judgement:
Civil Apptal Nos.
1285 1296 of 1970.
Appeals by Special Leave from the Judgment and order dated 6 3 1969 of the Mysore High Court in W.P. Nos.
2560 61/66 and 46, 47, 50, 51, 975, 1718, 1719, 1921, 1979 and 1980/67.
G. L. Sanghi, M. N. Shroff and Miss A. Subhashini for the Appellants.
R. B. Datar for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
These appeals by special leave are directed against the judgment of the Karnataka High Court allowing 12 writ petitions filed by different respondents.
Each of the respondents owned at the material time not more than 4 powerlooms and carried on business of manufacturing cotton fabrics on those powerlooms.
The case of the respondents was that each of them acquired his powerlooms from person who were or had been licensees and started manufacturing cotton fabrics on those powerlooms prior to 1st April, 1961.
The respondents claimed that since each of them had not more than 4 powerlooms in his factory, no excise duty was payable on the cotton fabrics manufactured by him and this claim for exemption was based on a notification dated 5th January, 1957 issued by the Government of India in exercise of the powers conferred upon it by Rule 8(1) of the Central Excise Rules, 1944.
The Superintendent of Central Excise, however.
rejected the claim for exemption on the ground that though the powerlooms owned by each of the respondents were not more than 4, manufacture of cotton fabrics on them had started after 1st April, 1961 and none of the respondents was, therefore, entitled to exemption from payment of excise duty on the cotton fabrics manufactured by him.
The excise duty was accordingly levied on each of the respondents by the Superintendent of Central Excise and this levy was confirmed in appeal by the Assistant Collector and in further appeal by the Collector of Central Excise.
Each of the respondents thereupon preferred a writ petition in the Karnataka High Court challenging the levy of excise 516 duty and praying that a writ of mandamus may be issued against the Excise Authorities directing them not to enforce the notice demanding excise duty.
The writ petitions were allowed by the High Court and hence the Union of India preferred the present appeals after obtaining special leave from this Court.
Before we proceed to examine the rival contentions of the parties in regard to the controversy arising in these appeals, it is necessary to set out briefly the relevant provisions of law having a bearing on this controversy.
The Central Excise and Salt Act, 1944 by section 3 read with Item 19 provided for levy of excise duty on all varieties of cotton fabrics including cotton fabrics manufactured on powerlooms.
Section 37 sub section (2) of the Act conferred power on the Central Government to make Rules providing for a number of matters including inter alia clause (xvii) which was in the following terms: "Exempt any goods from the whole or any part of duty imposed by this Act.
" The Central Government in exercise of this rule making power made the Central Excise Rules, 1944 of which Rule 8 clause (1) provided that "the Central Government may from time to time by notification in the official Gazette exempt, subject to such conditions as may be specified in the notification, any excisable goods from the whole or any part of the duty leviable on such goods.
" In exercise of this power of exemption conferred under Rule 8 clause (1) the Central Government issued a notification dated 5th January, 1957 exempting certain varieties of cotton fabrics from the whole of the excise duty leviable thereon and one of such varieties set out in Item 7 was as under: "Cotton fabrics produced in factories commonly known as powerlooms (without spinning plants) provided that the number of powerlooms producing cotton fabrics in such factories does not exceed four." This item was later substituted by another item by a notification of the Central Government dated 19th January, 1957 and the substituted item was as follows: "Cotton fabrics manufactured by or on behalf of the same person in one or more factories commonly known as powerlooms (without spinning plants), in which less than 5 powerlooms in all are installed.
" The scope of the exemption granted under this item was restricted by the addition of the following proviso by a Central Government notification dated 26th November.
1960: 517 "Provided that this exemption shall not be applicable to a manufacturer who commences production of the said fabrics for the first time on or after the 1st December, 1960 by acquiring powerlooms from any other person who is.
or has been a licensee of powerloom factory.
" There was a further change made by a notification issued by the Central Government on 1st March, 1961 and the then existing Item 7 was substituted by the following Item: "(7) Cotton fabrics manufactured by or on behalf of the same person in one or more factories commonly known as powerlooms (without spinning plants) in which less than 3 powerlooms in all but not roller locker machine are installed.
" The result was that the exemption granted under Item 7 was considerably narrowed down and the proviso taking away the exemption in certain cases was deleted.
But again, by a notification dated 1st April, 1961, the Central Government introduced the following proviso under Item 7: "Provided that this exemption shall not be applicable to a manufacturer who commences production of the said fabrics for the first time on or after the 1st April, 1961 by acquiring powerlooms from any other person who is or has been a licensee of powerloom factory." Thus from 1st March, 1961 the benefit of the exemption from excise duty was available only to those manufacturers who had not more than 2 powerlooms in all in their factories and from and after 1st April, 1961 even this limited exemption was withdrawn from manufacturers who commenced production of cotton fabrics for the first time on or after 1st April, 1961 by acquiring powerlooms from any person who was or had been a licensee of powerloom factory.
Now in the present appeals each of the respondents owned admittedly not more than 4 powerlooms, but it does not appear from the record before us as to whether any of them owned more than 2 powerlooms.
If it is found that any of the respondents owned more than 2 powerlooms, he would not be within the exemption granted under Item 7 of the amended Notification dated 5th January.
1957 and excise duty would be payable on the cotton fabrics manufactured by him.
But even if any of the respondents owned not more than 2 powerlooms and was, therefore, within the exemption granted under item 7 of the amended notification dated 5th January, 1957, the question would still arise whether he forfeited the exemption by reason of the proviso to Item 7 introduced by the notification dated 1st 518 April, 1961.
The answer to this question would depend upon the true construction of the proviso and we shall presently consider this question, but before we do so, it is necessary to refer to some other notifications issued by the Central Government under the Central Excise Rules, 1944.
On 1st March, 1961, the Central Government in exercise of the power conferred upon it under Rule 96 J of the Central Excise Rules, 1944 issued a notification providing for a compounded levy scheme for payment of excise duty on cotton fabrics.
By this notification, the Central Government fixed different rates "per shift, per month, per powerloom employed by or on behalf of the same person in the manufacture of cotton fabrics" depending upon the number of powerlooms employed by such person.
The rates prescribed for a case where more than 2 but not more than 24 powerlooms were employed were Rs. 20 where medium and/or coarse fabrics were manufactured and Rs. 25 where the powerlooms were employed in the manufacture of superfine and/or fine fabrics.
There was a proviso at the foot of the notification (hereinafter referred to as the first proviso) which laid down as to how the computation should be made where roller locker machines were employed.
The rates prescribed for a case where more than 2 but not more than 24 powerlooms were employed, were partially modified with retrospective effect by a subsequent notification issued by the Central Government on 18th March, 1961 and the new rates were Rs. 10 and Rs. 12.50 in respect of the first 4 powerlooms and Rs. 20 and Rs. 25 in respect of the balance.
The first proviso dealing with the case where roller locker machines were employed however, remained unchanged.
Then came another notification of the Central Government dated 1st April, 1961 by which the notification dated 18th March, 1961 was amended by substituting the words "where more than 2 but not more than 24 powerlooms are employed" by the words "where not more than 24 powerlooms are employed" and adding a further proviso (hereinafter referred to as the third proviso) after the existing first proviso: "Provided also that where a person commences manufacture of the said fabrics for the first time on or after the 1st April, 1961, by acquiring powerlooms from any other person who is, or has been.
a licensee of powerloom factory, the rate per shift, per month, per powerloom shall be the next higher rate, if any.
" This was followed by a notification dated 20th April, 1961 issued by the Central Government by which after the first proviso, the following proviso (hereinafter referred to as the second proviso) was inserted in the notification dated 18th March, 1961 519 "Provided further that where a person employs not more than four powerlooms and the said powerlooms are worked in not more than one shift, no duty shall be payable in respect thereof.
" The result was that from 18th March, 1961 upto 1st April, 1961, a manufacturer having more than two but not more than 24 powerlooms was liable to pay excise duty at the rates set out in the amended notification dated 18th March, 1961 and from 1st April, 1961 to 21st April, 1961, the position was that if such a manufacturer was found to have commenced manufacture of cotton fabrics for the first time on or after 1st April, 1961 by acquiring powerlooms from another person who was or had been a licensee of powerloom factory, the rate at which excise duty would be payable by him would be the next higher rate specified in the amended notification dated 18th March, 1961.
So far as a manufacturer having two or less powerlooms was concerned, he was during the period from 18th March, 1961 upto 1st April, 1961 exempt from excise duty by reason of the notification dated 5th January, 1957, but from 1st April, 1961 to 21st April, 1961 this exemption stood with drawn if it was found that the manufacturer had commenced manufacture of cotton fabrics for the first time on or after 1st April, 1961 by acquiring powerlooms from another person who was or had been a licensee of powerloom factory and in such a case a manufacturer would be liable to pay excise duty at the next higher rate prescribed in the amended notification dated 18th March, 1961.
This was the position which obtained upto 20th April, 1961, when the second proviso was introduced exempting a manufacturer employing not more than 4 powerlooms and working even in not more than one shift from payment of excise duty.
Each of the respondents had admittedly not more than 4 powerlooms and it was the case of the respondents that these powerlooms were worked in not more than one shift and hence the respondents claimed that they were exempted from liability for payment of excise duty by virtue of the second proviso.
But the answer made on behalf of the Revenue was that the third proviso carved out an exception from the second proviso and since each of the respondents commenced manufacture of cotton fabrics for the first time after 1st April, 1961, he was not exempt from payment of excise duty, but was liable to pay the same at the next higher rate provided in the amended notification dated 18th March, 1961.
Now going back to the proviso under Item 7 of the notification dated 5th January, 1957, we find that the language of this proviso is clear and explicit and does not admit of any doubt or equivocation.
It says in so many terms that the exemption under Item 7 shall not be applicable to a manufacturer who has commenced his production 520 of cotton fabrics for the first time on or after 1st April, 1961 by acquiring powerlooms from another person who is or has been a licensee of powerloom factory.
There are two conditions which must exist before the mischief of the proviso is attracted.
One is that the manufacturer must have commenced production of cotton fabrics for the first time on or after 1st April, 1961 and the other is that the powerlooms on which he manufactures cotton fabrics must have been acquired by him from a person who is or has been a licensee of powerloom factory.
It is clear on a plain grammatical construction that the prescription of the date, 1st April, 1961, has reference only to commencement of production of the cotton fabrics and not to the acquisition of the powerlooms.
What is required is that the production of cotton fabrics must have been commenced by the manufacturer for the first time on or after 1st April, 1961 and not that the powerlooms also must have been acquired by him on or after that date.
It is immaterial as to when the manufacturer acquired the powerlooms; he may have acquired them prior to 1st April, 1961; that is totally irrelevant.
The only attribute that the powerlooms must satisfy is that they must have been acquired from a person who is or has been a licensee of powerloom factory and if this attribute is present, then it is of no consequence as to when the powerlooms were acquired by the manufacturer.
The event which then attracts the applicability of the proviso is that the manufacturer should have commenced production of cotton fabrics on these powerlooms for the first time on or after 1st April, 1961.
If this condition is satisfied, the proviso comes into play and withdraws the exemption which would otherwise have been available to the manufacturer under the main Item 7.
If the intention of the Central Government in framing the proviso was that not only the production of cotton fabrics on the powerlooms should have commenced on or after 1st April, 1961, but that the powerlooms also should have been acquired by the manufacturer on or after that date, the Central Government could have easily expressed such intention by using appropriate language in the proviso.
The Central Government could have transposed the words "on or after the 1st April, 1961" and put them at the end of the proviso.
That would have clearly conveyed the intention of the Central Government that the powerlooms must be acquired by the manufacturer on or after 1st April, 1961 and if the powerlooms are acquired on or after 1st April, 1961, it must follow a fortiorari that the production of cotton fabrics on the powerlooms by the manufacturer would necessarily commence on or after that date.
But the Central Government advisedly placed the words "on or after the 1st April, 1961" after the clause referring to commencement of production and before the clause relating to acquisition of powerlooms.
It is a 521 well settled rule of interpretation applicable alike to the rule making authority as to the legislature that where there are two expressions which could have been used to convey a certain intention, but one of these expressions conveys that intention less clearly than the other, it is proper to conclude that if the draftsman used that one of the two expressions which would convey the intention less clearly, he does not intend to convey that intention at all.
Moreover, here the dictates of grammar as well as language compel us to take the view that the date 1st April, 1961 has reference only to commencement of production and not to acquisition of the powerlooms.
It is to our mind clear that if a manufacturer is found to have commenced production of cotton fabrics on powerlooms for the first time on or after 1st April, 1961, he would fall within the mischief of the proviso and it would be entirely immaterial as to when he acquired the powerlooms, whether before or after 1st April, 1961, so long as the powerlooms are acquired from a person who is or has been a licensee of powerloom factory.
The High Court was, therefore, clearly in error in construing the language of this proviso to mean that the powerlooms also must have been acquired by the manufacturer on or after 1st April, 1961 in order to attract the applicability of the proviso.
The same construction must obviously be placed on the third proviso introduced in the notification dated 18th March, 1961 by the notification of 1st April, 1961.
The language and structure of the third proviso are identical with the language and structure of the proviso under Item 7 of the notification dated 5th January, 1957 and the same view must, therefore, govern the interpretation of the third proviso.
It is unnecessary to repeat what we have said in the foregoing paragraph, because what we have said there applies fully and completely in regard to the interpretation of the third proviso and, therefore, in order to determine whether this proviso is applicable to any of the respondents, we have to consider whether the respondent concerned commenced manufacture of cotton fabrics on the power looms for the first time on or after 1st April, 1961, irrespective whether he acquired the powerlooms before or after that date.
The only relevant inquiry necessary to be made is as to when the manufacturer of cotton fabrics on the powerlooms was commenced for the first time by the respondent.
If it was on or after 1st April, 1961, the mischief of the third proviso would be attracted and the respondent would be liable to pay excise duty at the next higher rate.
Of course, the second proviso introduced in the notification dated 18th March, 1961 with effect from 20th April, 1961 provided that where a person employs not more than 4 powerlooms and these powerlooms are worked in not more than one shift, no excise duty shall be payable in respect thereof, 522 but the third proviso on its proper interpretation, enacts a substantive provision for payment of excise duty at the next higher rate in the cases therein specified and this substantive provision overrides the second proviso.
The second proviso exempts a manufacturer employing not more than 4 powerlooms and working not more than one shift from payment of excise duty in those cases which do not fall within the third proviso and where a case is covered by the third proviso, the second proviso would be inapplicable and the manufacturer would be liable to pay excise duty, at the next higher rate.
This is the only way in which the two provisos can be harmoniously construed in a manner which would give effect to both.
We are, therefore, of the view that even though each of the respondents in the present case owned not more than four powerlooms, he would be liable to pay excise duty at the next higher rate under the third proviso to the notification dated 18th March, 1961, if he started manufacture of cotton fabrics on his powerlooms for the first time on or after 1st April, 1961, irrespective whether he acquired the powerlooms from the licensee before or after that date.
We must, therefore, set aside the judgment of the High Court and send the matter back to the High Court so that the High Court may decide the writ petitions of the respondents in accordance with law and in the light of the observations contained in this judgment.
We accordingly allow the appeals, set aside the judgment of the High Court and remand the writ petitions to the High Court for disposal in accordance with the law.
Though the appellants have succeeded, they will pay the costs of the respondents as provided in the order granting special leave.
N.K.A. Appeals allowed.

summary/full:
Exercising the power of exemption conferred under rule 8(1) of the Central Excise Rules, 1944, the Central Government by a notification dated January 5, 1957 exempted certain varieties of cotton fabrics from the whole of the excise duty leviable thereon.
Item 7 set out one of such varieties as under: "Cotton fabrics produced. powerlooms. provided that the number of powerlooms producing cotton fabrics in such factories does not exceed four.
" By a notification dated November 26, 1960 a proviso was added to this item stating that "this exemption shall not be applicable to a manufacturer who commences production for the first time on or after the December 1, 1960 by acquiring powerlooms from any other person who is or has been a licensee of a powerloom factory.
" From March 1, 1961 item 7 was substituted and from April 1, 1961 a proviso was added to item 7, the effect of both of which was that while from March 1, 1961 the benefit of exemption from excise duty was available only to those manufacturers who had not more than two powerlooms in their factories, from and after April 1, 1961 even this limited exemption was withdrawn from manufacturers who commenced production for the first time on or after April 1, 1961 by acquiring powerlooms from any person who was or had been a licensee of powerloom factory.
From March 18, 1961 a second proviso to item 7 was added which provides "where a person employs not more than four powerlooms and the said powerlooms are worked in not more than one shift no duty shall be payable in respect thereof".
From April 1, 1961 a third proviso was added stating "where a person commences manufacture of the said fabrics for the first time on or after April 1, 1961 by acquiring powerlooms from any other person who is or has been a licensee of powerloom factory the rate per shift per month per powerloom shall be the next higher rate if any".
The respondents had acquired powerlooms after April 1, 1961 from persons who were or had been licensees and were manufacturing cotton fabrics on those powerlooms prior to April 1, 1961.
They claimed that since each of them had not more than four powerlooms which worked in not more than one shift he was exempt from payment of excise duty by virtue of the second proviso to item 7.
The Superintendent of Central Excise on the other hand contended that the third proviso carved out an exception from the second proviso and since 514 each of the respondents commenced manufacture of cotton fabrics for the first time after April 1, 1961 he was not exempt from payment of excise duty but was liable to pay duty at the next higher rate provided in the amended notification of March 18, 1961.
Appeals of the respondents having been rejected by the Assistant Collector and the Collector they filed writs in the High Court challenging the levy of excise duty.
Their writ petitions were allowed by the High Court.
Allowing the appeals ^ HELD:(1) It is a well settled rule of interpretation applicable alike to the rule making authority as to the legislature that where there are two expressions which could have been used to convey a certain intention, but one of these expressions conveys that intention less clearly than the other, it is proper to conclude that if the draftsman used that one of the two expressions which would convey the intention less clearly, he does not intend to convey that intention at all.
[523 A] It is clear on a plain grammatical construction of the proviso under Item 7 of the Notification dated 5th January, 1957 that the prescription of the date 1st April, 1961 has reference only to commencement of production of the cotton fabrics and not to the acquisition of the powerlooms.
What is required is that the production of cotton fabrics must have been commenced by the manufacturer for the first time on or after 1st April, 1961 and not that the powerlooms also must have been acquired by him on or after that date.
[520 C D] 2 (a) Even though each of the respondents owned not more than four powerlooms he would be liable to pay excise duty at the next higher rate under the third proviso to the notification dated March 18, 1961, if he started manufacture of cotton fabrics on his powerlooms for the first time on or after April 1, 1961, irrespective whether he acquired the powerlooms from a licensee before or after that date.
[522 C D] (b) The exemption under item 7 is not applicable to a manufacturer who has commenced his production of cotton fabrics for the first time on or after April 1, 1961, by acquiring powerlooms from another person who is or has been a licensee of a powerloom factory.
Two conditions which must exist before the mischief of the proviso is attracted are: (1) the manufacturer must have commenced production of cotton fabrics for the first time on or after April 1, 1961 and (2) the powerlooms on which he manufactures cotton fabrics must have been acquired by him from a person who is or has been a licensee of a powerloom factory.
The event which attracts the applicability of the proviso is that the manufacturer should have commenced production of cotton fabrics on these powerlooms for the first time on or after April 1, 1961.
If this condition is satisfied the proviso comes into play and withdraws the exemption which would otherwise have been available to the manufacturer under item 7.
[519H 520B, E] (3) The language and structure of the third proviso being identical with the language and structure of the proviso under item 7 of the notification dated 5th January, 1957 the same view must govern the interpretation of the third proviso.
[521 E] 515 The third proviso on its proper interpretation, enacts a substantive provision for payment of excise duty at the next higher rate in the cases therein specified and this substantive provision overrides the second proviso which exempts a manufacturer employing not more than four powerlooms and working not more than one shift from payment of excise duty in those cases which do not fall within the third proviso and where a case, is covered by the third proviso the second proviso would be inapplicable and the manufacturer would be liable to pay excise duty at the next higher rate.
[522 A B]


judgement:
Civil Appeal No. 1134 of 1974.
From the Judgment and Order dated 2 8 1973 of the Gujarat High Court in L.P.A. No. 255/71.
Appellant in person.
L. J. Nain and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by certificate granted under Article 133(1)(c) of the Constitution of India by the High Court of Gujarat is directed against its judgment dated 2 8 1973 and the sole point requiring decision therein is as to whether an order passed by the President of India under sub section (1) of section 29 of The Bombay Reorganization Act, 1960 (hereinafter referred to as the Act) and determining that the appellant shall on the 1st day of May 1960 cease to be a Judge of the High Court of Bombay and become a Judge of the High Court of Gujarat is to be regarded as an order of transfer under article 222(1) of the Constitution.
The appellant was appointed an Additional Judge of the High Court of Bombay on June 29, 1959.
After the Act came into force the President of India passed the said order (hereinafter referred to as the impugned order) under section 29(1) of the Act in respect of the appellant, who was still an Additional Judge of the High Court of Bombay (and 4 other Judges of that Court) so that with effect from the 1st of May 1960 the appellant became an Additional Judge of the High Court of Gujarat.
Claiming that the impugned order amounts to an order of transfer within the meaning of article 222(1) of the Constitution the appellant brought a petition under article 226 thereof with the prayer that the Governments of the Union of India and the State of Gujarat be directed to pay him an allowance to which, according to him, he had become entitled under article 222(2) of the Constitution with effect from October, 1963.
Another prayer was also made in the petition but therewith we are no longer concerned as the same was withdrawn at a later stage.
In order to appreciate the contention raised by the appellant before a learned Single Judge of the Gujarat High Court and again in the Letters Patent Appeal before the Division Bench which passed 615 the judgment now under appeal, it is necessary to set out the provisions of clause (1) of article 217 and those of article 222 of the Constitution: "217(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty two years: "Provided that (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India." "222(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. "(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix.
" According to the appellant 's contentions before the High Court the only source of power conferred on the President to effect the transfer of a Judge from one High Court to another was article 222 read with article 217(1)(c) and the impugned order which was an order flowing from that source of power, therefore amounted to an order of transfer even though it was passed under section 29(1) of the Act which runs thus: "(1).
Such of the Judges of the High Court of Bombay holding office immediately before the appointed day as may be determined by President shall on that day cease to be Judges of the High Court at Bombay and become Judges of the High Court of Gujarat.
" 616 The High Court noted that the Act was passed in pursuance of the powers vested in Parliament under articles 3 and 4 of the Constitution.
Article 3 provides, inter alia, for the formation of new States.
Under clause (a) thereof Parliament may by law form a new State by separation of territory from any existing State or by uniting two or more existing States or parts thereof or by uniting any territory to a part of any State.
Under article 4(1) any law referred to in article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of such law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.
Under clause (2) of article 4 no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368.
The learned Single Judge held that an order under section 29 of the Act was an order of "allocation" of Judges of the High Court of Bombay to the two new High Courts and that such allocation did not amount to a transfer within the meaning of article 217(1)(c) or 222(1) of the Constitution.
It was in that view of the matter that he dismissed the petition presented by the appellant.
In Letters Patent Appeal the Division Bench was of the opinion that although the impugned order amounted to an order of transfer, the transfer effected by it was of a type entirely different from that contemplated by article 222(1).
In effect, however, the reasons for dismissal of the appeal were the same as those for which the petition could not succeed before the learned Single Judge.
According to the Division Bench the transfer envisaged by article 222 was a transfer in a situation when a Judge of a High Court was sent to another existing High Court for reasons which had nothing to do with the bifurcation or reorganisation of a State and the setting up of a new High Court in consequence, while section 29 of the Act was part of the provisions which were supplemental, incidental or consequential to the formation of the State of Gujarat.
It was also argued before the Division Bench that the Government of Gujarat itself had, during the course of its correspondence with the appellant, treated his appointment to the High Court of Gujarat as a transfer from the High Court of Bombay, a fact which was not denied but which, the High Court held, had no bearing on the matter in dispute as there was no plea of estoppel raised in the petition presented by the appellant.
After hearing the appellant in person and learned counsel for the respondents we find no substance in the appeal and, broadly 617 speaking, our reasons for so holding coincide with those given by the learned Single Judge and the Division Bench of the High Court, Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental, incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution.
The provision contained in section 29 of the Act is clearly consequential to the formation of the State of Gujarat and the establishment of a High Court for it.
It was for the purpose of setting up that High Court that Judges then serving in the Bombay High Court were, so to say, "allotted" to the High Court of Gujarat; and although their appointment to the Gujarat High Court may partake of some of the characteristics of a transfer, we do not think that they can be said to have been transferred from the Bombay High Court to the Gujarat High Court within the meaning of article 222(1) of the Constitution.
The entitlement to compensatory allowance under article 222(2) is conditional upon the Judge being "so transferred", that is, transferred as envisaged by article 222(1).
Since the appellant was "allotted" to the Gujarat High Court on the setting up of that Court, he will not be entitled to claim the compensatory allowance.
In the result the appeal fails and is dismissed but there will be no order as to costs.
P.B.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Exercising power under section 29(1) of the Bombay Reorganisation Act the President had determined that the appellant who then was an additional Judge of the Bombay High Court should cease to be a Judge of that High Court and become a Judge of the newly formed High Court of Gujarat.
In his petition under article 226 of the Constitution the appellant claimed that the source of power to transfer a Judge from one High Court to another being in article 222 read with article 217(1) (c) of the Constitution the impugned order though purporting to have been passed under section 29(1) of the Bombay Reorganisation Act, amounted to an order of transfer of a Judge and therefore, he was entitled to the compensatory allowance contemplated by article 222(2).
A single Judge of the High Court held that the order passed under section 29 was an order of allocation of Judges of the erstwhile High Court of Bombay to the two new High Courts and that such allocation did not amount to transfer.
On appeal a Division Bench held that the transfer envisaged by article 222 was a transfer in a situation when a Judge of one High Court was sent to another existing High Court for reasons which had nothing to do with the bifurcation or reorganisation of a State and the setting up of a new High Court while section 29 was part of the provisions which were supplemental, incidental or consequential to the formation of the State of Gujarat.
Dismissing the appeal ^ HELD: The entitlement to compensatory allowance under article 222(2) is conditional upon the Judge being "so transferred", that is, transferred as envisaged by article 222(1).
Since the appellant was "allotted" to the Gujarat High Court on the setting up of that Court, he was not entitled to claim the compensatory allowance.
[617 D] Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental, incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution.
The provision contained in section 29 of the Act is clearly consequential to the formation of the State of Gujarat and establishment of a High Court for it.
It was for the purpose of setting up that High Court that Judges then serving in the Bombay High Court were so 614 to say allotted to the High Court of Gujarat and although their appointment to the Gujarat High Court may partake of some of the characteristics of a transfer, they cannot be said to have been transferred from the Bombay High Court to the Gujarat High Court within the meaning of article 222(1) of the Constitution.
[617 A C]


judgement:
Civil Appeal No. 278 of 1972.
From the Judgment Order dated 29 6 1970 of the Gujarat High Court in SCA No. 46/68.
Appellant in person.
M. M. Abdul Khader, J. L. Jain and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
This is an appeal by certificate granted by the High Court of Gujarat under article 133(1)(c) of the Constitution of India and is directed against its judgment dated 29th June 1970 dismissing a petition under article 226 of the Constitution in which the appellant, who began his career as a member of the Indian Civil and was ultimately appointed a High Court Judge, prayed for the issuance of appropriate writs to ensure that he was granted two pensions independently of each other, one in relation to his service as a High Court Judge and the other for the service rendered by him prior to his appointment as such.
The facts leading to the petition decided by the impugned judgment are not in dispute and may be shortly stated.
On the 6th October 1932 the appellant was appointed by the Secretary of State for India to the Indian Civil Service and was allotted to its Bombay 601 cadre.
On the 15th August 1947, he was serving as a District Judge in the Province of Bombay and thereafter continued in service in accordance with the provisions of section 10(2) of the Indian Independence Act, 1947 (hereinafter referred to as the 1947 Act) and article 314 of the Constitution.
He was appointed Additional Judge of the Bombay High Court on the 12th June 1959 and on bifurcation of the State of Bombay on the 1st May 1960 became an Additional Judge of the High Court of Gujarat wherein he was made a permanent Judge on the 5th April 1961 and continued to serve as such till 10th February 1969 on which date he submitted his resignation from and relinquished charge of his office Through a letter dated 28th May 1966 addressed to the Registrar of the High Court of Gujarat, the Accountant General, Gujarat requested the appellant to exercise his option in accordance with the proviso to section 15th of the high Court Judges (Conditions of Service) Act, 1954 (hereinafter called the 1954 Act) and to intimate whether he would receive his pension under Part I or Part II of the First Schedule to that Act.
The stand taken by the appellant was that he was not bound to exercise any option and that pension in relation to his service as a High Court Judge was payable to him under section 14 of the 1954 Act read with Part I of the said First Schedule.
The Government of India not having agreed with the stand taken by the appellant, he moved the High Court as stated above and in his petition challenged the validity of the second proviso to section 14 of the 1954 Act as also of clause (a) of section 15 thereof read with Part II of the said First Schedule.
The relevant provisions of law may with advantage be noticed here.
Prior to 1947 a High Court Judge was entitled to pension in accordance with paragraphs 17, 18 and 19 of the Government of India (High Court Judges) order, 1937 (for short the 1937 order) promulgated by His Majesty in Council under the provisions of section 221 of the Government of India Act, 1935.
Those paragraphs classified High Court Judges for purposes of pension into three categories according as (1) they were members of the Indian Civil Service, (2) members of services other than Indian Civil Service or (3) were not drawn from any of the civil services, and provided a different scale of pension for each category.
By virtue of section 10(2) of the 1947 Act, the 1937 order continued to be in force right up to the commencement of the Constitution, article 221(2) of which provided, inter alia: "Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from 602 time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule.
" Sub paragraphs (1) & (4) of paragraph 10 of Part D of the Second Schedule to the Constitution provided: "(1) There shall be paid to the Judges of the High Court of each State specified in Part A of the First Schedule, in respect of time spent on actual service, salary at the following rates per mensem, that is to say: The Chief Justice 4,000 rupees Any other Judge 3,500 rupees" "(4) The rights in respect of leave of absence (including leave allowances) and pension of the Judges of the High Court of any State shall be governed by the provisions which immediately before the commencement of this Constitution, were applicable to the Judges of the High Court in the corresponding Province." The provisions relating to pension contained in the 1937 Order thus continued to apply to High Court Judges till the 20th May 1954 when the 1954 Act came into force, after having been enacted by Parliament in exercise of its legislative power under article 221(2) of the Constitution.
Section 14 of the 1954 Act then stood as follows; "Subject to the provisions of this Act, every Judge shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part I of the First Schedule: "Provided that no such pension shall be payable to a Judge unless (a) he has completed not less than twelve years of service for pension; or (b) he has attained the age of sixty two years, and in the case of a Judge holding office on the 5th day of October, 1963, sixty years; or (c) his retirement is medically certified to be necessitated by ill health.
" The following proviso was added to sub paragraph (1) of paragraph 10 of Part D of the Second Schedule to the Constitution by the Constitution (Seventh Amendment) Act, 1956 (the 1956 Act, for brevity) with effect from the 1st November, 1956: "Provided that if a Judge of a High Court at the time of his appointment is in receipt of a pension (other than a disability 603 or wound pension) in respect of any previous service under the Government of India or any of its predecessor Governments or under the Government of a State or any of its predecessor Governments, his salary in respect of service in the High Court shall be reduced (a) by the amount of that pension, and (b) if he has, before such appointment, received in lieu of a portion of the pension due to him in respect of such previous service the commuted value thereof, by the amount of that portion of the pension, and (c) if he has, before such appointment, received a retirement gratuity in respect of such previous service, by the pension equivalent of that gratuity.
" The 1956 Act also deleted sub paragraph (4) above extracted.
A second proviso was added to section 14 of the 1954 Act by section 6 of the High Court Judges (Conditions of Service) Amendment Act, 1958 (for short the 1958 Act) with effect from the 1st November, 1956 and stated: "Provided further that if a Judge at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service in the Union or a State, the pension payable under this Act shall be in lieu of, and not in addition to, that pension.
" Section 15 of and the relevant portions of Parts I, II and III of the First Schedule to the 1954 Act as amended by the 1958 Act with effect from the 1st November, 1956, may also be set out in extenso: "15.
Every Judge (a) who is a member of the Indian Civil Service shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part II of the First Schedule; (b) who is not a member of the Indian Civil Service but has held any other pensionable Civil Post under the Union or a State, shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part III of the First Schedule: "Provided that every such Judge shall elect to receive the pension payable to him either under Part I of the First Schedule or, as the case may be, Part II or Part III of the First Schedule, and the pension payable to him shall be calculated accordingly." 604 "THE FIRST SCHEDULE "PENSION OF JUDGES "PART I "1.
The provisions of this Part apply to a Judge who is not a member of the Indian Civil Service or has not held any other pensionable civil post under the Union or a State and also apply to a Judge who, being a member of the Indian Civil Service or having held any other pensionable civil post under the Union or a State, has elected to receive the pension payable under this Part.
Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be the basic pension specified in paragraph 3 increased by the additional pension, if any, to which he is entitled under paragraph 5.
The basic pension to which such a Judge shall be entitled shall be (a) for the first seven completed years of service for pension, Rs. 5000 per annum; and (b) for each subsequent completed year of service for pension, a further sum of Rs. 1,000 per annum: "Provided that the basic pension shall in no case exceed Rs. 10,000 per annum.
For the purpose of calculating additional pensions, service as a Judge shall be classified as follows: "Grade I. Service as Chief Justice in any High Court; "Grade II.Service as any other Judge in any High Court.
For each completed year of service for pension in either of the grades mentioned in paragraph 4, the Judge who is eligible for a basic pension under this Part shall be entitled to the additional pension specified in relation to that grade in the second column of the table annexed hereto: "Provided that the aggregate amount of his basic and additional pension shall not exceed the amount specified in the third column of the said table in relation to the higher grade in which he has rendered service for not less than one completed year.
605 "TABLE "Service Additional pension Maximum aggregate per annum pension per annum.
Rs. Rs. "Grade I. 740 20,000 "Grade II.
470 16,000" "PART II "1.
The provisions of this Part apply to a Judge who is a member of the Indian Civil Service and who has not elected to receive the pension payable under Part I. "2.
The pension payable to such a Judge shall be (a) the pension to which he is entitled under the ordinary rules of the Indian Civil Service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) the additional pension, if any, to which he is entitled under paragraph 3.
If such a Judge has completed not less than seven years of service for pension in a High Court, he shall be entitled to an additional pension in accordance with the following scale: Per annum Rs. "For seven completed years of service for pension 1,333 For eight completed years of service for pension 1,600 For nine completed years of service for pension 1,866 For ten completed years of service for pension 2,133 For eleven completed years of service for pension 2,400 For twelve or more completed years of service for pension 2,666" 606 "PART III "1.
The provisions of this Part apply to a Judge who has held any civil pensionable post under the Union or a State (but is not a member of the Indian Civil Service) and who has not elected to receive the pension payable under Part I. "2.
The pension payable to such a Judge shall be (a) The pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) a special additional pension of Rs. 500 per annum in respect of each completed year of service for pension but in no case such additional pension together with the additional or special pension, if any, to which he is entitled under the ordinary rules of his service, shall exceed Rs. 2500 per annum.
The contentions raised on behalf of the appellant before the High Court were: A.
The second proviso to section 14 of the 1954 Act is violative of articles 221, 314 and 14 of the Constitution and is, therefore, void.
The appellant is accordingly entitled to elect for pension under Part I of the First Schedule to that Act without being required to forego the benefit of the pension earned by him prior to his elevation to the Bench.
B. Clause (a) of section 15 of the 1954 Act is applicable only to a Judge who is a member of the Indian Civil Service.
That Service, however, came to an end on the 15th of August, 1947 whereafter there was no Judge who could be said to be a member of that Service.
The clause has, therefore, no application to any situation prevailing after the said date.
C. Clause (a) of section 15 of the 1954 Act read with Part II of the First Schedule thereto is violative of article 14 of the Constitution so that in case the second proviso to section 14 of the 1954 Act is held to be good, the appellant would be entitled to pension under clause (b) of section 15 of that Act read with Part III of the said Schedule. 5.
In regard to contention A the High Court held that the appellant having accepted appointment as a High Court Judge in Continuation of his service as a District Judge, he never became entitled to pension for the period preceding his elevation to the Bench 607 so that the second proviso to section 14 of the 1954 Act never became applicable to him and the validity or otherwise of that proviso was irrelevant for the determination of his claim.
Contention B was negatived by the High Court on the ground that the expression "who is a member of the Indian Civil Service" appearing in clause (a) of section 15 of the 1954 Act had to be given some meaning in spite of the fact that the Indian Civil Service had ceased to be alive as such after August 15, 1947 and that the only reasonable way of interpreting the expression was to hold that it meant a person who had been a member of the Indian Civil Service immediately before August 15, 1947.
The conclusions arrived at by the High Court as a result of the consideration it gave to ground C may be summarised thus: (a) Under the Civil Service Regulations read with the 1937 Order a member of the Indian Civil Service who was promoted from the post of a District Judge to that of a High Court Judge was not entitled to pension for the period prior to his elevation to the Bench.
His right to pension accrued only when he relinquished the office of High Court Judge.
This position continued to obtain till the enforcement of the Constitution by reason of section 10(2) of the 1947 Act and after such enforcement by reason of the provisions of the Constitution, namely, articles 314 and 221(2) read with sub paragraph (4) of paragraph 10 of Part D of the Second Schedule as that sub paragraph stood prior to its deletion by the 1956 Act.
Thus the Constitution itself through its provisions just above mentioned provided that High Court Judges who had earlier been members of the Indian Civil Service would get pension according to the formula contained in the 1937 Order which was a formula different from the one applicable to High Court Judges who had not been members of any of the civil services.
(b) The 1954 Act preserved the trichotomy envisaged by the 1937 Order but made an additional provision that if a High Court Judge who had earlier been a member of the Indian Civil Service felt that it would be more beneficial to him to receive pension on the basis of the provisions set out in section 14 of the 1954 Act read with Part I of the First Schedule thereto he could elect to do so.
This additional provision was obviously introduced for the benefit of the erstwhile members of that Service.
608 (c) The Constitution itself put its seal on the trichotomy above detailed through articles 314 and 221(2) read with paragraph 10 of Part D of the Second Schedule and the differentiation made by the Constitution itself cannot be attacked as discriminatory when it was adopted by Parliament in the 1954 Act.
(d) The basis of calculating pension in clause (a) of section 15 of the Act read with Part II of the First Schedule thereto on the one hand and clause (b) of section 15 of that Act read with Part III of the said Schedule on the other, is continuity of service.
Service rendered by a person as High Court Judge is tagged on with any earlier service for the purpose of computation of basic pension; for, otherwise High Court Judges who had earlier been members of civil services would be deprived of the pensionary benefit in respect of their service rendered as such members.
This was the reason for the trichotomy which was adopted not only by the 1937 Order but also by the 1947 Act and later on by the Constitution as well as the 1954 Act for the benefit of such Judges.
The differentiation is not only not irrational but is eminently desirable and is based on rational criteria.
It was in the above premises that the High Court did not find any substance in the petition dismissed by the impugned order.
All the contentions raised before the High Court have been reiterated before us but after hearing the appellant in person at length we see no reason at all to differ from the conclusions reached by the High Court.
We may first take up contention B which need not detain us long.
It is a cardinal principle of interpretation of statutes that the legislature does not use meaningless language and that every word used by it must be presumed to have some meaning even though the phraseology employed may some times be obscure or ambiguous.
The expression "who is a member of the Indian Civil Service" appearing in clause (a) of section 15 of the 1954 Act cannot be just ignored as being inapplicable to an existing situation and thus rendered otiose.
As pointed out by the High Court what was meant was to describe as a class High Court Judges who had earlier been members of the Indian Civil Service so that they could be distinguished from High Court Judges who had not been such members.
In this connection it is noteworthy that although the Indian Civil Service ceased to function as a Service of the Secretary of State for India after the 15th of August 1947 when the 1947 Act was enforced, its members were automatically appointed to corresponding posts under the Crown in 609 connection with the affairs of the Dominion of India or of a Province by virtue of the provisions of sub clause (1) of clause 7 of the India (Provisional Constitution) Order, 1947.
That sub clause runs thus: "7.
(1) Subject to any general or special orders or arrangements affecting his case, any person who immediately before the appointed day is holding any civil post under the Crown in connection with the affairs of the Governor General or Governor General in Council or of a Province other than Bengal or the Punjab shall, as from that day, be deemed to have been duly appointed to the corresponding post under the Crown in connection with the affairs of the Dominion of India or, as the case may be, of the Province." The Indian Civil Service was not abolished in so many words and, on the other hand, its members were given the right to continue in service on and after the 15th August, 1947 under the same conditions of service as were applicable to them immediately before that date.
This is clearly made out by sub sections (1) and (2) of section 10 of the 1947 Act which are reproduced below: "(1) The provisions of this Act keeping in force provisions of the Government of India Act, 1935, shall not continue in force the provisions of that Act relating to appointments to the civil services of, and civil posts under, the Crown in India by the Secretary of State, or the provisions of that Act relating to the reservation of posts. "(2) Every person who (a) having been appointed by the Secretary of State in Council, to a civil service of the Crown in India continues on and after the appointed day to serve under the Government of either of the new Dominions or of any Province or part thereof; or (b) having been appointed by His Majesty before the appointed day to be a Judge of the Federal Court or of any Court which is a High Court within the meaning of the Government of India Act, 1935, continues on and after the appointed day to serve as a Judge in either of the new Dominions: shall be entitled to receive from the Government of the Dominions and Provinces or parts which he is from time to time serving or, as the case may be, which are served by the courts in which he is from time to time a Judge, the same conditions of service as respects remuneration, leave and pension, and the same rights 610 as respects disciplinary matters or, as the case may be, as respects the tenure of his office, or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day.
" All that sub section (1) enacted was that the provisions of the Government of India Act, 1935 ceased to operate in relation to appointments to the civil services of, and civil posts under, the Crown in India, by the Secretary of State but sub section (2) fully preserved the rights of and conditions of service applicable to holders of appointments already made by the Secretary of State, the only difference being that in place of the Secretary of State the employers of the incumbents became the respective Governments concerned.
In this situation it would not be correct to say that the expression who is a member of the Indian Civil Service" would be meaningless and wholly inapplicable to any existing situation after the 15th August 1947; and when an Act of Parliament uses that expression surely it must be given the meaning that the High Court says it has, i.e., that it denotes persons who were members of the Indian Civil Service prior to the enforcement of the 1947 Act and were elevated to the Bench thereafter.
The other contentions raised by the appellant ignore one basic reason which provides justification for the trichotomy operating right from the enforcement of the 1937 Order.
He does not (and of course cannot) challenge that trichotomy for the period prior to the commencement of the Constitution because his objection to it is based on discrimination violative of article 14 thereof.
But then he has failed to realise what the Constitution itself enacted in paragraph 10 of its Second Schedule both before and after its amendment by the 1956 Act.
Prior to the 1st November 1956 (which is the date on which the 1956 Act came into force) sub paragraph (4) of the said paragraph 10 provided for pension of Judges of the High Court of any State being governed by the provisions which were applicable to such Judges before the commencement of the Constitution.
Those provisions were, as pointed out above, contained in the 1937 Order which initiated the trichotomy.
The High Court was thus right in holding that the Constitution itself adopted that trichotomy.
Then came the 1954 Act which was brought on the statute book by Parliament in exercise of its legislative powers under article 221(2) of the Constitution.
The trichotomy introduced by the 1937 Order was repeated in the 1954 Act, till when it had been kept alive by sub paragraph (4) above mentioned.
And that trichotomy is good not only because it was adopted by the Constitution till legislation 611 was enacted under article 221(2) thereof but also because it was necessitated by reason of High Court Judges being drawn from three different sources.
In so far as persons who had been members of the Indian Civil Service or of a State Judicial Service before being appointed as High Court Judges are concerned, the period of service put in by them in such Service has to be taken into account.
On the other hand, High Court Judges recruited directly from the Bar do not have any prior service to their credit.
All the High Court Judges, though holding equivalent posts, are thus not similarly situated, particularly in regard to the payment of pension and other retirement benefits.
That is why different provisions were considered necessary in the case of each of the three categories in regard to payment of pension.
The classification so made is a reasonable classification based on intelligible differentia having a proper nexus to the object to be achieved.
The matter may be viewed from another angle.
According to the proviso added to sub paragraph (1) of the said paragraph 10 by the 1956 Act (which proviso we have set out above), the salary of a High Court Judge who "is in receipt of a pension. . in respect of any previous service under the Government of India or any of its predecessor Governments or under the Government of a State or any of its predecessor Governments,. . . . . . shall be reduced by the amount of that pension. . . . . " That proviso would have fully applied to the case of the appellant if he had actually been in receipt of a pension prior to his elevation to the Bench.
That he was not in receipt of any such pension is, however, admitted on all hands and, therefore, as held by the High Court, the second proviso to section 14 of the 1954 Act has no application to him.
But then his argument is that he should be deemed to have been in receipt of a pension according to his entitlement immediately before he took oath as a High Court Judge.
Even if we assume this argument to be correct, his case would not improve in any manner; for, then his salary as a High Court Judge would automatically come down to less than Rs. 3500 which is the salary payable to Judges who have not been members of any of the civil services earlier, and the difference would not be merely marginal.
It is the case of the appellant that if he had retired from the Indian Civil Service immediately prior to the 12th June 1959 when he was elevated to the Bench he would have been entitled to receive a pension of Rs. 13350 per annum or about Rs. 1111 per mensem.
On his elevation to the Bench he would in that case be entitled to a salary of less than Rs. 2400 as compared to Rs. 3500 payable to other High Court Judges who had not belonged to any civil services earlier.
This difference in salary being substantial 612 is itself a good reason for treating the appellant and other High Court Judges similarly situated in a manner different from High Court Judges not so situated and the same reasoning would apply to High Court Judges who had earlier been members of civil services other than the Indian Civil Service.
It is of course not the case of the appellant that the proviso to sub paragraph (1) of paragraph 10 above mentioned is itself not enforceable for one reason or the other; and if that be so, the trichotomy of which he complains becomes fully justifiable.
We may make it clear, however, that the appellant 's plea that he must be held entitled to a separate pension for his service immediately preceding his elevation to the Bench cannot be accepted as correct in the face of the finding by the High Court that he was entitled to pension only after his retirement and, therefore, after his service as a High Court Judge came to an end, and that too according to the 1937 Order.
The appellant has failed to show how that finding is erroneous.
In this connection it may be stated that it was only after the Accountant General had requested him to indicate his option in accordance with the proviso to section 15 of the 1954 Act that he claimed two pensions, one in respect of the period prior to his elevation to the Bench and one for that for which he was a High Court Judge.
At no time prior to that had he claimed any pension for his service as a member of the Indian Civil Service or any of the other civil services.
The trichotomy originating with the 1937 Order and finally adopted by the 1954 Act having been found by us not to suffer from any legal or constitutional infirmity and, on the other hand, to have the sanction of the Constitution itself, none of the three articles thereof,namely, 14, 221 & 314 on which the appellant banks, comes to his rescue.
His claim is accordingly held to be without force and the appeal is dismissed but with no order as to costs.
S.R. Appeal dismissed.

summary/full:
Dismissing the appeal by certificate, the Court ^ HELD: (1) The trichotomy originating with the Government of India (High Court Judges) Order, 1937, continued under section 10(2) of the Independence Act, 1947 and finally adopted by the does not suffer from any legal or constitutional infirmity and, on the other hand, has the sanction of the Constitution itself.
[612 F] (2) The trichotomy is good not only because it was adopted by the Constitution till legislation was enacted under Article 221(2) thereof, but also because it was necessitated by reason of High Court Judges being drawn from three different sources, namely, Indian Civil Service, State Judicial Services and directly from the Bar.
All the High Court Judges though holding equivalent posts are thus not similarly situated, particularly in regard to the payment of pension and other retirement benefits.
The classification so made is a reasonable classification based on intelligible differentia having a proper nexus to the object to be achieved and there is thus no question of any violation of Articles 14, 221 and 314 of the Constitution.
[610 H 611 A, C; 612F] (3) It is a cardinal principle of interpretation of statutes that the legislature does not use meaningless language and that every word used by it must be presumed to have some meaning even though the phraseology employed may sometimes be obscure or ambiguous.
[608 F] The expression "who is a member of the Indian Civil Service" appearing in clause (a) of section 15 of the 1954 Act cannot be just ignored as being inapplicable to an existing situation and thus rendered otiose.
What was meant was to describe as a class High Court Judges who had earlier been members of the Indian Civil Service so that they could be distinguished from High Court Judges who had not been such members.
Although the Indian Civil Service ceased to function as a Service of the Secretary of State for India after the 15th of August 1947 when the 1947 Act was enforced, its members were automatically appointed to corresponding posts under the Crown in connection with the affairs of the Dominion of India or of a Province by virtue of the provisions of sub clause (1) of clause 7 of the India (Provisional Constitution) Order, 600 1947.
The Indian Civil Service was not abolished in so many words and on the other hand, its members were given the right to continue in service on and after the 15th August, 1947 under the same conditions of service as were applicable to them immediately before that date as made out by sub sections (1) and (2) of section 10 of the 1947 Act.
[608 G 609A, C D] All that sub section (1) enacted was that the provisions of the Government of India Act, 1935 ceased to operate in relation to appointments to the civil services of, and civil posts under, the Crown in India, by the Secretary of State but sub section (2) fully preserved the rights of and conditions of service applicable to holders of appointments already made by the Secretary of State, the only difference being that in place of the Secretary of State the employers of the incumbents became the respective Governments concerned.
[610 B C] (4) The second proviso to section 14 of the 1954 Act has no application to the appellant inasmuch as he was not in actual receipt of a pension for his services in the Indian Civil Service under proviso to para 10 of Part D of second Schedule to the Constitution as added by the Constitution (Seventh Amendment) Act, 1956.
The appellant having accepted appointment as a High Court Judge in continuation of his service as a District Judge, he never became entitled to pension for the period preceding his elevation to the Bench.
Further he did not claim such a pension until the Accountant General requested him to indicate his option in accordance with the proviso to section 15 of the 1954 Act.
The claim to two pensions, therefore, is inadmissible.
[611E, H, 612D]


judgement:
ivil Appeal Nos.
301 303 of 1970.
From the Judgment and Order dated 17 11 1967 of the Andhra Pradesh High Court in Writ Petition Nos. 138/63, 1256/63 and 1460/63.
A.V.V. Nair for the Appellant.
K. Rajendra Chowdhary for the Respondent.
628 The Judgment of the Court was delivered by KRISHNA IYER, J.
We are in complete agreement with the reasoning and conclusions of the High Court and a brief statement of the short point that arises for decision and of the grounds for dismissing the appeal is all that is needed.
The Motor Vehicles (Taxation of Passengers and Goods) Act passed by the Madras legislature in the composite Madras State was made applicable to Andhra Pradesh when that State was carved out.
There were certain difficulties in the matter of levy of taxation on vehicles plying on inter state routes and the State of Andhra Pradesh thought it fit to enact its own legislation, which it did in the form of the Andhra Pradesh Motor Vehicles (Taxation of Passengers and Goods) Act, 1952, Section 4(2) whereof empowered the State Government to make necessary rules to effectuate the enactment.
Pursuant to this power, certain rules were framed, of which rule 1 consisted of three sub rules.
On 19 6 1957 sub rules (4) and (5) were added to that rule and sub rule (5) ran thus: "The proviso to sub rule 1 of Rule 1 shall cease to be operative on and from 1st October, 1955 and the composition fee calculated with reference to clause (a) or clause (b) of sub rule (1) in respect of vehicle plying on inter State routes lying partly in Madras State and partly in the Andhra State shall, with effect from that date be paid in the State where the vehicles are registered and normally kept." This sub rule enabled operators of Motor Vehicles on inter state routes lying partly in the Madras State and partly in the State of Andhra Pradesh to pay the tax duly to either of these two States.
It was, however, deleted along with sub rules (3) and (4) on 29th March, 1963 with effect from 1st April, 1962 and it is the retrospectivity of the deletion that is challenged before us because the Andhra Pradesh State sought to collect tax for the period commencing 1st April, 1962 from the respondent under the Act above referred to, although he had already paid the same to the State of Madras.
The ground of invalidity was stated to be that section 4(1) did not confer on the State Government power to make rules with retrospective effect.
Thus, the only question which engages our attention is as to whether section 4(2) does confer on the delegate, namely, the State Government, the power to make retrospective rules.
The High Court, after an elaborate discussion on the jurisprudence of subordinate legislation, came to the conclusion that no such power was conferred on the State Government and that consequently the deletion which resulted in retrospective operation of the liability to payment of tax was bad in law.
629 The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the Constitutional limitations.
But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication.
In the present case the power under section 4(2) does not indicate either alternative.
The position has been considered by the High Court at length and there is no need for us to go through the exercise over again.
Indeed, considerable reliance was placed by learned counsel for the appellant on two circumstances.
He argued that the impugned rule was framed in pursuance of a dissolution passed by the legislature.
The fact does not have any bearing on the question under consideration except for us to make the observation that the State Government should have been more careful in giving effect to the resolution and should not have relied upon its delegated power which did not carry with it the power to make retrospective rules.
The second ground pressed before us by learned counsel for the appellant is that the rules had to be placed on the table of and approved by the legislature.
This was sufficient indication, in his submission, for us to infer that retrospectively in the rule making power was implicit.
We cannot agree.
The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules.
The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of any one of the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand vs Union of India,(1) Mr. Justice Khanna speaking for the Bench observed: "The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a rule if it is made not in conformity with Section 40 of the Act.
It would appear from the observations on pages 304 to 306 of the Sixth Edition of Craies on Statutes Law that there are three kinds of laying: (i) Laying without further procedure: (ii) Laying subject to negative resolution: (iii) Laying subject to affirmative resolution.
The laying referred to in sub section (3) of Section 40 is of the second category because the above sub section contemplates that the rules would have effect unless modified or annulled by 630 the House of Parliament.
The act of the Central Government in laying the rules before each House of Parliament would not, however, prevent the courts from scrutinising the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the Central Government.
" It is, therefore, plain that the authority of the State Government under the delegation does not empower it to make retrospective rules.
With this position clarified there is no surviving submission for appellant 's counsel.
The appeal must be dismissed and we do so with costs (one set).

summary/full:
Dismissing the special leave petition, the Court ^ HELD: (1) The legislature has no doubt plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the constitutional limitations.
But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication.
In the present case the power under Section 4(2) does not indicate either alternative.
Therefore the authority of the State Government under the delegation does not empower it to make retrospective rules.
[629 A B; 630 B] (2) The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules.
The whole purpose of laying on the table of the legislature the rules framed by the State Government is different.
[629E] Hukum Chand vs Union of India, ; (902), followed.
Observation: The State Government should have been more careful in giving effect to the resolution passed by the legislature and should not have relied upon its delegated powers which did not carry with it the powers to make retrospective rules.
[629C]


judgement:
Appeal No. 249 of 1953.
On appeal from the judgment and decree dated the 1st day of September, 1949, of the Bombay High Court in Appeal No. 23 of 1947 from original decree arising out of the decree dated the 28th September 1946 of the Civil Judge, Session Division at Belgawn in Suit No. 360 of 1945.
K.R. Beneri, J. B. Dadachanji and Sri Narain Andley for A. C. Dave for the appellants.
H.B. Datar and Naunit Lal for respondent No. 1.
676 1956.
September 20.
The Judgment of the Court was delivered by SINHA J.
This is an appeal by leave of the High Court of Judicature at Bombay from the decision of a Division Bench of that Court reversing that of the trial court in respect of items 3, 4 and 6 in the list of the properties attached to the plaint as the subject matter of the dispute.
In respect of the other items of property in dispute the courts below have given concurrent decisions and that part of their judgments is no more in controversy at this stage.
The three items aforesaid of the property along with the others in dispute had been decreed in favour 'of the original plaintiffs 2 and 3 as Watan property.
But on appeal by the third defendant, the High Court reversed the decision of the trial court only in respect of those three items and confirmed the decision of the trial court in respect of the rest of the plaint properties.
The propositus was one Shreemant who died on the 23rd November, 1941 leaving him surviving his wife Radhabai.
Radhabai died on the 9th May 1945 and on her death the dispute arose between the reversioners on the one hand including the plaintiffs 2 and 3, appellants in this Court, and the defendants on the other who claimed by virtue of alleged adoptions said to have been made by Radhabai aforesaid.
The first plaintiff is out of the picture now on the concurrent finding by the courts below that he had no right to the state left by the propositus by virtue of the adoption found in his favour, inasmuch as before he was adopted the estate had already vested in the actual reversioners, plaintiffs 2 and 3, the agnatic relations of Shreemant.
The estate of Shreemant, so far as it related to Watan lands, vested in plaintiffs 2 and 3 aforesaid under the provisions of Bombay Act v of 1886.
If either defendant 2 or defendant 3 bad proved his alleged adoption by Radhabai aforesaid, he would have been entitled to the estate as the adopted son of the propositus, thus excluding the agnatic relations, namely, plaintiffs 2 and 3.
But both the courts below have concurrently found that 677 neither of the two defendants 2 and 3 had succeeded in proving the adoption respectively pleaded by them.
The trial court had substantially decreed the suit in respect of all the items of property in dispute including the three items which, as indicated above, are the only properties now in controversy in this Court, on the finding that these also were Watan properties which like the rest of the plaint properties were inherited by the reversioners aforesaid, namely, plaintiffs 2 and 3., The High Court on appeal held that the three items of property now in dispute, though originally Watan properties, had lost their character as such by reason of the fact that they had been resumed by Government after dispensing with the service and after levying full assessment on those lands.
Those lands have been called "Japti Sanadi Inam lands" in the records of the courts below and it is by that name that we.
shall refer to the disputed lands in the course of this judgment.
It would thus appear that the controversy has narrowed down to the question whether the Japti Sanadi Inam lands still retain their character as Watan lands as held by the trial court, or have lost their character as such in view of the events that had happened as decided by the High Court.
It is not disputed that in the former case the plaintiff appellants will be entitled to them also even as they gave been adjudged to be entitled to the rest of the properties in dispute which were admittedly Watan lands.
It is equally undisputed that, if the Japti Sanadi Inam lands are no more Watan lands, this appeal must fail.
On this question both the courts below have been rather cryptic in their remarks.
The trial court held them to be Watan lands, with the following observations: "The lands at serial Nos. 3, 4 and 6 are Japti Sanadi lands.
They still retain the character of Sanadi lands inspite of the fact that services have been temporarily dispensed with and full assessment levied.
Sanadi lands have been held to be Watan lands governed by the Watan Act".
The trial court has made no attempt to support its conclusions with reference to any statutory rules or 678 precedents.
The lower appellate court has disposed of this question in these words: "Now it is conceded before us that there is no evidence to support the observation made by the learned trial Judge, that the services were temporarily dispensed with by the government.
If therefore,the Record of Rights show that the full assessment is being levied in respect of these lands, and that services are not required to be performed and they are described as Japti Sanadi Inam lands, meaning thereby that they were once Sanadi lands, but in respect of which there has been resumption by the Government, the conclusion must inevitably follow that these lands have ceased to be lands held on Sanadi tenure and are held in ordinary occupancy rights".
The learned counsel for the appellants has vehemently argued that the High Court was in error in concluding that the lands in question had ceased to be Watan lands simply because the service attaching to them had been dispensed with and full assessment levied by Government.
This argument was based on the provisions of the Bombay Hereditary Offices Act (Bombay Act III), 1874.
Apart from authority, therefore, we have to examine the relevant provisions of that Act in order to determine whether those provisions support the conclusions of the High Court.
In section 4, "Watan property", "Hereditary office" and "Watan" have been defined as follows: "Watan Property means movable or immovable property held, acquired or assigned for providing remuneration for the performance of the duty appertaining to an hereditary office.
It includes a right to levy customary fees or perquisites, in money or in kind, whether at fixed times or otherwise.
It includes cash payments in addition to the original watan property made voluntarily by Government and subject periodically to modification or withdrawal. 'Hereditary office ' means every office held hereditarily for the performance of duties connected with the administration or collection of the public revenue, or with the village police, or with the settlement of boundaries, or other matters of civil administration, 679 The expression includes such office even where the services originally appertaining to it have ceased to be demanded.
The watan property, if any, and the hereditary office and the rights and privileges attached to them together constitute the watan".
From these definitions it is clear that in order that there may be a Watan it is necessary that there should be a hereditary office and Watan property which is assigned to the "Watandar" by way of remuneration for the performance of the duty appertaining to his office.
But it has been argued on behalf of the appellants that it is common ground, that the Sanadi Inam lands were once Watan property and that once the property is impressed with the character of inam lands, they continue to bear that character, because the Government have not been authorised by any law to change their character.
No precedent or statutory provisions directly supporting this wide proposition have been brought to our notice.
But our attention was called to the provisions of section 15 which make it permissible for the Collector to commute the service and relieve the bolder of the Watan and his heirs and successors in perpetuity of their liability to perform the service on such conditions as may be agreed upon.
If we have been able correctly to appreciate the argument based upon section 15, it was sought to be made out that the service in respect of the Watan lands in question may have been commuted, but even after the commutation of the service the Watan remained and the lands continued to retain the character of Watan lands.
This argument assumes that even upon the service being entirely dispensed with in perpetuity, the Watan character of the land continued.
That is begging the question.
Furthermore, clause (1) of section 15 contemplates commutation "upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such bolder".
Thus the conditions to be agreed upon between the holder of land which was once part of a Watan and the Government at the time of the commutation may be of 680 so many varieties that in some cases the Watan character of the land may be maintained, whereas in others the conditions agreed between the parties may themselves contemplate the cessation of that character.
In the present case, apart from the entries in the Record of Rights, we have no other evidence to indicate as to on what terms the service bad been completely dispensed with in perpetuity and the full assessment levied upon those lands.
, It is not therefore clear upon the findings of the courts below that there were any such conditions attaching to the holding of the lands in question which could be consistent with the continuance of the original Watan tenure.
It is possible to conceive of a case where the conditions agreed upon provide for the continuance of the Watan tenure in spite of the fact that the holders have been excused the performance of the customary service.
On the other hand, it may be that there were no conditions agreed between the parties continuing the Watan character of the land after dispensing with the service.
On the findings of the courts below there was no hereditary office any more and therefore the question of remunerating any service with the usufruct of Watan property or otherwise did not arise.
On the other hand, the provisions of section 22 of the Act clearly predicate that a Watan may lapse in part or in whole or may be confiscated or otherwise lawfully resumed by Government and that in such cases it is lawful for Government to attach such land to a newly created Watan in favour of such persons as may be appointed by Government.
That being so, it is impossible to contend that Government have not the power to destroy the Watan character of a Watan land.
Such an argument completely ignores the legal position that an authority which has the power to create an office and to provide for its remuneration in cash or in kind has also the power to revoke the grant, and upon such revocation, if any land has been assigned for remunerating the office so abolished it must revert to the source from which it came; that is to say, ryotwari land subject to land revenue assess 681 ment.
That is what appears to have happened in the present case.
The very description of the land as Japti Sanadi Inam land would mean that which was once the subject matter of an inam grant by virtue of a sanad has been resumed or confiscated by Government and the land left in possession of the holder as ryotwari holding.
As pointed out by the courts below, there is no evidence as to the original character of the grant or as to how and when the grant was resumed and the land thus became subject to ordinary occupancy rights.
But they have proceeded on the basis that it was the subject matter of a Watan by sanad which has been subsequently resumed by Government as service was no more required and the necessity for the grant was no more there.
They have only differed on the legal result of the resumption.
A similar question arose for decision in the Bombay High Court in the case of Ramijyabi Muktum Saheb vs Gudusaheb(1) after the present case had been decided by that Court.
In that case property which was originally Watan was continued with the holder thereof but without the obligation to render any service and with the full levy of assessment in respect of the land.
The question arose whether such land continued to be Watan land with its special incidents as regards alienation, etc., or whether it was ordinary occupancy holding.
A single Judge of that Court who heard the appeal in the first instance came to the conclusion that the land continued to be Watan land.
On Letters Patent Appeal, the Division Bench after a very elaborate examination of the relevant rules and precedents came to the contrary conclusion and held that the land had ceased to have the character of Watan and was subject to the ordinary law of land tenures in that State.
We are in agreement with the conclusion reached by the Letters Patent Bench in that case, the facts of which were similar to those of the present case.
Hence it must be held that there is neither authority nor principle in favour of the contention raised on behalf of the appellants.
The appeal is accordingly dismissed with costs.

summary/full:
Certain lands which were originally Watan lands were resumed by the Government after dispensing with the services that were being rendered and full assessment was levied thereon.
Thelands were subsequently described as "Japti Sanadi Inam" lands.
Held, that the lands had lost their character as Watan lands and had become ryotwari lands of the holder.
Ramijyabi Muktum Saheb vs Gudusaheb, , approved.
The very description of the lands as Japti Sanadi Inam lands means that the lands were once the subject matter of an Inam grant by virtue of a Sanad and have been resumed or confiscated by the Government and have been left in the hands of the holder as ryotwari holding.
The Government may commute the services to be rendered and it will then depend on the terms of the agreement between the holder of the Watan lands and the Government entered into at the time of the commutation whether the lands are to retain their character as Watan lands or not.