judgement:
Appeal No. 266 (NT) of 1980.
From the Judgment and Order dt 14.12.1979 of the Allahabad High Court in Sales Tax Rev. No. 214 of 1979.
Harish N. Salve, P.P. Singh and Ms. Meenakshi Grover for the Appellant.
R.C. Verma and Ms section Mukherjee for R.B. Misra for the Respondent.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
This appeal is directed against the judgment of the Single Judge of the Allahabad High Court passed in Sales Tax Revision No. 214 of 1979 dated 14th December, 1979.
By the impugned judgment the High Court set aside the order of the Judge (Revisions), Sales Tax, U.P. Lucknow holding that the Phosphorous Bronze which the assessee/appellant herein have been manufacturing, fell within the ambit of Notification No. ST II 333/X 10121971 dated the 15th November, 1971 issued in exercise of the powers under the second proviso to sub section (2) of section 3 A of the U.P. Sales Tax Act, 1948 (U.P. Act No.
XV of 1948), and took the view that the relevant entry at serial No. 2(a) of the said Notification did not cover the goods prepared by the appellant herein and was thus liable to be taxed as an unclassified commodity at the rate of 3.5%.The relevant entry reads as under: SI.
No. Description of goods Rate of tax 1. . . . 2. (a) Copper, tin, nickel or zinc 1 per cent.m or any other alloy containing any of these metals only.
(b). . . .
The contention on behalf of the appellant is that Phosphorous Bronze manufactured and marketed by them is covered under the aforesaid entry.
According to the appellant the said Phosphorous Bronze is made of tin and copper only.
It is further contended on behalf of the appellant that the small quantity of Phosphorous is used to deoxidise the metal and as such the Phosphorous is not an 721 essential substance of Phosphorous Bronze.
It is, however, admitted case of the parties that without the use of Phosphorous the Phosphorous Bronze cannot be produced and certain quantity of Phosphorous still remains in the Phosphorous Bronze.
The contention of the respondent is that Phosphorous Bronze is an alloy containing not only the metals mentioned in the aforesaid entry but Phosphorous also and as such it is not covered under the aforesaid entry.
The words "other alloy containing any of these metals only" mean that the alloy made of these metals i.e. copper, tin, nickel or zinc only and that alone is covered under the said entry.
It was submitted that if any other metal or substance is included in such an alloy, the same would not be covered under the aforesaid entry.
A similar question arose in the case of Commissioner of Sales Tax, U. P. vs Hindustan Metal Works, Hathras reported in (1964) 15 Sales Tax Cases 97 wherein it was held as under: "The Notification exempts tax on sale of alloys prepared from the solution of two or more of the metals enumerated therein.
On account of the word "only" the sale of an alloy prepared from the solution of two or more of those metals and some other substance or substances would not be exempt from tax.
The assesse sold an alloy called phosphorous bronze which was prepared from the solution of copper, tin, phosphorous and lead.
Phosphorous and lead are not mentioned in the notification.
They are deliberately added by the assessee as per agreement between the parties.
The sale is, therefore, prime facie liable to be taxed.
" We were referred to various dictionary meanings of the words Phosphorous Bronze 'which have been noticed by the learned Judge dealing with case in the High Court.
We are really concerned with the interpretation of the entry.
The emphasis in the entry is either it should be pure copper, tin, nickel or zinc and if it is an alloy containing two or more metals, it must be an alloy containing these metals only.
The expression "only" is very material for understanding the meaning of the entry.
Since the alloy in dispute contains Phosphorous, may be in a very small quantity, it cannot fall within entry 2(a) of the aforesaid Notification.
The appeal consequently fails and is dismissed with costs.
U.R. Appeal dismissed.

summary:
By Notification No. ST 11 333/X 1012 1971 dated 15 November 1971, entry 2(a) copper, tin, nickel, zinc or any other alloy containing any of these metals only were made exigible at a reduced rate of sales tax of I The Judge (Revisions) Sales Tax, U.P., Lucknow held that phosphorous bronze falls within this notification.
The Single Judge of the Allahabad High Court took a contrary view and held that it was taxable as an unclassified commodity at 3.5%.
Before this court it was contended that phosphorous bronze is made of tin and copper only; that a small quantity of phosphorous is used to deoxidize the metal and that it is not an essential substance of the phosphorous bronze.
It was, however, admitted that without the use of phosphorous, phosphorous bronze cannot he produced, and a certain quantity remains in the phosphorous bronze.
Dismissing the appeal, this Court, HELD: (1) The emphasis in the entry is that it must contain, even if an alloy, "only" copper, tin, nickel or zinc.
The expression "only" is very material for understanding the meaning of the entry.
Since the alloy in dispute contains phosphorous, may he in a very small quantity, it cannot fall within entry 2(a) of the notification.
(721 G) Commissioner of Sales Tax vs Hindustan Metal Works (1964) 15 STC 97 720 referred to.


judgement:
Appeal No. 139 of 1959.
Appeal by special leave from the judgment and order dated January 8, 1959, of the Patna High Court in Election Appeal No. I of 1958, arising out of the judgment and order dated November 30, 1957, of the Election Tribunal, Patna, in Election Petition No. 353 of 1957.
B. K. P. Sinha and D. P. Singh, for the appellant.
G. C. Mathur and Dipak D. Choudhri, for respondent No. 1.
R. H. Dhebar, for respondent No. 3. 1959.
April 14.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal by special leave arises from the ' election petition filed by respondent I (No. 353 of 1957) in which he claimed a declaration that the election of the appellant as a member of the 537 Bihar Legislative Assembly Maner Constituency should be declared to be void.
In the last General Election for the said constituency which was held in February March 1957, there were three candidates, the appellant, respondent I and respondent 2.
The last date for filing nomination papers at the said election was January 29, 1957; the 'said papers were scrutinised on February 1, 1957.
Respondent I had challenged the validity of the appellant 's nomination paper at the said scrutiny but the returning officer had overruled the objection raised by respondent I and had accepted the nomination paper of the appellant along with 'those of the two other candidates.
After the counting of votes was done on March 3, 1957, the appellant was declared duly elected at the election inasmuch as he had got 9,826 votes while res pondents I and 2 had got 7,526 and 49 votes respectively.
Thereupon respondent I filed his election petition under section 81 of the Representation of the People Act, 1951 (hereinafter called the Act).
In his petition respondent 1 challenged the election of the appellant on several grounds all of which were controverted by the appellant.
On the allegations of the parties the tribunal had framed several issues and parties had led evidence on them.
At the stage of arguments, however, only a few issues were pressed by respondent I and all of them were found against him and in favour of the appellant.
In the result the tribunal dismissed the election petition on November 30, 1957.
Against the said decision of the tribunal respondent I preferred an appeal in the High Court of Judicature at Patna; and in his appeal he pressed only issue No. 1.
This issue was whether the nomination of the appellant was hit by the provision of section 7(d) of the Act and as such whether the said nomination had been improperly accepted.
On this issue the tribunal had found in favour of the appellant but the High Court reversed the said finding and accepted the plea of respondent 1.
As a result of this finding the High Court allowed the appeal preferred by respondent I and 68 538 declared on January 8, 1959, that the election of the appellant was void under section 100(1)(a) of the Act.
The validity of the appellant 's nomination has been challenged under section 7(d) of the Act on the ground that at the date of the nomination he had an interest in a contract for the execution of works undertaken by the Bihar Government.
There is no doubt that if a person is interested in a contract for the execution of any work undertaken by the appropriate Government he is disqualified for membership of the State Legislature in question.
The appellant, however, denied that the disqualification imposed by section 7(d) could be invoked against him.
His case was that the contracts in question had not been undertaken by the Bihar Government but they bad been undertaken by the Central Government; and he also urged that he had not taken the said contracts individually in his personal capacity, but as the Mukhiya of the Jeorakhan Tola Gram Panchayat.
On both these issues the Election Tribunal and the High Court have differed; and it is the said two issues that arise for our decision in the present appeal.
It is clear that if the appellant succeeds in showing that he had entered into the impugned contracts not individually but on behalf of the Panchayat of which he was the Mukhiya it would be un necessary to consider whether the works covered by the said contracts had been undertaken by the Government of Bihar.
Let us therefore first consider that point.
The impugned contracts are five in number.
They were for the execution of works under local development works programme envisaged under the Second Five Year Plan formulated by the Government of India.
These contracts are evidenced by five documents, Exs.
16 A, B, C, D & E. The first is for the construction of Beyapore Jeorakhan Tola Road, the second for the construction of the Beyapore M. E. School, the third for the construction of a Dispensary at Jeorakhan Tola, the fourth for the construction of the Gram Panchayat building, and the last for the construction of a well at the said village.
It is admitted by the appellant that these contracts had not been completed at the time of his nomination.
539 In considering the appellant 's plea that he had executed these contracts as a Mukhiya of the Village Panchayat of his village, it would be necessary to bear in mind the background of the scheme in pursuance of which these works were undertaken.
The Second Five Year Plan published by the Planning Commission in 1956 shows that the programme of ' starting these ' works was treated as a part of the co operative movement and the Commission had therefore recommended that the States were to sponsor and assist actively in the Organisation and development of Village Panchayats which was an important constituent of the programme of fostering corporate life in the rural areas as it would promote among the rural community active interest in the development programmes of the villages.
The object of this programme which would operate in areas not yet reached by the National Extension Service was to enable village communities to undertake works of local benefit mainly with their own labour.
The Commission realised that the resources of all the States taken together would fall far short of the requirements of this Plan and so it recommended large transfers of resources from the Centre to the States.
In this connection the conclusion of the Commission was that out of Rs. 200 chores sanctioned for the year 1957 58, 12 cores would be required for the Centre for schemes undertaken or directly sponsored by the Community Project Administration and 180 crores were to form part of the balance for the States.
Thus it is obvious that the basic idea underlying the Plan was to evoke popular response to the community projects undertaken in pursuance of the Plan and to leave the execution of different works adopted under the Plan to be fulfilled by popular local agencies like Village Panchayats.
This policy was emphasised by the Secretary of the Planning Commission in his communication to all State Governments, No. PC/Pub/52/53 dated August 11, 1953 (H. 1).
This communication set out the seven categories of work which were most suitable for assistance and it said that the local contribution in cash or kind or through voluntary labour together 540 with any contribution that the State Government or a local body might make should be a minimum of 50% of the total cost of each work.
The intention was to spread the benefit over as wide an area and to as many people as possible.
The State Governments were accordingly requested to arrange for a detailed scrutiny of the schemes before they were accepted and for making adequate provisions providing for their pro per execution.
They were also required to nominate a liaison officer for each district or other suitable unit for the purpose of checking the execution of the works and for maintenance of such initial accounts as might be necessary.
This communication makes detailed provisions about financing and accounting procedures to be followed and required the State Governments to make progress reports from time to time.
It appears that the Government of India was aware that the District Boards whose primary responsibility it was to sponsor these undertakings would find the project beyond their financial resources and so it accepted the recommendation of the Planning Commission to contribute 50% of the cost of each of the schemes on the condition that the remaining half had to be found by the District Board or by the public to be benefited by it in the form of cash or voluntary labour.
The five impugned contracts related to community projects of the kind envisaged by this programme.
By its letter dated February 27, 1954 (H. 2) the Bihar Government had advised all the District Local Boards to assist the execution of such projects and to afford all facilities to and co operate with the district officers in the execution of the programmes undertaken by these projects without charging any remuneration for the same.
The idea clearly was that if the Village Panchayats sponsored works undertaken under these programmes they should encourage people to contribute labour and even money.
The result would be that the works undertaken would benefit the community at large and if any saving was made in executing the contract it would enure for the benefit of the village Panchayats that were usually expected to be the sponsoring units.
541 It is in the light of this background that we have to consider the question whether the contracts in question had been executed by the appellant in his individual capacity as contended by respondent I or in his capacity as the Mukhiya of the Village Panchayat as urged by the appellant.
The four contracts evidenced by Exs.
16A, C, D and E are all similarly executed whereas contract 16 B which is in respect of the construction of the Beyapore M. E. School is somewhat differently worded.
With regard to this latter contract both the Election Tribunal and the High Court are agreed that it had been executed by the appellant as the Secretary of the Beyapore Madhyamik Vidyalaya and that in this con tract the appellant was not personally interested.
The Election Tribunal took the view that the other contracts are substantially of the same character whereas the High Court has held that they are entirely different and that the appellant has personally executed them.
The question which we have now to decide is whether this view of the High Court is right.
We would take exhibit 16 A as typical of the remaining four contracts.
The material terms of this contract are 8 in number and they are all in the prescribed form.
At the commencement of the contract the appellant has described himself by his name and he has stated that he belongs to the village of Jeorakhan Tola and that his profession is cultivation.
The preamble to the contract shows that the appellant undertook to carry out the construction of the development project under local works programme mentioned in the contract as per estimate attached thereto and he agreed to execute the work according to and subject to the terms and conditions contained therein, and he also undertook to contribute 50% of the cost in cash and labour.
At the end the appellant has signed as Mukhiya and has given his address as Jeorakhan Tola Gram Panchayat.
The High Court took the view that the description of the appellant given by him at the time when he signed the contract was not a term of the contract and could not therefore support his plea that he had executed the contract as Mukhiya of 542 the Panchayat.
It is on this ground that the High Court distinguished this and the other three allied contracts from the school contract, exhibit 16 B.
In this latter contract the appellant has described himself as the Secretary, Madhyamik Vidyalaya, both at the commencement of the document and at the end where the appellant has signed.
In our opinion, the distinction made by the High Court between the two sets of contracts is not valid.
We do not see any reason to take the view that the description given by the appellant about his status while he signed the contract is no part of the contract itself.
Incidentally we may observe that the contract is accepted by the officer who signs as the section D. O., Dinapore.
The designation of the officer given by him while signing the acceptance of the contract indicates the character in which the officer has accepted the contract.
Similarly the description given by the appellant about his status and character when he signed the contract should be taken to denote the character in which he executed the contract.
The High Court also thought that cls.
4 and 7 by which the appellant undertook liability to execute the contract as required and to become liable for payment of any fine imposed by the local government officer in case of his default clearly showed obligations of a personal type which were inconsistent with his plea that he had entered into the contract as the Mukhiya of the Panchayat.
We think that this argument has no force.
If the nature of the liability undertaken by these two clauses necessarily involves the conclusion that the execution of the contract must be by an individual person, then it is significant that the same two clauses occur in the school contract and yet the High Court has held that the said contract has been executed by the appellant not in his individual capacity but as the Secretary of the Madhyamik Vidvalava.
Therefore too much reliance cannot be placed upon these two clauses to support the view that the contract has been executed by the appellant personally.
Besides, the High Court has not properly considered the term of the contract by which the contracting 543 party undertakes to contribute 50% of the cost of the work in cash or labour.
In other words, the contracting party becomes a sponsoring agent of the contract and agrees to undertake 50% of its cost.
It is very difficult to appreciate the suggestion that the appellant personally and in his individual character agreed to contribute 50% of the cost in cash or labour.
In ' ordinary course a person who undertakes to carry out a building contract expects to make profit and would never agree to contribute 50% of the cost of the contemplated work.
This clause clearly indicates that the sponsoring of the contract was really done by the Village Panchayat which agreed through its Mukhiya that it would contribute 50% of the cost either in cash or in labour.
Consistently with the general policy of Plan the Village Panchayat became a sponsoring agent and hoped and expected to obtain popular response from the villagers who would contribute their labour and thus make up the 50% of the cost of the intended work.
Therefore, in our opinion, if the contract in question is considered in the light of the background of the Plan of which it forms one item, and all its conditions are taken into account together, there can be no doubt that the appellant as the Mukhiya of the Village Panchayat acted as its agent when he signed the contract., and not as an individual acting in his personal capacity.
This position is also corroborated by the record kept by the Village Panchayat in respect of these contracts.
This record consists of the several proceedings before the Village Panchayat, the budgets adopted by it and the resolutions passed by it from time to time in respect of these contracts.
It had been alleged by respondent 1 that the whole of this record had been fabricated for the purpose of the present proceedings.
The Election Tribunal has made a definite finding against respondent I on this point.
It has considered the oral evidence given by the appellant and other witnesses in proving the said record.
It has examined the entries themselves on their merits and has taken into account the fact that some of the exhibits showed that they had been signed and 544 approved by the District Panchayat Officer from time to time.
The tribunal, therefore, thought that it was impossible to believe that all persons who purported to sign the record had helped the appellant to manufacture it simply because the appellant was the Mukhiya of the village.
The judgment of the High Court shows that it was not prepared to reverse this finding in terms.
It has, however, made certain observations in respect of this record which would show that it was not prepared to attach any importance to it.
" The papers ", says the judgment, " do not inspire much confidence and cannot be relied upon in proof of, the facts disclosed by them ".
It is unfortunate that when a serious allegation was made against the whole of the record alleged 'to have been kept by the Village Panchayat and it had been categorically rejected by the Election Tribunal, the High Court should not have made its own finding on the point in clear and unambiguous terms.
The oral evidence led by the appellant in support of the record and the other material circumstances considered by the Election Tribunal do not appear to have been properly taken into account by the High Court in dealing with this point.
The High Court was, however, impressed by what it called two defects in respect of this record .
It observed that the accounts had not been audited as required by r. 20 of the Bihar Gram Panchayat Account Rules, 1949, and that the cash balance had not been kept by the Mukhiya in the nearest Post Office Savings Bank or in any recognised Co operative Bank or a Government Treasury in the name of the Panchayat as required by r. 8.
These two defects may undoubtedly suggest that the officers of the Panchayat including the appellant had not acted properly and had not complied with the obligations imposed by the said rules; but it is difficult to understand how the said two defects can have a material and direct bearing on the question as to whether the record had, been fabricated.
If the High Court intended to hold that the record bad in fact been fabricated it should have considered the relevant evidence and the material circumstances 545 more carefully and should have made a definite finding in that behalf.
To say that the record bore only the signatures of the appellant and his clerk and to seek to draw an adverse inference from that fact is, in our opinion, adopting a wrong approach to the question.
If the appellant was the Mukhiya he was bound to sign the record, and so was the clerk bound to write it; that cannot therefore be treated as a suspicious circumstance by itself We have carefully examined this question and we do not see any reason why the well considered finding of the Election Tribunal on this point should not have been accepted.
Therefore, we must assume that the Panchayat record produced by the appellant is not shown to have been fabricated.
Besides, the High Court itself appears to have assumed that this record showed that there was an understanding between the appellant and the Village Panchayat in regard to the financial obligations involved in the execution of the impugned contracts.
" It might well be ", says the judgment, " that the loss or the profit was ultimately to be borne or pocketed by the Gram Panchayat itself " ; but that, according to the High Court, " does not take away the effect of the contract itself which on the face of it was entered into by the appellant himself ".
If the Panchayat agreed to bear the loss or take the profit flowing from the performance of the contract then it clearly supports the appellant 's case that he had executed the contract as the Mukhiya of the Panchayat.
The arrangement to which the High Court refers, if genuine, would be wholly inconsistent with the case set up by respondent I that the contract had been executed by the appellant personally.
The High Court has also held that the appellant had not made out this specific case either before the returning officer when his nomination was challenged or in the present proceedings when he filed his written statement.
The appellant had no doubt stated in reply that he had no interest in any contract undertaken by the State Government.
According to the 69 546 High Court his failure to add the further particular that the contract had been executed,by him on behalf of the Panchayat shows that the said plea is an afterthought.
We are unable to see the force of this criticism.
But apart from it, the question raised by the appellant relates to the construction of the contract and we do not see how the construction of a document can be prejudicially affected by the failure of the party to make a more specific and more precise plea in his written statement.
We have no doubt that, if the contract is considered as a whole, it would show that the appellant had executed it as the Mukhiya of the Village Panchayat and this conclusion cannot be affected by the alleged defect in the plea taken by him in the written statement.
The High Court has also relied on the fact that if the contract was intended to be executed by the appellant on behalf of the Panchayat it should have been executed in the name of the corporate body as required by section 6 of the Bihar Panchayat Raj Act (Bihar Act 7 of 1958).
It may be that the Gram Panchayat is a body corporate by the name specified in the notification under sub section
(1) of section 3 and has a perpetual succession and a common seal, and so has power to contract in the name of the body corporate; but as the judgment of the High Court itself points out the invalidity of the contract would not affect the merits of the issue raised under section 7(d) of the Act.
That is the view taken by this Court in Chatturbhuj Vithaldas Jasani vs Moreshwar Parashram (1), and that in fact is the point made by the High Court in rejecting the appellant 's contention that since the contract was invalid he could not be said to be interested in it under section 7(d) of the Act.
Therefore, the invalidity of the contract cannot help us in deciding the question as to whether, on its true construction, the contract can be said to have been executed by the appellant in his personal capacity or as the Mukhiya of the Village Panchayat.
Our conclusion, therefore, is that the four impugned contracts have been executed by the appellant as the Mukhiya of the Village (1) ; 547 Panchayat just in the same way as he had executed the school contract as the Secretary of the Vidyalaya in question.
That being so, section 7(d) cannot be invoked against him.
In view of this conclusion it is unnecessary to decide whether the works in question had been undertaken by the Government of Bihar or by the Central Government.
The result is that the appeal must be allowed, the order passed by the High Court set aside and that of the tribunal restored ; respondent I shall pay the costs of the appellant throughout; and the Election Commission shall bear their own.
We would like to add that, after this appeal was argued before us on April 2, 1959, we had announced our decision that the appeal would be allowed and that the judgment would be delivered later on in due course.
It is in pursuance of that order that the present judgment has been delivered.
Appeal allowed.

dataset_name: IN-Abs

summary:
The election of the appellant as a member of the Bihar State Assembly was challenged under section 7(d) of the Representation of the People Act, 951, by the first respondent who was also a candidate for election for the same constituency, on the ground that at the date of the nomination the appellant had an interest in contracts for execution of works undertaken by the Bihar Government, and that his nomination had been improperly accepted.
The appellant 's plea inter alia was that he had executed the contracts not in his individual capacity but as the Mukhiya of the Village Panchayat and therefore the disqualification imposed by section 7(d) of the Act could not be invoked against him.
The contracts in question related to community projects undertaken in pursuance of the Second Five Year Plan, under which the execution of different works adopted under the plan was to be by popular local agencies like Village Panchayats.
The contracts were all in the prescribed form and the appellant, at the com 536 mencement of the contract, described himself by his name, stating that he belonged to the village.
The preamble to the contract showed that the appellant undertook to carry out the construction of the development project under local works programme mentioned in the contract as per estimate attached thereto, that he agreed to execute the work.
according to and subject to the terms and conditions contained therein and that he undertook to contribute 50% of the cost in cash and labour.
At the end of the contract he signed as Mukhiya, giving his address as the Gram Panchayat.
The Election Tribunal found in favour of the appellant and dismissed the election petition, but, on appeal, the High Court took the view (1) that the description of the appellant given by him at the time when he signed the contracts was not a term of the contract and could not therefore support his plea that he had executed the contract as Mukhiya of the Panchayat, and (2) that the fact that he undertook liability to execute the contracts as required and to become liable for payment of any fine imposed by the local government officer in case of his default showed obligations of a personal character inconsistent with his plea.
Held, that, on a proper construction of the contracts taking into account all the terms and conditions as a whole and considering them in the light of the background of the Second Five Year Plan, when the appellant signed the contracts as the Mukhiya of the Village Panchayat he acted as its agent and not as an individual acting in his personal capacity.


judgement:
(c) No. 715 of 1990.
Under Article 32 of the Constitution of India.
Gobinda Mukhoty, R.K. Jain, Yusuf H. Machhale, Ms. K. Amreswari, (N.P) R.N. Sachthey, N.N. Goswamy, Ashwani kumar, Mukesh K.Giri, A.K. Sharma, B.K. Prasad, (N.P) Ms. Anil Katiyar, Ms. Niranjana Singh, section Wasim A. Qadri, B.K. Prasad,Nafis Ahmad Siddiqui,Asoar Ali Khan,A.S. Bhasme, E.M.S. Anam, Sakil Ahmed Syed, Anil K. Jha, Raj Kumar Mehta, S.K. Agnihotri, B.R. Jad, Anip Sachthey, Syed Ali Ahmed, Syed Tanweer Ahmad, Mohan Pandey, M. Veerappa, K.H. Nobin Singh section K. Mehta, Dhruv Mehta, Aman Vachher, P. K. Manohar, B. B. Singh, Aruneshwar Gupta and R.Mohan for the appearing parties.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Imams,incharge of religious activities of the mosque '(1) have approached this court by way of this, representative, petition under Article 32 of the Constitution for enforcement of fundamental right against their exploitation by Wakf Boards.
Relief sought is direction to Central and State Wakf Boards to treat the petitioner as employees of the Board and to pay them basic wages to enable them to survive.
Basis of claim is glaring disparity between the nature of work and amount of remuneration.
Higher pay scale is claimed for degree holders.
Imams perform the duty of offering prayer (Namaz) for congregation in mosques. 'Essentially the mosque is a centre of community worship where Muslims perform ritual prayers and where historically they have also gathered for political, social and cultural functions '.
(2) The functions of the mosque is summarised by the 13th Century jurist Ibn Taymiyah 'as a. place of fathering where prayer was celebrated and when public affairs were conducted '.
(3) 'All mosques are where Muslim men on an equalitarian basis rich or poor, noble or humble, stand in rows to perform their prayers behind the imam (4) Imams are expected to look after the cleanliness of mosque, call azans from the balcony of the minarets to the whole religious meetings and propagate the Islamic faith.
They are expected to be 745 well versed in the Shariat, the holy Quran, the Hadiths, ethics, philosophy, social, economic and religious aspects.
"Imam or prayer leader is the most important appointee.
In the early days the ruler himself filled this role; he was leader (imam) of the government of war, and of the common salat ("ritual prayer").
Under the Abbasids, when the caliph no longer conducted prayers on a regular basis, a paid imam was appointed.
While any prominent or learned Muslim can have the honor of leading prayers, each mosque specifically appoints a man well versed in theological matters to act as its imam.
He is in charge of the religious activities of the mosque, and it is his duty to conduct prayers five times a day in front of Mihyab '.
(5) On nature of the duties performed by the imams there is no dispute.
But both the Union of India and various State Wakf Boards of different States which have put in appearance in response to the notice issued by this Court have seriously disputed the manner of their appointment, right to receive any payment and absence of any relationship of master and servant.
It is stated that the imams or muazzins are appointed by the Mutwallis.
According to them the Wakf Boards have nothing to do either with their, appointment or working.
It is claimed that under lslamic religious practice they are not entitled to any emoluments as a matter of right as the Islamic law ordains the imams to offer voluntary service.
They are said to be paid some money out of the donations received in mosques or by the Mutwallis of the Boards.
Their job is stated to be honorary and not paid.
Nature of duty under Islamic Sharjat is stated to lead prayers which is performed voluntarily by any suitable Muslim without any monetary benefit.
Some of the affidavits claim that they are appointed by people of the locality.
The Union Government has specifically stated that the Islam does not recognise the concept of priesthood as in other religions and the selection of imams is the sole prerogative of the members of the local community or the managing committee, if any, of the mosque.
According to Karnataka Wakf Board Imamate in the mosque is not considered to be employment.
The allegation of the petitioners that due to meagre payment they are humiliated or insulted in the society, is denied and it is claimed that they are respectable persons who carry on the duty of Imamate as a part of religious activity and not for earning bread and butter.
The Delhi Wakf Board pointed out that the honorarium is paid to an imam as a consideration for his five time presence in the mosque regularly and punctually.
The Board has denied any right to exercise an authority over the mosque where imams and muazzins are appointed by the mutwallis or by the managing committees.
It is stated that holding of a certificate from a registered institution to enable a person to lead the prayer is not necessary as the only requirement for being an imam under the Sharjat is to (1) to (5) The Encyclopedia of Religion Vol.
10 p 121 122 746 have a thorough knowledge of the holy Quaran and the rites, rules and obligations required for offering prayers according to the principles laid down by the Kuran and Sunnah.
The affidavit filed on behalf of Wakf Board has pointed out that mosque can be categorised in five categories, one, which are under direct control or management of the Government such as Mecca Masjid or the mosque situated in public garden which are not governed or regulated by the Muslim Wakf Board ', second, mosques which are under the direct management of Wakf Board , third, mosques which are under the control of mutwallis under various Wakfs according to the wishes of the Wakf as the creator of the Wakf, fourth, mosques which are not registered with the Wakf Board and are managed by local inhabitants and are under the management of the public who offer prayers regularly in a particular mosque , and fifth, mosques which are not managed by mutwallis or the Muslin is of the locality.
It is claimed that imams of fourth and fifth category are not regular and any Muslim can lead the prayers, whereas under the third category mosques are having regular imams.
Financial difficulty of the Wakf Board to meet the demand has also been pointed out.
The Pondicherry Wakf Board has pointed that there is not even one employee except a peon working therein and, therefore, it is not possible to meet the demand of the imam.
It is also claimed that the Board has no control over the pesh imams as they are considered to be well dignified personality of the society and they are given due respect by the Muslim community as a whole.
In the counter affidavit filed by the Punjab Wakf Board it has been stated that imams of mosques in Punjab were being paid on basis of their qualification.
Imam: Nazara (Muntaii grade) are in the scale of Rs. 380 20 58O25 830 30 980, whereas Imams Hafiz (Wasti grade),are paid Rs. 445 20 645 25895 30 1045, and Imam Alim (Muntaii grade) are paid Rs. 520 20 720 25 97030 1120.
They are also paid Rs.30 per month medical allowance and muazzins are paid Rs. 310 per month.
These scales were revised in 1992.
According to them imams of all the mosques in Punjab, Haryana and Himachal Pradesh which come under the Punjab Wakf Board are being paid regularly and they are treated as regular employees.
The Sunni Central Wakf Board of 'Uttar Pradesh filed only a Written submission stating that all the sunni mosques were managed by mutwallis of the concerned managing committees and not by the Wakf Board.
The mosque differs from a church or a temple in many respects.
Ceremonies and service connected with marriages and birth are never performed in mosques.
Tile rites that are important and integral functions of many churches such as confessions, penitencies and confirmations do not exist in the mosques.
(6) Nor any offerings are made as is common in Hindu temples. 'In Muslims countries mosques are subsidized by the States, hence no collection of money from the community is permitted.
The Ministry of Wakf (Endowments) appoints the 747 servant, preachers and readers of the Koran.
Mosques in non Muslim countries are subsidised by individuals.
They are administered by their founder or by their special fund.
A caretaker is appointed to keep the place clean.
The muazzin cells to prayer five times a day from the minaret.
(7) In our country in 1954 was passed by the Parliament for better administration and supervision of Wakfs.
To achieve the objective of the Act Section 9 provides for establishment of a Wakf Board the functions of which are detailed in Section 15.
Sub section (1) of it reads as under "(1) Subject to any rules that may be made under this Act, the (general superintendence of all wakfs in State in relation to all matters, except those which are expressly required by this Act to be dealt with by the Wakf Commissioner, shall vest) in the Boar d established for the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the Wakfs under its superintendence are properly maintained controlled and administered and the income thereof is duly applied to the objects and for the purposes for the objects and for the purposes for which such wakfs were created or intended: Provided that in exercising its powers under this Act in respect of any wakf, the Board shall act in conformity with the directions of the Wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the Muslim law".
Clause (b) of Sub section (2) obliges the board "to ensure that the income and other property of a wakf are applied to the objects and for the purposes for which that wakf was created or intended".
The board is vested not only with supervisory and administrative powers over the wakfs but even the financial power vests in it.
One of its primary duties is to ensure that the income from the wakf is spent on carrying out the purposes for which wakf was created.
Mosques are wakfs and are required to be registered under the Act over which the board exercises control.
Purpose of their creation is community, worship.
Namaz or Salat is the mandatory practice observed in every mosque. "(Among the Five Pillars (arkan; so., rukn) of Islam, it holds the second most import, position, immediately after the declaration of faith (shahadah) (8).
The ' (6) & (7) Encyclopedia, Britannica Vol.
(8) The Encyclopedia of Religion Vol.
748 principal functionary to undertake it is the Imam.
The objective and purpose of every mosque being community worship and it being the obligation of board under the Act to ensure that the objective of the wakf is carried on the Board cannot escape from its responsibility for proper maintenance of religious service in a mosque.
To say, therefore, that the Board has no control over the mosque or Imam is not correct.
Absence of any provision in the Act or the rules providing for appointment of Imam or laying down condition of their service is probably because they are not considered as employees.
At the same time it cannot be disputed that due to change in social and economic set up they too need sustenance.
Nature of their job is such that,they may be required to be present in the mosque nearly for the whole day.
There may be some who may perform the duty as part of their religious observance.
Still others may be ordained by the community to do so.
But there are large number of such persons who have no other occupation or profession or service for their livelihood except doing duty as Imam.
What should be their fate? Should they be paid any remuneration and if so how much and by whom? According to the Board they are appointed by the mutwallis and, therefore, any payment by the board was out of question.
Prima.facie it is not correct as the letter of appointments issued in some states are from the Board.
But assuming that they are appointed by the Mutwallis the Board cannot escape from its responsibility as the mutwallis too section 36 of the Act are under the supervision and control of the Board.
In series of decisions rendered by this Court it has been held that right to life enshrined in Article 21 means right to live with human dignity.
It is too late in the day, therefore, to claim or urge that since Imams perform religious duties they are not entitled to any emoluments.
Whatever may leave been the ancient concept but it has undergone change and even in Muslim countries mosques are subsidised and the Imams are paid their remuneration.
We are, therefore, not willing to accept the submission that in our set up or in absence of any statutory provision in the the imams who look after the religious activities of mosques are not entitled to any remuneration.
Much was argued on behalf of Union and the Wakf Boards that their financial position was not such that they can meet the obligations of paying the imams as they are being paid in the State of Punjab.
It was also urged that the number of mosques is so large that it would entail heavy expenditure which the boards of different States would not be able to bear.
We do not find any co relation between the two.
Financial difficulties of the institution cannot be above fundamental right of a citizen.
If the boards have been entrusted with the responsibility of supervision and administering the wakf then it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in a mosque the very purpose or which it is created.
749 In the circumstances we allow this petitions and issue following directions (i) The Union of India and the Central Wakf Board will prepare a scheme within a period of six months in respect of different types of mosques some detail of which has been furnished in the counter affidavit filed by the Delhi Wakf Board.
(ii) Mosques which are under control of the Government shall not be governed by this order.
But if their imams are not paid any remuneration and they have no independent income.
The Government may fix their emoluments on the basis as the Central Wakf Board may do for other mosques in pursuance of our order.
(iii) For other mosques, except those which are nonregistered with the Board of their respective States or which are not manned by members of Islamic faith the scheme shall provide for payment of remuneration to such Imams taking guidance from the scale of pay prevalent in the State of Punjab and Haryana.
(iv) The State Board shall ascertain income of each mosque the number and nature of Imams required by it namely full time or part time.
(v) For the full time Punjab Wakf Board may be treated as a guideline.
That shall also furnish guideline for payment to part time imam, (vi) In all those mosques where full time Imams are working they shall be paid the remuneration determined in pursuance of this order.
(vii) Part time and honorary Imam shall be paid such remuneration and allowance as is determined under the scheme.
(viii) The scheme shall also take into account those mosques which are small or are in the rural area or are such as mentioned in the affidavit of Pondichery Board and have no source of income and find out ways and means to raise its income.
(ix) The exercise should be completed and the scheme be enforced within six months.
(x) Our order for payment to Imams shall come into operation from 1st Dec., 750 1993.
In case the scheme it not prepared within the time allowed then it shall operate retrospectively from 1st December, 1993.
(xi) The scheme framed by the Central Wakf Board shall be implemented by every State Board.
The Writ Petition is decided accordingly.
Parties shall bear their own costs.
U.R. Petition allowed.

summary:
A petition was filed in this court by Imams for enforcing their fundamental right against exploitation by Wakf Boards.
Their claim was based on the glaring disparity between the nature of work and the amount of remuneration.
The petitioners sought a direction to the Central and State Wakf Boards to pay them basic wages.
A higher pay scale was claimed for degree holders.
The Union of India and various State Wakf Boards disputed the manner of their appointment, their right to receive any payment, and absence of any relationship of master and servant.
It was variously contended that they were appointed by Mutwallis, or in some cases by the people of the locality where the mosques were situated, and not by the Wakf Boards; that under Islamic religious practice it is voluntary service and there is no entitlement to emoluments; that a certificate from a registered institution is not a necessary requirement for leading in prayer.
It was further contended that the Wakf Boards faced financial difficulties.
The Punjab Wakf Board stated that Imams of mosques in Punjab, Haryana and Himachal Pradesh were paid on the basis of their qualification.
A pay scale was indicated, and the Imams were paid regularly and treated as regular employees.
Allowing the petition, this Court, HELD:(1) By Section 15 of the , the Wakf Board is vested not only with supervisory and administrative powers over the Wakfs but even the financial power vests in it.
One of the primary duties is to ensure that the income from the Wakf is spent on carrying out the purposes for which the 743 Wakf was created.
Mosques are Wakfs and are required to be registered under the Act, over which the Board exercises control.
Purpose of their creation is community worship.
The principal functionary to undertake it is the Imam.
It is the responsibility of the Wakf Board to ensure proper maintenance of religious service in a mosque.
To say, therefore, that the Board has no control over the mosque or Imam is not correct.
(747 G H, 748A) (2) In a series of decisions rendered by this Court it has been held that right to life enshrined in Article 21 means right to live with human dignity.
It is too late in the day to urge that since Imams perform religious duties, they are not entitled to emoluments.
(748 E) (3) Financial difficulties of the institution cannot be above fundamental right of a citizen.
If the Boards have been entrusted with the responsibility of supervising and administering the Wakf then, it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in a mosque, the very purpose for which it is created.
(748 H) (4) The Union of India and the Central Wakf Board are to prepare a scheme within a period of six months in respect of different types of mosques: (7497 H) The scheme shall take guidance from the scale of pay prevalent in the State Punjab and Haryana.
(749 D) Mosques under control of the government will not he governed by this order except if their Imams are not paid any remuneration and have no independent means of income.
The Government may then fix their emoluments on the basis as the Central Wakf Board may do for other mosques.
(749 C) The State Boards shall ascertain the income of each mosque and the number and nature of Imams required full time or part time and their payment is directed.
(749 E) The scheme shall take account of mosques which are small, or in the rural area, or which have no source of income and find 744 ways to raise income.
(749 G) The order for payment to Imams shall come into operation from 1 December 1993.
Every State Board shall implement the scheme.
(749 H, 750 A)


judgement:
Jurisprudentee the Assistants having been promoted to the Grade of Superintendents Grade 11 after those already working as Superintendents Grade 11 would naturally rank junior to them.
There is no rule of seniority vis a vis for promotes to Superintendent Grade 11 with effect from 1st August, 1981 for calculating seniority and normal rule of service Jurisprudence of length of service will apply.
(718 D) & CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
4604 to 4609 of 1992.
From the Judgment and Order dated 22.8.
1989 of the Central Administrative Tribunal, Madras in OA.
No. 145 to 150/87.
A.S. Nambiar, P.K. Manohar and Shanti Vasudevan for the Appellant.
R. Venkataramni, V.G. Praoasani and S.M. Garg for the Respondents.
The Judgment of the Court was delivered by 714 YOGESHWAR DAYAL,J.
These six appeals have been filed against the decision of the Central Administrative Tribunal, Madras Bench, dated 22nd August, 1989 while disposing of Original Application Nos.
145 to 150 of 1987.
Those were filed in seriatem by B. Jayaraman; A. Kanakasena Rao; M. Venkatachalam; A. Sherfudeen; K. Viswanathan and P. Madhavan Adiyodi.
The respondents in all these six matters before the Tribunal were the same namely, respondent No. 1 was Union of India whereas respondent Nos. 2 to 13 were the erstwhile Secretarial Assistants promoted as Superintendents Grade 11 and further promoted as Superintendents Grade I in the Secretariat of the Government of Pondicherry and governed by the Government of Pondicherry (Group 'C ' Non Gazetted Ministerial Posts) Recruitment Rules, 1981 (hereinafter referred to as 'the Rules ').
The petitioners before the Tribunal had challenged the promotion of respondents 2 to 13 therein who were promoted from Secretarial Assistants to Superintendents Grade II and further promoted as Superintendents Grade I before them inspite of the fact that the petitioners had already been working as Superintendents Grade II prior to the promotion of the erstwhile Assistants as Superintendents Grade II.
The promotion of respondents before the Tribunal was alleged to be based on tentative seniority list wherein respondent No. 1 had included the feeder service rendered by the Assistants between 1. 1. 1973 and 31.7.1981 for computing the seniority in the grade of Superintendent Grade 11.
The plea of the petitioners before the Tribunal was that from 1.8.1981 respondents 2 to 13 who were Assistants and were in a distinctly lower scale of pay as compared to the applicants, they could not be promoted to the post of Superintendent Grade I before the petitioners.
The Tribunal allowed the applications, O.A. Nos.
145 to 150 of 1987 and held : "It appears to us that there has been some confusion between a liberal provision which has been deliberately made for conferring eligibility for consideration for promotion to the next higher post with reckoning of the period of service rendered in the post of Assistant for the purpose of counting seniority in the post of Superintendent, Grade II.
The tentative seniority lists based on which promotions of respondents 2 to 13 have been made as Superintendents.
Grade I are based on the application of an erroneous principle of determining seniority which is not backed up any statutory provision.
That has led to a situation where persons promoted to a higher grade of Superintendent Grade 11 before the Assistants and in which posts they were also confirmed, being 715 placed below respondents 2 onwards.
" The Tribunal accordingly set aside the promotions of respondents 2 to 13 before it contained in various orders of the Government of Pondichery dated 7.8.1986; 20.8.1986; 1.9. 1986 and 17.11.1986.
Respondent No. 1 was further directed to prepare the seniority list in the grade of Superintendent Grade II on the basis of the length of service rendered in that grade and thereafter, all the eligible persons may be considered for promotion to the post of Superintendent Grade I and that should include persons like respondents 2 to 13 before it who would Get the benefit of service rendered by them as Assistant between 1. ].
1973 to 31.11.1981 for determining the period of eligibility and not for the purpose of seniority in the cadre of Superintendent Grade 11.
Aggrieved by the order of the Tribunal the Union of India had preferred the present appeals.
It appears the petitioners before the Tribunal were aggrieved by the grant of benefit of service rendered during the period 1. 1. 1973 to 31.7.
1981 by those who were working in the grade of Assistants towards their seniority in the grade of Superintendent Grade 11.
For appreciating the submissions of the learned counsel for the respective parties were may give a statement showing the dates of appointments in various grades and ranking assigned in respect of the petitioners and respondents 2 to 13 in O.A. Nos.
145 to 150 of 1987 before the Tribunal Name of Date of Appointment Seniority in the Asstt.
Supdt.(NS) Supdt.
Supdt.
Supdt.
Supdt.
official Gr.
II Gr.
I GR.IIGr.
I (Applicant in O.A. 145/87) A. Kanakasena 10.12.73 1.8.8.1.
17.11.86 113197 Rao (Applicant in O.A. 146/87) M. Venkatachal 2.8.73 1.8.81 13.10.86 103188 716 am (Applicant in O.A. 147/87) A.
Sherfudeen 30.8.78 1.8.81 7.9.87 140Not (Applicant in Assigned O.A. 148/87) K. Vishwanathan 7.4.77 1.8.81 20.3.87126207 (Applicant in O.A. 149/87) P.Madhavan 10.2.76 1.8.81 17.12.86 119 201 Adiyodi(Appli cant in O.A. 150/87) (R.2)appointed K.C. Kumaran 8.112.64 do 14.5.82 7.8.86184176 (R.3) G.Ranganathan 11.3.65 do 13.1.82 7.8.86186177 (R.4) S.Pushparaj 25.5.65 do 13.1.82 7.8.86187178 (R.5) K.meenakshi 9.5.67 do 9.7.83 7.8.86208179 (R.6) G.Radha 19.5.67 do 12.1.827.8.86188180 Krishnan (R.7) S.Sethuraman 23.11.68 do 12.1.82 20.8.86190183 (R.8) section Felixraj 7.4.69 do 12.1.8222.8.86191184 (R.9) S.Kuppusamy 14.4.69 do 12.1.82 1.9.86 193185 (R. 10) R.Chandra 29.1.70 do 22.8.83 1.9.86212186 sekaran(R. 11) J.Pandurangan 9.3.74 Not 21.6.82 17.11.86 195198 (R. 12)appointed S.Sundarasan Nov. 1964 do 30.9.86 17.11.86 183175 The scales of pay for various period for the posts of Assistant, Superintendent Grade 11 and Superintendent Grade I may also be noticed : NAME OF THE POSTS SCALE OF PAY Pre revised Revised Revised On & from 717 (prior to (w.e.f. 1.8.1981 1973) 1.1.73) Assistant 210 425 425 700 425 700 Superintendent 325 475 550 750 Grade II (who have 550 750 (Supdt.
(N.S.) passed Hr.
Accounts Test).
270 435 425 700 (for others) (for others) Superintendent 350 550 550 900 550 900 Grade I It may be noticed that most of the respondents before the Tribunal were working in the grade of 425 700 when they were promoted to the post of Superintendent Grade II in the pay scale of 550 750.
It is thus clear that on general principles of service jurisprudence the Assistants having been promoted to the grade of Superintendent Grade II after those already working Superintendent Grade 11 would naturally rank junior to them.
The confusion in the Government appears to have been created in view of note and the provision occurring in Schedule VII of the Rules relating to the recruitment to the post of Superintendent Grade 1.
In column 11 thereof the recruitment is provided by 'Promotion ' from among the Superintendent Grade 11 who have completed five years of service in the said post.
There is a note and the proviso to the following effect in column 11 "Note For computing the five years service, the service rendered in the post of Superintendent (Non Secretariat) and the service rendered after 1st January 1973 and upto 3 1st July 1981 in the post of Assistant shall be taken into account Provided that the Superintendents (Non Secretariat) in service as on 31st December 1972 Shall enbloc be Seniors to Assistants in service on that date and the Superintendents (Non Secretariat) and Assistants appointed on or after 1st January 1973 and upto 3 1st July 1981 shall rank inter se with reference to their dates of appointment in the respective posts.
" It is clear that the note merely allows the erstwhile Assistants, who were 718 promoted to the post of Superintendent Grade 11, for purposes of counting the period of five years service as Superintendent Grade 11, to include their service rendered as Assistants after 1. 1.
1973 to 3 1.7.198 1.
This note is for no purpose other than for giving them eligibility for consideration for promotion from the cadre of Superintendent Grade II to the cadre of Superintendent Grade I.
The proviso again is very clear when it says that Superintendents (Non Secretariat) in service as on 31st December, 1972 shall enbloc be seniors to Assistants in service on that date and the Superintendents (Non Secretariat) and Assistants appointed on or after 1st January, 1973 and upto 3 1 St July, 1981 shall rank inter se with reference to the dates of appointment in their respective posts.
All the Superintendents in Grade II who were appointed after 3 1st July, 1981 would naturally rank in the seniority on the basis of respective dates of appointment as Superintendent Grade II.
We are thus in complete agreement with the `reasonings and conclusion of the Tribunal and it is declared that the note in column 11 is only for purposes of giving eligibility to the erstwhile Assistants working as Superintendents Grade II for purposes of being considered for promotion to the post of Superintendent Grade I and not for the purpose of seniority at all.
There is no rule of seniority viz a viz for promotes to Superintendent Grade II with effect from 1st August, 1981 for calculating seniority and normal rule of service jurisprudence of length of service will apply.
With these observations the appeals fail and are dismissed with no order as to costs.
G.S. Appeal dismissed.

summary:
The petitioners before the Central Administrative Tribunal had been working as Superintendents Grade 11 in the Secretariat of the Government of Pondicherry prior to the promotion of respondents Nos. 2.
to 13 (before the Tribunal), the erstwhile Secretariat Assistants as Superintendents Grade 11.
Respondent Nos 2 to 13 were further promoted as Superintendents Grade I before the petitioners on the basis of tentative Seniority list wherein the feeder service rendered by the Assistants between 1.1.
1973 and 31.7.1981 had been included for computing the seniority in the Grade of Superintendent Grade II.
The petitioners before the Tribunal aggrieved by the grant of benefit of service rendered during the period 1.1.
1973 to 31.7.1981 by those who were working in the grade of Assistants towards their seniority in the grade of Superintendent Grade 11 challenged the promotion of respondent Nos 2 to 13 there in who were promoted from Secretarial Assistants to Superintendents Grade II and further promoted as Superintendents Grade I before them inspite of the fact that the petitioners had already been working as Superintendents Grade 11 prior to the promotion of the erstwhile Assistant as Superintendents Grade II.
It was contended by the petitioners before the Tribunal that from 1.8.1981 respondents Nos. 2 to 13 who were Assistants and were in a distinctly 713 lower scale of pay as compared to them could not be promoted to the post of Superintendents Grade I before the petitioners.
The Tribunal allowed the applications and set aside the promotions of respondents No. 2 to 13 before it.
Aggrieved by the order of the Tribunal the Union of India had preferred the present appeals.
Agreeing with the reasonings and conclusions of the Tribunal HELD:The note in Column 11 is only for purposes of giving eligibility to the erstwhile Assistants working as Superintendents Grade 11 for purposes of being considered for promotion to the post of Superintendent Grade I and not for the purpose of seniority at all.
The note merely allows the erstwhile Assistants, who were promoted to the post of Superintendent Grade 11 to include their service rendered as Assistants after 1.1.
1973 to 31.7.
1981 for purposes of counting the period of five years service as Superintendent Grade 11.
This note is for no purpose other than for giving them eligibility for consideration for promotion from the cadre of superintendent Grade 11 to the cadre of Superintendent Grade 1.
(718 A)


judgement:
minal Appeal No. 830 of 1985.
From the Judgment and Order dated 30.7.85 of the Allahabad High Court in Crl.
Revision No. 1937 of 1983.
M.S. Gujral, A.K. Srivastava and Serva Mitter for the Appellant.
R.C. Verma and A.S. Pundit.for the Respondent.
The appellant, was convicted under Sections 120 B, 419, 420, 468, and 471 of the Penal Code.
lie was sentenced to undergo rigorous imprisonments for different periods under the aforesaid Sections.
The appeal filed on behalf of the appellant was dismissed by the learned additional Sessions Judge, Ghaziabad.
The High Court, on revision application being filed on behalf of the appellant set aside his conviction under Section 120 B, but the conviction and sentence under other Sections mentioned above passed by the trial Court were affirmed.
According to the prosecution case, the appellant, established a firm by the name of Seemak Industrial Corporation at Ghaziabad.
The account in the bank was opened in the name of one Vijai Kumar and the aforesaid Industrial Corporation was registered in the Sales Tax Department.
The appellant applied for loan before the U.P. Small Industries Corporation and got a sum of Rs. 39,352.50, in the name of Seemak Industrial Corporation.
Later it was discovered that the aforesaid Seemak Industrial Corporation, was a fake concern and the appellant had cheated, even the U.P. Small Industries Corporation, in respect of the amount advanced by them.
The Trial Court, the Appellate Court as well as the High Court have gone into details of the materials on record for purpose of holding, that the charges framed against the appellant had been established and as such there was no occasion to interfere with the conviction and sentence passed against him.
So far the present appeal is concerned, leave was granted as early as in the year 1985 by this Court, but it has been listed for hearing after about 8 years.
The learned Counsel.
appearing for the appellant, after some arguments on merit confined his submissions to the question of sentence only.
lie pointed out that offences aforesaid had been committed by the appellant, as early as in the year 1973, more than 20 years from now and as such a compassionate view should be taken of the whole matter especially when the amount in respect of which the offences are alleged to have been committed is not excessive.
He pointed out that the appellant has remained in jail for some time, in pursuance of the order of conviction and sentence and as such he need not be sent to jail again.
An affidavit detailing the mitigating circumstances has also been filed by the appellant before us.
Taking all facts and circumstances into consideration, by our order dated 26th April, 1993 we directed the appellant to first deposit an amount of Rs. 40,000 (the loan amount) with the U.P. Small Industries Corporation Ltd. Pursuant to that order Rs. 40.000 has been deposited with the U.P. Small Industries Corporation Ltd., on 4 5 1993 and original receipt granted by the Manager of the said Corporation was produced before us.
The zerox copy, of the said original receipt has been kept on record and the original returned to the learned counsel for the appellant.
An affidavit has also been filed on behalf 'of the appellant stating about 902 the aforesaid deposit.
In the peculiar facts and circumstances of the case while maintaining the conviction of the appellant, we reduce the sentence of imprisonment under different Sections mentioned above to the period already undergone by him.
The appellant, shall however pay a fine of Rs. 2,000 and in default of payment thereof, he shall undergo rigorous imprisonment for a period of one month.
The appeal is allowed in part.
The deposit of Rs. 40,000 made by the appellant with the U.P. Small Industries Corporation Ltd., shall be adjusted towards the amount advanced by the said Corporation to the appellant.
The Corporation shall of course be at liberty to take steps for realisation of any further sum.
which may be due.
against the appellant.
U.R. Appeal partly allowed.

summary:
The appellant was charged with cheating the U.P. Industrial Corporation of Rs. 39,352.50 by registering a take concern, and taking in its name.
Three courts concurrently found the charges against him established.
On the question of sentence, it was contended that more than 20 % cars had elapsed; the amount involved was not excessive and other mitigating circumstances were placed (in the record.
Partly allowing the appeal, this Court HELD:1.
The appellant had deposited Rs. 40,000/ (the loan amount) as directed.
(901 G) 2.
In the peculiar facts and circumstances of the case, conviction maintained but sentence of imprisonment reduced to the period already undergone, and a fine of Rs. 2,000/ , or one month R.I. in lieu thereof.
(902 B)


judgement:
Appeal No. 2909 of 1993.
From the Judgment and Order dated 5.4.1990 of the Patna High Court in C.W.J.C. No. 1465 of 1989 (R).
S.B. Upadhyay for the Appellant.
Uday Sinha, S.K. Verma and Ranjit Kumar for the Respondents.
The following Order of the Court was delivered: Special leave granted.
The controversy in the present case is whether the appellant was qualified to appear for the M.D. (General Medicine) Examination as a teacher candidates The High Court by the impugned order has taken the view that he was not, on the around that he had not completed 3 years training period including one year of the house job, prior to qualifying himself for appearing for the examination.
912 The respondents, P.G. Medical Students Association had challenged the permission given to the appellant to appear for the said examination on two rounds.
The first ground was that he was not a teacher and the second ground was that he had not undergone the necessary training for 2 years and had also not done housemanship in General Medicine for one year.
The requirement of the relevant regulation is that the candidate must have done one year 's housemanship prior to the admission to the Post graduate degree in the same subject in which he wants to appear for the examination or at least six months housemanship in the same Department and the remaining six months in the allied Department.
The period of training thus, shall be 3 years after full registration including one year of the housejob.
The appellant claimed that he was teacher in the Department of Biochemistry in the Rajendra Medical College (R.M.C.) and filed an application for his registration as a student in M.D.
The University forwarded the application to the then Principal of Rajendra Medical College cum Dean, Faculty of Medicine, Dr. C.J.K. Singh.
He objected to his registration on the ground that the appellant was not posted in any of the teaching posts in medical college.
The then Head of the Department of Medicine, Dr. section Sinha also wrote to Dr. C.J.K. Singh that the appellant though attached to the Department of Medicine, was a Bio chemist attached to the Renal Unit and dealt entirely with the subject of Biochemistry.
The appellant filed a writ petition being C.W.J.C. No. 755 of 1988 praying for appropriate direction to the University to permit him to submit his thesis in M.D. (Medicine) examination.
The University contested his claim that he was a teacher and took the stand that since he was not a teacher, he was not eligible for training in M.D. (General Medicine).
For this purpose, the University relied upon the.
letters of Dr. C.J.K. Singh and Dr. section Sinha.
The Court dismissed the said petition on 23rd May, 1988 without deciding the issue as to whether the appellant held a teaching post but recorded a finding that the appellant was not entitled for admission to the examination in M.D. as he had not submitted his thesis and had also failed to produce a certificate of having undergone satisfactory training.
The High Court also held that the acceptance of the thesis was a pre requisite for appearing at the examination.
However, thereafter the present petition was filed by the respondent Association when the appellant was granted permission to appear for the said examination being satisfied that the post which he was holding was a teaching post as pointed out by the State Government.
In this petition, the University supported the appellant by asserting that the, appellant was appointed against a teaching post 913 in the Department of Medicine.
The High Court has again not decided the point whether the appellant was appointed against a teaching post in the Department of Medicine.
For not deciding the point, the High Court has given an additional reason, viz., that many persons who were in fact appointed as teachers would be prejudicially affected since they would become junior to the appellant and they were not before the Court.
For the purposes of the disposal of the writ petition, the High Court presumed that the appellant was teacher in the Department of Medicine in the Rajendra Medical College.
The Court has, however, made it clear that this presumption would be confined to the present case only and the appellant would not be entitled to claim any benefit on the basis of the said presumption.
The High Court has, however, allowed the respondents ' petition only on the grounds that the appellant had not undergone training for 3 years prior to his application to appear for the said examination.
In order to come to the said conclusion, the High Court relied on the fact that although the petitioner was registered with Dr. S.S. Prasad as a trainee on 6th February, 1986, he had not undergone training with him and it was only from 4th February; 1988 onwards that he had undergone the training with another Supervisor, viz., Dr. P.R. Prasad.
Hence, on the date he made the application for appearing in the examination, he had not completed the required 3 years ' training period.
In support of its finding that the appellant had not completed 2 years ' training with Dr. S.s.
Prasad, the former Supervisor, the High Court has relied upon two facts.
The first is that Dr. S.S. Prasad had written to the University that appellant had undergone no training under him.
The second circumstance relied upon is that the second Supervisor, viz., Dr. P.R. Prasad was not appointed as appellant 's Supervisor as per the suggestion of the Dean of the Faculty of Medicine since respondent No. 7 to the petition who had recommended Dr. P.R. Prasad was not the Dean of the Faculty of Medicine at the time of the recommendation.
Hence, according to the High Court even the training of the appellant under Dr. P.R. Prasad was not a valid training The record shows that admittedly the appellant was registered as a trainee under the former Supervisor, Dr. S.S. Prasad on 6th February, 1986 and he continued to be the trainee under him till 4th February, 1988 on which date he was changed as a Supervisor at the request of the appellant.
In his place Dr. P.R. Prasad was appointed as the appellant 's Supervisor on 17th December, 1988.
The appellant, thereafter continued to be the trainee under Dr. P.R. Prasad from 19th December, 1988 to 3rd August, 1989.
Thus the petitioner was registered for M.D. (General Medicine) examination of the University on 6th February, 1986 and by the 3rd August, 1989 when he was due to appear for the examination he had completed 3 years ' training under the two Supervisors.
914 Coming to the respondent Association 's contention that the earlier Supervisor, Dr. S.S. Prasad had denied that the appellant had received any training under him, the University has stated that for the purpose of training, the Supervisor has nothing more to do than guide the candidate for writing thesis.
But more than that, the letter written by Dr. P.V.P. Sinha, the Principal of RMC and Dean, Faculty of Medicines of the Ranchi University to the Registrar of the Ranchi University on 4th July, 1989 speaks volumes on the attitude adopted by Dr. S.S. Prasad towards the appellant.
This letter is Annexure 11 to the rejoinder of the appellant.
The letter makes a complaint that Dr. S.S. Prasad by bypassing the office of the Principal, RMC had addressed directly to the Registrar of the University two letters on 4th May and 3 1st May, 1989.
The Principal then states that he examined the original letter meaning thereby the letter dated 4th May, 1989 and the connected matter and found that Dr. S.S. Prasad had been telling lie to the University and trying to mislead and that is why he had sent the letter directly to the University.
Dr. Prasad had written another letter to the University on 16th May, 1988 regarding the appellant and in that letter he had written that the appellant had been prevented from doing research work connected with his thesis.
The Principal then proceeds to write that when he asked Dr. Prasad in writing vide his letter dated 21st June, 1989 to give him the letter of the Principal or the Dean or the University which had authorised him to prevent the appellant from doing his research work, Dr. Prasad failed to produce any letter.
Thus according to the Principal it became very clear that Dr. Prasad had written the letter dated 16.5.1988 directly to the University to harm the appellant 's career.
The Principal then proceeds to write to University that he would like to bring to the attention of the University that Dr.
Prasad had signed the thesis and certificate of another doctor, viz., Dr. Ashok Kumar Singh on 16.10.1984 when that doctor was registered as an M.D. student in General Medicine only on 26.7.1984 and when Dr. Prasad was not his guide.
It was Dr. R.C.N. Sahai who named the guide for the said Dr. Ashok Kumar Singh.
The Principal then writes that from the perusal of the records as well as from the reply to the explanation sought by him from Dr. Prasad, it had become clear that Dr. Prasad was not made the guide of Dr. Ashok Kumar Singh either by the University or by the Dean or by the Principal and yet he had signed the thesis of Dr. Ashok Kumar Singh barely after 3 months and 11 days of his registration.
The Principal then points out in that letter that a comparison of the two events made it apparent that Dr. Prasad had favoured Dr. Ashok Kumar Singh by violating all the norms statutes of the University and of the Medical Council of India and that even after the University had appointed Dr. P.R. Prasad as the guide of the appellant, Dr. S.S. Prasad was bent upon harming the career of the appellant.
The Principal then adds that there was no record in his office to show that the appellant was ever suspended by the University for doing his M.D. General Medicine.
He had asked Dr. S.S. Prasad to produce any notification of the University regarding the alleged 915 suspension and Dr. S.S. Prasad had failed to do so.
He then concludes the letter by stating that he would, in the circumstances, recommend the University to consider the desirability of removing Dr. S.S. Prasad from all examination work of the Ranchi University.
It is thus apparent that Dr. S.S. Prasad, the former Supervisor of the appellant had become hostile to him and was apparently not cooperating with him in his thesis.
Yet the appellant had proceeded to write a thesis and when it became unbearable, he requested for the change of his Supervisor on 4th February, 1988 pursuant to which the new Supervisor, Dr. P.R. Prasad was appointed on 17th December, 1988.
However, till the new Supervisor was appointed on 17th December, 1988, he continued to be registered with Dr. S.S. Prasad and there is no dispute that under the new Supervisor, viz., Dr. P.R. Prasad he completed his training from 17th December, 1988 to 4th August, 1989.
There is further no dispute that the appellant submitted his thesis prior to the examination.
As regard the qualification of the 7th respondent to make the appointment of Dr. P.R. Prasad as the guide, although the record before us does not show as to who the 7th respondent was, we take it that it is the then Principal, Dr. P.V.P. Sinha who was probably added later as the 7th respondent to the writ petition to whom the High Court has referred to in its judgment.
It is asserted from the Bar on behalf of the appellant that Dr. P.V.P. Sin ha was both the Principal and the Dean of the Faculty of Medicine of the University from a date much prior to 17th December, 1988.
That statement is not controverted nor does the counter filed by the 1st Respondent make any such point.
If that is so, then on the date that Dr. P.R. Prasad was appointed as a Supervisor he was so appointed by a duly qualified person.
Since the High Court has not one into the question as to whether the appellant was appointed against a teaching post and has proceeded on the footing that he was so appointed.
it is not necessary for us to go into the said question.
The appellant was thus fully qualified for appearing in the said examination and in fact on account of the interim orders passed by the High Court he has appeared for the examination.
The High Court has, however, by the impugned decision restrained the University from declaring his results in the examination.
The facts narrated above would reveal that this was a dispute relating to an individual and turned on the facts.
There was no question of law involved in it.
We have, therefore, not understood how the respondent Association could convert an individual dispute into a public interest litigation.
We are of the view that cases where what is strictly an individual dispute is sought to be converted into a public interest litigation should not be encouraged.
The present proceeding is one of the 916 kind.
The learned counsel appearing, for the respondent State wanted to support the respondent Association.
We did not think it necessary to hear the State since the dispute was essentially with regard to the interpretation of the facts relating to the training of an individual medical officer, viz., the appellant.
The University had on the facts of the case accepted the contention of the appellant that he had completed 3 years ' training.
We have not been able to understand as to what stake the State has in denying the said factual position.
It must be remembered in this connection that the State Government itself by its letter of 17th September, 1984 written to the Principal, RMC and had asserted that the post which the appellant was holding, viz., that of Bio chemist in the Artificial Kidney Unit of RM College and Hospital, was a teaching post and that the appellant was posted to that post since 12th February, 1982.
The letter further proceeded to state that the Principal and the Head of the Department of Medicine of RM College and Hospital has also given written certificate that the appellant was posted on a teaching post and therefore his teaching experience would be counted with the Kidney Unit.
A request was, therefore, made in the letter that the appellant 's application for his registration as M.D. General Medicine candidate [Teacher] be forwarded to the University and further action in that regard be intimated to the Regional Additional Commissioner cum Principal Secretary.
There is no dispute further that according to the rules, 4 years teaching experience in the College and the Hospital [which is always combined with practice in the Hospital] is considered equivalent to one year 's house job experience.
It the face of these facts, it is difficult to understand the stand taken by the State Government in the present proceedings.
There is no doubt in our mind that some forces are at work to obstruct the appellant 's career on one ground or the other.
The State Government should not become a party to this came.
In the circumstances, we allow the appeal, set aside the decision of the High Court and hold that the appellant was qualified to appear for the M.D. (General Medicine) examination as a teacher candidate.
Hence, we direct the University to declare his results in M.D. (General Medicine) examination for which he has appeared, forthwith.
There will be no order as to costs.
VPR Appeal allowed.

summary:
The appellant was a teacher in the Department of Biochemistry of Rajendra Medical College.
He filed an application for his registration as a student in M.D.
The University forwarded the application to the Principal of Rajendra Medical College.
The Principal objected to appellant 's registration as he was not posted in any of the teaching posts in Rajendra Medical College.
Though the appellant was attached to the Department of Medicine, was a Biochemist attached to that Renal Unit dealing with the subject of Biochemistry.
The appellant filed a writ petition in the High Court for a direction tot he University to permit him to submit his thesis in M.D. (Medicine) examination on the ground that he was a teacher.
The University took the stand that the appellant was not a teacher and he was not eligible for training in M.D. (General Medicine).
The High Court dismissed the appellants writ petition and held that he was not entitled for admission to the examination in M.D. as he did not such it 910 his thesis and did not produce a certificate of having undergone satisfactory training.
The High Court did not decide on the question whether he held a teaching post or not.
The appellant was granted permission to appear for M.D. (Medicine) examination after the University was satisfied that the appellant was holding a teaching post The respondent Association filed a writ petition before the High Court challenging the permission given to the appellant to appear for the said examination, contending that he was not a teacher and that he did not undergo the necessary training for 2 years and that he did not do housemanship in General Medicine for one year.
The High Court allowed the writ petition on the ground that the appellant did not undergo training for 3 years prior to his application to appear for M.D. (Medicine) examination.
In this writ petition also the High Court did not decide whether the appellant was holding a teaching post.
The appellant filed this appeal by special leave against the High Court 's judgment.
Allowing the appeal, this Court HELD : 1.1.
On account of the interim order passed by the High Court, the appellant appeared for the examination.
The High Court has, however, by the impugned decision restrained the University from declaring his results in the examination.
(915 G) 1.2.
Since the High Court has not gone into the question as whether the appellant was appointed against a teaching post and has proceeded on the footing that he was appointed, it is not necessary for this Court to go into the said question.
(915 F) 2.1.
The facts of the case would reveal that this was a dispute relating to an individual and turned on the facts.
There was no question of law involved in it.
It is not understood how the respondent Association could convert an individual dispute into a public interest litigation.
(915 H) 2.2 Cases where what is strictly an individual dispute is sought to be 911 converted into a public interest litigation should not be encouraged.
The present proceeding is one of the kind.
(915 H) 3.1.
The requirement of the relevant regulation is that the candidate must have done one year 's housemanship prior to the admission to the Postgraduate degree in the same subject in which he wants to appear for the examination or atleast six months housemanship in the same Department and the remaining six months in the allied Department.
The period of training thus, shall be 3 years after full registration including one year of the.
housejob.(912 B) 3.2.
According to the rules, 4 years, (teaching experience in the College and the Hospital (which is always combined.
with practice in the Hospital) is considered equivalent to one year 's house job experience.
In the face of these facts, it is difficult to understand the stand taken by the State Government in the present proceedings.
(916 D) 3. 3.
The University bad on the facts of the case accepted the contention of the appellant that he had completed 3 years ' training.
It is not understood as to what ' state the State has in denying the said factual position.
(916 B)