of allotment of such a promotee officer. in that event the companypetent
authority can assign the year of allotment to such an officer in exercise
of its administrative discretion.  see sant ram sharma v. state of
rajasthan 1968  1  scr at p. 119 . the order dated july 23 1985 passed
by the central government assigning the year of allotment to shri o.s. singh has to be treated as passed by to central government in exercise of
its administrative discretion. the only question that would arise in
respect of such an order is whether in the exercise of its administrative
discretion the central government has acted arbitrarily. having regard to
the facts and circumstances of the case it is number possible to take the
view that in the matter of assignment of year of allotment of shri o.s. singh the central government has acted arbitrarily. the central government
appears to have followed the scheme underlying rule 3 3  b  and has
assigned the year of allotment on the basis of the date on which the
substantive appointment of shri o.s.