judgement:
t Petition (Civil) No. 1152 of 1988.
(Under Article 32 of the Constitution` of India).
M.K. Ramamurthi, R.C. Pathak, Naresh Mathut, Sudhir Kumar and Ms. Baby Lal for the petitioners.
B. Dutta, R.K. Joshi and S.K. Jain for the Respondents.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
The only question which arises for consideration in this writ petition, filed under Article 32 of the Constitution, is whether persons who were employed in temporary capacity with the Oil & Natural Gas Commission (hereinafter referred to as 'the Commission '), when it was being run as a Department of the 159 Government of India prior to the enactment of the Oil & Natural Gas Commission Act, 1959 (hereinafter referred to as 'the ONGC Act ') and who were subsequently absorbed in the Commission, as established under the said Act, are entitled to pension, in addition to the Provident Fund benefits to which they are entitled under the provisions of the Employ ees ' Provident Fund and Miscellaneous Provisions Act (here inafter referred to as the Provident Fund Act ').
The Commission was initially formed as a Department of the Government of India and it continued to be so till October 15, 1959, when the ONGC Act was enacted and the Commission was established as a statutory body under the said Act.
Section 13 of the ONGC Act makes provision for transfer of service of the existing employees to the Commis sion on the same tenure, remuneration and terms and condi tions as they would have held, if the Commission had not been established, until such tenure, remuneration and terms and conditions are duly altered by the Commission.
In the proviso of Sub Section (1) of Section 13 of the ONGC Act, it is further provided that the tenure, remuneration and terms and conditions of service of any such employee shall not be altered to his disadvantage without the previous approval of the Central Government.
In exercise of the powers conferred by Section 32 of the ONGC Act the Commission, with the previous approval of the Central Government, has made the Oil & Natural Gas Commission (Terms and Conditions of Ap pointment and Service) Regulations, 1975 (hereinafter re ferred to as the Regulations ').
In clause 2(b) of Regulation 3, it has been provided that nothing in the Regulation shall operate to deprive any employee of any right or privilege to which he is entitled by the terms or conditions of service, or any agreement, subsisting between such person and the Government.
By notification No. GSR 705, dated May 16, 1961, Sched ule 1 to the Provident Fund Act was amended so as to make the provisions of the said Act applicable to any industry engaged in the manufacture of petroleum or natural gas exploration, prospecting, drilling or production with effect from June 30, 1961.
By another Notification No. GSR 706, dated May 16, 1961, issued under Section 1(3)(b) of the Provident Fund Act the provisions of the said Act were made applicable to establishments engaged in the storage or transport or distribution of petroleum or natural gas or products of either petroleum or natural gas with effect from June 30, 1961.
A corresponding amendment was made in the Employees ' Provident Fund Scheme, 1952 (hereinafter referred to as 'the Provident Fund Scheme '), by Notification dated 160 June 5, 1961, whereby Sub Clause (xviii) was inserted in Clause (b) of sub para (3) of para 1 of the said scheme and thereby the Provident Fund Scheme was made applicable, with effect from June 30, 1961, to factories relating to petrole um or natural gas exploration, prospecting, drilling or production and petroleum or natural gas refining and estab lishments engaged in the storage or transport or distribu tion of petroleum or natural gas or products of either petroleum or natural gas covered by the notifications of the Government of India in the Ministry of Labour and Employ ment, Nos.
G.S.R. 705 and 706, dated May 16, 1961, respec tively.
As a result of the aforesaid amendments introduced in the Provident Fund Act and the Provident Fund Scheme, the provisions of the Provident Fund Act and the Provident Fund Scheme became applicable to the Commission with effect from June 30, 1961.
The petitioners in this writ petition represent the employees who were employed on temporary basis with the Commission prior to the enactment of the ONGC Act and who have been absorbed in the Commission after the enactment of the ONGC Act and the establishment of the Commission is a statutory body.
The case of the petitioners is that while they were employed in the Commission before the enactment of the ONGC Act, they were entitled under the relevant rules governing their service, to pension on their being made permanent and that the said right to pension, which was part of their conditions of service, is protected under Section 13(1) of the ONGC Act.
The petitioners have submitted that persons who were employed on temporary basis with the Com mission prior to the enactment of the ONGC Act and were absorbed in the Commission subsequent to the enactment of the ONGC Act are entitled to pension on their retirement irrespective of the fact that they are entitled to Provident fund benefits under the provisions of the Provident Fund Act and the Provident Fund Scheme.
The writ petition has been contested by the Commission and in the counter affidavit filed on behalf of the Commis sion it has been stated that after the introduction of Contributory Provident Fund, in accordance with the provi sions of the Provident Fund Act and the Provident Fund Scheme, the petitioners have been availing the benefits of Contributory Provident Fund and since the petitioners have opted for Contributory Provident Fund under the Provident Fund Act and the Provident Fund Scheme they cannot claim pension in addition to Contributory Provident Fund.
It has been submitted that, on the date of enactment of the ONGC Act, the petitioners were temporary 161 employees and they were not entitled to pension under the relevant service rules applicable to them and, therefore, they are not entitled to pension on their retirement after being absorbed in the Commission subsequent to the enactment of the ONGC Act.
It has been further submitted that the petitioners cannot claim a double benefit i.e., Contributory Provident Fund as well as pension, and that they could either claim Contributory Provident Fund or pension, and since they opted for Contributory Provident Fund on the introduction of the Provident Fund Scheme and have been availing the said benefit during the past 28 years, they cannot be permitted to claim pension in addition to Contrib utory Provident Fund.
Shri M.K. Ramamurthi, the learned counsel for the peti tioners, has placed reliance on Sub Section (1) of Section 13 of the ONGC Act and Clause (2) of Regulation 3 of the Regulations which provide as under: "Section 13(1): Subject to the provisions of this Act, every person employed by the existing organisation immediately before the date of establishment of the Commission shall, on and from such date, become an employee of the Commission with such designation as the Commission may determine and shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and condi tions as he would have held the same on such date if the Commission had not been established and shall continue to do so unless and until his employment in the Commission is terminated or until such tenure, remuneration and terms and conditions are duly altered by the Commission: Provided that (a) the tenure, remuneration and terms and conditions of service of any such person shall not be altered to his disadvantage without the previous approval of the Central Government; (b) any service rendered in the existing organisation by any such person shall be deemed to be service under the Commis sion; and (c) all persons employed by the Commission on the date of 162 its establishment, who, immediately before such date.
hold, in a permanent or quasi permanent capacity, posts in connec tion with the affairs of the Union or of any State, but not posts in the existing organisation, shall be treated as Government servants on foreign service with the Com mission." "Regulation 3(2): Nothing in these regulations shall operate to deprive any employee of any right or privilege to which he is entitled: (a) by or under any law for the time being in force; or (b) by the terms or conditions of service, or any agreement.
subsisting between such person and the Government, or (c) by the terms of any agreement subsisting between him and the Commission at the commencement of these regulations.
" The submission of Shri Ramamurthi is that in view of SubSection (1) of Section 13 of the Act, the employees who were employed in the Commission immediately before the establishment of the Commission under the ONGC Act became employees of the Commission and they are entitled to hold their office or service in the Commission upon the same terms and conditions as they were applicable to them on the date of such establishment of the Commission and they are entitled to continue to do so until such terms and condi tions are duly altered by the Commission and that any such alteration in the terms and conditions of service which is to their disadvantage could be made only with the previous approval of the Central Government and the said right of the employees is also protected by Clause (2) of Regulation 3 of the Regulations which have been framed by the Commission with the previous approval of the Central Government.
Shri Ramamurthi has urged that under the relevant Service Rules, which were applicable to the petitioners at the time when they were absorbed in the service of the Commission on the enactment of the ONGC Act, the petitioners, though temporary employees, were entitled to pension on their being made permanent and that the said right of the petitioners, being part of their conditions of service, has been protected by Sub Section (1) of Section 13 of the ONGC Act, as well as Clause (2) of Regulation 3 of the Regulations and it has not been taken away 163 because the Central Government has not given its approval to the denial of the said right of the petitioners.
In support of his aforesaid submissions, Shri Ramamurthi, has invited our attention to the provisions of Rule 13 of the Central Civil Services (Pension) Rules 1972 (hereinafter referred to as 'the Pension Rules '), which deals with commencement of qualifying service and prescribes that qualifying service of a government servant shall commence from the date he takes charge of the post to which he is appointed either substan tively or in an officiating or temporary capacity, provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post.
The Pension Rules were issued in 1972 and were not applicable at the time when the petitioners were absorbed in the Commission on the enactment of the ONGC Act, 1959.
It is, however, not disputed that the provisions with regard to pension, as contained in the Civil Service Regulations which were applicable at that time, were not different from those contained in the Pension Rules and pension was payable only if the employment was substantive and permanent (Regulations 352, 362 and 368).
Under the Civil Service Regulations, an employee who was initially engaged on contract and was subsequently appointed to the same or different post in a substantive capacity on pensionable basis without interrup tion of duty was allowed the option of surrendering the Government contribution to his Contributory Provident Fund together with the interest thereon for the period of the contract and to count one half of the contract service towards pension (see: Choudhari 's compilation of Civil Service Regulations, 5th Edition, Volume I, pages 216 217).
Similarly, in cases where a permanent Government servant was transferred to an autonomous organisation consequent on the conversion of a Government Department into such a body, there was Government order dated 5th November, 1964 (Annex ure III to the writ petition) which provided that the Gov ernment servant would be given an option to either retain the pensionary benefit available to him under the Government Rules or be governed by the Rules of the autonomous body.
This option was also available to quasi permanent and tempo rary employees after they had been confirmed in the autono mous body.
In other words, a Government servant could either avail pensionary benefits or the benefit of Contributory Provident Fund, but he could not avail both the benefits.
In the Pension Rules, there is an express provision in Rule 2(d) which prescribes that the said Rules shall not apply to persons entitled to the benefit of a Contributory Provident Fund.
164 In the present case, the petitioners were employed on temporary basis at the time when the Commission was established as a statutory body under the ONGC Act and on that date they were not entitled to claim pension because under the relevant Rules pension was not payable to a person employed on temporary basis.
The petitioners, therefore, cannot claim that on the date of their becoming the employ ees of the Commission established under the ONGC Act in 1959, they had a fight to pension which has been protected under Sub Section (1) of Section 13 and Clause (2) of Regu lation 3 of the Regulations.
The petitioners cannot also claim protection of the aforesaid provisions on the basis that right to receive pension was part of their condition of service on the date of their becoming the employees of the Commission under Sub Section (1) of Section 13 of the ONGC Act, in as much as under the relevant service rules applica ble to them, they could either claim pension or the benefit of the Contributory Provident Fund and they could not avail both the benefits.
Since the petitioners are entitled to the benefit of the Contributory Provident Fund under the Provi dent Fund Act and the Provident Fund Scheme and have availed the said benefit for the past 28 years, they should be taken to have opted for said benefit and they cannot invoke the service rules with regard to pension and claim the right to receive pension as part of their conditions of service.
We are, therefore, unable to accept the contention of Shri Ramamurthi, 'based on the provisions of Sub Section (1) of Section 13 of the ONGC Act and Clause (2) of Regulation 3 of the Regulations, that the petitioners are entitled to claim pension in addition to the Provident Fund payable to them under the Provident Fund Act and the Provident Fund Scheme.
Shri Ramamurthi, has next contended that in view of Section 12 of Provident Fund Act, the right of the peti tioners to pension has been preserved and the introduction of the Contributory Provident Fund under the provisions of the Provident Fund Act and the Provident Fund Scheme does not disentitle the petitioners from claiming pension to which they were entitled before the introduction of the Contributory Provident Fund in the Commission.
In support of the aforesaid submission, Shri Ramamurthi has placed reli ance on the decision of this Court in Sorn Prakash Rekhi vs Union of India & Another, ; Section 12 of the Provident Fund Act, provides as under: "No employer in relation to an establishment to which any 165 Scheme or the Insurance Scheme applies shall, by reason only of his liability for the payment of any contribution to the Fund or the Insurance Fund or any charges under this Act or the Scheme or the Insurance Scheme reduce, whether directly or indirectly, the wages of any employee to whom the Scheme or the Insurance Scheme applies or the total quantum of benefits in the nature of old age pension, gratuity, Provi dent Fund or life insurance to which the employee is enti tled under the terms of his employment, express or implied.
" The said provision in our view is not applicable in the present case.
The Provident Fund Act has been enacted with the object of providing social security to the employees in factories and other establishments covered by the said Act, after their retirement.
In the Statement of Objects and Reasons for the said enactment it was mentioned as under: "The question of making some provision for the future of the industrial worker after he retires, or for his dependents in case of his early death, has been under consideration for some years.
The ideal way would have been provisions through old age and survivors ' pensions as has been done in the industrially advanced countries.
But in the prevailing conditions in India.
the institution of a pension scheme cannot be visualised in the near future.
Another alternative may be for provision of gratuities after a prescribed period of service.
The main defect of a gratuity scheme, however, is that amount paid to a worker or his dependents would be small, as the worker would not himself be making any contri bution to the fund.
Taking into account the various diffi culties, financial and administrative, the most appropriate course appears to be the institution, compulsorily, of Contributory Provident Fund in which both the worker and the employer would contribute.
Apart from other advantages, there is the obvious one of cultivating among the workers a spirit of saving something regularly." This indicates that the scheme of Contributory Provident Fund, by way of retiral benefit, envisaged by the Provident Fund Act, is in the nature of a substitute for old age pension because it was felt that in the prevailing condi tions in India, the institution of a pension scheme could not be visualised in the near future.
It was not the inten tion of 166 Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits.
Section 12 of the Provident Fund Act seeks to protect the wages of an employee to whom the scheme framed under the said Act ap plies as well as the total quantum of certain specified benefits to which he is entitled under the terms of his employment.
With that end in view, Section 12 prohibits an employer from reducing, whether directly or indirectly, the wages of an employee to whom the Scheme applies or the total quantum of benefits in the nature of old age pension, gratu ity, Provident Fund or life insurance to which the employee is entitled under the terms of his employment express or implied.
The said Section proceeds on the basis that if an employee is entitled to any benefit in the nature of old age pension under the terms of his employment the said benefit would not be denied to him on the application of the Scheme.
It is not the case of the petitioners that on June 30, 1961, when the Provident Fund Scheme was made applicable to the Commission, the petitioners had become permanent and were entitled to pension.
It cannot, therefore, be said that on the date of the application of the Provident Fund Scheme to the Commissioner, the petitioners were entitled to pension under the terms of their employment.
They cannot, therefore, invoke the provisions of Section 12 of the Provident Fund Act.
In Sorn Prakash Rekhi vs Union of India & Another, (supra) on which reliance has been placed by Shri Rama murthi, the petitioner before this Court was employed as a clerk in Burmah Shell Oil Storage Ltd. The undertaking of that company was statutorily acquired by the Government of India under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, and subsequently the said undertaking was vested by the Central Government in the Bharat Petroleum Corporation Limited, a Government Company.
In the Burmah Shell, there was a voluntary retirement scheme in force which was governed by the terms of a trust deed of 1950.
The said petitioner was receiving pension under the said scheme.
Certain deductions were made from the pension paid to the petitioner on account of Employees ' Provident Fund and Gratuity paid to him.
This Court held that in view of Sec tion 12 of the Provident Fund Act, such deductions were not permissible and that the entire amount of pension should be paid to the petitioner without deduction.
This decision has no application to the instant case because in that case the petitioner before this Court was entitled to receive pension under the voluntary retirement scheme at the time when the provisions of the Provident Fund Act became applicable to Burmah Shell and the right to receive pension was part of the terms of employment of the said petitioner.
In the present case it cannot be said 167 that on the date of the application of the Provident Fund Scheme to the Commission on June 30, 1961, the petitioners were entitled to receive pension and the benefit of pension was a part of the terms of employment of the petitioners on that date.
For the reasons mentioned above, it must be held that the persons who were employed in temporary capacity with the Commission when it was being run as a Department of the Government of India prior to the enactment of the ONGC Act and who were subsequently absorbed in the Commission, as established under the said Act, are not entitled to pension in addition to the Provident Fund benefits to which they are entitled under the provisions of the Provident Fund Act.
The writ petition, therefore, fails and it is accordingly dis missed.
There will be no order as to costs.
T.N.A. Petition dismissed.

summary:
The petitioners, employed in temporary capacity with the Oil and Natural Gas Commission when it was a Department of the Government of India, were subsequently absorbed in the said Commission when it was established as a statutory body under the .
The was made applicable to the Commission.
The petitioners opted for Contributory Provident Fund and availed the bene fit.
The petitioners filed a writ petition in this Court claiming the benefit of pension in addition to the Provident Fund contending that (i) under the relevant Rules governing their service, they were entitled to pension on their being made permanent and that the right to pension, 157 which was part of their service condition, was protected by Section 13(1) of the read with Regulation 3(2) of the Oil and Natural Gas Commission (Terms and Conditions of Appointment and Service) Regula tions 1975; and (ii) In spite of the introduction of the Contributory Provident Fund Scheme 'their right to pension was preserved by Section 12 of the Provident Fund Act.
Dismissing the writ petition, this Court, HELD: 1.
The scheme of Contributory Provident Fund, by way of retiral benefit, envisaged by the Provident Fund Act, is in the nature of a substitute for old age pension because it was felt that in the prevailing conditions in India, the institution of a pension scheme could not be visualised in the near future.
It was not the intention of Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits.
[165G H; 166A] 2.
Section 12 of the Provident Fund Act seeks to protect the wages of an employee to whom the scheme framed under the said act applies as well as the total quantum of certain specified benefits to which he is entitled under the terms of his employment.
It prohibits an employer from reducing, whether directly or indirectly, the wages of an employee to whom the Scheme applies or the total quantum of benefits in the nature of old age pension, gratuity, Provident Fund or life insurance to which the employee is entitled under the terms of his employment express or implied.
The said section proceeds on the basis that if an employee is entitled to any benefit in the nature of old age pension under the terms of his employment the said benefit would not be denied to him on the application of the Scheme.
[166A C] 2.1 In the instant case, on the date of application of the Provident Fund Scheme to the Oil and Natural Gas Commis sion.
the benefit of pension was not a part of the terms of employment of the petitioners and they were not entitled to receive pension on that date.
Consequently, the petitioners cannot invoke the provisions of Section 12 of the Provident Fund Act.
[166D] Som Prakash Rekhi vs Union of India & Anr., ; , held inapplicable.
The petitioners were employed on temporary basis at the time when the Commission was established as a statutory body under the "and on that date they were not 158 entitled to claim pension because under the relevant Rules pension was not payable to a person employed on temporary basis.
The petitioners, therefore, cannot claim that on the date of their becoming the employees of the Commission established under the Oil and Natural (;as Commission Act in 1959, they had a right to pension which has been protected under sub section (1) of Section 13 and clause 12) of Regu lation 3 of the Regulations.
[164A B] 3.1 Under the relevant service rules applicable to petitioners, they could either claim pension or the benefit of the Contributory Provident Fund and they could not avail both the benefits.
Since the petitioners are entitled to the benefit of the Contributory Provident Fund under the Provi dent Fund Act and the Provident Fund Scheme and have availed the said benefit for the past 28 years, they should be taken to have opted for said benefit and they cannot invoke the service rules with regard to pension and claim the right to receive pension as part of their conditions of service.
I 164C D] 3.2 The persons who were employed in temporary capacity with the Oil and Natural Gas Commission when it was being run as a Department of the Government of India prior to the enactment of the and who were subsequently absorbed in the Commission, as established under the said Act, are not entitled to pension in addition to the Provident Fund benefit to which they are entitled under the provisions of the Provident Fund Act.
[167B C]


judgement:
Criminal Appeal Nos. 7 18 7 19/81 & 205 2 12, 2 13 2 17 & 204 of 1990.
From the Judgments and Order dated 29.4.1981, 22.5.1981 & 29.4.
1981 of the Punjab and Haryana High Court in Crl.
W.P. Nos. 38 & 46, 80 84, 86 88 & 40 of 1981.
R.S. Suri, Mr. Mohan Pandey and R.P. Singh for the Appel lants.
S.Srinivasan and C.L. Sahu Amicus Curiae for the Respond ents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted in all the above matters.
These appeals involve the interpretation of paragraphs 516 B and 631 of the Manual for the Superintendence and Management of 150 Jails in the Punjab.
The preface to the Manual shows that those paragraphs of the Manual against which a black line appears are, in substance, either quotations from the law, or, from the Rules having the force of law, the authority having been indicted on the upper right hand margin of each paragraph whereas the paragraphs which have not been black lined are executive instructions issued from time to time by the Government of India, or the Local Government or the Inspector General with the sanction and approval of the Local Government.
It may at once be mentioned that paragraph 5 16 B contained in Chapter XV entitled 'Release of Prison ers ' is not blacklined while paragraph 631 contained in Chapter XX entitled 'Remission System ' is blacklined.
The note in the upper right hand margin of paragraph 516B refers to G of I Resolution No. 159 167 dated 6th September, 1905 and P.G. No. 18608 Jails dated 28th June, 1920.
There is no dispute that this paragraph contains an executive instruc tion only.
Paragraph 631 contains a note on the upper right hand margin referring to the G of I Resolution No. 161 172 of 2nd May, 1908 and P.G. Letter No. 1669 S (Home) of 31st July, 1908.
At the foot of paragraph 631 is a 'Note ' in small type with a right hand marginal note See para 5 16B '.
While there can be no controversy that paragraph 631 which is blacklined has statutory force, the question is whether the Note at the foot thereof, which is not blacklined, also has statutory force.
Paragraph 5 16 B provides that the case of every con victed prisoner (except females and males below 20 years at the date of the commission of the crime) sentenced to im prisonment for life or imprisonment aggregating to over 14 years and who has undergone a period of detention in Jail amounting, together with remission earned, to 14 years, 'shall be ' submitted to the State Government, through the Inspector General of Prisons, for orders.
In the case of female prisoners or prisoners who were below 20 years on the date of commission of the crime, reference is required to be similarly made to the State Government on their completing a detention period of 10 years inclusive of remissions.
Clause (v), however, provides that notwithstanding anything con tained in the earlier part of the paragraph, a Superintend ent of jail 'may ', in his discretion, refer at any time, for the orders of the State Government, the case of any prisoner sentenced to imprisonment for life whose sentence might in the Superintendent 's opinion be suitably commuted to a term of imprisonment.
It would appear from a plain reading of this paragraph that in the case of a prisoner who has com pleted 14 years of detention in jail.
inclusive remissions earned, it is imperative on the part of the Superintendent of 151 the Jail to submit his case, through the I.G. of Prisons, to the State Government for consideration.
The use of the words 'shall be submitted ' bring out this intention when we con trast them with the word 'may ' and the words 'in his discre tion ' used in clause (v) thereto which begins with a non obstante clause.
Therefore, where the intention was to confer a mere discretion on the Superintendent of Jail, it was made manifest by the use of the expression 'may ' fol lowed by the words 'in his discretion ' and where the inten tion was to cast a duty to submit the case of the State Government, it was brought out by the word 'shall ' preceding the words 'be submitted . . for the orders of the State Government '.
We have, therefore, no doubt in our minds that paragraph 5 16B, though an executive instruction, has been couched in language which clearly shows that in the former type of cases where the prisoner has completed 14 years of detention in jail, inclusive of remissions, his case must be referred to the State Government for consideration.
Notwith standing this limitation of completion of 14 years, clause (v) confers a discretion on the Superintendent of the jail to refer or submit the case of a prisoner to the State Government even before he has completed 14 years if in his opinion the case is fit for commuting the sentence.
Paragraph 631 is indisputably a statutory one as it is blacklined.
But the blacklined portion of the paragraph merely defines certain expressions including the expression 'life convicts ' which means a person whose sentence amounts to 20 years imprisonment.
Then appears the Note which reads as follows: "Note: The case of all life convicts and of all prisoners sentenced to more than 14 years imprisonment or to transpor tation and imprisonment for terms exceeding in the aggregate 14 years shall, when the term of imprisonment undergone, together with any remission earned under the rules amounts to 10 or 14 years, as the case may be, submitted for the orders of the Local Government in accordance with the in structions contained in the Home Department Resolution No. 159 167 (Jails), dated the 6th September, 1905." (See para 516B) It will be seen that the note merely reproduces the gist of paragraph 5 16 B. Even the right side marginal note says 'see para 5 16 B ' and is based on the same Resolution of 6th September, 1905 on which paragraph 5 16 B is based.
The note is not blacklined as in the case of 152 the Note below paragraph 633.
It was, therefore, urged that when paragraph 516 B is not blacklined, this note below.
paragraph 63 1, which too is not blacklined, can not be construed to be statutory in character merely because para graph 631 incorporates a statutory rule.
Since the source of paragraph 5 16 B and the Note at the foot of paragraph 631 is the same, namely, the Resolution of 6th September, 1905, counsel for the State of Punjab submit ted that the learned Judge in the High Court was not right in concluding that the Note being an integral part of the statutory rule incorporated in paragraph 631 must receive the same character and if there is a conflict between the two, the note which is statutory in character must prevail.
The difficulty arises because the State Government has issued instructions in 1971 which has the effect of modify ing the executive instructions in paragraph 5 16 B, in that, it is now provided that a convict must have undergone 8 1/2 years of substantive sentence before his case for premature release can be submitted to the State Government for consid eration.
A further change was made by an executive instruc tion issued in 1976 whereby it was provided that cases of convicts who were sentenced to death and whose sentences were subsequently commuted to life imprisonment will not be submitted to the State Government for consideration unless the convict has undergone atleast 14 years of substantive imprisonment.
The High Court has taken the view that while paragraph 5 16 B would stand amended or modified by the subsequent executive instructions, the statutory rule con tained in the Note below paragraph 631 cannot be touched by mere executive instructions and hence it still holds the field and the Superintendent for the jail is bound to submit the case to the State Government ignoring the change brought about by the executive instructions of 1971 and 1976.
In other words, according to the High Court the executive instructions of 1971 and 1976 being in conflict with the statutory Note must give way to the latter.
Before we deal with the above question it may be advan tageous to refer to Sections 432,433 and 433A of the Crimi nal Procedure Code which have a bearing on the question of premature release.
Section 432 confers on the appropriate Government the power to suspend the execution of the sen tence or remit the whole or part of the sentence with or without conditions.
Section 433 confers power on the appro priate Government to commute (a) a sentence of death for any other punishment provided under the Penal Code, (b) a sen tence of imprisonment for life, for imprisonment for a term not exceeding 14 years or 153 fine (c) a sentence of rigorous imprisonment, for simple imprisonment or fine or (d) a sentence of simple imprison ment for fine.
Section 433A provides that where an offender is visited with a sentence of imprisonment for life for an offence for which death is one of the punishments or where a sentence of death is commuted under Section 433 into one of punishment for life, such persons shall not be released from prison unless he has served atleast 14 years of imprison ment.
It will thus seen that Section 432 and 433 confer powers of suspension, remission and commutation of sentences on the appropriate Government, an expression defined in Sub section (7) of Section 432 of the Code.
In Gopal Vinayak Godse vs State of Maharashtra, ; , this Court held that a sentence of transportation for life or imprisonment for life must be treated as trans portation or imprisonment for the whole of the remaining period of the convict 's normal life, unless the said sen tence is commuted or remitted by the appropriate Government.
Dealing with the Rules framed under the , this Court held that even though they were statutory in character they did not confer an indefeasible right on a prisoner sentenced to transportation for life an uncondi tional release on the expiry of a particular term including remissions.
It held that the rules framed under the enabled a prisoner to earn remissions ordinary, special and State the said remissions were to be given credit to wards his term of imprisonment and for the purpose of work ing out the remissions the sentence of transportation for life was equated with a definite period, but it is only for the particular purpose and not for any other purpose.
Lastly it observed that the question of remission was exclusively within the province of the appropriate Government.
In Maru Ram vs Union of India, ; this Court repelled the challenge to Section 433A both on the question of competence of Parliament to enact the provision and its constitutional validity.
While interpreting Sections 432,433 and 433A of the Code, this Court pointed out that wide powers or remission and commutation of sentences were conferred on the appropriate government but an exception was carved out for the extreme category of convicts who were sentenced to death but whose sentence had been commuted under Section 433 into one of imprisonment for life.
Such a prisoner is not to be released unless he has served atleast 14 years of imprisonment.
The Court refused to read down Section 433A to give overriding effect to the Remission Rules of the State.
It categorically ruled that Remission Rules and like provisions stand excluded so far as 'lifers ' punished for capital offences are concerned.
Remissions by way of 154 reward or otherwise cannot cut down the sentence awarded by the Court except under Section 432 of the Code or in exer cise of constitutional power under Article 72/161 of the Constitution.
Remission cannot detract from the quantum and quality of the Judicial sentence except to the extent per mitted by Section 432 of the Code, subject of course to Section 433A, or where the clemency power under the Consti tution is invoked.
But while exercising the Constitutional power under Article 72/161, the President or the Governor, as the case may be, must act on the advice of the Council of Ministers.
The power under Article 72 and 161 of the Consti tution is absolute and cannot be lettered by any statutory provision such as Sections 432,433 and 433A of the Code.
This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.
Now, paragraph 5 16 B requires that the case of every convict sentenced to imprisonment for life or imprisonment aggregating to more than 14 years and who has undergone a period of detention in jail amounting, together with remis sion, to 14 years, shall be submitted to the State Govern ment for orders.
The State Government 's instruction issued in 1971 provides that the convict must have undergone 8 1/2 years of substantive sentence before his case could be submitted to the Government.
The other instruction issued in 1976 provides that the case of a convict who was sentenced to death and whose sentence was subsequently commuted to life imprisonment will not be submitted unless he has under gone atleast 14 years of substantive imprisonment.
Remission schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences; if the sentences is of imprisonment for life.
ordinarily the convict has to pass the remainder of his life in prison but remissions and commutations are granted in exercise of power under Sections 432 and 433 carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment.
Even in such cases Section 433A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years.
In the case of other 'lifers ' the insistence under the 1971 amendment is that he should have a period of atleast 81/2 years of incarceration before release.
The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433A of the Code.
Since Section 433A is prospective, so also would be the 1971 and 1976 amendments.
155 But the High Court has come to the conclusion that Paragraph 5 16 B, as amended by the executive instructions of 1971 and 1976, cannot override the statutory rule con tained in Paragraph 631 read with the note appended thereto.
Counsel for the State argued that the Note at the foot of Paragraph 631 merely reproduces Paragraph 5 16 B; the mar ginal note thereto says to in no uncertain terms and, there fore, the Note cannot be ascribed a statutory character.
We think there is considerable force in this submission.
In the first place it must be realised that according to the pref ace only those paragraphs which are blacklined have statuto ry character.
The Note in question is not so blacklined.
Where the note is intended to be given statutory character it is blacklined, see the note at the foot of Paragraph 633.
Secondly the source of paragraph 5 16 B and the Note is the very same Resolution No. 159 167 of the Government of India dated 6th September, 1905.
It is difficult to believe that the same resolution was intended to be a mere executive instruction in one part of the Manual and was intended to be conferred a statutory character in another part of the same Manual.
Thirdly the marginal note to the Note in question in terms refers to Paragraph 5 16 B which means it was merely a reproduction of the latter paragraph.
In the circumstances if the Note was intended to be conferred a statutory charac ter, it would have been blacklined in keeping with the scheme of the Manual.
These are clear indicators which support the submission of the learned counsel for the State.
Lastly Paragraph 631 classifies prisoners and fixes the duration of their sentences e.g. 20 years for life convicts and class 3 prisoners and 25 years for class 1 and 2 prison ers.
The Note at the foot of the paragraph is by way of a reminder that notwithstanding the duration fixed under the said rule, Paragraph 5 16 B requires that cases of such prisoners should be submitted on the expiry of the duration fixed under Paragraph 5 16 B. It, therefore, seems clear to us that the Note is neither an integral part of Paragraph 631 nor does it have statutory flavour as held by the High Court.
We, therefore, find it difficult to uphold the view taken by the High Court in this behalf.
We may make it clear that Paragraph 516B insofar as it stands amended or modified by the 1971 and 1976 executive orders is prospective in character.
We allow these appeals and set aside the judgment and Order of the High Court in each of these appeals.
G.N. Appeals allowed.

dataset_name: IN-Abs

summary:
Paragraph 516 B of the Manual for the Superintendence and Management of Jails in Punjab provides for premature release of prisoners.
The State Government had issued in structions in 1971 modifying the executive instructions in paragraph 516B, to the effect that a convict must have undergone 8 1/2 years of substantive sentence before his case could be submitted to the Government for consideration.
Again there was another executive instruction in 1976 which provided that cases of convicts who were sentenced to death and whose sentences were subsequently commuted to life imprisonment would not be submitted to the State Government for consideration unless the convict has undergone atleast 14 years of substantive imprisonment.
Paragraph 631 of the said Manual relates to remission of sentences.
The note below paragraph 631 reproduces the gist of paragraph 516 B. Going by the preface of the Manual, paragraph 631 has statutory force whereas paragraph 5 16B being in the nature of executive instruction has no statutory force.
The respondents filed Criminal Writ Petitions before the High Court praying for their premature release on the basis that the note under paragraph 631 has statutory force, the executive instructions issued in 1971 and 1976 have to be ignored and that the Jail Superintendent was bound to submit their cases to the Government for premature release.
148 The High Court allowed the claim of the respondents and held that the executive instructions issued in 1971 and 1976 being in conflict with the statutory note must give way to the latter.
These appeals, by special leave, preferred by the State Government challenge the High Court 's decision on the ground that the source of paragraphs 516 and the note at the foot of paragraph 631 being the same, viz., resolution dated 6th September, 1905, it cannot be concluded that the note being an integral part of the statutory rule incorporated in paragraph 631 must receive the same character and in case of conflict between the two, the note which is statutory in character must prevail.
Allowing the appeals, this Court, HELD: 1. Remissions by way of reward or otherwise cannot cut down the sentence awarded by the Court except under Section 432 of the Criminal Procedure Code or in exercise of constitutional power under Article 72/161 of the Constitu tion.
Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Section 432 of the Code, subject of course to Section 433A, or where the clemency power under the Constitution is in voked.
The power under Articles 72 and 161 of the Constitu tion is absolute and cannot be lettered by any statutory provision such as Sections 432, 433 and 433A of the Code.
This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.
[153H; 154A C] 2.
Remission schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences.
If the sentence is of imprisonment for life, ordinarily the convict has to pass the remainder of his life in prison but remissions and commutations are granted in exercise of power under Sections 432 and 433 Cr.
P.C., carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment.
Even in such cases Section 433A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years.
In the case of other 'lifers ' the insistence under the 1971 amendment is that he should have a period of atleast 8 1/2 years of incarceration before release.
The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433A of the Code.
Since Section 433A is prospective, so also 149 would be the 1971 and 1976 amendments.
[154E H] Gopal Vinayak Godse vs State of Maharashtra, ; and Maru Ram vs Union of India, ; , relied on.
According to the preface only those paragraphs which are blacklined have statutory character.
The note in ques tion is not so blacklined.
The source of paragraph 516B and the note is the very same Resolution No. 159 167 of the Government of India dated 6th September, 1905.
It is diffi cult to believe that the same resolution was intended to be a mere executive instruction in one part of the Manual and was intended to be conferred a statutory character in anoth er.
The marginal note to the Note in question in terms refers to paragraph 516 B which means it was merely a repro duction of the latter paragraph.
In the circumstances, if the note was intended to be conferred a statutory character, it would have been blacklined in keeping with the scheme of the Manual.
Paragraph 631 classifies prisoners and fixes the duration of their sentences e.g., 20 years for life convicts and class 3 prisoners and 25 years for class 1 and 2 prison ers.
The note at the foot of the paragraph is by way of a reminder that notwithstanding the duration fixed under the said rule, paragraph 5 16B requires that cases of such prisoners should be submitted on the expiry of the duration fixed under paragraph 516B.
It is, therefore, clear that the note is neither an integral part of paragraph 631; nor does it have statutory flavour as held by the High Court.
[155B F]


judgement:
Writ Petition No. 1555 of 1979 etc.
(Under Article 32 of the Constitution of India).
144 D.N. Dwivedi and Sarwa Mitter for the Petitioners.
Dr. L.M, Singhvi, B.D. Sharma, Shri Narain, Sandeep Narain, Shrid Rizvi and D.K. Singh for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Validity of Rajasthan Agricultural Pro duce Markets Act, 1961 (for brevity the Act) levying market fee on sale and purchase of agricultural produce in market yard or sub marketyard was challenged by dealers for lack of legislative competence, violation of Articles 14, 19, 30 1 and 304 of Constitution, absence of any quid pro quo in the fee paid and service rendered, illegal and arbi trary inclusion of manufactured articles such as Khandsari, Shakkar, Gur and Sugar as agricultural produce in the sched ule etc.
Acts of other States, for instance, Punjab and Haryana and U.P. were also assailed for similar infirmities.
Whether these petitions, which appear to be identical, are reproduc tion of any of those petitions, which were pending in this Court from before is not relevant but various group of petitions of Punjab and Haryana dealers challenging consti tutionality and legality of Act and its provisions including Gut, Khandsari and Shakkar as agricultural produce in the schedule of Punjab Act have been dismissed by different benches presumably because of decisions in Kewal Krishan Puri vs State of Punjab, ; ; Ramesh Chandra vs State of U.P., ; Rathi Khandsari Udyog vs State of U.P., and Sreenivisa General Traders vs State of Andhra Pradesh, AIR 1983 SC 1264.
Despite these decisions spelling out basic principles for determining validity of marketing legislations dealing with agricultural produce the petitioners were not willing to take it lying down probably because none of these deci sions dealt with sugar.
It was urged that inclusion of sugar in the Schedule of the Act was arbitrary., primarily because it being a declared commodity of public importance under Entry 52 of List I of Schedule VII the State legislature was precluded from legislating on it.
Its inclusion in the Schedule was also assailed as it being a Mill or Factory produce it could not be deemed to be agricultural produce which is basically confined to produce of or from soil.
Sugar is one of the items which was included in the Schedule to the Act, statutorily, right from its inception.
Such inclusion is found in 145 Maharashtra, Gujarat, West Bengal, Bihar etc.
Whether it was subsequently deleted or re included or re grouped or it was added later was immaterial as Section 40 of the Act empow ered State Government to amend or include any item in the Schedule of agricultural produce.
Existence of such delegat ed power is usual feature of the statutes.
No illegality or infirmity could be pointed out in it.
Any challenge, there fore, rounded on excessive delegation of legislative power was misconceived.
Inclusion of sugar in the Schedule was urged to be arbitrary as it was not produced out of soil the basic ingredient of agricultural produce.
Fallacy of the submis sion is apparent as it was in complete disregard of defini tion of the word "agricultural produce" in the Act which includes all produce whether agricultural, horticultural, animal husbandry or otherwise as specified in the Schedule.
The legislative power to add or include and define a word even artificially, apart, the definition which is not ex haustive but inclusive neither excludes any item produced in mill or factories nor it confines its width to produce from soil.
If that be the construction then all items of animal husbandry shall stand excluded.
It further overlooks expanse of the expression "or otherwise as specified in the Sched ule.
" Nor switch over from indigenous method of producing anything to scientific or mechanical method changes its character.
Khandsari sugar, which is produced by open pan process and is not different from sugar produced by vacuum pan process except in composition, filterability and conduc tivity as held in Rathi Khandsari Udyog, (supra) was held to be agricultural produce in some decisions.
No distinction was made on method of production, namely, by modern plant and machinery.
To say, therefore, that sugar being produced in mill or factories could not be deemed to be agricultural produce is both against the statutory language and judicial interpretation of similar provisions of the Act in statutes of other States.
Rice or dal produced in mills have been held to be agricultural produce in Ramesh Chandra vs
U.P. State, and State of U.P. vs Ganga Das Mill, Even in Halsbury Law of England, ' Vol.
I the word agricultural produce for purpose of agricultural marketing schemes is understood as, 'including any product of agriculture or horticulture and any article of food or drink wholly or partly manufactured or derived from any such product and fleeces (including all kinds of wool) and the skins of animals '.
In the same volume products covered by the provisions of EEC Treaty as to agriculture (classified according to the Brussels Nomenclature of 1965) are men tioned in paragraph 1845.
Sugar is one of them.
146 Another legalistic challenge regarding inhibition of State to legislate on sugar or of repeated argument of occupied field was more attractive than of any substance.
Reliance on Article 246 of the Constitution was academic only.
As far back as 1956 Constitution Bench of this Court in Choudhary Tika Ram and others vs State of U.P., ; examined the matter in detail and held sugar legis lations to be within the scope of Entry 33 of concurrent list.
It was observed that all 'Acts and the notifications issued thereunder by the Centre in regard to sugar and sugarcane were enacted in exercise of concurrent jurisdic tion '.
Effect of it was described thus, 'The Provincial Legislature as well as the Central Legislature would be competent to enact such pieces of legislation and no ques tion of legislative competence would arise '.
Any further discussion on clash between Entry 52 of List I of VII Sched ule with Entry 28 of List II in the circumstances is unnec essary.
As regards the submission of occupied field suffice it to say that there is no repugnancy m the Central and State legislation.
At least none was made out.
Even if there would have been any the Act having received assent of the President it is fully protected by Article 254(2).
For these reasons these petitions fail and are dismissed with costs.
N.P.V. Petitions dismissed.

summary:
In the Writ Petition flied in this Court, the validity of Rajasthan Agricultural Produce Markets Act, 1961, levying market fee on sale and purchase of agricultural produce was challenged for lack of legislative competence, and arbitrary inclusion of Khandsari, Shakkar, Gur and Sugar as agricul tural produce in the Schedule.
It was contended that inclu sion of sugar was arbitrary inasmuch as it being a declared commodity of public importance under Entry 52 of List I of Schedule VII, the State Legislature was precluded from legislating on it and that being a mill or factory produce, it could not be deemed to be agricultural produce, which was basically confined to produce of or from soil.
Dismissing the Petitions, this Court, HELD: 1.1 Sugar is one of the items which was included in the Schedule to the Rajasthan Agricultural Produce Mar kets Act, 1961, statutorily, right from the inception.
Such inclusion is found in many States.
Whether it was subse quently deleted or re included or regrouped or was added later was immaterial, as Section 40 of the Act empowered State Government to amend or include any item in the Sched ule of agricultural produce.
Existence of such delegated power is 143 usual feature of the statutes.
No illegality or infirmity could be pointed out in it.
Any challenge, therefore, round ed on excessive delegation of legislative power was miscon ceived.
[144H, 145A B] 1.2 The definition of the word "agricultural produce" in the Act includes all produce whether agricultural, horticul tural, animal husbandry or otherwise as specified in the Schedule.
The legislative power to add or include and define a word even artificially, apart, the definition which is not exhaustive but inclusive, neither excludes any item produced in mill or factories nor it confines its width to produce from soil.
Nor switch over from indigenous method of produc ing anything to scientific or mechanical method changes its character.
To say, therefore, that sugar being produced in mill or factories could not be deemed to be agricultural produce is both against the statutory language and judicial interpretation of similar provisions of the Act in statutes of other States.
[145C D, F] Kewal Krishan Puri vs State of Punjab, ; ; Ramesh Chandra vs State of U.P., ; Rathi Khandsari Udyog vs State of U.P., ; Sreenivisa General Traders vs State of Andhra Pradesh, AIR 1983 SC 1264; Ramesh Chandra vs U.P. State and State of U.P. vs Ganga Das Mill, , re ferred to.
Halsbury 's Law of England, Vol.
I and Paragraph 1845, re ferred to. 2.
In view of the settled position of law that sugar legislations are within the scope of Entry 33 of Concurrent List, no further discussion on clash between Entry 52 of List I of Vllth Schedule and Entry 28 of List II is neces sary.
There is no repugnancy in the Central and State legis lation.
Even if there would have been any, the Act having received assent of the President is fully protected by Article 254(2) of the Constitution.
[146B D] Choudhary Tika Ram and Others vs State of U.P., ; , followed.


judgement:
ivil Appeal No. 931 of 1986.
From the Judgment and Order dated 3.10.1985 of the Madhya Pradesh High Court in Civil Misc.
W.P. No. 15 10 of 1981.
P.N. Lekhi, M.K. Garg, Aman Lekhi and Lokesh Kumar for the appellants.
R.B. Datar, Sakesh Kumar, Uma Nath Singh, Satish K. Agnihotri and Ashok Singh for the respondents.
The Judgment of the Court was delivered by 133 SAWANT, J.
The two appellants in this case had joined the service in the Public Works Department of the respond ent Madhya Pradesh State, as Overseers.
They were thereafter appointed as Junior Engineers by direct recruitment the first appellant on August 29, 1969 and the second appellant on September 12, 1969.
Although the High Court in its im pugned judgment has stated that they were promoted as Junior Engineers from the posts of Overseers, it appears that that statement is not correct since their orders of appointment to the post of Junior Engineer which are Annexures P 1 and P 2 to the writ petition filed in the High Court show that their appointments as Junior Engineers were not by way of promotion.
This, however, makes no difference to the issues involved in the present appeal.
We have stated it to keep the record straight.
The grievance of the appellants is with regard to their seniority in the next promotional post, viz., that of Assistant Engineer.
The Recruitment Rules which govern the said promo tional post are known as Madhya Pradesh P.W.D. (Gazetted) Recruitment Rules, 1969 (hereinafter referred to as the 'Rules ').
According to these Rules, Junior Engineers, Over seers, Head Draftsmen and Draftsmen are eligible to be considered for promotion to the post of Assistant Engineer on their securing the requisite experience.
Each of these categories further has a fixed quota of its own.
The Depart mental Promotion Committee, D.P.C. to be short, whose con stitution is also prescribed in these Rules, is required to consider the names of all the eligible candidates on merits, and judge their suitability in all respects on merit cum seniority basis.
The D.P.C. is also required to arrange the names of all the selected candidates ordinarily in the order of their seniority unless a junior is exceptionally merito rious in which case, of course, he is given a higher number in the selection list.
This list is then sent through the State Government to the Public Service Commission for its consideration and approval.
The list as approved by the Commission then becomes the select list, and promotions are made from this list in the same order as is arranged in the list.
However, in case of an administrative exigency, the State Government is given power to appoint anyone not in cluded in the said list if the vacancy is not likely to last for more than three months.
Under the Rules, to be eligible to be considered for promotion to the post of Assistant Engineer, a Junior Engineer has to have an experience of two years as Junior Engineer.
It appears that the State Government wanted a certain 134 number of Assistant Engineers, but enough number of Junior Engineers with requisite qualifying service were not avail able at the relevant time.
Admittedly the appellants were two of such unqualified Junior Engineers since they had not completed their two years ' qualified service as Junior Engineers at the relevant time.
Hence, taking resort to the Rule of Administrative Exigency contained in the proviso to Rule 19(1) of the said Rules, the Government promoted some Junior Engineers including both the appellants as Assistant Engineers on July 22, 1971 on purely ad hoc basis.
In the order appointing then, it was stated as follows: "Since adequate number of Junior Engineers with requisite qualify ing service are not available for appointment as Assistant Engineers, and but for these promotions large number of Assistant Engineers ' posts would remain vacant adversely affecting the construction work . . . . .
These appointments will not be deemed to determine seniority as Assistant Engineer for any purpose whatsoever.
It is not disputed that on July 22, 1971 when the appellants were so appointed as Assistant Engineers on ad hoc basis, appellant No. 1 was short of 'two years ' qualify ing service period by one month and appellant No. 2, by two months.
They became qualified on August 22, 1971 and on September 11, 1971 respectively.
It appears that while the appellants continued to act as Assistant Engineers on ad hoc basis, on August 7, 1972.
respondents 40 to 63 were appointed as Assistant Engineers by direct recruitment.
Thereafter, on November 22, 1972 respondents 2 to 39 and the appellants were selected as Assistant Engineers by the D.P.C.
On the same date, the State Government issued an order of appointment of the appellants and respondents 2 to 39 in which appellant No. 1 was shown at Serial No. 14 and appellant No. 2 at Serial No. 28.
The State Government thereafter prepared a seniority list of Assistant Engineers which reflected the seniority of appellants as having been appointed on and from November 22, 1972 and as per the ranking given in the said order of November 22, 1972.
The appellants challenged the seniority list before the High Court by a writ petition.
Although it appears the appellants had also joined to the petition, those Junior Engineers who were promoted as Assistant Engi neers along with the appellants by the same order and whose seniority in the list had reflected their placement in the order of appointment, the challenge to the seniority of those Junior Engineers was given up at the time of the arguments before the High Court, and it was confined to the seniority of respondents 2 to 39 who were Overseers and were selected by the D.P.C. 135 from their own quota as Assistant Engineers along with the appellants, and to the seniority of respondents 40 to 63 who were appointed by direct recruitment on August 7, 1972.
The first challenge common to the seniority of all the respondents 2 to 63 was based on the contention that the appellants ' ad hoc service as Assistant Engineers from July 22, 1971, when they were promoted on ad hoc basis, to Novem ber, 22, 1972, on which date they were selected as regular appointees, was not taken into account.
The second challenge was confined to the seniority given to respondents 2 to 39 by giving them a weightage of their experience as Overseers.
The High Court negatived both the challenges and dismissed the writ petition.
Hence the present appeal.
The same contentions which were advanced before the High Court was advanced before us.
We will, therefore, first examine the grievance that the ad hoc service of the appel lants was not counted for the purpose of the appellants ' seniority.
A heavy reliance is placed on behalf of the appellants on the decision of this Court reported in Balesh war Dass & Ors.
vs State of U.P. & Ors. etc.
, [1981] 1 S.C.R. 449 in support of the contention that ad hoc officia tion is entitled to be counted for the purpose of seniority.
The ratio of the said decision however is not applicable to the present case.
In that case there was no dispute that the temporary appointees to the posts, who were claiming benefit of their temporary appointment or officiation were qualified to be appointed to the posts when they were initially ap pointed.
, All the procedural formalities of their appoint ments were also followed, namely, they had completed their probationary period, the Public Service Commission had given its approval and they had also been medically examined and found it.
No rule was breached in making their appointment.
The vacancies to which they were appointed were also sub stantive vacancies.
Their appointments, however, had contin ued for a number of years although there was no obstacle whatsoever in making them regular or permanent.
All that had remained to be done was the issuance of a format order of regularisation of the appointment which for unexplained reasons, the Govt.
had failed to do for a number of years.
The Court therefore observed that "a post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for 10 or more years under the head "temporary" for budgetary or other technical reasons.
Those who are appointed and hold tempo rary posts of the latter category are also members of the service provided they have been appointed substantively to that temporary post".
A 136 little later, the Court made further observations in this connection, as follows: "Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary.
If it is not, the further point to notice is as to whether the appointments are regular and not in viola tion of any rule, whether the Public Service Commission 's approval has been obtained and whether probation, medical fitness etc., are complete.
Once these formalities are complete, the incumbents can be taken as holding posts in substantive capacities and the entire officiating service can be considered for seniority.
For other purposes they may remain temporary . . .
The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist.
We see nothing in the scheme of the Rules contrary to that principle.
Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes, have been regularised and are fit to be absorbed into permanent posts as and when they are vacant. ' ' (Emphasis supplied) It will thus be seen that in that case the appointments to the substantive vacancies were made according to rules after complying with the procedure for regular appointment.
There was no requirement of the Recruitment Rules which was left to be complied with.
In our case unless the D.P.C. makes the selection, none can be appointed as Assistant Engineer regularly.
Similar were the facts in the case of G.P. Doral & Ors.
vs Chief Secretary, Government of U. P. & Ors., ; in that case the petitioners were temporarily appointed as Khandsari Inspectors having been selected in the departmental competitive test and interview.
Their appointments were however "subject to final selection by Public Service Commission at a later date".
Some of the respondents 137 were also appointed to the same posts subsequently in the same manner.
The names of these recruits were later forward ed to the Public Service Commission which accorded its approval to their appointments.
The Department drew up a provisional seniority list on the basis of the recommenda tions of the said Commission by taking the date of approval/selection by the Commission in respect of each candidate as the basis for determining the length of contin uous officiation.
The Department supported its action on the ground that it had prepared the list by reckoning seniority from the date of their "substantive appointments" in accord ance with an earlier Government Order of 1940 which pre scribed certain guidelines or model rules for framing rules governing conditions of service.
The model set out in the order suggested two independent principles for determining seniority, namely, (i) the date of substantive appointment and (ii) the date of the order of first appointment, if such appointment is followed by confirmation.
In the seniority list, the petitioners were placed below the respondents though they were initially appointed prior to the respond ents.
This Court quashed the seniority list holding that the question as to from what date the service is to be reckoned will depend upon the facts and circumstances of each case.
It was observed there that: "Where officiating appointment is followed by confirmation, unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list.
If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular, then in the absence of the contrary rule, the approval which means confirmation by the authority which had the authority, power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is made . . .
If a stopgap ap pointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, there is no justification for ignoring his past service.
At any rate, there is no justification for two persons selected in the same manner being differently treated." (emphasis ours) The Court also found there that the earlier order of 1940 had not prescribed any binding rule of seniority and assum ing that it did, the 138 seniority list did not conform to the model.
The model set out in the Government Order prescribed two different start ing points for reckoning seniority and it was difficult to assume that the department adopted one and rejected the other without making a specific rule in that behalf.
It will thus be clear that the Court was dealing with an altogether different situation in both the aforesaid cases.
There was no dispute in those cases that except for the terminology and nomenclature there was no distinction be tween a temporary and permanent appointment and all that remained to be done in those cases was the formalisation of the appointments.
That is not the situation in the present case.
The appellants were ineligible to be appointed as Assistant Engineers initially.
Their appointments were made specifically under the power given to the Government to make ad hoc appointments for administrative exigency.
The ap pointment orders made it clear that the appointments were in the said special circumstances and that they will not be deemed to determine seniority for any purpose whatsoever.
There is further no dispute that no appointments could be made as Assistant Engineers except by way of either direct recruitment through the Public Service Commission or promo tion through the selection made by the D.P.C. as per the quota assigned to different categories.
The first D.P.C. which met for selection, after the appellants became quali fied for being promoted, was held on October 12, 1972.
It is in this meeting that the appellants were selected along with the other qualified promotees, namely, respondents 2 to 39.
The D.P.C. further had the power also to arrange the senior ity of the promotees according to merits.
For all purposes, therefore, the appointment of the appellants on July 22, 1971 was ad hoc and not according to rules.
Their selection/appointment on November 22, 1972 by the D.P.C was further not a mere formality or a process undertaken only for formalisation of their earlier appointment.
In the circumstances, their appointment on November 22, 1972 could not relate back to July 22, 1971 and hence they were not entitled to claim their officiation between July 22, 1971 and November 22, 1972 for being counted for the purposes of their seniority for placing them either above respondents 40 to 63, who were directly recruited on August 7, 1972 or above respondents 2 to 39, who were promoted by the D.P.C. along with them, on November 22, 1972, and who happened to be senior to them even as Junior Engineers.
The other leg of the aforesaid contention was that the appellants were appointed under Rule 7(4) of the said Rules and not under 139 the proviso to Rule 19 of the Rules inasmuch as under the latter provision, their appointments could not have been made.
The argument was that the latter provision permitted appointments for an administrative exigency only in vacan cies which did not last for more than three months.
Since the appellants continued in the post for more than a year before they were selected on November 22, 1972, it should be held that their appointment was under Rule 7(4) of the Rules.
As has been pointed out by the High Court, the re course to Rule 7(4) is unwarranted because that provision deals with the method of recruitment and permits the State Government to adopt any method other than those provided there.
One of the methods permitted by that provision admit tedly is promotion, and since the appellants were admittedly promoted, though they were not qualified on that date, their case would not be covered by the third method of recruitment which is other than the one prescribed there.
Therefore, the argument that they should be considered to have been re cruited to the post of Assistant Engineer by a method other than that expressly provided by the said Rule 7(4) is only to be stated to be rejected.
Once it is held that they were promoted on ad hoc basis, what comes in the play is the proviso to Rule 19(1) which permitted the Government to make such ad hoc appointments for purely administrative exigen cies.
It was then contended that since the proviso to Rule 19(1) permitted appointments in vacancies which were to last for more than three months, it should be held that after the appellants became eligible during the first three months of their appointment, their further continuation was on regular basis.
This argument has also no substance in it, for as pointed out earlier, for being selected for appointment as Assistant Engineers, the appellants had to face the D.P.C. and the Government had no power to make regular appointments to the said post unless the D.P.C. had selected the candi dates for the posts.
Secondly, the proviso to Rule 19(1) has to be read liberally.
The said provision has to be inter preted to mean that the appointments under the said provi sion can be made for three months at a time.
Thus there was nothing to prevent the State Government from renewing the appointment of the appellants every three months.
The second contention is directed against the senior ity of respondents 2 to 39 and proceeds on the ground that the weightage given to them is illegal.
This contention must also fail for the following reasons.
Admittedly the Rules of Recruitment prescribe appointments to the post of Assistant Engineer from two sources, namely, (i) by direct recruitment and (ii) by promotion in the proportion of 50 50. 140 The promotional posts are further required to be filled in from three different cadres in the following proportion: '(i) 25% from Junior Engineers (ii) 20% from Overseers (iii) 5% from Head Draftsmen/Draftsmen.
Under the Madhya Pradesh P.W.D. (non gazetted) Recruitment Rules of 1972 (hereinafter referred to as 1972 Rules), the Overseers who acquire an Engineering degree or qualify for A.M.I.E. become eligible for promotion to the post of Junior Engineers as soon as the vacancy arises.
The inter se sen iority between the Overseers and the Junior Engineers in the cadre of Junior Engineers is to be fixed in accordance with Rule 14(3) of the said Rules by giving weightage of two months for every year of their service to the Overseers.
When the D.P.C. met on October 12, 1972 and considered the cases both of the appellants and the respondents, the Com mittee had submitted the names of the selected candidates cadre wise, i.e. separately of Junior Engineers, Overseers, Head Draftsmen/Draftsmen.
The General Administration Depart ment thereafter considered the matter.
Under the Rules, the Overseers were required to obtain an Engineering degree or qualify for A.M.I.E. and were also required to serve for 12 years as Overseers to become eligible for being considered for appointment as Assistant Engineers.
As against this, the Junior Engineers who were degree holders were required to serve only for two years to become eligible for being con sidered to the said post.
Taking these aspects into consid eration their inter se seniority, namely, the interse sen iority of the appellants and the Overseers promotee respon deets was fixed by the Government according to the following formula which was in vogue for a number of years: (a) In the cadre of Junior Engineers, Overseers so promoted were given weightage as per Rules of 1972, and promotional dates for seniority in the cadre were fixed accordingly.
(b) In the cadre of Assistant Engineers, the date of reckon ing of seniority was the one on which Junior Engineer or Overseer or Head Draftsman/Draftsman completed the respec tive span of service for eligibility.
Hence, when seniority was fixed as per the impugned seniori ty list of 141 the cadre of Assistant Engineers, when admittedly the Rules of 1972 were in vogue, it was fixed according to the afore said formula.
There is no dispute that according to the said formula, which can hardly be faulted, respondents 2 to 39 who were senior as Junior Engineers, were entitled to sen iority over the appellants.
It may further be pointed out that the Rules of 1972 were not challenged either before the High Court or before us.
All that was challenged before the High Court was that these Rules were restricted in their application only to the promotions made to the post of Junior Engineers and were not applicable to the promotions made to the post of Assistant Engineers.
On the face of it, such a challenge is meaningless because Rule 14 of the said Rules is clearly meant for the promotions to the post of Assistant Engineers.
Otherwise the seniority given to the Overseers etc.
in the seniority list of Junior Engineers on the basis of the their service as Overseers, is meaningless.
For all these reasons, we find no substance in this conten tion either.
We, therefore, confirm the decision of the High Court and dismiss the appeal.
There will, however, be no order as to costs.
R. N.J. Appeal dismissed.

summary:
The two appellants had joined as overseers in the P.W.D. of the respondent Madhya Pradesh State.
Thereafter they were appointed as Junior Engineers.
The grievance of the appel lants is with regard to their seniority in the next promo tional post viz, that of Assistant Engineer.
Recruitment Rules which govern the promotional post lay down that the Departmental promotion Committee is required to consider the names of all eligible candidates on merits and judge their suitability in all respects on merit cum seniority basis.
The D.P.C. is also required to arrange the names of all the selected candidates in the order of their merit.
In the case of exceptionally meritorious junior he is given a higher number in the selection list.
This list is sent to Public Service Commission for its approval.
After approval the list becomes the select list and the promotions are made from this list serial wise.
Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer a Junior Engineer has to have an experi ence of two years as Junior Engineer.
As the State Govt.
wanted a certain number of Assistant Engineers but enough number with requisite qualifying serv ice were not available so taking resort to the Rule of Administrative Exigency contained in the proviso to Rule 19(1) of the Rules the Govt.
promoted some Junior Engineers including both the appellants is Assistant Engineers on July 22, 1971 on purely ad hoc basis.
On August 7, 1972 respond ents 40 to 63 were appointed as Assistant Engineers by direct recruitment and on November 22, 1972 respondents 2 to 39 and the appellants were selected as Assistant Engineers by the D.P.C.
On the same date the State Govt.
issued an order of appointment of the appellants and respondents 2 to 39 in which appellant No. 1 was shown at 132 serial No. 14 and appellant No. 2 at serial No. 28.
The State Govt.
thereafter prepared a seniority list of Assist ant Engineers as per the order of November 22, 1972.
The appellants challenged the seniority list before the High Court by a Writ Petition.
The High Court dismissed the Writ Petition.
Hence the present appeal.
Dismissing the appeal, this Court, HELD: Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer, a Junior Engineer has to have an experience of two years as Junior Engineer.
[133G] In the instant case, unless the D.P.C. makes the selec tion, none can be appointed as Assistant Engineer regularly.
The appellants were ineligible to be appointed as Assistant Engineers initially.
Their appointments were made specifi cally under the power given to the Government to make ad hoc appointments for administrative exigency.
The appointment orders made it clear that the appointments were in the said Special Circumstances and that they will not be deemed to determine seniority for any purpose whatsoever.
[138C D] Once it is held that the appellants were appointed on ad hoc basis, what comes into play is the proviso to Rule 19(1) which permitted the Government to make such ad hoc appoint ments for purely administrative exigencies.
[139D] Baleshwar Dass & Ors.
vs State of U.P. & Ors etc.
, [1981] 1 S.C.R. 449 and G.P. Doval & Ors.
vs Chief Secre tary, Government of U.P. & Ors., ; , re ferred to.


judgement:
Criminal Appeal No. 219 of 1990.
214 WITH Writ Petition (Crl.) No. 92 of 1990.
From the Judgment and Order dated 12.12.1989 of the Allahabad High Court in Habeas Corpus W.P. No. 13644 of 1989.
A. Jaitley, Additional Solicitor General, R.K. Jain, Yogeshwar Prasad, Gaurav Jain, Abha Jain, D. Bhandari, Ms. A. Subhashini and R.B. Misra for the Appearing Parties.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Leave granted in the Special Leave Petition.
This appeal is against the judgment and order dated 12.12.89 in Habeas Corpus Writ Petition No. 13644/89 passed by the High Court at Allahabad dismissing the writ petition filed by the appellant, Vashisht Narain Karwaria, the detenu herein.
The District Magistrate, Allahabad, in exercise of powers conferred on him under Section 3(3) of the (hereinafter referred to as 'Act ') passed the impugned order of detention on 31.3.88 against the detenu on reaching his requisite subjective satisfaction on consideration of the materials placed before him that it had become necessary to pass the detention order with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order.
The salient and material facts which necessitated the detaining authority to pass the impugned order, as set out in the grounds of detention are as follows: On 30.3.1988 at about 3.30 P.M. the auction of liquor shops for the sale of Indian made foreign liquor was held in the campus of Collectorate at Allahabad.
A large number of bidders were present.
Among them, the detenu along with his three other associates also participated in the auction.
At about 3.30 P.M. the auction of the liquor shop within the area of Mooratganj took place.
For this shop the first bid was from one Ajai Kumar for Rs. one lakh.
The next bid for the same shop was of Chedi Lal for Rs. one lakh and ten thousand.
The moment the said two persons made their bid, the detenu along with his associates stood UP in ,the ,presence of all prospective bidders and told Ajai Kumar, Chedi Lal and others that the above said shop fell within his area and, therefore, if anybody dared to bid the shop in the auction he Would shoot him and also the entire members of his 215 family.
So saying the detenu along with his associates advanced towards Ajai Kumar and Chedi Lal threatening them with dire consequences.
This created terror and panic among all the bidders.
As the situation was becoming worse, Shri Rana Pratap Singh, Station House Officer along with other police officials advanced towards the detenu and his associ ates to apprehend them.
On seeing the police party advanc ing, the detenu fired at the police party with his country made pistol.
Fortunately, no body was hurt.
The detenu, however, escaped on being chased by the police party.
The detenu fired another two shots and hurled bombs on the police party while fleeing away.
His repeated firing and explosion of bombs created further panic and the people assembled for bidding the auction started running away and the nearby shopkeepers pulled down their shutters of their shops.
The vehicles parked there fled away.
Thus the public order was completely disrupted.
In connection with this incident, a case was registered in crime No. 221/88 in the Colenolganj Police Station under Section 307 and 506 of Indian Penal Code.
The case is still under investigation.
On the basis of the above material the detaining author ity on being satisfied that there was apprehension of com mission of act of violence at the hands of the detenu, which would be prejudicial to the maintenance of public order, passed this impugned order and directed the detenu to be kept under detention.
Admittedly, along with his ground of detention 4 docu ments were enclosed and served on the detenu.
Those docu ments are: (1) Report of S.S.P. Allahabad dated 31.3.
(2) Report of the S.H.O. Colenolganj Police Station.
(3) Copy Chik No.199, Crime No. 221 of 1988 under Section 307/506 I.P.C. in Colenolganj Police Station, Allahabad.
(4) Copy of G.D. No. 37 relating to the aforesaid offence.
The detenu challenged the validity of this order before the High Court, but became unsuccessful.
Feeling aggrieved by the impugned judgment, this appeal is now preferred.
Mr. R.K. Jain, the learned Sr. counsel appearing on behalf of the appellant made a number of submissions at the hearing, one of which being that the sponsoring authority had placed 216 certain irrelevant and extraneous matters before the detain ing authority which should have influenced the mind of the detaining authority and stealthily crept into the decision of the said authority directing detention of the detenu and as such the impugned order is liable to be quashed.
This argument was resisted by Shri Dalveer Bhandari, the learned counsel appearing on behalf of the respondents that the detaining authority had not considered any other material save the material referred to in the grounds of detention '.
Therefore, the short question for our consideration is whether the sponsoring authority has placed before the detaining authority any extraneous and irrelevant materials which might have influenced the mind of the detaining au thority.
It cannot be disputed indeed there is none that the four documents referred to above, copies of which were furnished to the detenu have been placed before the detain ing authority.
It follows that the detaining authority passed this order only on consideration of the above said materials.
In the confidential letter dated 31st March 1988 sent by the Senior Superintendent of Police, Allahabad to the detaining authority it is stated thus: "It is stated that the accused is a hardened criminal and has a gang.
Such persons are committing heinous crimes often which adversely affects the public order.
There are many cases/offences against accused Vashistha narayan registered in various police stations.
It has become his habit to commit offences . .
Hence I recommend that an order for atleast 12 months detention be passed against Shri Vashisht Narayan Karwaria alias Bhukkhal son of late Shri Jagat Narayankarwaria, the aforesaid accused under Section 3(2) of the above mentioned Act.
" The preamble of the letter submitted by the Station House Officer of Colenolganj, Allahabad dated 31.3.
1988 to the Senior Superintendent of Police, Allahabad reads as follows: "It is submitted that Shri Vashisht Narayan Karwaria alias Bhukkal, the aforesaid accused is a hardened criminal and has a gang.
In his gang his son Kapil and two other big offenders Ram Chandra Tripathi and Santosh Kumar Tripathi son of Gaya Prasad, resident of Ganspur, P.S. Poormufti, District Allahabad, are included.
These 217 people often used to commit heinous crimes, by which terror and fear prevails in the people.
Many crimes are registered against Vashisht Narayan Karwaria in many Police Stations.
" The above averments made in the above two letters, the copies of which are furnished to the detenu along with grounds of detention unequivocally and clearly spell out that the detenu is a hardened criminal, having a gang under his control often committing heinous crimes, that many cases against the detenu are registered in various police stations and that he is in the habit of committing offences.
No doubt, these averments are not made mention of in the grounds of detention.
But can it be said that these materi als placed before the authority might not have influenced the mind of the detaining authority in taking the decision of detaining the detenu? In our view, the above averments which are extraneous touching the character of the detenu though not referred to in the Grounds of detention, might have influenced the mind of the detaining authority to some extent one way or other .in reaching the subjective satis faction to take the decision of directing the detention of the detenu.
As rightly pointed out by Mr. Jain, had these extraneous materials not been placed before the detaining authority, he might or might not have passed this order.
Therefore, we have to hold that the detention order is suffering from the vice of consideration of extraneous materials vitiating the validity of the order.
There are several pronouncements of this Court, on this point, of which we will make mention of to the following decisions: Ram Krishna Paul vs The Government of West Bengal & Ors., ; Smt.
Pushpa vs Union of India & Others, [1980] Supp.
SCC 39 1; Merugu Satyanarayana vs State of Andhra Pradesh & Ors., 1 and Mehboob Khan Nawab Khan Pathan vs Police Commissioner, Ahmedabad and Another, Mr. Dalveer Bhandari relying on Section 5A of the Act urged that the order of detention should not be deemed to be invalid or inoperative merely on the ground that some extra neous materials were placed before the detaining authority since those alleged extraneous materials have no bearing on the validity of this impugned order which can be sustained on the material set out in the Grounds of detention itself.
Placing reliance on decision of this Court in Prakash Chan dra Mehta vs Commissioner and Secretary, Govt.
of Kerala and Others, [1985] Supp.
SCC 144 wherein it has been observed that the 'grounds ' under Article 22(5) of the Constitution do not mean mere factual 218 inferences but mean factual inferences plus factual material submitted that in the present case the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order.
We are unable to see any force in the above submis sion.
What Section 5A provides is that where there are two or more grounds covering various activities of the detenu, each activity is a separate ground by itself and if one of the grounds is vague, nonexistent, not relevant, not con nected or not proximately connected with such person or invalid for any other reason whatsoever, then that will not vitiate the order of detention.
It is not the case that this impugned order has been made on the two or more grounds covering various activities of the detenu, but on the other hand the order has been passed on the sole ground relatable to a single incident.
The conclusion arrived at by us is only on the basis that the aforesaid extraneous materials, placed before the de taining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of the detention order has become invalid or inoper ative for the reasons mentioned in Section 5(A)(a).
The next submission made by Mr. Jain on behalf of the detenu is on the basis of Ground Nos.
VII & VIII of the Special Leave Petition in which the appellant has expressed his grievance that he had been deprived of making an effec tive and purposeful representation as envisaged under Arti cle 22(5) of the Constitution of India since no particulars or details are given in documents I & H enclosed with the grounds of detention in regard to the alleged 'many cases/offences ' said to have been registered in various police stations against him and in regard to the allegations that he was a hardened criminal and had a gang often commit ting heinous crimes and that it had become the habit of the detenu to commit offences.
In support of this contention reference was made to the decision in Mehboob Khan Nawab Khan Pathan 's case (ibid).
No denial is made in the counter filed on behalf of the first respondent.
This latter submis sion, in our opinion, cannot be rejected as having no force.
In the result, we without going into the merits of the other contentions allow this appeal, quash the detention order and direct the detenu to be set at liberty forthwith.
219 ORDER The Writ Petition is connected with the Criminal Appeal No. 219 of 1990 arising out of SLP (Crl.) No. 2473/89.
The detention order under challenge in both the proceedings is the one passed by the District Magistrate, Allahabad on 31.3.1988 under Section 3(.3) of the .
As we have now set aside the order of detention in the Criminal Appeal, no order is necessary in this Writ Peti tion.
The Writ Petition is disposed of accordingly.
T.N.A. Appeal allowed and Petition disposed of.

summary:
The petitioner was detained under section 3(3) of the , under an order passed by the detaining authority after consideration of the documents placed before it by the sponsoring authority alleging that the detenu was a hardened criminal and habitual offender against whom many cases were registered.
The documents placed before the detaining authority were also served on the detenu along with the ground of detention.
The appellant filed a writ of Habeas Corpus in the High Court challenging the validity of the detention which was dismissed.
Hence this appeal.
The appellant also filed a writ petition in this Court challenging his detention.
In this appeal it was contended on behalf of the appellant that the detaining authority had acted on irrelevant and extrane ous matters therefore the detention order is liable to be quashed.
On behalf of the respondent it was contended that the order of detention was not invalid merely because some extraneous materials were placed before the detaining au thority since the impugned order could be sustained on the material set out in the grounds of the detention itself.
Allowing the appeal and disposing the Writ Petition, this Court, 213 HELD: 1.
The averments made in the documents, the copies of which are furnished to the detenu along with grounds of detention unequivocally and clearly spell out that the detenu is a hardened criminal, having a gang under his control often committing heinous crimes, that many cases are against the detenu are registered in various police stations and that he is in the habit of committing offences.
These averments which are extraneous touching the character of the detenu though not referred to in the grounds of detention, might have influenced the mind of the detaining authority to some extent one way or other in reaching the subjective satisfaction to take the decision of directing the detention of detenu.
Had these extraneous materials not been placed before the detaining authority, he might or might not have passed this order.
Therefore the detention order is suffer ing from the vice of consideration of extraneous materials vitiating the validity of the order.
detention order is therefore quashed.
[217B E] Ram Krishna Paul vs The Government Of West Bengal & Ors., ; ; Smt.
Pushpa vs Union of India & Ors., [1980] Supp.
SCC 391; Merugu Satyanarayana vs State of A.P. & Ors., ; and Mehboob Khan Nawab Khan Pathan vs Police Commissioner, Ahmedabad & Anr., ; followed.
Section 5A provides that where there are two or more grounds covering various activities of the detenu, each activity is a separate ground by itself and if one of the grounds is vague, non existent, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever, then that will not vitiate the order of detention.
In the instant case the impugned order has not been made on two or more grounds covering various activities of the detenu.
but has been passed on the sole ground relatable to a single incident.
The conclusion ar rived at is only on the basis that the extraneous materials placed before the detaining authority might have influenced the mind of the detaining authority, but not on the ground that one of the grounds of the detention order has become invalid or inoperative for the reasons mentioned in Section 5(A)(a).
Therefore the submission that the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenu from acting in any manner prejudicial to the public order is not correct.
[218B D] Prakash Chandra Mehta vs Commissioner and Secretary Government of Kerala & Ors., [1985] Supp.
SCC 144; distin guished.