PETITIONER: <NAME>, ETC. Vs. RESPONDENT: STATE OF UTTAR PRADESH AND ORS. DATE OF JUDGMENT28/07/1995 BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) SEN, S.C. (J) CITATION: 1995 SCC (5) 173 JT 1995 (5) 505 1995 SCALE (4)573 ACT: HEADNOTE: JUDGMENT:

J U D G M E N T B.P. JEEVAN REDDY.J.

These writ petitions highlight the faulty manner in which reservations have been provided and implemented by <ORG> and its authorities in the matter of admission to medical courses for the year 1994-95. Though the dispute pertains to the academic year 1994-95, we are told that the admissions have been made only in June- July, 1995 and are yet to be finalised in respect of certain courses.

The story begins with the announcement of policy of reservation in the matter of admission to medical courses issued by the <ORG> on May 17, 1994. According to this notification, sixty five percent of seats were reserved in favour of various classes/categories leaving only thirty five percent for open competition (O.C.) category. The reservations provided were to the following effect:

1. Backward Class 27% 2. Hill Region 3% 3. Uttarakhand Region 3% 4. Scheduled Caste 21% 5. Scheduled Tribe 2%

6. Real dependents of freedom fighters 5%

7. Son/daughter of soldier died in war/handicapped solders 2%

8. For Handicapped Candidates 2%

A further reservation in favour of women was also provided to the extent of thirty percent in each of the above categories. The reservations so provided were challenged by way of a writ petition in this Court under Article 32 of the Constitution-Civil Writ Petition No.777 of 1994 ( <CITATION> .). The contention of the petitioner was that reservation of sixty five percent of seats was contrary to the decision of this Court in <CITATION> . (1992 Suppl. (3) S.C.C. 217) and, therefore, void. Pending the said writ petition, the Government issued a notification on December 17, 1994 modifying the reservation policy contained in the notification of May 17, 1994. It would be appropriate to set out the notification dated December 17, 1994 in its entirety:

No. 6550/Sec-14/V-111/93 From: <NAME>, Sachiv, Uttar Pradesh Shasan To: Director General, Medical Education, Training, U.P.Lucknow Medical Section-14 Lucknow dated 17.12.94 Sub: Reservation in seats of M.B.B.S./B.D.S./B.H.M.S. /B.A.M.S./B.U.M.S. Courses to be filled through C.P.M.T. in State Allopathic Medical Colleges/K.G.

<ORG>, Lucknow/All State Homeopathic/Ayurvedic/Unani <ORG>s.

Sir, In continuation of G<ORG>O<ORG>No<ORG> 2697/Sec-14/V- 94/111/93 dated 17<ORG>5<ORG>94, on the above subject, I am directed to say clarifying the <ORG><ORG> policy that horizontal reservation be granted in all medical colleges on total seats of all the courses to be filled through combined Pre-Medical Test (CPMT) 1994 as given below:

1. Real dependents of freedom fighters 5%

2. Sons/daughters of deceased/disabled soldiers 2%

3. Physically handicapped candidates 2%

4. Candidates belonging to hill areas 3%

5. Candidates belong to Uttaranchal areas 3%

2. The above reservation would be horizontal and the candidates of the above categories, selected on the basis of merit, would be kept under the categories of Scheduled Castes/Scheduled Tribes/Other Backward Classes/ General to which they belong. For example, if a candidate dependent on a Freedom Fighter selected on the basis of reservation belongs to reserved for scheduled caste, (he will be adjusted against the seat reserved for S.C.?) Similarly, if a physically handicapped candidate selected on the basis of reservation belongs to other backward class or general category, he would be adjusted against the seats reserved for other backward classes or general category.

3. I am also directed to say that vertical reservation shall be granted in all medical colleges on total seats of all courses to be filled through C.P.M.T. 1994 as given below:

a) Scheduled Caste Candidates-21%} 30 seats

b) Scheduled Tribe Candidates-21%} in each

c) Other Backward Class } category candidates -27%} reserved } for ladies

4. 'Other Backward Classes' mean the classes mentioned in Annexure-1 of Notification No. 488/XVII-V-1-1(Ka) 8-1994 dated 23.3.94 notified by Vidhiyaka Anubhag, Uttar Pradesh Adhiniyam No.4/1994. The candidates of backward classes mentioned in Annexure-II of the aforesaid Adhiniyam would not be entitled for the reservation.

5. I am also directed to clarify that if a candidate of reserved category, mentioned in para 3 above, is selected alongwith general category candidates on the basis of merit, he shall not be adjusted against reserved seats, as G.O. in this regard has already been issued. So, 50% seats of general category shall be filled on the basis of merit prior to filling of reserve seats mentioned in para 3 above.

Please ensure strict compliance of these orders.

Yours faithfully, sd/-

<NAME>"

This revised notification was brought to the notice of this Court at the hearing of the aforesaid writ petition. After noticing both the aforesaid notifications this Court (the Bench comprising <NAME>, J. and one of us, <NAME>,J.) observed as follows:

"2. Reservation of 65% resulting in reducing the general category of 35% was undoubtedly violative of Article 16. Further by reserving 30% of the general seats for ladies the general category shrank to 5%. But these glaring infirmities have been rectified by the amended circular. Reservation of 30% for ladies has now been confined to para 3 of the amended circular. Dr. <NAME>, learned Senior Counsel appearing for the <ORG> clarified that he has instructions to make a statement on the amended circular that now there is no reservation for ladies in the general category.

3. Similarly, the other defect in the circular reserving 35% seats for general category has been removed. The vertical reservation is now 50% for general category and 50% for Scheduled Castes, Scheduled Tribes and Backward Classes.

Reservation of 15% for various categories mentioned in the earlier circular which reduced the general category to 35% due to vertical reservation has now been made horizontal in the amended circular extending it to all seats. The reservation is no more in general category. The amended circular divides all the seats in <ORG> into two categories - one, general and other reserved. Both have been allocated 50%. Para 2 of the circular explains that candidates who are selected on merit and happen to be of the category mentioned in para 1 would be liable to be adjusted in general or reserved category depending on to which category they belong, such reservation is not contrary to what was said by this <ORG> in <NAME>. Whether the reservation for such persons should have been made or not was not challenged, therefore, this <ORG> is not required to examine it.

4. In the result this petition is disposed of by directing that in view of the circular issued by the Government on 17-12-1994 clarified by para 2 the grievance of the petitioner cannot be said to have been survived. The interim order passed by this Court staying the declaration of results is discharged." This decision was rendered on February 2, 1995. On February 14, 1995 the Government issued a clarification stating:

"I have been directed to say that partly modifying the G.O.No.6550-Sec.14- V/111/93 dt.17.12.94 on the above subject, clause para 3 of the said G.O. shall be read as under:

3. I am also directed to say that vertical reservations shall be granted in all Medical Colleges on total seats of all Courses to be filled through C.P.M.T. 1994.

i) Scheduled Caste Candidates 21%

ii) Scheduled Tribes Candidates 2%

iii) Other Backward Class Candidates 27% The effect of this clarification is that reservation in favour of women has been removed from all the reserved categories.

<ORG> had issued a notification calling for applications for admissions to medical courses in the State in accordance with the notification of May 17, 1994. After the decision of this Court in <NAME> and in the light of the revised notification by the <ORG>, as also the clarification issued on February 14, 1995, the University issued a corrigendum stating that the reservation in favour of five categories, viz., (1) actual dependents of freedom fighters - 5%, (2) sons/daughters of soldiers/deceased/disabled in war - 2%, (3) physically handicapped - 2%, (4) candidates of hill area - 3%, and (5) candidates of Uttarakhand area - 3% (hereinafter referred to as in this judgment as "Special Categories") shall be horizontal reservations and not vertical reservations. The corrigendum stated:

".....following Horizontal reservation has been provided on the total seats of all the courses of every Medical College to be filled on the basis of Combined Pre-Medical Test, 1994:

1) Actual dependents of freedom fighters 5%

2)Sons/daughters of Soldiers/deceased/disabled inwar 2%

3) Physically handicapped 2%

4) Candidates of Hill Area 3%

5) Candidates of Uttarakhand Area 3%

2. The above reservation will be horizontal and the candidates of above categories, selected on the basis of merit, would be kept under the categories of Schedule Caste/Schedule Tribe/Other Backward Class/General to which they belong.

3. It is also informed that on total number of seats of every course in every Medical College through C.P.M.T. 1994. The following vertical reservations have been provided:

(1) Scheduled Caste Candidates 21% (2) Scheduled Tribe Candidates 2% (3) Other Backward Class Candidates 27% 4. It is also clarified that if any candidate belonging to Schedule Caste/Schedule Tribe/Other Backward Class categories is selected in open

competition on the basis of merit, then he will not be adjusted in the seats reserved for concerned categories. Therefore after filling the seats on the basis of horizontal reservation, the unreaserved seats will be filled on the basis of merits and thereafter reserved seats for Schedule Caste/schedule tribe/Other Backward Class will be filled.

5. As per above mentioned provisions the provisions for reservations in application form and important guidlines for C.P.M.T.1994 issued earlier will deemed to be modified accordingly.

6. Therefore, it is desired from the candidates falling under horizontal reservations that if they belong to Scheduled Caste, Scheduled Tribe or Other Backward Class Category, then they should send Caste Certificate on the following proforma giving his Roll number and examination details to the Registrar, <ORG> by 28.2.95. If Caste Certificate is not receivedwithin the prescribed period, then it will be deemed that concerned candidates belongs to the General Category. Once a Caste Certificate is furnished same cannot be changed subsequently. The prescribed proforma of Caste Certificate is being sent to the concerned candidates falling under Horizontal reservation through UPC for necessary action as aforesaid. In case proforma of Caste Certificate is not received by post, then same can be obtained by contacting Registrar, <ORG>."

In accordance with the procedure aforesaid, admissions have been made which are questioned in the present two writ petitions.

At the outset, we may mention a glaring illegality which has unfortunately not been raised in these writ petitions but is self-evident from the decisions of this Court. Under the revised notification dated December 17, 1994, three percent of the seats have been reserved for candidates belonging to hill areas and another three percent in favour of candidates belonging to Uttaranchal areas. These two reservations along with the reservations in favour of physically handicapped, children of deceased/disabled soldiers and dependents of freedom fighters are treated as horizontal reservations. In other words, the reservations in favour of hill areas and Uttaranchal areas are understood and treated as reservations relatable to Article 15(1) of the Constitution and not as reservations in favour of "socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes" within the meaning of Article 15(4) of the Constitution. It has been held by this Court in <CITATION> (1975 (1) S.C.C.267) that the reservation of seats in favour of candidates belonging to hill areas and Uttarakhand areas are reservations within the meaning of Article 15(4) of the Constitution, i.e., they are reservations in favour of socially and educationally backward classes of citizens. This Court found that "the <ORG> has established that the people in hill and Uttarakhand areas are socially and educationally backward classes of citizens". It, therefore, follows that a separate horizontal reservation of six percent of the seats in favour of candidates from hill areas and Uttaranchal apart from and in addition to twenty seven percent reservation in favour of other backward class candidates is clearly illegal. Though this contention has not been specifically raised in these writ petitions we must yet take notice of this circumstance while making the appropriate directions in these matters. It isindeed surprising that the <ORG> of Uttar Pradesh which is a party to the above decision has failed to bear it in mind. The said decision has also been referred to approvingly in <NAME>. The <ORG> of Uttar Pradesh shall keep this in mind for future selections as also in respect of those which may be now under way and make necessary corrections.

We may now turn to the contentions raised in the writ petition.

In the initial notification calling for applications, the fifteen percent special reservations were treated as vertical reservations along with reservations in favour of Other Backward Classes, Scheduled Castes and Scheduled Tribes. Applications were accordingly received. But with the issuance of the revised notification of December 17, 1994, the decision of this Court in <NAME> and the clarification contained in the letter dated February 14, 1995, these special reservations became horizontal reservations. Accordingly, a corrigendum was issued by <ORG> calling upon the candidates belonging to these special categories to specify to which social reservation category they belong. In other words, the candidates who had applied under any of the said special reservations were asked to specify whether they belong to Scheduled Tribes, Scheduled Castes, Other Backward Classes or to open competition category, as the case may be. It is stated that the candidates did indicate the same. According to the counter-affidavit now filed on behalf of the respondents, it appears that out of 2130 candidates who had applied against the five special reservation categories only nine stated that they belong to Other Backward Classes. None stated that they belong to Scheduled Tribes or Scheduled Castes which meant that but for nine candidates, all the rest applying under the aforesaid special categories were from the general/non-reserved category. As we shall indicate presently, 110 out of 112 special reservation candidates have been accommodated only in O.C. category and none in the O.B.C., S.C. or S.T. category.

Now, coming to the manner in which the said two-way reservations, viz., social reservations (vertical reservations) and special reservations (horizontal reservations) have been implemented, a few facts may be noticed. In the Counter-affidavit filed by the respondent (sworn-to by Sri <NAME>) it is stated that the total number of seats available in M.B.B.S, course in the government colleges in Uttar Pradesh is 746. Fifteen percent of the said number comes to 112 seats. In Para 16, it is stated:

"16. That in C.P.M.T. 1994 out of this 112 seats 101 students were selected and all of them belong to the General Category. The replying respondent filled up unreserved seats first and while doing so, 101 students selected on the basis of horizontal reservation since they belong to General Category, hence they have to be adjusted against unreserved seats. 9 belonging to Other Backward ClassesCategory has secured equivalent marks as General Candidates and thus were selected on merits. These candidates have been adjusted against unreserved category. The Roll number, names and total marks out of 1200 of these candidates are as follows:

1. 33936 <NAME> S/o J.P.Gupta 974/1200

2. 16678 <NAME> s/o B.S. Yadava 971/1200

3. 28415 <NAME> S/o S.C.S. Yadava 957/1200

4. 10506 <NAME> S/o O.P.Yadava 950/1200

5. 60497 <NAME> 947/1200

6. 47946 Vishal Singh S/o Y. Singh 947/1200

7. 47684 <NAME> S/o V.S. Yadava 1003/1200

8. 15633 <NAME> S/o S.K. Yadava 954/1200

9. 57620 <NAME> 944/1200 The remaining 263 seats were filled through General Candidates and last candidate selected has secured 891 marks out of 1200 marks. 201 candidates of Other Backward Classes were selected against reserved seats 157 against seats reserved for Scheduled Castes and 15 against seats reserved for Schedule Tribe. Similarly same procedure was applied in all the categories. Therefore, the contention of the petitioner that only 36% seats are filled with General Candidates is wrong. A photostat copy of tabulated result is being filed herewith and marked as Annexure R-IV to to this affidavit."

A reading of Para 16 makes it clear that the authorities in-charge of making admissions first took up the special category reservations and filled them up. Of the 112 candidates, 101 were from what may be called for the sake of convenience, `unreserved category' while nine candidates belonged to Other Backward Class category. But it appears that inasmuch as the said nine candidates belonging to Other Backward Classes had secured equal marks with the general candidates and were accordingly selected on merit in the O.C. quota, they were treated as Open competition candidates. The result was that out of 112 seats reserved for special categories, 110 seats were taken away from the Open competition (O.C.) category, thus leaving only 263 seats for the general candidates, i.e., O.C. candidates not belonging to any of the special reservations. It is the above method of filling of seats that has been challenged in these writ petitions.

The contention of the learned counsel for the petitioners is two fold: (i) by virtue of the revised notification of December 17, 1994, the decision of this Court in <NAME> and the corrigendum notification issued by <ORG>, it is clear that the special reservation seats are to be distributed and allocated proportionately among the social, i.e., vertical reservation categories. Had it been so done, only fifty six candidates belonging to special reservation categories could be accommodated in the O.C. category. But, the respondents have accommodated 110 special reservation candidates in the O.C. category, an excess of fifty four seats. These fifty four seats must be taken away from the special reservation categories and allotted to O.C. candidates not belonging to any special reservation category. (ii) The procedure prescribed in the aforesaid revised notification for filling up the vacancies is equally illegal which has also resulted in the dimunition of seats available for O.C. category. The admissions should be re-done thoroughly to rectify the said error.

On the other hand, the learned counsel for the respondents justify the procedure prescribed in the revised notification for making the admissions. With respect to the first contention of the learned counsel for the petitioners, the submission of the learned counsel for <ORG> and the State of Uttar Pradesh is that the fifteen percent reservation in favour of special categories (special reservation) is an overall reservation and not a compartmentalised reservation. They submit that these special reservations are not divided proportionately among the vertical (social) reservation categories and, therefore, these special reservation candidates have to be provided fifteen percent of the total seats (i.e., 112 seats) overall, whether by adjusting them against any of the social/vertical reservations or otherwise.

The question is which of the above interpretations is the correct one having regard to the language employed in the concerned notifications?

On a careful consideration of the revised notification of December 17, 1994 and the aforementioned corrigendum issued by <ORG>, we are of the opinion that in view of the ambiguous language employed therein, it is not possible to give a definite answer to the question whether the horizontal reservations are overall reservations or compartmentalised reservations. We may explain these two expressions. Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalised reservations. We may illustrate what we say: Take this very case; out of the total 746 seats, 112 seats (representing fifteen percent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats are also divided proportionately as between O.C.,O.B.C.,S.C. and S.T., 30 seats would be allocated to the O.B.C. category; in other words, thirty special category students can be accommodated in the O.B.C. category; but say only ten special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C. category (they will be available for O.B.C. candidates only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are available in O.C. category or not; the special reservation would be a water tight compartment in each of the vertical reservation classes (O.C.,O.B.C.,S.C. and S.T.). As against this, what happens in the over-all reservation is that while allocating the special reservation students to their respective social reservation category, the over-all reservation in favour of special reservation categories has yet to be honoured. This means that in the above illustration, the twenty remaining seats would be transferred to O.C. category which means that the number of special reservation candidates in O.C. category would be 56+20=76. Further, if no special reservation candidate belonging to S.C. and S.T. is available then the proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get transferred to O.C. category. The result would be that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of 112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T. will not be altered.

Now coming to the revised notification of December 17, 1994, it says that "horizontal reservation be granted in all medical colleges on total seats of all the courses....". These words are being interpreted in two different ways by the parties; one says it is over-all reservation while other says it is compartmentalised. Paragraph 2 says that the candidates selected under the aforesaid special categories "would be kept under the categories of Scheduled Castes/Scheduled Tribes/Other Backward Classes/General to which they belong. For example, if a candidate dependent on a freedom fighter selected on the basis of reservation belongs to Scheduled Castes, he will be adjusted against the seat reserved for Scheduled Castes". This is sought to be read by the petitioners as affirming that it is a case of compartmentalised reservation. May be or may not be. It appears that while issuing the said notification, the Government was not conscious of the distinction between overall horizontal reservation and compartmentalised horizontal reservation. At any rate, it may not have had in its contemplation the situation like the one which has arisen now. This is probably the reason that this aspect has not been stated in clear terms.

It would have been better - and the respondents may note this for their future guidance - that while providing horizontal reservations, they should specify whether the horizontal reservation is a compartmental one or an overall one. As a matter of fact, it may not be totally correct to presume that <ORG> was not aware of this distinction between "overall horizontal reservation", since it appears from the judgment in <NAME> that in the first notification issued by <ORG> on May 17, 1994, the thirty percent reservation for ladies was split up into each of the other reservations. For example, it was stated against backward classes that the percentage of reservation in their favour was twenty seven percent but at the same time it was stated that thirty percent of those seats were reserved for ladies. Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a "compartmentalised horizontal reservation". We are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal reservations are comparmentalised in the sense explained above. In other words, the notification inviting applications should itself state not only the percentage of horizontal reservation(s) but should also specify the number of seats reserved for them in each of the social reservation categories, viz., S.T., S.C., <ORG> and O.C. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has happened in this case. As pointed out hereinabove, 110 seats out of 112 seats meant for special reservations have been taken away from the O.C. category alone - and none from the <ORG> or for that matter, from S.C. or S.T. It can well happen the other way also in a given year.

Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen percent special reservation seats to be filled up first and then take up the O.C. (merit) quota (followed by filling of O.B.C., S.C. and S.T. quotas). The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special rreservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. quota.

In this connection, we must reiterate what this Court has said in <NAME>. While holding that what may be called "horizontal reservation" can be provided under clause (1) of Article 16 , the majority judgment administered the following caution in para 744: "(B)ut at the same time, one thing is clear. It is in very exceptional situation - and not for all and sundry reasons - that any further reservations of whatever kind, should be provided under clause (1). In such cases, the <ORG> has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress the specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simply. If reservations are made both under clause (4) as well as under (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do". Though the said observations were made with reference to clauses (1) and (4) of Article 16 , the same apply with equal force to clauses (1) and (4) of Article 15 as well. In this case, the reservation of fifteen percent of seats for special categories was on very high side. As pointed out above, two categories out of them representing six percent out of fifteen percent are really reservations under Article 15(4 ), wrongly treated as reservations under Article 15(1). Even otherwise, the special reservation would be nine percent. The respondents would be well advised to keep in mind the admonition administered by this Court and ensure that the special reservations (horizontal reservations) are kept at the minimum.

Having pointed out the errors in the rule of reservation and its implementation, the question arises what should be done now? Should we interfere with the admissions already finalised? We think it inadvisable to do so. It may be remembered that the admissions now finalised (in June- July, 1995) are really the admissions which ought to have been finalised one year back. The delay has occured on account of the first faulty notification (issued on May 17, 1994). When a writ petition was filed in this court - probably some writ petitions in <ORG> also - the Government realised its mistake and issued the revised notification on December 17, 1994. It dropped the reservation in favour of women in stages. The <ORG> had then to issue a corrigendum asking the special category candidates to indicate their social status. This was a delayed exercise which ought to have been undertaken at the beginning itself. Even the manner in which the seats have been filled up, as indicated above, is faulty. What we have laid down herein is more for the purpose of future guidance for the respondents. At the same time, we have to rectify the injustice done to the open competition candidates in the admissions in question, to the extend feasible. Accordingly, we direct that in the matter of admissions made pursuant to C.P.M.T.1994, while the admissions already finalised shall not be disturbed, <ORG> shall create thirty four additional seats in the M.B.B.S. couse and admit thirty four students from the O.C. category against those seats. If any seats are vacant as on today, they shall also be filled from the O.C. category alone. (It is made clear that O.C. category means the merit list and no distinction shall be made among the candidates in the O.C. list on the basis of their social status because it is well settled that even a S.T./S.C./O.B.C. candidate is entitled to obtain a seat in the O.C. category on the basis of his merit.) The counsel for the petitioners complain that fifty four students belonging to O.C. category have been deprived on account of respondents' faulty actions and that it should be directed to be made up. We cannot agree. The factual basis of this submission is debatable in view of the ambiguity mentioned hereinbefore. We have directed creation of thirty four seats (making a total of 780 seats this year) having regard to all the facts and circumstances of the case. This creation of additional seats is restricted to current admissions only and shall not be a permanent feature. The Uttar Pradesh Government/concerned authorities shall allocate the said thirty four additional seats appropriately among the government medical colleges and make admissions thereto as early as possible.

We hope and trust that the respondents will ensure that a similar situation does not arise for the ensuing admissions.

The writ petitions are disposed of with the above terms. No costs.

A copy of this judgment shall be communicated to the Chief Secretary, <ORG> and the Secretary, <ORG>, <ORG> eo nomine (i.e., by their designation) for their attention and implementation.


CASE NO.: Appeal (civil) 14211-13 of 1996 PETITIONER: <NAME> RESPONDENT: G. PUTTASWAMY AND ORS. DATE OF JUDGMENT: 21/01/1999 BENCH: M. SRINIVASAN & U.C. BANERJEE JUDGMENT:

JUDGMENT 1999 (1) SCR 198 The Judgment of the Court was delivered by <NAME>, J. The appellant was declared elected on 11.12.94 in the election held on 26.11.94 for the 133 <ORG>-stituency in Karnataka State. The first respondent filed Election Petition No. 16 of 1995 in <ORG> on the following grounds :

(a) Non compliance with Rule 63 of the Conduct of Election Rules, 1961, (hereinafter referred to as `the Rules') attracting the provisions of Section 100(l)(d)(iv) of the Representation of the People Act, 1951 (hereinafter referred to as `the Act').

(b) Commission of corrupt practices by the appellant and his father with the consent of the appellant falling within the scope of Section 100(l)(b) and Section 100(l)(d)(ii) read with Section 123(2) , 123(7)(f) and 123(8) of the Act.

2. The allegations in the Election Petition were mainly that after completion of counting by the Returning Officer, without announcing the result and recording the same in the prescribed form, a request made by the appellant for recount was entertained by the said official who was unduly influenced by the father of the appellant, <NAME> who later became the Chief Minister of the State and in course of time the Prime Minister of the Country. It was alleged that the first respondent was leading by four votes and the father of the appellant who was by then declared elected to the <ORG>, told the Returning Officer through telephonic communication that a recount should be ordered and the ap-pellant should be helped to win the election by hook or crook. According to the petition, recount was ordered without compliance of Rule 63 brush-ing aside the objections raised by the first respondent arbitrarily and whimsically. Such recounting ordered by the Returning Officer who was unduly influenced by the father of the appellant was in utter disobedience of the mandate of law and vitiated the election. Secondly it was alleged that the vociferous and threatening conduct of the first respondent coerced and influenced the voters to vote for him as they were threatened with dire consequences otherwise. There was an atmosphere of terrorism in several places which prevented the voters from exercising their franchise freely according to their will and choice. The agents of <ORG> party to which the appellant belonged were in total control of some polling booths and they were interfering in every election affair. It was also alleged that quite a number of invalid votes were counted in favour of the appellant as if they were valid. On such allegations, the first respondent prayed for declaring the election of the appellant to be void and declaring himself to be duly elected while holding that the order of recount was void and the result of such recount was non- est.

3. After entering appearance, the appellant filed three applications for summary dismissal of the Election Petition for non-compliance with certain statutory provisions which are mandatory. IA. No. IX, was on the ground that the petition did not disclose a cause of action as the allegations of undue influence and recounting were not followed by any averment that the result of the election was materially affected; nor was. there any averment in the petition as to any defect or malpractice in the course of recounting. LA. No. X was for rejection of the affidavit filed by the petitioner along with the Election Petition as it did not fulfil the require-ments of law and consequent dismissal of the petition. I.A. No. XV was for dismissal of the petition on the ground that allegations of corrupt practices were vague and not supported by material facts or particulars.

4. There were some other applications filed by the first respondent and respondents 7 & 8 for other reliefs. <ORG> disposed them all by a common order dated 21.3.96. The applications I.A. Nos. IX, X and XV filed as aforesaid by the appellant were dismissed. Aggrieved thereby, the appellant has obtained special leave and preferred these appeals.

5. Learned counsel for the appellant has drawn our attention to the verification in the Election Petition and the affidavit filed by the petitioner therein in support thereof and pointed out that it is not is conformity with Rule 94A of the Rules or Form 25. It was argued that the first respondent had not specifically set out which allegations were to his personal knowledge and which were stated on information. The failure to do so vitiated the entire Election Petition and made it liable to be dismissed. Secondly, he argued that recounting by the Returning Officer at the instance of the appellant was not the one contemplated by Rule 63 and did not require to fulfil the conditions set forth in the rule. In any event, according to him, there was no allegation in the Election Petition as to the commission of any illegality or irregularity in the course of such recounting; nor was there any allegation that the result of the election was materially affected on account of such illegality or irregularity in recounting. Thirdly, he contended that the allegations of corrupt practices were very vague and did not contain material facts or particulars. Thus, according to him, the Election Petition deserved to be dismissed in limine in the light of the law laid down by this court in several decisions.

6. As against this, learned counsel for the first respondent argued as follows :

The Election Petition mentioned clearly the matters of which the petitioner therein had knowledge of his own and the matters of which he got information from others and believed them. The fact that the affidavit or the verification in the petition did not set out the numbers of the paragraphs separately did not affect the validity of the petition. Secondly, the recounting ordered by the Returning Officer was in violation of the provisions of Rule 63 and the said Officer was unduly influenced by the father of the appellant. According to him, the first respondent was leading by four votes and in order to make the appellant win the election, recount-ing was ordered without even providing a copy of the application given by the appellant to the Returning Officer for recounting. The passing of the said order was itself sufficient to vitiate the election. Thirdly, it was argued that the Election Petition described in detail the corrupt practices com-mitted by the appellant and his father as defined by Section 123(2)  123(7) (f) and 123(8). It was further argued that the fact that the appellant had filed petitions for recrimination showed that he admitted the allega-tions contained in the Election Petition and it was not open to him to file an appeal in this court against the order of <ORG>.

7. We can straightaway dispose of the last contention of the first respondent's counsel as one without any substance. The petitions for recrimination filed at the threshold of the proceedings were only on the footing that even if the averments made in the Election Petition were taken to be correct, the petition was liable to be dismissed as it did not satisfy the requirements of the Election Law. That does not mean, the appellant had admitted the truth of the allegations made in the petition.

8. The verification at the end of the Election Petition reads as follows :

"I, Sri G. Puttaswamy Gowda, the election petitioner in the above petition do hereby solemnly affirm and declare that what is stated above in paras 1 to 6 are true to the best of my knowledge and belief and accordingly I have signed the above election petition on this 23rd day of January 1995 at Bangalore".

The affidavit filed in support of the petition states thus :

"That the statements made in paragraphs 1 to 6 of the accom-panying election petition about the commission of the corrupt practice of the Respondent-1, the returned candidate, and the particulars of such corrupt practice, mentioned in paragraphs 1 to 6 of the same petition and in paragraphs....... to ........ of the Annexures-A to R appended thereto are true to my knowledge and information as set out in the body of the petition".

9. Neither the verification nor the affidavit is in the prescribed from. No doubt, this <ORG> has repeatedly stressed the importance and necessity of the affidavit being in the prescribed form. It will be sufficient to refer to the two rulings cited by the learned counsel for the appellant.

10. <CITATION> .,  5 S.C.C. 181, it was observed :

" Sections 81 , 83(l)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read, if the court finds on an objection, being raised by the returned candidate, as to the maintainability of the election peti-tion, the court is required to go into the question and decide the preliminary objection. In case the court does not uphold the same, the need to conduct trial would arise. If the court upholds the preliminary objection, the election petition would result in dismiss-al at the threshold, as the court is left with no option except to dismiss the same".

11. Very recently in L.R. Shivaramagowda, Etc. v. <ORG>, (1998) 6 SCALE 361, the matter was dealt with at some length. The court referred to <CITATION> .,  1 S.C.C. 826 and quoted a passage in which the importance of disclosing the sources of information in the affidavit was stressed. After referring to the later decisions taking a similar view, the Bench said as follows :

"16. If the above well settled principles are applied in this case there is no doubt whatever that the electron petition suffers from a very serious defect of failure to set out material facts of the alleged corrupt practice. The defect invalidates the election peti-tion in that regard and the petitioner ought not to have been permitted to adduce any evidence with reference to the same".

"16A. We have already extracted paragraphs (f) & (g) of the affidavit filed along with the election petition. It does not disclose the source of information. Nor does it set out which part of the election petition was personally known to the petitioner and which part came to be known by him on information. Significantly, paragraphs (a) to (e) of the affidavit state that the averments therein are true to his information. Paragraph (f) is silent on this aspect of the matter. Paragraph (g) refers all the 42 paragraphs in the petition. The affidavit is not in conformity with the prescribed Form No. 25. Thus there is a failure to comply with Rule 94-A of the Conduct of Election Rules. It is a very serious defect which has been overlooked by <ORG>".

12. Learned counsel for the appellant relied on the provisions in O.XI of <ORG> of Karnataka Rules, 1959 pertaining to affidavits used in <ORG>. Rule 4 of O.XI reads as follows :

"When an affidavit contains statements of facts not within the declarant's personal knowledge but based on the information received by the declarant, he shall state so and that he believes them to be true and also give the source of such information wherever possible and the ground of his belief if any".

13. It is therefore argued by learned counsel for the appellant that the Election Petition should be dismissed in limine.

14. The argument is no doubt attractive. But, the relevant provisions in the Act are very specific. Section 86 provides for dismissal of election petition in limine for non-compliance of Sections 81 , 82 and 117 . Section 81 relates to presentation of election petition. It is not the case of the appellant before us that the requirements of Section 81 were not complied with though in <ORG> as contention was urged that a true copy of the election petition was not served on the appellant and thus the provisions of Section. 81 were not complied. Section 82 and 117 are not relevant in this case. Significantly Section 86 does not refer to Section 83 and non-compliance of Section 83 does not lead to dismissal under Section 86 . This <ORG> has laid down that non-compliance of Section 83 may lead to dismissal of the petition if the matter falls within the scope of O.6, R. 16 or O.7., R,11 C.P.C. Defect in verification of the election petition or the affidavit accompanying election petition has been held to be curable and not fatal.

15. <CITATION> .,  3 S.C.R. 573, a Constitution Bench has held in unmistakable terms that a defect in the verification of an election petition as required by Section 83(l)(c) of the Act was not fatal to the maintainability of the petition and that a defect in the affidavit was not a sufficient ground for dismissal of the petition. Another Constitution Bench held in <CITATION> ,  6 S.C.R. 213, that even with regard to Section 81(3) , substantial compliance with the requirement thereof was sufficient and only in cases of total or complete non-com- pliance with the provisions of Section 81(3) , it could be said that the election petition was not one presented in accordance with the provisions of that part of the Act.

16. It is the said principle of substantial compliance which was adopted in <CITATION> .,  2 S.C.C. 221. Reliance has rightly been placed thereon by learned counsel for the respondent.

17. <CITATION> .,  3 S.C.C. 375, this Court held that a defect in the verification of the petition as well as a defect in the affidavit can be cured and it is not fatal to the maintainability of the petition. Neither in <CITATION> .,  1 S.C.C. 826, nor in L.R. Shivaramagowda, Etc. v. <ORG>,  6 SCALE 361 this Court went to the extent of holding that the election petition should be dismissed in limine for a deficiency in the affidavit or verification. In fact the question was expressly left open in the former case and it did not arise in the latter.

18. The decision in <CITATION> .,  5 S.C.C. 181 was based on the facts found therein. The observations made by the learned Judges in that case were found to be wide and the matter has been referred to a larger Bench by a Bench of three Judges in T.M. Jacob v. O. Poulose & Ors.,  2 S.C.C. 31. In any event, the ruling in Dr. <NAME>'s case does not apply to the present case as the facts are different.

19. As regards the second contention of learned counsel for the appellant, the question whether the Returning Officer was justified in ordering recounting in the circumstances of the case and whether such recounting fell within the scope of Rule 63 has to be decided at the trial. No opinion can be expressed at this stage on that question before the parties adduce evidence in that regard.

20. There is no merit in the contention that the Election Petition does not set out any illegality committed at the time of recounting. The various averments in the petition are to the effect that the order directing recount was itself an illegality vitiating the result of the election and also that in the course of such recounting, several illegalities were committed whereby the result of the election was materially effected. It is specifically averred in the petition that a large number of ballot papers which were invalid and were liable to be rejected were counted as valid votes in favour of the appellant. The attempt of the learned counsel for the appellant is to divide the Election Petition into two separate compartments, one dealing with recounting and the other with corrupt practices. It is not possible to dissect the Election Petition in that manner. The allegations regarding invalid votes no doubt find a place in paragraph 3 but they have to be read together with averments relating to recounting.

21. Learned counsel for the appellant has drawn our attention to <CITATION> ,  4 S.C.C. 393. It was held in that case that victory by a very few votes may certainly be a ground to fear unwitting error in count given other circumstances tending that way. But the Court had cautioned the Returning Officer to be very careful, objective and sensitive in assessing the legitimacy of the plea for re-running the course of counting. The other ruling referred to by the learned counsel on this aspect of the matter is 5. <CITATION> (dead) and Others,  4 S.C.C. 406. The same Bench which dealt with <NAME> case held that the mandate of Rule 63 is that allowance of recount is not the exception and the refusal was restricted to cases where the demand itself was frivolous or unreasonable and that circumstances of each case decide the matter. The Bench also observed that where the margin of difference was minimal, the claim for a fresh count could not be summarily brushed aside as futile or trumpery. Both these rulings do not help the appellant at this stage. As pointed out earlier the matter depends upon the facts and circumstances which have to be established by evidence at the trial.

22. The third contention of learned counsel for the appellant relates to the allegations of corrupt practices. We are unable to accept his con- tention that they are vague and do not contain material facts. <ORG> has extracted the relevant portions of the Election Petition which deal with corrupt practices. After perusing the entire petition, <ORG> has observed as follows :

"Therefore, from a perusal of these and other paragraphs of the election petition it appears that the petitioner has stated about the corrupt practices alleged to have been committed or practiced by the first respondent. After a perusal of the grounds taken in the election petition, I find force in the contention of the learned Counsel for the petitioner that necessary facts constituting the cause of action for invalidating the election and the corrupt practices committed by respondent-1 have been substantially pleaded. The allegations made in the election petition may be true or false, but, it is not possible to hold that the election petition does not disclose any material fact or give the material particulars of any of the corrupt practices. It is required to be stated that even if the court is satisfied that in respect of one of the corrupt practices alleged material facts and full particulars thereof have not been stated, still the election petition cannot be thrown out at the threshold, if in respect of other corrupt practice, the material facts and full particulars have been given in accordances with the re-quirement of Section 83(1) of the Act. As rightly argued by the learned counsel for the petitioner, the contents of the election petition are to be read as a whole and not to disjoint them from the context. They cannot be read in a truncated manner. If this test is applied, to the averments made in paragraphs 2 and 3, of the election petition, it will be quite clear that these paragraphs taken as a whole relates to the allegations regarding the commis-sion of the corrupt practice under Section 123 of the Act and also with regard to the other irregularities which invalidates the election of the respondent- 1".

We are entirely in agreement with the aforesaid view expressed by <ORG>.

23. This Court has repeatedly pointed out the distinction between `material facts' and `particulars'. In so far as `material facts' are concerned, this Court has held that they should be fully set out in the Election Petition and if any fact is not set out, the petitioner can not be permitted to adduce the evidence relating thereto later; nor will be permitted to amend the petition after expiry of the period of limitation prescribed for an Election Petition. As regards particulars, the consistent view expressed by this Court, is that the petition can not be dismissed in limine for want of particulars and if the Court finds that particulars are necessary, an oppor-tunity should be given to the petitioner to amend the petition and include the particulars. <ORG> in <CITATION> .,  3 S.C.R. 91 held that an election petition was not liable to be dismissed in limine merely because full particular of a corrupt practice alleged were not set out. It was observed that if an objection was taken and the <ORG> was of the view that particulars had not been set out, the petitioner had to be given an opportunity to amend or amplify the particulars and that it was only in the event of non-com-pliance with the order to supply the particulars, the charge could be struck out.

24. <CITATION> .,  3 S.C.C. 850 the question was discussed in detail and it was held that pleadings need not be construed strictly, It is advantageous to extract the following passage :

"While a corrupt practice has got to be strictly proved but from that it does not follow that a pleading in an election proceeding should receive a strict construction. This Court has held that even a defective charge does not vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the court should accept that construction. The courts are reluctant to frustrate an action on technical grounds. The charge of corrupt practice is a very serious charge. Purity of election is very essence of real democracy. The charge in question has been denied by the respon-dent. It has yet to be proved. It may or may not be proved. The allegations made by the appellant may ultimately be proved to be wholly devoid of truth. But the question is whether the appellant should be refused an opportunity to prove his allegations? Should the court refuse to enquire into those allegations merely because the appellant or someone who prepared his brief did not know the language of the law. We have no hesitation in answering those questions in the negative. The implications of the rule of law are manifold." (<NAME> .............................................

"19. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of Chess. Provision of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it".

25. Applying the aforesaid rules in the present case <ORG> has rightly observed in the judgment under appeal as follows : `Therefore, in my view, the averments made in Paragraphs 2 and 3 of the election petition read as a whole and in its entirety would clearly satisfy the requirement of Section 83(1) of the Act, in as much as the material facts, on which reliance was placed, for alleging the corrupt practice and other illegalities invalidating the election, to enable the respondent No. 1 meet the allegations made against him. In fact, having clearly understood the scope and ambit of the allegations made against him in the election petition, the respondent No. 11 has been able to file a recrimination petition filed along with the notice of recrimination submitted to the <ORG>. Thus, there is no deficiency in the pleading of the corrupt practice under Section 123 of the Act and the other illegalities invalidating the election."

26. Learned counsel for the appellant has drawn our attention to <ORG> v. <NAME> and Others Etc. Etc., [1996] 3 S.C.C. 158. A Bench of two Judges held that sub-sections (2) and (7) of Section 123 of the Act are applicable only to cases of corrupt practice indulged at the stage prior to the casting of the votes and not at the post-voting stage. The facts in the case were entirely different. It was also pointed out in the judgment that the election and counting were over in that case prior to insertion of Section 128(8) and 135A(d) of the Act and those provisions were not retrospective in operation and therefore not applicable to the facts of the case. In the present case the election was itself held only in 1994 long after the insertion of said provisions and the ruling has therefore no applicability in this case.

27. The test in all cases of preliminary objection is to see whether any of the reliefs prayed for could be granted to the petitioner if the averments made in the petition are proved to be true. If the answer to the question is in the affirmative, the maintainability of the petition has to be upheld. In the present case we have no doubt that if the allegations contained in the election petition are proved to be true by the petitioner therein, he will be entitled to get the relief set out in the prayer portion. Hence, we do not find any merit in the appeals and they are hereby dismissed with costs. Counsel's fee Rs. 5,000. (one set)


PETITIONER: SH. I.K. SUKHIJA & ORS. Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 08/07/1997 BENCH: S.C. AGRAWAL, G.T. NANAVATI ACT: HEADNOTE: JUDGMENT:

J U D G M E N T <NAME>. J.

The point involved in these 4 appeals being the same they were heard together are disposed of by this common judgment.

The appellants (in all eleven) started their career as Junior Engineers in <ORG>. On formation at <ORG> (Civil Wing) on 1.7.1963 the construction and maintenance work of <ORG> buildings was taken over from C.P.W.D. The services of the Junior Engineers (Elect.) of C.P.W.D. who are earlier looking after the building of <ORG> were transferred to the <ORG> (Civil Wing). Initially, they were treated on deputation without any deputation allowance but in 1969 they were absorbed in the <ORG> Department and were also designated as Section Officers. They were promoted as Assistant Engineers (Elect.), on ad hoc basis between 1970 to 1977. All of them were appointed as A.Es. (E) on regular basis with effect from 20.3.1978. At that time it was directed that their names shall be arranged in order of their seniority in the grade of Assistant Engineers. Their seniority vis-a-vis direct recruits was to be fixed subsequently.

A provisional seniority list of Assistant Engineers was prepared in 1986 and finalised in 1987. It was challenged before the Bombay Bench of <ORG> in O.A. No. 373 of 1987. The <ORG> quashed it in so far as it determined seniority between direct recruit and promotee Assistant Engineers. The department was directed to prepare a fresh seniority list in accordance with O.M. dated 22.12.59 of <ORG> and the observation made in its judgment. Accordingly a revised seniority list was prepared and notified on 22.5.92. The new seniority list was prepared by following the principle of quota and rota prescribed by the said O.M. dated 22.12.59 as the <ORG> had held that quota rota system had not broken down. In the new seniority list the date of regular appointment of the appellants was shown as 20.3.78, The appellants were not satisfied with the new seniority list; and therefore, they challenge it before <ORG> of <ORG> at New Delhi. The appellants sought a direction to determine their seniority by taking into consideration their uninterrupted and continuous ad hoc service. They wanted this relief even if there was break down of the quota rota rule. They had also prayed for other consequential reliefs. The contention of the appellants was that there was no break down of the quota rota rule, that they were appointed against regular vacancies on their being found fit and suitable by <ORG> and that their appointments were made in accordance with the rules prevailing then.

The <ORG>, after taking into consideration the reason for making ad hoc appointments of the appellants and the procedure followed for the purpose, the orders of their appointment, proceedings of the meeting of the <ORG> in February-March 1978 pursuant to which the regular appointments were made and conduct of the appellants in that they had offered them selves for the test held for making regular promotion, came to the conclusion that the appointments of the appellants were not only ad hoc but also by way of stop gap arrangement in order to meet with the exigencies of service due to heavy constructional activity undertaken by the P&T (Civil Win) at the relevant time. The <ORG> also held that the decision of the Bombay Bench of the <ORG> in O.A. No. 373 of 1987 having become final and conclusive it had to proceed on the basis that there was no break down of the quota and rota rule. On these premises the <ORG> further held that the case of the appellant is governed by proposition `A' laid down in <CITATION> 1990 (2) SCC 715 and, therefore, they are not entitled to the benefit of continuous officiation for the purpose of considering their seniority. The <ORG> also examined the case of the appellants with reference to proposition `B' laid down in that case. As the period of service rendered by the appellants as ad hoc Assistant Engineers varied from 1 to 8 years only it held that the period cannot be regard as sufficiently hong so as to entitle them to count it for the purpose of their seniority, particularly when between 1975 and January 1978 they had prevented the department from holding the test for regular selection under the 1975 Rules. The <ORG> also held that the appellants were not entitled to such benefit either on the basis of the decision in <CITATION> 1992 Supp. (1) SCC 272 or on the basis of the decision in <CITATION> 1993(2)

598. The <ORG> dismissed the O.As. filed by the appellants and upheld the seniority list prepared by the department. Hence these appeals.

Before we consider the rival submission, certain facts which are not in dispute may be stated. On 1.7.63 <ORG> (Civil Wing) was formed by taking over the construction and maintenance work of <ORG> buildings from C.P.W.D. Some J.Es. (E) of C.P.W.D. who were handling the said work were also transferred to the <ORG> (Civil Wing). Initially, they were treated as on deputation without any deputation allowance but in 1969 they were absorbed in the <ORG> Department. Fro 1964 onwards the <ORG> Department had also started its own recruitment to the grades of J.Es. (E) and A.Es.(E). Though there were recruitment rules for the post of J.E. (E) there was no provision for absorption of J.Es., brought on transfer in that cadre. There were no recruitment rules for the posts of Assistant Engineer (E). For the first time in 1969 Draft Recruitment Rules for <ORG> Class II were framed by the <ORG> Department. The post of Assistant Engineer (E) was a Class II post in <ORG>. These draft rules were not prepared in exercise of any statutory power. They provided filling up of the vacant posts in the grade of Assistant Engineers Class II in the ratio of 50:50 i.e. 50% by direct recruitment and 50% by promotion. Promotion were to be given on the basis of recommendations made by <ORG> by selecting the candidates on merits. The eligibility criteria was five years approved service in case of graduates and 8 years approved service in case of non- graduates. It could be relaxed upto three years in case of graduates and six years in case of non-graduates. Rules 5 also gave power to the <ORG> to relax any provision to such extent as was found necessary to ensure satisfactory working or to remove inequitable result. Even though the draft rules were framed in 1969 they could not be finalised till 1975. No regular appointments of Assistant Engineers were made between 1970 and 1975 because the rules could not be finalised. In 1975 rules called `The Posts and Telegraphs Civil Engineering (Electrical Gazetted Officers) Rules 1975' were framed under Article 309. Even thereafter no regular promotion were made till 1978 as the departmental qualifying examination which was a pre-requisite for promotion could not be held till that year. Thus all the promotions, including those of the appellants, were made only on ad hoc basis.

What has been submitted on behalf of the appellants is that though in the letters of their appointments as A.Es. (E) it was stated that their appointments were `on purely ad hoc basis' that was not by way of stop-gap arrangement made for the purpose of meeting with some urgent administrative exigencies. They were eligible for promotion and their merits were duly considered by the <ORG> When they were promoted as A.Es. (E) regular vacancies in the promotion quota were available. Therefore, the only reason why they were not regularly promoted and their promotions were described as ad hoc was the delay on the part of the <ORG> in finalising the draft recruitment rules.

On the other hand it was contended on behalf of the respondents that the ad hoc promotion of the appellants were made as the construction activity has increased considerably and pending finalisation of the recruitment rules they could not have been regularly promoted. They has also not under gone the required process of selection in view of the criteria of merit. Though they had undergone some process of selection at the hands of the D.P.c. That was only for the purpose for promotion them on ad hoc basis. Therefore, they cannot claim the benefit of their ad hoc service as A.Es. for the purpose of determining their seniority in that grade.

The department could not produce any record, as it was not available, to show what was the position between 1964 and 1969 regarding recruitment to the cadre of A.E. (E), how the appellants were absorbed in the cadre of J.Es. and under what circumstance they came to be promoted on ad hoc basis. The only material which throws some light and which has been brought on record of these cases is (1) two letters dated 1.6.70 and 8.10.71 regarding filing up of some vacancies of Assistant Engineers(E) by promotion (2) minute of the meeting of the <ORG> held in February-March 1978 and (3) letter dated 22.8.1977 written by the <ORG> to the Government.

In the letter dated 1.6.70 it is stated that "some vacancies of the Assistant Engineers (<ORG>.) in <ORG> are to be filled by promotion and <ORG> will be held shortly to select suitale officials for promotion. The crucial date for relaxing service requirement for his <ORG> would be First July, 1970. It is proposed to consider the officials under the relaxed service requirement i.e. three years for graduates and 6 years for non- graduates." After stating so he directed <ORG> to furnish particulars of all Section Officers who were eligible for consideration. This letter refer to the draft recruitment rules made for Communication <ORG>trical Engineering Service Class II. It also refer to the eligibility criteria contained in the said rules. A similar letter was written, except the relaxation part, by the Assistant Director General on 8.10.71l to <ORG>s of New Delhi, Bombay and Calcutta. Both these letters make it clear that though the draft recruitment rules has not been finalised the promotions in 1970 and thereafter were made in accordance with the said rules.

The appellant in their application before the <ORG> and asserted that the <ORG> had made the selection on regular basis. However, there is nothing on record to show in which manner the selection was made by it. It appears that the <ORG> has followed some process of selection to find out their comparative merit because some persons senior to the appellants thought considered were not recommended for promotion and the merit list was not prepared according to the seniority of the candidates selected. It is, however, significant to note that the draft rules of 1969 did not contain any provision prescribing how selection was to be made by the <ORG> They did not contain any requirement of passing an examination like departmental qualifying examination. The Post and Telegraph (Civil Engineering Electrical Gazetted Officers) Recruitment Rules, 1975 which came into force on 5.4.75 prescribed for the first time passing of the department qualifying examination as a condition for promotion to the grade of A.E. (E). There was no rule which permitted and prescribed procedure for making of ad hoc appointments. Even otherwise also there was no separate procedure prescribed for making such ad hoc appointments of appellants were described as ad hoc was that the draft recruitment were described as ad hoc was that the draft recruitment rules were pending consideration and were not finalised.

It was contended by the respondents and the finding of the <ORG> is also that the appellants has not undergone any regular selection process as they had not passed the required qualifying examination. As stated earlier there was no requirement of passing a departmental qualifying examination for promotion as A.E. (E) till the year 1975. Only thing stated in the draft rules was that the post of A.E. was a selection post. This aspect has been completely missed by the <ORG>. Therefore it wrongly came to the conclusion that the appellants had not undergone the regular selection process and for that reason their appointments were made on temporary and ad hoc basis by way of stop-gap arrangement only. Really, the appellants were promoted on those terms because the draft rules has not been finalised. It is not relevant for this case to consider whether it was rightly believed that pending consideration of the Draft Rules no regular recruitment could be made. The fact remains that carrying that impression the <ORG> thought it proper to promote the appellants only on temporary and ad hoc basis.

The next relevant document is the minutes of the meeting of the <ORG> held in February-March, 1978 recorded in connection with considering the ad hoc promotees for regular promotion. It refers to the taking over of construction work from the C.P.W.D. and formation of <ORG> (Civil Wing). It further records that as the Rules could not be finalised till 1975 and as heavy constructional activity was undertaken by <ORG> department some J.Es. were promoted to the grade of A.E.s on ad hoc basis. As the rules came to be finalised a question of making regular promotion to that grade arose and it was for that reason that it had met on that day for considering the cases of eligible candidates. The minutes further records that according to the Recruitment Rules which came to be finalised in 1975, the eligibility criteria was certain number of years service plus passing of the departmental qualifying examination. It is also recorded therein that in respect of those who were already promoted as A.E.s on ad hoc basis it was decided in consultation with the D.O.P. and <ORG> that one time relaxation should be made in favour of those promote and instead of taking a written test they should be subject to only oral test. The <ORG> considered the C.Rs. of eligible persons, number of vacancies in each year in promotion quota and recommended who should be promoted on regular basis from which year. On important thing that emerges form this minutes is that between 1970 and 1975 there were regular 8 vacancies. From the other material on record it appears that in between 1970 and 1978 direct appointment on the basis of competitive examination held by <ORG>. were also made. It was possibly for that reason held by the Bombay Bench of <ORG> that the quota rule had not broken down. The department in its counter affidavit has also maintained that the quota rules had not broken down, that it was strictly followed and that number of vacancies falling under the direct recruitment quota were regularly intimated to the <ORG>. and appointments were made. It has not been denied that regular vacancies were available in the promotion quota during those year. Thus the finding of the <ORG> that there is nothing on record to show if there existed regular vacancies when the promotion of the appellants were made is clearly erroneous. The minutes do not support the case of the respondents that appointments of appellants as A.Es. were made ad hoc because they had not undergone regular process of selection.

In the letter dated 22.8.77 written by <ORG> to the Government it is stated that prior to 1975 no recruitment rules existed for the post of Assistant Engineers in P&T (<ORG>). It further points out that 1975 Rules did not apply to persons appointed before they came into force. It further refers to its earlier letter dated 3.3.76 wherein the Ministry was advised to consider the question of regular absorption of existing incumbents of various posts in consultation with the <ORG>. It then pointed out that the 1975 Rules did not contain any provision for absorption of Junior Engineers who were taken over on transfer from the C.P.W.D. The said rules also did not contain any provision for regularisation of those incumbent who were holding the posts on ad hoc basis. It was, therefore, suggested to amend the rules and provide for absorption of the then existing employees in their respective grades. It appears from the order dated 7.1.78 passed by <ORG> (Civil Wing) that after considering the question of regularisation of the cadres of A.E. (Civil/Elect) it was decided that "in view of the need to regularise the cadre of A.E. (Civil/Elect) expeditiously, the <ORG> qualifying examination provided for in the Recruitment Rules for the grade of A.E. (Civil/Elect) may be held orally this time only." What is to be noted from this letter and the order dated 8.1.78 is that though the appellants and similarly situated J.Es. were absorbed by <ORG> (Civil Wing) in its service their regular absorption in the cadre of J.Es (E) had not taken place and it was for that reason that they were required to pass the examination contemplated by the 1975 Rules. This aspect also has been missed by the <ORG> and, therefore, it erroneously held that the conduct of the appellants in offering themselves for the test held for making regular promotions indicated that they had not earlier gone through the required process of selection and for that reason their appointments were ad hoc.

What emerges from the above discussion is that the promotion of the appellants as A.Es. (E) were not contrary to any statutory recruitment rules. Even if we proceed on the basis that in absence of statutory rules the draft recruitment rules of 1969 were applicable, what we find is that the appellants were eligible for promotion and their cases were duly considered by the <ORG> They were promoted after they were found suitable by the <ORG> and their promotions were made according to their placement in the merit list and not according to their seniority. When the appellants were promoted, though on ad hoc basis, clear vacancies were available in the promotion quota. the only reason for making their appointments as temporary and ad hoc was that the draft recruitment rules could not be finalised till 1975. The was no unusual spurt in the construction activity between 1970 and 1977 which necessitated giving of urgent temporary promotions. For all the reason stated above, it is not possible to accept that the appointments of the appellants as A.Es., though temporary and ad hoc, were by way of stop-gap arrangements only.

The <ORG> was, therefore, wrong in holding that the case of the appellants was governed by the corollary to the rule stated by this Court as Proposition `A' in Direct Recruits case (supra). The appellants are in a better position than the situation contemplated by Proposition `B' in that case. If the appointees contemplated by Proposition `B' are held entitled to the benefit of the period of officiating service we see no reason why the appellants should not be held entitled to such a benefit. The learned counsel for the respondents had relied upon the decisions of this Court in <CITATION> 1977 (2) SCR 937, <CITATION> 1990 (2) SCR 131 and <CITATION> 1990 (4) SCC 24 but they have no application to the facts of these cases. In the first two cases it was found by this Court that the appointments were ad hoc and by way of stop-gap or emergency arrangement and, therefore, the appointees were not entitled to the benefit of the period of their ad hoc service for the purpose of counting their seniority. In <NAME> case (supra) it was held that the appointment were not made in accordance with the recruitment rules.

We, therefore, allow these appeals, set aside the judgment of the <ORG> and hold that the appellants are entitled to get their seniority counted from the dates they were initially promoted as A.Es. (E). In view of the facts and circumstances of the case there shall be no order as to costs.


PETITIONER: PREM <NAME> Vs. RESPONDENT: SURENDER GANDOTRA AND ORS. DATE OF JUDGMENT27/08/1991 BENCH: <NAME>, JAGDISH SARAN (J) BENCH: <NAME>, JAGDISH SARAN (J) SHARMA, L.M. (J) CITATION: 1991 AIR 2254 1991 SCR (3) 782 1991 SCC Supl. (2) 215 JT 1991 (3) 570 1991 SCALE (2)459 ACT: Delhi Co-Operative Societies Act , 1972. Sections 59 and 60-Dispute relating to irregularities in purchase of build- ing materials by the past <ORG>--Whether falls within the ambit of Section 60 . HEADNOTE: On a complaint made by the <ORG> of the 6th respondent <ORG>, the third respond- ent, Registrar, <ORG>, referred the dispute relating to irregularities in the purchase of building material for construction of flats for members of society by the past <ORG>, of which the appellant was the President at the relevant time, to arbitration. The first respondent-Arbitrator, gave his ex-parte award, on the failure of the appellant and another person to file their reply to the claim of the claimant society, and directed the appellant and the other person to pay the society certain sum with interest thereon. The appellant challenged the award before second re- spondent, <ORG>, which dismissed the same holding that the Arbitrator's act of proceeding ex-parte was justified and that the appeal had no merit. The appellant's writ petition was also dismissed by <ORG>. In the appeal before this Court on behalf of the appel- lant it was contended that it was Sec. 59 dealing with surchage which was applicable to the instant case and not Section 60 , which pertained to settlement of disputes by arbitration since the dispute in question was one which could not be referred to arbitration in terms of Section 60 of the Act. On behalf of the contesting respondents it was submitted that it was Section 60 , which was applicable and not Section 59 . Dismissing the appeal, this Court, HELD: 1.1 Sub-Section (1) of Section 60 of the Delhi Co- operative 783 Societies Act , 1972 indicates the true scope of the Section 60 , while sub-section (2) is merely illustrative, and not exhaustive. Clause (c) of sub-section (1) expressly provides that if any dispute touching the constitution/management or the business of the cooperative society arises between the society or its committee and any past committee. any offi- cer, agent or employee or any past officer of the society, the dispute should be referred to the arbitration. [787H, 788A-B, D] 1.2 In the instant case, the dispute, viz. irregulari- ties in the purchase of building material for construction of flats for the members of the <ORG> by the previous <ORG>, touches the management of the <ORG> and fails within the ambit of Section 60 of the Act. The third respondent, Registrar, <ORG> was, therefore, right in referring the dispute to arbitration. [789D- <CITATION> ..  1 SCR 186, followed. <CITATION> , AIR 1976 63 Delhi 239, disapproved. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3237 of 1991.

From the Judgment and Order dated 10.10.1990 of <ORG> in C.W. No. 3204 of 1990.

<NAME>, <NAME> and <NAME>, Advs. for the Appellant.

Dr. <NAME>, and <NAME> for the Respondents. The Judgment of the Court was delivered by <ORG>, <NAME> is granted.

Respondent No. 6, <ORG>, was formed in 1979 for providing houses to its 130 members including the appel<NAME> <NAME>. The appel<NAME> was earlier the Secretary and then the President of the <ORG> till 1985, by which time substantial con- struction had been completed. The members were allotted three-room flat for a sum of Rs. 1, 10,000. In August, 1985, Respondent No. 3, Registrar, <ORG>, appointed an Administrator to look into the affairs of the <ORG> since the appel. <NAME> and other office bearers had held the office for more than two terms. The controversy giving rise to this proceeding relates to the alleged discrepancy re- garding purchase of some building material in January, 1984, for the construction of flats for members of the <ORG> in Vikas Puri at New Delhi. <ORG> of the <ORG> formed in September, 1986, complained to <ORG> alleging irregularities by the previous Managing Committee of which the appel<NAME> was the President. This matter was referred to arbitration by order dated 12.10.1989 passed by <ORG>, <ORG>. Respondent No, 1, <NAME> was appointed the Arbitrator, who gave his AWard on 1.5. 1990. The relevant portion of the Award is as under:

"It is also interesting to discuss the conduct of these two respondents of this case, <NAME> and <NAME> as they have been moving applications after applications in this court raising vicious and frivolous grounds just to delay the delivery of justice in this case. The miscellaneous applications relating to the dispute of juris- diction of this court and then that since criminal proceedings are pending with <ORG>, proceedings in this Court should be kept pending till final decision in the criminal proceedings. All these applications were properly attended, scrutinized and dis- posed of legally. It is also interesting that despite number of chances/opportunities having been given to the respondent to file reply to the main points of the claimant society, the defendants S/<NAME> and <NAME> did not file any reply and followed delaying and dilatory tactics and to defeat the ends of justice. Even today 30th April, 1990, fixed for hearing none came from the side of S/Shir Poonam Dhand, <NAME> either presonally or through Advocate. The advocate of the claimant society <NAME> argued that ex parte proceedings may be initiated against the respondents who have absented from these proceedings. In view of these cricumstances, and the conduct of 'respondents in this case 0right from the very inception of this case, there is no other alternative left for me but to proceed ex parte against the respondents S/<NAME> and <NAME>.

Ex parte award is announced with the following details; .

Principal amount to be paid by the respon-

dents to <ORG>, Vikas Puri, New Delhi. Rs-1,46,2 10.20 Interest at the rate of 18% from 17.4.1985 till all the dues are cleared by the respond-

ents.

Cost allowed Rs.5,000.00

With the above observations, ex parte award is given against the respondents S/Shri Poonam Dhand, P.3, <NAME> who are jointly and severally responsible to pay <ORG>, Vikas Puri, New Delhi, principal amount of Rs. 1,46,210.00 NPS plus 18% interest from 17.4.1985 till all the dues are cleared and costs of Rs.5,000." , The appellant then filed an appeal under section 76 of the Delhi Cooperative Societies Act, 1972 (hereinafter referred to as 'the Delhi Act ') in <ORG> (Respondent No. 2) challenging the Award dated 1.5.1990. The <ORG> held that the Arbitrator's act of proceeding ex parte against the appellant is justified and taking the view that the appeal had no merit, dismissed the same. The appellant then filed a writ petition in <ORG> challenging the Award and dismissal of his appeal by the <ORG> on 3.7.1990. The said writ petition has been dismissed by <ORG> on 10.10.1990. It is in these circumstances that the appellant assails the Award, dismiss- al of the appeal and then the .writ petition. The argument of <NAME>, learned counsel for the appellant, is that it is section 59 and not section 60 of the Delhi Act which applies to the present case. In reply, Dr. <NAME> on behalf of the contesting respondents contended that section 60 relating to arbitration and not section 59 pertaining to surcharge applies to the present case. Sections59 and 60 of the Delhi Act , insofar as relevant, are quoted hereinbelow:-

"59. Surcharge-(1) If in the course of an audit, inquiry, inspection or the wind- ing up of a cooperative society, it is found that any person, who is or was entrusted with the organisation or management of such society or who is or has at any time been an officer or an employee of the society, has made any payment contrary to this Act, the rules or the bye-laWs or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has misappropriated or fraudulently retained any money or other property belonging to such society, the Registrar may, of his own motion or on the application of the committee, liquidator or any creditor, inquire himself or direct any person authorised by him, by an order in writing in this behalf, to inquire'into the conduct of such person;

Provided that no such inquiry shall be held after the expiry of six years from the date of any act or omission referred to in this sub-section.

(2) Where an inquiry is made under sub-section (1), the Registrar may, after giving the person concerned an opportunity of being heard, make an order, requiring him to repay or restore the money or property or any part thereof, with interest at such rate, or to pay contribution and costs or compensation to such extent, as the Registrar may consider just and equitable."

"60. Disputes which may be referred to arbitration(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitu- tion, management or the business of a coopera- tive society other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society arises--

(a) among members, past members and persons claiming through members, past members and deceased members, or

(b) between a member, past member or person claiming through a member, past member or deceased member and the <ORG>, its com- mittee or any officer, agent or employee of the <ORG> or liquidator, past or present, or

(c) between the society or its commit- tee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the society, or

(d) between the society and any other cooperative society, between a society and liquidator of another society or between the liquidator of another society. such disputes shall be referred to <ORG> for decisior and no court shall have jurisdiction to entertain any suit other proceedings in re- spect of such dispute..

(2) For the purposes of sub-section (1), the following shall be deemed to be disputed touching the constitution management or the business of a cooperative society namely--

(a) a claim by the <ORG> for any debt or demand due to it from a member or the nominee, heirs or legal rep resentatives of a deceased member, whether such debt of demand is admitted or not;

(b) a claim by a surety against the principal debtor where the society has recov- ered from the surety any amount in respect of any debt or demand due to it from the princi- pal debtor as a result Of the default of the principal debtor, whether such debt or demand is admitted or not;

(c) any dispute arising in connection with the elec tion of any officer of a society other than a society mentioned in sub-section (1) of section 31 .

(3) If any question arises whether a dispute referred to the <ORG>r under this section is or is not a dispute touching the consitution, management or the business of cooperative society, the decision thereon of the <ORG> shall be final and shall not be called in question in an court.

i (4) ................."

In substance the contention of the learned counsel for the appeal lant is that the proper action to take in such a case is to resort to section 59 dealing with surcharge and not to settlement of dispute by arbitration since it is not one of the disputes which may be referred to arbitration in terms of section 60 of the Delhi Act. It was argued that sub-section (2) of section 60 is exhaustive and not merely illustrative, which shows that the present dispute does not fall within the ambit 0 section 60 . Dr. <NAME>, on the other hand, asserted that it is sub section (1) of section 60 which indicates the true scope of section 60 while sub-section (2) is merely illustrative and no exhaustive. It was urged that clause (c) of sub-section (1) of section 60 expressly provides that if any dispute touching the constitution,' management or the business of the cooperative society arises between the society or its committee and any past committee, any officer, agent or employee or any past officer of the society, the dispute shall be refered to arbitration.

Reliance is placed on behalf of the appellant on <CITATION> . 1. R. 1976 63 Delhi 299 wherein the learned Single Judge took the view that sub-section (2) of section 60 of the Delhi Act is exhaustive and not merely illustra- tive. That decision overlooks the decision of this <ORG> in Srirakulu referred hereafter and conflicts with it. Further consideration of the same is, therefore, not necessary. Dr. <NAME> placed reliance in <CITATION> .,  1 SCR 186 to contend that this point was concluded against the appellant. In our opinion, the contention of Dr. <NAME> has to be accepted. The decision of this <ORG> in Srirakulu was ren- dered 'with reference to the Madras Cooperative Societies Act , 1932 (hereinafter referred to as 'the Madras Act') wherein section 51 relating to settlement of disputes by arbitration was the provision corresponding to section 60 of the Delhi Act-Clause (c) of sub-section (L) of section 51 of the Madras Act was substantially the same as clause (c) of sub-section (1)of section 60 of the Delhi Act. The explana- tion in sub-section (1) of section 51 of the Madras Act was substantially similar to clause (a)of sub-section (2) of section 60 of the Delhi Act. The material part of section 51 of the Madras Act, on the basis of which the decision was endered in Srirakulu quoted therein is as under--

" S. 51-

Arbitration:

Disputes: 51. (1) If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises-

(a) .......................................

(b) ....................................

<NAME>

(c) between the <ORG> or its com- mittee and any past committee, any officer, agent or servant, or any past officer, past agent or past servant, or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased servant, of the <ORG>, or

(d) ............................... Explanation--A claim by a registered society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not, is a dispute touching the business of the society within the meaning of this sub-sec- tion."

In the Madras Act, section 49 was the provision correspond- ing to section 59 of the Delhi Act. It was, therefore, on the basis of similar corresponding provisions that the question arose for decision of this Court in <NAME>. In <NAME> also the facts disclosed in the inquiry that certain loss was caused to the society by the acts of past Managing Committee and, therefore, a special officer ap- pointed to look into the affairs of the society made a claim under section 51 of the Madras Act before the Registrar against the past President of the Society: It was held that the Registrar's order under section 51 of the Madras Act could not be challenged. We do not find any significant difference between the provisions of the Madras Act which form the basis .of this Court's decision in <NAME> and sections 59 and 60 of the Delhi Act with which we are con- cerned to justify taking a different view as suggested by learned. counsel for the appellant. Following the view taken in <NAME>, this appeal must fail. Consequently, the appeal is dismissed with costs quantified at Rs.5,000.

N.P.V. Appeal dis- missed.