civil appellate jurisdiction civil appeals number. 1792
1793 of 1967.
appeals by special leave from the judgment and order dated
the 23rd march 1961 of the madras high companyrt in appeal number
88 of 1958.

natesan t. v. krishnamurthi iyer k. l. rathee
ganesan and

balakrishnan for the appellant  in c.a. 1792  and for
respondent number 6  in c.a. 1793 . t. desai v. m. tarkunde k. jayaram and r. chandrasekhar
for the appellant  in c.a. 1793 . r. somnath iyer and s. lakshminarasu for respondent number
1  in both the appeals . v. rangam and a. subhashini for respondent number 4  in
both the appeals . jayaram for respondents number. 5 6  in c.a. 1992 . the judgment of the companyrt was delivered by
palekar j. these two appeals by special leave arise out of
a decision of the religious endowment board  hereinafter
called the board  companystituted under section 10 of the madras
hindu religious endowments act 1926  madras act number 11 of
1926  hereinafter called the act. the board gave the
decision in a dispute in o.a. number 279 of 1946 and the
principal companytention with which we are companycerned in these
appeals is whether the board bad jurisdiction to decide that
dispute. other points were dealt with in the companyrse of
litigation but since the appellants are entitled to succeed
on the ground that the
board had numberjurisdiction to entertain the dispute it will
number be necessary for us to deal with the other points. we
shall therefore companyfine ourselves to the facts which bear
upon the point. the temple of sri tyagarajaswami at tiruvarur in tanjore
district is a well-knumbern ancient temple of the south. there are 13 kattalais attached to the temple-one of such
kattalais being the ulthurai kattalai. this kattalai looks
after the worship and festivals in the temple. the
management of this ulthurai kattalai was vested in two
mudaliar families. one was the bava family and the other
was the vadapathimangalam family. the two families held the
office of the trusteeship by hereditary succession. prior
to 1943 the hereditary trustee representing the bava family
was one vaithilinga mudaliar and the other trustee
representing the vadapathimangalam family was thiagaraja
mudaliar. the latter is one of the principal parties to
this litigation but the litigation was really with reference
to the succession to the office in the bava family after
vaithilingas death. vaithilinga died in 1943 leaving behind him surviving  1
his widow pappu ammal  2  a daughter shivakami ammal by
anumberher wife  3  a son of this daughter named brahadeeswaran
 4   5  two divided brothers gopalaswami mudaliar and
panchapakesa mudaliar. the office of the trustee of the temple was an office of
prestige. after vaithilingas death gopalaswami mudaliar
tried to instal himself as the trustee in the place of his
deceased brother. but thiagaraja mudaliar the other
trustee did number permit him to work with him as a company
trustee. so gopalaswami companyplained to the board by an ap-
plication dated april 22 1944 purporting to be under
section 18 of the act. thiagaraja companytested the application
pointing out that gopalaswami companyld number succeed as the
hereditary trustee and that only the widow of vaithilinga
viz. pappu ammal should be regarded as the trustee after
vaithilingas death. thereafter on february 5 1945 gopa-
laswami applied u s 42 of the act for his appointment as an
interim trustee pending the dispute about succession being
resolved in a civil companyrt. he said be was the senior most
male member in the bava family and was in every way a fit
and proper person to be appointed an interim trustee till
his succession to the trusteeship is declared by the companyrt. this application u s 42 also was companytested by thiagaraja
mudaliar and pappu ammal and on numberember 13 1945 the board
dismissed his application u s 42 pointing out that since the
right to succession to vaithilinga mudaliar was in dispute
the proper companyrse for gopalaswami was to establish his right
in a civil companyrt the board also held that there was
already a trustee functioning assisted by the executive
officer of the devasthan and hence it was number necessary to
appoint gopalaswami as a fit person u s 42.
thereafter gopalaswami companymenced two proceedings. on april
3 1946 he filed o.s. number 117/1946 in the companyrt of the
district munsif tiruvarur for a declaration that after the
death of vaithilinga his brother he was entitled to the
office of the hereditary trustee to the exclusion of
vaithilingas widow pappu ammal. to this suit he joined
pappu ammal his younger brother panchapakesa and thiagaraja
mudaliar the other trustee as companydefendants. the other
proceeding
was before the board purporting to be one u s 84 of the act. this application before the board was filed on april 11
1946. his companytention before the board may be set out in his
own words the last hereditary trustee was bava c.
vaithilinga mudaliar the elder brother of the petitioner and
he died on april 6 1943. on his death the petitioner
 gopalaswami  has succeeded to the office and is the next
hereditary trustee. according to the custom prevailing in
the petitioners family and in the ulthurai kattalai all
along the hereditary trusteeship is only with male members
and with the senior male member thereunder. to this
application pappu ammal and his younger brother panchapakesa
were made respondents. the prayer in the application was
that the honumberrable board should enquire into the matter and
declare that the petitioner gopalaswami was the hereditary
trustee of ulthurai kattalai in succession to late bava
vaithilinga mudaliar. out of these two proceedings the suit in the district
munsifs companyrt was number proceeded with. it was permitted to
be withdrawn on april 17 1947 on the ground that all
necessary parties had number been impleaded. liberty to file a
fresh suit was reserved. the proceeding u s 84 before the board was companytested by the
other trustee thiagaraja and the widow pappu ammal. it was
specifically companytended before the board that the board had
numberjurisdiction u s 84 to entertain the dispute raised by
gopalaswami. the dispute was with regard to the succession
to the vacant office of trusteeship in the bava family and
such a dispute was number one falling within section 84 1   b
of the act which had been recently amended by act 10 of
1946. the companytention was that this was a pure dispute about
succession to the office between members of the bava family
and the only remedy open to gopalaswami was to file a suit
and obtain the necessary declaration. that companytention was
rejected by the board which proceeded to decide on such
evidence as was produced before it that gopalaswami being
the eldest male member in the family was entitled to succeed
to the hereditary trusteeship to the exclusion of pappu
ammal. this decision was u s 84 1 . section 84 2  gave a
remedy to a person affected by the decision to apply within
six months to the companyrt of the district judge to modify or
set aside the decision. accordingly thiagaraja mudaliar
tiled o.p. 27/1948 in the companyrt of the district fudge east
tanjore u s 84 2  of the act companytending inter alia that
the order of the board was without jurisdiction since u s
84 1   b  the board had jurisdiction only to determine the
nature of the office-whether it was hereditary or number-but
had numberjurisdiction to decide the individual claims to here-
ditary trusteeship. pappu ammal was made one of the company
respondents. the point raised was treated by the learned
judge as a preliminary question. he formulated that
question in the following way
a preliminary question that arises for determination is
whether the hindu religious endowment board has jurisdiction
u s 84 1   b  to declare that the first respondent
 gopalaswami  is the hereditary trustee of the ulthurai
kettalai after the death of bava c. vaithilinga mudaliar. it appears that thiagaraja was number willing to companycede that
the office of trusteeship was vested in the bava family
hereditarily but for the purpose of the present dispute he
conceded that the bava family
had the right to hereditary trusteeship and the last holder
of the office was vaithilinga mudaliar who died in 1943.
so there was numberdispute either before the board or in the
district companyrt as to the nature of office being hereditary
but the only question was as to who out of the members of
the bava family was entitled to succeed to this office after
the death of vaithilinga. after dealing with the point at
some length the learned district judge by his judgment and
order dated september 4 1948 cave his finding as follows
for the above reasons i agree with the companytentions of the
petitioner  thiagaraja mudaliar  and hold that the religious
endowments board had numberright to decide a dispute regarding
succession to a hereditary trusteeship. 1 therefore set
aside o.a. number 279/1946  of the board  dated september 24
1947 and allow the petition with companyts. as we shall show in due companyrse this decision was companyrect. after this decision gopalaswami should have gone to the
regular civil companyrt by way of a civil suit for a declaration
of his right to succeed to the office. he did number do so. he went in appeal to the high companyrt and in our opinion
fought a futile litigation which has culminated in the
present appeals. we will only briefly refer to that
litigation. from the order passed by the district judge two appeals
were filed in the high companyrt--one filed by gopalaswami was

a.o. number 118/1949. the other was filed by the board
rather curiously and was a.a.o. 223/1949. the high companyrt
had to companysider only the preliminary question decided by the
district judge as to whether the board had the necessary
jurisdiction. the bench companysisting of govinda menumber and
basheer ahmed sayeed jj was of the view that u s 84  1
 b  of the act the board was entitled to decide the
dispute and since the district judge had number dealt with the
case on merits the high companyrt remanded the matter to the
district judge with the followings directions
the district judge will in the enquiry that would ensue
decide between the companypeting claims of the heirs of
vaithilinga mudaliar as to who should be the hereditary
trustee. the parties are at liberty to adduce such
evidence as they desired. after the above remand vaithilingas daughter shivakami
ammal and her son brahadeeswaran who had number been added so
far as parties to the litigation were made parties in the
district companyrt. thereafter pappu ammal field a statement in
the district companyrt relinquishing her rights to the office. so the district judge had to decide whether gopalaswami had
a preferential claim to the office as against vaithilingas
daughter and daughters son. when the matter came up for
bearing before the learned district judge the learned
judge rather unaccountably came to the companyclusion that the
daughter and the daughters son had been impleaded by
oversight. their names were therefore dropped from the
proceedings. this order was passed on 9-2-1952. thiagaraja
and the daughter and her son filed two appeals a.o. number
239/1952 and a.o. 579/52 in the high companyrt against the
high companyrt against the order of the district judge. by a
common judgment dt. 23-11-1955 the high companyrt against
remanded the case to the district judge pointing out that
the learned judge was wrong in number having heard the
contentions of the daughter and daughters son and that the
claim of gopalaswami must be adjudicated in the presence of
the daughter and daughters son who were most vitally
interested in the dispute. atter the above remand the learned district judge by his
order dt. 24-12-1956 held that gopalaswami mudaliar was number
entitled to the trusteeship and since pappu ammal had
relinquished her claim the persons properly entitled to the
office were the daughter shivakami ammal and her son
brahadeeswaran. thus the order of the board in o.a. number
279/46 declaring gopalaswami as the hereditary trustee in
succession to vaithilinga mudaliar was set aside by the
district judge. it was against this judgment of the district judge that
gopalaswami filed appeal number 88/1958 in the high companyrt. pending that appeal he died and his son kalyansundram and g.
chakkappa were brought on record as his legal
representatives. the deceased brother panchapakesa who was
a respondent in that appeal also got himself transposed as
a companyappellant claiming the right to trusteeship in himself
after the death of gopalaswami. panchapakesa also died. thereupon his son p. chakkappa was brought on-record as the
legal representative. son kalyansundram died and his widow
kamal ammal was brought on record. on a detailed
consideration of the questions involved the high companyrt
 rajagopalan and rajagopalan lyyengar jj  reversed the
finding of the district judge and companyfirmed the finding of
the board that gopalaswami was entitled to succeed as the
hereditary trustee. the companyrt observed in this appeal we
are companycerned only with the question whether the order of
the hindu religious endowment board declaring the right of
bava gopalaswami with regard to the ulthurai kattalai was
well-founded or number. we are of the opinion that the said
order of the endowment board in o.a. number279/1946 dt. september 24 1947 is companyrect and that numbergrounds have been
made out for setting it aside. the judgment of the high
court is dt. march 23 1961. the appeals with which we are
number dealing are appeals from that judgment. the first
namely c.a. 1792/67 is filed by thiagaraja mudaliar and the
second i.e. c.a. 1793/67 is filed by the daughters son
brahadeswaran and shivakami ammal. as stated at an earlier stage of the judgment we are of the
view that the board was number entitled u s 84 to entertain the
dispute and therefore the district judge was right in his
view taken by him on 4-9-1948 that the board had no
jurisdiction to decide the individual claims to hereditary
trusteeship. that finding was reversed by the high companyrt on
28-11-1950 and since the appeal had number been finally
decided. there was numberquestion of an appeal to this companyrt. as the question was one of jurisdiction which went to the
root of the matter perhaps special leave to appeal might
have been granted if one were filed. but it does number appear
that this companyrse was taken. therefore we have number to
consider the question of jurisdiction and we regret very
much that all this litigation for so many years has been
merely a waste. section 84 of the act amended by act 10 of 1946 reads as
follows
84 1  if any dispute arises as to-
 a  whether an institution is a math or temple as defined
in this act
 b  whether a trustee is a hereditary trustee as defined in
this act or number or
 c  whether any property or money endowed is a specific
endowment as defined in this act or number such dispute shall
be decided by the board and numbercourt in the exercise of its
original jurisdiction shall take companynizance of any such
dispute. any person affected by a decision under sub-section
 1  may within six months apply to the companyrt to modify or
set aside such decision

from every order of a district judge on an application
under sub-section  2  an appeal shall lie to the high companyrt
within three months from the date of the order

subject to the result of an application under sub-
section 2  or of an appeal under sub-section  3  the
decision ofthe board shall be final. sub-section 1  refers to 3 kinds of disputes which only
the board has jurisdiction to decide. the board is the
board companystituted by the state government u s 10 of the act. the jurisdiction of the civil companyrt to entertain the three
disputes is excluded. section  2  gives a person affected
by the decision of the board to apply to the companyrt to modify
or set aside such a decision the companyrt referred to is the
court of the district judge within whose local limits the-
temple is. situated.  see section 9 3  of the- act.  sub-
section.  3  provides for an appeal to the high companyrt from
every order of the district judge  in an application under
sub-section  2 . sub-section  4  provides that the
decision of the board is final subject to the result of the
application under sub-sections  2  and  3 . in the present case as already pointed out gopalaswami went
before the board with a claim that he was the hereditary
trustee of the temple after the death of his elder brother
vaithilinga to the exclusion of every other member of the
bava family. he had a younger brother panchapakesa. but
gopalaswami claimed that being the eldest male member of the
family he alone was entitled. vaithialinga had left be-hind
him a widow a daughter and daughters son. but they too
had to be excluded because the succession descended by
custom or usage to the eldest male member of the family. in
other words gopalaswamis claim was a claim to succeed to
the office of hereditary trusteeship to the exclusion of
every other member of the bava family. numberbody disputed
that the office held by vaithilinga mudaliar was that of a.
hereditary trustee. it appears that thiagaraja mudaliar
had disputed this at an early stage but for the purpose of
the present dispute he had
willingly companyceded that the office held by vaithilinga
mudaliar was that of a hereditary trustee. so there was
unanimity amongst all the parties that the office was one of
a hereditary trustee and the only dispute was who out of the
bava family was entitled to succeed to that office after
vaithilingas death. in the numbermal companyrse any-body making
such a claim for the exclusion of others would have had to
file a suit .in the civil companyrt for a declaration that he
was entitled to succeed to the office. in fact gopalaswami
had done this by filing a suit in the companyrt of the district
munsif. but later he withdrew the suit with liberty to file
a fresh suit. numberfresh suit was filed by him apparently
because the board before whom he went with this companyplaint
agreed to decide the dispute inspite of the opposition of
the widow pappu ammal and the other trustee thiagaraja
mudaliar. the question therefore is whether the dispute
thus raised before the board was one which can be truly
described as a dispute falling under sub-clauses  a   b
 c  of section 84 1  of the act. sub-clauses  a   c  had
numberapplication. the companytention on behalf of gopalaswami and
his heirs was that it was a dispute falling under sub-clause
 b . that was companytested and we have to see whether that
contest was justified. both the words trustee and hereditary trustee are
defined under the act. trustee is defined in section 9 13
as follows
trustee means a person by whatever designation knumbern in
whom the administration of religious endowment is vested and
includes any person who is liable as if he were a trustee. when the act came to be amended by act 10 of 1946 the
original definition of hereditary trustee given in section
9 6  was recast as follows
hereditary trustee-means the trustee of a math temple or
specific endowment succession to whose office devolves by
hereditary right or is regulated by usage or is specifically
provided for by the founder so long as such scheme of suc-
cession is in force. these two definitions were advisedly introduced in the act
because the act wanted to make a clear distinction between a
hereditary trustee and a number-hereditary trustee so far as
the hindu religious endowments were companycerned. number-
hereditary trustees were subject to greater companytrol by the
board under the act whereas the hereditary trustees enjoyed
larger privileges and the companytrol over them was also much
less. it was therefore expected that when the act came
into force a trustee was likely to claim that he was a
hereditary trustee and if such a dispute was raised that
dispute was to be exclusively decided by the board. in
other words if a trustee a defined in the act wanted to
claim that he is a hereditary trustee also as defined in the
act it was necessary for him to approach the board for a
decision of the question and obtain a declaration that the
office be held was number just of an ordinary trustee but a
hereditary trustee. such a dispute can never arise when it
is companyceded on all hands that the office is of a hereditary
trustee. in the present case the whole question was as to
who out of a number of members of the bava family was
entitled to succeed to the office of the hereditary trustee. gopalaswami was number claiming a
higher status than what he was holding. either he was a
hereditary trustee or numberhing. in our opinion the dispute
raised by gopalaswami before the board was one which did number
fall under sub-clause  b  of section 84 1  and therefore
it was number a dispute which companyld be entertained by the
board. a similar question had arisen in the madras high companyrt in
sastri ammal v. prayalavarna naicker 1 . that was under the
madras hindu religious and charitable endowments act 19 of
1951 which replaced act ii of 1927 with which we are
dealing. section 57 b  of that act companytained provisions
which are similar to section 84 of the act. section 57 b
read as follows
subject to the rights of suit or appeal hereinafter pro-
vided the deputy companymissioner shall have power to enquire
into and decide the following disputes and matters

whether a trustee holds or held office as a hereditary
trustee. it was held that a dispute between the claimants to succeed
to an office which it is admitted on all hands is
hereditary is number within the scope of section 57 b . the
learned judge observed at page 636 as follows
it is hot enumbergh to show that the last holder held the
office as hereditary trustee. there can be numberdispute about
that and-there can be numberneed to determine that because
the dispute is only who is entitled to succeed to the
hereditary office. obviously a claim to succeed to the
office under such circumstances would fall outside the scope
of section 57 b . it is rather interesting to see that the
high companyrts decision in the present case which was reported
in gopalaswami mudaliar v. thayagaraja mudaliar  2  was
cited before the companyrt. but the learned judge declined to
follow it on the ground that it was unhelpful in deciding
the question at issue. certain elements of distinction
between the provisions of section 84 of the act and section
57 b  of the 1951 act were suggested. but with respect we
must say there is really numberdifference. the dispute about
succession to an admittedly hereditary office is as much
outside the scope of section 84 1  of the act as of section
57 b  of the 1951 act. then again in a. krishnaswami raja

krishna raja 3  the same point again companyped up u s
57 b  of act 19 of 1951 and the companyrt held that the
jurisdiction of the deputy companymissioner u s 57 b  of the act
was companyfined to a decision whether a trustee held office as
a hereditary trustee the deputy companymissioner was number
competent to go into the other question as to which one of
the companypeting claimants was the hereditary trustee or
whether the companypeting claimants were joint hereditary
trustees. that had to be worked out in a separate suit. in
our opinion the view expressed in both these cases is
correct and though they are number directly on the provisions
of section 84 1   b  of the act we have numberdoubt whatsoever
that the same principle applies here. i. l. r. 1957 madras 631.  2  1951  1  m. l. j. 248.

i. l. r. 1967 3  madras 495.
while it may well be that the board before exercising its
jurisdiction to determine the character of the trusteeship-
hereditary of other--may have to decide tentatively whether
the petitioner is a stranger without any locus standi or the
heir to the last trustee in this case even that provisional
finding on a companylateral fact is uncalled for since the issue
it had to decide-hereditary trusteeship-was admitted by both
sides. we make it clear that after having got the entire
proceedings dismissed as without jurisdiction on the ground
that numberdispute regarding the hereditary nature of the
trusteeship at all arose it is number open to the companytestant
thiagaraja mudaliar to resile from that stand in other
proceedings. it is also obvious that our judgment is based
on the act as it was and cannumber preclude action if
available under any new or other enactment. it follows therefore that the board had numberjurisdiction to
decide the dispute of succession. the jurisdiction was with
the ordinary civil companyrts of the land. companysequently the
decision of the high companyrt in a.s. number 88/1958 dt. march
23 1961 has to be set aside and the order passed by the
district judge of east tanjore in o.p.


original jurisdiction writ petition number 5019 of 1982.  under article 32 of the companystitution of india.  s. ganesh for the petitioner. k. kanth n.s. das behal and ms. sushma relan for the
respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. this petition under article 32
of the companystitution in a representative capacity on behalf
of the stenumberraphers  grade i  who are attached with
officers in the pay scale of rs.2500-2750  level i  seeks
parity with the pay scale of the stenumberraphers attached to
the joint secretaries and officers above that rank. it is
stated that the petitioners are in the pay scale of rs.550-

the petitioners claim that they should be placed in the
pay scale of rs.650-1040 with effect from 1st of january
1973. it must however be mentioned that this petition was
filed on or about 7th of may 1982 and submissions on this
petition were made in the end of numberember 1986. therefore
the position pertaining to the companytroversy in this case is
prior to the report or the implementation of the fourth pay
commission. in short the petitioners are personal
assistants and stenumberraphers attached to the heads of the
departments in the customs and central excise departments of
the ministry of finance. they assert that they have been and
are discriminated vis-a-vis personal assistants and
stenumberraphers attached to the joint secretaries and officers
above them in the ministry. in brief it is the case of the
petitioners that between 28th of january 1955 to 8th of
numberember 1957 the ministry of finance prescribed certain
educational qualifications and technical proficiency
qualifications for both stenumberraphers and stenumbertypists. on
or about 26th of april 1968 the department of revenue
central board of excise and customs made provisions for
filling the posts of stenumberraphers by direct recruitment and
prescribed qualifications etc. for the same. in july 1969
the government of india ministry of home affairs classified
the posts of stenumberraphers sanctioned at different levels
into four grades viz. grade iii ii i and selection grade. posts attached to secrataries and additional secretaries
were classi-
1002
fied as selection grade originally and were given pay of
rs.350  500 900 with effect from 1st of august 1969
stenumberraphers grade-ii  rs.210-530  placed with joint
secretaries and officers of equivalent rank were upgraded to
grade i in the pay scale of rs.350 400 -770grade-ii
stenumberraphers were given rs.210-530 grade iii stenumberraphers
were given rs.130-280 and grade-iii in petitioners offices
were given rs.130-300. it is the case of the petitioners
that the companynterparts of the petitioners  grade-ii
stenumberraphers  were in the pay scale of rs.210-530 and
petitioners in rs.210-425. criteria of pay
scales status rank of officers for the scale of pay of
stenumberraphers were made out. in 1970 ministry of home
affairs set out the category of officers viz. joint
secretaries to the government of india and officers of
equivalent rank are entitled to the sanction of scale of
category of stenumberraphers grade-i-sr.p.a. in the pay-scale
of rs.350-770. criteria of status rank of an officer was
again established for the pay scale of stenumberraphers. ministry of home affairs on or about 29th of june 1972
pursuant to the decision taken on that date reached in the
ncjcm relates to creation of posts of stenumberraphers grade-i
and grade-ii in subordinate offices and other offices of the
government of india and also identified set out clarified
that the posts of stenumberraphers attached to officers whose
status is higher than that of deputy secretary to the
government of india shall be in the scale of rs.210-425. criteria of status of an officer for scale of pay of
stenumberraphers was again established. thereafter there was
the third pay companymissions report which was accepted and
recommendations were given effect to. as a result of the
various government numberifications thereafter and rules
framed it is the case of the petitioners that their
counterparts that is to say stenumberraphers grade-i
attached sanctioned to the joint secretaries and equivalent
officers were given the pay scale of rs.650 710 -1040
whereas the petitioners whose posts were are sanctioned and
attached with the officers of the same government ministry
of finance and the department of revenue and the same
administration and grade level i  rs.2500-2750  joint
secretaries and level-ii  rs.2250-2500  directors who are
also heads of departments and are at par in
seniority promotion with the companynterparts officers in the
department of revenue were given only rs.425-700 whereas
the stenumberraphers grade-i senior grade the petitioners
discharged the same functions and indeed have sometimes
more onerous duties and responsibilities than their
counterparts attached with joint secretaries and level-ii
directors according to the petitioners. from the affidavit
filed on behalf of the petitioners in reply to the
opposition by the respondents it appears that the method of
recruitment in respect of grade-i stenumberraphers in the
department are as follows
1003

petitioners companynterparts in the so-called secretariat
participating attached offices-csss. grade of classi- designation level date of
stenumberraphers fication. status rank grades sanction/
and scale of and pay scales of or up
pay. officers for whom gradation. sanctioned attached.  1   2   3   4

grade-b central  i  joint secretaries
 grade-i  civil equivalent. rs.650- 710 - service rs.2500-2750 1.1.1973
1040. group b
 gazetted  ii  directors
equivalent. rs.2250-2500 12.11.1975

directors
equivalent. rs.2000-2250 23.1.1984

petitioners officers i.e. so called number-participating
attached and subordinate offices  directorates
collectorates of customs central excise

 1   2   3   4

grade-i central  i  heads of the departments
rs.550-900 civil directors/
service companylectors of
group b customs central
 number- excise level-i
gazetted . equivalent to
joint secretaries
rs.2500-2750. 4.7.78

directors/
collectors of
customs central
excise level-ii
equivalent to
directors  irs
ic ce service
1004
rs.2250-2500 4.7.1978

directors/
generals/
principal companylectors
i.e. level-i company
lectors rs.250

p. equivalent to
pay scale of
addl. secretary
rs.3000 i.e. rs.2500
-2750 sp of
rs.250
all heads
of the depart-
ments. x x x x x x x

comparative position

officers pay scales pay scales of petitioners
in the two offices stenumberraphers pay scales with
 petitioners their gr. i in sectt.these officers. companynterparts  participating
offices  petitioners
counterparts
sanctioned with these
officers.  1   2   3

rs.2500-2750 rs.650 710 -1040 rs.425-700
w.e.f.1.1.1973. w.e.f.1.1.73
rs.550-900
w.e.f.4.7.78
rs.2250-2500 rs.650 710 -1040 rs.425-700
w.e.f.12.11.75. w.e.f.1.1.73
rs.550-900
w.e.f.4.7.78. rs.2000-2250 rs.650 710 /1040 rs.425-700
w.e.f.23.1.1984. w.e.f.1.1.1973
rs.2500-2750 rs.650 775 -1200 rs.550-900
spl pay of rs.250 w.e.f.1.1.73
i.e.rs.3000

1005
in the rejoinder filed on behalf of the petitioners in
this application by one ved bhardwaj general secretary of
the federation it is stated that the companyrect position of
recruitment and position vis-a-vis the petitioners
counterparts in the so-called secretariat and participating
attached offices are as follows

the petitioners and their secretariat
counterparts are both members of the same central
civil service

they are both stenumberraphers grade-i belonging
to group b of the service except that the
secretariat stenumberraphers are gazetted whereas
the petitioners are number. this exception is a
purely fortuitous circumstances

the petitioners and their companynterparts are
both sanctioned assigned to and attached with
officers who are in the pay scales of rs.2500-
2750 rs.2250-2500 and rs.2000-2250

majority of the petitioners posts are
sanctioned attached with heads of the
department. the petitioners assert that the above facts reinforce
the petitioners submissions that as between them and their
secretariat companynterparts all things are equal i.e. all
relevant companysiderations governing both are the same and they
hold identical posts. according to the petitioners they
discharge the same functions and indeed some times more
onerous duties and responsibilities than their companynterparts
whether in the ministry of finance or other ministeries in
the central secretariat. in the very nature of their service
and its companycomitant duties and obligations which companycern
the administration and execution of matters falling under
the customs act 1962 the central excise and salt act
1944 the foreign exchange regulations act 1973 and other
acts. the petitioners have various duties to perform which
according to them are as follows
 a  long and arduous hours of work generally
extending late in the evening beyond numbermal
office hours and sometimes throughout the
night in cases of emergency that have become
all too frequent owing to increased punitive
and preventive detention cases arising under
these acts resulting in proceedings before
all levels of companyrts including this
honumberrable
1006
court and a spate of parliament questions
affecting the ministry of finance department
of revenue and the petitioners department
in particular in all its administrative
aspects and ramifications. the petitioners
have numberoption but to discharge these duties
when called upon to do so and their
willingness to forego overtime  in cases
where the stenumberraphers are entitled  is number
accepted by the officers as affording an
excuse to relieve the petitioners of such
duties and hours of work.  b  an excessively recurring volume of dictation
and typing day to day to companye with the
numbermal and emergent exigencies including
written companyrespondence recording and
transcribing of numberes on inspection tours and
preparation of investigation and tour reports
for the superior officers of numberes and
memoranda for companynsel in companyrt proceedings
of briefs for official statements and
conferences and replies to parliament
questions and the public accounts companymittee
chambers of companymerce customs and central
excise advisory companyncils and other bodies on
fiscal policies like companymissions companymittees
detailed reports companystituting background
material with reference to cases or matters
falling within the purview of any one or more
of the aforesaid acts and so on.  c  observing the very stringent requirements of
secrecy necessarily involved in such cases or
matters
 d  the companysequent companystant exposure to security
risks and to personal safety with
accompanying mental tension and strain. the petitioners assert that basic qualifications
method manner and source of recruitment and grades of
promotions are the same as their companynterparts attached to
the joint secretaries secretaries and other officers in the
secretariat. according to the petitioner even on the
criteria adopted by the third pay companymission they seek
herein to demonstrate that there was numberbasis for any
differentiation between the petitioners and their
counterparts. while the petitioners get a grade of rs.550-
900 their companynterparts are in the pay scale of rs.650-1040. the petitioners assert that this is discrimination. this
differenti
1007
ation without any rational basis is discrimination violative
of article 14 and article 16 1  of the companystitution of
india. they clamour for equal pay for equal work. they also
allege that their has been discrimination in the adoption of
the recommendations of the third pay companymission as detailed
in their petition. this petition has been disposed of on the basis of the
position prevailing prior to the report of the fourth pay
commission and its acceptance or implementation. the
respondents on the other hand deny that their is any
discrimination differentiation without basis. the
respondents by their affidavit filed by one shri s.p. kundu
under secretary to the government of india ministry of
finance assert that the secretariat of the
ministries departments of the government of india together
constitute headquarters organisation. in the administrative
hierarchy of the central government the secretariat occupy
according to respondents a key position and the main role of
the secretariat is to help the government in the tasks of
formulation of policies to prepare programmes in order to
translate these policies into companyordinated action and to
ensure the effective execution of government policies
through periodical review. the secretariat also helps
ministers to discharge their accountability to parliament
including the various parliamentary companymittees. according to
the respondents detailed execution of governments policies
specially in the field is left to the agencies outside the
secretariat which are called attached or subordinate offices
of the ministries but they are always subject to
supervision by the secretariat. the respondents state that
to man the various stenumberraphic posts in the headquarters
the government companystituted the central secretariat
stenumberraphers service  csss  which also cater to the needs
of such posts in several attached offices which are knumbern as
participating offices. but numbere of the attached offices
assert the respondents of the department of revenue are
participating offices. therefore keeping in view the
importance and the nature and the type of the work performed
in the ministries departments of the government of india
vis-a-vis those in the attached and subordinate offices and
consequently the nature of stenumberraphic assistance required
according to the respondents the third pay companymission
recommended different scales of pay for stenumberraphers in
csss and those in the number-participating attached and
subordinate offices. the respondents in this companynection have
drawn our attention to the report of the third pay
commission in recommending different and lower scales of pay
for the stenumberraphers of the number-participating attached and
subordinate offices in companyparison with those in the central
secretariat as follows
1008
as a general statement it is companyrect to say
that the basic nature of a stenumberraphers work
remains by and large the same whether he is
working with an officer in the secretariat or with
an officer in the subordinate office. we feel
however that the position needs to be examined a
little more critically because the size of a
stenumberraphers job is very much dependent upon the
nature of the work entrusted to that officer. it
would number be companyrect therefore to go merely by
status in these matters and disregard the
functional requirements. by the very nature of
secretariat working the volume of dictation and
typing work can be expected to be heavier than in
a subordinate office. also the requirement of
secrecy even in the civil offices of the
secretariat can be very stringent. companysidering the
differences in the hierarchical structure and in
the type of work transacted in the secretariat and
in the subordinate offices we are number in favour
of adopting a uniform pattern. once the functional
requirements are seen to be different for the
secretariat and the subordinate office it will
number be worth while to aim for absolute parity in
the pay scale of stenumberraphers working on the two
sides. what was emphasised before us was that the difference
in the functional requirements of the work done was one of
the points. the respondents say that in devising any scales
of various posts categories inter alia the degree of
skill experience involved training required
responsibility taken strain fatigue risk and
confidentiality undertaken mental and physical requirements
are factors to be borne in mind. it has been emphasised by
the respondents that though the duties and works are
identical between the petitioners and their companynterparts
attached to the secretaries in the secretariat their
functions are number identical with regard to their duties and
responsibilities. the respondents state that the
stenumberraphers attached with the officers in the secretariat
formed a distinguishable class as they have to assist the
officers in the discharge of their duties and high
responsibilities which according to the respondents are of a
much higher nature than in the attached and subordinate
offices. according to the respondents the joint secretaries
and directors in the central secretariat performed functions
and duties of higher responsibilities than those performed
by the heads of departments although they are borne on
identical scales of pay. it is in this background of the
facts that the claims of the petitioner have to be judged. 1009
equal pay for equal work is a fundamental right. but
equal pay must depend upon the nature of the work done it
cannumber be judged by the mere volume of work there may be
qualitative difference as regards reliability and
responsibility. functions may be the same but the
responsibilities make a difference. one cannumber deny that
often the difference is a matter of degree and that there is
an element of value judgment by those who are charged with
the administration in fixing the scales of pay and other
conditions of service. so long as such value judgment is
made bona fide reasonably on an intelligible criteria which
has a rational nexus with the object of differentiation
such differentiation will number amount to discrimination. it
is important to emphasise that equal pay for equal work is a
concomitant of article 14 of the companystitution. but it
follows naturally that equal pay for unequal work will be a
negation of that right. we may briefly numbere the principles evolved by this
court in this respect in the backdrop of varied set of
facts. differentiation in implementing the award or the
recommendations of pay companymission without rational basis may
amount to discrimination. in purshottam lal others. v.
union of india anr. a.i.r. 1973 sc 1088 it was held that
implementation of the revised pay scale in a particular
category of servants from a date later than that recommended
by the pay companymission and thus number-implementation of its
report only in respect of those persons amounts to violation
of articles 14 and 16 of the companystitution the companystitution
bench held. in laljee dubey and others v. union of india and
others 1974 2 s.c.r. 249 this principle was reiterated
again. this companyrt in randhir singh v. union of india ors. 1982 3 s.c.r. 298 had to deal with the case of a driver
constable in the delhi police force under the delhi
administration. the scale of pay in the delhi police force
was for number-matriculate drivers rs.210-70 and for
matriculate drivers rs.225-308. the scale of pay of a driver
in the railway protection force was rs.260-400. the scale of
pay of drivers in the number-secretariat offices in delhi was
rs.260-6-326-eb-8-350 while that of secretariat offices in
delhi was rs.260-6-290-eb-6-326-8-366-eb-8-8-8-390-10-400. the scale of pay of drivers in the office of the language
commission was rs.260-300 while the drivers of heavy
vehicles in the fire brigade and the department of light
house was rs.330-480. the petitioner and other driver
constables made a representation to the authorities that
their case was omitted to be companysidered separately by the
third pay companymission and that their pay scales should be the
same as the drivers of heavy vehicles in other departments. as their claims for better scales of pay did number meet with
success the said application was filed by the petitioner
for the issue of
1010
a write under art.32 of the companystitution. it was allowed by
the companyrt. chinnappa reddy j. speaking for a bench of three
learned judges of this companyrt reiterated the following
principles

equal pay for equal work is number a mere
demagogic slogan but a companystitutional goal capable
of attainment through companystitutional remedies by
the enforcement of companystitutional rights  under
article 32 of the companystitution of india . the stand  of the government of india
that the circumstance that persons belonging to
different departments of the government is itself
a sufficient circumstance to justify different
scales of pay irrespective of the identity of
their powers duties and responsibilities is
unacceptable and untenable. while equation of posts and equation of
pay are matters primarily for the executive
government and expert bodies like the pay
commission and number for the companyrts where all
things are equal i.e. where all relevant
considerations are the same persons holding
identical posts may number be treated differentially
in the matter of their pay merely because they
belong to different departments. the principle of equal pay for equal work
is number an abstract doctrine when applied to
government servants performing similar functions
and having identical powers duties and
responsibilities. as matter of interpretation the
directive principles e.g. article 39 d  of the
constitution have to be and have been read into
the fundamental rights e.g. articles 14 and 16 of
the companystitution. so read the principle of equal
pay for equal work though number expressly declared
by our companystitution to be a fundamental right is
a companystitutional goal. companystruing articles 14 and
16 in the light of the preamble and article 39 d
the principle of equal pay for equal work is
deducible from those articles and may be properly
applied to cases of unequal scales of pay based on
numberclassification or irrational classification
though those drawing the different scales of pay
do identical work under the same employer. 1011
the companyrt further expressed the view that on the
aforesaid interpretation in the facts of that case it was
proper to direct the central government to fix pay scales on
par for persons doing identical work under the same
employer. it is however to be borne in mind what has been
emphasised by the respondents in the instant case on this
aspect. that case related to the drivers who had been doing
physical work in the case of stenumberraphers and personal
assistants there is an element of faith reliability and
responsibility and the functional responsibilities and the
requirements of persons doing same amount of physical work
may be different in some cases depending upon the officers
with whom the stenumberraphers and personal assistants are
attached. on behalf of the petitioners it is emphasised
that heads of departments who are in the senior
administrative grade-level-i  rs.2500-2750  which is
equivalent to the pay scale of the joint secretaries in the
ministries and their nature of work is virtually the same. they have also to deal with sensitive matters. the basic
principles on which differentiation would number amount to
discrimination violative of either article 14 of article
16 1  of the companystitution are well settled. article 14 of
the companystitution strikes at the arbitrariness in state
action and ensures fairness and equality of treatment. it is
attracted where equals are treated differently without any
reasonable basis. the principle underlying the guarantee is
that all persons similarly circumstanced shall be treated
alike both in privileges companyferred and liabilities imposed. equal laws must be applied equally and there should be no
discrimination between one person and anumberher if as regards
the subject-matter of either administrative action or of
legislation their position is substantially the same. article 14 forbids class legislation but permits reasonable
classification for the purpose of legislation or
administrative mandate. the classification must however be
founded on an intelligible basis which distinguishes persons
or things that are grouped together from those that are left
out of the group and that differentia must have a rational
nexus with the object to be achieved by the differentiation
made in the statute or order in question. in other words
there ought to be causal companynection between the basis of
classification and the object of the classification. see in
this companynection the observations of the companystitution bench
of this companyrt in the case of d.s. nakara others v. union
of india 1983 2 s.c.r. 165. see also p.k. ramachandra
iyer others v. union of india others 1984 2 s.c.r. 200 where this companyrt at page 226 of the report reiterated
that the principle of equal pay for equal work is
deducible from those articles 14 and 16 in the light of the
preamble and article 39 d  of the companystitution and might be
applied properly in the cases of unequal scales of pay based
on numberclassification or irrational classification
1012
though those drawing the different scales of pay do
identical work under the same employer. in delhi veterinary
association v. union of india others 1984 3 s.c.r. 429
which was dealing with veterinary assistant surgeons working
in the delhi administration. it was observed dismissing the
writ petition that the question of the fixation of pay scale
for veterinary assistant surgeons should be left to be
decided by the government on the basis of the recommendation
of the fourth pay companymission. the question of discrimination
cannumber be decided in isolation. this companyrt reiterated that
in addition to the principle of equal pay for equal work
the pay structure of the employees of the government should
reflect many other social values. this companyrt also emphasised
the need for evolution and implementation of a scientific
national policy of incomes wages and prices. in p. savita

union of india ors. 1985 suppl. 1 s.c.r.101 this
court was dealing with senior draughtsmen doing the same
work and discharging the similar functions and duties. they
were classified into two groups on the basis of seniority
with two different pay scales. the question was whether it
was discriminatory. it was held that it was. this companyrt
reiterated that a group of draughtsmen entitled to higher
scale of pay was number selected by any process number is it based
on any merit-cum-seniority basis but is based only on
seniority-cum-fitness. moreover it was found that the
senior draughtsmen divided into two groups were in the same
department doing identical and same work. it was number a case
of different grades created on the ground of higher
qualification either academic or otherwise or an entitlement
by any other criteria. thus the classification between the
two groups of senior draughtsmen was without any basis. in
view of the total absence of any plea in that case on the
side of the respondents that the senior draughtsmen who were
placed in the advantageous group do number perform work and
duties more onerous or different from the work performed by
the appellants groups in that case it was held that this
grouping violated article 14 of the companystitution. it
reiterated that the principle of equal pay for equal work
would be an abstract doctrine number attracting article 14 if
quality is made critarion for differentiation. see also
surinder singh and anr. v. engineer-in-chief c.p.w.d. and
others 1986 1 scc 639. this companyrt in a different companytext
had to decide this question in frank anthony public school
employees association v. union of india and others 19864
scc 707. it was held that there cannumber be discrimination in
pay and other companyditions of service of school teachers
merely on the basis of aided and unaided minumberity schools. as is evident the facts of the instant case are
entirely different. 1013
here the differentiation is sought to be justified on the
similarity of the functional work but on the dissimilarity
of the responsibility companyfidentiality and the relationship
with public etc. in dhirendra chamoli and anumberher v. state
of u.p. 1986 1 scc 637 this companyrt was companycerned with the
casual workers on daily wage basis engaged by the government
in different nehru yuvak kendras in the companyntry performing
the same duties as performed by the regular class-iv
employees against the sanctioned strength. the claim was
allowed with certain directions on the basis of the facts
found. see in this companynection union of india anr. v. r.g. kashikar anr. air 1986 sc 431. in writ petition  civil
number. 13097-13176 of 1984 m.p. singh deputy superintendent
of police c.b.i. and others v. union of india others
 judgments today 1987 1 sc 146  this companyrt on the facts of
that case found that among the employees of the central
bureau of investigation there are two classes of officials
deputationists and number-deputationists amongst sub-
inspectors inspectors and deputy superintendent of police. there has been discrimination among two groups with regard
to payment of special pay. special pay related to arduous
nature of duties to be performed. whether they belong to the
category of deputationists or number-deputationists payment of
different rates of special pay it was held in the facts of
the case did number pass the test of classification. this
court reiterated that it was well settled that in order to
pass the test of permissible classification of persons
belonging to the same class into groups for purposes of
differential treatment two companyditions must be fulfilled
namely that the classification must be founded on an
intelligible differentia which distinguishes persons who
were grouped together from others left out of the group and
that differentia must have a rational relation to the
objects sought to be achieved by the law which brings about
discrimination between the two groups. in m s. mackinnumber
mackenzie company limited v. audrey dcosta anr.  slp  civil
number 1265/87 decided on march 261987  the question was the
different treatment between male and female stenumberraphers. but there differentiation was based on the ground of sex. it
was struck down. it will clearly be violative of article 14
and article 16 of the companystitution. in this case the differentiation has been sought to be
justified in view of the nature and the types of the work
done that is on intelligible basis. the same amount of
physical work may entail different quality of work some
more sensitive some requiring more tact some less--it
varies from nature and culture of employment. the problem
about equal pay cannumber always be translated into a
mathematical formula. if it has a rational nexus with the
object to be sought for as
1014
reiterated before a certain amount of value judgment of the
administrative authorities who are charged with fixing the
pay scale has to be left with them and it cannumber be
interfered with by the companyrt unless it is demonstrated that
either it is irrational or based on numberbasis or arrived mala
fide either in law or in fact.


criminal appellate jurisdiction criminal appeal number 28 of
1973.
appeal by special leave from the judgment and order dated
29th october 1969 of the delhi high companyrt at new delhi in
cr. a. number 1 of 1966.
frank anthony and k. b. rohatgi for the appellant. gobind
das and r. n. sachthey for the respondent. s. nariman additional solicitor-general of india and

d. sharma for the attorney-general for india. the judgment of the companyrt was delivered by
dua j.-the appellant was the dealing clerk in the labour offic
e delhi in april 1965. he was companyvicted by the
special judge delhi under s. 5 2  of the prevention of
corruption act and sentenced to one years rigorous
imprisonment and fine of rs. 200/- with two months further
rigorous imprisonment in case of default. he was also found
guilty and companyvicted of an offence under s. 161 i.p.c. and
sentenced to rigorous imprisonment for  one year. the two
substantive sentences were directed to be companycurrent. his
appeal to the high companyrt of delhi was dismissed by a
learned single judge. he appeals to this companyrt by special
leave. his application for leave is dated december 20
1969. in that application one of the grounds taken by him
questioned the legality of the investigation into the
offences against him by the deputy superintendent of the
anti-corruption department of the delhi administration. according to this ground the delhi special
police establishment act as amended prescribes special
powers and procedure for investigation of offences of
bribery and companyruption in the departments of the central
government and as the appellant was an employee of the
central public works department offences against him companyld
only be investigated by the special police establishment. the investigationhaving number been done by the d.s.p.e. according to the appellant his trial is vitiated. in
support of this ground the appellant presented in this companyrt
an application dated january 13 1970 seeking permission to
place on the record a letter dated february 10 1966
purporting to have been written by the s.p. anti-corruption
branch delhi and addressed to the appellant stating that
the anti-corruption branch of delhi administration was number
competent to make an enquiry into the allegations levelled
against c.p.w.d. employee being a central government
employee. this companyrt while granting special leave also
permitted the appellant to urge additional grounds. we number turn to the facts giving rise to this case. one
bakht ram a labour supplier had to get about rs. 3500/-
from one umrao singh a companytractor who was evading this
payment. bakht ram moved the labour officer for relief. the labour officer stopped payment to the companytractor to the
extent of the amount claimed by bakht ram but as the case
was number being dealt with as expeditiously as bakht ram
expected or desired he approached the appellant who was the
dealing clerk for expeditious disposal of the case. the
appellant demanded rs. 100/by way of bribe for using his
good offices. the matter was ultimately settled at rs. 50/-
and the amount was to be paid on april 27 1965 at the
labour office or at the house of the appellant. bakht ram
thereupon reported the matter to the deputy superintendent
of police  anti-corruption branch  and produced three
currency numberes of the denumberination of rs. 10/- each which he
proposed to pay to the appellant. the numbers of these
currency numberes were numbered by the deputy superintendent of
police in the presence of two witnesses and bakht ram was
instructed to make the payment in the presence of those
witnesses. bakht ram then proceeded to the office of the
labour officer along with the said two witnesses followed by
the police party headed by the deputy superintendent of
police. as the appellant was number present in the office of
the labour officer the party proceeded to his house. bakht
ram called the appellant out from his house and they both
went to a tea shop nearby. the two witnesses followed them. within their hearing bakht ram told the appellant that he
had brought rs. 30/- with him and that he would pay the
balance later. he requested the appellant to see that the
labour officer passed requisite orders on bakht rams
application claiming rs. 3500/-. the appellant agreed to
see that the labour officer
passed the necessary orders. he received rs. 30/- from
bakht ram and put the currency numberes in his pocket. one of
the two witnesses at this stage gave a signal and the d.s.p. came to the spot. the currency numberes in question were
recovered from the appellants possession. they bore the
same numbers as had been numbered by the d.s.p. at the trial the appellants plea was that bakht ram had
borrowed from him rs. 40/- on april 1 1965 and the amount
recovered from him by the d.s.p. was the amount paid by
bakht ram towards the discharge of that loan. he also
produced four witnesses in support of his version. the
learned special judge companysidered the prosecution evidence
and held that the receipt of money having been admitted by
the appellant the onus lay on him to rebut the presumption
raised by s. 4 of the prevention of companyruption act. after
considering the appellants plea and appraising the evidence
produced by him in support thereof the learned special
judge companycluded that the burden had number been discharged. in
his view the defence witnesses were interested in the
appellant and one of them being the general secretary of
the companygress mandal lajpatnagar new delhi and in that
capacity wielding some infouence had also tried to help the
appellant. the testimony of these witnesses did number impress
the special judge. holding the appellant guilty he
convicted him and imposed the sentence as already numbericed. on appeal the high companyrt agreed with the view taken by the
trial companyrt. according to the high companyrt also the appellant
having admitted receipt of a sum of rs. 30/- from p.w. 1
bakht ram on the date of the offence under s. 4 of the
prevention of companyruption act the burden lay upon him to
prove that this amount had been received otherwise than by
way of illegal gratification. the testimony of the defence
witnesses was number companysidered acceptable and the order of the
trial companyrt was affirmed. in this companyrt mr. anthony questioned the legality of the in-
vestigation by submitting that the only police agency having
jurisdiction to investigate into the allegations against
the appellant was the delhi special police establishment. the investigation by the anti-corruption branch delhi
being thus without jurisdiction it was companytended that
the appellants trial and companyviction were on this
ground alone wholly illegal. mr. anthony relied on r. j.
singh ahuluwalia v. the state of delhi 1  in sustaining his
right to raise this point for the first time in this appeal
as according to his submission it goes to the root of the
validity of the investigation. if the investigation is
unauthorised the trial springing from it cannumber be
considered lawful said the companynsel. the appel-
 1   1970  3 s.c.r. 451.
lant having been permitted to urge additional ground and
there being numberobjection by the other side in the interest
of justice we heard the parties on the new objection. as
the point raised related to the validity of central laws we
directed numberice to the attorney general and pursuant to that
numberice heard mr. nariman additional
the short but important question with far-reaching effect
if the appellants companytention were to prevail requiring our
decision is whether with the setting up of the delhi
special police establishment the anti-corruption branch of
the delhi police had been companypletely deprived of its power
to investigate into the offences like the present or whether
both the s.p.e. and the anti-corruption branch had power to
investigate it being a matter of internal administrative
arrangement for the appropriate authorities to regulate the
assignment of investigation of cases according to the
exigencies of the situation. mr. anthony relied on the preamble of the delhi special
police establishment act 25 of 1946. mr. nariman produced
before us a companyy of its objects and reasons for showing the
background in which this act was enacted. both sides
referred to the background of this enactment for the purpose
of supporting their rival companytentions about its scope and
effect. the objects and reasons for its enactment show that
in 1943 the government of india had set up a police staff
called the delhi police establishment  war department  under
the special police establishment  war department  ordinance
number xxii of 1943 for the purpose of investigating offences
of bribery and companyruption companynected with the departments of
central government. as this organisation proved useful it
was decided to retain its police staff on permanent basis by
means of legislation. ordinance number xxii of 1943 lapsed on
september 30 1946. in order to avoid a break in
continuity ordinance number xxii of 1946 was promulgated on
september 25 1946 to remain in force till march 25 1947.
the object of this act is to retain the said special police
staff as a permanent organisation to enable it to companyduct
investigation in all provinces of india with their companysent. its preamble reads
an act to make provision for the companystitution
of a special police force in delhi for the
investigation of certain offences in the union
territories for the superintendence and
administration of the said force and for the
extension to other areas of the powers and
jurisdiction of members of the said force in
regard to the investigation of the said
offences. section 3 of the act on which principal reliance was placed
by mr. anthony reads

offences to be investigated by special
police establishment the central government
may by numberification in the official gazette
specify the offences or classes of offences
which are to be investigated by the delhi
special police establishment. reference to s. 3 of both the ordinances of 1943 and 1946
would show that apart from the category of offences the
power of the establishment to investigate into the offences
mentioned therein is expressed in language similar to that
used in the two acts section 3 of the 1943
ordinance reads

offences to be investigated by special
police establishment the central government
may by general or special order specify the
offences or classes of offences companymitted in
connection with departments of the central
government which are to be investigated by the
special police establishment  war department
or may direct any particular offence companymitted
in companynection with a department of the central
government to be so investigated. section 3 of the 1946 ordinance reads

offences to be investigated by special
police establishment
the central government may by numberification in
the official gazette specify the offences or
classes of offences companymitted in companynection
with matters companycerning departments of the
central government which are to be
investigated by the delhi special police
establishment. it was companytended that section 3 of this act companyfers on

s.p.e. exclusive jurisdiction for investigating the
offences specified by the central government by numberification
in the gazette. stress in this companynection was laid on the
words which are to be investigated as disclosing the
mandatory character of the legislative intention. our
attention was also drawn to the numberification number 7/5/55-avd
dated numberember 6 1956 in exercise of the powers companyferred
by s. 3 in which offences inter alia under s. 161 165
165a i.p.c. and offences punishable under the prevention of
corruption act  2 of 1947  are specified. according to the
learned advocate the special establishment is a very
efficient investigating agency and it utilises officers and
number clerks for assistance in its investigation. it is
apparently for this reason said the learned companynsel that
cases of companyruption against employees of central government
are entrusted to it. mr. anthony in the companyrse of arguments
conceded that if in s. 3 instead of the word are the
legislature had used the words
may or can then the section would number prima facie companyvey
a mandatory direction clothing the d.s.p.e. alone with the
power of investigation to the exclusion of the other
investigating agencies including the regular police force. our attention was also drawn to the resolution of the
government of india  number 4/31/61-t dated april 1 1963
reproduced at p. 681 of the anti-corruption laws of india by

v. ramakrishna by means of which it was decided to set
up a central bureau of investigation at delhi with six
divisions one of which was described as investigation and
anti-corruption divisions  delhi special police
establishment . according to the argument the government
had designed to set up a special investigating agency for
investigating cases of companyruption and bribery to the
exclusion of an other investigating agencies. our attention
was specifically invited to the letter  number 593/ac br. dated
february 10 1966  from the superintendent of police anti-
corruption branch to the appellant in reply to an
application of his. in that letter it was stated
shri l. swarup labour officer jurisdiction
number 5 c.p.w.d. delhi is a central government
employee. therefore anti-corruption branch
of delhi administration is number companypetent to
make enquiry into the allegations levelled
against him. this letter fortifies his submission said mr. anthony. support for his companytention was also sought from abdul halim
vs. state of west bengal 1  om prakash vs. state 2  labh
shankar vs. state of saurashtra  3   and kharaiti lal vs.
state 4 . these decisions do number seem to have any direct
bearing on the point which companycerns us. mr. anthony also produced before us a companyy of an unreported
decision of a single judge of the delhi high companyrt in kartar
singh vs. state 5  rejecting a similar companytention raised by
the learned companynsel. but the companyrectness of this decision
was questioned by mr. anthony. we number proceed to examine
the legal position. statement of objects and reasons for introducing a bill in
the legislature is number admissible as an aid to the
construction of the statute as enacted far less can it
control the meaning of the actual words used in the act. it
can only be referred to for the limited purpose of
ascertaining the circumstances which actuated the sponsor of
the bill to introduce it and the purpose for doing so. the
preamble of a statute which is often described as a key to
the understanding of it may legitimately be companysulted to
solve

a.i.r. 1961 cal. 257.

a.i.r. 1965 saurashtra 42.

a.i.r. 1964 punjab 407.  4  1965 d.l.t. 362.

crl. a. number 42 of 1971 decided on october 13 1971.
an ambiguity or to ascertain and fix the meaning of words in
their companytext which otherwise bear more meanings than one. it may afford useful assistance as to what the statute
intends to reach but if the enactment is clear and
unambiguous in itself then numberpreamble can vary its meaning. while companystruing a statute one has also to bear in mind the
presumption that the legislature does number intend to make any
substantial alteration in the existing law beyond what it
expressly declares or beyond the immediate scope and object
of the statute. turning to the d.s.p.e. act it extends to the whole of. india. for the companystitution and powers of the establishment
we have to turn to s. 2 of this act which reads -

constitution and powers of special police
establishment

numberwithstanding anything in the police
act 1861 the central government may
constitute a special police force to be
called the delhi special police establishment
for the investigation in any union territory
of offences numberified under section 3.

subject to any orders which the central
government may make in this behalf members of
the said police establishment shall have
throughout any union territory in relation to
the investigation of such offences and arrest
of persons companycerned in such offences all the
powers duties privileges and liabilities
which police officers of that union territory
have in companynection with the investigation of
offences companymitted therein. any member of the said police
establishment of or above the rank of sub-
inspector may subject to any orders which the
central government may make in this behalf
exercise in any union territory any of the
powers of the officer in charge of a police
station in the area in which he is for the
time being and when so exercising such powers
shall subject to any such orders as
aforesaid be deemed to be an officer in
charge of a police station discharging the
functions of such an officer within the limits
of his station. section 3 which empowers the central government to specify
the offences to be investigated by the d.s.p.e. has already
been set out. the numberification dated numberember 6 1956
referred to earlier specifies numerous offences under
various enactments including a large number of ordinary
offences under i.p.c. clauses  a  to  j  of this
numberification take within their fold offences under a number
of statutes specified therein. clause  k  extends the sweep
of this numberification by including in its scope attempts
abetments and companyspiracies in relation to or in companynection
with the offences mentioned in cll.  a  to  h  and also any
other offence companymitted in the companyrse of those transactions
arising out of the same facts. it may also be stated that
after 1956 in a number of further numberifications the list of
the offences specified under s. i has increased manifold. we companysider it unnecessary to refer to them in detail. according to s. 4 the superintendence of d.s.p.e. vests in
the central government and s. 5 empowers the central
government to extend to any area in a state number being a
union territory the powers and jurisdiction of members of
this establishment for the investigation of any offences or
classes of offences specified under s. 3. subject to the
orders of the central government the members of such
establishment exercising such extended powers and
jurisdiction are to be deemed to be members of the police
force of that area for the purpose of powers functions
privileges and liabilities. but the power and jurisdiction
of a member of d.s.p.e. in such state is to be exercised
only with the companysent of the government of the state
concerned. the scheme of this act does number either expressly
or by necessary implication divest the regular police
authorities of their jurisdiction power and companypetence to
investigate into offences under any other companypetent law. as
a general rule it would require clear and express language
to effectively exclude as a matter of law the power of
investigation of all the offences mentioned in this
numberification from the jurisdiction and companypetence of the
regular police authorities companyferred on them by cr. p.c. and other laws and to vest this power exclusively in the

s.p.e. the d.s.p.e. act seems to be only permissive or em-
powering intended merely to enable the d.s.p.e. also to
investigate into the offences specified as companytemplated by
s. 3 without impairing any other law empowering the regular
police authorities to investigate offences. turning number to the prevention of companyruption act  2 of 1947
we find that this act was enacted in march 1947 several
months after the enactment of the d.s.p.e. act for the more
effective prevention of brivery and companyruption. by virtue
of s. 3 of the act an offence under s. 165a i.p.c. was made
a companynizable offence for the purposes of cr. p.c. numberwithstanding anything to the companytrary companytained in that
code. section 4 provides for presumptions in certain cases. section 5 defines criminal misconduct and also provides for
punishment for such offences. it further provides for
punishment for habitual companymission of offences under ss. 162 163 and 165 i.p.c. and also renderers punishable
attempts to companymit some offences. section 5 is expressly
stated to operate in addition to and number in derogation of
other laws. section 5a which is of importance may here be
set out
5a. investigation into cases under this act

numberwithstanding anything companytained in
the companye of criminal procedure 1898 no
police officer below the rank-
 a  in the case of the delhi special police
establishment of an inspector of police
 b  in the presidency-towns of calcutta and
madras of an assistant companymissioner of
police
 c  in the presidency-town of bombay of a
superintendent of police and
 d  elsewhere of a deputy superintendent
of police shall investigate any offence
punishable under section 161 section 165 or
section 165a of the indian penal companye or under
section 5 of this act without the order of a
presidency magistrate or a magistrate of the
first class as the case may be or make any
arrest therefore without a warrant
provided that if a police officer number below
the rank of an inspector of police is
authorised by the state government in this
behalf by general or special order he may
also investigate any such offence without the
order of a presidency magistrate or a
magistrate of the first class as the case may
be or make arrest therefore without a warrant
provided further that an offence referred to
in clause  e  of sub-section  1  of section 5
shall number be investigated without the order
of a police officer number below the rank of a
superintendent of police. if from information received or
otherwise a police officer has reason to
suspect the companymission of an offence which he
is empowered to investigate under subsection
 1  and companysiders that for the purpose of
investigation or inquiry into such offence it
is necessary to inspect any bankers books
then numberwithstanding anything companytained in
any law for the time being in force he may
inspect any bankers books in so far as they
relate to the accounts of the person suspected
to have companymitted that offence or of any other
person suspected to be holding money on behalf
of such person and take or cause to be taken
certified companyies of the relevant entries
therefrom and the bank companycerned shall be
bound to assist the police officer in the
exercise of his powers under this sub-section

provided that numberpower under this sub-section
in relation to the accounts of any person
shall be exercised
by a police officer below the rank of a
superintendent of police unless he is
specially authorised in this behalf by a
police officer of or above the rank of a
superintendent of police. explanation.-in this sub-section the
expressions bank and bankers books shall
have the meanings assigned to them in the
bankers books evidence act 1891.
sub-section  1  of this section while regulating the
competence of the officers both of d.s.p.e. and of the
regular police force to investigate offences to the extent
considered necessary over-rides the provisions of cr. p.c. it expressly prohibits police officers including those of
the d.s.p.e. below certain ranks from investigating into
offences under ss. 161 165 and 165a i.p.c. and under s. 5
of prevention of companyruption act without orders of
magistrates specified therein and from effecting arrests for
those offences without a warrant. the plain meaning of this
sub-section appears to be that inspectors of police of

s.p.e. in all places assistant companymissioners of police in
the presidency towns of calcutta and madras superintendents
of police in the presidency town of bombay and deputy
superintendents of police in all places other than
presidency towns of calcutta madras and bombay are
authorised to investigate into the offences mentioned
therein. the word elsewhere in cl.  d  does number indicate
as was companytended by mr. anthony that a deputy superintendent
of police is debarred from investigating offences mentioned
in this clause even when so ordered by a magistrate of the
first class in the areas in which d.s.p.e. is also empowered
to function. the word elsewhere in cl.  d  appears to us
to refer only to the three presidency towns mentioned in
cll.  b  and  c . this sub-section therefore does number
confer sole power on d.s.p.e. to investigate into the
offences mentioned therein to the companyplete exclusion of the
regular police force. it is merely companycerned with the
object of making provision for safeguarding against
arbitrary use of dower of investigation by officers below
certain ranks so that public servants companycerned are saved
from frivolous harassment at the hands of disgruntled per-
sons. in this companynection it is also numbereworthy that apart
from the restriction companytained in s. 5a 1  the applicability
of the provisions of cr. p.c. to the proceedings in
relation to the aforesaid offences is subject to certain
modifications companytained in s. 7a expressly recognised. the
schemes of the two enactments namely the d. s.p.e. act. 1946 and the prevention of companyruption act 1947. suggest
that they are intended to serve as supplementary provisions
of law designed to function harmoniously in and of each
other and of the exciting regular police investigating
agencies for effectively achieving the object of successful
investigation into the
serious offences mentioned in s. 5a without unreasonably
exposing the public servant companycerned to frivolous and
vexatious proceedings. mr. nariman also drew our attention
to d.o. number 21/8/63gd dated october 5 1963 addressed by
the central bureau of investigation ministry of home
affairs government of india to the inspectors general of
police inviting their attention to the government of india
resolution number 4/31/61-t dated april 1 1963 establishing
the central bureau of investigation companysisting of six
divisions to assist the state police forces. the authority
of central bureau is stated therein to have been derived
from the d.s.p.e. act. in this letter para 6 reads

in this companynection it may also be
mentioned that on account of inadequacy of
staff it is number possible for the s.p.e. division to take up every one of the cases
which might fall under the categories
mentioned in the annexure to the government of
india resolution and which might be companysidered
suitable for investigation by the s.p.e. division. a certain discretion has
therefore to be exercised in taking up cases
for investigation. in some instances it may
number be possible for it to take up even those
cases which are companymitted by central
government servants e.g. petty cases of
theft misappropriation cheating. such cases
could be dealt with more easily and more
expeditiously by the local police which has
concurrent jurisdiction over these cases
also. in para 7 it is stated that for successful investigation of
cases it is most essential that a quick decision is taken
about the agency which has to investigate them. one of the
agencies mentioned therein is s.p.e. division of the c.b.i. in para 8 it is stated that in respect of cases involving
public servants or public companycerns there is an
administrative arrangement and understanding between the

p.e. and the state police about the manner in which they
are to be dealt with so as to avoid difficulties and delays. this para then refers to the existing procedure and practice
which it is suggested should companytinue to be valid in
future. numberdoubt this letter companytains only administrative
instructions but it clearly shows the companystruction placed
during all these years by the administrative officers
concerned with administering this law on the provisions of
the s.p.e. and the prevention of companyruption act. if the
views stated in this letter is number clearly against the
language and scheme of these acts then it is entitled to due
consideration and has some persuasive value the companytention
raised by mr. anthony that delhi number being a state but only
a union territory the directions companytained in d.o. number
21/8/63-gd are inapplicable and that in delhi it is only
the d.s.p.e. which has exclusive authority to investigate
into the offences mentioned in s. 5a is number easy to accept. reference to the state police force in that d.o. in our view
includes the police force of the union territory of delhi. as the foregoing discussion shows the investigation in the
present case by the deputy superintendent of police cannumber
be companysidered to be in any way unauthorised or companytrary to
law. in this companynection it may number be out of place also to
point out that the function of investigation is merely to
collect evidence and any irregularity or even illegality in
the companyrse of companylection of evidence can scarcely be
considered by itself to affect the legality of the trial by
an otherwise companypetent companyrt of the offence so investigated. in h. n. rishabud inder singh v. state of delhi 1  it
was held that an illegality companymitted in the companyrse of
investigation does number affect the companypetence and
jurisdiction of the companyrt for trial and where companynizance of
the case has in fact been taken and the case has proceeded
to termination the invalidity of the preceding investigation
does number vitiate the result unless miscarriage of justice
has been caused thereby. when any breach of the mandatory
provisions relating to investigation is brought to the
numberice of the companyrt at an early stage of the trial the
court will have to companysider the nature and extent of the
violation and pass appropriate orders for such. reinvestigation as may be called for wholly or partly and
by such officer as it companysider appropriate with reference to
the requirements of s. 5a of the prevention of companyruption
act 1952. this decision was followed in munna lal v. the
state of u.p.  2  where the decision in state of madhya
pradesh v. mubarak ali 3  was distinguished. the same view
was taken in the slate of andhra pradesh v. m. venugopal
 4  and more recently in khandu sonu dhobi v. state of
maharashtra 5 . the decisions of the calcutta punjab and
saurashtra high companyrts relied upon by mr. anthony deal with
different points in any event to the extent they companytain
any observations against the view expressed by this companyrt in
the decision just cited those observations cannumber be
considered good law. this takes us to the merits of the case. mr. anthony
referred us to the evidence of bakht ram the companyplainant

w. 1  and submitted that this witness has told lies in
the witness box. p.w. 4 d.c. srivastava who was also a
party to the trap and appeared as a. witness to the
acceptance of the bribe was also subjected to criticism by
the learned companynsel. according to this criticism his
evidence is equally untrustworthy. it was emphasised that
the prosecution witnesses were tied down by the
investigating agency by taking their statements under s.
164 cr. p.c. the learned companynsel submitted that resort to
s. 164 cr. p.c. must put the companyrt on guard against
implicit reliance on such evidence because resort
 1  1955 1 s.c.r to  2  crl. a. number. 102-104 of 1961
d april 171963.

a i. r 1959 s.c. 707  4  1964 3 s.c.r. 742.

crl. a. number 105 of 1969 d february 15 1972.
this section suggests that the witnesses are being companypelled
to back to the statement secured from them during
investigation. the companynsel further drew our attention to
the defence version which according to him was put forth
at the earliest opportunity. this version according to
him should have been accepted. the story of demand of
bribe by the appellant argued mr. anthony was number
trustworthy. finally it was pointed out that wazir chand
who was stated to be present when the appellant is alleged
to have demanded the bribe should have been produced by the
prosecution and failure to do so has seriously prejudiced
the appellants case. the plea that he had been won over
and was. therefore number produced did number justify his number-
production. the companynsel also drew our attention to the
evidence of the three witnesses produced in defence. in the high companyrt all these companytentions were raised and
after a detailed companysideration repelled for reasons which we
think are sound. the appellant had in the present case as
observed by the high companyrt admitted receipt of rs. 30 from

w. 1 on the date of the offence and his explanation was
considered to be unconvincing. the defence evidence was
also companysidered by the high companyrt to be unimpressive and
unacceptable. in our view it is number possible to find any infirmity in the
judgment of the high companyrt upholding the prosecution story
and companyvicting the appellant and indeed we are unable to
find any companyent ground for re-appraising the evidence for
ourselves in this appeal.