judgement:
ivil Appeal Nos. 415 and 962 of 1976.
(Appeals by Special Leave from the Judgment and Orders dated 2 3 1976 and 21 7 1976 of the Punjab & Haryana High Court in Civil Writ Petition Nos. 561 and 1961 of 1976 respectively).
S.T. Desai, Talat Ansari and Shri Narain for J.B. Dadac hanji, for the Appellants (in both appeals).
718 M.C. Bhandare and R.N. Sachthey, for the Respondents (in both appeals).
The Judgment of the Court was delivered by UNTWALIA, J.
In these two appeals by special leave a common question of law falls for our determination, hence, they have been heard together and are being disposed of by this judgment.
The Indian Aluminium Cables Ltd., appellant No. 1 in both the appeals has got its factory at Faridabad in the State of Haryana.
It sells and supplies aluminium cables to several State Electricity Undertakings or Boards situated in the various States.
In respect of the assessment year 1962 63, the Company raised a dispute that it was not liable to pay Central Sales Tax under the , as it claimed to be exempt from inter State tax on the sales of its products to the various State Undertakings or Boards by reason of the provisions contained in section 5 (2)(a)(iv) of the Punjab General Sales Tax Act, 1948 hereinafter referred to as the Act.
The Tribunal decided the matter in favour of the assessee Company but the High Court of Punjab and Haryana answered the Sales Tax Reference made at the instance of the Revenue against the assessee.
The decision of the High Court is reported in The State vs Indian Aluminium Cable Ltd., Faridabad(1).
The matter was brought to this Court in appeal and by a decision given on April 2, 1976 the view of the High Court was af firmed and it was held that the sales were not exempt from tax generally within the meaning of section 8(2A) of the Central Act read with section 5(2)(a)(iv) of the Punjab Act.
The decision of this Court is reported in Indian Aluminium Cables Ltd. and another vs State of Haryana(2).
The period of assessment concerning the appellant is each quarter of the year.
In respect of.all the 8 quarters of the years 1969 70 and.
1970 71, Returns were filed by the Company in time, i.e. on or before the last day of the month following the quarter concerned.
The Assessing Authority did not accept the Returns and issued notices on May 22, 1970 under section 11 (2) of the Act in respect of the 4 quarters of 1969 70 requiring the assessee Company to pro duce evidence in support of the Returns.
Since the ques tion of assessee 's liability to pay Central Sales Tax was pending in reference before the High Court the matter was not pursued by the Assessing Authority and as per the re quest of the asses.see it was kept pending.
Even though the High Court decision was given on November 5, 1973, the matter became subjudice in appeal filed in this Court.
It appears that the matter of assessment in respect of the year 1969 70 was taken up by the Assessing Authority again by issuance of a notice on September 15, 1975.
Thereupon, the Company filed Civil Writ Petition No. 561/1976 in the High Court on January 27, 1976 to quash the notice dated Septem ber 15, 1975 and to re.strain the State.
of Haryana and its Officer the Excise and Taxation Officer, Faridabad, from proceeding with the assessment.
It is said that in respect of the 4 quarters of the (2) 38 S.T.C. 108. 719 year 1970 71 notices under section 11(2) of the Act were issued for the first time by the assessing authority on January 30, 1976.
Thereupon, the Company filed in the High Court Civil Writ Petition No. 1961/1976 for reliefs simi lar to the ones asked for in the other writ petition.
According to the appellant, in the first writ petition were raised before the High Court the two main questions in the following terms: "(i) Whether the assessment proceedings with regard to assessment year 1969 70 could be proceed ed with and whether assessment order could be passed beyond a period of 5 years after the expiry of the period to which the assessment relates.
In other words, whether the Sales Tax Officer had jurisdiction to make assessment for the assessment year 1969 70 which had become time barred; (ii) Whether Central Sales Tax was payable in respect of sale of electric cables manufactured and sold by the petitioner Company to State Electricity Boards in view of the exemption granted generally under section 8(2A) of the read with section 5 (2) (a) (iv) of the Punjab General Sales Tax Act, 1948".
This writ petition was dismissed in limine by a Bench of the High Court stating "Reply has been filed.
The matter is covered in favour of the respondent by 33 STC 152.
Dismissed".
It appears by the time the second writ petition came to be filed the appellant 's liability to pay Central Sales Tax was decided by this Court in the case referred to above.
Therefore, in the second writ petition, in the main, the question raised was one of limitation as in the other writ petition.
Another Bench of the High Court dismissed this writ petition in limine on July 21, 1976.
In substance and in effect, in spite of the Full Bench decision (by the majority) of the High Court in the case of Rameshwar Lal Sarup Chand vs Shri U.S. Naurath, Excise & Taxation Officer, Assessing Authority, Amritsar and Another(1), on which Mr. S.T. Desai, learned counsel for the appellant heavily relied upon before us, neither Bench found any substance in the point of limitation raised by the Company and dismissed the two writ petitions in limine.
In our opinion the High Court was right, for the reasons to be stated hereinafter in this judgment, in not entertaining the point of limitation in spite of the full Bench decision aforesaid, as, the said decision in view of many pronouncements of this Court to be alluded to hereinafter is no longer good law.
In face of the decision of this Court in Indian Alumini um Cables Ltd. & Anr.
vs State of Haryana (supra) the ques tion of the appellant 's tax liability under the was not reagitated before (1) 15 S.T.C. 932.
720 US.
Learned counsel for the appellant, however, strenuously urged that the assessing authority could not assess the tax payable by the appellant on expiry of the period of 5 years from the end of each quarter.
The 4th quarter of the year 1969 70 expired on March 31, 1970 and the period of 5 years having expired on March 31, 1975 no assessment could be made thereafter.
In relation to the year 1970 71 even the notice for the first time was issued under section 11 (2) of the Act after the expiry of the period of 5 years in relation to the first three quarters, although it was within time apropos the last quarter.
The period of the last quar ter expired on March 31, 1971; but no assessment could be made, according to the appellant 's counsel, even in regard to the assessment year 1970 71 in respect of any quarter on the expiry of the 5 years ' period reckoning from the last date of the quarter.
Mr. M.C. Bhandare, learned counsel for the respondents submitted that although a time limit had been ' fixed in sub sections (4), (5) ,and (6) of section 11 of the Act, no time limit was fixed by the Legis lature for actions and orders to be taken and passed under sub ' sections ( 1 ), ( 2 ) and ( 3 ).
Counsel, therefore, urged that neither the issuance of any notice under section 11 (2) of the Act was beyond any period of time nor was the assessing authority under any disability of any period of limitation in passing the final order of assessment in respect of any of the quarters in question.
The alternative submission of Mr. Desai that in any view of the matter notice had to be issued under section 11 (2) and assessments had to be completed under section 11 (3) within a reasonable time was also refuted by Mr. Bhandare.
It is beyond any dispute and debate that under section 10 of the Act read along with the Rules framed thereunder, Return has to be filed by a dealer for each quarter by the last day of the following month of the quarter and admitted sales tax as per the Return has also got to 'be deposited and challan filed along with the Return.
It will be seen hereinafter from the authoritative pronouncements of this Court that the mere statutory liability of a dealer to file the Return or to pay the tax has not the effect of commence ment of any proceeding under the Act.
If a dealer does not file a Return being liable to pay tax, then action under sub section (5) or sub section (6), as the case may be, has to be taken by the Assessing Authority within the period of 5 years prescribed therein.
The expression "proceed to assess" in those two sub sections as also in sub section (4) means taking some effective step towards proceeding to make the best judgment assessment in accordance with the sub section which may be applicable.
In a given case action may be taken under section 11 A (1 ) of the Act treating the case as a case of escaped assessment within the meaning of said section.
But the assessing authority has got to.
pro ceed to assess or reassess within 5 years following the close of the year for which the turnover is proposed to be assessed or reassessed.
But in a case where the assessee has filed the Return the proceeding under the Act commences on the filing of the Return.
"If the Assessing Authority is satisfied without requiring the presence of dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns" as provided for in section 11 (1 ).
The assessment under sub section(1) can be made at any time even 721 according to the Full Bench decision of the Bombay High Court in Bisesar House vs State of Bombay and Others(1), followed in Rameshwar Lal Sarup Chand(3).
But the view of the Bombay High Court on a consideration of the similar provisions of the other State Statutes that a notice under sub section (2) must be issued within the period of limita tion mentioned in other sub sections of section 11 or sec tion 11 A no longer holds good.
A notice under sub section (2) requiring the dealer to produce evidence can be issued at any time after the filing of the Return.
The expectancy of taking steps without any undue delay and within a reasonable time is an expectancy of prudence.
But legally the action cannot be nullified merely on the ground of delay in the issuance of the notice under section 11 (2).
Sub section (3) of section 11 says : "On the day specified in the notice or as soon afterwards as may be, the Assessing Authority shall, after hearing such evidence as the dealer may produce, and such other evidence as the Assess ing Authority may require on specified points, assess the amount of tax due from the dealer".
On a correct interpretation of the provision afore said what emerges as follows : (i) That the Assessing Authority shall hear the evidence produced by the dealer on the day speci fied in the notice issued under sub section (2).
(ii) It can adjourn the hearing to some other day and hear the evidence produced by the dealer on the adjourned day or days.
(iii) The Assessing Authority may require the dealer to produce further evidence on specified points on the adjourned day or days.
(iv) The Assessing Authority should assess the amount of tax due from the dealer, that is to say, pass the order of assessment, on the day on which the.
hearing ,of the evidence is completed or "as soon afterwards as may be".
"the last phrase is absent in some of the similar statutes.
It, therefor may be open to argument whether the assessment order passed under section 11(3) of the Act after undue delay of the comple tion of the hearing of the evidence produced or required to be produced by the dealer is valid or not.
But we are not concerned with the said ques tion in this case as on the facts and in the cir cumstances appearing relation to the assessment proceedings of either of the two years to produc tion of evidence by the assessee could not and has not start as yet because of the filing of the writ petitions and the appeals in the Court.
It goes without saying that the assessing authority will be well advised to complete the assessment proceedings in question as soon as it may be possible to do so after the delivery of this judgment.
(1) 9 S.T.C. 654.
(2) 15 S.T.C, 932.
722 Sub section (4) of section 11 is attracted in a case where a dealer having furnished a Return in respect of a period fails to comply with the terms of a notice issued under sub section (2).
In such a case the Assessing Authority has to take some effective step, such as issuance of a notice to the assessee intimating to him that he is proceeding to assess to the best of his judgment the amount of tax due from the dealer.
On failure of a dealer to furnish a Return in respect of any period by the prescribed date the Assessing Authority after giving the dealer a reasonable opportunity of being heard can proceed to assess to the best of his judgment the amount of tax, if any, due from the dealer.
In such a case also an effective Step such as issuance of a notice to the dealer concerned showing that the Assessing.
Authority is proceeding to assess has got to be taken within 5 years of the expiry of the period concerned.
Sub section (6) is attracted in the case of a dealer who being liable to pay tax under the Act has failed to apply for registration.
Similar steps as the ones to be taken under subsection (5),are to be taken under sub section (6) within a period of 5 years after the expiry of the concerned period.
But the Legis lature advisedly did not fix any period of limita tion for taking up of the steps or the passing of the assessment order under any of the sub sections (1), (2) or (3).
The reason is obvious.
Best judgment assessments in the circumstances mentioned in any of the sub sections (4), (5) or (6) could not be allowed to be made after the expiry of a certain reasonable time which the Legislature thought was three years previously but made it five years by Punjab Act 28 of 1965.
But where a regis tered dealer has filed the Return the assessing authority can pass the assessment order under sub section (1 ) and accept the Return filed by the dealer as correct and complete.
In such a case the formality of passing an order of assessment is to be completed without any further demand of tax from the dealer.
For the issuance of a notice under subsection (2) no time limit has been fixed, but the assessing authority must remain on its guard of taking the steps and completing the assessment as soon as it may be possible to do so.
Other wise, the risk involved may just be pointed out.
Take a case where a notice under sub section (2) is issued after the expiry or just on the verge of expiry of the period of 5 years and the dealer fails to comply with the terms of the notice.
In such a case the assessing authority may have to proceed to make the best judgment assessment under sub section (4) attracting the bar of limitation of 5 years.
But, of course, there may be a case where in spite of the failure of the dealer to comply with the terms of a notice issued under sub section (2) the assessing authority may be in a position to complete the assessment under sub section (3), treating the alleged failure of the dealer as not a real failure on his part.
We now proceed to discuss some of the relevant decisions on the points at issue.
In Bisesar House case (supra), Chagla, C.J. delivering the judgment of a Full Bench of the Bombay High Court on a consideration of the similar provisions of section 11 of the C.P. and Berar Sales Tax Act, 1947 applied the ratio of his decision in Commissioner of Income tax, Bombay City vs Natsee Nagsee & Co.(1), to a case covered by (1) 723 section 11 (2) of the Sales Tax Act.
With respect to the learned Chief Justice we say that he was not right when he said at page 669: "Section 11 (2) is in the substantial sense an initiation of fresh proceedings by the Commission er.
It is open to the Commissioner to be satisfied with what the assessee has done and pass an order under section 11 (1).
But if he is not satisfied, then he initiates fresh proceedings under section 11(2) by issuing a notice.
That undoubtedly is putting the assessee to the peril of the apprehension that as a result of the notice his tax might be enhanced.
If the principle we have laid down in Narsee Nagsee 's case 31 I.T.R. 164 is correct, then that princi ple would undoubtedly apply to the issuing of a notice under section 11(2)".
As held by this Court in the case of Ghanshyamdas vs Regional Assistant Commissioner of Sales Tax, Nagpur & others(1), even the filing of a Return by a dealer is tantamount to initiation or commencement of a proceeding under the Sales Tax Act.
The decision of the Bombay High Court in Narsee Nagsee 's case Was affirmed by a Division Bench (by majority) of this Court in Commissioner of Income tax, Bombay City Iv.
Narsee Nagsee & Co. (2).
Subba Rao, J. as he then was, delivering the majority opinion of a Constitution Bench of this Court in Ghanshyam das 's case (supra) referring to the decision of the Privy Council in Rajendranath Mukherjee vs Income tax Commission er(1), said at page 983 of 14 S.T.C. "This decision is a clear authority for the position that if a return was duly made, the assessment could be made at any time unless the statute prescribed a time limit.
This can only be for the reason that the proceedings duly initiated in time will be pending and can, therefore, be completed without time limit".
At page 987 says the learned Judge: "It is manifest that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under section 10(3) or under section 11(2) of the Act".
As rightly point ed out by Shah, J. as he then was, at page 436, if we may say so with respect, in the case of Regional Assistant Commissioner of Sales Tax, Indore vs Malwa Vanaspati and Chemical Co. Ltd.(4), section 11 (2) is a typographical error in the sentence extracted above.
In disapproval of the view of the Full Bench expressed in Bisesar House case (supra) it was reiterated at page 989 in Ghanshyamdas 's case "AS we have held that the submission of a statutory return would initiate the proceedings and that the proceedings would be pending till a final order of assessment was made on the said return, no question of limitation would arise . . .
For the foregoing reason we hold that a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the Commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return".
(1) 14 S.T.C. 976 . (2) (3) (4) 21 S.T.C. 431.
724 In Narsee Nagsee 's case (supra) it has been pointed out by the majority of the Bench that a notice under section 11(1) of the Business Profits Tax Act, 1947 "must be given within the financial year which commences next after the expiry of the accounting period or the previous year which is by itself or includes the chargeable accounting period in question".
(vide page 317 of 40 I.T.R.).
It was also pointed out in that case that the words "profits escaping assessment" ' in section 14 of the Business Profits Tax Act applied equally to cases where notice had been given but had resulted in no assessment and to cases where due to inadvertence, oversight or any other reason no notice was given and therefore no assessment was made.
This Court in The State of Punjab & Others vs Tara Chand Lajpatt Rai(1), reversed the decision of the Punjab High Court in Civil Writ No. 1088/61 and following the decision of this Court in Ghanshyamdas 's case (supra) stated at page 501: "This decision is, therefore, a clear authority for the proposition that assessment proceedings commence in the case of a registered dealer either when he furnishes a return or when a notice is issued to him under section 11(2) of the present Act, and that if such proceedings are taken within the prescribed time though the assessment is fina lised subsequently, even after the expiry of the prescribed period, no question of limitation would arise".
In the case of Tarachand Lajpat Rai (supra) the dealer had filed the Returns after the expiry of 30 days from the relevant date but they were not rejected by the Department on that ground.
Notice under section 11 (2) of the Act was issued and that also was done before the expiry of period of 3 years ' as the period of limitation stood then in the other sub sections.
On the authority of Ghan shyamdas 's case it was held "the assessment pro ceedings commenced either when the respondent firm filed the returns or in any event from the date of the said notice.
Both the events, therefore, were within the prescribed time.
" The decision of the Full Bench of the Punjab High Court in the case of Rameshwar Lal Sarup Chand (supra) was merely distinguished on the ground that the question decided in Ghanshyamdas 's case did not come up for consideration in Rameshwar Lal 's case.
But we think it is high time that the decision of the Full Bench of the High Court in Rameshwar Lal 's case should be clearly and expressly over ruled now.
An identical view had been expressed by his Court reversing the decision of the Punjab High Court in Letters Patent Appeal No. 319/63 in the case of The State of Punjab and another vs Murlidhar Mahabir prasad(2).
The challenge before this Court in the case of Madhya Pradesh Industries Ltd. vs State of Maharashtra and Others(3), was whether sub section (3) of section 11A of the C.P. and Berar Sales Tax Act, 1947 was violative of Article 14 of the Constitution.
The argument was repelled and it was stated at page 402 by Hegde, J. (1) 19 S.T C:.
493 (2) 21 S.T.C. 29.
(3) 22 S.T.C. 400.
725 delevering the judgment on behalf of himself, Wanchoo, C.J. and Mitter,J.: "This Court in Ghanshyamdas 's case specifically overruled the decision of the Bombay High Court in Bisesar House case.
Therein this Court held that while s.11 (2) deals with pending proceedings, section 11A concerns itself with matters which are not pending.
This Court .further ruled that in the case of pending proceedings the Act has not pre scribed any period of limitation.
That decision proceeds on the basis that section 11 (2) and section 11A cover different fields and that they do not overlap".
Bachawat, J. speaking for himself and Ramaswami, J. went a step further and in their concurring judg ment stated at page 403: "There is no limitation for the issue of a notice under section 11 (2).
This follows from a plain, reading of section 11(2) independently of section 11A(3).
Neither section 11(2) nor sec tion 11A(3) is violative of Article 14.
A notice under section 11 (2) is issued in a pending pro ceeding, where as a notice under section 1 I A( 1 ) initiates a new proceeding.
There is a reasona ble basis for classification and differential treatment of the notices under sections 11(2) and 11A(1) for the purposes of limitation.
" The majority opinion of the Full Bench of the Punjab High Court was delivered by two judges in the case of Rameshwar lal Sarupchandra (Supra) Pandit J ave a dissenting opin ion.
It is wrong to say, as stated by the majority, that the expression "proceed to assess" and the word "assess" connote the same meaning.
The ratio of the majority opinion is chiefly based upon the decision of the Full Bench of the Bombay High Court in Bisesar House 's case which decision was not approved by this Court and must be deemed to have been overruled.
The majority we may also point out with respect, committed a mistake in appreciating the deci sion of this Court in the case of Madan Lal Arora vs The Excise and Taxation Officer ', Amritsar(1) Sarkar, J., as he then was, delivering the judgment on behalf of a Constitu tion Bench of this Court adverted to the facts of the case and stated that the registered dealer under the Punjab General Sales Tax Act had filed returns for the 4 quarters of the financial year ending on March 31, 1955 as also for the 4 quarters for the financial year ending on March 31, 1956.
In respect of each year the Sales Tax Assessing Officer served three successive notices on the dealer one on March 7, 1958, the other on April 4, 1958, and the third on August 18, 1959.
The first two notices were merely under section 11(2) of the Act.
But in the last notice which was issued after the expiry of 3 years it was stated that on the dealer 's failure to produce the docu ments and other evi dence mentioned in the notice, the case would be decided on best judgment assessment basis.
The dealer did not comply with any of the notices and challenged with success by a petition under Article 32 of the Constitution the right of the authorities to, make a best judgment assess ment.
In that connection it was (1) 12 S.T.C. 387 726 pointed out that the period of 3 years mentioned in sub section (4) of section 11 of the Act had to be counted from the expiry of the period in relation to which the returns had been filed and on expiry of the said period the author ities could not proceed to make the best judgment assess ment.
The third and the last notice given on August 18, 1959 was taken to be a notice to the dealer that the as sessing authority was proceeding to make the best judgment assessment and since this was done more than 3 years after expiry of all the 8 quarters ' in respect of the two years it was held to be without jurisdiction and the respondent was restrained from making any best judgment assessment on the petitioner for sales tax for any quarter of the financial years 1954 55 and 1955 56.
The decision of this Court in Madan Lal Arora 's(1) case justifies our apprehension which we have mentioned in the beginning of our judgment to the effect that if a dealer fails to comply with the notice issued under section 11 (2) of the Act, then in such a case, even though there may not be any time limit for issuance of a notice, but on the dealer 's failure to comply with it the assessing authority may be obliged to take recourse to sub section (4) attracting the bar of limitation of 5 years for proceeding to assess on the best judgment basis.
The majority, however, was wrong when they said at page 949 of 15 S.T.C. with reference to Madan Lal Arora 's case: "In the case before the Supreme Court, two notices were within three years and the third notice was beyond three years and their Lord ' ships held that the third notice beyond three years, the Assessing Authority had no jurisdiction to make the assessment.
If the phrase "proceed to assess" bears the meaning which the learned counsel for the State contends for, namely, that only a step towards assessment has to be taken and the assessment can be made at any time after the period of three years, their Lordships would on the basis of the two notices within the period of limitation, have come to a different conclusion and that is not what has been done.
" This was, it appears to us, clearly a mistaken reading of the judgment of this Court.
The majority in our opin ion, was also wrong in importing the period of limitation provided in sub sections (4), (5) and (6) of section 11 of the Act into sub section (3) and in holding, therefore, that an assessment under sub section (3) must also be completed within 3 years from the last date on which the return should be filed under the Act.
We are again constrained to point out that the majority of the Full Bench committed a mistake in thinking that, this Court had held in Madan Lal Arora 's case that the period of 3 years had to be counted from the last date on which the return should be filed.
The deci sion of the Full Bench of the Punjab High Court in the case of Ramashwar Lal 's case (supra) is clearly erroneous and must be over ruled.
Pandit, J. in his dissenting opinion had, by and large, taken a correct view in favour of the Revenue.
(1) 12 S.T.C. 387.
727 Lastly, we may also make a reference to a recent deci sion of this Court delivered by one of us (Untwalia, J.) in the case of Gurbaksh Singh vs Union of India & Others(1) An argument quite similar to the one advanced before us was advanced on behalf of the assessee appellant in that case before this Court.
It was argued that the period of 4 years of limitation prescribed under sub section (2a) of section 11 of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi, should be imported into the revisional and the appellate power of the authori ties conferred on them under section 20.
This argument was repelled and it was pointed out that .the legislature had not provided any period within which an order was to be made by an Appellate or Revisional authority; no such period should be imported in the exercise of the power on the basis of section 11 (2a).
Mr. Desai relied upon the penal timate paragraph of this decision in support of his conten tion that in any view of the matter notice under section 11 (2) had to be issued and the assessment completed within a reasonable time.
We do not accept this contention to be sound.
The argument as presented cannot be accepted to be correct.
In Gurbaksh Singh 's case it was not stated that the exercise of the revisional power suo moto could not be made after an undue long delay.
On such an assumption it was merely found as a fact that there was no undue delay in the suo moto exercise of the power.
In the result we do not find any merit in the appeals.
They are dismissed with costs.
Hearing fee one set only.
V.P.S. Appeals dismissed.

summary:
The appellant is an inter State dealer.
In respect of all the eight quarters of the years 1969 70 and 1970 71, the appellant filed returns in time.
In respect of the four quarters of 1969 70 the Assessing Authority did not accept the returns and issued notices under section 11(2) of the Punjab General Sales Tax Act, 1948, requiring the appellant to produce evidence in support of the returns.
Since the question of the appellant 's liability to pay central sales tax for an earlier assessment year (1962 63) was pending before the High Court, the matter was not pursued by the Assessing Authority and was kept pending.
After the High Court gave its decision against the appellant, and while the matter was pending appeal in this Court, the Assessing Authority took up the matter of assessment ' for the year 1969 70 by the issue of notice in September 1975.
The appellant thereupon filed writ petitions in the High Court to quash the proceedings.
In respect of the four quarters of the year 1970 71 notices under section 11(2) were issued by the Assessing Authority on January 30, 1976, and the appel lant filed writ petitions in the High Court for quashing those proceedings also.
All the ' writ petitions were dis missed by the High Court, In appeal to this Court, in view of the decision of this Court in appeal.
the appellant did not agitate the question of its tax liability under the Central Sales ' Tax Act.
but contended that, (i) the Assessing Authority could not assess the tax payable by the appellant on the expiry of the period of 5 years from the end of each quarter in relation to the year 1970 71 the same contention was raised even though notice under section 11(2) was within time apropos the last ' quarter; and (2) the notice under section 11(2) and assessment under section 11(3) had to be completed within a reasonable time.
Dismissing the appeals, HELD: (1) Under section 10 of the Act read along with Rules framed thereunder, the return has to be filed by a dealer for each quarter by the last day of the following month of the quarter and admitted sales tax as per the return has also got to be deposited.
Where a registered dealer has filed the return the Assessing Authority can accept the return as correct and pass the assessment order under section 11(1) If the Assessing Authority does not accept the return he may issue notice under section 11(2) asking the asses see to produce evidence in support of the return.
In such a. case the, Assessing Authority shall hear the evidence produced by the dealer on the day specified in the notice issued under sub section
(2), or adjourn the hearing to some other day and hear the evidence produced by the dealer on the adjourned day. or days.
or may require the dealer to produce further evidence on specified points on the ad journed day, or days.
The Assessing Authority should under section 11 (3), on the day on which the hearing of the evidence is completed or 'as soon afterwards as may be ', assess the amount of tax due from the dealer, that is, pass the order of assessment.
[720 E H] Section 11(4) is attracted in a case.
where a dealer having furnished a return fails to comply with the terms of a notice issued .under section 11 (2).
In such a case, the Assessing Authority has to take some effective steps, such as issuance of a notice to the assessee, within 5 years of the expiry of the period concerned, intimating to him that he is proceeding to assess the tax due from the dealer to the best of his judgment.
Under section 11(5), on failure of a dealer to furnish a return in respect of any period by the prescribed date the Assessing Authority, after giving the dealer a reasonable opportunity of being heard can, within 5 717 years after the expiry of the concerned period proceed to assess to the best of his judgment the amount of tax, if any, due from the dealer.
Sub section (6) is attracted in the case of a dealer who, being liable to pay tax under the Act, had failed to apply for registration.
Similar steps as the ones under sub section
(5) are to be taken under sub section
(6) within a period of 5 years after the expiry of the concerned period.
It is thus seen that for taking action under sub sections (4), (5) and (6) of section 11 a time limit of 5 years has been fixed by the legislature.
The reason is that best judgment assessments in the circumstances mentioned in any of the sub sections
(4), (5) oF (6) are fresh proceedings and could not be allowed to be taken after the expiry of a certain reasonable time which the legislature has fixed at 5 years.
But the legislature advisedly did not fix any period of time for taking steps or the passing of the assessment order under any of the sub sections
(1), (2) or (3).
Where a dealer files a return the proceeding under the Act commences and the issue of a notice under section 11(2) does not initiate any fresh proceedings.
A notice under section 11(2) requiring the dealer to produce evidence can therefore be issued at any time after the filing of the return.
because, when once a return is duly made, the assessment could be made at any time unless the statute prescribes a time limit.
The ex pectancy of taking steps without any undue delay and within a reasonable time is an expectancy of prudence, because, where a notice under sub section
(2) is issued when 5 years are about to expire and the dealer fails to comply with the terms of the notice the Assessing Authority may have to proceed to make the best judgment assessment under sub section
(4) and he may not be able to do so if the period of 5 years had expired by then.
[722 A G] Bisesar House vs State of Bombay & Others.
9 S.T.C. 654, and Rameshwar Lal Sarup Chand vs U.S. Nanrath Excise & Taxation Officer, Assessing Authority, Amritsar and Another 15 S.T.C. 932 overruled.
Ghanshyamdas vs Regional Assistant Commissioner of Sales Tax, Nagpur & Others 14 S.T.C. 976, The State of Panjab & Others vs Tara Chand Lajpat Rai 19 S.T.C. 493, The State of Punjab and another vs Murlidhar Mahabir Prasad 21 S.T.C. 29, Madhya Pradesh Industries Ltd. vs State of Maharashtra and Others 22 S.T.C. 400 and Madan Lal Arora vs The Excise and Taxation Officer, Amritsar 12 S.T.C. 387 followed.
(2) The case of Gurbux Singh vs Union of India is not an authority for the contention of the appel lant that the issue of the notice under section 11(2) and comple tion of assessment under section 11(3) should be within a reason able time.
In that case it was pointed out that since the legislature had not provided any period of limitation within which an order was to be made by an Appellate or Revisional Authority, the period of limitation prescribed in other sections could not be imported for the exercise of such power.
It was not stated in that case that the exercise of the revisional power suo moto could not be made even after an undue long delay.
It was merely found as a fact in that case that there was no undue delay in the exercise of the power.
[727 A D] [Obiter.
The phrase as soon afterwards as may be ' in section 11(3) may suggest that where assessment order under section 11(3) of the Act was passed after under delay after the completion of the hearing of the evidence produced 'by the dealer, the order of assessment may not be valid.
But that question does not arise in the present case.
because, the appellant has not yet produced any evidence].


judgement:
Appeal No. 511 of 1976.
(Appeal by Special Leave from the order dated 19 8 1975 of the First Labour Court Ahmedabad in Appln. 493/75).
R.P. Bhatt, D.K. Agarwal, K. K. Jain and Bishamber Lal, for the Appellant.
710 V. M. Tarkunde, K.L. Hathi, P.C. Kapur and Miss M. Tarkunde, for the Respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
A complaint was made to the Labour Court by the respondent, Mazdoor Mahajan Mandal, Baroda (briefly the union) alleging the lock out declared by the appellant to be illegal.
The appellant, Priya Laxmi Mills Ltd. (briefly the management) resisted the petition.
After examining the oral and documentary evidence the Labour Court came to the conclusion that the lock out was illegal under clauses (a) and (h) of sub section (1) of section 98 of the Bombay Industrial Relations Act, 1946 (briefly the Act).
A brief reference to the facts will be appropriate at this stage.
The present appellant purchased this textile mill from M/s. Sayaji Mills Ltd. in 1972 when it had about 2500 work men besides officers.
It is said that in 1974 the textile industry suffered adverse market conditions, accumulation of stocks, shortage of raw materials and bank credit squeeze in consequence of which the management started experiencing acute financial difficulties which were aggravated by a spate of litigation between the appellant and the previous owners.
The appellant somehow continued to pay the wages of the workmen upto February 1975 although in an irregular manner.
The mill works in three shifts.
By a notice of April 13, 1975, the management notified a lay off from the first shift of April 14, 1975, till further notice.
The lay off was in the departments of spinning, weaving, grey folding and engineering as per the lists containing the names of the workmen and the members of the staff connected therewith.
Other departments, however, were allowed to continue to work as usual.
It was mentioned in the notice.
of lay off that a workman, if eligible, shall be paid lay off compensation as provided under the law.
The permanent workmen of laid off departments who were eligible to get compensation under the law were required to present themselves in the respective departments at the start of their respective shifts and get themselves marked as "laid off".
Naturally, therefore, although, the workmen were laid off they had to attend the mill premises for being marked present at the time of the commencement of the shift in order to be able to claim lay off compensation.
In view of the mounting tension on account of irregular payment of wages for quite some time and the subsequent lay off, negotiations were also afoot between the management and the union without much headway.
According to the management the workmen refused to accept the decision of lay off and they continued to remain inside the mill premises even after getting their presence marked.
Some employees remained in the department while a large number of them collected outside the department and refused to go out of the mill premises.
It is said that the workmen started staging a 'dharna ' daily in the administra 711 tive office of the mills thereby disrupting its normal and smooth working.
This state of affairs continued from April 14, 1975, to April 21, 1975.
The workmen did not pay any head to the request of the management to leave the premises after they had been marked present.
In this background, on April 21, 1975, at about 4.00 P.M. a section of the workmen forcibly entered the Guest House No. 2, and trespassed into the living room of Shri L. Grover, Establishment Officer of the mills, dragged him out of the room and took him into the administrative office and kept him there under restraint and illegal confinement for about 24 hours.
The workmen also removed the personal belongings of Shri Grover.
They also gheraoed and kept under restraint and illegal confine ment the Deputy Executive Director, Shri V.K. Bagla, the Deputy Chief Executive (Works) Shri S.C. Gandhi and other senior officers in the mill premises with effect from 7.00 P.M. on April 21, 1975.
The officers were kept in illegal confinement without food and other basic amenities of life continuously for 21 hours.
It is said that the officers were abused and humiliated.
The workers also held out threats to their lives.
The management also referred to other alleged unruly and undisciplined behaviour of the workmen.
The officers were ultimately brought out with the help of the police authorities at about 4.00 P.M. on April 22, 1975.
The employees, however, continued 'dharna ' inside the mill premises on April 22 and the night between April 22 and April 23.
It is, thus, the management 's case that under the .circumstances mentioned above the company was compelled to declare a lock out from the first shift of April 23, 1975: It may be appropriate to set out the lock out notice dated April 23, 1975: "We hereby give notice to all concerned that a lock out is declared with effect from the begin ning of l st shift commencing at 7.00 a.m. on 23 4 1975 in our mills for the following or any of the reasons given below: (a) On or about 4.30 p.m. on 21 4 1975 a section of the workmen forcibly entered into the mill Guest House No. 2 and trespassed into the room in which Shri L. Grover, the Establishment Officer of the mills resides, dragged him out of the room and took him to the Administrative Office of the mills and kept him there under restraint and illegal confinement for about 24 hours.
The work ers also removed personal belongings of Shri Grov er.
(b) The workers gheraoed, kept in restraint and illegal confinement.
our Dy.
Executive Direc tor, Shri V.K. Bagla, Dy.
Chief Executive (Works) Shri S.C. Gandhi, and other senior officers in the mill premises with effect from 7.00 p.m. of Monday, the 21st April 75.
Those officers were kept in illegal confinement without food and other basic amenities of life continuously for 21 hours.
(c) The workers not only kept the above mentioned officers under wrongful restraint but also abused and humiliat 712 ed them.
Threats were advanced to the life of these officers and to the effect that the mill property will also be damaged.
(d) The workers employed in spinning and weaving departments including their preparatories and partly engineering department have been laid off with effect from 14 4 75.
These workmen, in stead of leaving the factory premises after lay off attendance staged dharana daily in the adminis trative office of the mills thereby disrupting its normal and smooth working.
(f) The workers have also arrested the move ment of cloth bales from mill godowns thereby disrupting the bales of the finished goods.
The lock out hereby declared will cover all the departments of the mills except the Watch and Ward and essential service which will continue to function as usual and will not be affected by this notice.
" X X X X The union denied, the various allegations made against the workmen, and stated that the lock out was carried out with a view to pressurise the union and the workmen to accept the management 's terms with regard to the mode of payment of their salary as well as the lay off arrangements introduced by the management.
Both sides produced documentary evidence as well as examined witnesses.
The management examined four witnesses whereas the union examined two witnesses on their behalf.
After examining the entire evidence the Labour Court came to the conclusion that the lockout was an illegal lock out.
Hence this appeal by special leave.
The question that falls for decision is whether the lock out in question is illegal under section 98(1)(a) of the Act.
We are not required to consider whether it is also illegal under section 98(1)(h) of the Act as referred to by the Labour Court.
According to section 98(1)(a), "a lock out shall be illegal if it is commenced or continued in cases where it relates to any industrial matter specified in Schedule III or regulated by any standing order for the time being in force".
We are not required to consider the second part of section 98(1)(a) which refers to the standing order.
Sched ule III enumerates seven items out of which we are required to consider only item 6(ii) which reads as follows : "Employment including unemployment of persons previously employed in the industry concerned".
Before we proceed further we may take note of the definition of lock out which is found in sec tion 3 (24) of the Act: " 'Lock out ' means the dosing of a place or part of a place of employment or the total or partial suspension Of 713 work by an employer or the total or partial refusal by an employer to continue to employ persons em ployed by him, where such closing, suspension, or refusal occurs in consequence of an industrial dispute and is intended for the purpose of (a) compelling any of the employees directly af fected by such closing, suspension or refusal or any other employees of his, or (b) aiding any other employer in compelling persons employed by him, to accept any term or condition of or affecting employment.
" This definition is differently worded from what is there in the .
We, however, find that in the Trade Disputes Act, 1929, lock out is similarly defined as in the present Act.
By section 2(1) of the Industrial Disputes Act, lock out "means the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of per sons employed by him".
This Court, while interpreting the above defini tion, in Management of Kairbetta Estate, Kotesiri vs Rajamanickam and others, C) observed as follows : "Even so, the essential character of a lock out continues to be substantially the same.
Lock out can be described as the entithesis of a strike.
Just as a strike is a weapon available to the employees for enforcing their industrial demands, a lock out is a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands.
" It should, however, be made clear that lock out can be declared also for reasons similar to those described in the present notice of lock out.
In that case although it will be lock out in anoth er sense, it may not be a lock out within the meaning of section 3 (24) of the Act.
That kind of a lock out with the avowed object of preventing violence and threat to life and property may even be justified on facts in a given case.
In such a situation 'it may be difficult to prove that it is an illegal lock out since in an illegal lock out the sole object is to compel the workmen to accept the terms of the employer which the workers consid er as unreasonable and oppressive.
In the instant case although we do not approve of the Labour Court 's observations in the order to a possible effect that threats and gheraoes "are the normal behaviour when an occasion like this takes place", we cannot say that its ultimate conclusion after appreciation (1) ; 714 of the evidence is such that it may call for inter ference in an application under Article 136 of the Constitution.
The Labour Court has given a finding at paragraph 15 of the as follows : "Coming now to the other important ingredient viz. intention on the part of 'the management to compel the workers directly affected by such clos ing to accept any term or condition affecting employment, it appears that there was such an intention on the part of the management.
The opponent company, because of the financial diffi culties which they were facing wanted the workers to agree to accept lay off and also agree to accept wages not on the specified days as per the existing awards, etc.
but as and when the management could pay .
In my opinion, therefore it could be said that all the ingredients of an illegal 'lock out ' were present in this case".
The Labour Court has taken note of the fact that there was no evidence of any violence being caused to the property of the mill notwithstanding the presence of a huge crowd said to be in a riotous mood.
The tribunal also took the view that the officers were not confined in.
their rooms as such as represented but they themselves did not like to come out perhaps due to apprehension.
The Labour Court was of opin ion that the situation was not of such a grave nature which called for such a drastic step like a lock out.
The Labour Court seems to be of the further view that since the manage ment has been in continuous financial difficulties heading towards a closure and closure would have put the management under an obligation to pay compensation under section 25 FFF under the , opportunity was taken to declare a lock out on the slightest opportunity.
It is not possible for us to reappraise the evidence and come to a different conclusion on the facts in this appeal.
We are also unable to hold that the conclusions of the Labour Court are perverse or even against the weight of evidence on record.
The only question, therefore, that survives is whether on the finding of the Labour Court the lock out is illegal.
It is contended on behalf of the appellant that item 6(ii) in Schedule Iii to the Act which deals with the unemployment of persons previously employed in the industry concerned cannot govern a case of lay off.
According to counsel lay off is not unemployment since the relationship of master and servant is not snapped.
We are unable to accept this contention.
Lay off is not defined in the Act but has been defined in section (KKK) of the : " 'lay off ' (with its grammatical variations and cognate expressions ) means the failure, refus al or inability of an employer on account of short age of coal, power or raw materials 715 or 'the accumulation, of stocks or the breakdown of machinery or for any other reason to give employ ment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched".
X X X X X Even according to the dictionary meaning, lay off means to discontinue work or activity; to dismiss or discharge temporarily.
When workers are in employment and they are laid of, that immediately results in their unemployment, howsoever temporary, and such an unemployment will clearly come under item 6(ii) in Schedule III of the Act.
It is not disputed that "unemployment" is an industrial matter as defined under section 3(18) of the Act.
Since unemployment is an industrial matter under item 6(ii) of Schedule III to the Act, the lock out which has been found by the Labour Court to have direct connection with lay of is clearly illegal under section 98(1)(a) of the Act.
In the result the appeal fails and is dis missed with costs.
P.B.R Appeal dis missed.

dataset_name: IN-Abs

summary:
According to section 98(1)(a) of the Bombay Industrial Rela tions Act, 1946 a lock out shall be illegal if it is com menced.
or continued in cases where it relates to any indus trial matter specified in Schedule III, Item 6(ii).
Item 6(ii) states "employment including unemployment of persons previously employed in the industry concerned".
On account of financial and other difficulties the appellant laid off workers in some departments of the mill.
After.
a few days the management declared a lock out alleg ing that the workers gheraoed some officers in the mill, started 'dharna ' and behaved in an unruly manner.
The Labour Court, to which the dispute was referred, held that there was no evidence of violence or of gheraoes, that the situation in the mills was not of such a grave nature as called for a lock out and that the management resorted to the lock out on the slightest opportunity in order to avoid payment of compensation, since it was in continuous financial difficulties heading towards a closure and closure would have put the company under obligation to pay compensation.
Dismissing the appeal, HELD: (1) A lock out can be declared for reasons similar to those described in the present notice of lock out.
In that case although it will be lock out in another sense it may not be a lock out within the meaning of section 3(24) of the Act.
That kind of lock out with the avowed object of pre venting violence and threat to life and property may be justified on facts in a given case.
In such a situation it may be difficult to prove that it is an illegal lock out since in an illegal lock out the sole object is to compel the workmen to accept the terms of the employer which the workers consider as unreasonable and oppressive.
[713 F G] But in the instant case though the views of the Labour Court that threats and gheraoes "are the normal behaviour when an occasion like this takes place" should be disap proved, the ultimate conclusion after appreciation of the evidence was not such as would call for interference in an application under article 136 of the Constitution.
[713 H] (2) Though the Act has not defined 'lay out ', even according to the dictionary meaning, lay off means to dis continue work or activity; to dismiss or discharge tempo rarily.
When workers are in employment and they are laid off, that immediately results in their unemployment, howso ever temporary.
and such an unemployment will clearly come under item 6(ii) in Schedule III of the Act.
Since unemploy ment is an industrial matter under item 6(ii) of Schedule Iii of the Act, the lock out which had been found by the Labour Court to have direct connection with lay off is clearly illegal under section 98(1)(a) of the Act.
[715 BC]


judgement:
Appeal No. 1726 of 1971.
(Appeal by Special Leave from the Judgment and Order dated 20 4 1971 of the Allahabad High Court in Misc.
Sales Tax Reference No. 137 of 1970).12 1234SCI/76 684 S.C. Manchanda, M.V. Goswami and O.P. Rana, for the Appellants.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave against the judgment of Allahabad High Court whereby the High Court answered the following question referred to it under section 11 ( 3 ) of the UP Sales Tax Act (hereinafter referred to as the Act) in favour of the dealer respondent and against the revenue: "Whether the time taken by the dealer in obtaining another copy of the impugned appellate order could be excluded for the purpose of limita tion for filing revision under section 10 (1 ) of the UP Sales Tax Act when one copy of the appellate order was served upon the dealer under the provi sions of the Act ?" The matter relates to the assessment year 1960 61.
An appeal filed by the respondent against the order of the Sales Tax Officer was disposed of by the Assistant Commis sioner (Judicial) Sales Tax, Bareilly.
The copy of the appellate order was served on the dealer respondent on August 2, 1965.
The respondent, it appears, lost the copy of the appellate order which had been served upon him.
On June 15, 1966 the respondent made an application for obtaining another copy of the above order.
The copy was ready on August 17, 1967 and was delivered to the respondent on the following day, i.e. August 18, 1967.
Revision under section 10 of the Act was thereafter filed by the respondent before the Judge (Revision) Sales Tax on September 9, 1967.
Sub section (3B) of section 10 of the Act prescribes the period of limitation for filing such a revision.
According to that sub section, such a revision application "shall be made within one year from the date of service of the order com plained of but the Revising authority may on proof of suffi cient cause entertain an application within a further period of six months.
" Question was then agitated before the Judge (Revision) as to whether the revision application was within time.
The respondent claimed that under section 12(2) of the , he was entitled to excluded in computing the period of limitation for filing the revision, the time spent for obtaining a copy of the appellate order.
This contention was accepted by the Judge (Revision).
He also observed that the fact that the said copy was not required to be filed along with the revision petition would not stand in the way of the respondent relying upon section 12(2) of the .
The Judge (Revision) thereafter dealt with the merits of the case and partly allowed the revision petition.
At the instance of the Commissioner of Sales Tax, the question reproduced above was referred to the High Court.
The High Court, as stated above, answered the ques tion in favour of the respondent and in doing so placed reliance upon the provision of section 12(2) of the Limita tion Act,1963 (Act 36 of 1963) which reads as under: "(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained 685 of was pronounced and the time requisite for ob taining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
" It may be stated that the language of section 12(2) of the Act of 1963 is in variance with that of section 12(2) of the Indian Limitation Act,1908 (Act 9 of 1908) so far as the applicability of section 12(2) is concerned in computing the period of limitation for filing revision application.
Section 12(2) of the Indian Limitation Act, 1908 read as under: "(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judg ment, the day on which the judgment complained of was pronounced, and the time requisite for obtain ing a copy of the decree, sentence or order ap pealed from or sought to be reviewed, shall be excluded.
" Bare perusal of sub section (2) of section 12 of the Act of 1908 would show that it did not deal with the period of limitation prescribed for an application for revision.
As against that, the language of sub section (2) of section 12 of .the
Act of 1963 makes it manifest that its provisions would also apply in computing the period of limita tion for application for revision.
There can, therefore, be no manner of doubt that in a case like the present which is governed by the Act of 1963, the provisions of sub section (2) of section 12 can be invoked for computing the period of limitation for the application for revision if the other necessary conditions are fulfilled.
It is, however, contended by Mr. Manchanda that the UP Sales Tax Act constitutes a complete code in itself and as that Act prescribes the period of limitation for filing of revision petition, the High Court was in error in relying upon the provi sions of sub section (2) of section 12 of the .
This contention, in our opinion, is wholly bereft of force.
Sub section (2) of section 29 of the reads as under: "(2) Where any special or local law pre scribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit; appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
" There can be no manner of doubt that the UP Sales Tax Act answers to the description of a special or local law.
According to sub section (2) of section 29 of the , reproduced above, for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in section 686 12(2), inter alia, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law.
There is nothing in the U.P Sales Tax Act expressly excluding the application of section 12(2) of the for determining the period of limitation prescribed for revision application.
The conclusion would, therefore, follow that the provisions of section 12(2) of the of 1963 can be relied upon in computing the period of limitation prescribed for filing a revision petition under section 10 of the UP Sales Tax Act.
It has been argued by Mr. Manchanda that it was not essential for the dealer respondent to file a copy of the order of the Assistant Commissioner along with the revision petition.
As such, .according to the learned counsel, the dealer respondent could not exclude the time spent in ob taining the copy.
This contention is equally devoid of force.
There is nothing in the language of section 12(2) of the to justify the inference that the time spent for obtaining copy of the order sought to be revised can be excluded only if such a copy is required to be filed along with the revision application.
All that section 12(2) states in this connection is that in computing the period of limitation for a revision, the time requisite for obtaining a copy of the order sought to be revised shah be excluded.
It would be impermissible to read in section 12(2) a proviso that the time requisite for obtaining copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded only if such copy has to be filed alongwith the memorandum of appeal or application for leave to appeal or for revision or for review of judgment, when the legislature has not inserted such a proviso in section 12(2).
It is also plain that without procuring copy of the order of the Assistant Commissioner the respondent and his legal adviser would not have been in a position to decide as to whether revision petition should be filed against that order and if so, what grounds should be taken in the revi sion petition.
The matter indeed is not res integra.
In the case of J.N.Surty vs T.S. Chettyar(1), the Judicial Committee after .noticing the conflict in the decisions of the High Courts held that section 12(2) of the Indian Limitation Act, 1908 applies even when by a rule of the High Court a memo randum of appeal need not be accompanied by a copy of the decree, Lord Phillimore speaking on behalf of the Judicial Committee observed: "Their Lordships have now to return to the grammatical construction of the Act, and they find plain words directing that the time requisite for obtaining the two documents is to be excluded from computation.
12 makes no reference to the Code of Civil Procedure or to any other Act.
It does not say when the time is to be excluded, but simply enacts it as a positive direction.
If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could (1) 55 I.A. 161.
687 be requisite for obtaining something not requisite.
But this, is not so.
The decree may be complicat ed, and it may be open to draw it up in two differ ent ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal.
As to the judgment, no doubt when the case does not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it.
" Following the above decision, it was held by a Full Bench consisting of five Judges of the Lahore High Court in the case of The Punjab Co operative Bank Ltd., Lahore vs The Official Liquidators, The Punjab Cotton Press Co. Ltd. C) that even though under the Rules and Orders of the High Court no copy of the judgment is required to be filed along with the memorandum of appeal preferred under section 202 of the Indian Companies Act from an order of a single Judge, the provisions of section 12 of the Indian Limitation Act would be attracted.
The provisions of section 12 were also held to govern an appeal under Letters Patent.
A Full Bench of the Patna High Court in the case of Mt. Lalitkuari vs Mahaprasad N. Singh(2) also held that the provisions of section 12 of the Limitation Act were applica ble to Letters Patent appeals under clause 10 of the Letters Patent.
The above decision of the Judicial Committee was followed by this Court in the case of Additional Collector of Customs, Calcutta & Anr.
vs M/s. Best & Co.(3) Similar view was expressed by this Court in the case of section A. Gaffoor vs Ayesha Beghum & Ors.(4) It is plain that since 1928 when the Judicial Commit tee decided the case of Surty (supra), the view which has been consistently taken by the Courts in India is that the: provisions of section 12(2) of the Limitation Act would apply even though the copy mentioned in that subsection is not required to be filed along with the memorandum of ap peal.
The same position should hold good in case of revision petitions ever since Limitation Act of '1963 came into force.
Lastly, it has been argued that the copy of the order of the Assistant Commissioner was served upon the respond ent, and as such,; was not necessary for the respondent to apply for copy of the said order.
In this respect we find that the copy which was served upon the respondent was lost by him.
The loss of that copy necessitated the filing of an application for obtaining another copy of the order of the Assistant Commissioner.
(1) Lahore Series 191.
(2) Patna Series 157.
; (4) CA No. 2406 of 1969 decided on August 18, 1970.
( See Unreported judgements of Supreme Court.
2. page 784).
688 In the case of State of Uttar Pradesh vs Maharaj Narain & Ors.(1) the appellant obtained three copies of the order appealed against by applying on three different dates for the copy.
The appellant filed along with the memorandum of appeal that copy which had taken the maximum time for its preparation and sought to exclude such maximum time in computing the period of limitation for filing the appeal, This Court, while holding the appeal to be within time, observed that the expression time requisite in section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order and that what is deductible under section 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained.
If that be the position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that where as in the present ease the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily have to be excluded under section 12(2) of the .
The High Court, in our opinion, correctly answered the question referred to it in favour of the dealer respondent and against the revenue.
The appeal fails and is dismissed.
As no one appeared on behalf of the respondent, we make no order as to costs.
M.R. Appeal dismissed.

summary:
The Assistant Commissioner (Judicial) Sales Tax, Bareil ly, disposed of the respondents ' appeal made against an order of the Sales Tax Officer.
A copy of the order was served on the respondent, but he lost it.
Later, he ob tained another copy and filed a revision petition under sectiOn 10 of the U.P. Sales Tax Act.
The same was opposed as being time barred, but the Judge (Revision) accepted the respondent 's contention that under section 12(2) of the , he was entitled to exclude the time spent in obtaining the second copy of the order, while computing the limitation period.
The question whether such exclusion was permissible, was referred to the High Court which an swered in the affirmative.
The appellant contended that the U.P. Sales Tax Act itself provided for a specific period of limitation; and therefore the was not applicable, and also that, a copy of the order was not required to be filed with the revision petition, and so the time spent in obtaining a second copy could not be excluded in computation of limita tion.
Dismissing the appeal the Court, HELD: (1 ) Where the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revi sion petition, the time spent in obtaining that copy would necessarily have to be excluded under Section 12(2) of the .
State of Uttar Pradesh vs Maharaj Narain & Ors. ; followed.
[688 B C] (2) The provisions of Section 12(2) of the would apply even though the copy mentioned in that Sub section is not required to be filed alongwith the Memorandum of appeal.
The same position should hold good in case of revision petitions ever since of 1963 came into force.
1686 B, D 687 FI J.N. Surty vs
T.S. Chettyar (55 IA 161), The Punjab Co.operative Bank Ltd., Lahore vs The Official Liquidators, the Punjab Cotton Press Co. Ltd. Lahore Series 191, MT.
Lalitkuari vs Mahaprasad N. Singh Panta Series 157, Additional Collector of Customs, Calcutta & Anr.
vs M/s. Best & Co. (AIR S.A. Gaffoor vs Ayesha Beghum & Ors.
(C.A. 2406/1969 decided on 18 8 1970 Unreported Judgment of Supreme Court, 1970 Vol. 2, page 784) followed.
(3) For the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in Section 12(2), inter alia.
shall apply in so far as, and to the extent to which they are not expressly excluded by such special or local law, and there is nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2) of the .
[685 H, 686 A]


judgement:
Appeal No. 442 of 1974.
(From the Judgment and Order dated the 17th of August, 1970 of the Punjab & Haryana High Court in Civil Writ No. 413/62).
V.C. Mahajan and O.P. Sharma, for the Appellant.
Harbans Singh, for Respondent No. 2.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal on certificate against the judgment of the Punjab 'and Haryana High Court whereby the High Court held that the appellant firm had failed to prove that it had stood dissolved on a date prior to the date of assessment, viz., March 12, 1962.
The appellant firm carries on business as commission agents of cotton and food grains.
In respect of the year 1959 60, the appellant did not submit any return under the Punjab General Sales Tax Act.
A notice was thereupon issued to the appellant firm and the 753 case was fixed for July 1, 1960.
The appellant challenged the validity of the assessment proceedings by means of a writ petition in the High Court.
The High Court during the pendency of the petition, stayed the proceedings.
Ulti mately, it seems, the writ petition was dismissed and the assessment proceedings were resumed on November 30, 1961.
Various dates were fixed thereafter.
February 17, 1962 was fixed as the final date of hearing.
On that date, intima tion was given on behalf.
of the appellant that the appel lant firm had ceased to do any work since February 1961.
It was also represented that a formal document had been exe cuted on August 8, 1961.
The assessing authority despite that intimation proceeded to make an order of assessment dated March 12, 1962.
The appellant thereupon filed anoth er petition under article 226 of the Constitution in the Punjab High Court, praying for the quashing of the assess ment order.
It was stated on behalf of the appellant that the appellant firm had been dissolved before the date of assessment order and as such, the sales tax authorities could not make an order for assessment.
The High Court dismissed the petition on the ground that the assessment proceedings had been initiated long before the alleged date of dissolution of the firm.
The appellant thereafter came up to this Court in appeal against the said decision of the High Court.
This .Court set aside the judgment of the High Court, following its decision in the case of State of Punjab vs M/s Jullundur Vegetables Syndicate.(1) The case was remanded to the High Court as no definite finding had been given by the High Court regarding the dissolution of the appellant firm and about the fact as to whether the said dissolution had taken place before the date of the order of assessment, namely, March 12, 1962.
After remand, the High Court called upon the sales tax officer to make an enquiry and submit a report on the point as to whether the appellant firm had been dissolved on August 8, 1961 as alleged by the appellant.
The sales tax officer thereafter made an enquiry and submitted a report that the appellant firm had not proved its dissolution on August 8, 1961 or before the date of assessment order.
The High Court, 'after receipt of the report, itself examined the matter and came to the conclusion that on the material on record brought by the appellant, it had not been proved that the appellant firm had stood dissolved on a date prior to March 12, 1962.
It is the correctness of the above decision of the High Court which has now been assailed before us by the appellant in this appeal.
We have heard Mr. Mahajan on behalf of the appellant and find no cogent ground to take a view different from that of the High Court.
The High Court, in the course of its judg ment, has pointed out that though the assessment order was made on March 12, 1962 a large number of hearings took place between March 8, 1961, the alleged date of dissolution and March 12, 1962.
At no hearing, was any intimation given by the appellant to the assessing authority that the firm had stood dissolved.
All that was intimated on February 17, 1962 was that the firm had ceased to do work in February 1961 and (1) 119661 2 S.C.n.
457. 754 that a formal document had been executed on August 8, 1961.
It was also not the case.
of the appellant that all the six partners of the appellant firm, had signed that document.
Another factor which weighed with the High Court was that though intimation is required to be given under section 16 of the Punjab General Sales Tax Act regarding the dissolu tion of a firm within thirty days of such dissolution no such intimation was given by the appellant firm until April 2, 1962, i.e., nearly eight months after the alleged date of dissolution.
In our opinion, the facts and circumstances referred to by the High Court throw a considerable doubt.
upon the correctness of the statement made on behalf of the appel lant firm ' that it had stood dissolved on August 8, 1961.
It has to be borne in mind that the High Court was dealing with the matter on the writ side.
In a writ petition, the SCOpe for interference with a finding of the departmental authorities is much more restricted and the court can nor mally interfere only if the finding is based upon no evi dence or is based upon extraneous or irrelevant evidence or is otherwise perverse.
The same cannot be said of the finding of the sales tax authority embodied in its report sent to the High Court in the present case.
We see no sufficient ground to interfere with the judgment of the High Court.
The appeal fails and is dismissed.
There will be no order as to costs.

summary:
In response to a notice from the assessing authority under the Punjab General Sales Tax Act that the appellant had not filed a return in respect of the assessment year 1959 60, the appellant claimed that the firm had ceased to do any work since February.
1961 and that a formal document to that effect was executed in August, 1961.
The assessing authority made an order of assessment in March 1962.
In a writ petition under Article 226 of the Constitution filed ' by the appellant; the High Court directed the Sales Tax Officer to enquire and report if the appellant firm had proved its dissolution in August 1961 or before the date of assessment order.
The Sales Tax Officer reported that it had not, The High Court itself examined the matter and came to the s.me conclusion of that reached by the Sales Tax Officer.
It also found that though intimation was required to be given under section 16 of the Act regarding the dissolution of the firm within 30 days of such dissolution no such intimation was given under April, 1962 and dismissed the writ petition.
Dismissing the appeal to this Court, HELD: (1) There is no sufficient ground to interfere with the judgment of the High Court.
The facts and circum stances referred to by the High Court throw a considerable doubt upon the correctness of the appellant 's statement that it had stood dissolved in August, 1961.
[754 D & B] (2) The High Court was dealing with the matter on the writ side.
In a writ petition, the scope for interference.
with a finding of the departmental authorities is much more restricted and the court can normally interfere only if the finding is based upon extraneous or irrelevant evidence or is otherwise perverse.
The same cannot be said of the finding of the sales tax authority embodied in its report sent to the High Court in the present case.
[754 C]


judgement:
Appeal No. 1022 of 1975.
Appeal by Special Leave from the Judgment and Order dated ' 27 2 75 of the Gujarat High Court in Spl.
Civil Appln.
No. 767/74.
S.K. Dholakia and R.C. Bhatia, for the Appellants.
Hardayal Hardy, K.R. Nagaraja, S.K. Mehta and P.N. Puri, for Respondents 2, 4, 5, 7 10.
R.N. Sachthey, for Respondent No. 11.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by special leave is directed against a, judgment of the Gujarat High Court dated February 28, 1975, in a writ petition filed by Smt.
T.H. Pathak and nine others, who are now arrayed as respondent Nos. 1 to 10 and will hereafter be referred to as the writ petitioners.
They were appointed as clerks or accounts ' clerks from June 19, 1963 to January 12, 1967, on a temporary basis.
in the office of the Director of Civil Supplies (Accounts), Guja rat, and were promoted to higher posts thereafter.
They claimed that there was no rule or order until March 1, 1969, requiring that appointments on their posts shall be made through the Gujarat Public Service Commission, so that their appointments were outside the purview of the Commission and were regular.
The State Government however made 679 the Gujarat Non Secretariat Clerks, Clerk typists and Typ ists (Direct Recruitment Procedure) Rules, 1970, hereinafter referred to as the Rules, on April 17, 1970, and issued instructions for their enforcement, including instructions for determination of their seniority.
That was followed by a resolution dated April 15, 1971, in which it was stated that the seniority of the candidates who were to be selected for the posts of clerks, clerk typists and typists under clause (i) (a) of rule 29, shall be determined from April 17, 1970, as if their allotment and/or appointment was from that date irrespective of the question whether they were in service or not, and that their names shall be arranged in a common seniority list in order of merit, in accordance with the principles laid down in the Rules.
The writ petition ers felt aggrieved against the provisions of the Rules and the Government instructions, as well as the seniority list which was published thereunder on April 18, 1974.
They prayed for a direction requiring the authorities concerned to treat their service as regular, for quashing the afore said resolution dated April 15, 1971, and for a direction that their seniority may be fixed on the basis of the dates on which they had joined their respective posts.
The respondents to the writ petition traversed the contentions of the writ petitioners in their replies.
The State Government stated in its reply that the writ petition ers were not recruited through proper channel even though the Centralised Recruitment Scheme was in existence and was applicable to their office with effect from January 21, 1963, that they did not come through the employment ex changes, that their appointments were by way of a stop gap arrangement pending recruitment through Centralised Re cruitment Scheme or the Public Service Commission, and that as they were "irregularly appointed" their services could be terminated at any time.
It was pleaded that it was for that reason that the Government made a provision in rule 29 of the Rules, on humanitarian considerations, to regularise the appointments in accordance with the provisions of the Rules.
It was accordingly contended that the writ petition ers could not claim seniority from the dates of their irreg ular appointments and their service.
for purposes of senior ity, could only be counted from April 17, 1970.
The High Court took the view that the Centralised Re cruitment Scheme was not applicable when the writ petition ers were appointed in the Directorate of Civil Supplies (Accounts) or in the office of the Deputy Director of Civil Supplies (Accounts), and that their posts were also not within the purview of the Gujarat Public Service Commission until March 1, 1969.
The High Court therefore held that the appointments of the writ petitioners were regular and were not required to be regularised under rule 29 of the Rules.
It held that the State 'Government had no power to issue the circular under rule 30 of the Rules for "allotment" and fixation of seniority of the writ petitioners, and the instructions contained in the resolution dated April 15, 1971 were not applicable to them.
It accordingly allowed the writ petition, struck down the seniority list dated April 18, 1974, directed the State Government and the Direc tor of Civil Supplies (Accounts) to treat the service of the writ petitioners as regular from the dates when they were 680 appointed initially, not to apply the instructions contained in the resolution dated April 15, 1971 to them, to compute their seniority from the dates of their respective initial appointments and to fix their seniority afresh on that basis.
The appellants, who claim to have been appointed regularly from the very beginning, and challenge the ap pointments of the writ petitioners as irregular, feel ag grieved, and this is how the present appeal has come up for consideration before us.
It has been argued by counsel for the appellants that the initial appointments of the writ petitioners were irreg ular and the High Court erred in taking the view that_rule 29 of the Rules was not applicable to them.
This argument has been advanced on the grounds that the office of the Director of Civil Supplies (Accounts) became a part and parcel of the Directorate of Civil Supplies and appointments to the posts to which the writ petitioners were initially appointed were therefore required to be made through the Public Service Commission, and that the Centralised Recruit ment Scheme was made applicable to those appointments in pursuance, at any rate, of the resolution dated July 9, 1964.
We find that both these contentions have been exam ined by the High Court and it has given satisfactory reasons for taking the view that this was not so.
It will be enough to say that the Dircctorate of Civil Supplies (Accounts) was not included in appendix B to the Scheme which formed part of the resolution dated November 21, 1960 by which certain posts were brought within the purview of the Public Service Commission.
It has in fact been admitted in the affidavit of K.K. Joshipura, Under Secretary to the State Government, dated September 4, 1974, that it was "true the office of the D.C.S.(A) was not under the purview of the Gujarat Public Service Commission at the time of the ap pointment of the petitioners.
" There is therefore nothing wrong with the view which has prevailed with the High Court that the Directorate did not come under the purview of the Public Service Commission until March 1, 1969.
As regards the Centralised Recruitment Scheme and the resolution of January 21, 1963, the High Court has again rightly held that the resolution applied to recruitment of clerks in district and regional offices and as the Direc torate of Civil Supplies (Accounts) was not such an office, the Scheme did not apply to it.
We have gone through the other resolution dated July 9, 1964, which modified the Scheme, but here again the High Court has rightly taken the view that merely because of use of the expression "state cadre", it could not be said that the modified scheme was made applicable to the Directorate.
We have gone through the whole of the Scheme and we have no doubt that it governed recruitment to district and regional offices, and there is no justification for the argument that it become applicable for recruitment of clerks in the Directorate of Civil Supplies (Accounts) as well.
As it is, nothing has been shown to justify the view taken by the State Government that the initial appointments of the writ petitioners were irregular and had to be regula rised in accordance with the provisions of rule 29 of the Rules.
The rule provides as follows, "29.
Notwithstanding anything contained in these rules the following eases shall be regularised in the manner shown 681 below in relaxation of their upper age, provisions of Re cruitment Rules concerned and/or rules for pre service training made by Government in this behalf to the extent indicated below : (1) (a) Persons initially recruited otherwise than through the Gujarat Public Service Commission, or Central ized Recruitment Scheme, as clerks, clerk typists or typist sin the offices to which the Rules apply, and who have ren dered not less than 2 years ' continuous service, as clerk or clerk typist or typist, as the case may be, as on 31st December, 1968 in one or more offices and who are continuing in Government service as clerks, clerk typists or typists, as the case may be, on the date of this notification or such persons whose names are kept on the Waiting List for provi sional appointment for the reason that they had to be dis charged for want of posts even though they had rendered 2 years ' continuous service as on 31st December, 1968 shall be required to appear at the special interview and/or the special typing test to be held for them for their selection for appointment to the post of clerk, clerk typist or typ ist, as the case may be.
" Then follow the other sub rules with which we are not con cerned.
The writ petitioners were initially recruited otherwise than through the Gujarat Public Service Commis sion and the Centralised Recruitment Scheme and they had rendered not less than two years ' continuous service as clerk, clerk typists or typists by December 31, 1968, but, ' as would appear from the history of their service, it could not be said that they were continuing in Government service as clerks, clerk typists or typists on April 17, 1970, which was the date of the notification of the Rules.
The State Government therefore again erred in thinking that their service was governed by rule 29(1) (a).
So when the appointments of the writ petitioners were not irregular, and they were not continuing in Government service as clerks, clerk typists or typists on April 17.
1970, rule 30 of the Rules was also not applicable to them and it was not permis sible for the authorities concerned to determine their allotment and seniority under that rule.
The view taken by the High Court is therefore quite justified and does not call for interference.
The write petitioners had put in several years of serv ice, and had received pro.motions from time to time.
Their appointments were however temporary all through.
It.ap pears that the State Government thought of ameliorating their lot for that reason and attempted to do so by making the aforesaid rule 29 of the Rules.
But, as has been shown, in doing so the State Government laboured under the impres sion that the initial appointments of the writ petitioners were irregular, and had to be regularised.
As this was not a correct premise, and as rule 29 is not really applicable to the writ petitioners for the reasons mentioned above, it would perhaps be advisable for the SLate Government to re examine the whole matter and to take appropriate action to give effect to their intention of ameliorating the lot of the writ petitioners.
That is however not a matter for this Court to decide.
The 689 High Court was therefore not justified in directing that the seniority of the writ petitioners should be computed on the basis that "their services with effect from the respective dates of their joining service as Clerks in the Directorate of Civil Supplies (Accounts) were regular and in accordance with law." As it would have been enough for the High Court to say that the State Government ,may reexamine the question of fixing the seniority of the writ petitioners and to take appropriate action to ameliorate their lot as temporary employees, the operative part of the impugned judgment of the High Court is modified to this extent.
The appeal otherwise fails and is dismissed.
In the circumstances of the case, we leave the parties to pay and bear their own costs.
P.H.P. Appeal dismissed.

summary:
The respondents Nos. 1 to 10 who were Writ PetitiOners in the High Court, were appointed as clerks between June, 1963 to January, 1967 on temporary basis and were promoted to higher posts thereafter.
They contended that at the rele vant time there was, no rule or order requiring that ap pointments to their posts shall be made through Public Service Commission.
The Gujarat Government issued Gujarat Non Secretariat Clerks, Clerk Typists and 'Typists (Direct Recruitment Procedure) Rules, 1970.
Thereafter, by resolu tion dated 15 4 1971, it was stated that seniority of the candidates who were to be selected for the posts of Clerks, Clerk typists and typists shall be determined as if their allotment or appointment was from 17 4 1970 irrespective of the question whether they were in service or not, and that their names shall be arranged in a common seniority list in order of merit in accordance with the principles laid down in the Rules.
The Writ petitioners filed a Writ Petition in the Guja rat High Court feeling aggrieved by the said 1970 Rules and the 1971 resolution.
The Writ Petitioners contended that the Government should be directed to treat their entire service as regular and that their seniority should be fixed on the basis of the dates on which they had joined their respective posts.
The State Government in its counter affidavit pointed out that the Writ Petitioners were not recruited through proper channel; that even though the centralised recruitment scheme was in existence and was applicable with effect from January, 1963, the Writ Petitioners did not come through the employment exchanges that their appointments were by way of a stop gap arrangement.
The State, however, admitted in its affidavit that the Writ Petitioners were not under the purview of the Gujarat Public Service Commission at the time of their appointment.
The State contended that the Writ Petitioners were irregularly appointed and that 1970 Rules were framed on humanitarian considerations to regularise their appointments and that, their seniority could not be counted from the dates of their appointment and could be counted only from 17th April, 1970.
The High Court came to the conclusion that the Centra lised Recruitment Scheme was not applicable when the Writ Petitioners were appointed and that the posts were also not within the purview of the Gujarat Public Service Commission until March, 1969.
The High Court therefore, held that the appointments of the petitioners were regular and were not required to be regularised under the 1970 Rules.
It also held that the State Government had no power to issue the circular under rule 30 of the Rules for allotment and fixa tion of a seniority and that the instructions contained in the resolution of 1971 were not applicable to the Writ Petitioners.
The High Court allowed the Writ Petition, struck down the seniority list, and directed the State Government and the Director of Civil Supplies to treat the services of the petitioners as regular from the dates when they were appointed initially and not to apply the instruc tions contained in the resolution of 1971 to compute their seniority.
The appellants, who claimed to have been appointed regularly from the beginning and who contend that the ap pointments of the writ petitioners were irregular filed appeal by Special Leave.
The appellants contended: 1.
That the initial appointment of the Writ Petitioners was irregular, being in violation of the centralised recruitment scheme, since the office 678 of the Director of Civil Supplies became a part and parcel of the Directorate of Civil Supplies, and that the centralised recruitment scheme was ap plicable to the recruitment of the Writ Petition ers.
The appointment to the posts held by the Writ Petitioners were required to be made through Public Service Commission, but as they were not made through P.S.C. the appointments were irregular.
Dismissing the appeal with a modification, HELD: 1.
The High Court has rightly negatived both the contentions of the appellants.
The State in its affidavit had admitted that the posts, the Writ Petitioners were not within under the purview of the Public Service Commission at the time of their appointment.
The High Court has also rightly held ' that by describing the cadre in question as a "State Cadre", it could not be said that the modified scheme was made applicable to the Directorate.
It is clear from the scheme that it governed the recruitment to the regional offices and not to the offices of the Directorate.
[680 C E, F G] 2.
Rule 29 of the 1970 Rules can apply only if the initial appointment was irregular, i.e., if the Public Service Commission was not consulted when the consultation was required and if the recruitment had not taken place through the Centralised Recruitment Scheme when it was necessary to do so.
In the ' present case Rule 29 cannot apply because the appointments of the Writ Petitioners were regular.
[681 G H] 3.
The view taken by the High Court is quite justified and does not call for interference.
[681 F] 4.
The High Court, however, was not justified in direct ing that the seniority should be counted from the respective dates of the appointment of the Writ Petitioners. 'the High Court ought to have left the matter to the State Government to re examine the question of fixing the seniority to give effect to their intention of ameliorating the lot of the writ petitioners.
[682 A B]