judgement:
ivil Appeal No. 3948 of 1987.
From the Judgment and Order dated 30.9.1987 of the Karnataka Administrative Tribunal in Application No. 1716 of 1987.
WITH Civil Writ Petition No. 163 1 of 1987.
(Under Article 32 of the Constitution of India).
388 B.R.L. Iyengar, R.B. Mehrotra, (N.P.) and E.C. Vidyasa gar for the Appellants.
P.R. Ramaseesh and A.K. Gupta for the Respondents.
Anil Dev Singh, R.B. Masodkar and K.L. Taneja for the Intervener.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and order of the Karnataka Administrative Tribunal, Banga lore dated September 30, 1987 quashing Karnataka Public Service Commission 's Notification dated 28.9.1983 inviting applications for recruitment of Motor Vehicle Inspectors and the select list prepared by it for appointment to the post of Motor Vehicle Inspectors and further directing the Public Service Commission to invite fresh applications in accord ance with the amended Rules.
Some of those candidates whose names were included in the select list prepared by the Public Service Commission for appointment to the post of Motor Vehicle Inspectors have filed a writ petition under Article 32 of the Constitution of India for the issuance of directions to the State Government of Karnataka for making appointments to the post of Motor Vehicle Inspectors from the select list prepared by the Commission.
Since the ques tions involved in the appeal by special leave filed against the order of the State .Tribunal and the writ petition are common, we consider it proper to dispose of the same by a common judgment.
The dispute involved in the present cases relates to the selection and appointment of Motor Vehicle Inspectors.
Recruitment to the said post is regulated by the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 (hereinafter referred to as 'the Rules ') framed under Article 309 of the Constitution.
These Rules provide for direct recruitment to the post of Motor Vehicle Inspectors and it further lays down the minimum qualification requiring a candidate to be holder of Diploma in Automobile Engineer ing or Mechanical Engineering.
In 1978 the Karnataka Public Service Commission held selections and about 200 posts of Motor Vehicle Inspectors were filled up from amongst the candidates holding Diploma in Mechanical Engineering and in Automobile Engineering.
On September 28, 1983 the Public Service Commission issued an advertisement (published in the Karnataka Gazette on October 6, 1983) inviting applications for 56 posts of Motor Vehicle Inspectors which was later on increased to 102 389 posts.
The advertisement specifically stated that the selec tion shall be made in accordance with the Recruitment Rules 1976 and it further stated that a candidate for selection must be holder of Diploma in Automobile Engineering or Mechanical Engineering.
The appellants/ petitioners (in writ petition) who were holding Diploma in Mechanical Engineering alongwith others applied for selection to the post of Motor Vehicle Inspectors.
The Commission after scrutiny of the application forms issued letters for interview to the suit able candidates and the Commission commenced the holding of interviews in August, 1984.
It appears that the Commission refused to interview some candidates who were competing for selection against the reserved seats for 'local candidates ' on the ground that they were not entitled to be treated as 'local candidates ' as they had not actually worked as 'local candidates ' in the post of Motor Vehicle Inspectors and further they had secured low percentage of marks, they were further not entitled to be interviewed against the seats earmarked for general pool as the marks secured by them were less than the percentage of marks obtained by the last candidate called for interview.
The candidates claiming reserved seats as 'local candidates ' filed a number of petitions under Article 226 of the Constitution before the High Court of Karnataka and obtained stay orders as a result of which the selection could not be completed.
Later interim orders were modified by the High Court and the Commission was permitted to proceed with the selection reserving seats for the petitioners.
The High Court further modified its order at a later stage permitting the Commission to make selection and appointment with a condition that the appoint ments so made will be subject to the decision of the writ petitions.
Thereafter the Commission resumed interviews again and it completed the same by 2nd June 1987 and de clared the result of the selection on 22.6. 1987 which was published in the Karnataka Gazette dated 23rd July, 1987.
The selected candidates were given intimation of their selection and the State Government took steps for imparting them three months ' training before appointing them as Motor Vehicle Inspectors.
Meanwhile, the State Government of Karnataka amended the Recruitment Rules by a Notification dated May 4, 1987 pub lished in the Gazette on 14.5.
1987 omitting the qualifica tion of Diploma in Mechamcal Engineering for the post of Motor Vehicle Inspectors.
Consequent to the amendment of Rules the holders of Diploma, of Automobile Engineering became exclusively eligible for appointment to the post of Motor Vehicle Inspectors and the holders of Diploma in Mechanical Engineering ceased to be eligible for selection and appointment to the said post.
Some of those candidates who were 390 unsuccessful at the selection held by the Commission pre ferred applications before the Karnataka Administrative Tribunal at Bangalore for quashing the select list prepared by the Commission and also for quashing the Notification dated 28.9.1983 inviting applications for appointment to the post of Motor Vehicle Inspectors on the ground that after the amendment of Rules in 1987, no person holding the Diplo ma in Mechanical Engineering was qualified for appointment, therefore fresh selection should be made in accordance with the amended Rules.
The State Government of Karnataka as well as the appellants both contested the applications and as serted that the 1987 amendment to the Recruitment Rules were not retrospective instead the amendments were prospective and the amended Rules did not affect the selections which were in the process of finalisation by the Commission.
The Tribunal held that after the amendment of the Recruitment Rules in May, 1987 the Commission could not make selection or determine the result on the basis of the Rules which existed prior to 14th May 1987 and as such the selection of candidates holding Diploma in Mechanical Engineering was illegal as holders of Diploma in Mechanical Engineering ceased to be eligible for appointment to the post of Motor Vehicle Inspectors with effect from the date of publication of the amending Rules.
On these findings the Tribunal al lowed the applications and quashed the advertisement issued under the Notification dated 28.9.1983 as well as the select list published by the Public Service Commission and it further issued directions to the Public Service Commission to invite fresh applications and to make selections in accordance with the amended Rules.
Aggrieved, the appellants who had been selected by the Commission for appointment to the posts of Motor Vehicle Inspectors have preferred appeal before this Court.
Some of the selected candidates have directly approached this Court by means of writ petition under Article 32 of the Constitution for issue of mandamus directing the State Government to appoint the selected candidates.
There is no dispute that under the Recruitment Rules as well as under the advertisement dated 6.10.1983 issued by the Public Service Commission, holders of Diploma in Mechan ical Engineering were eligible for appointment to the post of Motor Vehicle Inspectors alongwith holders of Diploma in Automobile Engineering.
On receipt of the applications from the candidates the Commission commenced the process of selection as it scrutinised the applications and issued letters for interview to the respective candidates.
In fact the Commission commenced the interviews in August 1984 and it had almost completed the process of selection but the selection could not be com 391 pieted on account of interim orders issued by the High Court at the instance of candidates seeking reservation for local candidates.
The Commission completed the interviews of all the candidates and it finalised the list of selected candi dates by 2nd June 1987 and the result was published in the State Gazette on 23rd July 1987.
In addition to that the selected candidates were intimated by the Commission by separate letters.
In view of these facts the sole question for consideration is as to whether the amendment made in the Rules on 14th May 1987 rendered the selection, illegal.
Admittedly the amending Rule does not contain any provision enforcing the amended Rule with retrospective effect.
In the absence of any express provision contained in the amending Rule it must be held to be prospective in nature.
The Rules which are prospective in nature cannot take away or impair the right of candidates holding Diploma in Mechanical Engi neering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment.
In fact the entire selection in the normal course would have been finalised much before the amendment of Rules, but for the interim orders of the High Court.
If there had been no interim orders, the select ed candidates would have been appointed much before the amendment of Rules.
Since the process of selection had commenced and it could not be completed on account of the interim orders of the High Court, the appellants ' right to selection and appointment could not be defeated by subse quent amendment of Rules.
It is well settled rule of construction that every statute or statutory Rule is prospective unless it is ex pressly or by necessary implication made to have retrospec tive effect.
Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective.
If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only.
In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure.
The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intend ment for enforcing the Rule with retrospective effect.
Since the amending Rule was not retrospective, it could not ad versely affect the right of those candidates who were quali fied for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force.
The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the 392 requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.
In A.A. Calton vs Directorof Education & Anr., this Court considered the validity of appointment of Principal by the Director of Education made under Section 16F of the U.P. Intermediate Education Act 1921.
The High Court quashed the selection of Principal on the ground that the appointment had been made by the Selection Committee and not by the Director of Education as required by Section 16F(4) of the Act.
The High Court directed the Director of Education to make selection and appointment.
Pursuant to the direction of the High Court, the Director made appointment to the post of Principal by his order dated March 8, 1977, but before that date, Section 16F(4) of the Act was amended on August 18, 1975 taking away the power of the Director to make appointment under Section 16F(4) of the Act.
In view of the amendment of Section 16F of the Act, validity of the order of the Director of Education dated March 8, 1977 making appointment to the post of Principal was again ques tioned.
The High Court dismissed the writ petition thereupon the unsuccessful party preferred appeal.
This Court held as under: "It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under Section 16F(4) of the Act in the case of minority institutions.
The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under Section 16F of the Act.
Nor do we find any words in it which by necessary intendment would affect such pending proceed ings.
The process of selection under Section 16F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under Section 16F(4) (as it stood then) is an integrated one.
At every stage in that process certain rights are treated in favour of one or the other of the candidates.
Section 16F of the Act cannot, therefore, be construed as merely a procedural provision.
It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations.
But it is equally well settled that no retrospec tive effect should be given to any statutory provision so as to impair or take away an existing right, unless 393 the statute either expressly or by necessary implication directs that it should have such retrospective effect.
In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommen dations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question.
At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power.
Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was ille gal since the amending law had no retrospec tive effect.
It did not have any effect on the proceedings which had commenced prior to August 18, 1975.
Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceed ings.
We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case.
" In view of the above the appellants ' selection and appointment could not be held as illegal as the process of selection had commenced in 1983 which had to be completed in accordance with law as it stood at the commencement of the selection.
The amended Rule could not be applied to invali date the selection made by the Commission.
Strangely the Tribunal did not follow the latest authority of this Court as laid down in Calton 's case, on the ground that the view taken in that case was contrary to the Constitution Bench decision of this Court in State of Andhra Pradesh vs
T. Ramakrishna Rao, We have carefully consid ered the decision but we do not find anything therein con trary to the view taken in Calton 's case.
In Ramakrishna Rao 's case the State Public Service Commission of Andhra Pradesh had invited applications in 1968 for the posts of District Munsifs.
Rule 5 of the Re cruitment Rules empowered the Commission to prepare a list of persons considered for the appointment to the post of District Munsifs after holding such examination as the Government would consider necessary.
On a challenge made by some of the candidates the High Court held that Rule 5 was void as it 394 empowerd the Government to determine whether an examination was necessary or not, and also the pattern of such an exami nation, in contravention of Article 234 of the Constitution.
The High Court further held that the Government orders, pursuant to the said Rule for holding of examination by the Commisssion was also void, having been issued under invalid Rules.
Pursuant to the judgment of the High Court the Gover nor amended Rule 5 after consultation with the High Court and the Commission as enjoined by Article 234 of the Consti tution.
The Commission thereafter issued advertisement inviting fresh applications to hold examination for the purpose of filling vacancies in the post of District Mun sifs, thereupon some of the candidates who had made applica tions in pursuance to the advertisement issued in 1968 challenged the validity of the holding of the fresh examina tion on the ground that since they had applied in response to the advertisement of 1968 they could not be subjected to written examination under the amended Rule as it was pro spective in nature.
They further asserted that the amended Rule prescribing 200 marks for written test and equal number of marks for oral test was contrary to the earlier Rules and since they had acquired right to be considered in accordance with Rule 5 before its amendment, they should not be sub jected to written examination and oral test as required by the amended Rules.
The High Court partly allowed the peti tion and directed the Commission to hold a separate examina tion for those who had applied in 1968 in accordance with the unamended Rules and further to hold a separate examina tion for the subsequent vacancies in accordance with the amended Rule 5.
On appeal by the State Government, a Consti tution Bench of this Court set aside the order of the High Court.
This Court held that since Rule 5 as it stood in 1968 had been declared void the advertisement issued by the Commission inviting applications and all proceedings taken by the Commission including the examination held thereunder was rendered void.
In this context this Court made observa tion that those candidates who had made applications in 1968 had not acquired any fight as their applications had been made under a Rule which had been declared invalid.
The Court further held that in the facts of that case the question whether amended Rule 5 was retrospective or prospective did not arise.
The Court observed as under: "Secondly the respondents had not acquired any right by merely applying for the posts either under that rule or otherwise, to be selected for the posts.
The Commission, therefore, was perfectly justified in treating the earlier applications of the respondents as invalid on the ground 395 that they had been invited under an illegal rule and calling for fresh applications and holding a fresh examination in respect of all the 200 vacancies.
There was thus no question of any breach of Article 16, nor of any viola tion of any right of the respondents as none was acquired by them.
Equally, there was no question of the amended Rule 5, being prospec tive or retrospective as the Commission had to act afresh under the amended Rule, the una mended rule having been struck down and there being therefore no basis on which the applica tions of the respondents made in 1968 could be treated as valid applications.
" The above observations as relied by the Tribunal do not apply to the facts of the instant case as the advertisement issued by the Commission on 28.9.1983 was in accordance with the Recruitment Rules of 1976, validity of those Rules was not in question.
The Rule prescribing qualification was amended after four years of the advertisement, therefore the law laid down in Ramakrishna Rao 's case does not apply.
The Tribunal committed error in ignoring the law laid down in Calton 's case by placing reliance on the observations of this Court in Ramakrishna Rao 's case.
In our view the prin ciples laid down in Calton 's case are fully applicable to the instant case.
In Y.Y. Rangaiah vs J. Sreenivasa Rao, the question was whether appointment could be made out of the list of approved candidates prepared by the appointing authority against the vacancies which had occurred prior to the amendment of the rules.
The Andhra Pradesh Registration and Subordinate Service Rules made provision for the prepa ration of a list of approved candidates for appointment and promotion in the month of September every year.
In 1976 the list of approved candidates was not prepared meanwhile in 1977 the original rules were amended providing for promotion or transfer to the category of LDCs for appointment as Sub Registrars Grade II from amongst UDCs employed in the Regis tration and Stamp Department.
A list of approved candidates for promotion was made in accordance with the amended Rules and appointments were made as a result of which some of the juniors in the category of LDCs were promoted as Sub Regis trars Grade II.
The Andhra Pradesh Tribunal set aside the appointments and directed the State Government to draw a fresh panel for the year 1976 77 in respect of vacancies arising during that year in accordance with the rules as they existed at that stage and to make appointments in the vacancies pertaining to that period on the basis of the panel so drawn.
On appeal this Court held 396 that the vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by the amended Rules.
The decision does not lay down anything which may be contrary to the view taken in Calton 's case.
We would now consider the view taken by this Court in l.
J. Divakar vs Government of Andhra Pradesh, 1 as the Tribunal has placed strong reliance on the observations made in that decision in setting aside the selection made by the Public Service Commission.
It is necessary to ascertain the facts involved in Divakar 's case.
The Andhra Pradesh Public Service Commission invited appli cations for filling posts of Junior Engineers.
In response to the advertisement several candidates applied for the said post and appeared at the viva voce test.
While the Commis sion was in process of finalising the select list, the Government of Andhra Pradesh issued a Government Order under the proviso to Article 320(3) of the Constitution excluding the posts of Junior Engineers from the purview of the Public Service CommissiOn.
The Government regularised the services of all those who were appointed by direct recruitment to the post of ad hoc Junior Engineers and were continuing in service on August 9, 1979 without subjecting them to any test written or oral.
The candidates who had applied in response to the advertisement issued by the Commission challenged validity of the Government Order excluding the post of Junior Engineers from the purview of the Commission and also the validity of the decision by the Government to regularise the services of temporary employees.
Before this Court the Government 's power of framing regulations exclud ing any post from the purview of the Commission under the proviso to Article 320(3) was conceded.
It was, however, urged that since the advertisement had been issued by the Commission inviting applications for the posts of Junior Engineer and as the Commission was in process of selecting candidates the power under the proviso to Clause (3) of Article 320 of the Constitu tion could not be exercised.
This Court rejected the contention wit! the following obser vations: "The only contention urged was that at the time when the advertisement was issued the post of Junior Engineer was within the.
pur view of the Commission and even if at a later date the post was withdrawn from the purview of the Commission it could not have any retro spective effect.
There is no merit in this contention and we are broadly in agreement with the view of the Tribunal that inviting the applications for a post does not by itself create any right to 397 the post in the candidate who in response to the advertisement makes an application.
He only offers himself to be considered for the post.
His application only makes him eligible for being considered for the post.
It does not create any right in the candidate to the post.
" After making the aforesaid observations the Court further held that the relevant service Rules conferred power on the Government to fill emergently the vacancies to the post borne in the cadre of service otherwise than in accordance with the rules and therefore the Government had power to regularise temporary appointments made without the consulta tion of the Public Service Commission.
Even after upholding the Government order, the Court directed the Commission to consider the case of all those candidates who had applied for the post of Junior Engineers in response to the adver tisement issued by the Commission and to finalise the select list on the basis of viva voce test and to forward the same to the Government.
The Court further directed the Government to make appointments from the select list before any outsid er was appointed to the post of Junior Engineers.
Thus, the observations made by this Court as quoted earlier were made in the special facts and circumstances of the case, which do not apply to the facts of the instant case.
In Divakar 's case since the jurisdiction of the Public Service Commission had been denuded by the Government in exercise of its con stitutional power the Commission had no jurisdiction to conduct selection or prepare select list.
In this background the Court made observations that a candidate merely by making applications does not acquire any right to the post.
It is true that a candidate does not get any right to the post by merely making an application for the same, but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules.
If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with recruitment Rules he acquires right to be considered for selection in accordance with the then existing Rules.
This right cannot be affected by amendment of any Rule unless the amending Rule is retrospective in nature.
In the instant case the Commission had acted in accordance with the then existing rules and there is no dispute that the appellants were eligible for appointment, their selection was not in violation of the recruitment Rules.
The Tribunal in our opinion was in error in setting aside the select list pre pared by the Commission.
In view of the above discussions, we allow the appeal and set 398 aside the order of the Tribunal dated September 30, 1987.
We further direct the State Government to make appointments to the posts of Motor Vehicle Inspectors on the basis of the select list prepared and finalised by the Commission.
The writ petition is also disposed of accordingly.
There will be no order as to costs.
P.S.S. Appeal & Petition allowed.

summary:
The Karnataka General Service (Motor Vehicles Branch) Recruitment Rules, 1962 (as amended in 1976) laid down the minimum qualification of Diploma in Automobile Engineering or Mechanical Engineering for direct recruitment to the post of Motor Vehicle Inspectors.
The Karnataka Public Service Commission issued an advertisement on September 28, 1983 inviting applications for the said post stating specifically that the selection shall be made in accordance with the Recruitment Rules, 1976 and that the candidate must be holder of Diploma in Automobile Engineering or Mechanical Engineering.
After scrutiny of the applications the Commis sion issued letters for interview to the suitable candidates and commenced the holding of interviews in August, 1984.
The process of selection, however, could be completed only on June 2, 1987 on account of interim orders issued by the High Court at the instance of candidates seeking reservation for local candidates.
The result was declared on June 22, 1987 and published in the Karnataka Gazette dated 23rd July, 1987.
Thereafter, the selected candidates were given intima tion of their selection and the State Government took steps for imparting them three months training before appointing them as Motor Vehicle Inspectors.
In the meanwhile, the State Government amended the Recruitment Rules by a notification dated May 4, 1987 omit ting qualification of Diploma in Mechanical Engineering for the said post.
Thereupon some of the candidates who were unsuccessful at the selection preferred applications before the Karnataka Administrative Tribunal for quashing the select list and the notification dated September 28, 1983 inviting applications on the ground that after the amendment of Rules in 1987 no person holding Diploma in Mechanical Engineering was qualified for 386 appointment to the said post.
The State Government as well as the appellants both contested the applications and as serted that the 1987 amendment to the Recruitment Rules was not retrospective and that the amended rules did not affect the selections which were in the process of finalisation by the Commission.
Allowing the applications, the Tribunal held that after the amendment of the Recruitment Rules in May 1987 the Commission could not make selection or determine the result on the basis of the Rules which existed prior to May 14, 1987 and as such the selection of candidates holding Diploma in Mechanical Engineering was illegal as they had ceased to be eligible for appointment to the post of Motor Vehicle Inspectors with effect from the date of publication of the amending Rules.
Consequently it quashed the advertisement issued under the Notification dated September 28, 1983 as well as the select list published by the Commission and directed the Commission to invite fresh applications and to make selections in accordance with the amended Rules.
Allowing the appeal and the writ petition preferred by the selected candidates, the Court, HELD: 1.
The Tribunal was in error in setting aside the select list preferred by the Commission.
1397H] 2.1 If a candidate applies for a post in response to an advertisement issued by a Public Service Commission in accordance with the recruitment rules, he acquires a right to be considered for selection in accordance with the then existing rules.
This right cannot be affected by amendment of any rule unless the amending rule is retrospective in nature.
1397H] In the instant case, the advertisement issued by the Commission on September 28, 1983 was in accordance with the Recruitment Rules of 1976 under which the appellants were eligible for appointment.
The process of selection which had commenced on receipt of the applications, however could not be completed on account of the interim orders issued by the High Court.
The select list was finalised by June 2, 1987 and the result published in the Karnataka Gazette of July 23, 1987.
The selected candidates were also intimated by the Commission by separate letters.
If there had been no interim orders the appellants would have been appointed much before the amendment of Rules on May 4, 1987.
[395C; 390G; 391D] 387 2.2 Construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who had no control over the subject matter.
Every statute or statutory Rule is prospective unless it is expressly or by necessary implication has retrospective effect.
Unless there are words in the statute or in the Rules showing the inten tion to affect existing rights the Rules must be held to be prospective.
If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only.
In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure.
[392A; 391E F] In the instant case, the amending Rule of 1987 does not contain any express provision giving the amendment retro spective effect nor there is anything therein showing the necessary intendment in enforcing the Rule with retrospec tive effect.
The amended Rule, therefore, could not he applied to invalidate the selection made by the Commission.
[391F G; 393E F] A.A. Calton vs Director of Education & Anr., , applied.
State of Andhra Pradesh vs T. Ramakrishna Rao, , referred to.
Y.Y. Rangaiah vs J. Sreenivasa Rao, and l.
J. Divakar vs Government of Andhra Pradesh, , distinguished.
The order of the Tribunal dated September 13, 1987 is set aside.
The State Government is directed to make appoint ment to the posts of Motor Vehicle Inspectors on the basis of the select list prepared and finalised by the Commission.
[398A]


judgement:
vil Appeal No. 3 160 of 1983.
From the Judgment and Order dated 17.11.1981 of the Madras High Court in Second Appeals Nos. 650 and 874 of 1981.
V.M. Tarkunde, Ms. section Khanna, Jagmohan Khanna and A.S. Khan for the Appellants.
521 T.S. Krishnamurthy, K.R. Choudhary, S.M. Amiad Nainar and section Thananjayan for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
This Civil Appeal by the plaintiffs is directed against the Judgment of High Court of Judicature at Madras in Second Appeal Nos. 650 & 894 dated 17th November, 1981.
Mohd. Zainulabdeen and Yasin Bi filed a suit for decla ration that they were entitled to be in enjoyment and pos session of Saint Syed Moosa Shah Khadiri Dargah in Madras for a period of 27 days in all in the months of February, March, June, July, October & November and to restrain the defendants from interfering with the plaintiffs aforesaid right and management in the Dargah.
The case of the plain tiffs as set up in the plaint was that the Dargah in ques tion was being managed by the members of the family of one Sayed Mohideen Sahib.
Sayed Mohideen had two sons Sayed Ismail Sahib and Sayed Gulam Dastagir Sahib.
As per Judgment in C.S. 116 of 1909 the right of management was divided between the two sons each taking six months for himself.
According to this arrangement the branch of Sayed Ismail Sahib used to remain in management for the months of Janu ary, April, May, August, September and December and the branch of Gulam Dastagir Sahib for the other six months, namely, February, March, June, July October and November.
The present suit relates to the controversy between the decendants of the branch of Gulam Dastagir Sahib.
According to the plaintiffs after the death of Sayed Gulam Dastagir the right and management of the Dargah according to Muslim Law devolved on his two sons and one daughter, namely, Sayed Gaffar Sahib, Sayed Mohideen and Fathima Bee in proportion of 2:2:1 respectively.
The plaintiffs alleged that thus Fathima Bee had 1/5 share in 6 months i.e. 36 days.
Fathima Bee left surviving one son and two daughters.
The plaintiffs who are one son and one daughter of Fathima Bee as such are entitled to 3/4 share i.e. 27 days, as another daughter Zahurunnissa was not interested in claiming her right has been impleaded as defendant No. 2.
After the death of Fathi ma Bee, the plaintiffs being her son and daughter associated themselves in the management of the Dargah with their mater nal uncles and the sons of the maternal uncles and were getting share of the income of the Dargah.
According to the plaintiffs this arrangement was going on for several years eversince the death of Fathima Bee in 1957.
However on account of some dissensions, the first defendant Sayed Mohideen (since deceased) and another defendant being the son of another 522 deceased maternal uncle were preventing the plaintiffs from exercising their right and enjoying the income of the Dar gah.
The plaintiffs served a notice on 23.3.1972 calling upon the defendants to recognize the right of management of the plaintiffs in the Dargah.
The defendants sent a reply on 22.4.1972 stating that the plaintiffs claiming through female were not entitled to any right in the management or share in the offerings in the Dargah and even if they were entitled to any right or claim the same was barred by limi tation.
Sayed Mohideen (since deceased) defendant No. 1 in the suit filed a written statement and took the plea that his father Sayed Gulam Dastagir was a Mujawar and was receiving the offerings by right of inheritence.
Sayed Ismail being cousin brother of Sayed Gulam Dastagir as such he was also a Mujawar along with Sayed Gulam Dastagir Sahib.
Fathima Bee the daughter of Sayed Gulam Dastagir had no right of Mujawar as the right was given only to the male members and not to the females.
Fathima Bee as such was not entitled to claim any right of Mujawar.
The widows of Sayed Gulam Dastagir also could not claim any right of Mujawar thus neither Wazir Bee widow of Sayed Ismail nor Mohideen Bi the widow of Sayed Gulam Dastagir could take upon the management of the Dargah as they were female members.
According to the defendants no female members got the right of direct management of the Dargah and the Judgment in Suit No. 116 of 1909 also nega tived the right of any management by Wazir Bee and Mohideen Bi.
It was admitted that though Fathima Bee was alive but she was not a party to the aforesaid suit.
It was however pleaded that claim of Fathima Bee was not recognized in the above suit.
It was further alleged in the written statement that Fathima Bee never participated in the management of the Dargah.
According to Muslim Law females were excluded from performing the duties of the offices of Peshimam Khatib and Mujawar.
It was further alleged that Fathima Bee never enjoyed the right to the Hundial Collection of the Dargah and even if she had got any right, the same was lost as she did not claim any right till her death.
Fathima Bee never asserted any right during her life time nor received any share in the offerings.
Her right, if any, was extinguished within 12 years after the death of her father Sayed Gulam Dastagir.
It was further alleged that as Fathima Bee had no right or claim of share in the Mujawarship and was also ousted from the enjoyment of any share in the Hundial Col lections, the plaintiffs who were claiming through Fathima Bee were also not entitled to any relief.
Defendants Nos. 2 to 6 adopted the written statement filed by the first de fendant.
So far as the defendants Nos. 7, 8 & 10 were con cerned, they filed a written statement taking the plea that the 523 family members were recognized as sharers in the management of the Dargah and they were also sharing the income.
It was further alleged that even the answering defendants were paying such share to their sister Ahamadunnissa (lOth de fendant) in the Hundial collection of the Dargah.
The 7th defendant (Anser Bi) filed a suit No. 75 18 of 1971 in the Court of 4th Assistant City Civil Court and her right to manage was recognised for 9 days in a year.
Hence it was false to state that the females were not entitled to claim management.
It may be mentioned at this stage that defendant No. 1 Sayed Mohideen died during the pendency of the suit and defendants Nos.
12 to 19 were added as his legal repre sentatives.
The Trial Court decreed the suit and in the operative part held that the plaintiffs were entitled to manage the Dargah for 27 days in February (viz. from February 1 to February 27).
The defendants Nos. 3 to 6 and 12 to 19 filed appeals aggrieved against the Judgment of the Trial Court while 7th defendant in the suit filed cross objections in respect of a particular portion of the decree.
Learned City Civil Court, Madras affirmed the Judgment and decree of the Trial Court except some modifications in the relief as mentioned below. "The Plaintiffs are entitled to the reliefs of declaration that they are entitled to be in management of the Suit Dargah for a period of 27 days in a year during the months of Febru ary March, June July and October November each year and that the said 27 days shall be Febru ary 1 to 6, June 1 to 6 and October 1 to 6 for the first plaintiff and 9 days from July 1 to 9 for the second plaintiff and that the plain tiffs are entitled to the relief of possession of the said right to be in management of the Dargah and to be in enjoyment of the Hundial income during the said period.
The cross objections of the 7th defendant is dismissed.
" Different sets of defendants filed second appeals Nos. 650 & 894 of 1981, and both these second appeals were dis posed of by the High Court by order dated 17th November, 1981.
The High Court allowed the second appeals and while setting aside the Judgments and decrees of the Courts below dismissed the suit filed by the plaintiffs.
The High Court took the view that the Courts below proceeded upon an erro neous assumption as if it was the duty of the defendants to prove by what hostile assertions of title and possession ouster has been established.
524 In the view of the learned Judge by allowing inaction, more so when it was coupled with sharing of profits in not claim ing the profits at any point of time, there would arise a clear presumption of ouster.
The High court laid great emphasis on the circumstances that Fathima Bee till her death in 1957 did not care to make a demand of her right or share at any point of time.
It was further observed that after the decree in Civil Suit No. 116 of 1909, it was only male heirs who were exercising their rights.
The High Court in this regard further referred to the statement of P.W. 1 himself and drew the conclusion that after the death of his mother nobody was employed as an agent.
Only at the time when he consulted the Vakil he came to know that his mother had 36 days share in the Mujawarship.
Before that he did not do anything concerning the share of the Hundial collections.
The demand was from 1960 to 1972.
But nothing was paid.
He knew that he had rights even before.
The High Court on the basis of the above evidence of P.W. 1 observed that it was clear that the mother of P.W. 1 was aware of the filing of Civil Suit No. 116 of 1909.
Irrespective of that, in so far as there was absolutely no evidence whatsoever to show at any point of time till her death in 1957 that Fathima Bee ever made a demand or asked for a share of the Hundial collections as such it should be held that her rights had become barred.
The High Court in these circumstances held that if really the rights of Fathima Bee had become barred by her not exercising the rights, the plaintiffs themselves can have no independent right to claim.
It may be mentioned at the outset that there is no controversy now as regards the period of 27 days falling to the share of the plaintiffs and on the question that females are also entitled in the right and management of Dargah according to Muslim Law.
Thus the only controversy now left to be determined is whether the High Court was right in holding that the rights of Fathima Bee had become barred by limitation by ouster and as such the plaintiffs who were also claiming through Fathima Bee had lost their right by ouster? It would first be necessary to make it clear as to what is the impact of the decree dated 11.8.1910 passed in Civil Suit No. 116 of 1909, so far as the present litigation is concerned.
A perusal of the Judgment in the above case goes to show that Sayed Moosa Sahib and Wazir Bi filed a suit against Sayed Gaffar Sahib, Sayed Mohideen Sahib and Mohi deen Bi for a declaration that the plaintiffs and the de fendants were entitled to perform the duties of Mujawar of the Dargah in turns and they were entitled to collect and receive the offerings, gifts and other emoluments of the Dargah as well as the collec 525 tion of the hundi box in the Dargah and appropriate the same in two equal moities and to settle a scheme for managing the ' said Dargah so as to equalize the amount of income and emoluments to be collected and appropriated by both the parties during their respective turns.
In the said case a decree was passed that the 1st plaintiff and the 1st & 2nd Defendants were entitled to perform the duties of Mujawar of the Dargah in question in turns.
A scheme was also drawn for collecting and receiving the offerings, gifts and other emoluments of the said Dargah as well as the collections of the hundi box and apportion the same in two equal moities and that Sayed Moosa Sahib, the 1st plaintiff was entitled to one half and Sayed Gaffer Sahib and Sayed Mohideen, the 1st and 2nd defendants were entitled to the other half of the collections, offerings, gifts and other emoluments.
A great capital has been raised on the basis of the above decree by the learned counsel for the defendant respondents that no share was given to the female members in the above decree, namely, to Wazir Bi and Mohideen Bi and from this it was clear that the females were totally excluded from the right or claim of any share in the management or offerings in the Dargah.
We do not find much substance in the above contention.
In the above judgment the controversy whether females were entitled to any right or management of the offerings in the Dargah was neither raised for decided.
Fathima Bee though alive but was not a party in the aforesaid litigation and any judgment given in that suit cannot be held as res judi cata or binding on Fathima Bee or the present plaintiffs.
Mr. Krishnamurthy Aiyer, learned counsel for the defen dantrespondents contended that he was not arguing that the aforesaid judgment and decree were res judicata or binding on Fathima Bee, but his submission was that it should be taken as a circumstances in proving ouster of Fathima Bee from the fight or management of the Dargah or any claim in the offerings.
In our view as already mentioned such judg ment cannot be considered as an ouster of Fathima Bee cou pled with other circumstances which clearly show that there was no ouster in the facts of the present case.
It is an admitted case of the parties that Sayed Gulam Dastagir Sahib had a fight of management in the Dargah in question for six months (180 days) in the months of Febru ary March, June July and October November.
Gulam Dastagir had one daughter Fathima Bee and two sons and as such Fathi ma Bee got 1/5th share and which came to 36 days out of aforesaid 180 days.
Thus Fathima Bee was a co sharer in the right of management and possession of the Dargah as well as the 526 offerings and hundial collection.
Now, before considering the question of ouster of Fathima Bee, it would be important to consider the pleadings of the defendants in this regard.
Learned counsel for the defendant respondents in this regard have drawn our attention to paragraph 19 of the written statement filed by 1st defendant Sayed Mohideen.
Para 19 of the written statement reads as under: "Neither Fathima Bee till her death nor the plaintiffs from her death till now had posses sion or management of the Dargah, None of them had at any time received a share in the hundi al collection or offerings.
Further there has been expressed denial of Fathima Bee 's title at the time of the judgment of the High Court in 1909, if she did not have a title according to Muslim Personal Law that title was denied, and she was expressly ousted out from the enjoyment of any share in the hundial collec tions.
From her death till now the plaintiffs have not received any share in the hundial collections".
A perusal of the above pleading show that the defendants are claiming ouster on the basis of expressed denial of Fathima Bee 's title at the time of the judgment of the High Court in 1909 and another ground taken is that neither Fathima Bee nor the plaintiffs had at any time received a share in the hundial collection or offerings nor had posses sion or management of the Dargah.
The defendants are totally mistaken in taking the ground that there was any expressed denial of Fathima Bee 's title in that litigation.
At the risk of repetition it may be stated that neither Fathima Bee was a party in that suit nor any such question was raised or decided that females were not entitled to any share in the management or offerings of Dargah.
Thus there was no ques tion of any expressed denial of Fathima Bee 's title in that litigation.
It appears that the defendants were carrying a mistaken impression all along that females under the Muslim Law were not entitled to any right of management or posses sion in a Dargah and on that account they were pleading an ouster of Fathima Bee as well as the plaintiffs.
Such plead ing cannot be considered as an ouster in fact of a co sharer from a joint right.
It is well settled that where one co heir pleads adverse possession against another co heir then it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties.
The possession of one co heir is considered in law, as possession of all the co heirs.
The co heir in possession cannot render his possession adverse to the other co heir not in possession merely by any secret hostile animus on his own part in derogation of 527 the other co heir 's title.
Thus it is a settled rule of law as between co heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to construe ouster.
Thus in order to make out a case of ouster against Fathima Bee or the plaintiffs, it was neces sary for the defendants to plead that they had asserted hostile title coupled with exclusive possession and enjoy ment to the knowledge of Fathima Bee.
The written statement filed by the defendants in the present case is totally lacking in the above particulars and thus apart from the want of evidence, there is no proper pleading of ouster in the present case.
Thus it is clear that neither in the written statement nor in reply to the notice of the plain tiffs any stand was taken that the right of Fathima Bee or plaintiffs was specifically denied on any particular occa sion so as to put them on notice that from that date the possession of the defendants would be adverse to the inter est or rights of the plaintiffs of Fathima Bee.
We are supported in the above view by a decision of this Court in P. Lakshmi vs L. Lakskmi Reddy, ; It is further proved from the evidence led by the plain tiffs that Fathima Bee was being looked after by her broth ers and she was in fact being paid portions of the income from the Dargah and on that account she was satisfied in allowing the brothers to enjoy the office of Mujawar on her behalf also.
The 13th defendant who has been examined as D.W. 1 has admitted that Fathima Bee was living and was being looked after by Sayed Gaffar and who had arranged for and met the expenses of the marriage of the two plaintiffs.
This clearly goes to show that relations between Fathima Bee and her brothers were cordial and as such there was no question of any knowledge to Fathima Bee that she was being ousted from her right or share in the Dargah.
No evidence has been led by the defendants to show that such right was openly denied by the brothers which would be considered as an ouster.
The First Appellate Court had considered all these aspects in detail after discussing the entire evidence placed on record and had clearly recorded the finding that there was no proof of ouster in the present case.
The High Court in our view committed a serious error in reversing the above finding and in taking a wrong approach in holding ouster on the basis of judgment and decree given in Suit No. 116 of 1909 and on the ground that Fathima Bee had not made a demand or asked for her share of the hundial collections at any point of time till her death in 1957.
Mr. Krishnamurthy Aiyer, learned counsel for defendants Nos. 528 12 to 19 submitted that according to decree given by First Appellate Court the period of 27 days from February 1 6, June 1 6 and October 1 6 for First plaintiff and 9 days from July 1 9, for the second plaintiff acts onerous to his defendants 12 to 19 and it must be fixed in a manner which may be equitable to all the parties.
The appellants and their counsel Shri Tarkunde on the other hand submitted that their share of 27 days may be fixed jointly and so far as their own proportion of 18 and 9 days is concerned they will make their arrangement inter se.
After hearing learned coun sel for the parties and considering the entire facts and circumstances of the case, we uphold the decree passed by the First Appellate Court with the following modification in the arrangement of days in the management of the Dargah in question.
The plaintiffs would be entitled to such management from 17th.
to 30th June and 1st to 13th July and in the next year from 18th to 30th June and 1st to 14th July.
This arrange ment would continue by rotation of each year.
To be more precise the plaintiffs would be entitled to have the manage ment of the suit Dargah from 17th to 30th June and 1st to 13th July in the year 1990 and 18th to 30th June and 1st to 14th July in the year 1991 and they shall continue to follow such cycle by rotation every year.
For the reasons stated above, we set aside the judgment and decree of the High Court dated 17th Nov. 1987 and re store that of the Trial Court as affirmed by the First Appellate Court with modifications as stated earlier.
Parties to bear their own costs.

dataset_name: IN-Abs

summary:
Mohd. Zainulabdeen and Yasin By filed a suit for decla ration that they were entitled to be in enjoyment and pos session of Saint Syeed Moosa Shah Khadiri Dargah in Madras for 27 days and to restrain the defendants from interfering with tile plaintiffs ' aforesaid right and management in the Dargah.
In reply the defendant No. 1 alleged that in the manage ment of the Dargah, female members had no right nor could they claim the right of Mujawar.
It was also alleged that Fathima Bee through whom the Plaintiffs were claiming never enjoyed the right to Hundial collection of the Dargah and share in the Mujawarship and even if she had any right the same was lost as she did not claim any right till her death and therefore the Plaintiffs were also not entitled to any relief.
Defendants 7, 8 and 10 however in their written statements admitted family members to be sharer in the income and management of the Dargah and they also admitted that they were paying such share to their sister Ahamadun nissa (10th defendant) in the Hundial collections and that the City Civil Court in suit No. 7518 of 1971 had also recognised the right of 7th defendant Anser Bi to management of the Dargah for 9 days in a year.
Thus it was false to contend that the females were not entitled to claim manage ment.
The trial court decreed the suit of the Plaintiffs and held that they were entitled to manage the Dargah 1or 27 days in a year.
Defendants 3 to 6 and 12 to 19 filed appeals against the judgment of the trial court.
The City Civil Judge, however, affirmed the judgment of the Trial Court with some modifications in the relief.
Different sets of defendant filed two second appeals before the High Court and both were disposed of by the High Court by its judgment and Order dated 17th November, 1981 whereby it reversed the 520 judgments and decrees of the courts below and dismissed the suit filed by the Plaintiffs.
This Court came to the conclusion that there is no controversy as regards the period of 27 days falling to the share of the Plaintiffs and the right of the females to the management of the Dargah according to Muslim law.
As regards the question of right of Fathima Bee having become barred by limitation by ouster and that as such the Plaintiffs too had lost that right, this Court, while setting aside the Judg ment and Decree of the High Court and restoring that of the Trial Court as modified by the First Appellate Court, HELD: It iS well settled that where one co heir pleads adverse possession against another co heir it is not enough to show that one out of them was in sole possession and enjoyment of the profits of the properties.
The possession of one co heir is considered in law as possession of all the co heirs.
The co heir in possession cannot render his pos session adverse to the other co heirs not in possession merely by any secret hostile animus on his own part in derogation of the other co heirs title.
[526G H; 527A] It is a settled rule of law as between co heirs that there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to construe ouster.
[527A] The High Court in the instant case committed a serious error in reversing the finding of the lower Appellate Court and in taking a wrong approach in holding ouster on the basis of the judgment and decree given in Suit No. 116 of 1909 and on the ground that Fathima Bee had not made a demand or asked for her share of the hundial collections at any point of time till her death in 1957.
[527G] P. Lakshmi vs
L. Lakshmi Reddy; , , referred to.


judgement:
(Crl.) No. 353 of 1989.
(Under Article 32 of the Constitution of India).
481 P.K. Chatterjee and R.P. Gupta for the Petitioner.
Prithvi Raj, Dalveer Bhandari and Prashant Choudhary for the Respondents.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
This writ petition has been filed under Article 32 of the Constitution praying for the issue of a writ of certiorari to quash the order of detention dated 3.5.1989 passed by the District Magistrate, Farrukhabad, U.P. as confirmed by the Government of U.P. in their order dated 20.6.1989 detaining one Lakhmi Chand Gupta under the and to issue a writ of habeas corpus releasing the said detenu from such detention.
The order of detention was made under section 8 of the by the District Magistrate on the ground that with a view to prevent the detenu from indulging in unlawful activities which are prejudicial to the maintenance of essential services and supplies required for public life it was necessary to keep 'him under detention.
The detenu made his representation to the Advisory Board.
On receipt of the report of the Advisory Board to the effect that in its opinion there are sufficient grounds for detention, the Government after a consideration of the report confirmed the order of detention under section 12(1) of the Act and di rected that the said Lakhmi Chand Gupta be detained for a period of 12 months from 3.5.1989 the date of detention order.
This writ petition for habeas corpus has been filed by the brother in law of the detenu.
The learned counsel for the petitioner contended that there are absolutely no grounds or basis on which the de taining authority could have satisfied himself that the detenu had been engaged in criminal activities which are injurious to the maintenance of essential services and supplies required for public life or that the detenu is likely to indulge in any such activity in future.
Secondly, there is an unexplained delay from the date of the alleged incident or crime and the date of detention vitiating the satisfaction and the detention order itself.
The circum stances referred to in the order of detention does not lead to nor there was anything on which the District Magistrate can come to a conclusion that there is inherent criminal propensity in the detenu which could lead the District Magistrate to infer that there is every likelihood of the detenu repeating the alleged unlawful activity.
The facts relating to the incident which is referred to in the order 482 of detention as the ground for detention are as follows: On the 15th of February, 1989 the Junior Engineer, Tubewell Electrification Sub Division, Sarvodaya Nagar, Kanpur lodged a complaint with the Station House Officer, Police Station Chhibranau, Distt.
Farrukhabad that electric wires to a length of about 2900 mtrs.
in 11 K.V. Visya Bank Feeder had been cut and stolen away on 14.2.1989 by some unknown per sons and that the value of the loss to the Electricity Board amounted to Rs.21,500.
This F.I.R. was registered as Crime Case No. 51 of 1989 under section 379 IPC in the said Police Station and it was shown therein that three persons, namely, Jagdish, Santosh and Munshi Sharma were the accused.
Santosh is the brother of Jagdish.
On the 3rd of March, 1989 the house of Jagdish was raided and two bags filled with stolen aluminium electric wire recovered.
Jagdish gave an informa tion that a person at Vishnugarh Road claiming himself to be a resident of Delhi used to purchase stolen electric wire from the person cutting the electric wire stealthily.
On this information of Jagdish the factory of the detenu at Vishnugarh Road was raided.
One Munshi Sharma who is stated to be the servant of the detenu was found in possession of about 20 k.g. of melted electric wire and that was seized from him under a recovery memo.
The order of detention stated that Munshi Sharma had confessed that the stolen electric wire had been purchased by him from Jagdish and Santosh.
The detenu was arrested on the 2nd of May, 1989.
On the same date the bail application was moved on behalf of the accused.
After setting out this incident the grounds of detention stated: "This act on your part has disrupted the electric system resulting in non operation of tubewells, dearth of water for crops, non supply of drinking water for general public and cattle.
This unlawful act of yours and that of your accomplices is against the main tenance of essential services and supplies required for public order and life.
This act of yours have caused injury to the national economy and created terror in the general public and poses a serious threat to the public life.
" The order of detention further stated: "At present you are detained in the District Jail of Fatehgarh in connection with case No. 51/89 under section 379/411 of I.P.C. and in the P.S. Chhibranau in connection with case No. 56/89 under section 379 of I.P.C and your well wishers and sympathisers are trying to get you bailed 483 out in the aforesaid cases and a bail applica tion in this behalf has already been moved in the court and you are likely to be bailed out.
There is every likelihood that after coming out of jail you will again indulge in your criminal activities.
" It is on the basis of this the order stated that the detain ing authority was satisfied that the detenu had been engaged in criminal activities injurious to the maintenance of essential services and supplies required for public life and that with a view to prevent him from indulging in such unlawful activities it has become necessary to keep him under detention.
The learned counsel contended that the detenu had no past criminal record.
The present criminal case filed under section 411 of I.P.C. is the first crime which had been alleged against him.
The learned counsel further contended that there is absolutely no evidence of detenu 's complicity with the crime and making link of the detenu with the recov ery of 20 k.g. of melted wire recovered from Munshi Sharma at the behest of Jagdish.
In this connection he also con tended that the statement said to have been made bY Munshi Sharma had not been supplied to him and that would also vitiate the order of detention.
In the counter affidavit filed in this Court the respondent stated that there was no separate confessional statement recorded from Munshi Sharma and the confessional statement referred to in the detention order is the one that is found in the recovery memo a copy of which had already been supplied to the detenu.
The learned counsel for the petitioner drew our attention to the recovery memo and contended that if the statement of Munshi Sharma in the recovery memo is the only material available that cannot be a basis of satisfaction for an order of detention under the .
The statement of Munshi Sharma relied on by the detaining authority and found in the recovery memo reads as follows: "When the gauge of that melted wire was meas ured it was found that of the Government wire, therefore, the said melted wire weighing 20 k.g. was taken in the possession of police and thoroughly sealed in a sack.
But before seal ing the same a separate specimen of melted wire and the specimen of wire were taken and the specimens were sealed.
The accused Munshi Sharma on his being arrested stated that he had purchased that property from both Santosh i.e the brother of Jagdish and Jagdish, he further stated that 484 he melted and sold the same to Lakhmi i.e. the owner of the said factory.
The said property after being melted cannot be identified and it is used for making utensils thereafter." ' In this statement it may be seen that Munshi Sharma did not say that he purchased the stolen wire for the detenu or on the instructions of the detenu.
In fact he did not even say that he is the servant or agent of the detenu.
He had merely stated that 20 k.g. of melted wire recovered from him was purchased by him from Santosh and his brother Jagdish and that he had melted and sold the same to the detenu.
After it is melted in the melted form it could not be distinguished from any other melted wire of legal origin.
The statement also does not impute knowledge on the part of the detenu that the same was from stolen wires.
In any case it was not possible to say on the basis of this statement that the detenu was in league with other persons in the activity of stealing wire or purchasing of the same.
In fact it is not known how from the melted wire weighing 20 k.g.
the detain ing authority or the investigating officers came to the conclusion that the gauge of the melted wire was found to be that of Government wire.
Again only 20 k.g. was found in the factory and that too in the possession of Munshi Sharma though inside the factory.
The statement of Munshi Sharma in, the recovery memo and melted wire recovered from Sharma were the only material available before the detaining au thority.
In the light of the absence of past criminal histo ry on the part of the detenu we have no doubt that the statement found in the recovery memo could not form basis of satisfaction for the detention.
The learned counsel took strong exception to the view of the detaining authority that the detenu is likely to get bail and there is every likelihood that after coming out of jail the detenu will again indulge in criminal activities and that, therefore, it is necessary to detain him.
In this connection he relied on the decision of this Court in Ramesh Yadav vs District Magistrate, Etah, where it was held that merely on such apprehension a detention order under should not ordinari ly be passed.
This Court observed: "On a reading of the grounds particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activi ties in the area.
If 485 the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted challenge against that order in the higher forum had to be raised.
Merely on the ground that an ac cused in detention as an undertrial prisoner was likely to get bail an order of detention under the should not ordinarily be passed.
We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well set tled principles indicated by this Court in series of cases relating to preventive deten tion.
The impugned order, therefore, has to be quashed.
" This Court had considered in a number of cases the validity of orders of detention made when a person is in jail custody but the detaining authority considered the likelihood of the detenu getting a bail and in that view proceeding to consider the necessity for detaining him under the preventive detention proceedings.
In Rameshwar Shaw vs District Magistrate, Burdwan & Anr., ; their Lordships observed: "On the other hand, if a person who is under going imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released.
The antecedent history and the past conduct ' on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary." In Kartic Chandra Guha vs The State of West Bengal and Ors., the order of detention stated that having regard to the activities of the detenu, as discussed in the grounds of detention, and having regard to the possi bility of his being enlarged on bail the detaining authority was satisfied that the detenu should be detained under the Act.
This order was upheld on the ground "the District 486 Magistrate on information received by him thought that the petitioner was likely to be released on bail in which case having regard to his past activities it was open to the District Magistrate to come to the reasonable conclusion that having regard to the desperate nature of the aCtivities of the petitioner his enlargement on bail would be no deter rent to his desperate activities." In Alijan Mian vs District Magistrate, Dhanbad and Others, [1983] 4 SCC 301 it was again held that a detention order would not become invalid merely because the detention order was passed on the detaining authority being apprehen sive of the likelihood of the detenu 's release on bail.
In Smt.
Shashi Aggarwal vs State of U.P. & Ors.
, ; this Court observed: "Every citizen in this country has the right to have recourse to law.
He has the right to move the court for bail when he is arrested under the ordinary law of the land.
If the State thinks that he does not deserve bail the State could oppose the grant of bail.
He cannot, however, be interdicted from moving the court for bail by clamping an order of detention.
The possibility of the court grant ing bail may not be sufficient.
Nor a bald statement that the person would repeat his criminal activities would be enough.
There must also be credible information or cogent reasons apparent on the record that the dete nu, if enlarged on bail, would act prejudi cially to the interest of public order.
That has been made clear in Binod Singh vs District Magistrate, Dhanbad, where it was observed: [1986] SCC (Crl.) 490 @ 495 (para7) A bald statement is merely an ipse dixit of the officer.
If there were cogent materials for thinking that the detenu might be released then these should have been made apparent.
Eternal vigilance on the part of the authori ty charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental free doms of our citizens.
" All these cases were again considered in a latest judg ment of this Court in N. Meera Rani vs Government of Tamil Nadu and Another, ; , and it was held that all those decisions of the Court on this aspect have to be read in the light of the Constitution Bench 487 decision in Rameshwar Shaw 's case (supra) and that the conclusion about the validity of the detention order in each case was reached having regard to the facts and circum stances in the particular case.
Thus the detaining authority though can take into ac count the possibility of the detenu being released on bail in the criminal proceedings,.
have to be satisfied, having regard to his past activities or by reason of the credible information or cogent reasons, that if he is enlarged on bail, he would indulge in such criminal activities.
In the present case except the bald statement that the detenu would repeat his criminal activities after coming out of the jail, there are no credible information or material or cogent reasons apparent on the record to warrant an inference that the detenu if enlarged on bail would indulge in such crimi nal activities which are prejudicial to the maintenance of essential services.
There must be something more than what is found in the record here to come to the conclusion that this is not a case of solitary incident but a case of the detenu indulging in business of receiving stolen electric wires.
On the other hand it appears to us that the detention order has been made in order to supplant the criminal prose cution which is not permitted.
The learned counsel also contended that there is an unexplained delay which makes the ground of detention not proximate vitiating the order of detention itself.
The theft of the wire was on 14.2.1989 and the F.I.R. was registered on 15.2.1989.
On that day itself as seep from the record Jagdish, Santosh and Munshi Sharma were shown as accused on the basis of some information.
The house of Jagdish was raided on 3.3.1989 and on the same day the factory of the detenu was raided and 20 k.g. of melted wire was recovered from Munshi Sharma but no action was taken till 2.5.1989 against the detenu.
On being arrested on 2.5.1989 the detenu moved a bail application and the detention order itself was made on 3.5.1989.
Though bail was granted, in view of the detention order he could not be released from jail.
In spite of the fact that the recovery statement itself was made as early as on 3.3.1989 no action was taken till 3.5.1989.
Nothing more is stated in the detention order.
The delay has also not been satisfactorily explained in the counter state ment of the respondents.
The ground instance, therefore, could not be a proximate cause for a sudden decision to take action under the and this also viti ates the order.
In the result we allow this writ petition, set aside the order of detention and direct that the detenu be released forthwith.
P.S.S. Petition allowed.

summary:
The detenu was arrested on May 2, 1989.
On the same date a bail application was moved on his behalf.
On May 3, 1989 he was detained under section 8 of the .
The detention order stated that the detenu was likely to be bailed out and there was every likelihood that after coming out of jail he would again indulge in criminal activ ities injurious to the maintenance of essential services and supplies required for public life.
The facts referred to in the grounds of detention were that on the basis of a com plaint of theft of electric wire lodged on February 15, 1989 an FIR was registered under section 379 IPC against three per sons, 'J ', 'S ' and 'M '.
Some of the stolen material was recovered from the house of 'J ' on March 3, 1989 and on the information provided by him about the purchase of such material the factory of the detenu was raided on the same day.
There 'M ', stated to be the servant of the detenu, was found in possession of about 20 kg.
of melted electric wire and that was seized under a recovery memo.
In the confes sional statement made by 'M ' and recorded in the recovery memo itself, he had stated that he had purchased the elec tric wire from 'J ' and 'S ' and that he had melted and sold the same to the detenu.
These facts led the detaining au thority to conclude that there was inherent criminal propen sity in the detenu.
Detenu 's representation was rejected by the Advisory Board.
The Order was confirmed by the Govern ment under section 12(1) of the Act.
In the writ petition seeking to quash the order of detention, it was contended that there was no evidence of detenu 's complicity with the crime linking him with the recovery of melted wire, that the criminal case filed under section 411 IPC was the first crime alleged against him, that he had no past criminal record from which it could be inferred that he was likely to indulge in such activity in future, and that there was an 480 unexplained delay from the date of the alleged crime and the date of detention vitiating the satisfaction and the deten tion order itself.
Allowing the writ petition, the Court, HELD: 1.
The detaining authority though can take into account the possibility of the detenu being released on bail in the criminal proceedings, have to be satisfied, having regard to his past activities or by reason of the credible information or cogent reasons, that if he is enlarged on bail, he would indulge in such criminal activities.
[487B] In the instant case, except the bald statement that the detenu would repeat his criminal activities after coming out of the jail, there were no credible information or material or cogent reasons apparent on the record to warrant an inference that the detenu if enlarged on bail would indulge in such criminal activities which were prejudicial to the maintenance of essential services.
There must be something more than what was found in the record to come to the con clusion that this was not a case of solitary incident but a case of the detenu indulging in business of receiving stolen electric wires.
Furthermore, the detention order seems to have been made in order to supplant the criminal prosecution which was not permitted.
[487B D] Ramesh Yadav vs District Magistrate, Etah, ; Rameshwar Shaw vs District Magistrate, Burdwan & Anr.
, ; ; Kartic Chandra Guha vs The State of West Bengal & Ors., ; Alian Mian vs District Magistrate, Dhanbad & Ors., [1983] 4 SCC 301; Smt.
ShashiAg garwal vs State of U. P. & Ors., ; and N. Meera Rani vs Government of Tamil Nadu & Anr., ; , referred to.
In spite of the fact that the recovery statement itself was made as early as on March 3, 1989 no action was taken against the detenu till May 3, 1989.
Nothing more was stated in the detention order.
The delay had also not been satisfactorily explained in the counter statement of the respondents.
The ground therefore, could not be a proximate cause for a sudden decision to take action under the Nation al Security Act and this also vitiates the order.
[487F G]