judgement:
ivil Appeal No. 871 of 1986 etc.
From the Judgment and Order dated 29.1.1986 of the Patna High Court in Misc.
Judicial Case No. 356 of 1985.
K.K. Venugopal, Jaya Narain, R.P. Singh, M.P. Jha, B.P. Singh, Ranjit Kumar, Ranjan Dwivedi and P.P. Singh for the appearing parties.
The Judgment of the Court was delivered by KHALID, J.
These appeals are directed against the Judg ment of a Division Bench of Patna High Court in Misc.
case No. 356 of 1985.
Appeal No. 871 of 1986 is by the State of Bihar, Appeal No. 916 5 jointly by Srideo Mishra, Judicial Commissioner, Ranchi (at the relevant time, Secretary cum Legal Remembrancer, Depart ment of Law, Government of Bihar, Patna) and Mrs. Radha Singh, Commissioner, Ranchi Division, Ranchi (at the rele vant time Additional Irrigation Commissioner.
, Patna), Appeal No. 933 by Subh Chandra, Jha, Public Relation Offi cer, Irrigation Department, Government of Bihar, Patna and Appeal No. 1178 by Birkeshwar Prasad Singh, now Professor and Head of Department Political Science, Magadh University (Member, Bihar Public Service Commission, Patna at the relevant time).
The appellants have been convicted by the High Court for contempt of its order and have been sentenced to a fine of Rs.50 in default to suffer simple imprisonment for two weeks.
The High Court had issued contempt notice against some others also.
Those notices were discharged against them.
The background facts necessary can be now stated in brief as follows: In the Irrigation Department of the State of Bihar, there existed a post of Public Officer.
This post became vacant some time in 1979.
One Arun Kumar Verma was appointed to that post for six months.
At that time one Kripalu Shan ker was discharging the functions of Public Relation Offi cer.
He laid claim to that post.
He did not succeed.
The Secretary to the Department did not accede to his request.
Therefore, he filed C.W.J.C. No. 3632 of 1979.
When the case came up for hearing, it was represented on behalf of the State that Shri Verma was appointed only on ad hoc basis for a period of six months and that after the expiry of six months, the matter would be referred to the Public Service Commission for consideration and at that stage the case of Kripalu Shankar also will be considered.
It is submitted that on this assurance by the State, the petition was al lowed to be withdrawn as per order dated 19.12.1979.
It appears that this assurance was not respected, no reference was made to the Public Service Commission for regular ap pointment and the matter was kept in abeyance for a long time.
It is stated that in April, 1983, by which time Dr. Jagannath Mishra had become Chief Minister, the State Gov ernment appointed Subh Chandra Jha as P.R.O. again on ad hoc basis.
This gave rise to the filing of petition No. 1534 of 1983 which was disposed of on 4.5.83.
It was contended that this appointment was made without any advertisement and without consultation with the Public Service Commission.
The learned Advocate General informed the Court when the matter came up for heating that the appointment of Jha was only ad hoc giving an impression that regular appointment would be made after the expiry of six months.
On this representation the following order was passed by the Court: 6 "In the circumstances we direct that the post of Public Relations Officer in the Irrigation Department on which respondent 3 has been appointed on ad hoc basis should be filled up in a regular way.
In case the appointment is not made within the period of six months, the ad hoc appointment shah stand terminated.
We further direct that the fact that the respond ent No. 3 has worked on the post on ad hoc basis will not be taken to be a qualification for the purpose of any appointment through regular method on the post of Public Relations Officer.
" The six months ' period, according to the above order, was to expire on 17.10.1983.
The case of the State is that the Irrigation Department had as early as 4.4.1983 written to the Public Service Commission to give concurrence to the appointment of Shri Jha, since his post was an ex cadre post and since he was selected by a Selection Committee.
Concur rence was given on 2.4.85.
The Government thereafter exam ined the matter in consultation with the Personnel (Adminis trative) Reforms Department, with reference to the provi sions of the Rules governing reservations.
The Government took a decision to send a requisition to the Bihar Public Service Commission for advertising the post.
The Commission finally advertised the post on 12.5.1985, setting out the eligibility and criterion for selection.
Another Writ Petition was filed in the High Court as C.W.J.C. No. 2354/85 with the allegations that the adver tisement was specially drafted to suit only Subh Chandra Jha.
The matter was listed for admission on 13.6.1985.
During the hearing of this petition the High Court felt on going through the records including the notes file summoned for production by the Court that its direction in C.W.J.C. No. 1534/83 was disregarded and, therefore, rule was issued upon the respondents to show cause why they should not be punished for contempt of the Court for ignoring its order dated 4.5.1983, in the above mentioned writ petition.
The State of Bihar and the Commissioner cum Secretary, Irrigation Department who were respondent nos.
1 & 2 before the High Court expressed regret but at the same time con tended that no contempt had been committed by them for the reason that expression of views in the notings made on the files whether they were right or wrong did not amount to contempt of court and that no order was passed appointing Subh Chandra Jha after 17.10.1983 to invite any contempt action.
The third respondent also pleaded similarly and expressed regret for any omission on his part.
The Bihar Service Commission and its Executive Officer stated that they had not 7 committed any contempt, that Subh Chandra Jha 's appointment from 18.10.1983 should be treated as a fresh appointment, that they did not know about the order passed in petition No. 1534 of 1983, that though concurrence was given, it was withdrawn when the correct facts were made known to them and that the withdrawal of the concurrence was duly communicat ed.
The other respondents also adopted similar stand in the returns filed by the end.
Arguments in the contempt matter were heard for some time, and they were concluded on 12.8.1985 and the case was posted for Judgment.
The Court went through the Government files and the files of the Bihar Public Service Commission.
From the noting in the file, the High Court discovered that Mrs. Radha Singh, the then Additional Irrigation Commission er and Birkeshwar Prasad Singh, Member Bihar Public Service Commission and Sanjeevan Sharma, Section Officer, Bihar Public Service Commission, had also a part in the matter.
Notices were, therefore, directed to be issued to them as well.
They appeared and were heard on 25.9.1985.
The High Court considered the question of contempt on the following facts, which accord ing to it were undisputed: (i) The ad hoc appointment of S.C. Jha must be terminated on 17.10.1983 as per its order.
(ii) He was still working as P.R.O. with the acquiescence of the concerned officers.
(iii) Concurrence of the Public Service Commission was sought, for his fresh ad hoc appointment.
(iv) The Public Service Commissioner gave concurrence to the ad hoc appointment from October, 1983, by its order in May, 1985.
The High Court expressed itself, of what it felt about the disobedience of its order in para 4 of the Judgment as follows: "The State Government has ignored the order of the High Court.
It had, therefore, to be made party.
The Irrigation Commissioner cum Secre tary is responsible for every act of his Department.
It was, therefore, but natural that the proceeding should be drawn up against him also.
Shrideo Mishra, Legal Remembrancer was proceeded against, as he advised the State Government on 10.10.1983 to seek concurrence from the Commission in the fresh ad hoc ap pointment of Subh Chandra Jha knowing ball well the dictate of 8 this Court that services of Subh Chandra Jha must be terminated after the expirty of six months.
Incidentally, it may be stated once again that the six months period had expired on 17.10.1983.
The Public Service Commission and the Special Executive Officer thereof have been proceeded against for granting concur rence to the Ad hoc appointment of Subh Chan dra Jha.
Subh Chandra Jha himself has been proceeded against for master minding the whole affair.
Proceeding is against him too on that score.
The proceeding was initiated against A.U. Sharma on the footing that he was the Irrigation Commissioner in October, 1983 when the service of Subh Chandra Jha had to be terminated.
That is how the contemners have been proceeded against.
" The High Court found the officers guilty for the reasons given below in Paragraph 22 of the Judgment, which we read so that the approach of the High Court could be properly appreciated.
"It is necessary to consider the submission urged by learned Advocate General on behalf of the officers of the State and the public service commission.
The General submission was, that notings did not represent the con cluded decision of the Government, and there fore, the officers were not liable for con tempt of court.
The proposition advanced by learned Advocate General is rather too wide.
A Government file is not an individual 's private property.
It is public property.
The opinions expressed therein are liable to reduce the credibility and the binding nature of the orders passed by the High Court, and that would amount to denigration of the State Judiciary.
No officer has the right to abuse the High Court or to ignore the orders passed by the High Court.
I do not for a moment contend that for every noting in the file contrary to the view taken by the High Court will amount to contempt of court.
It will depend upon the nature of the view noted in the file and whether the nothings are intended to set the High Court 's order at nought mali ciously.
In the present case, the order of the High Court was explicit.
The Advocate General had advised explicitly that taking any steps to appoint Subh Chandra Jha ad hoc would amount to contempt of court and yet the offi cers were busy trying to find out how to ignore the High Court order.
When the High Court 's direction was to make the regular appointment through the 9 B.P.S.C. where was the occasion for seeking concurrence of ad hoc appointment of Subh Chandra Jha.
The whole file gives the impres sion that the officers in the state were not reconciled to the orders passed by the High Court.
I am, therefore, unable to hold that some of the officers were not liable for contempt of court." After considering the factual matrix before the Court, the Court held that there was no disobedience of its order by the Government and that the Government had taken a deci sion not to continue the ad hoc appointment but observed as follows: "The State of Bihar as a jurisdic person has certainly not committed contempt.
Because their Chief Minister Shri Chandresekhar Singh wrote on 8.1.
1984 that the High Court order must be obeyed.
On 10.3.
1984, the Chief Secretary noted that Shri Jha should not be granted ad hoc appointment . the State of Bihar therefore cannot be held to be guilty of contempt of this Hon 'ble Court . " After this finding, the High Court held some of the officers of the Government guilty solely on the basis of the views expressed by them in the files, which were not, in fact, accepted by the Government and which were only at the stage of suggestions and views.
Shri K.K. Venugopal, the learned counsel for the State contended that it would be unsafe to initiate action in contempt merely on the strength of notings by officials on the files, expressing their views and to do so would imperil the working of various depart ments in a Government in a democracy and would have far reaching consequences.
Some times a view expressed by an officer may be incorrect.
The view so expressed passes through various hands and gets translated into action only at the ultimate stage.
The views so expressed are only for internal use.
Such views may indicate the line of thinking of a particular officer.
Until the views so expressed culmi nate into an executable order, the question of disobedience of Court 's order does not arise.
Though the State Government have been found not guilty, the State has filed the appeal to protect its officers from independent and fearless ex pression of opinion and to see that the order under appeal does not affect the proper functioning of the Government.
It cannot be disputed that the appeal raises an impor tant question of law bearing upon the proper functioning of a democratic Government.
A Government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels, ultimately getting finality at the hands of the Minister 10 concerned.
Till then, conflicting opinions, views and sug gestions would have emanated from various officers at the lower level.
There should not be any fetter on the fearless and independent expression of opinions by officers on mat ters coming before them through the files.
This is so even when they consider orders of courts.
Officers of the Govern ment are often times confronted with orders of courts, impossible of immediate compliance for various reasons.
They may find it difficult to meekly submit to such orders.
On such occasions they will necessarily have to note in the files, the reasons why the orders cannot be complied with and also indicate that the courts would not have passed these orders if full facts were placed before them.
The expression of opinion by the officers in the internal files are for the use of the department and not for outside expo sure or for publicity.
To find the officers guilty for expressing their independent opinion, even against orders of courts in deserving cases, would cause impediments in the smooth working and functioning of the Government.
These internal notings, in fact, are privileged documents.
Notings made by the officers in the files cannot, in our view, be made the basis of contempt action against each such officer who makes the notings.
If the ultimate action does not constitute contempt, the intermediary suggestions and views expressed in the notings, which may sometimes even amount ex facie disobedience of the courts orders, will nor amount to contempt of court.
These notings are not meant for publi cation.
In our considered view the internal notes file of the Government, maintained according to the vales of business, is a privilege document.
if the Government claims privilege or quasi privilege regarding the notes file we will not be justified in rejecting the claim outright.
In this case, the notes file was brought to the Court not voluntarily by the Government.
It was summoned for by the Court.
The Court can always look into it.
The right of the Court to look into any files, can never be denied.
The contents of the notes file brought to Court got communicated to the Court because the Court looks into it.
It would be dangerous to find an action for contempt, for the views expressed in the notes file, on the discovery of unpleasant or unsavory notes, on a perusal of the notes file by the Court, after getting them summoned.
This would impair the independent functioning of the civil service essential to democracy.
This would cause impediments in the fearless expression of opinion by the officers of the Government.
The notings on files differ from officer to officer.
It may well be that the notes made by a particular officer, in some cases, technically speaking is in disobedi ence in an order of the Court or may be in violation of such order but a more experienced officer sitting above him can always correct him.
To rely upon the notings in a file for the purpose of initiat 11 ing contempt, in our view, therefore, would be to put the functioning of the Government out of gear.
We must guard against being over sensitive, when we come across, objec tionable notings made by officers, sometimes out of inexpe rience, sometimes out of over zealousness and sometimes out of ignorance of the nuances of the question of law involved.
Now, the functioning of Government in a State is gov erned by Article 166 of the Constitution, which lays down that there shall be a council of ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions except where he is required to exercise his functions under the Constitution, in his dis cretion.
Article 166 provides for the conduct of Government business.
It is useful to quote this Article: "166.
(1) All executive action of the Govern ment of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Gover nor, and the validity of an order or instru ment which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
" Articles 166(1)requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor.
This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification.
It prescribes the mode in which an executive action has to be expressed.
Noting by an official in the departmental file will not, therefore, come within this Article nor even noting by a Minister.
Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1).
Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed.
While clause (1) relates to the mode of expression, clause (2) lays down the manner in 12 which the order is to be authenticated and clause (3) re lates to the making of the rules by the Governor for the more convenient transaction of the business of the Govern ment.
A study of this Article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in Article 166(2).
Viewed in this light, can it be said that what is con tained in a notes file can ever be made the basis of an action either in contempt or in defamation.
The notings in a notes file do not have behind them the sanction of law as an effective order.
It is only an expression of a feeling by the concerned officer on the subject under review.
To exam ine whether contempt is committed or not, what has to be looked into is the ultimate order.
A mere expression of a view in notes file cannot be the sole basis for action in contempt.
Business of a State is not done by a single offi cer.
It involves a complicated process.
In a democratic set up it is conducted through the agency of a large number of officers.
That being so, the noting by one officer, will not afford a valid ground to initiate action in contempt.
We have thus no hesitation to hold that the expression of opinion in notes file at different levels by concerned officers will not constitute criminal contempt.
It would not, in our view, constitute civil contempt either for the same reason as above since mere expression of a view or suggestion will not bring it within the vice of sub section (c) of Section 2 of the , which defines civil contempt.
Expression of a view is only a part of the thinking process preceding Government action.
In the case of Bachhittar Singh vs The State of Punjab, [1962] Suppl.
3 SCR 713 a Constitution Bench of this Court had to consider the effect of an order passed by a Minister on a file.
which order was not communicated.
This Court, relying upon Article 166(1) of the Constitution, held that the order of the Revenue Minister, PEPSU could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by the said Article and was then communicated to the party concerned.
This is how this Court dealt with the effect of the noting by a Minister on the file: "The question, therefore, is whether he did in fact make such an order.
Merely writing some thing on the file does not amount to an order.
Before something amounts to an order of the State Government two things are necessary.
The order has to be expressed in the name of the Governor 13 as required by clause (1) of Article 166 and then if has to be communicated.
As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made.
Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file.
As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.
" This Court observed in this Judgment that business of State is a complicated one and has necessarily to be con ducted through the agency of a large number of official and authorities.
Before action is taken by the authority con cerned in the name of the Rajpramukh which formality is a Constitutional necessity, nothing done would amount to an order creating rights or casting liabilities on third par ties.
It is possible, observed this Court, that after ex pressing one opinion about a particular matter at a particu lar stage a Minister or Council of Ministers may express quite a different opinion which may be opposed to the earli er opinion.
In such cases, which of the two opinions can be regarded as the order of the State Government.
It was held that an opinion becomes a decision of the Government only when it must be communicated to the person concerned and that this is the essence of the matter.
We seek support from these observations for our purpose that notings in a notes file, not only of officers but even that of a Minister will not constitute an order to affect others unless it is done in accordance with Article 166(1) and (2) and communicated to the person concerned.
In England, absolute privilege is given to statements made by one officer of a State to another and such state ments are protected in the context of law of defamation.
Section 123 of the Evidence Act deals with privilege.
We have already stated that State communications or acts of State in Public interest, enjoy privilege and if that be so, disclosure in such communications made to the court will not constitute either contempt or defamation.
In any case such internal communications enjoy quasi privilege and a disclo sure in such communications cannot be made the basis of an action in contempt.
We have seen how the High Court approached the whole question from paragraph 22 extracted early in the Judgment.
It is clear that the High Court based its conclusion purely on the notings in the file.
The High Court felt that the officers of the Govern 14 ment did not like the orders passed by it and this, accord ing to the High Court, was evident from the files before it.
The High Court summed up its conclusion as follows in para graph 24 of the Judgment: "To sum up, contempt of this Court has been committed by Shri Deo Mishra, Legal Remem brancer, Mrs. Radha Sinha, I.A.S. then working as Additional Commissioner, Irrigation Depart ment and now working as Additional Finance Commissioner, Dr. Birkeshwar Prasad Singh, Sanjeewan Sharma and Subh Chandra Jha and I convict them accordingly.
In regard to sen tence, I am clearly of the view that there was motivation for it.
The hand of the moving spirit has, however, remained concealed.
It appears that the feeling amongst high officers of this state is that the High Court will not punish them for contempt of the High Court, as they are high officers and that all that the High Court will do in case of contempt of court is to give lectures and at times rant at them.
To remove this misconception it is essential to impose upon them a fine of Rs.50 (Rupees fifty) each on all the five persons mentioned above, in default to suffer simple imprisonment for two weeks.
The rule issued against J.C. Kundra, A.K.M. Nassan.
A.U. Sharma and Arjun Prasad is discharged.
" We see that the High Court felt that there was an at tempt on the part of the officers to disobey its orders.
The officers had tendered apology.
This was not accepted.
We are concerned more than anyone in upholding the dignity and prestige of the High Court, but we have a duty at the same time to lay down the law correctly.
We feel that the convic tion entered by the High Court purely on the basis of the notes file cannot be justified.
The High Court was under the impression that all the officers acted in unison to help the 5th respondent.
We now deal with his case separately.
He is described by the High Court as the Kingpin of the whole drama and according to the High Court everybody concerned acted for his benefit.
There is a veiled suggestion that he would not have achieved what he wanted except with the help of political forces and that there is an un seen hand behind what he achieved.
He was found guilty of abetting the contempt.
According to him he has been made a scape goat, that his is an unfortunate case of a journalist, appointed as Public Relation Officer on ad hoc basis for six months as recom mended by a selection commit 15 tee at an interview held along with seven other candidates.
He joined service after such a selection on 18 4 1983.
As per the order of the High Court, the period of six months for making the regular appointment to his post was to expire on 17 10 1983.
Long before this date, the Irrigation Depart ment had written to the Public Service Commission stating that the post held by the appellant was an ex cadre post and that concurrence may be accorded for his appointment.
This was an internal letter.
The Government sent a requisition to the Public Service Commission for advertising the post on 10 8 1984.
The Commission ultimately made the publication on 12 5 1985 stating the eligibility and criteria for selec tion.
It was this publication that promoted the filing of the writ petition in question in which the order that gave rise to the contempt proceeding was passed.
Regular appoint ment pursuant to the advertisement was stayed.
The appellant thus continued at the post.
According to him he has not disregarded the order of the High Court.
The Bihar Public Service Commission gave concur rence for his appointment for six months.
The post of P.R.O. being an ex cadre post since its creation in 1955, the post could not be filled up by giving promotion to anyone working in the department.
It was constituted to interview candi dates and to recommend a suitable person.
The appellant continues to function on the strength of the orders passed in his favour and he cannot be held to have committed con tempt of the High Court 's order.
He has stated that he had no notice in the writ petition filed by Kripalu Shankar or the writ petition from which the present contempt arise.
Though he was made a party no notice was ever issued to him and no direction was given to him by the High Court.
Accord ing to him, apart from a general observation that he abetted in disregarding the order of the High Court nothing specific has been attributed to him.
His unqualified apology was also not accepted by the High Court.
He also relies upon the fact that he was not paid salary from 18 10 1983 to date in re inforcement of his submission that he has not committed any contempt.
With respect to the learned Judges, we find it difficult to agree wholly with them regarding the finding that the appellant was guilty of contempt.
We do not have sufficient materials before us to conclude that the appellant exercised political clout to further his interest in utter disregard of the orders of the Court.
Although it may be said that the conduct of the appellant is in some measure suspect, we do not find sufficient justification to enter a finding that he is guilty of contempt and that he acted in utter disregard of the High Court 's order.
It is useful to remember that apart from the notes file, there is no indepen 16 dent material before us to held that the appellant had committed contempt.
The Government pleader and the Advocate General had clearly advised the Government to act in accord ance with the directions given by the High Court.
The Minis ter who is the ultimate authority also acted in obedience to the orders of the High Court.
That being so, we find it difficult to agree with the finding that he is guilty of criminal contempt.
The High Court felt that his was not a fit case to accept the unqualified apology tendered.
Howev er, we find, that on materials placed before us, it is not proved beyond doubt that he had committed contempt.
We would, therefore, give him benefit of doubt and purge him of the contempt found against him.
We would like to outline the general principle on which confidentiality of State documents should be protected.
The general principle is that if a person is involved in litiga tion, the Courts can order him to produce all the documents he has which relate to the issues in the case.
Even if they are confidential, the Court can direct them to be produced when the party in possession does not produce them, for the other side to see or at any rate for the Court to see.
When the Court directs production of those documents there is an implied understanding that they will not be used for any other purpose.
The production of these documents in ordinary cases is imposed with a limitation that the side for whose purpose documents are summoned by the Court cannot use them for any purpose other than the one relating to the case involved.
Miss Harman 's case Home office vs Harman, may give some assistance for this aspect of our discus sion.
The facts are as follows: Miss Harman, a Solicitor, acted for a criminal, Michael Williams who was in prison serving a long sentence for robbery of the bank.
He complained that he was subjected to cruel and unusual punishments while in prison contrary to the Bill of Rights and accordingly brought an action for damages against the Home Office.
Miss Harman acted for him as a legal aid counsel.
Miss Harman got an order for discov ery against the Home Office.
The Home Office did not raise any objection regarding the production of the documents.
However, it objected the use of the documents by the Group, called "The National Council for Civil Liberties".
Accord ingly the documents were brought to Court and they were read out in open Court.
Miss Harman passed the bundles of the documents to a journalist and a write up appeared in 'The Guardian ' which was highly critical of the Home Office.
The Home 17 Office took proceedings against Miss Harman for contempt of Court.
She was held guilty for contempt by the High Court and was confirmed by the Court of Appeal and by the House of Lords.
In the Court of Appeal, Lord Denning, despite his liberal views, while upholding the right of the Court to read documents relating to cases while conceding also the liberty to those present in Court to listen when those documents were read and the reporter to take down what was read, did not extend to the press a right to any further use of the confidential documents or any further dissemination of their contents without the consent of the owner.
It is of no use to plead the freedom of the press, he said, that freedom is itself subject to restriction.
Public confiden tial documents, it was said, should be kept confidential in the public interest and should not be exposed to the ravages of outsiders.
When the House of Lords ' decision in Harman vs Secretary of State for the Home Department, upholding the Court of Appeals was rendered, there was great hue and cry that the ruling meant "a black day for press freedom . ".
Even so, Lord Denning regretted that the Court ever ordered disclosure of the documents and observed that the "legal milestone will have to be taken up and set back a bit." In Bachittar Singh 's case (supra), privilege was claimed regarding the production of which was sought, embodied the minutes of the meetings of the Council of Ministers showing the advice which the Council ultimately give to the Rajpra mukh.
This Court held that these documents fell within the category of documents relating to the affairs of State within the meaning of Section 123 of the Evidence Act and were protected under the said Section.
Though the ratio of this decision outlines the conservative view in the law relating to privilege, we are not unmindful of the fact that the doctrine of privilege received a shock treatment against the State at the hands of this Court in the Judges ' case, S.P. Gupta & Ors.
vs Union of India and others etc.
etc., [1982] 2 SCR 365.
May we say that the legal milestone in Gupta 's case, also needs a retreat, a bit.
Before parting with this case we would like to observe the need for restraint and care in dealing with the internal files of the Government.
We have already indicated its privileged position and limited areas where exposure is permissible of the notings in the file.
This is not to say that absolute privilege can be claimed of its exposure and protection from the view of Courts.
But what is to be borne in mind is that the notings in the departmental files by the hierarchy of officials are meant for the independent dis charge of official duties and not for exposure outside.
In a democracy, it is absolutely necessary that its steel frame in the form of civil service is permitted to express itself 18 freely uninfluenced by extraneous considerations.
It might well be that even orders of Court come in for adverse re marks by officers dealing with them, confronted with diffi cult situations to straight away obey such orders.
Notings made on such occasions are only for the benefit of the officers concerned.
When a subordinate official commits a mistake higher official will always correct it.
It is neces sary for Courts also to view such notings in the proper perspective.
In this case, the Court, after looking into the notes file could have passed appropriate orders giving relief to the affected party and expressing its displeasure at the manner in which its order was implemented instead of initiating action on the notings made in the file.
That way the Court would have enhanced its prestige.
It will not serve either the healthy working of the civil service, public interest or democratic norms to pro ceed in contempt against officials solely on the basis of minutes in the internal files, notings which might even be unsavory or even derogatory to an order of the Court, but which get ultimately corrected by the head of the depart ment, ending with an order under Article 166(1) and (2) in the name of the Governor in the proper form.
We are con scious of the fact that the learned Judges felt that there was a deliberate attempt to act against their order.
We are not unmindful of the indignation shown by them at the not ings in the file.
The only reason why we feel constrained to disagree with the High Court 's order is our anxiety to delineate the limits of judicial power while dealing with files of the Government and also of the Public Service Commission, a high Constitutional authority.
It is necessary to have mutual respect among the various wings of the admin istration, in the process of disposal of justice.
We allow these appeals and discharge the contempt orders passed by the High Court with utmost reluctance in view of the far reaching consequences that would flow if the judg ment was allowed to stand.
We are happy that the appellants have tendered their regret and apology to the High Court and have reiterated their regret in this Court also.
H.L.C. Appeals allowed.

summary/full:
The first Respondent who was discharging the functions of a Public Relations Officer in the Bihar Irrigation De partment when that post fell vacant in 1979, filed a writ petition claiming the post for himself when another person was appointed to that post for six months.
At the time of hearing, it was represented on behalf of the State that the other person had been appointed only on ad hoc basis for a period of six months and that after the expiry of that period, the matter would be referred to the Public Service Commission and that, at that stage, the case of the first Respondent would also be considered.
On this assurance, the petition was allowed to be withdrawn on 19th December, 1979.
However, the assurance was not respected and no reference was made to the Public Service Commission for making a regular appointment to the post, and, in April, 1983, yet another person was appointed to the post, again on ad hoc basis, and the same was challenged by 'another writ peti tion.
When that petition was heard, the Advocate General informed the High Court that the appointment was only ad hoc and gave the impression that a regular appointment would be made after the expiry of six months and, on that representa tion, the High Court disposed of the petition on May 4, 1983, directing inter alia, that the post should be filled up in a regular way, and that, in case the appointment was not made within a period of six months, the ad hoc appoint ment shall stand terminated.
The six months ' period was to expire on October 17, 1983, and according to the State Government, the Irrigation Department had written to the Public Service Commission on April 4, 1983 to give concur rence to the appointment of the ad hoc incumbent since it was an ex cadre post and he had been selected by a Selection Committee but that the concurrence was given only on.
April 2, 1985 and thereafter the matter was further examined with reference to the provisions of the Rules governing reserva tions and a decision was taken to send a requisition to the Public Service Commission for advertising the post.
Accord ingly, the post was advertised on May 12, 1985, setting out the eligibility criteria for selection to the post.
The 2 advertisement was challenged by yet another petition on the ground that the eligibility criteria had been so drafted as to suit only the ad hoc incumbent of the post.
The High Court, which summoned the relevant records from the Govern ment, felt, on their examination, that the direction given by it while disposing of the earlier writ petition on May 4, 1983 had been disregarded, and, issued notices to the appel lants calling upon them to show cause why they should not be punished for contempt for ignoring the order dated May 4, 1983.
The appellants expressed regret but contended that no contempt had been committed by them for the reason that expression of views in the notings made on the files, wheth er they were right or wrong, did not amount to contempt of Court, as no order had been passed appointing the ad hoc incumbent after October 17, 1983.
The officials of the Public Service Commission pleaded that the appointment of the ad hoc incumbent from October 18, 1983 should be treated as a fresh appointment, that they did not know about the order passed by the High Court, and that though concurrence was given, it had been withdrawn when the correct facts were made known to them.
The High Court, after going through the relevant files of the State Government and the Public Service Commission came to the conclusion that, although the State of Bihar as a juristic person was not liable for contempt for the reason that the Chief Minister had minuted that its order must be obeyed and the Chief Secretary had noted that the ad hoc incumbent should not be granted further ad hoc appointment, the appellants, inspire of the advice of the Advocate Gener al that taking any step to appoint the ad hoc incumbent would amount to contempt of Court, were busy trying to find out how to ignore its earlier order.
The High Court further observed that when its earlier direction was that regular appointment should be made through the Public Service Com mission, there was no occasion for seeking the concurrence of the latter for the appointment of the ad hoc incumbent.
According to the High Court, the whole file gave the impres sion that the appellant Officers were not reconciled to the orders passed by it earlier.
In these premises, the High Court convicted the appellants for contempt and the ad hoc incumbent of the post for abetting contempt sentencing each of them to a fine of Rs.50 in default to suffer simple imprisonment for two weeks.
Allowing the appeals and discharging the contempt orders passed by the High Court, HELD: Notings made by officers in the files cannot be made the basis of contempt action against each such officer who makes the notings.
[10D] 3 (i) A government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels, ultimately getting finality at the hands of the Minister concerned.
Till then, conflicting opinions, views and suggestions would have emanated from various officers at the lower level.
There should not be any fetter on the fearless and independent expression of opin ions by officers on matters coming before them through the files.
The expression of opinion in internal files are for the use of the department and not for outside exposure or for publicity.
To find officers guilty for expressing their independent opinion, even against orders of courts in de serving cases, would cause impediments in the smooth func tioning of the Government.
[9H; 10A C] (ii) Officers of the Government are often confronted with orders of courts which are impossible of immediate compliance for various reasons.
They may find it difficult to meekly submit to such orders.
On such occasions, they will necessarily have to note in the files, the reasons why the orders cannot be complied with and also indicate that the Court would not have passed those orders if full facts were placed before them.
The notings differ from officer to officer.
It may well be that the notes made by a particular officer, technically speaking, is in disobedience of an order of the Court or may be in violation of such order, but a more experienced officer sitting above him can always correct him.
We must guard against being over sensitive, when we come across objectionable notings made by officers, some times out of inexperience, some times out of over zealousness and some times out of ignorance of the nuances of the question of law involved.
[11A B] (iii) The functioning of the Government in a State is governed by article 166 of the Constitution.
A study of this Article makes it clear that the notings in a file get culmi nated into an order affecting rights of parties only when it reaches the head of the department and is expressed in the name of the Governor and authenticated in the manner provid ed in article 166(2).
Viewed in this light, it cannot be said that what is contained in a notes file can ever be made the basis of an action either in contempt or in defamation.
The notings in a notes file do not have behind them the sanction of law as an effective order.
It is only an expression of a feeling by the concerned officer on the subject under re view.
To examine whether contempt is committed or not, what has to be looked into is the ultimate order.
The expression of opinion in notes file at different levels by concerned officers will not constitute Criminal Contempt; it would not constitute Civil Contempt either, for the reason that mere expression of a view or suggestion will not bring it within the vice of sub section
(c) ors.
2 of the , [12A E] 4 Bachhittar Singh vs State of Punjab, [1961] Supp.
3 S.C.R. 713, relied on.
(iv) The internal notes file of the Government, main tained according to the Rule of Business, enjoys quasi privilege and a disclosure in such communications cannot be made the basis of an action in contempt.
The general princi ple on which confidentiality of State documents should be protected is that if a person is involved in litigation, the Courts can order him to produce all the documents he has which relate to the issues in the case.
Even if they are confidential, the Court can direct them to be produced when the party in possession does not produce them, for the other side to see, or, at any rate, for the Court to see.
When the Court directs production of these documents there is an implied understanding that they will not be used for any other purpose.
The production of these documents in ordinary cases is imposed with a limitation that the side for whose purpose documents are summoned by the Court cannot use them for any purpose other than the one relating to the case involved.
[10E F] Home Office vs Harman, ; Harman vs Secretary of State for the Home Department, and S.P. Gupta ' vs Union of India, [1982] 2 S.C.R. 365, referred to.
(v) In this case, the Court, after looking into the notes file could have passed appropriate orders giving relief to the affected party and expressing its displeasure at the manner in which its order was implemented instead of initiating action on the notings made in the file.
That way the Court would have enhanced its prestige.
[18B C]


judgement:
vil Appeal Nos. 4 125 28 of 1986.
From the Judgment and Order dated 3.1.
1986 of the Allahabad High Court in Writ Petition No. 422 of 1981, 5900, 4207 and 5899 of 1985.
With Special Leave Petition (Civil) No. 3371 of 1982.
From the Judgment and Order dated 22.4.1981 of the High Court of Delhi in Civil Writ Petition No. 823 of 1981.
S.S. Sharma for the Appellants in C.A. Nos. 4 125 28 of 1986.
Soli J. Sorabjee and Mrs. Madhu Sikri for the Petition ers in S.L.P No. 3371 of 1982.
S.N. Kacker and R.B. Mehrotra for Respondent No. 1 in C.A. No. 4 125 of 1986.
S.P. Gupta and R.B. Mehrotra for Respondent Nos. 2 to 26 in C.A. No. 4 125 of 1986.
Shanti Bhushan and R.P. Kapur for the Respondents in S.L.P. No. 337 1 of 1982.
The Judgment of the Court was delivered by DUTT, J.
In these appeals by special leave and in the Special Leave Petition the dispute relates to the seniority of erstwhile Officers Grade II and the Probationary/Trainee Officers in the Grade I of the State Bank of India.
In the lower level, the State Bank of India had two categories of officers, namely, Officers Grade I and Offi cers Grade II; the function of the former was managerial and that of the latter supervisory.
The conditions of service of these two categories of officers were, admit 121 tedly, governed by the State Bank of India (Supervising Staff) Service Rules, hereinafter referred to as 'the 1975 Rules '.
The 1975 Rules were not framed under the rule making power of the Government, as conferred by section 49 of the , but under section 43 of the Act, sub section(1) of which provides that the State Bank may appoint such number of officers, advisers and employees as it considers necessary or desirable for the efficient per formance of its functions, and determine the terms and conditions of their appointment and service.
Sub section (2) of section 43 provides that the officers, advisers and employees of the State Bank shall exercise such powers and perform such duties as may, by general special order, be entrusted or delegated to them by the Central Board.
Although the Officers Grade I were superior in 'rank to the Officers Grade II, there was little difference in the pay scales of these two categories of officers.
The duties, which were to be performed by Officers Grade I and Officers Grade II, were also similar in nature.
Indeed, with the expansion of the: banking activities, a large number of Officers Grade II were required, to perform managerial duties which normally were performed by Officers Grade I. The Officers ' Federation of the State Bank of India compris ing both Officers Grade I and Grade II had been demanding the abolition of the distinction between these two Grades.
The Bank, however, had been successfully resisting the demand made by the Officers ' Federation from time to time.
The Federation had, at one time started taking resort to agitational method in order to force the Bank to abolish the theoretical distinction between Officers Grade I and Offi cers Grade II.
In the mean time, another external factor had crept into the situation.
The Government had appointed a Committee, known as Pillai Committee, for considering a question of standardisation of pay and allowances of the officers staff in the nationalised Banks.
After the Pillai Committee had submitted its report, the Government declared its intention to apply the recommendations of the Pillai Committee to the State Bank of India as well.
According to the recommenda tions of the Pillai Committee, there should not be any distinction between Officers Grade I and Grade II.
The Committee recommended four Grades for officers and had provided for only one scale at the junior management level.
Four Grades of officers are as follows: 1.
Top Executive Grade.
122 2.
Senior Management Grade.
Middle Management Grade.
Junior Management Grade.
After proposals and counter proposals between the Executive Committee of the Central Board of the State Bank of India and the Officers ' Federation, the Committee agreed to do away with the distinction between Officers Grade I and Grade II, who would be placed in a new cadre, called Junior Management Grade, having a scale of pay being Scale I Rs.
700 40 900 50 1100 EB 1200 60 1800.
It was further agreed that the Officers Grade II would be junior to the existing Officers Grade I and the seniority list would be prepared accordingly.
After the said agreement was reached between the Execu tive Committee of the Central Board of the State Bank of India and the Officers ' Federation, the Central Board, in exercise of the powers conferred by sub section (1) of section 43 of the , passed an order, called State Bank of India Officers (Determination of Terms and Conditions of Service) Order, 1979, for short 'the Order ', determining certain terms and conditions of service of officers in the Bank.
Some of the provisions of the Order which are relevant for our purpose are extracted below: "1.(1)This order may be called State Bank of India Officers (Determination of Terms and Conditions of Service) Order, 1979.
(2) This order shall come into force on the 1st day of October 1979.
(1) This order shall apply to the existing officers of the Bank and 'to the officers of the Bank who are appointed or promoted to any of the grades mentioned in paragraph 4 and to such other employees of the Bank to whom it may be made applicable by the Central Board or the Executive Committee or the competent authority to the extent and subject to such conditions as it may decide.
(2) It shall not apply, except to the extent specified by the Central Board or the Executive Committee or the 123 competent authority, to an officer during his tenure of service outside India or to employ ees engaged in any country outside India and serving there.
In this order, unless there is anything repugnant to the subject or context (a) "Appointed Date" means the 1st October 1979; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (h) "Existing Officers" means all officers in the service of the Bank immediately prior to the appointed date and to whom any of the following sets of Rules as amended or as deemed to have been amended by appropriate resolutions of the Central Board or the Execu tive Committee are applicable, namely: (i) Rules governing the service of Officers in the Imperial Bank of India; (ii) Rules governing the service of Assistants in the Imperial Bank of India; and (iii) State Bank of India (Supervising Staff) Service Rules; 4.
(1) There shall be the following four grades for officers with the scales of pay specified against each of the grades: (A) Top Executive Grade: Special Scale Rs.3500 (fixed) Scale VII Rs. 3250 125 3500 Scale VI Rs.3000 125 3250 124 (B) Senior Management Grade: Scale V Rs .2500 100 3000 Scale IV A Rs.2300 100 2600 Scale IV Rs. 2000 100 2400 (C) Middle Management Grade: Scale III Rs. 1800 75 2250 Scale II Rs. 1200 70 1550 75 2000 (D) Junior Management Grade: Scale Rs.700 40 900 50 1100 EB 1200 60 1800 (2) Notwithstanding anything con tained in subparagraph (1), a Probationary Officer and a Trainee Officer shall, on ap pointment, be placed at the stage of Rs.860 in Scale I in the Junior Management Grade.
. . . . . . . . . . . . . . . . . 7.
Subject to the provisions of paragraph 6, existing officers serving in the grades and scales of pay mentioned in column 1 of the table given in Schedule I to this order shall be placed as on the appointed date in the grade and scale specified there against in column 2 of the said schedule.
Provided that any difficulties or anomalies arising out of the above placement shall be referred to a committee of such persons as the Chairman of the Bank may ap point and the decision of that committee in this regard shall be final.
(1) Every existing officer placed in any of the new grades and scales of pay in accordance with paragraph 7, shall be fitted at such stage in the new scale of pay corre sponding to the existing grade and scale as specified in Schedule II to this order.
125 (2) Subject to sub paragraph (3), on being so fitted in the new scale of pay, such officer shall be eligible to draw the next increment , if any, in such new scale on the first day of the month in which he would have been eligible to draw increment in terms of the provisions in this behalf prior to the appointed date.
(3) Where two or more officers having different seniority in the scales of pay immediately before the appointed date are fitted at the same stage in the new scale of pay, different months may be fixed for the eligibility of such officers for the next increment in the new scale of pay.
(4) The mere fact that on the ap pointed date an officer happens to be posted in a post categorised as that of a grade or scale higher than the one in which he is placed in accordance with the provision of paragraph 7 will not by itself entitle that officer to any higher placement or fitment.
" The Order was actually made and published on 19th Decem ber, 1979.
but in view of paragraph 1(2) it came into force on the first day of October, 1979.
Under paragraph 2(1), it is inter alia provided that the Order shall apply to the existing officers of the Bank and to such employees of the Bank to whom it may be made applicable.
Under paragraph 3(h), the expression "existing officers" has been defined as meaning all officers in the service of the Bank, immediately prior to the appointed date, that is to say, October 1, 1979.
Thus, it follows prima facie that the Order will apply only to the existing officers, that is, the officers who were in the service of the Bank immediately prior to the appointed date, which is October 1, 1979.
It is not disputed that no Order has been passed by the Central Board or the Executive Committee or the competent authority directing the application of the Order to employees of the Bank other than the existing officers, as provided in paragraph 2(1).
Before the Order was made and published on December 19, 1979, certain Probationary Officers and Trainee Officers were appointed by the Bank in Grade I on October 30 and October 31, 1979.
These Probationary/Trainee Officers, being Officers in Grade I were, on the dates they were appointed, superior in rank to the Officers Grade II.
These Probation ary/Trainee Officers were fitted to the Junior Management Grade: Scale I, after the Order was passed ereat 126 ing such a Grade at Rs.960 p.m. with effect from 30/31 10 1979.
These Probationary/Trainee Officers, however, claimed that they were seniors to the erstwhile Officers Grade II and that they should be placed above such Officers Grade II in the seniority list.
As the Bank had refused the claim of these Probationary/Trainee Officers, to seniority over the erstwhile Officers Grade II in the Junior Management Grade, some of them filed writ petitions before the Allahabad High Court and some before the Delhi High Court.
The Bank, howev er, opposed the writ petitions and contended that as they were not the existing officers, that is to say, employees of the Bank on October 1, 1979, which is the appointed date, they could not be given the seniority over the erstwhile Grade II Officers, who were the existing officers within the meaning of the expression under paragraph 3(h) of the Order.
The Allahabad High Court has taken the view that the expression "existing officers" has to be read as including the Probationary Officers and Trainee Officers, otherwise a repugnancy between the definition of "existing officers" and the provisions of paragraphs 7 and 8 of the Order will arise.
Further, it has been held that the notional date of the coming into force of the Order, namely, 1 10 1979, is only to protect the emoluments of the officers and nothing else.
In that view of the matter, the Allahabad High Court directed the Bank to prepare the seniority list of its officers in the light of the observations made in the judg ment.
Although it was not specifically directed that the Probationary/Trainee Officers should be placed above the officers in the erstwhile Grade II in the seniority list, yet that would follow from the findings made by the High Court.
On the other hand, the Delhi High Court took a contrary view and dismissed the writ petitions.
Though according to the Allahabad High Court, the Probationary/Trainee Officers should be placed above the erstwhile officers in the Grade II, according to the Delhi High Court they would be placed below the Officers in the Grade II.
Hence, these Appeals by the State Bank of India and the Special Leave Petition by the Probationary/Trainee Officers.
Mr. Kacker, learned counsel appearing on behalf of the Probationary/Trainee Officers, has urged that the Allahabad High Court was justified in holding that the writ petition ers appointed as Probationary/Trainee Officers on 30/31 10 1979, should be considered as the existing officers within the meaning of paragraph 3(h) of the Order.
It is submitted by him that the Bank itself had treated them as 127 existing officers.
In support of that contention, the learned counsel has drawn our attention to the fact that the Bank had fitted the Probationary/Trainee Officers appointed on 30/31 10 1979 to the Junior Management Grade: Scale I at Rs.960 p.m.
Such fitment, according to the learned counsel, was made under paragraphs 7 and 8 of the Order.
Paragraph 7 provides for the placement of existing officers on the appointed date in the corresponding grades and scales.
It lays down, inter alia, that the existing officers shall be placed as on the appointed date in the grade and scale specified in column 2 of Schedule I. Item No. 9 of column 2 specifies the Junior Management Grade: Scale I. Paragraph 8(1) provides that every existing officer placed in any of the new grades and scales of pay in accord ance with paragraph 7, shall be fitted at such stage in the new scale of pay corresponding to the existing grade and scale as specified in Schedule II to the Order.
It appears that by a circular dated June 24, 1980, the following direc tions were given by the Chief General Manager, State Bank of India: "Officers who were promoted on or after the 1st October 1979 but upto 31st December 1979, should be first fitted in the old scale in terms of the then existing formula and there after their basic pay should be refixed in the new scale for Junior Management Grade Scale I in accordance with the table given below: Basic pay in the Basic pay in the Basic pay in the old clerical scale old officer 's scale junior manageme nt G.S.I on the date of promotion Upto 350 500 950 370 540 1000 390 540 1000 420 580 1200 450 620 1200 480 665 1260 515 710 1320 550 755 1380 The basic pay of Probationary Officers and Trainee Officers who were appointed during the period 1st October 1979 to 3 1st December 1979, will also be fixed on the same basis.
" 128 It is submitted on behalf of the Probationary/Trainee Officers that it is clear from the said circular that they were also treated as existing officers, otherwise they could not be given the same benefit as the other existing officers of the Bank.
The existing officers, as defined in paragraph 3(h), means all officers in the service of the Bank immediately prior to the appointed date.
Admittedly, the Probationary/Trainee Officers were not in the service of the Bank immediately prior to the appointed date, that is, October 1, 1979.
They cannot, therefore, be held to be the existing officers in the face of the definition of the expression in paragraph 3(h) of the Order.
It is difficult to accept the contention of the Proba tionary/ Trainee Officers that they were treated by the Bank as existing officers merely because they were fitted to the Junior Management Grade: Scale I and given a higher start at Rs.960 p.m.
It is incorrect to say that when an employee is fitted to a particular scale of pay of another cadre, he does not become a member of that cadre.
In the instant case, the Probationary/Trainee Officers were placed in the corre sponding scales of pay in the Junior Management Grade for the purpose of fitment in the new scales of pay.
Indeed, as stated already, they were fitted to the Junior Management Grade: Scale I at Rs.960 p.m.
It may be that such fitment has been made by the Bank following the principles as laid down in paragraphs 7 and 8 of the Order, presumably with a view to removing any disparity between Officers Grade I and Officers Grade II in the Junior Management Grade, but it will be difficult to accept the contention made on behalf of the Probationary/Trainee Officers that they were treated as existing officers and such fitment was made under paragraphs 7 'and 8 of the Order.
The Probationary/Trainee Officers appointed on 30/31 10 1979, that is, after 1 10 1979, the appointed date, are not existing officers within the meaning of paragraph 3(h) of the Order and the Bank could not treat them as such for the purpose of fitment or giving a higher scale of pay.
We are unable to subscribe to the view of the Allahabad High Court that unless the expression "existing officers" is read as including the Probationary/Trainee Officers, there will be a repugnancy between the definition of existing officers, as contained in paragraph 3(h), and the provisions of paragraphs 7 and 8 of the Order.
This view of the Allaha bad High Court proceeds on the assumption that the Proba tionary/Trainee Officers having been given the benefit of extra emoluments by fitting them in the Junior Management Grade: Scale I, 129 they were treated as existing officers.
In our opinion, if the Probationary/Trainee Officers are treated as existing officers.
it will be doing violence to the provisions of paragraph 3(h).
We do not think that the definition of the expression "existing officers", as given in paragraph 3(h) is, in any way, repugnant to the provisions of paragraphs 7 and 8 of the Order.
On the contrary, it is quite in harmony with the said provisions and also the other provisions of the Order.
There is no ambiguity in the definition of "existing officers" and in regard to paragraphs 7 and 8 of the Order there is no repugnancy of the definition to the subject or context.
Repugnancy of the definition of any term may arise only if such definition does not agree with the subject or context of a particular provision.
But, surely, any action not in conformity with the provision of the definition clause will not render the definition of a term repugnant to the subject or context of any provision of the statute containing the term.
We are also unable to accept the convention of Mr. Kacker that the definition of "exist ing officers" is only illustrative and not exhaustive and that such narrow definition does not fit in everywhere.
The definition does not give any illustration whatsoever, and it is wrong to submit that the definition is illustrative.
On the contrary, the definition trader paragraph 3(h) is quite specific and points to only one class of officers, that is, the officers who were in the service of the Bank immediately prior to the appointed date and to whom any of the rules, as mentioned in that paragraph, are applicable.
In our view, therefore, the Probationary/ Trainee Officers appointed on 30/31 10 1979, that is, after the appointed date, are not existing officers.
In this connection, we may notice the argument of Mr. Gupta, learned counsel appearing on behalf of some of the Probationary/ Trainee Officers, that the merger of Officers Grade II and Grade I into the Junior Management Grade was only for the purpose of fitment in the higher scale of pay and not for the purpose of seniority.
It has been already stated that it was the demand of the Officers ' Federation, representing both Officers Grade I and Officers Grade II, that the distinction between these two Grades should be abolished in every.
respect and, ultimately, it was agreed that they would be placed in one grade, that is, the Junior Management Grade, having a higher scale of pay, subject to this that the Officers Grade I will be above the Officers Grade II in the seniority list.
It appears from the Circular No. 9 issued by the Officers ' Federation, that the Pillai Committee 's recommendations would be implemented in the State Bank Group from October 1, 1979.
Thus, it was agreed by the Officers ' Federation that a scheme, namely, the merger of Officers Grade I and Officers Grade II into 130 Junior Management Grade would take place with effect from October 1, 1979 and that has been exactly given effect to by the Order under which the existing Officers, that is, the officers who were in the employment of the Bank immediately prior to October 1, 1979, would be placed in the new Junior Management Grade and to Scale I, as contained in Schedule I to the Order.
In paragraph 2(1) of the Order, provision has been made for the application of the Order to other offi cers.
Thus, it is clear that all the officers of the Bank in the lower level before the Probationary or Trainee Officers were appointed on 30/31 10 1979 agreed that they would merge into a new Grade and Officers Grade I would be senior to the Officers Grade II.
This was the result of the recommenda tions of the Pillai Committee suggesting that there should be one grade for the Officers Grade I and II in the lower level.
It may be that Pillai Committee did not make any recommendation with regard to seniority, but when two grades of officers are merged into a new grade, the question of inter se seniority will automatically arise and it will be the duty of the employer to fix the seniority.
Indeed, paragraph 18 of the Order lays down the principles for computing the seniority of the officers of the Bank.
But, under paragraph 18(5) of the Order, the seniority among the existing officers will remain the same.
In other words, the Officers Grade I will remain seniors to Officers Grade II.
Another contention that has been made by Mr. Gupta for the Probationary Trainee Officers is that these officers have to undergo tests which are more stringent than the tests to be undergone by the Grade II Officers and, as such, the Probationary/Trainee Officers, though they were appoint ed on 30/31 10 1979, should not be placed under the Officers Grade II in the seniority list.
This, in our opinion, is an argument in despair.
The question is not whether the Proba tionary/ Trainee Officers have to undergo more stringent tests than the tests to be undergone by the Grade II Offi cers, but the question is whether the Probationary Trainee Officers are existing officers or not, that is to say, whether they were in the employment of the Bank immediately prior to October I, 1979.
As the Probationary/Trainee Offi cers are not existing officers, they cannot claim seniority over the Officers Grade II, who are existing officers.
It is next contended that the Bank had no authority to give retrospective operation to the Order with effect from October 1, 1979, inasmuch as section 43 of the under which the Order has been passed, does not authorise the Bank to pass any such Order with retrospective effect.
It is now well settled that unless the 131 statute, under which the rules are flamed by the rule making authority, does not specifically authorise the making of rules with retrospective effect, such authority cannot frame any rule with retrospective effect.
(See Cannanore Spinning and Weaving Mills Ltd. vs Collector of Customs and Central Excise, Cochin & Ors., ; ; Income Tax Officer, Alleppey vs
M.C. Ponnoose & Ors., ; ; Hukam Chand etc.
vs Union of India & Ors.
, ; and Regional Transport Officer, Chittoor, & Ors.
vs Associated Transport Madras (P) Ltd. & Ors., ; Mr. Shanti Bhushan, learned counsel appearing on behalf of the State Bank of India, however, submits that the im pugned Order has not been made retrospective, as contended on behalf of the Probationary/Trainee Officers.
All that has been done by the Order is that the Officers Grade I and Grade II have been merged into one category, namely, Junior Management Grade with effect from October 1, 1979.
These Officers were already employees of the Bank before October 1, 1979 and, as such, they are existing officers within the meaning of paragraph 3(h) of the Order.
Further, it is submitted by him that the Bank after considering the injus tice done 'to the Officers Grade II numbering about 15,000, sought to remove the same by abolishing the distinction between Officers Grade I and Officers Grade II in terms of the recommendations of the Pillai Committee by the impugned Order with effect from October 1, 1979.
It may be that there was some delay in publishing the decision of the Bank, that is, the Order, but it cannot be said that the Order is retrospective in operation.
Mr. Shanti Bhushan points out that in V.T. Khanzode & Ors.
vs Reserve Bank of India & Anr., this Court upheld the decision of the Reserve Bank of India as regards the introduction of common seniority, inter group and mobility amongst different grades of officers belonging to Group I, Group II and Group III with retrospective effect from May 22, 1974.
In that case, officers belonging to Group I urged that the scheme should be brought into effect from January 1, 1976, while those belonging to Groups II and III wanted the scheme to be brought into effect from January 1, 1970.
The Central Board of the Reserve Bank struck a balance by choosing the date May 22, 1974.
Chandrachud, C.J. delivering the judgment of the Court held that it was the best solution in the peculiar circumstances of the case and that in order to rectify the imbalances and anomalies caused by the compartmental wise and group wise seniority, it was necessary to give retrospective effect to the combined seniority list.
Further, it has been 132 observed by the learned Chief Justice that no scheme govern ing service matter can be fool proof and some section or the other of employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled.
Mr. Shanti Bhushan has also placed reliance upon the observation of Sabyasachi Mukharji, J., in Reserve Bank of India vs C.N. Sahasranaman, [1986] Suppl.
SCC 143.
It has been observed by Mukharji, J that whether there has been denial of equality or any constitutional right infringed or not cannot be published where interests of large number of people are concerned, in judged the abstract.
Further, it has been observed that in service jurisprudence there cannot be any service rule which would satisfy each and every employee and its constitutionality has to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees.
Relying upon the above two decisions of this Court, it is submitted on behalf of the State Bank of India that in the instant case also a large number of employees, particu larly the Officers Grade II numbering about 15,000, have been benefitted.
Indeed, justice has been done to these 15,000 employees as agreed to by the Officers ' Federation of the Bank comprising both Officers Grade I and Officers Grade II.
Counsel submits that existing officers have been given the benefit of the Junior Management Grade: Scale I with effect from 1.10.1979.
So, the Order was also given effect to from that date, which is the appointed date.
It is sub mitted that the Order has been given effect to from 1 10 1979 in the interest of a large number of employees of the Bank.
The Probationary/Trainee Officers, who are only 900 in number and appointed on 30/31 10 1979, have no locus standi to challenge the Order or the merger of Officers Grade I and Officers Grade II in one cadre, namely, Junior Management Grade, as per the recommendations of the Pillai Committee.
It is not disputed that negotiations had been going on between the Bank and the Officers ' Federation as to how and in what manner the recommendations of the Pillai Committee accepted by the Government would be given effect to.
Ulti mately, it was decided that the recommendations would be given effect to from 1 10 1979 by merging the two categories of officers who were in the employment of the Bank, immedi ately prior to 1 10 1979 into one category, namely, the Junior Management Grade.
Although the Order was actually published on December 19, 1979, the officers of the Bank, who were there on or before October 1, 1979, were aware of the fact that the Order would be given effect to from Octo ber 1, 1979, as agreed to between 133 the Bank and the Officer 's Federation.
The appointed date is relevant for the purpose of applicability of the Order to the officers, who had been there in the service of the Bank immediately prior to the appointed date.
Mr. Soli Sorabjee, learned counsel appearing on behalf of the petitioners in the Special Leave Petition No. 337 1 of 1982, has drawn our attention to a telex message which has been communicated to all the petitioners instructing them to complete their formalities and to join the duty well before October 31, 1979 in their own interest.
Telegrams were also sent to the petitioners to the following effect: "Reference to your selection as Probationary Officer and our communications to you for immediate completion of necessary formalities.
We reiterate that the Pillai Committee 's recommendations are likely to be implemented shortly.
If you join after implementation thereof, you shall be governed by the revised terms of service and salary scales.
You are advised in your own interest to complete the remaining formalities viz., (1) acceptance of our offer by 20th October, 1979 and be ready to join duty around 25th idem at the place to be intimated to you after completion of for malities, failing which the risk of change in the salary structure and other conditions will be yours.
" From the telex and telegraph messages, it is contended that they show that the Bank had decided to give effect to the Order with effect from 30/31 10 1979.
We are unable to accept this contention.
There is no indication in the telex or telegram that the Order will be given effect to from October 30/31, 1979.
The telegram really mentions that if the petitioners join after implementation of the recommenda tions of the Pillai Committee, they will be governed by the revised terms of service and salary scales.
Indeed, it has been already noticed that after the appointment of the Probationary/Trainee Officers on 30/31 10 1979, they were fitted to the Junior Management Grade: Scale I and given a higher start at Rs.960 p.m.
The telex and the telegram to which our attention has been drawn, do not seem to be of any consequence to the Probationary/Trainee Officers and does not at all support their contention that the Order was intended to be given effect to from 30/31 10 1979.
It is next contended by the learned counsel.
appearing on behalf of the Probationary/Trainee Officers, that the impugned Order takes 134 away the vested fight of seniority of the Probationary/Trainee Officers with retrospective effect.
In elaboration of the contention, it is pointed out that on the day these Probationary/Trainee Officers were appointed, namely, on October 30/31 10 1979, they were admittedly seniors to the Officers Grade II.
This seniority of the Probationary/Trainee Officers has been taken away by giving retrospective operation to the Order.
It is submitted that the Bank has no authority to take away the vested right of seniority of the Probationary/Trainee Officers with retro spective effect.
On the other hand, it is contended by Mr. Shanti Bhushan, learned counsel appearing on behalf of the State Bank of India, that there is no question of vested right to seniority.
Seniority is relevant only for the purpose of promotion.
A right to be considered for promotion is a vested right, but a mere chance of promotion is not such a right.
It is submitted that the right of the Proba tionary/Trainee Officers to be considered for promotion has not been affected in the least by the Order, nor have their chances of promotion been affected.
Moreover, no order has been passed under paragraph 2(1) of the Order applying the same to the Probationary/Trainee Officers.
These Officers are outside the purview of the Junior Management Grade and, as such, they are precluded from challenging the seniority of the erstwhile Officers Grade II, now placed in a com pletely different category.
In other words, it is the con tention of the State Bank of India that the Probationary/Trainee Officers, who have been appointed on 30/31 10 1979 as Officers Grade I, cannot challenge any benefit that is conferred on the officers of a different cadre, namely, the Junior Management Grade.
It is not necessary for us to decide whether there is any vested right to seniority or not.
The Probationary/Trainee Officers have not been brought within the purview of the new cadre, that is, the Junior Management Grade.
Indeed, it is the complaint of the learned counsel, appearing on behalf of these Officers, that they have been totally ignored by the Order inasmuch as no provision has been made about them in the Order.
We have already noticed that it was the contention of the Officers ' Federation that there should not be any distinction in the status of Offi cers Grade I and Officers Grade II.
It was urged that such distinction should be abolished and both these categories of officers should be placed in one category so that they have the same status and position.
The State Bank of India ac cepted the demand of the Officers ' Federation and the dis tinction has been removed.
In these circumstances, it is apparent that the Probationary/ Trainee Officers being Officers Grade I, are of the same status and position as the Officers Grade II.
Admittedly, the erstwhile Officers 135 Grade II were appointed much earlier than the Probationary/Trainee Officers, who were the writ petitioners in the High Courts.
Although they had to perform almost the same duty and there was no difference between their posi tions, they had to suffer an artificial distinction and placed below the Officers Grade I, who were considered to be superior in rank to the Officers Grade II.
After the Bank had decided that both these two categories of officers were same in status and position and such decision having been implemented, we are afraid, it is difficult to accept the contention made on behalf of the Probationary/Trainee Offi cers that they should be considered senior to the erstwhile Officers Grade II.
Moreover, there is some force in the contention made on behalf of the Bank that as the Probationary/Trainee Officers are not in the Junior Management Grade which is a different cadre, they have no locus standi to challenge any benefit conferred on the officers of the Junior Management Grade comprising erstwhile Officers Grade I and Officers Grade II, as were in the employment of the Bank prior to October 1, 1979.
It is submitted by Mr. Shanti Bhushan that the Proba tionary/ Trainee Officers, with whom we are concerned, have not been prejudiced in the least by the Order having come into force on and from October 1, 1979.
The learned counsel has categorically stated before us that all these officers will be included in the Junior Management Grade and an order in that regard will be passed under paragraph 2(1) of the Order.
It is pointed out by him that everybody will be considered for promotion from the Junior Management Grade to the Middle Management Grade.
Thus, even though the Proba tionary/Trainee Officers are placed below the erstwhile Officers Grade II, they will be allowed to appear at the written test, one of the modes prescribed for promotion, along with others including the erstwhile Officers Grade II, provided they complete six years of service in Grade I. Apart from this, the Probationary/Trainee Officers have been fitted to the higher scale of pay in the Scale I of the Junior Management Grade, although they have not been formal ly included in that Grade.
In these circumstances, it cannot be said that the Probationary/Trainee Officers have been prejudiced by the Order.
We are sure that the Bank will take immediate steps for applying the order to the Probationary/Trainee Officers.
No other point has been urged on behalf of the parties.
For the reasons aforesaid, the judgment of the Allahabad High Court is set aside and the Civil Appeals are allowed.
The judgment of 136 the Delhi High Court is affirmed and the Special Leave Petition is dismissed.
All the Writ Petitions filed by the Probationary/Trainee Officers are also dismissed.
There will, however, be no order as to costs in any of these Appeals or in the Special Leave Petition.
P.S.S. Appeals allowed & Petition dismissed.

dataset_name: IN-Abs

summary/full:
Consequent to an agreement between the Executive Commit tee of the Central Board of the appellant Bank and its Officers ' Federation, in pursuance of the Pillai Committee Report, the Grade I and Grade II Officers discharging mana gerial and supervisory functions, were merged into the new Junior Management Grade.
It was agreed that Officers, of Grade II would be junior to the existing officers of Grade I and the seniority list would be prepared accordingly.
There after, in exercise of powers conferred by sub section
(1) of section 43 of the the State Bank of India Officers ' (Determination of Terms and Conditions of Service) Order, 1979 was made and brought into force with effect from October 1, 1979.
Paragraph 2(1) of that Order provided that it shah apply to the existing officers of the Bank and to such employees of the Bank to whom it may be made applicable.
Under paragraph 3(h) the expression "exist ing officers" was defined to mean officers in the service of the Bank immediately prior in the appointed date, i.e., October 1, 1979.
Paragraph 7 provided for the placement of existing officers on the appointed date in the corresponding new grades and scales.
Paragraph 8(1) provided for fitment of existing officers in the new grades, and scales of pay in accordance with paragraph 7, at a stage corresponding to the existing grade and scale.
Under paragraph 18(5) the seniori ty among the existing officers was to 116 remain the same, i.e., the Officers Grade I were to rank senior to Officers Grade II.
Certain Probationary/Trainee Officers, who were appoint ed by the Bank in Grade I on October 30/31, 1979 before the Order was made on December 19, 1979 flied writ petitions before the Allahabad High Court and some others before the Delhi High Court claiming seniority over the erstwhile Grade II Officers, in which it was contended for the Bank that since the petitioners were not the employees of the Bank on October 1, 1979, i.e., the appointed date, they could not be given seniority over the erstwhile Grade II Officers, who were the 'existing officers ' within the mean ing of the expression under paragraph 3(h) of the Order.
The Allahabad High Court took the view that the expres sion 'existing officers ' has to be read as including the Probationary Officers and Trainee Officers, otherwise a repugnancy between the definition of 'existing officers ' and the provisions of paragraph 7 and 8 of the Order will arise, that the notional date of the coming into force of the Order, viz., October 1, 1979 is only to protect the emolu ments of the officers and nothing else, and directed the Bank to prepare the seniority list of its officers accord ingly.
The Delhi High Court, however, took a contrary view and dismissed the writ petitions.
In these appeals by the Bank against the decision of the Allahabad High Court and Special Leave Petition by the Probationary/Trainee Officers against the decision of the Delhi High Court, it was submitted for the Probationary/Trainee Officers in support of their contention that they should be considered as 'existing officers ' within the meaning of paragraph 3(h) of the Order, that the Bank itself had treated them as 'existing officers ' by fitting them to the Junior Management Grade and giving them a higher start of Rs.960 p.m., that such fitment had been made by the Bank following the principles laid down in paragraphs 7 and 8 of the Order, that unless the expression 'existing offi cers ' is read as including 'Probationary/Trainee Officers ', three will be a repugnancy between the definition of 'exist ing officers ', as contained in paragraph 3(h) and the provi sions of the paragraphs 7 and 8 of the Order, that the definition of 'existing officers ' is only illustrative and not exhaustive, that the merger of officers of Grade II and Grade I into the Junior Management Grade was only for the purpose of fitment in the higher scale of pay and not for the purpose of seniority, that they have to undergo tests which were more stringent than the tests to be undergone by Grade II Officers and as such Probationary/Trainee 117 Officers, could not be placed under Officers Grade II in the seniority list, and that the Bank had no authority to give retrospective operation to the Order with effect from Octo ber 1, 1979 inasmuch as section 43 of the Act under which the Order has been passed, did not authorise the Bank to pass any such Order with retrospective effect.
For the Bank it was contended that the order had not been made retrospective, that all that has been done was that the Officers Grade I and Grade II, who were in the employment of the Bank immediately before October 1, 1979 have been merged into one category, namely, Junior Manage ment Grade, in terms of the recommendations of the Pillai Committee, that these Officers were already employees of the Bank before October 1, 1979 and as such they were 'existing officers ' within the meaning of paragraph 3(h) of the Order, that the Probationary/Trainee Officers, who were appointed on 30th/31st October, 1979 had no locus standi to challenge the Order or the merger of Officers Grade I and Grade II and that as no order has been passed under paragraph 2(1) of the Order applying the same to the Probationary/ Trainee Offi cers, they were outside the purview of the Junior Management Grade and, as such, were precluded from challenging the seniority of the erstwhile Officers of Grade II.
Allowing the appeals and dismissing the special leave petition, this Court.
HELD: 1.
The expression 'existing officers ' as defined in paragraph 3(h) of the State Bank of India Officers ' (Determination of Terms and Conditions of Service) Order, 1979 means officers in the service of the Bank immediately prior to the appointed date, i.e., October 1, 1979.
The Probationary/Trainee Officers who were appointed by the Bank on 30/31st October, 1979 after the appointed date could not, therefore, be held to be 'existing officers ' within the meaning of paragraph 3(h) of the Order.
[128B; F] 2.
It is incorrect to say that when an employee is fitted to a particular scale of pay of another cadre, he does not become a member of that cadre.
In the instant case, the Probationary/Trainee Officers were placed in the corre sponding scales of pay in the Junior Management Grade for the purpose of fitment in the new scales of pay.
It may be that such fitment has been made by the Bank following the principles as laid down in paragraphs 7 and 8 of the Order presumably with a view to removing any disparity between Officers Grade I and Officers Grade II in the Junior Manage ment Grade, but it cannot be said that they were treated as existing officers and such fitment was made under 118 paragraphs 7 and 8 of the Order.
The Probationary/Trainee Officers were not in the service of the Bank immediately prior to the appointed date.
As such the Bank could not treat them as existing officers for the purpose of fitment or giving a higher scale of pay.
[128D F; B] 3.1 Repugnancy of the definition of any term my arise only if such definition does not agree with the subject or context of a particular provision.
But any action not in conformity with the provision of the definition clause will not render the definition of a term repugnant to the subject or context of any provision of the statute containing that term.
[129BC] 3.2 In the instant case, there is no ambiguity in the definition of 'existing officers ', as given in paragraph 3(h) of the Order, nor is it in any way repugnant to the subject or context of paragraphs 7 and 8.
If the Probation ary/Trainee Officers are treated as 'existing officers ' it would be doing violence to the provision of paragraph 3(h).
[129B; A] 4.
The definition of 'existing officers ' in paragraph 3(h) does not give any illustration whatsoever.
On the contrary, it is quite specific and points to only one class of officers who were in the service of the Bank immediately prior to the appointed date and to whom any of the rules, as mentioned in that paragraph were applicable.
[129D] 5.
All the officers of the Bank at the lower level before the Probationary or Trainee Officers were appointed on 30/31 October, 1979 had agreed that they would merge into a new grade, and Officers Grade I would be senior to the Officers Grade ii.
When two grades of officers are merged into a new grade, the question of inter se seniority automatically arises and casts a duty on the employer to fix the seniori ty.
Paragraph 18(5) of the Order lays down that the seniori ty among the existing officers will remain the same, that b, the Officers Grade I will remain senior to Officers Grade II.
Therefore, it cannot be said that the merger was only for the purpose of fitment in the higher scale and not for purposes of seniority.
[130B D; 129F] 6.
The question is not whether the Probationary/Trainee Officers have to undergo more stringent tests than the tests to be undergone by Grade H Officers, but whether the Probationary/Trainee Officers were existing officers or not, that is to say, whether they were in the employment of the Bank immediately prior to October 1, 1979.
As they were not existing officers, they could not claim seniority over the Officers of Grade II.
[130FG] 119 7.1 Unless the statute, under which the rules are framed by the rule making authority, does not specifically autho rise the making of rules with retrospective effect, such authority cannot frame any role with retrospective effect.
[130H 131A] Cannanore Spinning and Weaving Mills Ltd. vs Collector of Customs and Central Excise, Cochin, & Ors.
, ; ; Income Tax Officer, Alleppey vs M.C. Ponnoose & Ors., ; ; Hukam Chand etc.
vs Union of India & Ors.
, ; and Regional Transport Officer, Chittoor, & Ors.
vs Associated Transport Madras (P) Ltd. & Ors., ; , referred to.
7.2 In the instant case, it cannot be said that the Order was retrospective in operation.
All that has been done by it is that the Officers Grade I and Grade II in the em ployment of the Bank immediately prior to October 1, 1979 have been merged into one category, namely, Junior Manage ment Grade.
Although the Order was actually published on December 19, 1979, the Officers of the Bank who were there on or before October, 1, 1979 were aware of the fact that the Order would be given effect to from October 1, 1979 as agreed to between the Bank and the Officers ' Federation.
The appointed date is relevant for the purpose of applicability of the Order to the Officers who have been there in the service of the Bank immediately prior to the appointed date.
[131E; C; 132G 133A] V.T. Khanzode & Ors.
vs Reserve Bank of India & Anr., and Reserve Bank of India vs C.N. Sahasra naman, [1986] Suppl.
SCC 143, referred to.
The distinction in the status of Officers Grade I and Grade II having been abolished in the instant case, it is apparent that the Probationary/Trainee Officers being Offi cers of Grade I were of the same status and position as the Officers of Grade II.
Admittedly, the erstwhile Officers of Grade H were appointed much earlier than the Probationary/Trainee Officers.
They cannot, therefore, be considered senior to the erstwhile Officers Grade II.
[134G 135AB] 9.
The Probationary/Trainee Officers have not been brought within the purview of the new cadre, viz., the Junior Management Grade since no order has been passed under paragraph 2(1) of the Order applying the same to them.
As they are not in the Junior Management Grade, which is a completely different cadre, they have no locus standi to challenge any benefit conferred on the Officers of the 120 Junior Management Grade comprising erstwhile Officers Grade I and Officers Grade II as were in the employment of the Bank prior to October 1, 1979.
[134F; CD; 135C]