judgement:
ivil Appeals Nos.
357/77 and 1142 1143/78.
Appeals by Special Leave from the Judgment and Order dated 28 8 75 and 17 9 75 of the Allahabad High Court in Special Appeal Nos. 233, 254 and 264 of 1975.
L. N. Sinha, Santosh Chatterjee, Vineet Kumar and P. P. Singh for the Appellant in CA 357/77.
section N. Kacker, Sol.
General, M. V. Goswami and Rajiv Dutt for the Appellants in CA 1142 1143/78 and RR 4 and 5 in CA 357/77 A. K. Sen, section C. Patel and Bishamber Lal for Respondent No. 1 in All the appeals.
V. M. Tarkunde, section C. Patel and Bishamber Lal for R. 2 in all appeals G. L. Sanghi, section C. Patel and Bishamber Lal for R. 3 in all appeals.
Rajiv Dutt and P. C. Kapur for R. 6 in CA 357/77.
Santosh Chatterjee and Vineet Kumar for R. 6 in CA 1142/78.
The Judgment of the Court was delivered by DESAI, J.
Respondents Nos. 1, 2 and 3 in Civil Appeal No. 357/77 filed writ petition No. 5462/74 challenging the selection by U.P. Public Service Commission ( 'Commission ' for short) and subsequent appointment by U.P. State Government of appellant and respondent No. 6 to the post of Professor in Medicine in State Government Medical Colleges.
A learned single Judge of the High Court quashed the selec 855 tions.
Four appeals came to be preferred against the judgment quashing selections.
Special Appeal No. 232/75 was filed by Dr. R. N. Tandon, respondent No. 6; Special Appeal No. 233 of 1975 was preferred by the present appellant Dr. M. C. Gupta; Special Appeal No. 264 of 1975 was preferred by the State of U.P.; and Special Appeal No. 256 of 1975 was filed by respondents Nos. 1, 2 and 3 in Civil Appeal No. 357/77 against that part of the judgment of the learned single Judge by which appointment of appellant Dr. M. C. Gupta and respondent No. 6, Dr. R. N. Tandon, was not quashed.
The appellate Bench partly allowed the appeals and while confirming the order quashing the selection of Dr. M. C. Gupta and Dr. R. N. Tandon, also quashed their appointment and remitted the matter to the Commission directing it to re examine the relative merits of all candidates in the light of the interpretation put upon the relevant regulations by the Court.
Arising from this common judgment, three appeals by special leave are preferred to this Court.
Civil Appeal No. 357/77 is preferred by Dr. M. C. Gupta and Civil Appeals Nos. 1142 & 1143 of 1978 are preferred by the State of U.P. To focus the attention on the contention raised at the hearing of these appeals, a brief resume of facts would be advantageous.
The Commission invited applications for two posts of Professor of Medicine in the State Medical Colleges as per its advertisement dated 8th September 1973, subsequently extending the last date for receipt of applications to 30th March 1974, Dr. M. C. Gupta and Dr. R. N. Tandon (referred to as the 'appellants ') along with Dr. A. K. Gupta, Dr. Brij Kishore and Dr. section N. Aggarwal (referred to as 'respondents 1, 2 and 3), applied for the post.
The advertisement set out the prescribed qualifications for the post under Regulations made under section 33 of the ( 'Act ' for short).
They were in respect of the academic attainments, teaching/research experience, upper age limit, etc.
The Commission was assisted by four medical experts in the matter of interview, selection and recommendation of suitable candidates satisfying the requisite qualifications for the post.
The Commission selected Dr. M. C. Gupta and Dr. R. N. Tandon for the two posts of Professor in Medicine and recommended their names to the State Government, Respondents 1, 2 and 3 who were also candidates for the post, presumably came to know about the recommendation and moved the High Court on 13th September 1974 by way of a writ petition questioning the selection.
The petition was admitted and rule nisi was issued.
An ex parte interim stay restraining the Government from making the appointments was granted but sub 856 sequently it was vacated.
The State Government accepted the recommendations of the Commission and appointed Dr. M. C. Gupta and Dr. R. N. Tandon as Professors of Medicine on 30th October 1974.
The petition was subsequently amended questioning the order of appointment.
As already stated above, the learned single Judge held that neither Dr. M. C. Gupta nor Dr. R. N. Tandon had the requisite teaching experience and that neither of them was qualified for selection as Professor of Medicine and accordingly allowed the writ petition and quashed the selection.
By a common judgment in the appeals arising from the judgment of the learned single Judge, the appellate Bench confirmed the order quashing the selections and further quashed the order of appointment and remitted the matter to the Commission directing it to make fresh selection in consonance with the interpretation put upon the relevant regulations by the Court.
Three appeals are before us.
These three appeals obviously were heard together and are being disposed of by this common judgment.
The selection and appointment of Dr. M.C. Gupta and Dr. R. N. Tandon were questioned only on one ground in that each of them did not satisfy the requisite teaching/research experience.
The controversy in these appeals centres round the question of teaching/research experience and the relevant regulation in this behalf may be extracted: ___________________________________________________________ Post Academic Subject Teaching/ Qualification Research experience ___________________________________________________________ (b) Professor/ M.D., M.R.C.P., Medicine (b) As Reader/ Associate F.R.C.P., Asst.
Professor Professor Speciality in Medicine for Board of 5 years in a Internal Medicine Medical College (USA) or an after requisite equivalent post graduate qualification in qualification.
the subject.
___________________________________________________________ Regulation 4 of General Regulations provides as under: "4.
50% of the time spent in recognised research under the Indian Council of Medical Research or a University or a Medical College, after obtaining the requisite post graduate qualification be counted towards teaching experience in the same or an allied subject provided that 50% of the teaching experience shall be the regular teaching experience.
" The teaching/research experience claimed by each of the appellants may be set out and then the comments of each side in respect of each item may be examined: 857 Experience of Dr. M. C. Gupta.
I. 25th January 1965 to 19th About 6 years and July 1971 Lecturer in Cardio 6 month 's teaching logy in the Dept. of Medicine experience.
II July 71 upto the date of About 3 years, 2 appointment as Professor months ' teaching Reader in Medicine in S.N. experience.
Medicine College, Agra.
Experience of Dr. R.N. Tandon I. 1st October 1965 to 31st One years ' teaching October, 1966 Post doctoral experience.
teaching fellow, Dept. of Medicine, State University of New York at Buffalo, USA.
II 1st February, 1967 to 31st One year 's teaching 1968 As a Lecturer while experience.
posted as Pool Officer Dept. of Medicine in GSVM Medical College, Kanpur.
III 5th April 1968 to 4th July 15 Months ' teaching 1969 Post doctoral research experience.
fellow, Dept. of Medical in GVSM Medical College, Kanpur.
IV 29th July 1969 to 30th October Over 5 years teaching 1974 (date of appointment as experience.
Professor) Asst.
Professor of Medicine, State University of New York, at Buffalo USA.
Before the rival comments are probed and analysed, it would be necessary to keep in view the twilight zone of Court 's interference in appointment to posts requiring technical experience made consequent upon selection by Public Service Commission, aided by experts in the field, within the framework of Regulations framed by the Medical Council of India under section 33 of the , and approved by the Government of India on 5th June 1971.
When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching/research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them.
It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be.
Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it in making the selection and recommending the selectees for appointment, the Court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under Article 226.
Even then the Court, while enforcing the rule of law, should give due weight 858 to the opinions expressed by the experts and also show due regard to its recommendations on which the State Government acted.
If the recommendations made by the body of experts keeping in view the relevant rules and regulations manifest due consideration of all the relevant factors, the Court should be very slow to interfere with such recommendations (see, The University of Mysore & Anr.
vs C. D. Govinda Rao & Anr.,(1).
In a more comparable situation in State of Bihar & Anr.
vs Dr. Asis Kumar Mukherjee, and Ors.
,(2) this Court observed as under: "Shri Jagdish Swaroop rightly stressed that once the right to appoint belonged to Government the Court could not usurp it merely because it would have chosen a different person as better qualified or given a finer gloss or different construction to the regulation on the score of a set formula that relevant circumstances had been excluded, irrelevant factors had influenced and such like grounds familiarly invented by parties to invoke the extraordinary jurisdiction under article 226.
True, no speaking order need be made while appointing a government servant.
Speaking in plaintitudinous terms these propositions may deserve serious reflection.
The Administration should not be thwarted in the usual course of making appointments because somehow it displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates.
Is there violation of a fundamental right, illegality or a skin error of law which vitiates the appointment".
With these blurred contours of periphery of jurisdiction under Article 226 to interfere with selections made by an independent body like Public Service Commission not attributed any mala fides, assisted by four experts in the field who presumably knew what constituted teaching/research experience, what institutions are treated prestigious enough, in which teaching/research experience would be treated valuable, we may examine the rival contentions.
Two contentions which have found favour with the High Court must engage our attention: (1) In order to satisfy the experience qualification for the post of Professor in Medicine, the teaching/research experience must be in medicine and stricto sensu Cardiology being a separate branch, experience of teaching/research in Cardiology cannot be availed of, and (2) any such experience to satisfy the regulation must be acquire while holding the post of Reader or Assistant Professor (including the post of Lecturer) in Medicine.
The controversy centres round the connotation of the expression 859 'medicine '.
Does it include Cardiology or Cardiology is a separate Branch ? Section 2(f) of the Act defines medicine to mean modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery.
This is too wide a definition to assist us in the problem posed for the decision of the Court.
In the world of medical science there are general subjects and specialities.
Medicine and surgery are general subjects.
To wit, Cardiology is a speciality in medicine and orthopaedics is a speciality in surgery.
Even the regulation from page 8 onwards bears the heading 'Specialist Branch under Medicine and Surgery '.
Cardiology finds its place as a specialist branch under medicine.
The relevant regulation requires teaching/research experience in medicine.
Contention is, if any one who has teaching/research experience in Cardiology, could he be said to have such experience in medicine ? In this context we must recall regulation 4 which provides that 50% of the time spent in recognised research after obtaining the requisite post graduate qualification shall be counted towards teaching experience in the same or allied subject provided that 50% of the teaching experience shall be the regular teaching experience.
If research in allied subject can be taken to satisfy the requisite experience, teaching experience in a speciality under the general head could not be put on an inferior footing.
Undoubtedly, if the post is in a specialist department, the requisite teaching/research experience will have to be in the speciality.
To illustrate, if one were to qualify for being appointed as Professor/ Associate Professor of Cardiology, his teaching experience must be in Cardiology though his research experience could as well be in Cardiology or allied subject.
A person having such experience in the general subject medicine cannot qualify for the speciality.
That it what distinguishes the speciality from the general subject.
This becomes clear from the fact that in a number of hospitals there may not be posts in specialist branches and someone working in the general department may be assigned to do the work of specialist branches.
If a particular hospital has not got Cardiology as a specialist branch, a Reader or Assistant Professor in the Department of Medicine may be required to look after Cardiology cases and teaching of Cardiology as a subject.
In that event he is certainly a Reader/Assistant Professor in Medicine teaching one of the subjects, viz., Cardiology which again forms part of the general curriculum of the subject of medicine.
Therefore, it is not proper to divorce a specialist branch subject from the general subject.
It cannot be seriously contended that medicine does not include Cardiology.
To be qualified for the specialist branch of Cardiology, the minimum academic qualification is M.D. (Medicine).
This would clearly show that after acquiring the general qualification one can take the specialist branch.
If any other approach is adopted it would work 860 to the disadvantage of the person who while being posted in the Department of Medicine, is asked to teach a subject which is necessary for being taught for qualifying for M.D. but which can be styled as speciality.
He would simultaneously be denied the teaching experience in the subject of Medicine.
An extreme argument was urged that in adopting this approach it may be that somebody may be working in different specialist branches such as Neurology, Gastroenterology, Psychiatry, etc.
and each one would qualify for being appointed as Professor of Medicine without having even a tickle of experience on the subject of general medicine.
This wild apprehension need not deter us because it should be first remembered that any one going into specialist branch under medicine has to be M.D. (Medicine).
Thereafter, if he wants to become a Professor in the specialist branch such as Cardiology, the academic qualification required is to hold a degree of D.M. in the Specialist Branch.
This becomes clear from a perusal of the regulations.
It is not necessary, therefore, to go into the dictionary meaning of the expression 'medicine ' to determine whether it includes Cardiology.
The Medical Council of India, a body composed of experts have in the regulations clearly manifested their approach when they said that Cardiology is a specialist branch under medicine.
Ipso facto, medicine includes Cardiology.
It was not disputed that one qualifying for M.D. (Medicine) has to learn the subject of Cardiology.
And it must be remembered that the four experts aiding and advising the Commission have considered teaching experience in Cardiology as teaching experience in Medicine.
The counter affidavit on behalf of the Commission in terms states that medicine is a wide and general subject and includes Cardiology whereas for the post of Professor of Cardiology a further two years ' special training in Cardiology or D.M. in Cardiology after M.D. in Medicine has been laid down as a requisite qualification by the Medical Council.
It is further stated that teaching experience in Cardiology will make the person eligible for the post of Professor of Medicine.
That was the view of the experts who assisted the Commission.
Incidentally it may be mentioned that Mr. V. M. Tarkunde, learned counsel for respondents 1, 2 and 3 took serious exception to giving any weight to the counter affidavit because it has not been sworn to by any expert aiding or advising the Commission or by any officer or Member of the Commission but by an Upper Division Assistant whose source of knowledge is the legal advice tendered to him.
In paragraph 1 of the affidavit the deponent says that he has been deputed by the Commission to file the counter affidavit on their behalf and as such he is fully acquainted with the facts deposed to in the affidavit.
It is our sad experience that responsible authorities avoid filing affidavits in courts when it behoves them to assist the Court and facilitate the decision of the questions brought before the Court 861 but on this account alone we would not wholly ignore the counter affidavit.
Some documents were brought to our notice showing that in State University of New York at Buffalo, U.S.A. the Assistant Professor of Cardiology is designated as Assistant Professor of Medicine.
Further, in the Agra University Calendar, Cardiology is included in the Department of Medicine.
Similarly it was also pointed out that the Department of Medicine in the University of Manchester includes Lecturer in Cardiology.
Apart from this administrative arrangement, it could not be seriously disputed that Cardiology is a specialist branch under medicine and it could not be wholly divorced from medicine.
Under the general head 'medicine ' number of subjects are to be taught, one such being Cardiology.
If a teacher is asked to teach Cardiology as one of the subjects for general medicine, could he be at a disadvantage by being treated as having not acquired teaching experience in medicine ? Even under general medicine, apart from medicine as a subject, there are numerous other subjects and papers and there would be one or more persons incharge of one or more subjects and papers and indisputably each one would be gaining experience in general medicine.
If general medicine is to be restricted only to the paper on medicine, it would lead to a startling as result, as startling as it was sought to be urged when it was said that a person teaching Neurology could not be said to be gaining teaching experience in medicine.
The matter has to be looked at from this angle, viz., that where general subject such as medicine or surgery is being dealt with in a regulation, the specialist branch under it would be covered, though not vice versa, because if one wants to hold a post in the specialist branch he must be of necessity have teaching experience in the specialist branch.
In reaching this conclusion the seniority list maintained branch wise would hardly be helpful.
Therefore, it is not possible to agree with the High Court that the subject of medicine under the regulation is exclusive of the other subjects mentioned therein and, therefore, does not include Cardiology.
The second contention which found favour with the High Court was that the requisite teaching or research experience must be acquired while holding the post set out in the regulation in that subject.
In other words, the view of the High Court is that the teaching/research experience must be acquired while holding the post of Reader/Assistant Professor in Medicine for five years in a Medical College.
The High Court placed the emphasis on the experience acquired while holding the post.
The relevant regulation requires teaching/research experience as Reader/Assistant Professor (which includes Lecturer) 862 in Medicine for five years in a Medical College.
Regulation 4 has to be read along with specific regulation.
Regulation 4 clearly shows that 50% of the time spent in recognised research in the same or allied subject will be given credit provided that 50% of the teaching experience shall be regular teaching experience.
The specific regulation prescribing the qualification will have to be read subject to the general regulation prescribed under regulation 4 because the experience qualification prescribed in specific regulation must be calculated according to the formula prescribed in general regulation No. 4.
The specific regulation requires 5 years ' teaching/research experience.
In calculating the research experience in the light of regulation 4, 2 1/2 years ' experience shall be specifically teaching experience and credit can be given to the extent of 50% of the time spent in recognised research as prescribed in the regulation, which experience can be in the same subject, viz., the subject for which the recruitment is being made or in allied subject.
So far there is no dispute.
The question is: while acquiring research experience, is it incumbent that the person conducting research must also hold of necessity designated post in the regulation ? Now, if general regulation 4 is properly analysed for the purposes of computing research experience, the pre requisite is that the research must be done after obtaining requisite post graduate qualification.
It has no reference to the post held by the person engaged in research at the time of conducting the research.
The heading is 'teaching/research experience '.
The dichotomy will have to be applied to teaching and research experience for the purpose of computation.
So far as teaching experience is concerned, it must be acquired while holding the post specified in the regulation.
But to say that holding of the post is a pre requisite while conducting research is to read in regulation 4 what is not prescribed thereunder.
The specific regulation prescribing qualification will have to be read subject to general regulation 4 and not vice versa.
This also becomes manifest from the fact that general regulation 4 also provides that 50% of the teaching experience shall be regular teaching experience meaning thereby that if someone is engaged exclusively in research, he cannot claim to satisfy the teaching experience qualification prescribed in the regulation.
Reading specific regulation with general regulation 4, it emerges that teaching experience shall be acquired while holding the particular post specified therein and the research experience can be taken into account if the person is engaged in research after obtaining post graduate qualification and it has nothing to do with the holding of the post.
One may be engaged as a research scholar and holds no teaching post.
The research is hardly related to post though capacity for research is directly related to academic attainment.
That has been 863 taken care of.
Teaching it indisputably related to the post because a higher post may entail greater responsibility for coaching in higher classes.
This conclusion is reinforced by the language of general regulation 4 which permits recognised research under the Indian Council of Medical Research which body may not have such hierarchical posts of Lecturer or Assistant Professor or Reader.
These three designations are to be found in teaching institutions and not in research institutions.
If it were, therefore, to be held that even while acquiring research experience one must hold the post of either Reader or Assistant Professor, it would discourage many persons conducting research under the Indian Council of Medical Research.
It is, therefore, not possible to agree with the generalisation made by the High Court that teaching/research experience to qualify for the post of Professor must be acquired while working as a Reader or Lecturer.
Having cleared the ground about the interpretation of requisite regulations, we must now turn to examine the two individual cases.
In re :Dr. M. C. Gupta.
The experience qualification of Dr. M.C. Gupta has been extracted above.
There is no dispute between the parties that he was appointed and was working as Reader in Medicine in S.N. Medical College, Agra, from 28th July 1971 till 30th March 1974 which was the last date by which applications had to be submitted to the Commission.
This would give him a teaching experience of 2 years 8 months and 10 days.
Dr. Gupta also claims teaching experience, being a Lecturer in Cardiology in the Department of Medicine, section N. Medical College, Agra, from 25th January 1965 to 19th July 1971, in the aggregate period of 6 years, 6 months and 24 days.
There is a serious dispute between the parties whether Dr. Gupta is entitled to get credit for teaching experience while working as Lecturer in Cardiology.
On the view that we have taken that Cardiology is a specialist branch under medicine and, therefore, a Lecturer in Cardiology could be said to be a Lecturer in one of the subjects under general medicine and hence he had requisite experience as Lecturer in Medicine.
However, Dr. Gupta has produced a certificate issued by the Principal and Chief Superintendent, S.N. Medical College & Hospital, Agra, dated 19th September 1974 in which it is stated that 'Dr. Gupta joined the Department of Medicine as Lecturer in Cardiology on 25th January 1965 and continued till July 19, 1971 when he was appointed as Reader in Medical by Public Service Commission '.
It is further certified by 864 the Principal & Chief Superintendent that 'Dr. Gupta was actively involved in patient care, teaching of undergraduates and post graduates in general medicine in addition to conducting Cardiac Out Patient, looking after cardiac beds and taking Cardiology lectures during his tenure as Lecturer in Cardiology, as Cardiology forms a part of general medicine in this college and there is no separate Department of Cardiology here '.
There is another certificate issued by Dr. K. section Mathur, Professor & Head, Department of Medicine (RD), dated 17th September 1974, in which it is in terms stated that Dr. Gupta was actively involved in the patient care and teaching of undergraduates and postgraduates in General Medicine in addition to Cardiology during this period.
Further, Dr. Gupta used to be the Senior Physician to attend to Emergencies of all medical cases on a particular day of week and he looked after indoor beds of general medical units during leave arrangements.
He was also incharge of T.B. Clinic for a period of one month.
It was further stated that Dr. Gupta had been assigned 'Special Clinics ' to 5th year and 3rd year and 'Long Clinics ' to final year students from time to time in addition to Cardiac Clinics and Cardiology lectures.
He was also taking regular classes in clinical methods for third year and has also been called upon to teach them kidney diseases.
There are further references in the certificate which we may ignore for the time being.
Dr. Gupta also produced a certificate issued by Professor of Clinical Medicine, section N. Medical College, Agra, which, inter alia, states that Dr. Gupta was associated from time to time with teaching and patient care in general medicine and he was also actively associated with teaching of post graduates in general medicine in the way of clinical conferences, seminars, etc.
He was also incharge of beds in general medicine in Professors ' Unit in the leave vacancy.
A notice dated 24th October 1970 issued by the Department of Medicine, section N. Medical College, Agra, was also brought to our notice in which it was shown that Dr. Gupta was to be the Senior Physician on call on every Tuesday.
It would thus appear that even if Dr. Gupta was designated as Lecturer in Cardiology for the period 25th January to July 19, 1971, undoubtedly he was teaching general medicine to undergraduate students and to some post graduate students also and this is testified by persons under whom he was working.
It would be unwise to doubt the genuineness of these certificates.
Therefore, even apart from the fact that Cardiology is a part of medicine, the teaching experience acquired while holding the post of Lecturer in Cardiology, was teaching experience in subject which substantially formed part of general medicine and over and above the same, he was also working as Lecturer in Cardiology and, therefore, the Commission was amply justified in reaching the conclusion that Dr. Gupta 865 had the requisite teaching experience qualification and the High Court was in error in quashing the selection of Dr. M. C. Gupta on this ground.
Mr. L. N. Sinha, learned counsel, also wanted us to examine the research experience of Dr. M. C. Gupta when he pointed out that Dr. Gupta had published as many as 40 research papers in leading medical journals in India during 10 years he worked as Lecturer/Reader and that he had also been a recognised appraiser for the thesis submitted for the award of Doctor of Medicine.
Mr. Sen seriously objected to our examining this contention because Dr. Gupta himself never claimed any credit for research experience.
Undoubtedly, the counter affidavit on behalf of the Commission refers to having taken into consideration the research experience of Dr. Gupta but the affidavit is blissfully vague on the question which research experience was examined by the Commission.
Therefore, we would not take into account the research experience claimed on behalf of Dr. Gupta.
In re: Dr. R. N. Tandon.
We have already extracted above the teaching/research experience qualification claimed on behalf of Dr. Tandon.
Mr. Kacker, learned Solicitor General requested us to start examining each item of experience commencing from the last one as first.
Before we proceed to examine each item of experience claimed by Dr. Tandon, one contention raised on behalf of the respondents must be dealt with.
It was urged that wherever the regulations prescribe teaching or research experience, it must be one acquired in an institution in India or in any foreign institution recognised by the Medical Council of India or the Government of India.
It is not necessary to examine this argument in depth because the point could be said to have been concluded by A. K. Mukherjee 's case, wherein same set of regulations came in for consideration of this Court and in which it was seriously contended that the teaching experience specified in regulations in question must be acquired in teaching institutions in India and, therefore, any teaching experience in a foreign country cannot be taken into consideration.
This contention was in terms negativated simultaneously negativing the other extreme submission that teaching experience from any foreign institution is good enough, and after referring to sections 12, 13, and 14, it was held that those which are good enough for the aforementioned sections, are good enough for the teaching experience gained therefrom being reckoned as satisfied.
The matter undoubtedly was not further pursued by this Court because the final decision was left to the Commission.
866 Proceeding in the order suggested by Mr. Kacker it is claimed that Dr. Tandon worked as Assistant Professor of Medicine, State University of New York at Buffalo from 29th July 1969 to 30th October 1974.
This includes some period subsequent to the last date for submitting application to the Commission and we would exclude that part of the experience claimed by Dr. Tandon.
Therefore, Dr. Tandon claims to be working as Assistant Professor of Medicine from 29th July 1969 to 30th March 1974 which was the last date for submitting the application to the Commission.
Computing the period, he would have teaching experience of four years, six months and one day.
It was also said that even if teaching experience in foreign teaching institution is to be taken into account, they must be some recognised institutions of repute and not any institution outside the territory of India.
That of course is true.
In A. K. Mukherjee 's case the pertinent observation is as under: "Teaching institutions abroad not being ruled out, we consider it right to reckon as competent and qualitatively acceptable those institutions which are linked with, or are recognised as teaching institutions by the Universities and organisations in Schedule II and Schedule III and recognised by the Central Government under section 14.
Teaching institutions as such may be too wide if extended all over the globe but viewed in the perspective of the , certainly they cover institutions expressly embraced by the provisions of the statute.
If those institutions are good enough for the important purposes of sections 12, 13 and 14, it is reasonable to infer they are good enough for the teaching experience gained therefrom being reckoned as satisfactory.
" But it could hardly be urged with some confidence that the State University of New York at Buffalo would not be an institution of repute.
An attempt was made to refer to the Schedules, not upto date, to the Act published by the Medical Council of India showing recognised institutions.
In fact, the Schedules set out recognised degrees, certificates and diplomas of various Universities and certain examining Boards of U.S.A. being recognised by the Medical Council of India.
This brochure hardly helps in coming to conclusion one way or the other.
It refers to degrees and the Boards awarding the degrees and diplomas.
It does not refer to teaching institutions.
It nowhere shows that the certificates and diplomas issued by the State University of New York at 867 Buffalo would not be under one of the American Boards and, therefore, it is not recognised.
Such a contention was not even urged before the High Court or specifically in affidavits so that factual material could have been more carefully examined.
The experts aiding and advising the Commission must be quite aware of institutions in which the teaching experience was acquired by Dr. Tandon and this one is a reputed University.
It was, however, contended that there is no proof in support of the submission that Dr. Tandon was working as Assistant Professor of Medicine at State University of New York at Buffalo, commencing from 29th July 1969.
Dr. Tandon has produced a certificate, Annexure CA.
5 issued by Associate Professor of Medicine, Director Angiology Department, Buffalo General Hospital dated 3rd June 1971, in which it is stated that Dr. Tandon is an Assistant Professor of Medicine in the Department of Medicine on the full time staff of the Buffalo General Hospital having an annual salary of $ 15,000.
Mr. Tarkunde urged that this certificate does not show that Dr. Tandon was appointed effective from 29th July 1969.
Further, exception was taken to the certificate in that it is issued by the Buffalo General Hospital which the certificate does not show to be a teaching institution.
If it was not a teaching institution, one would fail to understand how it had a post of Assistant Professor of Medicine.
In a nonteaching hospital there could not be a post of Assistant Professor.
Therefore, the very fact that Dr. Tandon was shown to be an Assistant Professor of Medicine, by necessary implication shows that Buffalo General Hospital was a teaching institution under State University of New York.
In this connection reference may be made to a certificate dated 12th September 1974 issued by James P. Nolan, Professor of Medicine and Head, Department of Medicine, Buffalo General Hospital, in which it is stated that since July 1969 Dr. Tandon has been a teacher in general medicine at the Buffalo General Hospital.
This removes any doubt about the commencement of appointment of Dr. Tandon as Assistant Professor at the Buffalo General Hospital.
Mr. Tarkunde however urged that the certificate does not appear to be genuine in view of the inquiry made by a telegram (p. 257, Vol.
II of the record) from the authorities incharge of the Buffalo General Hospital and the reply received that Dr. Tandon is in India and, therefore, cannot get any information as he left instructions not to release it.
Who has sent this telegram is left to mere speculation.
And who sent the reply is equally unknown.
It would be improper to reject the certificate on such nebulous ground and we 868 can do no better than reject the contention of Mr. Tarkunde as unworthy of consideration as was done in A. K. Mukherjee 's case where in it was observed as under: "There are 6 certificates now on record and the 1st respondent is stated to have taken part in teaching work as Registrar.
You cannot expect to produce those surgeons in Patna in proof and unless serious circumstances militating against veracity exist fair minded administrators may, after expert consultations, rely on them".
Therefore, we see no justification for rejecting the certificates.
It would appear that Dr. Tandon had the teaching experience while holding the post of Assistant Professor of Medicine for a period of four years, six months and one day.
The minimum requirement is five years.
We would next examine one more item of experience claimed by Dr. Tandon in that he was post doctoral teaching fellow, Department of Medicine, State University of New York at Buffalo from 1st October 1965 to 31st October 1966.
Now, undoubtedly this was teaching experience in the same University where he was subsequently Assistant Professor.
The grievance is that he was a Fellow and neither a Lecturer nor an Assistant Professor.
What does 'Fellow ' in the University connote ? A certificate has been produced, Annexure CA.
(page 50, Vol.
IV) by Dr. Tandon issued by Eugine I. Lippasch, Professor & Administrative Associate Chairman of the Department of Medicine, State University of New York at Buffalo, dated 13th October 1966, in which it is stated that Dr. Tandon completed one year teaching fellowship in the Division of Cardiology of the Department of Medicine at the State University of New York at Buffalo and the Buffalo General Hospital on October 31, 1966.
It is not very clear what is the equivalent of a Fellow in teaching Hospitals in India but Dr. Tandon has also claimed teaching experience from 5th April 1968 to 4th July 1969, being posted as post doctoral research fellow, Department of Medicine in G. section V. M. Medical College, Kanpur.
In this connection, Annexure R 2, produced by none other than some of the contesting respondents shows that during the tenure of Fellowship, Dr. Tandon was expected to take part in the teaching and research activities of the College though he would not be treated as part of the regular establishment of the College.
Now, if the certificate produced by Dr. Tandon shows that Fellowship included teaching work, it would be unwise to doubt it.
Even if 50% of the time spent in these two places is given credit, Dr. Tandon had certainly 869 more than five years ' teaching experience.
The Court is not competent to work out figures with mathematical precision.
It can broadly examine the question whether the requirement is satisfied or not.
Therefore, he had the requisite teaching/research experience and the Commission was fully justified in treating Dr. Tandon as having requisite teaching/research experience.
It thus clearly appears that both Dr. M. C. Gupta and Dr. R. N. Tandon had the requisite qualifications, both academic and experience, and they were eligible for the post for which they had applied and if they were selected by the Commission and appointed by the Government, no exception can be taken to the same.
The High Court was, therefore, in error in interfering with the same.
Accordingly, all the three appeals are allowed and the writ petition filed by respondents 1, 2 and 3 in the High Court is dismissed with no order as to costs in the circumstances of the case.
M.R. Appeals allowed.

summary/full:
The appellant Dr. M. C. Gupta and the sixth respondent Dr. R. N. Tandon, were appointed to the post of 'Professor in medicine in State Government Medical Colleges.
The appointments were made by the State Government, on the recommendation of U.P. Public Service Commission, which had earlier with the assistance of four medical experts, selected them through an interview.
The respondents No. 1, 2 and 3 who were also candidates for the post filed a writ petition in the High Court, challenging the selection and appointment of Dr. M. C. Gupta and Dr. R. N. Tandon, though no mala fides were attributed to the Commission.
A Single Judge of the High Court issued a writ quashing the selection, on the ground that neither of the two selected doctors had the requisite teaching experience and that neither of them was qualified for selection as Professor of Medicine.
In appeal, the appellate Bench of the High Court confirmed the order quashing the selections, and further quashed the order of appointment, remitting the matter to the Commission, directing it to make fresh selection in consonance with the interpretation put upon the relevant regulation, by the court.
Allowing the three connected appeals, one by Dr. M. C. Gupta, and two by the State of U.P., the Court ^ HELD .
I. Medicine includes cardiology.
The Medical Council of India, a body composed of experts, have in the regulations clearly manifested their approach when they said that cardiology is a specialist branch under medicine.
Where general subject such as medicine or surgery is being dealt with, in a regulation, the specialist branch under it would be covered, though not vice versa, because if one wants to hold a post in the specialist branch, he must of necessity have teaching experience in the specialist branch.
[859 G, 860 D, 861 E].
If general regulation 4 is properly analysed for the purpose of computing research experience, the prerequisite is that the research must be done after obtaining the requisite post graduate qualification.
It has no reference to the post held by the person engaged in research at the time of conducting the research, and, to say that holding of the post specified in the regulation, is a pre requisite while conducting research, is to read in regulation 4, what is not prescribed thereunder.
[862 D F].
Teaching experience in foreign teaching institutions can be taken into account, but, they must be some recognised institutions of repute and not any institution outside the territory of India.
865 G, 866 C].
854 State of Bihar & Anr.
vs Dr. Asis Kumar Mukherjee & Ors., ; ; followed.
Vade Mecum : In view of the twilight zone of Court 's interference in appointment to posts requiring technical experience made consequent upon selection by Public Service Commission, aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching/research experience in technical subjects, within the framework of Regulations framed by the Medical Council of India, under section 33 of the and approved by the Government of India, the courts should be slow to interfere with the opinion expressed by the experts, unless there are allegations of mala fides against them.
[857E G].
University of Mysore & Anr.
vs C. D. Govinda Rao & Anr., ; applied.
State of BIhar & Anr.
vs Dr. Asis Kumar Mukherjee & Ors., ; ; explained.


judgement:
Civil Appeal No. 277 of 1969.
Appeal from the Judgment and Order dated 30 8 67 of the Punjab and Haryana High Court in L.P.A. No. 50/67.
Naunit Lal for the Appellants.
section K. Bisaria for Respondent No. 2.
848 Appeal set down ex parte for RR 1 and 3.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal on certificate is directed against a Full Bench judgment of the High Court at Chandigarh, rendered on November 22, 1968 in Letters Patent Appeal No. 47 of 1967.
It arises out of these facts: Bishan Das was a displaced person from West Pakistan, where he owned a considerable area of agricultural land.
He died on April 11, 1948, after his migration to India, leaving behind his five sons, who are the appellants before us.
After Bishan Das 's death, the Rehabilitation Department allotted 124 standard acres and 1/4 unit of evacuee land in his (Bishan Das) name on August 26, 1949.
Permanent rights in regard to this allotted land were conferred by the Managing Officer on behalf of the President of India under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, in the names of the sons of Bishan Das on January 2, 1956.
Prior to it, a mutation was allowed by the Rehabilitation Authorities on February 17, 1953 in favour of the appellants, herein, showing each of them entitled to 24 standard acres and 13 units of land.
Ram Dhan, respondent 2, was in possession of the land as a tenant.
The appellants applied under Section 9(1) (i) of the Punjab Security of Lands Tenure Act, 1953 (hereinafter called the Act) for his ejectment on the ground that each of them is a 'small land owner ' as defined in Section 2(2) of the Act; and that they require the land for self cultivation.
The Assistant Collector, Hissar, rejected their application.
Their appeal was dismissed by the Collector, on January 4, 1965.
Their Revision was rejected by the Commissioner of Ambala Division on October 26, 1965.
Their further Revision to the Financial Commissioner, also, met the same fate on May 17, 1966.
The appellants then moved the High Court by a writ petition under Articles 226 and 227 of the Constitution, alleging that the aforesaid orders of the Assistant Collector, Commissioner and the Financial Commissioner, were illegal, without jurisdiction and ultra vires the provisions of the Act and the rules made thereunder.
Their contention was that the land had been allotted to them in lieu of the land abandoned by their father, Bishan Das, in Pakistan, and consequently, the permissible area of each of them is to be computed under Proviso 849 (ii) to Section 2(3) of the Act, and so computed, the holding of each of the five would be well below the permissible limit of 30 standard acres prescribed thereunder.
It was further contended that since the allotment was made in standard acres, and not in ordinary acres, the 'permissible area ' of each of the appellants would be 30 standard acres, notwithstanding the fact that on conversion into ordinary acres, it exceeds 60 ordinary acres.
On these grounds, the appellants claimed that each of them is a 'small land owner ' and as such, entitled to move for eviction of the tenant under Section 9(1) (i) of the Act.
The learned Single Judge of the High Court dismissed the writ petition.
Munshi Ram and his four brothers filed Letters Patent Appeal, which was eventually heard by a Full Bench.
The Bench held that since the appellants were not 'displaced persons ' within the meaning of the East Punjab Displaced Persons (Land Resettlement) Act, 1949, the concession of an enhanced permissible area under Proviso (ii) to sub section (3) of Section 2 of the Act was not available to them, and their permissible area would be 60 ordinary acres, each; that since the holding of each of the appellants exceeds that limit, they are not 'small land owners ', and as such, were not competent to seek ejectment of the tenant.
With this reasoning, the Full Bench dismissed the appeal.
Before considering the contentions canvassed, let us have a look at the definition of 'permissible area ' in Section 2(3) of the Act.
This definition reads as under : " 'Permissible area ' in relation to a landowner or a tenant, means (thirty standard acres) and where such thirty standard acres on being converted into ordinary acres exceeds sixty acres such sixty acres; Provided that (i) . . . (ii) for a displaced person (a) who has been allotted land in excess of fifty standard acres, the permissible area shall be fifty standard acres or one hundred acres, as the case may be; (b) who has been allotted land in excess of thirty standard acres, but less than fifty standard 850 acres, the permissible area shall be equal to his allotted area; (c) who has been allotted land less than thirty standard acres the permissible area shall be thirty standard acres, including any other land or part thereof, if any, that he owns in addition.
Explanation.
For the purposes of determining the permissible area of a displaced person, the provisions of proviso (ii) shall not apply to the heirs and successors of the displaced person to whom land is allotted.
" The first contention of Mr. Naunit Lal is that the words "such thirty standards acres" in the substantive part of the definition clearly exclude conversion into ordinary cases, where the area held in standard acres falls below 30 standard acres.
In short, the point sought to be made out is that the definition ensure an irreducible minimum of 30 standard acres to a land holder.
The contention does not stand a close examination.
The flaw in the proposition propounded by the counsel is that it takes into account only one aspect of the definition while ignoring the other.
As rightly observed by the High Court, in devising this formula for computing the permissible area, the Legislature was concerned to put limits on the holdings of land both in its qualitative and quantitative aspects.
The concept of 'standard acre ', being 'a measure of area convertible into ordinary acres of any class of land according to the prescribed scale with reference to the quantity of yield and quality of soil ', has been introduced in the definition of 'permissible area ' to emphasise the qualitative aspect of a land holding, and the maximum limit of 60 ordinary acres delineates its quantitative aspect.
The language of sub section (3) of Section 2 is plain and unambiguous.
It proclaims in no uncertain terms, the legislative imperative that no land owner or tenant shall hold land exceeding 30 standard acres or 60 ordinary acres.
By no stretch of imagination, therefore, the words "such thirty acres" occurring in the definition can be construed to limit the conversion into ordinary acres only to a case where the holding is 30 'standard acres ', and not less.
Mr. Naunit Lal next contended that since the land was allotted in the name of Bishan Das deceased, who was a displaced person, the EXPLANATION will not be attracted, with the result that the per 851 missible area of each of his five sons would be 30 standard acres in accordance with Clause (c) of Proviso (ii) of sub section (3) of Section 2.
Since each of them was holding only about 24 standard acres, they were small land owners.
The argument rests on the fallacy that the land was allotted to a 'displaced person '.
The true position is that it was allotted to the sons of Bishan Das, who were not 'displaced persons ' within the contemplation of the aforesaid Proviso (ii).
Section 2(11) of the Act says: "Displaced person" has the meaning assigned to it in the East Punjab Displaced Persons (Land Resettlement) Act, 1949 (Act XXXVI of 1949).
According to the definition of the term in East Punjab Act XXXVI of 1949, a 'displaced person ' means "a landholder in the territories now comprised in the Province of Punjab in Pakistan or a person of the Punjab extraction who holds land in the (West Pakistan) and who has since the 1st day of March 1947, abandoned or has been made to abandon his land in the said territories on account of civil disturbances or the fear of such disturbances, or the partition of the country.
" Now, the sons of Bishan Das never owned or abandoned any land in West Pakistan.
Evidently, they were not 'displaced persons ' within the meaning of Proviso (ii) to Section 2(3).
They are merely "heirs of a displaced person" who died after his migration to India.
Proviso (ii) therefore, does not apply to the case of the appellants who, and not their father, were the persons to whom the land in dispute has been allotted.
The EXPLANATION appended to Section 2(3), therefore, clearly excludes the application of Proviso (ii), to their case.
Their case is fully covered by the substantive part of the definition of 'permissible area ' according to which the maximum which they could hold is 60 ordinary acres.
Each of them was holding, at the material date, in excess of that area and as such, they were not 'small land owners '.
The last contention of Mr. Naunit Lal is that in computing the 'permissible area ' of each of the appellants, the Collector had illegally and wrongfully included uncultivated area of Banjar Jadid, Banjar Qadim and Gair Mumkin land as on April 15, 1953, and had also through some oversight, failed to allow deduction for the dimunition in their holdings resulting from consolidation.
The argument is that Banjar land does not fall within the definition of 'Land ' for the purpose of Punjab Security of Land Tenures Act, 1953.
In support of this contention, reference has been made to several decisions of the High Court at Chandigarh.
According to sub section (8) of Section 2 of the Act, "Land" shall have the same meaning as is assigned to it in the Punjab Tenancy Section 2(c) of that Act defines 'Land ' to mean "land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes the sites of buildings and other structures on such land".
In Nemi Chand Jain vs Financial Commissioner, Punjab(1), H. R. Khanna, J. speaking for a Division Bench of the High Court, held that Banjar Qadim and Banjar Jadid land cannot be taken into account while computing the surplus area, under the Act, because not being occupied or let for agricultural purposes or purposes subservient to agriculture, it does not fall within the purview of 'Land ' under the Act.
This ruling has been consistently followed by the High Court in its subsequent decisions, some of which are reported as Sadhu Ram vs Punjab State(2), Amolak Rai vs Financial Commissioner, Planning, Punjab(3) and Jaggu vs Punjab State(4) and Jiwan Singh vs State of Punjab(5).
In our opinion, this view taken by the High Court proceeds on a correct interpretation of the statutory provisions as it stood at the relevant time.
Learned counsel for the tenant respondent also, does not question the soundness of this view.
He, however, does not accept the particulars of the areas of Banjar and Gair Mumkin Land supplied by Mr. Naunit Lal, in the form of a Goshwara.
We will, therefore, while upholding the view taken by the High Court in regard to the interpretation and application of Section 2(3) Proviso (ii) of the Act, allow this appeal and set aside the decision of the High Court and the impugned orders of the Assistant Collector, Collector, and the Commissioner and remit the case to the Collector concerned of Hissar District with the direction that he should ascertain the extent of the Banjar Qadim and Banjar Jadid and Gair Mumkin land of the appellants allottees at the relevant date and recompute their permissible area after excluding such Banjar and Gair Mumkin land; then dispose of the applications of the appellants under Section 9(1)(i) afresh.
In the circumstances of the case, there will be no order as to costs.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
In relation to a land owner or a tenant, the term "permissible area" as defined in section 2(3) of the Punjab Security of Land Tenures Act, 1953 means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres such sixty acres, Clause (ii) (b) of the proviso enacts that if a displaced person who has been allotted land in excess of thirty standard acres but less than fifty standard acres, the permissible area shall be equal to his allotted area.
The Explanation states that for the purposes of determining the permissible area of a displaced person the provisions of proviso (ii) shall not apply to the heirs and successors of the displaced person to whom land is allotted.
The appellants ' father, a displaced person, owned considerable agricultural land in West Pakistan.
After his migration to India and subsequent death, in lieu of the land abandoned in Pakistan 124 standard acres were allotted in his name.
Mutation of the property was sanctioned in favour of the appellants and permanent rights were conferred in their names.
Alleging that they were 'small land owners ' as defined in the Act, and that they required the land for self cultivation they applied for ejectment of the respondent No. 2 who at that time was in possession of the land.
The Assistant Collector, rejected their request, their appeal to the Collector was dismissed and revision application to Commissioner and Financial Commissioner were also rejected.
In their writ petition under article 226 of the Constitution they contended that if the "permissible area" is computed under proviso (ii) to section 2(3) of the Act, the holding of each of them would be below the permissible limit of thirty standard acres; that since the allotment was made in standard acres, the 'permissible area ' of each of them would be 30 standard acres notwithstanding that on conversion into ordinary acres it exceeds sixty ordinary acres.
A single Judge of the High Court dismissed their writ petition.
On appeal, the Full Bench of the High Court held that since the appellants were not displaced persons, the concession of an enhanced permissible area under proviso (ii) to section 2(3) was not available to them and their permissible area would be sixty ordinary acres, each, and since the holding of each of them exceeded sixty ordinary acres they were not 'small land owners ' and so could not seek ejectment of the tenant.
847 On further appeal to this Court it was contended, (1) that the words "such thirty standard acres" in the definition exclude conversion into ordinary acres where the area already held in standard acres falls below thirty standard acres; (2) that they were small land owners because each of them was holding only 24 standard acres and the Explanation to section 2(3) had no application to them because the land was allotted to their father who was a displaced person; and (3) that while computing the "permissible area" uncultivated Banjar land which does not fall within the definition of "land" for the purposes of the 1953 Act had wrongly been included.
Rejecting contentions (1) and (2), ^ HELD: 1.
The language of section 2(3) proclaims in no uncertain terms the legislative imperative that no land owner or tenant shall hold land exceeding 30 standard acres or 60 ordinary acres.
The words "such thirty acres" occurring in the definition cannot be construed to limit the conversion into ordinary acres only to a case where the holding is thirty standard acres and not less.
The concept of standard acre being "a measure of area convertible into ordinary acres of any class of land according to the prescribed scale with reference to the quantity of yield and quality of soil" has been introduced in the definition of "permissible area" to emphasise the qualitative aspect of a landholding and the maximum limit of sixty acres delineates its quantitative aspect.
[850 G, F] 2.
The appellants were not displaced persons within the meaning of proviso (ii) to section 2(3).
They were heirs of a displaced person who died after his migration of India.
Therefore, proviso (ii) had no application to the appellants.
The Explanation clearly excludes application of proviso (ii) to their case, which is fully covered by the substantive part of the definition of "permissible area" under which the maximum they could hold was sixty ordinary acres.
At the material time, each of them was holding land in excess of the sixty ordinary acres and therefore, they were not 'small land owners. ' [851 D F] Accepting the third contention and allowing the appeal and remitting the case to the Collector concerned.
[852 F].
HELD that 3.
(a) Banjar Qadim and Banjar Jadid cannot be taken into account while computing the surplus area under the Act because, not being occupied or let for agricultural purposes or purposes subservient to agriculture, it does not fall within the purview of 'land ' under the Act.
[852 B C] Nemi Chand Jain vs Financial Commissioner, Punjab, AIR 1964 Punj. 373; approved.
(b) The Assistant Collector should ascertain the extent of the Banjar Qadim and Banjar Jadid and Gair Mumkin area of the appellants at the relevant date and recompute their permissible area after excluding such areas.
[852 G].


judgement:
Appeal No. 17 of 1954.
Appeal by Special Leave from the Judgment and Order dated the 11th day of June 1951 of the Punjab High Court in Civil Reference No. 2 of 1951.
Hardyal Hardy and Sardar Singh, for the appellant.
C. K. Daphtary, Solicitor General of India (G. N. Joshi and R. H. Dhebar, with him) for the 'respondent.
February 21.
The Judgment of the Court was delivered by VENKATARIAMA AYYAR J.
The appellant is a firm carrying on business at Ludhiana in the Punjab.
The Income tax Officer assessed its income for 1945 1946 at Rs. 71,186, and on 17 9 1947 a notice of demand was served on it for Rs. 29,857 6 0 on account of income tax and super tax.
The appellant preferred an 168 appeal against the assessment, and it was actually received in the office of the Appellate Assistant Commissioner on 5 11 1947.
It was then out of time by 19 days; but the appeal was registered as No. 86, and notice for hearing under section 31 was issued for 13 12 1947, and after undergoing several adjournments, it was actually heard on 1 10 1948.
For the year 1946 1947, the Income tax Officer assessed the income of the firm at Rs. 1,09,883, and on 29 9 1947 a notice of demand was served on it for Rs. 51,313 14 0 on account of income tax and super tax.
The appellant preferred an appeal against this assessment, and it was actually received in the office of the Appellate Assistant Commissioner on 5 11 1947, and it was then 7 days out of time.
It was registered as No. 89, and notice for hearing under section 31 was issued for 24 6 1948.
Eventually, it was heard along with Appeal No. 86 on 1 10 1948.
At the hearing, the Department took the objection that the appeals were presented out of time, and were therefore liable to be dismissed.
The appellant prayed for condonation of the delay on the ground that following on the partition of the country the conditions were very unsettled, that curfew order had been promulgated and was in force, and that the post office did not accept registered letters, and that the traffic on the Grand Trunk Road was closed., and that in view of these exceptional circumstances, it bad sufficient cause for not presenting the appeals in time.
On 31 12 1948 the Appellate Assistant Commissioner passed orders in both the appeals, holding that there was not sufficient ground for condoning the delay, and rejecting them in limine.
These orders were purported to be passed under section 31 read along with section 30(2).
Against these orders, the appellant preferred appeals under section 33 of the Act to the Appellate Tribunal which by its order dated 4 4 1950 dismissed them on the ground that the orders of the Assistant Commissioner were in substance passed under section 30 (2) and not under section 31 and that no appeal lay against them under section 33, On the applica 169 tions of the appellant, the Tribunal referred under section 66(1) of the Income Tax Act the following question for the decision of the High Court of Punjab: "Whether in the circumstances of the case appeals lay to the Tribunal against orders of the Appellate Assistant Commissioner dismissing the appeals against the assessments for the years 19451946 and 1946 1947 in limine".
The reference was beard by Khosla and Harnam Singh JJ., who held following an earlier decision of that court in Dewan Chand vs Commissioner of Incometax(1) that the orders of the Appellate Assistant Commissioner were under section 30(2) and not appealable under section 33.
Certificate to appeal to this Court against this order having been refused by the High Court, the appellant applied for and obtained leave to appeal to this Court under article 136 of the Con stitution, and that is how the appeal comes before US.
The provisions of the Act bearing on the question may now be referred to.
Section 30(1) confers on the assessee a right of appeal against orders passed under the sections specified therein.
Section 30(2) provides that the appeal shall ordinarily be presented within thirty days of the order of assessment, but the Appellate Assistant Commissioner may admit an appeal after the expiration of the period if he is satisfied that the appellant bad sufficient cause for not presenting it within that period.
Section 30(3) provides that "the appeal shall be in the prescribed form and shall be verified in the prescribed manner".
Section 31(1) enacts that "the Appellate Assistant Commis sioner shall fix a day and place for the hearing of the appeal, and may from time to time adjourn the hearing".
Section 31(3) specifies the orders that may be passed in appeals according as they are directed against orders passed under the one or the other of the sections of the Act which are specified in section 30(1).
When the appeal is against an order of assessment under section 23 and this is what we are con (1) (1951] 20 , 170 cerned with in this appeal it is provided in section 31(3), clauses (a) and (b) that in disposing of the appeal the Appellate Assistant Commissioner may (a) confirm, reduce, enhance or annul the assessment, or (b) set aside the assessment and direct the.
Incometax Officer to make a fresh assessment after making such further enquiry as the Income tax Officer thinks fit.
Section 33(1) enacts that, "Any assessee objecting to an order passed by an Appellate Assistant Commissioner under section 28 or section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him".
Stated succinctly, section 30 confers a right of appeal on the assessee, section 31 provides for the hearing and disposal of the appeal, and section 33 confers a right of further appeal against orders passed under section 31, Now, on these provisions the question is whether an order dismissing an appeal presented under section 30 as out of time is one under section 30(2) or under section 31 of the Act.
If it is the former, there is no appeal provided against it; if it is the latter, it is open to appeal under section 33.
On this question, there has been a sharp conflict of opinion among different High Courts and even among different Benches of the same High Court.
The Bombay High Court has held that when an appeal is presented out of time, and there is no order of condonation of delay under section 30(2), there is, in law, no appeal before the Appellate Assistant Commissioner, and that an order by him rejecting the appeal does not fall within section 31 and is not appealable: Commissioner of Income tax vs Mysore Iron and Steel Works(1) and K. K. Porbunderwalla vs Commissioner of Income tax(2); but that if the appeal is admitted after an order of condonation is made under section 30(2), an order subsequently passed dismissing it on the ground of limitation would be one under section 31 and would be appealable under section 33 and the result will be the same even when the appeal is admitted without (1) .[1949] , (2) 171 any order of condonation under section 30(2): Champalal A sharam vs Commissioner of Income tax(1).
The High Court of Allahabad has also taken the same view, and held that an order refusing to condone delay and rejecting an appeal before it was admitted was not one under section 31 and was not appealable: Vide Shivnath Prasad vs Commissioner of Income tax, Central and U. P.(3) and Municipal Board, Agra vs Commissioner of Income tax, U. P.( 3 ); but that ail order dismissing the appeal as time barred after it had been admitted was one under section 31 and was appeable: Mohd. Nain Mohd. Alam vs Commissioner of Income tax(1).
The High Court of Punjab has held following Shivnath Prasad vs Commissioner of Incometax, Central and U. P.(2) and Commissioner of Incometax vs Mysore Iron and Steel Works(5) that when the Appellate Assistant Commissioner declines to condone delay and rejects the appeal, it is one under section 30(2) and not appealable.
It has further held that even if the appeal bad been admitted without an order of condonation and dismissed at the hearing on the ground of limitation, it would not be under section 31, because the scheme of the Act contemplated that an order to be passed under that section must relate to the merits of the assessment.
It is on this decision that the judgment under appeal is based It may be mentioned that the decision in Dewan Chand vs Commissioner of Income tax(6) was dissented from in a recent decision of the Punjab High Court in General Agencies vs Income tax Commissioner(7) .
In Commissioner of Income tax vs Shahzadi Begum the Madras High Court has held that an order declining to excuse delay and rejecting the appeal is one under section 31, whether it is made before the appeal is admitted or after, and that an appeal which is filed out of time is, nonetheless, an appeal for purposes of section 31, and that an order dismissing it would be appealable under section 33.
In Gour Mohan (1) , (3) (5) (7) A.I R. 1956 Punjab 26.
(2) (4) (6) (8) 172 Mullick vs Commissioner of Agricultural Income tax(1), the Calcutta High Court has, after a full discussion, come to the conclusion that an order of dismissal on the ground of limitation at whatever stage was one which fell under section 31.
It is unnecessary to refer to the views expressed in decisions of other High Courts, as the point now under discussion did not directly arise for decision therein.
The question is which of these views is the correct one to adopt.
We start with this that under section 33 it is only orders under section 31 that are appealable.
The question therefore narrows itself to this whether an order declining to condone delay and dismissing the appeal as barred by time is an order under section 31.
It will be, if it is passed in appeal against an order of assessment, and is one which affirms it.
Now, the conflicting views expressed by the several High Courts centre round two points: (1) when an appeal is presented out of time and there has been a refusal to condone delay under section 30(2), is an order rejecting it as time barred one passed in appeal; and (2) if it is, is such an order one confirming the assessment within section 31(3)(a)? On the first point, as already stated, it has been held by the Bombay High Court that while an order dismissing an appeal as time barred after it is admitted is one under section 31, a similar order passed before it is admitted is one under section 30(2).
The ratio of this distinction is stated to be that in law there is no appeal unless it is presented in time, and if presented beyond time, unless the delay is excused.
In Commissioner of Income tax vs Mysore Iron and Steel Works(2), Chagla, C.J. stated the position thus: "An asseesee has a statutory right to present an appeal within thirty days without any order being required from the Appellate Assistant Commissioner for admission of that appeal.
But if the time prescribed expires, then that statutory right to present an appeal goes; and an appeal can only be entertained provided it is admitted by the Appellate Assistant Commissioner after condoning the delay.
(1) (2) 173 Therefore before an appeal could be admitted in this case, an order from the Appellate Assistant Commissioner was requisite that the delay had been condoned and it was only on such an order being made that the appeal could be entertained by the Appellate Assistant Commissioner.
Now section 31 deals only with such appeals which are presented within the prescribed period or admitted after the delay has been condoned, and the procedure laid down in section 31 with regard to the hearing of appeals only applies to such appeals.
Therefore, in my opinion, when the Appellate Assistant Commissioner refused to condone the delay, there was no appeal before him which he could hear and dispose of as provided under section 31 of the Act.
Section 33 then gives the right of appeal to the assessee from an order made by the Appellate Assistant Commissioner either under section 28 or under section 31.
Therefore the Legislature did not give the right of appeal to the assessee against an order made by the Appellate Assistant Commissioner under section 30 of the Act".
Learned counsel for the appellant disputes the correctness of the last observation that an order of the Appellate Assistant comissioner refusing to condone the delay is one under section 30(2), and contends that the only order that could be passed under that section was one excusing delay, and an order refusing to condone it will fall outside it, and that such an order could only be made under section 31.
We find it difficult to accede to this contention.
When power is granted to an authority to be exercised at his discretion, it is necessarily implicit in the grant that he may exercise it in such manner as the circumstances might warrant.
And if the Appellate Assistant Commissioner has a discretion to excuse the delay, he has also a discretion in appropriate cases to decline to do so.
We are therefore of opinion that the refusal to excuse delay is an order under section 30(2.).
But the question still remains whether the view taken in Commissioner of Income tax vs Mysore Iron 23 174 and Steel Works(1) and K. K. Porbunderwalla v Commissioner of Income tax (2) that an appeal which is filed beyond the period of limitation is, in the eye of law, no appeal, unless and until there is a condonation of delay, and that, in consequence, an order passed thereon cannot be held to be passed in appeal so as to fall within section 31 is right.
Now, a right of appeal is a substantive right, and is a creature of the statute.
Section 30(1) confers on the assessee a right of appeal against certain orders, and an order of assessment under section 23 is one of them.
The appellant therefore had a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income tax Officer.
Then, we come to section 30(2), which enacts a period of limitation within which this right is to be exercised.
If an appeal, is not presented within that time, does that cease to be an appeal as provided under section 30(1)? It is well established that rules of limitation, pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right.
An appeal preferred in accordance with section 30(1) must, therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in section 30(2) it is liable to be dismissed in limine.
There might be a provision in the statute that at the end of the period of limitation prescribed, the right would be extinguished, as for example, section 28 of the Limitation Act; but there is none such here.
On the other hand, in conferring a right of appeal under section 30(1) and prescribing a period of limitation for the exercise thereof separately under section 30 (2), the legislature has evinced an intention to maintain the distinction well recognised under the general law between what is a substantive right and what is a matter of procedural law.
In Nagendranath Dey vs Suresh Chandra Dey(3) Sir Dinshaw Mulla construing the word ' appeal ' in the third column of article 182 of the Limitation Act observed: "There is no definition of appeal in the Civil Pro (1) (2) (3) 59 I.A. 283, 287.
175 cedure Code, but their Lordships have no doubt that any application by a party to an appellate, Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent".
These observations were referred to with approval and adopted by this Court in Raja Kulkarni and others vs The State of Bombay(1).
In Promotho Nath Roy vs W. A. Lee(2), an order dismissing an application as barred by limitation after rejecting an application under section 5 of the Limitation Act to excuse the delay in presentation was held to be one "passed on appeal" within the meaning of section 109 of the Civil Procedure Code.
On the principles laid down in these decisions, it must be held that an appeal pre sented out of time is an appeal, and an order dismissing it as time barred is one passed in appeal.
Then, the next question is whether it is an order passed under section 31 of the Act.
That section is the only provision relating to the hearing and disposal of appeals, and if an order dismissing an appeal as barred by limitation is one passed in appeal, it must fall within section 31.
And as section 33 confers a right of appeal against all orders passed under section 31, it must also be appealable.
But then, it is contended that in an appeal against assessment the only order that could be passed under section 31 (3)(a) is one which confirms, reduces, enhances or annuls the assessment, that such an order could be made only on a consideration of the merits of the appeal, and that an order dismissing it on the ground of limitation is not within the section.
That was the view taken in Dewan Chand vs Commissioner of Income tax(3).
But there is practically a unanimity of opinion among all the other High Courts that to fall within the section it is not necessary that the order should expressly address itself to and decide on the merits of the assessment, and that it is sufficient that the effect of the order is to confirm the assessment (1) [1954] S.C.R. 384, 388.
(2) A.I.R. 1921 Cal.
(3) 176 as when the appeal is dismissed on a preliminary point.
In Commissioner of Income tax vs Shahzadi Begum(1), Satyanarayana Rao, J. said: "If the appeal is dismissed as incompetent or is rejected as it was filed out of time and no sufficient cause was established, it results in an affirmation of the order appealed against".
In Gour Mohan Mullick vs Commissioner of Agricultural Income tax(2), construing sections 34, 35 and 36 of the Bengal Agricultural Income Tax Act which are in terms identical with those of sections 30, 31 and 33 of the Indian Income Tax Act, Chakravarti, J. observed: "I would base that view on the ground that the order, in effect, confirmed the assessment or, at any rate, disposed of the appeal and was thus an order under section 35, because what that section really contemplates is a disposal or conclusion of the appeal and the forms of orders specified in it are not exhaustive.
An appellate order may not, directly and by itself, confirm, or reduce or enhance or annul an assessment and may yet dispose of the appeal.
If it does so, it is immaterial whether the ground is a finding that the appeal is barred by limitation or a finding that the case is not a fit one for extension of time or both".
This reasoning is also the basis of the decisions of the Bombay and Allahabad High Courts which bold that an order rejecting an appeal on the ground of limitation after it had been admitted is one under section 31, though there is no consideration of the merits of the assessment.
Thus, in K. K. Porbunderwalla vs Commissioner of Income tax(3), Chagla, C. J. observed: ``. although the Appellate Assistant Commis sioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under section 31 and the effect of that order was to confirm the assessment which bad been made by the Income tax Officer".
In Special Manager of Court of Wards vs Commissioner (1) (2) (3) 177 of Income tax(1), the Allahabad High Court stated that the view was "possible that even though the period of limitation is prescribed under section 30 and the power to grant extension is also given in that section the power is really exercised under section 31 as the Appellate Assistant Commissioner when he decides not to extend the period of limitation may be said in a sense to have confirmed the assessment".
The respondent relied on a later decision of the) 'Allahabad High Court in Mahabir Prasad Niranjanlal vs Commissioner of Income tax(2), wherein it was held by the learned Judges, departing from the previous course of authorities of that court, that an order of the Appellate Assistant Commissioner dismissing an appeal as time barred was one under section 30(2) and not under section 31, and was therefore not appealable.
This conclusion they felt themselves bound to adopt by reason of certain observations of this Court in Commissioner of Income tax, Madras vs Mtt.
section Ar.
Arunachalam Chettiar(3).
But when read in the context of the point that actually arose for decision in that case, those observations lend no support to the conclusion reached by the learned Judges.
There, the facts were that an appeal was preferred by the assessee under section 30(1) against an order of the Income tax Officer, and that was dismissed by the Appellate Assistant Commissioner on 19 11 1945 as incompetent.
No appeal was filed against this order, and it became final.
But acting on a suggestion made in the order dated 19 11 1945, the assessee filed an original miscellaneous application before the Appellate Tribunal for relief, and by its order dated 20 2 1946 the Tribunal set aside the findings of the Income tax Officer, and directed him to make a fresh computation.
Then, on the application of the Commissioner of Income tax, the Tribunal referred to the High Court under section 66(1) of the Income tax Act the following question: "Whether in the facts and circumstances of the case, the order of the Bench dated 20th February, (1) , 212.
(2 ) (3) ; 474 475, 178 1946 in the miscellaneous application is an approoriate order and is legally valid and passed within the jurisdiction and binding on the Income tax Officer".
The High Court declined to answer this reference on the ground that the order of the Tribunal was not one passed in an appeal under section 33(1), and that In consequence, the reference under section 66(1) was itself incompetent.
The correctness of this decision was challenged on appeal to this Court, and in affirm ing it, this Court observed: . . when on 19th November 1945, the Appellate Assistant Commissioner declined to admit the appeal, the assessee did not prefer any appeal but only made a miscellaneous application before the Appellate Tribunal.
There is no provision in the Act permitting such an application.
Indeed, in the statement of the case the Appellate Tribunal states that in entertaining that application and correcting the error of the Income tax Officer it acted in exercise of what it regarded as its inherent powers.
There being no appeal under section 33(1) and the order having been made in exercise of its supposed inherent jurisdiction, the order cannot possibly be regarded as one under section 33(4) and there being no order under section 33(4) there could be no reference under section 66(1) or (2), and the appellate Court properly refused to entertain it".
There is, of course, nothing in the decision itself which bears on the point now under discussion.
But certain observations occurring at pages 474 and 475 were referred to by the learned Judges as leading to the conclusion that an order dismissing an appeal as barred by time would fall undersection 3O(2).
Now, those observations came to be made by way of answer to a new contention put forward by the learned, Attorney General in support of the appeal.
That contention was that the miscellaneous application presented to the Tribunal might be treated as an appeal against the order dated 19 11 1945, in which case the order passed thereon on 20 2 1946 would fall under section 33(4) and the reference would be com 179 petent. 'In disagreeing with this contention, this Court observed that the appeal to the Appellate Assistant Commissioner was incompetent under section 30(1), that even if it was competent, the order dated 19 11 1945 was not one contemplated by section 31, and there could be no appeal against such an order under section 33(1).
Now, it should be noticed that the question actually referred under section 66(1) was the correctness and legality of the order passed in a miscellaneous application and not of any order made in an appeal preferred under section 33(1).
In this context, the point sought to be raised by the learned, Attorney General did not arise at all for decision, and the observations in answer thereto cannot be read as a pronouncement on the question of the maintainability of the appeal, much less as a decision that an order dismissing an appeal as barred by limitation is one under section 30(2).
Accordingly, the question whether an order dismissing an appeal as barred by limitation falls under section 30(2) or section 31 remains unaffected by the observations in Commis sioner of Income tax, Madras vs Mtt.
section Ar.
Aruna chalam Chettiar(1).
Then again, under the provisions of the Act, limitation is not the only preliminary ground on which an appeal could be disposed of without a consideration of the merits.
Section 30(3) provides that an "appeal shall be in the prescribed form and shall be verified in the prescribed manner".
If the Appellate Assistant Commissioner holds that the appeal does not comply with the requirements of this enactment and rejects it on that ground, the order must be one made under section 31, since section 30(3) makes no provision for such an order, as does section 30(2) in the case of limitation.
All the orders under section 31 being appealable under section 33, the order of dismissal for noncompliance with section 30(3) must also be appealable, and it was so decided in Maharani Gyan Manjari Kuari vs Commissioner of Income tax(2) .
How is this view to be reconciled with the contention that section 31 contemplates only orders on the (1) ; (2) 180 merits of the assessment and not on preliminary issues? Vide also the decision in Kunwarji Ananda vs Commissioner of Income tax(1), which was followed in Maharani Gyan Manjari Kuari vs Commissioner of Income tax(2), and in Ramnarayana Das Mandal vs Commissioner of Income tax(3).
There is thus abundant authority for the position that section 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues, such as limitation and the like.
The learned Solicitor General sought to get over these decisions by taking up the position that section 31(3) (a) construed in its literal and ordinary sense, conferred jurisdiction on the Appellate Assistant Commissioner only to pass orders on the merits of the assessment, that it was not therefore open to him to entertain any question which did not directly relate to such merits, and that accordingly he could not hear or decide any issue of a preliminary nature such as limitation, and dispose of the appeal on the ,basis of the finding on that issue.
He conceded that this contention would run counter to numerous authorities, but argued that they were all wrong.
Having given due consideration to this contention, we are of opinion that it is not well founded.
Taking the plea of limitation which is what we are concerned with in this appeal when there is a judgment or order against which the statute provides a right of appeal but none is preferred within the time prescribed therefor, the respondent acquires a valuable right, of which he cannot be deprived by an order condoning delay and admitting the appeal behind his back.
And when such an order is passed ex partehe has a right to challenge its correctness at the bearing of the appeal.
That is the position under the general law (vide Krishnasami .
Panikondar vs Ramasami Chettiar(4), and there is nothing in the provisions of the Income Tax Act, which enacts a different principle.
(1) I L.R. 11 Patna 187; A.I.R. 1931 Patna 306; 5 I.T.C. 417.
(2) [1944]12 I.T.R. 59.
(3) (4) Mad. 412; 45 I.A. 25.
181 Therefore, if an appeal is admitted without the fact of delay in presentation having been noticed, clearly it must be open to the Department to raise the objection at the time of the hearing of the appeal.
That would also appear to be the practice obtaining before.
the Income tax Tribunal, as appears from the decisions cited before us, and that, in our opinion, is right.
Similar considerations would apply to other objections of a preliminary character, such as one based on section 30, sub section (3).
We should be slow to adopt a construction which deprives parties of valuable rights.
We are therefore of opinion that contentions relating to preliminary issues are open to consideration at the time of the hearing of the appeal, and that the jurisdiction of the Appellate Assistant Commissioner is not limited to the bearing of the appeal on the merits of the assessment only.
In this view, the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time barred would be orders passed under section 31 and would be open to appeal, and it would make no difference in the position whether the order of dismissal is made before or after the appeal is admitted.
The question referred must accordingly be answered in the affirmative.
This appeal will therefore be allowed, and the order of the court below set aside.
The appellant will have his costs here and in the court below.

summary/full:
The appellant firm filed appeals against orders assessing it to income tax and super tax for the years 1945 1946 and 1946 1947 beyond the time prescribed by section 30(2) of the Income tax Act.
The appeals were numbered, and notices were issued for their hearing under section 31.
At the hearing of the appeals before the Appellate Assistant Commissioner, the Department took the objection that the appeals were barred by time.
The appellant prayed for condonation of delay, but that was refused, and the appeals were dismissed as time barred.
The appellant then preferred appeals against the orders of dismissal to the Tribunal under section 33 of the Act, and the Tribunal dismissed them on the ground that the orders of the Assistant Commissioner were in substance passed under section 30(2) and not under section 31 of the Act and that no appeal lay against them under section 33 of the Act.
On a reference under section 66(1) of the Act the High Court held that the orders of the Appellate Assistant Commissioner were made under section 30(2) and were not appealable under section 33 of the Act.
On appeal by special leave to the Supreme Court the question for determination was whether an order dismissing an appeal presented under section 30 as out of time was one under section 30(2) or under section 31 of the Act because if it was the former there was no appeal provided against it; if it was the latter it was open to appeal under section 33.
Held that the orders of the Appellate Assistant Commissioner fell within section 31.
A right of appeal is a substantive right and is a creature of the statute.
section 30(1) confers on the assessee a right of appeal against certain orders and an order of assessment under section 23 is one of them.
The appellant had therefore a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income Tax Officer.
167 An appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in appeal.
Section 31 is the only provision relating to the hearing and disposal of appeals and if an order dismissing an appeal as barred by limitation as in the present case is one passed in appeal it must fall within section 31 and as section 33 confers a right of appeal against all orders passed under section 31, it must also be appealable.
To fall within section 31 it is not necessary that the order should expressly address itself to and decide on the merits of the assessment and it is sufficient that the effect of the order is to confirm the assessment as when the appeal is dismissed on a preliminary point.
An order rejecting an appeal on the, ground of limitation after it had been admitted is one under section 31, though there is no consideration of the merits of the assessment.
Held therefore that the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time barred would be orders passed under section 31 and would be open to appeal, and it would make no difference in the position whether the orders of dismissal were made before or after the appeals were admitted.
Commissioner of Income tax, Madras vs Mtt.
`r. section Ar.
Arunachalam Chettiar, ([1953] S.C.R. 463), explained.
Case law discussed.