judgement:
Appeal No. 103 of 1952.
Appeal under article 133(1) (c) of the Constitution of India from the Judgment and Order, dated the 10th August, 1951, of the High Court of Judicature for Rajasthan at Jodhpur (Wanchoo and Bapna JJ.), in D. B. Civil Miscellaneous Application No. 21 of 1951.
K. section Hajela, Advocate General of Rajasthan, for the appellant.
No appearance for the respondents.
March 17.
The Judgment of the Court was delivered by GHULAM HASAN J.
This appeal is brought under a certificate granted by the High Court of Rajasthan under article 133(c) of the Constitution of India against a judgment and order of that High Court in writ petition under article 226 holding the appointment of one Shri Sukhdeo Narain as invalid and directing that all proceedings taken by him as the Industrial Court under section 7 of the Industrial Disputes Act (No. XIV of 1947) are null and void.
1130 We are informed that Shri Sukhdeo Narain has ceased to work as an Industrial Tribunal and the present appeal, therefore, becomes infructuous, but we are invited by the Advocate General on behalf of the State of Rajasthan who is the appellant before us to decide the question as to the validity of the appointment, as it is likely to affect other awards made by tribunals under the Industrial Disputes Act.
We accordingly proceed to give our decision.
The question involved in the case is whether the appointment of Shri Sukhdeo Narain is invalid because he does not fulfil the qualifications laid down for a tribunal under section 7(3) of the Industrial Disputes Act.
Section 7(3) hereinafter referred to as the Industrial Act says: " Where a tribunal consists of one member only, that member, and where it consists of two or more members, the chairman of the tribunal, shall be a person who (a) is or has been a Judge of a High Court; or (b) is or has been a District Judge . . . . . " The Industrial Act was applied to Rajasthan by the Rajasthan Adaptation of Central Laws Ordinance, 1950 (Ordinance IV of 1950), by the Rajpramukh on January 24, 1950.
By this adaptation section 7 of the Industrial Act came to be applied to Rajasthan.
Shri Sukhdeo Narain was appointed on October 9, 1950, by a notification which ran as follows: "In exercise of the powers conferred by section 7 of the Industrial Disputes Act, 1947.(XIV. of 1947) the Government of Rajasthan is pleased to constitute an Industrial Tribunal consisting of Shri Sukhdeo Narain, a retired Judge of the High Court of the erstwhile Jodhpur State for the adjudication of an Industrial dispute in the Mewar Textile Mills Ltd., Bhilwara, in Rajasthan.
" The appointment of Shri Sukhdeo Narain was objected to by the respondent on the ground that, the 1131 words "a Judge of a High Court" in section 7(3) mean " a Judge of the High Court of Judicature for Rajasthan established under the Rajasthan High Court Ordinance, 1949" and as Shri Sukhdeo Narain had been a Judge of the High Court of the former State of Jodhpur, he could not be held to be Judge of the High Court under section 7(3) of the Industrial Act.
This objection was upheld by the High Court.
Though the appointment of Shri Sukhdeo Narain in the notification was based upon the fact that he was a retired Judge of the High Court of Jodhpur, in arguments it was also contended before the High Court that even if he was not qualified for appointment as a former Judge of a High Court, he was certainly qualified for appointment as a former District Judge.
The High Court repelled this contention.
It appears that the United State of Rajasthan came into existence on April 7, 1949, and the United State of Matsya was integrated with it on May 15, 1949.
Section 5 of Ordinance No. IV of 1950 lays down that: " For the purpose of the application of any Central law to Rajasthan, unless there be anything repugnant in the suject or context, (ix) references therein to other civil, criminal and revenue courts, to public offices, and to Judges, Magistrates, officers or authorities shall be deemed to be references to such courts, offices and Judges, Magistrates, officers or authorities of or in Rajasthan.
" The High Court held that the word "Rajasthan" as defined in Ordinance I of 1949 means the United State of Rajasthan and "the Judges an d other officers" mentioned in section 5(ix) must be held to be those in the service of the United State of Rajasthan.
Accordingly they held that Shri Sukhdeo Narain could not be held to be a District Judge within the meaning of section 7(3) (b) and his appointment as an Industrial Tribunal under that section was, therefore, invalid.
We are of opinion that this appeal can be decided on a short ground.
The Industrial Disputes (Appellate Tribunal) Act (XLVIII of 1950) came into force on May 20, 1950.
By section 34 it was provided that the 1132 Industrial Disputes Act, XIV of 1947, shall be amended in the manner specified in the Schedule and the Schedule substituted sub section (2) to section (1) of the Industrial Act as follows : "It extends to the whole of India except the State of Jammu and Kashmir.
" As we have already stated the appointment of Shri Sukhdeo Narain was made on October 9, 1950, i.e., after the Industrial Disputes Act had become applicable to Rajasthan.
It is not necessary therefore to invoke the provisions of Ordinance.
IV of 1950 in deciding the question of the validity of the appointment.
The argument based on section 34 of Act XLVIII of 1950 was put forward before the High Court at the time of the hearing of the application for leave to appeal and it was contended that in view of section 34 the provisions of Rajasthan Adaptation of Central Laws Ordinance, 1950, namely section 5, subsections (vii) and (ix), stood amended or repealed but the High Court observed that even if this argument had been raised before them in appeal, it would have made no difference.
It has been contended before us by Mr. Hajela, the learned Advocate General on behalf of the State, that after the Industrial Disputes Act of 1947 was extended to Rajasthan by section 34 of the Industrial Disputes (Appellate Tribunal) Act, XLVIII of 1950, the provisions of the former stood amended by section 34 and could not be read subject to section 5 of the Rajasthan Adaptation of Central Laws Ordinance IV of 1950.
We think there is force in this contention.
The effect of section 34, as we have already indicated, was to extend the territorial application of the , to the whole of India including Rajasthan the exception being the State of Jammu and Kashmir only.
This being so the words "A Judge of a High Court and a District Judge" used in section 7(3) (a) and (b) respectively of the , must be held now to include "A Judge of the High Court and a District Judge in the former State of Jodhpur".
There is now no room for the application of section 5 of Ordinance IV of 1950 according to which a Judge of the High Court 1133 and a District Judge could only.
mean a Judge of the High Court for Rajasthan established under the Rajasthan High Court Ordinance 1949 and a District Judge of or in Rajasthan within the meaning of section 5(ix) of Ordinance No. IV of 1950.
Accordingly we hold that the appointment of Shri Sukhdeo Narain was perfectly valid.
We accordingly set aside the order of the High Court but without costs, as the respondent is not, represented.

summary/full: Held, that under section 7(3) (a) and (b) of the Industrial Disputes Act (XIV of 1947) as amended by section 34 of the Industrial Disputes (Appellate Tribunal) Act (XLVIII of 1950) the phrase "a Judge of a High Court and a District Judge" includes a Judge of the High ,Court and a District Judge in the former State of Jodhpur.


judgement:
ons Nos. 69 and 71 of 1967.
Writ Petition under article 32 of the Constitution of India for the enforcement of fundamental rights.
R. H. Dhebar, R. Gopalakrishnan and section P. Nayar, for the respondent (in both the petitions).
The Judgment of the Court was delivered by Wanchoo, C. J.
These two petitions under Art 32 of the Constitution raise common questions of law and will be dealt with together ' The petitioners were detained under, r 30(1)(b) of the Defence of India Rules, 1962 (hereinafter referred to as the Rules), under orders of the Government of Jammu & Kashmir in March, 1965.
Their detention was continued from time to time after review under r.30A.
One of such reviews was made in February, 1967.
At that time the scope of review was governed by judgment dated June 1, 1965 of Shah J. (Vacation Judge) in Sadhu Singh vs Delhi Administration(1).
In that case it was held that r.30A re lating to re view did not require, a judicial approach to the question (1) ; 199 of continuance of detention.
No opportunity therefore was given to the petitioners to represent their cases when the review was made in February, 1967 and their detention was continued for a further period of six months.
Then came the judgment of this Court in P. L. Lakhanpal vs the Union of India.(1) That judgment overruled the decision of Shah J. and held that the function of review under r.30A was quasi judicial and therefore in exercising it, rules of natural justice had to be complied with.
In view of this judgment what the respondent did was to hold another review in April, 1967.
At that time notice was given to the petitioners and they were given a hearing.
Thereafter order was passed in each case on April 27, 1967 by which the State Government directed the continuance of the detention orders for a further period.
In the meantime the present petitions had been filed on March 30, 1967 and were based on the judgment of this Court in Lakhanpal 's case(1).
It is not disputed on behalf of the respondent that Lakhanpal 's case(1) will apply to the present petitions and the petitioners will be entitled to release because the procedure of a quasi judicial tribunal was not followed when earlier reviews were made from August, 1965 to February, 1967.
Reliance is however placed on behalf of the respondent on the review made in April, 1967 and it is urged that that review was in accordance with the view taken by this Court in Lakhanpal 's(1) case and therefore continuance of detention thereafter is justified.
Further it is urged that even if this contention is not correct the State Government has power to pass a fresh order of detention on the same facts, and even if we allow the present petitions, we should make it clear that the State Government has such power.
It is urged in this connection that the judgment of Bhargava J. in Avtar Singh vs The State of Jammu and Kashmir(1) is not correct.
The first question therefore is whether the orders of review dated April 27, 1967 are sufficient for the continuance of detention, even though the earlier orders of review passed from August, 1965 to February, 1967 were not properly made in view of the judgment of this Court in Lakhanpal 's case(1).
Reliance in this connection is placed on the judgment of this Court in A. K. Gopalan vs The Government of India.(1) In that case it was held that "it is well settled that in dealing with a petition for habeas corpus the court has to see whether the detention on the date on which the application is made is legal if nothing more has intervened between the date of the application and the date of hearing.
" So it is urged for the respondent that as the order passed on review (1) ; (2) W. Ps.
68, 70, 79, 89, 92, of 1967 (decided on June 9, 1967).
(3) ; 200 under r.30A continuing detention on April 27, 1967 was in accordance with the judgment of Lakhanpal 's case(,) the earlier orders of review made between August, 1965 and February, 1967 which were improper made no difference.
We cannot accept this contention.
In Gopalatn 's case(1) what had happened was that a fresh order was made on March 4, 1965 and the detention was under that order.
The principle laid down in that case is unexceptionable; but the question is whether that principle applies to the facts of the present case.
In Gopalan 's case( ' ') the question that arose was whether the fresh order of March 4, 1965 under which detention was made was legal, and the Court did not look at the earlier order which had been cancelled by the fresh order of March 4, 1965.
In the present cases however no fresh order was made on April 27, 1967 and this distinguishes the present cases from Gopalan 's case(1).
Rule 30A of the Rules was originally not in the Rules and was introduced some time later.
Before the introduction of r.30A the position was that a detention made under r.30 would be of indefinite duration.
But r.30A provided for review of detention orders passed under r 30, and such review was to be made at an interval of not more than six months.
On such review the Government had to decide whether detention orders should continue or be cancelled.
The effect of r.30 along with r.30A (9) would therefore be that the detention order passed under r.30 would be good only for six months and unless there was a review and the detention order was continued the detenu would have to be released.
We cannot accept the contention on behalf of the respondent that the detention order would continue even after six months and the detenu may be detained under that order even thereafter without an order under r.30A (9), continuing the order of detention.
It is true that r.30A(9) only says that the Government shall decide whether the detention order should be continued or cancelled.
That however does not mean that if the Government omits to make a review under r.30A within six months the detention order will still continue and the detenu continue to be detained thereunder.
The provisions in r.30A are designed to protect the personal liberty of the citizens of this country and that is why that rule provides that every detention order shall be reviewed at an interval of not more than six months.
This is a mandatory provision and if it is not complied with and the Government omits to review the detention order within six months the order must fall and the detenu must be released.
of course when the Government actually reviews the order it will either continue that order or cancel that order.
That is why r.30A (9) says that on review the Government shall decide whether the order should be continued or cancelled,.
But that does not mean that if for any reason (say, by oversight) the Government omits to review an order within the time provided in the first part of r.30A(9), the detention can continue even though there has been (1) ; (2) ; 201 no review.
What applies to an omission to review an order under r.3OA(9) applies equally to a case where a review is not in accordance with law as held by this Court in Lakhanpal 's case(1).
Where therefore there has been no review under r.30A(9) or a review is not in compliance with the, provisions thereof, as explained in Lakhanpal 's case(1), the result is that the original detention order though it may have been good when it was passed, falls and the detention after the first period of six months becomes illegal.
Further if there is no review of the detention order in the manner provided by law, as explained in Lakhanpal 's case(1) the original order falls after six months and there is nothing to continue thereafter.
In the present cases the orders were passed in March, 1965 and should have been reviewed after every six months in the manner explained in Lakhanpal 's case(1).
That admittedly was not done upto February, 1967, though a number of reviews were made inbetween.
Consequently orders of detention passed in March, 1965 fell after six months and there were no orders to continue thereafter.
When therefore the State Government ordered the continuance of detention orders on review on April 27, 1967, in accordance with the procedure indicated in Lakhanpal 's case(1), there was no order to be continued because in between the reviews were not proper and the detention had become illegal.
In these circumstances, the principle laid down in Gopalan 's case(2) cannot apply to the facts of the present case, for we cannot ignore that between September, 1965 and April, 1967 there was no proper review as required by r.30A(9) and the detention for all that period was illegal and could not be saved by the original order of March,1965 which must be deemed to have come to an end, after six months, in the absence of a proper review under r.30A(9).
So there was no order which could be continued on April, 1967, and therefore the petitioners would be entitled to release on that ground. 'This brings us to the next question, namely.
whether it is open to the State Government to pass a fresh order in the circumstances of the present cases.
In this connection reliance is placed on behalf of the respondent on two cases of this Court Ujagar Singh vs The State of Punjab (3) and Godavari Shamrao Parulekar vs State of Maharashtra and others(4).
The first case was under the Preventive Detention Act (IV of 1950).
In that case it was held that "if the authority making an order is satisfied that the ground on which a detenu was detained on a former occasion is still available and that there was need for detention on its basis no mala fides can be attributed to the authority from the fact that the ground alleged for the second detention is the same as that of the (1) ; (3) ; (2) ; (4) ; 202 first detention.
" In the latter case what had happened was that detenues were first detained under the Preventive Detention Act.
Later 'that order was revoked and they were detained under r.30 of the Rules and the order was served in jail.
The second order of detention was apparently based on the same facts on which the first order of detention was passed.
This Court held that the second order of detention was perfectly valid and its service in jail did not make the detention illegal.
These cases certainly show that a fresh order of detention can be passed on the same facts, if for any reason the earlier order of detention has to be revoked by the Government.
Further we do not find anything in the Defence of India Act (hereinafter referred to as the Act) and the Rules which forbids the State Government to cancel one order of detention and pass another 'in its place.
Equally we do not find anything in the Act or the Rules which will bar the Government from passing a fresh order of detention on the same facts, in case the earlier order of detention or its continuance is held to be defective for any reason.
This is of course subject to the fact that the fresh order of detention is not vitiated by mala fides.
So normally a fresh order of detention can be passed, on the same facts provided it is not mala fide, if for any reason the previous order of detention or its continuance is not legal on account of some technical defect as in the present cases.
This brings us to the consideration of the judgment of our brother Bhargava J. in Avtar Singh 's case(1), to which we have already referred.
Our learned brother held that where the original order of detention, as in these cases, was a good order for the first period of six months, it would not be open to the State Government to pass a fresh order of detention on the same facts after cancelling the order on the expiry of six months, for that would be going round the provisions of r.30 A, and that the only way in which detention could be continued after the first period of six months, where a good order was originally passed, was to make a review in a proper manner as indicated in the case of Lakhanpal.(2) Our learned brother also seems to have held that if a review was not made in a proper manner as indicated in Lakhanpal 's case(2), the Government would be completely powerless and could not detain the persons concerned by a fresh order.
In effect therefore our learned brother held that if a mistake is made by Government in the matter of review it could not correct it and the detenu must go free.
Now there is no doubt that if the Government resorts to the device of a series of fresh orders after every six months and thus continues the detention of a detenu, circumventing the provisions (1) W.Ps.
68, 70, 79, 89, 92, of 1967 (decided on June 9, 1967) (2) ; 203 of r.30 A for review, which, was interpreted by this Court in Lakhanpal 's case(1), gives some protection to the citizens of this country, it would certainly be acting mala fide.
Such a fresh order would be liable to be struck down, not on the ground that the Government has no power to pass it but on the ground that it is mala fide exercise of the power.
But if the Government has power to pass a fresh order of detention on the same facts in case where the earlier order or its continuance fails for any defect, we cannot see why the Government cannot pass such fresh order curing that defect.
In such a case it cannot be said that the fresh order is a mala fide order, passed to circumvent r.30 A. Take the present case itself.
The Government passed the original order of detention in March, 1965.
That order was good for six months and thereafter it could only continue under r.30 A on orders passed under r.30 A(9).
The Government did pass orders under r.30 A (9) and we.
cannot say in view of the judgment in Sadhu Singh 's case(2) that the Government went wrong in the procedure for review.
It was only after the judgment of this Court in Lakhanpal 's case(1) that the manner of review became open to objection, with the result that the continuance of the order in these two cases failed and the detention became illegal.
If in these circumstances the Government passes a fresh order under r.30, it cannot be said that it is doing so mala fide in order to circumvent r.30 A (9).
In actual fact the Government had complied with the provisions of r.30 A(9) and what it did was in accordance with the judgment of this Court in Sadhu Singh 's case(2).
It is true that after Lakhanpal 's case(1) the manner in which the review was made became defective and therefore the continuation of detention became illegal.
Even so, if the Government decides to pass a fresh order in order to cure the defect which has now appeared in view of the judgment of this Court in Lakhanpal 's case(1), it would in our view be not right to say that the Government cannot do so because that would be circumventing r.30 A.
We do not think that we should deprive the Government of this power of correcting a defect particularly in the context of emergency legislation like the Act and the Rules.
The Courts have always the power to strike down an order passed in mala fide exercise of power, and we agree with Bhargava, J. to this extent that if the Government, instead of following the procedure under r.30 A as now laid down in Lakhanpal 's case(1) wants to circumvent that provision by passing fresh orders of detention on the same facts every six months, it will be acting mala fide and the court will have the power to strike down such mala fide exercise of power.
But in cases.
like the present, where the continuance became defective after the judgment of this Court in Lakhanpal 's case,(1) we can see no reason to deny power to Government to rectify the defect by passing a fresh order of detention.
Such an order in such circumstances (1) ; (2) ; 204 cannot be called mala fide, and if the Government has the power to pass it which it undoubtedly has, for there is no bar to a fresh order under the Act or the Rules there is no reason why such a power should be denied to Government so that it can never correct a mistake or defect in the order once passed or in the continuation order once made.
We are therefore of opinion that the view taken in Avtar Singh 's case(1) insofar as it says that no fresh order can be passed even to correct any defect in an order continuing detention under r 30 A(9) is not correct.
We therefore allow the writ petitions and order the release of the petitioners.
But it will be open to the State Government to pass a fresh order of detention if it considers such a course necessary.
Petitions allowed R.K.P.S. (1) W. Pe. 68, 70, 79, 89, 92 of 1967 (decided on June 9, 1967).

dataset_name: IN-Abs

summary/full:
The petitioners were detained under r. 30(1) (b) of the Defence of India Rules, 1962, under orders passed by the State Government in March 1965.
Their detention was continued from time to time after review under r. 30A.
One review was made in February 1967 when the scope of such a review was governed by the judgment of this Court in Sadhu Singh vs Delhi Administration [1966] I S.C.R. 243 to the effect that such review did not require a judicial approach to the question of continuance of detention.
Accordingly, at the review in February 1967, no opportunity was given to the petitioners to represent their cases and their detention was continued for a further period of six months.
Thereafter, by its judgment in the case of P. L.Lakhanpal vs The Union of India. ; this Court overruled the decision in Sadhu Singh 's case and held that the function of review under r. 30A was quasi judicial and that in exercising it, the rules of natural justice had to be complied with.
In view of this judgment the respondent held another review in April 1967, when notice was given to the petitioners and they were given a hearing.
Thereafter an order was passed in each case on April 27, 1967, by which the State Goverment directed the continuance of the detention orders for a further period.
In the meantime the present petitions under article 32 of the Constitution were filed on March 20, 1967 based on the judgment of this Court in Lakhanpal 's case.
It was contended on behalf of the respondent State that as the review made in April 1967 was in accordance with the view taken in Lakhanpalls case, the continuance of the detention thereafter was justified; that the State Government had power to pass a fresh order of detention on the same facts and even if the present petitions were to be allowed, it should be made clear that the State Government had such power and that the decision of this Court in the case of Avtar Singh vs The State of Jammu and Kashmir (de cided on June 9, 1967), was not correct.
HELD: (i) The writ petitions must be allowed and the petitioners released.
In the Present cases the orders were passed in March 1965 and should have been reviewed after every six months in the manner explained in Lakhanpal 's case.
That admittedly was not done upto February 1967, though a number of reviews were made in between.
Consequently orders of detention passed in March 1965 fell after six months and there were no orders to continue thereafter.
When 198 therefore the State Government ordered the continuance of detention orders upon the review on April 27, 1967, in accordance with the procedure indicated in Lakhanpal 's case, there were no orders to be continued because in between the reviews were not proper and the detention had become illegal.
[201 C D).
A. K Gopalan vs The Government of India, [1966] 2 S.C.R. 427, distinguished.
Although r. 30A (9) only says that the Government shall decide whether the detention order should be continued or, cancelled, that does not mean that if the Government omits to make a review under r. 30A within six months the detention order will still continue and the detenu continue to be detained thereunder.
The provision for review in r. 30A is designed, to protect the personal liberty of the citizen and is a mandatory provision; if it is not complied with and ' the Government omits to review the detention order within six months, the order must fall and the detenu must be released.
[200 FG] (ii) A fresh order of detention can be passed on the same facts, provided it is not mala fide, if for any reason the previous order of detention or its continuance is not legal on account of some technical or other defect as in the present cases.
There is nothing in the Defence of India Act and Rules which forbids the State Government from cancelling one order and passing another in its place.
[2O2 C].
Ujagar Singh vs The State of Punjab., ; and Godavari Shamrao Parulekar vs State of Maharashtra and Ora., ; , referred to.
The view taken in Avtar Singh vs The State of Jammu and Kashmir, in so far as it says that no fresh order can be passed even to correct any defect in an, order continuing detention under r. 30A(9) is not correct.
[204 B].


judgement:
Appeals Nos.
2382 2384 of 1966.
Appeals from the judgment and orders dated October 6, 1966 of the Mysore High Court in Writ Petitions Nos.
1056, 1607 and 1298 of 1966, section T. Desai, section C. Javali and Vineet Kumar, for the appellant (in all the appeals).
M. M. Ramamurthi and Shyamala Pappu, for respondent No. 1 (in all the appeals) and respondent No. 2 (in C. A. No. 2382 of 1966).
89 The Judgment of the Court was delivered by Shah, J.
On May 3, 1966 the Municipality of Raichur imposed octroi duty on goods specified in Sch.
11 to the Mysore.
Municipalities Act 22 of 1964, entering the municipal limits for consumption, use or sale.
The respondents who are traders in cloth at Raichur moved the High Court of Mysore by petitions under article 226 of the Constitution challenging the levy and collection of octroi duty on goods described in Sch.
II of the Act in pursuance of the notification dated May 3, 1966.
The High Court of Mysore held that the tax was properly imposed, but in their view collection of the tax was not authorised by law.
The High Court accordingly issued a writ of mandamus restraining the Municipal Council, Raichur from recovering the octroi duty levied in pursuance of the notification dated May 3, 1966.
The Municipal Council, Raichur, has appealed to this Court against the orders passed by the High Court.
The relevant provisions of the Mysore Municipalities Act 22 of 1964 and the Bye Laws may be summaried.
By section 94 the Municipal Council is authorised, subject to the general or special orders of the Government, and after observing the preliminary procedure prescribed by section 95, to levy, among other taxes, octroi on goods specified in Sch.
II entering the municipal limits for consumption, use or sale therein.
By sub section
(3) of section 94 it is provided that the taxes specified in sub section
(1) shall be assessed, levied and collected in accordance with the provisions of the Act and the rules made by the Government under section 323.
Section 95 prescribes the procedure preliminary to imposition of tax.
A municipal council has by resolution passed at a general meeting to select for the purpose one or more of the taxes specified in section 94 and in such resolution to specify the classes of persons or of property or of both which the municipal council proposes to make liable and to prescribe exemptions which it proposes to make, the amount or rate at which the municipal council.
proposes to assess any such class, and in the case; of octroi, the octroi stations.
The resolution must be published in the official Gazette and in such other manner as may be prescribed.
Any inhabitant of the municipality may within one month from the publication of the notice submit his objection to the imposition of the tax or to the amount or rate proposed, or to the classes of persons or property to be made liable, or to any exemptions proposed.
The municipal council must take into consideration the objections and submit to the Government of the State such objections with its opinion thereon and any modifications proposed in accordance therewith together with a copy of the notice.
A resolution sanctioned by the Government together with a notice reciting the sanction and the date and number thereof may then be published by the ,municipal council in the official Gazette, and the tax as prescribed by the, resolution shall be imposed accordingly.
Sub section (2) of "The publication of a notice under this section shall be conclusive evidence that the tax has been imposed in 90 accordance with the provisions of this Act and the rules made thereunder".
Section 123 provides that every municipal council when submitting for sanction a proposal for the imposition of octroi, shall submit therewith for sanction bye laws for the purposes of cl.
(m) of sub section
(1) of section 324 or adopt model bye laws made for the said purposes.
Section 124 deals with "non liability for octroi and refund of octroi on goods in transit".
Section 125 invests the municipal council with power to exempt articles liable to octroi duty, and section 126 relates to the presentation of bills for octroi and prescribes penalties for evasion of payment of octroi.
Section 127 prescribes the penalty for selling articles liable to octroi without a licence, or for being in possession of any such article on which octroi has not been paid.
Section 323 authorises the Government to make rules for carrying out all or any of the purposes of the Act and to prescribe forms for any proceeding for which it considers that a form shall be prescribed.
Exercising the authority conferred by section 323 the Government of Mysore published on September 2, 1965, the Mysore Municipalities Taxation Rules, 1965.
Rules 25 to 32 deal with the collection of octroi.
Rule 25 deals with the mode of collection; r. 26 with pay ment of octroi, r. 27 with assessment and collection of octroi at octroi station; and r. 28 with the procedure in case where octroi is leviable ad valorem.
Rule 3.1 requires the municipal council to maintain a list of traders and public bodies allowed to have an account current, and r. 32 requires a trader or public body allowed, to have an account current to present a declaration in Form VII.
Section 324 authorises the municipal council to make, alter or rescind bye laws, subject to the provisions of the Act and the rules made thereunder.
Clause (m) provides, insofar as it is material: " providing for the exhibition of tables of octroi, requiring a licence to be obtained for the sale of any article liable to octroi and prescribing the, conditions on or subject to which such licence may be granted, refused, suspended or withdrawn, regulating, subject to any general or special orders which the Government may make in this behalf, the system under which refunds are to be made on account thereof when the goods on which the octroi has been paid, or article manufactured wholly or in part from such goods, are again exported and the custody or storage of goods declared not to be intended for use or consumption or for sale within the municipality;. . .
Section 325(2) provides that a municipal council may by resolution adopt in respect of any matter the model bye laws made by the Government under sub section
(1) of section 325 in respect 'of matters specified in section 324.
Sub section (3) of section 325 provides: "If a municipal council proposes to adopt the model bye laws in respect of any matter subject to any modifications, the procedure specified in sub sections (4), (5) and (6) 91 of section 324 shall be followed as if the modifications were bye laws proposed to be made by the municipal council.
The modifications as approved by the Government shall be published in the prescribed manner and the model bye laws shall subject to such modifications come into force from such date as may be specified by the municipal council and where no date is specified on the date of such publication".
Sub sections (4) & (5) of section 324 set out the procedure to be followed by the municipal council in the making and publication of bye laws.
Sub section (6) authorises the local Government while approving the bye laws to make any changes therein which appear to it to be necessary.
In the present case the Municipal Council adopted the model bye laws framed by the Government.
It appears, however, that the table of rates in model bye law 16 relating to the levy of storage fee and charges on goods placed in the bonded warehouses was left blank.
The Municipal Council has however by resolution prescribed a, table of rates of storage fee and charges in respect of different classes of articles stored in the bonded warehouses.
The respondents challenge in this Court the validity of the imposition of octroi duty on two grounds: (i) that there was no valid resolution by the Municipal Council under section 94 of the Act selecting the octroi duty for imposition, and (ii) that the model bye laws having been altered by adding a tariff of storage fee in the bonded warehouses without following the procedure prescribed under section 324(4) & (5), the model bye laws could not be deemed to have been validly adopted by the Municipal Council.
They also submit that the Municipal Council has no authority to collect octroi duty, and support the judgment of the High Court, on that question.
Before considering the arguments advanced at the Bar, the steps taken by the Municipal Council for imposing the tax and for adoption of the model bye laws may be briefly set out.
On June 11, 1965 the Standing Committee of the Raichur Municipal Council resolved to levy octroi duty according to Sch. 11 under section 94 of the Mysore Municipalities Act, ' 1964, at the maximum rates at the octroi barriers specified therein.
It was recited in the resolution that confirmation of the general body be obtained.
By resolution dated June 28, 1965 the general body resolved unanimously to confirm the recommendations of the Standing Committee dated June 11, 1965.
On October 27, 1965 the notification under section 95 of the Act by the Municipality inviting objections to the proposals to impose octroi tax was published.
No Objections were received from any resident of the Municipality against the proposal to levy octroi.
On February 26, 1966 there was a special general body meeting of the, Municipal Council and it was resolved to levy 92 octroi with effect from April 1, 1966.
The resolution was in the following terms: "After due decision and consideration it was unanimously resolved to levy the octroi duty on all the goods imported within municipal limits of Raichur under the Schedule II of Mysore Municipalities Act, 1964, from the first day of April 1966.
Further the Committee resolved that the Hyderabad District Municipalities Octroi Rules, 1959, will continue till the new Octroi Rules and Bye laws are finalised under Mysore Municipalities Act, 1964.
" But this resolution was amended on March 25, 1966, and the second paragraph was substituted by the following paragraph: "Further the Committee resolved that the appended Bye laws framed by the Municipality in the light of Octroi Model Bye laws 1965 published by the Government in the Mysore Gazette dated 11th November, 1965, have been fully approved.
" Approval to the modification in the second paragraph was ob tained by circulation to the members and not in an open general meeting.
On March 31, 1966 the minutes of the meeting dated February 26, 1966, and the adoption of the resolution modifying the second paragraph by circulation on March 25, 1966, were read, heard and confirmed unanimously.
The storage fee under bye law 16 of the model bye laws was also adopted.
On April 16, 1966 sanction of the Government under section 96 of the Act to the levy of octroi and the adoption of model bye laws was given, and on May 3, 1966, the notification under section 97 of the Act imposing octroi duty under Sch.
II to the Act and adopting the bye laws was published.
Thereafter on various dates in the months of July and August 1966, the writ petitions out of which these appeals arise were filed.
There is no substance in the contention that the municipal council had not passed a resolution selecting the octroi tax for imposition.
As stated earlier, on June 11, 1965, the Standing Committee of the Municipal Council had "resolved to impose octroi duty" under Sch. 11 to the Act.
But the resolution also stated that confirmation of the general body meeting should be obtained.
The Municipal Council at its meeting dated June 28, 1965 treated the resolution of the Standing Committee as a recommendation and confirmed the recommendation.
The resolution dated June 28, 1965, was passed by the general body and thereby the Municipal Council adopted the recommendations of the Standing Committee, and resolved to select levy of octroi duty at the maximum rates at the octroi barriers specified therein.
It is true that the resolution modifying the original resolution dated February 26, 1966 was passed by circulation on March 25, 93 1966.
But in view of the terms of section 80(5) the validity of the resolution was not liable to be questioned on the ground of irregularity which manifestly did not affect the merit of the case.
, It may be recalled that on March 31, 1966 the "circulation dated 25 3 66 were read, heard and confirmed unanimously.
" The plea that a resolution passed by the Municipal Council cannot, under the Act, be modified or cancelled within three months is without force.
Section 57 of the Act provides that no resolution of a municipal council shall be modified or cancelled within three months after the passing thereof except by a resolution passed in the manner prescribed in that behalf.
There are no materials on the record to prove that the requirements of section 57 were not complied with, and section 97(2) prohibits an enquiry into the regularity of the procedure for imposition of the tax after a notice under section 97(1) is published.
This Court in Municipal Board, Hapur vs Raghuvendra Kripal & Ors.(1) in dealing with a similar provision in section 135 of the U. P. Municipalities Act 2 of 1916, held that section 135(3) shuts out enquiry into the procedure by which a tax had been imposed.
Hidayatullah, J., speaking for the majority observed (p. 958) .
"There is a difference between the tax and the imposition of the tax.
The former is the levy itself and the latter the method by which the levy is imposed and collected.
What the sub section does is to put beyond question the procedure by which the tax is imposed, that is to say, the various steps taken to impose it." Section 97(2) makes the publication of the notice under section 97(1) conclusive evidence that the tax has been imposed in accordance with the provisions of the Act and the rules made thereunder.
The expression "imposed in accordance with the provisions of this Act", in our judgment, means "imposed in accordance with the procedure provided under the Act".
All enquiry into the regularity of the procedure followed by the Municipal Council prior to the publication of the notice is excluded by section 97(2).
This is not a case in which the Municipal Council had not selected a tax for imposition by a resolution: nor is it a case in which the Municipal Council was seeking to levy tax not authorised by law.
A Municipal Council when submitting for sanction a proposal for the imposition of octroi has to submit under section 123 with the proposal for imposition of octroi, also ' bye laws for the purposes of cl.
(m) of sub section
(1) of section 324, or to adopt model bye laws made for the said purposes.
It is to be noticed that under section 94(3) of the Act the tax has to be.
assessed, levied and collected in accordance (1)[1966] I S.C.R. 950.
94 with the provisions of the Act and the rules made by the Government under section 323.
Bye laws contemplated to be made under section 324(1)(m) and required to be adopted from the model bye laws or specially framed and submitted under section 123 deal with matters of details, such as the exhibition of tables of octroi; requiring a licence to be obtained for the sale of any article liable to octroi and prescribing the conditions on or subject to which such licence may be granted, refused, suspended or withdrawn , regulating the system under which the refunds are to be made when the goods on which the octroi has been paid are again exported; for the custody or storage of goods declared not to be intended for use or consumption or for sale within the municipality; prescribing a period of limitation after which no claim for refund of octroi shall be entertained; and prescribing the minimum amount for which any claim for refund may be made.
If bye laws in respect of these matters specified in cl.
(m) of section 324(1) are made and submitted for sanction or model bye laws framed by the Government for those purposes are adopted, the requirements of section 123(1) will be satisfied, and if the State Government sanctions the resolution of the Municipal Council imposing octroi duty under section 97(1) and the notice is duly published, octroi duty may be collected by the Municipal Council.
Defect in the bye laws will not affect the authority of the Municipal Council to collect the tax, for the authority arises under section 94(3) from the Act and the rules.
The Municipal Council of Raichur adopted the model byelaws made by the Government.
None of the bye laws "for the purposes" of cl.
(m) of section 324 in the model bye laws was defective or incomplete.
The model bye laws undoubtedly did not prescribe the storage fee, and the resolution of the Municipal Council levying storage fee at the rates set out in the bye laws and submitted to the Government was not made in conformity with the terms of section 324(4) & (5).
The High Court held that the bye laws adopted by the Muni cipal Council were invalid because (1) the resolution dated February 26,1966 could not have been modified by circulation; and (2) that it was not shown that the Municipal Council had complied with the requirements of section 57 when modifying the resolution dated February 26, 1966; and (3) that the State Government had not fixed the time prescribed by bye laws Nos.
23(e), 27, 28 and 32, and since no decision was taken on those bye laws by the Municipal Council, the enforcement of the octroi levy was "rendered difficult".
It is clear that under section 325(3) modifications to the model bye laws alone require compliance with sub sections
(4) & (5) of section 324.
It may be assumed that fixing a tariff for storage fee under bye law 16 which is not prescribed under the model bye laws amounts to 95 modification of the bye laws, but even on that assumption only bye law 16 may be deemed to be invalid, and the power to collect the storage fee may not be lawfuly exercised by the Municipal Council: that does not affect the validity of the other bye laws.
If without a particular bye law, the scheme of the.
rest of the bye laws may be unworkable, it may follow by necessary implication that the other bye laws have also become ineffective.
But that cannot be said of the defect in adopting the table of fees for the purpose of bye law 16.
The Municipal Council may not be entitled to levy any charge for storage under bye law 16, but that is the only effect of non compliance with the terms of sub sections
(4) and (5) of section 324.
The other bye laws remain valid and operative, for they are plainly severable.
Bye law 23(e) of the model bye laws provides that no refunds shall be allowed in respect of goods which are transported outside the municipal limits within one month of their being brought into the municipal limits, but regarding which the intimation has not been given to the Municipal Commissioner or Chief Officer within such time as may be fixed by the Municipal Council.
Bye law 27 provides that the application for refund with the goods to which it relates shall be presented at the Octroi Station through which it is transported outside the municipal limits within such interval from the hour of examination as the municipal council may determine.
Similarly bye law 28 provides that the Octroi Official inCharge of the Octroi Station shall satisfy himself that the goods produced for transport outside the municipal limits as covered by the refund application correspond with the entries in the refund application form and that they are presented within the time fixed by the Municipal Council under bye law 27.
In our judgment, the time contemplated to be fixed for the purposes of bye laws 23(e), 27 & 28 need not be fixed by the bye laws.
If time is fixed by resolution of the Municipal Council even after the bye laws are sanctioned, there would be no defect in the bye laws.
Bye law 32 provides that no person shall sell articles men tioned therein without obtaining a licence granted in that behalf.
The model bye law is silent as to the articles which may not be sold without obtaining a licence.
Bye laws 313 to 36 depend for their 'operation upon the list of articles being effectively incorporated in bye law 32.
Failure to incorporate the list of articles would result in the Municipal Council being unable to enforce compliance with the requirements of taking out a licence.
But we are unable to hold that because of the failure to fix the time under bye laws 23(e), 27, 28, or for failure to incorporate the list of articles in bye law 32, the rest of the bye laws became ineffective.
We are of the view that even without these bye laws and bye law 16, octroi duty may be levied by the Municipal Council.
In our view, the High Court was in error in holding that the model byelaws which were adopted by the Municipal Council were unenforceable.
96 The appeals must therefore be allowed and the petitions filed by the respondents dismissed with costs in this Court.
One hearing fee.
The order passed by the High Court regarding the costs is maintained.
G.C. Appeals allowed.

summary/full:
On June 11, 1965, the Standing Committee of the Raichur Municipal Council resolved to levy octroi duty according to Sch.
II under section 94 of the Mysore Municipalities Act, 1964.
It was recited in the resolution that the confirmation of the general body be obtained.
The general body unanimously approved the resolution of the Standing Committee.
On October 27, 1965 the notification under section 95 of the Act inviting objections from the public was published; no objections were received.
On February 26, 1966 there was a special general body meeting and it was.
resolved to levy octroi with effect from April 1, 1966.
This resolution was however amended by modification of its second paragraph on March 25, 1966.
Approval to this modification was obtained at first by circulation to the members on March 31, 1966 the minutes of the meeting dated February 26, 1966 and the adoption of the resolution modifying the second paragraph by circulation on March 25, 1966, were read, heard and confirmed unanimously.
As required by section 123 of the Act the model bye laws framed by Government were adopted but the table of rates in model bye law 16 relating to the levy of storage fee and charges on goods placed in the bonded warehouses was, left blank.
The rates were fixed by the Council by its resolution of March 31, 1966.
On April 16, 1966 sanction of the Government under section 96 of the Act to the levy of octroi and the adoption of model by laws was given and on May 3, 1966, the notification under section 97 of the Act imposing octroi duty under Sch.
II and adopting the bye laws was published.
The respondents who were dealers in cloth in Raichur moved the High Court of Mysore under article 226 of the Constitution.
The High Court held that though octroi had been properly levied its collection wag unau thorised owing to defects in the bye laws adopted.
The municipality appealed.
The following questions fell for consideration: (i) whether the resolution levying the octroi and the subsequent modification of the said resolution were procedurally valid (ii) whether the fixation of rates for the purpose of model bye law 16 was validly made, the procedure in section 324(4) and (5) not having been followed , (iii) whether the bye laws were unenforceable for the reason that they did not fix the time for the purpose of bye laws 23, 27 and 28 and did not give a list of articles for the purpose of bye laws 33 to 36.
HELD:(i) The resolution of the Standing Committee selecting octroi tax for imposition expressly stated that confirmation of the general body would be obtained, and such confirmation was actually obtained.
It could not in the circumstances be contended that 88 there was no valid resolution by the Municipal Council under section 94 selecting octroi duty for imposition.
[92F H] The resolution modifying the original resolution dated February 26, 1966 was no doubt passed by circulation but later the said circulation was "read, heard and confirmed unanimously" by the general body.
Under section 80(5) any irregularity not affecting the merit of the case can be cured and section 97(2) prohibits enquiry into the regularity of the procedure by which a tax has been imposed after a notice under section 97 (1) is published.
No material had been placed before the Court to show that in making the modification section 57 had not been complied with.
[93A D] Municipal, Board, Hapur vs Raghuvendra Kripal & Ors., ; , relied on.
(ii)If bye laws in respect of the matters specified in cl.
(m) of section 324(1) are made and submitted for sanction or model bye laws framed by the Government for those purposes are adopted, the requirements of section 123(1) will be satisfied, and if Government sanctions the resolution of the Municipal Council imposing octroi duty under section 97(1) and the notice is duly published.
octroi duty may be collected by the Municipal Council.
Defect in 'the bye laws will not affect the authority of the Municipal Council to collect the tax for the authority arises under section 94(3) from Act and the Rules.
[94C D] The Municipal Council by fixing a tariff for storage fee under bye law 16 modified the model bye laws, and since the modification was made without the Procedure prescribed in section 324(4) and (5) the said bye law was invalid.
As a result the Municipal Council was not entitled to levy any charge for storage under bye law 16.
But the validity of other bye laws was not thereby affected.
[94H 95C] (iii)The time contemplated to be fixed for the purposes of byelaws 23(e), 27 and 28 need not be fixed in the bye laws.
If time is fixed by resolution of the Municipal Council after the bye laws are sanctioned, there would be no defect in the bye laws.
[95E F] Bye laws 33 to 36 depend for their operation upon the list of articles being effectively incorporated in bye law 32.
Failure to incorporate the list of articles would result in the Municipal Council I being unable to enforce compliance with the requirement of taking out a licence.
The rest of the by laws did not threby become ineffective.
[95G H]


judgement:
ns Nos. 154 and 203 of 1966.
Petition under article 32 of the Constitution of India for the enforcement of fundamentals rights.
section K. Mehta, and K. L. Mehta, for the petitioners (in both the petitions).
N. section Bindra, A. Sreedharan Nambiar , R. H. Dhebar for R. N. Sachthey, for respondent No. 1 (in W. P. 154 of 1966).
1. M. Lall and E., C. Agrawala, for respondent No. 2 (in W.P.No. 154 of 1966).
R. H. Dhebar for R. N. Sachthey, for respondents Nos.
I and_ (in W.P. No. 203 of 1966).
H. R Gokhale and E. C. Agarwala, for respondent No. 6 (in W.P. No. 203 of 1966).
Respondent No. 10 appeared in person (in W.P. No. 203 of 1966).
Ramaswami, J.
In this case the petitioner, Roshan La1 Tandon has obtained a rule from this Court calling upon the respondents to show cause why a writ in the nature of mandamus under article 32 of the Constitution of India should not be issued commanding the respondents not to carry out the directives contained in the notification of the Railway Board No. E(NG)65 PMI 26 dated the 27 the October, 1965, Annexure 'D ' to the Writ Petition, in so far as it grants protection to the existing Apprentice Train Examiners and lays down the procedure to fill upgraded vacancies.
Cause has been shown by, the respondents to whom notice of the rule was ordered to be given.
There were originally two scales for Train Examiners Rs. 100 185 ( 'D ' Grade) and Rs. 150 225 ( 'C ' Grade).
These scales were later revised as a result of the recommendations of the Second Pay Commission and the scale of 'D ' Grade was increased to Rs. 180 240 and that of 'C ' Grade to Rs. 205 280.
On February 18, 1961 the Railway Board issued a letter No. PC 60/PS5/ TP 8, Annexure 'A ' to the Writ Petition to the General Managers 187 of all Indian Railways conveying its decision that vacancies in the Entry Grade of Train Examiners (in the scale Rs. 180 240) with effect from February 18, 1961 should be filled as follows: (i) 50% of the vacancies should be filled from Apprentice Train Examiners who successfully have completed the prescribed (4 years) apprenticeship, the remaining 50% of the vacancies being filled by promotion of skilled artisans.
(ii) 20 /1/O of the annual requirements of Apprentice Train Examiners should be drawn from skilled artisans who are not more than 35 years old on 1st July of the year in which the apprenticeship is likely to commence.
" Promotion to Grade 'C ' of Train Examiners used to take place on the basis of seniority cum suitability without any distinction whether the employee entered Grade 'D ' of the Train Examiners directly or was selected out of the category of skilled artisans.
This rule was laid down by the Railway Board in its letter No. E(S) 1 57 TRS/41, dated January 25, 1958 which states: "Ref : Para 2 of Board 's letter No. E(R) 49 JAC / 13 dated 23 2 50 laying down that 20% of the posts in the TXR grade Rs. 150 225 should be reserved and the TXR in the grade of Rs. 80 160 (since revised Rs. 100 185) promoted from skilled and semi skilled ranks.
The Board have reviewed the position and have decided that promotion to the TXR grade of Rs. 150 225 should hereafter be made solely on the basis of seniority cum suitability and the reservation of only 20% as mentioned above will no longer be operative." (Annexure 'B ' to the Writ Petition).
On the basis of this rule the Divisional Personnel Officer, New Delhi, prepared a seniority list for the Train Examiners of Grade 'D ' of Delhi Division as on December 31, 1964 (Annexure 'C ' to the Writ Petition). 'On October 27, 1965 the Railway Board issued the impugned notification (Annexure 'D ' to the Writ Petition).
The notification states in the first place that on and from April 1, 1966 vacancies in the Entry Grade of Train Examiners scale Rs. 120 240 should not be filled from Apprentice Train Examiners upto 50% as hitherto, but should exclusively be filled by promotion from amongst artisan staff With regard to the next higher grade i.e., Grade 'C ', it was provided that 80% vacancies should be filled by Apprentice Train Examiners who had successfully completed the prescribed training of 5 years (three years in case of Diploma Holders and three years in case of Artisan recruited as Apprentice Train Examiner).
Twenty per cent of the vacancies were to be filled by the Train Examiners from Grade 'D '.
It was 188 further provided that the Train Examiners Grade 'D ' who began as Apprentice Train Examiners and who were to be absorbed in the 'C ' Grade against 80% vacancies reserved for them should not be required to undergo selection before being absorbed in that grade.
As regards 20% vacancies reserved for the other class of Train Examiners the promotion was to be on selection basis.
The materials portion of the notification of the Railway Board dated October 27, 1965 is reproduced below: "RECRUITMENT: (i) Vacancies in the entry grade of Train Examiners in the authorised scale Rs. 180 240 should not be filled from apprentice TX Rs. upto 50% as hitherto, but should exclusively be filled by promotion from amongst artisan staff.
(ii) (a) Vacancies in the next higher grade Rs. 205 280 (AS) should be filled from amongst X X the TXRs in grade Rs. 180 240 (AS) to the extent of 2O%.
(b) The remaining 80% vacancies should be filled by Apprentice TX Rs. who have successfuly completed prescribed apprenticepship mentioned in para 2 below.
(c) 25% of the annual requirements of apprentice TXRS.
should be drawn from skilled artisans who are not more than 35 years old on 1st July of the year in which apprenticeship is likely to commence.
The instructions contained in Board 's letter No. 2(NG) 61MI/101 dated 6 6 62 should be kept in view.
Training 2.
The Appentice TXRs recruited on and from 1/4/66 shall be given a training for a period of five years (three years in the case of diploma holders).
From the same date artisans in lower grades (recruited as apprentice TXRS.) shall be given 'in service ' training for period of three years.
Instructions regarding a revised syllabus for the training of the Apprentice TXRS.
will follow: DISTRIBUTION OF POSTS IN DIFFERENT GRADE Fifty per cent of existing posts of TXRs in grade Rs. 180 240 which were required to be earmarked for(Apprentice TXRS.
in terms of Board 's letter No. PC 60/ PS 6/TP 8 dated 18 2 1961 should be upgraded to scaleRs.
205 280.
189 REVISED DESIGNATIONS AND CLASSIFICATION OF POSTS OF TXRS.
Designation Scale of Pay Classification T. X. Its.
Grade D ' 180 240Non selection T. X. Rs. Grade 'C ' 205 280Selection for promotees from grade ID ' T. X. Rs. Grade 'B ' 250 380Selection T. X. Its.
Grade 'A ' 335 425Non selection Head T. X. Rs. 370 475 Selection Chief T. X. Rs. 450 575 Selection Carriage Foreman Protection to the existing apprentice TXRS.
procedure fill upgraded vacancies.
It has also been decided that with effect from 1 4 66 all the Apprentice TXRS.
(Diploma holders as well as others) on successful completion of their training should be straightaway brought on to the scale Rs. 205 280 (AS) instead of being first absorbed in scale Rs. 180 6 240 as at present.
Consequenty they should be allowed stipend in scale Rs. 180 6 210 during the period of their training.
As regards the apprentice TXRS.
who are undergoing training at present, and will not be brought on to the work working posts before 1 4 66, it has been decided that from the date of this letter, they should be allowed stipend in scale Rs. 180 6 210 during the remaining period of their training.
Their period of training should also be increased to 5 years, on completion of which they should be put on to the working posts in scale Rs. 205 280 (AS).
The Apprentice TXRS.
who have already been or will be absorbed in scale Rs. 180 240 upto 31 3 66 should first be accommodated in scale Rs. 205 280 against the quota of 80% vacancies reserved for them.
Such staff should not be required to undergo a 'Selection ' before being absorbed in that grade.
The upgraded vacancies in scale Rs. 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of TXRS.
in scale Rs. 180 240 on a selection basis.
While computing the number of posts available for promotion of TXRS.
in scale Rs. 180 240 the vacancies likely to occur during the period 190 of apprenticeship of the apprentices under training as on 1 4 66 should also be taken into account.
In other words, it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1 4 66, who cannot be absorbed in the anticipated vacancies which will arise by the time they qualify.
" The petitioner, Roshan Lal Tandon entered railway service on March 6, 1954 as skilled fitter on the Northern Railway.
He was selected for the training for the post of Train Examiner Grade 'D ' on June 5, 1958 and was confirmed in that grade on October 25, 1959.
The case of the petitioner is that he alongwith the direct recruits formed one class in Entry grade 'D ' and their condition of service was that seniority was to be reckoned from the date of appointment as Train Examiner in Grade 'D ' and promotion to Grade 'C ' was on the basis of seniority cum suitability test irrespective of the source of recruitment.
It was alleged that there was no difference between the apprentices and those selected out of the skilled artisans when they entered Grade 'D ' and that portion of the impugned notification which gave a favourable treatment to the direct recruits in Grade 'D ' with regard to promotion to Grade 'C ' was arbitrary and discriminatory and violated the guarantee under articles 14 and 16 of the Constitution.
It was contended that the petitioner having been brought to grade 'D ' by undergoing the necessary selection and training and having been integrated with the others who had been brought in through direct recruitment in grade 'D ' could not be differentiated for the purpose of promotion to the senior Grade 'C '.
The petitioner has therefore moved this Court for the grant of a writ under article 32 of the Constitution to quash the notification of the Railway Board dated October 27, 1965.
In the counter affidavit respondent No. 1 has denied that there was any violation of the guarantee under articles 14 and 16 of the Constitution.
It was conceded that prior to April 1, 1966 promotion to the post of Grade 'C ' Train Examiner was on the basis of seniority cum suitability but the impugned notification was issued by the first respondent because it Was decided that the posts of senior Train Examiners in Grade 'C ' should be filled by men possessin adequate technical knowledge and so the period of training of senior Train Examiners was increased and it was decided that in future 80 per cent of the vacancies in 'C ' grade should be filled directly by Apprentice Train Examiners and the remaining 20 per cent was to be made available for recruitment from the category of Train Examiners to which the petitioner belonged.
This recruitment of 20 per cent vacancies was to be made on the basis of merit.
It was said that the reorganisation of the Service was made with a view to obtain a better and more technically trained class of Train Examiners.
The reason was that 191 there were more complicated designs.
of Carriages and Wagons, acquisition of modern type of Rolling Stock and greater speed of trains under dieselisation and electrification programmes.
It was.
considered that there should be a better calibre of technically trained and technically qualified personnel for proper maintenance and safety of the Rolling Stock.
In view of the decision to recruit Apprentice Train Examiners directly in 'C ' Grade with effect from April 1, 1966 those who were Apprentice Train Examiners in Grade 'D ' before that date had to be upgraded in the scale of Rs. 205 280.
It was therefore thought that these posts should be upgraded "so that there should be parity of treatment with the Apprentice Train Examiners who were to join after April 1, 1966".
The first respondent has also controverted the allegation of the petitioner that the procedure outlined in the impugned notification dated October 27, 1965 in regard to the upgraded vacancies was discriminatory.
The main question to be considered in this case is whether the notification by the first respondent dated October 27, 1965 is violative of articles 14 and 16 of the Constitution in so far as it makes a discrimination against the petitioner for promotion to Grade 'C '.
According to the impugned notification the existing Apprentice Train Examiners who had already been absorbed in grade 'D ' by March 31.
1966 should first be accommodated in grade 'C ' in 80% of the vacancies reserved for them without undergoing any selection.
With regard to 20% of the vacancies there is a reservation in favour of the departmental Train Examiners, but the promotion is by selection and not by the test of seniority cum suitability which prevailed before the date of the impugned notification.
It was not disputed by Mr. Mehta on behalf of the petitioner that the Railway Board was competent to say that with effect from April 1, 1966 vacancies in the Entry grade posts of Train Examiners should not be filled from Apprentice Train Examiners upto 50% but should be exclusively filled by promotion from amongst artisan staff.
As regards the recruitment to grade 'C ', the impugned notification states that with effect from April 1, 1966 all the Apprentice.
Train Examiners on successful completion of their training should be straightaway brought on to the scale Rs. 205 280 instead of being first absorbed in scale Rs. 180 6 240 as at present.
The period of training was also increased to 5 years on completion of which they should be put on to the working posts in scale Rs. 205 280.
So far as this portion of the notification is concerned, Counsel for the petitioner did not raise any constitutional objection.
But the contention of the petitioner is that the following portion of the notification was.
constitutionally invalid: "The Apprentice TXRS.
who have already been or will be absorbed in scale Rs. 180 240 upto 31 3 66 should first be accommodated in scale Rs. 205 280 192 against the quota 80% vacancies reserved for them.
Such staff should not be required to undergo a 'Selection ' before being absorbed in that grade.
The upgraded vacancies in scale Rs. 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of TXRs in scale Rs. 180 240 on a selection basis.
" In our opinion, the constitutional objection taken by the petitioner to this part of the notification is well founded and must be accepted as correct.
At the time when the petitioner and the direct recruits were appointed to Grade 'D ', there was one class in Grade 'D ' formed of direct recruits and the promotees from the grade of artisans.
The recruits from both the sources to Grade 'D ' were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade 'C '.
To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher grade 'C '.
In the present case, it is not disputed on behalf of the first respondent that before the impugned notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was seniority cum suitability, and there was no rule of promotion separately made for application to the direct recruits.
As a consequence of the impugned notification a discriminatory treatment is made in favour of the existing Apprentice Train Examiners who have already been absorbed in Grade 'D ' by March 31, 1966, because the notification provides that this group of Apprentice Train Examiners should first be accommodated en bloc in grade 'C ' upto 80 per cent of vacancies reserved for them without undergoing any selec tion.
As regards the 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioner belongs the basis of recruitment was selection on merit and the previous test of seniority cum suitability was abandoned.
In our opinion, the present case falls within the principle of the recent decision of this Court in Mervyn vs Collector(1).
In that case, the petitioners who were Appraisers in the Customs Department filed a writ petition under article 32, challenging the validity of the "rotational" system as applied in fixing the seniority of Appraisers and Principal Appraisers.
The system, as laid down in the relevant departmental circulars was that vacancies occurring in the cadre of Appraisers were to go alternatively to 'promotees ' and 'direct recruits '.
According to the petitioners of that case this resulted in inequality, especially in view of the fact that the number of direct recruits over the years was very low.
Promotion to the (1) ; 193 grade of Principal Appraisers was from the cadre of Appraisers; only those who had served as Appraisers for five years were entitled to be promoted to the higher grade.
Since the direct recruits had to wait for five years before they could become Principal Appraiser the promotees below them who had put in five years as Appraisers became Principal Appraisers.
In order to restore the seniority of the direct recruits thus lost, the rotational system was applied to the cadre of Principal Appraisers also i.e., one vacancy was to go to a promotee and the other to a direct recruit.
The plea of inequality in violation of article 16(1) of the Constitution was raised by the petitioners in respect of this also.
It was held by this Court, in the first place, that there was no inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct recruits and promotees.
It was held in the second place that the same could not be said when the rotational system was applied to the recruitment of Principal Appraisers.
The source of recruitment for these was one only, namely, the grade of Appraisers.
There was no question of any quota being reserved from two sources in their case.
In so far therefore as the Government was doing what it called res toration of seniority of direct recruits in Appraisers grade on their promotion to the higher grade it was clearly denying equality of opportunity under article 16 of the Constitution.
At page 606 of the Report Wanchoo, J., as he then was, speaking for the Court observed as follows: "This brings us to the question of Principles Appraisers.
We are of opinion that the petitioners have a legitimate grievance in this respect.
The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers.
There is therefore no question of any quota being reserved from two sources in their cases.
The rotational system cannot therefore apply when there is only one source of recruitment and not two sources of recruitment.
In a case therefore where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over.
In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one.
There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade.
In so far therefore as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers ' grade when they are promoted to the Principal Appraisers ' grade, it is clearly denying equality of opportunity LP(N)ISCI 14 194 to Apprasiers which is the only source of recruitment to the Principal Appraisers ' grade.
There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five, years ' experience as Appraiser is the minimum qualification.
Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally.
That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers ' grade subject of course to the right of government to revert any of them who have not been found fit during the period of probation.
But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits.
The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely from the grade of Appraisers.
In such a case the seniority in the grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers ' grade is a direct recruit or a promotee.
This will as we have already said be subject to the government 's right to revert any one promoted as a Princivil Appraiser if he is not found fit for the post during the period of probation.
The petition therefore will have to be allowed with respect to the method by which seniority is fixed, in the grade of Principal Appraisers.
That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers.
What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one.
" We pass on to consider the next contention of the petitioner that there was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grage 'D and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board.
It was said that the order of the Railway Board dated January 25, 1958, Annexure 'B ', laid down that promotion to Grade 'C ' from Grade 'D ' was to be based on seniority cum suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner.
In our opinion, there,, 195 is no warrant for this argument.
It is 'true that the origin of Government service is contractual.
There is an offer and acceptance in every case.
But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government.
In other words, the legal position of a Government servant is more one of status than of contract.
The hall mark of status is the attachment to a legal relationship of rights and duties imposed by the public 'law and not by mere agreement of the parties.
The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee.
It is true that article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under article 310.
But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant.
The legal relationship is something entirely different, something in the nature of status.
It is much more than a purely contractual relationship voluntarily entered into between the parties.
The duties of status are 'fixed by the law and in the enforcement of these duties society has an interest.
In the language of juris prudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned.
The matter is clearly stated by Salmond and Williams on Contracts as follows: "So we may find both contractual and status obligations produced by the same transaction.
the one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligations de fined by the law,itself, and so pertaining to the sphere of status.
A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents.
The extent to Which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by mining for itself the contents of the relationship, is a matter depending on considerations of public policy.
In such contracts as those of service the tendency in modem times is to withdraw the matter more and more from the domain of contract into that of status." .lm0 (Salmond and Williams on Contracts, 2nd edition p. 12).
196 We are therefore of the opinion that the petitioner has no vested contractual right in regard to the terms of his service and that Counsel for the petitioner has been unable to make good his submission on this aspect of the case.
But for the reasons already expressed we hold that the impugned part of the notification violates the guarantee under articles 14 and 16 of the Constitution and a writ in the nature of mandamus should be issued commanding the first respondent not to give effect to the impugned part of the notification, viz.,: "The Apprentice T.X.Rs. who have already been or will be absorbed in scale Rs. 180 240 upto 31 3 66 should first be accommodated in scale Rs. 205 280 against the quota of 80% vacancies reserved for them.
Such staff should not be required to undergo a 'Selection ' before being absorbed in that grade.
The upgraded vacancies in scale Rs. 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of T.X.Rs.
in scale Rs. 180 240 on a selection basis.
While computing the number of posts available for promotion of T.X.Rs.
in scale Rs. 180 240 the vacancies likely to occur during the period of apprenticeship of the apprentices under training as on 1 4 66 should also be taken into account.
In other words, it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1 4 66, who cannot be absorbed in the anti cipated vacancies which will arise by the time they qualify.
" The application is accordingly allowed, but there will be no ,order with regard to costs in this case.
Writ Petition No. 203 of 1966 The material facts of this case are parallel to those in Writ Petition No. 154 of 1966 and for the reasons already given we hold that the petitioner is entitled to the grant of a writ in the nature of mandamus commanding the respondents not to give effect to the impugned part of the notification dated October 27, 1965, Annexure 'D ' to the Writ Petition.
The application is accordingly allowed, but there will be no order as to costs in this case.
Petitions allowed.

summary/full:
Vacancies in grade 'D ' of Train Examinations were filled by (a) direct recruits i.e., apprentice train examiners who had completed the prescribed period of training, and (b) promotees from skilled artisans.
Promotion from Grade 'D ' to 'C ' was on the basis of seniority cum suitability.
In October 1965 the Railway Board issued a notification by which it was provided that eighty per cent of the vacancies in Grade 'C ' were to be filled up from apprentice train examiners recruited on and after April 1, 1966 and the remaining twenty per cent by train examiners from Grade 'D '.
The notification further provided that apprentice train examiners who had already been absorbed in Grade D before April 1966 should en bloc be accommodated in Grade 'C ' in the eighty per cent of the vacancies without undergoing any selection and with regard to twenty per cent of the vacancies, reserved for the other class promotion was to be on selection basis and not on the basis of seniority cum suitability.
The petitioner who entered Railway service in 1954 as a skilled artisan and was selected and confirmed in Grade 'D ' filed a Writ Petition in this Court challenging that part of the notification which gave favourable treatment to apprentice train examiners who had already been absorbed in Grade 14 'D ' as arbitrary and discriminatory and violative of Articles t4 and 16 of the Constitution.
It was also contended that the earlier order laying down that promotion to grade 'C ' was to be based on seniority cum suitability had become a contractual condition of service and could not be altered to the prejudice of the petitioner.
HELD: (i) The impugned part of the notification violated the guarantee under Articles 14 and 16 of the Constitution.
Once the direct recruits and promotees were absorbed in one cadre, they formed one class and they could not be discriminated against for the purpose of further promotion to the higher grade 'C '.
Before the impugned notification was issued there was only one rule of promotion applicable to both direct recruits and promotees.
By the impugned notification a discriminatory treatment was made in favour of the existing apprentice Train Examiners who had already been absorbed in grade 'D ' because, the notification provided that this group of apprentice train examiners should first be accommodated en bloc in grade 'C ' up to eighty per cent of the vacancies reserved for them without undergoing any selection; whereas in the twenty per cent of the vacancies available to the category of Train Examiners to which the petitioner belonged the basis of recruitment was selection on merit and the previous test of seniority cum suitability was abandoned.
[192 D G].
186 Mervyn vs Collector, ; relied on.
(ii) The petitioner had no vested contractual right in regard to the terms of his service.
The legal position of a Government servant is more one of status than of contract.
Once appointed to his post or office a Government servant acquires a status and his rights and obligations are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government.
[195 B C].