judgement:
ivil Appeal Nos.
4676 & 4793 of 1989.
From the Judgment and Order dated 26.10.89 of the Bombay High Court in W.P. No. 3976 of 1989.
P.C. Jain, S.S. Ray, B.A. Mansodkar, Manoj Swarup, P.H. Parekh, J.H. Parekh, Sunil Dogra.
A.M. Khanwilkar, V.D. Khanna and A.S. Basme, for the appearing parties.
The following Judgments of the Court were delivered: RAY, J. This is an appeal under Article 133 of the Constitution of India against the Judgment and Order dated October 26, 1989 passed by the High Court of Bombay in Writ Petition No. 3976 of 1989 whereby the High Court directed the Registrar of Cooperative Societies to give fresh notice to the elected members as well as to the 3 persons namely 2 nominees of the Financial Institutions and the expert co opted member.
494 The matrix of the case is that the appellants who are the duly elected Directors of the Sanjay Sahakari Sakhar Karkhana Ltd. hereinafter to be termed as "Karkhana" signed a requisition and sent the same to the respondent No. 3, the Joint Director of Sugar and Joint Registrar Co operative Societies, Maharashtra State, Pune requesting him to summon a special meeting of the Committee of the Karkhana to con sider the proposed motion of no confidence against the Chairman of the Committee, Dattatraya Waman Patil, respond ent No. 1.
This requisition was signed by more than 1/3rd of the total members of the committee in accordance with the provision of Clause (2) of Section 73 ID of the Maharashtra Cooperative Societies Act 1960 (Maharashtra Act No. XXIV of 1961).
The above requisition was received in the office of the Joint Director of Sugar and Joint Registrar, Cooperative Societies, Maharashtra State, Pune, the respondent No. 3.
On 6.9.1989 the respondent No. 3 issued a notice dated September 13, 1989 convening a special meeting of the Manag ing Committee of Karkhana i.e. Board of Directors of the Karkhana on 25.9.
This notice was issued as contem plated by Clause (3) of Section 73 ID of the Act.
This notice was sent to all the members of the Committee of the Karkhana who at that time were entitled to sit and vote at any meeting of the Committee i.e. the elected members of the said Committee of Management.
Over and above a copy of the notice was sent to the office of Registrar, Deputy Director of Sugar, Aurangabab (Presiding Officer).
A copy of this notice was also sent to the office of the Managing Director of the Karkhana as by way of this notice, the Managing Director had been directed to produce the minute book of the Committee meeting and hand over possession thereof to the Presiding Officer at the commencement of the special meet ing.
On 18.9.89 the respondent No. 1 filed writ petition No. 3976 of 1989 before the High Court at Bombay challenging the requisition notice dated 5.9.89 signed by the 10 appellants who are elected members of the Managing Committee as well as notice dated 13.9.89 issued by the respondent No. 3 mainly on the ground that under the scheme of the Act read with the Rules and the bye laws of the Karkhana, coopted member and nominees of the Financial Institutions who are members of the Board of Directors of the Karkhana and are entitled to sit and vote at the special meeting when the Committee considers the vote of no confidence under Section 73 ID of the Act are required to be served with the said notices of requisition enabling them to partici 495 pate in the said special meeting.
This writ petition was heard by the Division Bench of Bombay High Court on 26.10.89.
On a consideration of the provisions of Section 73 ID read with Rule 57A and bye law No. 29 of the Bye Laws of the Society the High Court allowed the writ petition holding that the 3 members of the second Category who have got a limited right to vote at a meeting except at a meeting to elect Chairman or Vice Chairman are entitled to be served with notices of the special meeting and to participate in the said meeting and as the two nominees of the Financial Institutions and the expert Coopted members had not been served with the notices of requisition meeting the requisi tion meeting cannot be held.
Instead of quashing the notice issued by the respondent No. 3 convening the meeting, the High Court directed the Registrar, the respondent No. 3 to issue fresh notices to the elected members as well as to the 3 Directors of the Second category gory before holding the meeting and disposed of the writ petition accordingly.
The High Court however restrained the Chairman to enter into new contracts and as well as giving any fresh commitment on behalf of the Karkhana.
The appellants filed a petition under Article 133 of the Constitution of India against the Judgment and order dated October 26, 1989 passed by the High Court, Bombay in Writ Petition No. 3976 of 1989.
The High Court by Order dated 26.10.89 granted certificate for appeal to this Court under Article 134(1) of the Constitution of India on the following questions: "Whether the nominees of the Financial Institutions and the expert co opted by the Committee under Bye law 29 are in cluded within the expression "Committee members who are for the time being entitled to sit and vote at any meeting of the Committee?" In order to decide the above question it is appropriate to consider the relevant provisions of the Maharashtra Cooperative Societies Act 1960 to be hereinafter called the 'Act ' and the rules framed thereunder as well as the rele vant bye laws of the particular Cooperative Society in question.
The Karkhana is a Cooperative Society governed by the Maharashtra Cooperative Societies Act.
Section 2(7) defines Committee as the Committee of Management or Board of Direc tors or other directing body by whatever name called in which the management of the affairs of the society is vested under Section 73 of the said Act.
496 Section 27 which deals with the voting powers of the members provides in Sub section '9 ' that no nominee of the Government or of my Financial Bank on any society shall be entitled to vote at any election of its Committee.
Section 73 states that the management of every society shall vest in a Committee, constituted in accordance with this Act, the rules and bye laws, which shall exercise such powers and perform such duties as may be conferred or imposed respec tively by this Act, Rules and the Bye laws.
Therefore, the management of every Cooperative Society is vested in the Committee of management or for that in the Board of Direc tors of the Society.
Section 73 ID which is relevant for determination of the said question is quoted below: 73 ID "(1) A President, Vice President, Chairman, ViceChair man, Secretary, Treasurer or any other officer by whatever designation called who holds office by virtue of his elec tion to that office shall cease to be such President, Vice President, Chairman, Vice Chairman, Secretary, treasurer or any other officer as the case may be, if a motion of no confidence is passed at a meeting of the committee by two third majority of the total number of Committee members who are for the time being entitled to sit and vote at any meeting of the committee and the office of such President, Vice President, Chairman, Vice Chairman, Secretary, treasur er or any other officer, as the case may be, shall thereupon be deemed to be vacant.
The requisition for such special meeting shall be signed by not less than one third of the total number of members of the committee who are for the time being entitled to sit and vote at any meeting of the committee and shall be delivered to the Registrar.
The requisition shall be made in such form and in such manner as may be prescribed: Provided that, no such requisition for a special meeting shall be made Within a period of six months from the date on which any of the officers referred to in sub section (1) as en tered upon his office.
(3) The Registrar shall, within seven days from the date of receipt of the requisition under sub section (2), convene a special meeting of the committee.
The meeting shall be held on a date not later than fifteen days from the date of issue of the notice of the meeting.
" 497 Rule 57A Motion of no confidence against the officers of the Society (1) The requisition to call the special meeting of the committee of a society to consider a motion of no confidence against the President, Vice President, Chairman, ViceChair man, Secretary, Treasurer, or other officer of the society, by whatever designation called, who holds office by virtue of his elections to that office, shall be made in Form M 18.
The requisition shall be accompanied by (a) the grounds of no confidence, (b) the text of the motion of no confidence to be moved, (c) the name of the committee members who shall move the motion of non confidence, (d) a list of members of the committee specifying their full names, and address who are, for the time being, entitled to sit and vote at any meeting of the committee, (e) signatures of the members of committee who are signing the requisition duly attested by the Chief Executive Officer of the society or Special Executive Magistrate or Executive Magistrate or any Gazetted Officer of the Government.
(2) The requisition referred to in sub rule (1) shall be delivered in person to the Registrar.
Such requisition or requisitions shall be delivered in duplicate in each case.
The Registrar on ascertaining that the requisition or requi sitions, as the case may be, have been signed by not less than 1/3rd members of the Committee who for the time being are entitled to sit and vote in any 'meeting of the commit tee of society.
(a) receive and acknowledge the requisition under his signa ture with date and time, (b) issue notice, within 7 days from the date of receipt of the requisition, convening the special meeting for that purpose specifying therein place, date, time name and desig nation of the officer who shall be presiding over such 498 meeting, to all the members of the Committee, the Presiding Officer and the Managing Director, General Manager, Manager, Paid Secretary, Group Secretary or such employee of the society, to whom the Registrar has directed to produce minute book of Committee meetings of the society.
This notice of no confidence, shall also be issued, to the offi cer or officers against whom the motion of noconfidence is being moved.
and shall be accompanied by the copy of the requisition along with enclosures and agenda.
(5) The time of the meeting shall be between office hours of the authorised officer.
The meeting shall be held either in the office of the Registrar or in the office of the person authorised by the Registrar to preside over the meeting.
(6) No other subject, except the motion or motions of nocon fidence shall be kept on the agenda.
(7d) The Registrar or the officer authorised to preside over the meeting shall not allow any other person to enter the place of meeting except the person or persons appointed to assist him, the officer of the society who has produced the minute book, the officer or officers against whom the motion of no confidence is moved, the members of the committee who are for the time being entitled to sit and vote in any meeting of the committee, who are present at the commence ment of the meeting and police officer or officers if called by him to maintain the law and order.
BYE LAW No. 29.
Board of Directors: A. xxxxxx B. xxxxxx to E. xxxxxx (F) "Managing Director, and representatives in sub clause (d) and (e) (Coopted Technical Director) shall not be enti tled to function as Chairman and Vice Chairman.
The 499 representatives referred to in above sub clause (d) and technical expert coopted as per provisions of sub clause (e and Managing Director, will not be entitled to vote at the meeting for the election for Chairman and Vice Chairman The representative of the State Government shall not be entitled to vote on any subject at any meeting of the Board, But his opinion will be recorded in the minute book.
He will not be responsible for mismanagement and negligence of the Board.
Further no action can be taken against him for any losses sustained to the Karkhana due to the mismanagement and the negligence of the Board.
" It has been contended on behalf of the appellant that Section 27 sub section '9 ' debars the Government nominee or the nominee of any Financing Bank on any society to vote at any election of the Committee of the Society and as such except the elected Directors other Directors can not partic ipate in the election of the Managing Committee of the Society and cannot vote for such election.
It has been also submitted that under section 73 ID Clause (A) in the special meeting convened for consideration of no confidence motion against the Chairman and Vice Chairman of the society and other officers of the society only the members who are for the time being "entitled to sit and vote at any meeting of the Committee may participate and vote in the said meeting.
It has also been provided therein that as soon as vote of no confidence is passed against the Chairman of the managing committee of the society by 2/3rd majority of the total number of committee members who are for the time being entitled to sit and vote the office of Chairman etc.
shall be deemed to be vacant.
Therefore, it has been submitted that the word at any meeting of the committee shall be deemed to refer to all the meetings of the managing commit tee or the Board of Directors.
The nominees of the Financial Institutions and also the coopted expert, coopted Technical Director having been not entitled to function as a Chairman and Vice Chairman and not to vote at the meeting of the election for Chairman and Vice Chairman of the Board of Directors are not entitled to sit and vote in the special meeting convened for the purpose of consideration of the no confidence motion against the Chairman of the Board of Directors.
It has also been contended in this connection that the Chairman of the managing committee or of the Board of Directors is elected by the elected Directors of the managing committee.
It is against the democratic principles that the motion of no confidence against the Chairman for removal from his elected office are to be passed by the 2/3rd majority of the members of the Board of Directors including the Directors who 500 are representatives of the Financial Institutions and expert nominee (co opted), Mr. S.S. Ray, learned counsel appearing on behalf of the respondent No. 1 has on the other hand joined issues and submitted that the right to participate in the special meeting convened for consideration of no confidence motion against the Chairman is a statutory right flowing from the provisions of the statute.
This right has been conferred expressly by the provisions of section 73 ID read with Rule 57A Clause 2(b) read with Clause 7(D) i.e. "members of the committee who are for the time being entitled to sit and vote in any meeting of the Committee." Though Section 27 sub section 9 enjoins that no nominee of the Government or of financing bank or of any society shall be entitled to vote at any election of its committee.
This merely means and signifies that the nominee of the Government as well as of the Financial Institutions are not entitled to participate in the election meeting of the society and from casting their votes in such meeting.
Bye law 29 of the Bye Laws of the Society provides that the Board of Directors of the Karkhana would consist of the following members: section No. Particulars No. of Members.
Members falling under Bye elected producer, 11 law No.29(A) members, 2.
Members failing under Bye elected by society 01 law No.29(B) members 3.
Members falling under Bye Managing Director, 01 law No.29(C) Ex officio.
Members falling under Bye Representative of 01 law No.29(D)(i) the financing agency.
Members falling under Bye Representatives of 01 law No. 29(D)(ii) Indian Finance Corporation of India, LIC, IDBI etc.
(Not more than two) In the present case only. 6.
Members falling under Representative of NIL Bye law No. 29(D)(iii) ICICI (One) In the present case.
Members falling under Bye Nominee of the 01 law NO.29(D)(iv) State Government 501 8.
Members falling under Bye Expert nominee 01 law No. 29(E).
(co opted).
Members falling under elected from SC/ 02 bye law No. 29(G) ST and Weaker r/w section 73B Section.
Total Strength 19 It is also evident from the provisions of Bye law No. 29 that the Representative of the State Government shall not be entitled to vote on any subject at any meeting of the Board, but his opinion may be recorded in the minute book.
So far the representatives referred to in Clause D(i) and (D)(ii) in Bye law No. 29, that is, representative of the financing institutions as well as the expert nominee (co opted) fall ing under Bye law 29(E) are entitled to participate in the special meeting and also cast their votes in such meeting.
This being the position, it is against the provisions of the Act, Rules and Bye laws of the society to hold that the members falling under Bye law 29(D)(i) and (ii) as well as the expert nominee (co opted) under Bye law 29(E) are not entitled to sit and vote in the meeting of the committee convened for consideration of the no confidence motion against the Chairman, Board of Directors or for that of the Managing Committee.
This interpretation will be wholly going against the clear meaning of the expression namely members who are entitled to sit and vote at any meeting of the committee.
The right to participate in the special meeting as well as to vote for such meeting is a statutory right and it flows from the provision of the Act, Rules and Bye laws of the Society.
It has nothing to do with the democracy.
The words "entitled to sit and vote in any meeting o[ the socie ty" refer to member to sit and vote not in every meeting but in any meeting of the society.
The only express bar as provided in section 27 is that the members, that is, the Directors representatives of the Financial institutions as well as the Expert Director (co opted) are not competent to participate only in the election of members of the society.
The said Directors have been conferred the right to partici pate in any meeting including the special meeting of the Board of Directors or of the Managing Committee of the society .
It is appropriate to refer of Jamuna Prasad Mukhariya and Others vs Lachhi Ram and Others, [1955] Vol. 1 S.C.R. 608 at 610.
It has been observed: "The right to stand as a candidate and contest the election is not a common law right.
It is a special right created by statute and can only be exercised on the conditions laid 502 down by the statute.
The Fundamental Rights Chapter has no bearing on a right like this created by statute.
The appel lants have no fundamental right to be elected Members of Parliament.
If they want that they must observe the rules.
" We have gone through the Judgment rendered by our Learned Brother, Hon 'ble Mr. Justice R.M. Sahai, we are however, unable to concur with the views expressed by our Learned Brother and the findings arrived at therein.
We therefore, hold that the requisition meeting that has been convened cannot be held as the representatives of the Finan cial Institutions in the Board of Directors as well as the Expert Director (co opted) under the relevant provisions of Bye law No. 29 have not been served with the requisition notices of special meeting convened by the respondent No. 3 pursuant to the said requisition notice.
The impugned notice convening the special meeting is wholly illegal and unwar ranted.
Furthermore, as we have found hereinbefore that the two Directors representing the Financial Institutions as well as the expert nominee (co opted) are entitled to parti ciapate in the special meeting of the committee and also to vote at the same meeting as regards the no confidence mo tion, the non service of the notic of the said meeting on the aforesaid Directors renders the said special meeting illegal as there has been an infringement of the provisions of the said Act, Rule 57A of the Maharashtra Cooperative Societies Rules, 1961 and Bye Laws 29D(i) and (ii) and 29E of the Bye Laws of the Society.
We, therefore, dismiss the appeal and allow the writ petition filed in the High Court.
The appellants will pay costs quantified at Rs. 5,000 to the respondents.
R.M. SAHAI, J.
The short question of law that arises for consideration in this appeal directed against the order of Bombay High Court, is whether the nominees of financial institutions and co opted Technical Directors who are not entitled under bye law 29 of the Sanjay Sahakari Sakhar Karkhana Ltd. (hereinafter called as 'Society ') framed under Maharashtra Co operative Societies Act, 1960 (for brevity 'Act ') either to function as Chairman or Vice Chairman of the Board of Directors of the Society or to vote at their election are entitled to participate in a special meeting requisitioned for consideration of motion of no confidence under Section 73 ID of the Act.
Resolution to requisition a special meeting to consider motion of no confidence against Chairman of the Board, signed by more than 1/3rd members of the Board, was deliv ered to the Registrar as 503 required by Rule 57 A along with a list of members who were entitled to sit and vote.
Notices on it were issued under Clause (b) of sub rule (2) of rule 57 A to elected members only.
Validity of it and consequent proceedings were chal lenged before the High Court, amongst others, for being violative of rule 57 A as it required the Registrar to issue notices to all members of the Board.
Further nominees of financial institutions being vitally involved in the welfare of the Society, their presence was essential for effective and meaningful discussion even if they were not entitled to sit and vote.
Various other objections were raised.
But the High Court did not find merit in any except the one relating to non issuance of notice to nominees of financial institu tions and the expert co opted by the Board.
Reason for it was wider construction of the expression who are for the time being entitled to sit and vote at any meeting of the committee" used in section 731D of the Act.
The High Court found that even though it would have been more logical to restrict such right to those alone who were entitled to elect yet it widened the ambit of expression because if two meanings were possible then the meaning which extended the right to vote rather than that limited should be accepted.
It also found that right to vote on a resolution of no confidence being an important matter affecting the Society, it should be extended to even nominated members who had a right to vote at some meeting.
Bye law 29 framed by the Society, gives out the Consti tution of the Board of Directors comprising of elected, ex officio, representatives, and co opted members.
But right to be elected as Chairman or Vice Chairman of the Board or even voting at the meeting of such election has been confined to elected members by clause (F) which is extracted below: "Managing Director, and (representatives in sub clauses (d) and (e) (Co opted Technical Director) shall not be entitled to function as Chairman and Vice Chairman.
The representa tives referred to in above sub clause (d) and technical expert director coopted as per provisions of subclause (e) and Managing Director, will not be entitled to vote at the meeting for the election of Chairman and ViceChairman.
The representative of the State Government shall not be entitled to vote on any subject at any meeting of the Board.
But his opinion will be recorded in the minute book.
He will not be responsible for mismanagement and negligence of the board.
Further no action can be taken against him for any losses sustained to the Karkhana 504 due to the mismanagement and the negligence of the board. ' ' The question is how does it reflect on the right to participate in a meeting of no confidence against the Chair man of the Board? For this purpose it is necessary to ex tract sub section (1) of section 731D which reads as under: "A President, Vice President, Chairman, Vice Chairman, Secretary, Treasurer or any other officer by whatever desig nation called who holds office by virtue of his election to that office shall cease to be such President, Vice Presi dent, Chairman, Vice Chairman, Secretary, Treasurer or any other officer, as the case may be, if a motion of noconfi dence is passed at a meeting of the committee by twothird majority of the total number of committee members who are for the time being entitled to sit and vote at any meeting of the committee and the office of such President, Vice President, Chairman, Vice Chairman, Secretary, Treasurer or any other officer, as the case may be, shall thereupon be deemed to be vacant." This sub section provides the manner in which a Chairman or Vice Chairman who holds such office by virtue of his election may cease to hold it.
It also provides the method of such removal by twothird majority of the total members of the committee who are, for the time being, entitled to sit and vote in any meeting of the Committee.
It is thus clear that the right to remove and elect Chairman and ViceChairman has been restricted to only limited class of members.
Who are they? Elections in a democracy have been conceived as an instrument of selecting the best qualitatively superior and politically valuable.
Who should be entitled to reverse the selection? Those who elect or any other numbers increased by any methodology or law adding representatives and nominees not entitled to participate in selection.
If the value of elective process has to have primacy then those worthy of choice should not be permitted to be squeezed out by those who are precluded from leadership or electing the leader.
This basic concept does not stand altered or modified either by any provision in the Act or Rules.
Literal construction of expression 'entitled to sit and vote ' if it results in negation of democratic process or is against logic and is fraught with danger of removal of an elected representative by 505 nominees of financial institutions or government then it has to be avoided.
Reverting to statutory right the scheme of the Act does not warrant the conclusion that such members are entitled to participate in meeting requisitioned under section 73 ID.
Sub section (9) of Section 27 reads as under: "No nominee of the Government or of any financing bank on any society shall be entitled to vote at any election of its committee.
" It clearly and unequivocally debars nominees of finan cial institutions or Government representatives from exer cising any right to vote at any election meeting.
Therefore, the provisions in the bye law debarring such a member from voting at 'election of Chairman or ViceChairman cannot be interpreted to mean as permitting such representatives to vote at other election meeting as that may result in invali dating the bye law.
Even if such 'members have some right to vote in some meetings other than election meetings or they have a right to record their opinion it does not entitle them to participate or even served with notice of vote of confidence as nature of meeting for considering motion of no confidence has all the characteristics both in content and effect of an election meeting.
Voting is sine qua non of election and under clause (i) of sub rule (7) of Rule 57 A, the decision to retain Chairman is arrived at by voting and such right, namely, right to vote in election meeting being non existent in nominees of financial institutions or of Government the expression "entitled to sit and vote" used in section 73 ID has to be read as excluding such members from its ambit.
Such reading of the provision is necessary not only because it is more logical but also that is the outcome of combined reading of sub section (9) of section 27, sec tion 73 ID and bye law 29.
For these reasons, this appeal succeeds and is allowed.
The Writ Petition filed in the High Court is dismissed.
But there shall be no order as to costs.
Y. Lal Appeal dismissed.

summary:
The appellants, elected Directors of the Sanjay Sahakari Sakhar Karkhana Ltd., signed a requisition and sent the same to the Respondent 3, Joint Director of Sugar and Joint Registrar Cooperative Societies, Maharashtra State, request ing him to summon a special meeting of the Committee of the karkhana to consider the proposed motion of no confidence against the Chairman of the Committee, Respondent No. 1.
The requisition was signed by more than 1/3rd of the total members in accordance with the provisions of Clause (2) of Sec.
731D of the Maharashtra Cooperative Societies Act 1960.
On receipt of the said requisition, Respondent No. 3 issued a notice dated 13.9.1989 convening a special meeting of the Committee of karkhana i.e. Board of Directors on 25.9.1989.
The said notice was issued to the elected members only.
No notice was sent to nominated members of the financial bodies or co opted members.
Respondent No. 1 filed a writ petition before the High Court and challenged the action of the Respondent No. 3 in not issuing the notice to the co opted members and the member nominees of the Financial Institu tions, as according to him, those members are entitled to sit and vote at the special meeting when the committee considers the vote of no confidence under Section 73 ID of the Act.
The High Court on consideration of the provisions of Section 731D read with Rule 57A and bye law No. 29 of the Bye Laws of the Society, allowed the writ petition holding that the three members of the second category who have got a limited right to vote at a meeting except at a meeting to elect Chairman or Vice Chairman are entitled to be served with notices of the special meeting and to participate in the said meeting and as the two nominees of the Financial Institutions and the expert co opted members had not been served with the notice of requisition meeting, the requisi tion meeting could not be held.
The High Court thus directed the Registrar, respondent No. 3, to issue fresh notices to the elected members as well as to the three Directors of the second 492 category before holding the meeting and accordingly disposed of the writ petition.
The appellants thereupon moved the High Court and obtained a certificate of fitness under Article 134(1) of the Constitution and have filed this appeal.
The main contention of the appellants is that the nomi nees of the Financial Institutions and the co opted members are not entitled to notice.
Dismissing the appeal (by majority B.C. Ray and Kuldip Singh, JJ.) this Court, HELD: (Per B.C. Ray, J.) The right to participate in the special meeting as well as to vote for such meeting is a statutory right and it flows from the provision of the Act, Rules and Bye laws of the Society.
It has nothing to do with the democracy.
[501E] The words 'entitled to sit and vote in any meeting of the society ', refer to member to sit and vote not in every meeting but in any meeting of the society.
The only express bar as provided in Section 27 is that the members, that is, the Directors representatives of the Financial Institutions as well as the expert Director (co opted) are 'not competent to participate only in the election of members of the socie ty.
[501E F] The Directors have been conferred the right to partici pate in any meeting including the special meeting of the Board of Directors or of the Managing Committee of the society.
[501G] The requisition meeting that has been convened cannot be held as the representatives of the Financial Institutions in the Board of Directors as well as the Expert Director (co opted) under the relevant provisions of Bye law No. 29 have not been served with the requisition notices of special meeting convened by the respondent No. 3 pursuant to the said requisition notice.
[502B C] (Per R.M. Sahai, J. dissenting) Sub section (i) of Section 73 D provides the manner in which Chairman or Vice Chairman who holds such Office by virtue of his election may cease to hold it.
It also pro vides the method of such removal by two third majority of the total members of the committee 493 who, are, for the time being, entitled to sit and vote in any meeting of the Committee.
It is thus clear that the right to remove and elect Chairman and Vice Chairman has been restricted to only limited class of members.
[504E F] Literal construction of expression 'entitled to sit and vote ' if it results in negation of democratic process or is against logic and is fraught with danger of removal of an elected representative by nominees of financial institutions or government, then it has to be avoided.
[504H; 505A] Voting is sine qua non of election and under clause (i) of sub rule (7) of Rule 57 A, the decision to retain Chair man is arrived at by voting and such right namely, right to vote in election meeting being nonexistent in nominees of 'entitled to sit and vote ' used in section 73 ID has to be read as excluding such members from its ambit.
[505E F] Such reading of the provision is necessary not only because it is more logical but also that is the outcome of combined reading of subsection (9) of Section 27, Section 73 ID and Bye law 29.
[505F] Jamuna Prasad Mukhariya and Ors.
vs Lachhi Ram and Ors., ; at 610 referred to.


judgement:
ivil Appeal No. 1308 of 1990.
From the Judgment and Order dated 9.12.86 of the Madras High Court in A.A.O. No. 421/83.
K. Parasaran, B. Ramamoorthy and V. Balachandran for the Appellant.
M.R. Narayanaswamy and A.T.M. Sampath for the Respond ents.
The Judgment of the Court was delivered by THOMMEN, J.
Special leave is granted.
This appeal arises from the judgment of the Madras High Court in A.A.O. No. 421 of 1983.
The sole question that arises for consideration is as regards the period of limita tion for making a deposit to make an application under Rule 89 of Order XXI of the Civil Procedure Code, 1908 to set aside sale of immovable property sold in execution of a decree.
Has the deposit to be made within 30 days from the date of sale as required by sub rule (2) of Rule 92 of Order XXI or within 60 days from the date of sale as provided in Article 127 of the ? The High Court by the impugned judgment held that Arti cle 127 governed the period of limitation to make a deposit in terms of Rule 89.
In coming to that conclusion the High Court followed its earlier decision in Thangammal & Ors.
vs K. Dhanalakshmi & Anr., AIR 1981 Mad. 254 and the decision of this Court in Basavantappa vs Gangadhar Narayan Dharwad kar & Anr.; , In the latter decision, a Bench of two Judges of this Court held that Thangammal (supra) was correctly decided on the point and the deposit made within 60 days from the date of sale was well within time.
485 We shall read the relevant provisions insofar as they are material.
Rule 89 of Order XXI provides: "89.
Application to set aside sale on deposit. (1) Where immovable property has been sold in execution of a decree, any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person, may apply to have the sale set aside on his depositing in Court, (a) for payment to the purchaser, a sum equal to five per cent of the purchase money, and (b) for payment to the decree holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree holder, Rule 92(2) of Order XXI reads: (2) . . . . where, in the case of an applica tion under Rule 89, the deposit required by that rule is made within thirty days from the date of sale, [or in cases where the amount deposited under Rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale].
The words shown in bracket in Rule 92(2) were substitut ed by section 72 of the Civil Procedure Code (Amendment) Act, 1976 with effect from 1.2.1977.
The object of the amendment was to afford an opportunity to the applicant to make good any deficiency in the amount deposited under Rule 89 when the deficiency occurred by reason of clerical or arithmetical mistake on his part.
That amendment has no relevance to the point in issue as regards the period of limitation except to emphasise that sub rule (2) of Rule 92 had received the special attention of Parliament in 1976.
Parliament addressed itself particularly to the sub rule, and yet did not, apart from the special 486 contingency provided for by the amendment, think it neces sary to extend the period generally prescribed under Rule 92(2) to make the deposit which is a condition precedent to an application to set aside a sale.
Rule 89 postulates an application on deposit.
It says "may apply to have the sale set aside on his depositing in Court".
These words show that deposit is a condition prece dent to the making of an application to set aside a sale.
That condition must be satisfied within the period pre scribed by sub rule (2) of Rule 92, which undoubtedly is 30 days.
Parliament refused to alter that provision even when a part of the sub rule was substituted.
No doubt on this aspect would probably have arisen had it not been for the longer period prescribed by Article 127 of the (as substituted by the Amending Act 104 of 1976 with effect from 1.2.1977) for making an application under Rule 89.
That Article reads: Description Period of Time from which of suit limitation period begins to run 127.
To set aside Sixty The date of a sale in execution days the sale of a decree includ ing any such applica tion by a judgment debtor.
" Prior to the Amending Act 104 of 1976 the period pre scribed by Article 127 was 30 days.
As a result of the amendment, a period of 60 days is provided for making an application to set aside a sale.
It is important to remember that Article 127 appears in Part I of Third Division of the Schedule to the , dealing exclusively with applications.
Article 127 thus relates solely to the making of an application and not to a deposit.
This Article governs applications made under Rules 90 and 91 as well, but we are not concerned with them.
It is true that prior to the Amending Act 104 of 1976, the period prescribed for the making of an application was identical to that for the 487 making of a deposit.
But as a result of the amendment, different periods are now prescribed for the making of the deposit and the application.
That it was the legislative intent to provide different periods of limitation for these two matters is, from the language used in the two enact ments, clear and explicit.
The reason why the legislature provided for different periods for the two matters which are the necessary steps one following the other to be taken for setting aside the sale of an immovable property sold in execution of a decree is not for the Court to question.
This Court would not assume that the legislature made a mistake in this respect or made an omission in accomplishing what it had set out to achieve.
There is no inconsistency between the two sets of provi sions prescribing different periods of limitation.
Such inconsistency can arise only if obedience of one provision will result in disobedience of the other.
While Rule 92(2) requires a deposit to be made within 30 days from the date of sale, Article 127 requires an application contemplated under Rule 89 to be made within 60 days from the date of sale.
As stated earlier, the deposit must necessarily pre cede the application for no application under Rule 89 can be made except on depositing the amount in Court.
We see no inconsistency in these two sets of provisions.
The words of the statutes being clear, explicit and unambiguous, there is no scope to have recourse to external aid for their construction.
Nevertheless in deference to the arguments of the respondents ' counsel, we would refer to the Statement of Objects and Reasons in respect of clause 102 of the Bill introduced in the Lok Sabha on 8th April, 1974 [Published in the Gazette of India (Extraordinary) Part II, Section 2, dated April 8, 1974] amending Article 127.
It states: "Clause 102 (Amendment of the Schedule to the Limitation Act, 1953) An application to set aside a sale in execution of a decree on deposit under Rule 89 of Order XXI is re quired to be made within thirty days from the date of the sale.
Experience shows that this period is too short and often causes hardship because the judgment debtors usually fail to arrange for moneys within that time.
Banks usually take more than thirty days to sanction loans and advances.
In the circumstances, entry 127 of the Schedule to the is being amended to increase the period of limitation to sixty days in respect of an application to set aside a sale in execution of a decree.
This increase in 488 the period of limitation will not affect the purchaser because five per cent of the purchase money is required to be paid to him.
The advantage of the increased period of limitation will also be available to an application under Rule 90 or Rule 91 of Order XXI to set aside a sale in execution of a decree.
In view of the increase in the period of limitation, confirmation of a sale will have to await the expiry of the increased period of limitation." (emphasis supplied) The legislative intent, as seen from the above state ment, was indeed to extend the period prescribed for making an application and not for any other purpose.
That is the reason why Article 127 was amended enlarging the period for making an application from 30 days to 60 days.
That period has no bearing on the time allowed for making a deposit in respect of which the period is prescribed, not under Article 127, but under Rule 92(2) of Order XXI, and this period has always been, and remains to be, 30 days.
We see no repug nance or inconsistency or lack of clarity in these two sets of provisions.
Appearing for the appellant (the auction purchaser), Mr. Parasaran submits that the High Court was not justified in attempting to correct or supply, what it thought to be, a defect or an omission in the statute.
He rightly contends that even if there was an omission, it was not for the Court to rectify it.
The Court must indeed proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said: See Nalinakhya Bysack vs Shyam Sunder Haldar & Ors., ; at 545.
Assuming there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency.
The Court cannot add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result.
"No case can be found to authorise any court to alter a word so as to produce a casus omissus": Per Lord Halsbury, Mersey Docks vs Henderson. , 602.
"We cannot aid the legislature 's defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there": Crawford vs Spooner, ; , 8, 9.
Where the language of the statute leads to manifest contra diction 489 Of the apparent purpose of the enactment, the Court can, of course, adopt a construction which will carry out the obvi ous intention of the legislature.
In doing so "a judge must not alter the material of which the Act is woven, but he can and should iron out the creases.": Per Denning, L.J., as he then was, Seaford Court Estates vs Asher, All E.R. [1949] 2 155 at 164.
See the observation of Sarkar, J. in M. Pentiah & Ors.
vs Muddala Veeramallapa & Ors., ; at 314.
In the construction of the relevant provisions, we see no contradiction or ambiguity or defect or omission.
We see no merit in the argument that Article 127 must override Rule 92(2) of Order XXI in respect of limitation.
We view both the provisions as prescriptive of time for different pur poses, and of equal efficacy and particularity.
The maxim generalia specialibus non derogant has no relevance to their construction.
Nor does the principal in Heydon 's case ; 76 ER 637 offer any help on the point in issue.
The mischief which the legislature had set out to remedy by amendment of Article is what is stated in the objects and reasons clause.
That object was accomplished by prescribing a longer period for filing an application to set aside a sale in execution of a decree.
Further more, as already seen, by amendment of Rule 92(2) of Order XXI an opportunity was accorded to the depositor to make good the deficiency in the deposit made by him due to arithmetical or clerical mistake on his part.
In no other respect did the legislature evince an intention to extend the period prescribed for making the deposit.
It would perhaps have been better, more logical, reasonable and practical, as stated by the Kerala High Court in Dakshayini & Ors.
vs Madhavan, AIR 1982 Kerala 126, to enlarge the period for making the deposit so as to make it identical with that prescribed for making the appli cation, and such extended period would have better served the object of the amendment, namely, ameliorating the plight of the judgment debtor, but such are matters exclusively within the domain of legislation by Parliament and the Court cannot presume deficiency and supply the omission.
The legislature did not do more than what it did.
It has, in our view, accomplished what it had set out to achieve.
No more no less.
In the circumstances, we hold that the correct construc tion of Rule 92(2) of Order XXI of the Civil Procedure Code, 1908 leads to the irresistible conclusion that the time for making a deposit in terms of Rule 89 of Order XXI is 30 days, and Article 127 of the prescrib ing the period for making an application under Rule 89 has no relevance to the prescribed time for making the deposit.
490 Neither provision has any effect on the other as to time.
All decisions the contrary on the point, we hold, are incorrect.
With the greatest respect, we disagree with the contrary view expressed in Basavantappa vs Gangadhar Narayan Dharwadkar & Anr., ; On the question of limitation the judgment of the High Court is set aside, and the appeal is allowed to that ex tent.
We make no order as to costs.
R.N.J. Appeal allowed.

dataset_name: IN-Abs

summary:
In this appeal by special leave brought by the auction purchaser against the Judgment of the Madras High Court the sole question for consideration is as regards the period of limitation for making a deposit to make an application under Rule 89 of Order XXI of the Civil Procedure Code, 1908 to set aside the sale of immovable property sold in execution of a decree.
Whether the deposit is to be made within 30 days from the date of the sale as required by sub rule (2) of Rule 92 of Order XXI or within 60 days from the date of sale as provided in Article 127 of the ? Following its earlier decision in Thangammal & Ors. vs V.K. Dhanalakshmi & Anr.
and the decision of this Court in Basavantappa vs Gangadhar Narayan Dharwadkar & Anr., the High Court had held that Article 127 governed the period of limitation to make a deposit in terms of Rule 89.
Setting aside the judgment of the High Court on the question of limitation, this Court in allowing the appeal, HELD: The correct construction of Rule 92(2) of Order XXI of the Civil Procedure Code, 1908 leads to the irresist ible conclusion that the time for making a deposit in terms of Rule 89 of Order XXI is 30 days, and Article 127 of the prescribing the period for making an application under Rule 89 has no relevance to the prescribed time for making the deposit.
Neither provision has any effect on the other as to time.
[489G H; 490A] Basavantappa vs Gandadhar Narayan Dharwadkar & Anr., ; , over ruled.
Nalinakaya Bysack vs Shyam Sunder Haldar & Ors.
, ; at 545; Mersey Docks vs Henderson, [1988] 13 App.
595,602; 484 SUPREME COURT REPORTS [1990] 1 S.C.R. Crawford vs Spooner, [1846] 6 Morre P.C. 1, 8, 9; Seaford Court Estates vs Asher, All E.R., [1949] 2.155 at 164 M. Pentiah & Ors.
vs Muddala Veeramallappa & Ors., ; at 314 Heydon 's case ; 76 ER 637; Dakshayini & Ors.
vs Madhavan, AIR 1982 Kerala 126, referred to.


judgement:
ivil Appeal No. 1012 of 1987.
From the Judgment and Order dated 24.9.86 of the Gujarat High 415 Court in B.I .P.A.
No. 259 of 1986.
B. Datta, P.H. Parekh and Ms. Shalini Soni for the Appel lants.
T.U. Mehta and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The appellants are in the cadre of Talatiscum Mantries (Patwaries) in the Panchayat Service of the State of Gujarat.
In the year 1982/83 they were sent on deputation to the higher cadre of Circle Inspectors in the State service.
The question for consideration is whether in the facts of this case the appellants have a right to be absorbed in the cadre of Circle Inspectors.
The appellants were originally appointed as Talatis in the Revenue Department of the State of Gujarat.
Under the Gujarat Panchayat Act (hereinafter called 'the Act ') which came into force with effect from April 1, 1963, Panchayat Service was constituted and under the Act all the posts of Talatis along with the incumbents stood transferred to the Panchayat Service.
On that date there was a cadre of Circle Inspectors in the State Service which was bifurcated and 50% of the posts continued in the State Service and the remain ing 50% were transferred to the Panchayat Service.
The appellants were sent on deputation as Circle Inspectors in the State Cadre.
In January 1986 qualified officials became available for promotion to the post of Circle Inspectors in the State cadre and as such the appellants were reverted to their parent cadre of Talatis in the Panchayat service.
The appellants challenged the reversion by way of writ petition in the Gujarat High Court primarily on the ground that their options for absorption in the State Service were pending with the State Government which the State was bound to decide in their favour.
The High Court dismissed the writ petition holding that there was nothing on the record to show that the appellants gave any option to be absorbed in the State cadre.
The High Court also found that they, being on deputation, have no legal right to be absorbed in the State Service.
This appeal by special leave is against the judgment of the High Court.
We have heard learned counsel for the parties.
The State by a circular dated February 8, 1965 asked the Talatis among others to give their options as to whether they want to remain in the Panchayat Service or to be re allocated to the State Service.
Section 206A(2) of the Act is as under: 416 "Any officer or servant who is not reallocated under sub section (1) and continues in the Panchayat Service immediately before the expiry of the aforesaid period of four years, shall on such expiry, be deemed to be finally allocated to the Panchayat Service.
" It is clear from the above quoted provision that a Panchayat servant who is not reallocated within a period of four years from.
April 1, 1963 would be deemed to be finally allocated to the Panchayat Service.
The High Court has held that the appellants have not been able to show that they made any such options before March 31, 1967.
Even if it is assumed that the appellants gave some sort of option the same having not been accepted before March 31, 1967, the appellants stood finally allocated to the Panchayat Service.
The appellants being on deputation they could be revert ed to their parent cadre at any time and they do not get any right to be absorbed on the deputation post.
We see no infirmity in the judgment of the High Court and as such we dismiss the appeal.
There shall be no order as to costs.
T.N.A. Appeal dismissed.

summary:
The appellants belonging to the Revenue Department of Gujarat State were allocated to the Panchayat Service when the Gujarat Panchayats Act, 1961 came into force and their allocation became final under section 206A(2) of the Act.
Thereafter they went on deputation as Circle Inspectors in the State service but were later reverted back to their parent cadre in the Panchayat Service.
The appellants challenged their reversion before the High Court which dismissed the petition.
Hence this appeal.
Dismissing the appeal, this Court, HELD: 1.
It is clear from section 206A(2) of the Gujarat Panchayats Act, 1961 that a Panchayat servant who is not reallocated within a period of four years from the coming into force of the Act would be deemed to be finally allocat ed to the Panchayat Service.
The High Court has held that the appellants have not been able to show that they made any such options before the specified date.
Even if the appel lant gave some sort of option the same having not been accepted before the expiry of specified date, the appellants stood finally allocated to the Panchayat Service.
[416B C] 2.
The appellants being on deputation they could be reverted to their parent cadre at any time and they do not get any right to be absorbed on the deputation post.
There is no infirmity In the judgment of the High Court.
[416D]


judgement:
ivil Appeal No. 653 of 1981.
466 From the Judgment and Order dated 11.8.80 of the Punjab and Haryana High Court in C.W.P. No. 1192 of 1980.
M.K. Ramamurthy and Jitender Sharma for the Appellants.
Rajinder Sachar, Govind Mukhoty Dr. Shankar Ghosh, Mahabir Singh, S.C. Patel, T.C. Sharma, C.V. Subba Rao, C.M. Nayyar, P.P. Singh and S.K. Verma for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and order of a Division Bench of the Punjab and Haryana High Court dated 11th August, 1980 dismissing the appellants ' writ petition under Article 226 of the Constitution chal lenging validity of the appointment of Bhagwan Das Sardana, respondent No. 3 to the post of Executive Engineer in Public Works Department (Public Health Branch).
The post of Executive Engineer in Public Works Depart ment (Public Health Branch) in the State of Haryana is borne on Class I Engineering Service, recruitment to which is made by direct recruitment and promotion under the provisions of the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules, 1961 (hereinafter referred to as 'the Rules ').
Under Rule 5, 50% of the posts of Executive Engi neers in Class I are required to be filled by direct re cruits while the remaining 50% posts are to be filled by promotion from members belonging to Class II service.
Rule 8 provides for constitution of a Committee for making selec tion for promotion to the post of Executive Engineer.
The list so prepared is forwarded to the State Public Service Commission and on its approval the State Government is required to make the appointments.
Rule 9 lays down that promotion shall be made by selection on the basis of merit and suitability in all respects.
Rule 9(3) lays down that a member shall not be eligible for promotion to the rank of Executive Engineer, unless he has rendered five years ' service as an Assistant Executive Engineer, and has passed the departmental examination as provided in Rule 15.
The first proviso to the Rule lays down that an Assistant Execu tive Engineer found suitable for promotion shall be given preference over an eligible Class II officer.
The second proviso to Rule 9(3) confers power on the Government to reduce the period of five years ' service as an Assistant Executive Engineer.
Rule 11 lays down that an officer ap pointed to the service shall remain on probation for a period of two years in case of direct recruitment.
Rule 15 lays down that officers 467 appointed to the service unless they have already done so, shall pass departmental examination and within such period as may be prescribed by the Government.
Under the proviso to Rule 15(1) the Government is empowered to extend the period within which an officer may pass the departmental examina tion.
Rule 22 confers power on the Government to relax the requirements of Rules if it is satisfied that the operation of any of these Rules causes undue hardship in any particu lar case.
The appellants S/Shri K.K. Khosla and L.C. Goyal were holding the post of Sub Divisional Engineers PWD (Public Health Branch) in the State of Haryana in Class II Service of Engineers.
They were considered for promotion to the post of Executive Engineer, Class I Service.
The Selection Com mittee, on scrutiny of cases of eligible Class II officers prepared a select list for promotion.
The list so prepared contained the names of nine officers including the two appellants but ultimately the appellants were not appointed by promotion to the post of Executive Engineer instead other seven officers belonging to Class II Service were promoted and in addition to that Bhagwan Das Sardana, respondent No. 3 a direct recruit was also appointed on the recommendation or ' the Public Service Commission.
Aggrieved, the appellants filed a writ petition in the High Court challenging the validity of the appointment of respondent No. 3 on the ground that he had not rendered five years ' service as an Assistant Executive Engineer and had not passed the depart mental examination which was the minimum requisite qualifi cation for promotion to the post of Executive Engineer in Class I Service.
On behalf of the State Government, it was pleaded that the State Government had relaxed the require ment of Rule 9(3)(a) with regard to five years ' period of service not only to respondent No. 3 but to other officers also.
The High Court dismissed the writ petition on the finding that there was no infirmity in the Government 's order granting exemption to respondent No. 3 and his promo tion and appointment to the post of Executive Engineer did not suffer from any legal infirmity.
The appellants have challenged the view taken by the High Court in the instant appeal.
On behalf of the appellants it was urged that the promo tion and appointment of respondent No. 3 to the post of Executive Engineer was made in utter disregard of the Rules as he had not rendered five years ' service as an Assistant Executive Engineer as required by Rule 9(3)(a) and he had not passed the departmental examination as contemplated by Rule 15 and lastly he was not eligible for promotion as he had not completed two years ' probationary period as Assist ant Execu 468 tive Engineer on the date of his promotion.
On a careful scrutiny of the Rules and the material on record we do not find any merit in the submission made on behalf of the appellants.
No doubt respondent No. 3 had not rendered five years ' service as an Assistant Executive Engineer but the State Government had granted relaxation to the respondent No. 3 by reducing the period of service under Clause (a) to Rule 9(3) in exercise of its power under the proviso to the said Rule.
This relaxation was granted as the respondent No. 3 was the only officer in the Department who was a direct recruit to Class I Service.
The State Govern ment had power to grant relaxation under the second proviso to Rule 9(3) therefore we find no legal infirmity in the respondent 's promotion.
In addition to that Rule 22 further confers power on the State Government to grant relaxation with regard to the operation of the Rule.
The Government 's order granting relaxation in favour of respondent No. 3 is sustainable under Rule 22 also.
The scope of State Govern ment 's power to relax operation of Rules has been discussed by us in J.C. Yadav & Ors.
vs State of Haryana & Ors.
, On the application of those principles we find no illegality in the order of the Government granting relaxation to respondent No. 3, in respect of operation of Rule 9(3)(a).
As regards the departmental examination is concerned, it is true that the respondent No. 3 did not pass the depart mental examination afresh in the Public Health Branch.
On behalf of the State Government it is pointed out that prior to his recruitment to the post of Assistant Executive Engi neer in the Public Health Branch respondent No. 3 had been working as Sub Divisional Engineer (SDE) in the Public Works Department (Building and Road Branch) for a period of 6 1/2 years and during that period he had passed departmental examination.
In this view the Government did not consider it necessary to require the respondent No. 3 to pass the de partmental examination once again.
The Public Health Branch as well as the Building and Road Branch both belong to the Public Works Department.
The syllabus prescribed for the departmental examination in the Building and Road Branch as well as in the Public Health Branch is almost the same, as except one, all other subjects are common to both the Branches.
The State Government 's opinion that since the respondent No. 3 had already passed a departmental examina tion while working in the Building and Road Branch, it was not necessary for him to have passed the departmental exami nation again was justified though it had at an earlier stage directed the respondent No. 3 to pass the depart 469 mental examination again.
Later on the Government was satis fied that since the respondent had already passed the de partmental examination in Building and Road Branch, there was no necessity for the respondent to pass the examination again.
In these circumstances we hold that respondent 's promotion to the post of Executive Engineer was not rendered illegal merely because he had not undergone departmental examination in the Public Health Branch afresh.
Respondent No. 3 had been appointed as a direct recruit to the post of Assistant Executive Engineer on 7.12.
1977 on probation for a period of two years.
Before the expiry of the probation period he was selected for promotion to the post of Executive Engineer.
The appellants ' contention that unless the respondent had satisfactorily completed the probation period, he could not be promoted to the post of Executive Engineer, is misconceived.
There is no specific provision in the Rules requiring completion of probationary period for the purposes of promotion within the service.
Under Rule 11 an officer is required to be appointed on probation, if during the period of probation his work is not found satisfactory his services are to be dispensed with and in the event of his services being found satisfactory he is entitled to confirmation on the post.
It is thus clear that the completion of the probationary period of respondent was relevant only for the purpose of confirmation in Class I Service and Same was not a precondition for the purpose of promotion within the service.
Moreover, the Government issued an order waiving the probationary period of one year in the respondent 's case.
Non completion of probationary period of two years on the post of Assistant Executive Engineer did not affect the validity of the respondent 's promotion to the post of the Executive Engineer under the Rules.
In view of the above discussion, we find no merit in the appeal and it is accordingly dismissed.
There will be no order as to costs.
P.S.S. Appeal dismissed.

summary:
Rule 5 of the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules 1961 requires 50 per cent of the posts of Executive Engineers to be filled by promotion from m.tubers of Class II Service.
Rule .9(3) renders a member of service ineligible for promotion to the rank of Executive Engineer unless he renders five years ' service as an Assistant Executive Engineer, and has passed the depart mental examination.
The first proviso thereto grants pre fernce to an Assistant Executive Engineer over an eligible Class II Officer in the matter of promotion.
The second proviso empowers the Government to reduce the period of five years ' service as an Assistant Executive Engineer.
Rule II prescribes two years ' probation case of direct recruits to the Service.
Rule 15 requires officers appointed to the Service to pass departmental examination within such period as may be prescribed unless they have already done so.
Rule 22 empowers Government to relax the requirement of Rules In cases of undue hardship.
Respondent No. 3, a direct recruit to the post of As sistant Executive Engineer in the Public Health Branch, was promoted to the post of Executive Engineer, Class I Service, defeating the claim of the appellants, members of Class II Service of Engineers In the said Department.
They assailed his appointment by means of a writ petition under Article of the Constitution on the ground that the respondent was not eligible for promotion as he had not rendered five years ' service as an Assistant Executive Engineer and further he had not passed the departmental examination which was the minimum requisite qualification for promotion to the post of Executive Engineer.
Before the High Court the State Govern ment 's plea was that it had relaxed the requirement of Rule 9(3)(a) not only to respondent No. 3 but to other officers also.
The High Court dismissed the writ petition on the view that there was no infirmity in the Government 's order grant ing exemption to respondent 465 In appeal, in addition to the pleas raised before the High Court, it was further submitted that respondent No. 3 was not eligible for promotion as he had not completed two years ' probationary period as Assistant Executive Engineer on the date of his promotion.
Dismissing the appeal, the Court, HELD: 1.
There was no legal infirmity in the promotion of respondent No. 3.
The State Government had granted relax ation to him by reducing the period of service under clause (a) to Rule 9(3) in exercise of its power under the second proviso to the said Rule.
This relaxation was granted as he was the only officer in the department who was a direct recruit to Class I Service.
In addition to that, Rule 22 further confers power on the State Government to grant relaxation with regard to the operation of the Rules.
The Government 's order granting relaxation in favour of respond ent No. 3 was sustainable under Rule 22 also.
[468B D] J.C. Yadav & Ors.
vs State of Haryana & Ors.
, [1990] 1 SCR470, referred to. 2.
The respondent 's promotion to the post of Executive Engineer was not rendered illegal merely because he had not undergone departmental examination in the Public Health Branch.
He had been working as Sub Divisional Engineer in the Public Works Department (Buildings and Roads Branch) for a period of 6 1/2 years prior to his recruitment to the post of Assistant Executive Engineer in the Public Health Branch and during that period he had passed departmental examina tion.
The syllabus prescribed for the departmental examina tion in the Buildings and Roads Branch as well as in the Public Health Branch was almost the same.
The Government was satisfied that there was no necessity for him to pass the examination again.
[469B; 468E~G; 469A] 3.
Non completion of probationary period of two years on the post of Assistant Executive Engineer by respondent No. 3 did not affect the validity of his promotion to the post of Executive Engineer under the Rules.
There is no specific provision in the Rules requiring completion of probationary period for the purposes of promotion within the Service.
It was relevant only for the purpose of confirmation in Class I Service.
[469E; C D]


judgement:
N: Civil Appeal Nos. 3321/82 and 3524 of 1983.
From the Judgment and Order dated 2.5.
1980 of the Punjab and Haryana High Court in C.W.P. Nos.
677/79 and 97/79.
P.P. Rao and C.M. Nayar for the Appellants in both the appeals.
N.S. Das Behl for the Respondent in C.A. No. 3524 of 1983.
Awadh Behari Rohtagi, Mahabir Singh, A.G. Prasad and Prem Malhotra for the state of Haryana.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
1.
Since common questions of facts and law arise for decision in these two appeals, they are dis posed of by a common judgment.
Civil Appeal No. 3221/82 and Civil Appeal No. 3524/83 arise out of the common judgment in Civil Writ Petition Nos.
677/79 and 97/79 and a few other petitions dated May 2, 1980, on the file of High Court of Punjab and Haryana at Chandigarh.
The writ petitions were dismissed and the appellants had leave of this court under Article 136 of the Constitution.
The facts lie on a short compass 538 and reference to the facts on record in Civil Writ No. 97 of 1979 are sufficient for disposal of these appeals.
Writ Petition No. 97 of 1979 relates to Punjab service while Civil Writ Petition No. 677/79 relates to Haryana.
The appellants were direct recruits to the ministeri al services in the subordinate offices of the Directorates of Agriculture of the respective states.
Admittedly all are governed by Punjab Subordinate Agricultural Service Rules 1933, for short 'rules '.
The respective state Governments upgraded on February 8, 1979 offices of the Directorates as 'A ' Class and the Subordinate Offices situated elsewhere remained as 'B ' Class.
The appellants and other filed writ petitions on February 26, 1976 seeking a writ of mandamus to direct the respondents to upgrade the Subordinate Offices of the Department of Agriculture as 'A ' Class; to treat the appellants on par with the similar employees working in the office of the Directorates of Agriculture; treat the Direc torate of Agriculture and Subordinate Offices as one depart ment for maintaining common seniority of all of them; to upgrade their scales of pay on the basis of the said senior ity and to quash the order dated February 8, 1979 declaring the Directorate as 'A ' Class as wholly arbitrary and dis criminatory.
Pending appeals, the respective Governments by proceedings dated March 2, 1982 classified the Directorate and Subordinate Offices as 'A ' Class.
The Government have also accorded equal pay to the employees similarly situated.
Therefore, the only question that survives to be resolved is whether the Subordinate Offices and the Directorate would be treated as one unit and common seniority of all the employ ees should be maintained.
Shri P.P. Rao and Shri C.M. Nayyar, learned counsel for the appellants in the respective appeals contended that the appellants were selected along with the persons appoint ed in the office of the respective Directorates.
They pos sessed the same qualifications; their scales of pay are now the same.
Their service conditions are also the same under the rules, and therefore, they are entitled to maintenance of common seniority for the purpose of promotion.
It is seen that the appointments were made somewhere in 1973.
From the list produced before us in Civil Appeal No. 3221/82 relating to the State of Haryana, among the persons selected by the Recruitment Board, though some of the persons are found to have secured higher ranking in the list prepared by the Selection Board, they were appointed to the Subordinate Offices while persons below them, in ranking were appointed in the Directorate.
When we enquired from the counsel for the State Shri Rohtagi, the learned Senior Counsel has produced before us the not 539 ings which show that the Director had taken five of them, one of whom had secured first class in Matriculation, two ex service candidates and two candidates who secured higher percentage of marks at the qualifying matriculation examina tion.
In the view we are taking this solitary circumstances does not militate against the ultimate conclusion that we have reached in the matter.
Admittedly, rule 3 of the rules provides that the service shall consist of seven sections and in each section there shall be such number of posts whether permanent or temporary of each grade specified in the appendix as the Local Government from time to time may determine.
Under rule 4(1) the Director of Agriculture shall make appointment to all the posts in the service except the post of Junior Clerks, other than those sanctioned for Head Office, Mukaddams and the posts shown under Section 7 of the appendix.
All other appointments shall be made by the Head Office concerned, vide rule 4(").
Rule 7 prescribes the method of recruitment.
Rule 7(1)(I) specifies thus: "In the case of Superintendent, Office of the Director (i) by promotion from the amongst the Head Assistants em ployed in the office, or (ii) by selection from amongst Superintendents or Head Assistants with at least five years clerical experience in other Government office.
" Rule 7(i)(J) read thus: "In the case of Head Assistant (i) by promotion from amongst Assistant and Stenographers with clerical experience who have proved their fitness for the appointment, or (ii) by selection from amongst clerks employed in the office of Government other than the office of the Director." Rule 7(1)(K): the case of Superintendent or Head Clerk of a Subordinate Office 540 (i) by promotion from amongst Senior Clerks who have proved their fitness for the post, or (ii) by selection from amongst clerks employed in Government Office other than the office in which the post/office is to be filled.
" Rule 7( 1)(L): "In the case of Assistant (i) by promotion from amongst Senior Clerks in their respec tive offices who have proved their fitness for appointment to the post; or (ii) by selection from amongst clerks employed in Government Offices other than the office in which the post is to be filled; or (iii) by direct recruitment provided that no graduate not already in Government service shall be appointed to be an Assistant unless he has been recommended as fit for appointment by the Punjab University Appointment Board.
" Sub rule (2): "Appointment to any post by the promotion of officials already in service or by the transfer of officials shall be made strictly by selection and no official shall have any claim to such an appointment as of right.
" The candidates have to undergo probation as provided in Rule 9, the details of which are not relevant.
Rule 10 provides seniority of members of the service.
The seniority of the members in the service shall, in each class of ap pointment shown in the appendix, be determined by the dates of their substantive appointment on probation or otherwise to a permanent vacancy in such class.
The other details are not necessary.
Hence omitted.
In the appendix, the office of the Director of Agri culture, Section 6 mentions ministerial posts of Superin tendent, Head Assis 541 tants, Assistants, Stenographers, Senior Clerks, Junior Clerks.
Their varying pay scales have also been mentioned, the details of which are now not material.
In the Subordi nate Offices one Superintendent, seven Head Clerks and two Senior Clerks are the cadres.
A resume of these rules clearly shows that for the appointment of all the posts including Junior Clerks in the Head Office, the appointing authority is the Director.
All appointments to the post of Junior Clerks other than Head Office shall be by the concerned Head Office.
As per the appendix, the staffing pattern in the Office of the Director of Agriculture and the Subordinate Offices is entirely different.
The only common element is the Senior Clerks.
The seniority is to be maintained on the basis of the substan tive appointment to the respective cadres.
The seniority Of the members of the service shall, in each class of appoint ment shown in the appendix be determined by the date of their substantive appointment or promotion or otherwise to permanent vacancies in such a class.
The method of appoint ment has been adumbrated under Rule 7(1)(I) to (L) by promo tion from amongst the persons working in the respective subordinate posts in the respective offices in the first instance, or by selection from amongst persons working in the Government Offices including Subordinate Offices and in some cases by the direct recruitment.
Thereby it is clear that for filling up the vacancies arising in the post of Superintendent, Assistants and Senior Clerks, the persons working in the Subordinate Offices or the Government Offices are the feeder channels, or in some cases by direct recruit ment.
Sub rule (2) of Rule 7 makes the matter clear that they have got right to be considered, but it is strictly by selection and they have no claim to the appointment as of right.
It is open to the Government to constitute different cadres in any particular service as it may choose according to its administrative convenience and expediency.
The office of the Director is the apex office obviously to control and oversee the functioning of the subordinate offices and the other allied departments under his control monitoring the implementation of the Government 's agricultural programmes.
It may not be necessary to maintain a common cadre of the employees of the Directorate and the Subordinate Offices.
Each cadre is a separate service or a part of the service sanctioned for administrative expediency.
Therefore, each may be a separate unit and the posts allocated to the cadre may be permanent or temporary.
It is seen from the appendix that in the office of the Directorate there is one Superin tendent, three Head Assistants, four Assistances, two Ste nographers, seven Senior Clerks and twelve Junior Clerks.
In the Subordinate Offices, there is one Superintendent, seven Head Clerks and two 542 Senior Clerks.
This is obviously on the basis of administra tive need.
No doubt the office of the Directorate and the Subordinate Offices have been compendiously shown in Section 6 of the Appendix.
That does not by itself mean that office of the Directorate and Subordinate Offices are treated under the rules as one unit or at par.
as contended for by Shri P.P. Rao.
As pointed out in the beginning, the Director had committed some irregularities at the time of initial ap pointments in the year 1973 when he picked up five persons out of the select list of the candidates and appointed them in the Directorate of Haryana Government deviating from the order of merit prepared by the Board.
They were selected at a common selection by the Recruitment Board along with other candidates who stood higher in the order of merit prepared by the Selection Board.
But this was done in the year 1973 and the appointments have not been challenged till date of filing of the writ petition in 1979.
Even in the writ peti tion no challenge was made.
This is pressed into service only to show that the appellants are similarly situated with them.
After the appointments were made and the candidates joined in the respective posts for consideration for promo tion the Rules occupy the field and the claims are to be considered according to Rule 7.
Therefore, though we may not agree with the learned counsel for the State that the Direc tor had absolute discretion to pick and choose arbitrarily and make appointment of the posts, yet undoubtedly, he had power to appoint them.
Normally the order of appointment would be in the order of merit of candidates from the list and must be in accordance with rules.
His exercise of power should not be arbitrary.
The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based.
In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits.
The rules provide the guidance for exercise of the discre tion in making appointment from out of selection lists which was prepared on the basis of the performance and position obtained at the selection.
The appointing authority is to make appointment in the order of gradation, subject to any other relevant rules like, rotation or reservation, if any, or any other valid and binding rules or instructions having force of law.
If the discretion is exercised without any principle or without any rule, it is a situation amounting to the anti thesis of Rule of Law.
Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority.
We refrain from going into the correctness of the choice made by the Director due to latches in not assailing the correct ness of the appointment for well over six years.
The validi ty of the rules have not been questioned.
The only question is, as stated earlier, whether the 543 employees working in the Head Office and the Subordinate Office are entitled to common seniority.
The rules them selves made a distinction between the persons appointed in the Directorate and the Subordinate Offices as separate cadres and the subordinate cadre in some cases is the feeder cadre for promotion to the post in the Head Office.
In this view, by no stretch of imagination, the appellants can be considered to be equally placed for treating them at par with the Directorate employees for being treated as being in a common cadre.
There is reasonable nexus to differentiate the two cadres.
Therefore, the classification cannot be said to be arbitrary violating Articles 14 and 16 of the Consti tution.
It is not necessary to burden the judgment with the decisions cited by either counsel as they are not directly or nearer to the core in the case.
Accordingly we hold that the appellants are not entitled to be treated at par with the employees working in the respective Directorates for giving direction to the respondents to maintain common seniority between the employees of the Directorate and Subordinate Offices.
The appeals are accordingly dismissed, but without costs.
T.N.A. Appeals dis missed.

summary:
The appellants belonging to the ministerial service in the subordinate offices of the Directorates of Agriculture of the States of Punjab and Haryana filed writ petitions in the Punjab and Haryana High Court seeking a direction that subordinate offices and the Directorates should be treated as one unit and common seniority of all the employees should be maintained.
The High Court dismissed the petitions.
Hence these appeals by special leave.
In these appeals it was contended that the appellants are entitled to common seniority with their counterparts in the Directorates because their service conditions, pay scales and qualifications were same.
In 536 order to show similarity with their counterparts in the Directorates it was also pointed out that though a common selection was made for Directorates and subordinate offices yet the appointing authority picked up some candidates out of the select list and appointed them in the Directorates thereby deviating from the order of merit prepared by the Selection Board.
Dismissing the appeals, this Court, HELD: 1.
The Punjab Subordinate Agricultural Service Rules 1933 themselves made a distinction between the persons appointed in the Directorate and the Subordinate Offices as separate cadres and the subordinate cadre in some cases is the feeder cadre for promotion to the post in the Head Office.
In this view by no stretch of imagination, the appellants can be considered to be equally placed for treat ing them at par with the Directorate employees for being treated as being in a common cadre.
There is reasonable nexus to differentiate the two cadres.
Therefore, the clas sification can not be said to be arbitrary violating Arti cles 14 and 16 of the Constitution.
[543A B] 1.1 The fact that the office of the Directorate and the subordinate offices have been compendiously shown in section 6 of the Appendix to Rules does not by itself mean that office of the Directorate and Subordinate Offices are treat ed under the rules as one unit or at par.
[542A] 2.
It is open to the Government to constitute different cadres in any particular service as it may choose according to its administrative convenience and expediency.
[541E] 2.1 The office of the Director is the apex office obvi ously to control and oversee the functioning of the subordi nate offices and the other allied departments under his control monitoring the implementation of the Government 's agricultural programmes.
It may not be necessary to maintain a common cadre of the employees of the Directorate and the Subordinate offices.
Each cadre is a separate service or a part of the service sanctioned for administrative expedien cy.
Therefore, each may be a separate unit and the posts allocated to the cadre may be permanent or temporary.
[541F G] 2.2 Accordingly the appellants are not entitled to be treated at par with the employees working in the respective Directorates for giving direction to the respondents to maintain common seniority between the employees of the Directorate and Subordinate Offices.
[543D] 537 3.
Normally the order of appointment would be in the order of merit of candidates from the list and must be in accordance with rules.
The exercise of power should not be arbitrary.
The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based.
In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits.
The rules provide the guidance for exercise of the discretion in making ap pointment from out of selection lists which was prepared on the basis of the performance and position obtained at the selection.
The appointing authority is to make appointment in the order of gradation, subject, to any other relevant rules like, rotation or reservation, if any, or any other valid and binding rules or instructions having force of law.
If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antith esis of Rule of Law.
[542D E, F] 3.1 Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority.
1542G]