judgement:
ition (Civil) No. 619 of 1987 (Under Article 32 of the Constitution of India).
Dr. Y.S. Chitale, Brij Bhushan, S.K. Dhingra, Anil Kumar Gupta and B.N. Singhvi for the Petitioners.
B. Datta, Additional Solicitor General, P.P. Rao, C.M. Nayyar and Girish Chandra for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The above petition was originally filed by two members of the Delhi Higher Judicial Service, by name S/Shri R.L. Gupta and S.M. Aggarwal.
Since the Court was of the view that the petition of Shri S.M. Aggarwal should be considered independently, he was asked to file a separate petition.
The present petition was, therefore, confined to Shri R.L. Gupta, who is hereafter referred to as 'the petitioner '.
Shri R.L. Gupta, the petitioner joined the Judicial Service of Punjab on January 23, 1962 and became a member of the Delhi Judicial Service on its initial constitution on August 2, 197l.
He was confirmed in the said service as a Sub Judge on August 6, 1971.
He was sent on deputation as the first District & Sessions Judge, Sikkim at Gangtok on August 19, 1976.
While he was on such deputation he was promoted as Additional District & Sessions Judge in the Delhi Higher Judicial Service under rule 16 of the Delhi Higher Judicial Service Rules, 1970.
At the end of his period of deputation the petitioner came back to Delhi and joined as an Additional District & Sessions Judge.
In June, 1979 the petitioner was sent on deputation as Registrar, Special Courts, New Delhi and he remained on deputation until March.
Between March, 1980 and June, 1981 the petitioner again worked as an Additional District & Sessions Judge, Delhi.
On 14.6.1981 on the establishment of the Delhi Legal Aid and Advice Board the petitioner was sent on deputation as the first Member Secretary of that Board.
When he was still working as the Member Secretary of the Delhi Legal Aid and Advice Board, on April 26, 1985 the Government of India appointed a Commission of Inquiry presided over by Shri Justice Ranganath Misra, Judge, Supreme Court of India under the provisions of section 3 of the for the purpose of making enquiries into a matter of public 262 importance namely, the allegations in regard to the incidents of organised violence in Delhi following the assassination of Smt.
Indira Gandhi, the late Prime Minister of India.
On May 27, 1985 the Central Government addressed a letter to the Registrar of the Delhi High Court requesting the High Court to spare the services of the petitioner for being appointed as the Secretary of the Commission, referred to above.
The said letter reads thus: "CONFIDENTIAL/MOST IMMEDIATE D.O.NO.II.
14013/28/84 IS(US:D.V.) GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS North Block New Delhi 110001 27th May, 1985.
S.K. PACHAURI DIRECTOR (IC II) Dear Miss Mehra, The Central Government vide Notification dated 26.4.1985, has appointed a Commission of Inquiry under the Chairmanship of Shri Ranganath Misra, a sitting Judge of the Supreme Court of India for the purposes of making an enquiry into the allegations in regard to the incidents of organised violence which took place in Delhi following the assassination of the former Prime Minister (copy enclosed).
One of the posts sanctioned for the functioning of this Commission is Secretary to the Commission in the scale of Rs. 2500 2750.
With the approval of Shri Justice Ranga Nath Misra, it has been proposed to appoint Shri Ramesh war Lal Gupta, Additional District and Sessions Judge and Member Secretary of the Delhi Legal Aid and Advice Board as Secretary of the Commission.
The post of Secretary has been created from the date it is filled in and upto 26.
10.1985 for the present but likely to continue.
We shall be grateful if you could kindly spare the service of Shri Rameshwar Lal Gupta to act as Secretary of the Commission for the aforesaid period.
This may be treated as Urgent.
263 Regards, Yours sincerely, Sd/ (Dr. S.K. Pachauri) Miss Usha Mehra Registrar, Delhi High Court, New Delhi.
Encl: As above." On receipt of the said letter the petitioner was asked by the High Court whether he was willing to work as the Secretary of the Commission.
The petitioner expressed his willingness to do so by his letter dated May 30, 1985.
On 31.5.85/ 1.6.85 the Registrar addressed a letter to the petitioner which reads thus: "Usha Mehra D.O. No. 279/Gaz.
Dated:31st May, 1985/ 1.6.85 Dear Shri R.L. Gupta, In pursuance to the requisition of the Central Govt.
contained in the Ministry of Home Affairs demi official letter No. II 14013/28/84 IS (US.D.V.) dated 27th May, 1985 and as desired by you and agreed to by the High Court, you are hereby permitted to go on deputation as Secretary to the Commission of Inquiry headed by Hon 'ble Mr. Justice Ranganath Misra, a Judge of the Supreme Court of India with effect from 1st June, 1985 at your own risk.
Deputation will be upto 26th October, 1985 or till the date of your recall, whichever is earlier.
Yours sincerely, Sd/ (USHA MEHRA) 264 Shri R.L. Gupta, Member Secretary, Delhi Legal Aid & Advice Board, New Delhi.
" Accordingly, the petitioner got himself relieved from the Delhi Legal Aid and Advice Board and joined as Secretary of the Commission of Inquiry.
Within three months from the date on which the petitioner joined the Commission, the Chief Justice of the Delhi High Court wrote a letter to Shri Justice Ranganath Misra stating that it had been decided by the High Court to place the petitioner on probation on the Delhi Higher Judicial Service as his turn had come for the same and, therefore, he might be relieved from his post of the Secretary of the Commission to enable him to report to the High Court as soon as possible but in any case not later than ten days from the receipt of the said communication.
On receipt of the said letter Shri Justice Ranganath Misra wrote to the Chief Justice of the Delhi High Court stating that the petitioner had got himself acquainted with the working of the Commission and at that juncture it was difficult to relieve him in the public interest.
Accordingly, he was not relieved by the Commission to revert to the Judicial Service.
The letter of Shri Justice Ranganath Misra was considered by the Full Court of the High Court at its meeting held on 22.11.85 and the following resolution was passed: "Shri R.L. Gupta had been on deputation with Delhi Legal Aid & Advice Board.
Vide this Court 's demi official letter No. 293/Gaz./VI.E.l0 dated 23.8.84 and D.O. No. 269/Gaz./VI.E.l0 dated 18.5.1985 he was asked to revert back to his parent cadre for being considered to be placed on probation.
Mr. R.L. Gupta instead of reverting back, went on second deputation as Secretary to R.N. Misra Commission of Enquiry at his own request and risk.
Shri R.L. Gupta was asked vide this Court 's endt.
No. 457 dated 26.8.85 to come back to parent cadre within l0 days otherwise the next person shall be placed on probation.
Mr. R.L. Gupta refused to come back and got it intimated through Justice R.N. Misra vide demi official letter dated 19 8.85 that he had come on deputation at his own risk.
Hence the case of Shri R.L. Gupta for being placed on probation was considered and as he has declined to be available to be placed on probation at his own risk, the same has been rejected.
Then the officers next to him were considered and the following officers were selected for 265 being placed on probation against regular vacancies: 1.
Shri Jaspal Singh 2.
Shri S.C. Jain 3.
Shri R.K. Sain 4.
Shri Mohd. Shamim 5.
Shri P.K. Jain.
" By the above resolution S/Shri Jaspal Singh, S.C. Jain, R.K. Sain, Mohd. Shamim and P.K. Jain were allowed to supersede the petitioner.
During the period of his deputation as Secretary to the Commission of Inquiry twelve more officers were placed on probation by 22.8.1986.
Thus in all seventeen Judicial officers were allowed to supersede the petitioner.
On the completion of the work of the Commission of Inquiry on October 31, 1986 the petitioner was posted again as Additional District & Sessions Judge and was placed on probation for a period of two years with effect from April 4, 1987.
Aggrieved by the aforesaid supersession the petitioner filed the above petition before this Court questioning the validity of the supersession on several grounds, some of them being common to the petitioner and Shri S.M. Aggarwal who had been impleaded as Petitioner No. 2.
Since the case of the petitioner can be disposed of on a short ground we do not propose to express our opinion on the grounds which are common to the petitioner, S.M. Aggarwal and other Judicial officers working in the Delhi Higher Judicial Service.
The contentions of the parties on those grounds are left open.
The short question which arises for consideration in this case is whether the supersession of the petitioner made by the High Court by placing seventeen officers, who were junior to him, on probation before he was placed on probation is valid or not.
While the petitioner 's contention is that no officer who is sent on deputation can be made to suffer from any evil consequences and that on his return to his parent department he should be placed in the same position in seniority which he would have occupied had he not gone on deputation, the submission made on behalf of the High Court is that the petitioner having gone on deputation at his own risk, he could not be placed on probation as an Additional District & Sessions Judge till 4.4.1987 and he was bound to lose his seniority.
It was further urged on behalf of the High Court that those Judicial officers who were junior to him in the seniority list but who had been placed on probation as Additional District and Sessions Judge before 4.4 1987 were entitled to be treated as his seniors.
266 At the hearing of this case we asked the learned counsel appearing for both the parties to show whether there were any rules governing the deputation of an officer working in the judicial department.
No such rules were produced before us.
This case has, therefore, to be determined on the principles of justice, equity and relevant judicial precedents.
In the State of Mysore vs M.H. Bellary, ; the facts of the case were these.
The respondent in that case, M.H. Bellary, was a Government servant in one of the departments of the Bombay Government.
He was sent on deputation to another department and after serving there for a long period and getting a number of promotions he was reverted back to his parent department and ordered to be posted at a considerably lower grade, while another Government servant who was below his rank had been promoted as Assistant Secretary.
Thereupon the respondent therein filed a petition before the High Court of Mysore (Karnataka) under Article 226 of the Constitution of India challenging the order of his posting.
There was a rule, rule 50(b) in the Bombay Civil Services Rules which read as follows: "50(b).
Services in another post, other than a post carrying less pay referred to in clause (a) of rule 22 whether in a substantive or officiating capacity, service on deputation and leave other than extra ordinary leave count for increments in the time scale applicable to the post on which the Government servant holds a lien as well as in time scale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended: Provided that Government may, in any case in which they are satisfied that the leave was taken on account of illness or for any other cause beyond the Government servant 's control, direct that extra ordinary leave shall be counted for increment under this clause.
" That rule referred to the right of the Government servant who goes on deputation to earn increments in the pay scale applicable to the post on which he held a lien on his return to the parent department from the department to which he had been deputed.
One of the questions which arose for consideration in that case also was whether the respondent who had gone on deputation was entitled to claim the promotion which he would have got in his parent department had he 267 not been sent on deputation.
The High Court accepted the case of the respondent therein who had filed the writ petition and granted him the relief sought by him.
Aggrieved by the decision of the High Court the appellant, State of Mysore, filed an appeal before this Court.
In that appeal this Court observed thus: The other submission of learned counsel was that a Government servant though he had a right to increments in a time scale applicable to the post that he held on the date of his transfer on deputation and on which he had a lien, had no legal right to be promoted to a higher post and that the construction adopted by the High Court virtually conceded or guaranteed to officers on deputation a right to an automatic promotion which they would not have had if they had not been posted on deputation.
We see no force in this contention either.
Learned Counsel is right only in so far as the promotion involved relates to a selection post.
But where it is based on seniority cum merit, those considerations are not relevant.
The service of an officer on deputation in another department is treated by the rule as equivalent to service in the parent department and it is this equation between the services in the two departments that forms the basis of Rule 50(b).
So long therefore as the service of the employee in the new department is satisfactory and he is obtaining the increments and promotions in that department, it stands to reason that that satisfactory service and the manner of its discharge in the post he actually fills, should be deemed to be rendered in the parent department also so as to entitle him to promotions, which are often on seniority cum merit basis.
What is indicated here is precisely what is termed in official language the 'next below rule ' under which F an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted.
If there are adverse remarks against him in the new department o punishments inflicted on him there, different considerations would arise and these adverse remarks etc.
would and could certainly be taken into account in the parent department also, but that is not the position here.
In view of the facts of the case it is not necessary to discuss this aspect in any detail or any further." (underlining by us) 268 The above decision was followed by this Court in the State of Mysore and Another vs P.N. Nanjundiah and Another, 3 S.C.C. 633.
In that case this Court observed thus: "So long as the service of the employee in the new department is satisfactory and he is obtaining the increments and promotions in that department, it stands to reason that the satisfactory service and the manner of its discharge in the post he actually fills, should be deemed to be rendered in the parent department also so as to entitle him to promotion which are open on seniority cum merit basis.
" It is not disputed in this case that the petitioner would have been placed on probation as a matter of course on 22.11.1985 if he had been serving as an Additional District and Sessions Judge and would have continued to be senior to Shri Jaspal Singh who was placed on probation on that date.
In regard to the quality of the work rendered by the petitioner in the capacity of the Secretary to the Commission of Inquiry headed by Shri Justice Ranganath Misra, we may quote the certificate issued by Shri Justice Ranganath Misra on 29.11.1986.
It reads thus: "Shri R.L. Gupta, a Member of the Delhi Superior Judicial Service, worked as the Secretary of the Commission of Inquiry set up under my Chairmanship to inquire into the atrocities in Delhi, Kanpur and Bokaro following the assassination of the late Prime Minister Mrs. Indira Gandhi.
He worked in the Commission in that capacity from the beginning of June, 1985 till October, 1986.
Shri Gupta handled his job with ability and efficiency.
He impressed me as a brilliant judicial officer.
I found him to be well versed in law.
He exhibited character, courage and sagacity.
I was impressed by his sense of social vision, legal acumen and capacity to comprehend human problems.
" On his return to the Delhi Judicial Service from the Commission of Inquiry the High Court placed him on probation with effect from 4.4.1987.
The question for consideration, therefore, is whether it is just and reasonable to deprive the petitioner of his seniority only because he was not working in the Delhi Higher Judicial Service dur 269 ing the period when his juniors were allowed to supersede him.
We are not impressed by the submission made on behalf of the High Court that the petitioner having been informed by the High Court that he was going on deputation at his own risk he could not retain his seniority over his juniors who were placed on probation during the period of deputation.
It is well known that many officers have to be sent on deputation in the public interest to other departments in order to meat the exigencies of public service and that before sending them on deputation their consent is invariably taken.
Merely because they have given their consent to go on deputation they should not be allowed to suffer unless there is a specific rule to the contrary or other good reason for it.
That is the ratio of the decision in State of Mysore vs M.H. Bellary (supra) and of the decision in State of Mysore and Anr.
vs P.N. Nanjundiah (supra).
These decisions declare that an officer on deputation is entitled to get increments in the pay scale attached to the post in their parent department and also to get promotion when it is based on seniority cum merit as and when his junior in the parent department is promoted by the application of the 'next below rule '.
When increments and promotion can be earned, there is no reason why he should not be treated as being on probation also in the post held by him in the parent department even while he is on deputation.
In this case the petitioner was not even sent on deputation to a department where his services could be absorbed permanently.
He was sent on deputation as Secretary to a Commission which was asked to enquire into a certain matter of public importance which was to be over in a short time.
The Commission itself was to become functus officio on the submission of its report.
The Commission was presided over by a Judge of the Supreme Court of India and it was not possible for him to give up his post as Secretary of the Commission without the permission of the Chairman of the Commission and to return to the Delhi Judicial Service.
He continued in the post of the Secretary to the Commission of Inquiry as the Chairman of the Commission found it difficult to relieve him in the midst of the inquiry.
The object of placing an officer on probation is only to assess whether he is suitable for the post to which he is appointed.
It is not necessary that such assessment should always be made by the appointing authority unless there is any legal impediment.
Such assessment can also be made by the authority under whom the officer is required to work on deputation.
In the instant case the authority under whom the petitioner was asked to work while on deputation was a Judge of the Supreme Court of India who had approved the service of the petitioner as can be seen from the certificate issued on 29.11.1986 which is extracted above.
It may also 270 be seen from the decision of this Court in O.P. Singla & Anr.
vs Union of India & Ors.
, ; that the High Court had placed some of the officers of the Delhi Higher Judicial Service on probation for the purpose of confirming them in the Delhi Higher Judicial Service while they were on deputation in other departments.
Shri D.C. Aggarwal was placed on probation while he was working as a Member of the Sales Tax Tribunal, Shri Mahesh Chandra was placed on probation while he was a Member of the Central Government Industrial Tribunal and Ms. Santosh Duggal had been placed on probation during her tenure as Member, Customs, Excise and Gold Control Appellate Tribunal.
It is stated that the High Court declined to place the petitioner on probation when he was working as the Secretary of the Commission on account of the observation made by Justice Mukharjee in O.P. Singla 's case (supra) at page 396 of the Reports that such probations while the officers were on deputation were meaningless formalities.
But the High Court overlooked that the same learned Judge had observed little lower down in the said judgment that "an appointment on probation is not a jurisprudential sine qua non for absorption into the services, though normally and generally various rules of different services make such provisions as rule 12(2) here.
But as has been noted in the working out the practice of Delhi Judicial Service placement of promotees on probation has not been very strictly followed.
The promotees cannot suffer for this." Even though it had been stated that the petitioner was sent on deputation at his own risk to the Commission of Inquiry it would be unjust to hold that the High Court could have on the facts and circumstances of this case passed orders which would have the effect of superseding the petitioner.
We also fail to appreciate the implication of the observation made in the course of the resolution of the High Court that the petitioner had 'refused to come back and got it intimated through Justice R.N. Misra vide demi official letter dated 19.8.85 that he had come on deputation at his own risk. ' It was not truly a case of refusal on the part of the petitioner to go back to the Delhi Higher Judicial Service nor can it be said that he was responsible for what Shri Justice R.N. Misra had written.
Shri Justice R.N. Misra found it difficult to relieve the petitioner in the midst of the inquiry for obvious reasons and that could not be used against the petitioner for depriving him of his seniority.
The stand taken by the High Court in this case cannot, therefore, be upheld.
We may, however, state at this stage that Shri P. Dutta, Additional Solicitor General of India appearing on behalf of the Union of India has very fairly supported the case of the petitioner.
At this stage we have to observe that no innocent officer should 271 be exposed to the grave risk to which the petitioner has been exposed in this case.
In the instant case, the petitioner was promoted as an Additional District and Sessions Judge under rule 16 of the Delhi Higher Judicial Service Rules in 1976.
The post to which he was promoted was called a temporary post although truly it was not a temporary post.
Neither the High Court nor the Delhi Administration ever believed that the post to which the petitioner was promoted would ever cease to exist.
There was no chance of its abolition at all.
Yet it was called a temporary because it was in excess of the strength of the posts in the Delhi Higher Judicial Service which had been fixed at 16 by rule 4 read with the Schedule attached to the Delhi Higher Judicial Service Rules in the year 1970.
If the Schedule had been amended from time to time by increasing the number of posts keeping pace with the reality of the situation perhaps the strength should have been increased to 50 by now.
Rule 12(2) of the said Rules states that all candidates, other than those appointed at the initial constitution of the Service on appointment to the Service shall be on probation for a period of two years.
In the circumstances by appointing the Judicial officers of the Higher Judicial Service to temporary posts instead of appointing them to permanent posts the Delhi Administration has virtually made a mockery of the rules of recruitment.
To place a Judicial officer, promoted to the Higher Judicial Service, on probation nearly 9 years after his promotion as in this case is a mere farce.
Ordinarily an officer should be on probation from the date of his appointment and if he is found unsuitable within the period of probation he should be weeded out of service.
We are told that the reason for not placing a judicial officer on probation on his appointment is that the strength of the cadre is fixed at 16.
Is it just and reasonable to place an officer on probation nearly 9 years after his appointment and then turn him out of service if his services are found to be not satisfactory during the period of probation which would fall in the 10th and 11th year of his service in that cadre? The Administrators should know that the work in courts has increased by two or three times in almost every court during the last decade.
The population has increased by 20 crores during this period.
Laws have multiplied, transactions have increased and people are becoming more and more conscious of their rights.
But the number of Judges has remained constant.
This has led to frustration amongst litigants, lawyers and Judges.
This frustration gives rise to different kinds of tensions including the tension which is now prevailing in the city of Delhi.
We are told that the Delhi High Court has been pressing for the appointment of more number of Judges.
The High Court 272 addressed a letter to the Delhi Administration requesting it to sanction 169 additional posts in the Delhi Judicial Service on 16.1.1983.
The Delhi Administration sought some clarifications.
In reply the High Court has again by its letter dated 7th/ 11th January, 1988 urged for the sanctioning of 169 posts.
This letter shows that as on 1.9.1987 in the courts manned by the officers of the Delhi Judicial Service (who on promotion will be members of the Delhi Higher Judicial Service) there were 51,173 Regular Suits, 1210 Small Cause Suits, 974 Civil Appeals, 10,592 Rent cases, pending before courts dealing with such cases.
There were 97,943 cases pending before the courts of Chief and Additional Chief Metropolitan Magistrates and 2,35,033 cases pending before other Magistrates as on 1.9.1987.
The Delhi Administration appears to have not taken any serious notice of the appalling situation prevailing in the Delhi courts.
The Administrators should not look at the recommendation as one which is intended to provide some jobs to lawyers.
They should look at the recommendation of the High Court as one intended to give relief to the suffering litigants who waste their valuable time near courts for years waiting for justice.
This is a problem which should be solved on a war footing.
The Delhi Administration should straightaway increase the strength of the Delhi Judicial Service at least by 150, increase the number of posts in the Delhi Higher Judicial Service at least by 40, establish court premises in different parts of the Union Territory of Delhi and see that the pending cases which are in the order of lakhs, many of which are lingering for the last ten years and more, are disposed of within two years.
If the total strength is increased at all levels, this farce of placing the Judicial officers on probation after nearly ten years will also end.
We must also observe that the Government should not consider finance as a constraint because by not appointing sufficient number of Judges the Government is suffering more financially.
The Government itself being a big litigant is subjected to several orders of stay, prohibitory orders, injunctions etc.
leading to delay in completion of several projects and works.
The indirect effects of frustration amongst the people lead to a greater financial drain.
We may add here that if by any chance the arrears of cases come down, then the vacancies in judicial posts may not be filled up.
The expenditure on judicial department will thus automatically come down.
We hope that the Union of India and Delhi Administration will sanction at least 150 more posts in the Delhi Judicial Service and about 40 posts in the Delhi Higher Judicial Service and also take immediate steps to establish additional courts.
We also suggest that the expenditure on judicial administration should not be subjected to the constraints of non plan expenditure.
The judicial department is not an unproductive department.
Peace and tran 273 quility that will result from quick disposal of cases is much more valuable than the economic goods produced by factories.
Delay in disposal of cases affects the gross national product adversely.
In fact peace and tranquility will help in greater production of economic goods.
Quick disposal of cases will also save millions of man hours which are now being wasted near the courts in India.
There must be a change of attitude on the part of the Governments and the administrators at the secretariats.
It is imperative that every State should increase the strength of Judicial officers at least by thirty per cent immediately.
Otherwise there would be a catastrophe in about a year or two.
It is hoped that this warning will not go unheeded.
We are of the view that the petitioner in this case should have been placed on probation on 22.11.1985 even though he was on deputation on that date and on his confirmation he is entitled to maintain his seniority above Shri Jaspal Singh.
We, therefore, direct that the petitioner shall be deemed to have been on probation from 22.1.1985 and his services shall be regulated accordingly.
The petitioner shall also be deemed to be above Shri Jaspal Singh in the seniority list of officers in the Delhi Higher Judicial Service.
In making this order, as already stated, we have not considered the other contentions raised in the petition including the contention that the petitioner should be deemed to have been on probation from the date of his promotion to the cadre of Additional District Judge or any other date prior to 22.11.1985.
All those contentions are left open.
The Writ Petition is allowed accordingly.
There is no order as to costs.
S.L. Petition allowed.

dataset_name: IN-Abs

summary:
% This writ petition was originally filed in this Court by two members of the Delhi Higher Judicial Service, namely, Shri R.L. Gupta and Shri S.B. Aggarwal, but as the Court was of the view that the case of Shri S.B. Aggarwal should be considered independently, he was asked to file a separate petition, and this petition was confined to Shri R.L. Gupta only.
The petitioner, Shri R.L. Gupta, who had become a member of the Delhi Judicial Service on its initial constitution on August 2, 1971 and was confirmed in the said service as a sub judge on August 6, 1971, was working as an Additional District and Sessions Judge, Delhi, when on 14.5.1981, on the establishment of the Delhi Legal Aid and Advice Board, he was sent on deputation as the first Member Secretary of that Board.
Thereafter, when the Government of India on April 26, 1985 appointed a Commission of Inquiry presided over by Shri Justice Ranganath Misra, Judge, Supreme Court of India, to enquire into the allegations in regard to the incidents of organised violence following the assassination of Smt.
Indira Gandhi, the late Prime Minister of India, the Central Government by letter dt.
May 27, 1985, requested the Delhi High Court to spare the services of the petitioner for being appointed as Secretary to the Commission above mentioned and upon the petitioner 's expressing his willingness to work as Secretary to the said Commission, he was permitted by the High Court to go on deputation to the Commission with effect from 1st June, 1985 at his own risk.
Within three months from the date on which the petitioner had joined the Commission as its Secretary, the Chief Justice of the Delhi High Court wrote to Shri Justice Ranganath Misra, that it had been decided by the High Court to place the petitioner on probation on the Delhi Higher 256 Judicial Service as his turn had come for the same and, therefore, he might be relieved from the Commission to enable him to report to the High Court as soon as possible not later than ten days from the receipt of that communication.
Shri Justice Ranganath Misra thereupon wrote to the Chief Justice of the Delhi High Court that the petitioner had got himself acquainted with the working of the Commission and it was difficult at that juncture to relieve him in public interest.
The letter of Shri Ranganath Misra was considered by the High Court at its meeting held on 22.11.1985, when a resolution was passed to the effect that Shri R.L. Gupta, who had been on deputation with the Delhi Legal Aid & Advice Board, was asked to revert back to his parent cadre for being considered to be placed on probation, but he, instead of reverting back, went on a second deputation as Secretary to R.N. Misra Commission of Inquiry at his own request and risk; he was asked vide High Court 's endt.
dated 26.8.85 to come back to parent cadre within ten days otherwise the next person would be placed on probation, and Mr. R.L. Gupta refused to come back and got it intimated through Justice R.N. Misra vide letter dt.
19.8.85 that he had come at his own risk.
The Resolution further said that the case of Shri R.L. Gupta for being placed on probation was considered and as he had declined to be available to be placed on probation at his own risk, the same had been rejected and that the officers next to him were then considered and five officers Shri Jaspal Singh and four others were selected for being placed on probation against regular vacancies.
By the above said resolution, Shri Jaspal Singh and four others were allowed to supersede the petitioner.
Further, twelve more officers were placed on probation.
Thus, in all seventeen judicial officers were allowed to supersede the petitioner.
On completion of the work of the Commission of Inquiry on October 31, 1986, the petitioner was posted as Additional District & Sessions Judge, and placed on probation for a period of two years with effect from April 4, 1987.
Aggrieved by the supersession, the petitioner filed this writ petition before this Court, questioning the validity of the supersession on several grounds, some of them being common to the petitioner and SHRI S.B. Aggarwal who had been impleaded as petitioner No. 2.
Since the case of the petitioner could be disposed of on a short ground, the Court did not express its opinion on the grounds common to the petitioner and Shri S.B. Aggarwal and other judicial officers working in the Delhi Higher Judicial Service, and the contentions on those grounds were left open.
257 Allowing the writ petition, the Court, ^ HELD: The short question which arose for consideration in this case was whether the supersession of the petitioner made by the High Court by placing seventeen officers, junior to him, on probation before he was placed on probation was valid or not.
No rules governing the deputation of an officer working in the judicial department were produced before the Court.
The case, therefore, had to be determined on the principles of justice, equity and relevant judicial precedents.
[265F; 266A B] It was not disputed that the petitioner would have been placed on probation as a matter of course on 22.11.85 if he had been serving as an Additional District and Sessions Judge and would have continued to be senior to Shri Jaspal Singh who was placed on probation on that date.
[268C D] In regard to the quality of the work rendered by the petitioner in the capacity of the Secretary to the Commission of Inquiry headed by Shri Justice Ranganath Misra, the certificate issued by Shri Justice Ranganath Misra on 29.11.86 inter alia said: "Shri Gupta handled his job with ability and efficiency.
He impressed me as a brilliant judicial officer.
I found him to be well versed in law.
He exhibited character, courage and sagacity.
I was impressed by his sense of social vision, legal acumen and capacity to comprehend human problems." [268D G] On his return to the Delhi Judicial Service from the Commission of Inquiry, his being placed on probation by the High Court with effect from 4.4.87, raised the question for consideration whether it was just and reasonable to deprive the petitioner of his seniority only because he was not working in the Delhi Higher Judicial Service during the period when his juniors were allowed to supersede him.
[268G H; 269A] The Court was not impressed by the submission made on behalf of the High Court that the petitioner having been informed by the High Court that he was going on deputation at his own risk, he could not retain his seniority over his juniors who were placed on probation during the period of deputation.
It is well settled that many officers have to be sent on deputation in the public interest to other departments in order to meet the exigencies of public service and that before sending them on deputation their consent is invariably taken.
Merely because they have given their consent to go on deputation they could not be allowed to suffer unless there is a specific rule to the contrary or other 258 good reason for it.
That is the ratio of the decision in State of Mysore vs M.H. Bellary, ; , and the decision in State of Mysore and another vs P.N. Nanjundiah and another, The petitioner was not even sent on deputation to a department where his services could be absorbed permanently.
He was sent on deputation to a Commission which was asked to enquire into a certain matter of public importance which was to be over in a short time.
The Commission itself was to become functus officio on the submission of its report.
The Commission was presided over by a Judge of the Supreme Court of India and it was not possible for the petitioner to give up his post as Secretary of the Commission without the permission of the Chairman of the Commission and return to the Delhi Judicial Service.
The Chairman of the Commission found it difficult to relieve the petitioner in the midst of the inquiry.
The object of placing an officer on probation is only to assess whether he is suitable for the post to which he is appointed.
It is not necessary that such assessment should always be made by the appointing authority unless there is any legal impediment.
Such assessment can also be made by the authority under whom the officer works while on probation.
In this case, the authority under whom the petitioner worked while on deputation was a Judge of the Supreme Court of India who had approved the service of the petitioner as could be seen from the certificate issued .
by him on 29.11.86, referred to above.
Even though it was stated that the petitioner was sent on deputation to the Commission of Inquiry at his own risk, it would be unjust to hold that the High Court could have on the facts and circumstances of this case passed orders which would have the effect of superseding the petitioner.
The Court could not appreciate the implication of the observation made in the resolution of the High Court that the petitioner had refused to come back and got it intimated through Justice R.N. Misra vide demi official letter dt.
19.9.85 that he had come on deputation at his own risk '.
It was not truly a case of refusal by the petitioner to go back to the Delhi Higher Judicial Service, nor could it be said that he was responsible for what Shri Justice R.N. Misra had written, and the same could not be used against him for depriving him of his seniority.
The stand taken by the High Court in this case could not, therefore, be upheld.
Shri B. Dutta, Additional Solicitor General of India appearing on behalf of the Union of India supported the case of the petitioner.
[269A H; 270F H] No innocent officer should be exposed to the grave risk to which the petitioner in this case was exposed.
The petitioner was promoted as an Additional District & Sessions Judge under rule 16 of the Delhi Higher Judicial Service Rules in 1976.
The post to which he was prom 259 oted was called a temporary post although truly it was not a temporary post.
There was no chance of its abolition at all.
Yet it was called a temporary post because it was in excess of the strength of the posts in the Delhi Higher Judicial Service which had been fixed at 16 by rule 4 read with the Schedule attached to the Delhi Higher Judicial Service Rules in the year 1970.
If the schedule had been amended from time to time by increasing the number of the posts keeping pace with the reality of the situation, perhaps, the strength should have been increased to 50 by now.
In the circumstances, by appointing the Judicial officers of the Higher Judicial Service to temporary posts instead of appointing them to permanent posts, the Delhi Administration has virtually made a mockery of the rules of recruitment.
To place a Judicial officer, promoted to the Higher Judicial Service, on probation nearly after 9 years after his promotion, as in this case, was a mere farce.
Ordinarily, an officer should be on probation from the date of his appointment.
Is it just and reasonable to place an officer on probation nearly 9 years after his appointment and then turn him out of service if his services are found to be not satisfactory during the period of probation, which would fall in the 10th and 11th year of his service in that cadre? [270H; 271A F] The petitioner in this case should have been placed on probation on 22.11.85 even though he was on deputation on that date and on his confirmation he is entitled to maintain his seniority above Shri Jaspal Singh.
The Court directed that the petitioner would be deemed to have been on probation from 22.11.85 and his services would be regulated accordingly.
The petitioner would also be deemed to be above Shri Jaspal Singh in the seniority list of officers in the Delhi Higher Judicial Service.
[273C D] OBSERVATlONS: The Administration should know that the work in the Courts has increased by two or three times during the last decade, but the number of judges has remained constant.
This has led to frustration amongst the litigants, lawyers and judges.
This frustration gives rise to tensions including the tension prevailing in the city of Delhi now.
It is reported that the Delhi High Court has been pressing for the appointment of more judges.
It has urged for the sanction of 169 additional posts in the Delhi Judicial Service.
In the courts manned by the officers of the Delhi Judicial Service (who on promotion will be members of the Delhi Higher Judicial Service), there were pending as on 1.9.87, 51,173 Regular Suits, 1210 Small Cause Suits, 974 Civil Appeals, 10,592 Rent Cases.
There were 97,943 cases pending before the courts of Chief and Addi 260 tional Chief Metropolitan Magistrates, and 2,35,033 cases pending before other magistrates as on 1.9.87.
The Delhi Administration appears to have not taken any serious notice of the appalling situation prevailing in the Delhi Courts.
The Administration should look at the recommendation of the High Court as one intended to give relief to the suffering litigants who waste their valuable time near the courts for years waiting for justice.
This is a problem which should be solved on a war footing.
The Delhi Administration should straightaway increase the strength of the Delhi Judicial Service at least by 150, the number of posts in the Delhi Higher Judicial Service, at least by 40, should establish court premises in different parts of Delhi, and see that the pending cases, in the order of lakhs, many of which lingering for the last ten years and more, are disposed of within two years.
If the total strength is increased at all levels, the farce of placing the judicial officers on probation after nearly ten years will also end.[271G H; 272A E] The Government should not consider finance as a constraint because by not appointing sufficient number of judges, the Government is suffering more financially.
The Government itself being a big litigant is subjected to several orders of stay, prohibitation, injunction etc.
, leading lo delay in completion of several projects and works.
The indirect effects of frustration amongst the people lead to a greater financial drain.
If by any chance the arrears of cases come down, then the vacancies in the Judicial posts may not be filled up.
The Court expressed the hope that the Union of India and Delhi Administration would sanction at least 150 more posts in the Delhi Judicial Service and about 40 posts in the Delhi Higher Judicial Service and also take immediate steps to establish additional courts.
The expenditure on judicial administration should not be subjected to the constraints of non plan expenditure.
The judicial department is not an unproductive department.
Peace and tranquillity that will result from quick disposal of cases is much more valuable than the economic goods produced by factories.
Delay in disposal of cases affects the gross national product adversely.
Quick disposal of cases will save millions man hours now being wasted near the courts.
It is imperative that every State should increase the strength of the Judicial officers at least by thirty per cent immediately; otherwise, there would be a catastrophe in about a year or two.
The Court expressed the hope that this warning would not go unheeded.
[272F H; 273A C] The State of Mysore vs M.H. Bellary, [1964] 7 S.C.R. 471, State of Mysore & Anr.
vs P.N. Nanjudiah & Anr., , and O.P Singla & Anr., etc., vs Union of India & Ors.
, ; 261


judgement:
Civil Appeal No. 2463 of 1982.
From the Judgment and order dated 31.
1981 of the Orissa High Court in First Appeal No. 184 of 1977.
Veenu Bhagat for the Appellants.
A.P. Mohanty and A.K. Mahapatra for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The appellants filed a suit for partition of the properties detailed in the plaint claiming 1/3rd share.
A preliminary decree was passed by the trial court which was challenged by the defendant No. 9 (original respondent No. 1 in the present appeal) before the Orissa High Court in First appeal No. 184 of 1972.
The appeal was disposed of on compromise whereby the plaintiffs ' claim to 1/3rd share was accepted as correct.
The terms of the compromise are set out in paragraph 2 of the order dated 27.3.79.
It was, however, further agreed that half of the share of the plaintiffs, i.e. 1/6th share, would go to the defendant No. 9 provided he paid a sum of Rs.40,000 290 to the plaintiffs by a particular date, failing payment within time, the decree passed by the trial court would stand confirmed as per term of the compromise.
The compromise was recorded on 27.3.1979.
According to the compromise the sum of Rs.40,000 was to be paid in two instalments; the first instalment of Rs.10,000 by 31 7 1979 and the remaining amount of Rs.30,000 by 28.2.1980.
The first instalment was paid within time but the remaining amount was not paid.
In the meantime, the decree by the High Court was formally drawn up on 6.9.1979.
In view of the default in payment of the second instalment the plaintiffs appellants deposited the sum of Rs. 10,000 received by them as the first instalment to the credit of the defendant No. 9 with the permission of the Court.
The defendant No. 9, thereafter, made an application before the High Court on 28.8.1981 for extension of the period for payment of the second instalment of Rs.30,000.
The application was allowed by the order dated 31.8.1981 which is under challenge in the present appeal.
Before proceeding to the points involved in the present appeal it will be useful to briefly state the facts.
The parties are close relations, the defendant No. 9 (original respondent No. 1) being the uncle of the plaintiffs appellants.
He died during the pendency of the appeal here and his heirs and legal representatives have been substituted as respondents.
The father of the plaintiffs Nityagopal, defendant No. 9 (original respondent No. 1) Ghosta Gopal and Brajgopal were brothers.
Nityagopal died in 1953 leaving behind the plaintiffs and their mother who also died in 1962.
According to their case, they thus became entitled to 1/3rd share in the properties belonging to the family.
The appellants were very young girls and lived with Gostha Gopal for some time after the death of their parents.
But, according to their case, they had to leave for their maternal grandmother 's place in 1964 due to the ill treatment by their uncle.
In 1965, a collusive suit for partition was commenced by both the uncles Gostha Gopal and Brajgopal, in which although the plaintiffs were impleaded as parties, their address was wrongly mentioned in the plaint.
Consequently no summons could be served on them nor did they have any information about the suit and the decree passed therein.
No share was allotted to the appellants at all.
After they learnt about the collusive suit and the decree, they filed the present suit being T.S. 32 of 1967, for setting aside the earlier decree and for partition.
The trial court accepted the plaintiffs case that the earlier decree was obtained by fraud.
The plaintiffs were awarded 1/3rd share as claimed by them.
Brajgopal became reconciled to the situation but Gostha Gopal challenged the decision in the aforementioned First Appeal No. 184 of 1972.
291 3.
The parties reached an amicable settlement and the appeal was disposed of on 27.3.1979.
Accordingly the heirs of Brajgopal (who was dead by then) got their 1/3rd share in accordance with the trial court 's decision and the suit so far as the other two branches, that is, the plaintiffs and Gostha Gopal were concerned, was disposed of on the terms as mentioned in paragraph 1 above.
According to the case of the plaintiffs appellants they had no information of the application dated 28.8.1981, filed by the defendant No. 9 for extension of the period for payment of the second instalment of Rs.30,000 and when a copy of the application was offered to their advocate he did not accept the same making an endorsement thereon that notice should be served directly on the plaintiffs as he did not continue to hold any authority on their behalf.
Despite this stand of their learned counsel in the High Court, no notice was sent to the plaintiffs and the case was listed only after two days on 31.8.1981.
The plaintiffs ' advocate although he did not represent them on that date was present in Court when the case was called out, and pointed out that there was no justification for excusing the long delay.
Earlier the court by its order dated 17.8.1981, after taking into consideration the conduct of the defendant No. 9 in not complying with the terms of the compromise, had permitted the plaintiffs to refund the sum of Rs.10,000 paid to them as the first instalment.
The plaintiffs ' counsel pointed out that the aforesaid order had finally closed the matter.
The court, however, allowed the prayer of the defendant and permitted him to pay the remaining money along with an additional sum of Rs.6,000 by way of compliance of the terms of the compromise.
The counsel who was representing the plaintiffs earlier, refused to accept the money when offered, and the court permitted the defendant to deposit the amount with the Registrar of the court observing that the same would be available to be withdrawn by the plaintiffs.
When the petitioners learnt about the order they took a copy of the same and approached this Court under Article 136 of the Constitution.
While hearing the Special Leave Petition this Court directed the Subordinate Judge, Baripada to ascertain the market value of the 1/6th share of the property in question.
The Subordinate Judge in his report to this Court stated that the value of the entire properties would be Rs.13,90,000 and the value of 1/6th share would accordingly be Rs.2,31,716.
After the parties filed a number of affidavits, special leave was granted on 30.7.1982.
Mr. Bhagat, appearing in support of the appeal, contended that an order based on the consent of the parties can be modified only 292 with further consent and it is not open to the court to alter the terms otherwise.
It was further argued that assuming the court to be so empowered, the jurisdiction has to be exercised in exceptional circumstances and only in the ends of justice.
If the High Court had directed notice to be issued to the plaintiffs, they would have placed before the court the circumstances showing that it was against the cause of justice to allow the prayer of defendant No. 9 and specially so after such a long delay.
The plaintiffs were shabbily treated by their uncle after the death of their father when they were very young and had to take refuge at their deceased mother 's parental home.
Out of the two sisters only one could be married, and the younger one could not be married as the sum of Rs.30,000 promised by the respondent No. 1 to be paid by 28.2.1980 was not actually paid.
According to the affidavit filed before this Court by way of rejoinder to the respondents ' supplementary affidavit she was not married till then.
The learned counsel, therefore, argued that there was no justification whatsoever for the High Court to condone the delay and extend the period for deposit of the money by the respondent after more than 1 1/2 years of default.
Mr. Mohanty, the learned counsel representing the contesting respondents, who have been substituted in place of the original respondent No. 1 Gostha Gopal, contended that the 6th term of the compromise dealing with the consequence of default in payment of the instalments is penal in nature and must, therefore, be held illegal.
He urged that the clause being severable from the other terms of the compromise should be ignored and the other terms of the compromise ought to be given effect to.
As a result the clause that on the nonpayment of the agreed sum by the time indicated therein the decree of the trial court would become final, must be rejected as illegal.
Reliance was placed on Section 74 of the Indian Contract Act.
It was further argued that the position with respect to an order of a court of law made on the basis of consent of parties is also the same and it is not correct to suggest that in the circumstances of the present case the court had no power to permit the respondent No. 1 to make the deposit later.
The learned counsel relied on the observations made in Charles Hubert Kinch vs Edward Keith Walcott & Ors., AIR 1929 P.C. 289, Banku Behari Dhur vs J.C. Galstaun & Anr., AIR 1922 P.C. 339 and Jagat Singh & Ors.
vs Sangat Singh & Ors., AIR 1940 P.C. 70 and the decision of this Court in Smt.
Periyakkal & Ors.
vs Smt.
Dakshyani; , It was argued that it is not right to assume that the decree of the trial court was unassailable in appeal.
The respondent No. 1 had a substantial defence which he could have suc 293 cessfully pressed if the dispute had not been amicably settled.
We do not find any merit in the argument that the impugned clause 6 of the agreement is illegal being penal in nature and has, therefore, to be ignored.
It has to be noted that the plaintiffs had in the trial court obtained a decree for partition for 1/3rd share in the suit properties and there was presumption in favour of correctness of the decree.
At the appellate stage one of the three branches represented by the heirs of Brajgopal was satisfied with the share allotted to them and the interest of Gostha Gopal (defendant No. 9) was identical to their interest.
The situation was acceptable to the defendant No. 9 also but he wanted to acquire half the share of the plaintiffs on payment of consideration.
The plaintiffs agreed and the sum of Rs.40,000 was fixed as the price.
In clause 2 of the agreement, as mentioned below, it was expressly stated thus: "The sum of Rs.40,000 agreed to be paid by defendant No. 9 to the plaintiffs as compensation for the 1/6th share shall be paid in two instalments: . " (Emphasis added) The amount was to be paid by way of price was reiterated by the use of the word "consideration" in clause 3.
It is significant to note that the defendant No. 9 in the court below or his heirs (after his death) before us have not suggested that the entire compromise should be ignored on account of the impugned clause 6.
They have been relying upon the compromise except the default clause which alone is sought to be ignored.
They insist that under the compromise the shares allotted to the different branches should be treated as final and further half of the share of the plaintiffs, i.e. 1/6th share in the suit properties should have gone to the defendant No. 9 (and after him, to them, i.e. his heirs) for Rs.40,000.
This part of the compromise is in substance an agreement for transfer by the plaintiffs of half their share for a sum of Rs.40,000 to be paid within the time indicated.
It is true that the market price of the property was higher, and a beneficial right was bestowed on the defendant No. 9 to acquire the same for an amount considerably low.
In this background the defendant was subjected to the condition that if he had to take the advantage of the bargain he was under a duty to pay the stipulated amount by the time mentioned in the agreement.
On failure to do so within time, he was to be deprived of this special benefit.
Such a clause cannot be considered to be a penalty clause.
The expression 'penalty ' is an elastic term with many different shades of meaning but it always involves an idea of 294 punishment.
The impugned clause in the present case does not involve A infliction of any punishment; it merely deprives the defendant No. 9 of a special advantage in case of default.
Coming to the next question as to whether the High Court acted rightly in extending the period for payment of the second instalment, the learned counsel for the parties have placed all the facts and circumstances of the case in detail in support of their respective arguments, and we have considered them closely and do not have any hesitation in holding that the High Court, assuming that it had the power to do so, was not justified in allowing the prayer of the defendant No. 9 permitting him to make a grossly belated payment.
Even where such a power exists it is not to be exercised liberally.
In Smt.
Periyakkal and Ors.
vs Smt.
Dakshyani; , , relied upon by the respondents, this Court thus observed: "Of course, time would not be extended ordinarily, nor for the mere asking.
It would be granted in rare cases to prevent manifest injustice.
True the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause . " In the present case, justice is manifestly in favour of the plaintiffs and against the contesting respondents and further the clause in question was not a forfeiture clause.
Even the High Court had to observe as follows: "The conduct of the appellant (i.e. the defendant No. 9) is indeed very reprehensible.
Though extensions were obtain ed from us, he did not comply with the directions and suffered order No. 72 dated 17.8.1981 to be passed.
Only when his rights were taken away did he realise the real effect of what he had lost." In view of our conclusion it is not necessary to decide the abstract question of the general power of the court in this regard.
The grievance of the plaintiffs that they were not afforded reasonable opportunity to contest the defendants ' prayer is also well founded.
The appeal in the High Court had been disposed of earlier.
After the default in payment of the second instalment occurred the present appellants placed the circumstances before the court and prayed for permission to refund the first instalment of Rs.10,000, 295 received by them so that they could take full advantage of the compromise decree.
The matter was fully considered and decided by the order dated 17.8.1981 as mentioned by the High Court in the above quoted passage.
In the situation the counsel who represented the plaintiffs in the appeal could not have been held to have continued to represent them specially when they informed the court that he had no further authority and that notice should be directly sent to the plaintiffs.
However, we do not consider it necessary to remand the matter to the High Court for fresh consideration as we have considered all the relevant materials and have come to a final conclusion on merits in favour of the plaintiffs.
For the reasons mentioned above, the order dated 31.8.1981 passed by the Orissa High Court in First Appeal No. 184 of 1972 is set aside and the application filed by Gostha Gopal Dey for extension of time is rejected.
The appeal is accordingly allowed with costs payable to the appellants by the contesting respondents.
S.L. Appeal allowed.

summary:
% The appellants had filed a suit for partition of property claiming 1/3rd share.
A preliminary decree was passed by the trial court.
Respondent No. 1 (defendant No. 9 in the suit) challenged the decree before the High Court in first appeal.
The appeal was disposed of on compromise whereby the appellants plaintiffs ' claim to l/3rd share was accepted, but it was agreed that half of the share of the plaintiffs would go to the defendant No. 9, provided he paid Rs.40,000 to the plaintiffs in two instalments, the first one of Rs.10,000 by 31.7.1979 and the second of the remaining amount, by 28.2.1980, failing which payment within time, the decree passed by the trial court would stand confirmed as per the terms of the compromise.
The first instalment was paid within time, but the remaining amount was not paid.
The defendant No. 9 made an application before the High Court on 28.8.1981 for extension of time for payment of the second instalment.
The High Court by its order dated 31.8.1981 allowed the application.
The appellants moved this Court by special leave, challenging the said order dated 31.8.1981 of the High Court.
The appellants inter alia contended that an order based on the consent of the parties could be modified only with the further consent of the parties and it was not open to the Court to alter the terms otherwise.
If the High Court had issued notice on the application for extension of time made by the defendant No. 9 to the plaintiffs appellants, they would have placed before the Court the circumstances showing that it was against the cause of justice to allow the prayer of the defendant No. 9 and specially so after such a long delay.
There was no justification whatsoever for the High Court to condone the delay and extend the period for deposit of the money, they contended.
288 The contesting respondents argued that the 6th term of the com promise dealing with the consequence of the default in payment of the instalments was penal in nature and illegal, and that the clause being severable from the other terms of the compromise should be ignored.
It was further argued that it was not correct to suggest that the Court had no power to permit the respondent No. I to make the deposit later.
Allowing the appeal, the Court, ^ HELD: There was no merit in the argument that the impugned clause 6 of the agreement was illegal being penal in nature.
It had to be noted that the plaintiffs had in the trial court obtained a decree for partition for their l/3rd share in the suit properties and there was presumption in favour of correctness of the decree.
At the appellate stage, one of the three branches of the parties, represented by the heirs of Brajgopal, and uncle of the plaintiffs appellants, was satisfied with the share allotted to them and the interest of defendant No. 9, second uncle of the plaintiffs, was identical to their interest.
The situation was acceptable to the defendant No. 9 also but he wanted to acquire half the share of the plaintiffs on payment of consideration, fixed at Rs.40,000.
The amount was to be paid by way of price.
It had not been suggested by the defendant No. 9 or his heirs that the entire compromise should be ignored on account of the impugned clause 6 thereof.
They had been relying upon the compromise except the default clause which alone was sought to be ignored.
That part of the compromise was in substance an agreement for transfer by the plaintiffs of half of their share for a sum of Rs.40,000 to be paid within stipulated time.
The market price of the property was higher, and a beneficial right was bestowed on the defendant No. 9 to acquire the property for a considerably low amount.
In this background, the said defendant was subjected to the condition that if he had to take the advantage of the bargain, he was under a duty to pay the stipulated amount within the time mentioned in the agreement.
On failure to pay within time, he was to be deprived of that special benefit.
Such a clause could not be considered a penalty clause.
The expression 'penalty ' is an elastic term with many different shades of meanings, but it always involves an idea of punishment.
The impugned clause in this case did not involve infliction of any punishment, it merely deprived the defendant No. 9 of a special advantage in case of default.
[293A H: 294A] The High Court assuming it had the power to do so, was not justified in allowing the prayer of the defendant No. 9 to make a grossly belated payment.
Even where such a power exists, it is not to be exercised liberally.
[294B C] 289 Justice was manifestly in favour of the plaintiffs and against the contesting respondents.
The clause in question was not a forfeiture clause.
[294E] The grievance of the plaintiffs that they were not afforded reasonable opportunity to contest the prayer of the defendant was also well founded; notice of the application for extension of time should have been directly sent to the plaintiffs.
The Court did not consider it necessary to remand the matter to the High Court for a fresh consideration, as it had come to a final conclusion on merits in favour of the plaintiffs.
[294G; 295B] The order dated 31.8.1981 of the High Court was set aside and the application filed by respondent No.1 defendant No. 9 for extension of time was rejected.
[295C D] Charles Hubert Kinch vs Edward Keith Walcott & Ors.
, A.I.R. 1929 P.C. 289; Banku Behari Dhur vs J.C. Galstaun & Anr., A.I.R. 1922 P.C. 339; Jagat Singh & Ors.
vs Sangat Singh & Ors., A.I.R. 1940 P.C. 70 and Smt.
Periyakkal & Ors.
vs Smt.
Dakshyani; , , referred to.


judgement:
N: Criminal Appeal No. 175 of 1988.
298 From the Judgment and order dated 10.2.86 in the High Court of Bombay in Crl.
Writ Petition No. 295 of 1986.
Kuldeep Singh, Solicitor General, Ms. A. Subhashini, Mrs. Sushma Suri and B. Parthasarthy for the Appellants.
C.L. Sareen, O.K. Khuller, R.C. Kohli and Mrs. H. Wahi for the Respondents.
The following order of the Court was delivered: O R D E R Special leave granted.
This appeal is by special leave.
The appellant who is Deputy Chief Controller of Imports and Exports filed a complaint in the Court of Chief Metropolitan Magistrate, Bombay alleging commission of offence under Section 5 of the Imports and Exports (Control) Act, 1947 by the respondents 1 and 2.
The said case got transferred to the Court of the Additional Chief Metropolitan Magistrate, 38th Court, Ballard Estate, Bombay and was numbered as 82/S of 1983.
The respondent No. 1 is a private limited company with its registered office at Bombay and the respondent No. 2 is its Managing Director.
To this complaint proviso (a) of Section 200 of the Code of Criminal Procedure was applicable.
Therefore, cognizance was taken of the offence alleged without examining the appellant.
On 17.1.1983, an application was filed on behalf of the two accused persons for recall of the summonses and dismissal of the complaint.
On 12th of May 1983, the learned Magistrate dismissed the petition.
The order of the learned magistrate was assailed before the High Court and on 2.9.1983, the High Court dismissed it.
Then the matter was brought to this Court by filing an application for special leave on 12.12.1983, this Court dismissed the leave application.
The case set down for trial after charges were framed.
An application was made to the trial court at this stage to discharge the Managing Director, Respondent No. 2 in exercise of inherent powers by contending that the company was prepared to admit its guilt and may be appropriately penalised and the Managing Director against whom there was no allegation of any criminal conduct should be discharged.
The learned Magistrate by a reasoned order dated 17th February, 1986, dismissed the application and directed that the trial should proceed against both.
That order was assailed by the respondents before the Bombay High Court by filing a criminal writ 299 petition.
The High Court by its order dated 10th July, 1986, which is impugned in this appeal, held: "On perusal of the averments it is seen that at the time the learned Trial Judge issued/processed against the petitioners accused, the Department and the State had merely filed a complaint case along with list of witnesses and documents.
None of the statements of witnesses or copies of documents were produced before the Trial Judge.
The complainant 's verification statement is also not recorded.
As such the order of issuance of process is clearly a result of non application of mind by the trial Judge.
Such order would mean that merely on filing a complaint the process could be issued.
It would be unjust to the accused if process is issued against him by the Magistrate without first satisfying himself about the nature of the case and whether there exists sufficient grounds for proceeding with the case.
Since this is not done, then in the instant case the process issued against petitioner No. 2 (Managing Director) is liable to be quashed on this ground alone.
Without short circuiting the other grounds it must be pointed out that perusal of the complaint and in particular page 23 of the complaint shows that the prosecution intends to charge petitioner No. 2 as the principal offender along with the petitioner No. 1 company.
That is not possible for the simple reason that offence under Section 5 of the Imports and Exports (Control) Act is done Principally by the licencee (Company in this case) and/or by the abetter to the offence.
There are no allegations in the complaint that the petitioner No. 2 either aided or abetted in the contravention of licence conditions by the petitioner No. 1 Company.
As such on this ground also the process issued against petitioner No. 2 is liable to be and is quashed and set aside.
" The criticism advanced by the learned Judge against the trying Magistrate is wholly untenable and is perhaps applicable to the learned Judge.
If reference had been made to Section 200 Proviso (a) of the Code of Criminal Procedure, what has been advanced as the most impressive ground for quashing the proceedings against the respondent No. 2 could not at all have been accepted.
The learned Judge obviously has not cared to look into the procedural law applicable to the factual situation before him.
The learned Judge also lost sight of the fact that similar objections had once been raised and his High 300 Court had refused to entertain the same and the order of the High Court had been upheld here by dismissing the special leave petition.
The portion we have extracted from the order of the High Court suggested that the learned Judge wanted to draw a distinction between then and now by saying that the records of investigation had not then been available.
Records of investigation are not evidence in this case and a complaint could not be quashed by referring to the investigation records particularly when the petition of the complainant did allege facts which prima facie show commission of an offence.
The learned Judge did note the fact that the licencee was a company but lost sight of the fact that a company by itself could not act.
Obviously the Company has to act through some one.
In the petition of the complainant there was clear allegation that the Managing Director had committed the offence acting on behalf of the licencee.
If the complainant 's petition had been properly scrutinized the second ground advanced in the impugned order for quashing the proceedings against the Managing Director could not have been utilised in the impugned order.
Both the grounds are wholly untenable and, therefore, the order of the High Court has got to be reversed.
We allow the appeal and vacate the order of the High Court.
Once the order of the High Court is vacated the order of the learned Magistrate would revive and the prosecution as directed by the learned Magistrate has now to continue.
The petition of the complainant at page 21 of the paper book shows that the offence was committed between 1967 and 1969 which is some 20 years back.
While we have no sympathy for the respondent No. 2 and we are clearly of the opinion that he has no equity in his favour and the delay after the complaint had been filed has been mostly on account of his mala fide move, we do not think it would be in the interest of justice to allow a prosecution to start 20 years after the offence has been committed.
If we could convict the respondent No. 2 in accordance with law, we would have been prepared to do so taking the facts of the case and conduct of the respondent into consideration but that would not be possible within the framework of the law of procedure.
We, therefore, do not propose to allow the learned Magistrate to proceed with the trial of the case at this belated stage.
We accordingly direct the case to be closed against respondent No. 2 without further delay.
Ordinarily, in a criminal case of this type there would have been no order for costs.
But keeping in view the background of the case, the manner in which the respondent No. 2 has behaved and the fact that he is squarely responsible for delaying the 301 proceedings by reiterating the same contention twice over.
We are of A the definite opinion that the respondent No. 2 should be made to suffer exemplary costs.
We accordingly direct that he shall be called upon to pay a sum of Rs. 10,000 by way of costs and the said amount is to be deposited in the trial court within one month hence failing which the trial court shall have a direction to recover the same as fine and pay the amount to the complainant.
Compliance shall be reported to the Registry of this Court.

summary:
% A complaint filed in the court of the Chief Metropolitan Magistrate by the appellant, Chief Controller of Imports and Exports, against respondents Nos. 1 and 2, a private limited company and its Managing Director for the alleged commission of an offence under section 5 of the Imports and Exports (Control) Act, 1947 was subsequently transferred to another court and cognizance of the offence alleged was taken without examining the appellant as proviso (a) of section 200 of the Code of Criminal Procedure was applicable to this complaint.
An application filed by the accused persons for recall of summons and dismissal of complaint was dismissed by the trial Magistrate.
An appeal against the aforesaid order was dismissed by the High Court.
A special leave application filed against the High Court 's order was dismissed by the Supreme Court.
An application made at the trial stage for the discharge of respondent No. 2, the Managing Director on the plea that there was no allegation of any criminal misconduct against him and the Company respondent No. 1 was prepared to admit its guilt and may be appropriately penalised, was dismissed by the trial court.
On appeal, the High Court quashed the process issued against respondent No. 2 on the ground that the order of issuance of process 297 was clearly as a result of non application of mind by the trial Judge because when the process was issued against the petitioners, the Department and the State had merely filed a complaint case along with list of witnesses and documents, and none of the statements of witnesses or copies of documents was produced before the trial Judge, and that respondent No. 2 could not be prosecuted under section 5 of the Act, as the prosecution intended to charge him as principal offender alongwith respondent No. 1 the Company and there were no allegations in the complaint that respondent No. 2 either aided or abetted in the contravention of the licence conditions by respondent No. 1 Company.
Allowing the Department 's appeal, ^ HELD: 1.1 The High Court had not cared to look into procedural law applicable to the factual situation before it.
If a reference had been made to section 200, Proviso (a) of Code of Criminal Procedure, the proceedings against respondent No. 2 could not have been quashed.
[299G H] 1.2 Records of investigation are not evidence in the instant case, and a complaint could not be quashed by referring to the investigation records, particularly when the petition of the complainant did allege facts which prima facie show commission of an offence.
[300B] The High Court overlooked the fact that similar objections raised earlier were rejected by the same High Court, and this decision was upheld by the Supreme Court, and drew a distinction between the two situations, by saying that records of investigation were not available on the earlier occasion.
[300A B] 1.3 The licensee was a company and a company by itself could not act, and has to act through someone.
Since there was clear allegation that the Managing Director had committed the offence, acting on behalf of the licensee, there was no justification for quashing the proceedings against respondent No. 2.
[300C] Order of the High Court is vacated.
However, since the offence was committed 20 years back, it would not be in the interest of justice to allow a prosecution to start and the trial to be proceeded with at this belated stage even though respondent No. 2 has no equity in his favour and the delay has been mostly on account of his mala fide move.
Hence the case against respondent No. 2 is directed to be closed forthwith.
[300E,G]


judgement:
Civil Appeal No. 50 of 1988.
From the Judgment and order dated 14.8.87 of the Punjab & Haryana High Court in Civil Revision No. 2836 of 1982.
Dr. Meera Aggarwal for the Petitioner.
347 A.B. Rohtagi, Mukul Rohtagi, Atul Tewari and Ms. Bina Gupta for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by special leave is directed against the judgment of the High Court of Punjab and Haryana dated 14th August, 1987.
The appellant took on rent the premises in dispute from the respondent at a monthly rent of Rs. 120 and executed a rent note in his favour on 19th April, 1975.
Clause 4 of the said rent note provided, inter alia, as follows: "That the tenant will run the business of English Liquor Vend in the shop will do sale of Liquor.
" The landlord, respondent herein filed a petition under section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter called 'the Act ') against the appellant on the ground of arrears of rent from 1.4.1979 to 31.8.1979 and change of user from Liquor Vend business to that of general merchandise at the shop in dispute by the appellant.
The appellant tendered the entire arrears of rent at the first date of hearing and thereafter he contested by filing written statement.
The appellant submitted that after March, 1979, the licence of liquor vend in his favour was not renewed and he had to discontinue that business of liquor vend at the shop in dispute and had to start the business of general merchandise.
According to the appellant the purpose of the user still remains commercial and that in the rent note there was no clause prohibiting the appellant to change any other business in the shop in dispute.
The Rent Controller held that the appellant had changed the user of the shop in dispute and he was liable for eviction under the Act.
There was an appeal to the Appellate Authority and the Appellate Authority dismissed the said appeal.
The appellant went in civil revision to the High Court of Punjab and Haryana.
The High Court dismissed the civil revision and upheld the eviction.
Hence this appeal.
The question is, whether a ground for eviction was made out under clause (b) of section 13(2)(ii) of the Act.
The said Act was passed to control the increase of rent of certain buildings and rented land situated within the limits of urban areas, and the eviction of the 348 tenants therefrom.
Section 13(2)(ii)(b) of the Act reads as follows: "13(2) A landlord who seeks to evict his tenant shall apply to the Controller, for direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied: (i) XX XX XX (ii) that the tenant has after commencement of 1949 Act, without the written consent of the landlord (a) XX XX XX (b) used the building or rented land for a purpose other than that for which it was leased.
" The High Court of Punjab and Haryana has relied on a Full Bench decision of the said High Court in Sikander Lal vs Amrit Lal, [1984] Punjab Law Reporter 1.
That was a case under the East Punjab Urban Rent Restriction Act of 1949.
The Full Bench of the Punjab and Haryana High Court in the facts and circumstances of that case held that it was a common ground that the premises was originally leased for the business of handlooms.
Thereafter it was used for small carding machine not occupying a space of more than 4 feet x 4 feet which converted cloth into thread.
It was held that there was no change of user.
The Full Bench, however, observed that it emerged from the long line of authorities that where the subsequent use of the premises is merely ancillary to the specific original purpose then it would imply no change of user within the meaning of the statute.
If by custom or convention or on the finding of the Court it could be held that the added use of the premises was ancillary to the main original purpose then in the eye of law it would be deemed to have been within the terms of the original lease.
It was further held that both on principle and on binding precedent it emerged that the specified original purpose could not be, according to the Full Bench, extended by adding to it any and every purpose thereto, and the same must be confined within the limitation of being either a part or parcel of, or ancillary to, the original purpose.
There the Court was concerned with section 13(2)(ii)(b) of the Act which is an identical provision as the present one.
So far as the High Court held in that case that allied business would not amount to change of user but for a business which is not allied for the business for which it was let out would amount to change 349 of user come within the mischief of clause (b) of section 13(2)(ii) of the Act, the same must be read with reservation.
Our attention was drawn to a decision of this Court in Maharaj Kishan Kesar vs Milkha Singh and others, (Civil Appeal No. 1086 of 1964 decided on 10th of November, 1965.
That was a decision under the East Punjab Urban Rent Restriction Act, 1949.
There on the facts the Court found that selling petrol was an allied business of the workshop and as such it is a part of the business.
The Court held that there is no evidence to show that in the trade a petrol pump is not regarded as a part of motor workshop business.
The sale of petrol is an allied business and would not amount to conversion to a different business or change of user.
There is nothing in the said decision which would give any assistance to the respondent in this case.
The business purposes must be adjudged in the light of the purposes of the Rent Act in question which is to control the eviction of tenants therefrom.
In the expanding concept of business now a days and the growing concept of departmental stores, we are of the opinion that it cannot be said that there was any change of user in the facts of this case which would attract the mischief of the provisions of section 13(2)(ii)(b) of the Act.
The building was rented for purpose of carrying on a business, using it for another business, it will not in any way impair the utility or damage the building and this business can be conveniently carried on in the said premises.
There was no nuisance created.
Our attention was drawn to the observations of Lord Diplock in Duport Steels Ltd. and others vs Sirs and others, at 541.
That was a decision in respect of the Trade Disputes Act 1906.
Lord Diplock said: "My Lords, at a time when more and more cases involving the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interpret them.
When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that Parliament 350 has approved as expressing its intention what that intention was, and to giving effect to it.
Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral.
In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable.
Under our constitution it is Parliament 's opinion on these matters that is paramount.
While respectfully agreeing with the said observations of Lord Diplock, that the Parliament legislates to remedy and the judiciary interpret them, it has to be borne in mind that the meaning of the expression must be found in the felt necessities of time.
In the background of the purpose of rent legislation and in as much as in the instant case the change of the user would not cause any mischief or detriment or impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which attract the mischief of section 13(2)(ii)(b) of the Act.
The High Court, therefore, was in error.
In that view of the matter this appeal is allowed and the order of eviction is set aside.
The parties will pay and bear their own costs.
N.V.K. Appeal allowed.

summary:
% The appellant tenant took on rent the suit premises from the respondent landlord on a monthly rent of Rs.120 and executed a rent note in his favour on 19th April, 1975.
Clause 4 of the rent note provided that the tenant was to run the 'business of English Liquor Vend, and do sale of liquor in the shop. ' The respondent filed a petition for eviction under section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 against the appellant on the ground of ground of rent from 1st April, 1979 to 31st August, 1979 and change of user from liquor vend business to that of general merchandise.
The appellant tendered the entire arrears of rent at the first date of hearing, and contested the eviction petition by filing a written statement contending that after March, 1979 the licence of liquor vend in his favour was not renewed, and he had to discontinue that business at the suit premises, and had to start the business of general merchandise.
It was, further, contended that the purpose of user still remained commercial and that there was no clause in the rent note prohibiting the appellant to change to any other business.
The Rent Controller held that the appellant had changed the user of the shop in dispute and that he was liable for eviction under the Act.
346 The Appellate Authority dismissed the appeal.
The High Court also dismissed the Civil Revision and upheld the order of eviction.
Allowing the Appeal, this Court, ^ HELD: 1.
The business purposes must be adjudged in the light of the purposes of the Rent Act in question which is to control the eviction of tenants therefrom.
[349C] 2.
In the expanding concept of business nowadays and the growing concept of departmental stores, it cannot be said that there was any change of user in the instant case, when the tenant converted the use of the building from liquor vend business to that of general merchandise.
The building was rented for the purpose of carrying on a business.
It was used for another business which would not in any way impair the utility or damage to the building, and the business could be conveniently carried on in the said premises.
No nuisance was also created.
The case would, therefore, not attract the mischief of section 13(2)(ii)(b).
[349D, 350E] 3.
So far as the High Court of Punjab and Haryana held in the Full Bench decision in Sikander Lal vs Amrit Lal, (1984 Punjab Law Reporter 1) that allied business would not amount to change of user but for a business which is not allied for the business for which it was let out would amount to change of user come within the mischief of clause (b) of section 13(2)(ii) of the Act, the same must be read with reservation.
[348H, 349A] 4.
When Parliament legislates to remedy a defect or a lacuna in the existing law, and the judiciary interprets them, it has to be borne in mind that the meaning of an expression must be found in the felt necessities of time.
[349G H, 350C D] Duport Steels Ltd. & others vs Sirs and others, at 541.
referred to.