judgement:
vil Appeal No. 1314 (NT) of 1976.
From the Judgment and Order dated 15.11.1975 of the Gujarat High Court in Income Tax Reference No. 160 of 1974.
Dr. V. Gauri Shankar, Manoj Arora and Ms. A. Subhashini for the Appellant.
J. Vellapaly, Ms. A.K. Verma and J.B. Dadachanji for the Respondent.
The Judgment of the Court was delivered by OJHA, J.
This appeal has been preferred on the basis of a certificate granted by the High 'Court of Gujarat under Section 261 of the Income Tax Act, 1961 (hereinafter re ferred to as the Act).
The judgment appealed against is reported in Cellulose Products of India Ltd. vs Commissioner of Income Tax, Gujarat, [1977] 110, I.T.R. page 15 1.
The respondent is a public limited company incorporated on April 14, 1989 mainly for the purpose of carrying on business of manufacturing chemical products.
The Memorandum of Associa tion of the respondent company, as is apparent from the order of the Appellate Assistant Commissioner of Income Tax, inter alia contains the following clause: "to carry on the business of manufacture of and dealer and importers and exporters in chemical products of any nature and kind whatsoever and particulary of Carboxy Methyl Cellulose (CMC), Cellulose Pulps and other chemical products.
" The respondent was granted an industrial licence by the Central Government for the manufacture of Sodium Carboxy Methyl Cellulose (for short CMC).
In pursuance of the said licence the respondent installed a Cellulose plant, in which was manufactured Cellulose pulp which in its turn was meant to be used as a raw material for manufacture of CMC.
This fact does not appear to have been in dispute that the re spondent began production of Cellulose pulp from March 18, 1961 in the said plant while the production of CMC was started from June 15,1961. 891 In the assessment year in question namely 1966 67, the previous year of account being the financial year 1965 66 ending on March 31, 1966, the respondent claimed relief contemplated by Section 84 of the Act (as it stood prior to its being deleted with effect from April 1, 1968 by Finance (No. The Income Tax Officer took the view that since the respondent had started production of Cellu lose pulp from March 18, 1961 it had begun to manufacture or produce finished articles or goods in the year ending on March 31, 1961 and consequently the assessment year 1961 62 was the first year in which the assessee was entitled to relief under Section 84.
According to him, the relief con templated by Section.
84 being available only for five years namely the assessment year 1961 62 and the four assessment years immediately succeeding as contemplated by Sub section (7) of Section 84 of the Act, the respondent was not enti tled to the relief claimed in the assessment year 1966 67 which fell beyond the aforesaid period.
This finding of the Income Tax Officer was affirmed in appeal by the Appellate Assistant Commissioner.
The matter was taken by the respond ent in further appeal before the Income Tax Appellate Tribu nal.
The respondent 's contention that the production of Cellulose pulp during the month of March 1961 was a trial production was repelled by the Tribunal and a categorical finding was recorded by it that Cellulose pulp manufactured by the respondent during the month of March 1961 was a finished product which was a marketable commodity.
On this view the Tribunal held that the respondent having begun production or manufacture of finished product which was capable of being sold in the market in the year of account relevant to the assessment year 1961 62, the last year in which the respondent was entitled to get relief under sec tion 84 of the Act was the assessment year 1965 66 and the claim made by it for the said relief in the assessment year in question namely 1966 67 was not maintainable.
The Tribu nal, however, on an application made in this behalf by the respondent referred the following question to the High Court of Gujarat for its opinion: "Whether on the facts and in the circumstances of the case, the Tribunal was right in reject ing the assessee 's claim for relief under section 84 of the Act for the assessment year 1966 67?" The High Court by the judgment under appeal answered the question aforesaid in the negative, that is, in favour of the assessee and against the revenue.
It held that even though the word "article" used in Subsection (7) of section 84 of the Act was undoubtedly an ordinary word employed by the legislature but in the context in which it was used and 892 looking to the object with which it was enacted it was obvious that it could only refer to the end product of the industrial undertaking as a whole where there was no phased programme of installation and construction.
On this view the High Court found that the mere fact that the respondent started the production of Cellulose pulp which was an in termediate product on March 18, 1961 did not mean that the company had begun to produce or manufacture "articles" in the assessment year 1961 62.
It has been urged by learned counsel for the appellant that the finding recorded by the Tribunal referred to above was essentially a finding of fact based on appraisal of evidence and it was not open to the High Court in its advi sory jurisdiction to take a contrary view.
For the respond ent, on the other hand, in support of the judgment appealed against, it was urged by its learned counsel that inasmuch as section 84 of the Act contemplated grant of relief to a new undertaking, it should be construed liberally so as to effectuate the object thereof.
He maintained that since the undertaking established by the respondent was to manufacture CMC and the industrial licence had also been granted to it for the said purpose, exemption under section 84 of the Act could be claimed by it only in the year during which CMC was actually manufactured and since it was so done during the assessment year 1962 63 exemption could not be claimed in the assessment year 1961 62, notwithstanding the fact that Cellulose pulp for captive consumption was manufactured in that year.
According to him, therefore, the period of five years contemplated by sub section (7) of section 84 of the Act would represent the assessment year 1962 63 and the four assessment years immediately succeeding and in this view of the matter the High Court was right in allowing the relief claimed by the respondent during the assessment year in question, namely 1966 67.
In the alternative, he submitted that if ultimately the view of the Tribunal prevailed that the production had started in the assessment year 1961 62 then the disallowance of the relief in the 5th year namely in the assessment year in question should be restricted to the investment of the pulp factory and the respondent should not be denied the relief in respect of the investment exclu sively related to the CMC plant.
Having given our anxious consideration to the respective submissions made by the learned counsel for the parties, we are inclined to agree with the contention of the learned counsel for the appellant that the High Court on the facts and in the circumstances of the instant case committed an error in interfering with the conclusion of the tribunal.
It 893 is settled law that a High Court hearing a reference under the Act does not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal and that it acts purely in an advisory capacity.
If the Tribunal after con sidering the evidence produced before it on a question of fact records its finding it cannot be interfered with in a reference by the High Court unless of course such finding was not supported by any evidence, was perverse or patently unreasonable.
In our opinion, the finding of the Tribunal in the instant case did not suffer from any of these infirmi ties.
The finding that the production of Cellulose pulp during the month of March 1961 was not a trial production and that Cellulose pulp as manufactured by the respondent was a finished product which was a marketable commodity was essentially a finding of fact based on appraisal of evi dence.
It is true that Cellulose pulp constitutes raw material for manufacture of CMC but it has not been disputed before us by the learned counsel for the respondent that it was even by itself a finished marketable commodity.
The circumstance that the industrial licence granted to the respondent was for the manufacture of CMC and not of Cellu lose pulp is, in our opinion, keeping in view the nature of the two articles, not of much significance.
In the same manner as a licence, for instance, for the manufacture of cloth includes the manufacture of cotton yarn, an intermedi ate product necessary for manufacturing cloth, the licence granted to the respondent for the manufacture of CMC includ ed the manufacture of Cellulose pulp which was an intermedi ate product to be used in its turn as a raw material for the manufacture of CMC.
The relevant clause of the Memorandum of Association of the respondent company, already quoted above, is obviously wide in its amplitude, It contemplates manufac ture of "chemical products of any nature and kind whatsoever and particularly of CMC, Cellulose pulp and other chemical products".
Manufacture of Cellulose pulp was thus indeed one of the objects of the company.
The question involved had to be considered in this background and the Tribunal having done so and recorded the finding of fact referred to above the High Court obviously committed an error in holding that manufacture of Cellulose pulps during March 1961 was of no consequence and that the first year of production would be the assessment year 1962 63 when CMC was actually manufac tured.
The decision of the Madras High Court relied on by the learned counsel for the respondent reported in Madras Machine Tools Manufacturers Ltd. vs Commissioner of Income Tax, Madras, , in view of what has been observed above on the facts of the instant case does not advance the case of the respondent any further than the reasons recorded in the judgment under appeal.
894 As regards the alternative submission made by the learned counsel for the respondent suffice it to say that the case on the basis of which this alternative submission is sought to be made was not set up before the Tribunal nor any such question was sought to be referred on the basis of which this alternative submission could be made.
It cannot, as such, be permitted to be made in the present appeal.
The submission that the provisions of section 84 of the Act should be construed liberally so as to effectuate the object thereof need detain us for long.
It is only when there is any genuine doubt about the interpretation of a fiscal statute or where two opinions are capable of being formed that the rule of interpretation canvassed by learned counsel for the respondent may be taken to.
In the instant case a plain reading of sub section (7) of section 84 of the Act makes it clear without any doubt that the period of five years was to start from the assessment year relevant to the previous year in which the undertaking began to manufacture or produce "articles".
Since the language of the sub section is plain and admits of no ambiguity there is no scope of applying the aforesaid rule of interpretation.
The question as to in which assessment year "the undertaking begins to manufacture or produce articles" is essentially a question to be decided on the facts of each case and on the basis of the evidence placed on record.
In view of the foregoing discussion, this appeal suc ceeds and is allowed with costs and the judgment of the High Court under appeal is set aside.
S.B. Appeal allowed.

summary:
The respondent is a Public Limited Company incorporat ed on April 14, 1989 for carrying on business of manufac turing chemical products particularly of Carboxy Methyl Cellulose (CMC) and Cellulose Pulps.
The respondent was also granted an industrial licence by the Central Government for the manufacture of Carboxy Methyl Cellulose.
The respondent had installed a cellulose plant in which cellulose pulp, the raw material for Carboxy Methyl Cellulose was manufactured.
The plant had begun production from March 1961 while the production of Carboxy Methyl Cellulose was started from June 15, 1961.
The respondent claimed relief under section 84 of Income Tax Act as it stood prior to its being deleted with effect from April 1, 1968 by Finance Act (2) 1967, for the assessment year 1966 67, the previous year of accounting being the financial year 1965 66.
The Income Tax Officer took the view that since the respondent had started production of cellulose pulp from March, 18 1961, it had begun to manufacture or produce finished articles or goods in the year ending March 31, 1961 and consequently the assessment year 1961 62 was the first year in which the assessee was entitled to relief under section 84 Sub section (7) of the Income Tax Act under which the relief contemplated was to be available only for live assessment years.
So the respondent was not entitled to relief in the assessment year 1966 67 which fell beyond the aforesaid period.
The above view the Income Tax Officer was affirmed in appeal by the Appellate Assistant Commissioner.
Even the Income Tax Appellate Tribunal held that the respondent having begun production or manufacture of finished product which was capable of being sold in the market in the year of accounting relevant to the assessment year 1961 62 the last year in which the respondent was entitled to get relief under section 84 of the Act was the assessment year 1965 66 and the claim for 889 the relief in the assessment year 1966 67 was not maintain able.
The High Court on reference, held that the mere fact that the respondent started production of Cellulose Pulp which was an intermediate product on March 18, 1961 did not mean that the company had begun to produce or manufacture "articles" in the assessment year 1961 62 because the word "articles" used in Sub section (7) of section 84 in the context, could be only the end product of the industrial undertaking as a whole where there was no phased programme of installation and construction.
Allowing the appeal of the Revenue with costs, the Court, HELD: The High Court on the facts and circumstances of the instant case committed an error in interfering with the conclusion of the Tribunal.
It is settled law that a High Court while hearing a reference under the Act does not exercise any appellate or revisional or supervisory juris diction over the Tribunal and it acts purely in an advisory capacity.
Further in the instant case the finding of the Tribunal did not suffer from any infirmities such as not being supported by any evidence or being perverse or patent ly unreasonable.
The production of Cellulose Pulp during the month of March, 1961 was a finished product which was a marketable commodity.
It is true that Cellulose Pulp also constitutes raw material for manufacture of Carboxy Methyl Cellulose and the circumstances that the industrial licence granted to the respondent was for the manufacture of Carboxy Methyl Cellulose which also included the manufacture of Cellulose Pulp which was intermediate product to be used in its turn as a raw material for the manufacture of Carboxy Methyl Cellulose.
The relevent clause of the Memorandum of Association of the respondent company is obviously wide in its amplitude and as such comtemplates "manufacture of chemical products of any nature and kind whatsoever and particularly of Carboxy Methyl Cellulose, Cellulose Pulp and other chemical products.
" So the High Court obviously com mitted an error in holding that the manufacture of Cellulose Pulp during March 1961 was of no consequence and that the first year of production would be the assessment year 1962 63 when Carboxy Methyl Cellulose was actually manufactured.
The provisions of section 84 of the Act could be coustrued liberally only, when there is any genuine doubt about the interpretation.
[892H 893G, 894B] In the instant case, a plain reading of Sub section (7) of the section 84 of the Act makes it clear without any doubt that the period of assessment year relevant to the previous year in which the undertaking began to manufacture or produce "articles" was 1961 62.
The question as to the assessment year in which the undertaking begins to manufac ture or 890 produce articles is essentially a question to be decided on the facts of each case and on the basis of evidence placed on record.
[894C D]


judgement:
Civil Appeal No. 916 of 1992.
From the Judgment and Order dated 18.6.1991 of the Bombay High Court in W.P.N. 1914 of 1991.
Harish N. Salve, Rajiv K. Garg and N.D. Garg for the Appellant.
K.T.S. Tulsi, Addl.
Solicitor General, A. Subba Rao, P. Parmeswaran and A.D.N. Rao for the Respondents.
The Judgment of the Court was delivered by 999 KASLIWAL, J.
Special leave granted.
This appeal has been filed against the judgment of the Bombay High Court dated 18.6.1991.
The short controversy raised in the present case is whether the cloves imported by the appellant fall within Item 169 in List 8 of appendix 6 or fall within Paragraph 167 of Chapter XIII of the Import and Export Policy April 1990 March 1993.
Brief facts of the case are that the appellant obtained by transfer an Import Lincence No. 3412179 dated 29th November, 1990 for Rs. 16,10,700 for the import of admissible Items as per Para 220 (2) (3) (4) & (6) of the Import Policy 1990 93 Vol.
After acquisition of the aforesaid additional licence, the appellant placed an order for the supply of about 200 bags of Madagascar cloves No. 1 quality to a firm of Singapore.
The appellant opened a letter of credit dated 6.5.1991 in favour of the foreign supplier.
On receipt of the letter of credit the foreign supplier shipped the above mentioned goods in favour of the appellant.
On arrival of the goods at Bombay Port, (e) appellant filed Bill of Entry for the clearance of the goods for home consumption on 30th May, 1991.
The appellant claimed clearance of the goods against the additional licence on the ground that the cloves were covered under Item 169 of Appendix 6, List 8, Part I of the Import and Export Policy being "Drugs/Drug intermediate not elsewhere specified.
" The Department relied on Para 167 which dealt with the import of spices and took the stand that the cloves could be imported only against specific licence relating to cloves.
The appellant in the above circumstances filed a Writ Petition in the High Court of Bombay seeking a mandamus against the respondent to clear the goods against the Bill of Entry filed by the appellant.
The High Court held that th cloves cannot fall within the expression "Drugs/Drug intermediate not elsewhere specified" and the import of the cloves without specific licence was not permissible.
It was thus held that the action of the Customs Authorities in not permitting clearance cannot be faulted and the licence relied upon by the appellant was not valid for the import of cloves.
It was contended by Mr. Harish Salve, Learned Counsel for the appellant that though the use of clove as a spice is not in much dispute, but at the same time it cannot be disputed that clove is a Drug/Drug intermediate.
It was submitted that in popular sense and trade parlance, clove is also used as drug intermediate and that being so the appellant was 1000 entitled to import the cloves against the additional licence under para 220 of the Policy.
It was also submitted that in the Import Policies of 1982 83 to 1985 86 cloves were specified as crude drugs.
It was thus submitted that when clove was considered as crude drugs, there was no justification now to hold that it did not fall within Item 169 which provided for Drug/Drug intermediates.
It was further argued that cloves are used for treatment of dyspepsia and flatulence.
It is also used to relieve nausea and vomiting.
Clove oil is famous for medicinal use and specially for tooth problems.
It was also argued that in the Indian Materia Medica by A.K. Nadkarni the use of the cloves has been stated as follows : "Uses Cloves(unopened flower buds) are generally used as spice in curry foods and condiments.
Medicinally they are used to correct griping caused by purgatives, relieve flatulence, various forms of gastric irritability, colic, dyspepsia, and to increase the flow of saliva.
Combined with other spices and rock salt clove is given to relieve colic, indigestion and vomiting and to many other uses.
" It was submitted that in the Indian Pharmaceutical Codex issued by the Counsel of Scientific & Industrial Research, New Delhi the Action and Uses of cloves have been stated as under : "Action and Uses Clove is one of the most stimulant of aromatics.
It is carminative and is used in treatment of flatulence and dyspepsia.
It is sometimes administered in the form of powder or an infusion to relieve nausea and vomiting, correct flatulence and excite languid digestion.
" It was thus argued that the High Court committed an error in holding that clove was not a Drug/Drug intermediate.
On the other hand, it was submitted by Mr. Tulsi, Learned Additional Solicitor General that Para 167 of the Policy clearly provided that import of cloves could be allowed only against licences and there was no question of applying Item 169 of List 8 Appendix 6 which provided for Drugs/Drug intermediate not elsewhere specified.
It was also submitted that in the common parlance as well as in trade and commerce, the cloves are always considered as spice and not as a drug or drug intermediate.
It was submitted that the cloves are sold as spice in a `Kirana ' shop and not as drug in a chemist shop.
1001 In order to appreciate the controversy raised before us it would be necessary to reproduce Para 167 contained in Chapter XIII and Item 169 appearing in Part I of List 8, Appendix 6 of the Import & Export Policy, 1991 93 Vol.
I: "Import of Spices: 167.
(1) Import of (1) Cloves (2) Cinnamon/Cassia (3) Nutmeg and (4) Mace will be allowed against licences.
Such licences may be granted to those who imported these items during any of the financial years from 1983 84 to the preceding licensing year.
Import licences will be issued on the basis of the best year 's imports of an item from 1983 84 to the proceding licensing year.
The percentage entitlement as well as minimum value of licence will be as notified by the Chief Controller of Imports & Exports.
From the licensing year 1991 92, applicants will be required to furnish evidence of exports of Indian spices, during the preceding licensing year, for a value equal to the value of the import licence granted during the preceding licensing year.
Only exports of (1) Cardamom (small), (2) all Spices/spice products in approved consumer packs of 450 gms.
or less except spice oils and oleoresins and saffron (3) Herbal spices such as rosemary, thyme, terragon, sage, etc.
(4) Vanila (5) Black cumin, (6) Star anise, (7) Kokum, (8) Garlic, (9) Cardamom (large), (10) Bishopsweed, (11) Caraway and (12) Cumin seed, will be taken into account for the above purpose.
Items may be added or deleted by the Chief Controller of Imports & Exports as and when considered necessary in public interest.
(2) Exports referred to in sub paragraph (1) above should be direct exports by the applicant in his own name with the export proceeds i.e. the foreign exchange realisation in his own name, or exports through the Consortium of Spices Exporters, membership of which is to be confined only to dealers of spices who want to avail of the facility for exports through the Consortium.
Documents required to be furnished alongwith the application for grant of licences for spices shall be as provided in sub paragraph 166(6) above.
(3) Actual users who have no past imports will also be eligible 1002 for licence on the recommendation of the sponsoring authority and approval by the Headquarters Supplementary Licensing Committee.
(4) Applications for import of spices are to be made to the licensing authority concerned.
" Item 169 in Part I of List 8, Appendix 6 : "Drugs/Drug intermediates not elsewhere specified.
" In the present case we are concerned with the Import Policy of 1990 93 and not any earlier Policy.
The appellant had obtained the licence on 29th November, 1990 and has imported the cloves in May, 1991 and as such the import of cloves in question shall be governed by the provisions contained in the Import Policy of April 1990 93, and not by any meaning given to cloves in any earlier Policy.
It cannot be disputed that the Government has power to modify or change its Import and Export Policy.
Para 167 under Chapter XIII of the present Policy clearly provides the heading Import of Spices and under this heading of spices it further makes a mention that import of cloves, Cinnamon/Cassia, Nutmeg and Mace will be allowed against licences.
Thus, it is clear beyond any doubt that cloves have been included under the heading spices and the import of cloves is only permissible against specific licences obtained in the manner provided in Para 167.
In face of the above provision dealing with the import of spices which specifically includes cloves, the general provision of Item 169 mentioning Drugs/Drug intermediates cannot be applied.
When Para 167 provides for obtaining specific licence for cloves, there is no necessity of finding its meaning from Policies or its use as medicine.
As regards import of spices, there is a clear provision under Para 167 and it would govern the import of cloves.
That part we are in agreement with the view taken by the High Court that in the common parlance as well as in trade and commerce, clove is treated as spice and not drug.
It is a matter of common knowledge that the cloves are sold in a `Kirana ' shop and not in the shop of a chemist or druggist.
Thus, we find no error in the view taken by the High Court and this appeal having no force is dismissed with no order as to costs.
N.P.V. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant obtained, by transfer, an Import Licence for the import of admissible Items as per Para 220 (2), (3), (4) and (6) of the Import Policy 1990 93 Vol.
I and placed an order on a foreign firm for the supply of cloves No. 1 quality.
On arrival of the goods in the Indian Port, the appellant filed Bill of Entry for the clearance of the goods for home consumption, and claimed clearance of the goods against the additional licence on the ground that the cloves were covered under Item 169 of Appendix 6, List 8, Part I of the Import and Export Policy, being Drugs/Drug intermediate not elsewhere specified.
" The Department relying on Para 167, which dealt with the import of spices, took the view that the cloves could be imported only against specific licence relating to cloves.
Hence the appellant filed a writ petition in the High Court for a direction to the respondent to clear the goods against the Bill of Entry filed by the appellant.
The High Court held that cloves could not fall within the expression "Drugs/Drug intermediate not elsewhere specified" and the import of the cloves without specific licence was not permissible, and that the licence relied upon by the appellant was not valid for the import of cloves.
In the appeal before this Court, it was contended on behalf of the appellant importer that in popular sense and trade parlance, clove was also used as drug intermediate, and that in the Import Policies of 1982 83 to 1985 86 cloves were specified as crude drug and the cloves and clove oil were used for treatment of dyspepsia, flatulence, etc., and tooth problems and, therefore, the High Court committed an error in holding that clove 998 was not a Drug/Drug intermediate, and that it did not fall within Item 169.
Dismissing the appeal of the Importer, this Court, HELD : 1.1 Para 167 under Chapter XIII of the Import Policy of April 1990 93 clearly provides the heading Import of Spices and under this heading of spices it further makes a mention that import of Cloves, Cinnamon/Cassia, Nutmeg and Mace will be allowed against licences.
Thus, it is clear beyond any doubt that cloves have been included under the heading Spices and the import of cloves is only permissible against specific licences obtained in the manner provided in Para 167.
In the face of this provision, dealing with the import of spices, which specifically includes cloves, the general provision of Item 169 mentioning Drugs/Drug intermediates cannot be applied.
[1002D E] 1.2 In the instant case the appellant had obtained the licence in November, 1990 and has imported the cloves in May, 1991 and as such the import of cloves in question, shall be governed by the provisions contained in the Import Policy of April, 1990 93, and not by any meaning given to cloves in any earlier Policy.
Therefore, when para 167 provides of obtaining specific licence for cloves, there is no necessity of finding its meaning from earlier Policies or its use as medicine.
There is a clear provision under Para 167 as regards import of spices and it would govern the import of cloves.
That apart, the High Court was right in holding that in the common parlance as well as in trade and commerce, clove is treated as spice and not drug.
It is a matter of common knowledge that the cloves are sold in a `Kirana ' shop and not in the shop of a chemist or druggist.
[1002C, F G]


judgement:
N: Criminal Appeal No. 144 of 1992.
From the Judgement and Order dated 27.9.1991 of the Karnataka High Court in W.P. No. 113 of 1991.
WITH Writ Petition (Crl.) No. 1394 of 1991.
C.S. Vaidyanathan and P.K. Manohar for the Appellant.
K.T.S. Tulsi, Addl.
Solicitor General, P. Parmeswaran, A.K. Srivastava, M. Veerappa and Kh.
Nobin Singh (For the State of Karnataka) for the Respondents.
The Judgment of the Court was delivered by section RATANAVEL PANDIAN, J.
Leave granted.
The appellant/petitioner K.P.M. Basheer by the above appeal is challenging the correctness and legality of the order dated 27th September 1991 made by the High Court of Karnataka dismissing the Writ Petition filed by the appellant challenging the legality and validity of the order of detention dated 7.1.1991 passed by the State of Karnataka.
The first respondent in the appeal, namely, the State of Karnataka in exercise of the powers conferred by the Section 3(1) of the (hereinafter 1077 referred to as `the Act ') passed the impugned detention order on 7th January 1991 with a view to preventing him from engaging in keeping and transporting smuggled goods falling within the mischief of Section 3(1)(iii) of the Act.
The appellant was directed to be detained and kept in the custody of the central prison, Banglore.
The brief facts of the case which led to the passing of the impugned order can be summarised as follows: On 12.11.1990 the Superintendent of Central Excise on information interrogated the appellant at the Balgaum bus stand on his arrival from Bombay in the presence of some panchas and recorved two gold pellets with foreign markings each weighing ten tolas, wrapped in a paper packet from his front side right watch pocket of his pant.
The appellant was not having any valid permit and also was not able to give any satisfactory explanation for possessing the gold pellets.
Therefore, the Superintendent entertaining a reasonable belief that they were smuggled gold pellets recorded the statement of the appellant.
The State Government on the information passed on by the sponsoring authority passed the impugned order on 7.1.1991 on being subjectively satisfied of the necessity of passing the impugned order on the materials placed before it.
The detention order was served on the detenu only on 28.6.1991 from which date onwards he has been detained.
Challenging the detention order, the petitioner filed a Writ Petition No. 113/91 before the High Court of Karnataka and raised several contentions; those being (1) the order of detention is based on a solitary incident; (2) there has been an undue and prolonged delay in serving the order on the detenu; and (3) the materials placed before the detaining authority were not sufficient for drawing the requisite satisfaction for passing the impugned order.
The High Court rejected all those contentions and dismissed the Writ Petition.
Hence this appeal.
Before this Court the petitioner has filed a separate Writ Petition under Article 32 of the Constitution of India raising certain additional grounds.
Those grounds are: (1) The detenu made a request to the detaining authority to forward a copy of his representation to the Central Government and that the detaining authority has not forwarded the same to the Central Government as requested by him.
Even assuming that it has been forwarded, his represe tation has not been disposed of in time and as such there is violation of Article 22(5) of the Constitution of India.
1078 (2) The normal criminal process which would be adequate to take care of the possession of the gold has not been followed; and (3) The first respondent in the Writ Petition (Union of India) has failed in its duty to inform the petitioner regarding the Government instruction issued to the sponsoring agencies not to make an order of detention in cases where the value of the smuggled goods is less than Rs.1 lakh.
In the Writ Petition both the State Government as well as the Central Government have filed their counter affidavits refuting all the additional grounds.
Before scrutinising the additional grounds raised in the Writ Petition, we shall now examine the contentions raised in the appeal and find out whether the order of the High Court warrants interference.
Mr. C.S. Vaidyanathan, the learned counsel appearing on behalf of the appellant contends that the delay of more than five months in executing the order of detention is not only an inordinate and unreasonable one but also stands un explained and on that ground the High Court ought to have set aside the order of detention.
According to him, the High Court has not gone deep into that question but summarily disposed of the same holding "The explanation offered by the 1st respondent, in para 9 of the statement of objection is quite acceptable.
" Of course, this contention has not been specifically taken in the Memorandum of Appeal, but there can be no bar to advance a legal argument in a case of this nature and especially when such a contention has been raised before the High Court.
We want through the explanation given in para 9 of the counter affidavit filed on behalf of the first respondent by the then commissioner and Secretary to Government, Home Department.
It is not denied that the detention order was executed after a period of 5 months and 11 days.
What the first respondent states is that various efforts were taken to trace the detenu at Tellicherry at the address given in the grounds of detention as well as in the Bombay address, but he could not be secured.
Further it has been stated that though the arresting officers attempted to secure him at the Court of Chief Judicial Magistrate at Belgaum on 6.3.91, 28.3.91 and 14.5.91 on which dates the criminal case aS against him stood posted before that court, the officers could not do so as the appellant did not appear before the court for hearing.
Further it is mentioned that though COFEPOSA Section in the office of the Collec 1079 torate of Customs requested the State Government on 19.4.91 to initiate action under Section 7(1)(b) of the Act it was not done so because the seizing unit was asked to make one more attempt to trace out and detain the appellant.
This explanation is not a satisfactory and reasonable one for the following reasons : (1) No sufficient cause is shown for not taking any action under Section 7 of the Act.
(2) It appears from the paragraph 9 of the counter that the officers came to know of the correct address of the appellant at Bombay, but they could not trace him.
It may be pointed out that the Bombay address at which place the appellant detenu was attempted to be secured is not given in the counter.
Had it been given, the Court would have been in a position to verify the averments made in the grounds of detention stating that the address at Bombay given by the appellant was a fictitious one.
In paragraph 17 of the Writ Petition filed before the High Court, the appellant has asserted that he appeared before the Asstt.
Collector of Customs, Marine Lines, Bombay on 6.2.91 and 20.2.91 but no attempt was made to arrest and detain him.
This specific averment is not all denied in the counter.
This indicates that the arresting officers did not take any real and genuine effort to secure and detain the appellant.
The explanation now offered stating that the appellant was fugitive, eluding the dragnet of the detention order cannot be accepted, because during the alleged period of search he has appeared before the Assistant Collector of Customs, Bombay on two occasions during Feb. 1991, that is after passing of the detention order.
All the above points show that no serious and sincere effort appears to have been taken by the arresting officers and that there was only exchange of correspondence between the Department and the arresting officers.
It is incomprehensible as to why no effort has been made to secure the appellant/detenu during the two days, namely, on 6th and 20th February when he appeared before the Assistant Collector of Customs.
No supporting affidavits or documents are filed to substantiate the averments made in the counter.
Incidentally, it may be mentioned that though the two gold pellets (the contrabans) were seized from the appellant on 1080 12.11.90 the authorities concerned passed these orders only on 7.1.1991, i.e. nearly after two months.
Under these circumstances, we are of the view that the order of detention cannot be sustained since the `live and proximate link ' between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him.
As we have now come to the conclusion that the order of detention is liable to be set aside on this ground alone we are not dealing with other contentions raised in the Memorandum of Appeal as well as in the Writ Petition.
Hence for the reasons stated above we allow the appeal, set aside the order of the High Court and quash the impugned detention order and direct the detenu to be set at liberty forthwith.
In view of the order in this present appeal, no order is necessary in the Writ Petition.
R.P. Appeal allowed.

summary:
The appellant, on 12.11.1990, was found carrying two gold pellets with foreign markings each weighing ten tolas, without any valid permit.
The order of detention under S.3(1) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was passed on 7.1.1991.
The detention order was served on him on 28.6.1991.
The Writ Petition challenging the detention order, inter alia, on the ground of undue and reasonable delay in its execution was dismissed by the High Court.
The detenu filed the appeal by special leave against the High Court 's order as also the writ petition under Article 32 of the Constitution before this Court.
Allowing the appeal and disposing of the writ petition, this Court, HELD: 1.1 The order of detention cannot be sustained since the `live and proximate link ' between the ground of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him.
The order of detention is liable to be set aside on this ground alone.
[p. 1080A B] 1.2 Though the two gold pellets (the contrabands) were seized from the appellant on 12.11.1990, the order of detention was passed on 7.1.1991, and the detention order was executed after a period of 5 months and 11 days.
{pp. 1078F; 1079G H; 1080A] 1076 2.1 No sufficient cause is shown for not taking any action under s.7 of the COFEPOSA Act.
The explanation that though COFEPOSA section in the office of the Collectorate of Customs requested the State Government on 19.4.1991 to initiate action under s.7(1) (b) of the Act it was not done so because the seizing unit was asked to make one more attempt to trace out the appellant is not satisfactory and reasonable one.
[pp. 1078G H; 1079A B] 2.2 No serious and sincere effort was taken by the arresting officers: There was only exchange of correspondence between the Department and the arresting officers.
It is incomprehensible as to why no effort was made to secure the appellant/detenu during the two days, namely, on 6th and 20th Feb.91, when he appeared before the Assistant Collector of Customs.
1079F G]


judgement:
Civil Appeal Nos. 2023, 2024 & 2025 of 1990.
With I.A. Nos. 7 9 of 1991.
From the Judgment and Order dated 28.6.89 & 16.3.90 of the Calcutta High Court in Appeal No. 498 of 1988.
A.K. Mitra, P.K. Chatterjee, Jaydip Kar and Ms. Radha Rangaswamy for the Appellants.
Narayan Shetty, Gopal Subramaniam, Atin Benerjee and D.P. Mukherjee for the respondents.
The Judgment of the Court was delivered by AHMADI, J.
These three appeals by special leave arise out of the Judgments & Order dated 28the June, 1989 passed by the Division Bench of the High Court of Calcutta and from the subsequent orders dated March 16, 1990 and March 30, 1990 made in pursuance thereof.
The brief facts 902 giving rise to these three appeals may be stated as under.
The West Bengal Registration Service comprising the Sub Registrar 's post was administered by the Judicial Department of the State.
Under the West Bengal (Revision of Pay & Allowances) Rules, 1951 (hereinafter called `the ROPA Rules ') the scale of pay for the said post was fixed at Rs. 100 250.
By a resolution dated May 22, 1952 the said post of Sub Registrar was directed to be regarded as Gazetted with effect from April 1, 1952 and thereafter by notification dated July 17, 1953 the governor, in exercise of powers conferred by Rule 188 of the Civil Service (Classification, Control & Appeal) Rules read with Articles 313 and 372 of the Adoption of Laws Order, 1950 and all other related powers, declared that the West Bengal Registration Service comprising (1) Registrar of Assurances, Calcutta, (ii) Inspector of Registration Offices, (iii) Departmental District Sub Registrars, (iv) Sub Registrar of Assurances, Calcutta (v) District Sub Registrars, and (vi) Sub Registrars shall, with effect from January 30, 1953, the date of constitution of the said service, be deemed to be included in the State Service.
The respondents who belong to the said service contend that after the issuance of the said notifiction a commitment was made by the State Government that sub Registrars would be accorded all the privileges admissible to officers belonging to the State Service.
Notwithstanding the said commitment the respondents contend that their pay scale was not revised to Rs.200 400 which was the lowest pay scale admissible to State service officers.
Thereafter pursuant to the recommendation of the Pay Committee, the pay scale underwent an upward revision but the Sub Registrars were placed in the revised scale of Rs. 200 400 which corresponded to the old scale of Rs. 100 250, even though the minimum scale for State service employees was raised to Rs. 250 550 under the ROPA Rules, 1961.
The First (State) Pay Commission was then constituted in 1967.
That body examined the grievance of this service and observed that it was an extremely ill paid service.
After evaluating the job requirements, recruitment standard and responsibilities attached to the post belonging to the said service it recommended a scale of Rs. 425 825 for Sub Registrars and corresponding higher scales for the posts, the highest being Rs. 850 1600 for Registrar of Assurances, Calcutta and inspectors of Registration Officers.
It appears that this recommendation did not find favour with the State Government.
This is obvious from the fact that under the ROPA Rules, 1970, the pay scale for the post of Sub Registrar was fixed at Rs. 300 600 only.
Pursuant 903 to the recommendations of Second (State) Pay Commission the pay scale for the post was revised to Rs. 425 1050 under RUPA Rules, 1981.
This was Scale No. 11.
According to the respondents they ought to have been placed in scale No. 17 which carried a pay scale of Rs. 660 1600 but, contend the respondents, grave injustice was done to them because of the biased and negative attitude of the Finance Department of the State Government.
It was contended that since the basic minimum pay scale for State Service officers was fixed at Rs. 660 1600, there was no valid reason to deny the same to the Sub Registrars and to deny higher pay scales to officers above the level of Sub Registrars in the West Bengal Registration Service.
Feeling aggrieved by the decision of the State Government the respondents, therefore, filed a Writ Petition No. 1993 of 1987 in the High Court of Calcutta under Article 226 of the Constitution for a Mandamus to award to the Sub Registrars the pay scale No. 17 of Rs. 660 1600 with all other privileges admissible to State service officers.
In the said writ petition the learned Single Judge of the High Court passed certain interim orders against which an appeal No. 498 of 1988 was preferred before a Division Bench of the High Court.
At the hearing of the said appeal the Division Bench felt that it would be proper to dispose of the writ petition itself on merits and accordingly it heard the writ petition by consent of parties instead of disposing of the appeal against the interim order and leaving the hearing of the writ petition to the learned Single Judge.
The Division Bench of the High Court allowed the writ petition and directed that the Sub Registrars should be placed in the pay scale of Rs. 660 1600 with effect from April 1, 1981 and their pay scales should be fixed nationally on that basis without paying the difference in salary up to January 1, 1986.
The arrears of salary for the subsequent period was, however, directed to be paid within 8 weeks from the date of the judgment.
Certain other directions were also given but it is not necessary to notice them.
It may here be mentioned that during the pendency of the writ petition the Third (State) Pay Commission constituted by the State Government had submitted its report sometime in December, 1988.
Before the said body it was represented on behalf of the Sub Registrars that they should have been placed in the pay scale of Rs. 600 1600 instead of Rs. 425 1050 as that was the basic minimum scale for State service and the scale for higher posts in the West Bengal Registration Service should be correspondingly raised.
The Commission spurned this request as in its opinion the duties and responsibilities of the Sub Registrars did not justify 904 the higher pay scale.
Pursuant to the recommendations of the Pay commission the ROPA Rules, 1990 came to be issued whereunder the Sub Registrars were placed in the revised scale No. 11 of Rs. 1390 2970.
The High Court took notice of the recommendations of the Pay Commission as well as the ROPA Rules, 1990 while disposing of the writ petition by its judgment dated 28th June, 1989.
After the High Court 's Judgment awarding Scale No. 17 to the Sub Registrars, the respondents took out an application for interim relief seeking permission to exercise option for the corresponding Scale No. 17 of Rs. 2200 4000 and for granting an option to officers above the level of Sub Registrars for placement in the corresponding Scales Nos. 18 and 19 with effect from April 1, 1981.
The Division Bench of the High Court passed an ad interim order dated March 16, 1990 permitting the Sub Registrars to opt for the revised Scale No. 17.
The Civil Appeal No. 2023 of 1990 is against the main judgment of the High Court dated June 28, 1989.
Civil Appeal No. 2024 of 1990 is against the interim order dated March 16, 1990 by which the Sub Registrars were permitted to opt for the revised Scale No. 17.
On March 19, 1990 the respondents took out an application for clarification of the order dated March 16, 1990.
The High Court while disposing of this application permitted the officers belonging to the posts above the level of Sub Registrars to opt for corresponding Scales Nos. 18 and 19.
Civil Appeal No. 2025 of 1990 is against that order.
Since the subsequent two appeals Nos.
2024 and 2025 of 1990 also flow from the main judgment dated June 28, 1989, which has given rise to Civil Appeal No. 2023 of 1990 we have thought it proper to dispose of all the three appeals by this common judgment.
The history of the West Bengal Registration Service has been traced by the High Court right from 1826 but it is unnecessary to re state the same.
Suffice it to say that except the top post of the Registrar of Assurances, Calcutta, the remaining cadres in the said service belonged to the Subordinate Services of the State.
Generally speaking the West Bengal Services were divided into (i) Provincial Service and (ii) Subordinate Services leaving out certain special categories of posts.
Subordinate Services comprised certain minor administrative, executive and ministerial posts to which appointment could be made by the Local Government or by an authority subordinate thereto, specially empowered.
The other cadres and posts belonged to the Provincial Service.
By a notification dated Novem 905 ber 25, 1949 recruitment rules were framed which provided that recruitment of Sub Registrars shall be made though West Bengal Civil Service examination.
The minimum educational qualification for Sub Registrars was prescribed as `graduate of a recognised University '.
Subsequently, by a resolution dated May 22, 1952 it was provided that Sub Registrars shall be regarded as Gazetted Officers with effect from April 1, 1952.
Soon thereafter by a notifiction dated July 17, 1953 the West Bengal Registration Service was included in the State Service.
Thus according to the respondents the position that emerged after the notification of 1953 can be summed up as under : (i) The West Bengal Registration Service was expressly declared to be in the West Bengal State Service (the former Provincial Service); (ii) The recruitment rules of the State Service were identical to the recruitment rules of the other State Services.
(iii) Gazetted status and concomitant privileges of State Services were conferred on the Sub Registrars belonging to the West Bengal Registration Service; and (iv) The powers relating to the recruitment, conditions of service and disciplinary matters in regard to members belonging to the West Bengal Service including the Sub Registrars were to be exercised by the State Government.
By a notification dated July 6, 1966, the West Bengal Registration Service was declared as the West Bengal Junior Registration service and subsequently by a notification dated October 17, 1966 rules were framed under Article 309 of the Constitution which superseded all previous rules on the subject and provided that appointment to the post of Sub Registrar shall be made by the Government through the West Bengal Civil Service (Executive) and Allied Services Examination.
The educational qualification for appointment to the post of Sub Registrar was stated to be a graduate of a recognised University and the age criteria was fixed as not below 21 years and not exceeding 24 years.
The system of classification of Government employees into Gazetted and Non Gazetted and Classes I, II, III, & IV adopted hitherto was done away with by the notification dated September, 25, 1978 and Government employees were placed in Groups A, 906 B,C, and D according to pay and scale of pay.
The new grouping of services was not expected to cause any immediate disturbance in the existing framework of job charts, responsibilities and facilities.
Rule 5 (4) of the West Bengal Service Rules, 1971, Part I, was amended and read as under : "5(4) West Bengal State Services means those services and posts under the Administrative control of the Government which have been classified as Group A, Group B, Group C and Group D." A note at the foot thereof provided as under : "Note 1(a) Subject to the provisions of paragraph (b) services or posts under Group a, Group B, Group C and Group D shall consist of the services or posts specified respectively against them in the table below : section No Classification of Classification of the Post and Services Services and posts 1.
Group `A ' All Government employees drawing a pay or a scale of pay with the maximum above Rs. 1,170.
Group `B ' All Government Employees drawing a pay or a scale of pay with a maximum of Rs. 1170 or below, but above Rs. 700.
Group `C ' All Government employees drawing a pay or a scale of pay with a maximum of Rs. 700 or below, but above Rs. 415. 4.
Group `D ' All Government employees drawing a pay or a scale of pay with a maximum or Rs. 415 or below.
(a) Government may, be special order include any other class or posts carrying any pay or scale of pay in a class of service 907 consisting of posts or services carrying a higher pay or scale of pay.
(b) If a service consists of posts with more than one time scale or if there be a Selection Grade, pay attached to a service or post, post carrying the different time scales or the Selection Grade pay may be classified in different services according to the pay or the maximum scale of pay of the post.
Provided further that the aforesaid classification of posts and services shall not interfere with other existing framework of duties, functions responsibilities and facilities of Government employees on the basis of the existing classification.
" This classification had an impact on the recommendations made by the Pay Commission which were finally approved under the ROPA Rules, 1981.
This, in brief, is the history of the West Bengal Registration Service.
The grievance of the respondents was that even after the Sub Registrars were placed in the Gazetted category and their service was declared to be included in the State Service and entry into service was through a competitive examination with the minimum qualification for appointment being graduation, the pay scale for sub Registrars was fixed at Rs. 100 250 notwithstanding the Government notification of 1953 providing that the said officers belonging to the Registration Service will enjoy the benefits and privileges admissible to State Service officers.
On the representation made by the officers of the Registration Service.
the then Chief Minister granted the relief of Rs. 50 at the minimum and maximum of the pay scale thereby virtually enhancing the pay scale from Rs. 100 250 to Rs. 150 300.
Thus after the report of the Pay Committee when the scale of pay of Sub Registrar was revised to Rs. 200 400 in effect the pay at the minimum got reduced by Rs. 10 as the Sub Registrars were drawing Rs. 5 as DA and Rs. 5 as CCA besides Rs. 50 granted pursuant to the orders of the then Chief Minister.
This was totally overlooked by the Finance Department while drawing up the ROPA Rules, 1961.
Subsequent representations for upward revision of the scale were ignored by the Finance Department till the First (State) Pay Commission came to be constituted.
That body observed as under : "This is an extremely ill paid service.
The work that the 908 Registration Officers have to do is not negligible in importance.
The work involves the interpretation of documents and the assessment of stamp duties and registration fees with reference to the value of the subject matter involved.
The scale of pay should be improved.
The following scales are recommended : (a) Registrar of Assurances and Inspectors of Registration Offices Rs. 850 50 1000 60 1600.
(b) District Registrars and Sub Registrars of Assurance, Calcutta Rs. 475 35 825 EB 50 1325.
(c) District Sub Registrars Rs. 450 15 600 EB 25 825.
(d) Sub Registrars Rs. 425 10 475 15 700.
The majority members however, recommended the higher scale of Rs. 450 15 600 25 825 for Sub Registrars.
" Notwithstanding the said recommendation the pay scale for Sub Registrars was fixed at Rs. 300 600 under ROPA Rules, 1961.
The respondents contend that the injustice done to them in ignoring the above extracted recommendation of the Pay Commission resulted in their being placed in the equivalent Scale No. 11 throughout by the subsequent pay Commissions also.
A strong letter of protest written by the Head of the Department also did not yield the desired result thereby necessitating the filing of a writ petition in which the impugned order came to be passed.
It is in this background that we must examine the correctness or otherwise of the impugned judgment and the subsequent impugned interim orders made by the High Court.
The partition of Bengal in the wake of independence necessitated grant of relief to millions of persons who were uprooted and their rehabilitation.
This brought into existence new departments and organizations increasing the number and categories of employees required to handle the enormous task.
The history of pay revision in the State of West Bengal would show that under the ROPA Rules, 1950 the total number of pay scales was reduced from 500 to 78 but by the time the Pay Committee was appointed in 1959 the number had once again gone up to 143 but was reduced to 39 by the Pay Committee.
The number of pay scales again proliferated from 39 to 81 but the First (State) Pay Commission brought it 909 down to 34.
The second (State) Pay Commission appointed in 1977 found 36 standard scales, 19 new intermediate selection grade scales and 20 non standard pay scales besides a few pay scales introduced on different dates for non Governments employees.
That body reduced the number of pay scales to 29.
The Third (State) Pay Commission found the total number of pay scales to be 29 primary pay scales and brought it down to 24 pay scales.
The situation thus created on account of the increase in the stratification of administrative hierarchy and the consequential fragmentation of duties and responsibilities on the one hand and the reduction in the number of pay scales on the other necessitated higher initial pay and attaching of special pay to a increasing number of posts to avoid anomalies in the pay structure thereby throwing an increased financial burden on the State Government.
The minimum pay fixed for State employees has always been higher than that prescribed for Central Government employees.
When the pay structure was related to the index average 200 (1960 : 100) the minimum pay of Central Government employees was Rs. 196 per month while that of the State Government employees was Rs. 220; a weightage of Rs. 24 recommended by the Second (State) Pay Commission on account of dietary habits of State employees.
At the index average of 608 the minimum pay for Central Government employees has been fixed by the Fourth Central Pay Commission at Rs. 750 per month whereas the Third (State) Pay Commission has fixed the same at Rs. 800 per month.
The maximum pay for State Government employees has been fixed in the scale of Rs. 5900 200 7300.
For the old scale 11 (Rs. 425 1050) the new scale prescribed is Rs. 1360 2800.
The revised equivalent for the old scale No. 17 (Rs.660 1600) is Rs. 2200 4000.
With regard to the demand for higher pay scales for officers belonging to the Registration Service, the Pay Commission observed: "It has been represented to us that the scale of pay for the post of Sub Registrar should have been Rs. 660 1600 which is the basic scale for the State Services and that the scales of pay for the higher posts in the Registration Directorate as mentioned earlier should have been correspondingly higher.
In view of the duties and responsibilities of the posts we are of the opinion that upgradation of the scales of pay of these posts will not be justified.
The posts should carry the proposed scales of pay and special pay corresponding to their existing scales and special pay.
" 910 As pointed out earlier the High Court took notice of the revised scales fixed by this body and by subsequent orders directed that the Sub Registrars should be placed in revised scale No. 17, ie.
Rs. 2200 4000, and the officers above them should be placed in the revised scales Nos. 18 and 19.
In taking the view that the Registration Service was underpaid, the High Court was greatly impressed by the fact that the Sub Registrars were conferred gazetted status and the entire service was designated as State Service and being the head of office and the drawing and disbursing officer as well, he exercised administrative and financial power and now that the recruitment rule had been brought on par with the educational qualification as prescribed for Munsiffs, the pay scales of Sub Registrars ought to be the same and cannot be less than that of Munsiffs.
Strong reliance was also placed by the High Court on the observations of the First (State) Pay Commission, extracted earlier, in support of its conclusion that the State Government had arbitrarily brushed aside the demand to the Sub Registrars for higher wages.
Holding that the position of a Sub Registrar was equivalent to others in State Services, the High Court ruled that they were victims of hostile discrimination and the Government decision not to accept the weighty recommendations of the Pay Commission was wholly arbitrary and violative of Articles 14 and 16 of the Constitution.
In that view that it took it allowed the Writ Petition and awarded scale No. 17 (Rs. 660 1600 now revised to Rs. 2200 4000) to them and scales Nos. 18 and 19 to higher level officers in the same department.
It is against these orders that the present appeals are preferred.
From the resume of facts set out hereinabove it clearly emerges that prior to 1953 the post of Sub Registrars belonged to the Subordinate Service but by the notification dated July 17, 1953 it was placed in the State Service w.e.f. January 30, 1953.
Being the head of office, a drawing and disbursing officer with certain administrative and financial powers, and also required to perform certain quasi judicial functions, such as, interpreting recitals contained in the documents and provisions of concerned statutes and rules, counsel for the respondents contended that till 1981 when the educational qualification for entry into that post was graduation of any discipline, the Sub Registrars were entitled to be treated above members belonging to Junior Service and pay scale so determined but the State authority failed to do so.
Counsel further contended that after 1981 the additional qualification of a degree in law was added to the eligibility criterion and thus the same was brought on par with Munsiffs and hence 911 they should have been equated with Munsiffs in the matter of pay scale, since officers in all services recruited from practicing advocates were given the same scale.
Accepting this line of reasoning the Division Bench of the High Court concluded that the Government had acted arbitrarily and in violation of Articles 14 and 16 of the Constitution in not awarding scale No. 17 (Rs. 660 1600) earmarked for State Services by the Second (State) Pay Commission (which the Government had accepted and implemented) to the Sub Registrars.
It is thus manifest that the decision of the High Court was based on the facts (i) the post of the Sub Registrar was a gazetted post belonging to the State Service (ii) the First (State) Pay Commission had recommended a higher scale (which was still lower than the one demanded by the Sub Registrars) for Sub Registrars observing that it was an extremely ill paid service (a recommendation which was turned down by the Finance Department) and (iii) the eligibility criterion for entry into service was graduation up to 1981 and thereafter the requirement of a law degree was added to it, thus bringing the required educational criterion to that of a Munsiff.
The appellant contend that the High Court committed a serious error in revising the pay scale of Sub Registrars in exercise of its extraordinary jurisdiction under Article 226 of the Constitution in total ignorance of the settled legal position that pay fixation is essentially an executive function ordinarily undertaken by an expert body like a Pay Commission whose recommendations are entitled to great weight though not binding on the Government and ar not justiciable in a court of law since the court of law is not well equipped to take upon itself the task of job evaluation which is a complex exercise.
In support of this contention a catena of decisions beginning with the case of Parbat Kiran Maithani & Ors.
vs Union of India & Anr., ; and ending with the case of State of U.P. & Ors.
vs J.P. Chaurasia & Ors., ; at 29 was relied on.
The appellants also contest the contention that the Sub Registrars are a part of the constituted State Service which is awarded scale No. 17.
They contend that there is no such service as `Constituted State Service ' and therefore, the question of granting them scale No. 17 never arose.
On the contrary they point out that the employees are categorised as belonging to Group A, Group B, Group C, and Group D and are placed in one group or the other on the basis of evaluation of their work and the recruitment policy adopted by the Government.
By placing the Sub Registrars in scale No. 17 the High Court has given them a jump which is likely to give a severe 912 jolt to the pay structure and would destroy the verticle heirarchial relativities carefully built up by the Pay Commission.
The appellants, therefore, contend that the High Court had acted in haste in placing the Sub Registrars in Scale No. 17 without realising its impact on the pay structure.
For examination purposes the State Public Service Commission has placed the Sub Registrars in Group D whereas those in scale No. 17 fall in Group A. Those belonging to Group A are required to sit for six papers whereas those belonging to Group D are required to answer four papers only.
While those belonging to Group A are allowed to take one or more optional papers not exceeding three and have to appear for a compulsory personality test of 200 marks, those belonging to Group D are allowed only one optional paper and have not to appear for the personality test.
Thus the examination for Group A employees is far more stringent than for those belonging to Group D employees and, therefore, contend the appellants, they are not comparable and cannot be placed in the same pay scale invoking the equality clause in Article 14 of the Constitution.
Lastly, it is said that the financial burden which will fall on the State Government on the implementation of the impugned judgment will be in the vicinity of Rs. 1.45 crores which is not justified since the High Court has failed to appreciate the issues in their proper perspectives.
We find considerable force in the submissions made on behalf of the appellants.
We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission, etc.
But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary state action or inaction.
Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requistite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees.
This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements.
The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his 913 responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharges of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co ordinate with other departments, etc.
We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay scales to a reasonable number.
Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job charts in a common scale.
Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal.
While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies.
Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualification required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and verticle relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer 's capacity to pay, etc.
We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and verticle relativities have to be carefully balanced keeping in mind the hierarchial arrangements, avenues for promotion, etc.
Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well.
It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the registration service before him in his capacity as the Chairman of the Third (State) Pay Commission.
There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court 's interference is absolutely necessary to undo the injustice.
There can be no dispute that by Government Resolution No. 226 dated 22nd May, 1952 gazetted status was conferred on Sub Registrars w.e.f. 1st April, 1952.
So also there is no dispute that by notification dated 914 17th July, 1953 the Registration Service was, with effect from the date of its constitution, i.e, 30th January, 1953, included in the West Bengal State Services.
Subsequently, by a notification dated 10th October, 1953, all the entries in column I of the Schedule under the heading `Registration Department ' of the Bengal Subordinate Service (Discipline & Appeal) Rules, 1936 were omitted along with the corresponding entries in columns 2 to 5 thereof.
Thus, contend the respondents, the West Bengal Registration Service, including the Sub Registrars was brought on par with other Constituted State Services ', with effect from 30th January, 1953.
Chapter 18 of the Third (State) Pay Commission would show that the Constituted Service may comprise of tiers, such as, Subordinate Service, Junior Service and State Service with or without corresponding higher or senior service.
Paragraph 18.5 of that chapter shows: `There are 4 tiers of constituted service in some of the Government Departments viz., Higher or Senior Service, State service, Junior Service and Subordinate Service '.
Paragraph 18.6 recites that the State Services are generally in scale No. 17 (Rs. 660 1600).
The Junior Services are generally in scales Nos. 11 to 16 and the pay scales for Subordinate Services range from scale No. 4 to scale No. 13.
It would, therefore, appear that the contention of the respondents that the State Service employees were generally placed in scale No. 17 is prima facie accurate.
Yet that body turned down the plea of the Sub Registrars to be placed in scale No. 17 on the ground that the duties and responsibilities of the post did not justify upgradation of the scale as is evident from the observation extracted earlier.
This clearly shows that the Commission determined the pay scale for Sub Registrars keeping in view their duties and responsibilities.
Therefore, merely because the Sub Registrars were conferred gazetted status and the Registration Service was included in State Service did not entitle the Sub Registrars to be placed in the higher scale if their duties and responsibilities did not justify the same.
One of the basic principles for pay fixation is that the salary must reflect the nature of duties and responsibilities attached to the post, meaning thereby that the scale must be commensurate with the task to be performed and the responsibility to be undertaken by the holder of the post.
Merely because of conferment of gazetted status or placement in State Service, no qualitative change was brought about in the job performance of the Sub Registrars and their superiors.
Before November, 1949 appointments to the posts of Sub Registrars was made by nomination of candidates who were undergraduates or even 915 of lower academic qualification.
By the notification dated 25th November, 1949, made under section 211(2)(b) of the Government of India Act, 1935, the recruitment rules framed in supersession of all previous rules, the minimum educational requirement for Sub Registrars was raised to graduation.
The revised recruitment rules for Sub Registrars framed under the proviso to Article 309 of the Constitution dated 17th October 1966 also prescribed the minimum educational requirement as graduate of a recognised university.
By the subsequent notification dated 4th November, 1981 issued under the proviso to Article 309 of the Constitution, the recruitment rules of 17th October, 1966 were amended whereby rules 3 and 4 were replaced.
The newly inserted rule provided for recruitment to the posts of Sub Registrars on the basis of West Bengal Civil Service (Executive) and Allied Service Examination conducted by the State Public Service Commission and the selection was to be made in consultation with that body.
For direct recruitment the educational qualification was raised to a degree in law from a recognised University/Institute or equivalent qualification and experience of 3 years at the Bar.
Since this revised educational requirement is the same as required for Munsiffs, the High Court has thought it proper to place them in the scale of the latter i.e. scale No. 17 (Rs. 660 1600).
But in doing so the High Court has, with respect, failed to evaluate the difference in the nature of duties and responsibilities of a Munsiff and a Sub Registrar.
The duties and responsibilities of a Munsiff and a Judicial Magistrate are far more onerous than those of a Sub Registrar.
The Sub Registrar 's duties are relatively simple namely to receive, examine and register the document whereas the duties of a Judicial Officer at the floor level are to hear cases, examine witnesses, interpret and construe different laws, hear oral arguments and deliver reasoned judgments.
He has to keep abreast with a host of laws unlike a Sub Registrar who is expected to study only a couple of laws connected with the registration of documents like the Registration Act, the Stamp Act, etc.
The responsibilities of a Judicial Officer are also far greater than those of Sub Registrars.
Therefore, to compare the Sub Registrars with Judicial Magistrates Munsiffs is to compare unequals.
It would, therefore, be wholly arbitrary to place them in the same pay scale.
In our view, therefore, the High Court, with respect, committed a serious error in law in holding that the Government 's action in not granting the same pay scale to Sub Registrars was violative of Article 14 of the Constitution.
In fact to put them on par is wholly unjustified.
916 It was then submitted that the Third (State) Pay Commission had failed to notice the upward revision of the educational requirement for direct recruitment as Sub Registrars.
It was rightly pointed out that one of the inputs for pay determination is educational requirement for the post.
The higher the educational qualification the better would be the quality of service rendered and the end result would in the ultimate be far more satisfactory.
That indeed cannot be disputed.
But educational qualification is only one of the many factors which has relevance to pay fixation.
The complexity of the job to be performed and the responsibilities attached thereto are entitled to great weight in determining the appropriate pay scale for the job.
Prima facie there appears substance in the grievance of the Sub Registrars that while the minimum educational qualification for direct entry into the post has been periodically raised, the level of pay scale for the post has not undergone any change, whatsoever.
We think the State Government ought to re examine the question of the appropriate pay scale for Sub Registrars in the light of the above and if it decides to upgrade the pay scale it may also consider if the pay scales of their superiors in the hierarchy need an upward revision.
In the result we allow these appeals and set aside the judgement and orders of the High Court impugned herein but make no order as to costs throughout.
We, however, direct the State Government to re examine the question of the appropriate pay scale for Sub Registrars within three months by a speaking order after giving a hearing to the representative of the respondent association and communicate the decision so taken to the association.
If the State Government decides on the upward revision of the salary of the Sub Registrars, it will simultaneously consider the question of upward revision of the pay scales of higher posts in the department.
I.A. Nos.
7 9 of 1991 will also stand disposed of.
T.N.A. Appeals allowed.

summary:
The West Bengal Registration Service comprised the post of Sub Registrars and other posts above the level of sub Registrars.
By a resolution dated May 22, 1952 the post of Sub Registrar was directed to be regarded as gazetted w.e.f.
1st April, 1952.
Thereafter by a Notification dated 17th July, 1953 the Registration Service was, with effect from the date of its constitution i.e. 30th January, 1953 included in the West Bengal State Service.
The respondents alleged that notwithstanding the commitment made by the 1953 Notification that they would be accorded all the privileges admissible to officers belonging to State Service, their pay scale was not revised equivalent to the minimum pay scale admissible to State Service Officers.
Even when pursuant to the recommendations of the Pay Com 898 mittee the pay scales were revised they were placed on a scale which was lower than the minimum scale payable to State Service Employees.
Further though the First State Pay Commission recommended a Scale of Rs. 425 825 for Sub Registrars yet the recommendation did not find favour with State Government and their pay scale was fixed at Rs. 300 600.
Also pursuant to the recommendations of the Second State Pay Commission their pay scale was revised to Rs. 425 1050 i.e. scale No. 11, although the minimum scale fixed fog the State Service Officers was Rs. 660 1600 i.e. Scale No. 17.
Feeling aggrieved by the decision of the State Govt.
the respondents filed a writ petition in the High Court of Calcutta under Article 226 of the constitution for a mandamus to award scale No. 17 of Rs. 660 1600 as admissible to State Service Officers .
During the pendency of the writ petition the Third State Pay Commission submitted its report.
This Commission also rejected their claim of pay scale of Rs. 660 1600, the minimum scale for State service, on the ground that their duties and responsibilities did not justify the higher pay scale.
By its judgment dated 28th June, 1989, a Division Bench of the High Court allowed the writ petition and awarded revised scale No. 17 by holding that the Government had acted arbitrarily and in violation of Articles 14 and 16 of the Constitution in not awarding scale No. 17 to the Sub Registrars.
The High Court based its decision on the facts that (i) the post of Sub Registrar was a gazetted post belonging to the State Service; (ii) the first State Pay Commission recommended a higher pay scale which was turned down by Finance; and (iii) the revised educational qualification for Sub Registrar, a law degree, was the same as required for Munsiffs.
Subsequently the respondents filed an application for interim relief seeking permission to exercise option for the corresponding scale No. 17 of Rs. 2200 4000 equivalent to the old scale of Rs. 660 1600 which was allowed by the High Court by its order dated 16th March, 1990.
They also filed an application seeking clarification of the Court 's order dated March 16, 1990 and by its order dated 30th March, 1990 the High Court permitted the officers belonging to the posts above the level of Sub Registrars to opt for corresponding scales Nos. 18 and 19. 899 In appeals to this court against the judgment of the High Court dated 28th June, 1989 and orders dates 16th and 19th March, 1990 it was contended on behalf of the appellant that (i) the High Court committed a serious error in revising the pay scale of sub Registrars in exercise of its extraordinary jurisdiction under Article 226 of the Constitution because pay fixation was essentially an executive function ordinarily undertaken by an expert body like a Pay Commission whose recommendations are not justiciable; (ii) there being no scheme as `Constituted State Service ' the employees have been categorised as Group `A ', `B ', `C ', and `D ' on the basis of evaluation of their work and the recruitment policy.
For examination purposes the State Public Service Commission has placed the Sub Registrars in Group `D ' whereas those in scale No. 17 fall in Group `A '.
Therefore, they are not comparable and cannot be placed in same pay scale.
On behalf of the respondents it was contended that since after 1981 the qualification of a degree in law, as required in the case of Munsiffs, was also added to their eligibility criterion, they should be equated with Munsiffs in the matter of pay scale.
Allowing the appeals and setting aside the orders of the High Court, this Court, HELD : 1.
The High Court committed a serious error in law in holding that the Government 's action in not granting the scale No. 17 to Sub Registrars was violative of Article 14 of the Constitution.
[915G] 2.
Equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions etc.
But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary state action or inaction.
[912E F] Parbat Kiran Maithani & Ors.
vs Union of India & Anr.
, ; ; State of U.P. & Ors.
vs J.P. Chaurasia & Ors., ; , cited.
Ordinarily a pay structure is evolved keeping in mind several factors, e.g. (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educa 900 tion/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and verticle relativities with similar jobs, (viii) public dealings, (ix) satisfaction level; (x) employers ' capacity to pay etc.
These factors have to be kept in view while evolving a pay structure and the horizontal and verticle relativities have to be carefully balanced keeping in mind the hierarchial arrangements, avenues for promotion etc.
Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well.
[913C E] 4.
One of the basic principles for pay fixation is that the salary must reflect the nature of duties and responsibilities attached to the post, meaning thereby that the pay scale must be commensurate with the task to be performed and the responsibility to be undertaken by the holder of the post.
Merely because the Sub Registrars were conferred gazetted status and the Registration Service was included in State Service did not entitle the Sub Registrars to be placed in the higher scale if their duties and responsibilities did not justify the same.
By conferment of gazetted status or placement in State Service, no qualitative change was brought about in the job performance of the Sub Registrars and their superiors.
[914E G] 4.1 The High Court failed to evaluate the difference in the nature of duties and responsibilities of a Munsiff and a Sub Registrar.
The duties and responsibilities of a Munsiff and a Judicial Magistrate are far more onerous than those of a Sub Registrar.
The Sub Registrar 's duties are relatively simple namely to receive, examine and register the document whereas the duties of a Judicial Officer at the floor level are to hear cases, examine witnesses, interpret and construe different laws, hear oral arguments and deliver reasoned judgments.
He has to keep abreast with a host of laws unlike a Sub Registrar who is expected to study only a couple of laws connected with the registration of documents like the Registration Act, the Stamp Act etc.
The responsibilities of a Judicial Officer are therefore far greater than those of Sub Registrars.
Therefore, to compare the Sub Registrars with Judicial Magistrates Munsiffs is to compare unequals.
It would, therefore, be wholly arbitrary to place them in the same pay scale.
[915D g] 5.
One of the inputs for pay determination is educational requirement for the post.
The higher the educational qualification the better 901 would be the quality of service rendered and the end result would in the ultimate be far more satisfactory.
That indeed cannot be disputed.
But educational qualification is only one of the many factors which has relevance to pay fixation.
The complexity of the job to be performed and the responsibilities attached thereto are entitled to great weight in determining the appropriate pay scale for the job.
Prima facie there appears substance in the grievance of the Sub Registrars that while the minimum educational qualification for direct entry into the post has been periodically raised, the level of pay scale, for the post has not undergone any change, whatsoever.
[916A C] 6.
The State Government is directed to re examine the question of the appropriate pay scale for Sub Registrars by a speaking order after hearing the representatives of the respondent association.
If the State Government decides on the upward revision of the salary of the Sub Registrars, it will simultaneously consider the question of upward revision of the pay scales of higher posts in the department.
[916E F]