judgement:
No. 1854 of 1973.
Petition under Article 32 of the Constitution of India.
V.M. Tarkunde, Shyania Pappu, D. D. Sharma and Ashok Kunnar Srivastava, for the petitioners.
L.N. Sinha, Solicitor General of India and R. N. Sachthey for respondents nos.
B. P. Maheshwari for respondent No. 3.
R.K. Garg, section C. Agarwal, section C. Bhatnagar, V. J. Francis and section K. Mehta, for respondents nos.
The Judgment of the Court was delivered by UNTWALIA, J.
The four petitioners in this petition under Article 32 of the Constitution of India are working as Additional District & 556 'Sessions Judges in the Delhi Higher Judicial Service at Delhi.
Their ,prayers in ,his writ petition are to strike down Rules 9(a) and 11 of the Delhi Judicial Service Rules, 1970 as being ultra vires and violative of Articles 14 and 16 of the Constitution and to declare Rule 8 of Delhi Higher Judicial Service Rules, 1970 as void and unconstitutional.
Their further prayer is to quash the fixation of the seniority of the petitioners and respondents 3 to 6 and to place petitioners 1 to 4 above respondents 3 to 5 and petitioners 2 to 4 above respondent 6 in the ,,gradation of seniority in Delhi Judicial Service and Delhi Higher Judicial Service.
All the four petitioners originally belonged to the Punjab Civil service (Judicial).
Shri Joginder Nath, petitioner No. 1 joined ,he said service on 2.7.1956, Shri D. C. Aggarwal, petitioner No. 2 on 2.7.1957, Shri section R. Goel, petitioner No. 3 on 8.7.1957 and Shri P. L. Singla, petitioner No. 4 on 10.10.1958.
Prior to 1966, the Union .Territory of Delhi for the purposes of administration of Justice was included within the territorial Jurisdiction of the erstwhile Punjab High ,Court and Presiding Officers of the Courts at Delhi were posted by transfer from the State of Punjab.
There was no separation of Executive and Judiciary.
The Magistrates were selected on ad hoc basis from the States of U.P. and Punjab and were posted to work as such ::at Delhi.
Later on creation of the States of Punjab and Haryana the officers of Punjab and Haryana Civil Service (Judicial) cadre used to be posted in Delhi against all judicial posts.
A separate High Court for Delhi was constituted on the 31st October, 1966.
The arrangement in regard to Judicial officers in the lower Courts however continued as before.
In 1969 under the Union Territories (separation of Judicial and Executive functions) Act, the magistracy in Delhi was split up into two parts with effect from 2.10.1969.
Some magistrates ,.of the State Civil Service, Executive Branch, were transferred to work under the superintendence and control of the High Court of Delhi while others were assigned Executive duties and remained under the ,control of the Delhi Administration as before.
In pursuance of the 'Scheme of separation aforesaid, respondents 3 to 5 who were working as Judicial Magistrates from before were appointed as Chief or Additional Chief Judicial Magistrates under the aforesaid Union Territories Act of 1969.
They were formerly Officers of the U.P. Judicial 'Officers Service.
Respondent No. 6 was a member of the Haryana Civil Service (Judicial).
Respondents 3 to 5 were performing the functions of Revenue Officers and Judicial Magistrates in U.P. and .thereafter in Delhi.
The petitioners case is that on 27 8 1970 the Lt., Governor of Delhi, respondent No. 2 as Administrator of the Union Territory framed Delhi Higher Judicial Service Rules, 1970 and Delhi Judicial Service Rules, 1970 under Article 309 of the Constitution read with certain notifications of the Government of India, Ministry of Home Affairs.
A Selection Committee was constituted in accordance with Rule 7 of the Delhi Judical Service Rules.
On the basis of the recommendations of the Selection Committee, respondent No. 2 made 'appointment of officers by way of initial recruitment to the Delhi 557 Judicial Service under Rule 8.
61 officers were selected.
It may however, be stated here that as per the statement in the counter affidavit filed on behalf of respondent No. 2 only 49 officers joined.
The petitioners 1 to 4 were placed in the seniority list of the Delhi Judicial Service at serial nos.
6, 9, 12 and 13 respectively while the respective serial nos.
assigned to respondents 3 to 6 were 1, 2, 4 and 7.
It would thus be seen that respondent No. 6 was junior to petitioner No. 1 but senior to petitioners 2 to 4 and respondents 3 to 5 were shown us senior to all the petitioners.
The petitioners claim that they were formerly permanent members of the Punjab Civil Service Judicial Branch in the time scale of Rs. 4001250.
They had been put in the selection grade also in the scale of Rs. 1300 1500.
On the other hand, respondents 3 to 5 were euphemistically called Judicial Officers in U.P. the State of their parent service.
They were in a lower scale of Rs. 300 900.
The next higher scale on being appointed to the post of Additional District Magistrates was Rs. 400 1000/ .
The petitioners ' grievance is that Rule 11 of the Delhi Judicial Service Rules permitting the fixation of the seniority of the selected officers under Rule 9(a) on the basis of length of service was bad.
It was fixed by a notification dated 2.8.1971 and was subject to revision on good cause shown.
Respondents 3 to 5 had joined service in the year 1947 as Judicial Officers which was not a cadre service.
It was only on 1.4.1955 that a regular cadre of Judicial officers was created in U.P. but it was different and distinct from the U.P. Civil Service Judicial Branch.
Petitioners 1 and 2 were working as Assistant Sessions Judges at the time of initial constitution of the Delhi Judicial Service while none of the respondents 3 to 5 was appointed as Assistant Sessions Judge, in spite of their longer service in the cadre of U.P. Judicial Officers Service.
The petitioners case further runs thus : Petitioner No. 1 was promoted to the post of Additional District Judge with effect from 24.1.1972and the petitioners 2 to 4 were so promoted with effect from 25.3.1972.Respondents 3 to 5 were not considered to have qualified themselves for being promoted as Addl.
District Judges.
One, of the reasons for not promoting them to the higher judicial service was that they had not received requisite training in I the Civil Law.
Accordingly they were by passed and in the meantime they were given powers of the Subordinate Judges to enable them to get requisite training in Civil Law.
Respondent No. 6 was posted as Sub Judge, First Class and demoted from the post of a Senior Sub Judge on account of inefficiency.
He was not enjoying the selection grade of Haryana Civil Service (Judicial Branch) at the time of his appointment to Delhi Judicial Service while the petitioners were in such grade in their parent service.
Respondents 3 to 5 were later promoted as Additional District Judges on 2.6.1972 and respondent No. 6 was promoted in June, 1973.
Thus all of them were promoted to the higher Judicial Service after the Petitioners.
Yet they were made to ranks senior to petitioners 1 to 4 under Rule 8 of the Delhi Higher Judicial Service Rules.
Respondent No. 6 in spite of his appointment 558 as an Additional District Judge later than petitioners 2 to 4 was allowed to rank senior to them on the basis of Rule 8 aforesaid.
Mr. Tarkunde, learned counsel for the petitioners submitted support of the Writ Petition the.
following points : 1.
Rule 9(a) of the Delhi Judicial Service Rules was bad as it was not framed in accordance with Article 234 of the Constitution and because it permitted the initial appointment to the Delhi Judicial Service of persons who were not in any Judicial service from before.
In any event respondents 3 to 5 could not be _appointed to the Delhi Judicial Service under Rule 9(a).
Rule 1 1 of the Delhi Judicial Service Rules is bad as it infringes Article 14 of the Constitution in as much as it equates length of Judicial service with the length of non judicial service for the purpose of fixation of seniority and thus it makes unequals as equals.
Rule 8 of the Delhi Higher Judicial Service Rules is bad because it fixes the seniority in higher service according to the seniority in the lower one.
A counter affidavit has been filed on behalf of respondent No. 2 and learned Solicitor General appeared to oppose the rule on his behalf.
various counter affidavits were filed on behalf of respondents 3 to 6 and Mr. Garg who appeared on their behalf informed us that respondent No. 3 has since retired and the petitioners could not be ,/granted any relief against him.
He, however, raised a preliminary objection to the maintainability of the Writ petition on the ground of delay.
He submitted that the seniority fixed on 2.8.1971 by list Annexure E/1 to one of the rejoinders could not be challenged by filing a writ application in September, 1973.
He further pointed out that the said seniority list has been revised and substituted by a new list dated 2.6.1973, a copy of which is Annexure R 4/1.
The peti tioners have not challenged the correctness of that list in which had merged the first list dated 2.8.1971.
In our opinion on the facts and in the circumstance of this case the preliminary objection raised on behalf of the respondents cannot succeed.
The first list fixing the seniority of the Judicial officers initially recruited to the Delhi Judicial Service was issued on 2.8.1971 This was subject to revision on good cause being shown.
Petitioners also, as we shall show hereinafter in this Judgment on one ground or the other, wanted their position to be revised in the seniority list.
They, however, did not succeed.
A revised seniority list was issued on 2,6,1973.
The filing of the writ petition was not designedly delayed thereafter. 'Since the petitioners ' position in the seniority list vis a vis respondents 3 to 6 had not been disturbed in the new list dated 2.6.1973 it was sufficient for the petitioners to challenge the list dated 2.8.1971.
We shall point out in this judgment that except the promotion to the posts of Additional District Judges, the seniority in relation to which 559 also is under challenge in this writ application, nothing special had happened creating any right in favour of the respondents or no such position had been created the disturbance of which would unsettle the long standing settled matters.
The writ application, therefore, cannot be thrown out on the ground of delay in regard to any of the reliefs asked for by the petitioners.
It has been pointed out by Hidayatullah, C.J. in the case of Tilokchand Motichand & Ors.
vs H. B. Munshi & Anr.(1) at page 831 "The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court.
" The learned Chief Justice had said at page 832.
"Therefore, the question is one of discretion for this Court to follow from case to case.
There is no lower limit and there is no upper limit.
A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total time to the litigant to move this Court under article 32.
Similarly in a suitable case this Court may entertain such a petition even after a lapse of time.
It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose.
In the case of Rabindra Nath Bose & Ors.
vs Union of India & OrS.(2) Sikri J, as he then was, delivering the judgment on behalf of the Court has said at page 712 : "The highest Court in this land has been given Original Jurisdiction to entertain petitions under article 32 of the Constitution.
It could not have been the intention that this Court would go into stale demands after a lapse of years.
" But under what circumstances a petition under article 32 of the Constitution should be thrown out on the ground of delay, has been pointed out in the last paragraph on that page by observing.
"it would be unjust to deprive the respondents of the rights which have accrued to them.
Each person ought to be entitled to sit back.
and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.
" On the facts of this case the petition was held to have been filed after inordinate delay.
In a recent decision of this Court, Bhagwati, J. delivering the judgment on behalf of the bench of five Judges in Ramchandra Shankar Deodhar and others.
vs The State of Maharashtra and others(3) it age 265 has said "In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition.
Each case must depend on its own facts.
" on the facts and in the circumstances of this case we do not feel persuaded to throw out the petition on the ground of delay as there is none to disentitle the petitioners to claim relief.
The two impugned rules in this case were made by the Lt. Governor of Delhi in consultation with the High Court of Delhi in exercise of his powers conferred by the proviso to article 309 of the Constitution (1) (2) (3) A.I. R. , L 319 Sup CI/75 560 r/W certain notifications of the Government of India, Ministry of Rome Affairs.
The Delhi Higher Judicial Service Rules regulating the recruitment and condition of higher service could indisputably be made under the proviso to article 309 article 234 says : "Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with State Public Service Commission and with the High Court exercising Jurisdiction in relation to such State.
" It was not disputed on either side that the word "State" in the said Article would include a Union Territory also.
But the learned Solicitor General pointed out that there was no judicial service in the Union Territory of Delhi before its creation by initial recruitment to the service under the Delhi Judicial Service Rules.
The initial recruitment to the service could be made only under la valid rule framed under article 309 Framing of a rule under article 234 was not necessary.
We may, however, point out that part IV of Delhi Judicial Service Rules refers to recruitment to the service after the initial recruitment.
In our opinion, however, the rules framed by the Lt. Governor for appointment to the Delhi Judicial Service either at the initial stage or thereafter cannot be held to be invalid merely because they were not framed in accordance with article 234.
Rules framed under article 309 in consultation with the Delhi High Court were good and valid and cannot be assailed.
When it was pointed out to the learned counsel of the petitioners that on the argument advanced with reference to article 234 even the initial recruitment of the petitioners to the Delhi Judicial Service was in jeopardy, the point was ultimately given up and not pressed.
The constitution and strength of the Delhi Judicial Service as provided in rule 3 of the Delhi Judicial Service Rules will be of the service consisting of two grades namely Grade I (Selection Grade) and Grade 2.
The posts in Grade I shall be civil posts, class I Gazetted, and those in Grade 11 shall be civil posts, class 11 Gazetted.
Clause (d) of Rule 3 provides A "person appointed to the service shall be designated as Subordinate Judge or Judicial Magistrate or as Subordinate Judge or Judicial Magistrate or as Subordinate Judge cum Judical Magistrate in accordance with the duties being discharged by him for the time being." The posts borne on the permanent strength of the service and the posts included therein have been specified in the Schedule appended to the rules.
10% of the permanent strength of the service will be the posts in the selection grade.
A Selection Committee was constituted consisting of 3 Hon 'ble Judges of the Delhi High Court, the Chief Secretary and a Secretary of the Delhi Administration.
The initial recruitment was made by the Lt. Governor in accordance, with Rule 9 which reads, as follows : "9.
For initial recruitment to the service, the Selection Committee shall recommend to the Administrator suitable persons for appointment to the service from amongst the following : (a) Subordinate Judges and Law Graduate Judicial Magistrates working in the Union territory of Delhi on deputation from other States; 561 (b) members of Civil Judicial cadres of States whose names may be recommended by their respective State Governments for appointment, and (c) members of the Delhi Himachal Pradesh and Andaman and Nicobar Islands Civil Service, who are Law Graduates.
The consent of the officer to be recommended and the consent of his parent Government shall be necessary before his appointment to the service.", It would thus be noticed that the Selection Committee was to recommend only "suitable persons" for appointment to the service.
It is stated in paragraph 12 of the writ application that clause (c) of Rule 9 was struck down by the High Court of Delhi in Writ Petition No.1322/70 D. K. Paddar vs Lt. Governor at Delhi.
We are not concerned in this case with clause (c).
The source of the initial recruitment to the service under clause (a) was Subordinate Judges who necessarily belong to the Judicial cadre of a State and Law Graduate Judicial Magistrates (not merely Judicial Magistrates) working in the Union territory of Delhi.
The creation of the service being only in two grades, grade 2 and grade I (selection grade) and there being no provision for appointment in the selection grade at the stage of the initial recruitment of the service it is plain that all those who fulfilled the qualifications laid down in clause (a) of Rule 9 and who were found "suitable" by the Selection Committee could be initially recruited to the Delhi Judicial Service.
Even Judicial Magistrates have been put on a par with the Subordinate Judges.
None of the respondents 3 to 5 either in their parent service in U.P. or in the Union Territory of Delhi was a Magistrate on the Executive side.
All of them were doing the work of Judicial Magistrates and of Revenue officers which also included performance of judicial duties.
It is difficult to find any trace of invalidity in rule 9(a) of the Delhi Judicial Service Rules.
For the purpose of initial recruitment to the service, officers of the judicial cadre of a State and officers although not belonging to the judicial cadre but by and large performing the judicial functions could be put together.
There was no infraction of articles 14 and 16.
In the counter affidavit filed on behalf of respondent 2 it is mentioned that respondents 3 to 5 were in the regular cadre of U.P. Judicial Officers w.e.f. 1.4.1955.
It has been pointed out by this Court in the case of Chandra Mohan vs State of Uttar Pradesh & Ors.
(1) at page 80 "that the expression "judicial officers" is a euphemism for the members of the Executive department who discharge some revenue and magisterial duties." Strictly speaking the expression "Judicial duties" was held to be a misleading one for the purpose of recruitment to the higher judicial service in accordance with article 233 of the Constitution.
In the context and set up of the Article it was pointed out that the source of service for appointment as a District Judge must be the Judicial service and not any service.
It is plain that the same principle cannot apply to the recruitment of persons to the lower judicial service obviously not covered by article 233.
(1) 562 Rule 11 of the Delhi Judicial Service Rules reads as follows "11.
The Selection Committee shall arrange the seniority of the candidates recommended by it in accordance with the length of service rendered by them in the cadre, to which they belong at the time of their initial recruitment to the service.
Provided that the inter se seniority as already fixed in such cadre shall not be altered.
" The question for determination is was there any infirmity in rule 1 1 ? Did it put unequals with equals and violated article 14 of the Constitution? Was the rule arbitrary and discriminatory? Once the Selection Committee found persons belonging to clause (a) of Rule 9 suitable for appointment to the service it was under a duty and obligation to arrange the list of suitable persons by placing them in proper places in the matter of seniority.
They were all being initially appointed to the Delhi Judicial Service wherein there was no separate gradation of posts.
The assignment of duties was to follow on the basis of seniority list.
Arranging the seniority of the candidates recommended by the Selection Committee in accordance with the length of service rendered by them in the judicial cadre to which they belonged at the time of their initial recruitment to the service was perfectly good.
The petitioners could not have any grievance in that regard.
On their initial recruitment to the Delhi Judicial Service they retained their original seniority inter se as was assigned to them in their parent cadre.
Was it possible to have a different yardstick, some other date or shorter period for fixation of the seniority of the law graduates judicial magistrates on their initial recruitment to the service ? from which date their seniority ought to have been reckoned ? Was it possible to treat them as the first and the new recruits to the Delhi Judicial Service.
Even so what would have been the basis of determining their seniority inter se ? The questions posed are suggestive of the answers.
Taking the length of service rendered by the candidates in their respective cadres for the purpose of fixation of seniority under rule 1 1 of the Delhi Judicial Service Rules was justified, legal and valid.
Had it been otherwise it Would have been discriminatory.
It was not equating unequals with equals.
It was merely placing two classes at par for the purpose of seniority when it became a single class in the integrated judicial service of Delhi.
For the purpose of fixation of seniority it would have been highly unjust and unreasonable to take the date of their initial recruitment to the service as their first appointment.
Nor was it possible to take any other date in between the period of their service in their parent cadre.
It would have been wholly arbitrary.
In our judgment, therefore, there was no escape from the position that the entire length of service of the two classes of officers had got to be counted for.
the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial service.
It was not possible or practical measure their respective merits for the purpose of seniority with mathematical precision by a barometer.
Some formula doing largest good to the largest number had to be evolved.
The only reason able and workable formula which could be evolved was the one engrafted in rule 11 of the Delhi Judicial Service Rules.
563 The decision of this Court in Kunnathat Thathunni Moopil Nair vs The State of Kerala and another(1) relied on by the petitioners is clearly distinguishable.
Sinha, C.J. 'in his judgment at page 92 pointed out the nature of equal burden of tax placed upon unequals and said "It is clear, therefore, that inequality is writ large on the Act and is inherent in the very provisions of the taxing section.
It is also clear that there is no attempt at classification in the provisions of the Act.
Hence, no more need be said as to what could have been the basis for a valid classification.
It is one of those cases where the lack of classification creates inequality." In the instant case for the purpose of fixing the seniority at the stage of the initial recruitment to the Delhi Judicial Service, no other classification, no different yardstick was possible.
The inequality was avoided to a large extent by rule 1 1.
The case of Jalan Trading Co. (Private Ltd.) vs Mill Mazdoor Union (2) is also of no help to the petitioners.
Distinguishing Moopil Nair 's case [1961(3) S.C.R. 77] Shah, J. as he then was pointed out at page 36 : "If the classification is not patently arbitrary, the Court will not rule it discriminatory merely because it involves hardship or inequality of burden.
Equal treatment of unequal objects, transactions or persons is not liable to be struck down as discriminatory unless there is simultaneously absence of a rational relation to the object intended to be achieved by the law.
" The principles enunciated when applied correctly to the facts of the instant case rather go against the petitioners. "Equal treatment of unequal objects" even if we prefer to call them different classes, is not discriminatory in this case ,as there is a rational relation to the object intended to be achieved by the law.
The object of the Delhi Judicial Service Rules was to create, a service by integration of different classes of persons already working as Judicial officers.
The fixation of seniority on the basis of length of service in their respective parent cadres bad a rational nexus to the object intended to be achieved.
One of us in the case of The State of Gujarat and another etc.
vs Shri Ambica Mills Ltd. Ahmedabad etc(3) delivering the judgment on behalf of the Court hag pointed out at page 1313 : "A reasonable classification is one which includes all who are similarly situated and non who are not.
The question then is : what does the phrase 'similarly situated ' mean? The answer to the question is that we must look beyond the classification to the purpose of the law.
A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law.
The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good.
" In the instant case treat in the two classes as one for the purpose of initial recruitment and fixation of seniority was reasonable as the classification was one which included all persons who were similarly situated with respect to the purpose of the law.
We have therefore no difficulty in rejecting the argument put forward on behalf of the petitioners that rule 11 of Delhi Judicial Service Rules is bad as being violative of articles 14 and 16 of (1) ; (2) ; (3) ; 564 of the Constitution.
It was not suggested on behalf of the petitioners and rightly so that fixation of their seniority vis a vis respondents 3 to 6 in the Delhi Judicial Service was not in accordance with rule 11.
Two more facts need be noted here in connection with the question of seniority and they are these : A notification dated September 30, 1967 was issued by the Governor of U.P., a copy of which is Annexure 'H ' to the rejoinder on behalf of the petitioners to the counter affidavit filed by respondent 2 under article 237 of the Constitution directing that the remaining provisions of Chapter VI of Part VI of the Constitution shall, With effect from October 2, 1967, apply in relation to such magistrates including additional District Magistrates (Judicial), in the State as belong to the Uttar Pradesh Judicial officers Service as they apply in relation to persons appointed to the Judicial Service of the State subject to the certain exceptions and modifications mentioned in the said notification.
It is no doubt true that respondents 3 to 5 were already on deputation to the Union territory of Delhi.
Yet they could not be denied the advantage of this notification in principle.
They were doing the judicial work in Delhi and on initial recruitment to the Delhi Judicial Service became its fulfledged members.
The letter dated September 29, 1967, a copy of which is Annexure R 4/5 to the supplementary affidavit of the respondent No. 4 written by the Chief Secretary to the Govt.
of U.P. to the Registrar, High Court of Allahabad also supports the above position.
It is admitted that on or from 2.10.1969 there was no separation of Executive and Judiciary in Delhi also and all officers working on the judicial side were placed under the control of the Delhi High Court.
Annexure "A" to the counter affidavit of respondent No. 2 is a copy of the order dated 18th December, 72 passed by Hon 'ble Mr. Justice V. section Deshpande and Hon 'ble Mr. Justice section Rangarajan of the Delhi High Court.
The representations of the petitioners were rejected.
The order indicates that the initial recruits were given seniority ac cording to the length of service in their cadres.
The representationists accepted this position and the matter was close.
Their new stand that since they belonged to the selection grade of Subordinate Judges in the Punjab and Haryana Judicial Service cadre they ought to have been appointed to such a grade in Delhi Judical Service even at the time of initial recruitment was not accepted to be correct.
It is, therefore, plain that on initial recruitment to the Delhi Judicial Service all those who are recruited including the petitioners and respondents 3 to 6 were at par and the fixation of their seniority in accordance with rule 11 of the Delhi Judicial Service Rules was legal and valid.
The facts in relation to the 6th respondent are these.
This respondent also formerly belonged to the combined Punjab Civil Service (Judicial) P.C.S. cadre.
This respondent and petitioner No. 1 were selected in the open competition together and later joined the Judicial Service in the year 1956.
Both were confirmed in the year 1958.
Petitioner No. 1 was senior to respondent No. 6 Petitioners 2 to 4 joined the same service later and were junior to respondent No. 6.
When the State of Punjab was bifurcated into two States of Punjab and Haryana of 1.11.1966 the petitioners were allotted the cadre of 565 Punjab and respondent No. 6 came to the cadre of Haryana.
On Constitution of the Delhi Judicial Service, respondent No. 6 was recommended by the Haryana St ate and was initially recruited to the Delhi Service which he joined on 1.9.1971.
Eventually respondent No. 6 was placed in the selection grade w.e.f. 25.3.1972 and he was promoted as Additional District & Sessions Judge w.e.f.
1.6.1973.
It would thus be seen that allocation of a place of seniority in the Delhi Judicial Service to respondent No. 6 below petitioner No. 1 and above petitioners 2 to 4 was valid and justified.
Coming to the Delhi Higher Judicial Service Rules, 1970 we find that under rule 6 the initial recruitment to the higher service was made.
None of the petitioners or the respondents was initially recruited.
The regular recruitment to the higher service after the initial recruit ment has been provided in rule 7 in these terms "7.
Regular recruitment Recruitment after the initial recruitment shall be made : (a) by promotion from the Delhi Judicial Service; (b) by direct recruitment from the Bar.
Provided that not more than 1/3rd of the substantive posts in the service shall be held by direct recruits.
" Rule 8 prescribes the mode of determination of inter se seniority of the promotees and the seniority of the direct recruits vis a vis promotees.
It runs as follows : "8.
(1) The inter se seniority of members of the Delhi Judicial Servicepromoted to the service shall be the same as in the Delhi Judicial Service.
(2) The seniority of direct recruits vis a vis Promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on.
" We may notice here two rules viz. Rules 16 and 17 relating to temporary appointments forming part V of the Delhi Higher Judicial Service Rules.
They read as follows : "16 (1) The Administrator may create temporary posts in the service.
(2)Such posts shall be filled, in consultation with the High Court, from amongst members of the Delhi Judicial Service." "17.
Notwithstanding anything contained in these rule the Administrator may, in consultation with the High Court, fill substantive vacancies in the service by making temporary appointments thereto from amongst members of the Delhi Judicial Service.
" It would thus be seen that there are two types of appointments to Delhi Higher Judicial Service one by regular recruitment, the source of which is by promotion from the Delhi Judicial Service and by direct 566 recruitment from the Bar.
Rule 8 prescribes the mode of determination of seniority of such regular recruits.
The inter se seniority of the members of the Delhi Judicial Service promoted to the higher service has got to be the same as in the lower rank.
As a matter of construction it necessarily follows that it would be the same provided the promotion from the lower to the higher service is at the same time.
Learned Solicitor General appearing for respondent No. 2 in his usual fairness conceded to this interpretation and added that it cannot but be so.
If a member of the Delhi Judicial Service is superseded at the time of recruitment under rule 7 by his junior but gets a chance of promotion later, it is obvious that he cannot retain his seniority in the lower rank.
All candidates on appointment to the higher service have got to be on probation for a period of two years under rule 12(2) and ordinarily and generally they would be confirmed at the end of the said period of two years in accordance with rule 13.
Strictly speaking the question of determination of inter se seniority under rule 8 will crop up at the time of the confirmation of the appointee.
In Chandramouleshwar Prasad 'vs Patna High Court I & Ors.
(1) referring to the relevant rules of the Bihar Superior Judicial Service Rules, Mitter, J delivering the judgment on behalf of this Court said at page 671 : "It may be noted at this stage that the gradation of the officers by the High Court or maintaining any list showing such gradation is not sanctioned by any service rules.
The Bihar Superior Judicial Service Rules to which our attention %,as drawn do not contain any provision which would entitle the High Court to make such a gradation or act thereon.
Rule 5 of the said Rules prescribes that ordinarily appointments to the post of Additional District and Sessions Judges shall be made by the Government in consultation with the High Court and under R. 8 a person appointed either on substantive or officiating basis to the post of Additional District and Sessions Judge shall draw pay on the lower time basis.
Rule 16(b) provides that seniority inter se of promoted officers shall be determined in accordance with the dates of their substantive appointments to the service and R. 16(d) lays down that more than one appointment is made by promotion at one time, the seniority inter se of the officers promoted shall be in accordance with the respective seniority in the Bihar Civil Service (Judicial Branch).
The question of seniority therefore has to be determined when the persons appointed either temporarily or on an officiating basis are given substantive appointments.
So far as the petitioner and the three respondents are concerned that time is yet to come.
" On a parity of reasoning it follows that question of determination of seniority comes in at the time of confirmation of the appointees.
Two members of the Delhi Judicial Service confirmed in the higher service at the same time will retain their inter se seniority as in the lower service.
But if they are not confirmed at the same time then one who is confirmed earlier will be senior to the one who is confirmed later, even though they might have been appointed on probation under rule 7 at the same time.
We may, however, add that for practical purposes and for the facility of administration the High Court for the (1) ; 567 time being may consider the promoted probationers as retaining their inter se seniority of the lower service if they are appointed at the same time until they are confirmed.
In our judgment members of the Delhi Judicial Service coming to the higher service on temporary appointments either under rule 16 or rule 17 of the Delhi Higher Judicial Service Rules cannot claim the benefit of the inter se seniority under rule 8.
There are no rules prescribing the mode of determination of inter se seniority of such temporary appointees or permitting them to count their officiation in the temporary appointments for the purpose of their seniority on their being appointed substantively.
The question of determination of interse seniority of the promotees under rule 8(1) as already stated would crop up only after the promotees have been substantively appointed.
We may add here also that as between the temporary appointees for practical purposes and for the facility of the administration it will be open to the High Court to permit the promotees to retain their seniority in the lower judicial service after they are temporarily appointed at the same time till they continue in the temporary appointments.
The vires of rule 8(1) of the Delhi Higher Judicial Service Rules was challenged by Mr. Tarkunde, learned counsel for the petitioners on the ground that rule 8(1) equates all who are promoted to the higher service and permits them to retain their seniority in the lower service irrespective of the time of their appointment.
Counsel submitted that those who came earlier to the higher service whether under rule 7 or under rule 16 or 17 should have been allowed to rank senior to those who came to be appointed either substantively or temporarily to the higher service later.
The attack on the constitutionality of rule 8(1) is obliterated if by construction it is held, as it has been done above, that the question of retention of seniority in the lower service arises only when the promotion is at the same time and not otherwise.
In absence of such an interpretation it would be a truism to say that rule 8(1) would be discriminatory and violative of article 14 of the Constitution.
But with the aid of well established cannons of interpretation we see no difficulty in saving the constitutionality of the rule by interpreting it in a reasonable, sensible and just manner as we have done in this case.
The second part of the argument of Mr. Tarkunde to rope in the temporary appointees for the purpose of determination of inter se seniority of the promotees under rule 8(1) is obviously wrong and cannot be accepted as sound.
It may also be added that sub rule (2) of rule 8 will militate against the acceptance of the submission aforesaid.
Judging the facts of the instant case in the light of the interpretation which we have put to the relevant rules of the Delhi Higher Judicial Service it will be noticed that the grievance of the petitioners in relation to the seniority of respondents 3 to 6 is either unjustified or premature.
Even though respondent No. 3 has already retired and determination of such a question vis a vis him would be futile, while referring to the relevant facts of the case we may point out that the grievance of the petitioners as against respondents 3 and 4 is wholly unjustified.
568 Annexure 'J ' is a copy of the notification dated 20th January, 1972 whereby the Administrator of Delhi was pleased to appoint in consultation with the High Court Shri Joginder Nath, petitioner No. 1 and one Om Prakash Singla, members of the Delhi Judicial Service, to the Delhi Higher Judicial Service, temporarily till further orders.
The appointment was under rule 17 of the Delhi Higher Judicial Service Rules against the 14th and.
15th vacancies.
In paragraph 15 of the counter affidavit filed on behalf of respondent No. 2 reason has been given as to why petitioner No. 1 was temporarily appointed and the appointments of respondents 3 to 5 was deferred.
It was not because they were found unfit that they were not appointed but to enable them to have more experience of the civil work they were made Subordinate Judges.
After sometime respondents 3 and 4 were appointed on probation for 2 years under rule 7 against the 14th and 15th vacancies.
By another notification of the same date issued under rule 17, petitioner No. 1 and respondent No. 5 were temporarily appointed in officiating capacity till further orders.
Four temporary posts were created by a notification dated 13th March, 1974.
Petitioners 2, 3 and 4 were temporarily appointed to three of these posts by notification dt.
22nd March, 72 by the Administrator of Delhi in exercise of his powers under rule 16(2) of the Delhi Higher Judicial Service Rules.
Copies of these notifications issued under Rules 7, 17 and 16 of the Delhi Higher Judicial Service Rules are collectively Annexure 'B ' to the counter affidavit of respondent No. 2.
Respondents 3 and 4 have been confirmed during the pendency of this Writ petition in the higher service by notification dated 13,6,1974 Annexure R 4/4 w.e.f.
2nd June, 1974.
The, petitioners have not challenged the notifications appointing them temporarily to the higher service under rule 16 or rule 17 and appointing respondents 3 and 4 substantively under rule 7.
The confirmation of the latter therefore is perfectly in order and it goes without saying that they will be senior to such members of the Delhi Judicial Service who would be substantively appointed and confirmed later.
A copy of the notification appointing respondent No. 6 to the higher judicial service from 1.6.1973 does not seem to be in the records of this case.
We were however informed at the Bar that he was also temporarily appointed either under rule 16 or rule 17.
That being so it was not clear to us whether the grievance of the petitioners in paragraph 19 of the writ petition that respondent No. 6 inspite of his appointment as Additional District Judge later than petitioners 2 to 4 was allowed to rank senior to them on the basis of rule 8 of the Delhi Higher Judicial Service Rules, is correct or justified.
The question of the 6th respondent 's ranking senior to any of the petitioners will not arise until they are substantively appointed to the higher judicial service.
We may, however, reiterate our observation that from a practical point of view and for the facility of administration, in the temporary appointments, respondent No. 6 who came later than the petitioners cannot rank senior to any of them.
In the well known case of Parshotam Lal Dhingra vs Union of India(1) Das C.J. delivering the judgment on behalf of majority of (1) ; 569 this Court pointed out at pages 841 and 842 thus : "The appointment of a Government servant to a permanent post may be substantive or on probati on or on an officiating basis. .
An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post.
Such an officiating 'appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on substantive appointment being to that permanent post in the later case. . .
In the instant case it is clear that due to justifiable reasons, the appointment of respondents 3 and 4 substantively to the 14th and the 15th vacancies was deferred and petitioner No. 1 was made to officiate in a temporary capacity against the substantive vacancy.
But such an officiation came to an end on the substantive appointment of either of respondents 3 or 4.
For the reasons aforesaid we hold that the petitioners have made out no case entitling them to any relief asked for by them in this writ, petition.
It accordingly fails and is dismissed without costs.

summary:
The petitioners originally belonged to the Punjab Civil Service (Judicial) in the time scale of Rs. 400 1250.
They had been put in the scale of Rs. 1300 1500.
On the other hand, respondents 3 to 5 were judicial officers in the U.P. in the lower scale of Rs. 300 900.
The next higher scale on being appointed to the post of Additional District Magistrate was Rs. 400 1000.
Prior to 1966, the Union Territory of Delhi for the purposes.
of administration of justice was included within the territorial jurisdiction of the erstwhile Punjab High Court and the Presiding Officers of the courts at Delhi were posted by transfer from the State of Punjab.
There was no separation of executive and judiciary.
In1970, Delhi Higher Judicial Service Rules, 1970 and Delhi Judicial Service Rules1970 were framed under article 309 of the Constitution.
A selection Committee was constituted in accordance with rule 7 of the Delhi Judicial Service Rules.
On the basis of the recommendation of the Selection Committee, appointments of officers by way of initial recruitment to the Delhi Judicial Service were made.
Petitioners 1 and 2 were working as Assistant Sessions Judges at the time of initial constitution of the Delhi Judicial Service while none of the respondents 3 to 5 was appointed as Assistant Sessions Judge in spite of their longer service in the cadre of U.P. Judicial Officers Service.
The petitioners were promoted to the post of Additional District Judges in January and March, 1972.
Respondents 3 to 5 were not considered to have qualified for being promoted as Additional District Judges.
Respondents 3 to 5 were promoted as Additional District Judges in June, 1972 and respondent No. 6 was promoted in June, 1973.
Thus respondents 3 to 6 were promoted to the higher judicial service later on, yet they were made to rank senior to petitioners under rule 8 of the Delhi Higher Judicial Ser vice Rules.
Rule 9 of Delhi Judicial Service Rules provides that initial recruitment to the service would be made from amongst the subordinate Judges and Law Graduate Judicial Magistrates working in the Union Territory of Delhi on de putation from other States as well as members of Civil Judicial Cadres of States whose names might be recommended by their respective State Governments for appointment and members of Delhi, Himachal Pradesh and Andaman & Nicobar islands who were law graduates.
Rule 11 of Delhi Judicial Service Rules provides that the Selection Committee should arrange the seniority of the candidates recommended by it in accordance with the length of service rendered by them in, the cadre to which they belonged at the time of their initial recruitment the service provided that the interse seniority as already fixed in such cadre shall not be al tered.
Rule 7 of Delhi Higher Judicial Service Rules provides that recruitment after the initial recruitment shall be made by promotion from the Delhi Judicial Service and by direct recruitment from the Bar.
It further provides that not more than one third of the substantive posts in the service should be held by direct recruits.
Rules 8 further provides that the interse seniority of members of Delhi Higher Judicial Service promoted to the service shall be the same as in Delhi Judicial Service and that the seniority of Direct Recruits vis a vis Promotees shall be determined on the basis of roaster following the quota system.
The petitioner 's contention was that they should be treated as senior to respondents 3 to 6.
The petitioners contended that rule 9 of the Delhi Judicial Service Rules was bad as it was not framed in accordance with Article 234 of them 554.
Constitution and also because it permitted the initial appointment to the Delhi Judicial Service of persons who were not in any judicial service from before.
The petitioners further contended that rule 11 of the Delhi Judicial Service Rules is bad as it infringes Article 14 of the Constitution inasmuch as it equates length of judicial service with the length of non judicial service for the purpose of fixing seniority and thus treats unequals as equals.
Rule 8 of the Delhi Higher Judicial Service Rules is bad because it fixes the seniority in higher service according to the seniority in the lower one.
The respondents controverted the contention of the petitioners.
In addition the respondent contended that the Writ Petition was not maintainable on the ground of delay.
It was also contended that after the impugned seniority list a further seniority list was published which has not been challenged and that, therefore, the petition ought to be dismissed.
HELD : (i) The relative position of the petitioners and respondents 3 to 6 remains the same in the new seniority list as it was in the impugned seniority list.
The contention of the respondent therefore cannot succeed.
(ii)The question of laches is one of discretion.
There is no lower limit and there is no upper limit.
The rule which says that the court may not enquire into the belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that when ever there is delay the court must necessarily refuse to entertain the Petition.
Each case must depend upon its own facts.
In the present case, nothing special has happened creating any right in favour of the respondent or no such position has been created the disturbance of which would unsettle the long standing settled matters.
The writ application, therefore, cannot be thrown out on the ground of delay in regard to any of the reliefs, asked for by the petitioners.
[559C; G & A D] (iii)It is difficult to find any trace of invalidity in rule 9 of the Delhi Judicial Service Rules.
For the purpose of initial recruitment to the Service officers of the Judicial cadre all the officers although not belonging to the judicial cadre but by and large performing the judicial functions could be put together.
There was no infraction of articles 14 and 16.
Rule 11 of Delhi Judicial Service which provides that the seniority should be determined in accordance with the length of service does not put unequals as equals.
The rule is neither arbitrary nor discriminatory.
Once the Selection Committee found persons belonging to Clause (a) rule 9 suitable for appointment to the service it was under a duty and obligation to arrange the list of suitable persons by placing them in proper Place in the matter of seniority.
Arranging the seniority in accordance with the length of service rendered in judicial cadre to which they belonged at the time of their initial recruitment to the service was perfectly good.
Petitioners cannot have any grievance in that regard.
It was not possible to have a different yardstick.
Taking the length of service for the purpose of fixation of seniority was justified, legal and valid.
For the purpose of fixation of seniority it would have been highly against, and un reasonable to take the date of their initial recruitment to the service as their first appointment.
Nor was it possible to take any other date in between the period of their service in their parent cadre.
It would have been wholly arbitrary.
There was no escape from the POsition that the entire length of service of the two classes of officers had got to be counted for the purpose of determination of their seniority on their initial recruitment to the Delhi Judicial Service.
It was not possible or practical to measure the respective merits for the purpose of seniority with mathematical precision by Barometer but some formula doing largest good to the largest number had to be evolved.
The only reasonable and workable formula which could be evolved was the one engrafted in rule 11.
[561F; 562C H] Kunniathat Thatthuni Moopil Nair vs The State of Kerala and another; , , distinguished.
Jalan Trading Co. (Private Ltd.) vs Mill Mazdoor Union, , distinguished.
(iv)In the instant case, treating the two classes as one for the purpose of initial recruitment and fixation of seniority was reasonable as the classification was one which included all persons who were similarly situated with respect to the purpose of the law.
[563G H] 555 (v)The interse seniority of the members of the Delhi Judicial Service promoted to the higher service would be the same provided the promotion from the lower to the higher service is at the same time.
If a member of Delhi Judicial Service is superseded at the time of recruitment under rule 7 by his junior but gets a chance of promotion later it is obvious that he cannot retain his seniority in the lower rank.
All candidates on appointment to higher service have jot to be on.
probation for a period of 2 years ordinarily and generally they would be confirmed it the end of the said period of 2 years.
Strictly speaking, the Question of determination of interse seniority under rule 8 will crop up at the time of confirmation of the appointee.
The question of seniority therefore has to be determined when the persons appointed either temporarily or on officiating basis are given substantive appointments ' So far as the petitioners and three respondents.
are concerned that time is yet to come.
Two members of the Delhi Judicial Service confirmed in the higher service at the same time will retain their interse seniority as in the lower service but if they are not confirmed at the same time then one who is confirmed earlier will be senior to the one who is confirmed later though they might have been appointed on probation at the same time.
There are no rules prescribing the mode of determination of interse seniority of temporary appointees or permitting them to count their officiation in the temporary appointments for the purpose of their seniority on their being appointed substantively.
The attack on the constitutionality of rule 8 is obliterated in view of the construction placed by this Court.
In the absence of such an interpretation rule 8 would be discriminatory and violative of article 14 of the Constitution.
With the aid of well established connons of interpretation.
we see no difficulty in saving the constitutionality of the rule by interpreting it in a reasonable sensible and just manner.
[566BC; FH] (vi)The appointment of a Government servant to a permanent post may be.
substantive or on probation or on officiating basis.
An appointment to officiatein a permanent post is usually made when the incumbent substantively holding, that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post.
Such an officiating appointment comes to an end on the return of the incumbent substantively holding post from leavein the former case or on the substantive appointment.
In the instant case due to justifiable reasons the appointment of respondents 3 and 4 substantively to 14th and 15th vacancies was deferred and the petitioner No. 1 was made to officiation in a temporary capacity against the substantive vacancy.
Such an officiation came to an end on the substantive apppointment of either of respondent No. 3 or 4.
[569A C]


judgement:
it Petition No. 319 of 1974.
Petition under Article 32 of the Constitution.
Anil Kumar Gupta, for the petitioner.
P. Chatteriee and G. section Chatterjee, for the respondents.
The Judgment of the Court was delivered by BHAGWATI, J.
The petitioner challenges his detention under an order dated 10th September, 1973 made by the District Magistrate, 594 Burdwan under section 3(2)(i) of the .
There were several grounds urged before us for challenging the validity of the order of detention but it is not necessary to refer to them since we find that there is one ground which is sufficient to dispose of the petition.
To appreciate this ground it is necessary to notice a few facts.
The order of detention was made on 10th September, 1973 and it was based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community.
This subjective satisfaction, according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminums wire alleged to have been committed by the petitioner on 14th April, 1973.
It appears that in respect of this incident a criminal case was filed inter alia against the petitioner in the Court of Sub Divisional Judicial Magistrate, Asansol, but, as the affidavit in reply filed by the District Magistrate shows, the witnesses were unwilling to depose against the petitioner in open Court on account of fear of danger to their life and the prosecution was , therefore, constrained to drop th criminal case and the petitioner was discharged.
However, the date when the petitioner was discharged was not set out in the affidavit in reply.
The petitioner was thereafter detained on 23rd November, 1973 pursuant to the order of detention.
There was thus a time lag of about two and a half months between the date of the order of detention and, the date when the petitioner was actually detained.
The petitioner contended that since, the District Magistrate did not state in his affidavit in reply as to when the petitioner was discharged, it must be presumed that the petitioner was discharged on or about 10th September, 1973 and was available for being detained under the order of detention and yet he was not arrested for a period of two and a half months until 23rd November, 1973 and that shows that there was no real necessity to detain the petitioner with a view to preventing him from acting in a prejudicial manner and the subjective satisfaction of the District Magistrate founding the order of detention was not genuine.
There is great force, in this contention of the petitioner and it must result in invalidation of the order of detention.
It is obvious from the facts set out in the affidavit in reply that the, petitioner was arrested in connection with the criminal case arising out of the incident dated 14th April, 1973 set out in the grounds of detention.
The criminal case was ultimately dropped as the witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged.
The date of discharge of the petitioner was, however not set out in the affidavit in reply.
We asked the learned counsel appearing on behalf of the respondent as to whether.there was any record with him from whick he could tell us as to ' What was the date on which the petitioner was discharged but he stated that the only record which he had was that 595 relating to the order of detention and the record relating to the criminal case had not been sent to him.
We were told that even the history sheet of the petitioner, which was before the District Magistrate when he made the order of detention, did not give the date when the criminal prosecution was dropped that the petitioner was discharged.
It did not even make any reference to the criminal case.
This is rather unfortunate.
He should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate.
That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention.
It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction then preventive detention should be resorted to.
It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate.
But that is a different question altogether and it need not detain us.
The fact remains that there was no record with the learned counsel appearing on behalf of the respondent from which he could give us the date when the petitioner was discharged.
In view of this failure on the part of the respondent to supply information to the Court as to then the petitioner was discharged, we must proceed on the assumption that he must have been discharged on or about 10th September, 1973.
The order of detention must have been made by the District Magistrate in anticipation of the discharge of the petitioner and the discharge of the petitioner can, therefore, be presumed to have taken place at or about the time when the order of detention was made, that is, 10th September, 1973.
But if that be so, the conclusion is inescap able that though the petitioner was available for detention since about 10th September, 1973, he was not detained for a period of about two and a half months upto 23rd November, 1973.
There was delay of about two and a half months in detaining the petitioner pursuant to the order of detention and this delay, unless satisfactorily ex plained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate recited in the order of detention.
It would be reasonable to assume that if the District Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude in securing the arrest of the petitioner immediately after the invoking of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities.
of course when we say this we must not be understood to mean that whenever there is delay in arresting the subjective satisfaction of the detaining authority must be held to be not genuine or colourable.
Each case must depend on its own peculiar acts and circumstances.
The detaining authority may have a reason able explanation for the delay and that might be sufficient to dispel 596 the inference that its satisfaction was not genuine.
But here we find that though an affidavit in reply was filed by the District Magistrate himself, no explanation was forthcoming in this affidavit as to why the petitioner was not arrested until 23rd November, 1973, though the order of detention was made as far back as 10th September, 1973.
The learned counsel appearing on behalf of the respondent contended that the State was not expected to render any explanation in regard to the delay in arresting the petitioner pursuant to the order of detention because no such complaint was made in the petition.
But this is hardly an argument which can avail the State when it is called upon to answer a rule issued on a petition for a writ of habeas corpus.
It is the obligation of the State or the detaining, authority in making its return to the rule in such a case to place all the relevant facts before the Court and if there is any delay in arresting the detenu pursuant to the order of detention which is prima facie unreasonable, the State must give reasons explaining the delay.
Vide Sk.
Serajul vs State of West Bengal.(1) Since in the present case no explanation for the delay has been given in the affidavit in reply filed by the District Magistrate, we are not at all satisfied that the District Magistrate applied his mind and arrived at a real and genuine subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner.
The condition precedent for the making of the order of detention was, therefore, not satisfied and consequently the order of detention must be quashed and set aside.
We accordingly quash and set aside the order of detention and direct that the petitioner be set at liberty forthwith.
V.P.S. Petitioned allowed.

dataset_name: IN-Abs

summary:
On 14th April, 1973, the petitioner was alleged to have committed theft of aluminium wire and a criminal case was filed but it was ultimately dropped and the petitioner was discharged, because, the witnesses were not willing to give evidence for fear of danger to their life.
On 10th September, 1973, the District Magistrate passed an order under section 3(2)(i) of the , detaining the petitioner with a view to prevent ing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community, on his subjective satisfaction, based upon the solitary incident of the theft of aluminum wire.
The petitioner was actually detained on 23rd November, 1973.
Allowing the petition challenging the order of detention, HELD : The condition precedent for the making of the order of detention, namely the existence of a. real and genuine subjective.
satisfaction of the District Magistrate was not satisfied in the case.
and consequently, the order of detention must be quashed and set aside.
[596D E] (a) It must be assumed that the petitioner was discharged on or about 10th September, 1973, because, the District Magistrate must have made the order of detention in anticipation of the order of discharge.
If that was so, though the petitioner was available for detention, there was a delay of about two and half months in detaining the petitioner pursuant to the order of detention.
This delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate recited in the order of detention.
If the District Magistrate was really and genuinely satisfied he would have acted with greater promptitude.
But he has not offered any explanation as to why the petitioner was not detained until 23rd November, 1973, more than two months after he made the order of detention.
[595D H] (b) It is the obligation of the State or the detaining authority in making its return to the rule nisi, in cases of habeas corpus, to place all the relevant facts before the court and if there is any delay in arresting the detenu pursuant to the order of detention, which is prima facie unreasonable, the State must explain the delay.
The State cannot contend that the petitioner has not raised the contention in his petition.
[596B C] Sk.
Serajul vs State of West Bengal W.P. 2000 of 1973, decided on September 9, 1974, followed.


judgement:
Appeal No. 1357 of 1970.
From, the Judgment & Order dated the 10th February, 1969 of the Calcutta High Court in l. T.Ref.
No. 164 of 1963.
630 D. Pal, T. A. Ramanchandran and D. N. Gupta, for the appellant B. Sen and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is directed against the Judgment of the Calcutta High Court whereby that court answered the following question referred to it under section 66(1) of the Indian Income tax Act, 1922 against the assessee appellant and in favour of the revenue "Whether, on the facts and in the circumstances 'of the case, the sum of Rs. 7,14,398/ was liable to be included in the total income of the assessee under the Indian Income tax Act, 1922 ?" The matter relates to the assessment year 1953 54, the corresponding accounting period for which ended on June 30, 1952.
The assessee is.
a limited company with its head office at Calcutta.
One ,of its activities was the purchase and sale of jute in the State of Orissa and for this purpose the assessee was a registered dealer under the Orissa Sales Tax Act, 1947.
During.
the accounting year the assessee sold jute to M/s. McLeed & Co. Ltd. for being used in two jute miffs situated in Andhra Pradesh under the management of the purchaser company.
The assessee used to charge from the purchaser sales tax on the purchase of goods at the rate of one anna per rupee of the value of the goods.
The sales tax was charged under a separate head in the bill.
The words used in the bill in this respect were "Sales tax buyers ' account. . at the rate of /1/ per rupee to be paid to Orissa Government".
The total amount shown as "Liabilities for expenses" in the balance sheet as on June 30, 1952 included a sum of Rs 16,54 455 on account of sales tax.
The said sum was, however, not paid to the State Government as the sale by the assessee to the purchaser company were stated to be inter State sale.
The assessee contended before the income tax officer that the sales tax realised from the purchaser did not form part of the sale price of the jute and as such did not constitute receipt in jute business.
The contention was rejected by the income tax officer who held that the sales tax formed a part of, the consideration for the sales and, therefore, the accumulation on that account represented the assessee 's income.
The income tax officer accordingly added the aforesaid sum of Rs. 16,54,455 to the assessee 's total income.
On appeal by the assessee the Appellate Assistant Commissioner found that the actual amount received as sales tax during the relevant period amounted to only Rs. 7,41,962, out of which Rs. 27,564 had been paid to the Orissa Government.
He, therefore, held that the amount which was to be added to the assessee 's total income was Rs. 7,14,398.
The contention of the assessee that the sales tax realised was not part of the taxable receipt of the assessee was rejected.
The assessee preferred second appeal before the Tribunal and submitted that the purchaser paid the sales tax and the price of goods to the assessee on the understanding that if ultimately no sales tax 631 was exigible on those sales, the amount collected as sales tax would be refunded to the purchaser.
The amount collected as sales tax, according to the assessee company, could not belong to it but belonged to the purchaser and as such could not be treated as income of the assessee.
The Tribunal held that where a dealer collects sales tax under the provisions of section 9B of the Orissa Sales Tax Act, the amount of the tax does not form part of the sale price and the dealer doe:; not acquire any beneficial interest in that amount.
According to the Tribunal, if at the time of the collection the amount was collected as sales tax the subsequent failure of the assessee to deposit the amount in the Orissa Treasury could not transform the character of that amount.
The Tribunal consequently came to the conclusion that the Appellate Assistant Commissioner had erred.
in treating Rs. 7,14,398 as part of the total income of the assessee.
On the application of the Commissioner of Income tax the Tribunal referred the question reproduced above to the High Court.
The High Court held that if tax, which is validly exigible, is realised by a trader from his customer, and, is then utilised in his business, the tax so realised.
cannot but form part of the sales price.
According to the High Court, the tax would be included in the trading receipt of the dealer and would become part of his income as the money realised from the purchaser on account of tax was employed by the dealer for the purpose of making profit and was not separated from price simpliciter.
The High Court in this context referred to the fact that the assessee did not earmark the amount realised as sales tax and did not put it in a different account or deposit it with the Government.
It was further found that the assessee had treated the amount of sales tax as his own money.
Reference was made in the High Court to subsection (3) of section 9B of the Orissa Sales Tax Act which reads as under : "(3) The amount realised by any person as tax, on sale of any goods, shall, notwithstanding anything contained in any other provision of this Act, be deposited by him in a Government treasury within such period as may be pres cribed, if the amount so realised exceeds the amount payable as tax in respect of that sale or if no tax is payable in respect thereof.
" The High Court in the above context observed ; "There is no finding that the trader did not use that money for his trading purpose, and because of the fact that money was not deposited in terms of section 9B(3).
In such circumstances simply because the trader had a duty to refund, we cannot say it would not constitute trading receipt.
If a trader received money as trading receipt and employs that money as his own fund and is then called upon to refund the money even then it is trading receipt of the trader but when he pays back that money the amount refunded may be considered for deduction at the time when it is refunded." 632 In appeal before us, Dr. Pal on behalf of the assessee appellant has contended that the amount received as sales tax retained its character ,as such and could not be considered to be a part of trading receipt.
As against the above, Mr. Sen on behalf of the revenue submits that the amount in question constituted trading receipt.
According to Mr. Sen, the matter is concluded by a decision of this Court in the case of Chowringhee Sales Bureau P. Ltd. vs Commissioner of Income tax West Bengal.(1) The submission of Mr. Sen, in our opinion is well founded.
In the case of Chowringhee Sales Bureau P. Ltd. the appellant company was a dealer in furniture and also acted as an auctioneer.
In respect of sales effected by the appellant as auctioneer, it realised during the year in question in addition to the commission, Rs. 32,986 as sales tax.
This amount was credited separately in its account books under the head "sales tax collection account".
The appellant did not pay the amount of sales tax to the actual owner of the goods nor did it deposit the amount realised by it as sales tax in the State exchequer because it took the position that statutory provision creating that liability upon it was not valid.
The appellant also did not refund the amount to persons from whom it had been collected.
In the cash memos issued by the appellant to the purchasers in the auction sales the appellant was shown as the seller.
This Court held that the sum of Rs. 32,986 realised as sales tax by the appellant company in its character as an auctioneer formed part of the trading or business receipts.
The fact that the appellant credited the amount received as sales tax under the head "sales tax collection account" did not make any material difference.
According to this Court, it is the true nature and quality of the receipt and not the head under which it is entered in the account books as would prove decisive.
If a receipt is a trading receipt the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt.
The Court further observed that the appellant company would be entitled to claim deduction of the amount as and when it paid it to the State Government.
The above decision, in our opinion, fully applies to this case and in view of it, there is no escape from the conclusion that the amount of Rs. 7,14,398 should be treated as trading receipt.
Dr. Pal has tried to distinguish the decision of this Court in the case of Chowringhee Sales Bureau P. Ltd. on the ground that there was no provision in the Bengal Finance (Sales Tax) Act, 1941 under which the sales tax was realised by the appellant in that case corresponding to sub section (3) of section 9B of the Orissa Sales Tax Act, 1947.
This circumstance, in our opinion, hardly constitutes a suffi cient ground for not applying the dictum laid down in the case of Chowringhee Sales Bureau P. Ltd. to the present case.
The provisions of sub section (3) of section 9B of the Orissa Sales Tax Act have already been reproduced above.
It is not necessary for the purpose of the present case to express an opinion on the point as to whether in view of the decisions of this Court in the cases of R. Abdul Qyader & Co. vs Sales Tax Officer, Second Circle, Hyderabad, (2) (1) (2) [1964] 15 S.T.C. 403.
633 Ashoka Marketing Ltd. vs State of Bihar Anr.(1) and State of U.P. & Anr.
vs Annapurna Biscuit Manufacturing Co. (2) the State legislature was competent to enact that provision and whether the same was constitutionally valid.
Assuming that the said provision is valid, that fact would not prevent the applicability of the dictum laid down in Chowringhee Sales Bureau P. Ltd. The aforesaid decision did take into account the possibility of the appellant in that case being com pelled to deposit the amount of sales tax in the State exchequer.
It was accordingly observed that the appellant company would be entitled to claim deduction of the amount as and when it paid the amount to the State Government.
Likewise, we would like to make it clear in the present case that if any when the appellant pays the sum of Rs. 7,14,398 or any part.
thereof either to the State Government or to the purchaser, the appellant would be entitled to claim deduction of the sum so paid.
Dr. Pal points out that the appellant may have to refund the amount realised by it as sales tax to the purchaser.
So far as this aspect is concerned, we have already mentioned above that if and when the appellant refunds any part of the amount of sales tax to the, purchaser, the appellant would be entitled to claim deduction on that account.
Lastly, reference has been made by Dr. Pal to the case of Morley (H. M. Inspector of Taxes) vs Messrs. Tattersall,(3) and it is submitted that once an amount was received as sales tax by the appellant it could never be treated as trading receipt.
We find it difficult to, accede to the above submission because the case of Chowringhee Sales Bureau P. Ltd. is a direct authority, for; the proposition that an amount even though realised as sales tax can in a case like the present be, treated as trading receipt.
It would be pertinent in this context to refer to the finding ' of the High Court that the assessee appellant in the present case did not separately earmark the amount realised as sales tax, or put it in a different account.
The assessee also did not deposit the amount with the Government as and when realised nor did ' the assessee refund it to the purchaser from whom the amount had been realised.
The High Court has further found that the assessee company mixed up the amount of sales tax with its own funds and treated the same as its own money.
Nothing cogent has been brought to our notice to justify interference with the above findings.
the case of Messrs George Oakes (Private) Ltd. vs The State of Madras & Ors.
(4) the Constitution Bench of this Court held that the Madras General Sales Tax (Definition of Turnover and Validation of Assessments) Act, 1954 was not bad on the ground of legislative incompetence.
In that context this Court observed that when the seller passes on the tax and the buyer agrees to pay sales tax in addition to the price, the tax is really part of the entire consideration and the distinction between the two amounts tax and price loses all significance.
This Court in that case relied upon the following observation of Lawrence J. in Paprika Ltd. & Anr.
vs Board of Trade.(5) (1) [1970] 26 S.T.C. 254.
(2) [1973] 32 S.T.C. 1.
(3) (4) [1961] 12 STC 476 (5) 634 "Whenever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands but it does not cease to be the price which the buyer has to pay even if the price is expressed as X plus purchase tax.
" Reliance was also placed upon the following observation of Goddard, L. J. in Love vs Norman Wright (Builders) Ltd.(1) "Where an article is taxed, whether by purchase tax, customs duty, or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay.
The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up of cost plus profit plus tax.
So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if be desires to pass it on to the buyer.
If the buyer agrees to the price, it is not for him to consider 'how it is made up or whether the seller has included tax or not.
" After referring to these observations section K. Das J. speaking for the Constitution Bench of this Court observed "We think that these observations are apposite even in the context of the provisions of the Acts we are considering now, and there is nothing in those provisions which would indicate that when the dealer collects any amount by way of tax, that cannot be part of the sale price.
So far as the purchaser is concerned, he pays for the goods what the seller demands viz., X price even though it may includes tax.
That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover.
" We are, therefore, of the view that the submission which has been made by Dr. Pal that the sales tax should not be treated to be a part of the price realised by the assessee from the purchaser is not well founded.
The case of Tattersall can be of no help to the appellant because the amount with which the court was concerned in that case was ,never received by the assessee as income or trading receipt.
In any case, as already observed, the question with which we are concerned ' stands concluded by the case of Chowringhee Sales Bureau P. Ltd. As a result of the above, we dismiss the appeal with cost.
P.B.R. Appeal dismissed.

summary:
The assessee collected sales tax from the purchaser but did not pay the collections to the State Government alleging that the sale was interstate sale.
The Income Tax Officer treated the sales tax as income of the assessee.
The assessee claimed that the sales tax realised from the purchaser did not form part of the sale price of the goods and as such did not constitute taxable receipt.
The Income tax Officer held that the sales tax formed part of the consideration for the sales and, therefore, the accumulation on that account represented the assessee 's income.
The Appellate Assistant Commissioner also rejected the contention of the assessee that the sales tax realised was not part of the taxable receipt of the assessee.
The Appellate Tribunal held that where a dealer collected sales tax under the provisions of the Orissa Sales tax Act the amount of tax did not form part of the sale price and the dealer did not acquire any beneficial interest in that amount and that the failure of the assessee to deposit the amount with the Government could not transform the character of that amount.
The High Court held that if a validly eligible tax was realised by a trader which had been utilised in his business the tax so realised could not form part of the sale price and that the tax would be included in the trading receipt of the dealer and would become part of his income as the money realised from the purchaser on account of tax was employed by the dealer ' for the purpose of making profit and was not separated from price simpliciter.
On appeal to this Court it was contended that the amount received as sales tax retained its character as such and could not be considered to be a part of trading receipt.
Dismissing the appeal,, HELD : It is 'the true nature and quality of the receipt and not the head under which it is entered in the account books as would prove decisive.
If a receipt is a trading receipt the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt.
If and when the appellant paid the sum or any part thereof either to the State Government or to the purchaser it would be entitled to claim deduction of the sum so paid.
In the instant case there is no escape from the conclusion that the amount should be treated as a trade receipt.
[632B F; 633C] Chowringhee Sales Bureau P. Ltd. vs Commissioner of Income tax West Bengal followed.
The purchaser pays what the seller demands, that is, the price, even though it may include tax.
That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turn over.
[634F] Messrs George Oakes (Private) Ltd. vs The State of Madras & Ors.
(1961) 12 S.T.C. 476 followed, Morley (H. M. Inspector of Taxes) vs Messrs. Tattersall REFERRED TO, Paprika Ltd. & Anr.
vs Board of Trade and Love vs Narman Wright (Builders) Ltd. [1944] 1 All E.R. 618, held inapplicable.