judgement:
Appeal No. 1749 of 1980.
From the Judgment and Order dated 26.3.
1980 of the Gujarat High Court in Special Civil Application No. 1606 of 1975.
D.A. Dave, Vimal Dave, R. Karanjawala, Mrs. Manik Karanjawala, Jitender Singh and P.K Mullick for the Appellant.
R.R. Goswami, S.K Dholakia, P.H. Parekh, Fazal, H.K Rathod and S.C. Patel for the Respondents.
The following Order of the Court was delivered: The State of Gujarat, the appellant herein, is aggrieved against a mandamus issued by the High Court of Gujarat on March 26, 1980 'in Special Civil Application No. 1606/75 whereby its decision to impose a ratio while working out a, Quota rule was upset.
The minimum facts are these: In the State Public Works Department there was an Electrical Engineering Branch.
By Resolution dated July 10, 1972, the services in the said branch w.e.f May 1, 1972 were trifurcated on the same pattern as was 386 done in other branches.
The result was that the trifurcation ended into three cadres (1) Junior Engineers, (2) Supervisors and (3) Over seers.
The compartment of Over seers is a surplus age.
There was only one Overseer at the relevant time and he stood retired.
In substance it was a bifurcation between Junior Engineers and Supervisors, the former being graduates and the latter being diploma holders.
This exercise of the State Government was challenged in a writ petition before the High Court in Special Civil Application No. 1855/73, which was negatived by the High Court by an order dated 2nd April, 1975.
The High Court directed that in working out the trifurcation the Government must provide criterion for promotion from the three independent cadres.
In compliance thereof, the State Government adopted a Resolution dated 26.9.1975 introducing a quota rule effective from May 1, 1972 at the ratio of 2:1 for Junior Engineers and, Supervisors respectively for promotion to the posts of Deputy Engineers.
The nine contesting respondents herein preferred a writ petition being Special Civil Application No. 1606/75 before the High Court challenging the trifurcation as also the quota rule.
The High Court repelled the challenge in so far as it related to the trifurcation and the adoption of quota rule but struck down the ratio of 2:1 holding it to be unjustified as also the disparity in qualifying service from both the channels.
The High Court concluded as follows: "We are, therefore, of the opinion that though it was within the power of the State Government to bifurcate the unified cadre into two distinct cadres of Junior Engineers and Supervisors and though it was within the power of the State Government to prescribe a quota for both of them for the purpose of promotion to the higher posts of a Deputy Engineer there was no justification for prescribing the quota of 2:1 and a longer qualifying service for the Supervisors.
Therefore, the promotional rule which prescribes unequal quota and an unequal length of qualifying service for Supervisors for promotion to the posts of a Deputy Engineer is liable to be struck down.
" And accordingly it did by issuing a mandamus.
The State Government of Gujarat when appealing to this Court was unsuccessful in obtaining a stay of operation of the impugned judgment.
387 As a consequence it had to obey the mandate of the High Court which was to the effect that the ratio of 2:1 could not be enforced.
As a result the quota rule went out of gear.
It was left open all the same to the State Government to make any other rational rule in that behalf.
Even this Court on 18.12.1980, at that juncture, ordered, "Let the Government frame a fresh quota rule consistent with the High Court judgment under appeal for the purpose of making promotions during the pendency of the appeal. ' Pursuant thereto, it appears that the State Government was constrained to introducing of a Rule under Article 309 of the Constitution.
But before we advert to that Rule it would be relevant to mention that earlier in point of time, by Notification dated July 4, 1978, Rules known as Deputy Engineer (Electrical) Recruitment Rules, 1978, were framed under Article 309 of the Constitution giving a statutory clothing to the Resolutions dated 10.7.72 and 26.9.75.
Unfortunately, these statutory provisions were not brought to the notice of the High Court nor were they put to challenge.
The matter in the High Court proceeded on the assumption that an executive action of the State was under challenge.
The necessary assumptions and presumptions, well known to law and the placement of onuses went unnoticed.
In this background and facing the situation so arising the State Government issued a Notification on April 12, 1982 by causing a substitution in the earlier Rules of 1978 aforementioned by fixing t he promotional ratio from both sources at 1:1, but subjected them to the result of the instant litigation emerging from this Court.
We stand deprived of the pleadings of the parties before the High Court.
The pleadings now introduced do not help us.
Significantly, the High Court judgment is silent as to the basis on which it was persuaded to strike down the ratio of 2:1 for Junior Engineers and Supervisors respectively.
The tenor of the judgment of the High Court does however suggest that the executive flexibility, with which the Government works could not justify the fixation of the ratio of 2:1.
The High Court could not and did not substitute what was the right ratio in the circumstances and left it to the Government to devise another ratio.
Had the, factum of the legislation on the subject the Rules dated 4.7.1978, been brought to its notice, perhaps the High Court 's angle of vision would have been different.
The State has no doubt compulsively carried out the mandate but has done so with reservation so as to meet the eventuality.
No such measure can ever be permanent that would hold good for all times, to meet not only the present needs but also future exigencies as well.
Hands of the State cannot to so 388 tied down.
That would be a step retrograde to the growth and working of a democracy.
The State is now left to devise a ratio other than the ratio of 2:1 and cause a variation.
It cannot come to that ratio again.
This appears to us an undesirable situation.
It must be left to the State to get at, it again.
Though obeying the mandamus of the High Court the State must be free to arrive at the original ratio of 2:1.
On some basis the Governor of the State appears to have legislated on the subject.
It was on the writ petitioner 's (now respondents) to lay data before the High Court and bear the onus to show that the legislative measure was unfair and arbitrary, violative of Article 14 of the Constitution.
As said before no such data appears to have been placed before the High Court.
On these circumstances, we are left with no option but to upset the judgment of the High Court and remand the matter back to it for reconsideration.
In doing so we may set at rest the controversy regarding difference of length of qualifying service, from both sources.
The controversy does not survive in view of Roop Chand Adlakha & Ors.
vs Delhi Development Authority & Ors., [1989] Supp.
I SCC 116.
The High Court need not advert now to the disparity in length of qualifying service from the channels of promotion.
In the meantime, however, status quo needs to be preserved.
The substituted Service Rules of 1982 shall continue to operate till the decision of the High Court and the promotions, as before, shall continue, subject to the result of the judgment of the High Court.
In these terms we allow the appeal and set aside the judgment.
The High Court may pass appropriate orders afresh, after permitting the parties to amend their pleadings, if necessary, and putting the onus on the writ petitioners to prove unfairness in the 1978 Rules, or violation of Article 14 of the Constitution.
Since it is an old matter, we request the High Court to dispose it of as quickly as possible, preferably within six months.
No Costs.
V.P.R. Appeal allowed.

summary:
The appellant State by resolution dated 10.7.1972, trifurcated the services, in the Electrical Engineering Branch of the Public Works Department into three cadres, namely, (1) Junior Engineers, (2) Supervisors and (3) Over seers, w.e.f. 1.5.1972.
At the relevant time there was only one Overseer and he stood retired.
Therefore, In substance it was a bifurcation between Junior Engineers and Supervisors the former being graduates and the latter being diploma holders.
In a writ petition before the High Court exercise of the State was challenged.
The High Court directed the State to provide for a criterion for promotion from the three independent cadres, for working out the trifurcation.
In compliance of the order of the High Court, the appellant adopted a Resolution dated 26.9.1975 introducing a quota rule effective from May 1, 1972 at the ratio of 2:1 for Junior Engineers and Supervisors respectively for promotion to the posts of Deputy Engineers.
The respondents challenged the trifurcation and also the quota rule in a writ petition before the High Court.
384 The High Court struck down the ratio of 2:1 holding it to be unjustified as also the disparity in qualifying service from both the channels.
Hence this appeal by special leave by the State, being aggrieved against a mandamus issued by the High Court not to impose the ratio of 2:1 while working out the quota rule.
As the appellant was unsuccessful in obtaining a stay of operation of the High Court 's judgment, it had to obey the mandate of the High Court and the ratio of 2:1 could not be enforced.
This Court on 18.12.1980 ordered the Government to frame a fresh quota rule consistent with the High Court judgment for the purpose of making promotions during the pendency of the appeal and under Article 309 of the Constitution, a Rule was framed.
Earlier the appellant had framed the Deputy Engineer (Electrical) Recruitment Rules, 1978 under Article 309 of the Constitution, which were not brought to the notice of the High Court nor the Rules, 1978 were challenged.
Allowing this appeal, this Court, HELD:1.01.
The matter in the High Court proceeded on the as sumption that an executive action of the State was under challenge.
The necessary assumptions and presumptions, well known to law and the placement of onuses went unnoticed.
In this background and facing the situation so arising the State Government issued a Notification on April 12, 1982 by causing a substitution in the earlier Rules of 1978 by fixing the promotional ratio from both sources at 1:1, but subjected them to the result of the instant litigation emerging from this Court.
[387D E] 1.02.
The High Court judgment is silent as to the basis on which it was persuaded to strike down the ratio of 2:1 for Junior Engineers and Supervisors respectively.
The tenor of the judgment of the High Court does however suggest that the executive flexibility, with which the Government works could not justify the fixation of the ratio of 2:1.
The High Court could not and did not substitute what was the right ratio in the circumstances and left it to the Government to devise another ratio.
Had the factum of the legislation on the subject i.e. the Rules dated 4.7.1978, been brought to its notice, perhaps the High Court 's angle of vision would have been different [387F G] 385 1.03.
The State has no doubt compulsively carried out the mandate but has done so with reservation so as to meet the eventuality.
No such measure can ever be permanent that would hold good for all times, to meet not only the present needs but also future exigencies as well.
Hands of the State cannot be so tied down. 'Mat would be a step retrograde to the growth and working of a democracy.
[387H, 388A] 1.04.
It was on the Writ petitioner 's (now respondents) to lay data before the High Court and bear the onus to show that the legislative measure was unfair and arbitrary, violative of Article 14 of the Constitution.
No such data appears to have been placed before the High Court.
[388B] 1.05.
On these circumstances the case is remanded to the High Court for reconsideration.
[388C] Roop Chand Adlakha & Om vs Delhi Development Authority & Ors., [1989] Supp I SCC 116, referred to.
[388D]


judgement:
Appeal Nos.3465 69 of 1988.
From the Judgment and Order dated 26.10.1987 of the Punjab and Haryana High Court in C.W.P. Nos. 755, 5141 & 3659/87 & 3138/88.
357 Shanti Bhushan and Prem Malhotra for the Appellants.
Ms. Nisha Bagchi for Ms. Indu Malhotra, U.S. Chowdhary and Ravindra Bana for the Respondents.
Bhal Singh Malik and S.M. Hooda for the Intervenor.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
This batch of appeals is preferred against a common judgment of Punjab an Haryana High Court dismissing a batch of six writ petitions.
There are three wings/branches in the Public Works Department of the Government of Haryana, viz., Irrigation, Roads and Buildings and Public Health.
We are concerned herein with the Irrigation branch.
The Engineering service in the Irrigation branch comprises both class I, and class II services.
Recruitment to and conditions of service of class I are governed by the Haryana Service of Engineers Class I P.W.D., Irrigation Branch Rules, 1964 whereas recruitment to and conditions of service of class 11 is governed by Haryana Service of Engineers Class 11 P.W.D. (Irrigation Branch) Rules, 1970.
The lowest category in class I is that of Assistant Executive Engineers.
Above it is the category of Executive Engineers and above it Superintending Engineers.
Recruitment to the category of Assistant Executive Engineers is only by direct recruitment.
Recruitment to the category of Executive Engineers is (a) by direct recruitment, (b) by transfer of an officer already in class I service of the Government of India or of a State Government and (c) by promotion from class 11 service.
Sub rule (2) of Rule 5 of the class I Rules says, "recruitment to the service shall be so regulated that the number of posts filled by promotion from class 11 service shall not exceed 75% of the number of posts in the service excluding the posts of Assistant Executive Engineers for the first 10 years from the date of commencement of these Rules and thereafter shall not exceed 50% of the number of posts in the service excluding the post of Assistant Executive Engineers.
" The proviso to this sub rule, however, says that "in case an adequate number of Assistant Executive Engineers who are eligible and considered fit for promotion are not available the actual percentage of officers promoted from class 11 service may be larger than 75% or 50%, as the case may be." In other words, after the year 1974, the share of class 11 officers in the promotion quota to the category 358 of Executive Engineers categroy, shall not exceed 50%, the balance being allocated to the Assistant Executive Engineers who are also entitled to be promoted to the categroy of Executive Engineers.
But in case adequate number of Executive Engineers are not available, the said ceiling can be exceeded.
Though the Assistant Executive Engineers are in class I and Assistant Engineers are in Class II, both these categories discharge similar functions, duties and responsibilities.
Members of both these categories are posted as Sub Divisional Officers/Sub Divisional Engieers.
Both are eligible for promotion to the category of Executive Engineers as stated above, but while the cadre strength of Assistant Engineers is very large, the cadre strength of Assistant Executive Engineers is quite small, with the consequence that in the matter of promotion to the category of Executive Engineers, the Assistant Executive Engineers enjoy a marked advantage in view of the inter se quota prescribed by sub rule (2) of Rule 5.
The Assistant Executive Engineers get promoted far sooner than the Assistant Engineers.
The cadre strength of Assistant Executive Engineers is stated to be 49.
While the cadre strength of Assistant Engineers is not stated before us, it is admittedly far larger.
In the year 1985, the Haryana Public Service Commission issued a notification stating that "a combined competitive examination for recruitment to the post of Assistant Executive Engineers (C) in the P.W.D. will be held by the Haryana Public Service Commission in August/September, 1985 in accordance with the rules of Haryana P.W.D. Irrigation, B&R and Public Health Branches, as amended from time to time." Then followed the table of particulars, which must be noticed: Reserved Reserved Reserved Name Of Post No.
Of For S.c.of For B.c.
Post For exhibit Haryana Haryana Service 1 2 3 4 5 (i) Haryana Service of Engineers 15 4 2 1 Class I (Junior Sca les) in P.W.D. Public Health Branch.
359 (ii) Haryana Service of 8 2 1 enginners Class I Enginee rs Class I (Junior Scales) in P.W.D. B & R. Br.
(iii)Haryana Service of Engineers Class I (Junior Scale) posts in the P.W.D. Irrigation Branch are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the Government.
The number of posts given against each category is liable to variation.
Three posts (two for S.C.of Haryana and One B.C. of Haryana) in P.W.D. B & R Branch are reserved failing with other shall be considered.
Seven posts (four for S.C. of Haryana, two for B.C. of Haryana and one for Ex Servicemen) in P.W.D. Public Health Branch are reserved failing whom others will be considered".
It is significant to notice the wording of item (iii) in the table.
It is clear therefrom that the Public Service Commission had notified the vacancies in the category of Assistant Executive Engineers (referred in the Rules and in the notification as Engineers class I (Junior Scale)) even without a requisition from the Government.
The Commission by stating that posts in the said category "are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the Govern ment", had made it known to the candidates of the absence of authority.
Admittedly, no such demand or requisition was ever received by the Government at any time after the issuance of the said notification.
It is equally relevant to point out that under the notification, applications for selection to the category of Assistant Executive Engineers in all the three wings of the P.W.D. were called for.
The eligibility criteria and the qualifications required for appointment to the said category is stated to be indentical in all the three wings though they are governed by different sets of rules.
It is also stated before us that no separate applications were necessary and that one could apply for appointment in all or any of the three wings indicating his choice and subject to his fulfilling the prescribed qualifications.
In response to the notification aforesaid, several Engineers including 360 the appellants herein applied.
A written test was.
conducted followed by an oral interview.
On the basis of the marks obtained in the written test and the oral interview, certain persons were selected for Public Health and Buildings & Roads wings.
No selections were made for the Irrigation wing evidently for the reason that even by the date of finalisation of selections, no requisition or demand had come from the Government.
It is only then that the appellants approached the Punjab and Haryana High Court with a batch of writ petitions praying for the issuance of an appropriate writ, order or direction to the respondents (Government of Haryana and the Haryana Public Service Com mission) "to fill up 44 vacancies of Assistant Executive Engineers and others falling to the quota of direct recruits from amongst the applicants who had applied in pursuance of the advertisement. .
They asked for a further direction to the State of Haryana "to send requisition to the Respondent Commission to fill up all the vacancies in the Class I service which are meant for direct recruits forthwith and to make appointment to the class I service by the method of direct recruits as required by the Rules.
" The appellants challenged the method of selection followed by the Commission as also the refusal/failure of the Government to fill up the vacancies in the category of Assistant Executive Engineers.
The writ petitions were opposed by the Public Service Commission as also by the State Government.
The High Court dismissed the writ petitions rejecting the several contentions urged by the appellants.
In this appeal, Sri Shanti Bhushan, the learned counsel for the appellants urged the following contentions: (1) The cadre strength of Assistant Executive Engineers in the Irrigation wing is 49.
As against the said strength, there were only 5 persons holding the posts, which means the vacancies are 44 in number.
There has been no recruitment to this category since 1979.
In that year, the Government had sent a requisition for 22 posts but only 8 were selected by the Commission.
From out of these eight, only five were appointed to the category.
In the year 1983, the Government sent a requisition to the Commission for 23 posts but none were selected or appointed.
It is in this situation that the notification issued by the Commission in the year 1985 envisaged a selection to the category of Assistant Executive Engineers in the Irrigation Branch as well.
The Commission expected that in view of the vacancies earlier notified, the Government would be sending a requisition and with 361 a view to save time and effort, it included the vacancies in Irrigation wing as well in the Notification, which pertained to the vacancies in the very same category in the other two wings of the P.W.D., for which requisition was received.
The Government acted arbitrarily and unreasonably in no sending the requisition, inspite of the fact that 44 vacancies have been existing in this category in Irrigation Branch since a long number of years.
This refusal to fill up the said vacancies is mala fide and is designed to help and promote the interest of class II officers.
Though, according to the Rules, the number of promotees from class 11 in the category of Executive Engineers should not exceed 50%, the fact is that practically all the promotion posts in the category of Executive Engineers are held by erstwhile class II officers for the reason that the category of Assistant Executive Engineers in this branch is being kept practically empty.
When the statutory rules have created a particular category and a cadre strength is also fixed therefor and more particularly when a quota is reserved for them in the channel of promotion to the category of Executivie Engineers, it is not open to the Government to nullify the spirit and object behind the Rules by refusing to make appointment to the said category.
If these 44 posts are filled up, many of the appellants, if not all, are likely to be selected and appointed.
(2) The procedure adopted by the Haryana Public Service Commission is contrary to statutory Rules.
Whereas the Rules say that a candidate obtaining 50% marks in the written test is entitled to be called for viva voce, the Commission has arbitrarily prescribed a threshold of 65% which it had no jurisdiction to do.
As a result of the said arbitrary stipultion several of the appellants have been denied the opportunity of selection.
The Commission must now be directed to make selection afresh for all the three wings/branches in the Public Works Department.
With a view to clear the ground, it would be appropriate to deal with the second contention first.
It is based upon the proviso to sub rule (2) of Rule 7 of the 1964 Rules.
Rule 7 deals with direct appointment.
For the sake of convenience, we may set out sub rules (1) and (2) of Rule 7: "DIRECT APPOINTMENT: (1) A Candidate for direct appointment shall not be less than 20 years and more than 25 years on age of or before the first day of August next precedin g the last date of submission of applications to the commission; 362 Provided that: (a) in the case of candidates who are displaced persons and in whose case the age limit for admission to Engineering College had been relaxed, and in the case of candidates belonging to the Scheduled Castes, Scheduled Tribes and other backward classes the upper age limit shall be such as may be fixed by the Government from time to time.
(b) in the case of candidates possessing the requisite qualifications who are already in the service of the State Government, the upper age limit shall be 30 years; (2) The selection of candidates, including those belonging to Scheduled Castes, Scheduled Tribes or Backward Classes, shall be made by the Commission, after holding a competitive examination, the syllabus for which shall be such as may be prescribed by the Government from time to time.
The Commission shall recommend the required number of candidates after arranging their names in the order of merit and indicating which out of them belong to Scheduled Castes, Scheduled Tribes or Backward Classes: Provided that a candidate shall not be considered qualified for appointment, unless he obtains not less than forty per cent marks in each subject and also not less than fifty per cent marks in the aggregate, and no candidate who does not obtain the qualifying marks shall be called for interview by the commission.
Provided further that where a vacancy has been reserved for a person belonging to Scheduled Castes, Scheduled Tribes or Backward Classes, who secures the highest marks in the aggregate and has qualified for an appointment shall be selected irrespective of his position with respect to the other candidates.
" 363 A reading of the first proviso to Sub Rule (2) of Rule 7 shows that it prescribes a minimum percentage of marks in the written test hoth for appointment as well as for being called for interview (viva voce).
It does not create a right in the candidate, who has obtained the prescribed percentage of marks, to be called for interview.
This is how a similar Rule has been understood by a Constitution Bench of this Court in Ashok Kumer Yadav vs State of Haryana, A.I.R. 1987 S.C. 454.
Regulation 3 in the Appendix to the Haryana Civil Service (Executive) and other allied services read as follows: "3.
No candidate shall be eligible to appear in the viva voce test unless he obtains 45 per cent marks.
in the aggregate of all subjects including at least 33 per cent marks in each of the language papers in Hindi (in Devanagri Script) and Hindi Essay provided that if at any examination a sufficient number of candidates do no obtain 45 per cent marks in the aggregate the Commission may at their discretion lower this percentage to not below 40 per cent for the language papers remaining unchanged.
" Construing the said Regulation, the Court held: "it is clear on a plain natural construction of Regulation 3 that what is prescribes is merely a minimum qualification for eligibility to appear at the viva voce test.
Every can didate to be eligible for appearing at the viva voce test must obtain at least 45 per cent marks in the aggregate in the written examination.
But obtaining of minimum 45 per cent marks does not by itself entitle a candidate to insist that he should be called for the viva voce test all candidates who satisfy the minimum eligibility requirement.
It is open to the Harvana Public Service Commission to say that out of the candidates who satisfy the eligibility criterion of minimum 45 per cent marks in the written examination, only a limited number of candidates at the top of the list shall be called for interview.
And this has necessarily to be done because otherwise the viva voce test would be reduced to a farce.
It is indeed difficult to see how a viva voce test for properly and satisfactorily measuring the personality of a candidate can be carried out, if 364 over 1300 candidates are to be interviewed for recruitment to a service.
If a viva voce test is to be carried out in a thorough and scientific manner as it must be in order arrive at a fair and satisfactory evaluation of the personality of a candidate, the interview must take anything between 10 to 30 minutes.
" In view of this decision, we do not think it necessary to deal wit the decisions cited by Sri Shanti Bhushan, namely, Umesh Chandra vs Union of India, ; ; Nilima Shangla vs State of Haryana, ; and P.K Ramachandra Iyer & Ors.
vs Union of India & Ors.
, ; Suffice it to say that neither of them lays down any principle contrary to the one quoted above from Ashok Kumar Yadav.
Coming to the first submission of Sri Shanti Bhushan, the defence of the Government is to the following effect: "It is also admitted.
that cadre strength of Assistant Executive Engineer was fixed on 22.1.82 and is 49 out of which 5 persons are in position.
However, at present, there is no vacant post of Assistant Executive Engineer in the Department.
The true facts are that during the year 197980 some major projects viz. Drainage Projects, Jawahar Lal Nehru Project and Linning etc.
under the World Bank Schemes were taken into hand and there was immediate requirements of technical staff.
For this purpose and to take up the time bound works, 212 Assistant Engineers were recruited on adhoc basis and 178 Sub Divisional Officers were promoted from Junior Engineers/Draftsmen etc.
on adhoc basis to meet the immediate requirement during the aforesaid period till their replacement by the joining of regular Assistant Engineers through Haryana Public Service Commission.
The Haryana Public Service Commission recommended 176 number of Assistant Engineers in December, 1981 for regular appointment against the posts of those, who were appointed/ promoted as Assistant Engineer/Sub Divisional Officers on adhoc basis.
They were given offer of appointment on 29.1.1982.On joining of regular Assistant Engineers, the 365 services of about 45 adhoc Assistant Engineers were terminated by the Government.
The adhoc Assistant Engineers whose services were terminated by the Government filed Civil Writ Petition No. 1529/89 Amarjeet Singh and others vs State of Haryana and other, writs involving the same cause of action challenging their termination orders.
Upon regular hearing the above Civil Writ Petition, the Punjab and Haryana High Court (Hon 'ble Justice Mr. I.S. Tiwana) in its orders dated 3.9.84 decided the matter in favour of the adhoc Assistant Engineers recruited during the year 1980.
Thus the services of adhoc Assistant Engineers could not be terminated and they continued to hold the posts of Assistant Engineers, till date.
However, Government have filed Letter Patent Appeal No.186 90 of 1985 and 374 381 of 1985.Amarjeet Singh etc.
vs State and the same is pending for decision in the Hon 'ble Punjab and Haryana High Court.
Similarly, the Sub Divisional Officers, who are promoted on adhoc basis in the year 1979 80 in excess of their quota could not be reverted by the Government for want of finalisation of Ranking List for the purpose of promotion to the post of Sub Divional Officers in pursuance of the directio n given by the Hon 'ble Punjab and Haryana High Court in Civil Writ Petition No. 5630 5631 of 1981.
J.P. Gupta and Shri Krishan vs State, 1524/76 M.L. Verma vs State and 4489/82 Shri R.K Jain vs State.
" The learned counsel appearing for the Government of Haryana explains that 176 Assistant Engineers selected by the Commission in December, 1981 for regular appointment are 'in addition to 390 Officers (212 Assistant Engineers recruited on adhoc basis and 178 Sub Divisional Officers promoted from the category of Junior Engineers/Draftsment etc.
on adhoc basis).
This statement is, however, disputed by learned counsel for the appellants.
Be that as it may, the submission of the learned counsel for the Government of Haryana is this: both the Assistant Engineers and Assistant Executive Engineers are posted as Sub Divisional Officers/Sub Divisional Engineers.
There is no other posting available for them.
In the circumstances explained in the counter affidavit, a large number of Assistant Engineers are in surplus over and above the cadre strength.
They have to be posted some 366 where and they can be posted only as Sub Divisional Officers/ Sub.
Divisional Engineers.
If Assistant Executive Engineers are also appointed as demanded by the appellants, they will be in further surplus inasmuch as they too can be posted only as Sub Divisional Officers/Sub Divisional Engineers and there are no posts available to post them.
The Government is finding it difficult to give postings to the already existing Assistant Engineers, who have been recruited/promoted on adhoc basis as stated above and who could not be ousted because of the orders from courts.
It is for this reason that the Government did not send requisition for filling up the 44 posts of Assistant Executive Engineers in Irrigation" Branch.
The said decision is a bona fide decision actuated by relevant considerations.
There are absolutely no mala fides on the part of the Government in not filling up the said posts of Assistant Executive Engineers.
It is also brought to our notice that though a requisition was sent to the Commission in the year 1983 for 23 posts of Assistant Executive Engineers in the Irrigation Branch, the Government had withdrawn the said requisition on May 20, 1983 itself i.e., even before any selection could be made.
It was for this reason that no one was selected or appointed to the said category in that year.
Counsel submitted, supported by the counsel for the Commission, that in these circumstances, the Commission was justified in not selecting anyone against the post of Assistant Executive Engineers in the Irrigation wing, more particularly when the expectation of the Commission that the Government may send a requisition therefor did not materialise even by the date of finalisation of selections.
The question that arises in the above circumstances is whether the Government can be compelled to send a requisition to the Commission for the selecting Assistant Executive Engineers in respect of 44 vacant posts? and if it, can be so compelled, would it be appropriate to direct that those posts shall be filled by the candidates who applied for and appeared at the selection held in the year 1985? The first thing to notice is that the Public Service Commission had no authority to include the vacancies in the Irrigation branch in the notification issued by it when the Government had not asked for it.
The requisition from the Government was to select Assistant Executive Engineers only for the other two wings viz., Buildings and Roads and Public Health.
May be the Commission did so bona fide.
Even so, the fact remains that none were selected against the vacancies in the Irrigation branch, evidently because no demand/requisition ever arrived from the Government.
Merely because the 367 appellants appeared at such selection they did not get any right to compe either the commission or the Government to select and appoint them.
In deed, it is not as if the appellants appeared only for the vacancies in Irrigation Branch.
It was a composite notification for all the three wings.
The appellant do not say that they confined their applications to Irrigation wing alone Those selected for the other two wings had admittedly scored more marks at the selection.
Because, the appellants could not get selected against the vacancies in the other wings, they have turned their attention to Irrigation wing.
The relevance of their attack upon the selection procedure adopted by the Commission becomes clearer in this context.
Be that as it may, the mere appearance at the selection does not clothe them with the right to selection and/or appointment.
This is the principle affirmed by this court in State of Haryana vs Subhash Chandra Marwaha, ; and I.J. Divakar vs Government of Andhra Pradesh A.I.R. 1982 S.C. 1555.
At the same time, we are constrained to observe that where the Rules have created a particular category, fixed its cadre strength and have also prescribed a quota for such category in the matter of promotion to the higher category, the Government would not be justified in not making appointments to such category for over a decade unless there are very strong and good reasons therefor.
The Government would not be justified in nullifying though not in word, but in spirit the Rules in this manner.
We are also not persuaded that the defence put forward by the Government in this case is acceptable.
There is no reason why the Government did not think it fit to make some adhoc appointments to the category of Assistant Executive Engineers when it was recruiting such a large number, on adhoc basis, to the category of Assistant Engineers.
The situation in which the Government finds itself today is really of its own making.
The problem is no doubt real.
The courts have to think twice before adding the numbers to the already over loaded service.
It is not so much a question of 'punishing ' the errant but one of what to do with the surplus personnel and the consequent unwarranted burden upon the public exchequer.
On balancing the contending rights and equities, we are of the opinion that at least part of the cadre strength of Assistant Executive Engineers in the Irrigation branch should be filled up in the near future.
The question then arises whether the selection held in 1985 86 at which the appellants had appeard, should be directed to be finalised.
We do not think so.
The situation is not similar to the one considered by this court in Divakar.
That was a case where the commission called for.
applica tions pursuant to the requisition from the Government, held the interviews 368 and was about to finalise the select list that the Government withdrew the requisition.
In those circumstances, this Court, while holding that the candidates who appeared for the selection had no right to compel the commission or the Government to select and appoint them, yet gave a direction, in the interest of justice, to finalise the selection process and forward the select Kg to the Government.
The situation in this case, as already explained hereinbefore is totally different.
The only direction that can properly be made herein is to direct the Government to take steps for filling up the vacancies existing in the category of Assistant Executive Engineers in the Irrigation branch as early as possible, Atleast half the vacancies therein should be filled within a period of one year from today.
Before concluding, we must refer to certian letters relied upon by Sri Shanti Bhushan to justify the notification issued by the Commission.
He relied upon the letters of the Engineer in Chief dated 16.8.1985, 16/ 20.5.1986 and another letter written in between (the date of this letter is not given) addressed to the Government of Haryana outing that while at the moment there was no vacancy of Assistant Executive Engineer, there was a possibility of some vacancies arising on amount of retirement etc.
He, there fore, requested the Government to take.
steps to select persons therefor, Firstly, it may be noticed that the appointing authority for this category being the Government, only the Government could send the requirsition/demand to the commission and not the Engineer in Chief.
The aforesaid letters are merely in the nature of recommendation to the Government.
Secondly, all the three letters are subsequent to the notification issued by the commission calling for applications.
These letters, therefore, do not justify the commission calling for applications in respect of vacancies in the Irrigation branch.
For the above reasons the appeals are allowed partly, A direction shall issue to the, Government of Haryana to take steps for filling up the vacancies, in the category of Assistant Executive Engineers in Irrigation branch of P.W.D. as early &A possible.
in accordance with law, Atleast half the vacancies shall be filled up within am year from today.
It is further directed that if any of the candidates who had applied in pursuance of the 1985 Notification apply again, and if they are found to have become age barred, relaxation in the matter of age shall be granted to them so as to make them eligible for consideration.
No other relief co be granted In these appeals.
There shall be no order as to costs.
T.N.A. Appeals allowed.

dataset_name: IN-Abs

summary:
The Public Works Department of Government of Haryana consists of three wings viz., Irrigation, Roads and Buildings and The Engineering Service in the Irrigation Branch comprises both Class I service consisting of Assistant Executive Engineers, Executive Engineers and Superintending Engineers and Class II service including Assistant Engineers.
While the Assistant Executive Engineers are recruited by direct recruitment only, the Executive Engineers are recruited by (i) direct recruitment; (ii) by transfer; (iii) by promotion from Class II service.
, The cadre strength of Assistant Engineers, fixed under tie Rules is very large 354 as compared to the cadre strength of Assistant Executive Engineers.
For the purposes of promotion to Executive Engineers both Assistant Executive Engineers and Assistant Engineers are eligible for which inter se quota is fixed under the Rules.
The Haryana Public Service Commission issued a notification in 1985 inviting applications for selection to the posts of Assistant Executive Engineers for all the three wings of the P.W.D.
Although the requisition from the Government was to select Assistant Executive Engineers only for two wings viz. Public Health and Buildings and Roads yet the Commission notified the vacancies with respect to Irrigation Branch also stating that posts in the said category are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the Government.
On the basis of written test and interview selections were made for Public Health and Buildings and Roads wings but no selections were made for the Irrigation wing because even by the date of finalisation of selections, no requisition or demand had come from the Government.
The appellants, who were not selected, filed writ petitions in the Punjab and Haryana High Court for a direction to respondents to fill up vacancies of Assistant Executive Engineers and others falling to the quota of direct recruits from amongst the applicants who had applied in pursuance to the advertisement and for a further direction to the State of Haryana to send requisition to the Commission to fill up all vacancies which are meant for direct recruits.
The High Court dimissed all the petitions.
In appeals to this Court it was contended on behalf of the appellants that (1) the Government acted arbitrarily in not sending the requisition, inspite of the fact that vacancies in Irrigation Branch existed for a number of years; (2) when the rules created a particular category and the cadre strength was also fixed therefor and more particularly when a quota was reserved for them in the channel of promotion to the category of Executive Engineers, it was not open to the Government to nullify the spirit and object behind the Rules by refusing to make appointment to the said category , (3) the procedure adopted by the Haryana Public Service Com mission was contrary to Rules because under the Rules a candidate obtaining 50 per cent marks in the written test is entitled to be called for viva voce, but the Commission arbitrarily prescribed a threshold of 65 per 355 cent which resulted in denial of opportunity of selection to the appellants.
The stand taken by the Government of Haryana was that the decision not to send requisition for filling up the vacant posts of Assistant Executive Engineers in Irrigation Branch was bona fide and actuated by relevant considerations because a large number of Assistant Engineers, who can be posted only as Sub Divisional Officers/Sub Divisional En gineers, are in surplus over and above the cadre strength and if the Assistant Executive Engineers are also appointed as demanded by the appellants, they will be in further surplus inasmuch as they too can be posted only as Sub Divisional Officers/Sub Divisional Engineers.
Allowing the appeals in part, this Court, HELD:1.
The Public service commission had no authority to include the vacancies in the Irrigation Branch in the notification issued by it when the Government had not asked for it.
May be the Commission did so bona fide.
Even so,, the fact remains that none were selected against the vacancies in the Irrigation Branch, evidently because no demand/requisition ever arrived from the Government.
Indeed, it is not as if the appellants appeared only for the vacancies in Irrigation Branch.
It was a composite notification for all the three wings.
The appellants do not say that they confined their applications to Irrigation wing alone.
nose selected for the other two wings had admittedly scored more marks at the selection.
Therefore, the mere appearance at the selection does not clothe them with the right to selection or appointment.
[366G H, 367A C] State of Haryana vs Subhash Chandra Marwaha, [1974] 3 S.C.C. 220 and LJ.
Divakar vs Government of Andhra Pradesh, A.I.R. , relied on.
Where the Rules have created a particular category, fixed its cadre strength and have also prescribed a quota for such categroy in the matter of promotion to the higher category, the Government would not be justified in not making appointments to such category for over a decade unless there are very strong and good reasons therefor.
The Government would not be justified in nullifying though not in word, but in spirit the Rules in this manner.
[367C D] 2.1.
There is no reason why the Government did not think it fit to 356 make some ad hoc.
appointments to the category of Assistant Executive Engineers when it was recruiting such a large number, on ad hoc basis, to the category of Assistant Engineers.
At the same time, the Courts have to think twice before adding the numbers to the already over loaded service.
It is not so much a question of 'punishing ' the errant but one of what to do with the surplus personnel and the consequent unwarranted burden upon the public exchequer.
On balancing the contending rights and equities, the Court is of the opinion that at least part of the cadre strength of Assistant Executive Engineers in the Irrigation Branch should be riled up in the near future.
[367E G] 3.
The selection held in which the appellants had appeared, cannot be directed to be finalised.
The only direction that can properly be made herein is to direct the Government to take steps for filling up the vacancies existing in the category of Assistant Executive Engineers in the Irrigation Branch as early as possible.
Atleast half the vacancies therein should be filed within a period of one year from today.
[367H, 368A B] I.J. Divakar vs Government of Andhra Pradesh, A.I.R. 1982 S.C. 1555, distinguished.
A reading of the first proviso to Sub.
Rule (2) of Rule 7 shows that it prescribes a minimum percentage of marks in the written test both for appointment as well as for being called for interview (viva voce).
It does not create a right in the candidate, who has obtained the prescribed percentage of marks, to be called for interview.
[363A] Ashok Kumar Yadav vs State of Haryana, A.I.R. 1987 S.C. 454, relied On.
Umesh Chandra vs Union of India, ; ; Nilima Shangla vs State of Haryana, ; and P.K Ramachandra Iyer & Ors.
vs Union of India & Ors.
, ; , referred to.


judgement:
Appeal No. 3719 of 1991.
From the Judgment and Order dated 3.9.1991 of the Andhra Pradesh High Court in Election Petition No. 22 of 1990.
P.P. Rao, D. Prakash Reddy and A.V.V. Nair for the Appellant.
C. Sitaramaiah, B. Rajeshwar Rao, Vimal Dave, Mrs. Rani Chhabra (NP) for the Respondent.
The Judgment of the Court was delivered by BHARUCHA, J.
This is an appeal under the provisions of the Representation of the People Act, 1951, against the judgment and order of the High Court of Andhra Pradesh whereby the election of the appellant before us to the Andhra Pradesh Legislative Assembly from the Tanuku Assembly constituency was declared void and set aside in view of the finding that he had committed the corrupt practice proscribed by section 123(3) of the Act.
Section 123(3), inter alia, states that "the appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion. . or the use of or appeal to 348 religious symbols for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any other candidate is a corrupt practice".
The respondent, a candidate of the Telugu Desam Party, secured the largest number of votes at the said election, which was held on 22nd November, 1989.
The High Court found that during the election campaign posters depicting N.T. Rama Rao, the leader of the Telugu Desam Party, in the role of Lord Krishna, blowing a conch shell, had been used.
The offending poster bore at the top a 'sloka ' from the Bhagavad Gita, which said, roughly translated, that the Lord would be born upon this earth in age after age to establish dharma or righteouness.
At its bottom the offending poster stated that the deceitful Congress, which had sold out the country, should be defeated.
It was the contention of the election petitioner before the High Court, who was a voter in the Constituency, that the offending posters had been exhibited by or at the behest of the successful candidate.
It was held by the High Court that it had no doubt that the offending poster was a religious symbol, its implication being that N.T. Rama Rao, who was an incarnation of Lord Krishna, exhorted voters to defeat the deceitful Congress.
The High Court went on to consider whether the offending posters had been affixed by the successful candidate or his election agent or by any person with the consent of the successful candidate or his election agent.
It came to the conclusion that it was clear from the evidence "that the respondent or his agent or other persons with his consent have used religious symbol for the furtherance of the prospects of the respondent or for prejudicially affecting the election of the Congress I candidate '.
Accordingly, the corrupt practice under section 123(3) was found to have been established.
The High Court did not accept the case of the election petitioner in regard to the other corrupt practices that had been alleged.
Upon the basis of the finding in regard to the corrupt practice under section 123(3), the High Court allowed the election petition, declared the election of the successful candidate to be void and set it aside.
As aforestated, the successful candidate is in appeal.
The election petition alleged that the "respondent herein. . and, with his consent and connivance, his followers, supporters and his party men and election agent had resorted to large scale display of wall posters and paintings on the walls of the picture of Lord Krishna".
The offending 349 posters, which were described, had been pasted on walls at important places in all villages and towns throughout the Constituency and also on the sides of vans and vehicles used for canvassing.
The election petition stated that particulars of some of the instances where, inter alia, the offending posters were exhibited were given in Schedule A thereto.
Schedule A gave various addresses whereat the offending posters had been pasted.
Photographs would, it was stated, be produced in support of the allegation and four witnesses, would depose thereto, namely, Penicherla Rama Krishna Raju, Dukka Suri Appa Rao, Allabani Venkanna, Venni Subba Rao.
The schedule also referred to "oil painting and posters" on the publicity vans at three locations, which would be established by photographs and by leading the evidence of Bollina Satvanarayana and Kudapa Akkanna.
In his written statement the successful candidate denied the allegations afore stated.
The election petitioner filed documents along with the election petition, which included the affidavits of the four first named persons.
The affidavit of Dukkasuri Appa Rao is representative of the three affidavits of those who are alleged to have pasted the offending posters.
The fourth affidavit is of the photographer.
The affidavit of Dukkasuri Appa Rao stated that the successful candidate had assigned to him the work of pasting wall posters and he had been paid Rs. 25 per day.
Among these wall posters there were a few "photos showing Sri N.T. Rama Rao in the disguise of Lord Krishna Playing 'shanku" '.
The election petitioner examined Dukkasuri Appa Rao and Venne Subba Rao before the High Court.
He did not examine the third person who was alleged to have pasted the wall posters at the addresses mentioned in Schedule A to the petition.
The examination in chief of Dukkasuri Appa Rao and Venne Subba Rao is almost identical.
The cross examination of the former is more extensive.
It is therefore that we refer to his evidence.
Dukkasuri Appa Rao deposed that he was a labourer in Tanuku.
He and two others had pasted wall posters on behalf of the successful candidate.
They had affixed wall posters and door posters.
The posters had been given to them about 15 days prior to the election when they had gone to the Telugu Desam Party election office.
The successful candidate, his election agent and some others were present there.
The successful candidate had 350 engaged Dukkasuri Appa Rao and two others to affix the posters on wages of Rs. 25 per head.
They were given about 1500 wall posters and 5000 door posters.
The wall posters depicted N.T. Rama Rao in the role of Lord Krishna.
The wages had been paid daily.
Dukkasuri Appa Rao had retained with himself one poster because he had liked it and he had given it to the election petitioner about three months before the date of his deposition.
In cross examination Dukkasuri Appa Rao stated that he also did agricultural work.
He was not a member of the Telugu Desam Party.
He had not been called to the election office of that party either before or after the election.
while he had been working near a coffee hotel somebody, whose name he did not know, had come and called him to the Telugu Desam Party office.
The election petitioner had asked him in the Congress Party office whether he had any election posters.
He had replied that he had one and gave it to the election petitioner.
It was similar to the poster at exhibit A 2 (the offending poster).
His affidavit had been taken by the election petitioner at Tanuku.
After having made that affidavit the election petitioner had asked for the poster and he had given it to him.
It must be stated here that no evidence was led by the election petitioner to show that the offending posters had been got printed by or on behalf of the successful candidate.
Learned counsel for the election petitioner drew our attention to the cross examination of the successful candidate wherein it had been stated that he had incurred the expenditure of Rs. 4,000 upon writing wall posters, painting and other publicity and had also paid Rs. 8,000 to a printer.
These statements, however, were not followed up in further cross examination.
There is, therefore, no evidence to show that the offending posters were printed by or on behalf of the successful candidate.
There is no doubt in our mind that the offending poster is a religious symbol.
The depiction of anyone, be it N.T. Rama Rao or any other person, in the attire of Lord Krishna blowing a 'shanku ' and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Arjuna that his incarnation would be born upon the earth in age after age to restore dharma is not only to a Hindu by religion but to every Indian symbolic of the Hindu religion.
The use by a candidate of such a symbol coupled with the printing upon it of words derogatory of a rival political party must lead to the conclusion that the religious symbol was used with a view to prejudicially affect the election of the candidate of the rival political party.
351 The question, therefore, is : is it established upon the record that the offending poster was used at the election by the successful candidate or his agent or by any other person with the consent of the successful candidate or his election agent.
As has been stated, there is no evidence to show that the offending poster was printed by or at the behest of the successful candidate.
The successful candidate himself in his evidence denied that he had had the offending posters printed or pasted.
The evidence of Dukkasuri Appa Rao and Venne Subba Rao is, in our view, not satisfactory.
In the first place, the averment in the election petition was that the offending posters had been pasted by the "respondent herein who is a Telugu Desam party candidate and with his consent and connivance his followers supporters and his party men and election agent. .
Both Dukkasuri Appa Rao and Venne Subba Rao stated in the witness box that they were not members of the Telugu Desam Party.
They were called to the Telugu Desam Party election office for the first time on the day on which they were engaged for a daily wage to paste the wall posters.
The averment in the election petition that the offending posters were pasted by followers, supporters and party men of the successful candidate is, therefore, not established.
If the evidence of Dukkasuri Appa Rao and Venne Subba Rao was true the election petition would have stated that the successful candidate and his election agent had engaged Dukkasuri Appa Rao and Venne Subba Rao on daily wages to affix the offending posters.
Secondly, the offending posters were not put to Dukkasuri Appa Rao and Venne Subba Rao in examination in chief and were not identified by them as being the posters that they had pasted.
Thirdly, neither of these two witnesses identified the places at which they had pasted the offending posters.
It was not stated by them that they had pasted the posters at any of the addresses in Tanuku mentioned in Schedule A to the election petition.
The evidence of Dukkasuri Appa Rao is suspect also because he claimed to have retained one offending poster which he gave to the petitioner; this is not borne out by the election petition or the affidavit made by him.
The standard of proof in an election petition is rigorous, having regard to the quasi criminal nature of the proceeding.
We are not satisfied that upon the evidence before us the charge laid against the successful candidate under section 123(3) has been established.
Learned counsel on behalf of the election petitioner drew our atten 352 tion to the statements made by the successful candidate 's election agent in regard to a van used for canvassing.
He stated that the van toured the Constituency.
There were photographs of N.T. Rama Rao in his various film roles exhibited in the van.
He said that exhibit A 13 was a photograph which showed "that a poster showing N.T. Rama Rao in the role of Krishna blowing a conch was affixed to publicity van but I have no personal knowledge about it".
The statement that the election agent had no personal knowledge in this behalf was not probed in further cross examination.
It is also not established that the poster shown by the photograph exhibit A 13 was what we have called the offending poster in that it not only showed N.T. Rama Rao in the role of Lord Krishna blowing a conch but also contained the afore mentioned 'sloka ' from the Bhagavad Gita and the statement that the Congress was a deceitful party which should be defeated.
So far as we can ascertain from the judgment under appeal, the offending posters were produced only at exhibits A 2 and A 18.
The evidence upon the record does not, to our mind, establish that the offending posters were used at the election by the successful candidate or his election agent or with their consent.
Having regard to our finding that the charge of corrupt practice under section 123(3) has not been established, we do not find it necessary to consider the argument that the election petition did not plead all necessary material facts and did not give all necessary particulars so that the election petition was liable to be dismissed in limine.
In the result the appeal is allowed and the election petition is dismissed.
The respondent shall pay to the appellant costs quantified at Rs. 10,000.
G.N. Appeal allowed.

summary:
The appellant 's election to the Legislative Assembly was challenged by the Respondent in his election petition before the High Court.
It was contended by the election petitioner that the respondent had used a religious symbol for the furtherance of his election prospects which was a corrupt practice under Section 123(3) of the Representation of the People Act, 1951.
The High Court declared the election of the successful candidate to be void and set it aside.
The successful candidate preferred the present appeal.
On the question whether the use of a religious symbol in the election of Respondent amounted to corrupt practice u/s 123(3) of the Representation of the People Act, 1951, this court, HELD:1.1.
There is no doubt that the offending poster is a religious symbol.
The depiction of anyone in the attire of Lord Krishna blowing a 'shanku ' and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Arjuna that his incarnation would be born upon the earth in age after age to restore dharma is not only to a Hindu by religion but to every Indian symbolic of the Hindu religion.
The use by a candidate of such a symbol coupled with the printing upon it of words derogatory of a rival political party must lead to the conclusion that the religious symbol was used with a view to prejudicially affect the election of the candidate of the rival political party.
[350G H] 1.2.But there is no evidence to show that the offending poster was printed by or at the behest of the successful candidate.
The successful 346 347 candidate himself in his evidence denied that he had the offending posters printed or pasted.
The averment in the election petition that the offending posters were pasted by followers, supporters and party men of the successful candidate is not established.
[351B D] 1.3.The evidence on record does not establish that the offending posters were used at the election by the successful candidate or his election agent or with their consent.
[352D] 1.4.The standard of proof in an election petition is rigorous, having regard to the quasi criminal nature of the proceeding.
The charge laid against the successful candidate under section 123(3) has not been established on the basis of the evidence on record.
[351G]


judgement:
ivil Appeal No. 65 of 1956.
Appeal from the judgment and order dated August 31, 1954, of the Calcutta High Court in Income tax Ref.
No. 57 of 1953.
N. C. Chatterjee and B. P. Maheshwari, for the appellant.
K. N. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for the respondent.
March 26.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
Messrs.
Howrah Trading Company, Ltd., Calcutta (hereinafter called the assessee) obtained on April 28, 1955, a certificate under section 66A(2) of the Indian Income tax Act from the Calcutta High Court, to appeal to this Court against the judgment dated August 31, 1954, in Income tax Reference No. 57 of 1953.
The Divisional Bench (Chakravarti, C. J., and Lahiri, J.) in the judgment under appeal merely followed their earlier judgment delivered the same day in Income tax Reference No. 22 of 1953, since reported as Hindustan Investment Corporation vs Commissioner of Income tax (1).
It is the latter judgment which gives the reasons for the decision.
The facts of the case have been stated with sufficient fulness, yet briefly, in the statement of the case submitted by the Income tax Appellate Tribunal (Calcutta Bench) and may be conveniently set out in its own words: (1) 57 450 " The applicant had received sums of Rs. 3,831, Rs. 6,606, Rs. 7,954 and Rs. 8,304 in the four assessment years, 1944 45, 1945 46, 1946 47 and 1947 48 as income from dividends.
The shares in respect of which this dividend income was received were the property of the Applicant but in the books of the various companies these stood in the names of other persons.
It appears that these shares were purchased by the Applicant from other persons under a blank transfer but the transfers had not been registered with the various companies.
The Applicant 's claim in these income tax proceedings was that these shares although not registered in the name of the applicant were the property of the applicant.
It was further claimed that this dividend income should be grossed up under section 16(2) and credit for the tax deducted should be allowed to the Applicant under section 18(5).
" The Income tax Officer did not accept this claim, and the appeals of the assessee were rejected by the Appellate Assistant Commissioner of Income tax, Calcutta, " A " Range and by the Appellate Tribunal.
The Tribunal, however, on being moved, referred the following question to the High Court: " Whether in the facts and circumstances of this case, the Applicant (the assessee) was entitled to have this dividend income grossed up under section 16(2) and claim credit for tax deducted at source under section 18(5) of the Income tax Act? " The High Court answered the question in the negative, thus affirming the decisions of the Department and the Appellate Tribunal.
The assessee contends that the decision of the High Court is erroneous, and that it is entitled to have the dividend income I grossed up ' under section 16(2) and also to claim credit for tax deducted at source, under s.18(5) of the Income tax Act.
The relevant sections are as follows: " 16(2) : For the purposes of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been 451 paid, credited or distributed to him, and shall be increased to such amount as would, if income tax (but not super tax) at the rate applicable to the total income of the company without taking into account any rebate allowed or additional income tax charged for the financial year in which the dividend is paid, credited or distributed or deemed to have been paid, credited or distributed, were deducted therefrom, be equal to the amount of the dividend: (proviso omitted).
18 (5): Any deduction made and paid to the account of the Central Government in accordance with the provisions of this section and any sum by which a dividend has been increased under sub section (2) of section 16 shall be treated as a payment of incometax or super tax on behalf. . of the shareholder and credit shall be given to him therefor on the production of the certificate furnished under. .section 20 . in the assessment, if any, made for the following year under this Act: (proviso omitted).
49B(1): Where any dividend has been paid, credited or distributed or is deemed to have been paid, credited or distributed to any of the persons specified in section 3 who is a shareholder of a company which is assessed to income tax in the taxable territories or elsewhere, such person shall, if the dividend is included in his total income, be deemed in respect of such dividend himself to have paid income tax (exclusive of super tax) of an amount equal to the sum by which the dividend has been increased under sub section (2) of section 16.
" It was contended in the High Court that inasmuch as section 16(2) referred to an I assessee, the assessee company was entitled to have the dividend 'grossed up ' by the addition of income tax paid by the various companies at source and consequently to have the benefit of the credit allowed under the two remaining sections.
In the opinion of the High Court, an assessee whose name was not in the register of members of the companies was not entitled to the benefit of these provisions.
The learned Judges of the High Court were of the opinion that the word " shareholder " in 452 s.18(5) had the same signification as the word " member " used in the Indian Companies Act; and that the assessee was not qualified to be considered as a shareholder, even though by a blank transfer it had ,purchased the relevant shares.
In our opinion, the High Court was right in its conclusion.
A company when it pays income tax, does not do so on behalf of the shareholders.
It is itself chargeable under the Act, In Cull vs Inland Revenue Commissioners (1), Lord Atkin stated the law (which in substance is also the law in our country) thus: My Lords, it is now clearly established that in the case of a limited company the company itself is chargeable to tax on its profits, and that it pays tax in discharge of its own liability and not as agent for its shareholders. .
At one time it was thought that the company, in paying tax, paid on behalf of the shareholder; but this theory is now exploded by decisions in this House, and the position of the shareholders as to tax is as I have stated it.
" When the company pays its own income tax and declares a dividend from the balance of its profits, it deducts from such dividend a proportionate part of the amount of the tax paid by it.
This principle is explained in another English case, and it is substantially also the law in this country.
In Inland Revenue Commissioners vs Blott (2), Viscount Cave stated the law in these words: " Plainly, a company paying income tax on its profits does not pay it as agent for its shareholders.
It pays as a tax payer, and if no dividend is declared, the shareholders have no direct concern in the payment.
If a dividend is declared, the company is entitled to deduct from such dividend a proportionate part of the amount of the tax previously paid by the company; and, in that case, the payment by the company operates in relief of the shareholder.
But no agency, properly so called, is involved.
" The share holders, however, get the benefit of the payment of the tax by the company.
Though under (1) , 56 ; , 636.
(2) , 201.
453 s.16(2) of the Act their dividend is increased by a proportionate amount of tax paid by the company, the payment of the tax by the company is deemed tinder sections 18(5) and 49B(1) to be payment by the shareholders.
The rates of income tax applicable to the company are, in most instances, higher than the rates applicable to the individual shareholders, and by this process of 'grossing up ', as it is commonly called, the recipient of the dividend gets some benefit.
The position of a shareholder who gets dividend when his name stands in the register of members of the company causes no difficulty whatever.
But transfers of shares are common, and they take place either by a fully executed document such as was contemplated by Regulation 18 of Table A of the Indian Companies Act 1913, or by what are known as blank transfers '.
In such blank transfers, the name of the transferor is entered, and the transfer deed signed by the transferor is handed over with the share scrip to the trans feree, who, if he so chooses, completes the transfer by entering his name and then applying to the company to register his name in place of the previous holder of the share.
The company recognises no person except one whose name is on the register of members, upon whom alone calls for unpaid capital can be made and to whom only the dividend declared by the company is legally payable.
Of course, between the transferor and the transferee, certain equities arise even on the execution and handing over of 'a blank transfer ', and among these equities is the right of the transferee to claim the dividend declared and paid to the transferor who is treated as a trustee on behalf of the transferee.
These equities, however, do not touch the company, and no claim by the transferee whose name is not in the register of members can be made against the company, if the tranferor retains the money in his own hands and fails to pay it to him.
A glance at the scheme of the Indian Companies Act, 1913, shows that the words " member ", " shareholder " and " holder of a share " have been used interchangeably in that Act.
Indeed, the opinion of most of the writers on the subject is also the same.
454 Buckley on the Companies Act, 12th Edition, page 803 has pointed out that the right of a transferee is only to call upon the company to register his name and no more.
No rights arise till such registration ,takes place.
Section 2(16) of the Indian Companies Act, 1913, defines " share " as " share in the share capital of the company Section 5 deals with the mode of forming incorporated companies, and in the case of companies limited by shares, the liability of the members is limited to the amounts, if any, unpaid on the shares respectively held by them.
By section 18, Table A is made applicable to companies, unless by the Articles of any company the terms of Table A have been excluded or modified.
Regulation 18 of Table A reads as follows: " The instrument of transfer of any share in the company shall be executed both by the transferor and transferee, and the transferor shall be deemed to remain holder of the share until the name of the transferee is entered in the register of members in respect thereof.
" The words " holder of a share " are really equal to the word shareholder and the expression " holder of a share denotes, in so far as the company is concerned, only a person who, as a shareholder, has his name entered on the register of members.
A similar view of the Companies Clauses Consolidation Act, 1845, was taken in Nanney vs Morgan(1).
The learned Lord Justices held that under section 15 of that Act, the transferee bad not the benefit of a legal title till certain things were done, which were indicated by Lopes, L.J., in the following passage: " Therefore the transferor, until the delivery of the deed of transfer to the secretary, is subject to all the liabilities and entitled to all the rights which belong to a shareholder or stockholder, and, in my opinion until the requisite formalities are complied with, he continues the legal proprietor of the stock or shares subject to that proprietorship being divested, which it may be at any moment, by a compliance with the requisite formalities.
(1) , 356.
455 The same position obtains in India, though the completion of the transaction by having the name entered in the register of members relates it back to the time when the transfer was first made.
See Nagabushanam vs Ramachandra Rao (1).
During the period that the transfer exists between the transferor and the transferee without emerging as a binding document upon the company, equities exist between them, but not between the transferee and the company.
The transferee can call upon the transferor to attend the meeting, vote according to his directions, sign documents in relation to the issuance of fresh capital, call for emergent meetings and inter alia, also compel the transferor to pay such dividend as he may have received.
See E. D. Sassoon & Co. Ltd. vs Patch (2) approved in Mathalone vs Bombay Life Assurance Co. Ltd. (3 ).
But these rights though they, no doubt, clothe the transferee with an equitable ownership , are not sufficient to make the transferee a full owner, since the legal interest vis a vis the company still outstands in the transferor; so much so, that the company credits the dividends only to the transferor and also calls upon him to make payment of any unpaid capital, which may be needed.
The cases in Black vs Homersham (4) or Wimbush, In re Richards vs Wimbush (5) hardly advance the matter further than this.
The position, therefore, under the Indian Com panies Act, 1913, is quite clear that the expression " shareholder " or " holder of a share " in so far as that Act is concerned, denotes no other person except a " member ".
The question that arises in the present case is whether by reason of sections 16(2) and 18(5) the assessee, who was a transferee on a blank transfer ' is entitled to the benefits of the grossing up of the dividend income.
Learned counsel for the assessee strenuously contends that the assessee being an owner in equity of the shares and thus also of the dividend is entitled to this benefit.
He refers to the use of the word I assessee in section 16(2).
The Department, on the (1) Mad. 537.
(3) ; (2) (4) (1878 79) L. R. (5) 456 other hand, says that the dividend can be increased under section 16(2) and credit allowed under section 18(5) if the assessee is a 'shareholder ', because the benefit of section 18(5) can go only to the shareholder, i. e., a person with his name on the register of members, and not to a person holding an equity against such shareholder.
The assessee contends that the word " shareholder " includes even a person who holds a share as a result of a blank transfer, and does not necessarily mean a member of the company, whose name is on the register of members.
Authorities on this point are not wanting, and indeed, in the judgment of the Calcutta High Court they have all been referred to.
They are all against the assessee.
See Shree Shakti Mills Ltd. vs Commissioner of Income tax (1), Jaluram Bhikulal vs Commissioner of Income tax (2), Arvind N. Mafatlal vs Incometax Officer (3) and Bikaner Trading Co. vs Commissioner of Income tax (4).
The question that falls for consideration is whether the meaning given to the expression "shareholder" used in section 18(5) of the Act by these cases is correct.
No valid reason exists why " shareholder " as used in section 18(5) should mean a person other than the one denoted by the same expression in the Indian Companies Act, 1913.
In In re Wala Wynaad Indian Gold Mining Company (5), Chitty, J., observed: " I use now myself the term which is common in the Courts, I a shareholder ', that means the holder of the shares.
It is the common term used, and only means the person who holds the shares by having his name on the register.
" Learned counsel for the assessee cited a number of authorities in which the ownership of the dividend was in question, and it was held that the transferee whose name was not registered, was entitled to the dividend after transfer had been made.
These cases are Commissioners of Inland Revenue vs Sir John Oakley (6), Spence vs Commissioners of Inland Revenue (7) (1) (3) (5) , 854.
(2) (4) (6) , (7) 457 and others cited at page 367 in Multipar Syndicate, Ltd. vs Devitt (1).
No one can doubt the correctness of the proposition in these cases, but from an equitable right to compel the transferor to give up the dividend to the transferee, to a claim to the dividend by him as a " shareholder " against the company is a wide jump.
In so far as the company is concerned, it does not even issue the certificate under section 20 of the Income tax Act in the name of an unregistered transferee but only in the name of the transferor whom it recognises, because his name is borne on its books.
Section 20 lays down: " The principal officer of every company shall, at the time of distribution of dividends, furnish to every person receiving a dividend a certificate to the effect that the company has paid or will pay income tax on the profits which are being distributed, and specifying such other particulars as may be prescribed.
" The meaning of section 20 as also of section 18(5) is clear if they are read with section 19A, under which information regarding dividends has to be supplied by the company when demanded by the Income tax Officer.
It lays down: " The principal officer of every company . shall, on or before the 15th day of June in each year, furnish to the prescribed officer a return in the prescribed form and verified in the prescribed manner of the names and of the addresses, as entered in the register of shareholders maintained by the company, of the shareholders to whom a dividend or aggregate dividends exceeding Such amount as may be prescribed in this behalf has or have been, distributed during the, preceding year and of the amount so distributed to each such shareholder. " (Italics supplied).
Section 19A makes it clear, if any doubt existed, that by the term " shareholder " is meant the person whose name and address are entered in the register of " shareholders " maintained by the company.
There is but one register maintained by the Company.
There (1) 58 458 is no separate register of " shareholders " such as the assessee claims to be but only a register of " members ".
This takes us immediately to the register of members, and demonstrates that even for the purpose of the Indian Income tax Act, the words ',member and " shareholder " can be read as synonymous.
The words of section 18(5) must accordingly be read in the light in which the word " shareholder " has been used in the subsequent sections, and read in that manner, the present assessee, notwithstanding the equitable right to the dividend, was not entitled to be regarded as a "shareholder" for the purpose of section 18(5) of the Act.
That benefit can only go to the person who, both in law and in equity, is to be regarded as the owner of the shares and between whom and the company exists the bond of membership and ownership of a share in the share capital of the company.
In view of this, we are satisfied that the answer given by the Calcutta High Court on the question posed by the Tribunal was correct.
The appeal fails, and is dismissed with costs.
Appeal dismissed.

summary:
The assessee acquired shares in certain companies under "blank transfers " without getting the transfers registered with the companies and it received dividends in respect of these shares.
It claimed that the dividend income should be grossed up under section 16(2) Income tax Act and that it should be allowed credit under section 18(5) for the tax deducted at source on the dividend in the hands of the companies.
Held, that, the assessee was not entitled to the benefits of sections 16(2) and 18(5) as its name was not in the register of members of the companies.
The benefit of section 18(5) could only go to a shareholder; and a shareholder in that section meant the same thing as in the Indian Companies Act, 1913, i. e., a " member having his name on the register.
The scheme of the Indian Companies Act, 1913, shows that the words " member ", " shareholder " and " holder of a share " have been used interchangeably.
The words "holder of a share" are really equal to the word "shareholder" and the expression " holder of a share " denotes only a person who, as a shareholder, has his name entered on the register of members.
In re Wala Wynaad Indian Gold Mining Company, (1882) 21 Ch.
D. 849, Shree Shakti Mills Ltd. vs Commissioner of Income tax, , jaluram Bhikulal vs Commissioner of Income tax, , Arvind N. Mafatlal vs Incometax Officer, [1957] 32 I.T .
R. 350, Bikaner Trading Co. vs Commissioner of Income tax, , referred to.
A company when it pays income tax does not do so on behalf of the shareholders, but the shareholders get the benefit of such payment.
The rates of income tax applicable to the company are, in most instances, higher than the rates applicable to individual shareholders and by the process of grossing up the recipient of the dividend gets some benefit.
Cull vs Inland Revenue Commissioners, and Inland Revenue Commissioners vs Blott, , referred to.
440 In blank transfers the transfer deed signed by the transferor is handed over with the share scrip to the transferee who may complete the transfer by entering his name and applying to the company for registration of his name.
The company only recognises those persons whose names are on the register of members and they alone are legally entitled to the dividend declared.
In the case of a blank transfer equities exist between the transferor and the transferee and the transferee has a right to claim the dividend from the transferor who holds it in trust for him, but the company is only liable to the transferor and not to the transferee.
Though the transferee is clothed with an equitable ownership he is not a full owner, since the legal interest vis a vis the company still outstands in the transferor.