PETITIONER: DR. ANURADHA BODI & ORS. ETC. ETC. Vs. RESPONDENT: MUNICIPAL CORPORATION OF DELHI AND OTHERS DATE OF JUDGMENT: 08/05/1998 BENCH: S.C. AGRAWAL, M. SRINIVASAN ACT: HEADNOTE: JUDGMENT:

J U D G M E N T SRINIVASAN, J.

There are nine petitioners in the earlier writ petition and one petitioner in the later writ petition. They were appointed by the first respondent as General Duty Medical Officer Grade II between 1982 and 1985. The first petitioner in the Civil Writ Petition 60 of 1994 and petitioner in Writ Petition No. 8 of 1997 were appointed in 1982. Petitioners 2 and 3 in the earlier writ petition were appointed din 1083. Petitioners 4 and 5 were appointed in 1984 whereas petitioners 6 to 9 were appointed in 1985. It is not in dispute that all of them were appointed on purely ad hoc basis on the same terms and conditions. In the appointment orders, Clause 1 stated that the appointment would be purely on an ad hoc basis as a stop gap arrangement for a period of six months or till such time the posts were filled up on regular basis through <ORG> (for short `UPSE') or till further orders whichever was earlier. Clause 2 provided that the ad hoc appointments could be terminated at any time by the competent authority without assigning any reason whatsoever and without giving any prior notice. According to Clause 3, the appointment will not confer any right whatever on the appointee for regular/permanent appointment. Under Clause 9 the appointees were advised for regular appointment to pass the U.P.S.C. examination in normal course in the direct competition.

2. There is a specific averment in the counter-affidavit filed by the first respondent that inspite of several opportunities available to the petitioners, they preferred not to apply to the <ORG> for direct competition entitling them to be appointed on regular basis. The petitioners have not filed any rejoinder controverting the same.

3. The Recruitment Rules, called "The Delhi Municipal Corporation Health Service Recruitment Regulation, 1982" (herein after referred to as `the Rules') were made by <ORG> under Section 98 of the Delhi Municipal Corporation Act, 1957 and notified under Notification No. R-9/38/82-LSG/5686 dated 6.8.82. As per the rules, the posts in question were to be filled up through the <ORG> Admittedly, the petitioners were not selected through <ORG> but according to the petitioners they were selected by a high-profile Selection Committee consisting of Deputy Commissioner and Director (Personnel) of M.C.D., Medical Superintendent of the hospital concerned and two specialists in Clinical Medicine from two renowned hospitals.

4. Though the appointments of the petitioners were initially for a period of six months, they were being continued periodically by subsequent orders issued by the first respondent. One such order has been filed as a sample by the petitioners bearing dated 15.2.90. The preamble to the order reads as follows :

"The Chief Secretary, <ORG>, exercising powers of the <ORG> under Section 490 (2)(b) of the D.M.C. Act, 1957 vide Decision No. 211/CW/Corp.

dated 2.2.1990 has approved the continued ad hoc appointment of following GDMOs Grade II in the pay scale of Rs, 2200-4000 plus the usual allowances with effect from 13.7.1989 for a period of one year or till such time the posts are filled up on regular basis, whichever is earlier"

5. By a similar order dated 24.7.1990 the services of the petitioners were extended for a period of one year with effect from 13.7.1990. The petitioners were making representations to regularise their services even without appearing before the U.P.S.C. but in vain.

6. They filled a writ petition in this Court under Article 32 of the Constitution in Writ Petition (Civil) No. 47 of 1991 praying that their services should be treated as regular from the respective dates of their induction into the service and to consider them for promotion to Grade I, that their initial appointment be treated as regular appointment with effect from the date of their induction of their service and to grant them consequential seniority, to declare that the <ORG> should absorb them first before offering the existing vacancies to the new recruits who might be selected in pursuance of the combined <ORG> 1991 and to restrain the respondents from terminating the services of the petitioners pending the disposal of the petition. The said petition was disposed of vide order dated 29.7.1991 in the following terms :

"We are informed that all the petitioners have been called for interview by <ORG>. In view of this no further relief requires to be granted in the petition. The petitioners certainly can not claim that they are entitled to be regularised even though they are not selected. The Writ Petition is dismissed as infructuous. If the petitioners have not been selected and they have any grievance in that connection with the selection the remedy for them is to file separate proceedings"

7. Thereafter, the petitioners appeared before the <ORG> and were selected. Consequently, the first respondent passed an order on 17.8.1992 appointing the petitioners on regular basis to the grade of G.D.M.O. II with effect from 27.6.91, the date when the <ORG> recommended the appointment of the petitioners.

8. The petitioners are aggrieved by the date from which they are appointed on regular basis namely, 27.6.91. According to the petitioners they should have been appointed on regular basis with effect from the initial dates of appointment respectively. Hence they have filed the present writ petition with prayers for declaration that the respondents should treat them as holding their respective posts regularly from the respective dates of their initial appointments which stand now regularised by <ORG> and grant them their due seniority with consequential benefits such as promotion to higher grade notwithstanding the order dated 17.8.92 which may be suitably amended, declaration that the action of the respondents in not treating them as regular employees of the <ORG> since the date of their initial appointment is unwarranted, arbitrary and violative of Articles 14 and 16 of the Constitution and for declaration that the petitioners are entitled to be treated as having been appointed on regular basis as G.D.M.Os from the date of respective initial appointment as has been done in the case of other employees vide order dated 31.12.86.

9. A preliminary objection was raised by the learned counsel for first the respondent that the writ petition is not maintainable in as much as the claim for regularisation has been negatived by this <ORG> in Writ Petition (Civil) No. 47 of 1991 the order in which has already been extracted by us. Though the prayers in the two writ petitions are almost the same and the petitioners are seeking once again to claim that their initial appointments should be considered to be on regular basis. This writ petition has to be considered in so far as it relates to question of seniority. In view of the order dated 27.9.91 in Writ Petition 47 of 1991 the petitioners cannot claim that they are entitled to be treated as having been regularly appointed with effect from the date of their initial appointment. But the petitioners are placing reliance on the judgment of the Constitution Bench of this <ORG> in Direct Recruit Class II Engineering Officers' Association Versus State of Maharashtra & Ors . (1990) 2 S.C.C. 715 and are contending that their services from the dates of initial appointment till the date of regularisation have to be taken into consideration for purposes of fixing their seniority. In fact on an earlier occasion when this case was heard on 27.10.94 the <ORG> took note of the said contention and directed the impleadment of persons who were regularly appointed after selection by the <ORG> and were in service during the period 1982 to 1991. Thus the regular appointees have been impleaded as respondents in the present case. Hence, the question which has to be considered is whether the petitioners are entitled to get any benefit on the basis of the decision rendered by the Constitution Bench in the Direct Recruit case (supra).

10. The propositions laid down by <ORG> in the aforesaid case are set out in Paragraph 47 of the judgment. We are concerned with only Conclusions (A) and (B) which read as follows :

(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such posts cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but appointed continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted".

11. These two clauses have been explained in a subsequent judgment in State of West Bengal and others etc. etc. versus <NAME> and others etc. etc. (1993) 3 S.C.C. 371 The relevant passages in the said judgment read as follows :

"21. We shall now deal with conclusions (A) and (B) of the constitution bench in the <ORG> case quoted above.

22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed `according to rules'. The corollary set out in conclusion (A), then is, that `where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot betaken into account for considering the seniority'. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement.

The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.

23. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.

24. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A).

25. In out opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, `if the initial appointment is not made by following the procedure laid down by the `rules' and the latter expression `till the regularisation of his service in accordance with the rules'. We read conclusion (BH), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed remaining procedural requirements of the rules being fulfilled at the earliest. In such cases all appointee is not to blame for the initial appointment, and the appointment not being limited to a fixed period of time is intended to be regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules".

12. If the facts of these two cases are analysed in the light of the aforesaid decisions, there can be no doubt whatever that the petitioners fall within the corollary in Conclusion (A). The orders of appointment issued to the petitioners are very specific in their terms. Though the Recruitment Rules came into force on 6.8.82, the appointments were not made in accordance therewith. They were ad hoc and made as a stop gap arrangement. The orders themselves indicated that for the purpose of regular appointment the petitioners were bound to pass the <ORG> examination in normal course in the direct competition. Hence the petitioners will not fail under the main part of Conclusion (A) or Conclusion (B) as contended by the learned counsel for the petitioners.

13. A strange contention has been urged by the learned counsel for the petitioners by referring to Section 96 of the Delhi Municipal Corporation Act. Under that Section no appointment to any category A post shall be made except after consultation with the <ORG> but under the proviso no such consultation shall be necessary in regard to the selection for appointment to any acting or temporary posts for a period not exceeding one year. According to learned counsel for the petitioners, the appointment of the petitioners was for a period of six months only and there was no necessity to consult the <ORG>. Consequently, according to her the appointments were in accordance with the statutory provisions. There is no merit in this contention. If this contention is accepted the main provision contained in Section 96 prohibiting any appointment without consulting the <ORG> can be easily defeated. Appointments can be made for periods lesser than one year and after continuing such appointments for some years, the appointees could be made permanent. That will only lead to nepotism and anarchy. The Statute has not provided for any such situation. In fact a note of warning has been issued by this Court in Dr. <NAME> and others Versus Union of India & Ors. (1993) 2 S.C.C. 213 in the following words :

"As against this, however, we cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the by-passing of <ORG> are permitted, it will open a back door for illegal recruitment without limit."

With respect, we adopt that reasoning and reject the contention of the learned counsel for the petitioners.

14. Learned counsel attempted to contend that the posts of GDMOs Grade II were in category B within the meaning of Section 90 of the Delhi Municipal Corporation Act and they did not fall within the ambit of <ORG> There is no such plea in the writ petition. In the absence of any specific pleading in that regard we cannot permit the petitioner's counsel to raise such a contention at the stage of arguments. However, it must be pointed out that in the writ petition there is an averment by the petitioners in Paragraph 12 that since the petitioners have been in service for periods ranging between 5 to 9 years, it is to be presumed that consultation with the approval of <ORG> was obtained for their continued appointment. That averment is on the footing that the posts fell within the ambit of <ORG>. Hence, it is not open to the petitioners to contend to the contrary.

15. The next contention of the petitioners' counsel is that they have been in service for such a long time enjoying the benefits of revised pay scales as well as allowances periodically and have been prevented from carrying on private practice of any kind whatsoever and therefore they should be treated as regular appointees from the inception. Support is sought from the judgment of this <ORG> in <NAME> and others etc. etc. versus <ORG> and others (1991) 1 S.C.C. 28 in which this <ORG> on an interpretation of the relevant rules held that long continuous service of temporary appointees should not be terminated but should be regularised by the authority concerned. The ruling has no application in the present case. Our attention is also drawn to the judgment in <NAME> and others versus <ORG> and others (1997) 6 S.C.C. 406. The contention put forward by the counsel in that case was that the appellants were governed by the corollary of Conclusion A in the Direct Recruit case (supra). The <ORG> found on the facts that the appellants' promotions were not contrary to any statutory recruitment rules, they were duly considered by the <ORG> and promotions were made according to their placement in t he merit list. It was also found that the only reason for ad hoc promotion instead of regular promotion was that the draft rules had not been finalised. In that situation, the <ORG> held that the appellants fell within the scope of Conclusion B in Direct Recruit case (supra) and were entitled to the benefit of the period of officiating service. That ruling will not apply in the present case.

16. The next contention of the learned counsel is that by an order dated 31.12.86 the <ORG> regularised the services of several appointees on the recommendation of <ORG> with effect from 27th December 1980 or the date of appointment whichever was later. According to the learned counsel hostile discrimination is made against the petitioners who were in a similar situation. There is no merit in this contention. In the counter-affidavit it has been clearly stated by the respondents that those persons were appointed prior to 20.6.78 during the period of strike of Municipal doctors and non-availability of the recommended doctors from the U.P.S.C. and there was an agreement between the representatives of those doctors pursuant to which they were regularised and such regularisation was with effect from 27.12.80 i.e. the date of recommendation by the U.P.S.C. It should be noted that those appointments were long prior to the passing of the recruitment rules and the petitioners cannot claim that they are on the same platform as those appointees.

17. The petitioners have been regularised with effect from 27.6.91 the date on which the U.P.S.C. recommended their appointments. Hence there is nothing illegal or arbitrary in the office order dated 17.8.92 appointing the petitioners on regular basis with effect from 27.6.91. The said regularisation is in accordance with the rules.

18. We hold that the order of regularisation made by the first respondent on 17.8.92 with reference to petitioners is valid and not arbitrary. The petitioners cannot have any grievance against the same. Consequently the writ petitions have to fail and they are hereby dismissed. There will be no order as to costs.


PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF U.P. DATE OF JUDGMENT11/12/1972 BENCH: <NAME>, I.D. BENCH: <NAME>, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A. CITATION: 1973 AIR 473 1973 SCR (3) 57 1973 SCC (1) 347 ACT: Indian Penal Code (Act 45 of 1860), Ss. 100 and 102-Right of private defence-Scope of. HEADNOTE: There was a clash between the parties of the accused and complainant over the possession of certain land; in which the appellant inflicted a fatal spear injury on the chest of the deceased. in a prosecution for offences under s. 302 and s. 302 / 149 , I.P.C ., the trial court and <ORG> found that the party of the complainant had deliberately come to forcibly prevent or obstruct the possession of the accused persons, and that such forcible obstruction and prevention were unlawful. But while <ORG> acquitted all the accused on the ground that the accused were exercising their tight of private defence, <ORG> held that the ,appellant exceeded his right of private defence on the sole ground that he had used his spear with greater force than was necessary, that he had given a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head, and convicted him for an offence under s. 304 . Allowing the appeal to this Court. HELD:<ORG> erred in convicting the appellant on the g round that he exceeded his right of private defence. [60D-E] To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in s. 102 , I.P.C . According to that section the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not to remote or distant, danger. This right rests on the principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self-defence. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence Committed by him.. It is a preventive and not a punitive right. If, after sustaining a serious injury there is no apprehension of further danger to the body then obviously the right of private defence would not be available. [60D-H, 61A] Therefore, as soon as the appellant reasonably apprehended danger to his body even from a threat (which is real) on the part of the complainant's party to assault him for the purpose of forcibly taking possession of the land in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right. [61A-B] (b)The approach of <ORG> that merely because the complainant's party had used lathis, the appellant was not justified in using his spear is equally misconceived aid cannot be supported under s. 100 , 58 I.P.C. During the course of malee, like the present, the use of a lathi on the head may very well give rise to a reasonable apprehension that death or grievous hurt would result from an injury caused thereby. It cannot be laid down as a general rule that the use of a lathi as dis- tinguished from the use of a spear must always be held to result only in milder injury, because, a blow by a lathi on the head may prove instantaneously fatal. Therefore, if a- blow with a lathi is aimed at a vulnerable part like the head it cannot be laid down as a sound proposition of law that in such cases the victim is not justified in using his spear in defending himself. In such moments of excitement or disturbed mental equilibrium it is difficult to expect parties facing grave aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression. The view of <ORG> is not only unrealistic and unpractical but also contrary to law and in conflict with its own observations, while acquiting the other accused, that in such cases the matter cannot be weighed in scales of gold. [61D-H, 62A-B] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 192 of April 30, 1969 of <ORG> in Govt. Appeal No. 1373 of 1966.

<NAME> and <NAME>, for the appellant. <NAME>, and <NAME>, for the respondent The Judgment of the Court was delivered by DUA, J. This appeal is by special leave and is directed against the conviction of the appellant <NAME>, by <ORG> at Allahabad on appeal by the <ORG>, against the judgment and the order of the Sessions Judge of Ghazipur acquitting five accused persons, including the appellant of various charges including the charge under ss. 302/149, I.P.C . and in the alternative the charge against the appellant under S. 302 , I.P.C .

It appears that there was some dispute with respect to the possession of certain plots of land in village Baruara, Police Station Dildarnagar, District Ghazipur. There were several legal proceedings between the rival parties with respect to both title and possession of the said plots. On,, September 17th 1965 after 12noon there was a clash between the party of the accused and the party of the complainant. Both sides lodged reports with the police. The appellant <NAME>, along with <NAME> and <NAME>, two of the other accused persons acquitted by the trial court, whose acquittal was confirmed by <ORG>, went to the police station Dildarnagar and made a report against the complainant's party about the occurrence at about 5.45 p.m. on September 17, 1965 but, as the Station House Officer had already received information from the chowkidar that these accused persons had cased the death of one <NAME>, he took them into custody. <NAME> on behalf of the complainant's party lodged the report with the police station Kotwali which was adjacent to the District Hospital, Ghazipur and did not go to the police station Dildarnagar for making the report because of the long distance. The Sessions Judge, after an exhaustive discusSion of the evidence produced both by the prosecution and the defence, came to the conclusion that the possession of the disputed plots of land was undoubtedly with the- accused persons. The only further question which required determination by the trial court was, if the complainant's party had gone to the plots in question with an aggressive design to disturb the possession of the accused person by unlawful use of force and if the accused persons had exceeded the right of private, defence in beating and killing <NAME> and causing injuries to the other members of the complainant's party. According to the trial court the complainant's party had actually gone to the plots in question for the purpose of preventing the accused persons from cultivating and ploughing the said land. After considering the evidence on the record the trial court felt great difficulty in agreeing with either of the two rival versions given by the prosecution and the defence witness <NAME> about the manner in which the marpeet had taken place. The learned Sessions Judge, however, considered himself to be on firm ground in holding that the injuries suffered by <NAME> and <NAME> rendered it difficult to believe that they had inflicted injuries with their spears on <NAME> and others. In his opinion, had the accused persons been the aggressors they would not have abstained from causing injury to <NAME> who was actually ploughing the field. In view of this improbability the learned Sessions Judge did not find it easy to place reliance on the statements of the prosecution witnesses <NAME>, <NAME>, <NAME> and <NAME>. Again, after examining the injuries sustained by the members of both parties, the learned Sessions Judge felt that <NAME> and <NAME> must have received injuries on their heads before they inflicted injuries on the members of the complainant's party. On this view the accused were held entitled to exercise the right of private defence, and to inflicit the injuries in question in exercise of that right. On the basis of this conclusion the accused were acquitted. On appeal by the State <ORG> upheld the conclusions of the trial court that the accused persons had the right of private defence and that they were justified in exercising that right. But in its opinion that right had been exceeded by the appellant <NAME> in inflicting the spear injury on the chest of <NAME>, deceased. <NAME> had received one lacerated wound on the right side of his skull and one. incised wound on the left shoulder with a punctured wound 41" deep on the right side of the chest-

The last injury was responsible for his death. This injury, according to <ORG>, was given by-the appellant <NAME> with his spear. The reasoning of <ORG> in convicting the appellant is, broadly stated, that it was only if the complainant's party had actually inflicted serious injury on the accused that the right of private defence could arise, justifying the causing of death. In the present case as only two members' of the party of the accused persons, namely, <NAME> and <NAME>, appellant, had received injuries which though on the, head, were not serious, they were not justified in using their spears. On this reasoning <ORG> convicted the appellant, of an offence under s. 304 , I.P.C . and sentenced him to rigorous imprisonment for five years. Before us the appellant learned counsel has, after reading the relevant part of the impugned judgment of <ORG>, submitted that <ORG> has misdirected itself with regard to the essential ingredients and scope of the right of private defence. Our attention has been drawn to a recent decision of this Court in <CITATION> (1) where the scheme of the right of private defence of person and property has been analysed. In our opinion, <ORG> does seem to have erred in law in convicting the appellant on the ground that he had exceeded the right of private defence. What <ORG> really seems to have missed is the provision of law embodied in s. 102 , I.P.C . According to that section the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit it he offence , though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant, danger. This right rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self-defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is section. The right of private defence is available forprotection against-apprehended unlawful aggression and not forpunishing ,the aggressor for the offence committed by him. It isa preventive and not punitive right. The right to punish forthe commission of offences vests in the State (which has a duty to maintain law and order) and not in private individuals.If after sustaining a serious injury there is no apprehension of further (1)  3 S.C.R. 473 danger to the body then obviously the right of private defence would not be available. In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the party of the complainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right. There can be little doubt that on the conclusions- of the two courts below that the party of the complainant had deliberately come to forcibly prevent or obstruct the possession of the accused persons and that this forcible obstruction and prevention was unlawful, the appellant could reasonably apprehend imminent and present danger to his body and to his companions. The complainants were clearly determined to use maximum force to achieve their end. He was thus fully justified in using force to defend himself and if necessary also his companions against the apprehended danger which was manifestly imminent. Again the approach of <ORG> that merely because the complainant's party had used lathis, the appellant was not justified in using his spear is no less misconceived and insupportable. During the course of a marpeet, like the present, the use of a lathi on the head may very well give rise to a reasonable apprehension that death or grievous hurt would result from an injury caused thereby. It cannot be laid down as a general rule that the use of a lathi as distinguished from the us,-- of, a spear must always be held to result only in milder injury. Much depends on the nature of the lathi, the part of the body aimed at and the force used in giving the blow. Indeed, even a spear is capable of being so used as to cause a very minor injury <ORG> seems in this connection to have overlooked the provision contained in s. 100 , I.P.C . We do not have any evidence about the size or the nature of the lathi. The blow, it is known, was aimed at a vulnerable part like the head. A blow by a lathi on the head may prove instantaneously fatal and cases are not unknown in which such a blow by a lathi has actually proved instantaneously fatal. If, therefore a blow with a lathi is aimed at a vulnerable part like the head we do not think it can be laid down as a sound, Proposition of law 'that in such cases the victim is not justified in using his spear in defending himself. In such moments of excitement of disturbed mental Equilibrium it is somewhat difficult to expect parties facing grave aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression. No doubt, <ORG> does seem to be aware of this aspect because the other accused persons were given the benefit of this rule. But while dealing with the appellant's case curiously enough <ORG> has denied him the right of private defence on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the ,deceased though he himself had only received a superficial lathi blow on his head. This view of <ORG> is not only unrealistic and unpractical but also contrary to law and indeed even in conflict with its own observation that in such cases the matter .cannot be weighed in scales of gold.

Besides, it could not be said on the facts and circumstances ;of this case that the learned Sessions Judge had taken an erroneous or a wholly unreasonable view on the evidence with regard to the right 'of private defence when acquitting all the accused persons. No doubt, on appeal against acquittal <ORG> is entitled to reappraise the evidence for itself but when the evidence is capable of two reasonable views, then, the view taken by the trial court demands due consideration. It is noteworthy that <ORG> considered the learned Sessions Judge to be fully justified in acquitting the other accused persons and it was only in the case of the present appellant that the right of private defence was considered to have been exceeded on the sole ground that he had used his spear on the chest of the deceased with greater force than was necessary to prevent the deceased from committing unlawful aggression. Apparently <ORG> seems to have implied that the appellant should have used the spear as a lathi and not the spearhead for defending himself or should have given a less forceful thrust of the spear or on a less vulnerable part of the body and not on the chest, in order to be within the legitimate limits of the right of private defence. This, as <NAME> stated, is an erroneous approach because at such moments an average human being cannot be expected to think calmly and control his action by weighing as to how much injury would sufficiently meet the aggressive designs of his opponents. As a result there is clear miscarriage of justice.

For the foregoing reasons this appeal succeeds and allowing the same we acquit the appellant.

V.P.S. Appeal allowed.


CASE NO.: Appeal (civil) 488 of 1957 PETITIONER: State of Bihar RESPONDENT: <NAME> DATE OF JUDGMENT: 25/11/1959 BENCH: B.P. SINHA (CJ) & P.B. GAJENDRAGADKAR & K. SUBBARAO & K.C. DAS GUPTA & J.C. SHAH JUDGMENT:

JUDGMENT AIR 1960 SC 689 The Judgment was delivered by <NAME>, <NAME>, C.JThe main question for determination in this appeal by special leave is whether the provisions of Art. 311 (2) of the Constitution ar applicable to a probationer in <ORG>, who has been discharged as unsuitable on grounds of notoriety for corruption and unsatisfactory work in the discharge of his public duties.

The facts of this case are short and simple. The respondent was appointed as a temporary Sub-Deputy Collector in the year 1944. In 1946, he was vested with the powers of a magistrate of the First Class. In December, 1947, he was appointed to a substantive post in <ORG>, on probation. During the period of his probation, he was posted at Jamshedpur in the district of Singhbhum, and later at Nawada in the district of <NAME>. Proceedings were taken against him and he was called upon to show cause why his services should not be terminated forthwith, by the <ORG> letter dated 4 November, 1952, a copy of which was forwarded to the respondent through the District Magistrate, <NAME>. In that letter it was stated that throughout the year 1948 and upon the end of May 1949 the respondent, while employed as a Sub-Deputy Magistrate at Jamshedpur, had earned notoriety for corrupt practices, that from May, 1949 to March, 1951, the respondent's reputation while posted at Nawada, continued to be bad, and that his judicial work while at Jamshedpur had been subjected to careful scrutiny by <ORG>, leading "to discovery of incredibly perverse decisions" given by him. Instances of eight cases with all the necessary details were also recited therein. Those proceedings terminated in an order of the <ORG> of Bihar, dated 23 July, 1953, the relevant portions of which are as follows :-

"1. Certain facts were brought to the notice of Government about the unsatisfactory work and conduct of Mr. <NAME>, Sub-Deputy Collector, on probation, while posted at Jamshedpur and Nawadah, which raised grave doubts regarding his integrity and indicated that he was a corrupt and unreliable officer. Confidential enquires were made and it was found that while employed at Jamshedpur Mr. <NAME> had the reputation of being a corrupt officer. Two successive Deputy Commissioner of Singhbhum under whom Mr. <NAME> had served had also mentioned in their annual confidential reports that this officer had a bad reputation at Jamshedpur. The judicial work of Mr. <NAME>, while at Jamshedpur, was subjected to a careful scrutiny and Government found ample materials to show that the reports about his resorting to corrupt practices were justified. He was transferred to Nawadah. Both the District Magistrate, Gaya, and Commissioner, Patna Division, reported that the Nawadah Mr. <NAME>'s honesty was open to doubt. He was then transferred to Gaya. His was then transferred to Gaya. His work at Gaya was found to be wholly unsatisfactory.

2. In consideration of all these facts it was provisionally decided to terminate the probation of Mr. <NAME> and discharge him from service. He was accordingly asked to show cause against his discharge. His explanation was carefully considered by <ORG> and found to be unsatisfactory.

3. In view of these facts, Government have, after consulting <ORG>, been pleased to order that Mr. <NAME> should be discharged from service forth with.

4. Mr. <NAME>, probationary Sub-Deputy Collector, is, therefore, discharged from service with effect from the date on which this order is served on him.ORDER Ordered that a copy of this resolution be forwarded to the District Magistrate, Gaya, for service on Mr. <NAME>.

(By order of <ORG>) (Sd.) B. N. SINHA, 24-7-53, Deputy Secretary to <ORG>."

The respondent moved <ORG> at Patna under Arts. 226 and 227 of the Constitution against the order of the <ORG> quoted above. The matter was heard by v. <NAME>, J. (as he then was) and <NAME>, J. <ORG> by its judgment dated 19 January, 1955 allowed the application and quashed the order aforesaid of the <ORG> dated 23 July, 1953. <NAME>, J., with all the contentions raised on behalf of the respondent-petitioner in <ORG> - and after examining the relevant, rules of the Civil Services (Classification Control and Appeal) Rules and Art. 311(2) of the Constitution, came to the conclusion that the respondent was not entitled to a full enquiry as contemplated by the Para. 1 of rule 55 of the Civil Service (Classification, Control and Appeal) Rules, but that he was entitled to the protection under Art. 311(2) of the Constitution. He also held that there had been a violation of the principles of natural justice, inasmuch as the special reports of the Commissioner of Chotanagpur Division and of the Deputy Inspector-General of Police in <ORG>, had not been shown to the respondent. On these grounds he held that the order of discharge impugned by the respondent was illegal and ultra vires. <NAME>, J., did not express a decided opinion on the question whether the respondent was entitled to the protection of Art. 311(2) of the Constitution, because in his view the decision of <ORG> in <NAME> case [L.R. 75 I.A. 225] was concerned with a confirmed officer, whereas the respondent was only an officer on probation. But he agreed with <NAME>, J., in the result on the ground of the violation of the principles of natural justice.The State of Bihar moved <ORG> for leave to appeal to this <ORG>. The application for leave under Art. 132(1) of the Constitution was heard by <NAME>, C.J. (as the then was) and <NAME>, J. <ORG>, by its order dated 8 August, 1955, refused to grant the leave on the ground that the case had not really been determined on an interpretation of Art. 311 of the Constitution, but substantially on the ground that there had been an infringement of the principles of natural justice. The State of Bihar thereafter moved this <ORG> for special leave to appeal, which was granted on 28 November, 1955. That is how the matter had come before this <ORG>.

The main point in controversy before us turns on the question whether the provisions of Art. 311(2) of the Constitution are attracted to the case of a public servant who was still a probationer and had not been confirmed in a substantive post. The question whether there had or had not been a violation of the principles of natural justice, which was the basis of the decision in <ORG> as indicated above, was not raised before us. The judgment of <ORG> could be allowed to rest on that basis alone, but as it appears that this <ORG> granted special leave to determine the controversy based upon the interpretation of Art. 311(2) of the Constitution, we think it necessary to express our opinion on that part of the case. The decision of this <ORG> in <CITATION> 1958 (1) LLJ 544 ] had not been given till then. If that decision were in existence then, perhaps the special leave would not have been granted. In our opinion, the controversy raised in this case is completely covered by the decision of the Constitution Bench of this <ORG> in <NAME> case (supra.) The main question for decision in that case was whether the appellant <NAME> had been reduced in rank by way of punishment as a result of the order of the General Manager of the Railway. Though, in that case, this <ORG> decided that the order impugned had not that effect, this <ORG> went elaborately into all the implications of the service conditions, with particular reference to the Railway Service Rules and the constitutional provisions contained in S.240 of the Government of India Act, 1935, and Art. 311 of the Constitution. The elaborate discussion in that judgment has reference to all stages of employment in the public services including temporary posts, probationers, as also confirmed officers. In so far as those observations have a bearing on the termination of service or discharge of a probationary public servant, they may be summarized as follows :1. Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.

2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.

3. But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct or inefficiency of for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art. 311(2) of the Constitution.

4. In the last-mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Art. 311(2) of the Constitution and will, therefore, be liable to be struck down.

5. But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct or inefficiency or some such cause.

It would thus appear that, in the instant case, thought the respondent was only a probationer he was discharged from service really because the Government had on enquiry come to the conclusion, rightly or wrongly, that he was unsuitable for the post he held on probation. This was clearly by way of punishment and, therefore, he was entitled to the protection of Art. 311(2) of the Constitution. It was argued on behalf of the appellant that the respondent, being a mere probationer, could be discharged without any enquiry into his conduct being made and his discharge could not mean any punishment to him, because he had no right to a post. It is true, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the <ORG>, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in that direct way, without casting any aspersion on his honesty or competance, his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, therefore, have no grievance to ventilate in any <ORG>. Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist upon the protection of Art. 311 (2) of the Constitution. That protection not having been given to him, he had the right to seek his redress in <ORG>. It must, therefore, be held that the respondent had been wrongly deprived of the protection afforded by Art. 311(2) of the Constitution. His removal from the service, therefore, was not in accordance with the requirements of the Constitution.The appeal is accordingly dismissed with costs.