judgement:
minal Appeal No. 146 of 1954.
Appeal from the judgment and order dated the 27th November 1954 of the Court of Judicial Com 683 missioner at Ajmer in Criminal Appeal No. 15 of 1954 arising out of the judgment and order dated 25th August 1954 of the Court of Special Judge at Ajmer in Criminal Case No. 5 of 1953.
B. P. Maheshwari, for the appellant.
C. K. Daphtary, Solicitor General for India, Porus A. Mehta, H. R. Khanna and B. H. Dhebar, for the respondent.
September 21.
The Judgment of the Court was delivered by BHAGWATI J.
This Appeal with a certificate of fitness under article 134(1)(c) of the Constitution against the decision of the Judicial Commissioner at Ajmer raises an important question as to the connotation of the word "officer" contained in section 21(9), Indian Penal Code.
The appellant was a Class III servant employed as a metal examiner, also called Chaser, in the Railway Carriage Workshops at Ajmer.
I He was charged under section 161, Indian Penal Code with having accepted from one Nanak Singh currency notes of the value of Rs. 150 as illegal gratification as a motive for securing a job for one Kallu.
He was also charged under section 5(1)(d) of Act II of 1947 with abusing his position as a public servant and obtaining for himself by corrupt or illegal means pecuniary advantage in the shape of Rs. 150 from the said Nanak Singh.
He was further charged with having committed an offence under section 420, Indian Penal Code for having induced the said Nanak Singh to deliver to him currency notes of the value of Rs. 150 by dishonest representation that be could secure a job for the said Kallu.
The learned Special Judge, State of Ajmer, who tried him in the first instance for the said offences convicted him of the offence under section 161, 'Indian Penal Code as also the offence under section 5(1) (d) of Act II of 1947 and sentenced him to suffer rigorous imprisonment for six months and one year respectively in regard to the same, both the sentences to run concurrently.
In so far, 684 however, as it was not proved that the appellant did not believe when he accepted the money that he could secure or would try to secure a job for Kallu, it was held that no case under section 420, Indian Penal Code was made out and he was acquitted of that charge.
The appeal taken to the Judicial Commissioner, State of Ajmer, by the appellant failed and on the 10th December, 1954, the learned Judicial Commissioner granted to the appellant a certificate of fitness for appeal on two main grounds, viz., (1) whether the appellant was an "officer" within the meaning of clause (9) of section 21, Indian Penal Code, and (2) whether the provisions of section 137 of the Railways Act excluded all railway servants from the definition of public servants except for purposes of Chapter ' IX, Indian Penal Code.
Concurrent findings of fact were reached by both the Courts below on the question as to whether the appellant accepted Rs. 150 from Nanak Singh as and by way of illegal gratification and these findings could not be and were not challenged before us by the learned counsel for the appellant.
The only questions which were canvassed before us were the two legal points which formed the basis of the certificate of fitness for appeal granted by the learned Judicial Commissioner, State of Ajmer, to the appellant.
The second question has now become academical in the facts of the present case by virtue of a decision of this Court in Ram Krishan vs Delhi State(1), which lays down that before the amendment of section 137 of the Railways Act by Act 17 of 1955 railway servants were treated as public servants only for the purposes of Chapter IX, Indian Penal Code, but in any event they were public servants under the Prevention of Corruption Act (Act II of 1947).
In so far as the appellant has, in our opinion, been rightly convicted of the offense under section 5(1)(d) of Act If of 1947 and awarded the sentence of rigorous imprigonment for one year, the question whether he was rightly convicted of the offence under section 161, (1) ; 685.
Indian Penal Code for which he was awarded the lesser sentence of six months ' rigorous imprisonment has become merely academical and the only question which remains to be considered by us here is whether he was an "officer" within the meaning of section 21 (9), Indian Penal Code.
The provisions of law in regard to the first question may be conveniently set out at this stage: Section 2 of the Prevention of Corruption Act II of 1947 provides: "for the purposes of this Act "public servant" means a public servant as defined in section 21 of the Indian Penal Code".
Section 21, Indian Penal Code provides so far as is relevant for the purposes of the present appeal: "The words 'public servant ', denote a person falling under any of the descriptions hereinafter following, namely, Ninth. . . . and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty".
There is no doubt that the appellant was.
in the service or pay of the Government and was performing the duty of a metal examiner known as Chaser in the Railway Carriage Workshops at Ajmer and was thus performing a public duty.
It was, however, contended that the appellant was not an officer within the meaning of that term as used in section 21(9), Indian Penal Code.
An Officer, it was contended, on the authority of Reg.
vs Ramajirav jivbajirav and another(1), meant one to whom was delegated by the supreme authority some portion of its regulating and coercive powers and who was appointed to represent the State in its relations to individual subjects.
According to the dictum of West, J., the word "officer" meant some person employed to exercise to some extent and in certain circumstances a delegated function of Government.
He was either himself armed with some authority or repre (1) XII Bom.
H.C.R. 1. 386 sentative character or his duties were immediately auxiliary to those of some one who was so armed.
It was, therefore, contended that the appellant being a metal examiner known as Chaser in the Railway Carriage Workshops had not delegated to him by the supreme authority some portion of its regulating and coercive powers nor was he appointed to represent the State in its relations to individual subjects.
He was neither armed with some authority or representative character nor were his duties immediately auxiliary to those of some one who was so armed.
He was not employed to exercise to some extent and in certain circumstances the delegated function of Government and, therefore, was not an "officer" within the meaning of that term as used in section 21(9), Indian Penal Code.
If he was thus not an officer of the Government, he could not be a public servant within the meaning of section 21, Indian Penal Code nor could he be a public servant for the purposes of Act 11 of 1947 and could not be convicted of the offence under section 5(1)(d) of Act II of 1947.
It has to be noted, however, that the case before the learned Judges of the High Court of Bombay in 12 Bombay High Court Reports 1, concerned an Izaphatdar, that is a lessee, of a village who bad undertaken to keep an account of its forest revenue and pay a certain proportion to the Government, keeping the remainder for himself and the question 'that arose for the consideration of the Court was whether such a person was an officer within the meaning of section 21(9), Indian Penal Code.
It was in this context that the aforesaid observations were made by West, J., and the Court came to the conclusion that Deshmukhs and Deshpandes would be sufficiently within the meaning of the clause they being appointed to perform for the State a portion of its functions or to aid those who were its active representatives but not so an Izaphatdar or the lessee such as the accused.
He was not an officer but a mere contractor bound by his engagement but not by the terms of his office or employment to pay a certain proportion to the Government.
There was no delegation to him of any 687 authority for coercion or interference nor was he an assistant appointed to help any one who was vested with such authority.
The duties which he performed were contractual duties frauduler deception in the discharge of which might subject him to punishment for cheating but not duties attached to any office conferred on him or his predecessor in title, failure to perform which with integrity could make him liable, as an officer, to the special penalties prescribed for delinquent public servants.
This decision in 12 Bombay High Court Reports 1, came to be considered by the Calcutta High Court in Nazamuddin vs Queen Empress(1).
The petitioner in that case was a peon attached to the office of the Superintendent of the Salt Department in the district of Mozafferpur and he had been convicted under section 161, Indian Penal Code.
The contention urged on behalf of the petitioner was that he did not fall within the terms of the last portion of clause (9) of section 21, Indian Penal Code which declared "every officer in the service or pay of Government" was a public servant be cause he was not an officer.
The case of Reg.
vs Ramajirav Jivbajirav(2) was cited in support of that contention and the learned Judges of the Calcutta High Court observed at page 346 as under: "The learned Judges in that case had to consider whether a lessee from Government was on the conditions of his lease a public servant and, in doing so, they considered generally the meaning of the term "officer".
It was there held that an officer means "some person employed to exercise, to some extent and in certain circumstances, a delegated function of Government.
He is either armed with some authority or representative character, or his duties are immediately auxiliary to those of some person who is so armed".
The meaning which we are asked to put on these words seems to us to be too narrow as applied to the present case.
The peon who has been convicted as a public servant is in service and pay of the Government, and he is attached to the office of the Superintendent of the Salt Department.
The exact (1) I.L.R. (2) XII Bom.
H.C.R. 1.
688 nature of his duties is not stated, because this objection was not taken at the trial.
, but we must take it that, from the nature of his appointment, it was his duty to carry out the orders of his official superior, who undoubtedly is a public servant, and in that capacity to assist the Superintendent in the performance of the public duties of his office.
In that sense he would be an officer of Government, although he might not possibly exercise "any delegated function of the Government".
Still his duties would be "immediately auxiliary to those of the Superintendent who is so armed".
We think that an "officer in the service or pay of Government" within the terms of section 21 of the Penal Code is one who is appointed to some office for the performance of some pulice duty.
In this sense the peon would come within section 21, cl. 9".
The true test, therefore, in order to determine whether a person is an officer of the Government, is: (1) whether he is in the service or pay of the Government, and (2) whether he is entrusted with the performance of any public duty.
If both these requirements are satisfied it matters not the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed.
As has been stated in Bacon 's Abridgment at Vol.
6, page 2, in the article headed "Of the nature of an officer and the several kinds of officers": "The word "officium ' principally implies a duty, and in the next place, the charge of such duty; and that it is a rule that where one man 'bath to do with another 's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer".
The next paragraph thereafter may also be referred to in this context: "There is, a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of offices; such as an agreement to, make hay, herd a flock, &c which differ widely from that of steward of a manor" &c. (Vide 12 Bombay High Court Reports at page 5).
689 This was the sense in which the decision in 12 Bombay High Court Reports 1, was understood by the learned Judges of the Lahore High Court in Ahad Shah vs Emperor(1) when they observed at page 157: "But it is not enough that a person should be in the pay or service of Government to Constitute him a public servant within the meaning of section 21 (ninthly), I.P.C. He must also be an "Officer".
That expression is not, of course, to be restricted to its colloquial meaning of a Commissioned or non Commissioned Officer; it means a functional or holder of some "officium" or office.
The office may be one of dignity or importance; it may equally be humble.
But whatever its nature, it is essential that.
the person holding the office, should have in some degree delegated to him certain functions of Government".
The question for consideration before the learned Judges of the Lahore High Court was whether a Quarter Master 's 'clerk was a public servant within the meaning of that expression in section 21, Indian Penal Code.
On the facts elicited before them the learned Judges came to the conclusion that the Quarter Master 's clerk as such was just a Babu and no more an officer than a labourer or menial employed and paid by Government to do public work (See Queen vs Nachimuttu(2).
if therefore on the facts of a particular case the Court comes to the conclusion that a person is not only in the service or pay of the 'Government but is also performing a public duty, he has delegated to him the functions of the Government or is in any event performing duties immediately ' auxiliary to those of some one who is an officer of the Government and is therefore 'an officer ' of the Government within the meaning of section 21(9), Indian Penal Code.
Applying this test to the facts of the case before us, we find that the appellant was a Class III servant and was employed as a metal examiner known as Chaser in the Railway Carriage Workshop.
He was working under the Works Manager who was certainly (1) A.I.R. 1918 Lah.
(2) I.L.R. 7 Madras 18, 690 an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager who, beside being an officer of the Government was also armed with some authority or representative character qua the Government.
The appellant was thus, even on a narrow interpretation of the dicta of West, J. in 12 Bombay High Court Reports 1, an officer in the service or pay of the Government performing as such a public duty entrusted to him by the Government and was therefore, a public servant within the meaning of section 21 of the Indian Penal Code.
This being the true legal position, this contention of the appellant also does not avail him and the first question must be answered against him.
The appellant was, therefore, an officer within the meaning of section 21(9) and therefore a public servant within the meaning of section 21, Indian Penal Code and being such public servant be fell within the definition of a public servant contained in section 2 of the Prevention of Corruption Act II of 1947.
He was, therefore, on the facts and circumstances of the case, rightly convicted under section 5(1) (d) of Act II of 1947.
His conviction and the sentence imposed upon him by the Courts below were therefore quite in order and this appeal must therefore stand dismissed.

summary:
The appellant was a Class III servant employed as a metal examiner, also called chaser, in the Railway Carriage Workshop at Ajmer.
He accepted a sum of Rs. 150 as illegal gratification for securing a job for some person.
He was charged under section 5(1)(d) of the Prevention of Corruption Act, 1947 (Act II of 1947).
The appellant contended that he was not an "officer" within the meaning of the term used in section 21(9) of the Indian Penal Code and so could not be a public servant for purposes of Act II of 1947.
It was found that the appellant was working under the Works Manager who was certainly an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager who was also armed with some authority or representative character qua the Government.
Held, that the appellant was an officer within the meaning of section 21(9) of the Indian Penal Code and, therefore, a public servant within the meaning of section 2 of Act 11 of 1947.
The true test in order to determine whether a person is an officer of the Government, is: " .
(1) whether he is in the service or pay of the Government and (2) whether he is entrusted with the performance of any,public duty.
The public duty may be either,a function of the Government delegated to him or may be a duty immediately auxiliary to that of someone who is an officer of the Government.
vs Ramajirav Jivbajirav ([1875] XII Bom.
H.C.R. 1), explained.
Nazamuddin V. Queen Empress, ([1900] I.L.R. and Ahad Shah vs Emperor (A.I.R. 1918 Leh. 152), relied on


judgement:
vil Appeal Nos. 3804 to 3807 of 1988.
From the Judgment and Order dated 23.11.1987 of the Bombay High Court in Second Appeal No. 404 of 1985, W.P. No. 607 of 1985 ant Second Appeal No. 86 of 1986.
R.K. Garg, Vijay Hansaria and Sunil K. Jain for the Appellants.
PG NO 714 S.B. Bhasme, V.M. Tarkunde, A.S. Bhasme, V.N. Ganpule, S K. Agnihotri, A.G. Pawar and A.B .
Lal for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
Special leave is granted in all these matters.
Heard learned Counsel for the parties.
The principal question that is involved in these appeals is some what peculiar.
The question is whether the Food & Civil Supplies Department, Sholapur, has a separate and independent existence or whether it is part and parcel of the Revenue Department.
The best authority which can answer the question is the Government, but the Civil Courts and the High Court have not been able to accept the Government version that the Food & Civil Supplies Department, Sholapur, is an independent Government Department and does not form part of the Revenue Department.
The facts leading to the question will be stated presently.
The Commissioner of Pune Division, by his order dated January 27, 1981, granted promotions to the appellants to the posts of Awal Karkuns, and directed that the private respondents herein, who were holding these posts would be repatriated to their parent department, that is, the Revenue Department.
Aggrieved by the said order of the Commissioner, Pune Division, some of the private respondents filed a civil suit for a declaration that the said order granting out of turn promotions to the appellants as Awal Karkuns was unjust, illegal and violative of the fundamental rights of the respondents guaranteed under Articles 14 and 16 of the Construction of India.
The learned Civil Judge, Senior Division, Sholapur, decreed the suit and declared that the impugned order of the Commissioner, Pune Division was discriminatory, illegal and not binding upon the respondents.
The learned Civil Judge also granted an injunction permanently restraining the Government from reverting the respondents from the posts of Awal Karkuns to the posts of Clerks on appeal.
the Fourth Addition District Judge, Sholapur, upheld the judgment and decree of the Civil Court and dismissed the appeal preferred by the appellants and the State of Maharashtra The appellants and the State of Maharashtra filed two separate second appeals to the High Court of Bombay.
In the meantime, some of the respondents also filed writ petitions in the High Court challenging the validity of the impugned order of the Commissioner, Pune Division.
The High Court, by a common judgment, disposed of the second appeals and the writ petitions.
The High Court PG NO 715 came to the finding that the Food & Civil Supplies Department, Sholapur, had no separate existence on the date the impugned order was passed, and that it was part and parcel of the Revenue Department.
Upon that finding, the High Court dismissed the second appeals and allowed the writ petitions of the respondents.
It is not disputed before us that before 1965, there was no such Department as the Food & Civil Supplies Department at Sholapur.
Initially, the Agriculture, Food & Cooperation Department of the Government was entrusted with the subject of food and the supply thereof.
By a circular dated January 13, 1965 of the Government of Maharashtra, a new department called "the Civil Supplies Department" was created.
By a subsequent Government circular dated May 13, 1965 it was renamed as "Food & Civil Supplies Department .
It appears from the said Government circular dated January 13, 1965, creating the department, that the Agriculture, Food & Cooperation Department was renamed as the Agriculture & Cooperation Department.
In other words, the subject of food was withdrawn from the said and a new Department, namely the Civil Supplies Department.
subsequently renamed as Food & Civil Supplies Department, was created.
After the creation of the Food & Civil Supplies Department the rationing was introduced in Sholapur City and Salgarwadi area under the control of the Food & Civil Supplies Department which will appear from the Government resolution dated February 19, 1966.
As a result of introduction of statutory rationing several posts had to be created in the establishment of the Controller of Rationing, which was admittedly a part of the Food & Civil Supplies Department.
Certain posts were also transferred from the Revenue Department to the Food & Civil Supplies Department along with the holders of such posts.
The most significant fact in this regard is that the holders of the posts had to be appointed afresh as personnel of the Food & Civil Supplies Department which will also appear from the Government resolution dated February 19 1966.
It is not disputed that at the time that is to say, after the introduction of statutory rationing, the Food & Civil Supplies Department was an independent Government Department at Sholapur.
The statutory rationing was discontinued in Sholapur with effect from May, 1, 1968.
The posts in the rationing establishment were directed to be merged in the office of the Foodgrain Distribution Officer, Sholapur, and the expenditure on that account was directed to be debited to PG NO 716 the budget head "26 Miscellaneous Department Civil Supplies Department (iii) Procurement, Distribution and Price Control (b) Mofussil" and met from the grants sanctioned thereunder.
It is, however, not disputed that some of the rationing staff were retrenched, some were absorbed in the Revenue Department and the remaining staff were directed to be merged in the office of the Food grain Distribution Officer, Sholapur, with effect from May 1, 1969.
So far as the appellants before us are concerned, they were not retrenched, but according to the private respondents they were absorbed in the Revenue Department.
This has been emphatically disputed by the appellants.
Mr. Tarkunde, learned Counsel appearing on behalf of the private respondents, has drawn our attention to a letter dated October 25, 1969 written by the Foodgrain Distribution Officer, Sholapur, to the Collector, Revenue Branch, Sholapur.
In that letter, the Food grain Distribution Officer, Sholapur, requested the Collector to absorb the remaining staff of the rationing department, who were then working in the Foodgrain Distribution Office.
At this stage, it may be that there is no dispute that both the Departments, namely, the Food & Civil Supplies Department and the Revenue Department, were under the District Collectorate.
A list was attached to the said letter dated October 25, 1969 of the Foodgrain Distribution Officer relating to absorption of rationing staff in the Revenue Department.
The list contains the names of the appellants and under column No. 7 of the list, it has been recorded that the appellants and other remaining staff were willing to work in the Revenue Department.
In view of the said letter of the Foodgrain Distribution Officer and the list annexed to his letter written to the Collector, it is submitted by the learned Counsel, appearing on behalf of the private respondents, that the appellants were transferred to the Revenue Department as the Food & Civil Supplies Department was abolished on the abolition of the statutory rationing.
It has been already noticed that some of the staff of the rationing establishment, who were not retrenched, were transferred to the office of the Foodgrain Distribution Officer.
According to the respondents, the Foodgrain Distribution Office is under the Revenue Department, while the appellants aver that it belongs to the Food & Civil Supplies Department.
In this regard, the most important say is that of the Government.
It is asserted on behalf of the State of Maharashtra that the Food grain Distribution Officer belongs to the Food & Civil Supplies Department.
The PG NO 717 controversy in this respect can be easily resolved by referring to the said letter dated October 25, 1969 of the Foodgrain Distribution Officer to the Collector, Revenue Branch.
If the Foodgrain Distribution Office belongs to the Revenue Department, there was no necessity for the Foodgrain Distribution Officer to request the Collector, Revenue Department, to absorb the unretrenched staff of the rationing establishment.
Be that as it may, the question that arises is whether the appellants were absorbed in the Revenue Department.
It is true that under column No. 7 of the list annexed to the said letter dated October 25, 1969 of the Food grain Distribution Officer, it has been recorded that the appellants and other staff of the rationing establishment were willing to work in the Revenue Department.
There is, however, nothing to show that as a matter of fact the appellants were transferred to the Revenue Department.
The appellants might be willing to be absorbed in the Revenue Department, but there is no material in proof of the alleged absorption of the appellants in the Revenue Department.
It is also not the case of the State Government that the appellants were absorbed in the Revenue Department.
In the counter affidavit of the respondent No. 1, it is stated as follows: "That the District Collector of Solapur by his memorandum dated 17 4 1969 laid down the conditions of giving alternative employment to the retrenched ex civil supply staff in Revenue Department.
These conditions are: (1) That the services in Revenue Department are transferable throughout the district.
(2) That Revenue employees are required to pass departmental examination within prescribed period.
(3) That to hold Awal Karkun 's post Revenue employee is required to pass revenue qualifying exam.
in addition to Sub Service Department Examination.
" It is clear from the statement extracted above that one of the conditions for absorption was that the appellants were required to pass the departmental examination within the prescribed period.
Another conditions was that one had to pass revenue qualifying examination in addition to Sub Service Department Examination for holding the post of Awal Karkun in the Revenue Department.
It is not disputed that the appellants have not passed any of these examinations.
This shows that as they did not fulfil the conditions for PG NO 718 absorption in the Revenue Department, they could not be transferred to or absorbed in that Department.
The High Court proceeded on the assumption that on the abolition of the statutory rationing, the Food & Civil Supplies Department, Sholapur, also came to be absolished.
Indeed, this is also the contention of the private respondents.
Food is an important matter for Government 's consideration and it was the responsibility of the Agriculture, Food & Cooperation Department before the creation of the Food & Civil Supplies Department.
The said Department was renamed as `Agriculture & Cooperation Department ' inasmuch as food ' was taken out of that Department and placed under the Food & Civil Supplies Department.
Thus, the fact of introduction or abolition of statutory rationing has nothing to do with the question of food and supply thereof, which must be dealt with by some department of the government and after the creation of the Food & Civil Supplies Department, it was dealt with by that Department.
It will be wrong to assume that the Food & Civil Supplies Department dealing with food and supply thereof, will be abolished consequent on the abolition of the statutory rationing.
In the counter affidavit of the State of Maharashtra, affirmed by Shri Chandrasen Pandarinath Kamble, it has been stated inter alia that in the State of Maharashtra there is a system of Fair Price Shops and Household Card System in the areas where statutory rationing system does not exist This Fair Price Shops and Household Card system undoubtedly comes under the control and supervision of the Food & Civil Supplies Department.
As the Department existed it can be reasonably presumed that it had its own staff and the appellants contention that they were retained in the Food & Civil Supplies Department seems to be correct.
Merely the fact of giving of consent by the appellants to their absorption in the Revenue Department, fails to persuade us to hold that the appellants were absorbed in the Revenue Department, in the absence of any proper material in that regard.
A question has, however, been raised on behalf of the private respondents that if the Department of Revenue and the Food & Civil Supplies Department are two different Departments of the Government, there is no material to show how the respondents came to hold posts in the Food & Civil Supplies Department.
It is true that there is no order showing that the respondents were transferred on deputation from the Revenue Department to the Food & Civil Supplies Department.
In our opinion, in view of the facts and circumstances stated above, it can be reasonably presumed PG NO 719 that the respondents were sent on deputation to the Food & Civil Supplies Department, otherwise there was no question of their repatriation to their parent department, that is, the Revenue Department.
There are other materials which would also justify the finding that the Food & Civil Supplies Department and the Department of Revenue are two independent and separate Departments even after the abolition of statutory rationing.
The Governor of Maharashtra, by an order dated April 13, 1983, framed rules under the proviso to Article 309 of the Constitution of India for regulating recruitment to the posts of Assistant Commissioner (Supply), District Supply Officer and Foodgrain Distribution Officer Class I under the Food & Civil Supplies Department of the Government of Maharashtra.
Framing of these rules, proves two things, namely, that the Food & Civil Supplies Department has independent and separate existence, and that the Foodgrain Distribution Officer belongs to that Department.
Another set of rules was framed under the proviso to Article 309 of the Constitution of India by the notification dated May 21, 1984 for regulating recruitment to Class 11 posts in the Food & Civil Supplies Department of the Government of Maharashtra.
The framing of these rules for regulating the recruitment of officers in the Food & Civil Supplies Department supports the case of the appellants and also of the Government that the Food & Civil Supplies Department Sholapur, is an independent Department.
The final gradation list of supply staff of directly recruited Clerks and Godown Keepers was prepared and published.
It is.
however contended on behalf of the private respondents that the supply staff belong to the Revenue Department.
This contention is without any substance.
The words supply staff undoubtedly, refer to the supply staff of the Food & Civil Supplies Department .
The State Government is justified in placing reliance upon the gradation list in support of its case that the Food & Civil Supplies Department is an independent and separate Department.
It is, therefore, apparent from the above facts, particularly the fact that separate rules were framed for recruitment of officers in the Food & Civil Supplies Department and a final gradation list was also prepared and published, and the Food & Civil Supplies Department not part and parcel of the Revenue Department but it has a separate and independent existence.
This finding finds support from another fact that the Revenue Department has its own gradation list of its employees including the private respondents.
PG NO 720 We may now deal with one more submission made on behalf of the private respondents.
Our attention has been drawn to a fact which has also been noticed by the High Court, namely, that by a Government order issued to all Commissioners of Divisions, it was directed that the posts of Inspecting Officers should be made available to the persons from the Revenue Department as well as from the Food & Civil Supplies Department in the ratio of 75:25.
It is submitted on behalf of the private respondents that this Government order points to the fact that both the Food & Civil Supplies Department and the Revenue Department are one and the same Department at Sholapur.
We are unable to accept this contention.
The Government order in question, in our opinion, establishes the fact that the two Departments are separate Departments of the Government.
It has been already noticed that some officers of the Revenue Department were holding the posts in the Food & Civil Supplies Department, Sholapur, presumably on deputation and, hence, the ratio with regard to the posts of Inspecting Officers, with which we are not concerned, had to be fixed.
If the two Departments were not separate Departments, there was no necessity for mentioning the names of these two Departments in the said order.
It is not disputed that the posts of Inspecting Officers are posts of the Food & Civil Supplies Department.
The contention of the private respondents based on the said Government order is, accordingly, rejected.
Before we conclude the judgment, we may refer to an unreported Bench decision of the Nagpur Bench of the Bombay High Court in Special Civil Applications Nos. 707 of 1974 and 4258 and 4834 of 1976 (Shri Atmaram Chaturji Garbade & Ors.
vs State of Maharashtra & Ors.) disposed of on January 13, 1977 where it has been held that the two departments are separate.
It is, however, contended by Mr Tarkunde that the Nagpur Bench decision has no bearing on the instant appeals before us as it relates to the city of Nagpur and cantonment in Kampte where the Food & Civil Supplies Department was not abolised.
It, however, appears that in that decision, the Bench has taken into consideration some common documents.
Be that as it may, in the instant appeals, there are ample materials which justify the conclusion that the two departments are not one and the same department but are two separate departments.
In the circumstances, we are unable to agree with the High Court that the appellants are employees of the Revenue Department inasmuch as after the abolition of the statutory rationing, the Food & Civil Supplies Department was also abolished and the appellants were absorbed in the Revenue PG NO 721 Department.
As the appellants belong to a different department, their promotions will be governed by the rules of that department.
Similarly, the promotions of the private respondents will be considered in accordance with the rules of the Revenue Department.
We are told that after their repatriation to their parent department all the private respondents were promoted to the posts of Awal Karkuns.
For the reasons aforesaid, we set aside the judgment of the High Court as also of the trial court and that of the lower appellate court and dismiss the suit and the appeals.
The writ petitions filed ' in the High Court are also dismissed.
The instant appeals are allowed, but in view of the peculiar facts and circumstances of the cases, there will be no order as to costs.
R .S.S.
Appeals allowed.

dataset_name: IN-Abs

summary:
The appellants were promoted in January 1981 as Awal Karkuns in the Department of Food and Civil Supplies, Sholapur.
At the same time, the private respondents holding those posts were directed to be repatriated to their parent department, that is, the Revenue Department.
The private respondents challanged these orders by way of a civil suit on the ground that these orders were unjust, illegal and violative of Articles 14 and 16 of the Constitution.
The Civil Judge decreed the suit.
The Additional Sessions Judge and the High Court upheld the decree.
The High Court came to the finding that the Food & Civil Supplies Department, Sholapur, had no separate existence on the date the impugned order was passed and that it was part and parcel of the Revenue Department.
It is contended by the private respondents that on the abolition of the statutory rationing, the Food & Civil supplies Department was abolished, and the appellants were absorbed in the Revenue Department.
This contention is disputed by the appellants.
Allowing the appeals, it was, HELD: (1) It was not disputed that after the introduction of statutory rationing, the Food & Civil Supplies Department was an independent Government Department at Sholapur.
[71G] (2) It was wrong to assume that the Food & Civil Supplies Department dealing with food and supply thereof.
was abolished consequent on the abolition of the statutory rationing.
[718D] (3) The fact of introduction or abolition of statutory rationing had nothing to do with the question of food and supply thereof, which must be dealt with by some department of the Government and after the creation of the Food & Civil PG NO 712 PG NO 713 Supplies Department, it was dealt with by that Department.
[718C] (4) As the Department existed, it could be reasonably presumed that it had its own staff and the appellant 's contention that they were retained in the Food & Civil Supplies Department seemed to be correct.
[718E] (5) There was no material in proof of the alleged absorption of the appellants in the Revenue Department.
Moreover, as they did not fulfil the conditions for absorption in the Revenue Department, they could not be transferred to or absorbed in that Department.
[717C; 718H] (6) It is true that there was no order showing that the respondents were transferred on deputation from the Revenue Department to the Food & Civil Supply Department.
It could, however, be reasonably presumed that the respondents were sent on deputation to the Food & Civil Supplies Department, otherwise there was no question of their repatriation to their parent department.
[718H; 719A] (7) It was apparent from the fact that separate rules were framed for recruitment of officers in the Food and Civil Supplies Department and a final gradation list was also prepared and published, that the Food and Civil Supplies Department was not part and parcel of the Revenue Department, but it had a separate and independent existence.
[719G] (8) As the appellants belonged to a different department their promotions would be governed by the rules of that department.
Similarly, the promotion of the private respondents would be considered in accordance with the rules of the Revenue Department.
[721A] Shri Atmaram Chaturvedi Garbude & Ors.
vs State of Maharashtra & Ors., Special Civil Application Nos.
707 of 1974 and 4834 of 1976 Bombay High Court, Nagpur Bench, referred to.


judgement:
N: Criminal Appeal Nos.
551 553 of 1988 From the Judgment and Order dated 18.2.1987/13.2.1987 of the Patna High Court in Crl.
No. 258, 259 and 2231 of 1987 (R).
M.P.Jha for the Appellant.
Dr. Y.S. Chitale, Kapil Sibal.
K.M. Lahari, R.F. Nariman K.K. Lahiri, Raian Karanjawala Mrs. Manik Karanjawala and Miss Meenakshi for the Respondents.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
SLP 1879 of 1987 is by the State of Bihar for special leave under article 136 of the Constitution to appeal from the order dated 13.2.1987 of the High Court of Patna in Crl.
223 of 1987 quashing, in exercise of powers under section 482 of code of Crl.
Procedure 1973, the order dated 1.7.1986 of the Judicial Magistrate Chaibasa, ,taking cognizance of an offence under Section 9(1) read with sec.
51 of the Wild Life Protection Act.
1972 against respondent Vikram Singh.
PG NO 459 Special Leave Petition Nos.
1877 of 1987 and 1878 of 1987 arise out of the subsequent two similar orders both dated 18.2.1987 in Criminal Misc .
258/ 1987(R) and 259/ 1987(R) of the High Court quashing the same common order of the said Magistrate dated 1.7.1986 against two other accused, namely, Murad Ali Khan and faruq Salauddin who are respondents in these two Special Leave petitions.
Special leave was granted and the three appeals were taken up for final hearing, heard and disposed of by this common judgment.
We have heard Shri M.P. Jha, learned counsel for the State of Bihar and Dr. Chitaley and Shri Nariman for the respondents.
The accusation against the three respondents is that on 8.6.1986 at 2.0() P.M. they along with two others named in the complaint, shot and killed an elephant in compartment No. 13 of Kundurugutu Range Forest and removed the ivory tusks of the elephant.
On 25.6.1986 the Range Officer of Forest of that Range lodged a written complaint with the Judicial Magistrate, Ist Class Chaibasa, in this behalf alleging offences against respondents under Section 51 of the Wild Life Protection Act, 1972.
The learned Magistrate took cognisance of this offence and ordered issue of process to the accused.
It would appear that at the Police Station.
Souna, a case had been registered under sections 447, 429 and 379 IPC read with sec 54 and 39 of the Wild Life Protection Act, 1972 and that the matter was under investigation by the police.
The respondents, WhO Were amongst the accused, moved the High Court under Sec.
482 Cr.
P.C. or quashing of the order of the Magistrate taking cognizance he alleged offence and issuing summons.
The High Court was persuaded to the view that this was a case to which section 210(1) of Code of Criminal Procedure, 1973 was attracted and that as an investigation by the Police was in progress in relation to the same offence the learned Magistrate would be required to stay the proceedings on the complaint and call for a report in the matter from the police; and that the learned Magistrate acted without jurisdiction in taking cognizance of the offence and ordering issue of process against the accused.
The High Court, accordingly, quashed the proceedings against the respondents.
From the orders under appeal it would appear that two grounds commended themselves for acceptance to the High Court.
The first was that the learned Magistrate acted contrary to the provisions of sec.
PG NO 460 210.
The High Court observed: "The investigation is still continuing and pending in so far as the petitioner is concerned and the investigation shall continue.
Obviously the Judicial Magistrate acted beyond jurisdiction in taking cognizance against the petitioner when for the same allegation the investigation was proceeding and pending.
He acted contrary to the provisions of Section 210 of the Code of Criminal Procedure.
The complaint was filed after long delay .
" The Second ground was on the merits of the complaint.
The High Court, inter alia, observed: "On the face of the complaint petition of the first information report itself the facts alleged do not constitute the offence.
The petitioner was never named in the first information report.
There is no eye witness in this case and there is no identification of the petitioner in any manner whatsoever to sustain the allegation even prima facie for the offence alleged.
On a careful consideration of the matter, we are afraid, the approach of and the conclusion reached by the High court is unsupportable In regard to the first ground, presumably, certain provisions of the "Act" in regard to cognizability and investigation of offences against the act, relevant to the matter, had not placed before the High Court.
The policy and object of the Wild life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalances introduced by the depradations inflicted on nature by man.
The State to which the ecological imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken the damage might become irreversible.
The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate has been a great and urgent necessity for the survival of humanity and these laws reflect a last ditch battle for the restoration, in part at least, a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks m mankind that go with the deterioration of environment.
The tragedy of the predicament of the civilised man is that "Every source from which man has Increased his power on earth has been used to diminish the prospects of his successors.
All his progress is being made at the expense of PG NO 461 damage to the environment which he can not repair and cannot foresee".
In his foreward to 'International Wild Life Law ', H.R.H Prince Philip, The Duke of Edinburgh said: "Many people seem to think that the conservation of nature is simply a matter of being kind to animals and enjoying walks in the countryside.
Sadly, perhaps, it is a great deal more complicated than that . " ".
As usual with all legal systems, the crucial requirement is for the terms of the conventions to be widely accepted and rapidly implemented.
Regretfully progress in this direction is proving disastrously slow [See International Wild life Law by Simon Lyster,Cambridge Grotuis Publications Limited, 1985 Ed.] There have been a series of international1al convention for the preservation and protection of the environment 'The United Nations General Assembly adopted on 29 10.1982 "The World charter for nature".
The charter declares the "Aware" ness that.
(a) Mankind is a part of nature and life depends On the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients.
(b) Civilization is rooted in nature.
which has shaped human culture and influenced all artistic and scientific achievement ment.
and living in harmony with nature gives man the best opportunities for the development of his creativity, and for rest and recreation.
In the third century B.C. King Asoka issued a decree that has a particularly contemporary ring ' in the matter of preservation1 of wild life and environment.
Towards the end of his reign.
he wrote: "Twenty six years after my coronation I declared that the following animals were not to be killed: parrots mynas, the aruna, ruddy geese, Wild geese the nandimukha cranes.
bats, queen ants.
terrapins, boneless fish.
PG NO 462 rhinoceroses. and all quadrupeds which are not useful or edible . .Forests must not be burned.
" Environmentalists ' conception of the ecological balance in nature is based on the fundamental concept that nature is "a series of complex biotic communities of which a man is an inter dependant part" and that it should not be given to a part to tresspass and diminish the whole.
The largest single factor in the depletion of the wealth of animal life in nature has been the civilized man" operating directly through.
excessive commercial hunting or.
more disastrously.
indirectly through invading or destroying natural habitats.
We might now turn to certain provisions of the Act.
9(1) of the Act says that no person shall "hunt" any wild animal Specified in Schedule T. Elephant is included in schedule I.
The expression wild animal" is defined in see.
2 (36) to mean any 'animal found wild in nature and includes any animal specified in schedule 1" etc. 'The expression "hunting" is defined in see.
2 (16) in a comprehensive manner: "2(16) 'hunting ' with its grammatical variations and cognate expressions, includes.
(a) capturing.
killing.
poisoning.
snaring and trapping of any wild animal and every.
attempt to do so (b) driving any wild animal for any of the purposes specified in sub clause(a).
(c) injuring or destroying or taking any part of the body of any such animal or.
in the case of wild brids or reptiles, damaging the eggs of such birds or reptiles or, disturbing the eggs or nests of such birds or reptiles: Sec.
51 of the Act provides for penalties.
Violation of sec.
9(1) is an offence under sec.
51(1).
55 deals with cognizance of offences: "55.
No court shall take cognizance of any offence against this Act except on the complaint of the Chief wild Life Warden or such other officer as the State Government may authorise in this behalf.
" What emerges from a perusal of these provisions is that cognizance of an offence against the "Act" can be taken by a PG NO 463 Court only on the complaint of the officer metioned in Sec.
The person who lodged complaint dated 23.6.86 claimed to be such an officer.
In these circumstances even if the jurisdictional police purported to register a case for an alleged offence against the Act, Sec. 210 (1) would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section.
Even where a Magistrate takes cognisance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate indentity.
The section seeks to obviate the anomalies that might arise from taking cognisance of the same offence more than once.
But, where as here cognisance can be taken only in one way and that on the complaint of a particular statutory functionary there is no scope or occasion for taking cognisance more than once and, accordingly, section 210 has no role to play.
The view taken by the High Court on the footing1g of section 210 is unsupportable.
The second ground takes into consideration the merits of the matter.
It cannot be said that the complaint does not spell out the ingrediants of the offence alleged.
A complaint only means any allegation made orally or in writing to a Magistrate.
with a view to his taking action, that some person, whether known or unknown.
has 'committed an offence.
It is trite jurisdiction under Section 482 Cr.
P.C. which saves the inherent power of the High court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection.
In exercising that jurisdiction the High Court would not embark upon and enquiry whether the allegations in the complaint are likely to be established by evidence or not.
That is the function of the Trial Magistrate when the evidence comes before his.
Through it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is could upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge sheet do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not.
PG NO 464 In Municipal Corporation of Delhi vs R.K. Rohtagi, ; 884 at 890 it is reiterated: "It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted.
In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code.
" In Municipal Corporation of Delhi vs P.D. Jhunjunwala, ; at 897 it was further made clear: " .
As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial.
We have already held that for purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further.
" In the complaint No. 653 dated 23.6.1986 of the Range Officer, Forests, it is.
inter alia, alleged: "I have to report that on 8.6.86 at about learnt from Sri Aghnu Mahto, Forester, Jomatai Beat, that somebody has killed an elephant in compartment No. 13 of Kundrugutu Reserve Forest.
The matter was serious and so I immediately reported it to Officer incharge, Sonua Police Station to register a case and for investigation.
It was further reported that Jiwan Mesi Longa, Coupe Oversee, Jomtal Beat has (been) seen the accused persons entering into the forest during the night time and had returned on the same Jeep No. BRX 9588 at about 8 or 9 A.M.
He could indentify only Sri Prabhu Sahay Bhengra in the jeep, was is driver of Block Development Officer, Bandgoan.
During my enquiry I visited the spot and dug out the body of the elephant and found that both of the tusk had PG NO 465 been extracted out, from the mouth of the elephant.
It was also learnt from the admission of the accused Prabhu Sahay Bhengra, who was interrogated by me during the course of enquiry, that the elephant was killed in the early morning of 1.6.86 before dawn i.e. on 1.6.86 by him and (1) Sri Abranham Bhengra (2) Sri Murad ali Khan (3) Sri Vikram Sing, (4) Sri Farukh Salauddin (5) Sri Babu Khan (name above) by two Riffles and had used 6 rounds of bullet.
On the spot two empty cartridges tusk with him and other tusk was taken away by Murad Ali Khan and his associates.
Later one of the tusks w as produced by Sri Prabhu Sahay Bhengra to the officer in charge, Sonua Police Station in my presence.
On the basis of the information resolved from Bhengra I immediately proceeded to Jamshedpur with D.S.P., Chakardharpur and the D.F.O. Pornahat Division, Sri Murad Ali Khan and his associates.
Sri Baby Khan was interogated who admitted that they, brought one of the.
tusks and has sent it to Lucknow for disposal.
They were brought to Chaibasa with jeep No BRX 9588 and they were handed over in the custody of the S.P. Singhbhum.
Chaibasa, for needful.
Mr. Murad Ali Khan promised na produce the tusk in a few days time but did not disclosed the place where he had sent the tusk at Lucknow . ' The complaint further proceeds to say that elephant is included in the Schedule 1 of the Wild Life (Protection) Act.
1972 and that the complainant was authorised by the Bihar Government 's notification No SO 1022/418/73 to file complaints under Act.
It is difficult to agree with the High Court that the allegations in the complaint taken on their face value would not amount in law to any offence against the "Act".
The second ground on which the High Court came to quash the proceedings of the Magistrate, on the facts of this case, is impermissible as an exercise under Sec. 482, Cr.
P.C. 7.
It was however, suggested for the respondents that the offence envisaged by sec.
9(1) read with sec.
2(16) and PG NO 466 sec.
50(1) of the Act, in its ingredients and content, is the same or substantially the same as Sec.
429, IPC and that after due investigation and police had filed a final report that no offence was made out and that initiation of any fresh proceedings against respondents would be impermissible.
429, IPC, which occurs in the chapter "Of mischief" provides: "429.
Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow, or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.
" The offence of hunting any wild animal as defined in sec.
9(1) read with Sec.
2(16) of the Act is much wider Section 56 of the 'Act ' provides: "56.
Nothing in this Act shall be deemed to prevent any person from being prosecuted under any other law for the time being in force, for any act or omission which constitutes an offence against this Act or from being liable under such other law to any higher punishment or penalty than that provided by this Act: Provided that no person shall be punished twice for the same offence. ' ' We are unable to accept the contention of Shri R.F. Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant, al1d that such an offence at all events, falls within the overlapping areas between of sec 42 '), IPC on the one hand and 9(1) read with 50(l) of the Act on the other and therefore constitutes the same offence Apart from the fact that This argument does not serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound.
The expression "any act or omission which constitutes any offence under this Act ' in section 56 of the Act, merely imports the idea tat the same act or omission might constitute an offence under another law and could be tried under such other law or laws also.
PG NO 467 The proviso to Section 56 has also a familiar ring and is a facet of the fundamental and salutory principles that permeate penalogy and reflected in analogous provisions of sec.
26 of General Clauses Act,1897 Section 71 IPC; Sec. 300 of the Cr.P.C., 1973 and constitutionally guaranteed under article 20(2) of the Constitution.
26 of the provides: 26.
Provision as to offences punishable under two or more enactments: Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. ' ' Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re prosecution after acquittal, a protection against re prosecution after conviction and a protection against double or multiple punishment for the same offence.
These protections have since received constitutional guarantee under article 20(2).
But difficulties are in the application of the principle in the context of what is meant by ' same offence".
The principle in American law is stated thus: ".
The proliferation of technically different offences encompassed in a single instance of crime behavior has increased the importance of defining the scope of the offense that controls for purposes of the double jeopardy guarantee.
Distinct statutory provisions will be treated as involving separate offenses for double jeopardy purposes only if each provision requires proof of an additional fact which the other does not" Blockburger vs United States, ; , 304 1932 Where the same evidence suffices to prove both crimes hey are the same for double Jeopardy purposes and the clause forbids successive trials and cumulative punishment for the two crimes.
The offenses must be Joined in one indictment and tried together unless PG NO 468 the defendant requests that they be tried separately.
Jeffers vs United States, ; 1977." [See "Double Jeoparady" in the Encyclopedia of Crime and Justice vol. ', p. 630 1983 Edn.
by Sanford H. Kadish: The Free Press, Collier Mac Millan Publishers, London] The expressions "the same offence", 'substantially the same offence ' ' in effect the same offence" or "practically the same", have not done much to lessen the difficulty in applying the tests to identify the legal common denomninators of "same offence".
Friedland in "Double Jeoparady ' ' [Oxford 1969] says at page 108: "The trouble with this approach is that it is vague and hazy and conceals the thought processes of the Court.
Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions.
A more serious consequences is the fact that a decision in one case that two offences are 'substantially the same ' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible. . 8.
In order that the prohibition is attracted the same act must constitute an offence under more than one Act.
If there two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred.
In Leo Roy Frey vs The Superintendent, District Jail, Amritsar, [ ; the question arose whether a crime and the offence of conspiracy to commit it are different offences.
This Court said: "The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients.
They are, therefore, quite separate offences." In State of of Madhya Pradesh vs Veereshwar Rao Angnihotry ; the accused was tried by the special judge for offences under sec.
409 IPC, and sec.
5(2) PG NO 469 of the Prevention of Corruption Act, 1947.
While convicting him under sec. 409, IPC, the Special Judge held that the accused could not be tried under sec.
5(2) of the Prevention of Corruption Act, 1947, as there was a breach of the requirement of law that the investigation be by a police officer not below a particular rank.
In appeal, the High Court set aside even the conviction under Sec.
409 IPC, PG NO 469 applying the doctrine of autrefois acquit holding that the Special Judge 's finding on the charge under Sec.
5(2) amounted to an acquittal and that punishment as a charge under Sec. 409, would be impermissible.
This court following the pronouncement in Omprakash Gupta vs Slate of UP, ; held that the two offences were distinct and separate offences.
In The State of Bombay vs S.L. Apte & Anr., 11961] 3 SCR 107, the question that fell for consideration was that in view of earlier conviction and sentence under sec. 409, IPC a subsequent prosecution for an offence under sec.
105 of Insurance Act.
1935, was barred by sec.
26 of the and article 20(2) of the Constitution.
This Court observed: "To operate as a bar the second prosecution and the consequential punishment thereunder, must be for 'the same offence '.
The crucial requirement therefore for attracting the Article is that the offences are the same7 i.e. they should be identical.
If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked.
It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out . " " .
Though section 26 in its opening words refer to 'the act or omission constituting an offence under two or more enactments ', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged.
This is made clear by the concluding portion of the section which refers to 'shall not be liable to be punished twice for the same offence '.
If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked . .
PG NO 470 The same set of facts, in conceivable cases, can constitute offences under two different laws.
An act or an omission can amount to and constitute an offence under the IPC and at the same time constitute an offence under any other law.
I he observations of this court made in the context of sec.
2(3) of Contempt of Courts Act might usefully be recalled.
In Bathina Ramakrishna Reddy vs State of Madras, this Court examined the contention that the publication of an article attributing corruption to a judicial officer was not cognizable in contempt jurisdiction by virtue of sec.
2(3) of the Contempts of Courts Act, 1953, which provided that: "No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.
" The contention before this Court was that the allegations made in the article constituted an offence under section 499 of IPC and, that therefore, cognizance of such an offence under the Contempts of Court Act was barred.
Repelling the contention, Mukharji, J., said: "In our opinion, the sub section referred to above excludes the jurisdiction of High Court only in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code.
This would be clear from the language of the sub section which uses the words "where such contempt is an offence" and does not say 'There the act alleged to constitute such contempt is an offence '. ." It is.
however, unnecessary to explore the possibilities of this contention as indeed there has been admittedly no prior conviction and sentence for an offence under section 429, IPC e en assuming that the two offence are substantially "the same offence '.
Suffice it to notice, prima facie that the ingredients of an offence under sec.
9(1) read with sec.
50(1) of the Act require for its establishment certain ingredients which are not part of the offence under sec.
429 and vice versa.
In the result, these appeals are allowed, the orders of the High Court in Crl.
223 of 87 dated 13.2.1987 and the two orders in Crl.
No. 258 of 1987(R) and Crl.
PG NO 471 Misc.
No. 259/1987(R) 18.2.1987 are set aside and the order dated 1.7.1986 of the learned Magistrate taking cognizance of the offence and ordering issue of summons to the respondents is restored.
The criminal case initiated on the complaint will now be proceeded with in accordance with law.
M.L.A. Appeals allowed.

summary:
The Range Officer, Forest of the appellant State lodged complaints with the .judicial Magistrate Ist Class against the respondents accused alleging that they had committed offences under section 51 of the Wild Life Protection Act, 1972.
The learned Magistrate took cognizance of the offence and ordered issue of process to the respondents accused.
However.
before lodging the aforesaid complaints, a case had also been registered against the respondents accused with the concerned police station under sections 447, 429 and 379, IPC read with sections 54 and 39 of the Wild life Protection Act.
1972 and the matter was under investigation by the police.
The respondents accused moved the High Court under section 482 of the Code of Criminal Procedure for quashing the aforesaid order of the Magistrate.
The High Court quashed the proceedings against the respondents accused on the ground: (a) that the Magistrate acted with out jurisdiction in taking cognizance of the offence and ordering issue of process against the accused, since it was a case to which section 210(1) of the Code of Criminal Procedure 1973 attracted and that as an investigation by the police was in progress in relation to the same offence the Magistrate would be required to stay the proceedings on the complaint and call for a report in the matter from the Police; and (b) that on the face of the complaint, it PG NO 455 PG NO 456 could not be said that the complaint spelts out the ingredients of the offence alleged.
Hence these appeals by special leave by the appellant State.
Allowing the appeals to this Court HELD: (1) The orders of the High Court in Crl.
223 of 1987 dated 13.2.1987 and the two orders in Crl.
No. 25X of 1987(R) and Crl.
No. 259 1987(R) dated 18.2.1987 are set aside and the order dated 1.7.1986 of the learned Magistrate taking cognizance of the offence and ordering issue of summons to the respondents is restored.
The criminal case initiated on the complaint will now be proceeded with , in accordance with law.
[470H; 471A B] 2(1) A perusal of sections 2(16), 2(36), 9(1), 51 and 55 of the Wild Life Protection Act, 1972 shows that cognizance of an offence against the "Act" can be taken by a Court only on the complaint of the officer mentioned in section 55.
Even if the jurisdictional police purported to register a case for an alleged offence against the Act, sec.
210(1) Cr.
P.C. would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the Officer mentioned in that section.
[462H; 463A B] 2(ii) Where a Magistrate takes cognizance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate identity.
The section seeks to obviate the anomalies that might arise from taking cognizance of the same offence more than once.
But, where, as in the instant case.
cognizance can be taken only in one way and that on the complaint of a particular statutory functionary.
there is no scope or occasion for taking cognizance more than once and accordingly, section 210 Cr.
P.C. has no role to play.
[463R C] 3(i) Jurisdiction under section 482 Cr.
which saves the inherent power of the High Court, to make such orders as may he necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection.
In exercising that jurisdiction, the High Court would not embark upon an enquiry whether the allegations in the complaint are like to be established by evidence or not.
that is the function of the Trial Magistrate when the evidence comes before him.
[463E F] 3(ii) When the High Court is called upon to exercise jurisdiction under Section 482 Cr.
P.C. to quash a proceeding PG NO 457 at the stage of the Magistrate taking cognizance of an offence, the High Court is guided by the allegations, whether those allegations, out in the complaint or the charge sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the Process of the court or not.
[463G H] In the instant case, it is difficult to agree with the High Court that the allegation in the complaint, taken on their face value, would not amount in law to any offence against the Wild Life Protection Act, 1972.
[465G] Municipal Corporation of Delhi vs R.K. Rohtagi, ; at 890 and Municipal Corporation of Delhi vs P.D. Jhunjunwala; , at 897 followed.
4(i) The ingredients of an offence under sec.
g(l) read with sec.
50(1) of the Act require for its establishment certain ingredients which are not part of the offence under sec.
429 I.P.C. and vice versa.
[470G] 4(ii) The expression "any act or omission which constitutes any offence under this Act" in section 56 of the Act, merely imports the idea that the same act or omission might constitute an offence under another law and could be tried under such other law or laws also.
[466H; 467A] 4(iii) The proviso to section 56 has also a familiar ring and is a facet of the fundamental and salutory principles that permeate penalogy and reflected in analogous provisions of sec.
26 of ; Section 71 IPC; Section 100 of the Cr.
P.C. 1973, and constitutionally guaranteed under article 20(2) of the Constitution.
[467A B] 5.
The expression "the same offence", "substantially the same offences", "in effect the same offence", or "practically the same", have not done much to lessen the difficulty in applying the tests to identify the legal common denominators of "same offence".
The same set of facts, in conceivable cases, can constitute offences under two different laws.
An act or an omission can amount to and constitute an offence under the IPC and at the same time constitute an offence under any other law.
[468B C; 470A B] Leo Roy Frey vs The Superintendent, District Jail, Amritsar, ; ; State of Madhya Pradesh vs Veereshwar Rao Agnihotry; , ; Omprakash Gupta vs PG NO 458 Slate of U. P.; , ; The State of Bombay vs section L. Apte & Anr., ; ; "Double Jeoparady" the Encyclopedia of Crime and Justice, vol. 2, (p. 630) 1983 Edn. by Sanford H. Kudish vs The Free Press, Collier Mac Millan Publishers.
London and Friedland in "Double Jeoparady" (Oxford 1969) referred to.
6(i) The policy and object of the Wild life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance introduced by the depradations inflicted on nature by man.
[460E F] 6(ii) The State to which the ecological imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken, the damage might become irreversible.
[460F G] 6(iii) The largest single factor in the depletion of the wealth of animal life in nature has been the 'civilized man" operating directly through excessive commercial hunting or, more disastrously, indirectly through invading or destroying natural habitats.
[462B C]


judgement:
PPeal NO 4454 of 1985.
From the Judgment and Order dated 15.2.1984 of the Punjab and Haryana High Court in L.P.A. No. 224 of 1984.
V.M. Tarkunde, Miss Meenakshi Arora, R.N. Karanjawala and Mrs. Manik Karan jawala for the Appellant.
K.K Jain, A.D. Sanger, Ajay K. Jain, Pramod Dayal, B.R. Appeal, P.G. Gokhale, Janendra Lal and Miss Yashmin Tarapore for the Respondents.
PG NO 705 The Judgment of the Court was delivered by RAY, J.
The only question that arises for decision in this appeal is whether an employee promoted to a post reserved for Scheduled Castes and Scheduled Tribes is entitled to have his seniority determined from the date of his appointment to the post or his seniority inter se will be reckoned as it was in the class or grade from which he was promoted to a post in a higher rank.
The appellant, who is a Scheduled Caste joined service as a Clerk in the Electricity Branch of the Punjab Public Works Department on February 20, 1954.
The terms and conditions of his service were governed by the Punjab P.W.D. (Electricity Branch) Provincial Service Class 111 (Subordinate posts) Rules, 1952.
In February, in and Punjab State Electricity Board was constituted under Section 3 of the and the employees of the Electricity Branch were transferred to the Board.
The conditions of service of the employees were governed by their existing terms and conditions as well as existing service Rules.
In 1967 the Haryana State Electricity Board was constituted and the appellant was allocated to the Haryana State Electricity Board with existing terms and conditions of service.
The Board being a statutory corporation was requested by letter dated December 13, 1972 by the Government to provide for reservation of 22% of vacancies initial recruitment and promotion posts for being filled up by members of the Scheduled Castes and Scheduled Tribes as well as by members of backward classes.
The Haryana State Electricity Board adopted the above circular by its Resolution dated March 1976 providing for reservation of posts both for initial requirement as well as for promotion.
The appellant was promoted on September 1973 as Deputy Superintendent the respondent No.2, Rajinder Singh Marya was also promoted by the same order as Deputy Superintendent.
In the said order of appointment the following note was appended: The earlier promotion of the above officials as Deputy Superintendent will not confer upon them any right to claim seniority over those who may otherwise be senior to them due to any reason whatsoever.
On April 27, 1972 a circular was issued by the Chief Secretary Government of Haryana to all its departments regarding reservation for members of Scheduled Castes and Scheduled Tribes in service and fixation of seniority Paragraphs 2 and 4 of the said circular which are relevant are quoted hereinbelow: PG NO 706 "2.
It has to be pointed out that this was irregular and inter se seniority of all the candidates taken together (i.e. whether appointed against reserved vacancies or against open ones) must be fixed according to the combined merit list and not otherwise.
Vacancies assigned to Scheduled Castes/Backward Classes under block system are so assigned for the purposes of reservation only and are not intended for fixing inter se seniority of the candidates contrary to their order in the combined merit list prepared by the Public Service Commission/Subordinate Service Selection Board.
The above instructions, regarding determination of inter se seniority will however? apply only in those cases where the departmental service rules do not provide for seniority being determined from the date of joining or from the date of confirmation or by a method otherwise than the merit determined by the Public Service Commission/S.S.S. Board.
In other words, in all cases where the service rules have not yet been framed, or where the service rules provide for seniority being determined according to the merit laid down by the Commission/S.S.S. Board, the seniority of the officials shall be determined in the manner stated above.
In other cases, where the service rules specifically provide for seniority being determined from the date of joining or from the date of confirmation by the recruiting authority the seniority shall be determined by such different methods.
" As the seniority of the appellant was not determined from the date of his appointment to the post of Deputy Superintendent he made a representation to the Board requesting for determination of his seniority from the date of his appointment to the promoted post and also for considering his case for promotion to the post of Superintendent.
This representation of the appellant was rejected on the ground that: "The officials belonging to the scheduled castes/tribes and backward classes who are promoted against the posts reserved for them under the block system and for reasons other than inefficiency of their seniors will not be assigned seniority from the date of their joining in the PG NO 707 promoted rank.
They shall be assigned seniority in the promoted rank with reference to their inter se seniority of their previous posts.
Thereafter, on January 20, 1977 the appellant was finally informed that his seniority will not be computed from the date of his promotion to the post of Deputy Superintendent.
On January 12, 1977 the respondent Nos. 2 and 3 i.e. Rajinder Singh Marya and Jagdish Lal Lamba who were junior to the appellant as Deputy Superintendents, were promoted as Superintendents superseding the claim of the appellant.
Aggrieved by this, the appellant instituted an application under Article 226 of the Constitution of India in the High Court of Punjab and Haryana praying for a writ of mandamus directing the respondent No. 1 to consider his case for promotion to the post of Superintendent on the basis of his being seniormost Deputy Superintendent according to the continuous length of service on that post and to promote him to the post of Superintendent with effect from the date his juniors have been promoted and for other consequential reliefs.
An affidavit was filed on behalf of Respondent No. 1 verified by Shri R. Prakash, Secretary, Haryana State Electricity Board wherein in para 3 it has been submitted that: " . .the seniority of the petitioner has been determined in the post of Deputy Superintendent in accordance with the exception below Rule 9 of the 1952 Rules.
" In Para 5 it has been admitted that the appellant was promoted as Deputy Superintendent on 25th September, 1973 and since then he is continuing on the said post.
It has further been submitted that the promotion of the appellant was in an officiating capacity and he still continues to officiate as Deputy Superintendent.
The appellant was promoted to the post of Deputy Superintendent against a post which was reserved for the Scheduled Castes, though he was far junior in the cadre of Assistants.
In para 7 it has been stated that: ".
The petitioner cannot claim seniority above those two officials in the rank of Deputy Superintendent.
In view of the exception to Rule 9, if a member of service is promoted temporarily to a post earlier than his senior for PG NO 708 reasons other than the inefficiency of the senior person, they will take rank inter se according to their relative seniority in the class from which they were promoted and junior persons thus promoted shall not be confirmed from a date earlier than the date of confirmation of his senior except on the score of inefficiency of the latter.
In the present case, the petitioner was promoted temporarily to the post of Deputy Superintendent earlier to the other two officials on the ground that the petitioner belonged to the scheduled castes.
The other two officials were not superseded on the ground of inefficiency . " On February 4, 1984 the learned single Judge of the High Court dismissed the writ petition holding inter alia that the instructions governing the matter of promotion in favour of the Scheduled Caste candidates had nothing to do with the determination of the seniority of these candidates.
Moreover, in the letter promotion the petitioner it was specifically mentioned that the earlier promotion would not confer on him any right or claim to seniority over and above those who were otherwise senior to him in the cadre from which he had been promoted.
It was further held that m the light of exception to Rule 9, the petitioner being promoted temporarily, his seniority cannot be counted from the date of his appointment in the higher post and the respondent Nos. 2 and 3 would be treated senior to him in the rank of Deputy Superintendent as they were senior to the petitioner in the grade of Assistants.
It was therefore, found that respondent Nos. 2 and 3 were entitled to be promoted as Superintendents earlier to the petitioner .
Against this judgment and order Letters Patent Appeal being LPA No. 224 of 1984 was filed.
The said appeal was however.
dismissed summarily as being without any merit.
The appellant, thereafter, filed the instant appeal assailing the said judgment.
Before proceeding to consider the question whether the appellant 's seniority was properly determined under Rule 9 of the Punjab P.W.D. (Electricity Branch) Provincial Service Class 111 (Sub ordinate posts) Rules 1952 (in short to be referred herein as the said Rules) it is necessary to set out herein the relevant provision of Rule 9: "9. Seniority of the members of the Service The seniority of the members of the Service for the time being serving in each class of appointment shown in Appendix `A ' shall be determined as follows: PG NO 709 (i) Prior to confirmation (i.e. in the case of persons serving on probation or in an officiating capacity) in the order of the dates of their appointment or if such date be the same in respect of two or more persons, in the order of their ages, the older being placed above the younger.
(ii) After confirmation by their respective dates of confirmation, provided that where two or more members are confirmed w.e.f.
the same date they will retain the order to confirmation.
Exception: If a member of the service is promoted temporarily to a post earlier than his senior, for reasons other than the inefficiency of the senior person they will take rank inter se according to their relative seniority in the class from which they were promoted and the junior person thus promoted shall not be confirmed from a date earlier than the date of confirmation of his senior except on the score of inefficiency of the latter.
Provided further that if a member is appointed to a higher class later than a person who was junior to him in the lower class for reasons which the appointing authority may certify in writing to be connected with the Public interest the person so appointed shall be given the same seniority in the higher class vis a vis such junior as he held in the lower class.
Thus, on a plain reading of the Rule it appears that the seniority of the members of the Service serving in an officiating capacity shall be prior to confirmation `in the order of the dates of their appointment ' and after confirmation by their respective dates of confirmation.
There is an exception to this Rule to the effect that if a member of the Service is promoted temporarily to a post earlier than his senior for reasons other than inefficiency of the senior person they will take rank inter se according to their relative seniority in the class from which they were promoted and the junior person so promoted shall not be confirmed from a date earlier than the date of confirmation of the senior.
The provision contained in the exception to Rule 9 is applicable only in the case of temporary promotion of a member of the service to a post earlier than his senior for the purposes other than inefficiency of the senior persons.
PG NO 710 In the instant case admittedly the appellant has been promoted to the post of Deputy Superintendent which was reserved under the block system for members of the Scheduled Castes.
The appointment to the said reserved post on promotion is a regular one and this has been admitted in paragraph 5 of the counter affidavit referred to hereinbefore.
The appointment letter does not articulate that the promotion of the appellant to the post of Deputy Superintendent was purely temporary.
The promotion has been made on a regular basis to the post of Deputy Superintendent reserved on the basis of quota of vacancies for being filled up by promotion of members belonging to the Scheduled Castes.
The appointment of the appellant to the said promotional post of Deputy Superintendent, in our considered opinion cannot be designated to be purely a temporary promotion.
This being the position the exception to Rule 9(ii) of the said rules cannot be applied to determine the seniority of the appellant in the post of Deputy Superintendent and his seniority cannot be based in accordance with the inter se seniority of the respondent Nos. 2 and 3 in the cadre of Assistants from which the appellant and respondent Nos. 2 and 3 were promoted to the post of Deputy Superintendent.
Rule 9(i) of the said Rules is applicable in this case and the seniority of the appellant is to be reckoned from the date of his appointment In the post of Deputy Superintendent.
The appellant is thus senior to respondent Nos. 2 and 3 in the rank of Deputy Superintendent as he was promoted to the said post earlier than the respondents Nos. 2 and 3 and as such his claim for promotion to the post of Superintendent on the dates when the respondent Nos. 2 and 3 were promoted to such post is legal and valid.
It may be mentioned that during the pendency of the writ petition, the appellant had been promoted to the post of Superintendent on 29.5.1981 and as such he pleaded in para 6 of the special leave petition that his seniority in the cadre of Deputy Superintendent should not be affected on the basis of the judgments rendered by the High Court.
On a consideration of the facts and circumstances stated hereinbefore, the finding of the High Court that the appellant was promoted temporarily and so exception to Rule 9(ii) applies for determination of seniority of the appellant as Deputy Superintendent, in our considered opinion, cannot be sustained as we have already held that the promotion of the appellant in a reserved vacancy, is a regular one and it does not smack of purely temporary character.
The seniority of the appellant is to be reckoned from the date of his appointment to the said post according to the provisions of Rule 9(i) of the said Rules.
The judgments of the High Court in Letters Patent Appeal No. 224 of 1984 as well as in the writ petition No. 773 of 1977 are PG NO 711 set aside and the appeal is allowed.
The respondent No. 1 is directed to treat the appellant promoted to the post of Superintendent from the date the respondent Nos. 2 and 3 were promoted to the said post and to pay him the emoluments attached to the said post of Superintendent minus the emoluments paid as Deputy Superintendent from that date till the date of his actual appointment as Superintendent, i.e. May 29, 1981.
The appeal is thus allowed with costs.
N.V.K. Appeal allowed.

summary:
The appellant, who belongs to the Scheduled Castes community, joined service as a clerk on February 20, 1954 in the Electricity Branch of the Punjab Public Works Department.
In February 1959, the Punjab State Electricity Board was constituted and the employees of the Electricity Branch were transferred to the said Board.
The conditions of service of the employees were governed by the existing terms and conditions.
as well as the existing service rules.
In 1967, the Haryana State Electricity Board was constituted and the appellant was allocated to the said Board.
The Electricity Board by its resolution dated March 16.
1976 adopted the circular letter dated December 18, 1972 providing for reservation of 22% of Vacancies both for initial recruitment as well as for promotion to the Scheduled Castes and Scheduled Tribes as well as to members of the backward classes.
The appellant was promoted on September 25, 1973 as Deputy Superintendent.
The respondent No. 2 was also promoted by the same order as Deputy Superintendent.
However, in the said order, it was made clear by a note appended thereto that the earlier promotion of the officials will not confer on them any right to claim seniority over others.
On April 27, 1972, a circular was issued by the Chief Secretary, Government of Haryana to all the Departments regarding the criteria for reservation for members of Scheduled Castes and Scheduled Tribes in the service and fixation of their seniority.
As the seniority of the appellant was not determined from the date of his appointment to the post of Deputy Superintendent, he made a representation to the Board requesting for its determination.
This representation was, however, rejected on the ground that seniority in the promoted rank would be accorded only with reference to the inter se seniority in the previous post, and on January 21, 1977, the appellant was finally informed that his seniority will not be computed PG NO 702 PG NO 703 from the date of his promotion to the post of Deputy Superintendent.
On January 12, 1977 respondents 2 and 3 who were junior to the appellant as Deputy Superintendent were promoted as Superintendent superseding the claim of the appellant.
Aggrieved by the aforesaid action of the first respondent in promoting respondents 2 and 3, the appellant filed a writ petition in the High Court for a mandamus directing respondent 1 to consider his case for promotion for the post of Superintendent on the basis of his being the senior most Deputy Superintendent.
The writ petition was contested on behalf of the respondent l who stated in its counter affidavit that the petitioner could not claim seniority above the respondents 2 and 3 in the rank of Deputy Superintendent on the ground that his seniority had already been fixed in accordance with the exception below rule 9 of the 1952 Service Rules.
A Single Judge of the High Court dismissed the writ petition on the ground that the instructions governing the matter of promotion in favour of Scheduled Castes candidate had nothing to do with the determination of the seniority of these candidates and that the letter promoting the petitioner had specifically mentioned that the earlier promotion would not confer on him any right of claim to seniority over and above those who are otherwise senior to him in the cadre from which he was promoted and that in the light of the exception to rule 9 of the 1952 Service Rules, the petitioner being promoted temporarily, his seniority cannot be counted from the date of his appointment in the higher post and that respondents 2 and 3, who could be treated senior to him in the rank of Deputy Superintendent as the were senior to the petitioner in the grade of assistants.
The Letters Patent Appeal filed by the appellant having been dismissed summarily, the appellant appealed to this Court by special leave.
Allowing the Appeal, HELD. 1.
On a plain reading of Rule 9 it appears that the seniority of the members of the service serving in an officiating capacity shall be determined prior to confirmation `in the order of the dates of their appointment ' and after confirmation by their respective dates of confirmation.
The exception to this Rule is that if a member of the is promoted temporarily to a post earlier than his senior for reasons other than inefficiency of the senior person they will take rank inter se according to PG NO 704 their relative seniority in the class from which they were promoted and the Junior person so promoted shall not be confirmed from a date earlier than the date of confirmation of the senior.
[709F G] In the Instant case, the appellant has been promoted to the post of Deputy Superintendent which was reserved under the block system for members of the Scheduled Castes.
The appointment to the said reserved post on promotion is a regular one.
The appointment letter does not that the promotion of the appellant to the post of Deputy Superintendent was purely temporary.
This being the position the exception to Rule 9(11) cannot be applied to determine the seniority of the appellant in the post of Deputy Superintendent, and his seniority cannot be based in accordance with the inter se seniority of respondent Nos. 2 and 3 wee promoted to he post of Deputy Superintendent.
[710A D] 2.
The appellant is thus senior to respondent Nos. 2 and 3 in the rank of Deputy Superintendent the was promoted to the said post earlier them the respondents Nos. 2 and 3 and as such his claim for promotion to the post of Superintendent on the dates when the respondent Nos. 2 and 3 were promoted to such post is legal and valid.
[710E] 3/ Respondent No. 1 is directed to treat the appellant promoted to the post of Superintendent from the date respondent Nos. 2 and 3 were promoted to the said post and to pay him the emoluments attached to the said post of Superintendent minus the emoluments paid us Deputy Superintendent from that date till May 29, 1981 date of actual appointment is Superintendent.
[711A B]