judgement:
ivil Appeal No. 3677 of 1987.
From the Judgment and Order dated 4.7.1985 of the Andhra Pradesh Administrative Tribunal, Hyderabad in Representation Petition No. 578 of 1978.
WITH Civil Appeal Nos.
15 19/1986 and 124/1987.
421 P.P. Rao, G.L.Sanghi, R.K. Jain, P. Rama Reddy, P.A. Choudhary, B. Kanta Rao, Mrs. S.R. Setia, G.N. Rao, Attar Singh, K.V.G. Rama Rao, Mrs. Sharda Devi, K. Ram Kumar, C.S. Vaidyanathan, A.V.V. Nair and C. Prabhakar for the appearing parties.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The questions arising for our consider ation in these appeals are as under: (1) Can the High Court/Administrative Tribunal direct the State Government to frame or amend the existing statutory rules to alter the conditions of service of the civil serv ants in terms of the directions? (2) When there are specialised posts in a feeder cadre and also in the higher cadre, can the Government restrict the promotions from feeder cadre to the higher cadre only spe ciality wise irrespective of the seniority? The conditions of service of the Andhra Pradesh Animal Husbandry Department were initially governed by the Andhra Pradesh Animal Husbandry Service Rules, 1961 (hereinafter called 1961 Rules).
Under these Rules Veterinary Assistant Surgeons were eligible for promotion to three different categories of posts called class IV posts and Rule 6 provid ed special eligibility qualifications for those posts.
Only those Veterinary Assistant Surgeons were considered for promotion to class IV posts who fulfilled the qualifica tions/specialised training prescribed under Rule 6 of the 1961 Rules.
Some of the Veterinary Assistant Surgeons challenged the vires of Rule 6 of the 1961 Rules by way of Civil Writ Petition No. 4532 of 1971 in the Andhra Pradesh High Court.
It was alleged that at the time of recruitment all the Veterinary Assistant Surgeons possessed Bachelor Degree in Veterinary Science and the special qualifications and train ing prescribed under Rule 6 could only be acquired after joining as Veterinary Assistant Surgeon and that also at the discretion of the Government.
It was open to the Government to choose any person for the specialised training and may deny such an opportunity to another person who may be equal ly or better suited for such training.
Since the imparting of specialised qualifications/training was under the control of the Government it could pick and choose persons for the purpose and in the process making favoured persons eligible for pro 422 motion to class IV posts under the 1961 Rules.
Learned Single Judge by his judgment dated August 24, 1973 rejected the contentions of the writ petitioners in the following words: "I do not find it possible to agree with the broad conten tion that Rule 6 is ultra vires and unconstitutional for the reasons stated by the petitioners.
As stated earlier, Rule 6 merely prescribed certain qualifications for promotion to certain posts by way of experience in a particular specia lised service of undergoing training in a particular field.
It cannot be argued and in fairness to the learned counsel for the petitioners it may be stated, it was not argued, that is not permissible to prescribe such qualifications.
The main reason for contending that Rule 6 is ultra vires was not that it prescribed certain qualifications but be cause in the absence of any guiding principles the Govern ment would be enable to pick and choose persons who would be given opportunities to obtain those qualifications which would enable them to get promotion.
This circumstance cannot in my view render the rule itself ultra vires.
If the Gov ernment or the Authorities concerned posted certain employ ees in the special sections or gave them opportunity to undergo a service in a special issued section for a particu lar period or denied similar opportunity to deserving candi dates with the oblique motive of preferring one set of persons to another for the purposes of promotion, it was open to the aggrieve officer to challenge the act of the Government in each particular case.
The postings and direc tions have been made from time to time from 1962 and none of these petitioners approached this court questioning the denial of the posting as the case may be all these years." . . "1 therefore see no reason for declaring Rule 6 as ultra vires and unconstitutional.
" While holding that Rule 6 was intra vires, the learned Judge also made the following observations: "Though I have held that Rule 6 is not unconstitutional there cannot be any doubt that as this stand at present, it is left to the discretion of the authorities concerned to post any particular Veterinary Surgeon to any Special Sec tion or 423 to give him training in any advanced course.
It is not surprising that such a state of affairs should result in dis satisfaction and suspicion in the mind of the officers concerned.
Development of animal husbandry is extremely important in the interests of economy and a satisfied and contented service is a pre requisite for such development.
It is not advisable to it that a particular authority howev er high placed he may be to choose persons at his sweet will and pleasure to undergo training in a particular field or have service in a particular sections especially when such training and service would effect the chances of promotion to higher posts.
In this connected, it may be noted that in regard to the Andhra Pradesh Agricultural Service, it was realised that condition of separate section within the same service results in great injustice as several senior offi cers would be deprived of their promotion while the junior who happened to work in a specialised section get early promotion.
By G.O. dated 27.6.1972 all these sections were merged into one unit and all the posts were brought under a common set of rules.
It would be advisable to frame a simi lar rule for the Animal Husbandry Department also and see that as far as possible the area of discretion on the part of the authorities concerned is reduced if not eliminated altogether.
" The State Government amended Rule 6 of the 1961 Rules on May 10, 1976 by which the categories of Class IV posts were increased to thirteen.
The 1961 Rules were superseded by the Andhra Pradesh Animal Husbandary Service Special Rules, 1977 (hereinafter called the Special Rules) which came into force on September 24, 1977.
Rule 1 of the Special Rules provides for the constitution of the service.
Class IV posts, which were re designated as Assistant Directors, .were divided into eight categories.
Similarly,.
Veterinary Assistant Surgeons come under the heading class V and are divided into seven categories.
Rule 2 of the Special Rules provides method of promotion from class V to Class IV.
The relevant provisions of these Rules are reproduced as under: 1.
CONSTITUTION: Class IV.
Category (1) Assistant Directors of Animal Husbandry (formerly 424 District Veterinary Officers & Livestock Officers Incharge Key Villages and Regional Cattle Development Units) includ ing Superintendents, Veterinary Hospitals & Poly Clinics, Assistant Directors of Animal Husbandry, Liverfluke Control Scheme; Anti Liverfluke Control Scheme; Dairy Extension Rinderpest; Animal By Products Plant, Zoo Park, Asst.
Direc tor of Animal Husbandry (Technical in Directorate and Gazet ted Instructors in Animal Husbandry, Village Development Officers Training Centre.
Category (2) Assistant Directors of Animal Husbandry, Government Livestock Farms including Assistant Directors of Animal Husbandry Progeny Testing Unit, Feed Mixing Plant; Livestock Assistants Training Centre; Goshalas and Asst.
Director of Animal Husbandry (Farms) in Directorate.
Category (3) Lecturers, Institute of Animal Reproduction, including Asst.
Director of Animal Husbandry (Cattle Devel opment) and Centralised Semen Collection Centre.
Category (4) Assistant Directors of Animal Husbandry, Sheep Farms including Assistant Directors of Animal Husbandry (Sheep Development) and Officers of similar rank in Sheep Section.
Category (5) Assistant Directors of Animal Husbandry, Pig Breeding Station; Piggery Development Officer and Officers of similar rank in piggery section.
Category (6) Asst.
Directors of Animal Husbandry, Regional Poultry Demonstration and Research Farm and Asst.
Directors of Animal Husbandry, poultry Marketing Centres.
Category (7) Asst.
Directors of Animal Husbandry (Formerly Disease Investigation Officers and Research Officers) an Officers of similar rank in Vety.
Biological Institute, Hyderabad; Asst.
Directors of Animal Husbandry, Animal Health Centres, and Officers of similar rank in Municipal Corporation of Hyderabad such as Public Health Veterinarian.
425 Category (8) Asst.
Director of Animal Husbandry (Statis tics) Class V. Category (1) Veterinary Officers.
Category (2) Veterinary Officers (Cattle Farms) Category (3) Asst.
Lecturers, Institute of Animal Reproduc tion and Veterinary Officers, Centralised Semen Collection Centres.
Category (4) Veterinary Officers (Sheep Farms) Category (5) Veterinary Officers, Pig Breeding Stations.
Category (6) Veterinary Officers, Poultry Farms.
Category (7) Veterinary Officers in Veterinary Biological and Research Institute; Animal Health Centres, Clinical Laboratories and Municipal Corporation of Hydera bad." 2. APPOINTMENT: Class IV: Category (1) Asst.
Directors of . (i) . (ii) by promotion from among the Veteri nary included in category (I) of class V of the said service.
(iii) . .
Category (2) Asst.
Directors of . (i) . (ii) by promotion from among the Vety.
Officers inclu ded in Cat.(2) of Class V of the said Service (iii) 426 Category (3) Lecturers (i) by promotion from among the Vety.
Officers included in Cat.
(3) of Class V of the said service (iii) .
Category (4) Asst.
Directors of . (i) . (ii) by promotion from among the Vety.
Officers inclu ded in Cat.(3) of Class V of the said service (iii) .
Category (5) Asst.
Directors of . (i) . (ii) by promotion from among the Vety.
Officers inclu ded in Cat.
(5) of class V of the said service (iii) .
Category (6) Asst.
Directors of . (i) . (ii) by promotion from among the Vety.
Officers included in Cat.
(6) of class V of the said ser vice Category (7) Asst.
Directors of . (i) . (ii) by promotion from among the Vety.
Officers included in Cat (7) of class V of the said service Category (8) Asst.
Directors of . (i) . (ii) by promotion Vety.
Officers in Class V of Andhra 427 Pradesh Animal Husban dry Service (iii) .
It is obvious from the provisions of the Special Rules reproduced above that the Veterinary Assistant Surgeons who are class V are only eligible for promotion to class IV in their respective categories.
Category 1 class V is only eligible for promotion to category 1 class IV and similarly category 2 of class V is eligible for category 2 of class IV and so on.
Although there is one common seniority of class V officers but the promotion being category wise the seniority becomes irrelevant as a senior man in category 1 class V cannot be promoted to any other category in class IV except category 1 and 8.
M. Srinivasan and 44 other class V officers filed Repre sentation Petition No. 578 of 1978 before the Andhra Pradesh Administrative Tribunal seeking a direction that the Special Rules be amended or modified in terms of the observations made by the Andhra Pradesh High Court in Civil Writ Petition No. 4532 of 1971.
In other words., it was prayed that the State Government be directed to merge all the respective categories in class IV and class V of the Special Rules and promotions from class V to class IV be made on the basis of seniority alone.
The Administrative Tribunal by its judgment dated July 4, 1985 allowed the Petition and issued the directions asked for by the petitioners.
The Tribunal in its judgment posed the question to be decided in the following manner: "The question to be decided is whether the Depart ment of Animal Husbandry is justified in not following the directions of the A.P. High Court referred to above." The Tribunal then answered the question as under: "It must be observed that not to speak of direc tion, even an observation from the High Court of the land is binding on the State Government when the State Government has not chosen to set aside the said observation in the Supreme Court.
The petitioners are, therefore, entitled to the relief asked for and I find no good reasons not to grant the same.
The R.P., is accordingly allowed and once again direc tions are issued to the respondents to evolve proper and rational 428 method of determination of seniority among the Veterinary Assistant Surgeons in the matter of promotions to the next higher rank of Assistant Director of Veterinary Surgeons in the light of the one framed under G.O.Ms.
No. 1 supra. ' ' It may be mentioned that G.O. Ms. No. 1 dated 1.1.76 which was directed to be adopted and followed in the Animal Husbandry Department related to the Agriculture Department.
It was argued before the Tribunal that because of functional differences between the two departments it would not be possible to adopt the conditions of service prevalent in the Agriculture Department.
The Tribunal, however, issued the above quoted directions primarily on the ground that the State Government was bound to follow the observations of the High Court made in Civil Writ Petition No. 4532 of 1971.
The State of Andhra Pradesh has challenged the judgment of the Tribunal in Civil Appeal No. 1519 of 1986, Civil Appeal No. 124/1987 and Civil Appeal No. 3677 of 1987 have been filed by the officers who have been affected by the judgment of the Tribunal but were not parties before the Tribunal.
The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature.
The High Court was aware of its limitations under Article 226 of the Constitution of India and as such the learned Judge deliberately used the word "advisable" while making the observations.
It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the constitution.
Imagine the execu tive advising the judiciary in respect of its power of judicial review under the constitution.
We are bound to react scowlingly to any such advice.
This Court relying on Narender Chand Hem Raj & Ors.
vs Lt. Governor, Union Territory, Himachal Pradesh & Ors., ; and State of Himachal Pradesh vs A parent of a student of medical college, Simla and Ors., [1985] 3 SCC 169 held in Asif Hameed & Ors.
vs State of Jammu & Kashmir & Ors.
, [1989] Supp. 2 SCC 364, as under: "When a State action is challenged, the function of the court is to examine the action in accordance with law 429 and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action.
While doing so the court must remain within its self imposed limits.
The court sits in judgment on the action of a coordinate branch of the Government.
While exercising power of judicial review of administrative ac tion, the court is not an appellate authority.
The constitu tion does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive.
" The Special Rules have been framed under Article 309 of the Constitution of India.
The power under Article 309 of the Constitution of India to frame rules is the legislative power.
This power under the constitution has to be exercised by the President or the Governor of a State as the case may be.
The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India.
The Courts cannot usurp the functions assigned to the executive under the constitution and cannot even indirectly require the execu tive to exercise its rule making power in any manner.
The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India.
We are therefore, of the view that the High Court in Civil Writ Petition No. 4532/71 and the Administrative Tribunal in the judgment under appeal transgressed its limits in issuing the impugned directions.
We set aside the judgment of the Tribunal and dismiss the Representation Petition No. 578/78 filed by M. Srinivasan and 44 others to the extent indicated above.
Mr. C.S. Vaidyanathan, learned counsel, appearing for the respondents, however, contends that the Special Rules are arbitrary and are violative of Articles 14 and 16 of the Constitution of India.
He contends that at the time of initial recruitment to Class V the Government at its discre tion picks up persons for appointment to any of the catego ries.
According to him neither there are any statutory rules or executive instructions providing options to class V officers to join category of their choice nor in fact any such options were given at the relevant time.
He has further argued that the posts in seven categories of class V are inter transferable.
He invited our attention to the docu 430 ments on record showing transfers from one category to another.
Mr. Madhava Reddy learned counsel appearing for the State of Andhra Pradesh on the other hand has controverted the above arguments.
According to him options were not only given at the time of initial recruitment into class V serv ice but also subsequently as and when the rules were amend ed.
He categorically denied that the posts in various cate gories are interchangeable.
The learned counsel on both sides wanted us to go into the various documents in support of their respective contentions.
We do not have before us the factual matrix to appreciate the argument of Mr. Vaidya nathan that the special Rules are arbitrary.
We, however, find from the judgment under appeal that all these points were raised before the Tribunal in one form or the other but the Tribunal based its judgment on the observations of the High Court in Civil Writ Petition No. 4532/71 and did not go into any other point.
While setting aside the judgment under appeal we remit the case to the Andhra Pradesh Administrative Tribunal for decision on other points as indicated by, us or as may be raised by the parties.
The Tribunal shall give further opportunity to the parties to file additional affidavits/documents.
We request the Tribunal to decide the matter expeditiously and if possible within three months.
The appeals are disposed of in the above terms with no order as to costs.
Y. Lal Appeals allowed.

summary:
Andhra Pradesh Animal Husbandry Service Rules, 1961, governed the conditions of service of the Andhra Pradesh Animal Husbandry Department and under those Rules Veterinary Assistant Surgeons were eligible for promotion to three categories of Class IV posts.
Rule 6 of the said Rules provided special eligibility qualifications for those posts and only those Veterinary Assistant Surgeons were considered for promotion to Class IV posts who fulfilled the qualifica tions/specialised training prescribed under Rule 6 of the 1961 Rules.
Some of the Veterinary Assistant Surgeons chal lenged the vires of Rule 6 of 1961 Rules on the ground that it was violative of Article 14 of the Constitution inasmuch as it conferred arbitrary powers on the Government to pick and choose any person for the specialised training and may deny such an opportunity to another person who may be equal ly or better suited for such training, there being no guide lines prescribed for selection of persons for specialised training.
The main contention was that at the time of re cruitment all the Veterinary Assistant Surgeons possessed Bachelor Degree in Veterinary Science and the special quali fication and training prescribed under Rule 6 could only be acquired after joining as Veterinary Assistant Surgeon by only those Assistant Surgeons whom the Government selected for the purpose.
The High Court held Rule 6 of the 1961 Rules as intra vires but made certain observations advising the Animal Husbandry Department to frame a rule for the said Department and see that as far as possible the area of discretion on the part of the authorities concerned is reduced if not eliminated altogether, so far as the question of imparting specialised training as provided under Rule 6 was concerned.
Thereupon the State Government amended Rule 6 of the 1961 Rules as a result whereof the 1961 Rules were superseded by the Andhra Pradesh Animal Husbandry Service Special Rules, 1977, Rule 1 whereof pro 419 vided for the constitution of the service.
Class IV posts, which were re designated as Assistant Directors, were divid ed into eight categories and Rule 2 provided method of promotion from Class V to Class IV.
Under those Rules Veter inary Assistant Surgeons who were Class V were only eligible for promotion to Class IV in their respective categories.
That is to say category I Class V was only eligible for promotion to category I Class IV and similarly category 2 of Class V was eligible for category 2 of Class IV and so on, and in this way common seniority of class V officers became irrelevant, promotion being category wise.
Being dissatis fied some officers belonging to Class IV filed Representa tion Petition before the Andhra Pradesh Administrative Tribunal seeking a direction that the special rules be amended or modified in terms of the observations made by the Andhra Pradesh High Court in Civil Writ No. 4532 of 1971, referred to above whereby the said High Court had declared Rule 6 of 1961 Rules as intra vires.
The contention raised by the petitioner was that promotions from Class V to Class IV be made on the basis of seniority alone irrespective of the categories contemplated by 1977 Rules.
The Tribunal by its judgment allowed the petition and issued the directions asked for by the petitioners.
The Tribunal observed that not to speak of direction, even an observation from the High Court was binding on the State Government when the State Government had not chosen to get the said observation set aside by the Supreme Court.
Accordingly the Tribunal direct ed the State to evolve a proper and rational method of determination of seniority among the Veterinary Assistant Surgeons in the matter of promotions to the next higher rank of Assistant Director of Veterinary Surgeons.
Being aggrieved, the State of Andhra Pradesh and some of the officers who have been affected by the High Court 's judgment and who were not parties before the High Court have filed these appeals.
The following questions arose for determination: (1) can the High Court/Administrative Tribunal direct the State Government to frame or amend the existing statutory Rules to alter the conditions of service of the Civil servants in terms of the directions, and (2) when there are specialized posts in a feeder cadre and also in the higher cadre, can the Government restrict the promotions from feeder cadre to the higher cadre only speciality wise irrespective of sen iority.
Allowing the Appeals and remanding the matter to the Tribunal for decision on other points: this Court, 420 HELD: The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature.
The High Court was aware of its limita tions under Article 226 of the Constitution of India and as such the learned Judge deliberately used the words 'advisa ble ' while making the observations.
It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution.
[428E F] The power under Article 309 of the Constitution of India to frame rules is legislative power.
This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be.
[429C] The High Court or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India.
The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the execu tive to exercise its rule making power in any manner.
The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309.
[429D E] The Administrative Tribunal in the judgment under appeal transgressed its limits in issuing the impugned directions.
[429F] Narender Chand Hem Raj & Ors.
vs Lt. Governor, Union Territory, Himachal Pradesh & Ors., ; ; State of Himachal Pradesh vs A parent of a student of medical college, Simla & Ors., [1985] 3 S.C.C. 169 and Asif Hameed & Ors.
vs State of Jammu & Kashmir & Ors.
, [1989] Supp. 2 S.C.C. 364, referred to.


judgement:
251&558of 1987.
(Under Article 32 of the Constitution of India) R.K. Jain and R.P. Gupta for the Petitioners.
Kapil Sibal, R.B. Misra, B.B. Sawhney, R.K. Mehta (N.P.) and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
The petitioners in Writ Petition No. 25 1 of 1987 are Dairy Mates whereas, those in Writ Petition No. 558 of 1987 are Junior Plant Operatives and Semi Skilled Opera tives, all working with the Delhi Milk Scheme.
The first petition is on behalf of about one thousand workers, where as, the second petition is on behalf of about 280 of work ers.
The grievance of the Dairy Mates is that although they perform the duties and functions of semi skilled work ers, they have been wrongly classified as un skilled workers and paid salary as such, as recommended by the 4th Pay Commission namely, Rs.750 940 instead of Rs.800 1 150 which is the salary recommended to the semiskilled workers.
The grievance of the Junior Plant Operatives and Semi Skilled Operatives is that they are actually ' doing the work of skilled workers, but are classified similarly as unskilled workers and paid salary as such.
Both, further, have a grievance that their counterparts in other departments, particularly in Railways, have been properly classified and are paid salary accordingly.
The petitions were resisted by the respondent Union of India by filing counter affidavits denying the conten tions of the petitioners that their work was of a semi skilled or skilled character as alleged.
In view of the disputed questions relating to the nature and functions of the workmen involved, this Court by its order of July 29, 1988 referred the matter to the Central Govt.
Industrial Tribunal cumLabour Court, New Delhi to report to the Court on what would be the appropriate pay scales admissible to the concerned workers, after looking into the record and giving an opportunity to the parties to produce before it such further material as they may desire to do.
Pursuant to the order, the Tribunal submitted its report dated October 325 28, 1988.
It appears from the report that the Tribunal had given opportunities to both the parties to make additional submissions, if any, and to file further material which they wished to do.
Pursuant to the opportunity given, the workers in both the petitions produced additional material and evidence.
The respondent Union of India, however, did not produce any further material or evidence.
On the basis of the material which was already on record, and the further material produced before it, the Tribunal made its report.
The relevant portions of the report may be reproduced here under: 3.
"There are 4 categories of workmen in the DMS viz. Dairy Mates, (DM), Junior Plant Operatives (JPO), Semi Skilled Operatives (SSO) and Skilled Operatives (SO).
The deploy ment registers of the various units read with the evidence of Shri Lajpat Rai Saxena Dairy Supervisor, conclusively prove that the var ious categories of workmen are performing similar duties and their positions are inter changeable with the result that there is no clear demarcation as to what function is to be performed by which category of workmen.
Shri Lajpat Rai Saxena has clearly stated that the nature of duties and the degree or skill of S.O., S.S.O., and J.P.Os and D.Ms is almost same and that sometimes the work done by S.S.Os is performed by S.O. and J.P.Os subject to the availability of the category of work men.
To a question by this Tribunal he replied that if an S.O. is available he will be posted as an S.O. only but when no S.O. is available, then S.S.O. is put in his place and sometimes J.P.Os and Dairy Mates may be put to work in his place.
He further stated that generally there is a shortage of S.Os and then they have to put other categories of workmen in their places.
The position is fully borne out by the various deployment registers . . " 4." . . .
The position of deployment of the various categories of workmen clearly goes to show that their duties are inter changeable without any consideration for their grades/designations.
The position obtaining on the ground clearly repells the contentions of the respondents contained in affidavit of Shri K.G. Krishnamurty that the functions of the various categories of workmen are distinct and separate.
The respondents have not been able to produce any document in support of their contention to show that the duties of the various categories of workmen as enumerated in the affidavit of Shri K.G. Krishnamurty 326 were even published or actually followed.
On the other hand, Shri Lajpat Rai Saxena has stated that since the time he joined service in the year 1972 he had not come across any roster of duties for the different categories of workers such as S.O., SSO, JPOs and Mates and no such roster had been issued after 1972.
He had heard that there was a roster of duties issued prior to his joining of service but he had not seen any such roster.
It would thus appear that if there was any such roster prior to 1972 it got into disuse and was never enforced." 5. "The nature of functions performed by various workmen shows that they require a good degree of skill.
In other words, the functions can be performed only by skilled and semi skilled workers and not by unskilled workers.
Shri Lajpat Rai Saxena has stated that there are 5 milk pasteurisers and 2 cream pasteuris ers in the plant unit of Process Section.
There are also two chillers in R.S.M. There are 13 machines in the product section.
All these machines can be operated only by skilled workers.
He further stated that the bottle filling plant is automatic and the entire working is also automatic.
They have got a separate pest control section for cleaning and sweeping.
Sweepers of Pest Control Section are not used for cleaning machines which is done only by the SO, SSOs, JPOs and Dairy Mates.
This further goes to show that even the clean ing of machines requires skill and the job cannot be performed by unskilled workers.
Even the Management of DMS recognises that the duties performed by the mates and junior plant operatives who have been clubbed with the unskilled category of peons, chowkidars etc., are much more onerous in nature and they deserve a better deal (see the letter dated 4 9 86 addressed by the Chairman D.M.S. to the Joint Secretary Ministry of Agriculture).
The first petitioners have placed on record a photo copy of the identity card issued to the mates (page 110 Vol. 1) which shows that the D. Mates were being treated as Technical Personnel for the purpose of issue of identity cards.
The job cards annexures 1 to 6 (Vol. II) further go to show that the mates have been performing skilled/semi skilled duties such as repairing of Driver seats vulcanising of punctures, other repairs of vehicles and servicing.
All these jobs could not have been done by unskilled workers.
Under the circum stances, I have no hesitation in holding that the 327 mates and junior plant operatives have 'been unfairly treated by the 4th Pay Commission by giving them lowest pay scale of unskilled category of workmen like peons, sweepers, chowkidars etc.
This category of workmen difinitely deserves to be given a higher grade than the lowest meant for unskilled category of workmen.
While it may be conceded that due to the diffuse nature of duties, the Dairy Mates and Junior Plant Operatives of DMS cannot be compared with the Gangmates in the Railways, yet the case of the Dairy Mates and Junior Plant Operatives of the DMS has intrin sic merit.
No doubt the workmen categorised as semi skilled (SSOs) at present are carrying out the functions of Skilled Operatives (SOs) frequently, yet, so are the Mates and JPOs.
However, all the workmen cannot be given the grade of SOs because the considerations of career planning and promotions etc.
have to be kept in view.
Already it is being represented that the various categories of workmen are stagnating in their respective grades for the last 20 25 years.
The same complaint will arise afterwards if all the workmen are given the grades of SO at the same time.
It also militates against the principles of sound administration because there will be double jumping of grades in some category of workmen.
It will also not be desirable to create any fresh scales of pay as it would run counter to the recommendations of the pay commission which has reduced the number of pay scales prevailing previously.
" 6. "Taking into consideration all the facts and circumstances, it is recommended that the Mates and JPOs may be given the pay scale of Rs.800 1150 and semi skilled operatives may be given the scale of Rs.825 1200.
The grades as provided by the 4th Pay Commission and those now recommended by this Tribunal will compare as under: S1.
No. Category of workmen Pay Scale Pay Scale recommended by recommended 4th Pay by this Commission Tribunal 1.
Skilled Operatives (SO) 950 1150 950 1400 2.
Semi Skilled Operatives 800 1150 825 1200 (SSO) 3.
Mates/JPOs 750 940 800 1150.
" 328 5.
While the workmen accepted the report, arguments were advanced on behalf of the respondent mainly criticising the report with regard to the pay scales recommended to the Mates deployed in Transport (Distribution Section).
It was contended that the Mates working in the said section consti tuted 60% of the total number of Mates deployed in the different units of the Scheme, and their work merely con sisted of loading and unloading of the crates.
That work by no stretch of imagination could be described as other than unskilled.
It was, therefore, wrong to give them a scale different from that admissible to the unskilled workers.
This contention ignores the admitted fact that Mates from one Unit are transferable to another at any time, and when so transferred they do the work of the Units to which they are transferred without any additional remuneration.
What is more as is stated in the report, there is no roster of duties and functions of the Mates in any Unit, and all Mates have to do the work of the Units to which they are assigned on any particular day.
The mates have thus to be versatile with the work in all the Units, both unskilled and semi skilled.
This is certainly not the case with the Sweepers, Chowkidars and Malis who are categorised as unskilled work ers.
This being the case, we do not see any merit in the contention that the Mates should be treated on par with the unskilled workers.
There was no contention raised on the report with regard to the mates working in the other Units or with regard to the Junior Plant Operatives and Semi Skilled Operatives.
In the circumstances, we accept the report and direct the respondent to pay to the workers the pay scales recom mended in the report which are as follows: A. Mates and Junior Plant Operatives Rs.800 1 150 B. Semi Skilled Operatives Rs.825 1200 8.
The above pay scales should come into effect from 1st January, 1990.
It is made clear that none of the workers i.e. Mates, Junior Plant Operatives and Semi Skilled Operatives will refuse to do any part of the work which is assigned to them at present merely because they are hereby given the above pay scales.
Writ Petitions are allowed accordingly.
The parties to bear their own costs.
R.N.J. Petitions allowed.

dataset_name: IN-Abs

summary:
The firsf petition is on behalf of one thousand Dairy Mates and the other on behalf of 280 workers as Junior Plant Operatives and semiskilled Operatives.
The grievance of Dairy Mates is that although they perform the duties of semi skilled workers they have been wrongly classified as unskilled workers and paid salaries as such.
Similarly the grievance of the Junior Plant Operatives and semi skilled Operatives is that they are actually doing the work of skilled workers but are classified as unskilled workers and paid salary as such.
In view of the disputed questions relating to the nature and functions of the workmen involved, the Court referred the matter to the Central Govt.
Industrial Tribunal cum Labour Court to report to the Court as to what would be appropriate pay scales admissible to the concerned workers.
On the basis of additional material and evidence produced by the workers, the Tribunal made its report and recommended that taking into consideration all the facts and circum stances, the Mates and JPOs may be given the pay scale of Rs.800 1150, the semi skilled operatives may be given the scale of Rs.825 1200 and the skilled operatives may be given the scale of Rs.950 1400.
The Union of India criticised the pay scale recommended to the Mates contending that their work was of unskilled nature.
Accepting the report of the Tribunal while allowing the Petitions in terms of the re port, this Court, HELD: There is no roster of duties and functions of the Mates in any Unit and all Mates have to do the work of the Units to which they are assigned on any particular day.
The Mates have thus to be versatile with the work in all the Units, both unskilled and semi skilled.
This is certainly not the case with the Sweepers, Chowkidars and Malls who are categorised as unskilled workers.
This being the case, there is no merit in the contention of the Union of India that the Mates should be 324 treated on par with the unskilled workers.
[328C D]


judgement:
No. 3 of 1990.
IN Civil Appeal No. 4131 of 1989.
478 From the Judgment and Order dated 4.9.1989 of the Cal cutta High Court in Original Order No. 241 of 1989.
Ashok Desai, Solicitor General, Amal Datta, D.K. Sinha and J.R. Das for the Petitioners.
A.K. Sen, Ms. Mridula Ray, T.U. Mehta (NP) and D.P. Mukherjee for the Respondents.
The following Order of the Court was delivered by section RATNAVEL PANDIAN, J.
This application is filed by the State of West Bengal for clarification of the two orders of this Court dated 7th September and 27th September of 1989 in SLP (Civil) No 10670/89 in the context of the order dated 4th September and order report dated 15th September of 1989 passed by a Division Bench of High Court of Calcutta in Writ Appeal Nos. 240 and 24 1 of 1989 in the Matter No. 1436 of 1988.
This case has got a chequered history, the facts of which are set out in clear terms in the judgment dated 10.7.1989 of the High Court of Calcutta vide Annexure 1 to this application.
Therefore, it is not necessary to reiter ate the entire facts, but suffice to refer a few relevant facts for the disposal of this application.
A batch of employees of the State of West Bengal belong ing to the West Bengal Civil Service (Executive) filed Writ Petition being Matter No. 1436 of 1988 under Article 226 of the Constitution of India.
Subsequently some more members of the said cadre were added as respondents on their applica tion and they also supported the Writ Petition.
The original respondents to the Writ Petition who are also in the same cadre as well the State Government which is made a party opposed the Writ Petition.
The main pleading in the Writ Petition is that there was no rule relating to determination of seniority as between promotees and direct recruits of the West Bengal Civil Service and the prayer on the above pleading is for issuance of a Writ of Mandamus directing the State Government to frame appropriate seniority rules in that behalf.
On 5.4.1988, a learned single Judge of the High Court, Ajit Kumar Sengupta, J. passed an interim order directing the State Government 479 to frame seniority rules and determine inter se seniority on the basis of the seniority rules within one month from the date of the communication of the order.
On 29.4.1988 on an application moved by the writ petitioners, the same learned Judge passed an interim order to the effect that if any seniority rules have been framed pursuant to his order dated 5.4.1988 the same would not be given effect to without the leave of the Court and without giving any notice to the writ petitioners.
On 10.6.1988 the writ petitioners moved another interim application in the Writ Petition before the same learned single Judge for setting aside the draft seniority rules.
On the same day, the learned Judge passed the interim order restraining the State Government from taking any further action on the basic of the draft rules of seniority which were in the meantime prepared in compliance with the earlier order dated 5.4.1988.
On 23.3.1989 Ajit Kumar Sengupta, J. pronounced his judgment, the operating portion of which reads thus: "The application is allowed.
The draft rules are ultra vires as I have already held in my judgment.
Following the direc tions given in my judgment, the inter se seniority will be done.
There will be a stay of the operation of the judgment and order for four weeks but the interim order granted by this Court will continue also for four weeks.
" The State Government preferred an appeal against the judg ment and order dated 23.3.1989 before a Division Bench of the High Court in Appeal No. 240/89.
The original respond ents to the Writ Petition also preferred another Appeal against that judgment in Appeal No. 241/89.
Both the appeals are with reference to Matter No. 1436/88.
In both the ap peals, stay applications were filed before the Division Bench comprised of Justice Roy and Justice Sudhangshu Sekhar Ganguly.
The said DiviSion Bench delivered its Judgment on 10.7.1989 disposing the interim applications, the relevant portion of which is as follows: "On a consideration of all the submissions made before us, we are inclined to hold, therefore that the appellant peti tioners have made out a prima facie case for staying the operation of the judgment and order passed by the learned Judge.
Since the respondents have not been able to establish that the prima facie case is in theft favour, it cannot be held that the balance of convenience and inconvenience title in their favour.
The learned Judge has restrained 480 the appellant State from filling up a number of important posts till the making of the Seniority Rules and determina tion of seniority of the respondents.
Such a stay order has been there since the filing of the original writ petition.
It is obvious that the Government has been suffering because of this embargo and it is also obvious to these officers who would have otherwise been appointed to these posts been suffering financially.
The operation of this order of in junction shall also, therefore, have to be stayed along with the operation of the judgment and decree passed by the learned Judge.
In the circumstances stated it is hereby ordered that the operation of the judgment and order dated 23rd March, 1989 passed by the Honable Mr. Justice Ajit Kumar Sengupta in the Matter No. 1436/88 together with all interim orders passed by His Lordships in the said matter are hereby stayed.
Pending the disposal of this appeal the Government will be at liberty to proceed with the finalisation of the Seniority Rules governing the members of the unified W.B.C.S.
The Government will be also at liberty to fill up all the vacan cies and award all service benefits including appointments to higher posts or higher scale which will be subject to the results of these appeals.
Since many such posts are lying vacant at present, the Court desires the Government to consider, if it will take in its consideration, the cases of the writ petitioners and the respondents Nos. 9 to 15, while filling up these posts.
" In the same order, the Division Bench after disposing this application has made the following order: "The operation of this judgment together with the order shall remain stayed for eight weeks.
" The stay of the operation of the judgment evidently has been made on the request of the aggrieved party, namely, the respondents to the appeal to enable them to approach this Court.
Aggrieved by this order, the writ petitioners who are respondents in the Appeals filed SLP No. 9920/89 challenging the judgment and order of the Division Bench dated 10.7.
1989 along with a petition for 'stay in I.A. No. 1/89 pray ing "to stay the operation of the 481 impugned Judgment and Order dated 10th July 1989 passed by the Division Bench of the Calcutta High Court in Appeal No. Nil/89 in Matter No. 1436/88 till the disposal of the S.L.P . . . " A Bench of this Court to which one of us (Ratnavel Pandian, J.) was a party after hearing the learned counsel for the petitioners and respondents to the SLP passed the following order on 29.8.1989: "As the Special Leave Petition is directed against the Interim order of the Division Bench of the High Court, we are not inclined to interfere in the matter.
The Special Leave Petition is dismissed.
We, however, request the High Court to dispose of the Writ Petition pending in the High Court as expeditiously as possible preferably within two months from today.
" It seems on 4.9.1989 Justice M.N. Roy, who was a party to the order dated 10.7.1989 expressed his inability to hear the appeals in the course of the said week in view of other matters being listed before him and released these appeals in question.
Thereafter these two appeals had been assigned to another Division Bench comprised of the learned Judges Bimal Chandra Basak and Amarava Sengupta, JJ.
This Bench on the same day i.e. on the afternoon of 4.9.
1989 itself extended the stay of eight weeks, granted by the earlier Division Bench dated 10.7.1989 till the disposal of the appeals and directed the status quo.
On being aggrieved by the order dated 4.9.1989 extending the order of stay, the original respondents in the Writ Petition filed Special Leave Petition No. 10670/89 before this Court which came up before the Bench of this Court presided over by the Hon 'ble Chief Justice along with K.N. Singh, J.
This Bench passed an interim order on the above SLP on 7.9. 1989, the operative portion of which reads thus: "In the meanwhile the order passed by this Court on 29.8.
1989 shall hold the field notwithstanding any contrary order passed by the Division Bench of the Calcutta High Court.
" This SLP was finally listed before another Bench comprised of Murari Mohan Dutt, J. and one of us (Ratnavel Pandian, J.).
This Bench passed the following order on 29.7.89 in Civil Appeal No. 4131 of 1989 482 (arising out of SLP (Civil) No. 10670/89): "Special leave is granted.
Perused the report.
After hearing the learned counsel for both the parties, we direct that in view of the order dated September 7, 1989, passed by this Court, no further order need be made on this appeal.
The appeal is disposed of as above.
There will be no order as to costs.
" The submissions made on behalf of the applicants in the present Interlocutory Application (3 of 1990) are that the ex parte order extending the stay and granting status quo as on 4th September 1989 passed by the Division Bench consist ing of Bimal Chandra Basak and Amarava Sengupta, JJ was in violation of the earlier order of this Court made on 29th August 1989 and that since the appeals though heard on a number of days are not yet disposed of, the State Government is constrained to approach this Court for necessary orders and directions/clarifications in the interest of smooth administration and eliminating stagnation and frustration among the members of West Bengal Civil Service (Executive) cadres.
According to the State Government, there are number of posts lying vacant in the cadre of Deputy Secretary and equivalent posts in different Departments of the State Government including core Departments like Revenue, Finance, Education, Milk Supplies, Hospitals, Administrative Reforms, Power etc., that the State Government is unable to fill up the same in view of the interim order of status quo passed on 4.9.1989, that the State Government is unable even to make transfers on promotion or sending officers on deputa tion to equivalent posts and that no service benefits could be awarded to those officials.
The second respondent on his behalf and on behalf of respondents 1, 3, 4 and 5 has filed a counter stating that the order of extension of stay passed by the Division Bench on 4.9.
1989 is no way inconsistent or in contravention of the order of this Court and the delay in disposal of the appeal is only on account of a dialectic tactics adopted by the applicants and the order obtained from this Court on 7th September 1989 was without any notice to and behind the back of the respondents Nos. 1 to 5 and that most of the posts (as shown in Annexure 'A ' to the counter) have understandably been filled up by the State Government during the pendency of the interim orders and that the grievance expressed by the State Govern 483 ment in filling up the posts is totally a false statement since all the posts mentioned have been filled up and that in case the extended stay order is disturbed, the respond ents would be put to immeasurable hardships.
As the two Appeals Nos. 240/89 and 24 1/89 in Matter No. 1436/ 88 are now pending before the High Court for final disposal, we, without making any detailed discussion on the issues involved, are inclined to dispose of this application by making only a clarification.
is the admitted case that the Division BenCh consisting of Justice Roy and Justice Sudhangshu Sekhar Ganguly by their order dated 10.7.
1989 stayed the operation of the order of the learned single Judge dated 23.3.
1989 in Matter No. 1436/88 and allowed the Government to fill up all the vacan cies and award all service benefits including appointments to higher posts or higher scales which will be subject to the results of the two appeals.
However, the same Bench stayed the operation of this order for a period of 8 weeks, admittedly to enable the respondents in these two appeals to approach this Court.
When the matter came up before this Court for admission in SLP No. 9920/89 with the petition (I.A. No. 1/89) to stay the operation of the order dated 10.7.89 staying the order of the single Judge of the High Court, this Court dismissed that SLP by its order dated 29.8.89 after hearing the counsel for both the parties.
The copy of the order has already been reproduced above.
This Court, observing "We are not inclined to interfere in the matter", has upheld the order of stay dated 10.7.89.
In other words the order of stay passed by the Division Bech on 10.7.89 has been upheld.
The result was on the expiry of 8 weeks period, the original order of stay dated 10.7.89 passed by the earlier Division Bench has been revived and come into operation.
The 8 weeks period from which the order dated 10.7.89 has been stayed by the Division Bench would have in the normal course expired by 9.9.89.
It seems that meanwhile, the respondents in the two appeals have ap proached another Division Bech to which the appeals have been assigned for the reasons already indicated and obtained an order of extension of stay of the operation of the judg ment of the Division Bench dated 10.7.1989.
Feeling ag grieved, the appellants in the two appeals namely, Sabyasachi Sengupta and others filed SLP No. 10670 of 1989.
This Court by its order dated 7.9.89 directed that the order passed by this Court on 29.8.89 i.e. the order passed in SLP No. 9920/89 shall hold the field notwithstanding any con trary order passed by the Division Bench of the Calcutta High Court.
The 'contrary order ' is referrable to the order passed by the second Bench of the Calcutta High Court on 4.9.1989.
Mr. Ashok Desai, the learned Solicitor General and Mr. Ashok Sen, Sr. counsel appearing for the applicants forcibly arti 484 culated that in the teeth of the order passed by this Court on 7.9.1989 observing "notwithstanding any contrary order passed by the Division Bench of the Calcutta High Court", the order of the Court dated 29.8.1989 shall hold the field, it is made clear that the order of the High Court dated 4.9.1989 has become otiose and further request that this Court, however, be pleased to clarify the position in the context of the subsequent order/report dated 15.9.1989.
Mr. D.P. Mukherji appearing on behalf of the respondents made a fervent plea that even assuming that the order dated 4.9.1989 is in infraction of the order dated 7.9.
1989, it would amount only to a technical infraction and as such there can be no justification to grant the relief asked for by the applicants in this interlocutory application and if the relief, as prayed for is granted, it would be causing substantial and grave injustice to the respondents.
On a careful analysis of the facts and circumstances of the case, we hold that the plea of Mr. Mukherji is illogical and inconceivable and does not merit consideration.
If his plea is to be accepted, then it will be only a mockery of justice because it will be tantamount to nullifying our own order which has reached its finality.
It is the settled principle of law that any order or direction pronounced by this apex Court in exercise of its jurisdiction in any matter pending before it, that order or direction is binding on all courts within the territory of India and should be implemented and executed in all its rigour.
Form the report sent by the Division Bench of the Cal cutta High Court dated 15th September 1989 it seems the latter Division Bench extended the 8 weeks stay on the grounds firstly that the order of this Court dated 29.8.1989 has not prevented the Division Bench from passing such order and secondly that the 8 weeks stay stood vacated w.e.f.
4th September 1989.
But in fact, the order of this Court dated 29.8.1989 has restored the order of the first Division Bench of the High Court dated 10.7.1989 on the expiry of 8 weeks and that the 8 weeks stay had expired only by 9.9.1989 and not on 4.9.
Be that as it may, the order of this Court dated 7.9.1989 in SLP No. 10670/89 has clarified that position to the effect that the order of this Court dated 29.8.1989 shall hold the field notwithstanding of the contrary order passed by the Division Bench of the Calcutta High Court.
The "contrary order" mentioned in the order dated 7.9.1989 refers to the order dated 4.9.
The resultant position is that this 485 Court by the order dated 7.9.1989 has rendered the order of the second Division Bench of the High Court dated 4.9.1989 inoperative and ineffective.
Subsequently, this SLP No. 10670/89 was disposed of after grant of leave.
Thus the matter now stands concluded that from 10.9.
1989 onwards the order of the first Division Bench dated 10.7.1989 has become operative and executable and the interim direction given by that order is brought back to life and resuscitated.
There fore, it is open to the State Government to act in accord ance with the order dated 10.7.1989.
With this clarifica tion, the above application is disposed of with no order as to costs.
G.N. Application dis posed of.

summary:
Some employees belonging to West Bengal Civil Service (Executive) filed a writ petition before the High Court, praying for a direction to the State Government to frame appropriate seniority rules.
The High Court passed an inter im order directing the State Government to frame seniority rules and determine the inter se seniority on that basis within one month of the order.
On an application moved by the petitioners the same Judge passed an interim order that the seniority rules framed pursuant to the Court 's order would not be given effect to without leave of the Court and without notice to the writ petitioners.
On another applica tion moved by the writ petitioners, the same Judge re strained the State Government from taking any further action on the basis of the draft rules of seniority.
Later, the Judgment was delivered allowing the writ petition, holding that the draft rules were ultra vires.
Aggrieved, the State Government preferred an appeal before a Division Bench.
The Division Bench stayed the operation of the judgment and decree passed by the Single Judge.
The Division Bench also directed that the State Government may proceed with the final assessment of the seniority rules.
Aggrieved against the said order the writ petitioners filed a Special Leave Petition which was dismissed with a request to the High Court to dispose of the pending writ petition expeditiously within two months.
The High Court extended the stay till the disposal of the appeal and directed status quo.
Against this order, the original respondents in the writ petition filed a Special Leave Petition before this Court.
This Court passed an interim order to the effect that the order passed by this Court earlier would hold the field, not with standing any contrary order passed by the High Court.
Later, granting special leave, this Court observed 377 that in view of the interim order no further order need be passed.
The present application has been filed by the State for clarification of the two orders of this Court in the context of the order dated 15.9.1989 of the High Court.
Disposing of the application, this Court.
HELD: 1.1 It is the settled principle of law that any order or direction pronounced by this apex Court in exercise of its jurisdiction in any matter pending before it, that order or direction is binding on all courts within the territory of India and should be implemented and executed in all its rigour.
[484D] 1.2 From the report sent by the Division Bench of the High Court dated 15th September, 1989 it seems the latter Division Bench extended the 8 weeks stay on the grounds firstly that the Order of this Court dated 29.8.1989 has not prevented the Division Bench from passing such order and secondly that the 8 weeks stay stood vacated w.e.f. 4th September, 1989.
But in fact, the Order of the Court dated 29.8.1989 has restored the order of the first Division Bench of the High Court dated 10.7.1989 on the expiry of 8 weeks and that the 8 weeks stay had expired only by 9.9.1989 and not on 4.9.1989.
[484E F] 1.3 It is open to the State Government to act in accord ance with the order dated 10.7.1989 of the High Court.
The Order of this Court dated 7.9.1989 in SLP No. 10670/89 has clarified the position to the effect that the Order of this Court dated 29.8.1989 shall hold the field notwithstanding the contrary order passed by the Division Bench of the High Court.
The "contrary order" mentioned in the order dated 7.9.1989 refers to the order dated 4.9.199.
The resultant position is that this Court by the order dated 7.9.1989 has rendered the order of the second Division Bench of the High Court dated 4.9.1989 inoperative and ineffective.
Subse quently, SLP No. 10670/89 was disposed of after grant of leave.
Thus the matter now stands concluded that from 10.9.1989 onwards the order of the first Division Bench dated 10.7.1989 has become operative and executable and the interim direction given by that order is brought back to life and resuscitated.
[484G H; 485A B]


judgement:
Appeal No. 91 of 1957.
Appeal from the judgment and order dated March 29, 1956, of the Saurashtra High Court at Rajkot in Civil Reference No. I of 1955.
Shankarlal G. Bajaj and P. C. Aggarwal, for the appellant.
K. N. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for the respondent.
October 9.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal arises from the assessment proceedings taken against the appellant, Rajputana Agencies Ltd., Lavanpur, for its income for the assessment year 1952 53, the accounting period being the corresponding Marwadi Year ending in October, 1951.
The appellant is a ' private limited company and it was assessed to income tax and super tax by the Income tax Officer, Morvi Circle, Morvi, on a total income of Rs. 26,385.
The appellant had declared dividend of Rs. 30,000.
The Income tax Officer held that out of the said amount of dividend, Rs. 15,159 was excess dividend.
On this basis the Income tax Officer determined the additional income tax payable by the appellant at the rate of forty four pies in a rupee on the said excess dividend.
The additional income tax payable by the appellant in that behalf was computed at Rs. 3,473 15 0.
This order was passed on November 25, 1952.
The appellant filed an appeal against this order before the Appellate Assistant Commissioner of Income tax at Rajkot.
The appellate authority determined the additional income tax payable by the appellant at Rs. 2,084 12 0 on August 29, 1953.
An appeal was preferred by the appellant against the appellate order before the Income tax Appellate Tribunal, Bombay, but the appellate tribunal confirmed the order under appeal on November 27, 1954.
The 144 appellant then moved the appellate tribunal under section 66(1) of the Income tax Act and the appellate tribunal, by its order passed on April 25, 1955, referred two questions to the High Court at Saurashtra for its opinion.
In the present appeal, we are concerned with ,the second of the said two questions.
This question as framed by the tribunal was: Whether the expression " at the rate applicable to the total income of the company " as appearing in sub cl.
(b) of el.
(ii) to the second explanation to proviso to paragraph B of Part I of the First Schedule to the Indian Finance Act, 1952, means the rate at which a company 's total income is actually assessed or the rate prescribed by the respective Finance Act without taking into consideration the rebate allowed in the respective years in accordance with the provisions of the Part ' B ' States (Taxation Concessions) Order, 1950 (hereinafter called the Order).
Section 2 of the Finance Act, 1952, provides that the provisions of section 2 of, and the First Schedule to the Finance Act, 1951, shall apply in relation to income tax and super tax for the financial year 1952 53 as they apply in relation to the income tax and super tax for the financial year 1951 52 with the modification that, in the said provisions for the figures 1950, 1951 and 1952 wherever they occur, the figures 1951, 1952 and 1953 shall be respectively substituted ; and so in the present case we are really concerned with the material provisions of the Finance Act, 1951 (herein.
after called the Act).
By its judgment delivered on March 29, 1956, the High Court answered this question against the appellant and held that the expression " at the rate applicable to the total income of the company " means the rate at which the company 's total income is actually assessed.
The appellant then applied for and obtained a certificate from the High Court under article 133(1)(c) of the Constitution read with section 66A(2) of the Income tax Act that the case is a fit one for appeal to this Court.
It is with this certificate that the present appeal has been brought to this Court; and the only point which it raises for our decision relates to the construction of the expression " at the rate applicable 145 to the total income of the company " appearing in the relevant provision of the Act.
The appellant does not dispute its liability to pay additional income tax under cl.
(ii) of the proviso to paragraph B of Part I of the First Schedule to the Act.
The dispute between the parties is in regard to the rate at which the additional income tax has to be charged.
I The appellant has paid income tax on its total income in the relevant assessment year at the rate of sixteen pies in a rupee in accordance with the computation prescribed by para.
6 of the Order; and it is urged on its behalf, that the rebate to which it is entitled under the provisions of the said Order is irrelevant in determining the rate at which the additional income tax can be computed against it.
On the other hand, the respondent contends that the additional income tax has to be computed at the rate at which the appellant 's income has been actually assessed and so the rebate granted to the appellant under the said Order must be taken into account in determining the said rate of the additional tax.
It would be relevant, at this stage, to refer to the provisions of the Order under which the appellant has admittedly obtained rebate as a company carrying on its business in Saurashtra.
By the Order, the Central Government made exemptions, reductions in the rate of tax and modifications specified in the Order in exercise of the powers conferred by section 60A of the Income tax Act.
This Order applied to Part 'B ' states which included all Part 'B ' States other than the State of Jammu and Kashmir.
Paragraph 5 of the Order deals with income of a previous year chargeable in the Part 'B ' States in 1949 50.
Sub clause (3) of paragraph 5 shows that the State assessment year 1949 50 means the assessment year which commences on any date between April 1, 1949 and December 31, 1949.
We are not concerned with the provisions of this paragraph.
Paragraph 6(iii) applies to the present case.
The effect of para.
6(1), (ii) and (iii) is that in respect of so much of the income, profits and gains included in the total income as accrue or arise in any State other 19 146 than the States of Patiala and East Punjab States Union and Travancore Cochin (i) the tax shall be computed (a) at the Indian rate of tax; and (b) at the State rate of tax in force immediately before the appointed day; (ii) where the amount of tax computed under subclause (a) of clause, (1) is less than or is equal to the amount of tax computed under sub clause (b) of clause (1) the amount of the first mentioned tax shall be the tax payable; (iii) where the amount of tax computed under subclause (a) of clause (1) exceeds the tax computed.
under sub clause (b) of clause (1), the excess shall be allowed as a rebate from the first mentioned tax and the amount of the first mentioned tax as so reduced shall be the tax payable.
Thus under el.
(iii) the amount of income tax levied against the appellant is not the amount computed at the Indian rate; it represents the difference between the amounts calculated at the Indian rate of tax and that calculated at the State rate of tax.
The excess of the first amount over the second is allowed as a rebate.
In other words, the Indian rate of tax prescribed by the relevant provisions of the Act does not by itself determine the amount of tax payable by the appellant for the relevant year.
It is well known that when different Part ' B ' States merged with the adjoining States or Provinces and were made taxable territories under the Income tax Act, the operation of the Indian rate of tax was introduced by phases and rebates on a graduated scale were allowed to the assessees under the provisions of this Order.
As we have already mentioned, it is common ground that the appellant was entitled to and has obtained rebate under sub cl.
(iii) of paragraph 6 of 'the Order, with the result that his total income has been taxed to income tax at the rate of sixteen pies in a rupee.
The point for determination is whether this rebate is relevant in determining the rate at which the additional income tax has to ' be levied against the appellant under the relevant provisions of the Act.
147 Let us now consider the relevant provisions of the Act.
Section 3 of the Income tax Act which is the charging section provides that " where any Central Act enacts that income tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of the ' assessee ".
Thus, when levying income tax against the total income of the assessee, the rate at which the tax has to be levied is prescribed by the Act for the relevant year.
Section 2 of the Act provides that, subject to the provisions of sub sections
(3), (4) and (5), income tax shall be charged at the rates specified in Part I of the First Schedule; and sub section
(7) provides that " for the purpose of this section, and of the rates of tax imposed thereby, the expression " total income " means total income as determined for the purposes of income tax or super tax, as the case may be, in accordance with the provisions of the Act ".
So we must turn to the First Schedule to the Act to find the rate at which the appellant can be assessed.
Paragraph B of the said Schedule deals with companies and it provides that, in the case of every company, on the whole of total income the tax is leviable at the rate of four annas in the rupee.
There is a proviso to this paragraph and the clause which calls for our construction in the present appeal occurs in the explanation to el.
(ii) of this proviso.
This proviso deals with the case of a company which in respect of its profits liable to tax under the Act for the relevant year has made the prescribed arrangements for the declaration and payment within the territory of India excluding the State of Jammu and Kashmir of the dividends payable out of such profits and has deducted the super tax from the dividends in accordance with the provisions of sub section
(3D) or (3E) of section 18 of that Act; and in that connection, it provides: (1) where the total income, as reduced by seven annas in the rupee and by the amount, if any, exempt from income tax exceeds the amount of any dividends (including dividends payable at a fixed rate) declared 148 in respect of the whole or, part of the previous year for the assessment for the year ending on the 31st day of March, 1951, and no order has been made under subsection (1) of section 23A of the Income tax Act,, a rebate shall be allowed, at the rate of one anna per rupee on the amount of such excess (ii) where the amount of dividends referred to in clause (1i) above exceeds the total income as reduced by seven annas in the rupee and by the amount, if, any, exempt from income tax, there shall be charged on the total income an additional income tax equal to the sum, if any, by which the aggregate amount of income tax actually borne by such excess (hereinafter referred to as " the excess dividend ") falls short of the amount calculated at the rate of five annas per rupee on the excess dividend.
It would thus be seen that the object of the legislature in enacting this proviso is to encourage companies to plough back some of their profits into the industry not to distribute unduly large portions of their.
profits to their shareholders by declaring unreasonably high or excessive dividends.
In order to give effect to this intention the legislature has offered an inducement to the companies by giving them a certain rebate.
If a company does not distribute as dividends more than roughly nine annas of its profits which is specified as distributable, then the rebate of one anna is given to the company to the extent that the dividend paid by it was less than the distributable dividend.
If the company pays more than the distributable amount of dividend then it was not entitled to claim any rebate; but, on the contrary, it becomes liable to pay an additional income tax as provided in cl.
(ii) of the proviso.
In other words, the intention of the legislature appears to be that companies should no doubt declare reason able dividend and thereby invite the investment of capital in business; but they should not declare an excessive dividend and should plough back part of their profits into the industry.
It is with this object that the provision for rebate has been made.
It would be noticed that,, in addition to the rebate received by the appellant under the relevant provisions of the 149 Order, it would have been entitled to receive the rebate under el.
(1) of the proviso to paragraph B if the dividend declared by it had not exceeded the specified distributable amount.
In fact the dividend declared by the appellant has exceeded the said amount and the appellant has thus become liable to pay additional income tax in respect of the excess dividend under cl, (ii) of the proviso to paragraph B.
Under this clause, " the appellant shall be charged on the total income an additional income tax equal to the sum, if any, by which the aggregate amount of income tax actually borne by such excess (hereinafter referred to as " the excess dividend ") falls short of the amount calculated at the rate of five annas per rupee on the excess dividend ".
This provision raises the problem of determining the aggregate amount of income tax actually borne by the excess dividend; and it is to help the solution of this problem that an explanation has been added which says, inter alia, that " for the purposes of cl.
(ii) of the above proviso the aggre gate amount of income tax actually borne by the excess dividend shall be determined as follows: (i) the excess dividend shall be deemed to be out of the whole or such portion of the undistributed profit,% of one or more years immediately preceding the previous year as would be just sufficient to cover the amount of the excess dividend and as have not likewise been taken into account to cover an excess dividend of a preceding year; (ii) such portion of the excess dividend as is deemed to be out of the undistributed profits of each of the said years shall be deemed to have borne tax(a) if an order has been made under sub section (1) of section 23A of the Income tax Act, in respect of the undistributed profits of that year, at the rate of five annas in the rupee, and (b) in respect of any other year, at the rate applicable to the total income of the company for that year reduced by the rate at which rebate, if any, was allowed on the undistributed profits.
" Clause (1). explains what shall be deemed to be the 150 excess dividend and how it, should be ascertained.
Clause (ii) lays down how the portion of the excess dividend as is deemed to be out of the undistributed profits of each of the years mentioned in cl.
(ii) of the proviso shall be deemed to have borne tax.
clause (a) of cl.
(ii) is concerned with cases where an order has been made under section 23A (1) in respect of the undistributed profits of that year at the rate of five annas in a rupee.
We are not concerned with this clause in the present appeal.
It is sub cl.
(b) of el.
(ii) of the explanation to the proviso to paragraph B that falls for consideration in the present appeal.
The appellant 's case is that the expression " at the rate applicable to the total income " means the rate prescribed by paragraph B of the Act and not the rate at which income tax has actually and in fact been levied.
This contention has been rejected by the High Court and the appellant urges that the High Court was in error in rejecting its case.
The argument is that the words " at the rate applicable to the total income of the company " must be strictly and literally construed and reliance is placed on the principle that fiscal statutes must be strictly construed.
On the other hand, as observed by Maxwell " the tendency of modern decisions upon the whole is to narrow materially the difference between what is called a strict and beneficial construction (1) ".
Now the words " the rate applicable " may mean either the rate prescribed by paragraph B or the rate actually applied in the light of the relevant statutory provisions.
"Applicable", according to its plain grammatical meaning, means capable of being applied or appropriate; and appropriateness of the rate can be determined only after considering all the relevant statutory provisions.
In this sense it would mean the rate actually applied.
In the present case, if sub cl.
(b) is read as a whole, and all the material words used are given their plain grammatical meaning, its construction would present no serious difficulty.
When the clause refers to the rate applicable, it is necessary to remember that it refers to the rate applicable to the total income of the company for (1) Maxwell on " Interpretation of Statutes ", 10th Ed.
p. 284.
151 that year.
In other words, the clause clearly refers to the specific or definite rate which is determined to be applicable to the taxable income of the company for the specific year; and it is not the rate prescribed by the Act for the relevant year generally in reference to incomes of companies.
The result is that, for determining the aggregate amount of income tax actually borne by the excess dividend, the department must take into account the rate at which the income of the company for the specific year has in fact been applied or levied.
Besides, in construing the words "I the rate applicable " we must bear in mind the context in which they are used.
The context shows that the said words are intended to explain what should.
be taken to be " the tax actually borne ".
If the legislation had intended that the tax actually borne should in all, cases be determined merely by the application of the rate prescribed for companies in general, the explanation given by the material clause would really not have been necessary.
That is why in our opinion, the context justifies the construction which we are inclined to place on the words " the rate applicable ".
The same position is made clear by the further provision in sub cl.
(b) itself which requires that the relevant rate has to be reduced by the rate at which the rebate, if any, has been allowed on the undistributed profits; which means that, for determining the rate in sub cl.
(b), it is necessary to take into account the rebate which may have been allowed to the company under el.
(1) of the proviso to paragraph B, so that in such a case the rate applicable cannot be the rate prescribed in paragraph B of the Act; it must be the rate so prescribed reduced by the rate at which the rebate has been granted under cl.
(1) of the proviso to paragraph B.
It is thus clear that the words " rate applicable in such cases mean the rate determined after deducting from the rate prescribed by paragraph B the rate of rebate allowed by el.
(1) of the proviso to the said paragraph.
Therefore, at least in these cases, the material words mean the rate actually applied.
If that be the true position, the rate applicable must in 152 all cases mean the rate actually applied.
The same words cannot have two different meaning,% in the same clause.
Incidentally we may point out that the provision of the Act in regard to the payment of additional income tax appears to be intended to impose a penalty for distributing dividends beyond the distributable.limit mentioned by the statute.
The method prescribed for determining the amount of this additional income tax is this.
Calculate the amount at the rate of five annas per rupee on the excess dividend and deduct from the amount so determined the aggregate amount of income tax actually borne by such excess dividend; the balance is the amount of additional income tax leviable against the company.
In adopting this method, if rebate admissible under cl.
(1) of the proviso to para.
graph B has to be deducted from the rate prescribed, it is difficult to understand why a rebate granted under paragraph 6(iii) of the Order should not likewise be deducted.
We accordingly hold that the rate applicable in sub cl.
(b) of cl.
(ii) of the explanation read with cl.
(ii) of the proviso to paragraph B of Schedule I of the Act means the, rate actually applied in a given case.
On, this construction the rate at which the appellant is liable to pay the additional income tax would be the difference between the rate of five annas and the rate of sixteen pies in a rupee at which the appellant has in fact paid income tax in the relevant year.
That is to say, the additional income tax is leviable at the rate of forty four pies in a rupee.
In its judgment, the High Court of Saurashtra has referred with approval to the decision of the Bombay High Court in Elphinstone Spinning and Weaving Mills Co., Ltd. vs Commissioner of Income tax, Bombay City(1).
In this case, Chagla C. J. and Tendolkar J. have held that if a company has no taxable income at all for the assessment year 1951 52 and in that year it pays dividends out of the profits earned in the preceding year or years, additional income tax cannot be levied on the company by reason of the fact that it has paid an excess dividend within the meaning of that 153 expression in, the proviso to paragraph B of Part I of the Act.
We are not concerned with this aspect of the matter in the present appeal.
However, in dealing with the question raised before them, the learned judges have incidentally construed the relevant words " rate applicable" as meaning the rate actually applied; and their observations do support the view taken by the Saurashtra High Court in the present case.
The result is the appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
The assessee, a private limited company in Saurashtra, was assessed for the assessment year 1952 53 on a total income of Rs. 26,385.
It was assessable at the rate of four annas per rupee but in view of the provisions of the Part B States (Taxation Concession) Order, 1950, it was actually assessed at the rate of sixteen pies per rupee.
The assessee had declared dividend of Rs. 30,000 out of which Rs. 15,159 was found to be excess dividend.
On this excess dividend the assessee was liable to pay additional income tax and the dispute was regarding the rate at which tax was to be computed.
Clause (ii) of the proviso to para.
B of Part.
I of the First Schedule to the Finance Act, 1951, which applied to the case, provided that the additional income tax was to be equal to the sum by which the aggregate amount of income tax actually borne by the excess amount fell short of the amount Calculated at the rate of five annas per rupee on the excess dividend.
Sub clause (b) of cl.
(ii) to the second explanation to proviso to para.
B provided that the aggregate amount of income tax actually borne by the excess dividend was to be determined at the rate applicable to the total income of the company.
The assessee contended that the words 'at the rate applicable to the total income of the company ' meant the rate prescribed by para.
8 of the Act, i.e. four annas per rupee, and not the rate as reduced by the Order at which the income tax had actually and in fact been levied and that consequently it was liable to pay additional income tax on the excess dividend at the rate of one anna per rupee only.
Held, that the expression 'rate applicable to the total income of the company ' meant the rate actually applied and that the assessee was rightly charged at the rate of forty four pies per rupee being the rate by which the rate at which the assessee was actually assessed fell short of the rate of five annas per rupee.
The clause referred to the specific or definite rate which was determined to be applicable to the taxable income of the company for that specific year and not to the rate prescribed by the Act for the relevant year generally in reference to incomes of companies.
143 Elphinstone Spinning and Weaving Mills Co. Ltd. vs Commis sioner of Income tax, Bombay City, , con sidered.