PETITIONER: STATE OF BIHAR Vs. RESPONDENT: PASHUPATI SINGH & ANR. & VICE VERSA DATE OF JUDGMENT24/09/1973 BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. KHANNA, HANS RAJ CITATION: 1973 AIR 2699 1974 SCR (1) 742 1974 SCC (3) 376 CITATOR INFO : R 1974 SC 799 (15) F 1974 SC1039 (6,12) E&D 1989 SC1335 (60) ACT: Criminal Law--Practice and procedure--Whether identification chart should contain a complete statement. HEADNOTE: The two deceased, husband and wife, along with their daughter and servant were travelling by train. At a wayside station the two appellants and another co-accused, still absconding, got into the compartment armed with deadly wea- pons. The husband and wife were robbed and in the scuffle that followed both were fatally injured. After the arrest of the, accused they were identified by the daughter and the servant of the deceased. The accused were convicted by the trial court for the offences under sections 394 and 302 I.P.C. <ORG>, holding inter alia, that in the test identification chart there was no specific mention about the assault by the first accused on one of the deceased, acquitted both the accused of the offence under s. 302 I.P.C. Dismissing the appeal of the appellants with respect to the offence under s. 394 and allowing the appeal by the <ORG> with respect to the offence under s. 3 02. HELD : The use made by the judges of <ORG> of the test identification chart was faulty. The test identification chart would not and could not be expected to contain a complete statement. The two accused were identified by the two eye-witnesses and they both spoke of the attack on one of the deceased by the second accused. It could not however,be said that the first accused did not cause injuries to anybody or that nobody caused any injury to the other deceased. <ORG> also did not find that the first accused did not cause any injury to either of the deceased. [745E] If it was difficult to say which injury was caused by which of the accused, the natural inference would be that all the three accused caused one injury each on each of the deceased. As the injury caused by the weapons in the hands of the two accused were such as were enough to cause death, the two accused were equally guilty of murder. The fact that they could not have started with the intention of committing murder but only to commit robbery was not rele- vant. The injuries were sufficient in the ordinary course of nature to cause death and, therefore, the accused would be guilty of murder. [745 G-B] Considering the fact that there had been a long interval between the date of the offence and dismissal of the appeal and the mental agony undergone by the accused, the ends of justice would be met if sentence of life imprisonment was award. [746B] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 53 and 54 of 1970.

Appeals by special leave from the judgment and order dated the 15th October, 1969 of <ORG> in Criminal Appeals Nos. 150, 152 and 167 of 1969.

<NAME>, <NAME>, <NAME> and <NAME>, for the appellant (in appeal 53/70) and respondent (in appeal 54/70).

<NAME>, for the respondent (in appeal 53/70) and appellants, (in appeal 54/70).

The Judgment -of the <ORG> was delivered by- ALAGIRISWAMI, J. The two appellants in Crl. A. N. 54 of 1970, were tried before the Additional Sessions Judge of Bhagalpur for offences under ss. 302 and 394 of the Indian Penal Code and convicted by him for both the offences. On a reference made by the Additional Sessions Judge for confirmation of the death sentence awarded to them and two appeals filed by them, <ORG> upheld their conviction under s. 394 but acquitted them of the offence under section 302 . The accused as well as the State of Bihar have appealed to this. <ORG>, the former in respect of their conviction under S. 394 and the State against their acquittal in respect of the offence under S. 302 . The, facts giving rise to these appeals are as follows : <NAME>, a resident of Bhagalpur, his wife <NAME>. and their daughter <NAME> were returning from Vellore, where the daughter under-went treatment. They were travelling from. Calcutta to Bhagalpur by the Howrah Danapur Fast Passenger oil 6-4-1965. They were accompanied by their servant <NAME>. (P.W.1). At Pirpainty railway station appellant <NAME> entered their compartment and when the train reached Ghogha railway station appellant <NAME> and another accused, now absconding, got into that compartment. The two appellants had <NAME> in their hands. After some time the absconding accused took out a Chura and asked <NAME> to give him whatever he had. Appellant <NAME> stood near <NAME> and <NAME> near <NAME> Devi. <NAME> offered whatever he had but tried to catch the hand of the absconding accused. Thereupon all the three accused attacked <NAME> who fell down. <NAME> Devi asked them not to assault and took out her churies from one hand and handed over to one of the accused. Her necklace was snatched by one of the three accused and when she tried to pull the alarm chain all the three assaulted her with the weapons in their hands and she also fell down. <NAME> who tried to intervene was assaulted with a <NAME> by <NAME> and relieved of his wrist watch and rupees fifty or sixty, which he had. <NAME> handed over her ornaments. The miscreants thereafter pulled the chain and got out of the train. When the train stopped, Fireman <NAME> (P.W.8) came to the compartment and found <NAME> crying and <NAME> and <NAME> Devi lying injured. The Guard (<NAME>) also came, there. At the next railway station Sabour the Assistant Station Master (P.W.5) advised them to go to Bhagalpur as there would be delay in getting medical aid at Sabour. He also informed Bhagalpur railway station. The train reached Bhagalpur at about 1.15 A.M. on 7-4-1965. <NAME> handed over a written memo, Ext.2, to the Officer-in-charge <ORG>, on the basis of which the first information report was drawn up by P.W.12 at about 1.45 A.M. By this time <NAME> was dead and <NAME> Devi was in a serious condition. All of them were sent to the hospital where <NAME> Devi died at 6 A.M. The- appellant <NAME> surrendered on the 10th of May, 1965 while <NAME> was arrested on the, 11th of May. 1965. In the test indentification parade held on the 24th of May, 1965 <NAME> and <NAME> identified both of them. In due course a charge sheet was laid against both of them with the result already mentioned.

<NAME> defence was that he was innocent, that the two .eye witnesses had opportunities to know him before the occurrence .and that he had been shown to them before the identification parade. <NAME> also alleged that he had been shown to the identifying witnesses. We are satisfied that the conclusion arrived at by the courts below found. If as alleged by <NAME>, PWs I and 2 and they had properly identified the assailants, is based on a proper appreciation of the evidence. We shall later deal with the question .as to the offence of which the appellants were acquitted.

A number of suggestions, some of them even contradictory of each other, and none of them in any way seriously affecting the veracity of PWs I and 2, were put forward before the courts below as well as before this Court. We find them all devoid of substance just as the courts below found. If as alleged by <NAME>, PWs I and 2 had known him earlier there was hardly any need to show him to. them before the identification parade. What is more, PWs 1 and 2, if they had known <NAME> earlier, would have informed the police, that they knew one, of the assailants and could identify him though they did not know his name. That was not the case here. There is no motive either for PW I or PW 2 falsely implicating the appellants. Nothing which can shake their credibility has been elicited in their cross-examination. Very vague and wild suggestions were made ,about the possibility of <NAME> having been murdered by his nephew <NAME>; that there had been an attempt on the life of <NAME> son and the same person might have been responsible for murdering <NAME>; that <NAME> might have killed him on that account. There is no substance in any one of these suggestions. It was also suggested that <NAME> was not in the compartment when the occurrence took place, as <NAME> who is -,aid to have sent money through him to Calcutta was not examined and nobody else, spoke of his leaving for Calcutta Some argument was even sought to be made on the basis of the presence of only two holdalls and of the impossibility of <NAME> having sat on <NAME>'s holdall. There can be no doubt that <NAME> was present in the compartment at the time of the, occurrence. It was not even put to <NAME> in her cross-examination that <NAME> was not present. Nor was such a suggestion put to <NAME>. We consider that the evidence clearly establishes that it was the two appellants and the absconding accused who were responsible for the robbery and the murders committed on the train. We do not think it necessary to refer at length to all the evidence 'in this case or all the points that were raised in the course of the arguments as we do not consider that they in any way weaken the findings of the courts below on the central point about -the robbery and the murders and this Court does not normally re-appraise the evidence except in cases of gross miscarriage of justice.

74 5 We now come to the appeal filed by the State of Bihar against the acquittal of the two appellants of the charge of murder- We are of opinion that the conclusion of <ORG> on this point cannot be accepted. The learned Judges of <ORG> referred to the injuries found on the two deceased and to the medical evidence that of the 3 injuries found on each of the two deceased one could have been caused by a dagger while the other two could have been caused by a <NAME>. According to the prosecution evidence, the dagger injuries were given by the absconding accused while the two other injuries were given by the two appellants. The learned Judges thought that <NAME> who was mounting guard on <NAME> would not have gone away from him and assaulted <NAME> and <NAME>. They have also stated that in the test identification chart there is no mention about specific assault by <NAME> on <NAME>. They considered that when the weapons were not produced and there was no description of the weapons given it was difficult to hold that a particular injury was caused by the absconding accused while the other injuries were caused by the two appellants. They were of the opinion that it could not be inferred that the miscreants wanted to commit murder while committing robbery, and that there was no intention or common intention to commit murder. This was the reason which led them to hold that the appellants were not guilty of the offence of murder. We are of opinion that the use made by the learned Judges of <ORG> of the test identification chart is faulty. The test identification chart does not and cannot be expected to contain a complete statement. It shows that P.W. 1 identified both the accused and he was robbed of his wrist watch and money. It also mentions that he also stated that <NAME> attacked <NAME> with <NAME>. P.W. 2, <NAME>, is said to have identified both the appellants and stated that she saw <NAME> attack and rob <NAME> of his watch and that <NAME> attacked <NAME> with a <NAME>. It will be seen that the mention here is only about <NAME> attacking <NAME> with <NAME>. It cannot therefore be said nor do the learned Judges say, that <NAME> did not cause injuries to anybody and nobody caused any injury to <NAME>. We would have understood it if the learned Judges had stated that <NAME> did not cause any injury to either of the deceased. They do not say so. We should also consider that if it was difficult to say which injury was caused by which of the accused, the natural inference would be that all the three accused caused one injujry each on each of the deceased. As the injuries caused by the <NAME>s were such as were enough to cause death the two appellants are equally guilty of murder.

The fact that they could not have started out with the intention of committing murder but only with the intention of committing robbery is neither here nor there. If they have caused injuries which were sufficient in the ordinary course of nature to cause death there can be no doubt that they would be guilty of murder. We would, therefore, hold differing from the learned Judges of <ORG>, that both the accused are guilty of the offence of murder. Considering the fact, however, that there has been a long interval between the date of the offence and now and the appellants having been under a sentence of death till they were acquitted by <ORG> they would have undergone a period of mental agony, we would consider that the ends of justice would be met in the circumstances of this case if a sentence of life imprisonment is awarded to the two appellants. The appeal by the <ORG> is allowed to this extent and the appeal filed by the accused is dismissed.

P.B.R. Cr. Appeal 53 of 1970 allowed. Cr. Appeal 54 of 1970 dismissed.


PETITIONER: ASSISTANT COLLECTOR OF CENTRAL EXCISE CHANDAN NAGAR, WEST BE Vs. RESPONDENT: <ORG> AND ORS . DATE OF JUDGMENT30/11/1984 BENCH: <NAME>, O. CHINNAPPA (J) BENCH: <NAME>, O. CHINNAPPA (J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J) CITATION: 1985 AIR 330 1985 SCR (2) 190 1985 SCC (1) 260 1984 SCALE (2)819 CITATOR INFO : F 1985 SC1289 (10) R 1986 SC 614 (5,6) RF 1988 SC2010 (12) ACT: Constitution of India 1950 Articles 226 and 141 Interim orders in writ petition-Grant OF-Situations and circumstances-What are-Matters involving public revenue-Not sufficient showing a prima facie case-Furnishing of bank guarantee not a circumstance-Balance of convenience to be in favour of grant of interim order-Likelihood of prejudice to public interest to be shown. <ORG> decisions binding on all courts-Judgment per incuriam Principle of-<ORG> not entitled to disregard judgment of <ORG> labeling It per incuriam. HEADNOTE: The Government of India by a notification dated April 6,1984, exempted tyres from a certain percentage of Excise Duty to the extent that the manufacturers had not availed themselves of the exemption granted under certain other earlier notifications. <ORG> was of the view that the Respondent-company who was a manufacturer of Tyres, Tubes and various other rubber products was not entitled to the aforesaid exemption as it had cleared the goods earlier without paying Central Excise Duty but on furnishing Bank Guarantees under various interim-orders of courts. The Company claimed the benefit of exemption to the tune of about Rs. 6 crores and filed a Writ Petition in the- <ORG> and sought an interim order restraining <ORG> from the levy and collection of excise duty. The <ORG> held that a prima facie case had been made out in favour of the company and by an interim order allowed the benefit of the exemption to the tune of about Rs. 2 crores and directed that the goods be released on furnishing a Bank Guarantee. In the <ORG>'s appeal, <ORG> confirmed the above order with a slight modification to the effect that the Collector of Central Excise could encash 30 per cent of the Bank Guarantee. Allowing the appeals by the <ORG>, this <ORG>, ^ HELD: 1. The orders of the Single Judge as well as <ORG> are wholly unsustainable and should never have been made, Even assuming the 191 company had established a prima facie case, it was not a sufficient justification A for granting the said interim orders. There was no question of any balance of convenience being in favour of the respondent-Company, it was certainly in favour of the Government of India. [201B-C] 2. Governments are not run on mere Bank Guarantees. Very often some courts act as if furnishing a Bank Guarantee would meet the ends of justice. No Governmental business, for that matter no business of any kind can be run on mere Bank Guarantees. Liquid cash is necessary for the running of a Government as indeed any enterprise. [201C] 3. Where matters of public revenue are concerned, it is of utmost importance that interim orders are not to be granted merely because prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest. [201D1 4. Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it, that recourse may be had to Art. 226. The <ORG> must also have good and sufficient reason to by- pass the alternative remedy provided by statute. Matters involving the revenue where statutory remedies are available are not such matters. The vast majority of the petitions under Art. 226 are filed solely for the purpose of obtaining interim orders and thereafter to prolong the proceedings by one device or the other. This practice needs to be strongly discouraged. [194F-H; 195A] E 5. There are, cases which demand that interim orders should be made in the interests of justice. Where gross violations of the law and injustices are about to be, or are perpetrated, it is the bounden duty of the court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury, or shake a citizen's faith in the impartiality of public administration, a court may well be justified in granting interim relief against public authority. <CITATION> .,  2 S.C.R. 24, <CITATION> ,  2 SCC 436, <CITATION> ,  2 SCC 433, <CITATION> .,  2 SCC 646 and <ORG> v. <ORG>, C.A. No. 11450 of 1983; referred to. 6. In India, under Art. 141 , the law declared by the <ORG> shall be binding on all courts and under Art. 144 all authorities civil and judicial shall act in aid of the <ORG>. [200B] 7. In the hierarchical system of <ORG>s which exists in our country it is 192 necessary for each lower tier, including the <ORG>s to accept loyally the decisions of the higher tiers. The better wisdom of the <ORG> below must yield to the higher wisdom of the <ORG> above. [199E-F] 8. The label per incuriam is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate court or to the right of a judge of the <ORG> to disregard a decision of the <ORG>. [199H; 200A] <ORG> v. <NAME>,  A C. 1027 and <NAME> v. <NAME>,  A.C. 1129, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4742-43 of 1984.

a Appeal by Special leave from the Judgment and order dated the 9th August, 1984 of <ORG> in FMAT No. 2139 of 1984 and 2023 of 1984.

<NAME>, Attorney General, <NAME>, <NAME>, <NAME> and Miss <NAME> for the Appellant.

<NAME>, <NAME> and <NAME> for the Respondent.

The Judgment of the Court was delivered by <NAME>, J. It is indeed a great pity-and, we wish we did not have to say it but we are afraid;we will be signally failing in our duty if we do not do so -some courts, of late, appear to have developed an unwarranted tendency to grant interim orders-interim orders with a great potential for public mischief-for the mere asking. We feel greatly disturbed. We find it more distressing that such interim orders, often ex-parte and non-speaking, are made even by <ORG> while entertaining writ petitions under Art. 226 of the Constitution, and in <ORG>, on oral application too. Recently in <CITATION> (l). we had occasion to condemn and prohibit this practice of entertaining oral applications under Art. 226 and passing interim orders thereon. In several other cases, <CITATION> (2), <ORG> State of Orissa,(3) Union (1)  2 S.C R. 24.

(2) [1983] 2 S.C.C 436 (3) [1983] 2 S.C.C 433  <CITATION> (l)., Union of India v. <ORG>), this Court was forced to point out how wrong it was to make interim orders so soon as an application was but presented, when a second thought (or a second's thought) would expose the impairment of the public interest and often enough the existence of a suitable alternative remedy. Despite the fact that we have set our 8 face against interfering with interim orders passed by the High Courts and made it practically a rigid rule not to so interfere, we were constrained to interfere in those cases.

<CITATION> , (supra) <NAME> and <NAME>, JJ. had to deal with an interlocutory order passed by <ORG> restraining the Siliguri Municipality from recovering a graduated consolidate rate on the annual value of buildings in terms of the amended provisions of the Bengal Municipal Act. We reiterate the following observations made therein: "We are constrained to make the observations which follows as we do feel dismayed at the tendency on the part of some of <ORG> to grant interlocutory orders for the mere asking. Normally, <ORG> should not, as a rule, in proceedings under Article 226 of the Constitution grant any stay of recovery of tax save under very exceptional circumstances. The grant to stay in such matters, should be an exception and not a rule.

"It is needless to stress that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues, the levy of tax or rate or a part thereof, as the case may be, in the event of the entire levy or a part thereof being ultimately held

(l) [1984l 1.2 S.C.C. 646 t (2) C, A. No. 11420 of 1983 to be invalid by the court without obliging the tax- payers to institute a civil suit in order to claim the amount already recovered from them. On the other hand, the <ORG> cannot be unmindful of the need to protect the authority levying the tax, for, at that stage the <ORG> has to proceed on the hypothesis that the challenge may or may not succeed. The <ORG> has to show awareness of the fact that in a case like the present a municipality cannot function or meet its financial obligations if its source of revenue is blocked by an interim order restraining the municipality from recovering the taxes as per the impugned provision. And that the municipality has to maintain essential civic services like water supply, street lighting and public streets etc., apart from cunning public institutions like schools, dispensaries, libraries etc. What is more, supplies have to be purchased and salaries have to paid. The grant of an interlocutory order of This nature would paralyze the administration and dislocate the entire working of the municipality. It seems that these serious ramifications of the matter were lost sight of while making the impugned order". In <ORG> v. S/ate of Orissa A. P. Sen <NAME> and <NAME>, JJ. held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to <ORG>, a second appeal to the <ORG> and there after to have the case stated to the High <ORG>, it was not for the High <ORG> to exercise its extra ordinary jurisdiction under Art. 226 of the Constitution ignoring as it were, the complete statuary machinery. That it has become necessary, even now, to as to repeat this admonition is indeed a matter of tragic concern to us. Article 226 is not meant to short circuit of circumvent statutory procedures. It is only were statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of thee statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Art. 226 of the Constitution. But then the <ORG> must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Art. 226 o the Constitution are filed . solely for the purpose of obtaining interim orders and there after prolong the proceedings by one device or the other. The practice certainly needs to be strongly couraged.

<CITATION> ., we had occasion to consider an interim order passed by <ORG> in regard to a matter no part of the cause of action relating to which appeared to arise within the jurisdiction of <ORG>. In that case the interim order practically granted the very prayers in the writ petition. We were forced to observe, "It is obvious that the interim order is of a drastic character with a great potential for mischief. The principal prayer in the writ petition is the challenge to the order made or proposed to be made under Clause 8 of the Import Control order. The interim order in terms of prayers (j) and (k) has the effect of practically allowing the writ petition at the stage of admission without hearing the opposite parties. While we do not wish to say that a drastic interim order may never be passed without hearing the opposite parties even if the circumstances justify it, we are very firmly of the opinion that a statutory order such as the one made in the present case under Clause 8-B of the Import Control order ought not to have been stayed without at least hearing those that made the order. Such a stay may lead to devastating consequences leaving no way of undoing the mischief. Where a plentitude of power is given under a statute, designed to meet a dire situation, it is no answer to say that the very nature of the power and the consequences which may ensue is itself a sufficient justification for the grant of a stay of that order, unless, of course, there are sufficient circumstances to justify a strong Prima facie inference that the order was made in abuse of the power conferred by the statute. A statutory order such as the one under Clause 8-B purports to be made in the public interest and unless there are even stronger grounds of public interest an expert interim order will not be justified. The only appropriate order to make in such cases is to issue notice to the respondent and make it returnable within a short period. This should particularly be so where the offices of the principals respondents and relevant records lie outside the ordinary jurisdiction of the court. To grant interim relief straightaway and leave it to the respondents to move the court to vacate the interim order may jeopardise the public interest. It is notorious how if an interim order is once made by a court, parties employ every device and tactic to ward off the final hearing of the application. It is, therefore, necessary for the courts to be circumspect in the matter of granting interim relief, more particularly so where the interim relief is directed against orders or actions of public officials acting in discharge of their public duty and in exercise of statutory powers. On the facts and circumstance of the present case, we are satisfied that no interim relief should have been granted by <ORG> in the terms in which it was done", We repeat and deprecate the practice of granting interim order which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other relevant considerations. Regarding the practice of some clever litigants of resorting to filing writ petitions in the far-away courts having doubtful jurisdiction, we had this to observe:

"..... Having regard to the fact that the registered office of the <ORG> is at Ludhiana and the principal respondents against whom the primary relief is sought are at New Delhi, one would have expected the writ petition to be filed either in <ORG> and Haryana or p in <ORG>. The writ petitioners however, have chosen <ORG> as the forum perhaps because one of the interlocutory reliefs which is sought is in respect of a consignment of beef tallow which has arrived at the Calcutta Port. An inevitable result of the filing of writ petitions elsewhere than at the place where the concerned offices and the relevant records are located is to delay prompt return and contest. We do not desire to probe further into the question whether the writ petition was filed by design or accident in <ORG> when the office of the <ORG> is in the State of Punjab and all the principal respondents are in Delhi. But we do feel disturbed that such writ petitions are of ten deliberately filed in distant <ORG>, as part of a manoeuvre in a A legal battle, so as to render it difficult for the officials at Delhi to move applications to vacate stay where it becomes necessary to file such applications". In <ORG> v. <ORG> (supra), <NAME>, CJ., <NAME>, <NAME>, JJ. allowed an appeal against an interim order making the following observations:

"After hearing learned counsel for the rival parties, we are of the opinion that the interim order passed by <ORG> on November 29, 1983 is not warranted since it virtually grants to the respondents a substantial part of the relief claimed by them in their writ petition. Accordingly, we set aside the said order".

We have come across cases where the collection of public revenue has been seriously jeopardised and budgets of Governments and <ORG> affirmatively prejudiced to the point of precariousness consequent upon interim orders made by courts. In fact instances have come to our knowledge where Governments have been forced to explore further sources for raising revenue, sources which they would rather well leave alone in the public interest, because of the stays granted by courts. We have come across cases where an entire Service is left in a stay of flutter and unrest because of interim orders passed by courts, leaving the work they are supposed to do in a state of suspended animation. We have come across cases where buses and lorries are being run under orders of court though they were either denied permits or their permits had been canceled or suspended by <ORG>. We have come across cases where liquor shops are being run under interim orders of court. We have come across cases where the collection of monthly rentals payable by Excise Contractors has been stayed with the result that at the and of the year the contractor has paid nothing but made his profits from the shop and walked out. We have come across cases where dealers in food grains and essential commodities have been allowed to take back the stocks seized from them as if to permit them to continue to indulge in the very practices which were to be prevented by the seizure. We have come across cases where land reform and important welfare legislations have been stayed by courts. Incalculable harm has been done by such interim orders. All this is not to say that interim orders may never be made against public authorities. There are, of course, cases which demand that interim orders should be made in the interests of justice. Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen's faith in the impartiality of public administration, a <ORG> may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bonafide with due regard to the public interest, a court must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing collection of public revenue for no better reason than that the parties have come to the <ORG> alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima facia case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of the public interest There are many such factors worthy of consideration. We often wonder why in the case indirect taxation where the burden has already been passed on to the consumer, any interim relief should at all be given to the manufacturer, dealer and the like ! There is just one more thing that we wish to say. <CITATION> , the <ORG> was put to the necessity of pointing out the following:

"We will be failing in our duty if we do not advert to feature which causes us dismay and distress. On a previous occasion, <ORG> had vacated an interim order passed by a learned single Judge on similar facts in a similar situation. Even so when a similar matter giving rise to the present appeal came up again, the same learned judge whose order had been reversed earlier, granted a non-speaking interlocutory order of the aforesaid nature. This order was in turn confirmed by <ORG> without a speaking order articulating reasons for granting a stay when the earlier Bench had vacated the stay. We mean no disrespect to <ORG> in emphasizing the necessity for self-imposed discipline in such matters in obeisance to such weighty institutional considerations like the need to maintain decorum and comity. So also we mean no disrespect to <ORG> in stressing the need for self-discipline on the part of <ORG> in passing interim orders without entering into the question of amplitude and width of the powers of <ORG> to grant interim relief. The main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge, only in order that no irreparable injury is occasioned. The <ORG> has therefore to strike a delicate balance after considering the pros and cons of the matter lest larger public interest is not jeopardized and institutional embarrassment is eschewed".

We desire to add and as was said in <ORG> v. Broome(l) we hope it will never be necessary for us to say so again that 'in the hierarchical system of <ORG>' which exists in our country, 'it is necessary for each lower tier', including <ORG>, 'to accept loyally the decisions of the higher tiers'. "It is inevitable in a hierarchical system of <ORG> that there are decisions 11 of the <ORG> appellate tribunal which do not attract the unanimous approval of all members of the judiciary...............

But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted"(2). The better wisdom of the <ORG> below must yield to the higher wisdom of the <ORG> above. That is the strength of the hierarchical judicial system. In <NAME> v. <NAME>, commenting on the <ORG> of Appeal's comment that <NAME> v. Barnard(3) was rendered per incuriam Lord <NAME> observed,-

"<ORG> found themselves able to disregard the decision of this <ORG> in <NAME> v. <NAME> by applying to it the label per incuriam That label is relevant only to the right of an appellate court to decline to (1) [1972] AC 1027 (2) (See observations of Lord <NAME> and Lord <NAME> in <NAME> v. <NAME>).

(3) [1984] A.C. 1129.

follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate court or to the right of a judge of <ORG> to disregard a decision of <ORG>." It is needless to add that in India under Act. 141 of the Constitution the law declared by <ORG> shall be binding on all courts within the territory of India and under Art. 144 all authorities, civil and judicial in the territory of India shall act in aid of <ORG>.

Now coming to the facts of the present case, the respondent, <ORG> is a manufacturer of types, tubes and various other rubber products. By a notification dated April 6, 1984 issued by <ORG>, <ORG> (<ORG>) in exercise of the powers conferred by Rule 8 (1) of the <ORG> Rules, 1944, types, falling under item No. 16 of the First Schedule to the <ORG> and Salt Act , 1944, were exempt from a certain percentage of excise duty to the extent that the manufacturers had not availed themselves of the exemption granted under certain other earlier notifications The <ORG> was of the view that the <ORG> was not entitled to the exemption as it had cleared the goods earlier without paying central excise duty, but on furnishing Bank Guarantees under various interim orders of courts. The <ORG> claimed the benefit of the exemption to the tune of Rs. 6.05 crores and filed a writ petition in <ORG> and sought an interim order restraining the central excise authorities from the levy and collection of excise duty. The learned single judge took the view that a prima facie case had been made out in favour of the <ORG> and by an interim order allowed the benefit of the exemption to the tune of Rs. two crores ninety three lakhs and eighty five thousand for which amount the company was directed to furnish a Bank Guarantee, that is to say, the goods were directed to be released on the Bank Guarantee being furnished. An appeal was preferred by the Assistant Collector of <ORG> under clause 10 of the Letters Patent and a <ORG> of <ORG> confirmed the order of the learned single Judge, but made a slight modification in that the Collector of <ORG> was given the liberty to encash 30% of the Bank Guarantee. The Assistant Collector of <ORG> has preferred this appeal by special leaue. By our interim order dated November 15, 1984, we vacated the orders granted by the learned single Judge as well as by the <ORG>. We gave two weeks' time to the A respondent <ORG> to file a counter No. counter has, however been filed. <NAME>, learned counsel, however appeared for the respondent. We do not have the slightest doubt that the orders of the learned single judge as well as <ORG> are wholly unsustainable and should never been made. Even assuming that the company had established a prima facie case, about which we do not express any opinion, we do not think that it was sufficient justification for granting the interim orders as was done by <ORG>. There was no question of any balance of convenience being in favour of the respondent-<ORG>. The balance of convenience was certainly in favour of <ORG>. Governments are not run on mere Bank Guarantees. We notice that very often some courts act as if furnishing a Bank Guarantee would meet the ends of justice. No governmental business or for that matter no business of any kind can be run on mere Bank Guarantees. Liquid cash is necessary for the running of a Government as indeed any other enterprise. We consider that where matters of public revenue are concerned, it is of utmost importance to reales that interim orders ought not to be granted merely because a prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest. We are very sorry to remark that these considerations have not been borne in mind by the <ORG> and interim order of this magnitude had been granted for the mere asking. The appeal is allowed with costs. E N.V.K. Appeal allowed.


PETITIONER: STATE OF BIHAR AND OTHERS ETC. Vs. RESPONDENT: AKHOURI SACHINDRA NATH AND OTHERS ETC. DATE OF JUDGMENT19/04/1991 BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SAHAI, R.M. (J) CITATION: 1991 AIR 1244 1991 SCR (2) 410 1991 SCC (1) 334 JT 1991 (2) 279 1991 SCALE (1)748 ACT: <ORG> Law: Bihar Public Works Departments Code: Rule 2-Bihar Engineering <ORG>, Class II-Assistant Engineers- 25 of posts to be filled up by promotion and 75% by direct recruitment-Seniority promotees and direct recruits-Whether seniority can be conferred on promotees retrospectively from a date they were not born in the Cadre. HEADNOTE: Under Rule 2 of the Bihar Public Works Department Code, the Governor of Bihar took a decision on 7.4.1958 providing that 25% of the posts of Assistant Engineers in <ORG> (the <ORG>) were to be filled by promotion, subject to availability of suitable hands, from Overseers in <ORG> (<ORG>) and 75% of the posts were to be filled by direct recruitment to the <ORG>. Respondents no. 1 to 5 in both these appeals were appointed as Assistant Engineers in the <ORG> on the recommendation of <ORG> in the year 1961; and the appellants (in Civil Appeal No. 233 of 1978(respondents no. 6 to 23 in Civil Appeal No. 232 of 1978), who had been working as Overseers in <ORG> (<ORG>) were promoted to the posts of Assistant Engineers in the <ORG> in 1962 and thereafter. However, by orders dated 12.7.1975, 20.1.1976 and 9.4.1977, the <ORG> changed the date of promotion of the appellants to the dates prior to the appointment of respondents no. 1 to 5 in the <ORG>, making the former Senior to the letter. Respondents no. 1 to 5 filed writ petition before <ORG> challenging the seniority conferred on the appellants from the retrospective date and contended that the orders giving promotions to the appellants from a date earlier to date of their promotion in the <ORG> purported to affect prejudicially respondents no. 1 to 5's right inasmuch as they were appointed to the <ORG> earlier to the promotion of the appellants; and that the seniority had to be reckoned amongst the officials working as Assistant Engineers in the <ORG> from the date of their appointment or promotion to the said <ORG>. The appellants contended that they were entitled to be promoted retrospectively on the 411 basis of reservation of 25% of the Cadre posts in the <ORG> till 1958. <ORG>. holding that the orders promoting the appellants with retrospective effect were bad, quashed the same and allowed the writ petition. Hence the present appeals. On consideration of the legality and validity of the orders of the <ORG> giving promotions to the appellants from a date earlier to the date of their entry into the <ORG> as Assistant Engineers, and its effect on the inter- se seniority amongst the appellants and respondents no. 1 to 5, who were directly appointed as Assistant Enginers in the <ORG> before the appellants entered in the said <ORG>. Dismissing the appeals, this <ORG>, HELD: 1. The <ORG> Orders dated 12.7.1975, 20.1.1976 and 9.4.1977 which purported to give promotion to the appellants retrospectively were arbitrary, illegal and inoperative inasmuch as these seriously affected rspondents no. 1 to 5. The appellants were not borne in the cadre of Assistant Engineers even in officiating capacity at time when rspondents no. 1 to 5 were directly recruited to the post of Assistant Egineer. As such, the promotee appellants could not be under any circumstance given seniority over the directly recruited respondents no. 1 to 5. The judgment of <ORG> in quashing the impugned <ORG> Orders was, therefore, unexceptionable. [418F-H; 420A] 2.1 No person can be promoted with retrospective effect from a date when he was not borne in the Cadre so as to adversely affect others; and amongst members of the same grade, seniority is reckoned from the date of their initial entry into the service. [419F] 2.2 Seniority inter-se amongst the Assistant Engineers in Bihar Engineering <ORG>, Class II would be considered from the date of the length of service rendered as Assistant Engineers. Therefore, the appellants could not be made senior to respondents no. 1 to 5 by the impugned <ORG> Orders as they entered into the said <ORG> in 1962 and thereafter by promotion subsequent to respondent no. 1 to 5 who were directly recruited in the quota meant for them. There was nothing to show that the appellants could be deemed to be recruited in 1958 quota and that these vacancies were carried forward. [419G; 418E- <CITATION> .,  1 SCC 319, relied on. 412 <CITATION> .,  1 SCR 815 and <CITATION> ,  Supp. SCC 207, held inapplicable. <CITATION> .,  Supp. SCC 243, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 232-233 of 1978.

From the Judgment and Order dated 19.7.1977 of <ORG> in C.W.J.C. No. 756 of 1977.

<NAME>, <NAME>, <NAME>, Ms. <NAME>, Ms. <NAME>, Mrs. <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, Mrs. <NAME> and <NAME> for the appearing parties.

The Judgment of the Court was delievered by <NAME>, J. These two appeals were filed against the common judgment and order dated 29th July, 1978 made by <ORG> of <ORG> at Patna in C.W.J.C. No. 756 of 1977 whereby <ORG> quashed the orders of the government contained in Annexures 8, 9 and 10 to the writ petition. The facts unfurled from the writ petition are as follows:

The respondent Nos. 1 to 5 in these appeals (the petitioners in the writ petition) were directly appointed in <ORG> as Assistant Engineers of <ORG> on the recommendation of <ORG> and were posted in <ORG> in 1961. The respondent Nos. 6 to 23 in C.A. No. 232 of 1978 (who are appellants in C.A. No. 233 of 1978 and respondent Nos. 5 to 22 in the writ petition) were working at that time as overseers in <ORG> (<ORG>). On 7th April, 1958 the the Governor took a decision under rule 2 of the Public Works <ORG> Code that 25% of the posts in <ORG>, Class II shall be filled up by promotion, subject to availability of suitable hands. Thus, out of the total vacancies in <ORG>, Class II, 75% of the vacant posts as determined by the <ORG> will be filled up by direct recruitment and 25% of the vacant posts will be filled up by promotion subject to availability of suitable candidates. By notification dated 18th July, 1964/27th August, 1964, respondent Nos. 6 to 13 in C.A. No. 232 of 1978 (appellant Nos. 1 to 8 in C.A. No. 233 of 1978 and respondent Nos. 5 to 12 in the writ petition) who were members of <ORG> (Overseers) were promoted to the post of Assistant Engineer in Class II and by another notification dated 21st July, 1969, respondent Nos. 14 to 23 in C.A. No. 232 of 1978 (appellant Nos. 9 to 18 in C.A. No. 233 of 1978 and respondent Nos. 13 to 22 in the writ petition) were also promoted to <ORG>, Class II as Assistant Engineers. On February 25, 1969, a seniority list of Assistant Engineers was published by the <ORG> wherein the names of the respondent Nos. 1 to 5 (the petitioners) were mentioned at Sl. Nos. 170, 199, 208, 211 and 226 and the names of the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in writ petition) were mentioned at Sl. Nos. 253, 254, 256 to 262, 687 to 695 and 701 respectively The respondent Nos. 6 to 23 were thus shown as juniors to the respondent Nos. 1 to 5 (the petitioners). The respondent Nos. 6 to 23 feeling aggrieved by the said seniority list made representations claiming seniority over respondent Nos. 1 to

5. On 3rd May, 1972 the State of Bihar constituted a Committee known as <ORG> by a resolution to consider the inter se seniority of Civil Engineers including the Assistant Engineers. On April 19, 1973 the <ORG> submitted a report making certain recommendations. It was alleged that a revised seniority list was prepared wherein the respondent Nos. 1 to 5 were shown juniors to the respondent Nos. 6 to 23. This, of course, has been denied in affidavit-in-counter filed on behalf of the <ORG> (appellants in C.A. No. 232 of 1978, respondent Nos. 6 to 9 in C.A. 233 OF 1978, and respondent Nos. 1 to 4 in the writ petition). On 21st of July, 1975, an order was made whereby the date of promotion of respondent Nos. 6 to 13 was changed from 21st July, 1962 to 27th February, 1961 thereby making the respondent Nos. 1 to 5 juniors to respondent Nos. 6 to

13. This order is contained in annexure 8 to the writ petition. In other words, the respondent Nos. 6 to 13 were promoted retrospectively from the State against it but the State government instead of redressing their grievances made another order on January 20, 1976 (annexure 9 to the writ petition) re-fixing the seniority of respondent Nos. 6 & 7 promoting them to <ORG> with effect from December 19, 1958. Again, to the prejudice of the respondent Nos. 1 to 5, an order was passed by <ORG> by which the date of promotion of respondent Nos. 14 to 23 was pushed back to February 27, 1961 making them also senior to the respondent Nos. 1 to 5. This order is contained in annexure 10 to the writ petition.

The respondent Nos. 1 to 5, therefore, filed a writ petition in <ORG> at Patna being Civil Writ Petition No. 756 of 1977 challenging the seniority conferred on the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in the writ petition) by annexures 8, 9 and 10 on the ground that these orders were wholly arbitrary illegal, void and inoperative and ineffective and so prayed for appropriate writ for quashing those orders.

A counter-affidavit was filed on behalf of the State <ORG>. In Para 3(iii) of the said affidavit, it has been averred that till 1957, 25% of the vacancies in <ORG>, Class II, were being filled up by promotion from <ORG> (commonly known as `Overseers'). Subsequently, in the year 1958, it was decided that 25% of the cadre posts in the <ORG>, Class II Both permanent and temporary, shall be reserved for being filled up through promotion from the members of <ORG>. It has been further averred in para 3(iv) that all the posts of temporary Assistant Engineers to which the Overseers were entitled to be promoted on the basis of 25% reservation in the cadre were not filled up by promotion of Overseers, only 3 overseers were given promotion with effect from 19.12.1958 vide order No. A/P1- 409-64-1-14294 dated 18.7.64/27.8.64. In the said affidavit it has also been stated that on a careful examination of the matter it was found that on the basis of total number of posts of Assistant Engineers in the Department, the Overseers were entitled to 60 posts on the basis of 25% reservation till 1958, out of which they were already given 33 posts and 27 more posts of Assistant Engineers were still due to them and accordingly by an order dated 20th January, 1976 the 21 Overseers who had earlier been given promotion as temporary Assistant Engineers from later dates in 1960, 1961 and 1962 by the order dated 18.7.64/27.8.64. were given promotion, with effect from 19.12.1958. Due to this correction, respondent Nos. 6 and 7 and one Shri Mithileshwari Sahay (since retired) were promoted as temporary Assistant Engineers with effect from 19.12.1958 in partial modification of the <ORG> order dated 18.7.64/27.8.64 and another order dated July 12, 1975. It has been further stated that as a result of this modification in the dates of promotion as Assistant Engineer who by the order dated 20th January, 1976 were allowed promotion as temporary Assistant Engineers with effect from 19.12.1958 as against promotions from later dated in 1960, 1961 and 1962 given to them by earlier <ORG> Order dated 27.8.1964 and order dated 21.7.1969. It has also been stated that the respondent Nos. 6 and 7 were entitled to promotion in 1958 and respondent Nos. 8 to 23 to promotions in 1960 and 1961, on the basis of the reservation of 25% of the cadre post in <ORG>, Class II, for promotion of Overseers from <ORG>. It has been further averred that as against 21 consequential vacancies, the case of only 17 Overseers was modified accordingly in supersession of the earlier <ORG> order dated 18.7.64/27.8.64 and respondent Nos. 8 to 13 were given promotion as temporary Assistant Engineer with effect from 27.2.1961, from which date the promotion was due to them on the basis of the quota by a <ORG> Order No. 10501 (annexure 8 to the writ petition) dated July 12, 1975 and No. 17328 dated November 8, 1975 respectively. It has also been stated that the seniority list that was prepared and published in 1969 was tentative.

<ORG>, Patna held that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely effect others. The respondent Nos. 1 to 5 were recruited to the post of Assistant Engineer, Class II before the respondent Nos. 6 to 23 were promoted to the post of Assistant Engineer, Class II in <ORG>, Class II. <ORG>, therefore, held that the orders contained in Annexure (respondent Nos. 5 to 22 in the writ petition) with retrospective effect are bad and so quashed those <ORG> orders referred to in the said annexures.

Against this judgment and order made by <ORG>, the instant appeals on special leave were filed.

The sole question which falls for decision in these appeals is whether the inter-se seniority between the petitioners-respondent Nos. 1 to 5 who are direct recruits and the Overseers belonging to <ORG> (Irrigation Department) who had been promoted retrospectively in their 25% quota for the year 1958 as revised by the <ORG> orders mentioned in annexures 8, 9 and 10 to the writ petition, is arbitrary, illegal and inoperative as those orders purport to affect prejudicial the seniority of the petitioners-respondent Nos. 1 to 5 in the service of <ORG>, Class II. It is not disputed that in 1958 under Rule 2 of the Public Works Department Code, the <ORG> of Bihar took a decision to the effect that 25% of the posts in the <ORG>, Class II shall be filled up by promotion, subject to availability of suitable hands. It also appears from the counter-affidavit filed on behalf of the <ORG> that in 1958, the the total number of posts to be filled up by promotion from the Overseers in <ORG> (Irrigation Department) to the post of Assistant Engineer, in <ORG>, Class II was 60 out of which only 33 posts were filled up by promotion, leaving 27 more posts of Assistant Engineers to be filled up by promotion from the Overseers in <ORG> (Irrigation Department). It is also clear from the averments made in the said counter-affidavit that the petitioners-respondent Nos. 1 to 5 were appointed in <ORG>, Class II on the recommendation of <ORG> in the year 1961 and the respondent Nos. 6 to 13 who had been working in <ORG> (Irrigation Department) as Overseers and having independent charge of the sub-division were promoted to the post of Assistant Engineer, Class II by notification dated 18.7.64/27.8.64. The respondent Nos. 14 to 23 were also promoted by notification dated 21.7.1969. On the basis of these appointments and promotions in the post of Assistant Engineer in the <ORG>, Class II, a seniority list was prepared and published in february, 1969 tentatively wherein the petitioners- respondent Nos. 1 to 5 were shown as senior to respondent Nos. 6 to 23. However, the <ORG> by its order dated 21st July, 1962 changed the date of promotion of respondent Nos. 6 to 13 from 21.7.1962 to 27.21961 (Annexure 8 to the writ petition) thereby making the petitioners-respondent Nos. 1 to 5 junior to respondent Nos. 6 to 13. On January 20, 1976, the <ORG> passed another order re-fixing the seniority of respondent Nos. 5 & 6 promoting them to <ORG>, Class II with effect them 19.12.1958 (Annexure 9 to the writ petition). Again an order contained in Annexure 10 to the writ petition was passed by which the date of promotion of respondent Nos. 14 to 23 was pushed back to February 27, 1961, thus making them senior to the petitioners-respondent Nos. 1 to 5. The petitioners- respondent Nos. 1 to 5 challenged these three <ORG> orders mainly on the ground that these orders giving promotion to the respondent Nos. 6 to 23 from a date earlier to their date of promotion to the post of Assistant Engineer in <ORG>, Class II purport to affect prejudicially the rights of the petitioners-respondent Nos. 1 to 5 in as much as they were appointed to the post of Assistant Engineer in the <ORG>, Class II earlier to the promotion to the said post of the respondent Nos. 6 to 23. It has also been submitted in this connection that he seniority has to be reckoned amongst the officials working as Assistant Engineers in the <ORG>, Class II from the date of their appointment on promotion to the said Service. The petitioners-respondent Nos. 1 to 5 being appointed earlier directly in the quota of direct recruits than the promoted respondents who were promoted later cannot be given seniority in service to the petitioners-respondent Nos. 1 to 5 and it was contended that the impugned orders are wholly illegal and unwarranted and so <ORG> has rightly quashed the said orders. It has been further urged in this connection that the <ORG> can promote its employees with retrospective effect provided such retrospective promotion does not affect the right and seniority already earned by others. The petitioners-respondent Nos. 1 to 5 who were senior to the petitioners-respondents Nos. 6 to 23 were made junior to them by the said <ORG> orders as contained in Annexure 8, 9 and 10 to the writ petition. It has, therefore, been contended that the promotion to the respondent Nos. 6 to 23 was illegal and arbitrary as the same had prejudicially affected the petitioners-respondent Nos. 1 to 5 in regard to their seniority.

<ORG> while rendering its judgment relied on the decision in the case of <CITATION> .,  1 SCC 319 specially on the observation made therein as under:

"Once the Assistant Engineers are regularly appointed to officiate as Executive Engineers within their quota they will be entitled to consideration in their own rights as Class I Officers to further promotions. Their "birth marks" in their earlier service will be of no relevance once they are regularly officiating in the grade of Executive Engineer within their quota." <ORG> held that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others.

It is the admitted position that the respondent Nos. 6 to 23 were working as Overseers in <ORG> and were promoted to the post of Assistant Engineer in <ORG>, Class II much after the petitioners-respondents Nos. 1 to 5 were directly recruited and appointed on the basis of the recommendation of <ORG>, to the post of Assistant Engineers in 1961 and as such they have been working in the grade of Assistant Engineers much before the respondent Nos. 6 to 23. Undoubtedly, on the basis of the order of the Governor in 1958, the posts of Assistant Engineers are to be filled up from two sources i.e. by direct recruitment as well as by promotion from Overseers working in <ORG> and the ratio of the vacan-

cies to be filled up has been fixed as 75% from the direct recruits and 25% from the promotees. It has been urged on behalf of the respondent Nos. 6 to 23 that in view of the quota rule the respondent Nos. 6 to 23 who were promoted in the quota set out for promotees in respect of the vacancies of 1958 shall be taken to be promoted in 1958 notwithstanding that they have been actually promoted long after 1958 and after the direct recruits i.e. respondent Nos. 1 to 5 were recruited directly to the post of Assistant Engineers. In other words even though the respondent Nos. 6 to 23 have been promoted after the date of recruitment of respondent Nos. 1 to 5 to the post of Assistant Engineer, still then the promote respondent Nos. 6 to 23 should be deemed to be senior to the direct recruit respondent Nos. 1 to 5 as they were promoted in the vacancies for 1958 quota set up for promotees. In support of this submission the decision in V.B. Badami etc. v. State of Mysore and Ors., [1976] 1 SCR 815 as well as <NAME> v. State of Kanataka, [1987] Supp. SCC 207 were cited at the bar. In both these cases the promotees occupied the quota of direct recruits as direct recruits were not available to fill up the quota meant for them. It was held that direct recruits who were appointed within their quota subsequently were entitled to the vacancies within their quota which had not been filled up and they would become senior to the promotees The promotees would be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota of those years. The promotees cannot claim any right to hold promotional posts unless the vacancies fall within their quota. These cases have no application in the instant case in as much as the direct recruits i.e. respondent Nos. 1 to 5 were recruited in their quota i.e. the quota meant for them. This being so, the decision in these two cases has no application to the instant case. Moreover, there is nothing to show that the respondent Nos. 6 to 23 who were promoted in 1962 and thereafter i.e. subsequent to the direct recruits i.e. respondent Nos. 1 to 5 could be deemed to be recruited in 1958 quota as there was nothing to show that these vacancies were carried forward.

The <ORG>'s orders as contained in annexures 8, 9 and 10 which purport to give promotion to the respondent Nos. 6 to 23 retrospectively are arbitrary, illegal and inoperative in as much as these seriously affect the respondent Nos. 1 to 5. The respondent Nos. 6 to 23 were not in the cadre of Assistant Engineers even in officiating capacity at the time when the respondent Nos. 1 to 5 were directly recruited to the post of Assistant Engineer. As such, the said promotee respondent Nos. 6 to 23 could not be under any circumstances, given seniority over the directly recruited respondent Nos. 1 to 5. <ORG> has rightly quoted the observation made by this Court in the case of <ORG> (supra) as mentioned in the preceding paragraphs.

It is pertinent to mention in this connection, the observation of this Court in the case of <CITATION> .,  Supp. SCC 243. In this case the petitioners were confirmed as Assistant Medical Officers in 1962 and 1963 and they were placed in the higher scale of Assistant Divisional Medical Officers to <ORG> with effect from January 1, 1973. Thereafter they were appointed as officiating Divisional Medical Officers in 1972, 1973 and 1974 and they had been continuing there uninterrupted. Respondent Nos. 4 to 64 were given substantive appointments as Divisional Medical Officers later on but they were confirmed earlier than the petitioners because of the zone-wise confirmation given by <ORG>. It was held that the petitioners should be considered at par for the purpose of fixing seniority, with those appointed to permanent posts in a substantive capacity. For the purpose of determining seniority among promotees, the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointment and the "entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts."

In the instant case, the promotee respondent Nos. 6 to 23 were not born in the cadre of Assistant Engineer in <ORG>, Class II at the time when the respondent Nos. 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over the respondent Nos. 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter-se amongst the Assistant Engineers in <ORG>, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law the respondent Nos. 6 to 23 can not be made senior to the respondent Nos. 1 to 5 by the impugned <ORG> orders as they entered into the said Service by promotion after the respondent Nos. 1 to 5 were directly recruited in the quota of direct recruits. The judgment of <ORG> quashing the impugned <ORG> orders made in annexures, 8, 9 and 10 is unexceptionable.

In the premises aforesaid, we confirm the judgment and order rendered by <ORG>. The appeals are, therefore, dismissed. In the facts and circumstances of the case, there will be no order as to costs.

R.P. Appeals dismissed.


JUDGMENT

1. The question involved in this appeal is whether the execution of the mortgage decree in favour of the plaintiffs is barred by limitation. The Subordinate Judge held that the application for execution presented by the plaintiffs is not barred by limitation and the defendant has preferred this appeal.

2. The mortgage decree in favour of the plaintiffs was passed on 14th September, 1916. An execution application was filed on 25th September, 1917. It was dismissed on 17th October, 1918. The present application is dated 9th March, 1923. The contention of the plaintiffs is that a certain sum of money in <ORG> was paid out to them by order dated 31st March, 1920 and the cheque was actually issued on 1st April, 1920 and that their application is therefore within three years from the date of the order for payment out. On the other hand Mr. <NAME> for the appellant contends that the application for payment out of the sum of money in <ORG> is not a step-in-aid of execution and therefore plaintiffs' application for execution is barred. The defendant's guardian obtained leave of the <ORG> for mortgaging the defendant's property for the purpose of raising money to pay off the plaintiffs' debt. Sanction was given to the guardian to raise money in 1917 and on 14th October, 1918 he hypothecated the defendant's properties to one <NAME> by Ex. I. The recital in Ex. I is : " Particulars of receipt of the said amount Rs. 17,690 is the amount received by way of direction given (to you) for settling and discharging the sum (payable) under the decree obtained against the said minor by <NAME> and others in O.S. N0.64 of 1915 on the file of the said Sub-<ORG> and for obtaining receipt and retaining it as a title-deed herefor." The mortgagee seems to have paid the amount into <ORG> on 19th March, 1920 whereupon the plaintiffs applied for an order for payment out.

3. The question is whether in the circumstances an application for an order for payment out by the <ORG> is a step-in-aid of execution. It is well settled that an application for payment out of money in <ORG> by a decree-holder is a step-in-aid of execution if the money in <ORG> was realised in execution of the decree. <NAME> v. Narasimha ILR 2 M 174, <CITATION> (1892) ILR 16 M 452, <NAME> v. Krishnamma Naidu (1893) ILR 17 M 165 : 3 MLJ 296 and <NAME> v. <NAME> (1896) ILR 22 B 340. In this case the money in <ORG> was not realised by the execution of the plaintiffs' decree. The plaintiffs' execution petition was dismissed so far back as 17th October, 1918. The money was paid into <ORG> to the credit of the suit and the plaintiffs applied for payment to them of the amount in <ORG>. Where an amount of money is in <ORG> to the credit of a suit and such amount has not been the proceeds of execution an application for payment out cannot be said to be an execution application or an application in aid of execution. In such a case the plaintiff has to only apply to the <ORG> for payment and the <ORG> makes the payment without reference to the judgment-debtor in the suit. By asking for payment of the amount in <ORG>, the plaintiff does not do anything to aid the execution of the decree. Where money is realised in execution of the decree he has to ask the <ORG> for an order to pay the money to him, and the <ORG>, after considering whether there are other claimants in respect of the amount, passes an order in favour of the applicant. Such an order is a step-in-aid of execution. But, where the money is to the credit of the suit and all that is required of the plaintiff is to make an application for payment, it cannot be said that what he does is a step-in-aid of the execution of the decree.

4. <CITATION> (1921) ILR 45 M 466 : 42 MLJ 303 <NAME> and <NAME>, JJ. held that an application to be a step-in-aid of execution should be one made in a pending execution application. <NAME>, J., in delivering the leading judgment of the case, differed from an observation of <NAME>, J., that there is no warrant for the view that an application to take a step-in-aid of execution should be made in execution, meaning apparently until an execution is pending. The application for the transfer of a decree from one <ORG> to another for the purpose of execution is a step-in-aid of execution; and the application is in the form of an ordinary execution application with the prayer that the decree be transmitted to another <ORG> for execution. Such an application is a step-in-aid of execution. In such a case it is necessary that the decree should be transferred to another <ORG> for the purpose of execution; and therefore what is done in order to execute the decree is considered to be a step-in-aid of execution. But where the act of the plaintiff is not in furtherance of execution or in a pending execution, his act cannot be said to be one in aid of execution.

5. Mr. <NAME> for the respondents relies upon <NAME> v. <NAME> (1917) 35 MLJ 375 as supporting his contention that the order of the <ORG> for payment out is a step-in-aid of execution. That case is distinguishable from the present case, as in that case an order of the <ORG> was necessary for paying out to the plaintiff the amount of Rs. 500 paid into <ORG> as security for costs. There the learned Judges observed as the money was deposited only as a security an order of the <ORG> was necessary to make it available for payment towards the decree amount. An application for such a purpose and for payment out of the money is thus clearly necessary; and such an application is one in execution of the decree itself. In this case as we have already observed no such order was necessary in order to enable the plaintiffs to draw out the money standing to the credit of the suit.

6. If payment is made to the decree-holder by the judgment-debtor or by anybody on his behalf, or by the Receiver appointed by the <ORG> to be in charge of the defendant's properties, it would not amount to a step-in-aid of execution. In <NAME> v. <NAME> (1899) ILR 33 M 448 it was held that payment by the Receiver appointed by a <ORG> out of the rents and profits of the defendant's properties was not a step-in-aid of execution. The Receiver was not appointed for the purpose of execution; he was appointed during the pendency of the suit, and the <ORG> paid to the plaintiff the amount that was collected by the Receiver and paid by him into <ORG>. The learned Judges observed at page 452 : "We do not think that it can be properly said that such money was collected or paid in execution of the decree though no doubt it was as a consequence of the decree that the appellants became entitled to it. The appellants in demanding the payment of these current profits of the estate did nothing towards the execution of the decree, for the decree did not deal with these profits." In the present case the mortgagee paid into <ORG> a sum of money which he was directed to pay directly to the decree-holder; and the <ORG> paid the money out to the plaintiffs on their applying for it. The <ORG>, therefore, simply acted as the agent of the mortgagee and not as a <ORG> executing the decree. <NAME>, J., in a recent case in <CITATION> (1934) 20 LW 190 observed that the mere payment however is not a step-in-aid of execution and it is only a petition put in to certify such payment that can constitute a step-in-aid of execution such as will give a fresh starting point of limitation under Article 182 of the Indian Limitation Act . We hold that in this case the payment out by the <ORG> to the plaintiffs on their application on 31st March, 1920 is not a step-in-aid of execution and the plaintiffs' application therefore is barred by limitation.

7. The next contention is that the payment towards the decree amount was made by a person duly authorised on behalf of the defendant and such payment having been made by the <ORG> as the agent of the judgment-debtor and the payment appearing in the handwriting of the person making the same by reason of the cheque having been signed by the <ORG>, the terms of Section 20 of the Limitation Act have been satisfied and therefore the application is within time. In the first place it is to be noted that the mortgagee was not authorised to pay the amount into <ORG>. The terms of Ex. I are clear. The guardian of the defendant did, with the sanction of the <ORG>, execute Ex. 1, a mortgage in favour of <NAME> and directed him to pay the amount to the plaintiff and obtain a receipt from him and to retain it as a title. The mortgagee, therefore, was not authorised to pay the money into the <ORG>. Secondly, the document was executed on 14th October, 1918, and the mortgagee was asked to pay the amount without any delay, for in the particulars of consideration the recital is " Rs. 17,690, the amount received by way of direction given (to you) for settling and discharging the sum (payable) under the decree obtained against the said minor by <NAME> and others in O.S. No. 64 of 1915," etc. The mortgagee, therefore, was not authorised to keep money with him for a considerable time, i. e., for more than a year and a half, and then to pay it into <ORG>. The agent who can give the creditor the benefit of Section 20 has to act within the terms of his authority. If he exceeds his authority or does something which is not actually covered by his authority he cannot bind the principal so as to give the creditor the benefit of Section 20 of the Limitation Act. We think this case comes within the principle of the decision in <NAME> v. <NAME> 2 Bing NS 241 : 132 ER 95. In that case the defendant's agent had instructions to offer the claimant a part of the debt in discharge of the whole. The claimant refused to take the money on those terms and the agent paid it in part discharge. It was held that this was not a part-payment by defendant to take the case out of the operation of the Statute of Limitations. <CITATION> (1934) 26 MLJ 509 it was held following <NAME> v. <NAME> 2 Bing NS 241 : 132 ER 95 that though the mortgagee had authority to pay off the 'debt in full, he had no authority to make a pure payment of interest as such so as to bring the case within Section 20 of the Indian Limitation Act.

8. Mr. <NAME> relied upon in <CITATION> (1921) ILR 44 M 971 : 41 MLJ 423 as supporting his contention. In that case a certain amount paid by the <ORG> under the Land Acquisition Act into <ORG> was paid out to the decree-holder. It was held that the payment of that amount was part-payment of the principal of the decree debt and the judgment by whose order the payment was made was an agent duly authorised by the judgment-debtor to make it and the fact of the payment appeared in the handwriting of the Judge within Section 20 of the Limitation Act. This case is distinguishable from the present case on the facts. In that case a portion of the hypothecated property was acquired by the <ORG> under the Land Acquisition Act , and Rs. 3,400 was deposited in <ORG> for the <ORG> to the credit of the suit and the decree-holder 'drew the amount from <ORG>. There the money was paid into <ORG> by the <ORG> under the provisions of the Land Acquisition Act . Seeing that the land acquired was subject to a mortgage and there was a decree for the sale of the property, the <ORG> paid the compensation for the land acquired into <ORG> as it was bound to do. In the present case the mortgagee was hot required by the mortgagor to pay money into <ORG>. He chose to pay into <ORG> out of his own sweet will and pleasure when it suited him. In the first place he had no power to pay it nearly one and a half years after the execution of Ex. I, and, in the second place, he was not asked to pay the amount into <ORG> but was asked to pay the money directly to the decree-holder and obtain a receipt from him. Therefore he was not a person specially authorised to pay the amount into <ORG> so that it may be paid out to the decree-holder. This point also is found in favour of the appellant.

9. In the result the appeal is allowed and the order of the Subordinate Judge is set aside with costs throughout.


PETITIONER: SIR <NAME> & <NAME> Vs. RESPONDENT: COMMISSIONER OF INCOME-TAX, MADHYA PRADESH DATE OF JUDGMENT: 04/01/1966 BENCH: <NAME>, K. BENCH: <NAME>, K. SHAH, J.C. SIKRI, S.M. CITATION: 1966 AIR 1552 1966 SCR (3) 193 ACT: Income-tax Act , s. 26A and Income-tax Rules, rr. 6A and 6B--Order of cancellation under r. 6B-If appealable. HEADNOTE: The Income,-tax Officer cancelled the certificate of renewal of registration of the appellant-firm, under r. 6B of the Income-tax Rules, on the ground that the firm was not a genuine one. The Appellate Assistant Commissioner, the <ORG> and <ORG> on reference, held that no appeal lay against the order of the Income-tax Officer to the Appellate Assistant Commissioner under s. 30(1) of the Income-tax Act, 1922. In appeal to this Court, HELD :The words "refusal to register a firm" in s. 30 are wide enough to take in the orders made under rr. 6A and 6B refusing to renew registration and also cancelling the certificate so renewed, and such an order directly attracts the appellate jurisdiction conferred on the Appellate Assistant Commissioner under the section. [196 E; 197 F] The fact that s. 30 provides for an appeal separately against the orders under s. 23 (4) either refusing to register a firm or cancelling the registration of a firm, but provides in the context of s. 26A , for an appeal only against an order refusing to register the firm, does not affect this construction of s. 30 , because, when s. 30 provides for an appeal against the orders under s. 23(4) , it has merely incorporated the two forms of orders embodied in s. 23(4), and, when it provides for an appeal against the order under s. 26A , it has used a general word, for the nature of the order under s. 26A is not described but is left to be prescribed under the Rules. The application under s. 26A made to the Income-tax Officer on behalf of a firm for registration for the purposes of the Act, will be disposed of in the manner prescribed by rr. 6A and 6B. Under these Rules, the Income-tax Officer is authorised to make three kinds of orders, namely, (i) he can refuse to renew the registration; (ii) he can register; and (iii) he can cancel the renewal if he is satisfied that a renewal was obtained without there being a genuine firm in existence. But the three kinds of orders, having regard to the circumstances of each case, will be made only on an application for renewal of registration, because, the Rules do not provide for independent proceedings to the cancellation of the renewed certificate. When the Income- tax Officer cancels a renewed certificate, he sets aside his earlier order and refuses a renewal, with the result that, an order of refusal to renew a certificate and the order cancelling the renewed certificate are given the same effect, namely, refusal of the application to register. It follows that the order cancelling registration is nothing more than refusing to renew the certificate of registration. [196 A-E: 197 C-E] JUDGMENT:

CIVIL APPELLATE JURISDICTION:Civil Appeal No. 223 of 1965. Appeal from the judgment and order dated February 23, 1962 of <ORG> in Misc. Civil Case No. 165 of 1961.

<NAME>, <NAME>, <NAME>, <NAME>, for the appellant.

<NAME>, <NAME>, <NAME> and <NAME>, for the respondent.

The judgment of the Court was delivered by <NAME>, J. This appeal, on a certificate granted by <ORG>, raises the question whether an appeal lies under s. 30(1) of the Indian Income-tax Act, 1922, hereinafter called the Act, to the Appellate Assistant Commissioner against the order of an Income-tax Officer cancelling an order granting registration of a firm under S. 26-A of the Act.

The facts material for the said question may be briefly stated. The appellant is a firm constituted under a deed of partnership dated July 16, 1948. The Income-tax Officer registered the said firm under s. 26-A of the Act for the year 1950-51. The registration was renewed for the years 1951-52 and 1952-53. On November 30, 1957, the Income-tax Officer renewed the registration for the assessment year 1953-54. On March 6, 1959, on the ground that the firm was not a genuine one, the said officer cancelled the registration under Rule 6-B of the Income-tax Rules. The appellant preferred an appeal against that order to the Appellate Assistant Commissioner, Indore. On July 15, 1959, the said Assistant Commissioner rejected the appeal for the reason that no appeal lay against the order of the Income- tax Officer cancelling the registration. The appeal filed by the appellant against that order to <ORG>, Bombay, was dismissed. At the instance of the appellant, the following question was referred to <ORG> under s. 66(1) of the Act :

"Whether on the facts and circumstances of the case, the order passed by the Income-tax Officer under Rule 6-B of the Indian Income-

tax Rules cancelling the certificate of renewal of registration granted to the assessee is appealable under section 30 of the Income-tax Act.,, A Division Bench of <ORG> answer- ed the reference against the appellant. It held that no appeal lay under s. 30 of the Act against the order of the Income-tax Officer cancelling registration to the Appellate Assistant Commissioner. Hence the appeal.

The only question in this appeal is, whether an order cancelling the certificate of renewal of registration made under s. 26-A of the Act by an Income-tax Officer is subject to an appeal under s. 30(1) to the Appellate Assistant Commissioner. At the outset, the relevant provisions may be usefully read Section 26-A . (1) Application may be made to the Income-tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this Act and of any other enactment for the time being in force relating to income-tax or super-tax.

(2) The application shall be made by such person or persons, and at such times and shall contain such particulars and shall be in such form, and be verified in such manner, as may be prescribed and it shall be dealt with by the Income-tax Officer in such manner as may be prescribed.

Rule 6. Any firm to, whom a certificate of registration has been granted under Rule 4 may apply to the Income-tax Officer to have the certificate of registration renewed for a subsequent year Rule 6-A. On receipt of an application under Rule 6 the Income-tax Officer may, if he is satisfied that the application is in order and that there, is or was a firm in existence constituted as shown in the Instrument of Partnership, grant to the assessee a certificate signed and dated by him in the following form:-

Rule 6-B. In the event of the Income-tax Officer being satisfied that the certificate granted under Rule 4, or under Rule 6-A, has been obtained without there being a genuine firm in existence, he may cancel the Section 30 . (1) Any assessee objecting to the cancellation by an Income-tax Officer of the registration of a firm under sub-section (4) of section 23 or to a refusal to register a firm under sub-section (4) of section 23 or section 26-A may appeal to the Appellate Assistant Commissioner against the assessment or against such refusal or order."

The gist of the said provisions relevant to the present enquiry may be stated thus : Under s. 26-A of the Act an application may be made to the Income-tax Officer on behalf of a firm for registration for the purposes of the Act. Such an application has to be filed and disposed of in the manner prescribed in the Act. Under the Rules, an application for the renewal of registration of a firm which has already been registered in the previous years has to be filed before the Income-tax Officer. That application will be disposed of in the manner prescribed by Rules 6-A and 6- B. Under those rules, the Income-tax Officer is authorized to make three kinds of orders, viz., (i) he can refuse to renew the registration of the firm; (ii) he can register the firm; and (iii) he can cancel the renewal of registration if he is satisfied that the renewal has been obtained without there being a genuine firm in existence. The crucial point to be noticed is that the said three kinds of orders, having regard to the circumstances of each case, will be made only in the application for renewal of registration. The Rules do not provide for independent proceedings for the cancel- lation of the renewed certificate. In effect, the Income- tax Officer, after setting aside his earlier wrong order made under a misapprehension, refuses renewal of the certificate of registration. If so, it follows that the order cancelling registration is nothing more than refusing to renew the certificate of registration. If that be the construction of an order made cancelling the certificate re- newed, such an order directly attracts the appellate jurisdiction conferred on the Appellate Assistant Commissioner under s. 30 of the Act.

But Mr. <NAME> for the <ORG> contended that there was internal evidence in s. 30 of the Act itself to show that such a construction was not possible. He further argued that under the Income-tax law there was no scope for equitable considerations, and under the express provisions of s. 30 no appeal <NAME> against the order of the Income-tax Officer cancelling the certificate of registration. In support of his contention he relied upon that part of s. 30 of the Act which we have extracted earlier and contended that when the <ORG> in the context of the orders made under s. 23 (4) spoke separately of the order of can- cellation of registration of a firm and an order refusing to register a firm and in the same section, in the context of s. 26-A, it mentioned only refusal to register a firm, it clearly expressed its mind that in the former case an appeal would lie against both the orders, whereas in the latter case an appeal would lie only against one of the orders. There is some force in this argument. But a careful reading of the provisions of s. 23 (4) and s. 26-A brings out the difference in the phraseology used in s. 30 in the matter of appeals against orders made under the said two sections. The relevant parts of s. 23 (4) and s. 26-A (2) may be placed in juxtaposition :

Section 23(4) Section 26-A(2) be...... dealt the case of a firm, may refuse to with by the Income-tax Officer in register it or may cancel its registration such manner as may be prescribed. ration if it is already registered.

A comparative study of the relevant parts of these two provisions at once shows the distinction between the two. Under s. 23(4) while the Income-tax Officer can make an order refusing to register a firm or may cancel the registration if it is already registered, under s. 26-A(2) he can only make an order in such manner as may be prescribed. The manner prescribed, as we have already indicated earlier, provides for three different kinds of orders to be made in the same application with the result that an order of refusal to renew a certificate and the order cancelling the certificate renewed are given the same effect, namely, refusal of the application to register. That apart, when s. 30 provides for an appeal against the orders under s. 23(4) and also against orders under s. 26-A , it has incorporated the two forms of orders embodied in s. 23(4) and used a general word in providing an appeal against an order under s. 26-A , for the nature of order is not described but left to be prescribed under the Rules. If so, it follows that the words "refusal to register a firm!' in s. 30 of the Act are wide enough to take in the orders made under rr. 6-A and 6-B refusing to renew the registration and also cancelling the certificate so renewed. By so holding we are not unaware that equity has no place, in construing the provisions of the Income-tax Act . Indeed, we have not introduced any equitable consideration in the matter of construction. We have come to the conclusion on a fair reading of the relevant provisions of the Act and the Rules made thereunder.

In the result, we answer the question propounded for <ORG> decision in the affirmative. The order of <ORG> is set aside and the appeal is allowed with costs.

Appeal allowed.