judgement:
: Special Leave Petition (Crl.) No. 2856 of 1979.
From the Judgment and Order dated 6 8 1979 of the Madhya Pradesh High Court in Crl.
Revision No. 392/76.
Sobhag Mal Jain and section K. Jain for the Petitioner.
C. section Chhazed, Miss Manisha Gupta and M. section Gupta for Respondents 1 5.
section K. Gambhir for the State.
The Order of the Court was delivered by KRISHNA IYER, J. `It is procedural rules ', as this appeal proves, `which infuse life into substantive rights, which activate them to make them effective '.
Here, before us, is what looks like a pedestrian quasi criminal litigation under section 133 Cr.
P.C., where the Ratlam Municipality the appellant challenges the sense and soundness of the High Court 's affirmation of the trial court 's order directing the construction of drainage facilities and the like, which has spiralled up to this Court.
The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero in on them as they involve problems of access to justice for the people beyond the blinkered rules of `standing ' of British Indian vintage.
If the centre of gravity of justice is to shift, as the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered.
In that sense, the case before us between the Ratlam Municipality and the citizens of 100 a ward, is a path finder in the field of people 's involvement in the justicing process, sans which as Prof. Sikes points out,(1) the system may `crumble under the burden of its own insensitivity '.
The key question we have to answer is whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time bound basis.
At issue is the coming of age of that branch of public law bearing on community actions and the court 's power to force public bodies under public duties to implement specific plans in response to public grievances.
The circumstances of the case are typical and overflow the particular municipality and the solutions to the key questions emerging from the matrix of facts are capable of universal application, especially in the Third World humanscape of silent subjection of groups of people to squalor and of callous public bodies habituated to deleterious inaction.
The Ratlam municipal town, like many Indian urban centres, is populous with human and sub human species, is punctuated with affluence and indigence in contrasting co existence, and keeps public sanitation a low priority item.
what with cesspools and filth menacing public health.
Ward No. 12, New Road, Ratlam town is an area where prosperity and poverty live as strange bedfellows.
The rich have bungalows and toilets, the poor live on pavements and litter the street with human excreta because they use roadsides as latrines in the absence of public facilities.
And the city fathers being too busy with other issues to bother about the human condition, cesspools and stinks, dirtied the place beyond endurance which made the well to do citizens protest, but the crying demand for basic sanitation and public drains fell on deaf ears.
Another contributory cause to the insufferable situation was the discharge from the Alcohol Plant of malodorous fluids into the public street.
In this lawless locale, mosquitoes found a stagnant stream of stench so hospitable to breeding and flourishing, with no municipal agent disturbing their stinging music at human expense.
The local denizens, driven by desperation, at long last, decided to use the law and call the bluff of the municipal body 's bovine indifference to its basic obligations under section 123 of the M. P. Municipalities Act, 1961 (the Act, for short).
That provision casts a mandate: 123.
Duties of Council. (1) In addition to the duties imposed upon it by or under this Act or any other enactment for the time being in force, it shall be the duty of a Council to 101 undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality, namely: XX XX XX (b) cleansing public streets, places and sewers, and all places, not being private property, which are open to the enjoyment of the public whether such places are vested in the Council or not; removing noxious vegetation, and abating all public nuisances: (c) disposing of night soil and rubbish and preparation of compost manure from night soil and rubbish.
And yet the municipality was obvious to this obligation towards human well being and was directly guilty of breach of duty and public nuisance and active neglect.
The Sub Divisional Magistrate, Ratlam, was moved to take action under section 133 Cr.
P.C., to abate the nuisance by ordering the municipality to construct drain pipes with flow of water to wash the filth and stop the stench.
The Magistrate found the facts proved, made the direction sought and scared by the prospect of prosecution under section 188 I.P.C., for violation of the order under section 133 Cr.
P.C., the municipality rushed from court to court till, at last, years after, it reached this Court as the last refuge of lost causes.
Had the municipal council and its executive officers spent half this litigative zeal on cleaning up the street and constructing the drains by rousing the people 's sramdan resources and laying out the city 's limited financial resources, the people 's needs might have been largely met long ago.
But litigation with other 's funds is an intoxicant, while public service for common benefit is an inspiration; and, in a competition between the two, the former overpowers the latter.
Not where a militant people 's will takes over people 's welfare institutions, energises the common human numbers, canalises their community consciousness, forbids the offending factories from polluting the environment, forces the affluent to contribute wealth and the indigent their work and thus transforms the area into a healthy locality vibrant with popular participation and vigilance, not neglected ghettoes noisy with squabbles among the slimy slum dwellers nor with electoral 'sound and fury signifying nothing. ' The Magistrate, whose activist application of section 133 Cr.P.C., for the larger purpose of making the Ratlam municipal body to do its duty and abate the nuisance by affirmative action, has our appreciation.
He has summed up the concrete facts which may be usefully quoted in portions: "New Road, Ratlam, is a very important road and so many prosperous and educated persons are living on this Road.
On 102 the southern side of this Road some houses are situated and behind these houses and attached to the College boundary, the Municipality has constructed a road and this new Road touches the Government College and its boundary.
Just in between the said area a dirty Nala is flowing which is just in the middle of the main road i.e. New Road.
In this stream (nala) many a time dirty and filthy water of Alcohol Plant having chemical and obnoxious smell, is also released for which the people of that locality and general public have to face most obnoxious smell.
This Nala also produces filth which causes a bulk of mosquitoes breeding.
On this very southern side of the said road a few days back municipality has also constructed a drain but it has (?) constructed it completely but left the construction in between and in some of the parts the drain has not at all been constructed because of this the dirty water of half constructed drain and septic tank is flowing on the open land of applicants, where due to insanitation and due to non removing the obstructed earth the water is accumulated in the pits and it also creates dirt and bad smell and produces mosquitoes in large quantities.
This water also goes to nearby houses and causes harm to them.
For this very reason the applicants and the other people of that locality are unable to live and take rest in their respective houses.
This is also injurious to health".
There are more dimensions to the environmental pollution which the magistrate points out: "A large area of this locality is having slums where no facility of lavatories is supplied by the municipality.
Many such people live in these slums who relieve their lateral dirt on the bank of drain or on the adjacent land.
This way an open latrine is created by these people.
This creates heavy dirt and mosquitoes.
The drains constructed in other part of this Mohalla are also not proper it does not flow the water properly and it creates the water obnoxious.
The Malaria Department of the State of M.P. also pays no attention in this direction.
The non applicants have not managed the drains, Nallahs and Naliyan properly and due to incomplete construction the non applicants have left no outlet for the rainy water.
Owing to above reasons the water is accumulated on the main road, it passes through living houses, sometimes snakes and scorpions come out and this obstruct the people to pass through this road.
This also causes financial loss to the people of this area.
The road constructed by Nagarpalika is on a high level and due to this, this year more 103 water entered the houses of this locality and it caused this year more harm and loss to the houses also.
This way all works done by the non applicants i.e. construction of drain, canal and road come within the purview of public nuisance.
The non applicants have given no response to the difficulties of the applicants, and non applicants are careless in their duties towards the public, for which without any reason the applicants are facing the intolerable nuisance.
In this relation the people of this locality submitted their returns, notices and given their personal appearance also to the non applicants but the non applicants are shirking from their responsibilities and try to avoid their duty by showing other one responsible for the same, whereas all the non applicants are responsible for the public nuisance.
" Litigation is traumatic and so the local people asked first for municipal remedies failing which they moved for magisterial remedies: "At the last the applicants requested to remove all the nuisance stated in their main application and they also requested that under mentioned works must be done by the non applicants and for which suitable orders may be issued forthwith: 1.
The drains constructed by Municipality are mismanaged and incomplete, they should be managed and be completed and flow of water in the drains should be made so that the water may pass through the drain without obstruction.
The big pits and earthen drains which are situated near the College boundary and on the corners of the road where dirty water usually accumulates, they should be closed and the filth shall be removed therefrom.
The big 'Nala ' which is in between the road, should be managed and covered in this way that it must not create overflow in the rainy season.
The Malaria Department should be ordered to sprinkle D.D.T. and act in such a manner and use such means so that the mosquitoes may be eradicated completely from the said locality." The proceedings show the justness of the grievances and the indifference of the local body: "Both the parties heard.
The court was satisfied on the facts contained in their application dated 12 5 72 and granted conditional order against non applicants No. 1 and 2 u/s 133 of Cr.
P.C. (Old Code).
In this order all the nuisances were described (which were there in their main application) and the court directed to remove 104 all the nuisances within 15 days and if the non applicants have any objection or dissatisfaction against the order then they must file it on the next date of hearing in the court." XX XX XX "The applicants got examined the following witnesses in their evidence and after producing following documents they closed their evidence." XX XX XX "No evidence has been produced by the non applicants in spite of giving them so many opportunities.
Both the parties heard and I have also inspected the site." XX XX XX "The non applicant (Municipal Council) has sought six times to produce evidence but all in vain.
Likewise non applicant (Town Improvement Trust) has also produced no evidence.
" The Nallah comes into picture after the construction of road and bridge.
It has shown that Nallah is property of Nagarpalika according to Ex.p. 10.
Many applications were submitted to remove the nuisance but without result.
According to Sec.
32 to 43 of the Town Improvement Trust Act, it is shown, that it has only the provisions to make plans.
Many a time people tried to attract the attention of Municipal Council and the Town Improvement Trust but the non applicants always tried to throw the responsibility on one another shoulder.
XX XX XX It is submitted by non applicant (Municipality) that the said Nallah belongs to whom, it is still disputed i.e. whether it belongs to non applicant 1 or 2.
Shastri Colony is within the area of Town Improvement Trust.
The Nagarpalika (non applicant No. 1) is financially very weak.
But Municipal Council is not careless towards its duties.
Non applicant (Town Improvement Trust) argued that primary responsibility lies with the Municipal Council only.
There is no drainage system.
At the end of it all, the Court recorded: . . . after considering all the facts I come to this conclusion that the said dirty Nallah is in between the main road of Ratlam City.
This dirty Nallah affects the Mohalla of New 105 Road, Shastri Colony, Volga Talkies and it is just in the heart of the city.
This is the very important road and is between the Railway Station and the main city.
In these mohallas, cultured and educated people are living.
The Nallah which flows in between the New Road and Shastri Colony the water is not flowing rapidly and on many places there are deep pits in which the dirty water is accumulated.
The Nallah is also not straight that is also the reason of accumulation of dirty water.
The Nallah is not managed properly by the non applicants.
It is unable to gush the rainy water and due to this the adjoining areas always suffer from over flowing of the water and it causes the obstruction to the pedestrians.
XX XX XX It is also proved by the evidence given by the applicants that from time to time the Power Alcohol factory which is situated outside the premises of the Municipal Council and it flows its dirty and filthy water into the said Nallah, due to this also the obnoxious smell is spreading throughout the New Road or so it is the bounden duty of the Municipal Council and the Town Improvement Trust to do the needful in this respect.
XX XX XX The dirty water which flows from the lavatories and urinals of the residential houses have no outlet and due to this reason there are many pits on the southern side of the New Road and all the pits are full of dirty and stinking water.
So it is quite necessary to construct an outlet for the dirty water in the said locality.
In this area many a places have no drainage system and if there is any drain it has no proper flow and water never passes through the drain properly.
That causes the accumulation of water and by the time it becomes dirty and stink and then it produces mosquitoes there.
The Magistrate held in the end: Thus after perusing the evidence I come to this conclusion and after perusing the applications submitted by the persons residing on the New Road area from time to time to draw the attention of the non applicants to remove the nuisance, the non applicants have taken no steps whatsoever to remove all these public nuisances.
He issued the following order which was wrongly found unjustified by the Sessions Court, but rightly upheld by the High Court: 106 Therefore, for the health and convenience of the people residing in that particular area of all the nuisance must be removed and for that the following order is hereby passed: (1) The Town Improvement Trust with the help of Municipal Council must prepare a permanent plan to make the proper flow in the said Nallah which is flowing in between Shastri Colony and New Road.
Both the non applicants must prepare the plan within six months and they must take proper action to give it a concrete form.
(2) According to para 13 a few places are described which are either having the same drains and the other area is having no drain and due to this the water stinks there; so the Municipal Council and the Town Improvement Trust must construct the proper drainage system and within their own premises where there is no drain it must be constructed immediately and all this work should be completed within six months.
(3) The Municipal Council should construct drains from the jail to the bridge behind the southern side of the houses so that the water flowing from the septic tanks and the other water flowing outside the residential houses may be channellised and it may stop stinking and it should have a proper flow so that the water may go easily towards the main Nallah.
All these drains should be constructed completely within six months by the Municipal Council.
(4) The places where the pits are in existence the same should be covered with mud so that the water may not accumulate in those pits and it may not breed mosquitoes.
The Municipal Council must complete this work within two months.
A notice under Section 141 of the Criminal Procedure Code (Old Code) may be issued to the non applicants Nos. 1 and 2 so that all the works may be carried out within the stipulated period.
Case is hereby finalised.
Now that we have a hang of the case we may discuss the merits, legal and factual.
If the factual findings are good and we do not re evaluate them in the Supreme Court except in exceptional cases one wonders whether our municipal bodies are functional irrelevances, banes rather than booms and 'lawless ' by long neglect, not leaders of the people in local self government.
It may be a cynical obiter of pervasive veracity that municipal bodies minus the people and plus the bureaucrats are the bathetic vogue no better than when the British were here: 107 We proceed on the footing, as we indicated even when leave to appeal was sought, that the malignant facts of municipal callousness to public health and sanitation, held proved by the Magistrate, are true.
What are the legal pleas to absolve the municipality from the court 's directive under section 133 Cr.
P.C. ? That provision reads: section 133(1) whenever a District Magistrate or a Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; XX XX XX such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation or owning or possessing such animal or tree, within a time to be fixed in the order (i) to remove such obstruction or nuisance; or XX XX XX (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided.
why the order should not be made absolute.
So the guns of section 133 go into action wherever there is public nuisance.
The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here.
"All power is a trust that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist.
"(i) Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise.
If the order is defied or ignored, section 188 I.P.C. comes into penal play: 108 188.
Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to obtain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction and if such disobedience causes or tends to cause danger to human life health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
There is no difficulty in locating who has the obligation to abate the public nuisance caused by absence of primary sanitary facilities.
Section 123, which is mandatory, (we repeat), reads: 123.
Duties of Council : (1) In addition to the duties imposed upon it by or under this Act or any other enactment for the time being in force, it shall be the duty of a Council to undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality, namely: (a). . . (b) cleansing public streets, places and sewers, and all places not being private property, which are open to the enjoyment of the public whether such places are vested in the Council or not; removing noxious vegetation, and abating all public nuisances; (c) disposing of night soil and rubbish and preparation of compost manure from night soil and rubbish.
The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility.
Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under section 123 of the Act.
This 'alibi ' made us issue notice to the State which is now represented by counsel, Shri Gambhir, before us.
The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis.
The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision.
Likewise, section 123 of the Act has no saving clause when the municipal council is penniless.
Otherwise, a profligate 109 statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self defence a self created bankruptcy or perverted expenditure budget.
That cannot be.
Section 133 Cr.
P.C. is categoric, although reads discretionary.
Judicial discretion when facts for its exercise are present, has a mandatory import.
Therefore, when the sub Divisional Magistrate, Ratlam, has, before him, information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public, he shall act.
Thus, his judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the jurisdictional facts.
The Magistrate 's responsibility under section 133 Cr.
P.C. is to order removal of such nuisance within a time to be fixed in the order.
This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding.
Failure to comply with the direction will be visited with a punishment contemplated by section 188 I.P.C. Therefore, the Municipal Commissioner or other executive authority bound by the order under section 133 Cr.
P.C. shall obey the direction because disobedience, if it causes obstruction or annoyance or injury to any persons lawfully pursuing their employment, shall be punished with simple imprisonment or fine as prescribed in the Section.
The offence is aggravated if the disobedience tends to cause danger to human health or safety.
The imperative tone of section 133 Cr.
P.C. read with the punitive temper of section 188 I.P.C. make the prohibitory act a mandatory duty.
Although these two Codes are of ancient vintage, the new social justice orientation imparted to them by the Constitution of India makes it a remedial weapon of versatile use.
Social justice is due to the people and, therefore, the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like a Magistrate under section 133 Cr.
In the exercise of such power, the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligated by article 38 of the Constitution.
This brings Indian public law, in its processual branch, in line with the statement of Prof. Kojima :(1) "the urgent need is to focus on the ordinary man one might say the little man. " "Access to Justice" by Cappelletti and B. Garth summarises the new change thus:(2) 110 "The recognition of this urgent need reflects a fundamental change in the concept of "procedural justice".
The new attitude to procedural justice reflects what Professor Adolf Homburger has called "a radical change in the hierarchy of values served by civil procedure"; the paramount concern is increasingly with "social justice," i.e., with finding procedures which are conducive to the pursuit and protection of the rights of ordinary people.
While the implications of this change are dramatic for instance, insofar as the role of the adjudicator is concerned it is worth emphasizing at the outset that the core values of the more traditional procedural justice must be retained.
"Access to justice" must encompass both forms of procedural justice." Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law.
Likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under Nature 's pressure, bashfulness becomes a luxury and dignity a difficult article A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability.
Decency and dignity are non negotiable facets of human rights and are a first charge on local self governing bodies.
Similarly, providing drainage systems not pompous and attractive, but in working condition and sufficient to meet the needs of the people cannot be evaded if the municipality is to justify its existence.
A bare study of the statutory provisions makes this position clear.
In this view, the Magistrate 's approach appears to be impeccable although in places he seems to have been influenced by the fact that "cultured and educated people" live in this area and "New Road, Ratlam" is a very important road and so many prosperous and educated persons are living on this road.
In India 'one man, one value ' is the democracy of remedies and rich or poor the law will call to order where people 's rights are violated.
What should also have been emphasised was the neglect of the Malaria Department of the State of Madhya Pradesh to eliminate mosquitoes, especially with open drains, heaps of dirt, public excretion by humans for want of lavatories and slums nearby, had created an intolerable situation for habitation.
An order to abate the nuisance by taking affirmative action on a time bound basis is justified in the circumstances.
The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only.
111 Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile.
Therefore, the court, armed with the provisions of the two Codes and justified by the obligation under section 123 of the Act, must adventure into positive directions as it has done in the present case.
Section 133 Cr.
P.C. authorises the prescription of a time limit for carrying out the order.
The same provision spells out the power to give specific directives.
We see no reason to disagree with the order of the Magistrate.
The High Court has taken a correct view and followed the observations of this Court in Govind Singh vs Shanti Sarup(1) where it has been observed: "We are of the opinion that in a matter of this nature where what is involved is not merely the right of a private individual but the health, safety and convenience of the public at large, the safer course would be to accept the view of the learned Magistrate, who saw for himself the hazard resulting from the working of the bakery.
" We agree with the High Court in rejecting the plea that the time specified in the order is unworkable.
The learned judges have rightly said.
"It is unfortunate that such contentions are raised in 1979 when these proceedings have been pending since 1972.
If in seven year 's time the Municipal Council intended to remedy such a small matter there would have been no difficulty at all.
Apart from it, so far as the directions are concerned, the learned Magistrate, it appears, was reasonable.
So far as direction No. 1 is concerned, the learned Magistrate only expected the Municipal Council and the Town Improvement Trust to evolve a plan and to start planning about it within six months: the learned Magistrate has rightly not fixed the time limit within which that plan will be completed.
Nothing more reasonable could be said about direction No. 1.
" A strange plea was put forward by the Municipal Council before the High Court which was justly repelled, viz., that the owners of houses had gone to that locality on their own choice with eyes open and, therefore, could not complain if human excreta was flowing, dirt was stinking, mosquitoes were multiplying and health was held hostage.
A public body constituted for the principal statutory duty of ensuring sanitation and health cannot outrage the court by such an ugly plea.
112 Luckily, no such contention was advanced before us.
The request for further time for implementation of the Magistrate 's order was turned down by the High Court since no specific time limit was accepted by the municipality for fulfillment of the directions.
A doleful statement about the financial difficulties of the municipality and the assurance that construction of drains would be taken up as soon as possible had no meaning.
The High Court observed: "Such assurances, it appears, are of no avail as unfortunately these proceedings for petty little things like clearing of dirty water, closing the pits and repairing of drains have taken more than seven years and if these seven years are not sufficient to do the needful, one could understand that by granting some more time it could not be done." The High Court was also right in rejecting the Additional Sessions Judge 's recommendation to quash the Magistrate 's order on the impression that section 133 Cr.
P.C. did not provide for enforcement of civic rights.
Wherever there is a public nuisance, the presence of section 133 Cr.
P.C. must be felt and any contrary opinion is contrary to the law.
In short, we have no hesitation in upholding the High Court 's view of the law and affirmation of the Magistrate 's order.
Before us the major endeavour of the municipal council was to persuade us to be pragmatic and not to force impracticable orders on it since it had no wherewithal to execute the order.
Of course, we agree that law is realistic and not idealistic and what cannot be performed under given circumstances cannot be prescribed as a norm to be carried out.
From that angle it may well be that while upholding the order of the Magistrate, we may be inclined to tailor the direction to make it workable.
But first things first and we cannot consent to a value judgment where people 's health is a low priority.
Nevertheless, we are willing to revise the order into a workable formula the implementation of which would be watch dogged by the court.
Three proposals have been put forward before us in regard to the estimated cost of the scheme as directed by the Magistrate.
The Magistrate had not adverted to the actual cost of the scheme nor the reasonable time that would be taken to execute it.
As stated earlier it is necessary to ascertain how far the scheme is feasible and how heavy the cost is likely to be.
The Court must go further to frame a scheme and then fix time limits and even oversee the actual execution of the scheme in compliance with the court 's order.
Three schemes placed before us, together with tentative estimates of the costs, have been looked into by us.
Judges are laymen and cannot put on expert airs.
That was why we allowed the municipality 113 and the respondents to produce before us schemes prepared by expert engineers so that we may modify the directions issued by the Magistrate suitably.
Scheme 'A ' is stated to cost an estimated amount of Rs. 1.016 crores.
The State Government has revised this proposal and brought down the cost.
In our view, what is important is to see that the worst aspects of the insanitary conditions are eliminated, not that a showy scheme beyond the means of the municipality must be undertaken and half done.
From that angle we approve scheme 'C ' which costs only around Rs. 6 lakhs.
We fix a time limit of one year for completing execution of the work according to that scheme.
We further direct that the work shall be begun within two months from to day and the Magistrate shall inspect the progress of the work every three months broadly to be satisfied that the order is being implemented bona fide.
Breaches will be visited with the penalty of section 188 I.P.C. We make the further supplementary directions which we specifically enjoin upon the municipal authority and the State Government to carry out.
We direct the Ratlam Municipal Council (R1) to take immediate action, within its statutory powers, to stop the effluents from the Alcohol Plant flowing into the street.
The State Government also shall take action to stop the pollution.
The Sub Divisional Magistrate will also use his power under section 133 I.P.C., to abate the nuisance so caused.
Industries cannot make profit at the expense of public health.
Why has the Magistrate not pursued this aspect ? 2.
The Municipal Council shall, within six months from to day, construct a sufficient number of public latrines for use by men and women separately, provide water supply and scavenging service morning and evening so as to ensure sanitation.
The Health Officer of the Municipality will furnish a report, at the end of the six monthly term, that the work has been completed.
We need hardly say that the local people will be trained in using and keeping these toilets in clean condition.
Conscious cooperation of the consumers is too important to be neglected by representative bodies.
The State Government will give special instructions to the Malaria Eradication Wing to stop mosquito breeding in Ward 12.
The Sub Divisional Magistrate will issue directions to the officer concerned to file a report before him to the effect that the work has been done in reasonable time.
The municipality will not merely construct the drains but also fill up cesspools and other pits of filth and use its sanitary 114 staff to keep the place free from accumulations of filth.
After all, what it lays out on prophylactic sanitation is a gain on its hospital budget.
We have no hesitation in holding that if these directions are not complied with the Sub Divisional Magistrate will prosecute the officers responsible.
Indeed, this court will also consider action to punish for contempt in case of report by the Sub Divisional Magistrate of willful breach by any officer.
We are sure that the State Government will make available by way of loans or grants sufficient financial aid to the Ratlam Municipality to enable it to fulfil its obligations under this order.
The State will realise that article 47 makes it a paramount principle of governance that steps are taken 'for the improvement of public health as amongst its primary duties '.
The municipality also will slim its budget on low priority items and elitist projects to use the savings on sanitation and public health.
It is not our intention that the ward which has woken up to its rights alone need be afforded these elementary facilities.
We expect all the wards to be benefited without litigation.
The pressure of the judicial process, expensive and dilatory, is neither necessary nor desirable if responsible bodies are responsive to duties.
Cappelletti holds good for India when he observes :(1) "Our judicial system has been aptly described as follows: Admirable though it may be, (it) is at once slow and costly.
It is a finished product of great beauty, but entails an immense sacrifice of time, money and talent.
This "beautiful" system is frequently a luxury; it tends to give a high quality of justice only when, for one reason or another, parties can surmount the substantial barriers which it erects to most people and to many types of claims.
" Why drive common people to public interest action ? Where Directive Principles have found statutory expression in Do 's and Dont 's the court will not sit idly by and allow municipal government to become a statutory mockery.
The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice.
The dynamics of the judicial process has a new 'enforcement ' dimension not merely through some of the provisions of the Criminal Procedure Code (as here), but also through activated tort consciousness.
The officers in charge and even the elected representatives will have 115 to face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully.
The wages of violation is punishment, corporate and personal.
We dismiss this petition subject to the earlier mentioned modifications.
N.V.K. Petition dismissed.

dataset_name: IN-Abs

summary:
The residents (respondents) of a prominent residential locality of the Municipality (petitioner) in their complaint under section 133 Criminal Procedure Code to the Sub Divisional Magistrate averred that the Municipality had failed despite several pleas, to meet its basic obligations, like provision of sanitary facilities on the roads, public conveniences for slum dwellers who were using the road for that purpose, and prevention of the discharge from the nearby Alcohol Plant of maladorous fluids into the public street, and that the Municipality was oblivious to the statutory obligation envisaged in section 123 M. P. Municipalities Act, 1961 The Municipal Council contested the petition on the ground that the owners of houses had gone to that locality on their own choice, fully aware of the insanitary conditions and therefore they could not complain.
It also pleaded financial difficulties in the construction of drains and provision of amenities.
The Magistrate found the facts proved, and ordered the municipality to provide the amenities and to abate the nuisance by constructing drain pipes with flow of water to wash the filth and stop the stench and that failure would entail prosecution under section 188 I.P.C.
The order of the Magistrate was found unjustified by the Sessions Court, but upheld by the High Court.
In the Special Leave Petition by the Municipality to this Court on the question whether a Court can by affirmative action compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time bound basis.
^ HELD : 1.
Wherever there is a public nuisance, the presence of section 133 Criminal Procedure Code must be felt and any contrary opinion is contrary to the law.
[112D] 2.
The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance and so he shall exercise, it when the jurisdictional facts are present.
[107G] 98 3.
The Magistrate 's responsibility under section 133 Cr.
P.C. is to order removal of such nuisance within a time to be fixed in the order.
This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding.
Failure to comply with the direction will be visited with a punishment contemplated by section 188 I.P.C. [109C D] 4.
The Municipal Commissioner or other executive authority bound by the order under section 133 Criminal Procedure Code shall obey the direction because disobedience, if causes obstruction or annoyance or injury to any persons lawfully pursuing their employment, shall be punished with simple imprisonment or fine as prescribed in the section.
The offence is aggravated if the disobedience tends to cause danger to human health or safety.
[109E] 5.
Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law.
[110C] 6.
The imperative tone of section 133 Criminal Procedure Code read with the punitive temper of section 188 I.P.C. make the prohibitory act a mandatory duty.
[109E] 7.
The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision.
[108H] 8.
Section 123 M. P. Municipalities Act 1961 has no saving clause when the municipal council is penniless.
[108H] 9.
Although the Cr.
P.C. and I.P.C. are of ancient vintage the new social justice orientation imparted to them by the Constitution of India makes them a remedial weapon of versatile use.
Social Justice is due to the people and, therefore, the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like a Magistrate under section 133 Criminal Procedure Code.
In the exercise of such power, the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligated by article 38 of the Constitution.
[109F G] 10.
A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability.
Decency and dignity are non negotiable facets of human rights and are a first charge on local self governing bodies.
Similarly, providing drainage systems not pompous and attractive, but in working condition and sufficient to meet the needs of the people cannot be evaded if the municipality is to justify its existence.
[110E] 11.
The Court, armed with the provisions of the two Codes and justified by the obligation under section 123 of the Act, must adventure into positive directions as it has done in the present case.
Section 133 Criminal Procedure Code authorises the prescription of a time limit for carrying out the order.
The same provision spells out the power to give specific directives.
[111A B] Govind Singh vs Shanti Sarup, ; , 279 referred to.
The state will realise that article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties.
The municipality also will slim its budget on 99 low priority items and elitist projects to use the savings on sanitation and public health.
[114C] 13.
Where Directive Principles have found statutory expression in Do 's and Don 'ts the court will not sit idly by and allow municipal government to become a statutory mockery.
The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice.
The dynamics of the judicial process have a new `enforcement ' dimension not merely through some of the provisions of the Criminal Procedure Code (as here) but also through activated tort consciousness.
The officers in charge and even the elected representatives will have to face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully.
The wages of violation is punishment, corporate and personal.
[114G 115A] [The Court approved a scheme of construction work to be undertaken by the Municipality for the elimination of the insanitary conditions and directed that the work be commenced within two months and that the Magistrate inspect the progress of the work every three months and see that it is implemented.
[113 D 114 B]


judgement:
Civil Appeal Nos.
3520 3524 of 1979.
(Appeals by Special Leave from the Judgment and Order dated 11 9 1979 of the Kerala High Court in Writ Appeals Nos.
241, 242/77 and Original Petition Nos.
1791, 1836 & 1892/79.) 130 P. Govindan Nair.
Mrs. Baby Krishnan and N. Sudhakaran for the Appellants.
M. M. Abdul Khader, V. J. Francis and Sushil Kumar for the Respondents.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Civil Appeal Nos.
3520 to 3524 of 1979 which are directed against a common judgment dated 11 9 1979 of a Division Bench of the High Court of Kerala holding that in the Department of Education of the State of Kerala the post of Assistant Educational officer (hereinafter described as A.E.O.) is not a promotion post vis a vis that of a High School Assistant (hereinafter referred to as H.S.A.), that the two posts are interchangeable and that consequently the reversion of the solitary appellant in each case from the post of A.E.O. to that of H.S.A. is not violative of article 16 of the Constitution.
It is not disputed before us that each of the appellants had been holding the post of A.E.O. for more than six years continuously when his reversion was ordered in implementation of the instructions issued by the State Government through a letter dated the 19th May, 1977 to the effect that every A.E.O. should be transferred back as H.S.A after six years of service as A.E.O. or even earlier on administrative grounds.
Each reversion was challenged before the Kerala High Court by means of a petition under article 226 of the Constitution of India with the prayer that the same be quashed.
Two of the petitions were dismissed by a learned single Judge whose orders were challenged in letters Patent appeals which were heard and dismissed by the impugned judgment along with the other three petitions.
The five appeals have been admitted in pursuance of special leave granted by this Court.
On behalf of the appellants two contentions have been raised: (a) The post of A.E.O. lies in a category and carries a grade higher than those of the post of H.S.A. is, therefore, a post of promotion vis a vis the other so that the two cannot be considered as inter changeable especially because there is no rule, direction or instruction laying down expressly or by necessary implication that they are equivalent to each other.
(b) Even if the appointment of an H.S.A. as an A.E.O. cannot be regarded as a promotion, the impugned reversions are violative of article 14 as no guidelines to regulate them have been provided inspite of the fact that the post of an A.E.O. carries a special pay which is not available to an H.S.A. 131 After hearing learned counsel for the parties at length we find both these contentions to be weighty.
Promotion is thus defined in clause (11) of rule 2 of the Kerala State and Subordinate Services Rules, 1958: "(11) 'Promotion ' means the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class.
" This definition fully conforms to the meaning of 'promotion ' as understood in ordinary parlance and also as a term frequently used in cases involving service laws.
According to it a person already holding a post would have a promotion if he is appointed to another post which satisfies either of the following two conditions, namely (i) that the new post is in a higher category of the same service or class of service; (ii) the new post carries a higher grade in the same service or class.
It is common ground between the parties that in the instant case the two posts belong to the same service or class of service.
Applying the above test, therefore, to them it would follow that the appointment of an H.S.A. to the post of an A.E.O. would be a promotion if, and only if (a) the post of an A.E.O. is of a higher category than that of an H.S.A. or (b) the post of an A.E.O. carries a higher grade than that of an H.S.A. In case of either of these conditions being fulfilled, the appointment of an H.S.A. to the post of an A.E.O. would be a promotion within the meaning of the clause above reproduced.
For ascertaining whether or not the post of A.E.O. lies in a category higher than that of an H.S.A. a reference may be made to clauses (5) and (7a) of rule 2 of the Kerala Education Rules, 1959 and section 12A of the Kerala Education Act, 1958.
Rule 2(5) defines Educational officer as meaning the District Educational officer or the Assistant Educational officer having immediate inspectional and administrative control over the schools within his respective jurisdiction, while rule 2(7a) states that the term 'Teacher ' includes the Headmaster.
Sub sections (1) & (2) of section 12A run thus: 132 "(1) Notwithstanding anything contained in section 11 or section 12 and subject to such rules as may be prescribed, the Government or such officer not below the rank of an Educational officer, as may be authorised by the Government in this behalf, shall have power to take disciplinary proceedings against a teacher of an aided school and to impose upon him all or any of the penalties specified in the rules under this Act. "(2) The Government or the officer authorised under sub section (1) as the case may be, may suspend a teacher of an aided school when any disciplinary proceedings are proposed to be taken against him under that sub section or when such disciplinary proceedings are pending: . .".
The combined effect of these provisions is that if so authorised by the Government an A.E.O. shall have the power to take disciplinary proceedings against a teacher, including a Headmaster, of an aided school, to suspend him when such proceedings are proposed to be taken and to impose upon him all or any of the penalties to which he may be liable under the relevant rules.
The Education Department Guide Book, 1978 issued by the State Government contains a detailed description of the powers and duties assigned to various officials of the Department.
The list of functions to be performed by the A.E.Os.
contains 40 items of which item 4 reads: "To institute disciplinary proceedings against non gazetted officers under his control as per Kerala Civil Services (C. C. and A.) Rules.
" Now H.S.As. are admittedly non gazetted officers who are eligible for appointment and are normally appointed as Headmasters of Upper Primary schools (vide paragraph 1(a)(i) of G.O.(Ms) No. 32/71/S. Edn., dated 19 3 1971).
They would thus while functioning as Headmasters, be amenable to disciplinary action by their respective A.E.Os.
It follows that the post of the A.E.O. lies in a higher category than that of the H.S.A. who does not wield any corresponding disciplinary jurisdiction.
The qualifications for the two posts may now be looked into.
A.E.Os. are appointed from amongst first grade graduate teachers having the following qualifications (vide No. G.O.M.S. 393/Edn., dated 25 7 1966): (a) General: B.A. or B.Sc.
133 (b) Special: (i) B.T. or B.Ed.
of a recognised University.
(ii) Account Test Lower.
(iii) Kerala Education and rules.
Rule 3 of the Kerala Education Subordinate Service (Special) Rules framed in 1972 runs thus: "3.
No High School Assistant shall be considered for being selected for posting as an Assistant Educational officer unless he has passed the test in Kerala Education Act and Rules.
" This rule seriously militates against the proposition propounded on behalf of the State that the two posts are inter changeable.
An H.S.A. cannot be posted as an A.E.O. unless he has the qualification (in addition to those making him eligible to hold the post of H.S.A.) of having passed the test in Kerala Education Act and Rules.
The reason for the additional qualification is obvious and that is that in his supervisory and disciplinary jurisdiction the A.E.O. has to discharge functions which he cannot efficiently carry out if he is not a master of the law which calls for day to day application by him to different cases with which he has to deal.
This is another factor pointing in the same direction that the post of an A.E.O. lies in a higher category.
An additional circumstance leading to the same inference is provided by the broad guidelines issued by the State Government to the effect that "care must be taken to see that only officers of high integrity and efficiency should be posted to work as Assistant Educational officers" (vide judgment dated 11th January, 1977 of the High Court of Kerala in O.P. No. 3627 of 1974).
H.S.As, are, therefore, appointed to the posts of A.E.Os.
not as a matter of course but under a process of selection for which the basic is integrity cum efficiency.
Further evidence in the same direction is provided by three documents forming part of the paper book at pages 31 38 and market as annexures 'C ', 'D ' and 'E ' respectively.
Annexure 'C ' is an order dated 29th August 1961 issued by the State Government, a part of paragraph 3 of which reads thus: "Criteria for promotion: "(1) Appointment to the posts of District Educational officers, Headmasters of High Schools, High School Assistants and Assistant Educational officers are now made mainly on the basis of seniority.
Promotion on the basis of seniority alone is not conducive to efficiency.
Promotions to these posts will hereafter be made on a selection basis.
134 "(2) The above orders will be given effect from the 1st September 1961. " Annexure 'D ' is a letter dated 17th February 1969 from the Director of Public Instructions to the District Educational officer, Trivandrum and states, inter alia,: "The question of probation arises only when there are functional differences.
So in the case of Assistant Educational officers probation has to be insisted on.
" The last of the three documents is an order dated 19th October 1974 issued by the State Government introducing direct recruitment to the posts of A.E.Os.
and District Educational officers.
It contains, amongst others, the following directions: "The persons selected will be required to undergo/pass the following training programme/departmental tests: "Assistant Educational officers, "Training: One year as Headmaster of an Upper Primary School.
Six months with Assistant Educational officer of which the last three months shall be as Head Clerk of the Assistant Educational officer 's office.
Six months in the District Educational officer 's office of which the last three months will be as Junior Superintendent in charge of one of the sections.
Two months OM(?) training in the Directorate or Secretariat Training School.
Four months as personal assistant to Educational officer.
"Departmental Tests: 1.
Account test (Lower).
Test in Kerala Education Act and Rules.
Test in Manual of office Procedure.
" The integrated effect of these three documents is that the functions to be performed by an A.E.O. are substantially different from and entail higher responsibility than those of an H.S.A., that the appointment to the post of an A.E.O. from amongst officials already serving the State Government is a matter of promotion and not a mere transfer, and that that is how the Kerala Government itself has been viewing the matter all along prior to the issuance of the letter dated 19th May, 1977 mentioned above.
135 8.
Here we may briefly advert to the constitution of the Kerala General Education Service as detailed in G.O. (P) No. 356/PD, dated 28th October, 1967 and published in Kerala Gazette No. 46, dated 21st November 1967.
That Service is divided into two classes.
The post of the District Educational officer falls in Class I which is superior to Class II.
The posts enumerated in Class II include those of Headmasters of High Schools.
The post of H.S.A. does not find a place in either Class.
On the other hand the H.S.A. belongs to the Kerala Educational Subordinate Services and works under the Headmaster of a High School.
He is, therefore, two steps below the District Educational officers.
Mr. Nair sought to utilise this circumstance as another pointer to the post of H.S.A. lying in a category lower than that of an A.E.O. for, according to him, the latter was only one step below the post of a District Educational officer.
The argument has not commended itself to us as no foundation has been laid for the assumption that the post of an A.E.O. furnishes an immediate avenue of promotion to that of the District Educational officer.
In fact an indication to the contrary is provided by the various categories listed in Classes I and II mentioned above, neither of which includes either H.S.As.
or A.E.Os.
This may well mean that the A.E.O. too is to hold another post (out of those listed for the purpose in the G.O. last mentioned) before he would have a chance of promotion as a District Educational officer.
And if that be so, an A.E.O. must also be regarded as two steps below a District Educational officer.
The G.O. under consideration is, therefore, of no help to the case of the appellant, but then this conclusion does not adversely affect the finding already arrived at by us otherwise to the effect that the post of an A.E.O. lies in a higher category.
The only argument which Mr. Abdul Khader advanced against the proposition that the post of an A.E.O. lay in a higher category may be stated thus.
According to the available rules and instructions an H.S.A., but not an A.E.O., may be appointed to the post of Headmaster of a High School.
However, the Government has been appointing A.E.Os, also as Headmasters of High Schools which means that A.E.Os are equated with H.S.As.
Now this is, to say the least.
a strange argument.
If the rules do not permit A.E.Os.
to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention.
In any case, there is no incongruity in two categories of posts, one higher and the other lower, furnishing two sources of recruitment to another higher post; and it would not necessarily 136 follow from such a practice that the two sources must be regarded as equivalent to each other for all purposes.
Let us now see if the post of an A.E.O. carries a higher grade.
It is common ground between the parties that although the two posts are in the same time scale, a special pay of Rs. 50/ per mensem is attached to post of an A.E.O. in accordance with the orders of the State Government contained in clause (v) of paragraph 5 of G.O. (P) No. 300/66/Fin., dated 5 7 1966 which also states that this special pay is to be treated as Class I special pay in accordance with Appendix IV, Kerala Service Rules.
That Class consists of two items: (a) Special pay in lieu of higher time scale of pay.
(b) Special pay for specifically arduous nature of work.
The expression 'special pay in lieu of higher time scale of pay ' may be better understood with reference to the provisions of rule 12(31) of the Kerala Service Rules which may be extracted here: "12(31) Special Pay: means an addition of the nature of pay to the emoluments of a post or of an officer granted in consideration of the following: "(a) Where a post would call for a higher scale of pay in view of the additional and/or higher responsibilities attached to it: or "(b) Where the nature of work is specially arduous; or "(c) Where an officer has to attend to work in addition to normal duties attached to his post.
" Sub clauses (b) & (c) of clause (31) obviously relate to posts having the same designation or the same nature of duties in the same time scale which is not the case here.
On the other hand, the special pay granted to an A.E.O. would squarely fall within the sub clause (a) of clause (31), in view of the nature of higher responsibilities shouldered by him.
And if that be so, the grade of the post of an A.E.O. must be equated to the time scale plus special pay, which would be a grade higher than the one available to an H.S.A. 11.
In contending to the contrary Mr. Abdul Khader sought support from P. G. Joshi and others, etc.
etc, vs The Director General, Posts and Telegraphs, New Delhi, etc.(1), in which the posts of Wireless Licence Inspectors and Town Inspectors, to such of which a special pay of Rs. 30/ was attached, were held equivalent to those of clerks, the time scale for all the three being the same.
The dictum in that case is, however, not applicable to the facts with which we are concerned.
Therein this Court took note of the definition of special pay occurring in Fundamental 9(25) which states: 137 "Special pay means, an addition of the nature of pay, to the emoluments of a post or of a Government servant, granted in consideration of (a) the specially arduous nature of the duties; or (b) a specific addition to the work or responsibility; or (c) the unhealthiness of the locality in which the work is performed." then proceeded to observe: "The provision for payment of a special pay of Rs. 30/ in addition to the time scale of pay of clerks is inconsistent with the constitution of a separate cadre of Wireless Licence Inspectors and Town Inspectors.
The provision for special pay shows that they continue in the cadre of time scale clerks.
Appointment as Wireless Licence Inspectors or Town Inspectors is not a case of transfer from one cadre to another or a case of promotion from a lower cadre to a higher cadre or from a lower post to a higher post.
Though, for directly recruited Wireless Inspectors, there is an avenue of promotion from those posts to the post of Wireless Investigating Inspectors, no such avenue of promotion has been shown to exist for Wireless Licence Inspectors appointed from amongst time scale clerks.
Their avenues of promotion are from their substantive posts of time scale clerks.
The posts of Wireless Licence Inspectors to which time scale clerks are appointed by selection did not constitute a separate cadre and the appointments are not by way of promotion.
The posts of Wireless Licence Inspectors are in the cadre of time scale clerks and carry a special pay on account of additional work." Special pay of Rs. 30/ in that case, it may thus be seen something quite different from the special pay in the instant case which, as we have already found, was fitted in lieu of a higher scale of pay consistent with the higher responsibilities which are entailed in the performance of his functions by an A.E.O.
All the three clauses of Fundamental Rule 9(25) correspond with the definition of special pay contained in sub clauses (b) & (c) of clause (31) of rule 12 of the Kerala Service Rules and none of them takes within its sweep the type of special pay envisaged by sub clause (a) of rule 12(31).
The case cited is thus fully distinguishable and is of no assistance to the case propounded on behalf of the State Government.
We now take up the second limb of the argument of Mr. Nair, namely, that even if the post of an A.E.O. is not regarded as higher to that of an H.S.A. either category wise or grade wise, the impugned reversions are still hit by article 14 of the Constitution of 138 India.
In this connection two important factors have to be taken note of.
The first is that the post of an A.E.O. carries a special pay of Rs. 50/ per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A.
The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules.
According to rule 12(23) special pay is part of 'pay ' while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23).
The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are available to him after retirement.
The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. and vice versa so that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him.
The direction contained in the letter dated 19 5 1977 that an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle.
It is, therefore, violative of article 14 and we hold it to be so. 13.
In the result all the five appeals succeed and are accepted.
The impugned judgment is set aside and the orders 'transferring ' the appellants from the posts of A.E.Os.
to those of H.S.As. are quashed.
As a necessary consequence if any of the appellants has had to relinquish charge of the post of A.E.O. in compliance with such orders, he shall be deemed to have continued to hold the post of an A.E.O. (in spite of and right from the date of the order of his transfer as H.S.A.) and to be entitled to all the benefits pertaining to that post, and the respondents are directed to repost him as A.E.O. as expeditiously as possible and within a month from the date of this order at the latest.
We make it clear that the vice of arbitrariness and other infirmities we have pointed out are curable if only the State Government amends the rules fairly and rationally.
This judgment does not stand in the way of Government framing new rules or amending the old rules but such rules must be in conformity with Part III of the Constitution.
S.R. Appeals allowed.
Appeal, allowed.

summary:
Each of the appellants had been holding the post of Assistant Educational Officer for more than six years continuously when his reversion was ordered in implementation of the instructions issued by the State Government through a letter dated 19th May, 1977 to the effect that every Assistant Educational Officer should be transferred after six years of service as such or even earlier, on administrative grounds.
Having failed before the High Court to get these orders quashed on the ground that the posts of Assistant Educational Officers, being promotional posts, their transfer to the posts of High School Assistant amounted to reversion and, therefore, violated Articles 14 and 16 of the Constitution, the appellants have now come up in appeal by special leave.
Allowing the appeals, the Court, ^ HELD: (1) The directions contained in the letter dated 19th May, 1977 that an Assistant Educational Officer should be transferred back as a High School Assistant after six years of incumbency as Assistant Educational Officer is wholly arbitrary and not based on any principle and is therefore violative of Article 16 of the Constitution.
Firstly, the post of A.E.O. carries a special pay of Rs. 50/ per month and therefore ensures for its incumbent higher emoluments than are available to a High School Assistant.
Secondly, the special pay is counted towards pension under Rules 12, 23 and 62 of the Kerala Service Rules.
Any transfer of an Assistant Educational Officer to that of High School Assistant deprives him of these benefits and, therefore, is violative of Article 14.
[137H, 138A D] P. C. Joshi and others etc.
etc vs The Director General, Posts and Telegraphs, New Delhi etc., [1975] 2 S.C.R. 115, distinguished.
(2) The very fact that the post of Assistant Educational Officer carries a special pay of Rs. 50/ falling within sub clause (a) of clause 31 of Section 12 of the Kerala Service Rules, goes to prove that the post is higher than that of High School Assistant.
[136B C, 137F G] (3) Rule 2(ii) of the Kerala State and Subordinate Service Rules, 1958, Rule 2(v), Rule 2(vii)(a) of the Kerala Education Rules, 1959 and Section 12A of the Kerala Education Act, 1958 make it clear that if so authorised by the 129 Government an A.E.O. shall have the power to take disciplinary proceedings against a teacher, including a Headmaster, of an aided school, to suspend him when such proceedings are proposed to be taken and to impose upon him all or any of the penalties to which he may be liable under the relevant rules.
Item 4 of the functions to be performed by an Assistant Educational Officer detailed in the Education Department Guide Book, 1978 empowers him to institute disciplinary proceedings against non gazetted officers under his control as per Kerala Civil Services (Qualification, Control and Appeal) Rules, and admittedly High School Assistants are non gazetted officers who are eligible for appointment and are normally appointed as Headmasters of upper primary school and, therefore, they would while functioning as Headmasters be amenable to disciplinary action by their respective Assistant Educational Officers.
It follows that the post of an Assistant Educational Officer lies in a higher category than that of a High School Assistant who does not wield any corresponding disciplinary jurisdiction.
[132C G] The qualifications prescribed by the Government order dated 25th June, 1966 and Rule 3 of the Kerala Education Subordinate Service (Special) Rules, 1972 make it clear that the two posts of Assistant Educational Officer and High School Assistant are not inter changeable.
A High School Assistant cannot be posted as an Assistant Educational Officer unless he has the qualification (in addition to those making him eligible to hold the post of High School Assistant) of having passed the test in Kerala Education Act and Rules.
The broad guidelines issued by the State Government to the effect that "care must be taken to see that only officers of high integrity and efficiency should be posted to work as Assistant Educational Officers", the Government Order of 29th August, 1961, the letter dated 7th February, 1969 issued by the Director of Public Instructions and the Order dated 19th October, 1974 issued by the State Government introducing direct recruitment to the posts of A.E.Os.
and District Educational Officers also specifically indicate that the functions to be performed by an Assistant Educational Officer are substantially different from and entail higher responsibility than those of an H.S.A. so that the appointment to the post of A.E.O. from amongst officials already serving the State Government is a matter of promotion and not a mere transfer and that is how the Kerala Government itself has been viewing the matter all along prior to the issuance of the letter dated 19th May, 1977.
[131G, 133B C, E, F, 134G H] (4) If the rules do not permit Assistant Educational Officers to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention.
There is no incongruity in the two categories of the posts, one higher and the other lower, furnishing two sources of recruitment to another higher post and it would not necessarily follow from such a practice that the two sources must be regarded as equivalent to each other for all purposes.
[135G H, 136A]


judgement:
Review Petition No. 104 of 1980.
Review Petition against the Judgment and order of this Hon 'ble Court dated 7 5 1980 and 9 5 1980 in CMP.
No. 1219/80.
Kapil Sibal and R. section Sodhi for the Petitioner.
169 R.K. Garg and P.C. Bhartari for Respondent No. 3.
The order of the Court was delivered by KRISHNA IYER, J. A simple petition to review an earlier judgment of this bench has, because of the intervening summer vacation, passed through vicissitudes, gathered episodes and been blown up into an exciting chronicle of unsavoury events, injecting more passion than reason, more heat than light, into the forensic proceedings.
We kept completely clear of the unhappy imputations and confined counsel to the merits of the review proceeding before us. 'Justice discards party, friendship, and kindred and is therefore represented as blind '.
This objectivity generated clarity and brevity, thanks, of course, to cooperation by counsel on both sides.
The facts are few although the fight is furious and the parties are army officers.
It is a pity that careerism makes camaraderie a casualty in a profession where self sacrifice for a higher cause is the dedication.
Without moralising, we will state the grievance of the petitioner and examine whether our earlier order deserves reconsideration or reversal.
Judges have a vested interest not in their judgments but in the justice of the cause and where the former is in error must unhesitatingly suffer surgery so that no curial wrong is done and right, to the best of our lights, is done.
Two colonels in the army have one post of brigadier to which either may aspire and become Director of Military Farms.
In this musical chair scenario the (review) petitioner apprehending that the Central Government was considering a ' change of policy departing from the 1964 policy, in choosing the officer to become brigadier in charge of the military farms, moved the High Court for a writ to issue to Government against any such new policy.
The High Court, before it finally disposed of the case, had directed the Defence Department to select the best colonel to be promoted as brigadier and Farm Director.
The selection so made was to be without prejudice to the result of the writ petition but it is significant that the report made was that both the contesting colonels were equal in merit (to run cattle farms?) but the respondent (in the review petition) being senior as colonel may be chosen for, the post Merit being equal, seniority tilts the scales fair enough.
Eventually, the High Court considered the legal import of the 1964 policy and allowed the writ petition which meant that the (review) petitioner would become the brigadier.
The respondent colonel rushed to this court for special leave to appeal which was granted, and, after hearing both sides and the learned Attorney General for the Central Government, this court passed a final order.
We see no reason, whatever to depart from that judgment 170 and no basic flaw therein has been pointed out either.
It was plainly laid down that no finality nor infallibility attached to the '1964 policy ' and the Central Government was free to revise or reverse that policy 'provided it acts justly and fairly '.
A month 's time to evolve a new policy, if felt necessary, was granted to Government and the learned Attorney General agreed to abide by this direction.
Three factors need more than passing notice.
The Defence Ministry the file had been shown to us at the hearing of the appeal and there is material in the pleading also has been considering revision of the 1964 policy and the court has upheld its full freedom to do so.
Secondly, the post of brigadier fell vacant in 1979 and, on the direction of the High Court, an evaluation of the claims of both was made by the Selection Panel on an updated basis.
In this process, both were adjudged equal and the senior (the respondent in the review petition) was recommended for appointment.
Thus, it is obvious that had the Defence Ministry been permitted to choose, the respondent would have enjoyed the post. 'There is nothing outrageous in picking the senior when both are otherwise equal.
There is a human side to it also.
The senior was to retire in a, few months and the other hopefully would have his innings.
The third circumstance which should not be overlooked is that this court did give the go by to the High Court 's finding: "We make it further clear that the Central Government will be free to act subject to the directions we have given above and untrammelled by the reasoning or the direction given by the High Court." Indeed, we had, in the judgment, emphatically upheld the Central Government 's plenary power to formulate or modify military policy.
Wars are won or lost not through writs of courts but by the best strategy.
But even amidst the clash of arms the laws shall not be silent, so much so, the constitutional mandate not to act arbitrarily was binding on the Defence Ministry.
The selection on which the review petitioner stakes his claim is of 1971 vintage and the vacancy to be filled was of the year 1979.
The respondent, therefore, contested the petitioner 's 1971 credentials as obsolete and even obscurantist.
We need not re open that issue except to state that in the final order, passed after hearing both sides, the inviolability of the 1964 policy had been nailed.
A closer reading of the 1964 policy statement reveals under it seniority for an earlier promotee is conferred in the substantive rank provided he has been earlier included in the approved list.
Such a situation has not arisen here at all.
Be that as it may, the final direction of the court appeal.
171 did permit the Central Government to evolve its policy within one month.
This not having been done, the respondent drew the attention of the court to the non compliance and for consequential orders.
At the hearing of that petition (the so called contempt petition) the respondent through Shri R. K. Garg and the Central Government through the learned Attorney General were heard.
Shri Kapil for the petitioner (review) intervened and was heard.
But we must fairly state that his client had not been given formal notice and perhaps he had a grievance of not having been heard adequately.
We cannot fault him for filing a review petition but hasten to clarify that we wholly desist from making any observations on the happenings set out in the respondent 's papers put into court.
Nor did we permit Shri Garg to refer to those matters since they were in our view.
extraneous to the merits of the review petition and related to another proceeding pending before another bench.
We must record that Shri Kapil has with youthful vigour and clarity of advocacy presented his case fairly.
The gravamen of his grievance is merely that he should have been heard if a direction to his prejudice was to be made.
We are mindful of the force in this plea and cannot dismiss it merely because the sands of time are running out against the respondent whose approaching retirement will make his legal success, if any, a phyrrhic victory and, worse a tragic irony.
Of course.
that, by the way, is the life style of most litigative triumphs.
Shri Garg in his fighting submissions, complained how his client had been baulked of the fruits of success by dubious proceedings, but, while we are unconcerned about those anecdotes, we do consider that there is justice in his plea that he has been chosen by the panel in 1979, that a bare selection (not actual promotion) of 1971 on which the petitioner relies, is too stale to be relevant, that the Central Government itself had filed an affidavit in this court stating that they had appointed his client and that neither law nor justice supported any interference with this court 's direction of 7 S 1980 to promote the respondent as Brigadier.
Let us notice the substance of this Court 's orders dated 7th and 9th May, 1980 which are now sought to be reviewed.
On May 7, 1980, the following direction was given following on the non compliance by the Central Government with the earlier judgment: "This Court had given a direction that the policy of the Defence Ministry may be finalised within one month from the date of the order.
That period has expired on 26th April 1980 Nevertheless, no policy decision has yet been taken nor even has an application been made for extension of time from this ? Court.
We consider that this conduct is far from satisfactory.
172 However, there are two courses open, out of which one must be adopted in the course of couple of days.
The Respondent may appoint the petitioner, Director, Military Farm (Brigadier) until he retires, which event, we are told, happens within about four months.
Alternatively, the Union of India in the Defence Ministry will take its policy decision within two days and report ', to this Court about it so that further directions may be issued on 9 5 1980 regarding further implementation of the policy consistent with the rights of the petitioner.
Post on 9 5 1980.
" This order of 7th May, in sequence and consequence, flows out of the judgment of March 216, 1980 made after all parties were fully heard.
Two notable circumstances in that order, as earlier highlighted, are these.
Firstly, Government had freedom to formulate a new policy, but it had to be done within one month as accepted by the Attorney General.
Secondly, Government was freed from the High Court 's insistence on the 1964 statement.
If this bondage was not broken, this court could not have directed the Defence Ministry to make any new policy it thought fit.
A third fact, undisputed, also emerged from the case, viz., that in 1979 on the High Court 's direction fresh evaluation of promotional merit gave the respondent (review) an edge over the petitioner on the score of seniority not, surely, an extraneous factor.
Necessarily, therefore, this Court in its May 7th order gave effect to the earlier judgment virtually with the consent of the Central Government.
This is made more manifest in para 5 of the Government 's affidavit put in on May 9, 1980.
Paragraphs 4 and 5 of that affidavit merit excerption: "I state that the Government have taken steps for and are in the process of finalising a policy applicable to the officer cadre in the Army in all the Arms (Infantry, Artillery, Armoured Corps) and Services (Army Supply Corps, Army ordnance Service etc.
including the Department of Military farms).
The chief of the Army Staff has already appointed a High Power study Team comprising of Senior Army officers and headed by an Army Commander to study all aspects of selection and other career management procedures now in vogue in the Army including promotion procedures. 'The Study Team has already made considerable progress in their deliberations.
After the Study .
Team submits its Report, the matter will have to be considered by the Army Commanders and later examined by the Army Headquarters and the Government.
The above process is likely to take some more time.
It will not be appropriate to evolve a separate policy for a small Directorate like the Directorate of Military Farms alone.
The entire officer Cadre of the Army in 173 the Army like Infantry, Artillery, Armoured Corps and Services A like Army Supply Corps, Army ordnance Service etc.
will have to be covered by one uniform policy as is existing at present.
In the circumstances and in compliance with this Hon 'ble Court 's directions/orders dated 26 3 1980 and 7 5 1980, the government are willing to abide by this Hon 'ble Court 's directions given on 7 5 1980.
Government, however, prays that this Hon 'ble Court may be pleased to direct that the promotion of the petitioner to the rank of Brigadier will be without prejudice to the policy which may ultimately be decided by the Government and subject further to the condition that if under the policy which may be evolved, the petitioner is not eligible for promotion to the rank of Brigadier, he would have no right to continue in the said rank.
" It is obvious from this affidavit that Government had decided on abandoning the 1964 policy and was actively pursuing steps to fashion a new policy.
So no rights on the old basis, if any, (though we see none) can enure to the benefit of the petitioner especially because he relies on his 3rd rank in a selection for one vacancy made in 1971.
That apart, a selection of 1979 turned out in favour of the respondent.
And, to come to think of it all, the petitioner is postponed but by a few months and the respondent has been far senior as colonel and will retire in August, 1980.
The conspectus of circumstances hardly persuades us that there is injustice in the order of May 7th or May 9th.
We have sedulously followed the lucid submissions of Shri Kapil for review of the earlier direction and are clear in our conscience that neither law nor justice has suffered on account of the impugned orders.
A review is not a routine procedure.
Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard.
But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
In Sow Chandra Kanta and Anr.
vs Sheik Habib this Court observe.
"A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
The present stage is not a virgin ground but review of Dn earlier order which has the normal feature of finality.
" H 174 By this test and even after re reading the 1964 policy statement for prima facie satisfying ourselves about vesting of valuable rights we are not satisfied that the relief of review is justified. 'The basics of this case are the choice of a brigadier is out of two colonels, the petitioner and the respondent.
They are of equal merit as assessed in 1979.
The latter is far ahead in seniority and the Central Government has agreed to appoint him as brigadier.
He has a period of a month or so to go for retirement when the vacancy will be filled in.
probably by the petitioner.
The claim of the petitioner is based largely on the 1964 policy statement which the Central Government has decided to give up.
Moreover, the claim itself is based upon an ancient selection made a decade ago when the vacant was only one and the petitioner was 3rd in rank.
Moreover, whether the 1964 policy statement confers a right merely by inclusion in the approved list where no appointment has taken place as brigadier and the question of substantive rank has not arisen.
to say the least.
These are sufficient for us to repel the relief of review.
Of course, the petitioner has effectively postponed the appointment of the respondent by getting a stay order.
We make no comments whatever on the chain of events but permit ourselves the observation that the implementation of the final order which has been passed by this Court has been further delayed by the stay thereof by a learned single judge of this Court during the vacation; and so, we mention this only to justify our imperative direction that no more delay shall take place and the Central Government shall put the respondent in his position as Brigadier in charge of the Military Farms by tomorrow.
Law is highly allergic to procrastination.
We refuse the review, but in the circumstances without costs and hope that the chapter of unfortunate events referred to in the affidavits will be treated as closed in a spirit of mutual goodwill.
It has been brought to our notice that there is a direction by the vacation judge that the extra salary that the respondent may be entitled to in the event of success should be deposited into court by the Central Government and that has been done.
The respondent will draw that sum from court.
But there will be no direction that the petitioner should refund the extra salary if any, drawn by him because, after all, he must have functioned pending orders of this Court, as Director of Military Farms and so we do not think it just to make any order for refund against the petitioner.
P.B.R. Review petition dismissed.

summary:
Apprehending that the Government was considering a change of policy framed in 1964 for choosing an officer to become brigadier in charge of military farms the petitioner moved the High Court for the issue of a writ.
On directions from the High Court to the Defence Department to select the best man for the post the Department reported that the petitioner and respondent were equal in merit, but since the respondent in the review petition was senior as colonel, he be chosen for the post.
After considering the legal import of the 1964 policy the High Court allowed the petitioner to become a brigadier The respondent 's petition for special leave was granted by this Court.
The Central Government was given one month 's time to evolve its policy, if necessary.
That not having been done the respondent moved this Court again as to the non compliance and for consequential orders.
On May 9, 1980 the Court passed orders that the respondent be appointed as brigadier.
The petitioner sought review of that order. ^ HELD: A review is not a routine procedure.
An earlier order cannot be reviewed unless the Court is satisfied that material error manifest on the face of the order undermines its soundness or results in miscarriage of justice.
A review of a judgment is a serious step and resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
In the instant case the relief of review is not justified.
[173G H] Chandra Kanta vs Sheikh Habib ; at 933 34, followed.
From the affidavits filed by the Government in the Court on May 9. 1980 it is obvious that the Government had decided on abandoning the 1964 policy and was actually pursuing steps to fashion a new policy.
Therefore, no rights on the old basis, if any, can enure to the benefit of the petitioner especially because he relied on his third rank in a selection for one vacancy made in 1971 That apart, a selection of 1979 turned out in favour of the respondent.
The petitioner is postponed but by a few months and the respondent has been far senior as colonel and will retire in August, 1980.
The conspectus of circumstances hardly persuades the Court that there is injustice in the order of May 7th or May 9th.
[173D E]