judgement:
Civil Appeal Nos.
12 10 to 12 17 of 1980 etc.
From the Judgment and Order dated the 22nd April, 1980 of the 445 Andhra Pradesh High Court in Writ Appeal Nos.
499, 500 to 505 of 1979 and 144 of 1980.
Anil Dev Singh, G.B. Pai, K. Madhva Reddy, P.A. Choud hary, Hemant Sharma, P. ParmeshWaran, B. Parthasarthi, C.V. Subba Rao, Abbas Naqvi, R.P. Gupta, N.K. Nair, B. Kanta Rao, Chandrashekhar Panda, A.T.M. Sampath, P.N. Ramalingam, R.D. Upadhyay, Ms.S. Janani and A. Subba Rao for the appearing parties.
It may be noted that, except in C.A. 3044/89, the Union of India is the appellant.
The short common question arising in this large batch of appeals is: who is the authority competent to initiate disciplinary proceedings against the Government servants who are the parties here (hereinafter referred to, for conven ience, as 'the respondents ')? There are two sets of appeals before us, one arising out of proceedings in the Ministry of Defence, and the other in the Ministry of Railways.
The rules governing the former are the Central Civil Services (Classification, Control & Appeal) Rules (hereinafter re ferred to as "the Civil Services rules") and those governing the latter are the Railway Servants (Discipline and Appeal) Rules (hereinafter referred to as 'the Railway rules ').
S/Shri G.B. Pai, Anil Dev Singh, P.A. Choudhary, Madhava Reddy, B. Kanta Rao, A. Subba Rao, A.T.M. Sampath, R.D. Upadhyay and others have argued the matters at length and in great detail and we proceed to dispose of these appeals after considering all the aspects urged before us.
We shall take Daniel 's case (C.A. Nos.
1210 to 1217 of 1,980) as illustrative of the cases under the Civil Service Rules.
Though the employees in these and connected matters are Class III employees of Research Laboratories attached to the Ministry of Defence (shortly referred to as DRDL, DMAL, DERL and DLRL), they are serving in civil posts therein and, hence, governed by the Civil Service Rules.
They had been appointed by the Director of the Laboratory.
Disciplinary proceedings were initiated against them by the Director.
There is, therefore, no possibility of any eventual viola tion of the constitutional prohibition in Article 311(1) against a Government servant being dis 446 missed or removed from office by an authority subordinate to the appointing authority.
Still, the respondents contend that the Director is not competent to initiate disciplinary proceedings against them and that it is only the Scientific Adviser to the Government of India a higher authority that can do so.
This contention, based on the relevant provisions of the Civil Service Rules, proceeds on the following lines.
Rules 12 and 13 of the Civil Service Rules deal with this topic and read as follows: "12.
Disciplinary Authorities (1)The President may impose any of the penalties specified in rule 11 on any Government servant.
(2) Without prejudice to the provisions of sub rule (1), but subject to the provisions of sub rule (4), any of the penal ties specified in rule 11 may be imposed on (a) xx XX xx (b) a person appointed to a Central Civil post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf.
Authority to institute proceedings (1) The President or any other authority empowered by him by general or special order may (a) institute disciplinary proceedings against any Govern ment servant; (b) direct a disciplinary authority to institute discipli nary proceedings against any Government servant on whom that disciplinary authority is competent to impose under I these rules any of the penalties specified in rule 11.
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of 447 rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penal ties specified in clauses (v) to (ix) of rule 11 notwith standing that such disciplinary authority is not competent under these rules to impose any of the latter penalties.
" In these cases, the disciplinary proceedings have been instituted neither by the President nor by an authority directed by him to do so, nor by any other authority empow ered by him, by general or special order, to do so.
The disciplinary authority (D.A.) in the present case, there fore, has to be in terms of rule 12(2)(b), "the appointing authority or the authority specified in the schedule in this behalf".
The "authority specified in the schedule in this behalf", admittedly, is the Scientific Adviser to the Gov ernment of India.
The question next is whether the Director is the "appointing authority" in the case of the respond ents.
This matter is dealt within Rule 9(1) mad with its proviso which read thus: "9. Appointments to other Services and Posts (1) All appointments to the Central Civil Services (other than the General Central Service) Class II, Class III and Class IV, shall be made by authorities specified in this behalf in the Schedule." "Provided that in respect of Class III and Class IV civilian services, or civilian posts m the Defence services appoint ments may be made by officers empowered in this behalf by the aforesaid authorities.
" The 'appointing authority ' specified in the schedule referred to in Rule 9(1), in the case of the respondents, is, again, the Scientific Adviser to the Government of India.
But, by a notification made in exercise of the power conferred by the proviso, he had authorised the Director to make appointments to Class III and Class IV posts in his establishment and, it is common ground, the Director had appointed the respondents in exercise of that power.
In other words, there is no dispute that the Director is the "appointing authority" of the respondents not only in the sense that he was empowered to appoint them under rule 9 but also in the sense that he actually made these appointments.
Nevertheless, it is said, he is not the 'appointing authori ty ' in the case of the respondents within the meaning of rule 12(2)(b).
In support of this argument, attention is drawn to rule 2 which contains 448 the definitions of various expressions for the purposes of the rules which will be applicable in the absence of any thing to the contrary in the relevant context.
Rule 2(a) reads: "(a) 'appointing authority ' in relation to a Government servant means (i) the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the service in which the Government servant is for the time being included, or (ii) the authority empowered to make appointments to the posts which the Government servant for the time being holds, or (iii) the authority which appointed the Government servant to such Service, grade or post, as the case may be, or (iv) where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post.
whichever authority is the highest authority.
" It will be noticed that this clause refers to two classes of persons: (a) the authority empowered to make appointments to the service, grade or post with which we are concerned sub clauses (i) and (ii) and (b) the authority who actually appointed the Government servant to the service, grade or post in question sub clauses (iii) and (iv).
Each of these is sub divided into two categories but we need not, for the purposes of the present cases, bother about this sub divi sion.
Stopping here, it will be seen, as pointed out al ready, that the Director falls under both the above catego ries as he is empowered to appoint the respondents by virtue of the power delegated to him under the proviso to rule 9(1) and as he has also factually appointed them.
But, it is said, the Scientific Adviser to the Government of India, notwithstanding his having delegated his power to the Direc tor under the proviso, also continues to be an authority empowered to appoint persons to the posts in question under rule 9(1) read with the schedule.
So under the 449 first category of persons indicated above as referred to in rule 2(a) there are two authorities the Scientific Adviser and the Director and under the second category we have the Director.
And, here comes the crucial point on which the respondents bank their entire case: the last few words of rule 2(a) make it clear and specific that the expression 'appointing authority ' means the highest of the authorities mentioned in sub clauses (i) to (iv).
So, it is said, the 'appointing authority ' for purposes of rule 12(2)(b), in the instant case, will be the highest of the three authorities we have referred to above, viz. the Scientific Adviser to the Government of India.
In short, it is contended that, by using the last few significant words in rule 2(a), the Civil Rules seek to ensure that, though the power to appoint persons to a particular post, grade or service may be dele gated under the proviso to rule 9(1), such delegation should not extend to the exercise of disciplinary powers.
It is the clear intention of the rule makers, it is argued, that disciplinary powers should continue to vest in the appoint ing authority mentioned in the schedule read with rule 9(1) and should not be allowed to be exercised by his delegate under the proviso.
The emphasis, it is said, is not on the person who has made, or is empowered to make, the appoint ment of the particular civil servant in question; it is on the person Who makes, or is empowered to make, appointment of persons generally to the post, grade or service to which the civil servant in question belongs.
It is, therefore, urged that though one Class III servants in the laboratory may be appointed by the Director and another by the Scien tific Adviser (who can make such appointment despite the delegation), the disciplinary authority for both and, indeed for all class III servants in the Laboratory, must be the same and cannot be different.
This interpretation of rule 2(a), it is said, is not only quite plain on the language used but has also received the approval of this Court in Dharam Der vs Union, ; Further force is sought to be lent to the argument by pointing out that the expression 'appointing authority ' is used only in rules 2, 10, 12 and 24 of, and the schedule to, the Civil Service rules and that, to refuse to give effect to the definition for purposes of rule 12 is to render the definition clause virtually otiose.
This plea was upheld by the Andhra Pradesh High Court in Danial 's case and, following it, in the other cases before us.
A similar view has been taken in the Delhi High Court in Murishwar vs Union, [1976] Service Law Cases 82 in Union vs Tarlok Singh, cited there in, and by the Calcutta High Court in Union vs Choudhury, But a contrary view has been taken by the M.P. High Court in Chaudhury vs Union, [1977] All India Services Journal 1) and by the Andhra Pradesh High Court in W.A. 793/83 and W.P. 2441/79.
450 The position in respect of ordnance factories which has to be considered in some of the cases is identical, except for the nomenclatures of the respective authorities, and does not need any separate discussion.
To turn, next, to the railway cases, we are concerned with appointees to Group C and Group D of the services, which correspond to class III and class IV of the Civil Services.
In respect of these persons, the relevant provi sions are as follows: "2(1)(a) 'Appointing Authority ', in relation to railway servant, means: (i) the authority empowered to make appointments to the service of which the railway servant is, for the time being, a member or to the grade of the Service in which the railway servant is, for the time being, included, or (ii) the authority empowered to make appointments to the post which the Railway servant, for the time being holds, or (iii) the authority which appointed the Railway servant to such Service, grade or post, as the case may be, or (iv) where the Railway servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment under the Ministry of Railways, the authority which appoint ed him to that service or to any grade in that Service or to that post whichever authority is highest authority".
"2(1)(c) 'Disciplinary Authority ' means (i) in relation to the imposition of a penalty on a Railway Servant, the authority competent, under these rules, to impose on him that penalty; (ii) in relation to rule 9 and clauses (a) and (b) of sub rule (1) of Rule 11 in the case of any Gazetted Railway servant, an authority competent to impose any of the penal ties specified in rule 6. 451 (iii) in relation to rule 9 in the case of any non gazetted Railway servant, an authority competent to impose any of the major penalties specified in rule 6; (iv) in relation to clauses (a) and (b) of sub rule (1) of Rule 11, in the case of a non gazetted Railway servant, an authority competent to impose any of the penalties specified in Rule 6".
Disciplinary authorities (1) The President may impose any of the penalties specified in Rule 6 on any Railway Servant.
(2) Without prejudice to the provisions of sub rule (1), any of the penalties specified in Rule 6 may be imposed on a Railway servant by the authorities as specified in Schedules I, II and III.
(3) The disciplinary authority in the cases of a Railway Servant officiating in a higher post, shall be determined with reference to the officiating post held by him at the time of taking action".
Authority to institute proceeding. (1) The President, or any other authority empowered by him, by general or special order, may (a) institute disciplinary proceedings against any Railway servant; (b) direct a disciplinary authority to institute discipli nary proceedings against any Railway servant on whom that disciplinary proceedings against any Railway servant on whom that disciplinary authority is competent to impose, under these rules, any of the penalties specified in rule 6.
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of Rule 6 may, subject to the provisions of clause (c) of subrule (1) of rule 2, institute disciplinary proceedings against any Railway servant for imposition of any of the penalties 452 specified in clauses (v) to (ix) of rule 6, notwithstanding that such disciplinary authority is not competent under these rules, to impose any of the latter penalties".
Schedule II referred to in rule 7(2) lays down that an order of compulsory retirement, removal or dismissal from service may be ordered, in the case of a Group C or Group D Railway servant by the appointing authority or authority equivalent in rank or any higher authority and Note 2 to the Schedule mentions that such an authority may also impose any tower penalty.
Under rule 275 of the Railway Establishment Code (Vol.
I), which deals with the recruitment, training and promotion of Group C and Group D railway servants, the authority competent to make a first appointment is the General Manager or any lower authority to whom he may dele gate the power.
The General Manager of each Railway has delegated his powers under several heads.
One set of the Schedule of Delegation of Powers by the General Manager of the Southern Railway in Establishment Matters has been set out in some detail in the order of the Central Administra tive Tribunal (CAT) in the case of Gafoor Mia and Ors.
vs Director, DMRL, , (which is one of the orders in appeal before us.) It is neither useful nor neces sary to repeat them here in extenso.
Here also, the argument is that, notwithstanding the delegation of powers of ap pointment of Group C and Group D employees to various other zonal officers, the General Manager has.
not divested him self of the power to make such appointments and continues to be the 'appointing authority '.
Being the highest among the various appointing authorities, he alone stands vested with the power to institute disciplinary proceedings and impose penalties.
It is, therefore, submitted that the disciplinary proceedings, in the cases under this batch, initiated by the Divisional Superintendent and like officers were without jurisdiction and were rightly quashed by the CAT in Gaffoor Mia 's case, already referred to, and the decisions in the other matters before us following the said decision.
This, in crux, is the argument for the respondents.
Before dealing with this argument, it will perhaps be help ful to steer clear of certain minor arguments addressed by either side: (a) Sri Kanta Rao submitted that the same view as in Gafoor Mia, had been taken by the C.A.T. in Supriya Roy 's, case and that this Court has already, on 21.9.88, dismissed S.L.P. Nos.
9956 57 of 1988 filed against the said order.
This appears to be correct but the dismissal in limine of that S.L.P. 453 cannot preclude us from considering the issue in these appeals on merits.
It is seen that, in C.A. 3963/88, an application has been filed for revocation, on this ground, of the leave granted by this Court.
We dismiss this applica tion.
(b) Much store is set, on behalf of the respondents, by the decision of this Court in Dharam Dev 's case '(supra).
It is no doubt true that the decision refers to the provisions of Rule 2(a) and applies the same to the case before it.
But the context in which the case arose was a very simple and straight forward one.
In that case, the employee in question had in fact been appointed by the Comptroller and Auditor General of India (CAG) and he was the highest authority in regard to the service in question.
All that the decision pointed out was that, in view of this and of Article 311, no authority lower in rank to the CAG was competent to take action against the appellant before the Court.
The Court had no occasion to consider the type of controversy that has arisen here and did not consider either the interaction of sub clauses (i) and (iii) of clause (a) of rule 2 or the situation as to whether there could be more than one author ity empowered to appoint persons to a post, grade or service within the meaning of sub clause (i) or (ii) of clause (a) itself.
This decision is therefore not helpful and certain ly not conclusive to solve the issue arising before us.
The same is the position in regard to the decision of this Court in Om Prakash Gupta vs Union, A.I.R. 1975 S.C. 1265 which seems to have been relied on, for the Union, before the CAT.
In that case, the appellant was a temporary Government servant not holding a specified post.
All that this Court pointed out was that, if the definition in rule 2(a) was not applicable to such a person, the word 'appointing authori ty ', understood in its plain and natural meaning would mean the authority which appointed him viz.
the Director General of the Geological Survey of India.
If, on the other hand, the terms of rule 2(a) were applicable the person empowered to appoint the appellant being one Sri Moghe and the person who appointed him being the Director General the latter, who was the higher authority, would be the 'appointing authority '.
This, again, was an instance of a simple and direct application of the rule, involving no complications as here and cannot be treated as deciding the issue before us.
(c) On behalf of the appellant, the Union of India, reliance is placed on section 16 of the .
It is argued 454 that, irrespective of the provisions in the rules, a person who makes an appointment has always an implied power of suspending or dismissing him vide: Heckett Engineering Co. vs Workmen; , There are three difficul ties in accepting this argument.
In the first place, even if the argument is valid, it confers on the factual appointing authority, in terms, only a power to suspend or dismiss and not a power to conduct disciplinary proceedings or impose the various other kinds of penalties envisaged in the rules.
To say that the latter power also comes within section 16, one would need to make a further assumption that the power to suspend or dismiss is a more comprehensive power which would include the power to impose smaller penalties too and this assumption is said to run counter to the rules which deal with the two powers separately.
Secondly, section 16 app.
lies only "unless a different intention appears".
If the con struction placed on the Civil Service Rules and the Railway rules on behalf of the respondents is correct, then the rules express a different intention and it would therefore not be possible to rest on the general principle enunciated by section 16.
The contention has, therefore, to be examined independently and section 16 cannot be an answer to it.
Thirdly, section 16 applies only where a general power of appointment is conferred under an Act or Regulation.
Here the Act or Regu lation (i.e. the Rules) envisage the power of appointment conferred by them on certain authorities being delegated.
The power conferred on the delegatees is circumscribed by the instrument of such delegation and cannot be extended beyond its ambit, as observed by the C.A.T. in Gafoor Mia 's case (supra).
section 16, therefore, does not come to the rescue of the appellants.
(d) An argument was raised at the earlier stages, that the words "whichever is the highest authority" governs only subclause (iv) of rule 2(a) of the Civil Service Rules and not the other sub clauses.
This contention cannot bear a moment 's scrutiny both because the above words occur in the Rules separately from the four sub clause but also because the terms thereof clearly envisage a determination of one who, among several authorities, is the highest.
It, there fore, clearly means that the 'authorities ' falling under the definitions in sub clauses (i) to (iv) have to be ascer tained and the highest among them taken as the disciplinary authority for purposes of rule 12(2)(b).
The above discussion narrows down the controversy before us to a very short issue: Can it be said, where the appoint ing authority under 455 rule 9(1) has delegated his powers of appointment under the proviso, that both the authorities should be treated as the "authority empowered to appoint" persons to the post, grade or service or does this expression get restricted only to the latter, i.e. the delegatee authority? If both fail under the above description within the meaning of sub clause (i), the respondent 's plea that the definition in rule 2(a) will mark out only the Scientific Adviser/General Manager would be correct.
On the other hand, if the second of the above interpretation is correct, the appellant 's stand will have to be upheld.
Learned counsel for the respondents vehemently contend that the authority specified under the schedule read with rule 9(1) does not lose his authority to appoint merely by the act of delegating his powers to a subordinate authority.
Such delegation no doubt empowers the subordinate authority to appoint but does not take away the power of appointment conferred on the authority specified in the schedule read with rule 9(1).
Before dealing with the above contention, we may make reference to certain decisions cited by counsel on the consequences of such delegation.
In Roop Chand vs State, [1963] Suppl.
1 SCR 539 the petitioner had filed an appeal from the order of the Settlement Officer to the State Gov ernment under section 21(4) of the relevant Act.
But the State Government, having delegated under section 41(1) of the Act the right to hear and dispose of the appeals made to it to the Assistant Director (Consolidation), the petitioner 's appeal was disposed of by the said Officer who allowed the same.
The Respondent thereupon sought to invoke a power conferred on the State Government under section 42 of the Act to revise the orders passed by the authorities under the Act.
On a writ petition filed before it the Supreme Court quashed the revisional order passed by the State Government on the simple logic that the order passed under section 41(1) read with section 21(4) was an order of the State Government (though, in fact, passed by a delegate) and could not be "revised" by the State Government itself under section 42.
The Andhra Pradesh High Court speaking through P.A. Choudary, J. in Daniel 's case (since reported in thought that the principle of the case was of no avail to the Union of India which appears to have contended, on the strength thereof, that "though the disciplinary action was initiated by the Director, it must be treated as having been taken by the Scientific Adviser himself because the action of the Director, being that of a delegate, must be regarded in law as that of the principal himself".
The learned Judge repelled the argument, observing: 456 "The ratio of the aforesaid case is that the action of the delegate can be treated as that of the princi pal himself.
Applying the ratio of the above case to the facts of our case, it can be said at the most that the orders of appointments made by the Director, by reason of the statutory delegation made by the Scientific Adviser under Rule 9(1), are those of the Scientific Adviser him self, on the basic that the exercise, of the power delegated to an authority may be treated as an exercise of the power by the principal himself.
Accepting the principle, we cannot agree with the contention of the learned Counsel that the Director 's exer cise of the disciplinary power against the petitioners should be treated as an exercise of disciplinary authority by the Scientific Adviser himself.
The reason is too simple.
Firstly, the statute deals, throughout its provisions, with the disciplinary power as a different and separate power from the power to appoint.
Secondly, the disciplinary power is never delegated by the Scientific Adviser to the Director either under Rule 9(1) or any other rule of the CCA Rules.
It follows, therefore, that the theory of imputation to the principal the acts of the delegate can have no application to such a situation as the one before us.
We, therefore, find that the Roop Chand 's case is of no avail to the re spondents." Though Sri Choudhary, who appeared before us for the re spondents seemed to have second thoughts about this, we are of opinion that the observations extracted above set out the correct position and that the Roop Chand decision is of no help.
An attempt has been made before us to invoke the Roop Chand principle in a different way to support the case of the employees and argue that their appointments made by the Director should be treated as appointments made by the Scientific Adviser himself and that, therefore, no discipli nary action can be initiated against them by any one other than the Scientific Adviser himself.
We do not think that this argument can be accepted.
As observed in Kishore Ku mar 's case a delegation of power does not enhance or improve the hierarchical status of the delegate.
The rule in Roop Chand as to the nature and character of the power exercised by a delegate was enunciated in a particular context.
It cannot be treated as a general principle ap plicable to all situations.
In particular, in the context of rules 2(a) and 12(2) with which we are concerned and which outline a contrast between the person who is empowered to 457 appoint and the person who actually appoints, it is impossi ble to treat the Scientific Adviser/General Manager as the person who appointed the respondents.
Reference has not been made to Daluram Pannalal Modi vs Commissioner, This was a case as to the interpretation of the scope of a delegate 's power.
section 19 of the Madhya Pradesh Sales Tax Act, 1958, empowers the Commis sioner, if he is satisfied that any sale or purchase of goods, has escaped assessment, to make a reassessment.
section 30 of the Act, however, enabled the Commissioner to "delegate any of his powers and duties under the Act" and the Commis sioner, exercising this power, delegated to the Assistant Commissioner his powers and duties to make an assessment or reassessment and to exercise all other powers under Sections 18, 19 and 20.
An assessee challenged a reassessment notice issued by an Assistant Commissioner contending that what had been delegated was only the power of reassessment but not the duty of being satisfied that there was an escapement which, according to the assessee, still remained with the Commissioner.
This argument was repelled and it was held that the requirement of being satisfied was an adjunct of the power to initiate reassessment proceedings.
That princi ple cannot apply here as it is doubtful how far, in the context of the service rules which make a clear distinction between the power to appoint and the power to take discipli nary proceedings, the latter can be said to be adjunct or ancillary to the former.
This leads us to the question whether the appointing authority specified in the schedule can exercise his power of appointment to a post, cadre or service even after he has delegated that power to a subordinate authority under the proviso.
An answer to this question in the affirmative is contended for on the strength of certain authorities which may now be considered.
In Godawari section Parulekar vs State of Maharashtra, 14 the appellant had been de tained by an order passed by the State Government under rule 30 of the Defence of India Rules.
1t was contended on behalf of the appellant, inter alia, that the State Government had earlier issued a notification delegating its powers under rule 30 to the District Magistrate and was so not competent to make the order of detention in question.
Reliance was placed for this argument on the observations of the Judicial Committee in King Emperor vs Shibnath Banerjee, 72 I.A. 241.
These observations were distinguished and the above conten tion was repelled.
It was held that by issuing the notifica tion in question, the State Government had not denuded itself of the power to act under r. 30 (vide Willis J. in 458 Huth vs Clarke, [1890] 25 QBD 39 1.
Learned counsel also referred to the decision of the Karnataka High Court in Ramachandra Rao vs State, This case does hold that a power which is delegated can be exercised both by the delegator and the delegatee, though the Supreme Court decisions cited therein as deciding this issue do not seem to help.
Halsbury 4th Edn., para 32, citing Huth vs Clarke, (supra), summarises the English Law on the subject thus: "In general, a delegation of power does not imply parting with authority.
The delegating body will retain not only the power to revoke the grant but also power to act concurrently on matters within the area of delegated authority except in so far as it may already have become bound by an act of its delegate".
However, the following passage from Wade on Administrative Law (Sixth Edition) at p. 365 would seem to indicate that the position is not quite clear and may need detailed con sideration in an appropriate case: "A statutory power to delegate will normally include a power to revoke the delegation when desired.
While the delegation subsists it may be arguable whether the delegating authority is denuded of its power or is able to exercise it concur rently with the delegate.
This question arose where under statutory authority the executive committee of a county council delegated to a sub committee its powers to make regulations for the control of rabies; but before the sub committee had done anything the executive committee, without revoking the delegation, itself issued regulations for the muzzling of dogs.
These regulations were upheld, but on inconsistent grounds, one judge holding that the executive committee had resumed its power and the other that it had never parted with them, and that 'the word "delegate" means little more than an agent.
In a later case the latter view prevailed, on the ground that 'one cannot divest oneself of one 's statutory duties '.
But the contrary was held by the Court of Appeal where a minister had formally delegated to local authorities his power to requisition houses.
By doing this he had for the time being divested himself of his powers, so that an invalid requisition by the local authori ty could not be cured by their acting in his name; and the court rejected the contention that 459 delegation was a form of agency.
The Local Government Act 1972 expressly preserves the powers of a local authority concurrently with those delegated to its commits, etc.
" We do not think it is necessary to go into this question.
In view of the decision in Godawari (supra), we shall accept the general proposition that the delegation of the power of appointment under the proviso to rule 9(1) does not neces sarily deprive the disciplinary authority specified in the main part of the rule from exercising the delegated power of appointment in any case or class of cases.
Still the basic question that remains is, whether, in the context of rule 2(a) read with rule 9(1), the reference to the authority empowered to make the appointment is to the authority mentioned in the proviso to rule 9 or to both the authorities falling under the main part 01 ' rule 9(1) as well as the proviso.
The sheet anchor of the respondent 's case is that the expression 'appointing authority ' is used in very few of the rules.
One of them is rule 12 and there can, therefore, be no valid reason to refuse to apply the definition clause in the context of those rules.
It is urged that, by holding the person specified in the schedule also to be the 'appointing authority ' as defined in rule 2(a), none of the other rules relating to appeal, revision etc.
become redundant as urged on behalf of the appellants.
We agree with the respondents that the expression 'appointing authority ' in rule 12 should have the meaning attributed to it in rule 2(a).
But what is the real and true interpreta tion of Rule 2(a)? What does that sub rule talk of when it refers to a 'person empowered to make the appointment ' in question? These words clearly constitute a reference to rule 9.
Does rule 2(a) refer then to the authority empowered by the schedule to make the appointments or the authority to whom he has delegated that power or both? We think, on a proper and harmonious reading of rule 2(a) and rule 9, that sub rule (a) of rule 2 only envisages the authority to whom the power of appointment has been delegated under rule 9 and not both the delegator and the delegate.
We have come to this conclusion for a number of reasons.
In the first place, it is clear on the plain language of rule 2(a), that it directs the ascertainment of the authorities specified, in such of clauses (i) to (iv) of the rule as may be applicable to a particular case and designates the highest of them as the 'appointing authority '.
It envisages only one authority as falling under each of these clauses and not more.
The respondent 's contention which involves interpretation of clause (i) or (ii) as contemplating more than one authority runs counter to the tenor of the rule.
Secondly, the strict ly literal meaning of rule 2(a) insisted upon by the re spondents 460 would render the rules unworkable.
For instance, under clause (i), one of the authorities to be considered is the 'authority empowered to make appointments to the service of which the government servant is for the time being a mem ber '.
The respondents belong to one of the Central Civil Services.
Though they belong to class III or class IV, there are class and class II officers as well therein.
Rule 8 declares that only the President can make appointments to Class I in the service.
If each of the clauses is read as envisaging a plurality of authorities as contended for and if clause (i) is literally interpreted, it will also include the President who is one of the authorities empowered to make appointments to the service of which the concerned employees is a member.
This will render the entire gamut of the rules unworkable.
On this interpretation, the President will be the only appointing authority under rule 2(a) in all cases, being the highest of the authorities envisaged there in.
This cannot clearly be correct.
Rule 2(a) does not contemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the concerned government employee holds.
In that sense the two parts of clause (i) and clause (ii) are not to be read distributively to ascertain the authority empowered to make appointments (a) to the service (b) to the grade and (c) to the post and consider the highest of them.
One has to re strict oneself to the post or grade of the government serv ant concerned and invoke clause (i) or (ii) as the case may be.
Thirdly, the whole purpose and intent of rule 2(a) is to provide that appointing authority means either the de facto or the de jure appointing authority.
It will be appreciated that, generally speaking, only the de jure authority can make the appointment but, occasionally, a superior authority or even a subordinate authority (with his consent) could have made the appointment.
Again it is possible that the authority empowered to make the appointment at the time when relevant proceedings in contemplation may be higher or lower in rank to the authority which was empowered to make the appointment or which made the appointment at a different point of time.
The whole intent or purpose of the definition to safeguard against an infringement of article 311(1) and ensure that a person can be dealt with only by either a person competent to appoint persons of his class or the person who appointed him, whoever happens to be higher in rank.
That rule is not infringed by the interpretation placed by the appellants.
The provisions of Schedule II in the case of the Railways which specify the appointing au thority or an authority of equivalent rank or any higher authority as the disciplinary authority are also consistent with this interpretation.
Fourthly, the interpretation sought to be placed by the respondents on rule 2(a) is artificial and strained.
It amounts to saying that a person who is 461 empowered to appoint a government servant (as the Director, DERL, for example, undoubtedly is) and who has also appoint ed him will not be the appointing authority, because, theo retically, even a more superior authority could have ap pointed him despite having delegated his authority in this regard to a subordinate.
On the contrary, the interpretation urged by the Union will not adversely affect the few employ ees, if any, who may be appointed by a superior scheduled authority despite delegation of such power to a subordinate authority.
For, in such a case, the superior authority would be the person who has factually appointed such an employee and he will clearly be the 'appointing authority ' by virtue of rule 2(a).
Lastly, the interpretation sought for by the Union is consistent with practical consideration.
The ap pointing authority under the Schedule is a high ranking authority and, in an organisation like the Railways for instance, it will be virtually impossible for him to consid er each and every case of appointment of, or disciplinary action against all the Class III or Class IV employees in the organisation.
It is indeed this realisation that has rendered necessary delegation of the power of appointment and cannot be ignored, in the absence of compelling reasons, in the matter of disciplinary powers.
On behalf of the respondents, it is contended that the intention of the rules is to restrict powers of discipline from being exercised by all appointing authorities.
Central isation, it is urged, is the object.
This contention is not borne out by the table of innumerable disciplinary authori ties set out in the schedule, not to speak of those on whom factual or special powers have been conferred by the Presi dent (as was indeed done in many of these very cases later).
As against this, Sri Pai, for the appellants pointed out that if one has regard to the strength of the railway staff or the other class III or IV staff employed in various civil services, the interpretation urged on behalf of the respond ents would cast an impossible burden of work on the authori ties specified in the schedule to whom alone the respondents seek to confine the power to take disciplinary proceedings.
There is force in this contention.
It has been brought to our notice that notifications have since been issued (for example on 29th August 1979 in the case of the DERL and 2.1.87 in the case of Ordnance factories) by the President under rule 12 empowering certain authorities to exercise disciplinary powers.
We need hardly say that any disciplinary proceedings initiated by such authorities from the date when such notifications came into effect will be perfectly valid.
It has also been brought to our notice that, in some cases, (for example, C.A. Nos.
1443, 1444 and 4340/88), the CAT has 462 also gone into the merits of the cases and set aside the penalties or punishments imposed on the concerned respond ent.
We do not propose to review the finding on this aspect of the matter under Article 136.
C.A. No. 1444/88, .we are told, has also abated as the appellant has taken no steps to bring on record the legal representatives of the respondent but, in view of the Tribunal 's findings on merits, it is unnecessary to go 'into this question now.
The order of the CAT, in such cases, will therefore, stand notwithstanding our conclusion being different from that of the CAT on the main issue discussed above On the other hand, in most cases, the CAT, because of the view taken by it on the main ques tion, 'has not dealt with the merits of the proceedings.
For example, it was mentioned that in C.A. 316/81, the respond ent has been removed from service by the Deputy Director, an authority subordinate to the Director who had appointed him.
This aspect has not been considered and will have to be considered now.
Similarly, in C.A. 3044/89 filed by the employee, it is pointed out that the appellant had been appointed by the Director of Ordnance Services in 1964.
The power of appointment was delegated to Commandants in 1971 and the respondent was penalised by the Commandant, a subor dinate authority, to whom disciplinary powers were delegate by the President only in 1979.
Though this point does not appear to have been raised before the Tribunal, it goes to the root of the matter and we, therefore, think that it should be left open to be considered by the Tribunal now.
As the cases before us are many and were decided princi pally on the point of law discussed earlier, we have not touched upon the facts or merits of individual cases.
We set aside the orders of the CAT in all cases except C.A. Nos.
1443 and 4340/88 which stand dismissed as mentioned above and direct the Tribunal/High Court.
to pass fresh orders disposing of the applications filed before them in the light of our judgment.
Where disciplinary proceedings have been stayed at the stage of initiation or later because of the view taken by the Tribunal, they should now be con tinued and finished without delay in accordance with law.
The appeals are disposed of accordingly.
T.N.A. Appeals disposed of.

summary/full:
The respondents were holding class III civil posts in the Research Laboratories attached to the Ministry of De fence.
Under the Central Civil Services (Classification, Control and Appeal) Rules, 1965, their 'appointing authori ty ' was the Scientific Adviser.
But the appointing authori ty, the Scientific Adviser, delegated his power of appoint ment to the Director under Proviso to Rule 9(1).
Pursuant to the delegated power.
the Director appointed the respondents.
Subsequently, the Director initiated disciplinary proceed ings against the respondents.
Similarly for the respondents, in the connected appeals, belonging to Group C and D employees of the Railways the competent authority, prescribed under the Railway Establish ment Code.
to make appointments was the General Manager.
But the General Manager delegated his power of appointment to Zonal Officers/Divisional Superintendents.
Pursuant to the delegated power the Divisional Superintendents appointed the respondents.
Subsequently, disciplinary proceedings were initiated against the respondents by the Divisional Superin tendents.
The respondents challenged the disciplinary proceedings before the Central Administrative Tribunal contending that they were without jurisdiction since the Director and the Divisional Superintending were not competent to initiate the disciplinary proceedings.
The Central Administrative Tribu nal accepted the plea and quashed the proceedings.
In appeals to this Court it was contended on behalf of the respondents (i) that the Director was not competent to initiate disciplinary proceedings against them and only the Scientific Adviser, a higher authority, could do so; the expression "whichever authority is the high 442 est authority" in Rule 2(a) governs only sub clause (iv) of Rule and this expression seeks to ensure that though the power to appoint may have been delegated under the Proviso to Rule 9(1), such delegation does not extend to the exer cise of disciplinary powers; (ii) that appointments made by the Scientific Adviser should be treated as .appointments made by the Scientific Adviser himself with the result that a subordinate authority could not initiate disciplinary action against the respondent.
Also, in the connected railway cases, it was contended on behalf of the respondents that notwithstanding the delegation of powers of appointment by the General Manag er, he, being the highest amongst the various appointing authorities, was alone competent to institute disciplinary proceedings.
On behalf of the appellant, Union of India, it was contended: (i) that on a proper interpretation of the rules, the Director Zonal Officer/Divisional Superintendents were competent to initiate the proceedings and (ii) that, irre spective of the provisions in the rules, a person who makes an appointment has always an implied power of suspending or dismissing the appointee under section 16 of the .
Disposing of the appeals, this Court, HELD: 1.
The delegation of the power of appointment under the Proviso to rule 9(1) does not necessarily deprive the disciplinary authority specified in the main part of the rule from exercising the delegated power of appointment in any case or class of cases.
[459B] Godawari section Parulekar vs State of Maharashtra, ; ; followed.
Ramachandra Rao vs State, ; Hals bury 's Laws of England, 4th Edn., pare 32; Wade on Adminis trative Law, 6th Edn., P. 365, referred to.
King Emperor vs Shibnath Banerjee, 72 I.A. 241; Huth vs Clarke, , cited.
A proper and harmonious reading of rules 2(a) and rule 9 shows that sub rule (a) of rule 2 only envisages the authority to whom the power of appointment has been delegat ed under rule 9 and not both the delegator and the delega tee.
Rule 2(a) directs the ascertainment of the authorities specified, in such of clauses (i) to (iv) of the rule as may be applicable to a particular case and designates the high est of them as the 'appointing authority '.
It envisages only one authority as failing under each of these clauses and not more.
An inter pretation of clause 443 (i) or (ii) as contemplating more than one authority runs counter to the tenor of the rule.
The said rule does not contemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the concerned government employees holds.
In that sense the two parts of clause (i) and clause (ii) are not to be read disjunctively to ascertain the authority empowered to make appointments (a) to the service (b) to the grade and (c) to the post and consider the highest of them.
One has to re strict oneself to the post or grade of the government serv ant concerned and invoke clause (i) or (ii) as the case may be.
[459F H; 460C D] Dharma Dey vs Union of India, ; ; Om Prakash Gupta vs Union of India, A.I.R. 1975 S.C. 1265, explained and held inapplicable.
Murishwar vs Union, ; Union vs Choud hary, ; Choudhary vs Union, , cited.
2.1 In Rule 2(a), not only do the words "whichever is the highest authority" occur in the Rules separately from the four sub clauses but the terms thereof also clearly envisage a determination of one who, among several authori ties, is the highest.
It, therefore, clearly means that the 'authorities ' falling under the definition in sub clauses (i) to (iv) have to be ascertained and the highest among them taken as the disciplinary authority for purposes of rule 12(2)(b).
[449B] 3.
The appointing authority under the Schedule is a high ranking authority and, in an organisation like the Railways for instance, it will be virtually impossible for him to consider each and every case of appointment of, or disciplinary action against, all the Class III or Class IV employees in the organisation.
It is indeed this realisation that has rendered necessary a delegation of the power of appointment and cannot be ignored, in the absence of compel ling reasons, in the matter of disciplinary powers.
[461C D] 4.
In the context of rules 2(a) and 12(2) which outline a contrast between the person who is empowered to appoint and the person who actually appoints, it is impossible to treat the Scientific Adviser/General Manager as the person who appointed the respondents.
[456H; 457A] Roop Chand vs State, [1963] Supp. 1 S.C.R. 539, held inapplicable.
444 B. Daniel & Ors.
vs Union of India, , referred to.
4.1 A delegation of power does not enhance or improve the hierarchical status of the delegate.
[456G] Krishna Kumar vs Electrical Engineer Central Railway & Ors., , referred to.
It is doubtful how far, in the context of the service rules which make a clear distinction between the power to appoint and the power to take disciplinary proceedings, the latter can be said to be adjunct or ancillary to the former.
[457D E] Daluram Pannalal Modi vs Commissioner, [1964] 2 S.C.R. 286, held inapplicable.
Section 16 of the confers on the factual appointing authority, in terms, only a power to suspend or dismiss and not a power to conduct disciplinary proceedings or impose the various other kinds of penalties envisaged in the rules.
To say that the latter power also comes within section 16, one would need to make a further assump tion that the power to suspend or dismiss is a more compre hensive power which would include the power to impose small er penalties too and this assumption is said to run counter to the rules which deal with the two powers separately.
The said section applies only "unless a different intention appears".
It applies only where a general power of appoint ment is conferred under an Act or Regulation.
Here the Act or Regulation i.e. the Rules envisage the power of appoint ment conferred by them on certain authorities being delegat ed.
The power conferred on the delegatees is circumscribed by the instrument of such delegation and cannot be extended beyond its ambit.
[454B E] Heckett Engineering Co. vs Workmen, ; ; Gafoor Mia and Ors.
vs Director, DMRL, , referred to.
The dismissal in limine of the Special Leave Petition cannot preclude the Tribunal or Court from considering the issue in the appeals on merits.[452H; 453A]


judgement:
ivil Appeal No. 1837 of 1990.
From the Judgment and Order dated 17.1.1989 of the Patna High Court in C.W.J.C. No. 4276 of 1988, A. Sharan for the Appellants.
Pankaj Kalra and Pramod Swarup for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Delay condoned.
Special leave granted.
This appeal arises out of the decision of the Patna High Court 470 whereby it struck down the selection made for appointments in the junior teaching posts in medical colleges in the State and directed a fresh selection list to be prepared after shifting the last date for receipt of applications to 30th June, 1988.
The facts giving rise to this appeal, briefly stated, are as under.
The State of Bihar published an advertisement inviting applications for appointment to the posts of (i) Assistant Professor (clinical subject); (ii) Registrar; (iii) Assist ant Clinical Pathologist; (iv) Anesthetist; (v) Resident Medical Officer and (vi) Demonstrator (Tutor) in non clini cal subject for different Medical Colleges and Medical College Hospitals in the State of Bihar.
For the post of Assistant Professor only such officers who had worked as Resident or Registrar in Medical Hospital recognised for imparting M.B.B.S. studies by the Medical Council of India and having three years experience of such post were consid ered eligible.
The last date for receipt of the application was fixed as 31st January, 1988.
Pursuant to the said adver tisement applications were received from eligible candidates and the select list or panel was prepared for appointments to the respective posts.
The respondents and some interven ors who held appointments as junior teachers in one or the other Medical Colleges in the State questioned the validity of the State 's action of inviting applications for prepara tion of a list for appointments to the advertised posts mainly on the ground that the last date for receipt of applications fixed as 31st January, 1988 (hereinafter called 'the cut off date ') deprived them of the opportunity to compete for the posts as they did not complete the requisite experience criterion of three years by that time.
It was contended that this cut off date was arbitrarily fixed and was, therefore, violative of Article 14 of the Constitution.
The High Court took the view that the State Government had deviated from its usual practice of fixing the cut off date as 30th of June of the relevant year.
This is clear from the following observation made by the High Court: " . . advertisement in the past including one in the year 1983 (Annexure 1) always fixed 31st June as the date " . (Emphasis supplied) The use of the word 'always ' indicates that the High Court was under the impression that in the past the cut off date was always fixed as 31st June (it should be 30th June) for the preparation of the panel for appointments to the posts in question.
Elsewhere also in the judgment there are obser vations which disclose that the High Court laboured 471 under the belief that the cut off date was always fixed as 30th of June of the relevant year.
This becomes obvious from the following criticism also: "If the State is determined to achieve such a goal and is ready to make its activity predictable it is a welcome sign but such desired predictability can equally be achieved by adhering to the schedule of the past and maintaining 30th June of the years as the last date for the application.
If they had not followed any rule in the past and they propose to follow a rule in this regard in future, they can do so without causing any violation to any legal right of any incumbent by at least showing adherence to the reckoning date which until now had been the last date of the month of June of the year." (Emphasis supplied) On this line of reasoning the High Court came to the conclu sion 'that the State Govermnent had acted arbitrarily in fixing the last date fox receipt of applications as 31st January, 1988 under the advertisement published on 29th December, 1987.
The High Court while upholding the conten tion based on Article 14 further observed "we would have ignored the arbitrariness in taking 31st January of the year as the reckoning date had we not taken notice of recalci trance of the, respondents in taking no step in the years intervening the selection in the year 1983 and the present selection".
The High Court, therefore, felt satisfied that there was no rationale in departing from the past practice and selecting 31st January, 1988 as the last date.
It is felt that in all fairness 30th of June of the year would be 'the .preferable date ' for reckoning the eligibility of the candidates.
The State Government was, therefore, directed to shift the last date for receipt of the applications from 3 1st January 1988 to 30th June, 1988 and to prepare a fresh panel thereafter and make appointments to the posts in question therefrom.
The State of Bihar feeling aggrieved by this order has approached this Court by special leave.
The learned counsel for the State submitted that the decision of the High Court was based on an erroneous premise that the cut off date for eligibility purposes was 'always ' fixed as 30th of June of the relevant year in the past.
In order to dispel this assumption made by the High Court without examining the past advertisements the State Government has placed before us the advertisements issued from 1974 to 1980 which shows that different cut off dates were fixed under these different advertisements and at no time in the past between 1974 and 1980 was 30th of June fixed as the 472 relevant date.
It is true that the High Court did not have the benefit of the earlier advertisements but it is equally true that there was no material on the record of the High Court for concluding that in the past the cut off date was 'always ' fixed as 30th of June of the relevant year.
From the copies of the advertisements from 1974 to 1980 it tran spires that generally the cut off date was fixed between one to one and a half months after the date of issuance of the advertisement.
In the year 1983 for the first time the cut off date was fixed as 30th June, 1983.
On some occasions in the past the cut off date was extended, depending on the facts and circumstances obtaining at the relevant point of time.
It, therefore, becomes obvious from this documentary evidence that the factual premise on which the High Court has based its judgment is clearly erroneous.
The High Court was in error in thinking that in the past the cut off date was always fixed as 30th of June of the relevant year.
In fact except for a solitary occasion in 1983 when the cut off date was fixed as 30th June, 1983, at no other time in the past was that date fixed as the last date for receipt of the applications.
No advertisements were admittedly issued after 1983 and before the advertisement in question.
The present advertisement was published on 29th December, 1987 and the last date for receipt of applications was fixed thereunder as 3 ist January, 1988 leaving a time gap of a little over a month.
As pointed out earlier, on a perusal of the adver tisements issued from 1974 to 1980 it becomes obvious that normally the cut off date was fixed one or one and a half months after the date of advertisement.
It was, therefore, not the uniform practice of the State Government to fix the cut off date for eligibility purposes as 30th of June of the relevant year as was assumed by the High Court.
Once it is found that the High Court has based its decision on an erroneous assumption of fact, the decision cannot be allowed to stand.
It was, however, argued by the learned counsel for the respondents that the State Government should not be permit ted to introduce new facts in the form of advertisements issued from 1974 to 1980.
We do not think that such a tech nical approach would be justified for the simple reason that the assumption of fact made by the High Court is not borne out from record.
No material was placed before the High Court to justify the conclusion that 30th of June of the relevant year was 'always ' fixed as the cut off date in the past.
The High Court 's assumption of fact is, therefore, based on no evidence at all.
We have, therefore, thought it fit to permit the State Government to place material on record to justify its contention that the High Court had committed a grave error in assuming that in the past the cut off date was always fixed as 30th of June of the rele vant year.
473 It was next contended that this Court should not inter fere in exercise of its extra ordinary Jurisdiction under Article 136 of the Constitution.
In support of this conten tion reliance was placed on the observations of this Court in Municipal Board.
Pratabgarh & Anr.
vs Mahendra Singh Chawla & Ors., wherein this Court while correcting an error of law refused to interfere with the decision of the High Court directing reinstatement of the workman on the finding that the termination order was in valid.
That was, however, a case where the Court came to the conclusion that the employee was a capable hand and his services were actually needed by the appellant Municipal Board.
It was in those special circumstances that this Court while correcting the error refused to interfere with the order of reinstatement.
The decision, therefore, turned on the special facts of that case.
The appellant invited our attention to two decisions of this Court, namely, Union of India & Anr.
vs M/s. Pararnes waran Match Works & Ors., [1975]1 SCC 305 and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitikaran Abhiyan Samiti, Varanasi vs State of U.P. & Ors.
in sup port of its contention that the High Court was in error in holding that the State had acted arbitrarily in fixing the cut off date.
In the first mentioned case by Notification No. 162 dated 21st July, 1967, which superseded the earlier notifications, provision was made that if a manufacturer gave a declaration that the total clearance from the factory will not exceed 75 million matches during a financial year, he would be entitled to a concessional rate of duty.
This Notification was amended by Notification No.205 dated 4th September, 1967, clause (b) whereof confined the concession, inter alia to factories whose total clearance of matches during the financial year 1967 68, as per declaration made by the manufacturer before 4th September, 1967, was not estimated to exceed 75 million matches.
Thus, the conces sional rate of duty could be availed of only by those who made the declaration before 4th September, 1967.
The re spondent was not a manufacturer before 4th September, 1967 as he had sought for a licence on 5th September, 1967 and was therefore, in no position to made the declaration before 4th September, 1967.
The respondent, therefore, challenged the cut off date of 4th September, 1967 as arbitrary.
Deal ing with the contention, this Court observed as under: "In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion.
1t need not give exemption or concession to everyone in order 474 that it may grant the same to some.
As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty.
" While pointing out that a classification could be rounded on a particular date and yet be reasonable, this Court observed that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless the circum stances show it to be capricious or whimsical.
When it is necessary for the legislature or the authorities to fix a line or a date and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or authority must be accepted unless it is shown to be capri cious or whimsical or wide off the reasonable mark.
In the second mentioned case this Court, while upholding the con stitutional validity of section 31 B of the U.P.Higher Educational Service Commission Act, 1980, answered two contentions, namely, (1) adoption of the cut off date in the said section as 3rd January, 1984 for the purposes of regu larisation of the services of ad hoc teachers appointed by the management of the affiliated colleges was arbitrary and irrational and violative of Article 14 inasmuch as equals were treated as unequals, and (ii) the Legislature could not arbitrarily adopt 3rd January, 1984 as the cut off date for regularisation of the services of ad hoc teachers merely because that was the date on which the 1983 order expired.
Agreeing with the High Court that the fixation of the date for the purposes of regularisation was not arbitrary or irrational, this Court observed that the object of section 3 I B was to regularise the services of ad hoc teachers ap pointed under the 1983 order till 3rd January, 1984.Ad hoc teachers who had been appointed prior to that date had legal sanction and therefore they constituted a distinct class.
This Court, therefore, felt that the legislature could not have adopted any other basis for purposes of regularisation and refused to interfere with the High Court 's order.
In the present case as pointed out earlier the past practice was to fix the last date for receipt of applica tions a month or one and a half months after the date of actual publication of the advertisement.
Following the past practice the State Government fixed the last date for re ceipt of applications as 31st January 1988.
Those who had . the required experience of three years by that date were, therefore, eligible to apply for the posts in question.
The respondents and some 475 of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution.
It is obvious that in fixing the last date as 31st January, 1988 the State Government had only followed the past practice and if the High Court 's attention had been invited to this fact it would perhaps have refused to inter fere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the rele vant year as the last date for receipt of applications.
Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date.
As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark.
The choice of the date for advertising the posts had to depend on several factors, e.g., the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc.
It is not the case of any one that experienced candi dates were not available in sufficient numbers on the cut off date.
Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January, 1988 to 30th June, 1988 is no reason for dubbing the earlier date as arbitrary or irrational.
We are, therefore, of the opinion that the High Court was clearly in error in striking down the Government 's action of fixing the last date for receipt of applications as 31st January, 1988 as arbitrary.
It was lastly contended that the State Government had given an undertaking to the High Court that 'no appointment shall be made from any previous panel and that, as decided by this Court, if the panel, which is likely to be prepared pursuant to the advertisement in question, is allowed, appointments shall be made from the same panel or if that panel is not allowed and a new panel is required to be prepared, as directed by this Court, appointments shall be made from the same panel '.
This undertaking, in our opinion, cannot preclude the State from challenging the decision of the High Court.
In the result, this appeal succeeds.
The impugned deci sion of the High Court is set aside and the Writ Petition which has given rise to this appeal will stand dismissed with no order as to costs throughout.
Y. Lal Appeal allowed.

dataset_name: IN-Abs

summary/full:
The State of Bihar published an advertisement inviting applications for appointments to the junior teaching posts in medical colleges in the State of Bihar.
For the post of Assistant Professor.
only such officers who had worked as Resident or Registrar in Medical Hospitals recognised for imparting M.B.B.S. studies by the Medical Council of India and having three years experience of such post were consid ered eligible.
The last date for receipt of applications was fixed as 31st January 1988.
Pursuant to the said advertise ment.
applications from eligible candidates were received and a select list or panel was prepared for appointments to the respective posts.
The respondents and some other inter venors who were working then in the Medical colleges as junior teachers challenged the State action in fixing the 3 1st of January 1988 as the cut off date for receipt of applications for the advertised posts.
as they had by then not completed three years which was prescribed as the requi site experience.
It was contended by them that the cut off date was arbitrarily fixed and was therefore violative of Article 14 of the Constitution.
The High Court took the view that the State Government in fixing the 31st January 1988 as the cut off date.
had deviated from its usual practice of fixing the cut off date as 30th of June of the relevant year.
Hence this appeal by the State of Bihar by special leave.
It is contended by the State that the decision of the High Court was based on an erroneous premise that the cut off date for eligibility purposes was 'always ' fixed as 30th of June of the relevant year in the past.
Allowing the appeal, this Court.
HELD: The past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement.
Following the past practice the State 469 Government fixed the last date for receipt of applications as 31st January 1988.
These who had completed the required experience of three years by that date were.
therefore.
eligible to apply for the posts in question.
[474G H] The choice of date cannot be dubbed as arbitrary even if no particular reason is forth coming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark.
The choice of 'the date for advertising the post had to depend on several factors, e.g. the number of vacancies in different disciplines.
the need to fill up the posts.
the availability of candidates etc., [475C D] Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January 1988 to 30th June 1988.
is no reason for dubbing the earlier date as arbitrary or irrational.
[475D] The High Court was clearly in error in striking down the Government 's action of fixing the last date for receipt of application as 31st January 1988 as arbitrary.
[475E] Municipal Board, Pratabgarh & Anr.
vs Mahendra Singh Chawla & Ors., ; Union of India & Anr.
vs M/s. Parameswaran Match Works & Ors., ; and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitika ran Abhiyan Samiti, Varanasi vs State of Uttar Pradesh & Ors., , referred to.


judgement:
.L.P. (Civil) No. 8896 of 1985.
From the Judgment and Order dated 18.12.
1984 of the Madras High Court in Civil Revision Petition No. 5539 of 1983.
WITH C.M.P. No. 28592 of 1988.
488 R.F. Nariman, J.P. Pathak, M.B. Shivraj and P.H. Parekh for the Petitioner.
T.S. Krishnamurthy Iyer and Mrs. section Dikshit for the Respondent.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
We have heard both the sides and the matter is being disposed of at the admission stage.
This petition is directed against the order of a learned Single Judge of the Madras High Court confirming the order passed by the Subordinate Judge, Nilgiris.
The matter arises under the ( 'Act ' for short) and the facts that give rise to the petition are as follows: The testatrix Mary Aline Browne was the wife of Herbet Evander Browne who was the eldest son of one John Browne.
The testatrix had a daughter of the name of Zoe Enid Browne and she died on 8.10.1977.
The respondent claiming to be the beneficiary to the estate of Mary Aline Browne who died on 28.3.1972 under the terms of a will said to have been exe cuted by her on 12.3.
1962 filed an application for letters of Administration with a copy of the will annexed in the Sub Court, Nilgiris.
The same is numbered as O.S. No. 23 of 1980.
Alongwith the application the respondent also filed an affidavit of an attestor of the Will.
In that proceeding, the petitioner and her deceased husband lodged a caveat on the ground that the said Mary Aline Browne did not execute any will and the will propounded by the respondent was a fictitious and forged one, intended to disentitle Zoe Enid Browne, daughter of the testatrix from claiming interest in the estate of her mother.
The petitioner also claimed that Zoe Enid Browne executed a will dated 23.6.1975 in favour of the petitioner and that she also executed a gift deed in her favour.
The petitioner also claimed that she was a trustee of John Browne Trust and that therefore, the peti tioner has caveatable interest.
Thus they opposed the pro bate of the will.
Before the Sub Court, several documents were filed.
The respondent herein contested the caveat stating that the petitioner herein has no interest in the estate.
The learned Subordinate Judge held that the peti tioner is not in any manner related either to Mary Aline Browne or Zoe Enid Browne.
The learned Single Judge of the High Court in an elaborate order having considered the rival contentions dismissed the Civil Revision Petition holding that the 489 petitioner cannot claim to be a person who has a caveatable interest in the estate of the deceased testatrix Mary Aline Browne.
We are told that the will has subsequently been probated and the letters of Administration have been grant ed.
The learned counsel for the petitioner contended that both the courts below have erred in holding that the peti tioner has no caveatable interest.
It is submitted that the petitioner is executor and legatee of the will dated 23.6.1975 executed by Miss Zoe Enid Browne daughter of Mrs. Mary Aline Browne and that Miss Zoe has also executed a registered gift deed dated 29.3.1974 in respect of the second item of the estate and that the petitioner was also appointed a trustee of John Browne Trust on 11.6.1975 and therefore, in law the petitioner has an interest in the property which is the subject matter of the will and thus have caveatable interest.
Under Section 283 of the , the District Judge or District Delegate may, if he thinks proper, issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.
Section 284 provides for lodging caveat against grant of probate or administration.
Section 285 lays down that no proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered until the notice has been given to the caveator.
Section 286 deals with the power of a District Delegate and lays down that he shall not grant probate or letters of administration in any case in which there is "contention" as to the grant, or in which it otherwise appears to him that probate or letters of administration, ought not to be granted in this Court.
Under Section 288 where there is contention or where the District Delegate thinks that probate or letters of administration should be refused, the documents shall be returned to the applicant.
In the instant case the Sub Judge comes within the meaning of the District Delegate and the necessary powers were conferred on him by a notification which is not in dispute.
According to the learned counsel the petitioner duly lodged a caveat against the grant of probate and that both the courts below have not properly appreciated the effect of such a contention and erred in striking off the petitioner 's caveat.
In Nabin Chandra Guha vs Nibaran Chandra Biswas and Ors., AIR 1932 Calcutta 734, the Division Bench held that a person who has a real interest in the estate which is or is likely to be prejudicially 490 affected or adversely affected by the will can oppose the grant of probate or letters of administration.
In Gourishan kar Chattoraj vs Smt.
Satyabati Debi, AIR 1931 Calcutta 470, it is held that the petitioner therein who was related to the deceased through a common ancestor, can be said to have interest in opposing the application for probate.
In Shanti Devi Aggarwalla vs Kusum Kumari Sarkar & Ors., , Justice Ranganath Misra, as he then was, held that the vendor legatee is entitled to enter caveat and the purchaser having stepped into the shoes of vendor is also entitled to enter the caveat.
In Narayan Sah vs Smt.
Davaki, AIR 1978 Patna 220, considering the locus standi of a person to oppose grant, it is held that any interest, however, slight and even a bare possibility of an interest is suffi cient to entitle a person to enter caveat in a probate proceeding.
Relying on these decisions the learned counsel urged that the petitioner in the instant case has substantial interest in the estate.
The learned counsel for the respond ent did not dispute the legal position.
He, however, con tended that there was absolutely no material before the Courts below to substantiate the alleged interest of the petitioner in the estate.
It is submitted that the so called will said to have been executed by Miss Zoe Enid Browne, daughter of Mrs. Mary Aline Browne has not been filed.
Likewise, the gift deed also was not filed.
Coming to the trust of John Browne it is submitted that the trust does not exist and got extinguished.
The learned counsel for the respondent further submitted that except mentioning these three aspects in a bare manner no other material was placed before the Court.
Having gone through both the orders we are reclined to agree with the learned counsel for the respond ent that the petitioner did not establish her caveatable interest.
We have perused the entire order of the trial court in this context.
Admittedly neither the original nor a copy of the will said to have been executed by Zoe Enid Browne, was filed.
Now coming to the trust, it is in the evidence of P.W. 1 that John Browne Trust has come to an end in March, 1972 and the same was not in existence.
The trial court has considered both the documentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust.
Likewise the registered gift deed or a copy of it has not been filed.
Before the learned Single Judge of the High Court also same contentions were put forward.
The learned Judge observed that from the objections filed by the caveator she desires the Court in the probate proceedings to uphold her title on the strength of a gift deed and the Trust deed.
It is observed: "Equally, the petitioner has not placed before the Court 491 the will dated 23.6.
1975 stated to have been executed by Zoe Enid Browne to establish that under the will dated 12.3.
1962 stated to have been executed by Mary Aline Browne some interest given to the petitioner under the will dated 23.6.1975 of Zoe Enid Browne, is liable to be in any manner affected or otherwise displaced, by the grant of letters of administration in respect of the will dated 12.3.1962 stated to have been executed by Mary Aline Browne." Accordingly the learned Judge held that the petitioner has not established that she has a caveatable interest justify ing her opposition to the probate proceedings for grant of letters of administration.
In this state of affairs, we are unable to agree with the learned counsel that the petitioner has caveatable interest.
Learned counsel, however, submitted that the will exe cuted by Zoe Enid Browne on 23.6.1975 in favour of the petitioner though not filed but was subsequently probated in the year 1989 and the fact that probate is granted can be taken into consideration by this Court as a subsequent happening, as the appeal before this Court, is only a re hearing or the continuation of the matter.
Reliance is placed on Section 227 of the which reads thus: "Effect of Probate Probate of a will when granted estab lishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.
" It is submitted that since the will executed by Zoe Enid Browne in favour of the petitioner is probated it must be deemed that it was existing since the death of the testatrix namely Miss. Zoe Enid Browne and that validates all interme diary acts.
According to the learned counsel, the effect of such a probate is that the petitioner 's interest in the estate gets established even on the date of entering caveat.
We are unable to see any force in this submission.
The said probate, admittedly, took place in a court in the Madras City.
We do not know whether the citations were issued to all the persons interested.
This probate also admittedly was granted when the special leave petition was pending in this Court yet the respondent had no notice about this probate proceeding.
Under these circumstances, exercising our juris diction under Article 136 we do not see that it is expedient to acknowledge this probate proceeding and re open the matter.
492 Lastly an attempt was made to show that the Sub Court has no jurisdiction but we find that there a necessary notification issued by the High Court conferring powers on the Sub Court.
We see no force in any one of these submis sions.
The learned counsel, however, lastly submitted that the petitioner inspite of having substantial interest in the estate is losing her right, to prove that the alleged will by Miss Zoe Enid Browne is not a genuine one and that it is a fictitious one.
We must point out that by granting a probate, the court is not deciding the disputes to the title.
Even with regard to a probate granted, it can be revoked as provided under Section 263 of the in any one of the cases mentioned therein.
But the learned counsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveatable interest will come in the petitioner 's way in seeking revocation of the grant of probate.
It is needless to say that the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of grant ing of probate.
But they cannot deprive his right, if he has any, to invoke Section 263 of the and it is upto the petitioner to satisfy the Court.
With these observations, the special leave petition is dismissed.
T.N.A. Petition dismissed.

summary/full:
The respondent, claiming to be the beneficiary to the estate of deceased 'M ' under a will executed by her, filed an application in the Sub Court for Letters of Administra tion.
The petitioner lodged a caveat and opposed the probate of the will on the ground that the will propounded by the respondent was a fictitious one intended to disentitle 'Z ', daughter of 'M ', from claiming interest in the estate of her mother 'M '.
The petitioner based her caveatable interest on the basis of membership of the Trust, a gift deed and a will executed by 'Z ' which was subsequently probated in her favour.
The Subordinate Judge struck off the petitioner 's caveat on the ground that she has no caveatable interest.
The petitioner filed a Civil Revision Petition in the High Court and a Single Judge of the High Court confirmed the order of the Subordinate Judge.
In the special leave to this Court it was contended on behalf of the petitioner that the courts below have erred (i) in holding that she has no caveatable interest and in striking off her caveat; (ii) that Z 's will in her favour which was subsequently probated established her interest in the estate on the date of entering the caveat.
487 Dismissing the petition, this Court, HELD: 1.
By granting a probate the Court does not decide the disputes to the title.
A probate granted can be revoked under Section 263 of the .
[492C] 1.1 In the instant case the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of granting of probate.
But they cannot deprive her right to invoke section 263 of the Act.
[492D] 2.
The order of the Trial Court shows that admittedly neither the original nor a copy of the will said to have been executed by 'Z ' was filed.
Likewise the registered gift deed or a copy thereof was not filed.
It is also evi dent that the Trust has come to an end and the same was not in existence.
The Trial Court has considered both the docu mentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust.
Accordingly, it cannot be held that the petitioner has caveatable interest.
[490F G; 491C] 3.
In the instant case it is not known whether the citations were issued to all the persons interested before the grant of the probate.
The probate was also granted when the special leave petition was pending in this Court yet the respondent had no notice about this probate proceedings.
Under these circumstances it is not expedient to acknowledge this probate proceeding and re open the matter.
[491 G H] Nabin Chandra Guha vs Nibaren Chandra Biswas and Ors., AIR 1932 Cal.
734; Gourishankar Chattoraj vs Smt.
Satyabati Debi, AIR 1931 Cal.
470; Shanti Devi Aggarwala vs Kusum Kumari Sarkar & Ors., and Narayan Sah vs Smt.
Devaki, AIR 1978 Patna 220, referred to.