judgement:
Petition (crl) Nos. 353 and 491 of 1988.
(Under Article 32 of the Constitution of India).
A.S. Pundir for the Petitioners.
PG NO 1025 V.C. Mahajan, Mrs. A. Katiyar, Dalveer Bhandari and Ms. Subhashini for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These two petitions under Art, of the Constitution are for issue of a writ of Habeas Corpus for the release of Ram Ratan and Hawa Singh, who have been detained under sec.
3(2) of the of 1980.
Ram Ratan was a Head Constable and Hawa Singh was a Constable in the Security Unit of Delhi Police.
While on duty, they were together said to have committed a cognizable Offence under Sec.
392/34 of IPC along with a member of the public.
Immediately thereafter they were arrests and placed on suspension.
The Court.
however released them on bail While the case was under investigation the Commissioner of Police, Delhi (Mr. Vijay Karan) thought fit the detam them under the .
Accordingly.
he made them orders which are impugned herein.
Subsequently.
they have been summarily dismissed from service under Article 3 11(ii)(b) of the Constitution.
The principal contention urged for the petitioners relates to the oft repeated question that the ground of detention has no nexus to the `public order ' but purely a matter for "law and order".
In order to appreciate the contention urged in this regard it will be necessary to have regard to the orders of detention.
The orders passed against the two detenu are on different dates,but are similar in terms and it may be sufficient if we refer to one of the orders.
The ground of detention in each case relates to one incident which has been stated as follows: That on 22.7.88, one Shri Jasbil Singh S/o Shri Inder Singh R/o 5869/3 Ambala City (Haryana) reported that on 21.7.88 he purchased some T.V. parts from Lajpat Rai Market.
After purchase, he loaded the TV parts on rickshaw and asked the rickshaw puller Shanker S.o Shri Vasudev R/o Old Lajpat Rai Market.
Near Hanuman Mandir, who was known to him to take the parts to Patiala Transport near Libra Service Station G.T.K. Road.
He himself went alone to Patiala Transport and waited for the rickshaw puller.
At about 11.00 pm.
the rickshaw puller informed him that two police PG NO 1026 personnel namely H.C. Ram Ratan and Constable Hawa Singh who were previously posted in P.S. Kotwali along with a member of the public Prabhu Dayal who he knew has stopped his rickshaw near B block, Industrial Area, G.T.K. Road.
Head Constable Ram Ratan caught him and started beating him and asked for a receipt for the goods.
Constable Hawa Singh and Prabhu Dayal removed the parts and loaded in a TSR and went away.
" It was also stated that those T.V. parts were recovered from the detenu and the case was registered under sec.
392/34 IPC in which the investigation was progressing.
There then, it was said: From the above criminal activity of Shri Ram Ratan it is clear that he, being a Police Officer and bound to provide security and safety to the public, has himself committed a heinous offence which has created a sense of insecurity in the minds of public at large and is pre judicial to the maintenance of public order.
Keeping in view the above criminal activity of the said Head Constable Ram Ratan, it has been felt necessary to detain him u/s 3(2) of the National Security Act, 1981 so that his such activity which is prejudicial to the maintenance ot public order could be stopped.
xxx xxx.xxx xxx Sd/ (Vijay Karan) COMMISSIONER OF POLICE: Delhi As is obvious from the order, the Commissioner was satisfied with the need to detain the person, firstly because, the person being a police officer was bound to provide security and safety to the public and secondly, the offence committed was "heinous" which has created a sense of insecurity in the minds of the public at large.
The same was highlighted before us by Shri Mahajan, learned counsel for the respondents justifying the detention orders.
The Counsel argued that though the incident in question was a simple case of robbery, since it was PG NO 1027 committed by persons belonging to the disciplined police force, it would certainly disturb the public safety in the life of the community with a sense of Insecurity in their minds.
It is true that the detenu belonged to the police force in the national capital.
Public look for the police for safety.
Society regards them as their guardian for its protection.
Society needs a properly trained and well disciplined police force whom it can trust in all respects.
They are the real frontline of our defence against violence.
They have to maintain law and order.
They have to safeguard our freedoms and liberty.
They have to prevent crime and when crime is committed, they have to detect it and bring the accused to justice.
They must be available at all hours.
They are always expected to act and indeed must act properly.
it is reprehensible if they themselves indulge in criminal activities.
We are not, as we cannot, be unmindful of the danger to liberties of people when guardians of law and order themselves indulge in undesirable acts.
But the law of preventive detention is not different to police personnel.
It is the same law that we apply to police as well as to public.
We cannot, therefore, apply a different standard in respect of acts individually committed by any police officer.
The subjective satisfaction of the detaining authority with respect to the person sought to be detained should be based only on the nature of the activities disclosed by the grounds of detention.
The grounds of detention must have nexus with the purpose for which the detention is made.
The question in this case is whether the crime in question has any impact on `public order as such.
Courts have strived to give to this concept a narrower construction than what the literal words Suggest.
In the Superintendent, Central Prison, Fatehgarh vs Ram Manohar Lohia Subba Rao, J., as he then was, observed (at 833): "But in lndia under article 19(2) this wide concept of public order is split up under different heads.
It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State, friendly relations will foreign States, public order, decency or morality.
or in relation to contempt of court, defamation or incitement to an offence.
All the grounds mentioned therein can be PG NO 1028 brought under the general head public order" in its most comprehensive sense.
But the juxtaposition of the different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other.
"Public order is therefore something which is demarcated from the others.
In that limited sense, particularly in view of the history of the amendment, it can be postulated that `public order is synonymous with public peace, safety and tranquility.
" The impact on public order" and law and order" depends upon the nature of the act, the place where it is committed and motive force behind it.
If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only.
But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the public order.
This is precisely the distinguishing feature between the two concepts.
Sometimes as observed by Venkatachaliah, J. in Ayya Alias Ayub vs The State of U.P. & Anr.
Judgment today 1988 Vol.
4 p. 489 (at 496): `what might be an otherwise simple law and order situation might assume the gravity and mischief of a public order problem by reason alone of the manner or circumstances in which or the place at which it is carried out.
Necessarily, much depends upon the nature of the act the place where it is committed and the sinister significance attached to it.
As for example dare devil repeated criminal acts.
open shoot out throwing bomb at public places.
committing serious offences in public transept, armed persons going on plundering public properties of terrorising people may create a sense of insecurity in the public mind and may have an impact on public order.
Even certain murder committed by persons in lonely places with the definite object of promoting the cause of the party to which they belong may also affect the maintenance of public order .
In Abdul Aziz vs The Dist.
Magistrate Burdwan & Ors. ; this Court has stated so.
There two grounds were furnished to the detenu in justification of the order of detention.
It was stated: "firstly, that the petitioner and his associates were members of an extremist party (CPI ML), that on 16th August 1971, they armed themselves with lethal weapons like PG NO 1029 firearms, choppers and daggers with a view to promoting the cause of their party, that they raided the house of one Durgapada Rudra and murdered him and that the aforesaid incidents created a general sense of insecurity, as result of which the residents of the locality could not follow their normal avocations for a considerable period.
The second ground of detention is that on 22nd May, 1971 the petitioner and his associates raided the house of Smt.
Kshetromoni Choudhury and murdered one Umapada Mallick who was staring in that house.
This incident is also stated to have created a general sense of insecurity amongst the residents of the locality.
" Repelling the connection in that case that the two incidents referred to above are but simple cases of murder germane to law and order but could have no impact on public order Chandrachud, J. as he then vas, said (at p. 648): "A short answer to this contention is that the murders are stated to have been committed by the petitioner and his associates with the definite object of promoting the cause of the party to which they belonged.
These, therefore, are not stray or simple cases of murder as contended by the learned counsel.
Such incidents have serious repercussions not merely on law and order but On public order.
In Mohd. Dhana Ali khan vs State of West Bengal this Court had an occasion to consider the detention of a person under the maintenance of Internal Security Act, 1971 regarding a single instance of theft in a running train at night.
The acts attributed to the detenu in that case were that on 3.8.1973.
between 2110 and 2120 hrs.
, the detenu and his associate being armed with daggers boarded a 3rd class compartment of SL 257 UP train of E. Railway Sealdah Division at Gocharan Railway Station.
They put the passengers of the compartment to fear of death and snatched away a wrist watch and a gold necklace from one Nirmal Chatterjee and his wife in between Gocharan and Surajpur Railway Stations.
The they decamped with booty from the running train at Suryapur Railway Station.
It was contended in that case that the said single incident referred to have not even casual connection with the disturbance of public order.
Fazal Ali.
while rejecting that contention said (at 126).
`From a perusal of this we are unable to accept the PG NO 1030 contention of the petitioner that this ground has no nexus with the disturbance of public order.
It is true that the ground contains a single incident of theft of valuable property from some passengers travelling in a running train and may amount to robbery.
But that does not by itself take the case out of the purview of the provisions of the Maintenance of Internal Security Act.
There are two pertinent facts which emerge from the grounds which must be noted.
In the first place the allegation is that the petitioner had snatched away a wrist watch and a gold necklace after putting the passengers of the compartment to fear of death.
Secondly, the theft had taken place at night in a running train in a third class compartment and the effect of it would be to deter peaceful citizens from travelling in trains at night and this would undoubtedly disturb the even tempo of the life of the community.
" We have carefully examined the act complained of in the present case in the light of the principles stated above.
It is an isolated criminal case with no sinister significance attached to it.
The offence was committed by two misguided police men under the cover of darkness with the assistance of a member of the public.
It was certainly suicidal to those two police personnel.
But it seems to have no connection whatsoever to disturb the `public order having regard to the circumstances of the case.
The last contention urged for the petitioners that the detention would be illegal in view of dismissal of detenu from service is really without merit.
The subsequent order of dismissal is not germane to of examine the validity of the detention.
In the result the rule is made absolute.
The orders of detention impugned in these cases are quashed.
The detenu Ram Ratan and Hawa Singh be set at liberty forthwith.
M.L.A. Petitions allowed.

summary/full:
The detenu, in the writ petitions filed by the petitioners under Article 32 of the Constitution, belonged to the Security Unit of Delhi Police.
While on duty, they were alleged to have stopped a rickshaw puller who was carrying some goods to a transport company.
They caught hold of him and started beating him and asked for a receipt for the goods.
Thereafter they removed the goods from the rickshaw and went away in a T.S.R. The aforesaid goods was recovered from their possession and a case under Section 392/34 I.P.C. was registered against them.
Thereafter they were arrested and placed under suspension.
The court, however, released them on bail.
While the case was under investigation.
the Commissioner of Police, Delhi detained them u/s 3(2) of the on the ground that the above criminal activity of the detenu has created a sense of insecurity in the minds of public at large and is pre judicial to that maintenance of public order.
It was contended on behalf of the petitioners that the said orders are bad in law, since the ground of detention has no nexus to the`public order ', but purely a matter for `law and order '.
Counsel for the respondents, on the other hand argued that though the incident in question was a simple case of robbery, since it was committed by persons to longing to the disciplined police force, it would of certainly disturb the public safety in the life of the community with a sense of insecurity in their minds and therefore the detention orders were justified.
Allowing the writ petitions, HELD: (1) The orders of detention are quashed.
The detenu Ram Ratan and Hawa Singh are set at liberty forthwith.
[1030F] PG NO 1023 PG NO 1024 (2) The law of preventive detention is not different to police personnel.
It is the same law that is applied to police as well as to public.
Therefore, this Court cannot apply a different standard in respect of acts individually committed by any police officer.
[1027D] 3(i) The subjective satisfaction of the detaining authority with respect to the persons sought to be detained should be based only on the nature of the activities disclosed by the grounds of detention.
The grounds of detention must have nexus with the purpose for which the detention is made.
[1027E] 3(ii) The impact on `public order ' and `law and order ' depends upon the nature of the act, the place where it is committed and motive force behind it.
If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be matter of law and order only.
But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the `public order '.
What might be an otherwise simple `law and order ' situation might assume the gravity and mischief of a `public order ' problem by reason alone of the manner of circumstances in which or the place at which it is carried out.
Necessarily, much depends upon the nature of the act, the place where it is committed and the sinister significance attached to it.
[1028C E] In the instant case, the offence was committed by two misguided police men under the cover of darkness with the assistance of a member of the public.
It is an isolated criminal case with no sinister significance attached to it.
It way certainly suicidal to those two police personnel.
But it seems to that 110 connection whatsoever to disturb the public order ' having regard to the circumstances of the case.
[1030D E] Superintendent, Central Prison, Fatehgarh vs ram Manohar Lohia, ; Ayya Alias Ayub vs The State of U.P, Aziz vs The Distt.
Magistrate Burdwan & Ors., ; and Mohd. Dhana Ali Khan vs State of West Benal,.
[1975] Suppl.
SC 124 followed.


judgement:
TION: Criminal Appeal No. 627 of 1988.
From the Judgment and Order dated 10.6.1988 of the Bombay High Court in Criminal Writ Petition No. 257 of 1988.
R.K.Garg and P.N.Gupta for the Appellant.
Kuldip Singh, Additional Solicitor General, Arun Madan and P.Parmeshwaran for the Respondents.
PG NO 1033 The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Arguments heard.
This appeal on special leave is against the judgment dated 10th June, 1988 made by High Court of Allahabad dismissing Criminal Writ Petition No. 257 of 1988 instituted by the detenu.
The facts giving rise to this appeal are that on August 25, 1987 the house of the appellant was searched by the officers of the Enforcement Directorate under Section 37 of Foreign Exchange Regulation Act, 1973 and they seized currency notes of Re. 1 lakh and four bank drafts amounting to Rs.30,000, bank pass book and loose sheets Nos.
1 to 44 as per item No. 2 in panchnama dated August 25, 1987.
The statement of detenu was recorded and he was arrested on the same day.
On August 26, 1987 the detenu made an application in the Court of Addl.
Chief Metropolitan Magistrate, 8th Court at Esplanade retracting his statement.
The Magistrate made an order thereon that " Taken on record".
An application for bail was moved on September 15, 1987 and an order had been made on that day releasing him on bail of Re. 1 lakh with a condition imposed that he would attend Enforcement Department Office every day between 11 a.m. to 2 pUll.
until further order.
The detenu filed an application on September 22, 1987 for variation of the said conditional order and the condition was varied by the Magistrate by directing that the detenu may attend the Enforcement Department as and which required.
The Enforcement Directorate sent a letter directing the detenu to collect his passport deposit during the time of questioning.
The passport however.
remained with the Enforcement Department.
Thereafter.
on February 9. 1988 the impugned order of detention of the detenu in Central Prison, Bombay was made by the responded No. 1, the Joint Secretary, Government of India.
The order of detention was served on the detenu on February 19, 1988 and the grounds of detention were furnished to him.
A Criminal Writ Petition No. 257 of 1980 was filed before High Court, Bombay for quashing the said detention order on the grounds inter alia that certain vital documents such as the application dated September 21, 1987 for variation of the condition ot bail as well as the order passed by the Chief Metropolitan Magistrate varying the condition, the application dated August 26, 1987 retracting the statement by the detenu filed before the Magistrate and non consideration of the same, as well as the non supply of the copies of Bank pass books and loose papers seized from the residence of detenu and mentioned in panchnama dated PG NO 1034 August 25, 1987 which were placed before the detaining authority etc.
vitiated the subjective satisfaction of the detaining authority on consequently the order of detention is illegal and bad.
A Rule Nisi was issued.
A return was filed by the respondent No. 1 wherein the detaining authority denied the allegations and stated that all vital and material documents which had been considered in forming his subjective satisfaction and mentioned in the grounds have been supplied to him and as such the impugned order of detention is not illegal and bad.
The criminal writ petition was, therefore, dismissed.
Aggrieved by the judgment of the High Court, the instant appeal on special leave has been filed.
It was firstly contended on behalf of the appellant that the application for bail and the order dated September 15, 1987 by the Metropolitan Magistrate granting conditional bail of Re. 1 lakh with one surety of like amount though placed before the detaining authority, the application for variation of the condition and the order made thereon by the Magistrate on September 21, 1987 was not produced before the detaining authority.
This is a vital document and non consideration of the same by the detaining authority results in the order being illegal.
The decision in Ashadevi wife of Gopal Ghermal Mehta (detenu) vs K. Shiveraj, Addl.
Chief Secretary to the Government of Gujarat & Anr.
, ; was cited at the bar.
In this case it has been observed by this Court thai documents which are vital and necessary for formation of subjective satisfaction,which is the pre requisite for making an order of detention having not been placed before the detaining authority before making the detention order.
the order of detention will get vitiated.
The detention was to prevent the detenu from indulging in Hawala business i.e. making various payments to various persons in this country on receiving instructions from Rafiq from Dubai.
The application for variation if condition of bail and the order passed by the Metropolitan Magistrate varying the condition of bail is, in our opinion, not a vital and material documents in as much as the granting of bail by the Magistrate enabled the detention come out and carry on his business activities as before.
Condition imposed by the Magistrate directing the detenu to appear before the office of the Enforcement Department every day between 11 a.m. to 2 p.m. has been varied to the extent that the accused to attend Enforcement Department as and when required".
The condition imposed by the Magistrate has no relation to the activities carried on by the detenu and PG NO 1035 as such the High Court after considering all the circumstances held that the order varying the condition of bail was not a relevant document and failure to produce the document before the detaining authority before arriving at his subjective satisfaction had not vitiated the order.
We agree with the same.
The judgment delivered by the High Court, Bombay in Criminal Writ Petition No. 1304 of 1987 entitled Arvindbhai Purshottambhai Patel vs R. C. Iyer and Ors., on February 25.
1988 was referred to us.
In this case the detenu was arrested for smuggling prohibited articles and the detenu was prosecuted for smuggling.
He was granted bail by Magistrate on certain condition.
Subsequently that order was varied.
The initial order granting bail was placed before the detaining authority, but the subsequent order of variation was not placed.
It was held by the Division Bench of the High Court that the order of modification might have influenced the detaining authority in forming his subjective satisfaction and as such the non placement of the same would vitiate the order.
That was a case of smuggling of prohibited articles and the condition in the bail was that he would not leave the shores of the country and so he could not have indulged in smuggling activities pending decision of the case.
This condition was relaxed by the subsequent order.
In that context it was observed by the Court that the order of variation is a material document which might affect the formation of subjective satisfaction before passing the order of detention and the failure to place that document vitiated the detention order.
This observation was made in the facts of that case.
This case has no relevance in the facts of this case as we have held that in the present case the order of Variation is not a relevant and vital document.
It has been submitted that the detenu made an application on August 26,1987 in the Court of Addl.
Chief Metropolitan Magistrate.
8th Court.
Esplanade retracting his statement whereon an order was made that "taken on record".
This application was not placed before the detaining authority and this has vitiated the detention order as this vital document was not considered before arriving at the subjective satisfaction by the detaining authority.
It may be convenient to mention that in the counter affidavit to the writ petition the respondent No. 1 has stated in para 5 that the application dated August 26, 1987 and the order passed thereon was not placed before him as the Sponsoring Authority did not know about the said application dated August 26, 1987 and the order thereon.
The Enforcement Directorate was not aware of the said application and the order thereon.
In any case, the respondent No. 1 has already stated that the retraction letter of detenu dated September PG NO 1036 20,1987 and the reply of the Directorate of Enforcement to the said letter of the detenu dated August 26,1987 was placed before the detaining authority.
This submission, therefore, has no merit as the detaining authority knew about the retraction statement and the order made thereon before making the order of detention.
It has been contended that the Enforcement Department in course of search of the house of detenu on August 25, 1987 attached bank drafts and cheques, bank pass books of State Bank of India, Kandivali Branch, New India Co operative Bank and Bank of Baroda, Dahisar, loose sheets bunched together and marked `C ' containing pages 1 to 44 and seized under panchnama but did not place before the detaining authority and if placed copies of those documents were not given to the detenu.
It has been submitted that the failure to supply these documents infringed his fundamental right to make an effective representation and so the impugned order is required to be quashed.
In reply to this submission the detaining authority filed a return stating that all documents mentioned in panchnama were placed before him.
But only relevant and vital documents were taken into consideration for reaching subjective satisfaction.
These documents have been referred to in the grounds of detention and copies of all the said documents have been furnished to the detenu.
It has been strenuously contended on behalf of the appellant that Bank pass books and some pages out of 1 to 44 of the loose sheets bunched together and referred to in the Panchnama were not given to him and so he could not make an effective representation.
This has infringed his right.
In support of his sub mission the decision of this Court in Ashok Kumar vs Union of India and Ors., [ ; (to which one of us is a party) has been cited at the bar.
There is no dispute that all the documents which were considered by the detaining authority in reaching his subjective satisfaction and referred to in the grounds of detention have been furnished to the detenu.
It is not necessary to furnish copies of all the documents including the bank pass books which are not material and relevant for reaching the subjective satisfaction of the detaining authority merely because they were mentioned in the panchnama.
Moreover, no application had been made before the detaining authority for giving the detenu the copies of the bank pass books necessary for making an effective representation against the order of detention.
In Ashok Kumar 's case (supra) wherein this Court held that the order of detention had been vitiated due to non supply of bank pass books of the detenu and his wife seized in course of search of some houses wherefrom foreign currency as well PG NO 1037 as primary gold with foreign makings were recovered, as it was held that these documents were vital and material documents.
The detenu in that case made an application for furnishing him the bank pass books in order to enable him to make an effective representation against the order of detention stating that the houses from which the alleged foreign currency as well as primary gold with foreign markings had been recovered did not belong to or owned by the detenu.
In that background this Court held that non supply of the bank pass books infringed the detenu 's right to make an effective representation.
In the instant case as we have said hereinbefore that the bank pass books are not vital and material documents in reaching subjective satisfaction of the detaining authority and as such the failure to furnish the bank pass books to the detenu has not infringed any right of the appellant and the order of detention cannot be questioned as illegal or vitiated on that score.
No other points have been urged before us.
For the reasons aforesaid we dismiss the appeal.
There will be no order as to costs.
R.S.S. Appeal dismissed .

dataset_name: IN-Abs

summary/full:
The house of the appellant detenu was searched and currency notes, bank drafts, bank pass books and loose sheets seized.
The detenu 's statement was recorded and he was arrested.
Iater, he made an application retracting his statement and the Magistrate made an order thereon: "Taken on record".
He was subsequently released on bail with a condition that he would attend Enforcement Department office every day.
On his moving another application, the condition was varied.
Thereafter, an order of detention was made by respondent No. 1 against the appellant under section 3 of the .
The detenu thereupon filed a writ in the High Court challenging the order, which was dismissed.
Before this Court, it was contended on behalf of the detenu that (i) his application for variation of the condition of bail and the order thereon as well as his application retracting his statement and the order thereon were not placed before the Detaining Authority, and non consideration of these vital documents vitiated the detention order; and (ii) copies of bank statements and loose sheets were not supplied to the detenu and this infringed his right to make an effective representation.
Dismissing the appeal, it was, HELD: 1.
The application for variation of condition of bail and the order passed thereon were not material or relevant documents and failure to produce the same before PG NO 1031 PG NO 1032 the Detaining Authority before arriving at his subjective satisfaction had not vitiated the detention order.
[1035A] Asha Devi wife of Gopal Sherwal Mehta (detenu) vs Shiveraj, Addl.
Chief Secretary to the Government of Gujarat Arvindbhai Purshottambhai Patel y. R.O. Iyer and Ors., Writ Petition No. 1304 of 1987 dated 25.2.1988, Bombay High Court, distinguished.
Though the detenu 's application retracting his statement and the Magistrate 's order thereon was not placed before the Detaining Authority, his retraction letter and the reply of the Directorate of Enforcement had been placed before the Detaining Authority, and as such the Authority knew about these facts.
[1035G; 1036A] 3.
There was no dispute that all the documents which were considered by the Detaining Authority in reaching his subjective satisfaction and referred to in the grounds of detention had been furnished to the detenu.
It was not necessary to furnish copies of all the documents including the bank pass books which were not material and relevant for reaching the subjective satisfaction of the detaining authority merely because they were mentioned in the panchnama.
11036F G] 4.
The bank pass books were not vital and material documents in reaching subjective satisfaction of the detaining authority and as such the failure to furnish the bank pass books to the detenu had not infringed any right of the appellant and the order of detention could not be questioned as illegal or vitiated on that account.
[1037B C] Ashok Kumar vs Union of India, [ 198X] ; , referred to.


judgement:
ivil Appeal No. 6144 of 1983.
From the Judgment and Order dated 10.8.1982 of the Himachal Pradesh High Court in CWP No. 109 of 1982.
PG NO 1012 P.P. Rao and Ranjit Kumar for the Appellant.
Shankar Ghosh, K.G. Bhagat, P.P. Juneja, Girish Chandra, Ms. A. Subhashini and N.h.
Sharma for the Respondents.
The Judgment of the Court was delivered by Dutt, J.
This appeal by appeal leave is directed against the judgment of the Himachal Pradesh High Court dismissing the writ petition of the appellant challenging the Government order dated April 2&,1982 as a result of which the appellant was placed below the respondents Nos. 4 and 5 in the seniority list.
The appellant was appointed as Reception Officer in the Department of Public Relations & Tourism, Himachal Pradesh, on February 26, 1962 and was confirmed in that post on May 18, 1966.
He was temporarily promoted to the post of District Public Relations Officer in the pay scale of Rs.250 500 on May 18, 1966.
On June 3, 1966, a post of Assistant Manager, Tourism, was created in the pay scale of Rs.250 500.
One S.P. Singh, who was junior to the appellant was appointed to that post inasmuch as the appellant was already holding the post of District Public Relations Officer in the same scale of pay.
It may be stated here that both the posts of District Public Relations Officer and Assistant Manager were ex cadre posts.
On July 26, 1966 the Department of Public Relations & Tourism was bifurcated and a separate Department of Tourism was created.
It is the case of the appellant that he made a representation that he might be transferred to his parent Department, that is, the Department of Tourism.
While the representation of the appellant was pending consideration, the , hereinafter referred to as the Act, was enacted.
The appointed day under the Act was fixed a November l, 1966.
Under section 5 of the Act, on and from the appointed day certain territories of the State of Punjab were added to the Union Territory of Himachal Pradesh.
Section 33 of the Act provides that every person who immediately before the appointed day is holding or discharging duties of any post or office in connection with the affairs of the existing State of Punjab in any area which on that day falls within any of the successor States shall continue to hold the same post of office in that successor State and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of or other appropriate PG NO 1013 authority in, that successor State.
A Under the proviso to section 33 nothing in that section shall be deemed to prevent a competent authority on or after the appointed day from passing in relation to such person any order affecting his continuance in such Post or office.
The respondents Nos. 4 and 5, who were holding the posts of Tourists Officers in the pay scale of Rs.250 350 in the State of Punjab, were allocated to the Union Territory of Himachal Pradesh as Tourist Officers in the pay scale of Rs.250 350.
Although there were no post of Tourist Officer in the Union Territory of Himachal Pradesh, in view of section 33 of the Act, the respondents Nos. 4 and 5 continued to hold the posts of Tourists Officers.
The Joint Secretary to the Government of India, Ministry of Home Affairs, in his D.O. letter dated February 14, 1967 issued certain instructions for the purpose of integration of the services of persons from the transferred territory of Punjab into those of the Himachal Pradesh.
Paragraph 2 of the said letter is in following terms: 2.
Action for the integration of the services would have to be initiated soon after the finalisation of allocations.
This would involve two steps: (i) Determination of equivalent posts, and (ii) Determination of relative seniority of persons holding equivalent posts but drawn from different integration units.
For determining the equation of posts the following factors would have to be taken into consideration: (a) The nature and duties of a post; (b) The responsibilities and powers exercised by the officer holding the posts; the extent of territorial; or other charge held or responsibilities discharged; (c) The minimum qualifications, if any,prescribed for recruitment to the posts; and the (d) the salary of the post.
PG NO 1014 The following factors would have to be taken into account for the determination of relative seniority: (x) Length of continuous service, whether temporary or permanent, in the equivalent post, this should exclude periods for which an appointment is held in a purely stopgap or fortuitous attangement; and (y) age of the person; other facts being equal, for instance, seniority may be determined on the basis of age.
While determining relative seniority as mentioned above, it was also be borne in mind that the inter se seniority of officers drawn from the same integrating unit should as far as possible be maintained." Thereafter, in paragraph 3 it is inter alia stated as follows: "3. . . . .
In the meanwhile.
I would request you to initiate without avoidable delay the work of establishing provisional equations between posts which have come from the Punjab to Himachal Pradesh and those which were in existence in Himachal Pradesh on the 31st October, 1966 and to prepare provisional seniority list as on the 1st November, 1966 based on those equations for each cadre (leaving out all localised cadre or cadres in which the problem of integrating officers from the Punjab with the officers of the Himachal Pradesh does not arise ).
" One of the two steps which was to be taken for the purpose of integration was determination of equivalent posts.
For determination the equivalent posts, the factors which would have to be taken in consideration were also suggested in the said letter.
One of the factors, which is by far the most important one, was as contained in clause (d) of paragraph 2, namely, the salary of the post.
It is apparent from the instructions given by the Central Government.
as contained in the said Letter of the Joint Secretary, that for the purpose of integration the first thing which should be done was determination of equivalent post and after such determination, the determination of relative seniority persons holding equivalent posts would be made.
It is surprising that although the instructions as given by the Central Government were very clear and specific in PG NO 1015 the matter of integration of services, the Government of Himachal Pradesh instead of following the two steps, as mentioned in the said letter of the Joint Secretary, prepared a provisional seniority list of the Tourism Department without first determining the equivalent posts.
There can be no doubt that integration of services postulates equation of posts.
Without such equation, preparation of inner se seniority lists between different groups of officers holding different posts cannot be conceived.
The Himachal Pradesh Government.
however, appears to have ignored the specific, clear and categorical directions of the Central Government to first of all determine the equivalent posts and adopted an arbitrary procedure in preparing the provisional inter se seniority list without such equation of posts.
In the provisional seniority list, the said S.P. Singh who was holding the post of Assistant Manager with effect from June 4, 1966 which post, as stated already, is an ex cadre post like the post of District Public Relations Officer held by the appellant, was placed at the top of seniority list as Assistant Manager.
After him were placed the names of respondents Nos. 4 and 5 as Tourist Officers.
The name of the appellant as placed below the names of the respondents Nos 4 and 5 as Reception Officer.
Admittedly.
the appellant was senior to the said S.P. Singh.
They were, however holding posts having the same scale of pay.
The Tourist Officers who joined the Tourism department of the Government of Himachal Pradesh from Punjab as a result of the transfer of certain territories of Punjab to Himachal Pradesh, were placed above the appellant although, admittedly, their scales of pay were less than that of the appellant.
Under the directions of the Central Government, the post of Tourists Officer could not be equated with that of the District Public Relations Officer because the scale of pay of the former is less than that of the latter.
Moreover, it is not understandable why the appellant 's name was metioned in the provisional seniority.
list as the Reception Officer, when he was on the appointed day, that is, on November 1, 1966, holding the post of district Public Relation Officer.
Be that as it may.
the final seniority list that was published undercover of the office Memorandum dated September 13, t971 appears to be anomalous.
In the final, seniority list, the names of the Tourists Officers including those of the respondents Nos. 4 and 5 were placed above the Reception Officers and the name of the appellant was under the head 'Reception Officer ' below the names of the Tourists Officers including those of the respondents Nos. 4 and 5.
It was already noted that the appellant was holding the post of District Public Relations Officer, an ex cadre post in the Public Relations Department.
PG NO 1016 It appears that the appellant had made a representation to the Government regarding his promotion and seniority after the publication of the final seniority list.
That representation bore result, for it appears from the Memorandum dated August 7, 1973 of the Commissioner of Transport & Tourism, Himachal Pradesh, that the Government after careful consideration of the representation of the appellant dated June 30, 1973 agreed to give proforma promotion to him as Assistant Manager in the pay scale of Rs.225 300, with retrospective effect in consultation with the Public Service Commission.
The appellant was requested to intimate as to whether he would opt to revert from the Public Relations Department to serve as the Assistant Manager or would like to continue with the Public Relations Department.
The commissioner of Transport & Tourism also sent a telegram dated march 3, 1974 to the appellant informing him of his proforma promotion as Assistant Manager in the Department of Tourism.
The telegram was followed by a memorandum wherein it was stated that the appellant, who was officiating an ex cadre post of District Public Relations Officer in the pay scale of Rs.350 500 in the Public Relations Department, was given proforma promotion as Assistant Manager in the Department of Tourism in the pay scale of Rs.225 500 (with initial start of Rs.300) with effect from June 4, 1966.
However, it was stated that since the post of Assistant Manager was an isolated one, the question of fixing his seniority did not arise.
After the appellant had exercised his option for the Tourism Department, the Deputy Secretary (Tourism) to the Government of Himachal Pradesh by his letter dated February 6, 1975 requested the Managing Director of the Himachal Pradesh Tourism Development Corporation Ltd., Simla, that the appellant might be treated like other p employees of the erstwhile Tourism Department, he having exercised his option validly and given a comparable post in the Corporation.
In that letter, it was also stated that the appellant had all along been representing and requesting for the grant of extension in time to exercise his option on valid grounds and as advised by the Law Department, the option exercised by the appellant should be deemed to have been given by him for proforma promotion as Assistant Manager with retrospective effect from June 4, 1966.
A seniority list was prepared by the Himachal Pradesh Tourism Department Corporation on December 31, l977.
In the said seniority list the name of the appellant was placed at the top of the names of other officers including those of the respondents Nos. 4 and 5.
PG NO 1017 While the appellant was holding the position of the District Public Relations Officer in the said Himachal Pradesh Tourism Development Corporation, his name having been placed above the names of the respondents Nos. 4 and 5, the Department of Tourism issued an order dated April 28 1982 on the representation of the respondents Nos. 4 and 5 directing that the inter se seniority of the appellant and the respondents Nos. 4 and 5 was to be determined on the basis of their substantive ranks on November l, 1966.
Further, it was directed that the proforma promotion granted to the appellant with retrospective effect would not also entitle him to any advantage in seniority, as he was not eligible to be appointed as Assistant Manager according to the recruitment and promotional rules of the Department.
The inter se seniority of the respondents Nos. 4 and 5 was directed to be fixed on the basis of their substantive appointments as on November 1, l966 and that the said respondents being in higher scale on that case, would rank senior to the appellant.
Being aggrieved by the said impugned Government order dated April 28, 1982 the appellant moved a writ petition before the Himachal Pradesh High Court.
The High Court, however, took the view that the seniority list once finalised alter integrations persons working in the Tourism Department and those coming from Punjab could not be reopened to the disadvantage of other persons.
In that view of the matter the High Court, ,as stated already, dismissed the write petition.
Hence this appeal by special leave.
It has been ,already noticed that both the provisional and the final seniority lists were prepared without complying with the direction of the central Government as contained in the letter of the Joint secretary to the Government of India, Ministry of Home affairs, dated February 14.
There was no attempt to determine the equivalent posts, that is to say, no endeavour was made by the Government to equate one post with another for the purpose of integration and determination of relative seniority instead, the post as they were, were placed in the seniority list.
The Government also did not follow the directions of the Central Government in determining the relative seniority.
One of the factors that should have been taken into consideration for the purpose of determination of relative seniority , as mentioned in the said letter of the joint Secretary, is length of continuous service whether temporary or permanent in the equivalent post, excluding periods for which an appointment is held in a purely stop gap or fortuitous arrangement.
The appellant was, admittedly,promoted to the post of District Public Relations Officer in the pay scale of Rs. 250 500 on May 18,1966.
It PG NO 1018 is not the case of any party that the promotion of the appellant was by way of any stop gap or fortuitous arrangement.
The final seniority list as on November 1, 1966 was prepared on September 13, 1971.
On November 1, 1966, admittedly, the appellant was holding the ex cadre post of the District Public Relations Officer.
According to the said directions of the Central Government, in preparing the relative seniority the position of the appellant as the District Public Relations Officer should have been taken into consideration.
The Department utterly ignored the said direction of the Central Government and the appellant 's substantive rank as the Reception Officer as on November 1, 1966 was erroneously taken into consideration for the purpose of preparing the inter se seniority, even though the appellant was on November 1, 1966 not holding the substantive rank of Reception Officer, but the post of the District Public Relations Officer in a temporary capacity.
This omission on the part of the Department and/or the Himachal Pradesh Government vitiates the final seniority list, apart from the omission to equate one post with another for the purpose of integration.
The final seniority list.
as has been already observed, is an anomalous one and does not depict the relative seniority among officers after integration in accordance with the directions of the Central Government.
Mr. Shankar Ghosh, learned Counsel appearing on behalf of the respondents Nos. 4 and 5 (respondent No. 5 has since died).
submits that after the final seniority list was approved by the Central Government, it had become final and it cannot he challenged in 1982 after 11 years.
Further.
it is submitted by him that the final seniority list has never been challenged by the appellant and, accordingly.
he cannot be allowed to challenge the same by filing a writ petition.
It is true that the final seniority list was sent to the Central Government and presumably it was approved, but because a seniority list has been approved, but the Central Government, it cannot be laid down as a rule of law that even though it has been illegally prepared in violation of the directions of the Central Government itself to the prejudice of the officer or officers concerned, it cannot be challenged.
Normally, when a seniority list has been made final, it should not be allowed to be challenged.
But when a seniority list is prepared ignoring all just principles and also the rules framed or directions given by appropriate authority, seriously affecting any officer, it is always liable to be examined and set aside by the Court.
We are, therefore, unable to accept the contention of the learned Counsel for the respondent No. 4 that the seniority list having been made final after the approval of the Central Government cannot be challenged by the appellant.
PG NO 1019 So far as the contention of the learned Counsel for the respondent No. 4 regarding the challenge of the seniority list after 11 years is concerned, it may be pointed out that it is not correct that no challenge was made by the appellant to the seniority list.
Indeed, in the Memorandum of the Commissioner, Department of Transport & Tourism, Himachal Pradesh, dated August 7, 1973 addressed to the appellant informing him of the decision of the Central Government to give to the appellant proforma promotion as Assistant Manager in the scale of Rs.225 500 with retrospective effect referred to the appellant 's representation dated June 30, 1973.
Apart from this representation, the appellant had also made another earlier representation on June 3, 1968 which has been admitted by the Government of Himachal Pradesh in paragraph 7 of the counter affidavit dated July 3, 1982 affirmed on behalf of the respondents Nos.
I and 2 by the Deputy Secretary (Tourism) to the Government of Himachal Pradesh.
In the circumstances, it is not correct to say that no representation was made by the appellant.
It is true that the seniority list was prepared in 1971, but no prejudice was caused to the appellant by the seniority list, as he was holding the position of District Public Relations Officer all through.
Moreover, the appellant was given proforma promotion by the Government on or about August 7, 1973.
It is only by the impugned order dated April 28, 1982 that the Government accepted the representation of the respondents Nos. 4 and 5 and directed that the inter se seniority of the appellant and of the said respondents was to be determined on the basis of their substantive ranks on November l. 1966 and further directed that the respondents Nos. 4 and 5 would tank senior to the appellant.
The cause of action really arose to the appellant for moving the writ petition after he was communicated with the impugned order dated April 28, 1982.
In our opinion, therefore, there has been no unreasonable delay on the part of the appellant to challenge the impugned order and, consequently, the final seniority list.
At this stage, it may be stated that some contentions have been made on behalf of both the parties regarding the creation of the post of Assistant Manager in the Tourism Department under the rules framed on December 7, 1967 relating to recruitment, promotion and service conditions applicable to non gazetted officers of the Department of Tourism under the proviso to Article 309 of the Constitution of India.
It may also be noticed that the post of Assistant manager created under the rules was subsequently abolished.
In our opinion, nothing turns out on the creation or abolition of the post of Assistant Manager.
PG NO 1020 The next contention of Mr. Ghosh is that no promotion with retrospective effect can be given to the disadvantage of others.
In support of this contention, learned Counsel has placed much reliance upon a decision of this Court in State of Himachal Pradesh vs Union of India, ; In that case, a post was upgraded with retrospective effect and it was held that the State Government of Himachal Pradesh could not upgrade the post with retrospective effect without the sanction of the Central Government under section 82(6) of the Act.
In the instant case, we are not concerned with the question of upgradation of posts, but with proforma promotion given to the appellant with retrospective effect, from November 1, 1966.
The said decision, in our opinion, has no application to the facts of the instant case.
Next Mr. Ghosh has placed reliance upon another decision of this Court in N. Subba Rao vs Union of India, [1973] I SCR 945.
That is a case under the .States Reorganisation Act,1955.
It has been held that if there is any question of change of conditions of service, it will have to be found out whether in the first place it amounts to change in the conditions of service and, if so, secondly to find out whether there was prior approval of the Central Government.
One of the contentions that was advanced before this Court in the said case was that the retrospective regularisation and relaxation of rules by the State of Andhra Pradesh subsequent to the appointed would amount to change in conditions of service and conferment of new advantages on Andhra Pradesh Officers to the detriment of the Telengana Officer.
In the instant case, however, the question of regularisation and relaxation of rules do not arise.
What has been done in the present case is that a glaring injustice was done to the appellant by taking into account his substantive rank as the reception Officer on November 1 1966 while, as a matter of tact, on that date he was holding the position of District Public Relations Officer.
that was done in violation of the directions of the Central Government, and subsequently the Government rectified the mistake the by granting proforma promotion to the appellant with effect from June 4, 1966 to the post of Assistant Manager equivalent to the post of District Public Relations Officer.
It is, however, submitted by Mr. Ghosh that as the previous approval of the Central Government was not ,taken as required to be taken under the provision to section 82(6) of the Act, the Government order as contained in the Memorandum dated August 7, 1983 read with that contained in the Memorandum dated March 3, 1974, granting proforma PG NO 1021 promotion to the appellant as Assistant Manager in the scale of Rs.225 500 with retrospective effect from June 4, 1966 was illegal.
In order to consider this contention, we may refer to the provisions of sub sections (1), (2) and (6) of section 82 of the Act which provide as follows: "82.
Provisions relating to other Services.
(1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Punjab shall, on and from that day, provisionally continue to serve in connection with the affairs of the State of Punjab unless he is required, by general or special order of the Central Government, to serve provisionally in connection with the affairs of any other successor State.
(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person refer red to in sub section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
(3) to (5). . . . . . (6) Nothing in this section shall he deemed to affect on or after the appointed day the operation of the provisions of Chapter 1 of Part KIV of the constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union of any State: Provided that the condition of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) of sub section (2) shall not he varied to his disadvantage except with the previous approval of the Central Government.
Under the proviso to sub section (6), the conditions of service applicable immediately before the appointed day to the case of any persons referred to in sub section (1) or sub section (2) shall not be varied to his disadvantage PG NO 1022 except with the previous approval of the Central Government.
Under sub section (1) and sub section (2), the persons referred to are those who immediately before the appointed day were serving in connection with the affairs of the then State of Punjab.
In other words, the respondents Nos. 4 and 6 come within the purview of sub sections ( 1) and (2).
In view of proviso to sub section (6) of section 32, the conditions of service applicable immediately before the appointed day to the respondents Nos. 4 and 5 could not be varied to their disadvantage except with the previous approval of the Central Government.
The said order, granting proforma promotion to the appellant to the post of Assistant Manager with effect from June 4, 1966, does not at all vary the conditions of service of the respondents Nos. 4 and 5 applicable to them immediately before the appointed day.
There is, therefore, no question of taking the previous approval of the Central Government as contemplated by section 82(6) of the Act.
Indeed, the said order was passed in rectification of the mistake committed by the Department of Tourism and/or the State Government and for doing substantial justice to the appellant.
We have already expressed our views as to the nature of the seniority list and the manner in which it was prepared in violation of the directions of the Central Government.
The High Court has not considered the directions of the Central Government as contained in the said letter of the Joint Secretary dated February l4, 1967 and the utter violation of the same by the Department and/or the State Government in preparing the final selection list, as indicated above.
The High court, as already stated, has dismissed the writ petition of the appellant principally on the ground that the seniority list once finalised after integrating the persons working in the Tourism Department and those coming from Punjab cannot be reopened to the disadvantage of the other persons without considering that the final seniority list was made without complying with the directions of the Central Government to the prejudice of the appellant.
In the circumstances, the judgment of the High Court cannot be sustained.
For the reasons aforesaid, the appeal is allowed.
There will, however, be no order as to costs.
The impugned order dated April 28, 1982 and the judgment of the High Court are set aside.
The name of the appellant shall be placed above that of the respondents Nos. 4 and 5 (since deceased) in the final seniority list.
The application of the interveners are also disposed of accordingly.

summary/full:
Under the , November 1, 1966 was fixed as the appointed day on and from which date certain territories of the State of Punjab were transferred to the Union Territory of Himachal Pradesh, alongwith some officers and staff.
Accordingly, respondents Nos. 4 and 5 who were holding the posts of Tourist Officers in the Pay scale of Rs.250 350 in the State of Punjab were allocated to Himachal Pradesh as Tourist Officers in the same scale.
The appellant who was a confirmed Reception Officer in the Department of Public Relations & Tourism, Himachal Pradesh, had been temporarily promoted on May 13, 1966 as District Public Relations Officer in the pay scale of Rs.250 500, against an ex cadre post.
In the provisional seniority list and the final seniority list published in 1971, the appellant was shown as Reception Officer while respondents Nos. 4 and 5 were shown senior to him as Tourist Officers.
The appellant made a representation to the Government regarding his promotion and seniority.
As a result, the appellant was given proforma promotion as Assistant Manager with retrospective effect from June 4, 1966.
In the seniority list prepared by the Himachal Pradesh Tourism Development Corporation on December 31, l977 the name of the appellant was placed at the top of the names of other the officers including those of respondents Nos.
l & 5.
However, on the representation of respondent Nos. 4 & 5, the Tourism Development Corporation issued an order dated PG NO 1009 PG NO 1010 April 28, 1982 that the inter se seniority of the appellant and respondents nos.
4 & 5 was to be determined on the basis of their substantive ranks on November l, 1966, and that the said respondents being in higher scale on that date would rank senior to the appellant, as the appellant was not entitled to any advantage in seniority on account of his proforma promotion.
The appellant moved a writ petition before the High Court against the order dated April 28, 1982.
The High Court dismissed the writ petition principally on the ground that the seniority list once finalised after integration could not be reopened.
Allowing the appeal, it was, HELD: (l) Both the provisional and the final seniority lists were prepared without complying with the directions of the Central Government, as contained in the letter of the Joint Secretary to the Government of lndia, Ministry of Home Affairs, dated February 14, 1967.
[1017E F] (2) According to the instructions issued by the Central Government for the integration of services, and determination of relative seniority, one of the two steps which had to be taken was determination of equivalent posts, the most important factor for such determination being the salary of the post.
[1014F G] (3) There was no attempt to determine the equivalent posts, that is to say, no endeavour was made by the Government to equate one post with another for the purpose of integration and determination of relative seniority.
Instead, the posts as they were, were placed in the seniority list.
[l017F] (4) l,under the directions of the Central Government, the post of Tourists Officer could not be equated with that of the District Public Relations Officer because the scale of pay of the former is less than that of the latter.
[1O15E] (5) One of the factors that should have been taken into consideration for the purpose of determination of relative seniority as mentioned in the letter of the Government of lndia, is length of continuous service whether temporary or permanent in the equivalent post, excluding periods for which an appointment is held in a purely stopgap or fortuitous arrangement.
[1017G H] PG NO 1011 (6) The Government utterly ignored the direction of the Central Government and the appellant 's substantive rank as the Reception Officer as on November 1, 1966 was erroneously taken into consideration for the purpose of preparing the inter se seniority.
This omission vitiates the final seniority list, apart from the omission to equate one post with another for the purpose of integration.
[1018B C] (7) Normally, when a seniority list has been made final, it should not be allowed to be challenged.
But when a seniority list is prepared ignoring all just principles and also the rules framed or directions given by appropriate authority, seriously affecting any officer.
it is liable to be examined and set aside by the Court.
[1018G H] (8) It is only on April 28, 1982 when the Government accepted the representation of respondents nos.
4 & 5 and directed that the inter se seniority of the appellant and the said respondents was to be determined on the basis of their substantive ranks as on November l. 1966 that the cause of action really arose to the appellant for moving the writ petition.
There has thus been no unreasonable delay on the part of the appellant to challenge the final seniority list.
It is also not correct to say that no representation was made by the appellant earlier.
[1019E F] (9) What has been done in the instant case is that a glarming injustice was done to the appellant by taking into account his substantive rank as the Reception Officer on November 1. 1966, while as a matter of fact.
on that date he was holding the position of District Public Relations Officers.
That was done in violation of the directions of the Central Government, and subsequently the Government rectified the mistake by granting proforma promotion to the appellant with effect from .June 4, 1966 to the post of Assistant Manager equivalent to the post of District Public Relations Officer.
There is therefore no question of taking the previous approval of the central Government as contamplated by Section 82(6) of the Act.
[1020F G; 1022l] State of Himachal pradesh vs Union of lndia [l974] 3 SCR 907; N. Subba Rao vs Union of India., [1973] l SCR 94.


judgement:
Civil Appeal No. 6 of 1976.
From the Judgment and Order dated 12.11.1973 of the Madras High Court in Writ Appeal No. 390 of 1969.
V.C. Mahajan, C.V. Subba Rao and K.M.M. Khan for the Appellants K.N. Bhat and Vineet Kumar for the Respondent.
PG NO 1053 The Judgment of the Court was delivered by SHARMA, J.
This appeal arises out of a writ application allowed by the Madras High Court striking down Clause (a) of the Proviso (3) of the Notification dated the 1st March, 1964 issued by the Union of India in the Ministry of Finance, under Rule 8(1) of the Central Excise Rules, 1944 and granting consequential relief.
The aforesaid notification granted certain exemptions from payment of excise duty, but the benefit was denied to the writ petitioner, respondent before this Court, in view of the impugned clause.
The respondent assessee, a business concern functioning under the name of M/s. Dhanalakshmi Paper and Board Mills, decided to set up a factory for the manufacture of paper and paper boards and allied products, and obtained a lease of certain premises in June 1963 and put up a suitable structure for the factory by August 1963.
The necessary machineries for running the factory, however, were received in April 1964 and application for licence therefor was filed on 27.4.1964.
The licence was granted on 6.5.1964 and production in the factory started the next day, i.e. 7.5.1964.
The respondent claimed that the duty in respect of the paper boards manunactured in the factory during the period 7.5.1964 to June 1966 was payable at the concessional rate allowed by the Notification, relevant portion whereof reads as follows: GOVERNMENT OF lNDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NEW DELHI,THE 1ST MARCH, 1964/PHALGUNA 11, 1885 (SAKA) NOTIFICATION CENTRAL EXCISE CSR: In exercise of the powers conferred by Sub rule (1) of Rule 8 of the Central Excise Rules, 1944, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 57/60 Central Excise dated 20th April.
196() and No. 37/63 Central Excise dated the 1st March, 1963 the Central Govt.
hereby exempts strawboard and pulpboard including, greboard, calling under Sub item (3) of Item No. 17 of the First PG NO 1054 Schedule to the (1 of 1944), takes together up to the quantity prescribed in column (1) of Table 1 (omitted), cleared by any manufacturer for home consumption during any financial year, from so much of the leviable thereon as is in excess of the amount specified in the corresponding entry in column (2) of the same Table: TABLE 1 (being not relevant, omitted) Provided that (1). . . . . . (2) . . . . . . .
TABLE 2 (being not relevant, omitted) (3) nothing contained in this notification shall apply to a manufacturer who applied or applies for a licence on or after the 9th day of November 1963, unless he satisfies the Collector of Central Excise (a) that the factory for which the licence was or is applied for was owned on the 9th day of November, 1963, by the applicant;" The benefit of the Notification claimed by the respondent assessee was denied by the appellants on the ground that the factory did not come into existence on or before the 9th day of November, 1963, the date mentioned in the impugned clause (a).
The respondent moved the High Court in its writ jurisdiction under Article 226 of the Constitution, and the application was allowed by a learned Single Judge.
An appeal therefrom under Clause 15 of the Letters Patent was dismissed in limine.
The appellants have by special leave challenged the decision before this Court.
The ground urged on behalf of the assessee which found favour with the High Court is arbitrary nature of the date, '9th of November, 1963 ' mentioned in the impugned clause (a).
It has been contended that the said date does not have any significance whatsoever and does not bear any rational relationship to the object sought to be achieved by the Notification.
The learned counsel for the appellant defended the validity of the impugned provision on the ground that the date (9.11.1963) was selected because an PG NO 1055 earlier notification bearing No. 110 had required applications to be made on or after 9.11.1963.
This notification is not on the records of the case and the learned counsel has stated th8t he has also not been able to examine the same inspite of his unsuccessful request to the Department concerned for a copy thereof.
He has mentioned about this notification in his argument on the basis of the reference in the judgment of the High Court.
The High Court judgment does not throw any light on the nature of the notification No. 110, and the learned counsel could not draw any inference about its provisions from the judgment.
It is not claimed that the said notification was before the High Court or the Judges had any occasion to examine it.
The present appeal was filed in 1976 and even now the learned counsel for the appellants is not in a position either to produce it or to tell us what it was about.
The result is that no explanation for the choice of the date in clause (a) is forthcoming.
Sri V.C. Mahajan, learned counsel for the appellants, contended that a statutory provision has necessarily to be arbitrary in the choice of date and it cannot be challenged on that ground.
He relied upon the observations of this Court in Union of India vs M/s Parmeswaran Match Works etc., 119751 2 SCR 573 (at page 578) as quoted below: "To achieve that purpose, the Government chose September 4, 1967, as the date before which the declaration should be filed.
There can be no doubt that any date chosen for the purpose would to a certain extent, be arbitrary.
That is inevitable" Reliance was also placed on Jagdish Pandey vs The Chancellor, University of Bihar and Another, and U.P.M. T.S.N.A. Samiti, Varanasi vs S ate of U. P. and Others, We are afraid, the argument has no merit and has to be rejected.
In Union of India vs M/s P. Match Works, (supra) the question related to concessional rate of excise duty leviable on the manufacture of match boxes.
Match factories were classified on the basis of their output during the financial year and matches produced in different categories of factories were subject to varying rates of dutyhigher rate being levied on matches produced in factories having higher output.
In pursuance of a change in the policy, the match factories were later classified as mechanised units and non mechanised units and by a notification dated July ' PG NO 1056 l, 1967 a concessional rate of duty was allowed in respect of units certified according to the provisions therein.
The notification also contained a proviso.
The purpose of these provisions was to grant the benefit of concessional rate of duty only to small manufacturers.
This Court while analysing the notification observed that the proviso "would have defeated the very purpose of the notification, namely, the grant of concessional rate of duty only to small manufacturers".
In order to cure this self defeating position, the notification dated July 21, 1967 was amended by Notification No. 205 of 1967 dated September 4, 1967.
The latter notification mentioned the 4th September, 1967 as the cut off date.
The attach on the choice of this date was met by the observations relied upon by the learned counsel for the appellants and quoted earlier.
It will be observed that the date, September 4, 1967, was the date on which the amending Notification itself was issued.
The crucial date, therefore, could not be condemned as one "taken from a hat ' .
It was the date of the notification itself.
A rule which makes a difference between past and present cannot be condemned as arbitrary and whimsical.
In cases where choice of date is not material for the object to be achieved, the provisions are generally made prospective in operation.
In that sense this Court observed in M/s P. Match Works case that the date chosen would to a certain extent be arbitrary and this was inevitable.
In the present case the relevant Notification was dated March 1, l964 and not 9.11.1963.
It is true that as mentioned in the High Court judgment some other notification required applications referred therein to be made on or after ',h 11.1963, but unless the nature and contents of that notification and its relevance with reference to the present notification are indicated, it is futile to try to defend the choice of the date on its basis.
The appellants have miserably failed to do so.
inspite of more than a decade available to them 6.
The other two cases relied upon On behalf of the appellants instead of supporting their case.
indicate that the view taken by the High Court is correct in U.P.P.M.T.S.N.A. Samiti,Varanasi vs State of U.P. and Others (supra) this Court observed in paragraph l of the judgment: "The legislature could not arbitrarily adopt January 1984, as the cut off date . " After examining the circumstances of the case it was held in paragraph 2: "We agree with the High Court that fixation of the date January 3 1984 for purposes of regularisation was not arbitrary or irrational but had a reasonable nexus with the object sought to be achieved.
" PG NO 1057 Similarly in Jagdish Pandey vs The Chancellor, University of Bihar and Another it was held: "There is no doubt that if the dates are arbitrary, section 4 would be violative of article 14 for then there would be no justification for singling out a class of teachers who were appointed or dismissed etc.
between these dates and applying s.4 to them while the rest would be out of the purview of that section .
The Court then proceeded to examine the purpose of the legislation and the attendant circumstances and upheld the section 7.
Another learned counsel who appeared on behalf of the appellants for the final reply placed reliance on paragraphs 38, 44 and 45 of the judgment in Dr. Sushma Sharma and Others vs State of RaJasthan and Others, [1985] SUPP.
SCC 45.
In paragraph 38 it was said that wisdom or lack of wisdom in the action of Government or Legislature is not justiciable by the Court, and to find fault with the law is not to demonstrate its invalidity.
We are afraid, this aspect is wholly irrelevant in the case before us.
In paragraph 44, the Case of Union of India vs M/s. P. Match Works Ltd., already discussed above.
was mentioned.
In paragraph 45 the case of D.S.Nakara vs Union of India, [1983] I SCC 305, was distinguished in the following words: "But as we have mentioned hereinbefore, Nakara case dealt with the problem of benefit to all pensioners.
The choice of the date of April l. 1979 had no nexus with the purpose and object of the Act.
The facts in the instant case are, however, different." In the present case also benefit of concessional rate was bestowed upon the entire group of assesses referred therein and by clause (a) of Proviso (3) the group was divided into two classes without adopting any differentia having a rational relation to the object of the Notification, and the benefit of one class was withdrawn while retaining it in favour of the other.
It must, therefore, be held that the impugned clause (a) of the Proviso (3) of the Notification in question is ultra vires and the benefit allowed by Notification is available to the entire group including the respondent.
We, therefore, hold, There is no merit in this appeal which is dismissed without costs.
R.S.S. Appeal dismissed.

summary/full:
The respondent assessee built up a factory for the manufacture of paper and paper boards, which started production on 7.5.1964.
The respondent claimed that the duty in respect of the paper boards manufactured in the factory during the period 7.5.1964 to June 1966 was payable at the concessional rates allowed by the Government of India notification dated 1st March, 1964.
The claim was however rejected by the Revenue on the ground that the factory had not come into existence on or before the 9th day of November, 1963 as stipulated in clause (a) of Proviso (3) of the said notification.
The respondent 's writ application before the High Court was allowed by the Single Judge and the appellant 's Letters Patent appeal was dismissed in limine.
The High Court has accepted the respondent 's contention that the date '9th of November, 1963 ' mentioned in the notification was arbitrary.
On behalf of the Revenue it was contended that the date (9.11.1963) was selected because an earlier notification bearing No. 110 had required applications to be made on or after 9.11.1963.
It was further contended that a statutory provision had necessarily to be arbitrary in the choice of date and it could not be challenged on that ground.
On behalf of the respondent it was contended that the said date did not have any significance whatsoever and did not bear any rational relationship to the object sought to be achieved by the notification.
PG NO 1051 PG NO 1052 Dismissing the appeal, it was HELD: 1.
A rule which makes a difference between past and present cannot be condemned as arbitrary and whimsical.
[1056D] 2.
In cases where choice of the date is not material for the object to be achieved.
the provisions are generally made prospective in operation.
[1056D] 3.
The Revenue has not been able to produce notification No. l 10.
Unless the nature and contents of notification No. 110 and its relevance with reference to the present notification are indicated, it is futile to try to defend of the choice of the date in clause (a) on its basis.
[1055A;1056E] 4.
In the present case, the benefit of concessional rate was bestowed upon the entire group of assesses referred therein and by clause (a) of Proviso (3) the group was divided into two classes without adopting any differentia having a rational relation to the object of the Notification.
[1057F] 5.
Clause (a) of the Proviso (3) of the Notification was ultra vires and the benefit allowed by the Notification would be available to the entire group including the respondent.
[1057G] Union of India vs M/s. P. Match Works [1975]2 SCR 573 Jagdish pandey vs The chancellor, University of Bihar.
[19681 I SCR 237 and U.P. M. T.
S.N.A. Samiti, Varanasi vs State of U.P.,[1987]2 SCR 453, distinguished.
Dr .Sushma Sharma vs State of Rajasthan, [1985] Supp.
SCC 45; and D.S. Nakara vs Union of lndia, [1983] I SCC 365 referred to.