judgement:
Special Leave Petition (Civil) No. 4221 of 1988.
From the Judgment and Order dated 3.12.1987 of the Delhi High Court in FAO (OS) No. 120 of 1987.
Mukul Rohtagi and Miss Bina Gupta for the petitioner.
Soli J. Sorabji, D.K. Sorab, P. Jain, Sushil Kr.
Jain and Sudhanshu Atreya for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an application for leave to appeal under Article 136 of the Constitution from the order of the Division Bench of the Delhi High Court affirming the order of the learned single Judge of that High Court.
It appears that on 19th March, 1983, there was an agreement for distribution of the film "Savere Wali Gadi" entered into between the parties, the petitioner as the distributor and the respondent as the producer.
The agreement contained an arbitration clause.
It is stated that a sum of Rs.3 lakhs was paid by the petitioner and acknowledged by the respondent earlier to the execution of the said agreement and therefore, the first instalment payable under the agreement to the respondent of Rs.3.40 lakhs was deemed to be adjusted.
Under the aforesaid distribution agreement by 30th August, 1983, the respondent was to hand over the prints of the film by this date which he never did.
In or about 1984 certain other moneys of about Rs.3 lakhs were further advanced to the respondent.
On 11th March, 1985 a further agreement was entered into between the parties whereby the respondent agreed to pay a total amount of Rs.6.50 lakhs to the petitioner and the petitioner to give up his distribution rights in the first agreement of 19th March, 1983.
The first agreement was accordingly irrevocably cancelled and superseded by this subsequent agreement.
On or about 2nd June, 1985 respondent wrote to the Motion Pictures Association, Delhi to de register the film in the name of the petitioner in view of the petitioner having given up the distribution rights by virtue of Annexure P/2 dated 11.3.85 where under the petitioner had agreed to receive Rs.6.50 lakhs and finished the deal within six months of 11.3.85.
It is the case of the petitioner.
530 however, that the sum of Rs.6.50 lakhs was never paid by the respondent to the petitioner.
On 3rd July, 1985 the Motion Picture Association wrote to the respondent acknowledging receipt of respondent 's letter dated 22nd June 1985 whereby he had asked for de registration of the film in view of Annexure P/2.
The Motion Picture Association stated that de registration would be allowed only when the respondent pays Rs.6.50 lakhs to the petitioner or deposits the amount with the Motion Picture Association.
It is stated that between July 1985 and September 1985, the petitioner wrote two letters to the Motion Picture Association stating that the respondent had committed a breach of the subsequent agreement dated 11th March, 1985 executed between the parties whereunder the respondent was to make payment of Rs.6.50 lakhs and it was clear that the respondent had no desire to make payment and the respondent wrongly wanted to deal with the film and sell the distribution rights to somebody else thereby enjoying benefit of the same and also to deprive the petitioner of the amount of Rs.6.50 lakhs.
Civil suit was filed in February, 1986 for recovery of Rs.6.50 lakhs with interest by the petitioner against the respondent.
The written statement was submitted.
An application was made under section 20 in June, 1986.
This application had been made later than the institution of the civil suit in the same High Court.
The learned single Judge directed that the arbitration agreement to be filed and reference was directed according to the agreement.
There was an order passed by the learned single Judge to that effect.
There was an appeal to the Division Bench of the High Court and the Division Bench confirmed the order of the learned single Judge.
Hence this petition.
It appears that there were two agreements one dated 11th March, 1985 and the other dated 19th March, 1983.
The learned Judge found that there could be little doubt that the intention of the parties when agreement dated 11th March, 1985 was entered into was that the earlier contract dated 19th March, 1983 should be superseded.
But it appears that the agreement fell through because when the agreement of 1985 was entered into, it was the intention of the parties to the earlier agreement would be superseded and a new arrangement was sought to be brought about whereby the rights of the petitioner herein under agreement dated 19th March, 1983 were to be yielded for a sum of Rs.6.50 lakhs.
This amount of Rs.6.50 lakhs was never paid by the respondent.
It was the case of the petitioner herein that thereby the agreement of 11th March, 1985 stood cancelled.
The petitioner who claimed rights under the earlier agreement dated 19th March, 1983 and sought the continuation of his registration of distributorship.
The learned single Judge found that it was at the instance of petitioner 531 herein that respondent No. 2 confirmed vide its letter dated 19th September, 1985 that as the petitioner, before the learned single Judge, had failed to pay Rs.6,50,000 the aforesaid picture stood registered in the name of the petitioner herein.
This registration could continue only by virtue of the earlier agreement dated March 19, 1983.
The learned single Judge further found that the agreement dated 11th March, 1985 had come to an end and the earlier agreement dated 19th March, 1983 had revived.
In this connection reference may be made to the observations of the Patna High Court in Babulal Marwari and others vs Tulsi Singh and others, A.I.R. 1940 Patna 121.
Whether in any particular case there was a complete novation of a contract in the sense that the new contract replaced or substituted the old contract, could depend upon the facts and circumstances of the case.
In that view of the matter, the single Judge of the High Court, in our opinion, rightly directed that the first agreement be filed.
The Division Bench of the High Court pointed out after referring to the letter dated 19/21st September, 1985 the Motion Pictures Association confirmed that in view of the failure of the producer to comply with his earlier letter regarding payment of Rs. 6.50 lakhs plus interest, the picture in question stood registered in the name of M/s. Raja Movies in the Motion Pictures Association.
This position was accepted by Suyog Films in the letter dated 5th November, 1985 and the subsequent letter by them.
The non performance of the terms of the contract dated 11th March, 1985 may not by itself revive the earlier contract of 19th March, 1983, but the petitioner in his letters dated 15th July, 1985 and 19th September, 1985 fell back on the original contract of 19th March, 1983.
This was accepted by M/s. Suyog Films and thus a binding contract came into existence.
In this case the Division Bench came to the conclusion on the construction of the letters and the conduct of the party that the contract dated 19th March, 1983 continued.
The contract dated 19th March, 1983 contained an arbitration clause.
There is no reason why that arbitration agreement should not be filed.
A civil suit had been filed but that by itself unlike under section 34 of the does not preclude filing of proper arbitration agreement between the parties.
There being no impediment in filing the arbitration agreement which indubitably was subsisting at the relevant time when the High Court directed that the arbitration agreement be filed, that discretion should not be interfered with.
Section 20 of the provides as follows: "20.
Application to file in Court arbitration agreement 532 (1) Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which the agreement relates, that the agreement he filed in Court.
(2) The application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and the remainder is defendant or defendants, if the application has been presented by all the parties, or if otherwise, between the applicant as plaintiff and the other parties as defendants.
(3) on such application being made, the Court shall direct notice thereof to be given to all parties to the agreement other than the applicants, requiring them to show cause within the time specified in the notice why the agreement should not be filed.
(4) Where no sufficient cause is shown, the Court shall order the agreement to be filed, and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court.
(5) Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act so far as they can be made applicable.
" It is significant to note that the sub section (1) gives an option to the parties by the use of expression 'may ' but the other sub section if the conditions are fulfilled, makes it obligatory for the Court to direct filing of an arbitration agreement.
Indubitably, in this case there was an arbitration clause in the agreement.
The parties have applied for reference.
The Division Bench has reiterated that the original agreement dated 19th March, 1983 which ceased to have effect and came to an end by the agreement dated 11th March, 1985, stood revived by virtue of the two letters dated 15th July, 1985 and 11th September, 533 1985 by the appellant.
The High Court has confirmed that the said two letters were acted upon by the Motion Pictures Association.
By letter dated 19/21 September, 1985 the Motion Pictures Association confirmed that in view of the failure of the producer to comply with his earlier letter regarding payment of Rs.6,50,000 plus interest, the picture "Savere Wali Gadi" stood registered in the name of M/s. Raja Movies in the Motion Pictures Association.
This position was accepted by Suyog Films in letter dated 5th November, 1985 and the subsequent letter by them.
It is clear that the petitioner in his letters dated 15th July, 1985 and 11th September, 1985 fell back on the original contract of 19th March, 1983.
This was accepted by the respondent.
Hence, there was at all relevant times a valid and binding contract between the parties.
That contract contained an arbitration clause.
There was nothing, in view of the reasons indicated above, to disentitle the parties to have their rights adjudicated in terms of an arbitration clause.
In the premises the High Court was right in the view it took.
This petition fails and is accordingly dismissed.
G.N. Petition dismissed.

summary/full:
An agreement for distribution of the film "Savere Wali Gadi" was entered into on 19th March, 1983 between the petitioner as the distributor and the respondent as the producer.
The agreement contained an arbitration clause.
A sum of Rs.3.40 lakhs paid to the respondent and acknowledged by him earlier to the agreement was deemed to have been adjusted against the first instalment.
In or about 1984 about Rs. 3 lakhs were further advanced to the respondent.
As per the agreement the respondent was to hand over the prints of the film by 10th August, 1983, but it was not done.
On 11th March, 1985 a further agreement was entered into between the parties whereby the respondent agreed to pay a total sum of Rs.6.50 lakhs to the petitioner for giving up his distribution rights in the first agreement.
The first agreement was accordingly irrevocably cancelled and superseded by the subsequent agreement.
The respondent took up the matter with Motion Pictures Association to de register the film in the name of the petitioner.
The Motion Picture Association stated that de registration would be allowed only when the respondent pays Rs.6.50 lakhs to the petitioner or deposits the amount with the Association.
The petitioner 's claim before the Association was that the respondent committed breach of the subsequent agreement.
A civil suit was filed in the High Court for recovery of Rs.6.50 lakhs with interest, by the petitioner against the respondent.
Later, an application under section 20 of the was made.
The Single Judge held that the first agreement had revived and directed the 528 filing of the agreement.
On appeal, the Division Bench confirmed the order.
This special leave petition is against the order of the Division Bench of the High Court.
Dismissing the special leave petition, this Court, ^ HELD: 1.1 Whether in any particular case there was a complete novation of a contract in the sense that the new contract replaced or substituted the old contract, could depend upon the facts and circumstances of the case.
[531B C] 1.2 When the agreement of 1985 was entered into, it was the intention of the parties that the earlier agreement would be superseded and a new arrangement was sought to be brought about whereby the rights of the petitioner under the earlier agreement were to be yielded for a sum of Rs.6.50 lakhs.
This amount of Rs.6.50 lakhs was never paid by the respondent, and it was the case of the petitioner that the earlier agreement stood cancelled.
The petitioner who claimed rights under the earlier agreement, sought the continuation of his registration of distributorship.
This registration could continue only by virtue of the earlier agreement which had revived.
[530G HG; 531B] Babulal Marwari and others vs Tulsi Singh and others, A.I.R. 1940 Patna 121, refered to.
2.1 Sub section (1) of Section 20 of the gives an option to the parties by the use of the expression 'may ', but the other sub sections, if the conditions are fulfilled, make it obligatory for the Court to direct filing of an arbitration agreement.
[532G] 2.2 Indubitably, there was an arbitration clause in the agreement.
The parties have applied for reference.
The Division Bench has reiterated that the original agreement dated 19th March, 1983 which ceased to have effect and came to an end by the agreement dated 11th March, 1985 stood revived by virtue of the two letters dated 15th July, 1985 and 11th September, 1985 by the appellant.
It is clear that the petitioner in the above letters fell back on the original contract of 19th March, 1983.
This was accepted by the respondent.
Hence there was at all relevant times a valid and binding contract between the parties.
That contract contained an arbitration clause.
There was nothing to disentitle the parties to have their rights adjudicated in terms of an arbitration clause.
The civil suit filed does not by itself preclude filing of proper arbitration agreement between the parties.
There being no impediment 529 in filing the arbitration agreement which was subsisting at the relevant time when the High Court directed that the arbitration agreement be filed, that discretion should not be interfered with.
[532G H; 531F G]


judgement:
Civil Appeal No. 3556 of 1987.
From the Judgment and order dated 2.9.1987 of the Punjab and Haryana High Court in C.W.P. No. 5781 of 1987.
L.M. Singhvi, H.M. Singh, A.M. Singhvi, R.S. Yadav and N. Waziri for the Appellants.
Kuldeep Singh, Additional Solicitor General, C.M. Nayar B. R. Agarwala, and Ms. Sushma Manchanda for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal is by special leave and is directed against the decision of the Punjab and Haryana High Court dismissing a writ petition of the appellants in limine.
On 8th of May, 1987, the Government of Punjab, Respondent No. 1, notified in the State Gazette the criteria for holding of Competitive Entrance Examination for selection of candidates for admission to MBBS/BDS course in the three medical colleges and two dental colleges within the State.
The Notification, inter alia, provided: "(1) Admission shall be given on the basis of the relative merit of candidates determined on the result of the Competitive Entrance Examination.
In the case of reserved seats relative merit of the candidate shall be determined within each category of reservation except that in the category of Sportsmen/Sportswomen admission shall be made out of eligible candidates on the basis of their gradation done by the Department of sports (Punjab) and in the category of children/widow of the defence personnel candidates of sub category vii (b) given in para III(d) infra, shall be admitted only if eligible candidates of sub category vii(a) are not available.
A candidate, however, must secure minimum of 50 per cent marks in the competitive Entrance Examination to qualify for the admission.
However, candidates belonging to the Scheduled Castes/Scheduled Tribes, Sportsmen/Sports 247 women, children/grand children of political sufferers and handicapped categories shall be eligible only if they secure minimum 35 per cent marks in the Entrance Examination.
" 100 seats out of total available seats in the MBBS/BDS Courses were reserved for Scheduled Castes and Scheduled Tribes candidates.
There is no dispute that on the basis of the selection test only 32 qualified candidates of the reserved category were available.
The prospectus published for the Competitive Examination by the Punjabi University, Patiala, in a Note below Para III(a) (ii) under the heading of Distribution of Seats provided: "Seats left vacant in any reserved category, owing to non availability of eligible candidates, may be filled from the eligible candidates belonging to General Category." On 28.7.1987, the following order was made: "The President of India is pleased to lower down the percentage of pass marks in P.M.T. for Scheduled Castes and Scheduled Tribes candidates for admission to MBBS/BDS Courses in the State Medical/Dental Colleges from 35 per cent to 25 per cent during the session 1987 only.
Para III (a))(i) of the Punjab Government Notification No. 2373 5 HB Ill 87/10493 dated 8.5.
1987 stands modified to this extent.
" Challenge before the High Court as also before this Court is against this Notification and four contentions have been advanced: ( 1) The Government order and the University Prospectus having provided that 35 per cent would be the minimum qualifying marks for the reserved categories named therein, it was not open to the respondents to make the impugned Notification.
The Note referred to above which provided that upon candidates in the reserved category not being found, the remaining seats would revert to the general pool; lowering of the qualifying percentage of marks prejudices the candidates in the general category, who would have got the benefit of the 548 Note is an arbitrary act and cannot be sustained.
(2) The prospectus contained an offer and after the candidates have appeared in the examination on the basis of such offer and representation, a new basis cannot be brought in.
(3) The Regulation made by the Indian Medical Council prescribes a minimum of 40 per cent marks and the regulation is binding on the University as also the Government and a qualification lower than what has been prescribed by the Medical Council in exercise of its Regulation Making Power is contrary to law and against the spirit of the scheme.
(4) Doctors have got to be adequately qualified and professional standards must be high as they deal with human lives.
Lowering standard on the plea of reservation of a sizeable portion of the seats for the backward classes is against the interest n of the nation and detrimental to profession standards.
We shall first deal with the prescription of the Medical Council by Regulation.
The Secretary of the Medical Council of India has filed an affidavit.
Regulation II prescribes: "In respect of candidates belonging to Scheduled Castes/Scheduled Tribes, the minimum marks required shall be 40 per cent in lieu of 50 per cent for general candidates.
" In his affidavit the Secretary has further averred that: "The Medical Council of India has fixed these minimum marks for admission to Medical Courses on the recommendation of the Expert Body who had taken all facts and circumstances into consideration.
The main factor before the Council in framing the Regulations was that marks below 40 per cent will adversely affect the studies and such candidates would not have full benefit of medical education along with the candidates with higher capability.
In view of the fact that various Governments were resorting to methods to reduce the minimum marks in case of Scheduled Castes and Scheduled Tribes 549 students, again discussions took place in the Executive Committee of the Medical Council of India on 5.3.1982 and this issue was fully considered and a recommendation was recorded on this aspect.
" The Regulation referred to above is said to have been made in exercise of powers under Section 33(J) of the .
Dr. Singhvi for the appellants has very much relied upon the stand taken by the Indian Medical Council in support of the claim of the appellants that the action of the respondents in reducing the qualifying marks to 25 per cent as against the minimum of 40 per cent is wholly wrong and cannot be sustained.
We have taken up the last contention first because if the Regulation is found to be binding then certainly both the original as also the subsequent Notification would be bad.
As against the basic requirement of 40 per cent for scheduled castes and scheduled tribes candidates the original Notification had put the requirement of 35 per cent five per cent below the minimum and the subsequent Notification reduced it by 10 per cent more.
The question as to whether the Regulation of the Council is binding came for determination before a three Judge Bench of this Court.
In the case of State of M.P. & Anr.
vs Kumari Nivedita Jain & Ors ; , the Court found that: "Regulation II of the Council is merely in the nature of a recommendation.
Regulation II begins with the words 'selection of students in medical college should be based solely on merit '.
Language used in Regulation II is deliberate and is intended to indicate the intention of the Council that it is only in the nature of a recommendation .
The Court further went into the matter and observed that: "The authority of the Council extends to the sphere of maintaining proper medical standards in Medical Colleges or institutions necessary for obtaining recognised medical qualifications.
By virtue of this authority it may be open to the Council to lay down the minimum educational qualifications required of a student who may seek 250 admission into a Medical College.
In other words, the eligibility of a candidate who may sit to get admitted into a medical college for obtaining recognised medical qualifications may be prescribed by the Council.
All the candidates who are eligible for admission into medical colleges or institutions for getting themselves qualified as medical practitioners are entitled to seek admission into a medical college of institution.
As to how the selection has to be made out of the eligible candidates for admission into the medical college is a matter which has necessarily to depend on circumstances and conditions prevailing in particular State.
Though the question of eligibility for admission into the medical curriculum may come within the power and jurisdiction of the Council, the question of selection of candidates out of the candidates eligible to the medical course does not appear to come within the purview of the Council.
" The view of a coordinate Bench is binding upon us and we find it difficult to differ from what has been held in the aforesaid judgment.
It is true that there is an observation of a two Judge Bench in State of Kerala vs Kumari T. P. Roshana & Anr., ; that the Regulations of Medical Council are binding but that observation k made by Iyer, J. was in passing while in Nivedita 's case (supra) the matter directly fell for consideration.
Dr. Singhvi also relied upon the observations of Fazal Ali, J. in a three Judge Bench decision in Krishna Priya Ganguly etc.
vs University of Lucknow & Ors. etc.
, [1984] I SCR 302 but here again it was an obiter; at any rate reference to Nivedita Jain 's case was not made.
It is interesting to note that in Nivedita Jain 's case (supra), in a situation almost similar as here, the State Government fully deleted the prescription of the percentage of marks in the selection examination.
That certainly was a worse situation than the one before us.
Yet that action was upheld.
In that view of the matter, we do not think the appellants are entitled to make any grievance on this score.
Now that this legal ground has failed, the other three questions raised by learned counsel for the appellants may be examined.
As 251 pointed out in Nivedita Jain 's case the selection is at two stages.
The Medical Council prescribed a percentage of marks as the basic minimum to be obtained in the qualifying examination (conducted by the University) and qualified candidates only applied for admission.
Since the seats available are much less than the candidates seeking admission.
a further selection becomes necessary to eliminate candidates in excess of the available seats.
The candidates belonging to the Scheduled Castes and the Scheduled Tribes who applied for admission and were to be subjected to selection must have secured appropriate marks in the qualifying examination and otherwise they could not have applied.
The plea which is raised before us, namely, that there would be an element of estoppel and the action would be branded as arbitrary would certainly have arisen in [he case of Nivedita Jain (supra), but the Court did not find the total abolition of the percentage qualification as either arbitrary or hit by rules of estoppel.
Reservation is not in dispute The State government had really intended that 100 seats should go to the candidates of Scheduled Castes and Scheduled Tribes.
When in the selection test that number of candidates was not available, the question of reduction of the qualifying marks arose.
In the facts of the case, we are not prepared to accept the contention of Dr. Singhvi that Government 's action is arbitrary.
In fact, the short affidavit filed by the respondents indicates clearly under what circumstances the variation was made.
We do not think that there is any force in the plea of estoppel.
It is not disputed that after the percentage was reduced in the qualifying standard all the 68 seats have been filled up by Scheduled Castes and Scheduled Tribes candidates and teaching has begun from September.
It is a fact that these 68 candidates are not before us as they have not been impleaded.
It would not be open to us to cancel their admission behind their back, nor would it be possible to require the State Government to create additional seats to accommodate the appellants therein.
Before we part with the appeal we think it appropriate to indicate that the standard of medical profession should not be compromised in national interest.
There has been perceptible fall in national standards and general efficiency of the professional men.
While it is not necessary for us to say anything against reservation, we approve of the concern shown by the Indian Medical Council that high standards of efficiency should be maintained and that can only be 252 possible if the State and the Council cooperates to maintain a high standard.
This aspect should be kept in view while guidelines are prescribed for selection of students for the medical courses.
The impugned Notification of the State Government shows that the reduction is confined for this year.
We hope there would not be necessity for a repetition of this action.
The appeal fails and is dismissed.
We make no order as to costs.
S.L. Appeal dissmissed.

dataset_name: IN-Abs

summary/full:
% One hundred seats out of the total seats available in the M.B.B.S./B.D.S. courses were reserved for the Scheduled Castes and Scheduled Tribes candidates, for whom the Indian Medical Council had prescribed by its Regulation II a minimum of 40 per cent marks for eligibility of admission.
The Government of Punjab by a notification (dated May 8, 1987) lowered the percentage of the pass marks for the said candidates from 40 per cent to 35 per cent as against a minimum of SO per cent marks for the general category candidates.
on the basis of selection test held, only 32 qualified candidates of the reserved category were available.
The prospectus published by the university for the competitive examinations provided that the seats left vacant in any reserved category owing to the non availability of the eligible candidates may be filled up from the eligible candidates of the general category.
Accordingly, the remaining seats (out of 100) should have reverted to the general pool of the eligible candidates.
But the government issued an order (dated July 28, 1987) whereby the percentage of pass marks for the Scheduled Castes and Scheduled Tribes candidates was lowered from 35 per cent to 25 per cent (for the 1987 session only).
The appellants challenged the above said orders of the government before the High Court which dismissed the Writ Petition filed by them.
The appellants appealed this Court by special leave.
Dismissing the appeal, the Court, 245 ^ HELD: If the Regulation 11 of the Indian Medical Council is found to be binding, then the impugned orders of the government would be bad, but the Regulation is merely in the nature of a recommendation and the language used in the Regulation is deliberate, intended to indicate the intention of the Council, as inter alia held by a three Judge Bench of this Court in The State of M.P. and Anr.
vs Kumari Nivedita Jain and Ors., ; That was a similar case as this one, and the appellants are not entitled to make any grievance on this score.[249D: 250] The State Government had intended that 100 seats should go to the candidates of the scheduled castes and scheduled tribes.
When that number of the candidates has not available, reduction in the qualifying marks had to be effected, and the government 's action cannot be said to be arbitrary.
[251 D E] After the percentage in the qualifying standard was reduced, all the remaining 68 seats have been filled up by the scheduled castes and scheduled tribes candidates and teaching has begun.
These 68 candidates are not before the Court, not having been impleaded.
It is not open to the Court to cancel their admission behind their back, nor would it be possible to require the State Government to create additional seats to accommodate the appellants.
[251F] OBSERVATION: The standard of medical profession should not be compromised in the national interest.
There has been a perceptible fall in the national standards and general efficiency of the professional men.
While it is not necessary to say anything against reservation, the Court approves of the concern shown by the Indian Medical Council that high standards of efficiency should be maintained, and that can only be possible if the State and the Council cooperate to maintain a high standard.
This aspect should be kept in view when the guidelines are prescribed for the selection of the students for the medical courses.
The impugned notification of the State Government shows that the reduction is confined to one year 1987 only.
It is hoped there would be no necessity for a repetition of this action.
[251G H; 252A B] State of M.P. and Anr.
vs Kumari Nivedita lain and Ors.
; , ; State of Kerala vs Kumari T.P. Roshana & Anr. ; and Krishna Priya Ganguly etc.
vs University of Lucknow & 246 Ors.
; , , referred to.


judgement:
ition No. 5858 of 1983.
(Under Article 32 of the Constitution of India) G.L. Sanghi, M.T. Siddiqi and Irfan Ahmed for the Petitioners.
Anil Dev Singh, C. Ramesh, K. Swami and Miss A. Subhashini for the Respondents.
The following order of the Court was delivered: O R D E R The Petitioner is a member of Delhi Higher Judicial Service, at present working as Additional district Judge.
The petitioner was directly recruited to service as a Scheduled Castes candidate.
He has approached this Court by means of this petition under Article 32 of the Constitution with a grievance that the High Court of Delhi has acted in an unreasonable manner in refusing to grant selection grade to him on more than one occasion.
A number of other allied questions were raised during the course of arguments but ultimately on behalf of the petitioner only the grievance relating to the refusal of selection grade was pressed.
Having heard learned counsel for the parties at a length and having perused the records and also the annual confidential reports awarded to the petitioner and other papers produced on behalf of the High Court, we find it difficult to hold that the High Court has acted unreasonably in refusing to grant selection grade to the petitioner.
Admittedly grant of selection grade was considered on the criteria of merit to the members of Delhi Higher Judicial Service.
Whenever a post in the selection grade was available the High Court considered the petitioner along with other officers but on a comparative assessment of merit of eligible officers, it granted selection grade to the officers who were junior to the petitioner and in that process the petitioner stood superseded.
Where promotion to higher grade or post is made on the criteria of merit, many a time junior officer is bound to supersede his senior in the process of assessment of comparative merit, which may result in supersession of a senior officer.
This cannot be helped since the petitioner 's case was considered on merit along with others.
and as 615 the High Court found officers junior to the petitioner suitable for grant of selection grade the petitioner could not be selected.
We find no illegality in the High Court 's orders.
However, we would like to refer one aspect which needs consideration.
On a perusal of the confidential character roll entries and other papers produced before us on behalf of the High Court, we find that since March 1979 to July 1980 the monthly statement of work done by the petitioner as assessed by the High Court on the basis of the report of the District Judge shows that the High Court rated his work and conduct as "good" and for the years 1982 83, 1983 84, 1984 85, 1985 86 and 1986 87 the petitioner has been awarded 'B ' grading.
No doubt he has not earned 'A ' grading but the confidential reports show that he is an honest officer.
Integrity of a judicial officer is a great asset to administration of justice, it must be given due weight.
The petitioner comes from a weaker section of the society and he has been found to be an honest officer, this fact needs consideration.
In our opinion the High Court should consider the petitioner 's case sympathetically for the grant of selection grade in the light of our observations at the next selection.
Writ petition is disposed of accordingly, there will be no order as to costs.
N.V.K. Petition disposed of.

summary/full:
The 2nd petitioner, a member of the Delhi Higher Judicial Service and working as an Additional District Judge in a writ petition to this Court, contended that he was directly recruited to service as a Scheduled Castes candidate and that the High Court had acted in an unreasonable manner in refusing to grant selection grade to him on more than one occasion.
Disposing of the Writ Petition, ^ HELD: 1.
Where promotion to higher grade or post is made on the criteria of merit, many a time a junior officer is bound to supersede his senior.
In the process of assessment of comparative merit, supersession of a senior officer may result.
This cannot be helped.[614G H] In the instant case, the petitioner was considered on merit along with others, and as the High Court found officers junior to him suitable for grant of selection grade the petitioner could not be selected.
This Court finds no illegality in the High Court 's order.
[615A] 2.
Integrity of a judicial officer is a great asset to administration of justice.
It must be given due weight.
[615C] 3.
The petitioner in the instant case, comes from a weaker section of the society and he has been found to be an honest officer.
This fact needs consideration.
The High Court should consider the petitioner 's 614 case sympathetically for the grant of selection grade at the next selection.
[615D]


judgement:
Civil Appeal No. 1331 of 1978.
From the Judgment and order dated 31.3.1977 of the Allahabad High Court in C.M. Writ No. 72 of 1777.
Arvind Kumar, K.B. Chatterjee, R.K. Mathur and Mrs. Laxmi Arvind for the Appellant.
Prithvi Raj and Ashok K. Srivastava for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This appeal by special leave arises out of and is directed against the dismissal of Civil Misc.
Writ No. 72/77 filed by the appellant by the High Court of Allahabad by judgment and order dated 31.3.1977.
The facts are not in controversy and the only question for consideration in the appeal is whether the High Court was in error in affirming the view taken by the Prescribed Authority and the Appellate Authority (the District Judge, Mathura) that an extent of 12.35 acres, which the appellant claimed to have transferred to his daughter, by means of a registered gift deed, has also to be reckoned in computing the total extent of land in the appellant 's holding for determination of the ceiling area in his holding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act (hereinafter the Act) 1960.
In response to a notice issued under Section 10(2) of the Act, the appellant contended that he was not in possession of 23.61 acres of surplus agricultural land as set out in the notice and that the authorities had failed to notice that he had transferred by means of a registered deed of gift dated 7.1.1972 an extent of 12.35 acres of land to his invalid daughter Pushpa Devi who remained unmarried inspite of being 30 years old because of her being born a crippled child and, secondly, the lands bearing khasra No. 226, 227 and 229 were part of Abadi and, therefore, stood excluded from the operation of the Ceiling Act.
Both the contentions did not find favour with the Prescribed Authority as well as the Appellate Authority.
In so far as the first contention is concerned, with which alone we are concerned in this appeal, both the authorities held that the appellant had failed to establish that the transfer of land in favour of his daughter was made in good faith and was not intended for the immediate or deferred benefit 543 of the appellant and other members of his family and furthermore the transfer appeared to be a device to defeat the provisions of the Act The appellant filed Civil Misc.
Writ No. 72/77 in the High Court for having the order of the Prescribed Authority as affirmed by the Appellate Authority quashed but failed to meet with success and hence the present appeal by special leave.
The learned counsel for the appellant assailed the finding rendered against the appellant as regards the purported gift of land to his daughter, on the following grounds: (1) Though the registered deed of gift had been executed after the prescribed date viz. 21.1.71, the transfer was in pursuance of an earlier family arrangement to provide maintenance for the invalid daughter and, therefore, the transfer falls outside the purview of Section 5(6) of the Act.
(2) Alternatively, if the transfer attracted the operation of Section 5(6) and did not constitute an excepted transfer under Clause (b) of the proviso to Section 5(6), then Section 5(6) should be held ultra vires Article 31 A of the Constitution.
(3) The Act is violative of Article 14 of the Constitution in that it discriminates between major unmarried daughters and minor unmarried daughters by excluding the former from the definition of 'family ' under Section 3(7) of the Act Before examining the merits of the above said contentions, it has to be stated that the Act as well as the amending Acts viz. Uttar Pradesh Act 18 of 1973 and Uttar Pradesh Act 2 of 1975 have been included in the Ninth Schedule and therefore Section 5(6) is not open to attack on the ground of constitutional infirmity by reason of the immunity conferred by Article 31 B. Bearing this position in mind, we may refer to the definition of Section 3(7) and Section 5(6) of the Act The relevant provisions read, as under: "Section 3(7): 'family ' in relation to a tenure holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters)". "Section 5(6): In determining the ceiling area appli 544 cable to a tenure holder, any transfer of land made after the twenty fourth day of January, 1971 which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account: Provided that nothing in this sub section shall apply to (a) a transfer in favour of any person (including Government) referred to in sub section (2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family.
From the definition of family in Section 3(7) it may be seen that a major daughter of a tenure holder, even if she is unmarried, is undoubtedly not treated as a member of the family.
As regards Section 5(6) the legislature has provided that any extent of land transferred after 24.1.1971 has also to be included in the total extent of holding of the tenure holder for the purposes of calculation of the ceiling area unless the transfer falls within the category of excepted transfers under clause (a) or (b) of the proviso.
Taking up the first contention of the appellant s counsel, we find no merit in it because the finding of the Prescribed Authority and the Appellate Authority, which has found acceptance with the High Court, is a finding of fact and as such its correctness cannot be canvassed in an appeal under Article 136 of the Constitution Even otherwise we do not see any error in the impugned finding because the appellant had failed to prove that there was an earlier family arrangement and if there was one, to explain why he had delayed the execution of the deed of gift till after the Act came into force, especially when the purported gift would only result in himself and his sons being in possession of the land and enjoying the income therefrom.
That apart, there is no scope for treating the gift as falling outside the purview of Section 5(6) because the sub section mandates "any transfer of land made after the twenty forth day of January, 1971", to be ignored and not to be taken into account unless the transfer stands protected by proviso (a) or (b) of the sub section.
545 As regards the second contention that Section 5(6) is violative of Article 31 A of the Constitution, we may straightaway observe that the question is no longer res integra.
In D. G. Mahajan vs Maharashtra, ; at pages 810 to 812 and at page 824 this Court has held that "that Section 5, sub clause 6 of the amended U.P. Imposition of Ceiling on Land Holdings Act, even if it contravenes the seconds proviso to clause 1 of Article 31 A, a matter on which we do not wish to express any opinion since it is unnecessary to do so, is validated under Article 31 B" and "that Section 5 sub clause (6) of the U P Imposition of Ceiling on Land Holdings Act is valid and its constitu tionality cannot be assailed by reason of the immunity enacted in Article 31 B." In a later case Ambika Prasad vs U.P. State, ; the validity of the Act was declared and inter alia it was held that "the provision in Section 5(6) when read in the light of the proviso is fair and valid.
" There is, therefore no scope for the apellant to raise any contention that Section 5(6) is ultra vires Article 31 A. So far as the last contention is concerned, even this question is concluded by the pronouncement in Ambika Prasad 's case (supra) and does not, therefore, survive for consideration.
This Court while observing that though "the anti female kink is patent in that the very definition of family discloses prejudice against the weaker sex by excluding adult daughter without providing for any addition to the ceiling on their account," has nevertheless held that the provisions do not discriminate between man and woman qua man and woman but merely organise a scheme where life 's realism is legislatively pragmatised The relevant portion of the judgment reads as under: "Section 5(3) does not confer any property on an adult son nor withdraw any property from an adult daughter.
That provision shows a concession to a tenure holder who has propertyless adult sons by allowing him to keep two more hectares per such son.
The propertyless son gets no right to a cent of land on this scope but the father is permitted to keep some more of his own for feeding this extra mouth.
If an unmarried daughter has her own land, this legislation does not deprive her any more than a similarly situated unmarried son.
Both are regarded as tenure holders.
The singular grievance of a chronic spinster vis a vis a similar bachelor may be that the father is allowed by section 5(3) to hold an extra two hectares only if the unmarried major is a son.
546 Neither the daughter nor the son gets any land in consequence and a normal parent will look after an unmarried daughter with an equal eye.
Legal injury can arise only if the daughter 's property is taken way while the son 's is retained or the daughter gets no share while the son gets one.
The legislation has not done either.
So, no tangible discrimination can be spun out.
May be, the legislature could have allowed the tenure holder to keep another two hectares of his on the basis of the existence of an unmarried adult daughter.
It may have grounds rooted in rural realities to do so.
The Court may sympathise but cannot dictate that the land holder may keep more land because he has adult unmarried daughter.
That would be judicial legislation beyond permissible process.
" The above pronouncement of the Constitution Bench concludes the issue regarding the vice of discrimination.
For the reasons aforesaid, all the contentions of the apellant fail and the appeal will stand dismissed.
The parties are, however, directed to pay and bear their respective costs.
N.V.K. Appeal dismissed.

summary/full:
In response to a notice issued under Section 10(2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, the appellant contended that he was not in possession of 23.61 acres of surplus agricultural land as set out in the said notice, and that the authorities had failed to notice that he had transferred by means of a registered deed of gift dated January 7, 1972 an extent of 12.35 acres of land to his invalid daughter who remained unmarried inspite of being 30 years old because she was born a crippled child, and that the lands were part of Abadi and, therefore, stood excluded from the operation of the said Ceiling Act.
The Prescribed Authority as well as the Appellate Authority did not find favour with the aforesaid contentions, and held that the appellant had failed to establish that the transfer of land in favour of his daughter was made in good faith, and was not intended for the immediate or deferred benefit of the appellant and other members of his family, and furthermore the transfer appeared to be a device to defeat the provisions of the Act.
Being aggrieved with the order of the Prescribed Authority, that was affirmed by the Appellate Authority the appellant approached the High Court by way of Writ Petition to quash the said orders.
The High Court, however, dismissed the Writ Petition.
In the appeal to this Court it was contended on behalf of the 541 appellant: ( 1 ) though the registered deed of gift had been executed after the prescribed date viz. January 21, 1971, the transfer was in pursuance of an earlier family arrangement to provide maintenance for the invalid daughter and, therefore, the transfer falls outside the purview of Section 5(6) of the Act; (2) if the transfer attracted the operation of Section 5(6) and did not constitute an excepted transfer under Clause (b) of the proviso to Section 5(6), then Section 5(6) should be held ultra vires Article 31 A of the Constitution; (3) the Ceiling Act is violative of Article 14 of the Constitution in that it discriminates between major unmarried daughter and minor unmarried daughter by excluding the former from the definition of family ' under Section 3(7) of the Act.
Dismissing the Appeal, ^ HELD: 1(i) From the definition of 'family ' in Section 3(7) it can be seen that a major daughter of a tenure holder, even if she is unmarried.
is undoubtedly not treated as a member of the family.
[544D] (ii) The Legislature has provided by section 5(6) that any extent of land transferred after 24.1.197l has also to be included in the total extent of holding of the tenure holder for the purposes of calculation of the ceiling area, unless the transfer falls within the category of excepted transfers under clauses (a) or (b) of the proviso.
[544E] In the instant case, the finding of the Prescribed Authority and the Appellate Authority, which has found acceptance with the High Court, is a finding of fact and as such its correctness cannot be canvassed in an appeal under Article 136 of the Constitution.
Even otherwise, the appellant had failed to prove that there was an earlier family arrangement and if there was one, to explain why he had delayed the execution of gift till after the Ceiling Act came into force, especially when the purported gift would only result in himself and his sons being in possession of the land and enjoying the income therefrom.
[544F G] 2.
There is, no scope for the appellant to raise any contention that section 5(6) is ultra vires Article 31 A.
Its constitutionality cannot be assailed by reason of the immunity enacted in Article 31 B. [545A,B] 3.
The provisions of the Ceiling Act do not discriminate between man and woman qua man and woman but merely organise a scheme where life 's realism is legislatively pragmatised.
[545E] D.G. Mahajan vs Maharashtra, ; and Ambika 542 Prasad vs U.P. State, ; , referred to.