judgement:
civil Appeal No. 767 of 1973.
From the Judgment and order date the 9th March, 1973 of the Rajasthan High Court at Jodhpur in Election Petition No. 10 of 1972.
D. P. Singh, Subhagmal Jain and R. K. Jain, for the Appellant.
A. K Sen, Yogeshwar Prasad, section K. Bagga, Mrs. section Bagga and Miss Yash Bagga, for the Respondent The Judgement of the Court was delivered by KHANNA, J. This is an appeal by Shiv Charan Singh against the judgment of the Rajasthan High Court whereby election petition filed by the appellant to question the election of Brijendra Pal respondent from the Karauli constituency to the Rajasthan Assembly was dismiss cd.
The appellant and the respondent were the main candidates in the election to the Rajasthan Legislative Assembly from the Karauli constituency.
The result of the election was declared on March 12, 1972 and the respondent was declared elected.
The appellant challenged the election of the respondent on the ground that the respondent and his election agent Jagdish Pal published and got published statements of fact in relation to the personal character and conduct of the appellant which were false and which they believed to be false or did not believe to be true and which statements were reasonably calculated to prejudice the prospects of the appellant 's election.
The second ground on which the election of the respondent was assailed was that the respondent and his election agent deliberately failed to maintain regular and correct account of expresses incurred by them in connection with the election and that they incurred or authorised expenditure in contraction of section 77 of the Representation of the People Act, 1951.
As regards the first ground, it was stated that the respondent and his election agent got published news item exhibit I in "Kronch",a Hindi 418 weekly dated February 25, 1972 published and printed in Jaipur Radhey Shyam Sharma was the editor of that weekly.
The aforesaid news item was stated to contain false defamatory statements of fact in relation to the personal character and conduct of the appellant.
It was added that the respondent and his election agent and Radhey Shyam Sharma believed those statements, which were calculated to prejudice the prospects of the appellant 's election, to be false and did not believe them to be true.
Radhey Shyam Sharma was also stated to have addressed an election meeting of the respondent on February 27, 1972 at Chogan in Karauli city and read out news item exhibit 1.
Copies of the aforesaid issue of Kronch were also stated to have been distributed in that meeting in the presence of the respondent and his election agent.
According further to the appellant, Radhey Shyam Sharma got published pamphlet exhibit 2 printed at the instance of and with the consent of the respondent and his election agent.
This pamphlet was also as objectionable as news item exhibit 1.
The pamphlet was stated to have been distributed by the respondent, his election agent and Radhey Shyam Sharma at an election meeting at Bhudara on March 2, 1972.
Radhey Shyam Sharma was further alleged to have published another issue exhibit 3 of Kronch containing defamatory statements of fact against the appellant.
These statements were also stated to be objectionable in the same manner as those contained in news item exhibit 1.
As regards the election expresses, it was stated.
the respondent had not shown the expanses actually incurred by him in the matter of hiring of vehicles, purchase of petrol, arrangement of a procession and employment and entertainment of his workers.
The respondent, it was claimed had incurred an expense to the extent of at least Rs. 35,000 over and above the amount shown by him in the return of election expenses.
The petition was resisted by the respondent and he denied the various allegations made by the appellant.
According to the respondent, Radhey Shyam Sharma was hostile to the appellant and had as long ago as October 15, 1970 bitterly criticised the activities of the appellant in an issue of Kronch.
The respondent denied that he had anything to do with the publication by Radhey Shyam Sharma of the different issues of Kronch and pamphlet .
It was also denied that the issues of Kronch or the pamphlet in question were distributed in the meetings of the respondent.
The allegation that the issues of Kronch and the pamphlet in question contained statements of fact which were false and which the respondent believed to be false or did not believe to be true and that those statements were calculated to prejudice the prospect of the appellant 's election was likewise denied.
According to the respondent, the allegations contained in the impugned issues of Kronch and the pamphlet had earlier been made m some other papers and on the floor of the Rajasthan Legislative Assembly.
They had also been made by one Babulal Sharma, Convenor of Yuvak Congress Mandal, Karauli.
As regards the election expenses, the respondent stated that he had maintained a proper and correct statement of account and had not incurred any expenditure over and above the amount of Rs. 8,665.69 shown in his return.
419 in the election petition ? "1.
Did the respondent and his election agent Mr. Jagdish Pal publish the statement of fact in relation to the personal character or conduct of the petitioner as alleged in paragraphs 14? 16, 18, 19 and 20 of the petition ? 2.
Was Mr. Radhey Shyam Sharma engaged by the respondent to carry on his propaganda and was he in charge of the respondent 's publicity and did he publish the news item in 'Kronch ' and read them out and the petition ? distribute the news items and the pamphlet as stated 3.
(a) Were the statements referred to in issue No. 1 false, and did the respondent or his election agent or Mr. Radhey Shyam Sharma believe them to be false.
Or did not believe them to be true? (b) Were those statements reasonably calculated to prejudice the prospects of the petitioner 's election ? 4.
Have the respondent and his election agent deliberately failed to maintain a regular and correct return of the expenses incurred by them in connection with the election of the respondent ? 5.
Have the respondent and his election agent incurred or authorised expenditure in contravention of section 77 of the Representation of the People Act, 1951, as alleged in the election petition ?" issues (1) and (2) were decided against the appellant.
The view of the findings on issue Nos. 1 and 2, issue No. 3 was held not to arise.
All the same the High Court was into the matter and held that neither the respondent or his 'election agent nor Radhey Shyam Sharma had reason to believe the impugned statements published in Kronch and the pamphlet in question to be false and not to be true.
Issues (4) and (5) too were decided against the appellant.
In the result the election petition was dismissed At the hearing of the appeal Mr. D. P. Singh on behalf of the appellant has assailed the findings of the High Court on the different issues.
As regards the election expenses, it has been conceded by Mr. Singh that even if they were not maintained in the prescribed manner, that fact would not constitute a corrupt practice.
According however to the learned counsel, that fact taken with other evidence might justify a conclusion that the respondent had suppressed some items of expenditure.
So far as this question is concerned, we find that the High Court has considered the evidence brought on record 420 and has held on appraisement of that evidence that there was no cogent material to show that the respondent had incurred any expenditure over and above what had been shown in his return.
After having been taken through the material on record, we find no cogent ground whatsoever to interfere with the appraisement of the evidence by the High Court.
Reference was made to the expenses for the purchase of petrol.
According to return exhibit 6 filed by the respondent, he spent Rs. 3,253.27 on petrol.
The correctness of that above figure is vouchsafed by the statement of accounts filed by Karauli Auto Stores The petrol pump which supplied petrol for the respondent belonged to that concern.
Although the said concern was a family concern of the respondent, nothing has been brought to our notice as to why the statement of account filed by that concern be not accepted.
During the pendency of the trial on application filed by the appellants the High Court directed that the account books maintained by the respondent as well as the account books, cash book and the credit and cash vouchers of Karauli Auto Stores might be shown to the appellant 's counsel.
In spite of that order the appellant or his counsel could not examine those account books and documents.
Nothing was consequently brought on record to question the correctness of the entries in the account books.
It has also been urged that the appellant engaged certain vehicles is for a number of days but the expenses incurred on that account were not correctly shown.
As against that, the case of the respondent is that only those vehicles were hired by him which were shown in the documents filed by him.
According further to him, the number of days for which those vehicles were hired was also correctly shown.
The appellant produced oral evidence of a couple of witnesses in support of the stand taken by him.
The High Court declined to accept that evidence.
After hearing the learned counsel for the appellant, we are not inclined to take a contrary view.
The evidence adduced by the appellant was not only not supported by any documents it ran counter to the documents which were produced by the respondent and some of which had been signed by the witnesses produced by the appellant It is well established that in an election appeal this Court should not interfere with a finding of fact recorded by the High Court based upon the appraisement of evidence unless such finding is vitiated by some glaring infirmity.
No such infirmity has been brought to our notice.
Mr. Singh has then submitted that the daily hiring charges of a truck was about Rs. 100 but the respondent in his return showed the daily hiring charge for the truck to be Rs. 35.
The case of the respondent in that respect is that the was charged Rs. 35 as daily hiring charges because he prevented the requisitioning of those trucks by making a representation that they were needed for his election campaign.
Evidence was also produced in support of the above stand of the respondent.
The High Court found the above explanation of the respondent to be plausible.
Nothing cogent has been brought to our notice as to why we should take a contrary view.
The fact that there are suspicious 421 features in the respondent 's case about his election expenses would not justify interference with the finding of the High Court because suspicion cannot take the place of proof.
Coming to the question of the impugned issues of Kronch and pamphlet exhibit 2, we find that there is no cogent evidence on the record to show that Radhey Shyam Sharma published those issues and the pamphlet at the instance of or with the consent of the respondent or his election agent.
It is indeed evident from the issue of Kronch dated October 15, 1970 that Radhey Shyam Sharma was hostile to the appellant and had been criticising him since 1970, about 14 months before the election.
There is, therefore, nothing to rule out the possibility, as stated by the respondent, that Radhey Shyam Sharma published the impugned issues and pamphlet at his own and without the consent of the respondent or his election agent.
The allegation that the impugned issues of Kronch and the pamphlet were distributed in the election meetings of the respondent remains unsubstantiated.
The appellant got produced reports exhibit 15 and 16 of the two election meetings of the respondent held on February 27, 1972 and March 2, 1972.
According to these reports, Radhey Shyam journalist addressed those meetings and asked those present to vote for the respondent.
There is no mention in these reports of Radhey Shyam having said anything against the appellant.
There is also no reference to the distribution of any pamphlets or issues of Kronch in those meetings.
Our attention has been invited by the learned counsel for the appellant to the statement of Nurul Hasan constable (PW 4), according to whom some documents were distributed in a meeting held on March 2, 1972.
The witness added that he did not know as to what were the contents of those documents because he saw the whole thing from a distance.
The evidence of Nurul Hasan, in our opinion, is too slender a basis for recording a finding that the impugned pamphlet and issues of Kronch were distributed in the meeting of the respondent.
It is in the evidence of Sub Inspector Bhopal Ram (PW 18) that if any newspaper is distributed in an election meeting and a copy of it becomes easily available to the constable present in that meeting, he sends it along with his report.
The witness also produced some pamphlets which were distributed in an election meeting against the respondent.
If as is the case of the appellant, the impugned issues of Kronch and pamphlet in question were widely distributed in the election meetings of the respondent, it is not clear as to why the policeman on duty in those meetings could not secure even one copy of those issues or pamphlets.
The fact that no such copy was sent with any of the police reports shows that the allegation of the appellant in this respect is not well founded.
422 In view of our finding that it is not proved that Radhey Shyam got published the impugned issues of Kronch and pamphlet at the instance of or with the consent of the respondent or his Section agent and in view of our further finding that it is not proved that the copies of the impugned issues of Kronch or pamphlet were distributed in the election meetings of the respondent, we need not go into the question as to whether the finding of the High Court on issue No. 4 is correct or not.
We consequently neither affirm nor disaffirm the finding of fact or law under this issue.
The appeal fails and is dismissed but in the circumstances without costs.
V.M.K. Appeal dismissed.

summary:
Representation of the People Act, 1951, s.77 Election expenses Failure of successful candidate to maintain account in prescribed manner, if constitutes corrupt practice.
The appellant and the respondent were the main candidates in the election lo the Rajasthan Legislative Assembly from the Karauli constituency.
The result of the election was declared on March 12, 1972 and the respondent was declared elected.
The appellant challenged the election of the respondent on the ground that the respondent and his election agent Jagdish Pal published and got published statements of fact in relation to the personal character and conduct of the appellant which were false and which they believed to be false or did not believe to be true and which statements were reasonably calculated to prejudice the prospects of the appellant 's election.
The second ground on which the election of ' the respondent was assailed was that the respondent and his election agent deliberately failed to maintain regular and correct account I : of expenses incurred by them in connection with the election and that they incurred or authorised expenditure in contravention of s.77 of the Representation of the People Act, 1951.
The petition was resisted by the respondent and he denied the various allegations made by the appellant.
Five issues were framed on the basis of the pleadings before the High Court Issues (1) and (2) were decided against the appellant.
These issues related to the first ground.
The view of the findings on these issues, issue (3) was held not to arise.
Issues (4) and (5) relating to expenses were also decided against the appellant.
As a result, the election petition was dismissed.
This appeal has been preferred by the appellant against the judgment of the High Court dismissing his election petition.
Dismissing the appeal, ^ HELD: (i) It is well established that in an election appeal Supreme Court should not interfere with a finding of fact recorded by the High Court based upon the appraisement of evidence unless such finding is vitiated by some glaring infirmity.
[420F] F (ii) Even if the account of election expenses was not maintained in the prescribed manner, that fact would not constitute a corrupt practice.
[419G] (iii) The High Court has considered the evidence brought on record and has held on appraisement of that evidence that there was no cogent material to show that the respondent had incurred any expenditure over and above what had been shown in his return.
No cogent ground whatsoever has been made out lo interfere with the appraisement of the evidence by the High Court.
[419H 420 A] G (iv) The correctness of the figure of Rs. 3,523.27 as expenses incurred for the purchase of petrol is vouchsafed by the statement of account filed by Karauli Auto Stores a family concern of the respondent.
Nothing has been shown as to why the statement of account field by that concern cannot be accepted.
During the pendency of the trial on application filed by the appellant.
the High Court directed that the account books maintained by the respondent as well as the cash book and the credit and cash vouchers of Karauli Auto Stores might be shown to the appellant 's counsel.
In spite of that order the appellant or his counsel did not examine those account books and documents.
Nothing was consequently brought on record to question the correctness of the entries in the account books.
[420B C] 417 (V) The High Court declined to accept the oral evidence adduced by the appellant in support of his plea that the account does not correctly show the expenses regarding certain number of vehicles engaged by him.
The evidence adduced by the appellant was not only not supported by any documents, it ran counter to the documents which were produced by the respondent and some of which had been signed by the witnesses produced by the appellant.
[420EF] (vi) The plea of the respondent that he was charged only Rs. 35/ as daily hiring charge for the truck because he presented the requiring of those trucks by making a representation that they were needed for his election compaign, has been accepted by the High Court as plausible.
There is nothing cogent made out as to why a contrary view should be taken.
[420H] (vii) So far as the impugned issues of Hindi daily Kronch and pamphlet Ex.2 are concerned, there is no cogent evidence to show on the record that Radhey Shyam Sharma published those issues and the pamphlet at the instance of or with the consent of the respondent or his election agent.
It is indeed evident from the use of Kronch dated October 15, 1970 that Radhey Shyam Sharma was hostile to the appellant and had been criticising him since 1970 about 14 months before the election.
There is, therefore, nothing to rule out the possibility that Radhey Shyam Sharma published the impugned issues and pamphlet at his own and without the consent of the responaent or his election agent.
[421AB]


judgement:
Civil Appeal No. 116 of 1953.
Appeal from the Judgment and Order dated the 23rd day of August 1951 of the High Court of Judicature at Calcutta in Appeal No. 112 of 1950 arising out of the order dated the 24th day of March 1950 of the Registrar of Trade Marks in the matter of Registered Trade Mark No. 3815.
C. K. Daphtary, Solicitor General for India (K. section Shavakasha and R. H. Dhebar, with him) for the appellant.
section C. Isaacs, (P. K. Ghosh, with him) for the res pondents.
April 15.
The Judgment of the Court was delivered by DAS J.
This is an appeal from the judgment and order pronounced on the 23rd August 1951 by a Division Bench of the High Court at Calcutta in Appeal No. 112 of 1950 reversing the decision of the Registrar of Trade Marks dated the 24th March, 1950 whereby he had rectified the register by inserting a disclaimer of the word "Shree" forming part of the respondent company 's registered trade mark No. 3815.
The material facts are as follows: In the year 1897 one Durga Charan Rakhit (since deceased) adopted as his trade mark in respect of the ghee produced and marketed by him a device which, with some slight modification not materially altering its essential 255 features, was, on the application of the respondent company, registered as its trade mark No. 3815.
That mark was and is a device consisting of the word "Shree" written on the top in bold Bengali character, having below it an ornamental figure with the word "Shree" written in the centre in small Deva Nagri character, the word "TRADE" written in English in an inclined manner on the left hand side of the ornamental figure and the word "MARK" written in English in an inclined manner on the right hand side of the ornamental figure and the words "Shree Durga Charan Rakhit" written at the bottom in Bengali characters.
The ornamental figure referred to above consists of a triangle over which is another inverted triangle and in the centre the word "Shree ', in small Deva Nagri character as mentioned above, the whole of the said ornamental figure being enclosed in a circle outside which are twelve ornamental petals.
In the affidavit affirmed by Malli Nath Rakhit, a director of the respondent company and filed in these proceedings, this mark has throughout been referred to as "the said mark SREE".
The said Durga Charan Rakhit having subsequently been adjudged insolvent all his properties including the goodwill of his ghee business and the said mark vested in the Official Assignee of Calcutta.
On the 15th January 1915 the goodwill of the said business including the said mark was sold by the Official Assignee by public auction and one Hem Dev Konch, a minor, was declared as the highest bidder and purchaser.
A notice of the said sale was advertised in the Calcutta Exchange Gazette on the 25th January 1915 by an attorney acting on behalf of the purchaser.
On the 27th January 1915 the said sale was confirmed by a Deed of assignment executed by the Official Assignee.
On the 22nd August 1917 Haripriya Konch, the father and natural guardian of the minor purchaser, acting as such and on behalf of the minor, conveyed to one Ashok Chandra Rakhit, son of the said Durga Charan Rakhit, the goodwill of the business including the right, title and interest in the said mark and the said Ashok Chandra Rakhit carried on the said business 256 and marketed ghee tinder the said mark.
On the 15th September 1926 the said Ashok Chandra Rakhit caused the fact of his ownership of the said mark to be advertised in the Calcutta Exchange Gazette and on the 22nd December 1926 caused to be registered with the Registrar of Assurances of Calcutta a declaration of his ownership of the said mark.
In 1932 the respondent company was incorporated as a private limited company under the Indian Companies Act, 1913 and the said Ashok Chandra Rakhit assigned the goodwill of his said business and his right, title and interest in the said mark to the respondent company.
In 1933 the respondent company 's said mark was registered in the Trade Mark Registry at Hong Kong under the provisions of, the Hong Kong Trade Marks Ordinance, 1909 and the fact of such registration was published in the Straits Settlements Government Gazette.
In 1934 two persons, Rajendra Prasad and Dilliram, were, on complaint, made on behalf of the respondent company, convicted by the Chief Presidency Magistrate of Calcutta under section 486, Indian Penal Code, for infringing the said mark and such conviction was upheld by the Calcutta High Court.
In 1935 one Chiranjilal Sharma was, on like complaint, convicted by the Chief Presidency Magistrate for infringement of the said mark.
The volume of the respondent company 's business in ghee done under the said mark is said to be considerable, the annual turn over varying from Rs. 10,00,000/ to Rs. 15,00,000/ , and the annual cost of advertisement being anything between Rs. 10,000/ and Rs. 39,000/ .
It is also said that the ghee marketed by the respondent company and its predecessors is well known by the said mark and is always asked for under the name "Shree".
The Indian having been brought into force in 1942 the respondent company on the 21st August 1942 filed an application for the registration of its said mark under the Act.
By his letter dated the 29th November 1943 the Registrar proposed that there should be a disclaimer of the word "shree" The respondent company by its 257 agents ' letter dated the 15th February 1944 intimated to the Registrar that, it could not agree to the proposal as "the trade mark Shree is very important in the device" and "the ghee is commonly designated by the trade mark Shree".
The respondent company also submitted an affidavit affirmed by one Bidyut Bikash Rakshit, a director of the respondent com pany, in support of its objection.
The Registrar not having then pressed his proposal for disclaimer the respondent company 's said mark was duly registered as trade mark No. 3815.
It appears that subsequently the Registrar found that the word "Shree" was used by Hindus as an auspicious symbol and placed even on letter heads and that consequently it was not adapted to distinguish within the meaning of the Act.
In course of time, therefore, a practice became established in the Registry whereby the word "Shree" was either refused registration as a trade mark or a disclaimer was enforced if it were made a part of a trade mark.
So inflexible bad been this practice that barring this particular trade mark No. 3815 there was no other trade mark containing the word "Shree" which had been registered without a disclaimer of the word "Shree".
Naturally this circumstance was bound to be regarded as an invidious discrimination and, indeed, pointed reference is said to have been made to it and it was suggested that the Registry should deal impartially and uniformly with all applications in matters relating to practice.
This aspect of the matter having 'been pressed upon the Registrar he took steps under section 46(4) of the and on the 8th March 1947 issued a notice calling upon the respondent company to show cause why the register should not be rectified by entering a dis claimer of the exclusive right in regard to the word "Shree".
The respondent company showed cause by filing an affidavit affirmed by Malli Nath Rakhit to which reference has been made.
After hearing learned counsel for the respondent company the Registrar came to the conclusion that the word "Shree" was 33 258 not adapted to distinguish and, for reasons stated in his judgment delivered on the 24th March 1950, directed rectification of the register by inserting a disclaimer of the word "Shree" in the following terms: "Registration of this Trade Mark shall give no right to the exclusive use of the word 'Shree" '.
Feeling aggrieved by the aforesaid decision the respondent company preferred an appeal to the High Court at Calcutta under section 76 of the Act.
The High Court also took the view that "Shree" was a word which had numerous meanings and that it would be impossible for any trader to contend that he had an exclusive right to the use of 'Such a word.
But the High Court went on to hold that there was no ground whatsoever for the order made by the Registrar as the respondent company had never claimed that it had any right to the exclusive use of the word "Shree".
In the result, the High Court allowed the appeal and set aside the order of the Registrar rectifying the register.
Being of the opinion that the point involved was a novel one in this country and was of importance and would affect the attitude of the Registrar in future cases, the High Court certified that it was a fit case for appeal to this Court under Article 133(1)(c) of the Constitution.
Hence the present appeal by the Registrar.
The order of rectification of the register by inserting a disclaimer was made by the Registrar under section 13 read with section 46(4) of the .
Section 13 runs as follows: "13.
Registration subject to disclaimer: If a trade mark contains (a)any part not separately registered as a trade mark in the name of the proprietor, or for the separate registration of which no application has been made, or (b)any matter common to the trade, or otherwise of a non distinctive character, the tribunal, in deciding whether the trade mark shall be entered or shall remain on the register, may require, as a condition of its being on the register, that 259 the proprietor shall either disclaim any right to the exclusive use of such part or of all or any portion of such matter, as the case may be, to the exclusive use of which the tribunal holds him not to be entitled, or make such other disclaimer as the tribunal may consider necessary for the purpose of defining the rights of the proprietor under the registration: Provided that no disclaimer shall affect any rights of the proprietor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is made".
At the outset it will be noticed that the power of the tribunal to require a disclaimer is conditioned and made dependent upon the existence of one of two things which are set out in clauses (a) and (b) and which have been called the jurisdictional facts.
It is only on the establishment of one of the two jurisdictional facts that the Registrar 's jurisdiction regarding imposition of a disclaimer arises.
Before, however, he may exercise his discretion he must find and hold that there are parts or matters included in the trade mark to the exclusive use of which the proprietor is not entitled and it is only after this finding is arrived at that the Registrar becomes entitled to exercise his discretion.
In course of the argument it was at one time contended that upon the establishment of the requisite jurisdictional fact and upon the finding that the proprietor was not entitled to the exclusive use of any particular part or matter contained in the trade mark the Registrar became entitled, without anything more, to require a disclaimer of that part or matter.
This extreme position, however, was not maintained in the end and it was conceded, as indeed it had to be, that the exercise of the power conferred on the Registrar by this section always remained a matter of discretion to be exercised, not capriciously or arbitrarily but, according to sound principles laid down for the exercise of all judicial discretion.
(See the observations of Lord Halsbury, L. C., in Sharp vs Wakefield(1).
As the law of Trade Marks adopted in our Act merely reproduces the English Law with (1) at p. 179.
260 only slight modifications, a reference to the judicial decisions on the corresponding section of the English Act is apposite and must be helpful.
Section 15 of the English Act of 1905 which later on was reproduced in section 14 of the English Act of 1938 and which corresponds to our section 13, was considered by the High Court in .
England in In re Albert Baker Co. 's Application and In re Aerated Bread Company 's Application(1) which is commonly called the A.B.C. case.
In that case Eve, J. found on the evidence that Albert Baker Company were widely known as "A.B.C." or "A.B. & Co." but that the letters "A.B.C." did not exclusively indicate their goods and that those letters being common to the trade they were not entitled to the exclusive use of those letters.
Nevertheless the learned Judge did not hold that that finding alone concluded the matter.
Said the learned Judge: "The first observation which it occurs to me to make is that the object of the Legislature was to relieve traders from the necessity of disclaiming, and I think it follows from this that the condition is one for the imposition of which some good reason ought to be established rather than one which ought to be imposed, unless some good reason to the contrary is made out.
This conclusion is, I think, forti fied by the frame of the section, which is in an enabling form empowering the tribunal to impose the conditions power which, I conclude, the tribunal would only exercise for good cause shewn".
It follows from what has been stated above that the existence of one of the two jurisdictional facts referred to in clauses (a) and (b) of section 13 and the finding that the trade mark contains parts or matters to the exclusive use of which the proprietor is not entitled does not conclude the matter and it must further be established that some good reason exists for the imposition of a disclaimer and the tribunal will only exercise the discretionary power for good cause shown.
(1) ; , 261 The second thing to be borne in mind, if the provisions of section 13 are to be properly understood and carried into effect, is that the section confides a discretionary power in the "tribunal" which, by virtue of section 2(n), means the Registrar or, as the case may be, the Court before which the proceeding concerned is pending.
An application for the rectification of the register may, under sub sections (1) and (2) of section 46, be made either to the Registrar or the High Court and sub section (4) of that section, under which the present proceedings were initiated by the Registrar, authorises both the High Court and the Registrar to take proceedings suo motu.
In view of the fact that discretion is given also to the High Court under section 13 a question may be raised as to whether the observations made by P. O. Lawrence, J. in In the matter of an application by the Diamond T. Motor Car Co.(1) namely, that in dealing with an appeal from the Registrar 's decision under section 8 (2) of the English Act of 1919 the High Court is not fettered by reason of the Registrar on the hearing before him having exercised his discretion, apply to our High Court hearing appeals under section 76 of our Act from decisions of the Registrar given under section 13 of our Act and whether in that situation our High Court may exercise its own discretion just as it could if the proceedings had initially been taken before it.
Assuming, but without deciding, that they do apply, it must, nevertheless, be remembered, adapt ing the language of Lord Macnaghten in Eno vs Dunn(1) that it is the Registrar "to whom in the first instance is committed the discretionary power".
If that authority has exercised his discretion in good faith and not in violation of any law such exercise of discretion should not be interfered with by the High Court merely on the ground that, in the opinion of the High Court, it could have been exercised differently or even that the High Court would have exercised it differently, had the matter been brought before it in the first instance.
The proper approach in (1) at p. 879.
(2) L.R. [1890]15 A.C. 252 at p. 263: at p. 318, 262 such a case is for the High Court to consider, as said by Lord Dunedin in In the matter of an application by F. Reddaway & Co. Ltd.(1), "whether the Registrar had really gone so wrong as to make it necessary to interfere with his discretion".
The third thing to note is that the avowed purpose of the section is not to confer any direct benefit on the rival traders or the general public but to define the rights of the proprietor under the registration.
The registration of a trade mark confers substantial advantages on its proprietor as will appear from the sections grouped together in Chapter IV under the beading "Effect of Registration".
It is, however, a notorious fact that there is a tendency on the part of some proprietors to get the operation of their trade marks expanded beyond their legitimate bounds.
An illustration of an attempt of this kind is to be found in In re Smokeless Powder Co. 's Trade Mark(1).
Temptation has even led some proprietors to make an exaggerated claim to the exclusive use of parts or matters contained in their trade marks in spite of the fact that they had expressly disclaimed the exclusive use of those parts or matters.
Reference may be made to Greers Ltd. vs Pearman and Corder Ltd.(1) commonly called the "Banquet" case.
The real purpose of requiring a disclaimer is to define the rights of the proprietor under the registration so as to minimise, even if it cannot wholly eliminate, the possibility of extravagant and unauthorised claims being made on the score of registration of the trade marks.
The last feature of the section is its proviso.
That proviso preserves intact any right which the proprietor may otherwise under any other law have in relation to the mark or any part thereof.
The disclaimer is only for the purposes of the Act.
It does not affect the rights of the proprietor except such as arise out of registration.
That is to say, the special advantages which the Act gives to the proprietor by reason of the registration of his trade mark do not extend to the (1) at p. 36.
(2) ; (3) , 263 parts or matters which he disclaims.
In short, the disclaimed parts or matters are not within the protection of the statute.
That circumstance, however, does not mean that the proprietor 's rights, if any, with respect to those parts or matters would not be protected otherwise than under the Act.
If the proprietor has acquired any right by long user of those parts or matters in connection with goods manufac tured or sold by him or otherwise in relation to his trade, he may, on proof of the necessary facts, prevent an infringement of his rights by a passing off action or a prosecution under the Indian Penal Code.
Disclaimer does not affect those rights in any way.
Keeping, then, in view the meaning and scope of section 13 of our and its underlying purpose as discussed above we proceed to consider whether in the circumstances of the present case the Registrar had exercised his discretion properly in inserting in the register a disclaimer of the word "Shree".
It has not been disputed that the respondent company 's registered trade mark No. 3815 is a distinctive device properly registrable under section 6 of the Act.
It is also a fact that it contains, as its prominent part, the word "Shree" which is not sepa rately registered as a trade mark in the name of the respondent company and, indeed, no application had been made by it for the separate registration of that word.
There can, therefore, be no doubt as to the existence of the jurisdictional fact referred to in clause (a) of that section.
Further, the Registrar found as a fact, for reasons stated by him, that the word "Shree" was not adapted to distinguish, which means that it did not pass the test for registrability laid down in section 6 and in particular in sub section (3) thereof.
The High Court also unequivocally took the view that "Shree" is a word which had numerous meanings and that it would be impossible for any trader to contend that he had an exclusive right to the use of such a word.
It, therefore, follows that the respondent company 's trade mark was concurrently held to have contained matters of a non distinctive character and consequently the second juris 264 dictional fact was also present in this case.
It, never theless, appeared to the High Court that there was no ground whatsoever for the order made by the Registrar.
The High Court read the decision of the Registrar as proceeding only on what was described as an inflexible practice established in the Registry whereby the word "Shree" was either refused registration as a trade mark or a disclaimer was enforced if it was a part of a trade mark and in this view the case appeared to the High Court to be indistinguishable from the case of In re Cadbury Brothers ' Application(1).
That case was decided under section 9 of the English Act of 1905.
Clause (5) of section 9 was then expressed in language which is somewhat different from clause (5) of section 6 of our Act.
Under section 9(5) of the English Act of 1905 a name, signature or word or words otherwise than such as fell within the description in the preceding paragraphs I to 4 could not, except by the order of the Board of Trade or by the Court, be deemed a distinctive mark. 'Tudor ' being a surname did not fall within clause (4) of that English Act and, therefore, the Registrar had no power to register it as a distinctive mark under clause (5).
Such being the position, the then Registrar of Trade Marks in England adopted a practice that wherever a mark contained 2a name which did not come within clause (4) and which he had no power to register under clause (5), there must be a disclaimer of that word without going into any investigation as to its distinctiveness.
The Registrar in that case declined to register the mark only because it contained a name which could not be registered alone by him under section 9(5), without deciding whether that word was a matter of a distinctive or non distinctive character, in pursuance of the inflexible practice that be had adopted, namely, of refusing registration in the absence of a disclaimer.
This decision of the Registrar was overruled by Sargant, J. The learned Judge, on the materials before him, came to the conclusion that the word 'Tudor ' was not common to the trade (1) ; 265 and that the word as it had been used by the applicants in relation to chocolates was not a matter of non distinctive character and that it had denoted their goods.
Consequently, the jurisdiction to impose a disclaimer did not arise under clause (b) of section 15 of the English Act of 1905.
The jurisdiction, if at all, could, therefore, arise only under clause (a), namely, that the trade mark contained parts not separately registered by the proprietor as trade marks.
Having come to the conclusion that the word 'Tudor ' was a matter of distinctive character as it denoted the goods of the applicant 's manufacture, the Court might have disposed of the case on the short ground that, on that finding, the applicant was entitled to the exclusive use of that name in connection with chocolates and like goods and, therefore, no question of requiring a disclaimer could, in that situation, arise at all.
Treating the matter, however, as still one of discretion, the learned Judge had to take into account the commercial case made on behalf of the applicants, namely, that they would, by disclaiming any right to the exclusive use of the word 'Tudor ', practically be inviting the public to disregard such common law rights as they had acquired to the use of the name 'Tudor ' and held that to impose a disclaimer of that word, in spite of the finding as to its distinctiveness in relation to the goods of the applicants, would be to drive the applicants to take innumerable passing off actions.
The facts of that case appears to us to be clearly distinguishable from those of the case now before us.
Here the concurrent finding of the Registrar and the High Court is that the word "Shree" is not adapted to distinguish and is not a word to the exclusive use of which any trader may claim the right.
In the face of this finding the consideration of the possibility that a disclaimer may drive the respondent company to a crop of passing off actions was not so relevant or urgent as it was in the Tudor case.
In view of the finding in the present case the respondent company could well be left, as it was in fact left, to protect its 34 266 rights by other proceedings, e.g) passing off actions or prosecutions which, by reason of the proviso, were open to be taken by it, if the necessary facts to support such proceedings which were not before the Registrar could be satisfactorily established.
Further, it is not quite correct to say that the Registrar, like his English counterpart, had based his decision entirely on what has been called his invariable practice.
It is no doubt true that the Registrar did, in this case, lay considerable stress on that aspect of the matter and may even be said to have somewhat over emphasized the practice of his Registry but it is not correct to say that his decision was entirely founded on that practice alone.
The materials before the Registrar, appearing on the affidavit filed on behalf of the respondent company, clearly indicated that the respondent company was claiming a proprietary right to the name "Shree".
Indeed, it called its mark as "the said mark Shree" throughout the affidavit and claimed that the said mark "Shree" was well known in the market and that its ghee was asked for and sold under the said mark "Shree".
The two prosecutions launched by it and the other facts men tioned in the main affidavit and the two supporting affidavits of two retail dealers and summarised at the beginning of this judgment clearly indicate that it was claiming the right to the exclusive use of the word "Shree" and, indeed, in its agents ' letter of the 15th February 1944 objecting to any disclaimer of that word, it was referred to "as trade mark Shree" and it was said to be "very important in the devise".
In other words, they put forward the claim that "Shree" itself was also its trade, mark, apart from the device as a whole and that it was an important feature of its device.
It is, therefore, not at all surprising that learned counsel appearing for the respondent company before the Registrar, when asked as to how his client could possibly be affected by disclaiming the word "Shree", said frankly that it was far easier to be successful in an infringement action than in a passing off action.
This clearly indicated that the respondent company did not want any other 267 merchant to use the word "Shree" in his trade mark in respect of ghee and that the respondent company thought that the registration of its trade mark with the word "Shree" contained in it would, per se, give it a right also to that word and that its intention was to launch infringement actions under the Act against any other trader who might happen to use the word "Shree" either alone or as part of his trade mark in respect of ghee.
Further, the Registrar ' may well have thought that the fact that all other traders who had got their trade marks containing the word "Shree" registered had had to submit to a disclaimer of the word "Shree" whereas the respondent company had got its trade mark containing the word "Shree" registered without a disclaimer was calculated to cause embarrassment to other traders and might conceivably encourage the respondent company to contend that the registration of its trade mark by itself and without further evidence gave it a proprietary right to the exclusive use of the word "Shree".
The res pondent company may also find some encouragement from the observations of Lord Radcliffe in De Cordova and others vs Vick Chemical Coy.(1) namely, that if a word forming part of a mark has come in trade to be used to identify the goods of the owner of the mark, it is an infringement of the mark itself to use that word as the mark or part of the mark of another trader, for confusion is likely to result.
These considerations may reasonably have led the Registrar to require a disclaimer.
None of these considerations arose or were adverted to in the Tudor case and this circumstance quite clearly distinguishes the present case from that case.
It is true that where a distinctive label is registered as a whole, such registration cannot possibly give any exclusive statutory right to the proprietor of the trade mark to the use of any particular word or name contained therein apart from the mark as a whole.
As said by Lord Esher in Pinto vs Badman(2): "The truth is that the label does not consist of (1) at p. 106.
(2) at p. 191.
268 each particular part of it, but consists of the combination of them all".
Observations to the same effect will be found also in In re Appollinaris Company 's Trade Marks(1), In re Smokeless Powder Co. (supra), In re Clement and Cie(1) and In re Albert Baker & Company (supra) and finally in the Tudor case referred to above which was decided by Sargant, J.
This circumstance, however, does not necessarily mean that in such a case disclaimer will always be unnecessary.
It is significant that one of the facts which give rise to the jurisdiction of the tribunal to impose disclaimer is that the trade mark contains parts which are not separately registered.
It is, therefore, clear that the section itself contemplates that there may be a disclaimer in respect of parts contained in a trade mark registered as a whole although the registration of the mark as a whole does not confer any statutory right with respect to that part.
As we have already stated the possibility of the proprietor attempting to expand the operation of his trade mark cannot be ignored or overlooked.
It is a thing which must be taken into consideration by the tribunal be it the Registrar or the Court in deciding upon the way it should exercise the discretionary power conferred on it.
Reference has been made by the High Court to the observations of Eve, J. in the A.B.C. case referred to above and the question has been posed as to whether any good cause had been shown for the necessity of disclaimer in this case.
The High Court answers the question immediately by saying that it did not think that any cause had been shown beyond the desirability of having a uniform practice.
This, as we have already stated, is not quite correct, for apart from the practice the Registrar did advert to the other important consideration, namely, that on the evidence before him and the statement of counsel it was quite clear that the reason for resisting the disclaimer in this particular case was that the company thought, erroneously no doubt but (1) (2) 269 quite seriously, that the registration of the trade mark as a whole would, in the circumstances of this case, give it a right to the exclusive use of the word "Shree" as if separately and by itself it was also its registered trade mark and that it would be easier for it to be successful in an infringement action than in a passing off action.
It was precisely the possibility of such an extravagant and untenable claim that called for a disclaimer for the purpose of defining the rights of the respondent company under the registration.
This aspect of the matter does not appear to have been pressed before or adverted to by the High Court.
Considering all the circumstances discussed above, we are not of opinion that the Registrar had gone so wrong as to have made it necessary for the High Court to interfere with his discretion.
If it were to be regarded as a matter of exercise of discretion by the High Court as to whether a disclaimer should be imposed or not, it is quite clear that the attention of the High Court was not drawn to an important consideration, namely, the strong possibility of the respondent company claiming a statutory right to the word "Shree" by virtue of the registration of its trade mark and subject others to infringement actions only on the strength of the registration and without proof of facts which it would have otherwise to establish in order to succeed in a passing off action or a prosecution under the Indian Penal Code and, therefore, the High Court cannot be said to have properly exercised its discretion.
The result, therefore, is that this appeal must be allowed and the respondent company must pay the appellant 's costs in this Court and in the High Court.

dataset_name: IN-Abs

summary:
The exercise of the power conferred on the Registrar by section 13 of the is always a matter of discretion to be exercised, not capriciously or arbitrarily but, according to sound principles laid down for the exercise of all judicial discretion.
The existence of the two jurisdictional facts referred to in clauses (a) and (b) of section 13 and the finding that the trade mark contains parts or matters to the exclusive use of which the proprietor is not entitled does not conclude the matter and it must further be established that some good ground exists for the imposition of a disclaimer and the tribunal will exercise the discretionary power for good cause shown, 253.
For the proper understanding and carrying into effect the provisions of section 13 it is necessary to bear in mind that the section confides a discretionary power in the 'tribunal ' which by virtue of section 2(n) means the Registrar or, as the case may be, the Court before which the proceeding concerned is pending.
Assuming but not deciding that in dealing with an appeal under section 76 of the Act from the decisions of the Registrar under section 13 of the Act the High Court is not fettered by reason of the Registrar, on the hearing before him, having exercised his discretion and the High Court may exercise its own discretion, just as it could if the proceedings had been taken initially before it, it must be remembered that it is the Registrar to whom in the first instance is committed the discretionary power.
If that authority has exercised his discretion in good faith and not in violation of any law such exercise of discretion should not be interfered with by the High Court merely on the ground that, in the opinion of the High Court it could have been exercised differently or even that the High Court would have exercised it differently, bad the matter been brought before it in the first instance.
The proper approach in such a case is for the High Court to consider whether the Registrar has really gone so wrong as to make it necessary to interfere with his discretion.
The real purpose of requiring a disclaimer is to define the rights of the proprietor under registration so as to minimise, even if it cannot wholly eliminate, the possibility of extravagant and unauthorised claims being made on the score of registration of the trade marks.
The proviso to section 13 preserves intact any right which the pro . prietor may otherwise under any other law have in relation to the mark or any part thereof.
The disclaimer is only for the purposes of the Act.
It does not affect the rights of the proprietor except such as arise out of registration.
That is to say, the special advantages which the Act gives to the proprietor by reason of the regis tration of his trade mark do not extend to the parts or matters which he disclaims.
Held, that considering all the circumstances of the present case the Registrar had not gone so wrong as to make it necessary for the High Court to interfere with his discretion.
If it were to be regarded as a matter of exercise of discretion by the High Court as to whether a disclaimer should be imposed or not, it is quite clear that the attention of the High Court was not drawn to an important consideration, namely, the strong possibility of the respondent company claiming a statutory right to the word 'Shree ' by virtue of the registration of its trade mark and subject others to infringement actions only on the strength of the registration and without proof of facts which it would have otherwise to establish in order to succeed in a passing off action or a prosecution under the Indian Penal Code and, therefore, the High Court cannot be said to have properly exercised its discretion, 254 Sharp vs Wakefield (L.R. 1891 A.C .
173), Albert Baker Co.s Application and Aerated Bread Company s Application In re ; , In the matter of an application by the Diamond T. Motor Car Co. ([1921] at 379), Eno vs Dun?& ; , In the matter of an application by F. Reddaway & Co. Ltd. ([1926] 44 R.P.C,. 27), Smokeless Powder Co. 's Trade In re ; , Greers Ltd. vs Pearman and Gorder Ltd. ([1922] , Cadbury Brothers ' Application In re ; , De Cordova and others vs Vick Chemical Coy.
([1951] , Pinto vs Badman , Apollinaris Company 's Trade Marks and Clement & Cie In re (L . R. , referred to.


judgement:
Civil Appeals Nos. 247 and 248 1975.
Appeals by special leave from the Judgment and order dated the 29th May, 1974 of the Kerala High Court in original Petition No. 5463 of 1971.
Krishnamoorthy Iyer and N. Sudhakaran, fol the appellant (in appeal No. 247/75 and respondent No. 2 in C.A. No. 248/75).
T. C. Raghavan and P. K. Pillai, for respondent no.1 (in both the appeals).
K. T. Harindranath (in C.A. No. 248/75) and K. R. Nambiyar.
(for respondent No, 2 in C.A. No. 247 and the appellant in C.A. No. 248/75).
376 The Judgment of the Court was delivered by `CHANDRACHUD, J.
This appeal by special leaves arises out of the judgment of the High Court of Kerala in Writ Petition No. 5463 of 1971.
That petition was filed by the The respondent A. Satyavan against the State of Kerala, the Director of the department of Museums and Zoos, Trivandrum and the appellant Smt.
V. A. Subhadra.
The main relief sought by the Ist respondent was that the order passed by 1 the State of Kerala on March ]8, 1971 appointing the appellant as an Upper Division Clerk in the Department of Museums and Zoos be quashed.
The appellant was appointed as a Lower Division Clerk ill the Department of Museums and Zoos, Trivandrum in 1949.
She was confirmed in that post in 1950.
The Ist respondent was appointed as a Lower Division Clerk in The same Department in 1955 and was confirmed ill 1963.
On April 9, 1962 the appellant, on her own request department transfer to the Department of Agriculture.
her rank was an inter departmental transfer.
Though on transfer the appellant became the junior most employee in the Department of Agriculture, her rank and lien were maintained in the Department of Museums and Zoos.
In course of time vacancy arose in the post of the Upper Division Clerk in the Department of Museums and zoos.
One M. section Pillai was the senior most Lower Division Clerk in that Department but when The post of promotion was offered to him he declined it on the ground of ill health.
The appellant was next in order of seniority amongst the Lower Division Clerks ill the Department of Museums and Zoos and since her rank and lien in that Department were maintained, she was offered the post of the Upper Division Clerk.
She conveyed her inability to accept that post for the time being and thereupon the 1st respondent, who was next in order of seniority, was appointed provisionally as an Upper Division Clerk.
His appointment was made without prejudice to the claims of the seniors in the Department of Museums and Zoos.
on the retirement of M. section Pillai, a permanent vacancy in the post of the Upper Division Clerk arose in the Department of Museums and Zoos.
On July 6, 1970 the appellant, who was working in the Department of Agriculture, conveyed her willingness to accept that post.
By an order dated March 18, 1971 she was appointed as an Upper Division Clerk and later on May 3, 1971 she was further promoted as a Senior Superintendent.
Both of these appointments as also the order by which his representation was rejected by the Government, were challenged in the Writ Petition by the 1st respondent.
The High Court of Kerala allowed the writ petition holding that under the relevant rules, the appellant was not entitled to be re transferred to her parent department and without a valid order of re transfer she could not be appointed as an Upper Division Clerk in that Department.
The High Court therefore quashed the order dated March 18. ;1 1971 by which the appellant was appointed as an Upper Division Clerk and the orders consequent upon it.
377 There are two things in favour of the appellant and they must first be mentioned.
The order dated April 9, 1962 passed by the Director of Museums and Zoos by which the appellant was transferred to the Department of Agriculture expressly mentions that her lien and rank will be maintained in the Department of Museums and zoos.
It is therefore plain that if and when the appellant rejoined the Department of Museums and Zoos in conformity with the rules and regulations, she would occupy the rank which she would have occupied but for her transfer to the Department of Agriculture.
Secondly, the order dated April 4, 1968 passed by the Director of Museums and Zoos by which the 1st respondent was appointed as an Upper Division Clerk in the Department of Museums and Zoos mentions expressly that he was appointed in the higher post for the time being only and that the appointment was made without prejudice to the claims of his seniors.
In the Department of Museums and Zoos the appellant was senior to the 1st respondent and therefore her claim of seniority would not be affected by the appointment of the 1st respondent as an Upper Division In spite of this position, the appellant 's appointment as an Upper Division Clerk in the Department of Museums and Zoos is invalid because such an appointment could be made only if, in the first place, the appellant was entitled under the relevant rules to return to her parent .
department.
It was common ground that the appellant 's right to re turn to the Department of Museums and Zoos was governed by the notification issued by the Government of Kerala on January 2, 1961.
Paragraph 2 of that notification reads thus: : A permanent person need not be required to relinquish his permanency.
He may be permitted to retain his permanent lien in the old post until he is confirms in the new unit or department, but he can come back to the old unit or department only if and when there is no vacancy for him to continue in the new unit, or if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him.
" It is clear from this provision that a person can return to his parent department ill one of the two contingencies only.
He can return if There is no vacancy for him to continue ill the new unit to which he is transferred.
Admittedly, there was a vacancy available to the appellant in the Department of Agriculture in which she could have continued and therefore this clause has no application.
The second contingency in which a person can return to his parent Department is if his pay in the substantive post in the parent department becomes higher than his pay in the post held by him in the department to which he is transferred.
The question which arises for consideration is whether by reason of this clause, The appellant was entitled to go back to her old unit.
If she would validly go back, there is no doubt that it was open to the Government to appoint her to the post of an Upper Division Clerk.
The High Court, in our opinion, was right in taking the view that "pay ill the substantive post in the parent department" means the pay 378 attached to the post substantively held by the employee on the date of transfer to another department.
since the substantive post held by the appellant on the date of her transfer to the Department of Agriculture was that of a Lower Division Clerk, what must be considered is whether the pay which the appellant would have drawn in that post, had she continued in her parent department, had for any reason become higher than the pay drawn by her in the post held by her in the Department of ' Agriculture.
It is undisputed that the pay which the appellant would have drawn as an Upper Division Clerk in her parent department on March 18, 1971 was not higher than the pay which she was drawing in the Department of Agriculture.
Since under Paragraph 2, an employee can come back to his old unit or department, "only if and when either of the two conditions is satisfied, the appellant was not entitled to return to her parent department.
Unless she could validly revert to her old unit, she could not be appointed to a post higher than the one substantively held by her in that unit on the date of her transfer.
It is urged on behalf of the appellant that the pay which she would draw in the post of an Upper Division Clerk in tile parent department after her re transfer to that department, would be higher than the pay which she was drawing In the post which she was holding in the Department of Agriculture and therefore she would be entitled to re 1) turn to her parent department under the second of the two condition mentioned above.
It is impossible to accept this contention.
The substantive post held by the appellant, apart from the impugned order of promotion, was that of a Lower Division Clerk in the Department of Museums and Zoos.
The comparison therefore has to be between the pay of that post and the pay of the post which the appellant was holding in the department to which she was transferred.
The order dated March 18, 1961 by which the appellant was appointed as an Upper Division Clerk in the Department of Museums and Zoos is therefore illegal and was rightly quashed by the High Court. 'the order dated May 3, 1971 further promoting the appellant as a Senior Superintendent must fall with that order.
The appeal is accordingly dismissed.
F Civil Appeal No. 248 of 1975: , This appeal is filed by the state of Kerala against the same judgment of the High Court which gave rise to the appeal just disposed of by us.
In accordance with the view taken by us in C.A. No. 247 of 1975, this appeal must be dismissed.
While admitting these two appeals, this Court had directed that the Government of Kerala shall pay the costs of the 1st respondent, A. Satyavan, in any event.
Accordingly, the Government of Kerala shall pay the costs of the 1st respondent.
Costs shall be in one set only.
P.B.R. Appeal dismissed.

summary:
The appellant who was a Lower Division Clerk in a department of the State Government had gone on transfer to another department on her own request.
Under a notification issued by the State Government.
a person could revert to his parent department (i) only if and when there is no vacancy for him to continue in the new unit or (ii) if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him.
The appellant was offered a temporary post of U.D.C. in the parent department but she declined.
The first respondent was therefore promoted to the post.
When a permanent vacancy of Upper Division Clerk occurred in the parent department the appellant was appointed to the post and was later promoted to higher post.
In a petition under article 226 of the Constitution filed by respondent No. 1 the High Court quashed the order of the appellant 's appointment and her promotion to the higher post.
Dismissing the appeal to this Court.
^ HELD: The order by which the appellant was appointed as an Upper Division Clerk in the parent department was illegal and was rightly quashed by the High Court.
The order promoting the appellant must fall with that order.
[378F] (I ) Since under paragraph of the notification an employee can come back to his old unit or department "only if and when" either of the two conditions is satisfied.
the appellant was not entitled to return to her parent department.
Unless she could validly revert to her old unit she could not be appointed to a roost higher than the one substantively held by her in that unit on the date of her transfer.
[378B C] (2) Pay in the substantive post in the parent department means the pay attached to the Post substantively held by an employee on the date of transfer to another department.
The pay which the appellant would have drawn as an Upper Division Clerk in her parent department on the date of her appointment was not higher.
than the pay which she was drawing in the new unit.
The substantive post held by the appellant apart from the impugned order of promotion was that of a Lower Division Clerk.
The comparison therefore has to be between the pay of that post and the pay of the post which the appellant was holding in the department to which she was transferred.
[377 H, 378E]