judgement:
Civil Appeals Nos.
2902 2903 of 1977.
Appeals by Special Leave from the Judgment and Order dated 3 11 1976 of the Punjab and Haryana High Court in Civil Writ Petition No. 6781/74.
Y. section Chitale, M. N. Phadke and P. C. Bhartari (In CA 2903/77) for the Appellants.
G. L. Sanghvi, section K. Bagga and Mrs. section Bagga for RR 1 2.
R. section Sodhi for the State of Punjab.
The Judgment of the Court was delivered by DESAI, J.
These two appeals by special leave arise from a common judgment rendered by the High Court of Punjab & Haryana at Chandigarh in Letters Patent Appeals Nos.
560 and 564 of 1974 and Civil Writ No. 6781/74.
The controversy raised in these appeals turns upon the construction of the Punjab Police Service Rules, 1959 ( 'Service Rules ' for short).
A few relevant facts as alleged by respondents 1 and 2 in Civil Appeal No. 2903/78 who moved Civil Writ No. 825 of 1972 in the High Court would highlight the problem posed in these appeals.
588 Respondents 1 and 2, Gurdip Singh and Dalip Singh, filed a writ petition under Article 226 of the Constitution against the State of Punjab, Inspector General of Police, Punjab, and six others including the present appellants, praying for a direction to confirm them in Punjab Police Service.
Respondents 1 and 2 alleged that they were promotees to the cadre of Deputy Superintendent of Police of February, 1961 and January, 1961 respectively having been brought on 'G ' List by an order dated 23rd February 1961 of the State of Punjab and the Inspector General of Police, Punjab, respondents 3 and 4 herein.
Appellants and respondents 5 to 8 were recruited to the same cadre by direct appointment commencing from May, 1961 to May, 1965.
The grievance of respondents 1 and 2 in the petition filed by them was that recruitment to Punjab Police Service is made from two sources, namely, 80% by promotion and 20% by direct appointment but this quota rule is not adhered to at the time of confirmation in the service and, therefore, even though they were members of the service since a period earlier to appellants and respondents 5 to 8, they were not confirmed though the latter were confirmed and as seniority in the cadre of Deputy Superintendent of Police is reckoned under rule 10 according to date of confirmation, the failure to confirm them in the post available to them, in breach of the relevant rules, has denied to them equality of opportunity enshrined in Article 16 of the Constitution to be considered for nomination to Indian Police Service which is done according to seniority cum merit.
The State of Punjab and Inspector General of Police, Punjab, on the one hand and the direct recruits on the other contested the writ petition, inter alia, contending that the quota applies at the stage of initial recruitment and not at the time of confirmation and there is no allegation that the quota rule was violated at the time of initial recruitment.
It was further contended that no one can claim to be confirmed as a matter of right and, therefore, the writ petition is misconceived.
Direct recruits to the post of Dy.
Superintendent of Police, appellants and respondents 5 to 8 further contended that the petitioners were promoted on officiating basis against temporary posts and as there were no permanent posts available, they could not be confirmed till substantive vacancies in the permanent strength of the cadre were available and till confirmation their seniority having to be reckoned from the date of confirmation, they cannot claim to be senior to the direct recruits on the principle of continuous officiation.
The writ petition came up before a learned single Judge of the High Court who was of the opinion that the quota rule is linked with the seniority rule and in order to give a reasonable interpretation and 589 in order not to make the seniority rule unreasonable, upon a proper construction it must be held that the quota rule would operate not only at the time of initial recruitment but also at the time of confirmation.
In reaching this conclusion the learned single Judge relied upon two decisions of this Court in section G. Jaisinghani vs Union of India & Ors.,(1) and Mervyn Coutindo & Ors.
vs Collector of Customs, Bombay & Ors., (2) and some other decisions of other High Courts.
The learned single Judge accordingly gave a direction that the writ petitioners, respondents 1 and 2 herein, should be confirmed.
Two appeals being Letters Patent Appeal No. 560/74 by the present appellant 1 and Letters Patent Appeal No. 564/74 by the State of Punjab and the Inspector General of Police, Punjab, were preferred.
One Rakha Ram filed Civil Writ No. 6781/74 raising identical contentions and this writ petition was referred to the Division Bench before which the aforementioned two Letters Patent Appeals came up for hearing The Court by a common judgment disposed of all the three matters.
Both the Letters Patent Appeals were dismissed and Civil Writ No. 6781/74 by Ram Rakha was allowed, but the direction given by the learned single Judge was modified to the extent that the State of Punjab and Inspector General of Police, Punjab, should consider the cases of writ petitioners 1 and 2 for confirmation and to fix their seniority afresh according to the quota rule.
The present two appeals arise from this common judgment preferred by the direct recruits.
It may be mentioned that neither the State of Punjab nor the Inspector General of Police, Punjab, have questioned the decision of the High Court though at the hearing of these appeals Mr. R. section Sodhi appeared for the State of Punjab and supported the contentions canvassed on behalf of the appellants.
As the main controversy turns upon the construction of rules 3, 6, 8 and 10 of the Service Rules it would be advantageous to get a clear picture of the relevant rules.
The Service Rules provide for constitution, recruitment, qualifications for being members of the service, probation, pay, seniority and discipline of the members of the Service.
Rule 3 provides that the Service shall comprise of the posts specified in Appendix 'A ' to the Service Rules.
Designation of the Post in Appendix 'A ' is shown to be Deputy Superintendent of Police and the strength of the cadre is shown as 66.
The State Government, under rule 5, is the appointing authority to the Service.
Rule 6 provides for method of recruitment from two different sources, viz., 80% by promotion from the rank of Inspectors and 20% by direct recruitment.
It also prescribes eligibility qualification for promotees.
Sub 590 rule (2) of rule 6 provides that appointment by promotion shall be made by he Government from Inspectors brought on List 'G ' and the method of drawing up of List 'G '.
Sub rule (3) provides that direct appointment to the Service shall be made upon the result of a competitive examination conducted by the Punjab Public Service Commission ( 'Commission ' for short) and further confers power on the Government in consultation with the Commission to frame necessary rules relating to examination.
Rule 7 prescribes qualifications of physical fitness.
Rule 8 provides that members of the Service shall be on probation for two years which shall include the period of training at the Police Training School, Phillaur, and in the districts and in the case of members recruited by promotion the Government may be a special order in each case permit periods of officiating appointment to the Service to count towards the period of probation.
There is a proviso to the rule which enables the Government to extend the period of probation by not more than one year.
Rule 9 provides for pay of members of the Service.
Rule 10 provides for seniority of members to be reckoned by the date of confirmation in the Service.
Dr. Chitaley followed by Mr. Phadke, urged that the vires, validity or reasonableness of rule 10 having not been challenged, it was not open to the High Court to put upon rules, 6, 8 and 10 a construction on the supposed unreasonableness of rule 10 if it is interpreted by giving the language therein used its ordinary grammatical meaning.
The High Court applied the quota rule even at the stage of confirmation to avoid the vice of unreasonableness which, in the opinion of the High Court, would be implicit in rule 10 if any other view were taken.
The rules provide for constitution of Service and the Service shall comprise of the posts specified in Appendix 'A ' to the rules.
At the relevant time the sanctioned strength of the Service was 66 posts.
There is a proviso to rule 3 which enables the Government to make additions to or reductions in the number of such posts whether permanently or temporarily.
Rule 6 which provides for method of recruitment in terms says that recruitment to the Service shall be made: (i) 80% by promotion from the rank of Inspectors; and (ii) 20% by direct appointment.
Thus there is recruitment to the Service from two independent sources, viz., promotion and direct recruitment.
Once recruitment to any given cadre is from two sources obviously after recruitment is made from two sources they have to be integrated into one cadre which also necessitates providing for their inter se seniority.
Rule 10 provides that the seniority of the 591 members of the Service shall be determined by the date of confirmation in the Service.
There is a proviso to rule 10 which is not material for the present discussion.
On behalf of the promotees it was contended that if seniority is to be reckoned from the date of confirmation in the Service, confirmation must be made available to recruits from both the sources, viz., promotees and direct recruits.
It was further contended that if on satisfactory completion of probation a direct recruit is confirmed or is deemed to be confirmed and a promotee who can be continued in an officiating capacity for any length of time without considering his case for confirmation, promotees would be put at a serious disadvantage because for further promotion or what is styled as nomination to Indian Police Service, seniority cum merit being the criterian and the basic cadre being the cadre of Deputy Superintendent of Police from which nomination is to be made, their case would not come up for consideration as they are not confirmed.
They pointed out that in 1971 their names were recommended by Deparmental Committee set up for the purpose but the State Government turned down their names on the only ground that they were not confirmed.
It is clear from Rule 8 that both promotees and direct recruits would be on probation for two years and in case of promotees the Government may be special order in each case permit periods of officiating appointments to the Service to count towards the period of probation.
Clause (b) of rule 8 provides that the services of a member recruited by direct appointment may be dispensed with by the Government on his failing to pass the final examination at the end of his period of training or on his being reported on, during or at the end of his period of probation, as unfit for appointment.
There is a proviso at the end of sub rule (b) which reads as under: "Provided that the Government may, if it deems fit, extend the period of probation by not more than one year.
" There is some controversy between the parties whether the proviso is to operate as proviso to rule 8(a) and 8(b) both or only to rule 8 (b).
It was contended on behalf of the direct recruits that once a specific period of probation is fixed and a fetter is put on the power of the Government to extend probation only by a specific period, at the end of such extended period either the service of the direct recruit is to be dispensed with on the ground that he was unfit for appointment or if he is continued thereafter he must be deemed to have been confirmed and the date next after the day of expiry of his ordinary or 592 extended period of probation would be the date of his confirmation.
This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation he should be deemed to continue in his post as a probationer only in the absence of any communication to the contrary in the original order of appointment or promotion or the Service Rules.
In such a case an express order of confirmation is necessary to give the employee a substantive right to the post and from the mere fact that he is allowed to continue in the post after the expiry of the specific period of probation it is not possible to hold that he should be deemed to have been confirmed.
This view was taken in Sukhbans Singh vs State of Punjab(1); G. section Ramaswamy vs The Inspector General of Police, Mysore State, Bangalore(2); and State of U. P. vs Akbar Ali(3).
This view was founded up on the relevant rules which permitted extension of the probationary period for an indefinite time.
In fact there was no negative rule in these cases prohibiting the Government from extending the probationary period beyond a certain maximum period.
However, where the rules provide for a fixed period of probation with a power in the Government to extend it up to a specific period and not any unlimited period, either by express provision or by necessary implication, at the end of such specified period beyond which the Government had no power to extend the probation, the probationer if he continues beyond that period, should be deemed to have been confirmed in the post.
This Court in State of Punjab vs Dharam Singh(4); after taking into consideration rule 6(3) of the Punjab Educational Service (Provincialised Cadre) Class III Rules, 1961, which provided for either dispensing with the services of the person appointed to the post on probation if his work was found to be unsatisfactory or to extend the period of probation for such period as may be deemed fit or revert him to his former post if he was promoted from some lower post, provided that the total period of probation including the extensions if any, shall not exceed three years, held that the Service Rules fixed a certain period of time beyond which the probationary period cannot be extended and if an employee appointed or promoted to a post is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation he cannot be deemed to continue in that post as a probationer by implication.
In such a case the Court held it is permissible to 593 draw an inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.
Rule 8 of the Service Rules prescribes the period of probation of two years and the proviso confers power to extend the period of probation by not beyond one year meaning thereby that in any case the Government would not have the power to extend the period of probation beyond a period of three years.
In this situation the ratio in Dharam Singh 's case (supra) would mutatis mutandis apply and it will have to be held that the direct recruit who completed the period of probation of two years and in the absence of an extension of probationary period, would be deemed to be confirmed by necessary implication.
Respondent 5 to 8 direct recruits have accordingly been confirmed on expiry of the period of probation of two years.
Now if seniority is to be reckoned from the date of confirmation and if promotees are not confirmed for years together in some cases, to wit, respondents 1 and 2 who were promotees of February and January, 1961 respectively, were not confirmed till they filed the writ petition in 1972 while direct recruits who came much later got confirmed and ipso facto became senior to the promotees, if quota rule is only applied, as is contended on behalf of the appellants and the State of Punjab, at the time of initial recruitment, this undesirable result is wholly unavoidable.
Mr. G. L. Sanghi learned counsel for the interveners and the promotees contended that the framers of the rule could not have intended to accord such a discriminatory treatment to the promotees in whose favour the quota is as big as 80% of the total strength.
Where recruitment to a cadre is from two sources and the Service Rules prescribe quota for recruitment for both sources a question would always arise whether the quota rule would apply at the initial stage of recruitment or also at the stage of confirmation.
Ordinarily, if quota is prescribed for recruitment to a cadre, the quota rule will have to be observed at the recruitment stage.
The quota would then be co related to vacancies to be filled in by recruitment but after recruitment is made from two different sources they will have to be integrated into a common cadre and while so doing, the question of their inter se seniority would surface.
Seniority is ordinarily determined from the date of entry into cadre on the principle of continuous officiation.
Confirmation in a post would ordinarily depend upon such circumstances as satisfactory completion of probationary period, efficiency in the discharge of duty, capacity to discharge functions of the post, availability of permanent vacancy, etc.
Now, if seniority is to be determined according to the date of confirmation and the quota rule 594 is not made relatable to confirmation in various posts falling vacant in the cadre it would directly impinge upon the seniority of members of the service.
In a slightly different form this question came before this Court in section B. Patwardhan & Ors. etc.
vs State of Maharashtra & Ors., (1) in which vires of rule 8(iii) of 1960 Rules were questioned.
Rule 8(iii) of the 1960 Rules provided that probationers recruited directly to the Bombay Service of Engineers Class II Cadre in any year shall, in a bunch, be placed senior to promotees confirmed during that year.
Striking down this rule as violative of Article 16 this Court held that the rule leaves the valuable right of seniority to depend upon the mere accident of confirmation.
The recruitment to Punjab Police Service is from two sources.
Recruits from both the sources have to be on probation.
Adopting the construction as canvassed for and on behalf of direct recruits that the proviso to rule 8(b) permitting a maximum period of probation of three years at the end of which the direct recruit automatically be confirmed unless his services are dispensed with simultaneously enjoying seniority from the date of such automatic confirmation without applying quota rule at the time of confirmation, would put the promotee to an unintended disadvantage who may be continued in an officiating capacity without confirming him and consequently denying or relegating him down in seniority for years as has happened in the case of respondents 1 and 2.
Appellants who were recruited to the Service after respondents 1 and 2, came to be confirmed at the end of two years ' period of probation while respondents 1 and 2 were not confirmed after more than 11 years of officiating service and there it not the slightest suggestion that the services of respondents 1 and 2 were not satisfactory and that the confirmation was denied on any such ground thereby directly affecting their place in the seniority list.
Such an approach would be wholly unreasonable.
Now, if the other view is taken that the quota rule would apply both at the time of recruitment and at the time of confirmation, rule 10 which provides for seniority according to the date of confirmation would certainly be save from the vice of unreasonableness.
Is such a construction possible ? One need not stretch the language to bring about the desired result but in this case upon a harmonious reading of rules 3, 6, 8 and 10, the conclusion is inescapable that quota rule is operative both at the time of initial recruitment and at the time of confirmation.
If the rule of seniority were one otherwise than according to date of confirmation it would not have become necessary to 595 apply the quota rule at the stage of confirmation but in this case the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice it will be difficult to hold that the seniority rule is not unreasonable and does not offend Article 16 (see section G. Jaisinghani 's case (supra) at pp. 717 and 718).
Quota rule is linked up with seniority rule because, not the date of entry in service determines the seniority but the date of confirmation determines seniority and, therefore, quota rule is inextricably intertwined with the seniority rule and any delinking would render the seniority rule wholly unreasonable.
Any other view would lead to the most undesirable result wholly unintended by the framers of the rule.
It must be remembered that after recruitment, members of the service, though drawn from two different sources direct recruits and promotees constitute a single integrated cadre.
They discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in the respective assignments.
In this background in section B. Patwardhan 's case (supra) this Court held that if the promotees are treated with an evil eye and an unequal hand in the matter of seniority as was done under rule 8(iii), the rule would suffer from the vice of unreasonableness and would offend Article 16 and it was actually struck down.
An exactly identical situation would follow here if quota rule is applied at the stage of initial recruitment and wholly ignored at the time of confirmation because in that event while direct recruits will get confirmation automatically, the promotees would hang out for years as has happened in the case of respondents 1 and 2 and if they are not confirmed they would never get seniority and their chances of being considered for promotion to the higher post would be wholly jeopardised.
To avoid this utterly unconsciounable outcome the construction we have put on rule 8 would be in consonance with justice and reason.
It may be pointed out that where recruitment is from two sources and the seniority in the cadre is determined according to the date of confirmation, to accord utmost fair treatment a rotational system has to be followed while giving confirmation.
The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota.
If the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time of confirmation.
A roster is introduced while giving confirmation ascertaining every time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source.
This system would breakdown the moment recruitment from either source in excess of the quota is made.
In fact a strict adherence to the quota 596 rule at the time of recruitment would introduce no difficulty in applying the rule at the time of confirmation because vacancies would be available for confirmation to persons belonging to different sources of recruitment.
The difficulty arises when recruitment in excess of the quota is made and it is further accentuated when recruits from one source, to wit, in this case direct recruits get automatic confirmation on completion of the probationary period while the promotees hang out for years together before being confirmed.
In Mervyn Coutindo 's case (supra) this Court in terms said that rotational system of fixing seniority meaning thereby confirmation followed by seniority does not offend equality of opportunity in Government service and recruitment not following the fixed quota rule need not be a ground for doing away with rotational system.
It was, however, contended that in A. K. Subraman & Ors. etc.
vs Union of India & Ors.
(1) this Court in terms has held that when recruitment is from two sources and the quota rule is enforced, the same will have to be enforced at the time of initial recruitment in officiating capacity and not at the time of confirmation.
It was, therefore, said that it would be contrary to settled law to hold that quota rule will also operate at the time of confirmation.
Now, the observation of the Court is in the context of Central Engineering Service (Class I) Recruitment Rules, 1954, which came up for interpretation before the Court in that case.
The recruitment was from three different sources, viz., by competitive examination, by promotion and by transfer.
Rule 4 provided that 75% of the vacancies in the grade of Executive Engineer Class I shall be filled by promotion of Assistant Executive Engineers Class I, the rest of the vacancies being filled by promotion and/or by transfer in accordance with Parts IV and V of the Rules respectively.
The general seniority rule which was held applicable in that case was that seniority should be determined on the basis of length of service in that grade or a service in an equivalent grade irrespective of whether the latter was under Central or Provincial Government in India or Pakistan.
It is in the context of these rules the question whether the quota rule should be applied at the stage of initial recruitment or confirmation came up for consideration.
Unlike the rule in the present case seniority was not dependent on confirmation but seniority was dependent upon continuous officiation in the cadre.
In this background this Court held that the quota has to be enforced at the time of initial recruitment in officiating capacity and not at the time of confirmation.
The situation in the case under discussion is materially different.
Therefore, it cannot be said that ignoring the 597 rule a proposition of universal application has been laid down that whenever there is a quota prescribed for recruitment to a cadre it can only apply at the time of initial recruitment and not at the time of confirmation.
Everything will depend upon the whole body of rules and harmonious construction has to be put upon the rules so as to avoid the possibility of a rules becoming unreasonable.
This Court while saying in Subraman 's case (supra) that quota rule has to be adhered to and enforced at the time of initial recruitment re affirmed the observation in Mervyn Coutindo 's case (supra) that there is no inherent invalidity in introduction of quota system and to work it out by rule of rotation.
When it is said that the confirmation shall follow the quota rule it is in terms being stated that the rotational system should be followed at the time of confirmation so as to make quota rule effective and seniority rule reasonable because all the three are interlinked.
Undoubtedly, the decision in Subraman 's case was in terms affirmed in Patwardhan 's case (supra) but the scheme of rules in Patwardhan 's case (supra) was more or less similar to the one that was examined by this Court in Subraman 's case.
Mr. Sanghi also urged that the language of Rule 8(a) would unmistakably show that members of Service recruited from either source would be on probation for a period of two years and this would imply that promotees would also be on probation for a period of two years.
Approaching the matter from this angle he further urged that proviso to rule 8(b) which permits extension of probation only by one year without expressly referring to direct recruits would govern both promotees and direct recruits and in that view of the matter promotees would also be deemed to be confirmed on the expiry of period of probation.
This contention overlooks the latter Part of rule 8(a) which provides that in case of promotees the Government may by special order in each case permit periods of officiating appointments to the Service to count towards the period of probation.
It appears that both promotees and direct recruits to Service would be on probation.
But the latter part of rule 8 (a) comprehends Inspectors being promoted on officiating basis.
Unless there is a temporary addition to the strength of the cadre such officiating appointment by promotion would not make the promotee a member of the service in view of Rule 3.
In order to avoid any injustice to such promotees the Government may make an order to treat officiating service to count towards probation.
In the absence of such order the officiating service would not count towards probation and such appointment would not make the promotee a member of the service.
In that event his case would not be covered 598 by the proviso to rule 8(a).
Therefore, the contention cannot be accepted.
The High Court was, therefore, right in concluding that the quota rule would operate at both the stages.
Accordingly both these appeals fail and are dismissed but in the circumstances of the case with no order as to costs.
S.R. Appeals dismissed.

summary:
Under the Punjab Police Service Rules, 1959, recruitment to Punjab Police Service (Deputy Superintendent of Police) is made from two sources, namely 80% by promotion and 20% through direct recruitment.
Under Rule 10, seniority in the cadre of Deputy Superintendent of Police is reckoned according to the date of confirmation.
Consideration for nomination to Indian Police Service is done according to seniority cum merit.
Respondents 1 and 2 in C.A. 2903/78 who were promotees to the cadre of Deputy Superintendents of Police in February, 1961 and January, 1961 respectively were not confirmed even though appellants and respondents 5 to 8 who were recruited to the same cadre by direct appointment commencing from May, 1961 to May, 1965 were confirmed.
They, therefore, filed a Writ Petition praying for a direction to confirm them in the Punjab Police Service, adhering to the quota rule at the time of confirmation as well.
They alleged that as seniority in the cadre of Deputy Superintendent of Police is reckoned under rule 10, according to date of confirmation failure to confirm in the post available to them in breach of the relevant rules, had resulted in the denial of equality of opportunity in public service enshrined in article 16 of the Constitution at the time of consideration of their cases for nomination to the Indian Police Service which is done according to seniority cum merit.
Allowing the Writ Petition and directing the State to confirm them, the learned single judge held that the quota rule would operate not only at the time of initial recruitment but also at the time of confirmation, as he was of the opinion that the quota rule is linked with the seniority rule.
Two Letters Patent Appeals, one filed by appellant No. 1 and another by the State, were heard along with another Writ Petition filed by one Ram Rakha urging identical contentions.
The Writ Petition was allowed and the appeals were dismissed by a common judgment modifying the direction given by the learned single judge to the extent that the State should consider the case of the Writ petitioners for confirmation afresh according to quota rule and then refix their inter se seniority.
Dismissing the appeals, by special leave the Court 585 ^ HELD: 1.
When a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation he should be deemed to continue in his post as a probationer only in the absence of any communication to the contrary in the original order of appointment or promotion or the Service Rules.
In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post.
From the mere fact that he is allowed to continue in the post after the expiry of the specific period of probation he should not be deemed to have been confirmed.
This is so, when the relevant rules permitted extension of the Probationary period for an indefinite time.
[592 A C] Sukhbans Singh vs State of Punjab, ; , G. section Ramaswamy vs The Inspector General of Police, Mysore State Bangalore, ; State of U.P. vs Akbar Ali, ; referred to.
Where the rules provide for a fixed period of probation with a power in the Government to extend it up to a specific period and not any unlimited period, either by express provision or by necessary implication, at the end of such specified period beyond which the Government had no power to extend the probation, the probationer, if he continues beyond that period, should be deemed to have been confirmed in the post.
[592 C E] State of Punjab vs Dharam Singh, ; explained.
Rule 8 of the Punjab Service Rules, 1959 prescribes a period of probation of two years and the proviso confers power to extend the period of probation by not beyond one year meaning thereby that in any case the Government would not have the power to extend the period of probation beyond a period of three years.
[593 A B] In this situation, (a) the ratio of Dharam Singh 's case would mulatis mutandis apply and the direct recruits who completed the period of probation of two years and in the absence of an extension of probationary period would be deemed to be confirmed by necessary implication.
[593 B C] (b) If seniority is to be reckoned from the date of confirmation and if promotees are not confirmed for years together in some cases, while direct recruits who came much later got confirmed and ipso facto became senior to the promotees, if quota rule is only applied at the time of initial recruitment, this undesirable result is wholly unavoidable.
[593 C D] 4.
Where recruitment to a cadre is from two sources and the Service Rules prescribe quota for recruitment for both sources, a question would always arise, whether the quota rule would apply at the initial stage of recruitment or also at the stage of confirmation.
Ordinarily, if quota is prescribed for recruitment to a cadre, the quota rule will have to be observed at the recruitment stage.
The quota would then be co related to vacancies to be filled in by recruitment but after recruitment is made from two different sources they will have to be integrated into a common cadre and while so doing the question of their inter se seniority would surface.
[593 F G] 586 Seniority is ordinarily determined from the date of entry into cadre on the principle of continuous officiation.
Confirmation in a post would ordinarily depend upon such circumstances as satisfactory completion of probationary period, efficiency in the discharge of duty, capacity to discharge functions of the post, availability of permanent vacancy etc.
Now, if seniority is to be determined according to the date of confirmation and the quota rule is not made relatable to confirmation in various posts falling vacant in the cadre it would directly impinge upon the seniority of members of the service.
[593 G H, 594 A] section B. Patwardhan and Ors.
vs State of Maharashtra; , @ 797; referred to.
A harmonious reading of rules 3, 4, 6, 8, and 10 makes it clear that the quota rule is operative both at the time of initial recruitment and at the time of confirmation.
The recruitment to Punjab Police Service is from two sources.
Recruits from both the sources have to be on probation.
Adopting the construction that the proviso to Rule 8 (b) permitting a maximum period of probation of three years at the end of which the direct recruit would automatically be confirmed unless his services are dispensed with simultaneously enjoying seniority from the date of such automatic confirmation without applying quota rule at the time of confirmation would put the promotee to an unintended disadvantage who may be continued in an officiating capacity without confirming him and consequently denying or relegating him down in seniority for years as has happened in the case of respondents 1 and 2.
Such an approach would be wholly unreasonable more so when there was not the slightest suggestion that their services were not satisfactory and that the confirmation was denied on any such ground, thereby directly affecting their places in the seniority list.
[594 C F, H] If the other view that the quota rule would apply both at the time of recruitment and at the time of confirmation, is adopted rule 10 which provides for seniority according to the date of confirmation would certainly be saved from the vice of unreasonableness.
[594 G] The quota rule is linked up with the seniority rule.
Quota rule is linked up with seniority rule because, not the date of entry in service determines the seniority but the date of confirmation determines seniority.
Quota rule being inextricably intertwined with the seniority rule any delinking would render the seniority rule wholly unreasonable.
After recduitment, members of the service, though drawn from two different sources direct recruits and promotees constitute a single integrated cadre.
They discharge identical functions, bear similar responsibilities and, acquire an equal amount of experience in the respective assignments.
If quota rule were to be applied at the stage of initial recruitment and wholly ignored at the time of confirmation the rule would suffer from the vice of unreasonableness and would offend article 16, because, in that event, while direct recruits would get confirmation automatically, the promotees would hang out for years as has happened in the case of respondents 1 and 2 and if they are not confirmed they would never get seniority and their chances of being considered for promotion to the higher post would be wholly jeopardised.
[595 A B, C, D E] section G. Jaisinghani vs Union of India and Ors. ; @ 717 and 718; section B. Patwardhan vs State of Maharashtra, ; @ 797; followed.
587 6.
Where recruitment is from two sources and the seniority in the cadre is determined according to the date of confirmation to accord utmost fair treatment a rotational system has to be followed while giving confirmation.
The quota rule would apply to vacancies and recruitment has to be made keeping in view the vacancies available to the two sources according to the quota.
If the quota rule is strictly adhered to there will be no difficulty in giving confirmation keeping in view the quota rule even at the time of confirmation.
A roster is introduced while giving confirmation ascertaining every time which post has fallen vacant and the recruit from that source has to be confirmed in the post available to the source.
This system would breakdown the moment recruitment from either source in excess of the quota is made.
In fact a strict adherance to the quota rule at the time of recruitment would introduce no difficulty in applying the rule at the time of confirmation because vacancies would be available for confirmation to persons belonging to different sources of recruitment.
The difficulty would arise when recuruitment in excess of the quota is made and it would further be accentuated when recruits from one source viz. direct recruits get automatic confirmation on completion of the probationary period, while the promotees hang out for years together before being confirmed.
[596 F H, 597 A B] Mervyn Coutindo and Ors.
vs Collector of Customs, Bombay and Ors.
, ; A. K. Subraman and Ors.
vs Union of Indian and Ors.
, [1975] 2 SCR 979; explained and distinguished.


judgement:
Special Leave Petition (Civil) Nos.
4062 4066 of 1978.
From the Orders dated 11 1 1978 of the Madhya Pradesh High Court in M.P. Nos. 390, 391, 393, 395 and 397/75.
AND SPECIAL LEAVE PETITION (CIVIL) NO. 4069 of 1978.
From the Order dated 5 1 78 of the Madhya Pradesh High Court in M.P. No. 580/75.
section K. Gambhir for the Petitioners in all the section L. Ps.
The Order of the Court was delivered by DESAI, J. Mr. Gambhir, learned counsel for the petitioner informed us that a number of petitions are pending in the High Court of Madhya Pradesh in which the question raised in the present group of petitions is involved and as we are not inclined to grant leave, we would rather indicate our reasons by a speaking order.
At the commencement of the British Raj both in the Raj ruled area of India and the princely States institutions of higher education were set up and manned under Government aegis.
As the demand for institutions of higher education increased with the proliferation of State activity and need of white collar employees, these institutions speedily multiplied and they were generally set up and manned by educational societies or local authorities.
The turmoil since independence and especially in the last one and a half decade in the world of academicians led to the reversal of the policy of Government directly setting up educational institutions and 632 in fact whatever they had set up, being slowly handed over to educational societies and/or local authorities, and it has turned a full circle.
The grievance of the teachers in such school manifested in the demand for taking over of such institutions by the State and all over the country the transition has begun.
In Madhya Pradesh the State regulated the functioning and standards of academic instruction in Higher Secondary Schools under Madhya Pradesh Madhyamik Shiksha Adhiniyem, 1965.
This supervisory role of the State hardly improved the situation with the result that tensions increased and the demand became louder that these institutions should be taken over by the Government for its direct management and the teachers should be accorded the status of Government servants.
The State Government responded to this demand by enacting the Madhya Pradesh Local Authorities School Teachers (Absorption in Government Service) Act, 1963 ( 'the Act ' for short).
The Act provided for absorbing teachers serving in Middle Schools and Primary Schools managed by local authorities in Government service.
The relevant rule for absorption is rule 3 of the Rules enacted under the Act.
In these petitions we are concerned with rule 3(b) which reads as under: "3 (b).
For absorption on the post of Head Master/Principal of a High/Higher Secondary School, the person concerned should possess the post graduate degree and should have worked on the post for a minimum period of 7 years in the same institution and should have 10 years teaching experience in any recognised institution of Madhya Pradesh".
While implementing the aforementioned rule there arose a cleavage on the interpretation of the rule, the concerned teacher contending that what is relevant is that working on the post for a minimum period of 7 years would for the purpose of computation of 7 years include service even as incharge Head Master/Principal or officiating service in the post whereas the State contended that the teacher claiming to be absorbed as Head Master/Principal should have worked as a confirmed Head Master/Principal in a substantive post for the full period of 7 years.
The State in accordance with its interpretation declined absorption to a number of Head Masters/Principals which led to the filing of a number of writ petitions in the Madhya Pradesh High Court.
It appears that this question was first examined by the Madhya Pradesh High Court in Satyendra Prasanna Singh Yadav vs State of 633 Madhya Pradesh & 3 Ors.(1), in which the High Court took the view that the period during which a Head Master/Principal worked as incharge Principal ought to be taken into account for computing the period of 7 years.
Following this decision the present group of petitions were allowed by a Division Bench of the Madhya Pradesh High Court and an application for leave to appeal to this Court under Article 133 of the Constitution was rejected.
Hence the State of Madhya Pradesh has filed this group of petitions for special leave to appeal.
It may be mentioned that the earlier decision which the High Court seeks to follow appears to have been accepted by the State of Madhya Pradesh.
Mr. Gambhir, learned counsel for the petitioner urged that the expression: "should have worked on the post for a minimum period of 7 years in the same institution" would, in the context of the rule and the consequences flowing from it, mean only a substantive post on which the Head Master/Principal was confirmed and the confirmed holder of the substantive post for a period of 7 years would be entitled to absorption as envisaged by rule 3 (b).
On a pure grammatical construction of the expression it would indisputably appear that the person claiming to be absorbed must have worked on the post of Head Master/Principal of a High/Higher Secondary School for a minimum period of 7 years.
Emphasis is on the experience gained by working on the post of Head Master/Principal.
A person incharge of the post also works and discharges the duties and functions of the post of which he has taken charge.
Even an officiating incumbent of the post does discharge the functions and duties of the post.
While examining the relative positions of confirmed Deputy Engineers and Officiating Deputy Engineers in section B. Patwardhan & Ors. etc.
vs State of Maharashtra & Ors.
,(2) this Court observed that the officiating Deputy Engineers discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in the respective assignments.
Viewed from this angle, the confirmed holder of a substantive post would be discharging the functions attached to the post and when some one is placed in that very post in an officiating capacity or directed to hold charge of the post, he would be required to perform the duties and discharge the functions of the post rendering identical service.
If the rule expressly did not make any differentiation between the persons working as a confirmed holder of substantive post and an incharge or officiating holder of the post, is there anything in the expression itself which by necessary implication excludes service in any other capacity except as a confirmed Head Master/Principal in a substantive post ? A 634 confirmed holder of a substantive post may look tautologous because one can only be confirmed in the substantive post.
Now, every High School or Higher Secondary School must of necessity have the post of Head Master/Principal and it was nowhere suggested that there would not be a post of Head Master/Principal.
If that would mean that there was always a substantive post of Head Master/Principal it may be that the confirmed holder of the post may be away and not in a position to discharge the duties and some one may be appointed in an officiating capacity or may be directed to hold charge but none the less such holder of the post will have to perform duties and discharge functions attached to the post.
Further, the emphasis in the expression is on working on the post meaning thereby performing the duties and discharging the functions assigned to the post and not the capacity in which the post is held.
Confirmation in a post being one of the glorious uncertainties of service as observed by this Court in section B. Patwardhan 's case, (supra) it is rational to believe that the framers of the rule did not want to attach any importance to the capacity in which the post is held but the emphasis was on working on the post meaning thereby discharging the duties and performing the functions assigned to the post.
Our attention was drawn to State of Assam & Ors.
vs Shri Kanak Chandra Dutta(1).
We fail to see how this decision can assist in deciding the question one way or the other.
The question that came for consideration of this Court was: whether the holder of a post designated as Moujadar in the Assam valley was holding a civil post in the context of Article 311 of the Constitution ? After examining the duties and functions attached to the post of Moujadar, this Court held that a post can exist apart from the holder of the post and that Moujadar is the holder of a civil post under the State and that it makes no difference that he is remunerated by way of a commission on the collection of Government dues and does not draw a salary.
In fact, if at all this decision helps, it would fortify the view which we are taking that the post is independent of the holder thereof and the requirement of the rule is that the person claiming to be absorbed must have worked in the post of Head Master/Principal.
Perhaps there would have been some merit in the submission on behalf of the petitioner if in rule 3(b) the words used were "who held the post" but the language in rule 3(b) is so materially different and it speaks that a person should have worked on the post.
The State was apparently wrong in introducing the element of rank for the purpose 635 of rule 3(b).
The controversy that surfaced in Ramrattan vs State of Madhya Pradesh & Ors.,(1) and the subsequent decision in State of Madhya Pradesh vs Gokul Prasad,(2) which led to a reference to a Full Bench in Girja Shankar vs S.D.O., Harda & Ors.,(3) on account of the use of the expressions such as "person appointed to be incharge of the current duties of the office" which indicated that such person did not hold the rank and, therefore, could not discharge statutory functions assigned to the post should not detain us.
The language here indicates emphasis on work being done while on the post irrespective of the capacity.
The absorption of a person as Principal under rule 3(b) does not depend on rank but on the nature of functions and duties that an incumbent discharges for a particular number of years, i.e. the duties of a Principal for a period of 7 years.
It thus clearly transpires that while computing the period of 7 years for the purpose of rule 3(b) what is determinative is performing duties and discharging functions of the post of Head Master/Principal irrespective of the capacity in which the post was held.
The High Court was, therefore, right in holding that the period during which the petitioners (respondents in these petitions) worked as incharge Head Masters/Principals ought to be taken into account by the State Government for computing the period of 7 years.
These petitions are accordingly dismissed.
V.D.K. Petitions dismissed.

dataset_name: IN-Abs

summary:
The Madhya Pradesh Local Authorities School Teachers (Absorption in Government Service) Act provided for absorbing teachers serving in Middle Schools and Primary Schools managed by local authorities in Government service.
The relevant rule for absorption enacted under the Act in rule 3 and rule 3(b) read as follows: "3(b)For absorption on the post of Head Master/Principal of a High/ Higher Secondary School, the person concerned should possess the post graduate degree and should have worked on the post for a minimum period of 7 years in the same institution and should have 10 years ' teaching experience in any recognised institution of Madhya Pradesh".
On the question of interpretation of the words "should have worked on the post for a minimum period of seven years" the High Court was of the view that the period during which a Head Master/Principal worked as incharge Principal ought to be taken into account for computing the period of 7 years.
Dismissing the special leave petitions by the State the Court, ^ HELD : 1.
While computing the period of 7 years for the purpose of rule 3(b) what is determinative is performing duties and discharging functions of the post of Head Master/Principal irrespective of the capacity in which the post was held.
[635 C] 2.
The absorption of a person as Principal under rule 3(b) does not depend on rank but on the nature of functions and duties that is incumbent discharges for a particular number of years (i.e.) the duties of a Principal for a period of seven years.
The language, in the instant case, indicates emphasis on work being done while on the post irrespective of capacity.
[635 B C] Ramrattan vs State of M.P. and Ors., I.L.R. 1964 M.P. 242; State of Madhya Pradesh vs Gokul Prasad,[1971] M.P.L.J. 609; Girja Shanker vs S.D.O. Harda and Ors., A.I.R. 1973 M.P. 104; distinguished.
On a pure grammatical construction of the expression "should have worked on the post for a minimum period of seven years in the same institution".
it is clear that the person claiming to be absorbed must have worked on the post of Head Master/Principal of a High/Higher Secondary School for a minimum period of 7 years, the emphasis being on the experience gamed by working on the said post.
A person in charge of the post also works and 631 discharges the duties and functions of the post of which he has taken charge.
Even an officiating incumbent of the post does discharge the functions and duties of the post.
If the rule expressly did not make any differentiation between the persons working as a confirmed holder of substantive post and an incharge or officiating holder of the post, there is nothing in the expression itself which by necessary implication excludes service in any other capacity except as a confirmed Head Master/Principal in a substantive post.
[633 D E, G H] Confirmation in a post being one of the glorious uncertainties of service as observed by this Court in section B. Patwardhan 's case, it is rational to believe that the framers of the rule did not want to attach any importance to the capacity in which the post is held but the emphasis was on working on the post meaning thereby discharging the duties and performing the functions assigned to the post.
[634 C D] section B. Patwardhan and Ors.
vs State of Maharashtra and Ors.
, ; ; applied.


judgement:
Civil Appeal No. 348 of 1977.
Appeal by special leave from the Judgment and Order dated 21 9 1976 of the Punjab & Haryana High Court in Letters Patent Appeal No. 89/76.
W. C. Chopra for the appellant.
M. L. Varma for respondent No. 1.
The Judgment of the Court was delivered by KRISHNA IYER, J.
A judgment often possesses a sublime essence and a humdrum component.
The appeal before us, in its happy conclusion, holds out the higher lesson that hate and fight are dissolved by basic human fellowship, even after bitter litigative struggle, if the Bench and the Bar pursue consensual justice, and bring into play conciliatory processes, and successfully persuade the parties to see reason and right beyond bare law.
If the effort succeeds, as it has in this case, court and counsel derive spiritual fulfilment and get satisfaction.
Two sisters, apparently of the affluent bracket, with a common father but different mothers, became estranged when one (the appellant) claimed a half share in the estate of the father, on whose death before 1956, the respondent 's mother inherited her husband 's estate but died after 1956, possessed of her husband 's assets and her own.
When intestate succession to her opened the plaintiff appellant claimed a half share therein, founded on section 15(1)(a) of the (the Act, for short).
The High Court negatived the right to a share as an heir, and, in doing so, preferred the interpretation of the provision adopted by the then Mysore High Court (AIR as against the meaning attached to the provision by the Allahabad High Court In fact, a plurality of decisions has been brought to our notice indicating a plain conflict.
Interpretation is sometimes a projection of judicial inclination to do justice.
The question of law canvassed before us turns on the meaning of "son" and "daughter" in the setting of section 15(1)(a) of the Act.
Do the expressions include step son and step daughter or embrace only the son and daughter of the deceased female propositus ? The text and the context and the application of traditional rules of statutory interpretation leave the position in an unsatisfactory dilemma of dual import.
Even an equitable approach may not necessarily help reach a just solution, because equity shifts as the situation varies, as illustra 641 tions presented to us convinced us.
Thus, the problem is a little tricky and may well arise frequently.
Contradictory positions already taken by different High Courts add to the difficulty and result in the deleterious uncertainty of the law which may well incite, as it has done here, close relations to quarrel over property.
Blood may be thicker than water, but wealth breaks all relations on a word of material value sets.
The Supreme Court may, when the High Courts disagree, resolve the logomachic conflict by exercising its preference guided by the language and the milieu and following the customary canons of statutory interpretation.
While its decision will be binding on account of Article 141 of the Constitution, it may still be fallible because the intendment of Parliament is best brought out by legislative clarification.
In the present instance, we have a hunch that the specific point of claim by stepsons and step daughters to inherit to the estate of a deceased female has escaped Parliament 's attention while fashioning the legislation.
This is not surprising when we appreciate the push and pressure, hurry and worry of law making modalities.
In such a situation, when a sharp conflict has shown up in the rulings of courts, the matter should not be left in doubt or to forensic linguistic exercises but must be settled by legislative action on the part of Parliament, making explicit its policy on this branch of the .
Inaction leads to more litigation, speculation and compulsion for judicial legislation by the Supreme Court.
Drafting lapses are understandable but when differences of interpretation come into the open, delay in correctional parliamentary performance is fraught with negative litigative potential.
We are hopeful that the Indian draftsmen will disprove the old English jingle: I 'am the parliamentary draftsman I compose the country 's laws And of half the litigation I 'am undoubtedly the cause.
The sublime element which we adverted to in the beginning consists in the optimistic endeavour to bring parties together so that the litigation may not cut them asunder, especially when they are sisters.
The purpose of law and justice (dharma) is promotion of cohesion and not production of fission.
From this angle, as the arguments proceeded and the legal tempers flared up, we suggested that instead of escalating estrangement the parties may as well compose themselves and their quarrels and re establish their sisterly relations making a somewhat amicable adjustment of the lis before us.
Viewing the case from this perspective of tranquillity versus turbulence, but making it perfectly 642 plain that suggestions from the court towards this end will not affect its unbiased adjudicatory duty in case it became necessary, we ventured tentative solutions.
Counsel took up the suggestion in the proper spirit and we must record our admiration for the strenuous effort made by the young lawyer Shri M. L. Varma who did his best and successfully persuaded his client who had won in the High Court to come down to a compromise.
We need hardly say that such a seasoned and senior counsel like Shri Lal Narain Sinha could be counted upon to aid in the process, and he did.
The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.
In the present case, counsel today put in a joint statement(1) signed by the parties setting down the terms on which they have agreed.
We consider it a success of the finer human spirit over its baser tendency for conflict.
Now we come to the humdrum part of the case.
According to the compromise some landed properties are to be made over to the appellant.
Some cash is also to be paid to the appellant by the respondent.
The discretion to fix the sum has been left by the parties to us.
We direct that the respondent shall pay a sum of Rs. 75,000/ to the appellant within two weeks of the attachment of the moneys by the trial court being withdrawn.
The plaintiff/appellant undertakes that she will get the attachment withdrawn and we direct her to do so.
We make it further clear that this withdrawal of the attachment is to facilitate the making of the payment of Rs. 75,000/ from out of the sum now lying in bank deposit.
We also direct that landed property worth Rs. 25,000/ will in addition be made over to the appellant from out of the suit property.
The further direction must justly follow and we make that all the rents due from the properties allotted to the appellant under the joint statement prior to this date and subsequent to this date shall be collectible by the appellant.
If they have already been deposited in court, they will be withdrawn by the appellant.
The actual allocation of the lands under the joint statement will be made by Mr. Prem Nath Handa within two months from today.
Both sides agree on Shri Handa being impartial and competent to make the said allotment.
His allotment once made will not be challengeable.
Shri Handa pursuant to this direction will make the allocation and put in a statement to that effect in the trial court and that statement will be deemed to be part of this decree.
643 We need hardly mention it is so obvious that the land that remains will belong entirely to the respondent and there will be no more claims from the appellant on the respondent in regard to the estate of her step mother, or in respect of its income or otherwise.
Before we part with the case we should like to emphasise that having regard to the merits of the claim, this is not merely a just adjustment of a bitter litigation but a path finder for the subordinate courts in dealing with family or like disputes.
Indeed, we have had to take the lead in giving shape to the settlement as it has finally emerged.
Counsel on both sides have also, statesman like, assisted in producing the settlement.
We command this example to the judiciary and to the Bar and reinforce it with what Gandhiji has recorded in his autobiography: "I have leant the true practice of law.
I had learnt to find out the better side of human nature and to enter men 's hearts.
I realised that the true function of a lawyer was to unite parties driven asunder.
The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases.
I lost nothing, thereby not even money, certainly not my soul.
" We allow the appeal in part but entirely in terms of the compromise which we consider clearly reasonable and just.
There will be no order as to costs.
TULZAPURKAR, J. Decree in terms of compromise without costs.
Parliament should clarify its intention regarding section 15(1) (a).
P.B.R. Appeal allowed in part.

summary:
The purpose of law and justice (Dharma) is promotion of cohesion and not production of fission.
A judgment often possesses a sublime essence and a humdrum component.
The sublime element consists in the optimistic endeavour to bring parties together so that the litigation may not cut them as under, especially when they are blood relations like sisters.
The present appeal in its happy conclusion, holds out the higher lesson that hate and fight are dissolved by basic human fellowship, even after bitter litigative struggle, if the Bench and the Bar pursue consensual justice and bring into play conciliatory processes and successfully persuade the parties to see reason and right beyond bare law.
If the effort succeeds, the court and counsel derive spiritual fulfilment and get satisfaction.
The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or union.
[640 D] The present case is not merely a just adjustment of a bitter litigation but a path finder for the subordinate courts in dealing with family or like disputes.
[643 B] The text and the context and the application of traditional rules of statutory interpretation, in a given case, might leave the position in an unsatisfactory dilemma of dual import.
Even an equitable approach may not necessarily help reach a just solution because equity shifts as the situation varies.
Contradictory positions taken by different High Courts add to the difficulty and result in the deleterious uncertainty of the law.
The Supreme Court may resolve the conflict by exercising its preference guided by the language and the milieu and following the customary canons of statutory interpretation.
While its decision will be binding on account of article 141 of the Constitution it may still be fallible because the intendment of Parliament is best brought out by legislative clarification in some cases.
[640 H] The appellant and the respondent were step sisters daughters of a common father but of different mothers.
The father who owned vast properties had died before the coming into force of the .
The respondent 's mother who inherited her husband 's estate died after the coming into force of the 1956 Act.
The High Court dismissed the appellant 's claim for a half share in the properties under section 15(1)(a) of the Act.
The specific point of claim, whether a son and daughter in the setting of section 15(1)(a) of the Act, includes step son and step daughter or embraces only the son and daughter of the deceased female propositus, has escaped the Parliament 's attention while passing the legislation.
[At the Court 's suggestion the parties came to a compromise assisted by counsel on both sides.] 640 Tulzapurkar, J. Parliament should clarify its intention regarding section 15(1)(a) of the Act. ^


judgement:
N: Criminal Appeal Nos.
152 153 of 1972.
From the Judgment and Order dated 28 10 1970 of Delhi High Court in Criminal Revision Nos. 426/68 and 5/70.
AND CRIMINAL APPEAL NOS.
166 167 OF 1972 From the Judgment and Order dated 28 10 1970 of Delhi High Court in Criminal Revision Nos. 72 73/68.
626 Soli J. Sorabji, Addl.
of India, B. P. Maheshwari and Suresh Sethi for the Appellant in Crl.
A. Nos.
152 153/72.
V. M. Tarkunde, section C. Malik and B. R. Agarwala for RR 4 in Crl.
A. 152/72.
H. K. Puri for RR.
3 in Crl.
A.153/72 Mrs. Urmila Sirur for RR.
3 in Crl.
A. No. 152/72.
B. K. Jaggi for the Appellant in Crl.
A. No. 166 167/72.
H. section Marwah and M. N. Shroff for RR.
in Crl.
A. Nos.
166 167/72.
B. P. Maheshwari and Suresh Sethi for the Intervener.
The Judgment of the Court was delivered by FAZAL ALI, J.
These appeals by certificate arise out of a common Judgment delivered by the High Court of Delhi and will be disposed of by us by one judgment.
In Appeals Nos. 152 153/72, one Gian Singh sold toffees to the Food Inspector and as the toffees were found to be adulterated, a prosecution was launched against him under section 7/16 of the Prevention of Food Adulteration Act.
Gian Singh, however, produced in course of the trial a warranty given by the distributors and manufacturers as a result of which the Magistrate acquitted accused Gian Singh.
After having acquitted Gian Singh, the Magistrate issued notice under section 20A against the Respondents for being impleaded and prosecution on the ground that the articles manufactured by the distributors were adulterated.
The respondents went up in revision to the Sessions Judge which was dismissed.
But on further revision to the High Court the High Court allowed the petition and set aside the order of the Magistrate impleading the respondents.
In the other two appeals i.e. Crl.
Appeals Nos. 166 and 167/1972, the manufacturers were impleaded under section 20A before the acquittal of the last seller and that order was upheld by the High Court and, hence these appeals before us by the appellants.
The common question of law that arises for consideration in all these appeals is: whether or not the Magistrate is entitled to implead the distributors or manufacturers under section 20A even after acquitting the last seller on the ground that he is protected by a warranty.
In other words, the question for decision in these appeals turns upon the interpretation of section 20A and section 20 of the Prevention of Food Adulteration Act.
section 20A runs thus: "Where at any time during the trial of any offence under this Act, alleged to have been committed by any person, not 627 being the manufacturer, distributor or dealer of any of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with the offence, then the Court may, notwithstanding anything contained in sub section(1) of section 351 of the Code of Criminal Procedure, 1898, or in Section 20 proceed against him as though a prosecution had been instituted against him under section 20".
The opening lines of section 20A clearly contemplate a contingency where the discretionary jurisdiction under this Act can be exercised only during the trial of any offence, that is to say, the stage at which the Magistrate can exercise his discretion under this Section must be before the trial has concluded and ended in acquittal or conviction.
section 20 which precedes section 20 A runs thus: "section 20 (1) No prosecution for an offence under this Act, not being an offence under section 14 or section 14A, shall be instituted except by or with written consent of the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government; Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in section 12, if he produces in court a copy of the report of the public analyst alongwith the complaint.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under subsection (IAA) of Section 16 shall be cognizable and non bailable".
A combined reading of section 20A and section 20 is that where a distributor or manufacturer or any other person is impleaded in the course of a trial, the obligation to get a fresh sanction for such person is dispensed with and the sanction obtained for the last seller in the trial will ensure for the benefit of the prosecution of the other person impleaded also and no further sanction is necessary.
It is manifest that this special statutory concession is given to the prosecution only if the conditions mentioned in section 20A are fulfilled and not otherwise.
In other words, the protection of section 20 is not available to the prosecution if the parties concerned are impleaded after the trial is over.
In such a case, a fresh trial will have to be started by obtaining sanction under 628 section 20.
This matter is no longer res integra as it has been fully considered by this Court in V. N. Kamdar vs Municipal Corporation, Delhi(1) where this Court observed as follows: ".
In order that the manufacturer, distributor or dealer may be impleaded under section 20A, it is necessary that there should be a trial for an offence committed under the Act by a person and that the manufacturer, distributor or dealer must be concerned in the offence.
When once the manufacturer, distributor or dealer is impleaded, the trial proceeds as if he is also an accused in the case.
That is made clear by the closing words of the section.
As already indicated, no prosecution for an offence under the Act can be instituted by a Food Inspector without the sanction specified in section 20.
The real purpose of enacting section 20A is to avoid.
as far as possible, conflicting findings.
If, in the prosecution instituted against the vendor, it is found that the vendor has sold the article of food in the same state as he purchased it and that while it was in his possession it was properly stored, and the vendor is acquitted, it would look rather ridiculous if in the prosecution against the manufacturer, distributor or dealer, it is found on the evidence that he did not give a false warranty, but that the article was not stored properly while it was in the possession of the vendor or that he did not sell the article in the same stage as he purchased it.
This being so, the object of the legislature in enacting the section will be frustrated if a Magistrate were to exercise his discretion improperly by failing to implead the manufacturer, distributor or dealer under section 20A in a case where he should be impleaded.
But that is no reason to hold that a separate prosecution against the manufacturer, distributor or dealer would be barred, if he is not impleaded under section 20A, and tried along with the person who is alleged to have committed an offence under the Act.
In order to avoid multiplicity of proceedings and conflict of findings, it is imperative that the Magistrate should implead these persons under section 20A whenever the conditions laid down in the section are satisfied.
As I said, it is a far cry from this to say that if this is not done, the manufacturer, distributor or dealer would get an immunity from a separate prosecution.
" For these reasons, therefore, and in the facts and circumstances of the case so far as Cr.
Appeals No. 152 153/1972 are concerned, the 629 Magistrate had no jurisdiction to implead the respondents after having concluded the trial by the acquittal of the last seller.
Similarly, the Magistrate was fully justified in Crl.
Appeals No. 166 and 167/72 in impleading the appellants during the course of the trial as the trial was still continuing and the case would, therefore, squarely fall under section 20A of the Act and no further sanction would be necessary.
For these reasons, therefore, all the appeals are dismissed.
N.K.A. Appeals dismissed.

summary:
Toffees sold by a vender to a Food Inspector having been found to be adulterated, prosecution was launched against him.
The vendor produced a warranty in the Trial Court as a result of which he was acquitted by the Magistrate.
The Magistrate however directed notice to the respondents under section 20 A for being impleaded and prosecuted on the grounds that the articles manufactured and distributed the them were adulterated.
On revision, the Session Judge dismissed the same but on further revision to the High Court, it allowed the revision and set aside the order of the Magistrate, In the other two Criminal Appeals Nos. 166 & 167 of 1972, the appellants were impleaded under section 20A before the acquittal of the last seller and that order was upheld by the High Court.
On the question whether the magistrate was entitled to implead the distributors or manufacturers under section 20A even after acquitting the seller on the ground that he was protected by a warranty.
Dismissing the appeals ^ HELD :The opening lines of section 20A clearly contemplate a contingency where the discretionary jurisdiction under this Act can be exercised only during the trial of any offence, i.e. the stage at which the magistrate can exercise his jurisdiction under this section must be before the trial has concluded and ended in acquittal or conviction.
A combined reading of section 20A and 20 is that where a distributor or manufacturer or any other person is impleaded in the course of a trial, the obligation to get a fresh sanction for such a person is dispensed with and the sanction obtained for the last seller in the trial, will ensure for the benefit of the prosecution of the other person impleaded.
Therefore protection of section 20 is not available if the parties concerned are impleaded after the trial was over.
The special statutory concession is given to the prosecution only if the conditions mentioned in section 20A are fulfilled and not otherwise.
[627B C, F H] V. N. Kamdar vs Municipal Corpration of Delhi ; followed.