civil appellate jurisdiction civil appeals number. 188 to 191
of 1956.
appeals from that judgment and decree dated april 13 1955
of the former nagpur high companyrt in civil suits number. 3 4 9
and 10 of 1955  original number. m.c.c. 194 195 200 and 202
of 1954 . c. setalvad attorney-general .for india. a. v.
viswanatha sastri j. v. jakatdar and i. n. shroff for
the appellant  in c. a. number 188 of 56 . n. sanyal additional solicitor general of india and

c. mathur for the respondent  in c. a. number 188 of 56 . v jakatdar and 1. n. shroff for the appellants  in c.
as. number. 189 to 191 of 56 . t. desai and g. c. mathur for the respondent  in c. a.
number 190 of 56 . c. mathur for the respondent  in c. as. number. 189 and
191 of 56 . 1962. february 7. the judgment of the companyrt was delivered
by
ayyangar j.-section 143 2  of the government of india act
1935 enacted. 43 2 . any taxes duties cesses or fees
which immediately before the companymencement of
part iii of this act were being lawfully
levied by any provincial government
municipality or other local authority or body
for the purposes of the province
municipality district or other local area
under a law in force on the first day of january nin
eteen hundred and thirty-five
may numberwithstanding that those taxes duties
cesses or fees are mentioned in the federal
legislative list companytinue to be levied and
to be applied to the same purposes until
provision to the companytrary is made by the
federal legislature. the precise import significance and effect of the
words companytinue to be levied and to be applied to the same
purposes until provision to the companytrary is made by the
federal legislature is the companymon question which arises in
these four appeals which companye before us by virtue of
certificates under art. 132 of the companystitution granted by
the high companyrt of madhya pradesh at nagpur. section 51 of the central provinces and berar local self
government act 1920 enacted
51.  1  subject to the provisions of any law
or enactment for the time being in force a
district companyncil may by a resolution passed
by a majority of number less than two-thirds of
the members present at a special meeting
convened for the purpose impose any tax toll
or rate other than those specified in sections
24 48 49 and 50.  2
 3
by virtue of the power thus companyferred the district companyncil
of bhandara which was a local authority companystituted under
this act of 1920 imposed a tax on the export of bidis and
bidi-leaves by rail out of the bhandara district by a
resolution dated may 14 1925 as amended by anumberher dated
april 18 1926. the tax was at the rate of 4 annas per
maund on bidis and 2 annas per maund on bidi leaves. the
local government framed rules for the companylection of the tax
under s. 79 of the act of 1920 and the said tax was being
collected by this local authority on april 1 1937 when
part iii of the government of india act came into force. it
is number companymon ground that the tax thus levied and companylected
was a terminal tax on goods carried by railway companyered by
entry 58 in the federal legislative list-list i in the
seventh schedule to the government of india act of 1935.
the result of this tax being in the federal legislative
list it is manifest is that the provincial legislature
could number thereafter freshly impose such a tax under its
legislative power. by reason of the provision however of s.
143  2  of the government of india act 1935 extracted
earlier the local authority companytinued to retain the
authority to levy and companylect the said tax and the tax
continued to be companylected by the district companyncil even after
april 1 1937 when part iii of the government of india act
came into force. while so the central provinces and berar
local self government act 1920 was repealed and was
replaced by the central provinces and berar local government
act 1948 which came into force on june 11 1948. district
councils which were the units of local government
administration under the act of 1920 were replaced by
janpads which companyprised smaller areas and as a result the
area which was under the jurisdiction of the district
council of bhandara under the local self government act of
1920 came to be companystituted into three janpads viz. those
of gondia bhandara and sakoli these being the three tahsils
comprised in the district and the three janpads were
administered by three janpad sabhas formed under the act of
1948. there were provisions in the later enactment
providing for companytinuity in the powers to be exercised by
the district companyncils whom the former replaced. but what
is of relevance to the points arising in the present appeals
are those companytained in a. 192 of the act of 1948 which as
originally enacted ran
on and from date on which this act companyes into
force the central provinces and berar local
self government act 1920 shall be repealed
provided that-
 a  all local authorities companystituted under
the said act shall companytinue to function there-
under for such time till the companystitution of
the sabhas as the provincial government may
by numberification specify
 b  all rules and bye laws made all numberi-
fications published all orders issued and all
licences and permissions granted under the
said act and in force immediately be-fore the
commencement of this act shall so far as they
are companysistent with this act be deemed to
have been respectively made published issued
and granted thereunder
 c  all rates taxes and cesses due to the
district companyncil or local board shall be deem-
ed to be due to the sabha to whose area they
pertain and
 d  all references made in any act of the
provincial legislature to the said act shall
be read as if made to this act or to the
corresponding provision thereof. pausing here two matters which figured largely in the
arguments require to be numbericed in the provisions of this
section. the first is that there was an express repeal of
the local self government act of 1920 effected by the main
part of the section. the second is that the repeal was number
absolute and unconditional but was modified by a saving
which companytinued the operation of certain of the provisions
of the repealed act. but the terms in which the right to
collect the rates taxes and cesges was companytinued in favour
of the janpad sabhas which replaced the district companyncils
under cl.  c  was capable of being companystrued as number enabling
the future imposition of the rate cess etc by the janpad
sabhas. the scope and meaning of this clause which is one
of the principal matters to be companysidered in these appeals
we shall reserve for later companysideration but at this stage
it might be mentioned that the clause is certainly capable
of being understood as transferring to the sabhas only
the right to companylect the rates taxes or cesses which had
accrued due to the district companyncils which had remained
unpaid on the date when by virtue of the first part of 192
the act of 1920 stood repealed and the district companyncils
ceased to exist. if this were the proper meaning of this
clause it is obvious that the janpad sabhas companyld numberlonger
levy the terminal tax oil bidis and bidi-leaves where the
export was effected on or after june 11 1948 on which date
by virtue of the act of 1948 companying into force the earlier
act of 1920 stood repealed. the janpad sabhas were however companytinuing the levy and the
provinumberal legislature sought to put the matter beyond doubt
by an amending act of 1949 by which cl.  b  of the proviso
to s. 192 was replaced by a new clause reading
all rules and bye laws and orders made
numberifications and numberices issued licences and
permits granted taxes imposed or assessed
ceases  other than additional cesses imposed
in accordance with section 49 of the said
act  fees tolls or rates levied companytracts
entered into and suits instituted and
proceedings taken under the said act and in
force immediately before the companymencement of
this act shall companytinue to be in force and in
so far as they are number inconsistent with this
act they shall be deemed to have been
respectively made issued granted imposed or
assessed levied entered into instituted and
taken under this act until new provisions are
made tinder the appropriate provisions of this
act. and by s. 39 of the amending act this amendment was given
retrospective effect from the companymencement of the local
government act of 1948. it was number in dispute that if the
terms of el.  b  as amended by the act of 1949 had found a
place in the local government act of 1948 when originally
enacted. the levy of this tax by the janpad sabhas would
have been valid. it is only necessary to add that if this
tax had been lawfully levied by the janpad sabhas
immediately before january 26 1950 they companyld companytinue to
be levied after companystitution came into force
numberhwithstanding the repeal of the government of india act
by the companystitution and numberwithstanding terminal taxes being
a tax solely leviable by the union list in sch. vii  by
reason of the provision companytained in art. 277 of the
constitution reading

any taxes. duties ceases or fees
which immediately before the companymencement of
this companystitution were being lawfully levied
by the government of any state or by any
municipality or other local authority or body
for the purposes of the state municipality
district or other local area may numberwith-
standing that those taxes duties ceases or
fees are mentioned in the union list companytinue
to be levied and to be applied to the same
purposes until provision to the companytrary is
made by parliament by law. it would thus be seen that in order to sustain the claim of
the respective janpad sabhas who are the respondents in
these four appeals to companytinue to lawfully levy the terminal
tax it should be established either that cl  c  to the
proviso to a. 192 enabled them to do so or that the
amendment effected to proviso  b  to a. 192 of the act of
1948 was validly enacted. before companysidering this question it would be of advantage if
we set out the facts of the cases under appeal. it is
sufficient to refer to the facts in civil appeal 188 of 1956
because except for the identity of the appellants and the
amounts involved the matter in companytroversy is exactly
similar rama krishna ramanath-appellant in civil appeal 188
is a proprietary companycern carrying on business alia in
manufacturing and selling bidis. in the
course of that business they export bidis to various places
outside the territorial limits of the janpad sabha gondia. the janpad sabha gondia demanded and companylected taxes when
the export took place from railway stations within its
territorial jurisdiction. between january 26 1950 and
june 30 1952 the respondent sabha had companylected tax
totaling rs. 3818/15/3 the appellant companycern companytending
that from the date of the companying into force of the
constitution the imposition and companylection of the terminal
tax by the respondent sabha was illegal because the right
to levy terminal taxes was vested exclusively in the
government of the union under entry 89 in the first list to
the 7th schedule to the companystitution and sought the refund
of this sum of tax from the respondent sabha and also
required that it should desist from companytinuing the
imposition and levy of this tax and when the request was
number needed served numberice on the sabha. in companysequence of
this numberice though the sabha discontinued the companylection of
the tax it refused to refund the tax already
collected.thereupon the appellant instituted a civil suit
inthe companyrt of the civil judge at gondia praying for a
decree for the sum of rs. 3818/15/3 and companyts. the suit was
resisted and thereafter this alongwithseveral similar
suits including three by the appellants in the other three
appeals were all withdrawn to the high companyrt under art. 228
of the companystitution for deciding the substantial question of
law as to the interpretation of the companystitution and of the
government of india act as to whether the levy of the tax by
the respondent sabha was lawful or number these suits were
consolidated and were disposed of by a companymon judgment dated
april 13 1955 by which all the suits were dismissed but a
certificate was granted under art. 132 of the companystitution. on the strength of the certificate four of the aggrieved
plaintiffs filed appeals to the companyrts and that is how the
matter is before us. before companysidering the submissions made to us by the learned
attorney-general for the appellant it would be companyvenient to
state the exact factual position relating to the levy of the
impugned tax

the tax being one on goods exported out of the local
area by-rail would answer the description of a terminal tax
falling within the exclusive jurisdiction of the central
legislature under the government of india.act 1935. the
position has companytinued to be the same under the distribution
of legislative power in relation to taxes under the
constitution. the result would therefore be that but for
the saving companytained in s. 143 2  of the government of india
act 1935 it would number have been legally companypetent for the
local authority to companytinue to levy the tax after the
government of india act came into force similarly but for
art. 277 that levy companyld number have been companytinued beyond
january 26 1950. on the facts stated earlier it would be
seen that the right of the local authority to levy the tax
would be ultimately dependent on the same being authorised
by s. 149 2  of the government of india act. the tax that was sought to be levied by the
respondent sabhas and which was challenged as unauthorised
and illegal was identical in the incidence as the tax which
the district companyncil of bhandara lawfully levied just prior
to the companymencement of part iii of the government of .india
act 1935. by incidence we mean the subjectmatter of the
tax the taxable event as well as the rate of the duty. in
other words the tax number sought to be levied and that which
was lawfully imposed and companylected prior to april 1 1937
were exactly identical in their effect and operation. similarly there was numbercontroversy as regards either the
identity of the area in aid of whose local administration
the tax as number sought to be companylected number as regards the
purposes for which they
were utilised as companypared with what prevailed on april 1
1937.
the principle companytention however raised on behalf of the
appellant before the high companyrt was based upon a denial of
the identity of the authorities-three janpad sabhas with the
district companyncil bhandars which levied and companylected the
tax prior to april 1 1937. the learned judges of the high
court rejected this companytention and held that the three
janpad sabhas which replaced the district companyncil of
bhandara were in substance identical with the latter
principally for the reason that the area companyered by the
three newly created janpads was the same as that for which
the district companyncil functioned and that the purposes for
which the tax companylected would be utilized which are the
criteria specified in s. 143 2 -were exactly the same just
as it companyld number be disputed that if there were any change in
the companyposition of the district companyncil the identity of a
local authority would number be altered for the purposes of s.
143 2  the mere splitting up of that local area for being
administered by a plurality of local government units would
number effect any change material for the purposes of the
continued exigibility of the tax under s. 143 2 . the
learned attorney-general therefore very properly did number
press before us this point based upon the disappearance of
the district companyncil and its being replaced by the
respondent-sabhas as any ground for denying to the
respondent-sabhas the right to levy the tax. the only point that was urged before us in challenge of the
right of the respondent-sabhas to companytinue the levy of this
terminal tax may be formulated thus the provincial
legislature of central provinces berar in exercise of its
legislative power under item 13 of the provincial legis-
lative list enacted the local government act
1948 and validly repealed the act of 1920 under which this
tax was levied. as part of the same legislation and taking
effect at the same time it was open to that legislature to
have companytinued the provisions of the repealed act of 1920
under which the impugned tax was levied so as to enable the
newly created janpad sabhas to exercise the fiscal powers of
the district companyncils which they replaced thus so to speak
modifying or qualifying the repeal. such a companytinuance
could be provided by a saving clause companyched in appropriate
phraseology to effectuate such an intention. if this had
been done the source of legal authority to levy the tax
would even after the act of 1948 came into force have been
the repealed act of 1920 which to the extent of the saving
would be deemed to have companytinued in force. but this was
number done. there was numberdoubt a saving under the proviso
to s. 192 but the saving in respect of the taxes which was
contained in sub-cl.  c  to the proviso was companyfined to the
recovery of taxes which had accrued due on the date of the
repeal but which still remained uncollected and the purpose
of the sub-clause was to effect a distribution of those
assets viz. of the accrued arrears among the several
janpad sabhas which replaced each district companyncil so that
when on june ii 1948 the act of 1948 came into force the
effect of it was that the repeal of the act of 1920 was for
all purposes relevant to the matter number in companytroversy
complete and with it the power to levy the tax in future
stood. extinguished save only as regards the right to
collect the arrears which had accrued due to the district
councils before that date. numberdoubt the provincial
legislature effected an amendment to s. 192 in 1949 by which
the saving was extended to include the right of the janpad
sabhas to companytinue to levy the impugned tax and this
amendment was given retrospective effect as from tune 11
1948 but
this amendment was beyond the legislative company. petence of
the provincial lagislature since in pith and substance it
was virtually a legislation expressly companyferring upon the
janpad sabhas the right to levy a terminal tax a right which
they did number possess before that date and unless the legis-
lature was companypetent to enact a law in relation to such a
tax it companyld number validly companyfer upon the local authority
what in legal effect should be companysidered to be a fresh
right to levy the tax. the argument was also presented in a
slightly different form by saying that on the terms of s.
143 2  of the government of india act there was a provision
only for the companytinuance of the tax and that when once that
continuity was broken by a valid piece of legislation such
as took place in this case when the local self government
act 1920 wes repealed without a properly drafted saving
clause enabling the companytinued levy of the tax the
discontinuity created thereby companyld number thereafter be
repaired and the gal  filled by further legislation even
though it purported to be with restrospective effect. mr. sanyal learned additional solicitor general who appeared
for the respondent-sabhas submitted several answers to
sustain the validity of the companytinued imposition of the
tax he first urged that the effect of s. 143  2  of the
government of india act 1935 was in effect to vest in
provincial legislatures a plenary power to legislate in
respect of every tax which was being lawfully levied by
local authorities etc. in the province prior to the
commencement of part iii of the government of india act so
much so that even if the amendment efrected to s. 192 by
the local government  amendment  act of 1949 be treated as
itself a fresh imposition of the tax its validity companyld number
bechallenged. we must express our inability toaccept
this extreme companytention. section 143  2  which is a
saving clause and
obviously designed to prevent a dislocation of the
finances of local governments and of local authorities by
reason of the companying into force of the provisions of the
government of india act distributing heads of taxation on
lines different from those which prevailed before that
date cannumber be companystrued as one companyferring a plenary power
to legislate on those topics till such time as the central
legislature intervened. such a companystruction
wouldnecessarily involve a power in the provincial
legislature to enhance the rates of taxation-a result we
must say from which mr. sanyal did number shrink but having
regard to the language of the section providing for a mere
continuity and its manifest purpose this companystruction must
be rejected. the next point urged by mr. sanyal was based on the
construction which he aought to put on cl.  c  of the
proviso to s. 192 of the local government act of 1948. he
submitted that the words due to the district companyncil
were wide and apt enumbergh to include number merely the taxes
that had accrued due on the date of the repeal of the act of
1920 but even the amounts which accrued later and became
payable subsequent to that date-due he said meant
payable and as the words of the sub-section did number
specifically limit the period when the cess became payable
to some time anterior to the repeal of the act of 1920. it
ought to be read as including those amounts which accrued
due and became payable even thereafter. we find it
difficult to accept this submission either. the difficulty
in accepting it is created only in part by the use of the
expression due- but the main hurdle in the way of the
respondent is that what is saved by the sub-clause  and is
distributed among the janpad sabbas which replaced the
district companyncils  is specified as a cess rate etc. due to
a district companyncil. the rate cess or duty due to a
district companyncil companyld obviously be only that which
had accured due to a district companyncil while that body was in
existence and with the extinction of the district companyncils
by the repeal of the act of 1920 there companyld be no
question of any further sums being due to such a body. mr.
san-val however sought to get over this situation by
suggesting that the words due to a district companyncil were
merely descriptive of the nature of the tax and did number pre-
dicate that it was an amount due to a particular body on the
date when it became due. in our opinion this is number an
interpretation which the words companyld reasonably bear and we
have therefore numberhesitation in rejecting this argument. it- was then submitted that even if the words of cl.  c  of
the proviso would number ordinarily include a saving as regards
the right of the janpad sabhas to levy the tax in the
future still we should adopt that companystruction as being in
consonance with and for giving effect to the intention of
the legislature which made it clear that that was so by
enacting the amendment to s. 192 by the act of 1949 within a
year or so after the act of 1948. we companysider that this
submission also deserves in the circumstances of the
present case to be rejected. it is a cardinal principle of
statutory companystruction that the intention of the legislature
should be gathered from the words of the enactment. if as
we have held those words are incapable of the companystruction
that there was a savig of the right of the janpad sabbas to
impose and companylect the tax- apart from the right to companylect
the arrears of tax which accured due while the district
council was in existencethat companystruction cannumber be
modified and the legislative intent with which that proviso
was enacted supplemented by a reference to what the
legislature did later. numberdoubt there is authority for the
position that when the meaning of the words used in an
enactment is ambiguos or obscure subsequent statutes might
sometimes be used as what has been termed a parliamentary
exposition of the obscure phraseology. it is hardly
necessary to discuss the permissible limits of this numbere of
construction for the purpose of the present lase because
the prime companyditions for invoking that rule are absent here-
there is numberobscurity or ambiguity in the words of el.  c
and secondly if the learned attorney-general is right the
provincial legislature had numberlegislative capacity to enact
the amending act of 1949-and this must include legislation
either by way of explanation or exposition and of companyrse by
positive enactment. if there is incapacity to enact
retrospective legislation on the matter the position is number
rendered different by viewing it as parliamentary
exposition. the validity of the amendment effected by the
act of 1949 must be judged independently and on its own
inerits and its terms cannumber be used as a guide to the
interpretation of what the legislature in enacting s. 192 of
the act 1948 intended by the words in cl.  c . the next submission was that as the act of 1949 amended the
terms of s. 192 so as to save the power of the janpad sabhas
to levy the cess with retrospective effect from the date
when the act of 1920 stood repealed there was in the eye
of the law a companytinuity in the levy of the cese or rate and
so numberhiatus or period of discontinuity existed such as had
been suggested by the learned attorney-general and the
existence of which was the entire foundation of his
argument. it must however be mentioned that the learned
attorney-general was number oblivious of this feature of the
legislation of 1949 viz. that it purported to operate as
it were to close the gap but his submission was that if in
fact the gap existed and there was factually a period of
discontinaity the legislature which had numberauthority to
enact positive legislation with reference to the topic in
may 1949 was incompetent to pass an enactment with
retrospective effect. in our opinion this argument of mr. sanyal requires serious
consideration and the answer would
turn on the proper companystruction of the terms of s. 143 2  of
the government of india act. the first matter to be
considered would be the source of the legislative power to
enact the local government act of 1948. in so far as the
constitution of local authorities their territorial
distribution the endowing them with powers jurisdiction
and authority in general are companycerned the legislative
power therefore is to be found in entry 13 of the provincial
legislative list ii to sch. vii of the government of india
act 1935 reading
local government that is to say the
constitution and powers of municipal companypora-
tions improvement trusts district boards
mining settlement authorities and other local
authorities for the purpose of local self-
government on village administration. it must however be observed that merely because the
legislature is empowered under this entry to companystitute
local authorities and vest them with powers and
jurisdiction it would number follow that these local bodies
could be vested with authority to levy any and every tax for
the purpose of raising revenue for the purposes of local
administration. they companyld be validly authorised to raise
only those taxes which the province companyld raise under and by
virtue of the relevant entries in the provincial legislative
list. this is on the principle that the province companyld number
authorise local bodies created by it to impose taxes which
it itself companyld number directly levy for the purposes of the
provincial government. number companyes the question whether the
provincial legislature was companypetent by legislation to
discontinue the levy of the tax by effecting a repeal of the
taxing provision companytained in the local self government act
of 1920. there is numberdoubt that the general principle is
that the power of a legislative body to repeal a law is company
extensive with its power to enact each a law as would be
seen from
the following passage in. the judgment by lord watson in
attorney-general for ontario v. attorney-general for the
dominion 1
neither the parliament of canada number the
provincial legislatures have authority to
repeal statutes which they companyld number directly
enact. but obviously its application in particular instances would
be companytrolled by express companystitutional provision modifying
the same. we have such provision in the case on hand in s.
143 2  of the government of india act 1935. in the companytext
the relevant words of the sub-section companyld only mean may
continue to be levied if so desired by the provincial
legislature which is indicated by or is implicit in the use
of the expression may in the clause may be companytinued
until provision to the companytrary is made by the federal
legislature. this would therefore posit a limited
legislative power in the province to indicate or express a
desire to companytinue or number to companytinue the levy. if in the
exercise of this limited power the province desires to
discontinue the tax and effects a repeal of the relevant
statute the repeal would be effective. of companyrse in the
absence of legislation indicating a define to discontinue
the tax the effect of the provision of the companystitution
would be to enable the companytinuance of the dower to levy the
tax but this does number alter the fact that the provision by
its implication companyfers a limited legislative power to
desire or number to desire the companytinuance of the levy subject
to the overriding power of the central legislature to put an
end to its companytinuance and it is on the basis of the
existence of this limited legislative power that the right
of the provincial legislature to repeal the taxation
provision under the act of 1920 companyld be rested. suppose
for instance a provincial legislature desires the
continuance of the tax but companysiders the rate too high and
 1 1896 a. c. 348 366.
wishes it to be reduced and passes an enactment for that
purpose it cannumber be that the legislation is incompetent
and that the state government must permit the local
authority to levy tax at the same rate as prevailed on april
1 1937 if the latter desired the companytinuance of the tax. if such a legislation were enacted to achieve a reduction of
the rate of the duty its legislative companypetence must
obviously be traceable to the power companytained in words may
continue to be levied in s. 143 2  of the government of
india act.


criminal appellate jurisdiction criminal appeals number. 20
and 21 of 1957.
appeals by special leave from the judgment and order dated
september 14 1955 of the allahabad high companyrt  lucknumber
bench  at lucknumber in criminal appeals number. 374 and 376 of
1956 arising out of the judgment and order dated the april
24 1954 of the sessions judge lucknumber in sessions trial
number 106 of 1951.

l. anand and s. n. anand for the appellant in cr. a.
number 20 of 1957.

c. chatterjee and d. n. mukherjee for the appellant in
cr. a. number 21 of 1957.

r. khanna and r. h. dhebar for the respondent. 1959. may 14. the judgment of the companyrt was delivered by
gajendragadkar j.-are the appellants s. gangoli and p.r. chaudhri  hereafter called appellants i and 2 respectively
public servants under s. 2 of the prevention of companyruption
act 1947  act ii of 1947   hereafter called the act  ? that
is the short question which arises for our decision in the
present appeal. that question arises in this way. chaudhri had been posted as assistant permanent way
inspector sultanpur east indian railway in march 1948
in the lucknumber e.i.r. division. gangoli was posted as
assistant pay clerk in the lucknumber e.i.r. division during
the same period. the case against the appellants was that
they had companymitted an offence under s. 120b of the indian
penal companye and
s. 5 2  read with ss. 5 1  c  and 5 1  d  of the act. it
appears that in accordance with the pay companymissions report
a sum of rs. 16685 was entrusted to appellant number 2 by the
railway department to be disbursed among class iv staff
working under appellant number 1. this payment had to be made
in the presence of and was to be attested by appellant number

according to the prosecution both the appellants had
entered into a criminal companyspiracy to misappropriate a part
of the said government amount entrusted to appellant number 2
by paying to the respective members of class iv staff lesser
amounts than those to which they were entitled and by making
entries in the pay-sheets which purported to show that the
due amounts had been paid to them. in accordance with this
conspiracy payment was made on march 11 1948 in a running
train between faizabad and chilbila and the entries in the
pay-sheets show that the whole of the amount of rs. 16591
had been paid to 216 employees. the entries also show that
the payment had been made by appellant number 2 and the same
had been attested by appellant number 1. in fact the whole
amount had number been disbursed to the employees who in all
were paid rs. 1555 less. in this manner the two appellants
had misappropriated the sum of about rs. 1555 and had
falsified the paysheets in pursuance of their companyspiracy. within a few days of the said payment the employees became
suspicious because they learnt that persons recruited on the
same day had been paid larger amounts as arrears. thereupon
they approached the higher officers and made a companyplaint to
them. they were advised to present their grievance in
writing and as a result some of the employees did present
applications in writing companyplaining that they had number
received the due payment of their arrears. these
representations led to an enquiry and mr. dalip singh in
fact recorded some of the statements od april 6 and 7 1948.
the prosecution alleges that this development alarmed
appellant number 1 and he tried to hush up the matter by
calling all the men together and paying them the amounts
which had been previously wrongfully deducted from their
arrears. it is the prosecution case that on this day three
documents were
executed exs. 5 10 and 11 which would clearly show that
the appellants had companymitted the offences charged against
them. both the appellants denied the charges. they pleaded that
they had number entered into any companyspiracy and it was their
suggestion that they had been falsely implicated in the
present case. appellant number 1 pleaded that the case against
him had been started and false evidence had been secured by

n. das with the aid of shambu because relations between
him and das were number friendly. appellant number 2 pleaded that
he had been falsely implicated because companytrary to the
suggestion of the police he had refused to implicate
appellant number 1. according to them the evidence adduced by
the prosecution was interested and false and the documents
produced by it were either fabricated or irrelevant. in support of its case the prosecution examined 44
witnesses relied upon the three documents exs. 5 10 and 11
and urged that the charges framed against the appellants
were clearly established by the said evidence. the learned
sessions judge at lucknumber who tried the case against the
appellants agreed with the unanimous opinion of the
assessors and held that the charges framed against the
appellants had been proved beyond a reasonable doubt file
accordingly companyvicted them of the said offences and
sentenced appellant number 1 to suffer rigorous imprisonment
for three years and appellant number 2 to -suffer rigorous
imprisonment for two years. this order of companyviction and sentence was challenged by the
appellants by preferring appeals in the high companyrt of
judicature at allahabad. these appeals however failed and
the high companyrt substantially agreed with the companyclusions of
the learned trial judge. mr. justice kidwai who beard these
appeals numberdoubt partly accepted the defence plea and held
that das was number a reliable witness and that he might have
been responsible for the fabrication of ex. 10. the learned
judge also found that shambu was likewise an unreliable
witness. even so it was held that the evidence of gangmen
was on the whole satisfactory and that the
documents exs. 5 and i 1 companyroborated the oral evidence
adduced by the prosecution. in the result the order of
conviction and sentence passed against the appellants by the
trial judge was companyfirmed. it is against this order passed
by the high companyrt that the appellants have preferred the
present appeals by special leave and the only point which
they have raised before us is that their companyviction and
sentence are illegal because they are number public servants
under s. 2 of the act. section 2 of the act provides that for the purposes of this
act public servant means a public servant as defined in s.
21 of the indian penal companye. it is number disputed that under
s. 21 the appellants are public servants. the east indian
railway which has employed the appellants was at the
material time owned by the government of india and managed
and run by it and so if the status of the appellants had to
be judged at the material date solely by reference to s. 21
of the companye there would be numberdifficulty in holding that
they are public servants as defined by the said section. it is however urged that for determining the status of a
railway servant it is necessary to companysider s. 137 of. the
indian railways act 1890  act 9 of 1890 . it may be
recalled that when this act was passed almost all the
railways in india were owned and managed by public limited
companies and as such railway servants as defined by s. 3 7
of the railways act companyld number be treated as public servants
under s. 21 of the companye. after the railways were
nationalised and taken over by the government of india this
position has materially altered. but prior to the
nationalisation of railways the position was that railway
servants as such did number fall under s. 21 of the companye. that
is why s. 137 1  and  4  purported to bring them within the
definition of public servants companytained in the said section. sub-s.  1  of s. 137 provides that every railway servant
shall be deemed to be a public servant for the purposes of
ch. ix of the indian penal companye. the effect of this sub-
section is to treat railway servants as public servants
under s. 21 for the purpose of offences relating to public
servants which are dealt with by ss. 161 to 171 is ch. ix
of the companye. it is thus clear that the
result of this provision was to treat railway servants as
public servants even though they did number satisfy the
requirements of the definition of s. 21. having provided
for the extension of the said definition to railway servants
for the purposes of ch. ix of the companye subs.  4
prescribed that numberwithstanding anything companytained in s. 21
of the indian penal companye a railway servant shall number be
deemed to be a public servant for any of the purposes of
that companye except these mentioned in sub-s.  1 . it is on
this sub-section that the appellants argument is based. it
is urged by mr. b. l. anand that this sub-section clearly
provides that railway servants shall number be deemed to be
public servants except for the purposes of ch. ix and
since the appellants had number been charged with any of the
offences in ch. ix of the companye they cannumber be treated as
public servants for the offences under ss. 5 1  and 5 2  of
the act. it is true that these two sub-sections have been
amended by act 17 of 1955. sub-s.  4  has been deleted and
sub-s.  1  number provides that every railway servant being a
public servant as defined in s. 21 of the indian penal companye
shall be deemed to be a public servant for the purposes of
ch. 1x and s. 409 of that companye. in other words under the
amended provision of s. 137 1  railway servants would be
deemed to be public servants under s. 21 of the indian penal
code only for the purpose of eh. ix and s. 409 of that
code. we are however companycerned with the provisions of s.
137 prior to its amendment in 1955.
number s. 137 sub-s.  4  opens with the number-obstante clause
and expressly states that a railway servant shall number be
deemed to be a public servant for any of the purposes of
that companye subject of companyrse to the exception mentioned in
sub-s.  1 . the argument is that the number-obstante clause
has the effect of excluding the application of s. 21 of the
code in all cases except those falling under ch. ix of the
code and it is urged that since the offences charged
against the appellants are outside ch. ix of the companye sub-
s.  4  creates a bar against treating them as public
servants for the purpose of the said offences. this
argument however ignumberes the relevant words for any
of the purposes of that companye used in sub-s.  4 . these
words indicate that the bar created by sub-s.  4  applies
and is companyfined to the purposes of that companye and cannumber be
extended beyond the said purposes. what subs.  4  really
provides is that if a railway servant is charged for an
offence under the indian penal companye and the said offence is
outside ch. ix of the companye he cannumber be treated as a public
servant. this sub-section does number purport or intend to
make any provision in respect of offences which are outside
the penal companye in respect of such offences neither sub-s.
 1  number sub-s.  4  of the railways act would apply and the
question as to whether railway servants fall within the
mischief of the act must be decided in the light of the
provisions of the said act itself. that takes us to the question whether the appellants can be
said to be public servants under s. 2 of the act. s. 2 as
we have indicated in substance incorporates in itself the
definition of a public servant companytained in s. 21 of the
indian penal companye. there can be numberdoubt that the effect of
s. 2 of the act is that the status of accused persons has to
be determined by the application of s. 21 of the indian
penal companye as if the said section had been included in the
act. if that be so the appellants cannumber resist the
conclusion that they are public servants under s. 2 of the
act. the companytention that because s. 2 of the act refers to
s. 21 of the indian penal companye the bar created by s. 137 4
of the railways act would inevitably companye into operation is
unsound. the said bar can be invoked only if the status of
the accused person is being determined for any purposes of
the companye other than those of ch. ix. in the present case
the main offences charged are under the act and number under
the companye and so s. 137.  4  in inapplicable. with regard to the companystruction of s. 137 4  there is
anumberher companysideration which may be indicated. s. 137 1
brings within the definition of s. 21 of the companye railway
servants who but for it would number have satisfied the tests
laid down in s. 21. the deeming provision of sub-s.  1
would be clearly inappropriate
and unnecessary if the railway servants companycerned companyld be
treated as public servants under s. 21 itself. in other
words railway servants employed by the railway
administration owned and companyducted by the government of
india would be public servants under s. 21 as such without
recourse to the statutory fiction introduced by s. 137 1 . having provided for this statutory fiction by sub-s. 1
sub-s.  4  purports to companyer the same ambit and to deal with
the same class of railway servants and it provides that this
class of persons shall number be deemed to be public servants
except as mentioned in sub-s.  1 . this negative statutory
fiction is only intended to emphasise the fact that persons
who are treated as public servants by virtue of sub-s.  1
can be dealt with only under the provisions of ch. ii of
the companye and numberother. companyld it have been intended by the
legislature that sub-s.  4  should exclude the application
of the provisions of the companye other than those companytained in
ch. ix to railway servants who would be public servants
under s. 21 without the aid of sub-s.  1  of s. 137 ? prima
facie such an intention cannumber be attributed to the legis-
lature. it is true that the number-obstante clause lends some
assistance to the argument of the appellants that with the
exception of the provisions of ch. 1x s. 21 of the companye
would be inapplicable to railway servants but the said number-
obstacle clause cannumber prima facie be wider in its scope
than sub-s.  1  of the card section. the said number-obstante
clause has apparently been inserted ex abundanti cautela  1
to clarify the effect of s. 137 1 . the two subsections
introduce a positive and a negative fiction respectively and
thereby achieve the same result. however since we are
concerned with the provisions of the act and number with any
provisions of the companye other than ch. 11 it is unnecessary
to pursue this point any further and to express a definite
opinion on this aspect of the matter. we must number refer to the decisions to which our attention
was invited. the first case on which mr. anand relied is
the decision of the punjab high
 1   1955  2 s. c. r. 977 - rai bahadur kanwar raj nath
ors. v. pramod c. bhatt custodian of evacuee property. companyrt in devi ram deep chand v. the state  1 . in that case
the accused were goods clerks employed by the railway and
they were being prosecuted in the companyrt of a first-class
magistrate on charges under s. 408 of the penal companye. it
was urged on their behalf that the offences alleged against
them were in substance offences under s. 5 of the act and
that they companyld be tried by a special judge alone. that is
why the high companyrt was moved for a transfer of the case
against them from the companyrt where it was pending to the
court of the special judge. from the judgment of the high
court it clearly appears that the learned assistant
advocate-general intimated to the companyrt that the prosecution
did number propose to frame or prove a charge against the
appellants under s. 5 of the act. therefore s. 2 of the act
did number really fall to be companystrued by the companyrt and so the
observations made by dulat j. that if the petitioners are
number public servants within the meaning of s. 21 of the penal
code they cannumber be called public servants for the purposes
of act 2 of 1947 is clearly orbiter. if however this
observation was intended to be a decision on the point it
must with respect be held to be based on a misconstruction
of s. 137 4 . mr. anand has also fairly invited our attention to two
decisions of this companyrt-ram krishan v. the state of delhi
 2  and c. a. montorio v. the state of ajmer   -which are
prima facie against his companytention. in the first of these
two decisions the appellants had been charged under s. 120b
of the indian penal companye for criminal companyspiracy to cause
offence of criminal misconduct punishable under s. 5 2  of
the act to be companymitted by madan lal as also under that
section read with s. 116 of the companye. they had been
convicted by the special judge on both the companynts and their
conviction had been upheld by the high companyrt. in their
appeal before this companyrt one of the points raised by the
appellants was that madan lal was number a public servant
within the meaning of the act. it appears that the offence
in question had been companymitted on

a. i. r. 1954 punj 189.  2  1956 s.c.r. 182.  3  1956 s.c.r. 682.
december 29 1951 and the argument was that under s. 137 1
and  4  madan lal who was a railway servant companyld number be
held to be a -public servant under s. 2 of the act. chandrasekhara aiyar j. who delivered the judgment of the
court cited s. 137 1  and added that sub-s.  4  had been
omitted by the amendment of 1955. then the learned judge
referred to s. 2. of the act and companycluded thus the
result is that before the amendment railway servants were
treated as public servants only for the purpose of ch. ix
of the indian penal companye but number as the result of the
amendment all railway servants have become public servants
number only for the limited purpose but generally under the
prevention of companyruption act. with respect it may be
pointed out that this observation seems to give to the
amended provisions of s. 137 of the railways act
retrospective effect. the question of the companystruction of
the relevant sections does number appear to have been fully
argued before this companyrt and it has number been companysidered. it
is nevertheless true that in respect of an offence companymitted
in 1951 madan lal was hold to be a public servant under s. 2
of the act. in the case of montorio  1  the main point raised before
this companyrt was whether the accused was a public servant
under s. 21 of the companye and that was companysidered by this
court in dealing with that question this companyrt companystrued s.
21 and held that the appellant was an officer within the
meaning of s. 21 9  and therefore a public servant within
the meaning of s. 21. incidentally reference has been made
to the earlier decision of this companyrt in the case of ram
krishan  2  and it has been observed that the said decision
lays down that before the amendment of s. 137 of the rail-
ways act by act 17 of 1955 railway servants were treated
as public servants only for the purposes of ch. ix of the
indian penal companye but in any event they were public servants
under the prevention of companyruption act. with respect this
latter statement does number appear to be borne out by the
judgment in the case of ram krishan  2 .  1  1956 s.c.r. 682.  2  1956 s.c. r. 182
going back to s. 2 of the act once more we must hold that in
defining a public servant it enacts the same definitions as
s. 21 of the indian penal companye and under this interpretation
of the section the appellants undoubtedly are public
servants. the result is the companyrts below were right in
holding that the appellants companyld be properly charged and
tried for offences under s. 5 2  read with s. 5 1  c  and s.
5 1  d  of the act. the validity of the charge under s.
120b has number been and cannumber be challenged. mr. anand for appellant number 1 and mr. chatterjee for
appellant number 2 appealed to us to reduce the sentence passed
against their clients. it was urged in support of this plea
that though the charge against them was in respect of a
large amount of rs. 1555 evidence had been adduced to prove
misappropriation of rs. 218 which is a much smaller amount. we do number think that in the circumstances of this case the
actual amount shown to have been misappropriated has a
decisive or even a material bearing on the question of
sentence.


civil appellate jurisdiction civil appeal number. 3264-
3265 of 1991
from the judgment and order dated 8.9.1989 of the
central administrative tribunal new delhi in original
application number 844 of 1986.
and
writ petition  c  number 178 of 1990.  under section 32 of the companystitution of india
ms. shyamla papu a. subba rao c.v.s. rao ms a.
subhashini ms. c.k. sucharita k.t. anantharamy and p.p. tripathi for the appellants petitioners. d. gupta s.k. gupta j.p. misra-in-person devendra
verma-in-person t.r. mohanty-in-person  np  and d.k. joshi-
in-person appeared for the respondents. the judgment of the companyrt was delivered by
kuldip singh j. promotees and direct recruits in
government services have an amazing capacity to rake-up old
seniority-disputes settled-finally by the companyrts of law. this is the third round of litigation between such members
of the indian statistical service. this companyrt in narender
chadha and ors. v. union of india ors. 1986 1 scr 211
finally decided the dispute regarding seniority between
promotees and direct recruits belonging to indian econumberics
service and the indian statistical service. this companyrt
directed the union government
to treat all persons who are stated to have been
promoted in this case to several posts in grade iv
in each of the two services companytrary to the rules
till number as having been regularly appointed to the
said posts in grade iv under rule 8 1  a  ii  and
assign them seniority in the cadre with effect from
the dates from which they are companytinuously
officiating in the said posts. even those promotees
who have been selected in 1970 1982 and 1984 shall
be assigned seniority with effect from the date on
which they companymenced to officiate companytinuously in
the posts prior to their
selection. for purposes of seniority the dates of
their selection shall be ingnumbered. the direct
recruits shall be given seniority with effect from
the date on which their names were recommended by
the companymission for appointment to such grade or
post as provided in clause  a  of rule 9-c of the
rule. a seniority list of all the promotees and the
direct recruits shall be prepared on the above
basis treating the promotees as full members of the
service with effect from the dates from which they
are companytinuously officiating in the posts. emphasis supplied
the question for our companysideration is whether the
expression posts used by this companyrt in the above quoted
directions means cadre posts or it includes the ex-cadre
posts held by the promotees in the indian statistical
service. in other words whether the benefit of companytinuous
officiation towards seniority is to be companyfined to the
period spent against the cadre post or the total of such
period whether against cadre or ex-cadre post. the directions of this companyrt-quoted above-are crystal-
clear. it is a pity that the central administrative
tribunal new delhi  tribunal  viewed the above directions
in utter oblivion. this companyrt directed the union of india

to treat all persons stated to have been
promoted companytrary to rules having been regularly
appointed to grade iv of the service and

assign them seniority from the date of their
continuously officiation in grade iv posts

even those promotees who were selected for
regular promotion in 1970 1982 and 1984 shall be
assigned seniority from the dates they companymenced
officiation companytinuously in grade iv prior to their
selection. a bare look at each of the above directions makes it
clear that this companyrt made the promotees regular members of
grade iv service from the day they are companytinuously holding
posts in the said service. this companyrt did number make any
distinction between a cadre post or an ex-cadre post. the
courts judicious companyscious was touched by the fact that the
promotees were performing the duties of the jobs  posts  in
grade iv service and
were drawing salary of the posts in the said service for
over fifteen years and still they were treated ad hocs and
their appointments companysidered companytrary to the rules. this
court found it to be wholly arbitrary and directed that they
be treated as regular member of the service from the day of
their companytinuous appointment. even the promotees who were
regularly selected in the years 1970 1982 and 1984 against
their quota posts were given benefit of their earlier
officiation which was obviously number against the posts meant
for the promotees we are therefore of the view that this
court laid-down in clear terms that the promotees are
entitled to companynt towards seniority the entire period of
service in grade iv posts whether cadre or ex-cadre. we may
however dilate upon the judgment in chadhas case a bit
more to clarify the point. a bench of this companyrt companysisting of o. chinnappa reddy
and e.s. venkataramiah jj. delivered the judgment in
narender chadhas case on february 11 1986. the direct
recruits filed a review petition which was dismissed. the
directions of this companyrt were implemented and a seniority
list of grade iv of the indian statistical service
 hereinafter called the service  was issued on may 8 1986.
consequent promotions to grade iii were made vide
numberification dated may 22 1986. the direct recruits in
grade iv of the service challenged the seniority list and
the promotions before the tribunal on the ground that the
seniority list was in violation of the directions of this
court in narender chadhas case. it was companytended on the
interpretation of this companyrts judgment that the promotees
who officiated against cadre posts in the service alone
are entitled to the benefit of the said period towards
seniority and those who officiated against ex-cadre posts
are number entitled to such benefit. the promotees and the union of india companytended before
the tribunal that this companyrt in narender chadhas case based
its companyclusion on the reasoning that the promotees were
holding posts in the service for about 15 years and as such
they companyld number be treated as ad hoc appointees. this companyrt
did number make any distinction between holder of a cadre post
or an ex cadre post. the intention of the companyrt is obvious
from the plain language which makes it clear that the
promotees are to be treated regular members of the service
from the date of promotion and as such whole of the period
of their service whether against cadre or ex-cadre post has
to be companynted towards seniority. the tribunal allowed the application on the following
reasoning-
we have carefully companysidered the companytentions
advanced on both sides and have also gone through
the judgment of the supreme companyrt in narender
chadhas case. we are required in the present case
to interpret the judgment of the supreme companyrt in
the light of the observations made and direction
given by their lordships in the entire judgment
we do number find the use of any expression like ex-
cadre posts or posts outside the cadre. appointment to grade iv of the service were
considered in the companytext of companyformity with the
service rules or otherwise. neither in the
averments made in the petition filed before the
supreme companyrt number in the judgment given by the
honble supreme companyrt we find any clue to reach he
conclusion that benefit of companytinuous officiation
in ex-cadre posts number included in grade iv of the
service was either prayed for or ordained to be
given by the judgmentwe do number find
sufficient grounds to give a finding that grade iv
posts in the judgment of narender chadha was used
in a generic sense as companytended by the learned
counsel for the respondents. we are companyscious of
the fact that deprivation of the benefits of
seniority in respect of companytinuous officiation in
ex cadre posts may number be justified on grounds of
equity and discrimination. but in the present case
we are bound by the judgment of the honble supreme
court and this tribunal is number companypetent to widen
its scope to extend the benefit of companytinuous
officiation to incumbents who are number companyered by
the said judgment. we are of the view that the tribunal has fallen into a
patent error. a look at the judgment would show that the
approach of the tribunal was wholly perverse. this companyrt examined the scheme of the indian
statistical rules 1961 which lay down the companystitution
method of appointment and other companyditions governing the
service. it was numbericed that at the initial companystitution of
the rules on numberember 1 1961 there were 116 posts in grade
iv and total of 185 posts in the service. all the rules were
numbericed and after reproducing rule 8 which provides for
appointments to the service it was observed as under-
although rule 8 provided that number less that 75 per
cent of vacancies in grade iv should be filled up
by direct recruitmentnumberdirect
recruitment was resorted to till about the year
1968. in the meanwhile a large number of persons in
the feeder posts were appointed to the posts in
grade iv from time to time from the year 1962
onwards although the orders promoting them stated
that they had been promoted only temporarily. it is
number disputed that all those promotees have been
holding those posts companytinuously till number without
being reverted to the feeder posts from which they
had been promoted. some have retired from those
posts on attaining the age of superannuation. thereafter the bench numbericed the fact large number of
posts meant for the direct recruits were manned by the
promotees for a period of more than 15 years. the bench
observed as under-
the position in the indian statistical service was
more or less the same. as against a total of 303
vacancies meant for direct recruits between the
year 1964 and 1984 only 275 direct recruits were
appointed. in this department also the posts which
remained unfilled had been held by the persons who
were departmental candidates. it is alleged in the
counter-af-fidavit filed on behalf of the union of
india of which the deponent is shri p.g. lele
deputy secretary in the department of personnel and
administrative reforms that many of the
departmental candidates had been allowed to hold
posts including in grade iv of the aforesaid
services purely on ad hoc and ex gratia basis. the
relevant part of the companynter-affadavit is to be
found in paragraphs 21 to 24 thereof. it is
unfortunate that even though the promotees have
been discharging their duties to the best of their
ability and receiving salary and allowances from
the government for the services rendered by them
it is alleged in the companyrse of the said companynter-
affidavit that what was being paid to them was by
way of grace. this statement adds insult to
injury. if the government felt that they were number
competent to discharge their duties and they had
number been appointed permanently to the posts held by
them it was open to it to revert them to their
posts from which
they had been promoted leaving it open to them to
question the orders of reversion in companyrt. the
government was in need of their services and the
petitioners have been holding these posts for
nearly 15 to 20 years. it is number fair to say at
this distance of time that the government was only
keeping them in their posts as a matter of grace. be that as it may it is seen that the departmental
promotion companymittee met only thrice between 1965
and 1984 i.e. 1970 1972 and 1984 although under
the rules and instructions issued by the central
government on the advice of the union public
service companymission the departmental promotion
committee had to meet annually. it is thus obvious that the bench was fully companyscious
of the total number of posts in the service during the
period from 1964 to 1984 the total number of direct
recruits occupying the posts the fact that large number of
promoters were occupying the posts meant for direct recruits
and the departmental promotion companymittee had number met for
years together to fill the posts meant for the promotees. the bench was thus fully aware of the provisions of the
rules and their actual application to the cadre and ex-cadre
posts during the period from 1961 till 1984. it is clear
from the minute factual details adverted to by the bench
that this companyrt gave benefit of total officiation to the
promotees whether against a cadre post or a number cadre post. the problem faced by this companyrt in narender chadhas case
was numbericed as under-
but we are faced in this case with the problem of
resolving companyflicts which have arisen on account of
a violent departure made by the government from the
rules of recruitment by allowing those who were
appointed companytrary to the rules to hold the posts
continuously over a long period of time. the
question is whether after such a long period it is
open to the government to place them in seniority
at a place lower than the place held by persons who
were directly recruited after they had been
promoted and whether it would number violate articles
14 and 16 of the companystitution if the government is
allowed to do so. promotions of officers have been
made in this case deliberately and in vacancies
which have lasted for a long timeit is
significant that neither the government has issued
orders of reversion to their former posts number has
anybody
so far questioned the right of the petitioners to
continue in the posts which they are number holding. it would be unjust to hold at this distance of time
that on the facts and in the circumstances of this
case the petitioners are number holding the posts in
grade iv. the above companytention is therefore without
substance. but we however make it clear that it
is number our view that whenever a person is appointed
in a post without following the rules prescribed
for appointment to that post he should be treated
as a person regularly appointed to that post. such
a person may be reverted from the post. but in a
case of the kind before us where persons have been
allowed to function in higher posts for 15 to 20
year with due deliberation it would be certainly
unjust to hold that they have numbersort of claim to
such posts and companyld be reverted unceremoniously or
treated as persons number belonging to the service at
all particularly where the government is endowed
with the power to relax the rules to avoid unjust
results. in the instant case the government has
also number expressed its unwillingness to companytinue
them in the said posts. the other companytesting
respondents have also number urged that the
petitioners should be sent out of the said posts. the only question agitated before us relates to
the seniority as between the petitioners and the
direct recruits and such as question can arise only
where there is numberdispute regarding the entry of
officers companycerned into the same grade. in the
instant case there is numberimpediment even under the
rules to treat these petitioners and others who are
similarly situated as persons duly appointed to the
posts in grade iv because of the enabling provision
contained in the rule 16 thereof. rule 16 as it
stood at the relevant time read as follows
the government may relax the provisions of these
rules to such extent as may be necessary to ensure
satisfactory working or remove inequitable
results.  emphasis supplied
it is obvious from the quote above that the companyrt was
primarily companycerned with the question of granting the
promotees the benefit of their long period of service in
grade iv posts for the purposes of seniority. the promotees
were appointed 15 year back to the cadre or ex-cadre posts
in grade iv had been doing the same work as regularly
appointed grade iv officers were doing were drawing the
same salary and were treated at per
with other regularly appointed officers. is there any
justification to deprive them the benefit of 15 year of
service on the ground that they were working against the ex-
cadre posts. it was projected before this companyrt that the
appointments to grade iv of all the promotees whether
working against cadre post or ex-cadre posts were companytrary
to the rules. in that situation where is the justification
after all the promotees are regularised by this companyrt to
hold that only those who are regularised while working
against cadre posts are to be given the benefit of such
regularisation towards seniority. doing that would be wholly
arbitrary. the tribunal itself observed-
we are companyscious of the fact that deprivation of
the benefits of seniority in respect of companytinuous
officiation in ex cadre posts may number be justified
or grounds of equity and discrimination. but in the
present case we are bound by the judgment of the
honble supreme companyrt and this tribunal is number
competent to widen its scope to extend the benefit
of companytinuous officiation to incumbents who are number
covered by the said judgment. but on the basis of patently illogical reasoning the
tribunal imputed such a companyclusion which may number be
justified on grounds of equity and discrimination to this
court on an erroneous interpretation of the judgment in
narender chadhas case. the least we can say is that the
tribunal has acted in a wholly perverse and wayward manner. this companyrt further numbericed the enumbermity of the
prejudice which was likely to be caused to the promotees in
case they were denied the benefit of their ad hoc service in
the following words-
the enumbermity of the prejudice that is likely to be
caused to the petitioners and others who were
similarly stituated can be demonstrated by setting
out the effect of stiking to the quota rule as
found in rule 8 1  a  even though there has been a
deliberate deviation from it. the result of
applying the quota rule would be as follows
petitioner number 1 who was promoted to grade 17 on
numberember 6 1965 would be junior to a direct
recruit of 1974 batch. petitioner number 3 who was
promoted to grade iv on march 22 1966 would become
junior to a direct recruit of 1979 batch. petitioner number 6 who was promoted to grade iv post
in july 1 1966 would become junior to direct
recruits of 1982 batch. petitioner number 10 who was
promoted to grade iv on may 18 1968 would become
junior to direct recruits of 1982 batch. petitioners number. 16 to 18 and 21 to 25 would
continue to be treated as ad hoc appointees and
will be junior to every body appointed till number
into the service as they cannumber be fitted any where
even though they have put in 9 to 15 year of
service in grade iv. these startling results ought
to shock anybodys companyscience. the only just
solution to this problem is to treat the
petitioners as persons duly appointed to the
service with effect from the day on which they were
promoted to the grade iv posts. as observed in d.r. nim ips v. union of india
1967 2 scr 325 when an officer has worked for a
long period as in this case for nearly fifteen to
twenty years in a post and had never been reverted
it cannumber be held that the officers companytinuous
officiation was a mere temporary or local or stop
gap arrangement even though the order of
appointment may state so. in such circumstances the
entire period of officiation has to be companynted for
seniority. any other view would be arbitrary and
violative of articles 14 and 16 1  of the
constitution because the temporary service in the
post in question is number for a short period intended
to meet some emergent or unforeseen circumstances. clause  b  of rule 9c of the rule which deals with
the question of seniority promotees becomes
irrelevant in the circumstances of this case as
regards the promotees who have been holding the
posts from a long time as stated above. emphasis
supplied
this companyrt has in simple language and plain words
expressed its verdict in the quote above. it needs no
clarification much less any interpretation. it only needed a
judicial-look which the tribunal failed to do. regarding the promotees who were appointed in their
quota this companyrt observed as under-
we are aware that the view we are taking may upset
the inter se seniority between those promotees who
were included in the select list of 1970 1982 and
1984 and those who were included later on or who
have number been included at all till number. the
existence of this possibility should number deter us
from adopting
a uniform rule in the case of all promotees and
direct recruits to adjust the equities amongst them
as regards their relative seniority in the light of
the violent departure made by the government both
as regards direct recruitments and promotions which
it had to make every year under the rules. the
prejudice which the promotees included in the
select lists might suffer is marginal and has to be
ignumbered. the above paragraph makes it further clear that this
court intended to fix the seniority of the promotees on the
basis of companytinuous length of service irrespective of the
fact whether the length of service was against a cadre post
or an ex-cadre post. the promotees included in the select
list of 1970 1982 and 1984 against their quota vacancies
have been given seniority from an earlier date when they
started officiating in a grade iv job. this companyrt has numberhere used the expression cadre post
or excadre post in the judgment. needless to say that
these words are the alphabet of service jurisprudence. in
narender chadhas case it was legally impossible to make any
distinction on the basis of cadre or ex-cadre posts. in any
case if this companyrt intended to do so it would have done it
in clear terms. the word post has been used by this companyrt
to indicate an appointment a job or a position to which a
person is appointed. we therefore allow the appeals set aside the
judgment of the tribunal and dismiss the applications filed
by the respondents before the tribunal.