judgement:
ivil Appeal No. 3175 of 1986.
From the Judgment and Order dated 17.8.1985 of the Rajasthan High Court in D.B.S.A. No. 161 of 1985.
Satish Chandra and A.V. Rangam for the Appellants.
V.M. Tarkunde and section K. Jain for the Respondent.
The Judgment of the Court was delivered by PG NO 1028 JAGANNATHA SHETTY, J.
By obtaining special leave, the State Bank of Bikaner & Jaipur ("Bank") has appealed to this Court against the judgment dated September 17, 1985 of the Division Bench of Rajasthan High Court in Special Civil Appeal No. 161 of 1985.
The question raised in this appeal is as to the nature of right of the respondent to get an extension of service beyond the age of superannuation.
The respondent was an officer of the Bank.
His service conditions were regulated by what is termed as State Bank of Bikaner & Jaipur (Officers ') Service Regulations, 1979.
The regulations came into force with effect from October 1, 1979.
Regulation No. 19 provides for the age of retirement.
It also preserves discretion to the Bank .
to extend the period of service of any officer beyond the age of retire ment.
The relevant portion of Regulation 19 reads: "Age of Retirement: 19(1) An officer shall retire from the service of the Bank on attaining the age of fifty eight years or up to the completion of thirty years ' service, whichever occurs first.
Note: However, the existing practice of utilising the service of officers beyond the age of 58 years by considering individual cases for grant of extension will continue only in respect of employees who joined the service as workmen or as officers before the 19th July, 1969.
Further, such employees may be granted extension in service instead of re employment as is the case in the State Bank of Mysore and State Bank of Saurashtra.
A suitable diary note should be made in this regard and carried over looked at the time when the case of emplotees who joined on or after 19th July, 1969 come up for consideration (RER/32/80 dated 20.5.1980).
Provided that the competent authority may, at its discretion, extend the period of service of an officer who has attained the age of fifty eight years or has completed thirty years ' service as the case may be, should such extension be deemed desirable in the interest of the Bank.
The aforesaid 'note ' to Regulation 19 refers to the existing practice in the Bank and that 'note ' was added by notification dated May 20, 1980.
PG NO 1029 By letter dated June 14, 1979, the Bank intimated the respondent that he was granted extension of service up to September 28, 1982 that is, till he completed 58 years of age.
By further letter dated July l, 1982 the respondent was informed that he would be attaining superannuation age of 58 years on September 30, 1982 and would stand retired on that date.
Accordingly, he was retired from service with effect from September 30, 1982.
After an unsuccessful attempt for reconsideration of the case.
the respondent took up the matter before Managing Director of the Bank.
There also he could not succeed.
He was informed that his case did not fit in the guidelines of the Bank.
The respondent moved the High Court for relief under Article 226 of the Constitution.
The Bank resisted the petition contending inter alia: "The extension is considered on three parameters (i) continued utility; (ii) good health, and (iii) integrity beyond reproach.
since, in the case of the officials whose names have been submitted in the list D, all the three tests have been fulfilled, their services were extended.
In the case of the petitioner? his services were not extended because in the view of the competent authority, his continued utility in the service of the Bank was found to be restricted.
It is submitted that it is not open to the petitioner to claim that he should be granted extension in the service as a matter of right.
In this context, it is submitted that when orders were issued to the petitioner on the 4th February, 1981 posting him as Branch Manager of a local branch at Jaipur.
the petitioner instead of acting in a responsible manner and taking over charge of the branch, immediately proceeded on leave and went on extending it from time to time.
Ultimately, the respondent Bank had to cancel the posting on the 1st May, 1981.
Moreover, the guidelines for granting extension stipulated that continuance of the officer 's service in his existing grade/capacity would be PG NO 1030 useful to the Bank in all its field of activities in a manner that the Bank is not restricted in continuing to entrust him with the responsibilities relating to the normal placement commensurate with his seniority and grade and as the petitioner did not satisfy this criteria, the Bank did not grant him extension in service.
" But by the time the petition came up for consideration, the Respondent attained 60 years of age.
The learned single Judge without going into the merits of the matter dismissed the petition.
He observed that it would be unnecessary to enter into the merits since the respondent has completed 60 years.
The matter was taken up in appeal before a Division Bench of the High Court.
The Division Bench accepted the appeal and gave relief to the respondent.
It was commented: "The order of refusing to give extension to the petitioner appellant was because the extension was not deemed desirable in the interest of the Bank vide Annex.
letter dated July 29, 1982.
Hence it is obvious that while considering the case of the petitioner the Bank took into consideration the criteria whether his extension shall be desirable in the interest of the bank and the 13ank did not apply its mind as to whether his services were found unsuitable on the ground of continued utility and health or integrity.
It appears that the Bank keeping in mind the note which was added to sec.
19(1) and only relying on the first proviso Resolution 19(1) they have decided the case of petitioner for extension of service This clearly shows that there was no serious application of mind while dealing with the case of extension of the petitioner is based on collateral grounds and it also arbitrary as the Bank has applied different criteria which ought not to have been applied in the case of the petitioner.
The Bank has not formed the opinion for not extending the services of the petitioner on any material or relevant consideration, but has applied in the different criteria altogether and, therefore.
the order is based on collateral and arbitrary grounds.
The extension of the petitioner could have been refused only if he was found unsuitable on the ground of continued utility or good health or integrity and not whether it was desirable in the interest of the Bank. ' And observed: PG NO 1031 "It is true that the right of extension of service is not a legal right, but it is a benefit.
However, this benefit is not a concession, but is a privilege to which an officer is entitled after years of hard work in the Bank.
" It seems to us that the High Court has misconstrued the legal right claimed by the respondent.
The right to get extension of service beyond the age of superannuation has received consideration of this Court in several cases.
In State of Assam vs Basanta Kumar Das, [l973] 3 SCR 158, after reviewing almost all the earlier decisions Kailash Chandra vs Union of India, ; ; B.N. Misra vs State, ; and State of Assam vs Pramadhar, ; this Court said (at 165): "A Government servant has no right to continue in service beyond the age of superannuation and if he is retained beyond that age, it is only in exercise of the discretion of the Government.
xxxx xxxxx xxxxx xxxx xxxx xxxxx xxxxx the fact that certain persons were found fit to be continued in service does not mean that others who were not so found fit had been discriminated against.
Otherwise, the whole idea of continuing only efficient people in service even after they had completed 55 years becomes only meaningless.
" What do we have here in this case to distinguish those principles or not to apply those principles? In our opinion, there is none.
In the scheme provided herein the respondent or any other officer of the Bank has a legitimate right to remain in service till he attains the age of superannuation.
But beyond that age, he has no such right unless his service is extended by the Bank.
The further rights of parties are regulated by the proviso to Regulation 19(1).
It reads: "Provided that the competent authority may at its discretion, extend the period of service ot an officer who has attained the age of fifty eight years or has completed thirty years ' service as the case may be, should such extension be deemed desirable in the interest of the Bank. " (Emphasis supplied) PG NO 1132 Look at the language of proviso and the purpose underlying.
The Bank may in its discretion extend the service of any officer.
On what ground? For what purpose? That has been also made clear in the proviso itself.
It states "should such extension be deemed desirable in the interest of the Bank".
The sole purpose of giving extension of service is, therefore, to promote the interest of the Bank and not to confer any benefit on the retiring officers.
Incidentally the extension may benefit retired officials.
But it is incorrect to state that it is a conferment of benefit or privilege on officers.
The officers upon attaining the age of superannuation or putting the required number of years of service do not earn that benefit or privilege.
The High Court has completely misunderstood the nature of right and purpose of the proviso.
The proviso preserves discretion to the Bank.
It is a discretion available with every employer, every management, State or otherwise.
If the Bank considers that the service of an officer is desirable in the interest of the Bank, i~ may allow him to continue in service beyond the age of superannuation.
If the Bank considers that the service of an officer is not required beyond superannuation, it is an end of the matter.
It is no reflection on the officer.
It carries no stigma.
The Bank, however, is required to consider the case of individual officers with due regard to (i) continued utility; (ii) good health; and (iii) integrity beyond reproach of the officer.
If the officer lacks one or the other, the Bank is not bound to give him extension of service.
In this case, the Bank has shown to the High Court that the case of Respondent was considered and he did not fit in the said guidelines.
The High Court does not sit in an appeal against the decision.
The High Court under Article 226 cannot review that decision.
It was however, argued for the respondent that the Bank falls within the concept of State ' for the purpose ot enforcement of fundamental rights.
The Bank, therefore, cannot extend the service of some and reject the case of others similarly situated.
The concept of Article 14 of the Constitution is relied upon.
The argument in our opinion, proceeds on a wrong premise. 'The Bank has no obligation to extend the services of all officers even if they are found suitable in every respect.
The interest of the Bank is the primary consideration for giving extension of ' service.
With due regard to exigencies of service, the Bank in one year may give extension to all suitable retiring officers.
In another year, it may give extension to some and not to all.
In a subsequent year, it may not give extension to any One of the officers.
The Bank may have a lot of fresh recruits in One year.
The Bank may not need the services of all retired persons in another year.
The Bank may have lesser PG NO 1033 work load in a succeeding year.
The retiring persons cannot in any year demand that "extension to all or none".
If we concede that right to retiring persons, then the very purpose of giving extension in the interest of the Bank would be defeated.
We are, therefore, of opinion that there is no scope for complaining arbitrariness in the matter of giving extension of service to retiring persons.
In the result, we allow the appeal and set aside the judgment of the High Court.
In the circumstances of the case, we make no order as to costs.
P.S.S. Appeal allowed.

summary/full:
Regulation 19(1) of the State Bank of Bikaner & Jaipur (Officers ') Service Regulations 1979 requires the officers to retire from the service of the Bank on attaining the age of fifty eight years or on completion of thirty years of service whichever occurs first.
A note added below that regulation states that the existing practice of utilising the service of officers beyond 58 years will continue in respect of those who joined service before l9th July, 1969.
The proviso thereto, however, confers discretion on the competent authority to extend the period of service of such retiring officers in the interest of the bank.
The respondent, an officer of the said Bank, who retired from service on September 30, 1982 on attaining the age of superannuation of 58 years was not granted extension of service.
The sought relief from the High Court under Article 226 of the Constitution.
The Bank resisted the Petition on the ground that his continued utility in the service of the Bank was found restricted By the time the petition came up for consideration the respondent had attained 60 years of age.
The single Judge.
therefore, dismissed the petition without going into the merits.
The Division Bench, however, accepted the appeal and gave relief to the respondent on the view that the extension of the petitioner could have been refused only if he was found unsuitable on the ground of continued utility or good health or integrity and not whether it was desirable in the interest of the Bank.
Since the Bank applied a different criteria altogether it held the order arbitrary and based on collateral grounds.
Allowing the appeal of the Bank by Special leave, HELD: 1.1 The High Court has misconstrued the legal right claimed by the respondent.
[1031B] 1.2 In the scheme provided in Regulation 19(1) an officer of the Bank has a legitimate right to remain in PG NO 1026 PG NO 1027 service till he attains the age of superannuation.
But beyond that age, he has no such right unless his service is extended by the Bank.
The further rights of parties are regulated by the proviso thereto.
[1031F G] 1.3 The proviso preserves discretion to the Bank.
It is a discretion available with every employer, every management, State or otherwise.
If the Bank considers that the service of an officer is desirable in the interest of the Bank, it may allow him to continue in service beyond the age of superannuation.
If the Bank considers that the service of an officer is not required beyond superannuation, it is an end of the matter.
It is no reflection on the officer.
It carries no stigma.
[1032C D] State of Assam v Basanta Kumar Das, [1973] 3 SCR l58; Kailash Chandra vs Union of India, [1962] I SCR 374; B.N. Mishra vs State [1965] l SCR 693 and State of Assam v Pramadhar, [1971] l SCR 503,referred to. 2.
The Bank, however, is required to consider the case of individual officers with due regard to (i) continued utility, (ii) good health, and (iii) integrity beyond reproach of the officer.
If the officer lacks one or the other, the bank is not bound to give him extension of service.
11032D E] In the instant case the Bank had shown to the High Court that the case of the respondent was considered and he did not fit in the said guidelines.
The High Court does not sit in an appeal against that decision.
The High Court under Article 226 cannot review that decision.11032E]


judgement:
vil Appeal Nos.
1335 36 of 1987.
From the Judgment and Order dated 3.10.1986 of the Customs Excise and Gold (Control) Appellate Tribunal New Delhi in appeal No. E 1568 & 1569/81 BI in Order No. 673/86 BI.
A.S. Nambiar and B. Parthasarthi for the Appellant.
Kuldip Singh, Additional Solicitor General, A.K. Srivastava and Mrs. Sushma Suri for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These are appeals under section 35L of the (hereinafter called `the Act ') arise from the decision of the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT for short), New Delhi.
The question that fell for consideration by the Tribunal is whether the appellant M/s. Narne Tulaman Manufacturers Pvt.
Ltd. manufactured weighbridges and as such was liable to duty under the Act.
It appears that weighbridges consisted of three different parts, namely, (1) Platform, (2) Load Cells and (3) Indicating system.
The contention of the appellant was that he got the platform manufactured from other people.
The load cells were imported and the appellant only made the indicator system.
In other words, it was the case of the appellant that it manufactured only the indicator system.
The question, that fell for the Tribunal 's determination is whether the activity indisputably carried out by the appellant amounted to manufacture and what does it manufacture? It has been found that "the appellant brought PG NO 3 the three components together at site, fitted and assembled them together so that they can work as one machine and as such the appellant manufactured and created a new weighbridge".
The aforesaid findings appear in paragraph 5 of the Tribunal 's order.
That weighbridge had not been excised before is not disputed.
The term of the central excise speaks of "weighbridge"; whenever weighbridges are made, those weighbridges are subjected to duty as such.
The Tribunal held that by whatever process it became a complete weighbridge as long as a weighbridge has been made and completed, duty has to be paid.
According to the Tribunal, though the parts are themselves liable to excise duty and so the complete machine is also a new excisable good.
In view of the well settled principles, the excisable goods are manufactured by the appellant.
Section 2(f) of the Act provides an inclusive definition and states that the word "manufacture" includes any process incidental or ancillary to the completion of a manufactured product.
So any process by which an object becomes new commercial goods, including any process incidental or ancillary to the completion would be manufacture.
Manufacture means bringing into existence new goods.
This Court observed in Union of India vs Delhi Cloth Mills, [1963] Suppl.
I S.C.R. 586 that manufacture implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation.
But something more is necessary and there must be transformation, a new and different article must emerge having a distinctive name, character or use.
The question, therefore is whether the activity carried out by the appellant of assembling the three Components of the weighbridge brings into being complete weighbridge which was a distinctive name, character or use.
See also the observations of this Court in Allenburry Engineers (p) Ltd. Ramakrishna Dalmia & Ors., ; and Idandas vs Ananat Ramachandra Phadke, ; The appellant 's contention before the Tribunal was that it was only preparing a part and that part is dutiable as a separate part.
The appellant, however, did the work of assembling.
As a result of the work of the appellant a new product known in the market and known under the excise item "weighbridge" comes into being.
The appellant will become a manufacturer of that product and as such liable to duty.
That is precisely what the Tribunal found on the facts of the case.
The appellant seems to have been obsessed by the idea that as a part of machine is liable to duty then the whole end product should not be dutiable as separate excise goods.
That is mistake, a part may be goods as known in the excise laws and may be goods as known in the excise laws and may be dutiable.
The appellant in this case claims to have PG NO 4 manufactured only the indicator system.
If the indicator system is a separate part and a duty had been paid on it and if the rules so provide then the appellant may be entitled to abatement under the rules.
But if the end product is a separate product which comes into being as a result of the endeavour and activity of the appellant then the appellant must be held to have manufactured the said item.
When parts and the end product are separately dutiable both are taxable.
In that view of the matter, the appellant 's case that it is liable only for the component part and not the end product cannot be entertained.
The Tribunal was, therefore, right in the view it took.
These appeals have no merit and are accordingly dismissed.
This order will not prejudice the rights of the appellant to claim, if any, abatement as indicated before according to the rules if the appellant is so entitled.
R.S.S. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The appellant manufactured one of the three parts, i.e., Indicating system, required for the manufacture of weighbridges, and after procuring the other two parts brought the three components together at site, fitted and assembled them together and thus created a new weighbridge.
The appellant challenged the excise duty levied on the manufacture of weighbridges under the .
The appellant 's contention before the Customs, Excise and Gold (Control) Appellate Tribunal was that it was preparing only a part of the weighbridge which was dutiable as a separate part, and that as a part of machine was liable to duty then the whole end product should not be dutiable as separate excise goods.
The Tribunal held that by whatever process it became a complete weighbridge, as long as a weighbridge had been made and completed, duty had to be paid.
According to the Tribunal, though the parts were themselves liable to excise duty, the complete machine was also a new excisable Commodity.
Dismissing the appeal, it was, HELD: (1) Section 2(f) of the Act provides an inclusive definition and states that the word "manufacture" includes any process incidental or ancillary to the completion of a manufactured product.
So any process by which an object becomes new commercial Commodity, including any process identical or ancillary to to the completion, would be manufacture.[3C] (2) Manufacture means bringing into existence new goods.
There must be transformation and a new and different article PG NO 1 PG NO 2 must emerge having a distinctive name, character or use.
[3D E] Union of India vs Delhi Cloth Mills, [l963l Suppl.
1 S.C.R. 586; Allenburry Engineers (p) Ltd. vs Ramakrishna Dalmia, ; and Idandas vs Anant Ramchandra Phadke, ; , referred to.
(3) If the end product is a separate product which comes into being as a result of the endeavour and activity of the appellant, then the appellant must be held to have manufactured the said item.
When parts and the end product are separately dutiable both are taxable.
[4A B]


judgement:
ivil Appeal No. 658 of 1988 From the Judgment and Order dated 18.2.1987 of the Central Administrative Tribunal Hyderabad in OA No. 522 of 1986.
P.P. Rao and A. Subba Rao for the Appellant.
D.N. Dwivedi, Ashok K. Srivastava and C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave and is directed against the decision of the Central Administrative Tribunal, Hyderabad bench, dismissing the claim of the appellant and rejecting his challenge to the order dated PG NO 7 28th of November, 1986, retiring the appellant from service under Article 459(h) of the Civil Services Regulations.
The order of the retirement impugned in the proceedings was to the following effect: "WHEREAS the President is of the opinion that it is in the public interest to do so.
Now, THEREFORE, in exercise of the powers conferred by Clause (h) of Article 459, of Civil Services Regulations, the President hereby retires Dr. J.K. Sinha, Scientist `E ', DLRL, Hyderabad with immediate effect, he having already attained the age of 50 years on 27th March, 1981.
The President also directs that Dr. J.K. Sinha shall be paid a sum equivalent to the amount of his pay plus allowances for a period of 3 months calculated at the same rate at which he was drawing them immediately before his retirement".
The appellant was born on 27th March, 1931, and took the Master 's Degree in Science in Physics in 1953 and obtained Ph.D. in microwave Physics from the University of London in 1959.
He also became a senior member of Institute of Electrical and Electronics Engineers, USA and a member of the Institute of Electrical Engineers, London.
He acquired professional training in the Institute of Semi Conductor, Leningrad USSR, Leveder Institute of Physics, Moscow, and Rice University, Texas, USA.
In August 1960, he was appointed as Senior Scientific Officer, Grade I in the Defence Science Laboratory, Delhi and in 1969 was promoted as Principal Scientific Officer.
In August, 1973, he was further promoted as Deputy Chief Scientific Officer and posted in Defence Electronics Research Laboratory, Hyderabad.
While serving in the said post he was prematurely retired by the impugned order.
Before the Tribunal the appellant contended that he had a brilliant academic career and had a clean record of service; his research projects had been highly praised and appreciated and he deserved promotion to the post of Director (Scientist `G '/`F ').
The appellant was actually interviewed for the said post during May and June 1986.
In February, 1986, he had made a representation to the authorities for redressal of personal grievances and while PG NO 8 suggesting for improvement in the laboratory he had pointed out regarding the defective functioning of the Institution.
The authorities developed bias against the appellant.
This led to his not getting selected for the post of Director and ultimately to the making of the impugned order.
These allegations were countered by the Department.
Before the Tribunal the service records of the appellant were produced.
The Tribunal rejected the allegations of bias and mala fide and the appellant 's claim that the order of retirement was based upon extraneous consideration and dismissed the appeal.
The very contentions have been reiterated before us by Mr. Rao appearing for the appellant.
The Department made available for inspection at the hearing the service records from 1973 till his retirement in support of its stand that the guidelines prescribed for review for deciding whether an officer should be prematurely retired had been strictly followed and the decision to retire the appellant was taken in a bona fide and legitimate manner and without any bias or prejudice.
Mr. Rao mainly emphasised that the appellant had a clean service record and, therefore, there was no justification to prematurely retire him.
This submission is based upon the assumption that the appellant 's record of service is clean as he has not been communicated any adverse entry in his character roll.
Mr. Dwivedi for the respondent refuted the assumption by stating that there were several entries by the authorities to indicate deficiencies and draw backs in the appellant 's functioning and to support this submission he relied upon the service records.
According to Mr. Dwivedi the entries are such that there was no obligation to communicate the same under the prescribed guidelines.
We may refer to some of the entries now: Year Remarks 1975 "I have not been too impressed with this officer who does not seem to fit into DLRL and its work.
l agree with Director DLRL and CCR&D(E) in their grading/remarks" .
1976 "I have not been impressed with this Officer.
I doubt if he fits in well with the work at DLRL.
We will have to see how to redeploy him.
This is not easy in a post oriented budget system.
" PG NO 9 1977 "I am in full agreement with Shri . . . .in his comments/assessment concerning this officer also with the grading of Reviewing Officer.
He would be best suited for a preliminary Physics based and largely teaching oriented job.
His promotion to DCSO and posting to DLRL was a direct result of the irrelevant system of Subject Pyramids, Vacancy based promotion defined by pure consideration of ACRs.
Thus one gets square pegs in round holes.
It is this system which has been changed recently after great effort.
The position as earlier operated was unfair in the long term for the officers also, as in this case.
In principle Dr. Sinha would be a good man in the right place." 1979 "An officer who thinks very much of himself but one who cannot claim to have done something substantial.
I have suggested that he shifts to IAT but he has refused".
1980 "From what I know of him, he merely talks but does nothing very much.
He refused to teach at IAT though qualified on papers.
He is one of those whom we have to keep on as dead wood".
1981 "I agree.
I have no high opinion of his work or as a man.
The DRDO derives no benefit from him but our rules are such that we have to live with such people".
1982 "He is an average officer".
1983 "Performance is average and fair".
1984 "I am totally disappointed with the officer.
My predecessors have also had the same feeling.
I tried to see whether he could be fit into MTRC Bangalore.
Even for this he has to appear for an interview.
His performance as far as I can see is mediocre and I accept. 's observation.
He had stated "he is in my opinion at the lowest limit of technical performance and managerial performance in DCRL Scientist `E '.
" PG NO 10 By the time the review was undertaken the report for the year 1985 was not ready mainly on account of the appellant not furnishing his self assessment but the report which came latter indicated that he was graded as poor for that year.
From the records we find that on June 9, 1980, the head of the establishment had written to the appellant to the following effect: "Reference your letter of 27th May, 1980.
You will recall some time ago you sent me several communications and also saw me in person about your future interests I thought I had been able to give you a chance to expand on your interest, but you have turned it down.
It is, therefore, not clear what exactly you want.
If you want to take a dominant role in the microwave development and research and its related activities, this cannot be done purely on a personal basis; it should be a part of the overall programme of the Organisation.
I am, therefore, requesting Shri Narayana Rao to use you in whatever way he deems fit until a suitable post is found for you." On 17th April, 1986, the Director of Defence Electronics Research Laboratory, Hyderabad, had written a letter to the Director of Personnel, R & D Organisation, Ministry of Defence, New Delhi, about the appellant, a copy of which is on record.
The letter makes grievance that the appellant is non cooperative in the matter of submission of his self assessment for the year 1985.
It further stated: "I do not recommend him for promotion, due to the above mentioned remedial defects about which he has been told many time by me.
For many years he has not been putting in even the minimum amount of effort which is expected of a person of his level.
With Government now extending the services of Scientists/Engineers upto 60 years, I feel that in the best interests of the Government, a careful study has to be made whether people of his calibre and capabilities are allowed to be continued in Government service.
I regard his overall performance is poor and he comes against the lowest 5% of the Sc.
E in the laboratory".
PG NO 11 The appellant has served under four controlling authorities and three of them are Scientists of international repute.
These Scientists appear to have made a fair assessment of the appellant 's work and what is material is that there is unanimity in their conclusion.
Years back one of the entries had indicated that the appellant had become "dead wood".
The Tribunal rightly rejected the plea of mala fides.
Quite appropriately, Mr. Rao did not reiterate that contention.
There could be no reason why everyone in the Institution should turn hostile to the appellant.
Mr. Rao had contended that there was no communication of adverse entries.
Ordinarily when the entries relate to specific instances leading to adverse entries, the communication thereof is sent to the officer concerned with a view to providing an opportunity for improvement of performance.
The entries which we have extracted above are mostly based upon general assessment of the performance.
As we have already pointed out, he was communicated years back the general disapproval of his method of working.
We are satisfied that the review proceedings were in consonance with the guidelines framed by the Government.
The post in which the appellant was working was a responsible one and poor performance could not be tolerated.
In Shyam Lal vs State of U.P. & Union of India, ; , a Constitution Bench had indicated that compulsory retirement did not involve any stigma or implication of misbehaviour or incapacity.
Ever since then by a catena of decisions, the power of compulsory retirement and the procedure prescribed for taking of such action have been approved by this Court.
It is unnecessary to refer to those cases.
From the proceedings of the Review Committee, we find that the Committee took up the review of 19 officers and found the appellant alone liable for retirement.
The record of the proceedings shows that even at Government level after the recommendation of review committee, the report was duly scrutinised.
In our opinion, the Tribunal rightly came to the conclusion that the order of compulsory retirement was not open to challenge.
The appeal is accordingly dismissed.
There would be no order for costs.
Appeal dismissed.

summary/full:
The appellant who was a scientist in the Defence Electronics Research Laboratory was compulsorily retired from services by an order dated November 28, 1988 under Article 459(h) of the Civil Services Regulations.
He challenged the retirement order before the Central Administrative Tribunal.
It was contended on his behalf that he had a brilliant academic career and a clean record of service and that he had actually been interviewed for the post of Director during May June, 1986, and that on account of the representation made by him in February, 1986 to the authorities for redressal of personal grievances wherein he had suggested improvements in the laboratory and pointed out the defective functioning of the Institution, the authorities developed bias against him.
On behalf of the Department, these allegations were countered and the service records of the appellant were produced before the Tribunal.
The Tribunal rejected the allegations of bias, mala fide and the appellants ' claim that the order of retirement was based upon extraneous consideration, and dismissed the appeal.
In the appeal to this Court it was contended on behalf of the appellant, that the appellant had a clean service record and there was, therefore, no justification to prematurely retire him, and that it has to be assumed that the appellants 's record of service was clean as he was not communicated any adverse entry in his character roll.
The Department made available for inspection at the hearing of the appeal, the service records from 1973 till retirement, in support of its stand that the guidelines prescribed for review for deciding whether an officer should be prematurely retired had been strictly followed, and that the decision to retire the appellant was taken in a bona fide and legitimate manner and without any bias or prejudice and that there were several entries by the authorities in the character roll to indicate deficiencies and drawbacks in the appellant 's functioning.
PG NO 6 Dismissing the appeal, HELD: 1.
The post in which the appellant was working was a responsible one and poor performance could not be tolerated.
[IID] 2.
The appellant had served under four controlling authorities and three of them were Scientists of international repute.
These Scientists appear to have made a fair assessment of the appellant 's work and what is material is that there is unanimity in their conclusion.
Years back one of the entries had indicated that the appellant had become `dead wood ', and he was also communicated the general disapproval of his method of working.
[11A B, 11D] 3.
It cannot be contended in the instant case, that there was no communication of adverse entries because the entries were mostly based upon general assessment of the performance.
Ordinarily when the entries relate to specific instance leading to adverse entries, the communication thereof is sent to the officer concerned with a view to providing an opportunity for improvement of performance.
[11C D] 4.
The review proceedings were in consonance with the guidelines framed by the Government.
From the proceedings of the Review Committee it is found that the Committee took up the review of 19 officers and found the appellant alone liable for retirement.
Even at Government level after the recommendation of the review committee, the report was duly scrutinised.
[11D, 11F]


judgement:
lection Appeal No. 232 (NCE) of 1987.
From the Judgment and Order dated 17.12.1986 of the Bombay High Court in Election Petition No. 1 of 1985.
PG NO 1066 Appellant in person.
A.M. Khanwilkar and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The appellant is a person residing at Pune in the State of Maharashtra.
A bye election was proposed to be held on the 2nd February, 1986 to fill a seat in the Maharashtra Legislative Assembly which had become vacant on account of the death of the sitting member who was representing 263 Jaoli Legislative Assembly constituency in Satara district in the State of Maharashtra.
The last date for making nominations at the said election was the 10th January, 1986 and the scrutiny of nomination papers was fixed to take place on January 11, 1986.
The appellant filed his nomination paper on January 9, 1986.
Since he was not registered as an elector in the Jaoli constituency but was an elector of the Shivaji Nagar Assembly constituency in Pune, a certified copy of the relevant entry in the electoral roll of the Shivaji Nagar constituency in which his name appeared had to be filed along with his nomination paper or had to be produced before the Returning Officer at the time of scrutiny as provided in sub section (5) of section 33 of the Representation of the People Act, 1951 (hereinafter referred to as the `1951 Act ').
Accordingly the appellant applied to the Tahsildar, Pune city (who was also the Assistant Electoral Registration Officer, Shivajinagar Assembly constituency) who was the custodian of the electoral roll in force of that constituency to furnish him with a certified copy of the entry pertaining to him in the electoral roll on 6th January, 1986.
In that application he specifically mentioned that he required the certified copy for the purpose of producing it before the Returning Officer of the Jaoli constituency for enabling him to file his nomination paper.
The certified copy was made ready on 8th January, 1986 and delivered to the appellant on the same day by the Tahsildar, Pune city (Assistant Electoral Registration Officer, Shivajinagar Assembly constituency).
The certified copy was in Marathi language.
The material part of the English translation of the said certified copy read thus: "247.Shivajinagar Assembly Constituency List of Voters 1984 Name of village: Hutatma Rajguru Health Camp.
PG NO 1067 Taluka Pune City Distt.Pune Mahanagar Palika Part No./Polling Centre Ward No. 9 No 47 Sl.House No. Name of the voter M/F Approximate No. with the name of Age on father mother or 1.1.84 husband.Wadar Kunekar Jagannath M 35 Housing Ramchandra Society Block No. 1 Latest date of publication 31.1.1984 Sd/ Electoral Registration Officer 247, Shivajinagar Assembly Constituency.
Copying Applied on 6.1.1986 Fee Ready on 8.1.1986 delivered on 8.1.1986 Copied by kale.
" After obtaining the above said copy on January 8, 1986 the appellant filed his nomination paper as stated above on the next day, i.e. on 9th January, 1986 and along with his nomination paper he produced the certified copy obtained by him as required by sub section (5) of section 33 of the 1951 Act.
On seeing the said certified copy the Returning Officer of Jaoli constituency told the appellant that since it had been noted in the certified copy that the latest day of publication of the electoral roll in which the name of the appellant was appearing was 31st January, 1984 he had to bring another certified copy as there were revisions subsequent to January 31, 1984 Acting on the suggestion made by the Returning Officer the appellant returned to Pune again and applied for another certified copy on the 10th January, 1986 after the office of the Tahsildar was opened in the forenoon.
The Tahsildar told him that the certified copy would be ready by 4.30 in the afternoon.
Ultimately the appellant was able to get that copy at 5 P.M. on 10th January, 1986.
The earliest bus available to the appellant to leave Pune for going to the place where the Returning PG NO 1068 Officer was taking up the work of scrutiny of nomination papers was to start at 9 A.M. on 11th January, 1986.
The appellant reached the office of the Returning Officer at about 1 P.M. in the afternoon on 11th January, 1986, i e., the date fixed for scrutiny of the nomination papers and produced the second certified copy obtained by him before the Returning Officer.
The second certified copy was also in the Marathi language.
The English translation of the material part of the second certified copy reads thus: "247.Shivajinagar Assembly Constituency List of Voters 1984 Name of village: Hutatma Rajguru Health Camp.Taluka Pune City Distt.Pune Mahanagar Palika Part No./Polling Centre Ward No. 9 No. 47 Sl.House No. Name of the voter M/F Approximate No. with the name of Age on father mother or 1.1.1984 husband.Wadar Munekar Jagannath M/35 Housing Ramchandra Society Block No. 1 Latest date of publication 29.1.1985 Sd/ Electoral Registration Officer 247, Shivajinagar.
Assembly Constituency.
Copying Applied on 10 1 86 Paper Ready on 10 1 86 delivered on 10 1 86 Copied by kale.
PG NO 1069 TRUE COPY Sd/ Tehsildar Poona City Asstt.
Electoral Registration Officer Shivajinagar Assembly Constituency Tal Poona City.
Sd/ 10.1.86"
It is stated by the Returning Officer that before the appellant appeared before him on 11th January, 1986 he had already passed an order rejecting the nomination paper of the appellant on the ground of non compliance with the provisions of sub section (5) of section 33 and sub section (7) of the section 36 of the 1951 Act.
The English translation of the order (which was in the Marathi language) passed by the Returning Officer rejecting the nomination paper of the appellant is as follows: "I have examined this nomination paper in accordance with section 36 of the Representation of the People Act, 1951 and my decision is as follows: In his nomination paper the candidate Shri Jagannath Ramchandra Nunekar, resident of Pune has mentioned his name as being at Sl No. 16 in part No. 47 of the electoral roll for the 247 Shivajinagar Legislative Assembly Constituency.
As evidence thereof he has submitted a certified relevant extract from the said electoral roll published on the date 31.1.1984.
Under the provisions of Sections 33(5) and 36(7) of the Representation of the People Act, 1951 it was essential for him to submit either the latest electoral roll (in force as on the date 31.1.85) or the necessary part of the roll or a certified relevant extract thereof Shri Nunekar was given instructions to that effect at the time of filing of the nomination paper and requested to comply with the requirements regarding the said legal documents by the time of scrutiny of the nomination paper, that is to say by 11 O 'Clock on the date 11.1.1986.
However, the said requirement was not complied with even till the time of the scrutiny was over, nor did he remain present at the time of the scrutiny.
The said nomination paper is therefore rejected.
PG NO 1070 Sd/ Returning Officer 263, Jaoli, Vidhan Sabha Constituency.
(Medha) Dated: 11 1 1986" (This translation is done by the Chief Translator at the High Court.)
Aggrieved by the order rejecting his nomination paper the appellant requested the Returning Officer to review his order since he had produced another certified copy in which the latest date of publication had been shown as 29.1.1985.
The Returning Officer declined to review his order stating that he had no power of review and thereafter published the final list of candidates containing the names of four condidates who had, according to him, filed valid nomination papers.
The appellant 's name was not included in the said final list as his nomination paper had been rejected.
Thereafter the election was held and respondent No. 1 was declared elected.
After the declaration of the result the appellant filed Election Petition No. 1 of 1986 on the file of the High Court of Bombay calling in question the election of the respondent No. 1, alleging that the Returning Officer had improperly rejected the nomination paper filed by him and therefore the election of respondent No. 1 was liable to be set aside on the ground mentioned in section 100(I)(c) of the 1951 Act.
Respondents No. 1 to 4 in the election petition were the four other candidates who had filed nomination papers at the election and respondent No 5 was the Returning Officer.
Respondents No. 1 and 5 contested the election Petition by filing separate written statements.
They pleaded inter alia that since the certified copy of the relevant entry of the electoral roll of the Shivajinagar constituency in which the name of the appellant appeared was not one prepared from the current electoral roll the Returning Officer had rightly rejected the nomination paper of the appellant and there was no ground to interfere with the election of respondent No. 1.
At the conclusion of the trial, the learned Judge of the High Court who tried the election petition dismissed the election petition filed by the appellant holding that he had not complied with section 33(5) of the 1951 Act as the certified copy produced by him on the 9th January, 1986 was not a certified copy of the electoral roll in force at the time of the election, the certified copy produced on the 11th January, 1986 had been produced after the order of rejection of nomination paper PG NO 1071 had been passed by the Returning Officer and the Returning Officer had no power to review.
Aggrieved by the judgment of the learned Judge of the High Court the appellant has filed this appeal under section 116A of the 1951 Act.
There is no dispute that a candidate whose name is found in the electoral roll of a constituency other than the constituency from which he is seeking election should produce a certified copy of the electoral of the constituency in force in which his name appears or the part thereof or a certified copy of the relevant entry in such electoral roll before the Returning, Officer either along with the nomination paper or at the time of the scrutiny.
That is the mandatory of sub section (5) of section 33 of the 1951 Act.
Sub section (2) of section 36 of the 1951 Act provides that the Returning Officer shall examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry if any, as he thinks necessary, reject any nomination on any of the grounds mentioned therein.
One of the grounds mentioned in that sub section is that there has been a failure to comply with any of the provisions of section 33 which includes the provisions contained in sub section (5) thereof.
Sub section (7) of section 86 provides that for the purpose of that section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act. 1950 (hereinafter referred to as `the 1950 Act ').
Sections 14 to 25A of the 1950 Act, which are in Part III thereof, provide for the preparation, revision and maintenance of electoral rolls for assembly constituencies.
Section 15 of the 1950 Act provides that for every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of the 1950 Act under the superintendence, direction and control of the Election Commission.
A person shall be disqualified for registration in an electoral roll as provided by section 16 of the 1950 Act if he is not a citizen of India, or is of unsound mind and stands so declared by a competent court or is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.
The name of any person who becomes so disqualified after registration is liable to be forthwith struck off the electoral roll in which it is included.
If the name of any person is struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub section (1) of PG NO 1072 section 16 of the 1950 Act it shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal.
Subject to the provisions of Part III of the 1950 Act every person who is not less that 21 years of age on the qualifying date and is ordinarily resident in a constituency is entitled to be registered in the electoral roll for that constituency.
The expression `qualifying date ' is defined in clause (b) of section 14 of the 1950 Act as the first day of January of the year in which the electoral roll is prepared or revised.
Sections 21 to 23 of the 1950 Act provide for the preparation and revision of electoral rolls, correction of entries in electoral rolls and inclusion of names in electoral rolls.
The electoral roll for each constituency has to he prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under the 1950 Act.
The said electoral roll shall unless otherwise directed by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date before each general election of the House of People or to the Legislative Assembly of a State; and before each bye election to fill a casual vacancy in a seat allotted to the constituency; and shall be revised in any year in the prescribed manner by reference to the qualifying date it such revision has been directed by the Election Commission, provided that if the electoral roll is not revised as aforesaid.
the validity or continued operation of the said electoral roll shall not thereby be affected.
The Election Commission may at any time, for reasons to be recorded direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit.
These provisions relating to the preparation and revision of electoral rolls are contained in section 21 of the 1950 Act.
It is not necessary to refer in detail for purposes of this case to section 22 of the 1950 Act which deals with the correction of entries in electoral rolls and the provisions contained in section 23 of the 1950 regarding the procedure to be followed if any person whose name is not included in the electoral roll of a constituency wishes to get his name included in it.
What are, however, to be emphasised at this stage are section 21 of the 1950 Act which provides that on the preparation of an electoral roll in the prescribed manner it will come into force immediately upon its final publication in accordance with the rules made under the 1950 Act (vide sub section (1) of the 1950 Act) and the proviso to sub section (2) of section 21 of the 1950 Act which provides that if the electoral roll is not revised as provided in clauses (a) and (b) of sub section (2) of section 21 of the 1950 Act the validity or continued operation of the said electoral roll shall not thereby be PG NO 1073 affected.
In order to implement the provisions contained in Part III of the 1950 Act relating to the preparation and revision of electoral rolls rules have been made under the 1950 Act and they are the Registration of Electors Rules, 1960 (hereinafter referred to as `the Rules ').
The rules prescribing the procedure for preparation and revision of electoral rolls are contained in Part II of the Rules.
The electoral registration officer of a constituency which expression includes an assistant electoral registration officer thereof also is charged with the duties of the preparation, revision and maintenance of an electoral roll.
After the electoral roll is prepared under the Rules and published it can be amended in accordance with the decisions of the electoral registration officer under rules 18, 20, 21 and 21 A of the rules.
Rule 22 of the Rules provides thus: "22.Final publication of roll. (1) The registration officer shall thereafter (a) Prepare a list of amendments to carry out his decisions under rules 18, 20, 21 and 21A and to correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll; (b) publish the roll, together with the list of amendments, by making a complete copy thereof available for inspection and displaying a notice in Form 16 at his office; and (c) subject to such general or special directions as may be given by the Election Commission supply free of cost, two copies of the roll as finally published, with the list of amendments, if any, to every political party for which a symbol has been exclusively reserved by the Election Commission.
(2) On such publication, the roll together with the list of amendments shall be the electoral roll of the constituency.
(3) Where the roll (hereafter in this sub rule referred to as the basic roll), together with the list of amendments, becomes the electoral roll for a constituency under sub rule (2), the registration officer may, for the convenience of all concerned, integrate, subject to any general or special directions issued by the Election Commission in this behalf, PG NO 1074 the list into the basic roll by including the names of electors in the list together with all particulars relating to such electors in the relevant parts of the basic roll itself, so however that no change shall be made in the process of such integration in the name of any elector or in any particulars relating to any elector as given in the list of amendments.
" In the present case there was a basic roll prepared prior to 31.1.1984 in the Shivaji Nagar Assembly Constituency.
The name of the appellant was entered at Sl.No. 16 of a supplement which was published on 31.1.1984.
It appears there were two more supplements issued subsequently, i.e., one on 27.11.1984 and the other on 29.1.1985.
The basic roll and the supplement in which the name of the appellant was found was again published on 29.1.1985.
The basic roll and supplements together constituted one integrated electoral roll.
The certified copy, which was furnished to the appellant on 8.1.1986, i.e., one day before the date on which he filed his nomination paper was a copy made from the said integrated electoral roll.
The said certified copy was marked as exhibit B 1 in the case and the certified copy which was furnished to him on 10.1.1986 was marked as exhibit B. The Electoral Registration Officer who was responsible for preparation and maintenance of the rolls, as already stated, was the Tahsildar, Pune.
He was examined by the appellant as one of his witnesses in the case.
We feel that it is necessary to refer to some portions of the deposition of the Tahsildar, i.e., the Electoral Registration Officer.
He stated: "The petitioner was furnished the extract (Exh. B 1).B l is the extract from the electoral list as was current on the date this extract was given to him.
I see Exh.D which is the certified copy of extract furnished to the petitioner on 10.1.86.
These two extracts are identical except that the final publication date as stated in Exh. B 1 is 31.1.84 and 19.1.85 in Exh.
In 1985 the entire list of voters was not again got printed.
The date of final publication (29.1.85) as finding place in Exh.D is brought to my notice.
On 29.1.85 it was the supplement along with the original list that was published.
PG NO 1075 Three suplements were published on the following dates first on 31.1.84 the second on 27.11.1984 and the third on 29.1.1985.
B 1 was furnished to the petitioner by me on 8.1.86 after taking into consideration the publication of these supplements also.
So also Exh. D. Cross examination by R 3 and 4 declined.
Cross examination by Shri Vyas for R. 5: It is correct that the voters list was finally published on 29.1.85, I am referring to Shivaji Nagar Constituency voters list.
It is not true that on the extract Exh.B 1 I put the date of final publication on 31.1.84, because I did not take into consideration the later publication of 27.11.84 and 29.1.85 . . " (emphasis added) From the deposition of the Tahsildar (Electoral Registration Officer) the following points emerge: (i) exhibit B 1, the certified copy, which was produced along with the nomination paper was the extract from the electoral roll as was current on the date the said extract was given to him.
(ii) In 1985 the entire electoral roll was not again got printed.
(iii) The certified copy which was produced along with the nomination paper was furnished to the appellant on 8.1.1986 after taking into consideration the publication of the supplements on 31.1.1984.27.11.1984 and 29.1.1985.
(iv) The basic roll along with the supplement or supplements was published on 31.1.1984 and also on 29.1.1985.
In answer to a question put in the cross examination by the learned counsel for the Returning Officer, the Electoral Registration Officer stated that it was correct that the voters list was finally published on 29.1.1985.
He also stated that it was not true that on the extract exhibit B 1 he put the date of final publication as 31.1.1984 because he did not take into consideration the later publications of 27.11.1984 and of 29.1.1985.
PG NO 1076 The appellant, who was a citizen of India and was registered as a voter applied to the Electoral Registration Officer of the Shivaji Nagar Assembly Constituency bona fide for a certified copy of the relevant entry in the electoral roll containing his name for purposes of producing it before the Returning Officer under section 33(5) of the 1951 Act.
A certified copy was accordingly prepared by the officer concerned and it no doubt stated that the supplement in which the appellant 's name appeared had been last published on 31.1.1984.
It did not say that it was not published subsequently.
But, on the other hand in the evidence of the Electoral Registration Officer it is stated that even on 29 1.1985 both the original electoral roll and the supplements had been published.
It is not the case of any party that there was another electoral roll which was defunct from which the certified copy produced by the appellant along with the nomination paper had been prepared.
There was only one electoral roll in the office of the Electoral Registration Officer of the Shivaji Nagar Assembly Constituency.
It consisted of the basic roll and the three supplements.
The name of the appellant as already stated was in the first supplement which had been published on 31.1.1984 for the first time.
There is also no evidence in this case showing that the name of the appellant had been deleted from the electoral roll subsequently on account of any disqualification incurred by him as provide by section 16 of the 1950 Act.
We have not been informed that there is any prescribed form in which a certified copy of the entries in the electoral roll should be furnished when an application is made for such certified copy for purposes of section 33(5) of the 1951 Act.
There is no prescription requiring the copy to state the several dates on which the basic roll or the supplement from which the copy is prepared had been published.
The certified copy that was produced before the Returning Officer along with the nomination paper was less than 24 hours old when it was presented before the Returning Officer.
It is not a certified copy obtained in 1984 that was being produced in 1986 before the Returning Officer.
No candidate had raised any objection to the nomination paper of the appellant.
The objection, however had been raised by the Returning Officer himself on the 9th January, 1986 when the appellant filed his nomination paper along with the certified copy which he had obtained on 8.1.1986.
As a subsequence of the said objection he had to rush back to Pune again to obtain another certified copy.
He appeared before the Returning Officer again by about 1.00 P.M. on the date of the scrutiny and produced the other certified copy.
PG NO 1077 The Returning Officer, who commenced the scrutiny of the nomination paper at 11 A.M. on 11.1.1986 proceeded to reject the nomination paper of the appellant on the ground that the certified copy of the relevant entry in the electoral roll could not be treated as a certified copy of an electoral roll which was in force at that time.
Under the proviso to section 36(5) of the 1951 Act it is provided that in case an objection is raised by the Returning Officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the Returning Officer shall record his decision on the to which the proceedings have been adjourned.
The Returning Officer did not choose to wait even for a few hours on 11.1.1986 to give a chance to the appellant to make his plea that what had been produced before him along with the nomination paper was a certified copy which could be acted upon or to produce another certified copy which in fact he did produce at 1 P.M. on 11.1.1986 before the Returning Officer, even before the final list of candidates, who had filed valid nomination papers, was published on the notice board The Returning Officer had acted on his own information in rejecting the nomination paper of the appellant.
namely, that there was a revision in 1985 and that the certified copy which had been produced was from an electoral roll which had become defunct.
If that was so he should have secured the necessary material from the concerned Electoral Registration Officer and placed it before the appellant before rejecting the nomination paper.
It is no doubt true that the electoral right is a statutory right and a person who wishes to contest an election should comply with the law applicable to elections strictly.
But in the instant case we that there is no default at all on the part of the appellant.
He had actually produced before the Returning Officer a certified copy which had obtained within less than 24 hourse from the Election Registration Officer of the constituency where he was residing and that he had not done anything to mislead the Returning Officer.
Unless the certified copy produced before the Returning Officer itself on the face of it showed that the electoral roll from which a certified copy had been prepared had been substituted by another electoral roll.
the Returning Officer was not justified in not treating the production of the certified copy prepared on 8.1.1986 as sufficient compliance under section 33(5) of the 195l Act particularly having regard to the close proximity between the date of preparation of the certified copy and the date of the production of the certified copy.
In the circumstances unless there was any evidence to the contrary the Returning Officer should have treated the certified copy PG NO 1078 produced before him as a certified copy of the electoral roll for the time being in force of the constituency to which it related.
It is clear from the evidence of the Tahsildar that there was no other roll which had taken the place of the supplement in which the name of the appellant had been entered.
Even the second copy supplied on 10.1.1986 had been prepared from the same supplement.
Both the first certified copy and the second certified copy were copies of the same original.
Sub section (7) of section 36 of the 1951 Act lays down a rule of evidence.
It says that a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the 1950 Act.
In the absence of any such objection on the part of any other candidate or any information which the Returning Officer may have had with regard to the disqualification of the appellant, the Returning Officer should have in the circumstances of this case proceeded to accept the certified copy produced along with the nomination paper and acted upon it.
We hold that the certified copy produced along with the nomination paper satisfied the requirement of section 33(5) of 1951 Act.
We are of the view that in the circumstances the appellant who was an innocent person has been denied the right to contest the election unreasonably.
We hold that the rejection of the nomination paper of the appellant was improper.
It follows that the election of the 1st respondent should be declared void in view of the provisions contained in section 100(1)(c) of the 1951 Act.
We, therefore, allow this appeal, set aside the judgment of the High Court and declare the election of the 1st respondent to the Maharashtra Legislative Assembly from Jaoli constituency void.
Having regard to the facts and circumstances of the case, we feel that the parties must be directed to bear their own costs both in the High Court and in this Court.
R.S.S. Appeal allowed.

summary/full:
The appellant, who was an elector in the Shivaji Nagar Assembly Constituency in Pune, intended to contest the bye election to fill a seat in the Maharashtra Legislative Assembly from the Jaoli Assembly Constituency in Satara district.
He applied to the Electoral Registration Officer of the Shivaji Nagar Assembly constituency for a certified copy of the relevant entry in the electoral roll containing his name, specifically mentioning that he required it for the purpose of producing it before the Returning Officer of Jaoli constituency under section 33(5) of the Representation of the People Act, 1951 to enable him to file his nomination paper.
In the Shivaji Nagar assembly constituency a basic roll of electors had been prepared prior to 31.1.1984.
The name of the appellant was entered at Sl.
No. 16 of a supplement which was published on 31.1.1984.
Two more supplements were issued subsequently.
The basic roll and the supplements together constituted one integrated electoral roll which was published again on 29.1.1985.
The certified copy, which was furnished to the appellant on 8.1.1986, i.e., one day before the date on which he filed his nomination paper, was a copy made from the said integrated roll.
The Returning Officer of Jaoli constituency noted that in the certified copy produced the latest date of publication was given as 31.1.1984.
The Returning Officer told the appellant that since there were revisions subsequent to 31.1.1984, he had to produce another certified copy of the latest electoral roll at the time of secrutiny i.e. 11 O 'Clock on 11.1.1986.
The appellant rushed back to Pune and obtained another certified copy showing the latest PG NO 1063 PG NO 1064 date of publication as 29.1.1985, but reached the office of the Returning Officer of Jaoli constituency at about 1 P.M. on 11.1.1986.
In the meantime, the Returning Officer had already passed an order rejecting the nomination paper of the appellant on the ground of non compliance with the provisions of sub section (5) of section 33 and sub section (7) of section 36 of the 1951 Act.
The appellant requested review of the order but the Returning Officer declined stating that he had no power of review.
The High Court dismissed the appellant 's election petition holding: (1) that the appellant had not complied with section 33(5) of the 1951 Act as the certified copy produced by him was not a certified copy of the electoral roll in force at the time of election; (2) the certified copy produced on 11.1.1986 had been produced after the order of rejection of the appellant 's nomination paper had been passed, and (3) the Returning Officer had no power to review.
Allowing the appeal it was, HELD: (1) There is no prescription requiring the certified copy to state the several dates on which the basic roll or the supplement from which the copy is prepared had been published.
[1076F] (2) The Returning Officer had acted on his own information in rejecting the nomination paper of the appellant, namely, that there was a revision in 1985 and that the certified copy which had been produced was from an electoral roll which had become defunct.
If that was so, he should have secured the necessary material from the concerned Electoral Registration Officer and placed it before the appellant before rejecting his nomination paper.
[1077D E] (3) Unless the certified copy produced before the Returning Officer itself on the face of it showed that the electoral roll from which a certified copy had been prepared had been substituted by another electoral roll, the Returning Officer was not justified in not treating the production of the certified copy prepared on 8.1.1986 as sufficient compliance under section 33(5) of the 1951 Act, particularly having regard to the close proximity between the date of preparation and the date of the production of the certified copy.
[1077F H] (4) Under the proviso to section 36(5) of the 1951 Act, it is provided that in case an objection is raised by the Returning Officer or is made by any other person the candidate concerned may be allowed time to rebut it not PG NO 1065 later than the next day but one following the date fixed for scrutiny, and the Returning Officer shall record his decision on the date to which the proceedings had been adjourned.
The Returning Officer did not choose to wait even for a few hours on 11.1.1986 to give a chance to the appellant to make his plea that what had been produced along with the nomination paper was a certified copy which could be acted upon or to produce another certified copy which in fact he did produce at 1 P.M. on 11.1.1986 before the Returning Officer, even before the final list of candidates who had filed valid nomination papers, was published.
[1077B D] (5) Both the first certified copy and the second certified copy were copies of the same original.
Sub section (7) of section 36 of the 1951 Act lays down a rule of evidence.
It says that a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the 1950 Act.
[1078B C] (6) It is no doubt true that the electoral right is a statutory right and a person who wishes to contest an election should comply with the law applicable to elections strictly.
But in the instant case there is no default at all on the part of the appellant.
He had actually produced before the Returning Officer a certified copy which he had obtained within less than 24 hours from the Electoral Registration Officer of the constituency where he was residing and that he had not done anything to mislead the Returning Officer.
[1077E F] (7) The certified copy produced alongwith the nomination paper satisfied the requirement of section 33(5) of 1951 Act.
[1078D] (8) The appellant who was an innocent person had been denied the right to contest the election unreasonably.
The rejection of the nomination paper of the appellant was improper.
It follows that the election of the 1st respondent should be declared void in view of the provisions contained in section 100(1)(c) of the 1951 Act.
[1078E F]


judgement:
tion No. 1521 Of 1987 (Under Article 32 of the Constitution of India) Anil Dev Singh, G.L. Sanghi, Serva Mitter, Miss Vrinda Grover and T.V.S.N. Chari for the Petitioners.
V.S. Desai, A.S. Bhasme and A.M. Khanwilkar for the Respondents .
The Judgment of the Court was delivered by NATARAJAN, J.
Writ Petition No. 1521 of 1987 has been filed under Article 32 of the Constitution of India to challenge the constitutional validity of Section 41 of the Bombay Sales Tax Act (hereinafter referred to as the Act) on the ground it confers arbitrary powers of exemption on the State Government so as to exempt all types of new units from the payment of purchase tax, sales tax and central sales tax under the Package Scheme of Incentives, 1979.
PG NO 75 On notice being issued in the writ petitions, the respondent State of Maharashtra has filed affidavit in reply and the petitioner has filed a rejoinder.
In order to exempt in public interest any specified class of sales or purchases from payment of the whole or any part of the tax payable under the 'Act, the State Government gave to itself powers of exemption under Section 41 of the Act.
In exercise of its powers under Section 41 the Government had been issuing notifications so as to grant exemption in appropriate Gases from payment of sales tax or purchase tax or both, as the case may be.
One of such notifications issued by the Government under Entry 136 was for granting full tax exemption for the purchases of the inputs and the sales of finished goods of new units set up in the backward areas of the State.
The Government also issued notification under Section 85 of the Central Sales Tax Act to the sales of finished goods of such units from payment of Central Sales Tax.
These tax exemption benefits were accorded to the new industries by way of (I) incentives for development of industries in backward areas, (2) promotion of the dispersion of industries all over the State, (3) the industrialisation of backward areas and (4) for creating employment opportunities in the backward areas.
By virtue of the exemption notifications issued by the Government in exercise of its powers under Section 41, the industries engaged in the production of edible as well as non edible oils set up in backward areas came to enjoy the benefit of exemption from paying purchase tax/sales tax.
Subsequently, the Government came to realise that the sales tax exemption given under the Package Scheme of Incentives, 1979 for a period ranging from 5 to 9 years without any limit had conferred far more benefits on some of the industries concerned than what the Government had in mind when the notifications granting tax exemptions were made and that the exemption facility was not only adversely affecting the Government 's finances but was also placing the existing small scale units on a comparative disadvantage.
The Government, therefore, passed a Resolution on July 5, 1982 (No. IDL 7082/(3559))/ IRD 8) to modify the Package Incentives Scheme and the benefits following therefrom in order to limit the benefit to 1()()% of the fixed capital investment of the small scale units.
Since the Package Scheme of Incentives, 1979 provided for giving notice of six months for any change or modification in the scheme, the modified scheme dated 5th July, 1982 was proposed to be brought into force in respect of small scale units, with PG NO 76 effect from 10th January, 1983.
The Government, however, noticed that during the intervening period of notice, a number of small scale units, particularly the oil units, tried to take advantage of the unlimited incentives to the disadvantage of the existing units and also caused loss to the public exchequer in respect of the revenue from sales tax.
The small scale units also sought to take advantage of the decision of the Bombay High Court in Tapti Oil Industries and Anr.
vs State of Maharashtra & Ors., [ 1984] 56 STC 193 by claiming benefit of tax exemption without any limit, thereby causing a continuing loss to the revenue.
The Government, therefore, considered it would not be expedient in the public interest to continue the concession and, that suitable provision must immediately be made in the Act so as to limit the benefit of the exemption from payment of sales tax under the Package Incentive Schemes to the extent of 100% of the gross fixed capital investments of the eligible units as approved at the time of the grant of eligibility certificate or to such other lower ceiling of percentage that may have been provided for under the eligibility certificate issued to the small scale unit.
Since both the Houses of the State Legislature were not in Session, the Government passed Ordinance No. 5 of 198 and inter alia introduced Section 41A which read as under: "41A. (1) Notwithstanding any things contained in this Act or in any judgment, decree or order of any Court or T Tribunal to the contrary.
on and after the date of commencement of the Bombay Sales Tax (Amendment ) Ordinance.
1985 (hereinafter in this section referred to as the commencement date ' ') the cumulative quantum of benefit drawn or availed of by any registered dealer of an Eligible Unit in respect of payment of any tax by virtue of the exemption granted under the provisions of section 4] shall not exceed one hundred per cent of the gross fixed capital investment of the Eligible Unit as approved at the time of grant of Eligibility Certificate, or such other lower ceilings of percentage, if any, as may be provided under the Eligibility Certificate issued in accordance with the provisions of any Package Scheme of Incentives.
(2) Where, in the case of any registered dealer of an Eligible Unit the cumulative quantum of benefit availed of by him, has exceeded the limit laid down in sub section (I) on the commencement date, or exceeds such limit on any day PG NO 77 after the commencement date, then the Eligibility Certificate shall cease to have any effect in relation to the exemption from payment of tax under this Act or under the , and the Certificate of Entitlement shall stand automatically cancelled on the commencement date or any such day, as the case may be, and such registered 'dealer shall not be entitled to claim any further benefit of exemption from payment of such tax under the Eligibility Certificate of the Certificate of Entitlement on or after the commencement date or any such day, as the case may be, and the dealer shall surrender the Certificate of Entitlement together with all the unused Form BC which have been attested by the Sales Tax authorities to the Commissioner forthwith and in any case within 15 days from the commencement date or any such day.
(3) Notwithstanding anything contained in subsections (I) and (2), no registered dealer of an Eligible Unit shall be entitled to claim any benefit of exemption from payment of any tax beyond the period covered by the Eligibility Certificate and the provisions of sub section (2) regarding surrender of the Certificate of Entitlement together with the unused Form BC shall mutatis mutandis apply to such registered dealer " The Ordinance came to be replaced by the Amendment Act, 1985 under the Amending Act the Government made certain modifications and directed that the withdrawal of the tax exemption benefit will stand confined to the edible oil units only.
Section 41A, as introduced in the main Act by the Amending Act No. XV of 1985 reads as follows: "41A.
Notwithstanding anything contained in this Act or in any judgment, decree or order of any Court or Tribunal to the contrary, on and after the date of commencement of the Bombay Sales Tax (Amendment) Act, 1985 (hereinafter in this section referred to as "the commencement date"), the Eligibility Certificate granted to any Registered dealer of an Edible Oil unit in accordance with the provisions of any Package Scheme of Incentives shall cease to have any effect in relation to the exemption from payment of tax under this Act or under the , and the Certificate of Entitlement issued in favour of such PG NO 78 Registered dealer by the Commissioner under entry 136 of the Schedule to the notification issued under section 41 shall stand automatically cancelled on the commencement date and such Registered dealer shall not be entitled to claim any further benefit of exemption from payment of such tax under the Eligibility Certificate or the Certificate of Entitlement on and after the commencement date, and he shall surrender the Certificate of Entitlement with all the unused Form BC which have been attested by the Sales Tax authorities to the Commissioner forthwith and in any case on or before the 31st day of August, 1985, unless he has already surrendered the same earlier.
" Section 8 of the Amendment Act which repealed Ordinance V of 1985 further provided as follows: "8.(2) It is hereby declared that notwithstanding anything contained in section 7 of the Bombay General Clauses Act, 1904, on such repeal, the following consequences shall ensue: (a) The Eligibility Certificate and the Certificate of Entitlement issued to any Registered dealer of the Eligible Unit other than the Registered dealer of Edible Oil Unit shall not be deemed to have been cancelled; and (b) Where the Certificate of Entitlement and the unused Form BC are surrendered by any Registered dealer of the Eligible Unit other than Registered dealer of Edible Oil Unit, the same shall be restored to the Registered dealer, who has surrendered the same; (c) The Registered dealer of the Eligible Unit other than the Registered dealer of Edible Oil Unit shall be deemed to have been entitled to claim the same benefits of exemption of sales tax to which he was entitled before the commencement of the said Ordinance; (d) Any Sales Tax on sale of finished goods recovered by any Registered dealer of the Eligible Unit other than the Registered dealer of Edible Oil Units during the period from the commencement of the said Ordinance till the publication of this Act in the Official Gazette, shall be paid into PG NO 79 Government Treasury alongwith the return and the tax so paid shall stand forfeited to the State Government and thereupon the provisions of sub section (6) of Section 38 shall mutatis mutandis apply to the tax so forfeited." Thus it may be seen that by reason of Act XV of 1985, the sales tax exemption facility originally granted under the Package Scheme of Incentives 1979 to all small scale units newly started stood withdrawn only in so far as edible oil units are concerned, and not to small scale units engaged in producing non edible oils.
By a trade circular No. DED 1485/2591ADM 3 dated 15.10.1986.
it was clarified that an edible oil unit under the Act XV of 1985 would mean a unit engaged in (i) delinting, decorticating or processing of groundnuts or other oilseeds ' (ii) crushing of groundnuts or other oilseeds and manufacture of edible oil; (iii) refining of edible oil; or (iv) hydrogenation of edible oil.
It was also clarified that the Act would not be applicable to "units producing and selling non edible oils and that units manufacturing and selling "washed cottonseed oil",: Soyabean raw oil (Grade l)" and "un refined sunflower cake oil" would not fall under the category of units manufacturing edible oil and as such those units will be entitled to avail of the tax benefits even after 1.8.1985, provided that the eligibility certificate specifically made mention of the particular oil as the finished product produced and sold by the concerned eligible unit.
The trade circular stated that the clarification was being given "after obtaining the opinion of the concerned department of the Government of India about what constitute edible oil and non edible oils".
Notwithstanding the Amended Sections and the trade circular the petitioners who are engaged in producing washed cottonseed oil tried to contend before the authorities that washed cottonseed oil would also fall in the category of edible oil and that several technical authorities have given their opinion to that effect and as such the extension of PG NO 80 sales tax exemption facility to units engaged in the production of non edible oils was against law and was not only depriving the government of its legitimate revenue but was also detrimentally affecting the interests of the old units which were engaged in producing washed cottonseed oil etc.
These contentions were not accepted by the State Government with the result that the withdrawal of the tax exemption provision remained confined only to the units engaged in producing edible oils and not to units engaged in producing non edible oils.
Aggrieved by this position the petitioners have come forward with this petition under Article 32 of the Constitution.
Two contentions were advanced by the learned counsel for the petitioner to assail Section 41 of the Act.
It is apposite to mention here that in his petition the petitioner has not impugned the validity of Section 41A which disentitles only the units producing edible oil from having the continued benefit of tax exemption.
This factor by itself weakens in the attack of the petitioner on the constitutional validity of Section 41.
Leaving aside this aspect of the matter, we will now consider the specific grounds on which Section 41 is assailed.
In the first place it is stated that while the government realised.
at the time of passing the Ordinance that the lax exemption scheme granted in favour of all the newly started eligible units had conferred tax benefits transcending by far the limits of assistance contemplated by the government and that the tax exemption benefits were adversely affecting the public exchequer as well as the old units and had, therefore, made Section 41A introduced by the Ordinance applicable to all eligible units which had been given the benefit of tax exemption.
the revised Section 41A introduced by Act XV of 1985 had restricted the withdrawal provision only to the units engaged in producing edible oil and has allowed the other eligible units to continued to have the unfair advantage of tax exemption benefit.
The second argument was that washed cottonseed oil is also an item of edible oil although it required some processing for making it fit for human consumption and therefore, the new units which were engaged in producing washed cotton seed oil should also be classified as units producing edible oils so that those new units, should also pay purchase tax and sales tax in the same manner the petitioner was paying.
By way of extension to the second contention it was pointed Out that while the old units had to pay purchase tax, sales tax, turn over tax etc.
totaling Rs.1,650 per metricton, the new units producing the same washed cottonseed oil got away scot free without paying any tax and they stood placed in a very advantageous position.
PG NO 81 On an examination of the contentions we find that neither of them has any merit.
Section 41 has been in the statute book eversince the Act was enacted.
It has been provided in order to enable the State Government to grant exemption from payment of purchase tax and sales tax of any specified class of sales or purchases if such grant of exemption was felt justified.
It is open to the Government to give the benefit of tax exemption either to the full extent or to a partial extent The Section itself states that the power of exemption is being conferred on the government in order to enable it to act in public interest.
It is not, therefore as if power.
has been given to the government to act in an arbitrary manner or for conferring largess on any section of manufacturers or traders.
In exercise of its powers under Section 41 the government has been granting exemption by means of several notifications in favour of various trades and industries as and when the circumstances warranted the granting of exemption in public interest.
It can, therefore, be safely taken that Section 41 has with stood the test of time and has enabled the government to promote public interest, by granting tax exemption benefit, whenever needed.
One of the contentions advanced by the petitioner 's counsel was that while the power of exemption can be granted on any specified class of sales or purchases from payment of tax, the government was not entitled to grant exemption only in favour of new units set up in backward areas from the payment of purchase tax, sales tax and central sales tax.
In other words the argument was that if the Government wanted to grant exemption in favour of such units, then the government should have granted the benefit of tax exemption to all the units in backward area which were engaged in the production of he same type of goods as the new units were engaged in.
We are unable to accept this contention because the exemption granted in favour of the of the new units has a sound economic and public policy underling it.
The policy has been set out by he government in he counter affidavit filed b it in W.P. No. 1527of 1987 in the following manner.
"I submit that these benefits are in accordance with the policy of the Government to give Sales Tax incentives to he new Units in backward a areas in order to achieve dispersion of industries, industrialisation of back wad areas as also of he purposes of creating employment opportunities in he backward areas and as such exemption is granted in he large public interest in order to enable the new units o successfully compete with the older.
Units in he initial yeas of production in order to occasion sufficient foothold PG NO 82 in an established industry.
I further submit that this classification is reasonable in all respects and is not at all arbitrary as established Units have several advantages over new Units in as much as the overhead assets are less and hence no fundamental right is infringed in any manner of the old Units .
" It cannot, therefore, be contended that the old units should also have been granted the same benefit as new units since both the units are engaged in the manufacture of the same type of products.
Infact such a policy, if followed by the government, would not only fail to provide incentive to the new industries but would also place the new units at a comparative disadvantage in being made to face stiff competition with older units which have been established at lesser cost and which have stabilised themselves in the field by successfully running the units for a number of years.
The words in Section 41 exempt any specified class of sales or purchases" could well be construed as applying to the grant of exemption to the new units because the sales and purchases effected by new entrants would constitute a specified class by themselves in contra distinction with the class of sales and purchases effected by the older and seasoned units.
In so far as the second contention is concerned, viz. that washed cottonseed oil would also fall in the category of edible oils inspite of the fact that it has to be processed still further for being made fit for human consumption.
we find that the contention is not a tenable one.
The petitioner had contended before the government that washed cottonseed oil is also one type of edible oil but the government have rejected this contention stating that since washed cottonseed oil cannot be made use of without further processing for direct human consumption, it would not fall in the category of edible oil.
This position is not controverted by the petitioners and, therefore, as long as the washed cottonseed oil that is produced is sold without further processing it will not constitute edible oil.
The government therefore.
are well within their powers in refusing to accept the petitioner 's contention that washed cottonseed oil is also edible oil and, therefore all the new units which are engaged in the manufacture of washed cottonseed oil should also be rendered ineligible from enjoying the benefit of tax exemption as has been done in the case of units producing edible oil.
Yet another contention of the petitioner 's counsel was that the term `oil ' would include edible as well as non PG NO 83 edible oil and therefore, there was no reason or justification for the government to have removed the benefit of tax exemption to units manufacturing edible oil alone and allow the continuance of the benefit of tax exemption to new units producing non edible oil.
Even this contention is devoid of substance because even though edible and non edible oils may fall under the general heading of `Oils ' they undoubtedly constitute two seperate groups which are capable of distinct classification on intelligible basis.
Lastly, coming to the argument that new units engaged in producing non edible oil derive a huge benefit by way of tax exemption while the older units stand penalised and getting crushed out of existence, the government have examined the matter fully and found that the new units engaged in the production of edible oil alone have derived undue advantage by reason of the tax exemption, and that the other eligible units engaged in the manufacture of other products including non edible oils have not derived benefit to such an extent as to justify revocation of the tax exemption benefit.
This assessment exercise falls purely within the domain of the Executive and it is not for the Court to see whether other edible units also derive huge benefits and as such government ought to have revoked the tax exemption benefit in their cases as well.
As already stated the classification between units engaged in producing edible oils and non edible oils is on an intelligible and sustainable basis and as such the Court cannot hold that the government should treat both kinds of units alike and direct the withdrawal of the tax exemption benefit in the case of non edible oil producing units also.
For all these reasons we hold that Section 41 of the Bombay Sales Tax Act is not violative of Articles 14, 19 and 21 of the Constitution as alleged by the petitioner in W.P. No. 1521 of 1987.
In the result W.P. No. 1521 of 1987 will stand dismissed.
There will he no order as to costs.
R.S.S. Petition dismissed.

summary/full:
By virtue of the notifications issued by the Government of Maharashtra in exercise of its powers under section 41 of the Bombay Sales Tax Act, the new industries set up in backward areas for the production of edible as well as non edible oils came to enjoy the benefit of exemption from paying purchase tax/sales tax.
Subsequently, the Government of Maharashtra amended the Act and introduced section 41A by virtue of which the tax exemption facility originally granted under the Package Scheme of Incentives, 1979 to edible oil units stood withdrawn earlier than stipulated in the exemption notifications.
The withdrawal of the tax exemption however did not apply to units engaged in producing non edible oils.
The petitioner in one petition has challenged the constitutional validity of section 41, while the petitioners in the other two writ petitions challenged the validity of section 41A.
The petitioner in the first petition, who was engaged in the production of washed cottonseed oil, in an old unit, contends that (i) the power of exemption can be granted on any specified class of sales or purchases from payment of tax, and the Government was not entitled to grant exemption only in favour of new units set up in backward areas, (ii) section 41 confers arbitrary powers of exemption on the State Government so as to exempt new units from the payment of purchase tax, sales tax and central sales tax, thus placing old units in a very disadvantageous position, and PG NO 72 PG NO 73 (iii) washed cottonseed oil is also edible oil although it requires some processing for making it fit for human consumption, and therefore the new washed cottonseed oil units should also be classified as units producing edible oils and subjected to purchase tax and sales tax.
The petitioners in the other two petitions contend that the Government was precluded by Promisory Estoppel from going back on the lncentive Scheme before the expiry of the full term of tax exemption benefit period.
Dismissing the writ petitions, it was, HELD: (l) Section 41 has been provided in order to enable the State (government to grant exemption from payment of purchase tax/ sales tax on any specified class of sales or purchases in public interest.
It is not as if the power has been given to the government to act in an arbitrary manner or for conferring largess on any section of manufacturers or traders.
Section 41 has withstood the test of time and has enabled the government to promote public interest, by granting tax exemption benefit, whenever needed.
[81A D] (2) The words "exempt any specified class of sales or purchases ' could well be construed as applying to the grant of exemption of the new units because the sales and purchases effected by new entrants would constitute a specified class by themselves in contra distinction with the class of sales and purchases effected by the older and seasoned units.
[82C D] (3) Even though edible and non edible oils may fall under the general heading of 'oils they undoubtedly constitute two separate groups which are capable of distinct classification on intelligible basis.
[83A B] (4) The Package Incentives Scheme was only evolved to provide incentive to entrepreneurs to start new units in backward areas.
It could never have been the intention or the object of the Government that the entrepreneurs should unjustly enrich themselves at the cost of the public exchequer or to be given competing ability with the older units to such an extent as to virtually drive the latter out of the business.
(5) Since the very foundation of the Scheme for giving tax exemption benefits is public interest, the government PG NO 74 was not only entitled but it was under an obligation to withdraw the tax exemption benefit when the continuance of the Scheme was going against public interest.
(6) As long as the washed cottonseed oil that is produced is sold without further processing, it will not constitute edible oil.
[82Fl (7) The government had neither acted arbitrarily nor practised any discrimination against edible oil units started newly or had interfered with the rights of the owners of the new units in running their business and trade in any manner when it enacted Section 41A. (8) Section 41A is fully in accordance with law and not violative of Articles 14, 19(i)(g) and 300A of the Constitution.
[83E] Tapti Oil Industries vs The State of Maharashtra.
AIR 1984 Bom.
161 Olympic Oil Industries Ltd. W.P. No. 3275 of 1985 in Bombay High Court and S.L.P. (Civil) No. 10144 and 10550 of 1986 in the Supreme Court, referred to.