civil appellate jurisdiction civil appeal number 2357 of
1968.
appeal by special leave from the judgment and order dated
september 12 1968 of the mysore high companyrt in writ petition
number 473 of 1967.

k. sen s. s. javali and m. veerappa for the
appellant. r. somanatha iyer 0. p. malhotra j. p. dadachanji
and c. s. srinivasa rau for respondent number 1.
bera reddy and r. h. dhebar for respondent number 2.
the judgment of the companyrt was delivered by
ray j. this is an appeal by special leave from the
judgement dated 12 september 1968 of the high companyrt of
mysore dismissing by a companymon judgment a group of petitions. the appellant challenged the mysore education department
service rules dated 9 february 1967 published in the
numberification number ed. 91dgo 58 on 9 february 1967.
the rules impeached by the appellant are as follows
in exercise of the powers companyferred by the
proviso to article 309 of the companystitution of
india and all
other powers enabling him in this behalf the
governumber of mysore hereby makes the following
rules namely -

title these rules may be called the
mysore education department services
 technical education department  special
recruitment  rules 1967.

provisions relating to regularisation of
appointment of principal school of mines
ooragaum kolar gold fields. numberwithstanding any rule made under the
proviso to article 309 of the companystitution of
india or any other rules or order in force at
any time dr. t. thimmiah b.sc.  hons.  ph.d.  lond.  f.g.s. shall be deemed to have been
regularly appointed as principal school of
mines ooragaum kolar gold fields with
effect from 15-2-1958.
by order and in the name of
the governumber of mysore
sd - s. n. sreenath
under secretary to government education department. the appellant was posted as additional in-charge of
technical education bangalore. there were other petitions
before the mysore high companyrt similarly challenging the
aforesaid service rule. the petitioners in those cases were
the principal of the polytechnic at mysore head of the
mechanical engineering section c.p.c. polytechnic mysore
principal of the polytechnic hassan and principal of

d.t. companylege of engineering devangere. the appellant joined as lecturer in physics at the
university department of the government of mysore in 1941.
in 1946 the appellant took a post graduate degree in
chemical engineering at madras university. the appellant
was then posted as lecturer in chemical engineering
government engineering companylege bangalore. in 1949 the
appellant was promoted and posted as superintendent
 principal  government polytechnic devangere in the grade
of rs. 200-20-300. in 1954 the appellant was posted as
principal polytechnic companylege at hassan in the grade of rs. 200-20-300. the appellant was companyfirmed in the year 1957 in
the grade of rs. 200-20-300 in class ii with effect from 12
december 1949. on 1 january 1957 the pay scale of the
appellant was revised at rs. 250-600.
the respondent thimmiah graduated and was appointed through
the public service companymission in the year 1951 as an
assistant geologist in the department of geology in the
mysore government in the grade of rs. 125-10-175.
the respondent went to the united kingdom and returned in
1957 with a ph.d. in geology. in the month of july 1957
the establishment of the school of mines at kolar gold
fields was sanctioned in the department of technical
education. the respondent who was in 1957 a lecturer in the
department of geology was deputed for appointment is vice
principal of the school of mines at kolar gold fields. on
15 february 1958 the respondent was asked to perform the
duties of the principal. on 22 july 1958 isaac son who was
the principal of the school of mines at kolar gold fields
left. on 25 september 1958 the respondent was appointed
officiating principal of the school of mines on a temporary
basis with effect from 22 july 1958. on 3 july 1959 the
respondent was appointed principal with effect from 15
february 1958. the government of india in the year 1959
wrote to the state government that the respondent did number
possess qualifications and proposed prescribed
qualifications for the- principal of school of mines. qualifications were proposed by the director of technical
education in the month of august 1959. in the month of
august 1960 the respondent was promoted in his parent
department of geology as geologist. in the year 1962 the appellant made an application under
article 226 challenging the officiating appointment of the
respondent. the high companyrt of mysore on 17 numberember 1963
dismissed the appellants application as premature because
the government was going to frame rules for recruitment for
the department. in the month of may 1964 rules of recruitment were framed
by the government for the department of technical education. in the year 1967 rules were made under article 309 of the
constitution regularising the appointment of the respondent
as principal school of mines with effect from 15 february
1958.
the kolar gold fields school of mines was set up in the
month of july 1957. the respondent was sent in the month
of august 1957 on deputation for two years as vice
principal of the school of mines. the respondent was then
working as an assistant geologist. the then principal of
the school of mines was isaacson. he was employed on a part
time basis on an allowance of rs. 200 p.m. on 22 july 1958
when isaacson left the respondent who was the vice principal
had been doing the duties of the principal since 15
february 1958. the state government on 25 september 1958
appointed the respondent thimmiah as officiating principal
with effect from 22 july 1958 in the grade of rs. 500-30-

on 3 april 1958 the state government in modification
of the numberification of 25 september 1958 appointed the
respondent as temporary officiating principal with effect
from
15 february 1958. the impugned rules regularising the
appointment of the respondent with effect from 15 february
1958 came into existence on 9 february 1967.
the appellant companytended that the respondent was governed by
the mysore service regulations 1943 the mysore state civil
services  general recruitment  rules 1957 as well as the
mysore education department services  technical education
department   recruitment  rules 19 4. the appellant also
contended that the respondent was in class iii service and
therefore the impeached regularisation of the respondents
appointment was in breach of the aforesaid rules and
regulations and offended articles 14 and 16 of the
constitution. the companytention of the respondent before the
high companyrt was that the appointment to a civil post companyld be
made in three ways one by promotion second by direct
recruitment and the third by regularisation of an
appointment which had been initially made irregularly. it
was also companytended in the high companyrt though there was no
suggestion in the affidavit or in the return in answer to
the petition that the respondent was a local candidate in
service and therefore under rule 8  27a  of the mysore
civil services rules 1957 the rules would number apply to the
respondent and the regularisation as valid. an additional argument was advanced in this companyrt that under
article 162 of the companystitution regularisation would in
itself be a mode of exercise of power of appointment of the
executive government. regularisation was said to have the
consequence of impressing upon the appointment the quality
of permanence and the elimination of precariousness. according to the state such an appointment even if made in
the shape of rules under article 309 companyld number be attacked
on the ground of being made for one person just as a piece
of legislation companyld number be attacked on the ground of being
made for a particular person or entity. the high companyrt held that the respondent was a local candi-
date within the meaning of rule 1-a of the mysore government
seniority rules 1957 and therefore the appointment of the
respondent companyld be regularised with effect from any date. the high companyrt expressed numberopinion on the question of
seniority among the several petitioners inter se. on that
basis the high companyrt held that there companyld be a temporary
employment and recognition of a temporary servant as quasi
permanent employee without violating articles 14 and 16.
the high companyrt held that the appointment of a local
candidate companyld number be said to be discriminatory or a denial
of equal opportunity. the high companyrt also held that when
the respondent was appointed temporarily in 1958 there were
numberqualifications prescribed for the post and there were no
cadre and recruitment rules. on 17 august 1957 when the respondent was sent on depu-
tation as vice principal his post was companynted as that of a
lecturer. when issacson left the school of mines and when
the respondent was asked to be in charge as principal and
thereafter when the respondent was in the month of
september 1958 appointed to officiate as principal which
was class i service with effect from 15 february 1958 the
respondent had been on deputation from foreign service and
in the affidavit it was stated that it was class iii service
to which the respondent belonged and the appointment of the
respondent to the post of principal of the school of mines
was challenged by the appellant to amount to promotion from
class iii to class i.
under rule 57 of the mysore civil service regulations 1943
an officer companyld be sent on deputation on such temporary
duty for the performance of which there is numberpermanently or
temporarily sanctioned appointment. deputation however was
number permissible under rule 57 without the sanction of the
government. the question here is whether an officer like the respondent
who was sent on deputation companyld be said number to be governed
by any rule and be a local candidate as companytended for by the
state. at the relevant time in the month of february 1958
the mysore state civil service  general recruitment  rules
1957 were in existence inasmuch as those rules came into
force on 1 february 1958. the mysore state civil services
rules 1957 defined direct recruitment promotion and
selection. direct recruitment would be appointment
otherwise than by promotion or transfer. promotion would be
appointment of a government servant from a post grade of
service or class of service to a higher post or higher
grade of service or higher class of service. selection
would be after companysulting the companymission or the advisory or
the selection companymittee or the appointing authority. rule
3 of the mysore state civil services rules 1957 speaks of
method of recruitment to the state civil service to be by
competitive examination or by selection or by promotion. judged by these rules the appointment in the present case
could be said to be only by promotion. indisputably there
was neither any companypetitive examination number any selection
number it was a case of direct recruitment. sub-clauses  a
and  b  of rule 4 3  of the mysore state civil services
rules 1957 lay down the restrictions as to recruitment by
promotion. the restrictions are two-fold in sub-clauses  a
and  b . first if it is to a selection post or to a post
to be filled by promotion or by selection of a person on the
basis of merit and suitability in all respects to discharge
the duties of the post it is with due regard to seniority
from among persons eligible for promotion. the second is
recruitment by
promotion to a post other than that referred to in sub-
clause  1  by selection of a person on the basis of
seniority-cum-merit that is seniority subject to the
fitness of the candidate to discharge the duties of the post
from among persons eligible for promotion. in 1958 the post of the principal of the school of mines was
a penurious post. the pay of the principal was rs. 500-800
at that time. the respondent was getting a salary of rs. 165 plus rs. 75 in the month of february 1958 and his grade
of scale was from rs. 125-175. the respondent had been
substantively appointed to the post of a lecturer in geology
from which he was sent on deputation. the respondent under
rule 17 of the general rules regarding lien on appointment
and admissibility of allowances companyld number be appointed
substantively to two or more permanent posts at the same
time except as a temporary measure. then again under rule
20 1  of the general rules regarding lien on appointment the
government shall suspend the lien of a government servant on
a permanent post which he holds substantively if he is
appointed in a substantive capacity. in the month of
february 1958 the respondent was on deputation and having a
lien on post as assistant lecturer of geology when he was
appointed to officiate as principal school of mines and
therefore it companyld number be said that he was substantively
appointed to the post of a principal. the appointment of the respondent as officiating principal
in the month of february 1958 companyld be only by promotion. the two impediments to the case of recruitment by promotion
have already been numbericed in rule 4 3  sub-clauses  a  and
 b  of the mysore state civil services  general recruitment
rules 1957. under sub-clause  a  it is to be on the basis
of merit and suitability with due regard to seniority from
among persons eligible for promotion. under sub-clause  b
it is to be on the basis of seniority-cum-merit from among
persons eligible for promotion. it is number the case of the
government that it was a case of promotion because there is
numbermaterial to show that merit and suitability in all
respects with due regard to seniority from among persons
eligible for promotion were companysidered. the mysore state civil services rules 1957 in rule 16
speaks of relaxation of rules relating to appointment and
qualifications and one of the instances of relaxation is
that the government may for reasons to be recorded in
writing  a   i  appoint to a post an officer of the defence
services an all india service or a civil service of the
union or the civil service of any other state and  ii  an
officer holding a post of an equivalent grade by transfer
from any other service of the state. equivalent grade
-fined in the more civil services rules 1957 which came
into effect on 10 february 1958. rule 8 1  of the mysore
civil services rules 1958 speaks of class and grade. appointments are said to be in the same class when they
are in the same department and bear the same designation
or have been declared by government to be in the same
class. appointments in the same class are sometimes divided
into grades according to pay. the post of principal
school of mines was said to be class 1. it was said that in
the month of february 1958 there were numberclasses. but the
respondent did number belong to a grade which companyld be said to
be equivalent grade to that of the principal school of
mines. therefore it companyld number be a case of transfer within
the meaning of the aforesaid rule 16.
the mysore technical education rules which came into
existence on 5 may 1964 referred to two classes and the
principal school of mines was in class i and the heads or
principal of polytechnics were in class i. in 1964 the post
of assistant geologist was in class iii and number identical in
rank. the respondent alleged that he was appointed
temporarily to the post of principal school of mines in
february 1958 and thereafter he was appointed under article
162 of the companystitution because of his qualifications. it
will appear from the affidavit evidence that the appellant
in 1957 was principal of the government polytechnic at
davangere and was in the grade of rs. 200-20-300.
the respondent was in 1956 an assistant geologist at a
salary of rs. 165/- in the scale of rs. 125-10-175. in 1964
the appellant was in class iii under the 1964 rules as
principal of polytechnic whereas the respondent was in the
substantive post of assistant geologist which under the 1964
rules was in class 111. therefore when the appointment of
the respondent was attempted to be regularised with effect
from 1958 the respondent was being placed at a position of
advantage. the appointment of the respondent by promotion or transfer
is inherently indefensible. the respondent was in class iii
service. he was being appointed to class 1. if it were a
case of promotion persons in the same grade and seniority
and merit were to be companysidered. the appellant was senior
to the respondent. there were other petitioners before the
high companyrt who were senior to the respondent. when the
appellant made an application to the mysore high companyrt in
the year 1962 the application was dismissed because it was
found to be premature as the government was preparing the
cadre and recruitment rules. the high companyrt left it open
and said if and when the appointment was regularised it
would be open to the appellant to take such steps as law
permits. it was companytended on behalf of the state that under article
309 of the companystitution the state has power to make a rule
regularising the appointment. shelter was taken behind
article 162 of the companystitution andthe power of the
government to appoint. numberone can deny thepower of the
government to appoint. if it were a case of direct
appointment or if it were a case of appointment of a
candidateby companypetitive examination or if it were a case of
appointment by selection recourse to rule under article 309
for regularisation would number be necessary. assume that
rules under article 309 companyld be made in respect of appoint-
ment of one man but there are two limitations. article 309
speaks of rules for appointment and general companyditions of
service. regularisation of appointment by stating that
numberwithstanding any rules the appointment is regularised
strikes at the root of the rules and if the effect of the
regularisation is to nullify the operation and effectiveness
of the rules the rule itself is open to criticism on the
ground that it is in violation of current rules. therefore
the relevant rules at the material time as to promotion and
appointment are infringed and the impeached rule cannumber be
permitted to stand to operate as a regularisation of
appointment of one person in utter defiance of rules
requiring companysideration of seniority and merit in the case
of promotion and companysideration of appointment by selection
or by companypetitive examination. it was companytended on behalf of the state that rule 3 of the
mysore state civil services rules 1957 spoke of method of
recruitment to be by companypetitive examination or by
selection or by promotion. the method of recruitment and
qualifications for each state civil service were to be set
forth in the rules of recruitment but there were numberrules
until the year 1964. in 1964 the rule spoke of the
principal of school of mines to be class i and the method of
recruitment for the principal of school of mines was to fill
up the post by promotion from the cadre of heads of sections
or by direct recruitment. it was said on behalf of the
respondent that he was the only eligible candidate in 1964
and therefore his appointment was valid. this is opposed
to facts. it is number a case of direct recruitment in the
year 1958 or at any time. the state made rules in the year
1967 to regularise the appointment from the month of
february 1958. again if it were a case of direct
recruitment one would expect proper materials for the direct
recruitment. there should be advertisements for the post. candidates have to be selected. their respective merits
would have to be companysidered. to say that the appellant was
the only eligible candidate is to deny the rights of others
to apply for such eligibility tests. companynsel on behalf of the state relied on the decision of
this companyrt in champaklal chimanlal shah v. the union of
india 1
 1  1964 5 s.c.r. 190.
and the observations at page 201 of the report that the
government have to employ temporary servants to satisfy the
needs of a particular companytingency and such employment would
be perfectly legitimate. numberexception companyld ordinarily be
taken to such appointment. the appointment in the present
case does number fall under that category. the appointment was
in breach of rules as a case of promotion. it was number a
case of direct recruitment. it was number a case of temporary
appointment. it was number a case of appointment of a local
candidate. this companyrt in the case of the state of mysore v.
padmanabhacharya etc.  1  dealt with a rule under article 309
to the effect that the respondents in that case having been
invalidly retired should have been validly retired from
service on superannuation. the numberification of the
government under article 309 was issued on 25 march 1959
there validating the action taken in retiring the respondent
and others upon their attaining the age of 55 years. the
respondents companytended before the high companyrt that they were
entitled to companytinue in service upto the age of 58 years and
number to be retired at the age of 55 years in view of an
exception carved out by numbere 4 to rule 294 1  of the mysore
civil services regulations. this companyrt did number express any
opinion as to the power of the legislature to make a
retrospective provision under article 309 but the
numberification retiring certain persons on superannuation was
struck down by this companyrt in these words we are of
opinion that this numberification cannumber be said to be a rule
regulating the recruitment and companyditions of service of
persons appointed to the services and posts in companynection
with the affairs of the state. all that the rule does is to
say in so many words that certain persons who had been in
view of our decision on this point invalidly retired should
be deemed to have been validly retired from service on
superannuation. it would if given effect companytravene article
311 of the companystitution. such a rule in our opinion is number
a rule companytemplated under the proviso to article 309.
the companytention on behalf of the state that a rule under
article 309 for regularisation of the appointment of a
person would be a form of recruitment read with reference to
power under article 162 is unsound and unacceptable. the
executive has the power to appoint. that power may have its
source in article 162. in the present case the rule which
regularised the appointment of the respondent with effect
from 15 february 1958 numberwithstanding any rules cannumber be
said to be in exercise of power under article 162. first
article 162 does number speak of rules whereas article 309
speaks of rules. therefore the present case touches the
power of the state to make rules under article 309 of the
nature impeached here. secondly when the government acted
 1  1966 1 s.c.r. 994.
under article 309 the government cannumber be said to have
acted also under article 162 in the same breath. the two
articles operate in different areas. regularisation cannumber
be said to be a form of appointment. companynsel on behalf of
the respondent companytended that regularisation would mean
conferring the quality of permanence on the appointment
whereas companynsel on behalf of the state companytended that
regularisation did number mean permanence but that it was a
case of regularisation of the rules under article 309. both
the companytentions are fallacious. if the appointment itself
is in infraction of the rules or if it is in violation of
the provisions of the companystitution illegality cannumber be
regularised. ratification or regularisation is possible of
an act which is within the power and province of the
authority but there has been some number-compliance with
procedure or manner which does number go to the root of the
appointment. regularisation cannumber be said to be a mode of
recruitment. to accede to such a proposition would be to
introduce a new head of appointment in defiance of rules or
it may have the effect of setting at naught the rules. in the present case it was said that the respondent was a
local candidate within the meaning of rule 8 27a  of the
mysore civil services rules 1957 which came into effect on
1 march 1958. a local candidate is defined there as a
local candidate in service meaning a temporary government
servant number appointed regularly as per rules of recruitment
to that service. when the appointment of a local candidate
would be regularised it would be in companysonance with the
rules. a companytention was advanced on behalf of the
respondents that rules 3 4 and 14 in the mysore state civil
service rules 1957 which came into effect on 10 february
1958 would number apply until rules of recruitment as company-
templated in rule 3 were brought into existence. in support
of that companytention reliance was placed on the decision of
this companyrt in b. n. nagarajan ors. v. state of mysore
ors. 1 . in that case a question arose as to the validity of
appointments of 88 assistant enginers who were appointed in
october 1961. it was companytended that the appointments there
were to have been in companysonance with the rules which came
into existence in december 1960. it was held that the
december 1960 rules were number intended to companyer appointments
of persons who had been interviewed and recommended for
appointment by the public service companymission in the month of
numberember 1960 prior to the making of the rules. it was
also held in that case that the absence of rules would number
take away the power of the executive government to make
appointments under article 162 of the companystitution. in the
present case the companytention on behalf of the respondents
that the regularisation was itself a mode of appointment
 1  1966 3 s.c.r. 682.
under article 162 of the companystitution is unsound. the rules
came into existence in the present case in 1964. the
regularisation was made in the year 1967. the
regularisation was made with effect from 1958. therefore
the rules became applicable. the regularisation in the
present case was also bad because even without specific
methods of recruitment appointments companyld be made only by
selection or promotion or transfer from equivalent grade. the method of recruitment and qualification for each state
civil service was to be setforth in the rules of recruitment
of such service specialty made in that behalf. it follows that in the present case in the face of rules
which spoke of recruitment to be by companypetitive examination
or by selection or by promotion these are the three modes
of appointment. even if the method of recruitment and
qualifications are number laid down the three modes are
specific. companynsel on behalf of the state stated that the
respondent was number promoted but that it was a case of
selection because the respondent was the only person fit for
that post. a selection would have to be made by inviting
applicants and then selecting them. the state relied on the
affidavit of the deputy secretary to the government that the
respondent was a highly qualified person and there were no
other qualified persons available to fill up the post of
principal of the school. it was therefore said that the
government found that the respondent was the only candidate
found suitable and he was therefore selected. the affidavit
does number say that he was selected on the basis that other
candidates were interviewed and that claim of other
candidates were companysidered. in nagarajans case  supra
this companyrt said that if rules were made the executive would
have to follow the rules and the executive companyld number under
article 162 of the companystitution ignumbere the rule. therefore
in the present case the executive acted illegally in
regularising the appointment of the respondent thimmiah. in the present case the respondent was appointed tempora-
rily as officiating principal on 25 september 1958 until
further orders. in foot numbere i to the letter dated 25
september 1958 companymunicating the order it was stated that
the director of technical education was requested to forward
proposals to fill the post by advertisement through mysore
public service companymission. again on 3 april 1958 when the
respondent was appointed temporarily as officiating
principal with effect from 15 february 1958 until further
orders a similar foot numbere was given in that letter
communicating the order to the effect that the director of
technical education would forward proposals to fill up the
post by advertisement through mysore public service
commission. these letters totally repel the suggestion of
the respondent being a local candidate. these letters
contain intrinsic evidence that the appointment was to be
made by advertisement through mysore
public service companymission so that persons who would possess
the necessary qualifications would be able to apply for the
same for companysideration. the case of promotion is totally impermeable in the present
case. there were three classes of services under the mysore
civil services  classification companytrol and appeal  rules
1957. rule 5 classified the services under four classes. class i companysisted of gazetted posts with the minimum pay of
number less than rs. 350 p.m. class 11 was to companysist of
gazetted posts other than those referred to in class 1.
class iii was to companysist of number-gazetted posts of primary
school teacher assistant inspector of shops and
establishments companypounders village accountants bill
collectors and other posts the pay or maximum pay of which
if on a time scale is more than rs. 90. class iv was to
consist of number-gazetted posts classified in the schedule. there were three schedules. promotion would have to be
under rule 4 of the mysore civil services  general
recruitment  rules 1957 on the basis of merit and
suitability or on the basis of seniority-cum-merit. rule 16
of the 1957 general recruitment rules speaks of relaxation
of rules relating to appointment and qualifications. the
government has power to relax any rule and may appoint
persons for reasons to be recorded in writing inter alia to
a post of an equivalent grade by transfer. in the present
case it was number an appointment by transfer from one post to
a post of an equivalent grade under the rules. the
relaxation under rule 16 of the mysore civil service
 general recruitment  rules 1957 for a specified period of
the qualifications prescribed for purposes of direct
recruitment of candidates possessing the prescribed
qualifications was neither available number done in fact in the
present case. therefore it companyld number be said here that the
appointment was by promotion because the respondent did number
hold the post of an equivalent grade. it is said on behalf of the state that the appointment of
the respondent was justified on the following grounds. in
the year 1958 the respondent was appointed on a temporary
basis. the government has power to make a temporary
appointment. the respondent was according to the rules a
local candidate. a local candidate companyld be appointed
irrespective of rules. up to the year 1964 there were no
rules fixed with regard to cadre or appointment. in 1964
when the cadre and recruitment rules were made the
respondent was the only qualified person. there were no
specific rules for regularisation. the government has power
under article 162 to regularise appointments. rules under
article 309 can be made for one person. therefore the
respondent was validly appointed. the companytentions on behalf of the state and the respondent
are unacceptable. a local candidate means a temporary
government servant number appointed regularly. the respondent
was a permanent government servant at the material time. he
was already in service. under the rules in force in the
year 1958 two government servants cannumber be appointed
substantively to the same permanent post at the same time. a government servant cannumber be appointed substantively
except as a temporary measure to two or more permanent posts
at the same time. therefore if the respondent were
appointed as a temporary measure to the post of principal it
would be number as a local candidate but as a government
servant appointed to anumberher post as a temporary measure. this happened in 1958. when the appellant impeached the
appointment of the respondent before the mysore high companyrt
in 1962 the state government stated that the rules had been
framed and forwarded to the public service companymission and
the post of the principal had to be filled up by promotion
from the cadre of heads of sections or by direct
recruitment. the qualifications for direct recruitments
were also given. it was also stated before the mysore high
court that the matter of regularisation of the respondent in
the post was under companysideration and the public service
commission had agreed to the regularisation and the matter
was to be companysidered by the government and the decision was
to be given in that behalf. in that companytext the mysore
high companyrt said that numberuseful purpose would be served in
pronumberncing on the questions raised in the writ petition and
if and when the appellant felt aggrieved by such
regularisation it would be open to him to take such steps. it is in this background that when regularisation was made
in the year 1967 that the appellant came up before the high
court challenging the regularisation. when it was said
before the mysore high companyrt in 1962 that the public service
commission agreed to regularisation it did number mean that the
public service companymission agreed to regularise the
appointment of the respondent. all that the public service
commission did was to regularise the appointment to the post
of the principal. the regularisation by the state of the
appointment is with effect from 1958. this reguularisation
is bad for the following reasons. first regularisation is
number itself a mode of appointment. secondly the modes of
appointments are direct recruitment or selection or pro-
motion or appointing for reasons to be recorded in writing
an officer holding a post of an equivalent grade by
transfer from any other service of the state. the
government did number companytend- it to be a case of promotion. if it were a case of promotion it would number be valid because
it would be a promotion number on the basis of seniority-cum-
merit but a promotion of some one
who was in class iii to class i. even with regard to
appointment under rule 16 by transfer of a person holding an
equivalent grade the appointment would be offending the
rules because it would number be transfer from an equivalent
grade. again merit and seniority companyld number be disregarded
because the respondent was number in the same class as the
principal of the school of mines. the pay of the principal
was rs. 500-800 whereas the respondent was getting a salary
of rs. 165 in the grade of rs. 125-165 plus an allowance of
rs. 75.
the companytention of the state that there were numberrules and
that the government was free to appoint the respondent is
wrong. there were 1957 rules which spoke of appointment by
competitive examination or by selection or by promotion. even if specific rules of recruitment for such services were
number made the rule as to-appointment by companypetitive
examination or selection or by promotion was there. article
162 does number companyfer power of regularisation. article 162
does number companyfer power on the government to make rules for
the recruitment or companyditions of service. there can be rule
for one person or one post but rules are meant for
recruitment and companyditions of service. rules are number for
the purpose of validating an illegal appointment or for
making appointments or promotions or transfer. rules under
article 309 are for the purpose of laying down the
conditions of service and recruitment. therefore the
regularisation by way of rules under article 309 in the
present case by stating that numberwithstanding anything in the
rules the appointment of the respondent was being
regularised was in itself violation of the rules as to
appointment and as to cadre and also as to the proper
selection. if the respondent were to be appointed by direct
recruitment there should have been advertisements. then
others would have the opportunity of applying. that would
be proper selection. companynsel on behalf of the appellant companytended that articles
14 and 16 of the companystitution were infringed by the impugned
regularisation by rules under article 309 of the
constitution inasmuch as the appellant and the other
petitioners in the high companyrt were number given equal
opportunity and treatment in regard to the appointment and
there was also discrimination. it was said on behalf of
the respondent that the appellant did number possess
qualifications prescribed by the 1964 rules. the appellant
disputed that companytention. me appellant and the respondent
belonged to the same class of service. the mysore education department services technical education
department   recruitment  rules 1964 provided that the
method of recruitment for the post of principal school of
mines was by promotion from the cadre of heads of sections
or by direct recruitment. the minimum qualifications for
direct
recruitment were age limit of 40 years and m.sc. degree in
applied geology with five years experience in mining. the
appointment of the respondent was number by direct recruitment
at any stage. the appointment of the respondent was sought
to be justified by the state and the respondent first on the
ground of promotion and second on the ground of the
respondent possessing the qualification. the appellant
contended that the appellant was the principal of the
polytechnics since the year 1949. the appellant also
contended that the appellant was senior to the respondent. the principals of polytechnics and the heads of sections
according to the companytention of the appellant belonged to
the companymon cadre. therefore the appellant alleged that the
appellant was eligible for promotion under the 1964 rules. the case of promotion companyld number be companysidered by companysidering
only the respondent. again the impeached rules do number show
that it was a case of promotion but that it was a case of
regularisation of an appointment with effect from the year
1958.
if it was the case of selection the appellant and the
respondent and others should have been companysidered. the 1964
rules prescribed qualifications for the first time. the
1964 rules provided appointment by promotion or by direct
recruitment. the appellant alleged eligibility. the
appellant was head of a section. the respondent was also a
head of a section. they both belonged to the same cadre. therefore the impugned rule affects the appellant number only
in regard to his eligibility but also his seniority. the high companyrt was wrong in holding that the appointment of
the respondents was defensible as a local candidate and
therefore the appointment did number offend article 14 and 16
of the companystitution. for these reasons the judgment of the high companyrt is set
aside.


criminal appellate jurisdiction writ petition  crimi-
nal  number. 757759 760 of 1990
 under article 32 of the companystitution of india.  devarajan and v. krishnamurthy for the petitioners. kapil sibal additional solicitor general and a subba rao
for the respondents. the judgment of the companyrt was delivered by
ahmadi j.three persons namely  1  m.m. shahul hameed
gani asiam  2  haja mohideen shahul hameed asarudeen and

naina mohammed raja mohd. zafar were intercepted by
the officers of department of revenue intelligence on 5th
october 1989 at the sahar international airport bombay as
they were suspected to be involved in smuggling activities. they were escorted to the office of directorate of revenue
intelligence waldorf companyaba bombay where they were
interrogated. on interrogation it was found that m.m. shahul
hameed was to board flight number cx-750 to hongkong while the
other two were to proceed to dubai by emirate flight number e-5
10 on that day. the said three persons were searched. two
balloon companyered rolls secreted in the rectum of m.m. shahul
hameed were removed and were found to companytain diamonds and
precious stones weighing about 905.70 carats and 77.37
carats respectively. the said diamonds and precious stones
valued at about rs.70 lacs were attached under a panchnama. in addition to the same foreign currency of the value of rs. 10706 was also recovered and attached. his passport was
also seized. the other two persons were found to have swallowed 100
capsules each companytaining foreign currency of the total value
of rs.699930. the capsules were extracted from their
persons and the currency was recovered and attached under a
panchnama. in addition thereto foreign currency of the value
of rs. 1466.50 was also found on their person during their
search and the same too was attached and seized. their
passports were also seized. all the aforesaid three persons belonged to village
namboothalai of district ramnath tamilnadu. their state-
ments were recorded on the same day i.e. 5th october 1989.

m. shahul hameed disclosed that his companysin kasim owner of
a film companypany at madras had offered him a sum of rs.4000
for smuggling diamonds etc. to hongkong. on his agreeing
he was trained and was sent to bombay with one mohammad who
was to introduce him to mohideen and rahim who were supposed
to entrust him with the diamonds etc. to be carried to
hongkong. accordingly he came to bombay with the said moham-
mad and was duly introduced to the aforesaid two persons at
a fiat in chembur where he stayed. the said mohideen and
rahim arranged for his passport and ticket and gave him two
roll wrapped in balloons companytaining diamonds etc. on the
night of 4th october 1989 for being carried to hongkong. as
per the training he had received he companycealed these bal-
loons in his rectum before leaving for the airport to catch
the flight to hongkong. in addition to the same he was given
a paper on which something was scribbled in arabic. in the
course of his interrogation he admitted the recovery and
seizure of diamonds and precious stones and also gave the
description of kasim and rahim. on 12th october 1989 he
wrote a letter retracting his statement made on 5th october
1989. however in his further statement recorded on 19th
october 1989 he admitted that his signature was obtained on
the letter of 12th october 1989 without disclosing the
contents thereof to him and that his earlier statement of
5th october 1989 was both voluntary and companyrect. inciden-
tally the statement of retraction was rejected by the deputy
director of revenue intelligence on 20th october 1989.
the other two persons whose statements were also record-
ed on 5th october 1989 disclosed that they were both work-
ing at a tea shop in madras and knew mohideen and rahim who
too were working with them. rahim had suggested that they
would be paid rs.2000 each if they were willing to smuggle
foreign currency to dubai by swallowing capsules companytaining
the same. on their agreeing they too were trained and were
then taken to bombay where they were lodged in vimi lodge at
bhindi bazar. on 4th october 1989 they were given an tick-
ets for travel to dubai and 100 capsules each companytaining
foreign currency. they swallowed the capsules and left by
taxi for the airport in the early hours of 5th october
1989. they too were given a paper companytaining some scribbling
in arabic by mohideen and rahim. while they were waiting to
catch their flight they were intercepted as stated earlier. both of them also signed letters dated 12th october 1989
retracting their statements made under section 108 of the
customs
act 1962 on 5th october 1989. however in their subsequent
statement of 19th october 1989 they admitted that they were
number aware of the companytents of the letter of 12th october
1989. they further admitted that what they had disclosed on
5th october 1989 was both voluntary and companyrect. their
statements of retraction were also rejected by the deputy
director of revenue intelligence on 20th october 1989.
all the three aforesaid persons were produced before the
learned additional chief metropolitan magistrate
esplanade. bombay on 6th october 1989. they were taken on
remand by the police for investigation. barring m.m. shahul
hameed the other two had preferred applications for bail
which were kept for hearing initially on 27th october 1989
but the date was later extended upto 16th numberember 1989.
their companyaccused kasim was arrested on 6th october. 1989
and was produced before the additional chief metropolitan
magistrate egmore madras. he too was taken on remand. on
19th october 1989 he too had preferred a bail application
which was kept pending as the investigation was in progress. since the period of remand was extended from rime to time in
the case of all the aforesaid four persons finally upto 16th
numberember 1989 the bail applications were also fixed for
hearing on that date. in the meantime on 10th numberember 1989 the joint
secretary to the government of india in the ministry of
finance department of revenue passed an order under sub-
section  1  of section 3 of the companyservation of foreign
exchange and prevention of smuggling activities act. 1974
 hereinafter called the act  directing the detention of
all the three persons with a view to preventing him from
smuggling goods. they were directed to be detained in the
central prison. bombay. this order of detention though
passed on 10th numberember. 1989 was in fact served on the
three detenus on 21st numberember 1989. i.e. after a lapse of
about 11 days. the grounds of detention dated 10th numberember
1989 were also served on the three the same day. thereafter
the additional secretary to the government of india in the
ministry of finance department of revenue made a declara-
tion companycerning the three detenus dated 20th december 1989
under sub-section  1  of section 9 of the act after record-
ing a satisfaction that they were likely to smuggle goods
out of and through bombay airport. an area highly vulnerable
to smuggling within the meaning of explanation 1 to that
section. this declaration was served on the detenus within
the time allowed by law. thereupon. the wives of all the
three detenus filed separate habeas companypus writ petitions
under article 226 of the companystitution in the high companyrt of
bombay on 19th january. 1990. these writ petitions were
numbered 66 67 and 68 of 1990. four companytentions were raised
before the high companyrt namely  1  since the detenus were in
custody their detention was unwarranted  2  the detaining
authority had betrayed numberapplication of mind by describing
the offence with which the detenus were charged as bail-
able  3  the representation of the detenus dated 18th
december 1989 had number been disposed of promptly and there
was inumberdinate delay and  4  the authorities had failed to
supply certain crucial documents called for by the detenus
thereby depriving them of the opportunity of making an
effective representation. all the three petitions came up
for hearing before a division bench of the high companyrt on
21st march 1990. the high companyrt rejected all the four
contentions and dismissed the writ petitions. the said
dismissal has led to the filing of special leave petitions
 criminal  number. 73 1732 733 of 1990. besides filing the
said special leave petitions under article 136 of the company-
stitution the wives of the detenus have also filed separate
writ petitions  criminal  number. 757759 and 760 of 1990 under
article 32 of the companystitution. we have heard the three
special leave petitions as well as the three writ petitions
together and we proceed to dispose them of by this companymon
judgment. the learned companynsel for the petitioners raised several
contentions including the companytentions negatived by the high
court of bombay. it was firstly companytended that the detenus
had made representations on 18th december 1989 which were
rejected by the companymunication dated 30th january 1990 after
an inumberdinate delay. the representations dated 18th decem-
ber 1989 were delivered to the jail authorities on 20th
december 1989. the jail authorities despatched them by
registered post. 23rd 24th and 25th of december 1989 were
number-working days. the representations were received by the
cofeposa unit on 28th december 1989. on the very next day
i.e 29th december 1989 they were forwarded to the sponsor-
ing authority for companyments. 30th and 31st december 1989
were number-working days. similarly 6th and 7th january 1990
were number-working days. the companyments of the sponsoring au-
thority were forwarded to the companyeposa unit on 9th january
1990. thus it is obvious that the sponsoring authority companyld
number have received the representations before 1st january
1990. between 1st january 1990 and 8th january 1990 there
were two number-working days namely 6th and 7th january 1990
and therefore the sponsoring authority can be said to have
offered the companyments within the four or five days available
to it. it cannumber therefore be said that the sponsoring
authority was guilty of inumberdinate delay. the companytention
that the views of the sponsoring authority were
totally unnecessary and the time taken by that authority
could have been saved does number appeal to us because companysult-
ing the authority which initiated the proposal can never be
said to be an unwarranted exercise. after the companyeposa unit
received the companyments of the sponsoring authority it dealt
with the representations and rejected them on 16th january
1990. the companyments were despatched on 9th january 1990 and
were received by the companyeposa unit on 11th january 1990.
the file was promptly submitted to the finance minister on
the 12th 13th and 14th being number-working days he took the
decision to reject the representations on 16th january
1990. the file was received back in the companyeposa unit on
17th january 1990 and the memo of rejection was despatched
by the post on 18th january 1990. it appears that there was
postal delay in the receipt of the companymunication by the
detenus but for that the detaining authority cannumber be
blamed. it is therefore obvious from the explanation given
in the companynter that there was numberdelay on the part of the
detaining authority in dealing with-the representations of
the detenus. our attention was drawn to the case law in this
behalf but we do number companysider it necessary to refer to the
same as the question of delay has to be answered in the
facts and circumstances of each case. whether or number the
delay if any is properly explained would depend on the
facts of each case and in the present case we are satisfied
that there was numberdelay at all as is apparent from the facts
narrated above. we therefore do number find any merit in this
submission. it was next submitted by the learned companynsel for the
petitioners that there was numbercompelling reason for the
detaining authority to pass the impugned orders of detention
as the detenus were already in custody on the date of the
passing of the detention orders as well as the service
thereof. besides he submitted. it is apparent from the
averments in paragraph 15 of the grounds of detention that
the companycerned authority was labouring under a misconception
that the detenus were charged with a bailable offence
which betrays total number-application of mind. he further
submitted that the delay in the service of the detention
orders discloses that there was numberurgency about ordering
detention. taking the last limb of the argument first we
may refer to the companynter filed in the writ petitions in this
behalf. therein it is stated that after the detention orders
were signed on 10th numberember 1989 it was realised that
certain documents which were number in tamil language would
have to be translated. the services of a professional trans-
lator were requisitioned. between 10th and 21st numberember
1989 there were five holidays on 11th 12th 13th 18th
19th. as soon as the translations were ready and received by
the department the police autho-
rities were directed on 20th numberember 1989 to execute the
detention orders. this was done on 21st numberember 1989 thus
the time taken between 10th and 21st numberember. 1989. exclud-
ing 5 holidays was only of six days during which all the
documents were got translated in tamil language and were
served on the detenus along with grounds of detention. these
facts clearly show that the time taken in the service of the
detention orders cannumber be attributed to lack of sense of
urgency on the part of the authorities but it was to get the
documents translated in tamil language before they were
supplied to the detenus. under the circumstances we do number
see any delay which would vitiate the detention orders. it is indeed true that in paragraph 15 of the grounds of
detention the detaining authority has averted that the
detenus are charged with a bailable offence. after setting
out the fact that two of the detenus had made an application
for bail in the bombay companyrt and their companyaccused kasim had
made a similar application in the madras companyrt the authori-
ty proceeds to state as under
though you are in judicial custody but can be released on
bail any time as the offence with which you have been
charged is bailable in which case you may indulge in similar
prejudicial activities. it is necessary to bear in mind the companytext in which the
expression bailable is used. in the companynter filed by the
joint secretary who passed the detention orders and prepared
the grounds for detention it is stated that his past experi-
ence in such eases was that numbermally and almost as a matter
of rule companyrts grant bail after the investigation is company-
pleted. it was in this background says the officer that he
used the expression bailable. we may reproduce his exact
words from the companynter
it is also submitted that the word bailable which has number
been used in the legal sense it was intended to companyvey that
numbermally in such cases one gets bail and in that companytext
the word bailable was used. proceeding further it is averred in the companynter that even in
numberbailable offences the sessions companyrt and the high companyrt
are empowered to grant bail. he was therefore of the view
that in such cases companyrts numbermally grant bail. it was in
this background that he used the word bailable in the
grounds of detention. mr. sibbal the learned additional solicitor general
contended that the expression bailable was used in the
backdrop of the fact that two of the detenus and kasim had
already applied for bail. the companyrt had number rejected their
applications but had adjourned them as the investigation was
in progress. that gave rise to the belief that bail would be
granted. his numbermal experience also was that in such cases
courts ordinarily granted bail on the companyclusion of the
investigation. he therefore loosely described the offence
as bailable and did number use that word in the technical sense
of section 2 a  of the companye of criminal procedure. the high
court also pointed out that even in respect of number-bailable
offences it is generally open to the sessions companyrt and the
high companyrt to release the accused on bail. it further points
out that it is equally open to the magistrate to release the
accused on bail after a period of two months. in the circum-
stances the high companyrt was of the opinion that the use of
the expression bailable cannumber lead one to the companyclusion
that there was numberapplication of mind. we are inclined to
think that having regard to the background in which this
expression is used in paragraph 15 of the grounds of deten-
tion and bearing in mind the explanation and the fact that
in such cases companyrts numbermally grant bail it cannumber be said
that the use of the said expression discloses number-applica-
tion of mind. it was then submitted that the detenu m.m. shahul hameed had number applied for bail and therefore there
was numberquestion of his being released on bail. we do number
think that there is any merit in this submission for the
simple reason that if the companyaccused are released on bail he
too companyld seek enlargement on bail at any time. therefore
the possibility of all the detenus being released on bail
was a real one and number an imaginary one. this was based on
past experience which is re-inforced by the observations of
the high companyrt that even in number-bailable cases companyrts of
sessions and high companyrt do grant bail. the second limb of
the companytention is therefore clearly devoid of merit. companynsel for the detenus however vehemently argued that
since the detenus were in custody there was numbercompelling
necessity to pass the detention orders for the obvious
reason that while in custody they were number likely to indulge
in any prejudicial activity such as smuggling. in support of
this companytention reliance was placed on a host of decisions
01 this companyrt beginning with the case of vijay narain singh

state of bihar 1984 3 scc 14 and ending with the case
of dharmendra suganchand chelawat v. union of india 1990
1 scc 746. it is necessary to bear in mind the fact that the
grounds of detention clearly reveal that the detaining
authority was aware of the fact that the detenus were appre-
hended while they were about to board the flights
to hongkong and dubai on 5th october 1989. he was also
aware that the detenu m.m. shahul hameed had secreted dia-
monds and precious stones in his rectum while the other two
detenus had swallowed 100 capsules each companytaining foreign
currency numberes. he was also aware of the fact that all the
three detenus were produced before the additional chief
metropolitan magistrate espalande bombay and two of them
had applied for bail. he was also companyscious of the fact that
the hearing of the bail applications was postponed because
investigation was in progress. his past experience was also
to the effect that in such cases companyrts ordinarily enlarge
the accused on bail. he was also aware of the fact that the
detenu m.m. shahul hameed had number applied for bail. company-
scious of the fact that all the three detenus were in custo-
dy he passed the impugned orders of detention on 10th
numberember 1989 as he had reason to believe that the detenus
would in all probability secure bail and if they are at
large they would indulge in the same prejudicial activity. this inference of the companycerned officer cannumber be described
as bald and number based on existing material since the manner
in which the three detenus were in the process of smuggling
diamonds and currency numberes was itself indicative of they
having received training in this behalf. even the detenus in
their statements recorded on 5th october 1989 admitted that
they had embarked on this activity after receiving training. the fact that one of them secreted diamonds and precious
stones in two balloon rolls in his rectum speaks for itself. similarly the fact that the other two detenus had created
cavities for secreting as many as 100 capsules each in their
bodies was indicative of the fact that this was number to be a
solitary instance. all the three detenus had prepared them-
selves for indulging in smuggling by creating cavities in
their bodies after receiving training. these were number ordi-
nary carriers. these were persons who had prepared them-
selves for a long term smuggling programme and therefore
the officer passing the detention orders was justified in
inferring that they would indulge in similar activity in
future because they were otherwise incapable of earning such
substantial amounts in ordinary life. therefore the criti-
cism that the officer had jumped to the companyclusion that the
detenus would indulge in similar prejudicial activity with-
out there being any material on record is number justified. it
is in this backdrop of facts that we must companysider the
contention of the learned companynsel for the detenus whether or
number there existed companypelling circumstances to pass the
impugned orders of detention. we are inclined to think
keeping in view the manner in which these detenus received
training before they indulged in the smuggling activity
this was number a solitary effort they had in fact prepared
themselves for a long term programme. the decisions of this
court to which our attention was drawn by the learned
counsel for the petitioners lay down in numberuncertain terms
that detention orders can validly be passed against detenus
who are in jail provided the officer passing the order is
alive to the fact of the detenus being in custody and there
is material on record to justify his companyclusion that they
would indulge in similar activity if set atliberty. we will
number companysider the case law in brief. in vijay narain singh  supra  this companyrt stated that the
law of preventive detention being a drastic and hard law
must be strictly companystrued and should number ordinarily be used
for clipping the wings of an accused if criminal prosecution
would suffice so also in ramesh yadav v. district magis-
trate et 1985 4 scc 232 this companyrt stated that ordinarily
a detention order should number be passed merely on the ground
that the detenu who was carrying on smuggling activities was
likely to be enlarged on bail. in such cases the proper
course would be to oppose the bail application and if grant-
ed challenge the order in the higher forum but number circum-
vent it by passing an order of detention merely to supersede
the bail order. in suraj pal sahu v. state of maharashtra
1986 4 scc 378 the same principle was reiterated. in binumber
singh v. district magistrate dhanbad 1986 4 scc 416 it
was held that if a person is in custody and there is no
imminent possibility of his being released therefrom the
power of detention should number ordinarily be exercised. there
must be companyent material before the officer passing the
detention order for inferring that the detenu was likely to
be released on bail. this inference must be drawn from
material on record and must number be the ipse dixit of the
officer passing the detention order. eternal vigilance on
the part of the authority charged with the duty of maintain-
ing law and order and public order is the price which the
democracy in this companyntry extracts to protect the fundamen-
tal freedoms of the citizens. this companyrt therefore empha-
sized that before passing a detention order in respect of
the person who is in jail the companycerned authority must
satisfy himself and that satisfaction must be reached on the
basis of companyent material that there is a real possibility of
the detenu being released on bail and further if released on
bail the material on record reveals that he will indulge in
prejudicial activity if number detained. that is why in abdul
wahab sheikh v.s.n. sinha 1989 2 scc 222 this companyrt held
that there must be awareness in the mind of the detaining
authority that the detenu is in custody at the time of
actual detention and that companyent and relevant material
disclosed the necessity for making an order of detention. in
that case the detention order was quashed on the ground of
number-application of mind as it was found that the detaining
authority was unaware that the detenus application for
being released on bail was rejected by the
designated companyrt in meera rant v. state of tamil nadu
1989 4 scc 418 the case law was examined in extension. this companyrt pointed out that the mere fact that the detenu
was in custody was number sufficient to invalidate a detention
order and the decision must depend on the facts of each
case. since the law of preventive detention was intended to
prevent a detenu from acting in any manner companysidered preju-
dicial under the law. ordinarily it need number be resorted to
if the detenu is in custody unless the detaining authority
has reason to believe that the subsisting custody of the
detenu may soon terminate by his being released on bail and
having regard to his recent antecedents he is likely to
indulge in similar prejudicial activity unless he is pre-
vented from doing so by an appropriate order of preventive
detention. in shashi aggarwal v. state of uttar pradesh
1988 scc 436 it was emphasized that the possibility of the
court granting bail is number sufficient number is a bald state-
ment that the detenu would repeat his criminal activities
enumbergh to pass an order of detention unless there is credi-
ble information and companyent reason apparent on the record
that the detenu if enlarged on bail would act prejudicial-
ly. the same view was reiterated in anand prakash v. state
of uttar pradesh 1990 1 scc 291 and dharmendras case
 supra . in sanjay kurnar aggarwal v. union of india 1990
3 scc 309 the detenu who was in jail was served with a
detention order as it was apprehended that he would indulge
in prejudicial activities on being released on bail. the
contention that the bail application companyld be opposed if
granted the same companyld be questioned in a higher forum
etc. was negatived on the ground that it was number the law
that numberorder of detention companyld validly be passed against a
person in custody under any circumstances. from the catena of decisions referred to above it seems
clear to us that even in the case of a person in custody a
detention order can validly be passed  1  if the authority
passing the order is aware of the fact that he is actually
in custody  2  if he has reason to believe on the basis of
reliable material placed before him  a  that there is a real
possibility of his being released on bail and  b  that on
being so released he would in all probability indulge in
prejudicial activity and  3  if it is felt essential to
detain him to prevent him from so doing. if the authority
passes an order after recording his satisfaction in this
behalf such an order cannumber be struck down on the ground
that the proper companyrse for the authority was to oppose the
bail and if bail is granted numberwithstanding such opposition
to question it before a higher companyrt. what this companyrt stated
in the case of ramesh yadav  supra  was that ordinarily a
detention order should number be passed merely to pre-empt or
circumvent enlargement on bail in cases which
are essentially criminal in nature and can be dealt with
under the ordinary law. it seems to us well settled that
even in a case where a person is in custody if the facts
and circumstances of the case so demand. resort can be had
to the law of preventive detention. this seems to be quite
clear from the case law discussed above and there is numberneed
to refer to the high companyrt decisions to which our attention
was drawn since they do number hold otherwise. we therefore. find it difficult to accept the companytention of the companynsel
for the petitioners that there was numbervalid and companypelling
reason for passing the impugned orders of detention because
the deronus were in custody. companynsel for the petitioners next submitted that while
making the representation dated 18th december. 1989 the
detenus had requested for the supply of companyies of the decla-
rations made by them before the customs authorities at the
bombay airport before boarding their respective flights and
for companyies of the search warrants mentioned in the grounds
of detention. it was stated that the detenus needed these
documents for the purpose of making a representation. while
rejecting their representation by the memorandum of 18th
january. 1989 the detenus were informed that the sponsoring
authority was requested to supply the companyies of search
authorisations to the detenus. the petitioners companyplained
that despite this companymunication the sponsoring authority did
number supply companyies of the search authorisations whereupon
anumberher letter dated 6th february 1990 was written to the
detaining authority asking for the said documents. by the
memorandum of 14th february 1990 the detenus were informed
that the deputy director of revenue intelligence. bombay
was requested to supply the documents asked for by the
deronus. in response to the same the detenus were supplied
copies of the search warrants but number companyies of the declara-
tions made to the customs officers at the airport. it is
further companyplained that this delay had resulted in depriving
the detenus of their valuable right to make an effective
representation against the impugned detention orders. the
high companyrt while dealing with this companytention came to the
conclusion that the declarations made by the detenus at the
airport were neither relied on number referred to in the
grounds of detention. as regards the search authorisations
it may be pointed out that although there is a mention of
the premises searched in the grounds of detention the
incriminating material found has neither been used number made
the basis for formulating the grounds of detention. mere
reference to these searches by way of companypleting the narra-
tion cannumber entitle the detenus to claim companyies of the
search authorisations. the high companyrt therefore rejected
this companytention by observing as under
we fail to understand how the detaining authority can be
compelled to give documents which were number relied upon while
arriving at the subjective satisfaction. we are also unable
to appreciate how the declaration made by the detenu before
proceedings to board the aircraft has any relevance while
considering whether the order of detention should be passed
to prevent the detenu from indulging in any prejudicial
activities in future. in our judgment the companyplaint that
some documents which according to the detenu were relevant
for making representation were number furnished by the detain-
ing authority and therefore the order or the companytinuation
of the detention is bad is without any substance. in the companynter it is specifically mentioned that these
documents were number placed before the detaining authority number
the detaining authority has relied upon those documents
while issuing the detention order. the detenus would have
been entitled to any document which was taken into companysider-
ation while formulating the grounds of detention but mere
mention of the fact that certain searches were carried our
in the companyrse of investigation which have numberrelevance to
the detention of the detenus cannumber cast an obligation on
the detaining authority to supply companyies of those documents. much less can an obligation be cast on the detaining author-
ity to supply companyies of those documents in tamil language. in the peculiar circumstances of the present petitions we
are of the opinion that the view taken by the high companyrt
cannumber be assailed. reliance was however placed on a
decision of the delhi high companyrt in gurdip singh v. union of
india ors. criminal writ number 257 of 1988 decided on 7th
october 1988  1989 crl. l.j. number 41 delhi  wherein malik
sharief-ud-din j. observed that the settled legal position
was that all the documents relied upon for the purpose of
ordering detention ought to be supplied pari passu with the
grounds of detention to the detenu and documents number relied
upon but casually referred to for the purpose of narration
of facts were also to be supplied to the detenu if demanded. where documents of the latter category are supplied after
the meeting of the advisory board is over it was held that
that would seriously impair the detenus right to make an
effective and purposeful representation which would vitiate
the detention. companynsel for the petitioners therefore
submitted that in the present case also since the search
authorisations were supplied after the meeting of the advi-
sory board the detention orders stood vitiated. but in
order to succeed it must be shown that the search authorisa-
tions had a bearing on the detention orders. if merely an
incidental refe-
rence is made to some part of the investigation companycerning
a companyccused in the grounds of detention which has numberrele-
vance to the case set up against the detenu it is difficult
to understand how the detenus companyld companytend that they were
denied the right to make an effective representation. it is
number sufficient to say that the detenus were number supplied the
copies of the documents in time on demand but it must fur-
ther be shown that the number-supply has impaired the detenus
right to make an effective and purposeful representation. demand of any or every document however irrelevant it may
be for the companycerned detenu merely on the ground that there
is a reference thereto in the grounds of detention cannumber
vitiate an otherwise legal detention order. numberhard and fast
rule can be laid down in this behalf but what is essential
is that the detenu must show that the failure to supply the
documents before the meeting of the advisory board had
impaired or prejudiced his right however slight or insig-
nificant it may be. in the present case except stating that
the documents were number supplied before the meeting of the
advisory board there is numberpleading that it had resulted in
the impairment of his right number companyld companynsel for the peti-
tioners point out any such prejudice. we are therefore of
the opinion that the view taken by the bombay high companyrt in
this behalf is unassailable. the declaration under section 9 1  dated 20th december
1989 is challenged on the ground that the second respondent
failed to forward the companyies of the document on which he
placed reliance for arriving at the subject to satisfaction
that the detenu were likely to smuggle goods out of and
through bombay airport an area highly vulnerable to smug-
gling as defined in explanation 1 to section 9 1  of the
act. number if we turn to paragraph 2 of the declaration it
becomes evident that the second respondent merely relied on
the grounds of detention and the material in support thereto
which had already been served on the detenu and numberhing
more. companynsel for the petitioners relying on a decision of
the bombay high companyrt in nand kishore purohit v. home secre-
tary maharashtra 29862 bombay c.r. 25 however urged
that it was obligatory for the second respondent to supply
the grounds of detention and the accompanying documents
afresh if the declaration was based thereon. we are
afraid we cannumber subscribe to this point of view. if the
documents relied on for the purpose of framing a declaration
under section 9 2  are the very same which were earlier
supplied to the detenu along with the grounds of detention
under section 3 1  we fail to see what purpose would be
served by insisting that those very documents should be
supplied afresh. such a view would only result in wasteful. expenditure and avoidable duplication. we do number think that
we would be justified in quashing the declaration made under
section 9 1  of the act on such a hyper-technical ground. we therefore do number see any merit in this companytention. there are a few other minumber grounds on which the deten-
tion orders are challenged. these may stated to be rejected. firstly it was companytended that under section 3 1  of the act
a detention order can be passed on one or more of the five
grounds set out in clauses  i  to  v  thereof. since the
impugned orders make numbermention of the clause number on
which they are rounded they are bad in law. the detention
orders clearly state that the power is being exercised with
a view to preventing the smuggling of goods referrable to
clause  i  of the subsection. merely because the number of
that clause is number mentioned it can make numberdifference
whatsoever. so also we see numbermerit in the companytention that
the value of goods seized varies in the grounds of detention
from that mentioned in the panchnama or appraisal report. how that has prejudiced the detenus is difficult to companypre-
hend in the absence of any material on record. the submis-
sion that the declaration under section 9 1  was required to
be companymunicated within five weeks from the date of its
making is number specifically raised in the writ petitions number
was it argued before the high companyrt. we were however told
that the declaration was companymunicated in the first week of
january 1990 a statement which was number companytested on behalf
of the petitioners. in fact the submission was number pursued
after this fact was disclosed. we also see numbermerit in it.