judgement:
Appeal No. 795 of 1963.
Appeal by special leave from the judgment and decree dated November 24, 1958, of the Madhya Pradesh High Court at Indore in Civil Special Appeal No. 5 of 1949.
C. B. Agarwala, J. D. Patel, J. B. Dadachanji 0.
C. Mathur and Ravinder Narain, for the appellant.
M. P. Amin, C. B. Sanghi V. M. Amin and L N. Shroff, for the respondents.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment and decree of the Full Bench of the High Court of Madhya Pradesh in Civil Special Appeal No. 5 of 1949, and arises out of a suit filed by the appellant, Seth Gulabchand, hereinafter referred to as the plaintiff, against heirs and legal representatives of Seth Govindram Seksaria, on the original side of the High Court of the former Indore State for specific performance of an agreement dated February 28, 1941, entered into between the plaintiff and the deceased Govindram.
Sanghi, J., decreed the suit on June 11, 1948.
Against this judgment and decree, the defendants filed an appeal to a Division Bench of the Madhya Bharat High Court and the plaintiff also preferred a cross appeal.
The Division Bench accepted the defendants ' appeal, reversed the judgment and decree of Sanghi, J., and dismissed the plaintiff 's suit as also his cross appeal.
Thereafter the plaintiff filed an appeal under section 25 of the Madhya Bharat 'High Court of Judicature Act, 1949, as it stood before it was amended by Madhya Bharat Act No. 3 of 1950.
When this appeal came up for hearing before a Full Bench of the Madhya Pradesh High Court, a preliminary objection as to the competency of the appeal was taken on behalf of the defendants respon 625 dents.
The Full Bench held that the appeal was not competent, but this Court, on appeal, held that the appeal was competent and remitted the case to the High Court for decision on merits.
On remand the Full Bench upheld the decision of the Division Bench and dismissed the appeal.
The matter is now before us.
In view of the arguments urged before us by learned counsel for the appellant, Mr. C. B. Aggarwala, it is not necessary to give in detail the history of the disputes between the parties, or all the points that were debated before the High Court.
To appreciate the arguments addressed to us it is only necessary to give the following facts.
Govindram Seksaria, Brijlal Ramjidas, Bilasrai Joharmal and four other persons entered into a deed of partnership on July 17, 1935 for carrying on the business of acting as Managing Agents and Selling Agents of Indore Malwa United Mills Ltd., a company owning a textile mill in Indore.
Serious disputes arose between the partners.
The Board of Directors of the Company appointed a Committee in November 1940 to enquire into certain allegations made against Govindram Seksaria, Brijlal and Bilasrai.
The Committee consisted of Mr. R. C. Jall as Chairman, and Seth Hiralal and the plaintiff as members.
In the meantime, the partners referred their differences to the arbitration of Col. Dina Nath, the Prime Minister of the former Holkar State.
On February 8, 1941, the Arbitrator gave an award, inter alia deciding that Govindram Seksaria should buy up the five annas shares of Brijlal Ramjidas and Bilasrai Joharmal at par and that the latter should sell their respective shares of annas two and a half each in the rupee at par and also sell the debentures held by them to Govindram Seksaria at par.
On February 12, 1941, Brijlal and Bilasrai instituted a suit in the Bombay High Court against Govindram and other partners of the Managing Agency contesting the validity of the award made by Col. Dina Nath.
They failed before the Bombay High Court and ultimately before the Privy Council.
On November 5, 1947, a deed of assignment of the four annas share of Brijlal and Bilasrai was executed in favour of the defendants as legal representatives of Govindram, who had died in the meantime in May 1946.
On November 6, 1947, the plaintiff instituted the suit out of which this appeal arises.
Various issues were raised in this suit but it is only necessary to mention issue No. 4, which was as follows: "Was the agreement to sell the two and a half annas share a bribe offered by the deceased Seth Govindram to the plaintiff to write a report favourable to him, the plaintiff being a member of the Committee of three persons appointed by the Directors of the Malwa Mills, Indore to 626 enquire into and report on the management of the Mills by Seth Govindram?" Both the Division Bench and the Full Bench on appeal have held this issue to be proved and it is common ground that if the decision of the Full Bench on this issue cannot be successfully assailed, no further point arises and the appeal must fail.
We may here state the primary facts and the findings of the Division Bench and the Full Bench.
After the award was made Govindram addressed a letter to Mr. Jall as a member of the Enquiry Committee on February 13, 1941, intimating to him that the Prime Minister of the Holkar State had given an award on February 8, 1941, in his favour, and forwarding a copy of the award.
On the same date Govindram addressed a similar letter to the plaintiff.
A day or two after the receipt of this letter by the plaintiff Govindram met him at his house and made him an offer of making him a partner of the managing agency firm by assigning two and half annas shares out of the share of Brijlal and Bilasrai which he was to get under the award.
The next day the plaintiff accepted the offer and on February 28, 1941, the agreement was concluded between the parties.
A day before the agreement was signed by the parties, Gulabchand, Plaintiff, addressed a letter to Mr. Jall, the Chairman of the Enquiry Committee, on February 27, 1941, for holding the meetings of the Committee daily so as to expedite its report.
On February 8, 1941, Govindram met Mr. Jall, and offered to sell to him one anna share, which he rejected saying that " as he was the member of the Enquiry Committee, it would look as if he was making the offer to please him." The Committee gave its final report on April 7, 1941, which was favourable to Govindram, although the interim report dated December 16, 1940, was none too favourable to him.
The plaintiff had no previous experience of the working of any Mill and had never been a managing agent of any textile mill.
Govindram was a rich man and a millionaire.
In 1942 Govindram suggested to the plaintiff that the share to be sold to him should be reduced to one and a half annas, but the plaintiff did not accept the suggestion.
Later, in 1942, when Mr. Jall questioned Govindram about the intended reduction in the share which was to be sold to the plaintiff, Govindram re plied that he did not really intend to give any share to the plaintiff or anyone and that he proposed to give the entire four annas share to the Holkar State by way of charity.
From all these facts the Division Bench inferred and con cluded that the offer of two and a half annas share by Govindram to the plaintiff, Gulabchand, was a bribe in order to induce him to report in his favour and was accepted as such by Gulabchand.
This conclusion was challenged before the Full Bench on various grounds, but the Full Bench upheld the decision.
The Full Bench 627 found that in making the offer of the sale of two and a half annas share to the plaintiff Govindram did not care for the plaintiff 's money or his services in the management of the mill because "Govindram continued to manage the Mill without the plaintiff, putting him off by saying that the contract would be fulfilled after the end of the litigation initiated by Bilasrai and Brijlal, and after the Enquiry Committee gave its final report Govindram actually suggested a reduction in the share and even told Mr. Jall that he was not going to sell it to the plaintiff or to anyone.
The ostensible reason given for the intended partnership of Gulabchand is 'too thin to hide the real reason ', and its recital in the agreement is odd in itself" The Full Bench found that the balance sheets tendered in evidence in the case showed that Govindram had earned enough money by way of selling and managing agency commission and it was not necessary for him to find a financial partner in the plaintiff and that Govindram was prepared to give the entire four annas share he had obtained under the award to the Holkar State in charity was in itself an indication that the offer of two and half annas share to Gulabchand was not made by Govindram on account of his own financial stringency.
After considering various facts the Full Bench concluded that "the share in the managing agency partnership of the mills was, therefore, not one which could be parted away easily by a partner or could be had by anyone for the mere asking and readiness to furnish the necessary proportionate capital and to purchase the debentures of the required amount, without any more.
That "any more" in the present case, is, as the learned Judges of the Division Bench have suggested, nothing else than the anxiety of Govindram to get a favourable report from the Enquiry Committee and the willingness of the plaintiff to oblige him by making a favourable report.
Taking into consideration the facts and circumstances narrated in the judgment of the Division Bench at pages 170 to 173 of the printed paper book, and those summarised above, the conclusion at which the learned Judges arrived that the transaction was in the nature of bribe to the plaintiff appears to us to have all the commendation which commonsense and the realities of the case can give it.
It is one which legitimately can be drawn from the facts and circumstances proved in the case and in accordance with the probabilities of the case.
It cannot, therefore, be maintained that the defendants have not discharged the burden of the proof that lay on them of establishing the plea of bribe.
They were not required to prove that fact beyond reasonable doubt as in a criminal case." Mr. C. B. Aggarwala, while admitting that concurrent finding& of fact cannot ordinarily be assailed before this Court, contends that in this case there is no evidence in support of the findings arrived at by the Full Bench and that the findings are based on mere surmises.
He further says that the Full Bench has misdirected 628 urges that where bribery is alleged in a civil case the same standard of proof should be required as in a criminal matter.
He further urges that the High Court should have held that Hiralal 's evidence was not admissible.
Another argument urged by him is that there was no proof at all that the plaintiff was a party to the intention of Govindram to bribe him.
He says that there is presumption that the plaintiff acted honestly and no material has been placed to displace that presumption.
We see no force in Mr. Aggarwala 's first contention that there is no evidence in support of the findings of the Full Bench or that the findings are based on mere surmises.
It is true that there is distinction between a probability and a mere surmise.
But in this case we are satisfied that the Full Bench did not rely on any surmises.
The real complaint of Mr. Aggarwala in this case seems to be that as bribery was alleged the Full Bench should have gone into the question of bribery as if it was a criminal case.
In this connection he relied on the following observations made by Woodroffe, J., in Weston vs Peary MohanDass(1).
"And speaking for myself where, whatever be the form of the proceeding, charges of a fraudulent or criminal character are made against a party thereto, it is right to insist that such charges be proved clearly and beyond reasonable doubt, though the nature and extent of such proof must necessarily vary according to the circumstances of each case.
There is a presumption against crime and misconduct, and the more heinous and improbable a crime is, the greater of necessity is the force of the evidence required to overcome such presumption.
I cannot myself imagine a Court saying to a party, who, as in this case, may be a person holding a high and responsible position, with a previous unblemished record : "It is true that I have reasonable doubts whether you did the grossly criminal acts with which you are charged, but I find that you did so all the same." And this exclusion of reasonable doubt is all that the so called "criminal proof" requires.
" Fletcher, J., the Trial Judge, relying on Jarat Kumari Dassi vs Bissesur(2) to which Woodroffe, J., was a party, had overruled the point that the standard of proof in a civil case, in which a charge ,of a criminal character is made, was the same as if the parties were being tried for a criminal offence.
He observed that in India, under the , there is no rule that the standard ,of proof in a case like the present must be the same as if the (1) Cal. 898 at 916.
(2) I.L.R. :16 C.W.N. 265.
629 defendants were being tried on a criminal charge.
This case (Jarat Kumari Dassi vs Bissesur)(1) was followed in Prasannamayi Debya ,vs Baikuntha Nath Chattoraj(2).
The Division Bench followed these observations of Jenkins, C. J., in Jarat Kumari Dassi 's(1) case : "Demonstrations, or a conclusion at all points logical cannot be expected nor can a degree of certainty be demanded of which the matter under investigation is not reasonably capable.
Accepting the external test which experience commends, the Evidence Act in conformity with the general tendency of the day adopted the requirements of the prudent man as an appropriate concrete standard by which to measure proof The Evidence Act is at the same time expressed in terms which allow full effect to be given to circumstances or conditions of probability or improbability, so that where, as in this case, forgery comes in question in a civil suit, the presumption against misconduct is not without its due weight as a circumstance of improbability, though the standard of proof to the exclusion of all reasonable doubt required in a criminal case may not be applicable.
" In section 3 of the , the words "proved", "disproved" and "not proved" and defined as follows : "Proved.
A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." "Disproved.
A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist." "Not proved.
A fact is said not to be proved when it is neither proved nor disproved.
" It is apparent from the above definitions that the applies the same standard of proof in all civil cases.
It makes no difference between cases in which charges of a fraudulent or criminal character are made and cases in which such charges are not made.
But this is not to say that the Court will not, while striking the balance of probability, keep in mind the presumption of honesty or innocence or the nature of the crime or fraud charged.
In our (1) I.L.R.
(2) I.L.R 630 opinion, Woodroffe, J., was wrong in insisting that such charges must be proved clearly and beyond reasonable doubt.
Hiralal 's evidence was sought to be ruled out on the ground that what he had stated in his evidence had not been put to the plaintiff.
HiralaI had deposed that after the award the plaintiff saw him and told him that there was some settlement between him and Govindram.
It is not necessary to decide this point because the Full Bench did not base its findings on Hiralal 'section evidence.
Mr. Aggarwala, relying on Raja Singh vs Chaichoo Singh(1) further urges that in case of circumstantial evidence the circumstances must be such so as to exclude any other reasonable possibility and he says that if this principle is applied to this case the finding of bribery must be reversed as the facts are equally consistent with the plaintiff having acted honestly.
Meredith, J., had observed as follows "Now it is well settled that where fraud is to be inferred from the circumstances, and is not directly proved, those circumstances must be such as to exclude any other reasonable possibility.
In other words, the criterion is similar to that which is applicable to circumstantial evidence in criminal cases.
" We are unable to agree with these observations.
As we have said before, the fact that the party is alleged to have accepted bribe in a civil case does not convert it into a criminal case, and the ordinary rules applicable to civil cases apply.
The learned counsel has not been able to cite any other authority to show that there is any such well settled proposition, as stated by Meredith, J. Coming to the next contention, the fact whether the plaintiff was a party to the intention of Govindram to bribe him has to be judged like any other fact on the balance of probability.
We are not satisfied that the Full Bench has misdirected itself in any manner in finding this fact.
In the end Mr. Aggarwala urges that immorality within section 23 of the Indian Contract Act is confined to sexual immorality, but we are not concerned with the question whether the consideration is immoral or not.
The case of bribery is clearly covered otherwise by section 23.
In the result we hold that the findings of the Full Bench are, not vitiated and must be accepted.
The appeal, therefore, fails and is dismissed with costs.
Appeal dismissed.
(1) A.T.R. 1940 Patna 210 at 203.

summary:
G was one of a number of partners in a firm which carried on the business of acting as Managing Agents and Selling Agents of a company owning a textile mill in Indore.
Serious disputes arose between the partners and soon thereafter the Directors of the managed company appointed a committee in November 1940, of which the appellant was a member, to inquire into certain allegations made against G and two other partbers of the managing agency firm.
In February 1941, G entered into an agreement with the appellant to sell to him a share in the partnership which was to be transferred to G by virtue of an arbitration award on the disputes between the partners.
In April 1941, the committee gave its final report which was favourable to G although the interim report of December 1940 had not been So favourable.
Upon G failing to transfer the share in the partnership as provided in the agreement of February 1941, the appellant filed a suit against the heirs and legal representatives of G for specific performance of the agreement.
The High Court decreed the appellant 's suit, but on appeal to the Division Bench of the High Court, the decree was set aside.
A further appeal to the Full Bench of the High Court was dismissed.
Both the Division Bench and the Full Bench held that the agreement to sell a share in the partnership was a bribe offered by G to the appellant to write a report favourable to him.
In the appeal to this Court, it was contended on behalf of the appellant, inter alia, that there was no evidence in support of the finding relating to bribery arrived at by the Full Bench and that the said finding was based on mere surmises; that the Full Bench had misdirected itself in not adopting a strict standard of proof and that where bribery is alleged in a civil case, the same standard of proof should be required as in a criminal case , that in case of circumstantial evidence, the circumstances must be such so as to exclude any other reasonable possibility and that if this principle was applied to the present case, the finding of bribery must be reversed as the facts were equally consistent with the appellant having acted honestly; and that immorality within Section 23 of the Indian contract Act is confined to sexual immorality.
HELD : On the facts, the Full Bench did not rely on any surmises and its findings were not vitiated.
It is clear from Section 3 of the that the same standard of proof applies in all civil cases.
It makes no difference between cases in which charges of a fraudulent or criminal character are made 624 and cases in which such charges are not made.
But this is not to say that the Court will not, while striking the balance of probability, keep in mind the presumption of honesty or innocence or the nature of crime or fraud charged.
[629 G H] Weston vs Peary Mahan Dass Cal.
898 at 916: disapproved.
Jarat Kumari Dassi vs Bissesur: I.L.R. and Prasannamayt Debya vs Baikuntha Nath Chattoraj: I.L.R. ; referred to.
It cannot be said that rules applicable to circumstantial evidence in criminal cases would apply where a party, in a civil case, is alleged to have accepted a bribe.
The ordinary rules governing civil cases will continue to apply.
[630 E] Raja Singh vs Chachoo Singh : A.I.R. 1940 Patna 210; referred to.
It was unnecessary to consider whether the consideration for the agree.
ment of February 1941 was unmoral or not.
The caw of bribery is covered otherwise by Section 23 of the Contract Act.
[630 G]


judgement:
minal Appeal No. 214 of 1963.
Appeal by special leave from the judgment and order dated September 18, 1963 of the Patna High Court in Criminal Appeal No. 368 of 1961.
644 Nur ud din Ahmed and D. Goburdhun, for the appellants.
The respondent did not appear.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, from the judgment of the High Court of Patna dated September, 1963 in Criminal Appeal No. 368 of 1961.
The appellant, alongwith 13 others, was tried by the Additional 'Sessions Judge of Patna who by his judgment dated April 22, 1961 convicted all the accused under sections 302/149, Indian Penal Code and sentenced them to undergo rigorous imprisonment for life.
Lakhan and Indo were convicted under section 148, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and Gopi was convicted under section 147, Indian Penal Code and sentenced to rigorous imprisonment for one year.
Indo was also convicted under section 326, Indian Penal Code and Gopi was convicted under section 326/109, Indian Penal Code and were sentenced to undergo rigorous imprisonment for eight years.
Appellant Lakhan was convicted under sections 326/149, Indian Penal Code but no separat sentence was awarded on this charge.
Lakhan and Indo were convicted under section 19(f) of the Arms Act and sentenced to undergo rigorous imprisonment for two years each.
Five of the accused persons were acquitted and 8 of them were convicted on charges The appellants alongwith 8 others who were so convicted, appealed to the High Court of Patna which allowed the appeal of the 8 persons but dismissed the appeal of the appellants with the following modifications: The conviction of the appellants under sections 302/149, Indian Penal Code, section 148, section 147 and sections S26/149, Indian Penal Code was set aside and the appellants were acquitted of those charges.
The conviction of Lakhan under section 302/149, Indian Penal Code was altered into a minor offence under section 326, Indian Penal Code, but the sentence of life imprisonment imposed upon him was maintained.
The conviction and sentence of Indo under section 326, Indian Penal Code and of Gopi under sections 326/109, Indian Penal Code were upheld.
The conviction and sentence of Lakhan and Indo under section 19(f) of the Arms Act were also upheld.
The case of the prosecution is that on October, 7, 1959 at about 10 a.m. deceased Sheosahay Mahto went to look after his paddy field in Belwa Khandha.
On arriving at the spot, he found appellant Lakhan and one Ishwar putting up a net for catching fish in his field after cutting one of its ridges.
Sheosahay protested and there was an altercation between the parties.
Sheosahay threw aside the net and Ishwar and appellant Lakhan went away towards the village.
Sheosahay then repaired the ridge of the 645 field and after weeding some grass he was returning to the village along the Bazerachak Road.
While he was passing by the side of a brick kiln, appellant Lakhan suddenly emerged from behind it with a pistol in his hand and fired at Sheosahay hitting him on his chest.
Sheosahay staggered for a few steps and fell down at the house of one Baiju.
There were 15 or 20 other persons variously armed in the company of Lakhan.
Akhji P.W. 3 wife of Jitu P.W.7 heard the report of a gunfire while she was in her house situated near the house of Baiju.
She came out of her house and saw Sheosahay lying fallen in the village lane.
She protested to Gopi who became furious and ordered that she should be assaulted.
Upon his order, Rajendra who was carrying a gun fired at Akhji, P.W.3 on her left arm.
After committing the assault all the members of the mob fled away.
On the same evening, at about 5 p.m. a first information report was drawn up by the Assistant SubInspector of Police, P.W. 14 on the statement of Sheosahay and both the injured persons were forwarded to Nawadah hospital where Sheosahay died early next morning.
The appellants pleaded not guilty to the charges and alleged that they were falsely implicated on account of previous enmity.
The trial court held that it was unsafe to convict appellant Lakhan on the specific charge under section 302, Indian Penal Code for causing the death of Sheosahay as it appeared from the dying declaration of the deceased (exhibit 8) that accused Ishwar had also shot at him and as such appellant Lakhan was entitled to benefit of doubt.
The trial court accordingly acquitted Lakhan on the charge under s.302, Indian Penal Code but convicted him and 2 other appellants under section 148, Indian Penal Code and sections 302/149, Indian Penal Code.
The State Government did not prefer an appeal to the High Court against the acquittal of Lakhan on the charge under section 302, Indian Penal Code but on appeal preferred by the appellant against the judgment of the Sessions Judge, the High Court altered the conviction of Lakhan from section 302/149, Indian Penal Code to a minor offence under section 326, Indian Penal code and maintained the sentence of life imprisonment imposed upon him.
The view taken by the High Court was that the evidence of P.Ws. 1, 6, 7 and 8 should be accepted as true and it must he held that it was Lakhan who fired the pistol at the deceased and it was Lakhan alone who fired the pistol shot and not Ishwar.
The High Court held that it was competent to it in the appeal preferred by the appellant to alter the conviction of Lakhan from the constructive offence under section 302/149, Indian Penal Code to the substantive offence under s.302, Indian Penal Code, but "in order to obviate any technical objection" the High Court altered the conviction under s.302 read with section 149 to a minor offence under section 326, Indian Penal Code and regard being had to the gravity of the offence, the High Court maintained the sentence imposed upon Lakhan. 646 On behalf of appellant Lakhan learned Counsel submitted that he had been acquitted by the trial court on the specific charge under section 302, Indian Penal Code for the overt act of shooting at the deceased Sheosahay and he was convicted under sections 302/149, Indian Penal Code for being a member of an unlawful assembly, the common object of which was to kill deceased Sheosahay.
It was pointed out that the State Government had not preferred an appeal against the acquittal of Lakhan on the charge under section 302, Indian Penal Code.
It was submitted that the High Court cannot, in the absence of an appeal preferred in this behalf, convict Lakhan again under section 302, Indian Penal Code or under section 326, Indian Penal Code for the overt act of shooting.
It was also pointed out for the appellant that there was the finding of the High Court that there was no unlawful assembly and consequently Lakhan was acquitted of the charge under section 302, I.P.C. read with section 149, I.P.C. The argument, therefore, presented on behalf of appellant Lakhan is that the conviction and sentence of Lakhan for a substantive offence under section 326, I.P.C. was illegal and must be quashed.
The powers of the appellate court in disposing of an appeal are prescribed by section 423 of the Criminal Procedure Code which states "423.(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court.
After perusing such record, and hearing the appellant or his pleader if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 41 1 A, subsection (2) or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction sub ordinate to such Appellate Court or committed for trial, or (2) alter the finding maintaining the sentence or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, sub section (3), not so as to enhance the same;" Section 423 (1)(a) expressly deals with an appeal from an order of acquittal and it empowers the Appellate Court to reverse the 647 order of acquittal and direct that further inquiry be made or that the accused may be tried or committed for trial, as the case may be, or it may find him guilty and pass sentence on him according to, law.
Section 423(1)(b) in terms deals with an appeal from a conviction, and it empowers the Appellate Court to reverse the finding and sentence and acquit or discharge the accused or order a retrial by a Court of competent jurisdiction subordinate to such Appel late Court or committed for trial.
It has been held by this Court in The State of Andhra Pradesh vs Thadi Narayana(1) that section 423(1)(b), Criminal Procedure Code is clearly confined to cases of appeals prefeffed against orders of conviction and sentence, and that the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged while dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved.
It was also pointed out in that case that where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court.
If an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal.
In exercising the powers conferred by section 423(1)(b) the High Court cannot therefore convert the order of acquittal into one of conviction and that result can be achieved only be adopting procedure prescribed under section 439 of the Criminal Procedure Code.
In our opinion, the principle of this decision applies to the present case and it must accordingly be held that the High Court acted without jurisdiction in altering the finding of acquittal of Lakhan on the charge under section 302, Indian Penal Code and convicting him on the charge under section 326, Indian Penal Code and imposing a sentence of imprisonment on that charge.
In this connection the High Court has taken the view that section 149, I.P.C. does not constitute a substantive offence and it was only an enabling section for imposition of vicarious liability and the conviction on vicarious liability can, therefore, be altered by the appellate court to conviction for direct liability, though there was an acquittal by the trial court of the direct liability of the offence.
In our opinion, the view taken by the High Court is not correct.
There is a legal distinction between a charge under section 302, I.P.C. and a charge of constructive liability under sections 302/149, I.P.C., i.e., being a member of an unlawful assembly, the common object of which was to kill the deceased Sheosahay.
In Barendra Kumar Ghosh vs Emperor (2) Lord Sumner dealt with (1) ; (2) I.L.R. 648 the argument that if section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then sections 114 and 149 of that Code would be otiose.
In the opinion of Lord Sumner, however, section 149 was certainly not otiose, for in any case it created a specific and distinct offence.
It postulated an assembly of five or more persons having a common object, as named in section 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object.
Lord 'Sumner referred, in this connection, to the decision of the Calcutta High Court in Queen vs Sabid All and Others(1).
The observation of Lord Sumner was quoted with approval by this Court in Nanak Chand vs The State of Punjab(2) in which it was pointed out that by framing a charge under section 302, read with s.149, Indian Penal ,Code against the appellant it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged.
It was accordingly held that the conviction of the appellant under section 302, I.P.C. was illegal.
The same view has been reiterated by this Court in a 'later case in Suraj Pal vs The State of Uttar Pradesh.(3) For these reasons we hold that the conviction and sentence imposed by the High Court on Lakhan under section 326, Indian Penal Code is illegal and must be set aside.
On behalf of the appellants it was also contended that the prosecution had not been able to establish the other charges of which they have been convicted, but having heard learned Counsel we are not satisfied that the convictions on the other charges are vitiated by any illegality and we see no reason for interfering with the judgment of the High Court.
As already pointed out, we set aside the conviction and sentence imposed on Lakhan on the charge under section 326, Indian Penal Code; otherwise we affirm the decision of the High Court as regards Lakhan and also as regards the other two appellants and dismiss ,this appeal.
Appeal dismissed.
Conviction and sentence modified.
(1) [1873] 20 W.R. (Cr.) 5.

dataset_name: IN-Abs

summary:
The trial court acquitted L, one of the appellants of the charge under section 302 I.P.C. but convicted him and the other appellants under section 149 I.P.C. and sections 302/149 I.P.C.
The State Government did not prefer an appeal to the High Court against the acquittal of L under section 302 but on appeo preferred by L against his conviction, the High Court altered the conviction from a. 302/149 to a minor offence under section 326 and maintained the sentence of life imprisonment imposed upon him.
In appeal to this Court : HELD : The High Court acted without jurisdiction in altering the finding of acquittal of L on the charge under section 302 I.P.C. and convicting him on the charge under section 326 I.P.C. and imposing a sentence of imprisonment on that charge.
If an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal.
In exercising the powers conferred by section 423(1)(b) of Code of Criminal Procedure the High Court could not convert the order of the acquittal into one of conviction and that result can be achieved only by adopting procedure prescribed under section 439 of the Criminal Procedure Code.
[647 D F] State of Andhra Pradesh vs Thadi Narayana, A.I.R. 1962 section C. 240, applied.
The High Court erred in taking the view that section 149 I.P.C. did not constitute a substantive offence and that it was only an enabling section for imposition of vicarious liability and that the conviction on vicarious liability could, therefore, be altered by the appellate court to conviction for direct liability even though there was an acquittal by the trial court of the direct liability for the offence.
There is a legal distinction between a charge under section 302 I.P.C. and a charge of constructive liability under section 302/149, I.P.C., I.e., being a member of an unlawful assembly, the common object of which was to kill a person.
(647 G, H] Barendra Kumar Ghosh vs Emperor, I.L.R. , Queen vs Sabid Ali and Ors.
[1873] 20 W.R. (Cr.) 5 Nanak Chand vs State of Punjab; , and Suraj Pat vs State of Uttar Pradesh, (19551 1 S.C.R. 1332.
referred to.


judgement:
iminal Appeal No. 26 of 1964.
Appeal from the judgment and order dated November 20, 1963 of the Mysore High Court in Criminal Appeal No. 49 of 1963.
B. R. L. Iyengar and A. G. Ratnaparkhi for the appellant.
A. K. Sen, D. R. Prem, R. H. Dhebar and B. R. G. K. Achar, for the respondent.
Niren De, Additional Solicitor General and B. R. G. K. Achar, for the intervener.
The Judgment of the Court was delivered by Wanchoo, J.
This is an appeal on a certificate granted by the Mysore High Court.
The appellant was prosecuted under section 167 (81) of the Sea Customs Act (No. 8 of 1878) read with section 9 of the Land Customs Act (No. 19 of 1924).
The appellant lives in a village which is close to Goa.
The incident out of which the present appeal has arisen took place on November 27, 1960 when Goa was not a part of India but was Portuguese territory.
The Deputy Superintendent of Customs, Goa Frontier Division, Belgaum received information that contraband goods would be found in the house of the appellant.
Consequently he raided the house in the company of three panchas.
The appellant was not present in the house when the raid took place, but his mother and sisterin law were there.
After necessary formalities the house was searched and a big steel trunk, a cane box and another steel trunk were taken down from the loft in the kitchen.
On opening, a belt, with four pouches stitched to it, was found in the big steel trunk.
Inside the pouches, four gold bars with foreign marks and labels of Goa Customs authorities were found.
Besides these, a large sum of money and three small cut pieces of gold were also found in the box.
In the other two boxes also various sums of money in currency notes were found.
The weight of the gold bars was 343 tolas.
On November 30, 1960, the appellant was arrested and inter rogated by the Deputy Superintendent of Customs and Excise.
The answers given by him were reduced in writing and his signature was taken on the writing after it had been read over to him.
During this interrogation, the appellant admitted that the four gold bars had been given to him on November 27, 1960 in the moming by one Vittal Morajkar of Goa so that he might deliver them back to Morajkar on the motor stand at Belgaum or near there, and be had kept them in his house.
As the gold was foreign gold 700 and as under the notification under section 8(1) of the Foreign Exchange Regulation Act, 1947, import of gold into India had been for,bidden except with the general or special permission of the Reserve Bank of India, the appellant was prosecuted on a complaint filed by the Assistant Collector of Central Excise and Land Customs, Goa Frontier Division, Belgaum.
The Magistrate convicted the appellant and sentenced him to imprisonment and fine and also ordered confiscation of the four gold bars.
On appeal to the Sessions Judge, the appellant was acquitted relying on the decision of the Calcutta High Court in Sitaram Agarwala vs State(1).
Then followed an appeal by the State to the High Court.
The High Court disagreed with the view takeu by the Calcutta High Court in Sitaram Agarwal 's case(1) and held that even a person like the appellant who might have no direct concern with the import of gold in any way was liable under section 167(81) of the Sea Customs Act.
The High Court then ,considered the evidence and relying on the statement made by the appellant to the Deputy Superintendent of Customs and Excise and also on the other evidence produced in the case held that the appellant was guilty.
In consequence, the acquittal of the appellant was set aside and the order of conviction and sentence passed by the Magistrate was restored.
The appellant then applied to the High Court for a certificate to appeal to this Court, and as two questions of law of general importance arose in this case, the High Court granted the certificate.
The two questions were : (1) whether the view taken by the High Court differing from the view taken by the Calcutta High Court in Sitaram Agarwal 's case(1) with respect to the interpretation of section 167(81) was correct, and (ii) whether the statement made by the appellant to the Deputy Superintendent of Customs and Excise was admissible in evidence in view of section 25 of the Indian Evidence Act (No. 1 of 1872).
These are the two questions which have been argued before us on behalf ,of the appellant in the present appeal.
So far as the first question is concerned, namely, the interpretation of section 167(81) of the Sea Customs Act, the matter is now settled by the decision of this Court in Sachidananda 'Bannerjee, Assistant Collector of Customs vs Sitaram Agarwal and another(2).
This Court has held therein that the interpretation put by the Calcutta High Court in the case of Sitaram Agarwala(1) is not correct and that section 167(81) of the Sea Customs Act can also take in persons who may not be concerned the actual import of prohibited goods.
The view taken by the Mysore High Court is in accordance with the view taken by this Court in that appeal and in view of that,, learned counsel for the appellant has admitted (1) (2) 701 that the appellant would be guilty within the meaning of section 167 (81) of the Sea Customs Act.
This leaves only the second question, and it has been urged on behalf of the appellant that a Central Excise Officer under the Central Excises and Salt Act, No. I of 1944 (hereinafter referred to as the Act) is a police officer within the meaning of those words in section 25 of the Evidence Act.
Therefore even though the Deputy Superintendent of Customs and Central Excises may have acted under the powers conferred on him by the Sea Customs Act, he was still a police officer, and the statement made to him by the appellant on November 30, 1960 which is in the nature of a confession would be inadmissible under section 25 of the Evidence Act.
It may be added that the High Court had in this connection relied on the judgment of this Court in the State of Punjab vs Barkat Ram( ) where it had been held by majority that a Customs.
Officer under the Sea Customs Act was not a police officer within the meaning of section 25 of the Evidence Act.
The appellant however relies on a later decision of this Court in Raja Ram Jaiswal vs State of Bihar(2) where by majority it was held that an excise officer under the Bihar and Orissa Excise Act (No. 2 of 1915) was a police officer within the meaning of section 25 of the Evidence Act.
There has been difference of opinion among the High Courts in India as to the meaning of the words "police officer" used in section 25 of the Evidence Act.
One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so called or not would be police officers within the meaning of those words if they have all the powers of a police officer with respect to investigation of offences with which they are concerned.
The leading case in support of this view is Nanoo, Sheikh Ahmed vs Emperor(3).
The other view which may be called the narrow view is that the words "police officer" in section 25 of the Evidence Act mean a police officer properly so called and do not include officers of other departments of government who may be charged with the duty to investigate under special Acts special crimes thereunder like excise offences or customs offences, and so on.
The leading case in support of this view is Radha Kishun Marwari vs King Emperor(4).
The other High Courts have followed one view or the other, the majority being in favour of the view taken by the Bombay High Court.
It is submitted on behalf 'of the appellant that the view taken by the Bombay High Court in Nanoo Sheikh Ahmed(3) is the correct view and that the view of the Patna High Court in Radha Kishun Marwari(4) is not correct.
On the other hand it has been urged on behalf of the State that the view taken by the Patna High (1) ; (2) [1964]2 S.C.R. 752.
(3) Bom.
(4) patna 46.
C.1./66 13 702 Court in Radha Kishun Marwari(1) is the correct one.
Prima facie there is in our opinion much to be said for the narrow view taken by the Patna High Court.
But as we have come to the conclusion that even in the broad view, a Central Excise Officer under the Act is not a police officer, it is unnecessary to express a final opinion on the two views on the meaning of the words "police officer" in section 25 of the Evidence Act.
We shall proceed on the assumption that the broad view ' may be accepted and that requires an examination of the various provisions of the Act to which we turn now.
The main purpose of the Act is to levy and collect excise duties and Central Excise Officers have been appointed thereunder for this main purpose.
In order that they may carry out their duties in this behalf, powers have been conferred on them to see that duty is not evaded and persons guilty of evasion of duty are brought to book.
Section 9 of the Act provides for punishment which may extend to imprisonment upto 6 months or to find upto Rs. 2,000 or both where a person (a) contravenes any of the provisions of a notification issued under section 6 or of section 8 or of a rule made under cl.
(iii) of sub section (2) of section 37; (b) evades the payment of any duty payable under the Act; (c) fails to supply any information which he is required by rules made under the Act to supply or supplies false information; and (d) attempts to commit or abets the commission of any of the offences mentioned in cls.
(a) and (b) above.
Under section 13 of the Act, any Central Excise Officer duly empowered by the Central Government in this behalf may arrest any person whom he has reason to.
believe to be liable to punishment under the Act.
Section 18 lays down that all searches made under the Act or any rules made thereunder and all arrests made under the Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 relating respectively to searches and arrests made under that Code.
Section 19 lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer in charge of the nearest police station.
These sections clearly show that the powers of arrest and search conferred on Central Excise Officers are really in support of their main function of levy and collection of duty on excisable goods.
Strong reliance has however been placed on behalf of the appellant on section 21 of the Act, the material part of which runs thus: "21.
(1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so (1) Patna 46.
703 arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him.
(2)For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case; Provided that. . . . . . " It is urged that under sub section (2) of section 21 a Central Excise Officer under the Act has all the powers of an officer in charge of a police station under chapter XIV of the Code of Criminal Procedure and therefore he must be deemed to be a police officer within the meaning of those words in section 25 of the Evidence Act.
It is true that sub section (2) confers on the Central Excise Officer under the Act the same powers as an officer in charge of a police station has when investigating a cognizable case; but this power is conferred for the purpose of sub section
(1) which gives power to a Central Excise Officer to whom any arrested person is forwarded to inquire into the charge against him.
Thus under section 21 it is the duty of the Central Excise Officer to whom an arrested person is forwarded to inquire into the charge made against such person.
Further under proviso (a) to sub section
(2)of section 21 if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such.
Magistrate.
It does not however appear that a Central Excise Officer under the Act has power to submit a charge sheet under section 173 of the Code of Criminal Procedure.
Under section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, of (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
A police officer for purposes of cl.
(b) above can in our opinion only be a police officer properly so called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise Officer will have to make a complaint under cl.
(a) above if he wants the Magistrate to take cognizance of an offence, for "ample, under section 9 of the Act.
Thus though under sub section (2) of section 21 of the Central Excise Officer under the Act has the powers of an officer incharge of a police station when investigating a cognizable case, that is for the purpose of his inquiry under sub section
(1) of section 21.
Section 21 is in terms different fro section 78(3) of the Bihar and Orissa Excise Act,1915 which came to be considered in Raja Ram Jaiswal 's 704 case(1) and which provided in terms that "for the purposes of section 156 of the Code of Criminal Procedure, 1898, the area to which an excise officer empowered under section 77, sub section (2) , is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer in charge of such station".
It cannot therefore be said that the provision in section 21 is on par with the provision in section 78(3) of the Bihar and Orissa Excise Act.
All that section 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officerin charge of a police station when investigating a cognizable case.
But even so it appears that these powers do not include the power to submit a charge sheet under section 173 of the Code of Criminal Procedure, for unlike the Bihar and Orissa Excise Act, the Central Excise Officer is not deemed to be an officer in charge of a police station.
It has been urged before us that if we consider section 21 in the setting of section 14 of the Act, it would become clear that the enquiry contemplated under section 21(1) is in substance different from investigation pure and simple into an offence under the Code of Criminal Procedure.
It is not necessary to decide whether the enquiry under section 14 must also include enquiry mentioned in section 21 of the Act.
Apart from this argument we are of the opinion that mere conferment of powers of investigation into criminal offences under section 9 of the Act does not make the Central Excise Officer, a police officer even in the broader view mentioned above.
Otherwise any person entrusted with investigation under section 202 of the Code of Criminal Procedure would become a police officer.
In any case unlike the provisions of section 78(3) of the Bihar and Orissa Excise Act, 1915, section 21 (2) of the Act does not say that the Central Excise Officer shall be deemed to be an officer in charge of a police station and the area under his charge shall be deemed to be a police station.
All that section 21 does is to give him certain powers to aid him in his enquiry.
In these circumstances we are of opinion that even though the Central Excise Officer may have when making enquiries for purposes of the Act powers which an officer in charge of a police station has when investigating a cognizable offence, he does not thereby become a police officer even if we give the broader meaning to those words in section 25 of the Evidence Act.
The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915, the appellant cannot take advantage of the decision of this Court in Raja Ram Jaiswals ' case(1) taking even the broader view of the words "police officer" in section 25 of the Evidence Act.
We are of opinion that the present case is more in accord with the case of Barkat Ram(2).
In this view, (1) ; , (2) ; 705 of the matter the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by section 25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of section 24 of the Evidence Act.
As to that it was urged on behalf of the appellant in the High Court that the confessional statement was obtained by threats.
This was not accepted by the High Court and therefore section 24 of the Evidence Act has no application in the present case.
It is not disputed that if this statement is admissible, the conviction of the appellant is correct.
As we have held that a Central Excise Officer is not a police officer within the meaning of those words in section 25 of the Evidence Act the appellant 's statement is admissible.
It is not ruled out by anything in section 24 of the Evidence Act and so the appellant 's conviction is correct and the appeal must be dismissed.
We hereby dismiss the appeal.
Appeal dismissed.

summary:
The appellant who lived in a village near Goa was found in possession of contraband gold.
He was prosecuted under section 167(81) of the Sea Customs Act read with section 9 of the Land Customs Act (9 of 1924).
The trial Magistrate convicted him but the Sessions Judge relying on the decision of the Calcutta High Court in Sitaram Agarwala 's case acquitted him.
The High Court of Mysore, in appeal against the acquittal, considered the evidence and relying, inter alia, on the statement made by the appellant to the Deputy Superintendent of Customs and Excise held him guilty.
With certificate the appellant came to this Court.
The questions that felt for consideration were : (i) whether the view taken by the High Court differing from the view taken by the Calcutta High Court in Sitaram Agarwala 's case with respect to the interpretation of section 167(81) was correct, and (ii) whether the statement made by the appellant to the Deputy Superintendent of Customs & Excise was admissible in view of section 25 of the Indian Evidence Act.
HELD : (i) The High Court was right in not following the view of the Calcutta High Court in Sitaram Agarwala 's case, the correct view as to the interpretation of section 167(81) of the Sea Customs being that the section takes in even those persons who may not be concerned with the actual import of the prohibited goods.
[700 G H] Sachidananda Banerjee, Assistant Collector of Customs vs Sitaram Agarwal, , followed.
Sitaram Agarwal vs State, , disapproved.
(ii)The Central Excise and Salt Act, 1944 does not confer all the powers of the police officer on Central Excise Officers.
The powers confered on them by section 21(2) of the Act are only for the purpose of inquiry under section 21(1); they would not entitle the said officers to file a charge sheetunder section 173 of the code of Criminal Procedure.
Therefore even though a central excise officer may have when making enquiries for purposes of the Act, powers an officer in charge of a police station has when investigating a cognizable offence, he does not thereby become a police officer within the meaning of section 25 of the Indian Evidence Act, and the statement of an accused person recorded by him is not hit by that section .
[704 B C, F G] Raja Ram Jaiswal vs State of Bihar, ; and Nanoo Sheikh Ahmed vs Emperor, Bom.
78, distinguished.
State of Punjab vs Barkat Ram,, ; , relied on.
699 Radha Kishun Marwari vs King Emperor, Patna 46, referred to.


judgement:
Appeals Nos.
461 of 1964.
Appeals from the judgment and order dated October 11, 1962 of the Mysore High Court in Writ Petitions Nos.
1248, 1267, 1269, 1294 1298, 1311, 1312, 1318, 1341, 1354, 1355, 1382 and 1384.
684 M.C. Setalvad, section C. Javali, 0.
C. Mathur, J. B. Dadachanji, and Ra.vinder Narain, for appellants Nos. 1 4, 6 45 and 48 76 (in C. As.
430 445 of 1964).
A.K. Sen, B. R. L. Iyengar and B. R. G.K. Achar for respondents Nos. 2 and 3 (in C. As.
430 445 of 1964) and Appellants (in C. A. Nos.
446 461 of 1964).
M. K. Nambyar, section N. Andley, Rameshwar Nath and P. L. Vohra,for respondents (in C. As.
446, 447, 449 452,456 and 459 of1964).
J. B. Dadachanji, 0.
C. Mathur and Ravinder Narain, for the Intervener.
To appreciate the arguments addressed to us on behalf of the appellants and the respondents, it is necessary to give, in chronological order, the events leading up to the filing of the above writ petitions and their significance.
On December 12, 1957, the Governor of Mysore made rules called the Mysore Public Service Commission (Functions) Rules, 1957, hereinafter called the Functions Rules, relating to the functions of the Mysore Public Service Commission.
Rule 3 of these rules provides for recruitment by examination and r. 4 with which we are primarily concerned provides for recruitment by selection.
Rule 4 is as follows : "When recruitment to a service or post is to be made by selection, and consultation with the Commission is required, the Commission shall (1)advise the Government in regard to the conditions of eligibility of candidates; (2)after the rules to be made have been approved by Government and a requisition for recruitment is received, invite applications from intending candidates after giving due publicity to conditions of eligibility, nature of com petition, number of vacancies to be filled where possible, and any other relevant material; (3)consider all applications received and when necessary interview such candidates as fulfil the prescribed conditions and whom it considers most suitable for ap pointment; 685 Note.
Nothing contained herein shall preclude the Commission from considering the case of any candidate possessing the prescribed qualifications brought to its notice by Government, even if such a candidate has not applied in response to the advertisement of the Government.
(4)forward to the Appointing Authority a list consisting of such number as it may fix, of the candidates whom the commission considers most suitable for appointment in order of preference; Provided that the Commission may invite Government to nominate an Officer to represent the Service or the Department for whom recruitment is being made, to be present at the interview referred to in clause (3) to assist the Commission in its work of selection.
" We may here dispose of the point whether these rules are ex ecutive rules or statutory rules made under article 309 of the Constitution.
The High Court held that "there can be little doubt that to the extent the Rules deal with the topic of regulating recruitment to Civil Services under the State, the source of the power could only be the proviso to article 309 of the Constitution." In our opinion, these rules are not rules made under article 309.
First, the rules do not expressly say so, and secondly, the rules are dealing with the functions of the commission rather than with laying down the rules regarding recruitment to services or posts.
Under article 320 (3) of the Constitution, it is the duty of the Government to consult and the duty of the Public Service Commission to advise, inter alia "on the principles to be followed in making appointments to civil services and posts. . and on the suitability of candidates for such appointments, promotions or transfers.
" Sub rule (1) of r. 4 clearly provides the same thing as does article 320 (3) (b) and the other sub rules are really administrative arrangements apparently arrived at between the Commission and the Government as to how the Government and the Public Service Commission will take steps to recruit persons for the State Services or posts.
To resume the narrative, on February 10, 1958, the Governor of Mysore, in exercise of the powers conferred by the proviso so article 309 of the Constitution, made the Mysore State Civil Services (General Recruitment) Rules, 1957, hereinafter called the General Recruitment Rules.
There is no dispute that these are statutory rules and in so far as they direct anything to be done in a particular way, the Government would have to comply with the directions.
Rule 3 of these Rules, on which reliance has been placed by the learned counsel for the respondents to urge that the GoveI Sup Cl/66 12 686 cannot recruit Assistant Engineers without framing rules, is in the following terms: "Method of recruitment.
Recruitment to the State Civil Services shall be made by competitive examination or by promotion.
The method of recruitment and qualifications for each State Civil Service shall be as set forth in the rules of recruitment of such service specially made in that behalf.
" It would be convenient to deal with this argument at this stage.
Mr. Nambiar contends that the words "shall be as set forth in the rules of recruitment of such service specially made in that behalf " clearly show that till the rules are made in that behalf no recruitment can be made to any service.
We are unable to accept this contention.
First it is not obligatory under proviso to article 309 to make rules of recruitment, etc., before a service can be constituted or a post created or filled.
This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules.
Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power to make laws.
It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services.
It was settled by this Court in Ram Jawaya Kapur vs The State of Punjab(1) that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws.
We see nothing in the terms of article 309 of the Constitution which abridges the power of the executive to act under article 162 of the Constitution without a law.
It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under article 162 of the Constitution ignore or act contrary to that rule or act.
In the background of this position we are unable to inter pret r. 3 of the General Recruitment Rules as suspending the executive power of the State till rules of recruitment of a service are specially made in that behalf.
Rules usually take a long time to make; various authorities have to be consulted and it could not have been the intention of r. 3 of the General Recruitment Rules, 1957, to halt the working of the public departments till rules were framed.
This Court considered a similar point in T. Cajee vs U. Jormanik Siem(2) and arrived at a similar conclusion.
The following observations of Wanchoo, J., who delivered the judg (1) (2) ; , 762 764.
687 ment on behalf of the majority, bring out clearly the fallacy in Mr. Nambiar 's argument: "The High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law with the assent of the Governor so far as the appointment and removal of a Siem was concerned.
In this connection, the High Court relied on para 3 (1) (g) of the Schedule, which lays down that the District Council shall have the power to make laws with respect to the appointment and succession of Chiefs and Headmen.
The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief or Siem like the respondent and in consequence there would be no power of removal either.
With respect, it seems to us that the High Court has read far more into para 3 (1) (g) than is justified by its language.
Paragraph 3 (1) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make laws.
Under para 3 (1) (g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them.
But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect." "Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary.
The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under para 19 (1) (b) or till the District Council passed laws under para 3 (1) (g).
The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carryinig on administration.
Doubtless when regulations are made under para 19 (1) (b) or laws are passed under para 3 (1) with respect to the appointment or removal of the personnel of the administration, the administrative authorities would be bound to follow the regulations go made or the laws so passed.
But from this it does not follow that till the regulations were made or the laws were passed, there could be no appointment or dismissal 688 of the personnel of the administration.
In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule.
The view therefore taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under para 3 (1) (g) cannot be sustained." Mr. Nambiar in this connection also relied on articles 15 and 16 of the Constitution.
He urged that if the executive is held to have power to make appointments and lay down conditions of service without making rules in that behalf under the proviso to article 309, articles 15 and 16 would be breached because the appointments in that case would be arbitrary and dependent on the mere whim of the executive.
We are unable to hold that articles 15 and 16 in any way lead us to this conclusion.
If the Government advertises the appointments and the conditions of service of the appointments and makes a selection after advertisement there would be no breach of article 15 or article 16 of the Constitution because everybody who is eligible in view of the conditions of service would be ,entitled to be considered by the State.
In conclusion we hold that r. 3 of the General Recruitment Rules, 1957, did not prevent the State from exercising its executive power of appointing Assistant Engineers and determining their conditions of service by executive order.
Mr. Nambiar had at one stage contended that rules existing in the constituent parts of the new State of Mysore would be available for recruitment as they had been continued under the States Reorganisation Act, but it seems to us that these rules would not be available for recruitment purposes because the Government would be recruiting Assistant Engineers for the whole State and not for each of the constituent parts of the State.
We may clarify that these remarks only deal with recruitment rules.
This brings us to the next event, and that is Notification No E. 2666 58 9PSC dated October 1, 1958, issued by the Mysore Public Service Commission inviting applications in the prescribed form from qualified Indian citizens for recruitment of 40 Probationary Assistant Engineers in the Executive Cadre of the Mysore Public Works Department.
The Notification prescribes the qualifications, pay, age limit, other conditions for eligibility, fee payable and the particulars of the candidates required to be furnished.
On March 4, 1959, the Governor of Mysore in exercise of the powers conferred by the proviso to article 309 prescribed the maximum age limits for direct recruitment of graduates in Engineering for the posts of Supervisors and Assistant Engineers in the Mysore 689 Public Works Department.
These age limits were to prevail until the rules of recruitment specially applicable to Mysore Public Works Department were promulgated.
The maximum age limits were made retrospective.
It was further provided that "anything done or any action taken by the Public Service Commission or other authority in respect of recruitment of Probationary Assistant Engineers between September 1, 1958 and the date of this Notification shall be deemed to have been done or taken under the provisions of this Notification.
" On the same date the Secretary to the Government of Mysore, Public Works Department, Bangalore, wrote to the Secretary, Public Service Commission, Bangalore, stating inter alia, that; "The Public Service Commission has already taken action to recruit forty probationers in the Public Works Department for being absorbed as Assistant Engineers in due course after satisfactory completion of their training.
I am to request the Public Service Commission to take action straightway to invite applications and send a list of 80 candidates in all for appointment as Probationers in the Department.
" This clearly shows that the Government was aware of the action taken by the Public Service Commission in issuing the Notification dated October 1, 1958.
After receipt of this letter, the Public Service Commission issued a Notification on May 4, 1959, inviting applications "from qualified Indian citizens of all classes for recruitment of 80 Probationary Assistant Engineers in the Executive Cadre of the Mysore Public Works Department, including the 40 posts already advertised in this office Notification No. E 3666 58 P.S.C. dated October 1, 1958".
This Notification laid down the qualifications, pay during the period of probation, age limits, etc.
The age limits prescribed were the same as in the State Government Notification dated March 4, 1959.
The Public Service Commission Notification further included the usual particulars required to be furnished by the candidates.
On March 1, 1960, the Governor issued a notification containing Order No. GAD 7 ORR 60 dated March 1, 1960, ordering "that for direct recruitment to appointments and posts in the services of the State, reservation for Scheduled Caste and Scheduled Tribes shall be 15% and 3%.
The reservation for other backward classes shall be 25 % The rest of the appointments and posts shall be filled up on the basis of merit and shall be open to all classes.
" The Public Service Commission then issued a Notification dated April 1, 1960, inviting applications for filling up of various posts in the several departments of Government of Mysore,.
690 including the 80 Probationary Assistant Engineers in the Public Works Department.
These were included in Part 'A ' of the Notification, and it was provided inter alia in para 22 of the Notification as follows : "22.
IMPORTANT NOTE: (i)The vacancies detailed in Part 'A ' of the Statement were previously advertised in this office notifications noted in column 8 against each item and such of the candidates who have already applied for the said vacancy/vacancies in response to the previous notification need not apply again.
But they may furnish additional information, if any, if they so desire.
(ii)Applications already received in this office for the vacancies under Part 'A ' will be considered on the basis of the revised classification issued by Government in their Order No. GAD 7 ORR 60, dated the 1st March, 1960.
(iii)The qualifications, period of experience/training or service, the minimum and maximum age limits and all other requirements to be satisfied by the candidates for all the vacancies under Part 'A ' in the statement shall be determined as on the dates noted against each item of vacancy/vacancies in column 9 of the statement.
(iv)Such of the candidates who do not satisfy these conditions as on the dates noted in column 9 of the state ment in respect of Part 'A ' vacancies, will not be eligible for the posts.
" Column 8 of the statement mentions the previous notifica tions dated May 4, 1959 and October 1, 1958, and column 9 mentions the date "June 8, 1959".
Column 5 prescribes the qualifications as follows : "A degree in Engineering (Civil or Mechanical) or an equivalent Examination.
In addition candidates must have also either undergone practical training or rendered a service in the Technical Cadre of the P.W.D. for a minimum of 6 months.
(A certificate to that effect issued by the Principal of the college or superior officer under whom they have undergone training or are working must accompany the application.
" The maximum age limits were prescribed as under "33 years for Scheduled caste and scheduled tribes, 31 years for others, 35 years in the case of government servants holding substantive appointments or having 691 continuous government service for a period of not less than 3 years.
" In October 1960 the Mysore Public Service Commission interviewed the candidates and on November 2, 1960, the Com mission sent to the Government a list of 80 candidates selected by them.
On December 3, 1960, the Government of Mysore sanctioned the establishment of the State Service Cadre in respect of Mysore Public Works Engineering Department Service.
On the same date, in exercise of the powers conferred by the proviso to article 309, the Governor of Mysore made the rules called the Mysore Public Works Engineering Department Services (Recruitment) Rules, 1960.
It prescribed, in respect of each category of posts specified in column of the Schedule, methods of recruitment and the minimum qualifications and the period of probation, if any.
For Assistant Engineers, the method of recruitment prescribed was 40 per cent by direct recruitment by the Public Service Commission after interview and oral test; 50 per cent by promotion from the cadre of Junior Engineers, and 10 per cent by promotion from the cadre of Supervisors.
It prescribed the minimum qualifications and age as follows: "For Direct Recruitment Age Not above 31 years.
A pass in Civil or Mechanical Engineering or a Certificate or Diploma from the Institute of Engineers that the candidate has passed Parts A. B. of the Associate Membership of the Institute of Engineers or equivalent qualification with practical.
training for not less than 6 months during or after the course." One G. Govindaraju, Junior Engineer, filed a petition under article 226 of the Constitution for a mandamus to the State Government prohibiting the appointment of 80 persons selected by the Public Service Commission.
It was contended by him that on December 3, 1960, under the proviso to article 309 of the Constitution the Governor had made rules regulating the recruitment to the posts of Assistant Engineers, and that under those rules, forty per cent of the appointments alone could be made by the Public Service Commission after an interview and an oral test.
Various other arguments were urged before the High Court.
The Ad vocate General stated before the High Court on behalf of the State Government that the list having been prepared by the Public Service Commission in response to the request made by the State Government in the exercise of its executive power which it possessed under article 162 of the Constitution, the State Government was not bound to make appointments only in accordance with that list, and that it was open to the State Government not to appoint any of those persons or to appoint only those persons who, in its 692 opinion, should be appointed amongst them.
The High Court felt that this statement made before it by the Advocate General rendered unnecessary any investigation into the contention urged on behalf of the petitioner at that stage.
The High Court further observed as follows: .lm15 "It would be for the State Government before it takes a decision on that question, to consider the effect of Rule 4(2) of the Public Service Commission (Function), Rules, made on December 10, 1957, Rules 3 and 4 of the Mysore State Civil Services General Recruitment Rules, which came into force on February 10, 1958, and of the Mysore Public Works Engineering Department Service (Recruitment) Rules, which came into force on December 3, 1960, and to further consider whether in the light of those provisions, appointments could be made to the posts of Assistant Engineers, except in accordance with the provisions of the Rules which came into force on December 3, 1960.
On this question,, we should not, in my opinion, express any opinion at this stage.
" With these observations, the High Court dismissed the peti tion as premature.
This order was passed on September 29, 1961.
On October 23, 1961, in exercise of the powers conferred by the proviso to article 309 of the Constitution and all other powers enabling him in that behalf, the Governor of Mysore made certain amendments to the Mysore Public Works, Engineering Department Services (Recruitment) Rules, 1960.
The effect of these amendments, if valid, was to make the Mysore Public Works Engineering Department Services (Recruitment) Rules, 1960, retrospective with effect from the first day of March, 1958.
Para 3 of this Notification further provided: "3.
To rule 2, the following proviso shall be added and shall be deemed always to have been added, namely : "Provided that in respect of direct recruitment of Assistant Engineers for the first time under these rules the percentages relating to direct recruitment and recruitment by promotion specified in column 2 of the Schedule shall not be applicable and the minimum qualifications and the period of probation shall be the following, namely: Qualifications The candidates must be.
a graduate in Engineering (Civil or Mechanical) or must have passed an equivalent examination and must have either undergone practical training or rendered service in a technical cadre in the Public Works Department for a minimum period 693 not less than six months.
A certificate to that effect issued by the Principal of the College or Superior Officer under whom he has undergone training or is working must be enclosed to the application; Age limits must not be above (i) 35 years in the case of Government servantsholding appointment substantively or who have been in continuous Government service for a period of not less than 3 years and political sufferers; (ii)33 years in the case of candidates belonging to Sche duled Castes and Scheduled Tribes; (iii)31 years in the case of Backward Classes; (iv)28 years in the case of others; on the last date fixed for the receipt of applications.
Period of Probation.
Two years.
" On October 31, 1961, the Governor of Mysore appointed 88 candidates as Probationary Assistant Engineers in the Mysore.
Public Works Department and it is these appointments that were challenged before the Mysore High Court in the 16 writ petitions mentioned in the beginning of this judgment.
Mr. Setalvad contends that under the proviso to article 309 the Governor is entitled to make retrospective rules and the position of the Government while acting under the proviso to article 309 is in no way different from the powers conferred on the legislature under article 309 read with articles 245 and 246 and item 41 of List 11.
Mr. Setalvad further contends that the Government is not acting as a delegate of any legislature while exercising powers under the proviso to article 309; it is exercising a power conferred by the Constitution directly on the executive and the Constitution has not prescribed any guiding principles to be followed by the State Government while it is exercising powers under the proviso toart.
309, because the Constitution treats it having the same powers as the legislature.
He further says that the State Government can amend and repeat any existing law relating to State Services continued in force by article 313 of the Constitution.
He urges that if the Constitution makers had intended to place any fetters on the powers of the State Government under the proviso, these would have been mentioned specifically, and he says that we cannot treat it on the same basis as delegated legislation and, therefore,.
even if it be the law, which he does not concede, that the executive when acting as a delegate under an act of Parliament or an act of a State Legislature, cannot make rules retrospectively, this principle does not apply to the exercise of powers under the proviso, to article 309 of the Constitution.
694 Mr. Nambiar contends that under an act of Parliament or an act of a State Legislature the executive cannot frame rules retrospectively unless the act specifically empowers it to do so.
According to him the position is the same under the proviso to article 309.
In our opinion, it is not necessary to decide this point in these cases because we are of the view that the appeal can be disposed of on another ground.
Assuming for the sake of argument that Mr. Nambiar is right that the Mysore State Government could not make rules retrospectively and that the rules are thus void, so far as they operate retrospectively, we must ignore these rules and see whether the appointments made on October 31, 1961, can be upheld.
We have come to the conclusion that these appointments can be considered to have been validly made in exercise of the executive power of the State under article 162 of the Constitution.
The three notifications issued by the Public Service Commission on October 1, 1958, May 4, 1959 and April 1, 1960, must be treated to have been issued with the consent of the State Government.
These notifications are not rules made under article 309 of the Constitution, as contended by Mr. Nambiar; they are mere executive notifications issued by the Public Service Commission at least with the implied consent of the State Government.
The passage reproduced above from the letter of the Government dated March, 4, 1959, clearly shows .that the Government was well aware of what the Public Service Commission was doing.
It was aware of the action being taken by the Public Service Commission, and indeed, it can safely be assumed that the Government was aware of each step being taken by the Public Service Commission including the publication of these notifications.
The position is that if we accept Mr. Nambiar 's arguments that these rules purported to be made by the Mysore State Government had no retrospective validity, there were no statutory rules to govern the appointment of the 88 persons as Assistant Engineers.
We have already held that the Mysore State Civil Service (General Recruitment) Rules, 1957, did not debar the Government from making appointments without making statutory rules.
Therefore, we hold that these appointments were validly made.
Mr. Nambiar sought to impeach the appointments on another ground.
He said that the appointments violated Mysore Public Works Engineering Department Services (Recruitment) Rules, 1960, dated December 3, 1960, because the appointments were made on October 31, 1961, and according to him, these appointments had also to be made under the statutory rules made on December 3, 1960.
We are unable to sustain this contention because it took about two years for the Public Service Commission to publish notifications, interview candidates and recommend names for appointment.
The whole procedure having been 695 followed, it could not have been the intention of the Government while framing the rules to cover appointments made in pursuance of the recommendations of the Public Service Commission made in November 1960 after interviewing candidates in October 1960.
It was urged in the alternative that the advertisement made by the Public Service Commission notification dated April 1, 1960 was different from the rules of March 4, 1959, in the matter of fixing the age limits, i.e., while the rules provided 28 years as the maximum age in the case of others, the notification provided the maximum age as 31 years.
In our view the respondents are not entitled to make a grievance of this difference because there is nothing on the record to show that the ages of those appointed were against the rules of March 4, 1959.
The learned counsel has not been able to satisfy us that they have suffered in any manner because of this difference in age.
There remains one question and that is the question of mala fides which was alleged in the petition.
There were 16 petitions but we will take the allegations from the first petition.
Paras 16 and 17 in Writ Petition No. 1248 of 1961, before the High Court, in which the allegations of mala fides have been made read as under: "Further selection made by the Public Service Commission is arbitrary and made out of collateral considerations.
Amongst the selected candidates, the following viz., (1) Sri D. C. Channe Gowda, who is the son inlaw of the 2nd member of the Public Service Commission, an ordinary B.E. Graduate with only 49% of marks; (2) Sri Kencharase Gowda, who is the sister 's son inlaw, an ordinary B. E. have been selected to the exclusion of myself and several others, who had superior qualification, both academically and by virtue of seniority in service.
17.Similarly, relations of prominent members of the local Legislature and of Parliament, relations of high placed officials including a Minister and an ex Minister have been selected.
" The Chairman of the Mysore Public Service Commission filed a counter affidavit and replied to the above paras 16 and 17 as follows: " 3.
Paragraph 16 of the Petitioner 's affidavit The statement that the selection made was arbitrary and made out of collateral considerations is incorrect.
It is true that Shri D. C. Channe Gowda was among the candidates selected.
The then Second Member of the 696 Public Service Commission abstained from participating in the interview of that candidate.
I was not aware at the time of the selection, of the relationship of Kencharase Gowda, Shri T. Krishna, Shri Hanume Gowda and Shri M. N. Narase Gowda to the then Second Member of the Public Service Commission.
The then Second Member of the Public Service Commission, Shri M. K. Appajappa is since dead.
The dominant factor in making the selection was the performance of the candidate at the interview and the marks secured by the candidate in the Degree Examination was only one of the factors that was taken into, consideration.
4.Paragraph 17 of the Petitioner 's Affidavit I was not aware of the relationship, if any, of the candidates to prominent members of the local Legislature and of Parliament or of high placed officials including a Minister and an ex Minister.
I submit that it is also incorrect to suggest that the selections were influenced by any such relationship".
The High Court found it unnecessary to investigate this mat ter because it felt that the selections impugned were in valid on other grounds, but it observed as follows: "There is no denying the fact that the facts stated in the pleadings, especially in the light of the manner in which they are traversed in the counter affidavit of the Chairman of the Public Service Commission, do raise a strong suspicion." The High Court might well have abstained from expressing its strong suspicion if it was not going to give its final views on the question of malafides.
We are unable to appreciate that the manner in which the counter affidavit of the Chairman of the Public Service Commission is expressed calls for any comment.
In para 15 of the affidavit in support of Writ Petition No. 1269 of 1961 more details are given of the selected candidates and the counter affidavit filed by the Chairman of the Public Service Commission is common to all the petitions.
But even so, the details mentioned did not call for any detailed reply.
For example, it was alleged in para 15 that one Shri D.C. Channe Gowda who is the son in law of the Second Member of the Public Service Commission, Shri Appajappa, was an ordinary B. E. Graduate with only 49.8 % marks.
But even if he had only 49.8 % of the marks, this is not conclusive to show that he should not have been selected because the whole object of interviewing candidates is to judge their eligibility or suitability apart from the standard displayed by them in the written examination.
We are unable to hold that on these facts any mala fides or collateral object has been proved.
697 In the result the appeals both of the State and the other appellants are allowed and judgment of the High Court set aside.
We may mention that some of the appellants have not prosecuted their appeals but there is no reason why they should not have the benefit of this judgment, and exercising our powers under article 142 of the Constitution, we direct that in order to do complete justice they should also have the benefit of the judgment given by us.
There will be no order as to costs.
Appeals allowed.

summary:
By notifications issued in October 1958, May 1959 and April 1960, the Mysore Public Service Commission invited applications for the recruitment of 80 probationary Assistant Engineers .
The qualifications, pay, age limit and other conditions for eligibility were prescribed by these notifications.
On March 1, 1960, it was notified by the Governor, that for direct recruitment to appointments and posts in the services of the State, reservations for Scheduled Castes and Scheduled Tribes would be 15% and 3%; and the reservation for other backward classes would be 25%.
Thereafter, in October and November 1960, the Mysore Public Service Commission interviewed the candidates and sent a list to the Government of 80 candidates selected by them.
On December 3, 1960, the Government of Mysore sanctioned the establishment of the State Service Cadre in respect of the Mysore Public Works Engineering Department Service.
On the same date, in exercise of the powers conferred by the proviso to article 309 the Governor made the rules called the Mysore Public Service Engineering Department Service (Recruitment) Rules 1960.
These Rules prescribed in respect of each category of specified posts the methods of recruitment, whereby only 40% of the appointment could be made after an interview and an oral test and also prescribed the minimum qualifications, age limits, etc.
for Assistant Engineers which were somewhat different from those prescribed in the earlier Notifications of the Mysore Public Service Commission relating to the recruitment of 80 Assistant Engineers.
On October 23, 1961 the Governor made certain amendments to the 1960 Rules the effect of which was to make those rules retrospective with effect from March 1, 1958 and also, to waive the requirements of the rules relating to the percentages for direct recruitment, educational qualifications, and age requirements, etc.
in respect of direct recruitment of Assistant Engineers for the first time.
Thereafter, on October 31, 1961, the Governor appointed 88 candidates as probationary Assistant Engineers.
These appointments were challenged in 16 Writ Petitions filed in the High Court on the grounds inter alia, that (1) in view of Rule 3 of the Mysore State Civil Services 683 (General Recruitment) Rules, 1957, which provided that the method of recruitment and qualifications for each State Civil Service shall be set forth in the rules of recruitment of such service specially made in that behalf, the Government could not recruit the Assistant Engineers without framing the necessary rules; (ii) the State Government could not make rules retrospectively unless it had express powers to do so under the relevant statute; (iii) the appointments which were made on October 31, 1951 had to be made in accordance with the 1960 Rules but in fact were not so made; (iv) some of the appointments were made mala fide.
These writ petitions were allowed by the High Court.
On appeal to this Court, HELD : The appointments of the 88 Assistant Engineers were validly made in the exercise of the executive power of the State under article 162 of the Constitution.
It is not obligatory under the proviso to article 309 to make rules of recruitment etc.
before a service can be constituted or a post created or filled.
The State Government has executive power in relation to all matters with respect to which the Legislature of the State hag power to make laws.
It follows from this that the State Government will have executive power in respect of List 11 Entry 41 "State Public Services".
[686 C E] In this background, Rule 3 of the General Recruitment Rules of 1957 cannot be interpreted as suspending the executive power of the State till rules of recruitment of a service are specially made in that behalf.
[686 G] Ram Jawaya Kapur vs State of Punjab, and T. Cajee vs K. Jormanic Siem, ; , referred to.
Even if it were to be assumed that the rules purported to be made by the State Government had no retrospective validity the position would be that there were no statutory rules governing the appointment of the 88 Assistant Engineers; but that could not prevent the State Government from making valid appointments in the exercise of its executive powers.
[694 P] It cannot be said that the appointments made in October 1960 had to be under statutory rules made on December 3, 1960.
It took about two years for the Public Service Commission to publish notifications, interview candidates and recommend names for appoinment.
The whole procedure having been followed, it could not have been the intention of the Government, while framing the rules, to cover appointments made in pursuance of the recommendations of the Public Service Commission made in November 1960 after interviewing the candidates in October 1960.
[694 G 695 B] On the facts, no mala fide or collateral object had been proved.
The Mysore Public Service Commission (Function) Rules, 1957 are not statutory rules made under article 309.
First.
the rules do not expressly say so; and secondly, they deal with the functions of the Commission rather than with the rules regarding recruitment to services or posts.
[685 E]