judgement:
vil Appeal No. 113 of 1953.
Appeal from the Judgment and Decree, dated the 25th day of March, 1952, of the High Court of Judicature at Bombay (Bavdekar and Dixit JJ.) in Appeal No. 554 of 1951, from Original Decree arising out of the Judgment and Decree, dated the 30th day of June, 1951, of the Court of the Joint Civil Judge, Senior Division of Thana, in Special Suit No. 12 of 1949.
K. section Krishnaswamy lyengar, (J. B. Dadachanji, V.B. Rege and Ganpat Rai, with him) for the appellants.
section B. Jathar, R. B. Kotwal and Naunit Lal for respondent No. 1. 1954.
April 12.
The Judgment of the Court was delivered by GHULAM HASAN J.
This appeal is brought by leave of the High Court of Bombay against the judgment and decree of a Division Bench of that Court (Bavdekar and Dixit JJ.) dated March 25, 1952, modifying the judgment and decree of the Civil Judge, Senior Division of Thana, dated June 30, 1951.
The appeal arises out of a partition between 6 brothers of a joint Hindu family.
The joint family carried on joint family business of a grocery shop, liquor shops, a ration shop, a motor bus service and also moneylending under the name of "Sontakke Brothers".
The family also Possessed immovable and movable property.
Balkrishna Sitaram Sontakke is the eldest of the brothers and is the plaintiff respondent in the present appeal.
He will be referred to hereafter as the plain tiff.
It is common ground that up to 1944 the brothers were living and messing together and the income from 101 the family business used to be kept with the plaintiff.
From April 14, 1945, the situation changed and the parties began to appropriate the proceeds of the various businesses carried on by them separately to themselves.
The plaintiff was running the liquor shops, defendants Nos.
I and 2 who are the appellants, were carrying on the motor bus service business while defendant No. 4 was running the grocery shop.
The parties tried to have partition effected between them through arbitrators but the attempt failed.
On June 29, 1945, all the five brothers filed a suit for partition against the plaintiff of all joint family properties including the accounts of all the businesses.
The suit was numbered 39 of 1945.
It was compromised on March 7, 1946.
By this compromise it was declared that prior to 1942 all the accounts of the various businesses had been correctly maintained and shown, that the parties had agreed to have arbitrators appointed through Court for examining the accounts from 1942 up to March 31, 1946, and for determining the amount due up to that date.
Each of the brothers was to get one sixth share in the cash balance as found on March 31, 1946, upon examination of accounts by the arbitrators.
All the movable property of the joint family including the stock in trade of all the family businesses was to be divided equally among all the brothers.
The compromise further declared that the plaintiff was to have one sixth share in the motor garage and that defendants 1 and 2 were to pay the price of one sixth share to him.
These are the material provisions of the compromise.
One of the brothers was a minor and the Court finding the compromise to be for the benefit of the minor accepted it and passed a pre liminary decree in terms of the compromise on July 25, 1947.
If nothing else had happened to disturb the natural course of events, the proceedings would have ended in a final decree for partition.
The plaintiff, however, commenced a fresh suit on February 23, 1949, confining his relief to his share of the profits and assets Of the motor business carried on by defendants Nos. 1 and 2 after March 31,1946.
His case was that the compromise was made in a hurry, that the parties omitted to provide in the compromise about the future conduct 102 of the motor business from April 1, 1946, that the motor business was still a joint family business and that he had a right to ask for accounts of that business subsequent to March 31, 1946.
In defence it was pleaded that the compromise was made after due deliberation, that accounts of the motor 'business and grocery shop should actually have been taken up to April 14, 1945, the date of disruption of the joint family status, but the parties agreed by way of compromise that account of all family businesses should be taken up to March 31, 1946.
It was also pleaded that the claim was barred by res judicata.
Upon the issues framed in the case the Civil Judge found that the suit was not.
barred by reason of the decision in the previous suit No. 39 of 1945, that the decision in that suit was not obtained by fraud and misrepresentation and that the compromise in the previous suit was not due to a mistake or misunderstanding.
Despite these findings the Civil Judge held that although the motor business carried on after the partition had ceased to be a joint family business yet as it was carried on by some members of a family their position was analogous to that of a partner carrying on partnership after dissolution and applying the principle underlying section 37 of the Partnership Act he held that the two brothers carrying on the motor business were liable to account.
Accordingly he passed a preliminary decree directing the accounts of the motor business to be taken from March 31, 1946, up to the date on which a final decree for payment of the amount found to be due would be made.
A Commissioner was appointed to take the accounts to ascertain the profits earned by the use of the capital belonging to the shares of brothers other than those who carried on the motor business.
In appeal Bavdekar 'J. with whom Dixit J. agreed modified the decree of the trial Court by directing that the accounts were to be taken up to the date when the businesses discontinued and not up to the date of the final decree.
The learned Judges held that the cause of action for the present suit was different from the cause.
of action in the previous suit and that the suit was not barred 103 by res judicata or by Order II, rule 2, of the Code of Civil Procedure.
After delivering themselves of some conflicting observations to which reference will in detail be made hereafter they held that the consent decree did not expressly negative the right for accounts of the motor transport business.
Finally the learned Judges recorded the conclusion that regardless of the pleadings in the case the defendants Nos.
I and 2 had made use of the joint family property and that they stood in, the position of co owners and as contemplated in section 90 of the Indian Trusts Act were liable to render accounts for the profits which were attributable to the employment of the assets owned by the parties jointly.
Learned counsel for the appellants has contested the view of the High Court upon all the points decided, ,against them.
He has contended that the cause of action in a suit for partition is the desire and intention of the family to separate, that the cause of action in the two suits is identically the same and not separate and distinct and.
that the suit was, therefore, barred both by the principle of res judicata and by Order II, rule 2, of the Civil Procedure Code.
Learned counsel also challenged the view of the High Court about the applicability of section 90 of the Indian Trusts Act It seems to us that upon a fair reading of the compromise arrived at between the parties in the circumstances then existing, the only legitimate conclusion possible is that the parties had agreed to confine the taking of all accounts upto March 31,1946, and had closed the door to reopening them beyond that date.
If the compromise was arrived at after full consideration by the parties and was not vitiated by fraud, misrepresentation, mistake or misunderstanding as held by the trial Court a finding which was not interfered with by the High Court it follows that a matter once concluded between the parties who were dealing with each other at arms length cannot now be reopened.
What led the parties to confine the period of account to March 31, 1946, and stop further accounting which would have normally extended to the passing of the final decree will appear from the following circumstances.
The plaintiff knew that the licence for the liquor shops 104 carried on by him was expiring on the 1st April, 1946, and he was anxious to run the liquor business exclusively and not jointly or in partnership with his brothers after the expiry of the licence.
He gave a notice to his brothers through pleader on December 12, 1945, stating inter alia the following : "The period of (licence for) the liquor shops at the said places expires by end of March, 1946.
Hence after the expiry of the said period, my client having no desire to conduct liquor shop business jointly or in partnership with any of you again, he intends to run and will run as from the date 1st April, 1946, one or more liquor shops as he pleases belonging to him alone independently.
The moneys that will be required for (purchase in) auction of the shops will be paid by my client by borrowing the same from third parties on his own responsibility and my client will not allow the said moneys to have the least connection with the businesses, properties and cash which are at present in dispute in Court and with the profits and income from the said businesses or properties.
My client expressly informs you by this notice of the fact, viz., that the liquor shops thus purchased by him will solely belong to him and will be run by him independently of any of you.
None of you will have any legal right to meddle with or interfere in the liquor shops which will be thus purchased by my client in the Government auction for the new year beginning from 1st April, 1946, and if any of you make an attempt with malicious intention to cause even the slightest interference in the said business of my client, then my client will hold you fully responsible for any harm suffered by him and for other damages and expenses incurred by him and will take a severe legal action against you therefor.
" This notice furnishes a true guide as to the intention of the plaintiff which was none other than that he should run the liquor shops exclusively for himself and appropriate the profits thereof without making himself accountable to his brothers.
Although the plaintiff says that he intended to pay for the auction of liquor shops by borrowing he was really in a position of vantage for he admittedly had Rs. 13,000 cash in hand as 105 against the Rs. 3,000 his brothers had.
The notice explains the significance of the provision in the compromise that accounts are to be taken only up to March 31, 1946.
Since the plaintiff did not want his brothers to interfere with his exclusive running of the liquor business after March 31, 1946, he perforce had to agree that he should sever his connection with other businesses run by his brothers.
This arrangement was apparently acceptable to all the brothers as being fair and reasonable and as not giving undue advantage to any party over the other.
This being our construction of the compromise, it follows that the plaintiff 's conduct in going back upon that arrangement by filing a fresh suit in regard to the motor business only is anything but honest.
The plaint filed in the previous suit leaves no manner of doubt that the plaintiffs in that suit ,sought a complete division of all the family property both movable and immovable and a final determination of all the accounts in respect of the family businesses.
It is also significant that after the compromise the plaintiff (Balkrishna) filed an application before the Civil Judge in which he alleged that when he agreed in the compromise that the accounts of the various businesses should be up to the 31st March, 1946, he was under a misapprehension regarding his legal right inasmuch as he thought that when the accounts were to be taken up to a certain date, 'the joint family property after that date would not be allowed to be utilized by some members only of the family for making profits for themselves to the exclusion of the plaintiff.
He goes on to say that he laboured under the impression that the joint family business would be either altogether stopped after the 31st March, 1946, or would be run either by the arbitrators or the Commissioners and the profits accruing therefrom would be deposited in Court for distribution among the parties according to their shares.
The application was made on November 22, 1947.
His pleader, however, stated on April 6, 1948: " The application is abandoned by the applicant as he wishes to pursue his remedy by way of an independent suit for the grievance in the application," and the Court passed the order, "The application is disposed of as 14 106 it is not pressed." The learned Judges of the High Court in referring to this application observe thus: " It is obvious therefrom that really speaking the idea of the profits of several businesses after the 1st of April, 1946, was present to the minds of the parties; but the parties did not care to ask that accounts of the other businesses will be taken up after the 1st of April, 1946.
One of the businesses was a liquor business, which admittedly was to come to an end on the 31st of March, 1946; but there was also another business; that Was a kirana shop, which was not a very big business.
But all the same it was there, and there is force, therefore, in the contention which has been advanced on behalf of the appellants that it was not as if there has been an oversight on the part of the parties, but the parties knew that the businesses might go on afterwards; but if they were carried on, they did not particularly care for providing by the compromise decree for accounts of those businesses being taken after the 1st of April, 1946.
" Having said all this they record the conclusion that the compromise did not expressly negative the right of the plaintiff to an account of motor business.
We are unable to accept this conclusion.
The observations quoted above negative the plaintiff 's case about mistake or misunderstanding in regard to the true effect of the compromise and show that the plaintiff abandoned the right to Account after the crucial date and the status of the parties thereafter changed into one of tenants in common.
If the plaintiff really intended that accounts of the motor business or indeed of all other businesses were to be taken up to the date of the 'final decree, there was no point in mentioning the 31st March, 1946.
The normal course, after the preliminary decree was passed by the Court, was to divide all the property by metes and bounds and to award monies as found on examination of the accounts right up to the date of the final decree.
But for the compromise which limited the period of the account the plaintiff would have obtained the relief he is now seeking, in the partition suit as accounts would have been taken of all the businesses up to the date of the final decree.
The plaintiff has himself to thank for preventing the natural 107 course of events and for forbidding the accounts to be taken after the 31st March, 1946.
The plaintiff on the other hand has no real grievance in the matter, for although the defendants Nos. 1 and 2, who continued to run the motor business, may have made some money with the help of the two old motor buses, the plaintiff whose keenness to run the liquor business is apparent from the notice referred to above was not precluded from reaping the fruits of that business.
It is hard to conceive that the plaintiff would have agreed to share his burden of the loss if the motor business had sustained any.
We hold, therefore, that the compromise closed once for all the controversy about taking any account of the joint family businesses including the motor business after the 31st March ', 1946, and the plaintiff is bound by the terms of the compromise and the consent decree following upon it.
The obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reaitating the question in the present suit.
It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum.
The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata.
We are also of opinion that the plaintiff 's claim is barred by the provisions of Order II, rule 2(3), of the Code of Civil Procedure.
The plaintiff by confining his claim to account up to March 3, 1946, only, implicitly of not explicitly, relinquished his claim to the account for the subsequent period.
Sub rule 3 clearly lays down that if a person Omits, except with the leave of the Court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted.
We do not agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit.
The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property.
That suit embraced the entire property without any reservation and was compromised, the plaintiff having abandoned his claim to account in respect of 108 the motor business subsequent to March 31, 1946.
His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished.
We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, rule 2(3), of the Civil Procedure Code.
As the.
suit is barred both by res judicata and Order II, rule 2(3), of the Civil Procedure Code, no further question as to the applicability of section 90 of the Indian Trusts Act can possibly arise under the circumstances.
The result is that we allow the appeal and dismiss the suit with costs throughout.
Appeal allowed.

summary:
It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum.
Where a compromise is found, not to be vitiated by fraud, Misrepresentation, 100 misunderstanding or mistake, the decree passed thereon has the binding force of res judicata.
Where the plaintiff confines his claim to account for a period up to a certain date only, he relinquishes his claim implicitly if not explicitly to the account for the subsequent period because Order II, rule 2 (3) of the Code of Civil Procedure lays down that if a person omits, except with the leave of the Court, to he sue for all reliefs to which he is entitled, he shall not afterwards sue for any reliefs so omitted.


judgement:
iminal Appeals Nos. 159 and 160 of 1965.
Appeals by special leave from the judgment and order dated July 28, 1965 of the Patna High Court in Criminal Appeal Nos. 533 and 534 of 1963.
R. K. Garg, D. P. Singh, section C. Agarwala, section P. Singh and K.M. K. Nair, for the appellants (in both the appeals).
B. P. Jha, for the respondent (in both the appeals.) The Judgment of the Court was delivered by Hegde, J.
In these connected appeals by special leave the legality of the convictions of the appellants appellant Mohar Rai under section 324 of the Indian Penal Code and appellant Bharath Rai under section 324/109 of the Indian Penal Code is challenged.
In the trial court the former was convicted under section 307 of the Indian Penal Code and the latter under section 307/109 of the Indian Penal Code.
The High Court of Patna, in appeal, altered their convictions as set out above.
In order to appreciate the contentions advanced on behalf of the appellants, it is necessary to state briefly the prosecution as 527 well as the defence version.
The case made out by the prosecution is that because of previous enmity Mohar Rai shot and injured P.W. I Balli Ahir, at the instigation of Bharath Rai,, on the evening of October 8, 1961, in Natwar Bazar.
The existence of enmity between the appellants and most of the prosecution witnesses who speak to the occurrence, is satisfactorily established.
Many of the prosecution witnesses appear to have been proceeded against under section 107 of the Code of Criminal Procedure at the instance of the appellants.
The plea of the appellants was that on the day of incident when they were returning to their house in the evening they were way laid by P.W.1 and several others; one of those persons fired shots at Mohar Rai, but it missed him; to save himself he (Mohar Rai) ran away from the scene, subsequently two more shots were fired; meanwhile he got into the house of Lal Bahadur Mistri (P.W.9), but his assailants pursued him, forced their entry into the house of P.W.9 and there assaulted him; thereafter with a view to foist a false case against him forcibly thrust into his hands the revolver (Ex II) and then handed him over with exhibit
III to Janardan Singh (P.W. 15), the police constable.
ThE plea of Bharath Rai was that during the incident mentioned by Mohar Rai, he was caught hold of and assaulted by some of the prosecution witnesses.
The High Court and the trial court have rejected the plea of the appellants and relying on the prosecution evidence convicted the appellants as mentioned earlier.
This Court being a Court of special jurisdiction does not reassess the evidence in a case except under exceptional circumstances.
It was urged on behalf of the appellants that they did not have a fair trial, the High Court as well as the trial court on an erroneous view of the law refused to take into consideration their defence, they ignored important circumstances appearing in their favour and further some of the conclusions reached by them are unsupported by any evidence on record.
We have to see how far these submissions are well founded.
Out of the incident mentioned above, the State came to ini tiate as many as three prosecutions.
G. R. Case 1370/TR 20 of 61/63 in the Court Of the Munsif Magistrate I Class, Sasaram was instituted on the basis of the complaint lodged by Mohar Rai.
G.R. 506 of 1962 on the file of the Munsif Magistrate I Class, Sasaram was a case under section 19(f) of the Indian Arms Act against Mohar Rai for being armed with a revolver at the time of the incident mentioned earlier.
The third case is the one with which we are concerned in these appeals.
The case instituted on the basis of the complaint made by Mohar Rai was acquitted on February 1, 1963.
The Arms Act case ended in acquittal on May 13, 1964.
The appeal against that order was dismissed by the High Court of Patna on September 5, 1966.
A copy of the judgment in that appeal was produced at the hearing of these 528 appeals and received as additional evidence with our permis sion.
The trial court as well as the High Court refused to examine the defence of the appellants solely on the ground that the case pleaded by them had been rejected by the learned Munsif Magistrate I Class, Sasaram in the prosecution commenced at the instance of Mohar Rai.
The prosecution case was that immediately after the occur rence, Mohar Rai was chased and caught and at that time he had in his hands the revolver (Ex.III).
Very soon thereafter he was produced before Audeshwar Prasad Singh (P.W.19) with the revolver in question.
The further case of the prosecution was that P.W. 19 seized that revolver; later during investigation he seized the three cartridges said to have been fired by Mohar Rai as well as a misfired cartridge; the revolver as well as the seized cartridges were sent to the ballistic expert for examination.
These facts were spoken to by the prosecution witnesses, in particular by P.W. Janardhan Singh, the constable to whom Mohar Rai was handed over immediately after the occurrence and P.W. 19 the investigating officer.
P.W. 19 deposed that the number of the revolver seized is 545465.
He is positive that the revolver seized from Mohar Rai is exhibit 111, though in his report to the ballistic expert he had given the number of the revolver sent for examination as 545466, but in that report itself he had added a note to say that the last two digits were not clear,.
The prosecution proceeded on the basis there is no ambiguity about it that exhibit III was the weapon that was used in the commission of the offen ce.
The ballistic expert who was examined as D.W. 1 was positive that the seized empties as well, as the misfired cartridge could not have been fired from EX.III.
The evidence of this witness has been accepted both by the trial court as well as by the High Court.
From that it follows that the prosecution case that Mohar Rai fired three shots from exhibit
III cannot be accepted as true.
If this part of the prosecution case fails then very little remains in the prosecution case.
The trial court and the High Court have brushed aside this important aspect on a wholly untenable basis.
They opined that by some mistake a revolver different from that seized from Mohar Rai might have been sent to the ballistic expert.
The conclusion has no basis on the material on record.
It is just a speculation a process not open to courts.
Evidently overwhelmed by the evidence of the large number of )Witnesses who deposed in favour of the prosecution case, forgetting the fact that most of them belong to the faction opposed to the appel lants.
the trial court and the High Court ignored the probabilities and lost sight of the evidence afforded by the circumstances appearing in the case.
Both those courts failed to realise that the fact that exhibit III was not the revolver that was used during the 529 incident went to probablise the plea taken by Mohar Rai.
At this stage we may recall the fact that both the trial Magistrate as well as the High Court rejected the prosecution case and acquitted Mohar Rai in the case against him under section 19(f) of the Arms Act.
It is true that the decision of the trial court in that case was rendered after the Assistant Sessions Judge, Sasaram, convicted the appellants in the present case and therefore it may be that the appellants cannot take the benefit of the rule laid down by this Court in Pritam Singh vs The State of Punjab(1) and affirmed in Manipur Administration vs Thokchom, Bira Singh(2).
But even without the assistance of that rule, on the basis of the prosecution evidence itself the prosecution version stands discredited.
Once it is proved that the empties recovered from the scene could not have been fired from exhibit
III the prosecution case that those empties were fired from exhibit
III by Mohar Rai stands falsified.
The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants.
Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14.
We get it from the evidence of P.W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence.
Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised.
Under these circumstances the prosecution had a duty to explain those injuries.
The evidence of Dr. Bishun Prasad Sinha (P.W. 18) clearly shows that those injuries could not have been self inflicted and further, according to him, it was most unlikely that they would have been caused at the instance of the appellants themselves.
Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries.
In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true.
Further those injuries probabilise the plea taken by the appellants.
Both the trial court as well as the High Court refused to take into consideration the plea of the appellants on the ground that that plea did not commend itself to the trial Magistrate in the case instituted on the complaint of Mohar Rai.
They were erroneously of the view that the plea in question was barred by the rule laid down by this Court in Pritam Singh 's case(1).
In that case, this Court accepted as correct the following statement of (1) A.I.R. 1956 S.C. 415.
(2) ; 530 the law made by the Judicial Committee in Sambasivam vs Public Prosecutor, Federation of Malaya(): "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.
To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
The maxim 'res judicata pro vetitate accipitur ' is no less applicable to criminal than to civil proceedings.
Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial.
" Dixon J., of the Australian High Court in the King vs Wilkes(2) explained the legal position in these words : "Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner.
That seems to be implied in the language used by Wright, J. in R. vs Ollis [1960] II Q.B. 758, at p. 769) which, in effect I, have adapted in the fore going statement.
There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner.
The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding.
But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply.
Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict.
They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability.
Issue estoppel is concerned with the judicial establishment of a pro (1) (2) (77)C.L.R.511, at pp.518 519.
531 position of a law or fact between parties.
It depends upon well known doctrines which control the relitigation of issues which are settled by prior litigation." This Court endorsed that statement in Manipur Administra tion 's case( ').
But the law laid down in those cases has no application to the facts of the present case.
In both the prosecution in the complaint made by Mohar Rai as well as in tie complaint made by P.W. the prosecutor before the court was the State.
Therefore, the decision in the former case cannot operate as an issue estoppel against the appellants in the present case, because they were not parties in the former case.
In other words the plea taken by the appellants in this case was never before litigated between them and the State, the opposite party in the present case.
All that can be said is that the case put forward by the State in the one case is inconsistent with that put forward by it in the other.
In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence.
That apart, it is doubtful though for the purpose of this case it is unnecessary to express any final opinion on this point whether the rule in question could be pressed against an accused, the reason being that while a prosecution cannot succeed unless it proved its case beyond reasonable doubt, the nature of the proof required of an accused in substantiating the plea taken by him is different it is sufficient if he proves that plea taken by him is reasonable and probable.
In that event he is entitled to the benefit of doubt.
This aspect was noticed by this Court in Manipur Administration 's(1) case, where it was observed: "Before parting, we think it proper to make one observation.
The question has sometimes been mooted as to whether the same principle of issue estoppel could be raised against an accused, the argument against its application being that the prosecution cannot succeed unless it proved to the satisfaction of the Court trying the accused by evidence led before it that he is guilty of the offence charged.
We prefer to express no opinion on this question since it does not arise for examination.
" For the reasons mentioned above, we are satisfied that the trial court as well as the High Court erred in summarily rejecting the defence of the appellants on the sole ground that the version put forward by them having been rejected by the court in G.R. case 13761TR 20 of 61/63 in the court of the Munsif Magistrate I Class, Sasaram the same cannot be again considered.
We think that the defence of the appellants is highly probabilised by (1) ; 532 three important circumstances, namely (i) the same was put forward immediately after the occurrence, (ii) it satisfactorily explains the injuries found on the persons, of the appellants while the prosecution evidence fails to explain those injuries,.
and (iii) the prosecution evidence itself shows that Mohar Rai could not have used exhibit III and therefore his version that that weapon was thrust on him is probablised.
The last contention taken by Mr. Garg is that admission of exhibit 4, an inadmissible document, has greatly prejudiced the case of the appellants.
According to him, the admission of that document is hit by section 162 of the Code of Criminal Procedure.
In the alternative, he contended that that document could not have been used to discredit the plea taken by Mohar Rai,, We have earlier noted the two divergent versions given by P.W.1 and Mohar Rai in respect of the incident that took place on the evening of October 8, 1961.
Quite naturally, both these complaints were investigated simultaneously.
The statement given by P.W.1 was recorded as first information in one case and the statement given by Mohar Rai as first information in the other.
Appellant Bharath Rai was questioned during the investigation.
His statement is exhibit 4.
The trial court came to the conclusion that it was not hit by section 162 as the same was not recorded in the course of investigation in the case against Bharath Rai.
The High Court justified the admission of that document on the basis of the rule laid down by this Court in Faddi V. State of Madhya Pradesh( '), namely where the person who lodged the first information report regarding one offence is himself subsequently accused of that offence and tried and the report lodged by him is not a confessional first information report but is an admission by him of certain facts which have a bearing on the question to be determined by the Court, viz., how and by whom the offence was committed or whether the statement of the accused in the court denying the correctness of certain statements of the prosecution witnesses is correct or not, the first information report is admissible to prove against him, his admissions which are relevant under section 21 of the Evidence Act.
It was contended on behalf of the appellants that whether that statement is held to have been taken during the investigation of the complaint made by P.W. 1 or during the investigation of the complaint made by Mohar Rai, in either case it is hit by section 162 of the Code of Criminal Procedure '.
It was also urged that the rule laid down in Faddi 's case() has no application to the facts of the present case, In the instant case no portion of exhibit 4 was relied on as an admission of Bharath Rai.
Hence the rule laid down in Faddi 's case( ') could not have been called into aid.
The trial court and the High Court relied on Bharath Rai 's statement that it was Naulakh Rai who fired a pistol (1) ; 523 to contradict the statement of Mohar Rai in his complaint that a pistol was fired by Dudhnath.
No portion of exhibit 4 could have been used for that purpose either under section 157 or section 145 of the Evidence, Act.
As Bharath Rai was not examined as a witness in the present case his previous statement could not have been used either to contradict his evidence or corroborate it even if it is to be held that it is a statement coming under section 154 of the Code of Criminal Procedure : see Nazir Ali vs State of U.P.(1).
The circumstances noticed above, in our opinion, not merely affect the value and weight to be attached to the prosecution evidence, but they persuade us to doubt the prosecution version.
In the circumstances, we are unable to resist the conclusion that there has been a miscarriage of justice.
We accordingly allow these appeals and acquit the appellants.
Their bail bonds do stand cancelled.
R.K.P.S. Appeals allowed.
(1) A.I.R. 1957 S.C. 366.

dataset_name: IN-Abs

summary:
The first appellant was convicted under.s.
324 IPC for shooting and injuring PW 1, at the instigation of the second appellant, who was himself convicted of an offence under section 324 read with section 109 IPC.
The existence of enmity between the appellants and most of the prosecution witnesses who spoke to the occurrence was satisfactorily established.
The plea of the appellants in their defence was that on the date of the incident when they were returning home in the evening, they were way laid by PWI and several others and were assaulted; thereafter with a view to foist a false case against them, a revolver was forcibly thrust into the hands of the first appellant.
In connection with this incident, the State came to initiate three prosecutions : One case was instituted on the basis of a complaint by the first appellant; a second case was commenced against the first appellant under section 19(f) of the Indian Arms Act for being armed with a revolver; and the third was the present case.
The case instituted on the first appellant 's complaint as well as the case against him under the Arms Act were both dismissed.
The trial court as well as the High Court refused to examine the defence of the appellants solely on the ground that the case pleaded by them had been rejected by the Magistrate in the prosecution commenced on these basis of the complaint by the first appellant.
In appeal to this Court it was contended on behalf of the appellants that they did not have a fair trial; the High Court as well as the trial court on an erroneous view of the law refused to take their defence into consideration; they ignored important circumstances appearing in favour of the appellants; and furthermore, some of the conclusions reached by them were unsupported by any evidence on record.
It was also contended that an inadmissible document, namely a statement made by, the 'second appellant in the course of the investigation was wrongly admitted; this admission was hit by a. 162 of the Code of Criminal Procedure which bad also greatly prejudiced the case of the appellants.
HELD : The appeals must be allowed and the appellants acquitted.
(i) The trial court as well as the High Court erred in summarily ejecting the defence of the appellants on the sole ground that the version put forward by them having been rejected by the Magistrate in the case filed on the complaint of the first appellant, it could not be considered again.
The defence of the appellants was highly Probabilised by three important circumstances, namely, (1) it was put forward immediately after the occurrence, (2) it satisfactorily explained the injuries found on the persons of the appellants while the prosecution evidence failed to 526 explain those injuries; and (3) the prosecution evidence itself showed that the first appellant could not have used the revolver exhibited and therefore his version that weapon was thrust on him was probabilised.
[531 H 532 B] In both the prosecutions in the complaint made by the first appellant as well as in the complaint made by P.W.I the prosecutor before the court was the State.
Therefore, the decision in the former case could not operate as an issue estoppel against the appellants in the present case, because they were not parties in the former case.
In other words, the plea taken by the appellants in this case was never before litigated between them and the State, the Opposite party in the present case.
All that ran be said is that the case put forward by the State in the one case was in consistent with that put forward by it in the other.
In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence.
1531 B D] Pritam Singh vs The State of Punjab, A.I.R. 1956 S.C. 415; Manipur Administration vs Thokchom, Bira Singh, (1964] S.C.R. 123; Sambasivam vs
Public Prosecutor, ; and King vs Wilkes; ; at pp.
518 519, referred to.
(ii) The trial court and the High Court relied on the second appellant 's statement in the document admitted in evidence to the effect that it was a particular person who fired a pistol to contradict the statement of the first appellant in his complaint that a pistol was fired by some other person.
No portionof this statement could have been used for that purpose either section 157 ors.
145 of the Evidence Act.
As the second appellant was not examined as a witness in the present case, his previous statement could not have been used either to contradict his evidence or corroborate it even if it were to be held that it was a statement falling under s.154 of the Code of Criminal Procedure.
[532 H 533 B] Nazir Ali, vs State of U.P.
A.I.R. 1957 S.C. 366; distinguished.


judgement:
No. 131 of 1966.
Petition tinder article 32 of the Constitution of India for the enforcement of fundamental rights.
A. K. Sen and K. B. Mehta, for the petitioners.
B. Sen and R. H. Dhebar for respondents Nos. 1 and 2.
B. P. Maheshwari and section M. Jain, for respondent No. 4.
The Judgment of the Court was delivered by Bhargava, J.
section K. Ghosh and A. M. Narula, the two petition ers in this petition under Article 32 of the Constitution, appeared for the examination held in October, 1945 for recruitment to the Indian Audit and Accounts Service and other Allied Central Services.
On the basis of the result of the examination, both of them were selected for appointment to the Postal Superintendents ' Service Class II Petitioner No. 1, section K. Ghosh, joined a post in that Service on probation with effect from 9th April, 1947, while petitioner No. 2, A. M. Narula, joined as a probationer on 11 th February, 1947.
At that time there was no Class I Service in the Postal Department.
In Class II Service, to which these two petitioners were appointed, recruitment was made by a competitive examination to the extent of 50 per cent, while the remaining 50 per cent posts were filled by promotion from lower cadres of the Department.
On 24th May, 1948, the Government sanctioned the creation of Indian Postal Service Class I with four grades as follows (i) Directors of Postal Services, Grade I, (ii) Directors of Postal Services, Grade II, (iii) Senior Time Scale, and (iv) Junior Time Scale.
This decision of the Government was communicated to the Director General, Posts and Telegraphs, by their letter dated 13th November, 1948, which also laid down the manner of recruitment to the Service and the various sources from which recruitment was to be made.
The normal rule laid down was that appointment to the junior time scale were to be made by direct recruitment against 75% of the vacancies and the remaining 25% were to be filled by promotion by selection of the best officers in the Postal Superintendents ' Service Class II, seniority being regarded only when all other qualifications were practically equal.
To this rule, however, an exception was laid down to the effect that all initial appointments to the time scale cadres of the Indian Postal Service Class I consisting of 64 posts (23 in the senior scale and 41 in the junior scale) were to be made by promotion from amongst officers of Postal Superintendents ' Service Class II by selection.
Future recruitment was to be governed by the general rule cited above.
Appointments to Grade IT of the Directors of Postal Services was to be made by promotion by selection 633 of the best officers in the senior time scale of the Indian Postal Service, Class 1, seniority being regarded only where other qualifications were practically equal.
These promotions were to be made through a Departmental Promotion Committee consisting of the Director General, Posts and Telegraphs, Senior Deputy Director General, Posts and Telegraphs, and a member of the Federal Public Service Commission.
Appointments to Grade I of Directors of Postal Services were to be made by promotion from Grade 11 of Directors in the order of seniority, provided the senior officer was considered fit for such promotion.
The Service under these rules was, in fact, constituted with effect from 15th September, 1948, and, even in cases where appointments were actually made later, they were made effective retrospectively from 15 th September, 1948.
for purposes of confirmation.
The two petitioners were still probationers in Postal Superintendents ' Service Class II on 15th September, 1948; and, since only persons holding permanent posts in the cadre of Class 11 were to be considered for appointment to this Class I Service, the petitioners were not considered at the initial stage.
Both the petitioners completed their probation in Class 11 Service in the year 1949.
According to the petitioners, petitioner No. 1 was promoted to Class I Service on 2nd December, 1949, and petitioner No. 2 on 5th December, 1949.
They were shown as officiating in this Service.
Subsequently, petitioner No. 1 was confirmed in the junior time scale of Class I Service with effect from IIth May, 1951, while petitioner No. 2 was confirmed with effect from 12th February, 1952.
In the meantime, direct recruitment to Class I Service was also made on the basis of competitive examinations held in the years 1948 and 1949, and a number of direct recruits were selected for appointment to this Service.
Amongst them were K. Ramamurti, N. C. Talukdar, Shiv Nath, section L. Rajan and B. N. Dubey, respondents Nos. 3 to 7 in the petition.
Besides these, a number of other direct recruits were also taken, but it is unnecessary to take notice of them, because the petitioners have sought relief against these five respondents only, the others having already retired by the time this petition was filed.
These five respondents joined Class 1 Service as probationers on various dates falling between 16th March, 1950 and 22nd November, 1950.
Thereafter, the question of fixing seniority inter se between the direct recruits and officers promoted from Class II Service came up for consideration of the Government.
Government communicated their final decision through 'the letter dated 30th January, 1957.
The letter indicated the considerations that led the Government to fix the seniority of the various officers and to the letter was annexed an Appendix giving the seniority of junior time scale officers.
In this list, the two petitioners were placed at Nos. 31 and 32, while the five respondents were placed junior to them at Nos. 33, 36, 41, 42 and 44.
In the letter, the Government speci 634 fically stated that, in arriving at the decisions, the Government had given due consideration to all the representations submitted by officers on the subject and replies to these representations were not, therefore, being sent separately.
Only one representation of A. C. Mohamedi was still under consideration; but, with that representation, we are not concerned in the present writ petition.
The Government added that the seniority list along with a copy of the memorandum was to be given to all the officers concerned for their information and they were to be informed that any further representations against the principles on the basis of which the seniority list had been prepared, would not be entertained.
At the time when this seniority was fixed, the principles, which, according to the petitioners, were applicable, were those laid down in the Ministry of Home Affairs ' Office Memorandum dated 22nd June, 1949, paragraph 2 of which contained the decision that seniority in respect of persons employed in any particular grade should, as a general rule, be determined on the basis of the length of service in that Grade as well as service in an equivalent Grade, irrespective of whether the latter was under the Central or Provincial Government in India or Pakistan.
The order of seniority laid down 'by the order dated 30th January, 1957 continued in force for a number of years.
The Ministry of Home Affairs subsequently issued an Office Memorandum on 22nd December, 1959, laying down general principles for determining seniority of various categories of persons employed in Central Services.
This Memo.
referred to various earlier Office Memoranda, including the one dated 22nd June, 1949 issued by the Home Ministry.
Paragraph 3 of this Office Memo.
laid down that the instructions contained in those various Office Memoranda were thereby cancelled but made an exception in regard to determination of seniority of persons appointed to the various Central Services prior to the date of this Office Memorandum.
The revised General Principles embodied in the Annexure to this Memorandum were not to apply with retrospective effect, but were to come into force with effect from the date of issue of these orders, unless a different date in respect of any particular service/grade from which these revised principles were to be adopted for purposes of determining seniority had already been or was to be thereafter agreed to by the Home Ministry.
In para.
2 of the Annexure it was again laid down that, subject to the provision of para.
3 below, persons appointed in a substantive or officiating capacity to a grade prior to the issue of these general principles were to retain the relative seniority already assigned to them or such seniority as might thereafter be assigned to them under the existing orders applicable to their cases and were to be en bloc senior to all others in that grade.
It was.
the case of the petitioners that this Office Memorandum of 2nd December, 1959 did not in any way affect their seniority 635 Government dated 30th January, 1957.
Subsequently, the petitioners as well as respondents Nos. 3 to 7 were promoted as Directors.
The common case of both the parties was that, by the time these promotions were made, the two grades of Directors of Postal Services were amalgamated into one single grade, and the promotions of the petitioners as well as respondents Nos.
3 to 7 were to that grade.
The case of the petitioners was that respondents Nos.
3 to 7 were promoted as Directors after the petitioners, so that the petitioners were recognised as seniors in the grade of Directors also.
These promotions, according to the petitioners, were made some time in the years 1961 and 1962.
Subsequently, by an Order dated 5th June, 1965, the Govern ment suddenly revised the seniority of these various officers.
The letter dated 5th June, 1965 mentioned the subject as "Revision of seniority in the erstwhile Junior Time Scale of the Indian Postal Service, Class 1 of direct recruits from the combined competitive examinations held in 'the years 1947, 1948 and 1949.
" As a result of this revision of seniority in the junior time scale of the Indian Postal Service Class 1, respondents Nos.
3 to 7 were shown as senior to the petitioners.
The places allotted to respondents Nos.
3 to 7 were at Nos. 17, 20, 22, 23 and 25, while the two petitioners were placed below them at Nos. 26 and 27.
Later, again another Order was issued on 17th January 1966 revising the seniority in the grade of Directors of Postal Services, and, in that revision also, respondents Nos.
3 to 7 were placed as seniors at Nos.
14, 15, 17, 18 and 19, while the two petitioners were shown as junior to them at Nos. 20 and 21.
The petitioners, consequently, filed this petition under Article 32 of the Constitution challenging the revision of their seniority in the junior time scale by the order dated 5th June, 1965 as well as 'the revision of their seniority in the grade of Directors of Postal Services by the order dated 17th January, 1966.
The principal round, on which these orders were challenged by the petitioners, was that they had been made by the Government arbitrarily in exercise of their power to fix seniority and.
by such arbitrary action, had adversely affected the rights of the petitioners vis a vis respondents Nos.
3 to 7 in violation of Article 16 of the Constitution.
The point taken was that the seniority having once been fixed by the Order dated 30th January, 1957 in accordance with the Rules then in force could not be arbitrarily disturbed by the Government, particularly when the Rules were never revised subsequently, nor were any fresh Rules issued governing the seniority of these officers who had been appointed to the junior time scale of Class 1 Service prior to 30th January.
Learned counsel appearing for the petitioners formulated four different grounds for challenge of the Order dated 5th June, 636 1965, all leading to the contention that that Order violated article 16 of the Constitution, or was passed against the principles of natural justice.
In addition, the Order dated 17th January, 1966 was challenged on one more ground, viz., that, even if it be held that the re fixation of seniority in the junior scale of Class I Service was justified, the Order of the Government revising the seniority in the grade of Directors was in any case void and illegal.
This point was urged on the basis that appointment to the Directors ' grade was made on the basis of selection and there could not be automatic revision of seniority in that grade consequent upon the revision of seniority in the time scale of the Service.
The petition was opposed by respondents 1 and 2, the Union of India, and the Director General of Posts and Telegraphs, as on behalf of some of the other respondents.
Most of the facts put forward by the petitioners have been admitted, but the inferences and conclusions drawn by the petitioners as well as the submissions on their behalf in the writ petition were challenged.
The principal contention for resisting the petition was that the order dated 30th January 1957 fixing the seniority had been made by mistake as a result of the Government having ignored Supplementary Rule 2(15), the effect of which was that for purposes of seniority the service of respondents 3 to 7 in junior time scale Grade I was wrongly taken as commencing from the date of their confirmation in the Service, while, correctly, it should have been taken from the date on which these respondents joined as probationers.
It was urged that, on a correct interpretation of the Rules, respondents Nos. 3 to 7 should have been held, even initially, to be senior to the petitioners in the _junior scale of the Class T. Service.
It was further urged that, since the revision of seniority in the junior time scale of Class I Service was justified and not arbitrary, the consequential revision of seniority in the grade of Directors of Postal Services was also valid.
Arguments were addressed at length on both aspects of the case, but we think that it is not necessary for us in this case to decide the first point raised on behalf of the petitioners regarding the validity of the refixation of their seniority in the junior time scale of Class I Service by the order dated 5th June, 1965, because the petitioners could even obtain adequate relief on the alternative ground that the revision of seniority in the grade of Directors by the order dated 17th January, 1966 was void.
The peti tioners in para.
4 of their petition made a definite assertion that respondents 3 to 7 were all promoted as Directors after the petitioners.
This factual assertion made in this paragraph has not been denied in any counter affidavit filed on behalf of the various respondents.
In the course of arguments before us, it was urged by learned counsel appearing for the respondents that the peti 637 tioners as well as respondents 3 to 7 were only shown as officiating in the grade of Directors in the Civil List and, consequently we should not base our decision on acceptance of the allegation made 'by the petitioners that the petitioners and respondents 3 to 7 had all been promoted as Directors.
We are unable to accept this submission.
The entry in the Civil List is no proof that the petitioners and the live respondents have not been promoted in accordance with the Rules laid down by the Government for promotion.
If it was a fact that there had been no promotion in com pliance with those Rules, the assertion made on behalf of the petitioners in the petition should have been specifically controverted.
The principles for appointment to the post of Directors of Postal Services were initially laid down by the Home Ministry 's Memorandum dated 24th May, 1948 to which we have already ,referred.
As indicated earlier, it was laid down that appointments to Grade It of the Directors of Postal Services were to be made by promotion by selection of the best officers in the senior time scale of the Indian Postal Services Class 1, seniority being regarded only where other qualifications were practically equal.
From the very first stage, therefore, appointments to the Posts of Directors of Postal Services were to be made on the basis of merit and not on the basis of seniority.
Seniority was to be taken into account only if other qualifications were practically equal.
it appears that, after 'the two grades of Directors of Postal Services were amalgamated, some fresh rules were promulgated.
The relevant Rules have been brought to our notice by placing before us extracts from Posts and Telegraphs Manual Volume IV, 4th Edn., in which paragraph 153 mentioned that the rules for recruitment to the grade of Directors of Postal Services in the Indian Postal Service Class I in the Posts and Telegraphs Department are given in Appendix 6 A. A copy of Appendix 6 A has also been placed before us.
The Appendix bears the heading "Rules for recruitment to the grade of Directors of Postal Services in the Indian Postal Services, Class I in the Posts and Telegraph Department".
Rule 2 in this Appendix lays down the scale of ' pay of the post in the grade which is admittedly Rs. 1,300 601,600.
Rule 3 prescribes the method of recruitment and is as Follows: " Recruitment to posts in the grade shall be by selection from among the officers of the Senior Time Scale of the Indian Postal Service, Class I,, one post being reserved for promotion of Presidency Postmasters, on the basis of selection.
" This Rule also makes it clear that appointment to the grade of Directors of Postal Services is made by selection and not on the basis of promotion in accordance with seniority.
The presumption exists that the promotion of the petitioners and respondents 638 3 to 7 to the grade of Directors must have been made in accordance with these instructions and rules, so that the appointment of all these concerned parties as Directors was based on merit to be taken into account at the time of selection and not on seniority in the time scale of Class I Service.
Once a member of the Class I Service in the time scale was selected for promotion to the grade of Director and given seniority over another officer selected later, the seniority so determined as a result of selection could not be made dependent on the seniority in the time scale.
It is clear that, in these circumstances, even if there was justification for revising the seniority inter se of the petitioners and respondents 3 to 7 in the time scale of Class I Service, that revision of seniority could not in any way affect their order of seniority in the grade of Directors to which they were promoted on the basis of selection in accordance with the rules.
It is, therefore, clear that, even if it be held that the order of the Government dated 5th June, 1965 revising the seniority of these officers in the junior time scale was valid, the order dated 17th January, 1966 revising the seniority in the grade of Directors of Postal Services is not valid and justified.
The seniority in the grade of Directors of Postal Services was not dependent on the inter se seniority in the junior time scale and any alteration in the seniority in the latter could not form the basis for revising 'the seniority in the former grade.
No other justification for the revision of the seniority in the grade of Directors of Postal Services was put forward on behalf of any of the respondents.
It is, thus, clear that the revision of seniority in the grade of Directors of Postal Services by the order dated 17th January, 1966 was not based on any rule or appropriate principle applicable to determination of seniority in that grade, and must, therefore, be held to be totally arbitrary.
Such an arbitrary order, which affects the civil rights of the petitioners in respect of future promotion, must, therefore, be struck down as violating article 16 of the Constitution.
Once this order dated 17th January, 1966 is quashed, the petitioners will no longer be affected in future by the revision of their seniority in the time scale of the Service by the order dated 5th June, 1965 and, consequently, we have refrained from going into the question of the validity of that order.
The petitioners are not claiming any relief on the basis of the invalidity of the order dated 5th June, 1965 which would give to them any additional benefit over and above the relief which they can obtain on the order dated 17th January, 1966 being quashed.
As a result, we allow this petition and quash the order dated 17th January, 1966, revising the seniority of the petitioners and respondents Nos.
3 to 7 in the grade of Directors of Postal Services.
In the circumstances of this case, we direct that the petitioners 'will receive their costs from respondent No. 1. ' V.P.S. Petition allowed.
L7Sup.
C.I./68 2,500 Sec.
VI 24 4 69 GIPF.

summary:
The petitioners were promoted from the Postal Superintendents Service Class II to the time scale of Class I Service, and, respondents 3 to 7 were direct recruits to the time scale of Class I service.
On 30th January 1957, Government fixed the inter se seniority between them by showing the petitioners as senior to respondents 3 to 7.
Subsequently, the petitioners were promoted as Directors of Postal Services, and some time later, respondents 3 to 7 were also promoted as Directors so that, the petitioners were senior to respondents 3 to 7 even in the grade of Directors.
On 5th June 1965 Government revised the seniority of these officers in the time scale of Class I service, by showing respondents 3 to 7 as senior to the petitioners, and on 17th January 1966, their seniority in the grade of Directors was also revised placing respondents 3 to 7 as senior to the petitioners.
The petitioners challenged the two orders in a petition under article 32.
The Government justified its orders on the grounds, that, the order of 30th January 1957 was passed by mistake as a relevant rule, namely, Supplementary r. 2(15) was not given effect to, and, since the revision of seniority in the time scale of Class I Service was justified, the consequiential revision of seniority in the grade of Directors was also valid.
HELD : The revision of seniority in the grade of Directors by order dated 17th January 1966 was not based on any rule or applicable principle.
it was therefore arbitrary and violative of article 16 and must be struck down.
Once that order was quashed, the petitioners would not be affected by the order dated 5th June 1965, and therefore, it was not necessary to decide on its validity.
[638 E G].
Rule 3 of the Rule,; for recruitment lo the grade of Directors of Postal Services in Indian Postal Services Class 1.
in the Posts and Telegraphs Department, shows that appointment to the grade of Directors is made by selection and not on the basis of seniority in the time scale.
It Must therefore be presumed that the promotion and appointment, of the petitioners and respondents 3 to 7 as Director , was based on merit, which was to be taken into account at the time of selection and not on seniority in the time scale of Class I Service.
Once a member of Class I Service in the time scale was selected for promotion to the grade of Directors and given seniority over another officer selected later, the seniority so determined as a result of selection could not be made dependent on the seniority in the time scale.
Therefore, even if there was justification for revising the seniority inter se of the petitioners and respondents 3 to 7 in the time scale of Class I Service, that revision could not in any way affecttheir order of seniority in the grade of Directors to which they were promoted on the basis of selection is accordance with the Rules.
[637 G H;] 638 A C].


judgement:
Appeal No. 1336 of 1967.
Appeal by special leave from the judgment and order dated October 7, 1966 of the Andhra Pradesh High Court in Writ Petition No. 1268 of 1966.
P. Ram Reddy and A. V. V. Nair, for the appellants.
K.Narayana Rao and G. Narayana Rao, for the intervener.
The Judgment of the Court was delivered by Shah, J.
Against the order passed by the High Court of Andhra Pradesh declaring invalid the "reservation for backward classes under Rule 4A and 5A respectively of the Telangana and the Andhra Rules, and the directions in respect of the President 's Scouts and.
Guides", under Government orders Nos.
1135 & 1136 Health, Housing & Municipal Administration Department dated June 16, 1966, as modified by G.O. M.S. 1880 dated July 29, 1966 for the Telangana region, and by G.O.M.S. 1786 dated August 2, 1966 for the Andhra Region, the State of Andhra Pradesh has appealed to this Court with special leave.
The State of Andhra Pradesh is divided into two areas Telan gana and Andhra areas.
In the Telangana area there are two Medical Colleges having in the aggregate 270 seats for entrants to the medical degree course.
In Andhra area there are four Medical Colleges having in the aggregate 550 seats for new entrants.
In admitting candidates for the medical degree course by Government orders Nos.
1135 & 1136 Health, Housing and Municipal Administration Department dated June 16, 1966, seats were reserved for Central Government nominees, for N.C.C., A.C.C President 's Scouts & Guides, for candidates with sports and extracurricular proficiency, for children of ex Service army personnel, for children of displaced goldsmiths, for candidates from Scheduled Castes and Tribes, for women candidates, for candidates appearing from H.S.C. Multipurpose I.S.C. & P.U.C. Examinations, 597 and for candidates who had secured the M.Sc. & B.Sc. de grees.
By Government order No. 1880 dated July 29, 1966, twenty per cent.
of the total number of seats were reserved for backward classes in each area, and pursuant thereto the Telangana Rules were amended by G.O. M.S. No. 1784 Health and the Andhra Rules were amended by G.O. M.S. No. 1783 Health dated August 2, 1966.
The Validity of the Government orders Nos.
1135 & 1136 was challenged on the ground that they infringed the fundamental freedoms guaranteed under articles 15(4), 16(4) and 29(2) of the Constitution.
The High Court held that in reserving seats for nominees of the Central Government and from other States, for cultural scholars, for women, for graduates and for students from H.S.C. & P.U.C. Courses, no fundamental rights were infringed, but the reservations for members of the backward classes described in the list prepared by the Government of Andhra Pradesh were invalid.
By article 15 of the Constitution, as originally enacted, it was provided that "(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2). . . . . . (3)Nothing in this article shall prevent the State from making my special provisions for women and children.
" Article 29(2) provided that "No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
By article 46, which occurs in Ch.
IV relating to Directive Principles of State Policy, the State was enjoined to promote the educational and economic interests of the weaker sections of the people, but articles ' 15 and 29 as originally framed prohibited the making of,any discrimination against any citizen on grounds only of religion,, race, caste, sex, place, of birth or any of them.
In the State of Madras vs Shrimati Champakam Dorairajan(1) an order issued by the Government of the State of Madras fixing the number of seats for particular communities for selection of candidates for admission to the Engineering and Medical Colleges in the State was challenged on the ground that it violated the guarantee against d crimination under article 25(2) of the"Constitution.
This Court held that the Government order constituted a violation of the (1) ; 598 fundamental right guaranteed to the citizens of India by article 29(2) of the Constitution, notwithstanding the directive principles of State policy laid down in Part IV of the Constitution.
The Part thereafter added cl.
(4) in article 15, by the Constitution (First Amendment) Act, 1951, providing that: "Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
" On July 31, 1962, the State of Mysore, in supersession of all previous orders made under article I 5(4) divided backward classes into two categories : backward classes and more backward classes, and reserved 68% of the seats in the Engineering and Medical Colleges and other technical institutions for the educationally and socially backward classes and the Scheduled Castes and Scheduled Tribes, and left 32% seats for the merit pool.
That order was challenged by a group of writ petitions under article 32 of the Constitution before this Court.
This Court in M. R. Balaji & others vs State of 'Mysore(1) held that the order passed by the State of Mysore "was a fraud on the constitutional power conferred on the State by article 15(4)" and was liable to be quashed, because the order categorised, contrary to the plain intendment of article 15(4), the backward classes on the sole basis of caste.
A similar order G.O. M.S. No. 1880 Health issued by the State of Andhra Pradesh on June 21, 1963, notifying a list of castes for the purpose of selecting candidates from the backward classes in the Medical Colleges in the State of Andhra Pradesh was declared invalid by the High Court of Andhra Pradesh on the ground that the order which classified the backward classes solely on the basis of caste subverted the object of article 15(4) of the Constitution : see P. Sukhadev and others vs The Government of Andhra Pradesh (2).
On February 3, 1964, the.
previous order issued by the State of Andhra Pradesh was cancelled.
Thereafter it is claimed by the ' State of Andhra Pradesh that it took steps to prepare a fresh list of backward classes consistently with the provisions of the Constitution.
The Chief Secretary of the Government of Andhra Pradesh has sworn in his affidavit that the Council of Ministers appointed a Sub Committee to draw up a list of backward classes, inter alia, for the purpose of admission of students to professional Colleges.
The Committee invited the Law Secretary and the Director of Social Welfare to attend the meetings of the Sub Committe, and letters were written to the other States calling for information about the criteria adopted by those States for determining backward classes for purposes of Am.
15(4) and 16(4) of the (1) [1963] Supp. 1 S.C.R. 439.
(2) (1966) 1 Andbra W.R. 294.
599 Constitution, that after considering the replies received from the Chief Secretaries of the various States it was resolved 'that the existing list of backward classes pertaining to Andhra and Telangana areas he scrutinised with a view to selecting from that list those castes or communities which are "considered backward on account of the low standard of living, education, poverty, places of habitation, inferiority of occupations followed etc "; that at another meeting it was resolved that the, list of 146 backward communities prepared by the Director be rearranged in "the order of priority in consultation with the Law Secretary, taking into consideration the criteria given by Law Secretary in his note to the Cabinet Sub Committee and that in doing so such of the criteria as capable of being practically possible for consideration may be taken into account", and accordingly the Law Secretary and the Director of Social Welfare considered the representations made by certain communities to the Government from time to time and "drew up a list of the order of priority as called for by the Cabinet Sub Committee", that thereafter the Cabinet Sub Committee made its recommendations which were considered by the Council of Ministers on July 4, 1966, and that the Council of Ministers considered the social, educational and economic conditions of the backward classes named in the lists submitted to them, and dealt with each individual class and deleted certain items or classes in the lists, changed the denomination of certain classes "for the more premise effectuation of concessions to those classes only who really need them", and consolidated the backward classes into one list, ruling out the priorities suggested by the Director of Social Welfare in accordance with the opinion of the Cabinet Sub Committee, and thereafter published resolution No. G.O. 1880 pursuant to which the rules were amended reserving 20% of the seats for the backward classes mentioned in the list prepared by the Cabinet of the State.
The list prepared on the basis of reservations for socially and educationally backward classes is indisputably a list community wise.
On behalf of the petitioners it was contended in the High Court that the Government of Andhra Pradesh had adopted the same list of backward classes which was struck down by the High Court in P. Sukhadev 's caw() with some slight modifications and the new list also having made a reservation in favour of castes and not classes, it infringed the guarantee Under article 15(1).
On behalf of the State it was urged that caste is one of the relevant tests in determining backwardness, and cannot be ignored in determining the socially and educationally backward classes: if a group has been classified as backward on other relevant considerations, the classification is not liable to be changed as invalid on the ground that for the purpose of classifying,the designation of caste 'is given.
The High Court held that the earlier G.O. was struck down (1) (1966) 1 Andhra W.R. 294.
600 in P. Cukhadev 's case( ') on the ground that it was based on caste alone, and since the G.O. under challenge was again prepared on the same basis it could not be sustained as falling within,the exception provided in article 15(4).
Counsel for the State contends that the High Court erred in holding that the impugned rules reserving seats for backward classes made caste the determining factor.
In the context in which it occurs the expression "class" means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence .in a locality, race, religion and the like.
In determining whether a particular section forms a class, caste cannot be excluded altogether.
But in the determination of a class a test solely based upon the caste or community cannot also be accepted.
By cl.
(1), article 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
By cl.
(3) of article, 15 the State is, notwithstanding the provision contained in cl.
(1), permitted to make special pro,vision for women and children.
By cl.
(4) a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes is outside the purview of cl.
But cl.
(4) is an exception to cl.
Being an exception, it cannot be extended so as in effect to destroy the Guarantee of cl.
The Parliament has by enacting cl.
(4) attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision to be made for their advancement.
In order that effect may be given to cl.
(4), it must a pear that the beneficiaries of the special provision are classes which are backward socially and educationally and they are other than the Sche duled Castes and Scheduled Tribes, and that the provision made .is for their advancement.
Reservation may be adopted to advance the interests of weaker sections of society, but in doing so, care must be taken to see that deserving and qualified candidates are not excluded from admission, to higher educational institutions.
The criterion for determining the backwardness Must not be based solely on religion, race, caste, sex, or place of birth, and, the backwardness being social, and educational must be similar to the backwardness from which the Scheduled Castes and the Scheduled Tribes suffer.
These are the principles which have been enunciated in the decision of this Court in.
M. R. Balaji 's case(3) and R. Chitralekha & Another vs State of Mysore.and.
others(2).
In R. Chitralekha 's case (2), Subba Rao, J., speaking for the majority of the Court observed at p. 388 (1) (1963) Supp.1 S.C.R.439. (2) (1964) 6 S.C.R.368 601 .lm15 "The important factor to be noticed in article 15(4) is that it does not speak of castes, but only speaks of classes.
If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes.
Though it may be suggested that the wider expression "cLasses" is used in cl.
(4) of article 15 as there are communities without castes, if the intention was to equate classes with castes, nothing prevented the makers of the constitution from using the expression "backward classes or castes '.
The juxtaposition of the expression "backward classes" and "Scheduled Castes" in article 15(4) also leads to a reasonable inference that the expression "classes" is not synonymous with castes.
It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong.
" In a recent judgment of this Court P. Rajendran & Ors.
vs The State of Madras and others( '), Wanchoo, C.J., speaking for the Court observed : ".
if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of article 15(1).
But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within, the meaning of article 15(4).
It is true that in the present cases the list of socially and educationally backward classes has been specified by caste.
But that does not necessarily mean that caste was the sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens.
" That case makes no departure from the rule enunciated in the earlier cases.
The list dated June 21, 1963, of castes prepared by the Andhra Pradesh Government to determine backward classes for the purpose of article 15(4) was declared invalid by the High Court of ' Andhra Pradesh in P. Sukhadev 's case( ').
A fresh list was published under the amended rules with some modifications, but the (1) ; (2) [1966] 1 Andhra W.R. 294.
602 basic scheme of the list was apparently not altered.
It is true that the affidavits filed by the Chief Secretary in the High Court and the Director of Social Welfare in this Court have set out the steps taken for preparing the Est of backward classes.
It is also stated in the affidavit of the Director of Social Welfare that he considered the representations made to him, consulted the Law Secretary and certain publications relating to the study of backward classes e.g. Thurston 's "Caste and Tribes" and Sirajul Hasan 's "Castes and Tribes", and made his recommendations which were modified by the Sub Committee appointed by the Council of Ministers and ultimately the Council of Ministers prepared a final list of backward classes.
But before the High Court the materials which the Cabinet Sub Committee or the Council of Ministers considered were not placed, nor was any evidence led about the criteria adopted by them for the purpose of determining the backward classes.
The High Court observed : "A perusal of this affidavit (Chief Secretary 's affidavit) as well as that of the Director of Social Welfare,.
.which are filed on behalf of the Government do not say what was the material placed before the Cabinet Sub Committee or the Council of Ministers, from which we could conclude that the criteria laid down by their Lordships of the Supreme Court have been applied in preparing the list of backward classes.
After referring to the opinion of the Law Secretary and the views ,of the Director of Social Welfare they observed: ".
We are not able to ascertain whether any material, and if so, what material was placed before the Cabinet Sub Committee, upon which the list of backward classes was drawn.
On the other hand, it is stated that the Law Secretary and the Director of Social Welfare sat together and drew up a list, the former specifying the legal requirements and the latter as an expert advising on the social and educational backwardness of class or classes.
" It was urged before the High Court that expert knowledge of the Director of Social Welfare and of the Law Secretary was brought to bear upon the consideration of the relevant materials in the preparation of the list and they were satisfied that the correct tests were applied in the determination of backward classes and on that account the list should be accepted by the High Court.
The High Court in dealing with the argument observed: ". the impugned backward classes list cannot be and has not been sustained by the Government as 603 coming within the exception provided in article 15(4) on any material placed before this Court.
In fact, there is a total absence of any material, from which we can say that the Government applied the criteria enunciated by their Lordships of the Supreme Court in the above referred cases, in preparing the list of backward classes.
We cannot accept the contention of the learned Advocate General that "once there is proof that the Government bona fide considered the matter it is sufficient".
Acceptance of this argument would make for arbitrariness, absolving the party on whom the burden of proof to bring it within the exception rests, from proving it.
The mere fact that the act is bona fide and that there was total absence of mala fides, is not relevant.
" Article 15 guarantees by the first clause a fundamental right of far reaching importance to the public generally.
Within certain defined limits an exception has been engrafted upon the guarantee of the freedom in cl.
(1), but being in the nature of an exception, the conditions which justify departure must be strictly shown to exist.
When a dispute is raised before a Court that a particular law which is inconsistent with the Guarantee against discrimination is valid on the plea that it is permitted under cl.
(4) of article 15, the assertion by the State that the officers of the State had taken into consideration the criteria which had been adopted by the Courts for determining who the socially and educationally backward classes of the Society are, or that the authorities had acted in good faith in, determining the socially and educationally, backward classes of citizens, would not be sufficient to sustain the validity of the claim.
The Courts of the country are invested with the power to determine the validity of the law which infringes the fundamental rights of citizens and others and when a question arises whether a law which prima facie infringes a guaranteed fundamental right is within an exception, the validity of that law has to be determined by the Courts on materials placed before them.
By merely asserting that the law was made after full consideration of the relevant evidence and criteria which have a bearing thereon, and was within the exception, the jurisdiction of the .Courts to determine whether by making the law a fundamental right has been infringed is not excluded.
The High Court has repeatedly observed in the course of their judgment that no materials at all were placed on the record to enable them to decide whether the criteria laid down by this Court for determining that the list prepared by the Government conformed to the requirements of cl.
(4) of article 15 were followed.
On behalf of the State it was merely asserted that an enquiry was in fact made with the aid of expert officers and the Law Secretary and the question was examined from all points of view by the L7Sup.
C.I/68 14 604 officers of the State, by the Cabinet Sub Committee and by the Cabinet.
But whether in that examination the correct criteria were applied is not a matter on which any assumption could be made especially when the list prepared is exfacie based on castes or communities and in substantially the list which was struck down by the High Court in P. Sukhadev 's case(1) Honesty of purpose of those who prepared and published the list was not and is not challenged, but the validity of a law which apparently infringes the fundamental rights of citizens cannot be upheld merely because the law maker was satisfied that what he did was right or that he believes that he acted in manner consistent with the constitutional guarantees of the citizen.
The test of the validity of a law alleged to infringe the fundamental rights of a citizen or any.
act done in execution of that law lies not in the belief of the maker of the law or of the person executing the law, but in the demonstration by evidence and argument before the Courts that the guaranteed right is not infringed.
The appeal therefore fails and is dismissed.
, R.K.P.S. Appeal dismissed.
(1) [1966] 1 Andhra W.R. 294.

summary:
By an order of the State Government, Andhra Pradesh, issued on July 29, 1966, 20% of the total number of seats for admission to medical colleges in the State were reserved, for members of the backward classes described in a list prepared by the Government.
This order and the list were challenged in writ petitions before the High Court on the, ground that another list published by the State Government on June 21, 1963 determining backward classes for the purpose of article 15(4) of the Constitution had been declared invalid by the High Court in an earlier case as being violative of article 15(1); it was contended that the State Government had adopted substantially the same list of backward classes with slight modifications and as the new list also made the reservation in favour of castes and not classes, it infringed the guarantee under article 15(1).
On behalf of the State Government it was urged that caste is one of the relevant tests in determining backwardness, and cannot be ignored in determining socially and educationally backward classes and if a group has been classified as backward on other relevent considerations, the classification is not liable to be challenged as invalid on the ground that for the purpose of classifying, the designation of caste is given.
It was stated in an affidavit on behalf of the State that the new list had been prepared by a Cabinet sub committee and 'approved by the Cabinet after a detailed enquiry of the conditions of the castes in question and on expert advice of the Director of Social Welfare as well as under the guidance of the Law Secretary; and that they were both satisfied that the correct tests were applied in the determination of the backward classes.
The High Court held that the reservations of seats for the members of the backward classes described in the list prepared by the Government were in , Aid.
The State appealed to this Court by special leave.
HELD:dismissing the appeal, The impugned list prepared by the State was ex facie based on castes or communities and wag substantially the same list which bad been struck down by the High Court as invalid in the earlier case.
No materials were placed on the record to enable the Court to decide whether the criteria laid down for determining that the list prepared by the Government conformed to the requirements of cf.
(4) or article 15 were followed.
Article 15 guarantees by the first clause a fundamental right of farreaching importance.
Clause (4) is an exception engrafted upon the guarantee in cl.
(1), but being id the nature of an exemption conditions which justify departure must be strictly shown to exist.
When a dispute is raised before a Court that a particular.
law which is inconsistent with the guarantee against discrimination is valid on the plea that it is permitted 596 under cl.
(4) of article 15, the mere assertion by the State that the officers of the State had taken into consideration the criteria which had been adopted by the courts for determining who the socially and educationally backward classes of the Society are, or that the authorities had acted in good faith in determining the socially and educationally backward classes of citizens, would not be sufficient to sustain the validity of the claim.
If a question arises whether a law which prima facie infringes a fundamental right is within an exception, the validity of that law has to he determined by the courts on materials placed before them.
By merely asserting that the law was made after full consideration of the relevant evidence and criteria which have a bearing thereon, and was within the exception, the jurisdiction of the courts to determine whether by makinig the law a fundamental right has been infringed is not excluded.
[603 C G].
Case law referred to.