judgement:
etition No. 252 of 1956.
Petition under Article 32 of the Constitution for the enforcement of fundamental rights.
Veda Vyasa, section K. Kapur and Ganpat Rai, for the petitioner.
G. C. Mathur and C. P. Lal, for the respondent.
April 5.
The Judgment of the Court was delivered by DAS C.J.
This is a petition filed under article 32 of the Constitution of India praying for a declaration that section 295A of the Indian Penal Code is ultra vires and unconstitutional and for a writ in the nature of certiorari quashing the petitioner 's conviction under that section and for ancillary reliefs.
The material facts lie within a narrow compass.
The petitioner is the editor, printer and publisher of a monthly magazine called Gaurakshak.
The magazine is devoted to cow protection.
In July or August, 1954, a Hindi Daily newspaper named 'Amrit Patrika ' of Allahabad printed and published an article or a cartoon about a donkey on which an agitation was started by the muslims of Uttar Pradesh.
The editor and printer and publisher of 'Amrit Patrika ' were prosecuted by the State, but they have been eventually acquitted by the High Court of Allahabad.
In the meantime, in its issue for the month of Kartik Samvat 2009, corresponding to November, 1952, an article was published in the petitioner 's magazine 'Gaurakshak. ' On December 12, 1952, the State Government ordered the prosecution of the petitioner on the basis of the said article.
Accordingly on June 8, 1953,acomplaint was filed in the court of the District Magistrate, Kanpur, 111 862 by the Senior Superintendent of Police, Kanpur, against the petitioner for offences under sections 153A and 295A of the Indian Penal Code.
The Magistrate by his order dated August 5, 1953, charged the petitioner under sections 153A and 295A and committed the petitioner to the Sessions Court of Kanpur for trial.
The petitioner pleaded not guilty.
The learned Sessions Judge, by his judgment dated November 16, 1953, acquitted the petitioner of the charge under section 153 Abut convicted him under section 295A and sentenced him to 18 months rigorous imprisonment and a fine of Rs. 2,000 and, in default of payment of the fine, to further rigorous imprisonment of 4 months.
The petitioner filed an appeal to the High Court at Allahabad.
The learned Single Judge, by his judgment dated October 25, 1956, held that the article was published with the deliberate and malicious intention of outraging the religious feelings of muslims and that the petitioner was guilty under section 295A of the Indian Penal Code.
The learned Judge, however, reduced the sentence of imprisonment to 12 months and the fine from Rs. 2,000 to Rs. 250 only.
An application for certificate to appeal to this Court under articles 132 and 134 having been rejected by the High Court on October 30, 1956, the petitioner moved this Court for special leave to appeal from the judgment of the Allahabad High Court dated October 25, 1956.
The petitioner also on December 5, 1956, presented the present petition under article 32 for the reliefs mentioned above.
The petitioner also made an application in this Court along with the writ petition for stay of the sentence passed on him.
On December 18, 1956, both the stay application and the petition for special leave were dismissed by this Court.
The petition under article 32 has now come up for hearing.
Presumably the petitioner has surrendered and is undergoing the sentence of imprisonment.
Learned counsel appearing in support of this petition urges that section 295A of the Indian Penal Code is ultra vires and void inasmuch as it interferes with the petitioner 's right to freedom of speech and expression guaranteed to him as a citizen of India by article 19(1)(a) of our Constitution.
The contention is that this section 863 cannot be supported as a law imposing reasonable restrictions on the exercise of the right conferred by article 19(1)(a) as provided in cl.
(2) of the said Article.
Learned counsel says that the interest of public order is the only thing in cl.
(2) which may possibly be relied upon by the State as affording a justification for its claim for the validity of the impugned section.
A law interfering with the freedom of speech and expression and imposing a punishment for its breach may, says counsel, be "in the interests of public order" only if the likelihood of public disorder is made an ingredient of the offence and the prevention of public disorder is a matter of proximate and not remote consideration.
Learned counsel points out that insulting the religion or the religious beliefs of a class of citizens of India may not lead to public disorder in all cases although it may do so in some case.
Therefore, where a law purports, as the impugned section does, to authorise the imposition of restriction on the exercise of the fundamental right to freedom of speech and expression in language wide enough to cover restrictions both within and without the limitation of constitutionally permissible legislative action affecting such right, the court should not uphold it even in so far as it may be applied within the constitutionally permissible limits as it is not severable.
So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out it must, according to learned counsel, be held to be wholly unconstitutional and void.
Reference has been made to the cases of Romesh Thappar vs The St ate of Madras(1) and Brij Bushan vs The State of Delhi (2).
In Romesh Thappar 's case, in exercise of powers conferred on him by section 9(1 A) of the Madras Maintenance of Public Order Act, 1949, the Governor of Madras, being satisfied that for the purpose of securing public safety and the maintenance of public order it war,.
necessary so to do, prohibited the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled 'Cross Roads ', an English Weekly published at Bombay.
(1) ; (2) ; 864 The impugned section section
9(1 A) was a law enacted for the purpose of securing the public safety and the maintenance of public order. 'Public order ' was said to be an expression of wide connotation and to signify that state of tranquillity which prevailed among the members of a political society as a result of the internal regulation enforced by the Government which they had established. 'Public safety ' used in that section was taken as part of the wider concept of 'public order '.
Clause (2) of article 19, as it stood then, protected a law relating, inter alia, to a matter which undermined the security of or tended to overthrow the State.
Some breach of public safety or public order may conceivably undermine the security of or tend to overthrow the State, but equally conceivably many breaches of public safety or public order may not have that tendency.
Therefore, a law which imposes restrictions on the freedom of speech and expression for preventing a breach of public safety or public order which may not undermine the security of the State or tend to overthrow the State cannot claim the protection of cl.
(2) of article 19.
Section 9(1 A) was challenged as it embraced both species of activities referred to above and as the section was not severable, the whole section was held to be bad.
In Brij Bushan 's case (supra) the validity of section 7(1)(c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi, came.
up for consideration.
That section provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order, may, by order in writing addressed to the printer, publisher or editor, require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny".
It was held by this Court (Fazl Ali J. dissenting) that inasmuch as the section authorised the imposition of restrictions on the fundamental right to freedom of speech and expression guaranteed by article 19(1)(a) for the purposes of preventing activities prejudicial to 865 public safety and maintenance of public order, it was not a law solely relating to a matter which undermined the security of or tended to overthrow the State within the meaning Of Cl.
(2) of article 19 as it then stood.
The principles laid down in Romesh Thappar 's case were applied to this case and the law was held to be void.
The case of Chintaman Rao vs The State of Madhya Pradesh (1) has also been relied upon in support of the contention that where the language employed in the Statute is wide enough to cover restrictions on a fundamental right both within and without the limits of constitutionally permissible legislative action affecting the right and the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, the law must be held to be wholly void.
After this Court decided the cases of Romesh Thappar (supra) and Brij Bushan (supra), cl.
(2) of article 19 of the Constitution was amended.
Clause (2), as amended, protects a law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by sub cl.
(a) of cl.
(1) of article 19 "in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence." The question for our consideration is whether the impugned section can be properly said to be a law imposing reasonable restrictions on the exercise of the fundamental right to freedom of speech and expression in the interests of public order.
It will be noticed that the language employed in the amended clause is "in the interests of" and not "for the maintenance of".
As one of us pointed out in Debi Soron vs The State of Bihar(2), the expression "in the interests of" makes the ambit of the protection very wide.
A law may not have been designed to directly maintain public order and yet it may have been enacted in the interests of public order.
It is pointed out that section 295A has been included in chapter XV of the Indian Penal Code which deals with offences relating to religion and not in chapter VIII (1) ; (2) A.I.R. (1954) Patna 254.
866 which deals with offences against the public tranquillity and from this circumstance it is faintly sought to be urged, therefore, that offences relating to religion have no bearing on the maintenance of public order, or tranquillity and, consequently, a law creating an offence relating to religion and imposing restrictions on the right to freedom of speech and expression cannot claim the protection of el.
(2) of article 19.
A reference to articles 25 and 26 of the Constitution, which guarantee the right to freedom of religion, will show that the argument is utterly untenable.
The right to freedom of religion assured by those Articles is expressly made subject to public order, morality and health.
Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order.
These two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order.
Learned counsel then shifted his ground and formulated his objection in a slightly different way.
Insults to the religion or the religious beliefs of a class of citizens of India may, says learned counsel, lead to public disorders in some cases, but in many cases they may not do so and,, therefore, a law which imposes restrictions on the citizens ' freedom of speech and expression by simply making insult to religion an offence will cover both varieties of insults, i.e., those which may lead to public disorders as well as.those which may not.
The law in so far as it covers the first variety may be said to have been enacted in the interests of public order within the meaning of el.
(2) of article 19, but in so far as it covers the remaining variety will not fall within that clause.
The argument then concludes that so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, the entire law should be held to be unconstitutional and void.
We are unable, in view of the language used in the impugned section, 867 to accede to this argument.
In the first place el.
(2) of article 19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression "in the interests of" public order, which is much wider than "for maintenance of" public order.
If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction "in the interests of public order" although in some cases those activities may not actually lead to a breach of public order.
In the next place section 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.
Insults to religion offered unwittingly or carelessly or without any deli.
berate or malicious intention to outrage the religious feelings of that class do not come within the section.
It only Punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.
The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of cl.
(2) of article 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by article 19(1)(a).
Having regard to the ingredients of the offence created by the impugned section, there cannot, in our opinion, be any possibility of this law being applied for purposes not sanctioned by the Constitution.
In other words, the language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by article 19(1)(s) and consequently, the question of severability does not 868 arise and the decisions relied upon by learned counsel for the petitioner have no application to this case.
For the reasons stated above, the impugned section falls well within the protection of el.
(2) of article 19 and this application must, therefore, be dismissed.
Application dismissed.

summary:
This was a petition challenging the constitutional validity of section 295A of the Indian Penal Code and for quashing the petitioner 's conviction thereunder for publishing an article in a monthly magazine of which he was the printer, publisher and the editor.
It was contended on his behalf that the impugned section infringed his fundamental right to freedom of speech and expression conferred by article 19(1)(a) of the Constitution and was not a law imposing reasonable restrictions on the right in the interests of public order under cl.
(2) of article 19, which alone could have afforded a justification for it.
Held, that section 295A of the Indian Penal Code was well within the protection of Cl.
(2) of article 19 of the Constitution and its validity was beyond question.
The expression "in the interests of" occurring in the amended Cl.
(2) of article 19 had the effect of making the protection afforded by that clause very wide and a law not directly designed to maintain public order would well be within its protection if such activities as it penalised had a tendency to cause public disorder.
Debi Soron vs The State of Bihar, A.I.R. (1954) Pat. 254, referred to.
It was absurd to suggest that insult to religion as an offence could have no bearing on public order so as to attract cl.
(2) Of article 19 in view of the provisions of articles 25 and 26 of the Constitution which, while guaranteeing freedom of religion, expressly made it subject to public order.
861 Nor, having regard to the language and ingredients of section 295A of the Indian Penal Code, could it be contended that the restrictions imposed by it could be used for purposes other than those falling within the limits of the Constitution.
Romesh Thappar vs The State of Madras, ; ; Brij Bushan vs The State of Delhi, ; and Chintaman Rao vs The State of Madhya Pradesh, (1950) S.C.R. 759, held inapplicable.


judgement:
Special Leave Petition (Civil) No. 11525 of 1983 From the Judgment and Order dated the 10th March, 1983 of the Madhya Pradesh High Court in Misc.
(First) Appeal No. 88 of 1979 M. section Gujral and R. N. Poddar for the Petitioners.
The Judgment of the Court was delivered by THAKKAR, J.
Two mishaps, one 'to the train ' by which a passenger is travelling, and another, a sympthetic one, having nexus with the former, and going arm in arm with it, 'to the passenger ' himself, must occur in the course of the same transaction in order to attract liability of the Railway Administration under Section 82A of the Indian Railways Act, 1890, rightly contends counsel for the Railway.
The High Court, in our opinion, was in error in not upholding this unexceptionable proposition and in awarding compensation to a passenger on the premise that it was not essential to establish that there was an 'accident to the train, by which the passenger was travelling.
Counsel for the Railway was fair enough (we very highly appreciate this gesture) to state that it was on account of the erroneous interpretation placed by the High Court which was likely to give rise to untenable claims in future, rather than the relatively small amount awarded to the passenger, that the Railway was obliged to approach this Court by way of the present Special Leave Petition.
We declined to interfere with the operative order of the High Court in exercise of jurisdiction under article 136 of the Constitution of India having regard to the size of the award (both sides would have expended more than the amount at stake in litigation expenses if leave was granted) but observed that the view taken by the High Court in regard to the question of law involved in the matter was erroneous.
We now 558 proceed to articulate our reasons in support of the view expressed by us.
The question of interpretation of Section 82A of the Act has arisen in the following contextual backdrop.
The respondent was travelling by train in his capacity as a bonafide passenger.
While the bogie in which the respondent was travelling was being shunted at a Railway Station, the respondent accidentally fell down from the train, near the water column at the end of the platform, and his right hand was crushed by that part of the train which was being shunted As to how exactly the respondent sustained the injury, the versions of the parties differ.
The District Judge did not accept the version of the respondent that the bogie in which he was travelling received a sudden jerk and he fell down on that account.
The Railway Administration on the other hand contended that the respondent sustained the injury in the manner described in the relevant contemporaneous record (Assistant Station Master 's Diary) namely: "the injury was sustained by the appellant in going to the rear end of the train and possibly boarding one of the bogies which was being detached during the shunting operation and in this process he appears to have been hit by the water column when these bogies (a part of the train) were being moved during the shunting operation.
" Now Section 82A of the Act in so far as material reads thus: "82A Liability of Railway Administration in respect of accidents to trains carrying passengers (1) When in the course of working a railway accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers then, whether or not there has been any wrongful act, neglect or default on the part of the railway administration 559 such as would entitle a person who has been injured or has suffered loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding any other provision of law to the contrary, be liable to pay compensation to the extent set out in sub section (2) and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction or deterioration of animals or goods by the passenger and accompanying the passenger in his compartment or on the train, sustained as a result of such accident.
(2) This liability of a railway administration under this Section shall in no case exceed fifty thousand rupees in respect of any one person." (Emphasis added).
In interpreting Section 82A the High Court speaks thus: "The word accident therefore according to its ordinary meaning, which must be given to it and construed in the context in which it is used in Section 82A must mean to include within its ambit all incidents resulting in the death of or bodily injury to any passenger during his rail journey, occurring in the course of working a railway, if it involves a passenger train or a part thereof.
Any incident treated as railway accident involving a passenger train by the public at large and the railway staff should be treated to be such an accident, falling within the ambit of Section 82A.
Any mishap or misfortune in the working of a railway involving a passenger train or a part thereof resulting in the death of or personal injury to a passenger travelling therein, during his rail journey is an accident within the ambit of Section 82A.
This will, of course exclude any incident voluntarily and consciously invited by the passenger, i.e. suicide by jumping in front of the moving train.
" In our opinion the High Court has shut its eyes to the 560 significance of the essential precondition engrafted in Section 82A in regard to the 'accident, to the train '.
Why we say so will become evident presently.
A 'body scan ' of the aforesaid provision (Section 82A) reveals that: (1) The machinery of the Section is set in motion only provided there is an 'accident '.
(2) The accident must be 'to ' the train ' or 'part of the train ' carrying passengers.
(3) The accident to the train carrying passengers may be due to: (a) Collision of two trains one of which is the train carrying passengers; or (b) derailment of such train; or (c) other accident 'to ' such a train.
(4) In case any passenger travelling by such train dies, or sustains any injury to his person or property, as a result of or on account of such accident to the train or a part of the train carrying passengers, compensation to the extent provided in the Section will become payable.
(5) Such compensation will be payable regardless of whether or not the accident to the train carrying passengers is due to negligence or fault on the part of the railway administration.
That the 'accident ' envisioned by the first part of Section 82A (i) is an accident 'to ' the 'train ' or 'a part of the train ' is self evident.
The Section speaks of an accident by reason of either (1) collision or (2) derailment or (3) other accident to a train.
There is therefore no room for any ambiguity on that score.
561 So also it cannot be gainsaid that the accident, adverted to therein cannot refer to an accident to a passenger 'whilst ' on a passenger train even if the said train is not at all involved in any accident.
Common sense and reason buttress this proposition, for, the philosophy of Section 82A appears to be to turn an existing 'fault ' liability into a 'fault or no fault ' liability.
Why? Because a carrier who transports passengers as a part of his business, when he charges fare, impliedly guarantees to carry him with safety in so far as such safety is within his power.
It is within his power to transport the passenger without an accident to the train, for such an accident is not something which is ordinarily or in the normal course of events inherent in the running of a train.
And presumably in order to be 'fair ' to the passengers who pay the 'fare ' for a safe (safe from accident to the train) journey, the legislature, with an eye on social welfare, has provided for compensation by a summary proceeding and has made the liability fault free.
But to ensure safe travel is not to "insure" the passenger against accident to himself 'whilst ' travelling.
The distinction deserves to be spot lighted.
What 'is ' provided is compensation for death or injury caused or loss sustained on account of accident 'to ' the train.
What is 'not ' provided is compensation for death of the passenger 'whilst ' travelling or injury sustained by a passenger 'whilst ' travelling on the train, say, by reason of his own act, default, or misfortune, which has no nexus with the 'accident to the train '.
In other words what the Section does is to turn a liability which was 'contingent on fault ' into an 'absolute ' liability.
What, however, it does not do, is to provide a free 'insurance cover ' to the person and property of a passenger so that compensation can be claimed for the accidental death of or injury to the passenger and/or loss or damage to his property even when there has been no 'accident ' to the train carrying such a passenger.
What is the position when a passenger falls down from the train while the bogie, in which he is travelling, is being shunted? Say, when he is standing in the door frame or his trying 562 to get in or get out of the train, on account of the jolt to the bogie at the time of impact with the rest of the train? Is it an accident 'to the train ' so as to attract the liability under Section 82A? The answer substantially depends on the answer to the question: what is an 'accident '? An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place.
It is the happening of the unexpected, not the happening of the expected, which is called an accident.
In other words an event or occurrence the happening of which is ordinarily expected in the normal course by almost every one undertaking a rail journey cannot be called an 'accident '.
But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident.
Now a collision of two trains or derailment of a train or blowing up of a train is something which no one ordinarily expects in the course of a journey.
That is why it falls within the parameters of the definition of accident.
But a jolt to the bogie which is detached from one train and attached to another cannot be termed as an accident.
No shunting can take place without such a jerk or an impact atleast when it is attached or annexed to a train by a shunting engine.
If a passenger tumbles inside the compartment or tumbles out of the compartment when he is getting inside the compartment, or stepping out of the compartment, it cannot be said that an accident has occurred to the train or a part of the train.
It is doubtless an accident 'to the passenger '.
But not to the train.
Otherwise it will have to be held that every time a bogie is detached in the course of shunting operation and attached or annexed to a train in the course of the said operation the train meets with an accident.
And if such an event or occurrence is to be ordinarily expected as a part of every day life, it cannot be termed as an accident accident to the train (or a part of it).
In the case of a mishap to the passenger in such circumstances it cannot be said that there has been an accident to the train and the mishap has nexus with it.
The liability under Section 82A will not therefore be attracted in such cases.
Or in the case of a mishap to a passenger in similar circumstances, such as an injury sustained on account of falling down whilst getting on or off a running or stationary train or sustained when he slips in a compartment or when something falls on him whilst travelling.
All such 563 mishaps, when not connected with the accident to the train, or a part of it, would be accidents to the passenger only.
And until both the mishaps take place, one to the train, and another, a sympathetic, one to the passenger, the liability under Section 82A of the Act will not be attracted.
So also, unless the loss or damage to the property of a passenger is attributable to the accident to the train, liability under Section 82A will not be attracted.
In our opinion, Section 82A of the Indian Railways Act, 1890 is not capable of the rather strained interpretation placed by the High Court and the true position of law is as unfolded in the discussion made heretobefore.

dataset_name: IN-Abs

summary:
The respondent was travelling by train as a bona fide passenger.
While the bogie in which he was travelling was being shunted at a Railway Station, the respondent fell down from the train near the water column at the end of the platform and his right hand was crushed by that part of the train which was being shunted.
The District Judge did not accept the version of the respondent that the bogie in which he was travelling received a sudden jerk and that he fell down on that account, and dismissed the application for compensation, In appeal, the High Court, held that the word 'accident ' in section 82A must mean to include within its ambit all incidents resulting in the death of or bodily injury to any passenger during his rail journey, occuring in the course of working of a railway, if it involves a passenger train or apart thereof, and awarded compensation on the premise that it was not essential to establish that there was an 'accident to the train ' by which the passenger was travelling.
In the Appeal to this Court, on the question of liability of the Railway Administration under Section 82A of the Indian Railways Act, 1890.
^ HELD: 1.
The liability under Section 82A will not be attracted in the case of a mishap or injury sustained by a passenger on account of falling down whilst getting on or off a running or stationary train or sustained when he slips in a compartment or when something falls on him whilst travelling.
All such mishaps, when not connected with the accident 556 to the train, or a part of it, would be accidents to the passenger only.
And until both the mishaps take place, one to the train, and another, a sympathetic one to the passenger, the liability under section 82A of the Act will not be attracted.
So also, unless the loss or damage to the property of a passenger is attributable to the accident to the train, liability under Section 82A will not be attracted.
[562G 563A] In the instant case, liability under Section 82A will not be attracted, as it cannot be said that there has been an accident to the train and the mishap has nexus with it.
[562G] 2.
The philosophy of Section 82A appears to be to turn an existing 'fault liability into a 'fault ' or no fault ' liability.
And presumably in order to be 'fair ' to the passengers who pay the 'fare ' for a safe (safe from accident to the train) journey, the legislature, with an eye on social welfare, has provided for compensation by a summary proceeding and has made the liability fault free.
[561B D] 3.
That the 'accident ' envisioned by the first part of Section 82A(1) is an accident 'to ' the 'train ' or 'a part of the train ' is self evident.
The Section speaks of an accident by reason of either (1) collision or (2) derailment or (3) other accident to a train.
[560G H] 4.
What is provided is compensation for death or injury caused or loss sustained on account of accident 'to ' the train.
What is 'not ' provided is compensation for death of the passenger 'whilst ' travelling or injury sustained by a passenger 'whilst travelling on the train, say by reason of his own act default or misfortune, which has no nexus with the 'accident ' to the train. ' What the section does is to turn a liability which was contingent on fault into an 'absolute ' liability.
What however, it does not do, is to provide a free insurance cover to the person and property of a passenger so that compensation can be claimed for the accidental death of or injury to the passenger and or loss or damage to his property even when there has been no 'accident ' to the train carrying such a passenger.
[561E G] 5.
An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place.
It is the happening of the unexpected, not the happening of the expected, which is called an accident.
An event or occurrence the happening of which is ordinarily expected in the normal course by almost every one undertaking a rail journey cannot be called an 'accident '.
But the happening of something which is not inherent in the normal course of events and which is not ordinarily expected to happen or occur is called a mishap or an accident.
A collision of two trains or derailment of a train or blowing up of a train is something which no one ordinarily expects in the course of a journey.
That is why it falls within the parameters of the definition of accident.
But a jolt to the bogie which is detached from one train and attached to another cannot be termed as an accident.
No shunting can take place without such a jerk or an impact at least when it is attached or annexed to a train by a shunting engine.
if a passenger 557 tumbles inside the compartment or tumbles out of the compartment when he is getting inside the compartment or stepping out of the compartment it cannot be said that an accident has occurred to the train or part of the train.
It is doubtless an accident 'to the passenger '.
But not to the train.
[562B F]


judgement:
tition Nos.
4480 of 1980 and 2962 of 1981 (Under article 32 of the Constitution of India) S.N. Jha for the Petitioner in W.P. 4480/80.
Girish Chandra for the Petitioner in W.P. 2962/81.
M.M. Abdul Khadar and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
The petitioners, Prem Prakash and Dal Chand Anand, are members of a scheduled caste.
By these writ petitions under article 32 of the Constitution, they ask for a writ of mandamus directing the respondents to appoint them against 567 the vacancies reserved for members of Scheduled Castes and Scheduled Tribes in the Delhi Judicial Service.
They also ask for a writ of prohibition to the effect that the respondents should not fill up the reserved vacancies for which they competed, either by holding a fresh examination or by appointing candidates who had qualified in any previous examination.
The Union of India, the Administrator of the Union Territory of Delhi and the Registrar of the Delhi High Court are respondents 1, 2 and 3 to these petitions.
On September 26, 1979, the Registrar of the Delhi High Court published a newspaper advertisement that the Delhi High Court will hold an examination for recruitment of officers to the Delhi Judicial Service on January 11, 12 and 13, 1980 in the time scale pay of Rs. 650 1200.
The advertisement stated that the total number of vacancies was 16, out of which 2 were reserved for Scheduled Castes and 1 for Scheduled Tribes.
In addition, according to the advertisement, there were 2 carry forward vacancies for members of Scheduled Tribes.
In case of non availability of Scheduled Tribes candidates, those vacancies were liable to be transferred as reserved vacancies for Scheduled Castes candidates.
A competitive examination was held in pursuance of the said advertisement in accordance with the Delhi Judicial Service Rules, 1970 which were framed by the Lieutenant Governor of Delhi in consultation with the High Court of Delhi.
Rules 18 and 28 read thus: "Rule 18 The Selection Committee shall prepare a list of candidates in order of merit.
Such list will be forwarded to the Administrator for filling the vacancies then existing or any vacancy that may occur within a period of one year of the preparation of the list." "Rule 28 Appointments made to the Service by competitive examination shall be subject to order regarding special representation in the Service for Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time.
" The Brochure on 'Reservation for Scheduled Castes and Scheduled Tribes in Services ', (5th ed., 1978) issued by the Government of India, Dept. of Personnel and Administrative Reforms, Ministry of Home Affairs contains orders and instructions issued by 568 the Government of India from time to time on the question of reservation of vacancies for Scheduled Castes and Scheduled Tribes candidates.
The relevant paragraphs of that Brochure read as follows: "2.1 Subject to Exemptions and Exclusions referred in Chapter 3, the following reservations are in force in favour of SC and ST in filling vacancies in posts and services under the Govt.
of India.
(1) Direct recruitment on an all India basis: SC ST (a) By open competition(i.e., 15% 71/2% through the UPSC or by means of open competi tive test held by any other authority)".
"4.2 The actual number of vacancies to be reserved for SC and ST in any recruitment should be determined on the basis of the points in the roster and also taking into account the reservations brought forward from the previous year, the total number of reservations not exceeding normally 50% of the total number of vacancies filled in that year.
However, the carry forward reserved vacancies would be available together with the current reserved vacancies for utilisation even where the total number of such reserved vacancies exceed 50% of the vacancies filled in that year provided, the over all representation of SC/ST in the total strength of the concerned grade or cadre is found to be inadequate, i.e., the total number of SC/ST candidates in that grade has not reached the prescribed percentage of reservation for SC/ST respectively, in the grade, as a whole".
"9.2 Advertisement of reserved vacancies for posts filled by direct recruitment through examination: Where direct recruitment is made through examination, for reserved as well as unreserved vacancies, a single advertisement would be issued for such examination but the number of the vacancies reserved for SC and ST would 569 be specified clearly in it and in case the required number of SC or ST candidates are not available even by applying relaxed standards for the vacancy/vacancies reserved for them, the remaining vacancy/vacancies should be filled by general candidate after dereservation of such vacancy/vacancies, subject to the reservations being carried forward as required." "11.1 Carry over of reservations: If a sufficient number of reserved communities candidates fit for appointments against reserved vacancies are not forthcoming, such vacancies can be dereserved after following prescribed procedure for dereservation as in Chapter 10 and thereafter they can be filled by candidates of other communities, but the reservations shall be carried forward to subsequent three years of recruitment (except in the case of. . . . . ) where there will be no carry forward of unfilled reserved vacancies, the total number of reservations not exceeding normally 50% of the total number of vacancies to be filled in that year.
The surplus, if any, above 50% when the ceiling of 50% is applied, shall be carried forward to the subsequent year of recruitment, subject, however, to the condition that the particular vacancies carried forward do not become time barred due to their becoming more than three years old.
However, the carried forward reserved vacancies would be available together with the current reserved vacancies for utilisation even where the total number of such reserved vacancies exceeds 50% of the vacancies filled in that year provided, the overall representation of SC & ST in the total strength of the concerned grade or cadre is found to be inadequate, i.e., the total number of SC/ST candidates in that grade has not reached the prescribed percentage of reservation for SC/ST respectively, in the grade, as a whole".
"Note (2): Any recruitment of SC/ST candidates will first be counted against the additional quota brought forward from the previous years in their chronological order.
If SC/ST candidates are not available for all the vacancies, the older, carried forward vacancies should be filled first 570 and the comparatively later carried forward vacancies should be further carried forward".
The petitioners appeared for the examination and passed it, though by relaxation of the minimum standard prescribed for passing the examination.
They were then asked to appear at the viva voce test conducted by the Selection Committee, which they did.
Since, only seven open candidates and four Scheduled Caste candidates qualified in these tests, the High Court prepared a merit list of 11 candidates as against 16 vacancies which were advertised.
Dal Chand Anand, who is petitioner in Writ Petition No. 2962 of 1981, was 10th in the merit list while Prem Prakash, who is petitioner in Writ Petition No. 4480 of 1980, was 11th in that list.
They were respectively 3rd and 4th in the merit list amongst the 4 Scheduled Caste Candidates.
Since they did not figure in the final list of candidates selected by the Administrator, they have filed these petitions to challenge their exclusion and non appointment.
A counter affidavit has been filed on behalf of respondent 3 by Shri Ramesh Sharma, Assistant Registrar of the Delhi High Court.
The position taken up by the Delhi High Court in that affidavit may be summarized thus: The Delhi Judicial Service was constituted on August 2, 1971.
Rule 28, which provides for special representation for members of the Scheduled Castes and Scheduled Tribes, is applicable to the recruitment made through a competitive examination only and, therefore, no reservations were made either in favour of Scheduled Castes or Scheduled Tribes at the stage of the initial recruitment to the Service, which was not by competitive examination.
Representations were, however, made to the Ministry of Law and Justice as a result of which, the Delhi Administration was instructed administratively to take suitable steps, if necessary by amendment of the recruitment Rules, so as to provide for reservations for the Scheduled Castes and Scheduled Tribes at the initial constitution of the Service also.
In a meeting of officers of the Ministry of Law and Justice, the Delhi Administration and the High Court, which was held in November, 1971, it was decided that 15 per cent of the vacancies filled in the Delhi Judicial Service should be reserved for Scheduled Castes and 71/2 per cent for Scheduled Tribes and that, vacancies which ought to have been reserved for these categories at the initial recruitment should be carried forward to the following year.
The statutory rules were not amended in pursuance of this decision, which is but one instance of the wide chasm which exists between the lip service paid to the need for 571 reservations for backward classes and the actual performance in terms of social awareness.
The counter affidavit says that the 6th competitive examination at which the petitioners appeared was held in 1980.
16 Vacancies were notified, out of which 11 were for open candidates, 2 for Scheduled Castes and 3 for Scheduled Tribes.
Two out of the three vacancies reserved for Scheduled Tribes were interchangeable in the sense that, if candidates from Scheduled Tribes were not available, those vacancies could be added to the quota reserved for Scheduled Castes.
The counter affidavit of the High Court contains a candid admission in paragraph 17 that when, in 1980 and 1981, the High Court examined the question of reservation of vacancies for Scheduled Castes and Scheduled Tribes right from the stage of initial constitution of the Service in 1971, it found that "there was apparently a violation of statutory Rules and the vacancies had been wrongly calculated by the Registry of the High Court".
The High Court rectified its error by recommending the appointment of 2 Scheduled Caste candidates for the 1980 vacancies from amongst the candidates who had qualified in the 1979 competitive examination but who, on account of a mistaken calculation, were not appointed to the reserved seats.
We are happy to find that consistency in adhering to errors is not the hobgoblin of our High Courts.
The factual position which emerges out of the averments in the Writ Petitions and the counter affidavit filed on behalf of the High Court is that though 16 vacancies were advertised, only 11 vacancies could possibly be filled up.
The reason is that only 11 candidates passed the competitive examination.
Seven out of these 11 had competed for open seats while four had competed for seats reserved for the Scheduled Castes If the four reserved seats could be filled up by the appointment thereto of candidates who appeared in the 1980 examination, there would be no difficulty in accommodating the petitioners because.
they are 10th and 11th in the merit list of 1980.
Normally, vacancies which are intended to be filled by holding an examination in any particular year, are filled from amongst candidates who had appeared for that examination.
The situation in this case is, however, complicated by the fact that two Scheduled Caste candidates, Ajaib Singh and Ram Swarup, who had appeared for the competitive examination in the previous year, that is in 1979, were wrongly denied appointments.
They had 572 passed the examination and reserved vacancies were available in which they could and ought to have been appointed.
Ajaib Singh filed a Writ Petition in this Court (No 312 of 1980) which was allowed by us by an order dated September 2, 1981.
That order reads thus : "We are informed that the Delhi High Court has decided in a full Court meeting to recommend the names of the petitioner Ajaib Singh and another candidate Ram Swarup, for appointment to the post for which they had applied, namely, the post of the Sub Judge.
The duration of the panel which was prepared for the year 1979 expired on August 16, 1980, That makes it necessary to direct that the names of the petitioner Ajaib Singh and the other candidate Ram Swarup should be included in the panel for the year 1979 and the appointment of these persons be made by the Delhi Administration despite the expiration of the period of that panel." The High Court took the particular decision in a full Court meeting because it found, and rightly so, that Ajaib Singh and Ram Swarup were denied appointments due to an error on the part of its Registry in calculating the number of reserved seats which were available in the year 1979.
The error committed by the High Court Registry is to be regretted and we hope that errors which betray lack of care in matters which make or mar a person will not be repeated.
But the question which arose for the administrative consideration of the High Court was whether the injustice done to the two candidates should be perpetuated on the specious plea that, after all, the High Court had taken a certain decision and that decision must be respected, whether it is administrative or judicial.
We are glad to find that the High Court did not stand on a false sense of prestige and rectified the injustice done to the two candidates by correcting an error for which they were not to blame.
On our part, we considered it unfair that they should be denied appointments and be made to suffer injustice for the error of the Registry in applying the reservation formula.
The counter affidavit filed on behalf of the High Court shows that the first two seats, from out of the four seats which were available to the Scheduled Caste candidates in the year 1980, have been allotted to Ajaib Singh and Ram Swarup, subject to the result of these writ petitions.
It is ironical that the rectification of injustice done to some 573 two persons should result in injustice to two others.
But, that is exactly what has happened in this case, as if to illustrate that one man 's food is another man 's poison.
The contention of the High Court is that though the petitioners were in the merit list of 11 persons for the year 1980, they could not be appointed as Sub Judges because, Ajaib Singh and Ram Swarup who were wrongly excluded from the reserved appointments of 1979 had to be accommodated in the merit list of 1980 and, after adjusting them against the reserved vacancies of 1980, no reserved vacancies were left for the candidates who were placed in the merit list of 1980.
When, in furtherance of the decision taken by the Full Court meeting of the High Court, we directed on September 2, 1981 that the two candidates of 1979 must be included in the 1979 panel and appointed as Sub Judges despite the expiry of the duration of that panel, little did we realise, and it was not so stated before us, that the appointment of those two candidates of 1979 will mean the ouster of these two candidates of 1980.
Such a strange result is to be avoided, if not at all costs, at least within the framework of the Rules and the administrative instructions governing this matter.
Justice to one group at the expense of injustice to another is perpetuation of injustice in some form or the other.
The counter affidavit of the Assistant Registrar explains the arithmetic of the High Court decision as to why the petitioners were excluded from the selections of 1980.
History has the habit of repeating itself and, with great respect, the High Court has once again fallen into an error while deciding whether, after accommodating Ajaib Singh and Ram Swarup in the 1980 selection, reserved vacancies were still available in which the petitioners could be appointed.
The explanation of the High Court may best be stated in the words of its Assistant Registrar.
He says in paragraph 21 of his counter affidavit : "It is submitted that in view of the fact that only 11 candidates qualified in the examination of which 7 were general candidates.
Therefore, in accordance with the advice contained in the D. O. letter No. 36034/19/79 Est (SCT) dated August 13, 1979 of the Department of Personnel and Administrative Reforms, as against 7 general candidates only one Scheduled Caste candidate could be taken and accordingly, 7 general candidates and 1 Scheduled Caste candidate and in addition 2 more Scheduled Caste candidates as against 2 carried forward exchangeable vacancies 574 of Scheduled Tribes were recommended for appointment to the Delhi Judicial Service.
" The counter affidavit says that the name of Dal Chand Anand, who is petitioner in Writ Petition No. 2962 of 1981, was recommended for appointment since he was 3rd amongst the four Scheduled Caste candidates but that the, said recommendation was made under an erroneous belief that a vacancy was available in which he could be appointed.
When the mistake was realised by the High Court, his name was dropped.
In so far as the other petitioner, Prem Prakash, is concerned, the explanation of the Assistant Registrar is that no vacancy was available at all in which he could be appointed since, he was 4th in the list of Scheduled Caste candidates.
The error from which the calculation of the High Court suffers is that the number of vacancies available for the Scheduled Caste candidates was fixed by it according to the number of candidates who qualified for the general seats.
The counter affidavit states expressly that the availability of vacancies for candidates of the reserved category was determined on the basis that only 7 candidates had qualified for the general seats.
This, according to us, is neither justified by the Rules and administrative instructions nor indeed does such a method of fixation of reserved vacancies disclose any acceptable basis.
16 Vacancies were advertised in the first instance out of which, 11 were for general candidates and 5 for reserved categories.
It may be assumed that the Administration is not bound to fill all the vacancies which are advertised and indeed, if the number of candidates who qualify in the competitive examination is less than the number of vacancies which are advertised, it is obvious that the vacancies which can be filled will be less than the vacancies which are advertised.
But the availability of vacancies for the reserved categories cannot be made to depend upon the accidental circumstance of how many candidates have qualified for general seats.
In the first place, that would be contrary to the instructions contained in paragraphs 4.2 and 9.2 of the Brochure of 1978.
Secondly, such a method will lead to the absurd and undesirable consequence that no candidate of the reserved category will be appointed at all, if only one or two candidates from the general category qualify in the examination.
The correct approach is to fix the number of vacancies available for the reserved candidates on the basis of the total number of vacancies which are intended to be filled at any particular point of time.
According to paragraph 575 2.1 of the Brochure, 15% of the total vacancies are required to be reserved for the Scheduled Caste candidates and 7 1/2% for the Scheduled Tribe candidates.
Therefore, the High Court could not have fixed the number of vacancies available to the reserved candidates on the basis that only 7 persons had qualified for the general seats.
If a decision was taken to fill 10 or 11 posts only, the number of reserved vacancies should have been fixed upon that basis and not on the basis that only 7 candidates had qualified for the general seats.
The High Court should have corrected its error in these two cases with the same alacrity with which it corrected its error in the case of the two Scheduled Caste candidates who had qualified in 1979.
There is an additional reason in support of the view which we are disposed to take.
On February 8, 1982 the Ministry of Home Affairs, Department of Personnel and Administrative reforms, issued a notification to the following effect : "Sub: Validity period of lists of selected candidates prepared on the basis of direct recruitment/Department competitive Examination.
The undersigned is directed to say that reference are being received from time to time from Ministries/Deptts.
enquiring as to what should be the validity period of a list of selected candidates prepared on the basis of direct recruitment or Departmental competitive Examination Normally, in the case of direct recruitment a list of selected candidates is prepared to the extent of the number of vacancies (other persons found suitable being put on a reserve list, in case some of the persons on the list of selected candidates do not become available for appointment).
Similarly, in the case of Departmental competitive Examinations the list of selected candidates has to be based on the number of vacancies on the date of declaration of results, as the examination is competitive and selection is based on merit.
A problem may arise when there is a fluctuation in the vacancies after the list of selected candidates is announced.
The matter has been carefully considered.
Normally, recruitment whether from the open market or through a 576 Departmental competitive Examination should take place only when there are no candidates available from an earlier list of selected candidates.
However, there is a likelihood of vacancies arising in future: in case, names of selected candidates are already available, there should either be no further recruitment till the available selected candidates are absorbed or the declared vacancies for the next examination should take into account the number of persons already in the list of selected candidates awaiting appointment.
Thus, there would be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies, either by the method of direct recruitment or through a Departmental Competitive Examination.
Once a person is declared successful according to the merit list of selected candidates, which is based on the declared number of vacancies, the appointing authority has the responsibility to appoint him even if the number of the vacancies undergoes a change, after his name has been included in the list of selected candidates.
Thus, where selected candidates are awaiting appointment, recruitment should either be postponed till all the selected candidates are accommodated or alternatively intake for the next recruitment reduced by the number of candidates already awaiting appointment and the candidates awaiting appointment from a fresh list from the subsequent recruitment or examination.
Ministry of Finance, etc.
are requested to bring the above instructions to the notice of all the appointing authorities under them for information and guidance.
Sd/ (J. K. Sarma) Director.
" It is clear from this notification that if selected candidates are available from the previous list, there should either be no further recruitment until those candidates are absorbed or, in the alternative, vacancies which are declared for the subsequent years should take into account the number of persons who are already in the list of selected candidates who are still awaiting appointment.
The notification further shows that there should be no limit on the period of validity of the list of selected candidates prepared to the extent 577 of declared vacancies.
Once a person is declared successful according to the merit list of selected candidates, the appointing authority as the responsibility to appoint him, even if the number of vacancies undergoes a change after his name is included in the list of selected candidates.
We must record our dissatisfaction at the fact that the Rules of the Delhi Judicial Service have not been amended so as to bring them in conformity with the administrative instructions and notifications which have been issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms, from time to time.
The situation is virtually chaotic for which, we must clarify, the High Court of Delhi cannot be blamed.
It is surprising that though 13 years have gone by since the Delhi Judicial Service was established, no attention whatsoever has been paid to a matter which concerns the future of a large number of young men and women who aspire for posts in the Judiciary.
The instant case and the cases of Ajaib Singh and Ram Swarup show that the worst sufferers of this inaction are members of the Scheduled Castes and Scheduled Tribes.
Sooner the Rules are amended, easier will it be for the High Court to administer and superintend the affairs of the subordinate Judiciary with the object of achieving the ideals enshrined in Articles 16 (4), 38 and 46 of the Constitution.
Though the Rules ought to be amended, that does not mean that administrative instructions can be ignored by the High Court until that is done.
The Assistant Registrar says in paragraph 9 of his counter affidavit that "administrative instructions cannot be allowed to prevail over the statutory rules.
" That would be correct provided that the administrative instructions are contrary to the statutory rules.
In this case, Rule 28 itself says that "Appointments made to the service by competitive examination shall be subject to order regarding special representation in the service for Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time.
" Therefore, far from their being any inconsistency between the statutory rules and the administrative instructions it is clear that the two have to be read together.
These writ petitions must therefore succeed.
Our reasons for allowing the petitions may be summed up thus: In the first place. , in the process of remedying injustice which was done to the two scheduled caste candidates of 1979, no injustice can be caused to the petitioners who had qualified for the reserved seats in the exami 578 nation held in 1980.
Secondly, the quota of seats available for reserved candidates cannot be made to depend on the fortuitous circumstance as to how many candidates have qualified for the general seats.
The reserved quota must be fixed on the basis of the total number of vacancies which are to be filled at a given point of time.
Thirdly, the notification of 1982 is good authority for adjusting the petitioners against the reserved vacancies for the year 1980.
The statutory rules and administrative instructions have to be read together by reason of Rule 28.
We accordingly direct that the High Court and the Delhi Administration will take expeditious steps for notifying the appointments of the petitioners, Dal Chand Anand and Prem Prakash, to the Delhi Judicial Service.
For purposes of seniority the former will rank higher than the latter because that was their orders of seniority in the original merit list of 1980.
Since they have not actually worked as Sub Judges during the intervening period, they will not be entitled to any remuneration for that period.
They will however rank for seniority in the Delhi Judicial Service on the footing that they were appointed when they ought to have been appointed, that is to say, when the other candidates were appointed on the basis of the result of the 1980 examination.
In all other respects, including probation, their appointment will be subject to the provisions of the relevant rules and regulations.
In the result, the writ petitions are allowed to the extent indicated above.
Respondents 1 and 2 will pay to the petitioners the costs of these petitions.
M.L.A. Petitions allowed.

summary:
Rule 18 of the Delhi Judicial Service Rules, 1970 (for short, the Rules) says that the Selection Committee shall prepare a list of candidates in order of merit and forward it to the Administrator for filling the vacancies then existing or any vacancy that may occur within a period of one year of the preparation of the list.
Rule 28 of the Rules lays down that appointments made to the Service by competitive examination shall be subject to order regarding special representation in the Service for Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time.
Paragraph 2.1 of the Brochure on "Reservation for Scheduled Castes and Scheduled Tribes in Services" issued by the Central Government requires that 15 per cent of the total vacancies are to be reserved for Scheduled Caste candidates and 71/2 for Scheduled Tribe candidates.
Paragraph 4.2 of the Brochure prescribes that the actual number of vacancies to be reserved for Scheduled Castes and Scheduled Tribes in any recruitment should be determined on the basis of points in the roster and also taking into account the reservations brought forward from the previous year.
On 8th February, 1982, the Government of India issued a Notification declaring that there would be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies either by the method of direct recruitment or through a departmental competitive examination and that once a person is declared successful according to the merit list of selected candidates which is based on the declared number of vacancies, the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change after his name has been included in the list of selected candidates.
565 In 1980, Respondent No. 3, High Court of Delhi notified 16 vacancies of Sub Judges for being filled through competitive examination in the Delhi Judicial Service 11 vacancies were for open candidates, 2 for Scheduled Castes and 3 for Scheduled Tribes which included two carried forward vacancies also.
The carried forward vacancies were interchangeable in the sense that if candidates from Scheduled Tribes were not available, the vacancies could be added to the quota reserved for Scheduled Castes.
The petitioners, Dal Chand Anand and Prem Prakash, who were members of Scheduled Caste secured 10th and 11th position respectively in the merit list of 11 candidates who qualified the examination and viva voce test held in pursuance of the above notification.
They were Serial No. 3 Scheduled Caste candidates.
Since the petitioners did not figure in the final list of candidates selected by the Administrator, Respondent No. 2, they filed present writ petitions under article 32 of the Constitution to challenge their exclusion and non appointment.
Respondent No. 3 contended (1) that the petitioners were excluded from the selections of 1980, on account of the fact that only 11 candidates qualified in the examination of which 7 were general candidates and therefore as against 7 general candidates only 1 Schedule Caste candidate could be appointed; and (ii) That though the petitioners were in the merit list of 11 persons for the year 1980, they could not be appointed as Sub Judges because two Scheduled Caste candidates who were wrongly excluded from the reserved appointments of 1979 had to be accommodated in the merit list of 1980 and after adjusting them against the reserved vacancies of 1980, no reserved vacancies were left for the petitioners.
Allowing the Writ Petitions, ^ HELD: (1) The error from which the calculation of the High Court suffers is that the number of vacancies available for the Scheduled Caste candidates was fixed by it according to the number of candidates who qualified for the general seats.
This is neither justified by the Rules and administrative instructions nor indeed does such a method of fixation of reserved vacancies disclose any acceptable basis.
The quota of seats available for reserved candidates cannot be made to depend on the fortuitous circumstance as to how many candidates have qualified for the general seats, since that would be contrary to the instructions contained in paragraph 4.2 and 9.2 of the Brochure of 1978 and such a method will also lead to the absurd and undesirable consequence that no candidate of the reserved category will be appointed at all if only one or two candidates from the general category qualify in the examination.
The correct approach is to fix the number of vacancies available for the reserved candidates on the basis of the total number of vacancies which are intended to be filled at any particular point of time.
Therefore, the High Court could not have fixed the number of vacancies available to the reserved candidates on the basis that only seven persons had qualified for general seats.
If a decision was taken to fill 10 or 11 posts only, the number of reserved vacancies should have been fixed upon that basis and not on the basis that only 7 candidates had qualified for the general seats.
[574D E, G H, 575A B] 566 (2) In the process of remedying injustice which was done to the 2 Scheduled Caste candidates of 1979, no injustice can be caused to the petitioners who had qualified for the reserved seats in the examination held in 1980.
Such a strange result is to be avoided if not at all costs, at least within the framework of the Rules and the administrative instructions governing the matter.
Justice to one group at the expense of injustice to another is perpetuation of injustice in some form or the other.
[577H, 57 D] (3) The statutory rules and administrative instructions have to be read together unless they are contrary to each other.
In the instant case, since there is no in consistency between the statutory rules and the administrative instructions, it is clear that the two have to be read together by reason of Rule 28.
Though the Rules of the Delhi Judicial Service have not been amended so as to bring them inconformity with the administrative instructions and notifications which have been issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms, from time to time, that does not mean that administrative instructions can be ignored by the High Court until that is done.
Therefore, the Notification of 1982 is good authority for adjusting the petitioners against the reserved vacancies for the year 1980, since it is clear from the Notification (i) that if selected candidates are available from the previous list, there should either be no further recruitment until those candidates are absorbed or, in the alternative, vacancies which are declared for the subsequent years should take into account the number of persons who are already in the list of selected candidates who are still awaiting appointment and (ii) that there should be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies and once a person is declared successful according to the merit list of selected candidates, the appointing authority has the responsibility to appoint him, even if the number of vacancies undergoes a change after his name is included in the list of selected candidates.
[577G, B D, 576G H; 577A]


judgement:
l Leave Petition (Civil) No. 3786 of 1982.
From the Judgement and Order dated the 21st April, 1978 of the Calcutta High Court in Income Tax Reference No. 573 of 1971.
K.C. Dua and Miss A. Subhashini for the Petitioner.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This Special Leave Petition is filed under Article 136 of the Constitution by the Commissioner of Income tax, West Bengal, Calcutta against the decision of the High Court of Calcutta in Income tax Reference No. 573 of 1971.
The respondent, Dalhousie Properties Limited was an assessee under the Income tax Act, 1961 (hereinafter referred to as 'the Act ') in the assessment year 1966 67, the relevant previous year being the year ending March 31, 1966.
It owned extensive properties and its income from rents realised was substantial.
In the assessment year in question, the assessee claimed a deduction of Rs. 1,78,784 which represented the tax levied by the Corporation of Calcutta as a deductible item while computing its income from house property.
It appears that the assessee had questioned the extent of liability which had just then been enhanced before the Corporation and on that account had not actually paid the whole of it.
This led to a difference of opinion between the department and the assessee.
In course of time the dispute regarding the assessment of the liability of the assessee under the Act reached the Income tax Appellate Tribunal.
The Tribunal held that the total liability for municipal taxes which the assessee could claim by way of deduction under the proviso to section 23 (1) of the Act in respect of the buildings during the accounting year was Rs. 1,78,784 and that the said amount was to be allowed as a deduction irrespective of the fact that the assessee had raised a dispute about the extent of the liability before the Corporation and that the assessee had not paid the whole of it to the Corporation of Calcutta.
Aggrieved by the 615 above decision of the Tribunal, the Department got the following question referred to the High Court under section 256 (1) of the Act: "Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the full taxes levied by the Corporation of Rs. 1,78,784 should be deducted under section 23 (1) of the Income tax Act, 1961? The High Court answered the above question in the affirmative and in favour of the assessee.
This petition is filed against the said decision of the High Court.
The material part of section 23, as it stood in the assessment year 1966 67 read as follows: "23.
Annual value how determined. (1) For the purposes of section 22 the annual value of any property shall be deemed to be the sum for which the property might reasonably be expected to let from year to year: Provided that where the property is in the occupation of a tenant and the taxes levied by any local authority in respect of the property are under the law authorising such levy payable wholly by the owner, or partly by the owner and partly by the tenant, a deduction shall be made equal to the part if any of the tenant 's liability borne by the corner. . " Under section 22 of the Act what is chargeable to income tax under the head 'Income from house property ' is the annual value of property consisting of any buildings or lands appurtenant thereto of which the assessee is the owner other than such portions of such property as he may occupy for the purpose of any business or profession carried on by him the profits of which are chargeable to income tax.
As explained by this Court in Bhagwan Dass Jain vs Union of India(1) income tax is payable under this provision in respect of the bona fide annual value of the property determined as provided in section 23 of the Act.
Section 23 (1) laid down the principle according to which the annual value of any property could be 616 nationally determined during the relevant period.
First, the sum for which the property in question might reasonably be expected to let from year to year had to be ascertained.
From that as per the proviso to section 23 (1) of the Act where the property was in the occupation of a tenant, if taxes levied by a local authority in respect of it were to be borne by the owner, they had to be deducted to the extent mentioned therein and the balance should be deemed to be the annual value which would be liable to tax subject to the other provisions of the Act.
The object of the proviso was that where the tenant of the property had undertaken to bear any part of the taxes levied by the local authority, the owner could not be allowed to claim deduction in respect of it.
It may be stated here that the proviso to section 23 (1) as it stood at the relevant time had not been happily worded.
It has been since suitably modified.
The only point canvassed before the High Court and before us is whether the expression 'borne by the owner ' would refer to the amount of tax which the owner was liable to pay or the amount of tax which he had actually paid in discharge of the said liability.
It is true that the expression 'borne ' may refer to either the liability which a person is liable to discharge or the actual sum paid by him in discharge of that liability.
But we agree with the High Court that in the present context it should be construed as referring to the former namely, the amount of tax which the owner is liable to discharge as stated in the proviso to section 23 (1) of the Act and not the latter one.
The reason for taking this view flows from the scheme of the Act itself.
As mentioned earlier, the expression 'annual value ' is a national figure and it does not refer to any actual receipt.
It is arrived at by deducting the taxes levied by a local authority for paying which the owner has assumed the responsibility from the sum for which the property might reasonably be expected to let from year to year.
It is reasonable to treat the annual value of a house property as remaining more or less constant during the entire period covered by any given previous year except perhaps where the tax liability itself is modified by the local authority concerned.
It cannot keep on changing as and when some payment towards the tax liability imposed by the local authority is made by the assessee during the year.
In order to ensure that there is no unwarranted fluctuation in the annual value during the year in question such actual payment should be eliminated from consideration but only the tax liability imposed by the local 617 authority which the assessee is liable to pay as contemplated by the proviso to section 23(1) of the Act should be allowed to be deducted under the said proviso.
It is not, therefore, necessary that the assessee should have actually paid the amount of tax in question before such deduction is claimed.
The position is not also different even where the assessee has disputed the correctness of the levy be.
fore the local authorities concerned.
A mere expection of success in the proceedings in which the asessee has disputed such levy does not disentitle him to the statuory deduction on the basis of the levy which is in force.
The High Court was, therefore, right in deciding the case in favour of the assessee.
The Special Leave Petition is therefore, dismissed.
H.S.K. Petition dismissed.

summary:
While determining the annual value of the property which was liable to income tax for the assessment year 1966 67 under the head "Income from house property" under section 22 of the Income tax Act, 1961, the respondent assessee claimed that the total liability for municipal taxes levied by the corporation, whether actually paid or not and whether the extent of liability questioned or not, was deductible under the priviso to section 23 (1) of the Act.
The department rejected the claim.
The Income tax Appellate Tribunal allowed the claim.
On a reference being made the High Court held in favour of the assessee.
Therefore the department filed this petition for special leave to appeal.
Dismissing the petition, ^ HELD: The only point is whether the expression 'borne by the owner ' which appeared in the proviso to section 23 (1) as it stood in the year 1966 67 would refer to the amount of tax which the owner was liable to pay or amount of tax which he had actually paid in discharge of the liability.
It is true that the expression 'borne ' may refer to either the liability which a person is liable to discharge or the actual sum paid by him in discharge of that liability.
But we agree with the High Court that in the present context it should be construed as referring to the former namely, the amount of tax which the owner is liable to discharge as stated in the proviso to section 23 (1) of the Act and not the latter one.
The reason for taking this view flows from the scheme of the Act itself.
[616D F] Bhagwan Dass Jain vs Union of India, [1981] 2 S.C.R. 808; referred to.
In the instant case it is not, therefore.
necessary that the assessee should have actually paid the amount of tax in question before such deduction is claimed.
The position is not also different even where the assessee has dis 614 puted the correctness of the levy before the local authorities concerned.
A mere expectation of success in the proceedings in which the assessee has disputed such levy does not disentitle him to the statutory deduction on the basis of the levy which is in force.
[617B C]


judgement:
Civil Appeal No. 3482 of 1984.
Appeal by Special Leave from the Judgment and Order dated the 8th May, 1984 of the Patna High Court in Second Appeal No. 182 of 1978.
Jayanarayan, Miss section Agarwal D.S. Mehra and R. P. Singh for the Appellant.
Lal Narain Sinha and D. P. Mukharji for the Respondent.
After hearing counsel for the parties we are clearly of the view that the judgment of the High Court cannot be sustained for two reasons.
Firstly, the High Court had earlier remanded the case to the trial court and called for a finding from the trial court on the question of partial eviction.
The trial court while recording its finding was of the view that the question of partial eviction should be considered in the light of the requirement of the landlord as deposed to by him.
In doing so, the High Court failed to take into account the proviso to Section 12 (1) (c) of the Bihar Building (Lease, Rent & Eviction) Control Act of 1977, which in terms enjoins that what is necessary to be considered is the 'reasonable ' requirement of the landlord and whether it would be 'Substantially ' satisfied by evicting the tenant from a part only of the premises.
The Court has therefore, in the first instance, to determine the extent of the premises which the landlord "reasonably" requires.
Determine it objectively and not on the basis of his ipse dixit or his mere desire to occupy as much as he wants.
But the Court has to furthermore apply a test as to whether such requirement, as the Court considers reasonable, will be 'substantially ' satisfied (not fully satisfied) by ordering partial eviction.
This vital aspect has been 640 altogether overlooked by the trial court.
Secondly, since the High Court had directly called for a finding from the trial court itself, the High Court should have scrutinized the said finding with special reference to the question of partial eviction even on facts as the finding of the trial court standing on its own (not confirmed by appellate court) is not conclusive on facts even in a second appeal.
This is so because the High Court had called for a finding of fact from the trial court bypassing the appellate court and thus deprived the right of appeal to the District Judge (last court on facts) which, for aught we know, might not have agreed with the trial court and may have considered the question from the point of view indicated by us, viz, giving full effect to the concept of reasonable extent of the requirement from the perspective of 'substantials ' satisfaction of such requirement as considered to be reasonable objectively.
Only in case the District Judge would have agreed with the finding of the trial court then it may have become a finding of fact which was binding on the High Court in second appeal.
Besides the question as to the connotation of the word 'substantial ' was itself a substantial point of law there being no decision of the Patna High Court on this specific point.
Other Acts in various States do not embody the concept of "substantial" satisfaction.
These decision would therefore be of no avail in the context of the facts of the present case.
In these circumstances, it cannot be said that the finding of the trial court, which is not the final court on facts, is conclusive and immune from the scrutiny of the High Court even in a second appeal.
We therefore, allow appeal, set aside the decree of the High Court and remand the case to the High Court to decide the question fresh after considering the evidence on record in the light of the aforesaid observations.
The appeal is disposed of accordingly.
In the meantime there will be stay of dispossession.
The High Court is requested to expedite the hearing of the case.

summary:
In a second appeal filed by the appellant tenant against an eviction order, the High Court remanded the matter to the trial court and called for a finding on the question of partial eviction.
The trial court while recording its finding was of the view that the question of partial eviction should be considered in the light of the requirement of the landlord respondent as deposed to by him.
The High Court accepted the finding of the trial court without scrutinising it and dismissed the appeal accordingly.
Hence this appeal by special leave.
Allowing the appeal.
^ HEID: (1) The High Court should have scrutinised the finding of the trial court with special reference to the question of partial eviction even on facts as the finding of the trial court standing on its own (not confirmed by appellate court) is not conclusive on facts even in a second appeal.
This is so because the High Court had called for a finding of facts from the trial court bypassing the appellate court and thus deprived the right of appeal to the District Judge (last court on facts) which might not have agreed with the trial court.
[640 A B] (2) The High Court as well as the trial court failed to take into account the Proviso to section 12 (1) (c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act 1977, which provides, inter alia, that where the court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly.
Therefore, the court has, to determine; 639 (i) the extent of the premises which the landlord "reasonably" requires.
Determine it objectively and not on the basis of his ipse dixit or his mere desire to occupy as much as he wants; and (ii) whether such requirement as the court considers reasonable, will be 'substantially ' satisfied (not fully satisfied) by ordering partial eviction.
[639 G H] The Court remanded the case to the High Court to decide the question afresh after considering the evidence on record in the light of the aforesaid observations.
[640 F]