judgement:
ition No. 1938 of 1981 (Under Article 32 of the Constitution of India) M. K. Ramamurthy and P. P. Singh for the Petitioners.
M. C. Bhandare, Raju Ramalchandran, R. R. Garg, V. J. Francis and N.M. Popli for the Respondents.
Normally a resolution of such a dispute these two well known groups of service employees would necessitate considereation of various decisions relating to the quota and rota rule and such other allied matters.
We have been relieved of this exercise because We feel that the dispute in this case can be resolved on facts, unaided by precedents on such matters.
The counsel on both sides advisedly, therefore, restrained themselves from citing the relevant authorities before us.
Now the facts: All the 39 petitioners are promotees to the post of Assistant in the Indian Council of Agricultural Research (for short 'the society ') the 1st respondent herein.
The second respondent is the Union of India and respondent Nos. 3 to 31 are direct recruits to the same post.
Respondent Nos. 32 to 88 are also promotees and have been impleaded as proforma respondents.
3 The petitioner originally belonged to the service of the Central Secretariat, Government of India, Ministry of Agriculture.
The Society was a part of that department till 1. 4.
1965 on which date the Government of India decided to re organise the 1067 Society into a fully autonomous organisation with its own secretariat.
The petitioners opted to join the service in the Society on such re organisation.
Respondent Nos. 3 to 31 were directly recruited after an open competitive test, held by the Society in 1967 and 1911.A seniority list was prepared by the Society in 1976 showing the relative positions of the promotees and the direct recruits.
The provocation for filing the writ petition was the publishing of a second seniority list, by the Society by its Memorandum No. 27 (5)/81 Estt.
II dated 7.4.1981.
This list brought changes in the earlier list and pushed down the promotees from the positions they occupied in that list.
The prayer in the writ petition is to quash this seniority list on the ground that it violates Article 1 and 16 of the Constitution of India and to stay its implementation.
The Petitioners ' case is that they came into the Society by virtue of the option exercised by them and that they are entitled to seniority on the basis of the length of their service from the date of option.
According to them, recruitment rules, laying down the terms of service in the Society, were not avilable then and as such seniority had to be fixed on length of service.
The case of the contesting respondents is that seniority has to be fixed not with reference to the date of the reorganisation of Society and the date of option exercised by the petitioners but from the date of their appointment on a regular basis.
They seriously disputed the case of the petitioners that they were entitled to seniority from the date they exercised their option.
According to them the petitioners have to establish that they were duly appointed in the service on a regular basis, when they exercised their option, to claim seniority on the strength of length of service from the date of their option.
We must confess that there was considerable confusion both on the side of the petitioners and on the side of the Society and the Government regarding the existence of rules, regulating the conditions of service in the Society.
Things proceeded in the Society on the basis that there were no recruitment rules in existence till 1974, while the factual position is that rules were in existence from 1964.
It was on this wrong aasumption the that seniority list was prepared on 2nd February, 1979.
In that list, seniority was reckoned with reference to length of service.
It was after realising that a mistake had been committed and that rules, in fact, existed that the impugned list was drawn up on 7th April, 1981.
1068 6.
The petitioners have given a comparative statement as Annexure 9, showing the manner in which the new list has worked to their detriment.
This Annexure show.
the relative potions of the promotees and the direct recruits in the 1976 list and in the 1981 list.
To cite two or three examples; direct recruits who were placed at serial Nos. 4, 20 & 83 in the 1976 list, have gone up as seria Nos. 2, 10 and 22, respectively, in the 1981 list.
While preparing the 1976 list, a deemed date of appointment in the grade was adopted to calculate the length of service.
The petitioners, case is that the direct recurits never questioned their placement in this list and therefore cannot oppose with any justification the petitioners ' request for quashing the impugned list.
Though this submission ' is wholly not unfounded, the petitioners cannot succeed merely on the inaction on the part of the direct recruits but have to satisfy the Court of a right in them to entitle them to seniority from the date they opted and came into the Society 's service.
It is this aspect of the case that needs examination by us in this writ petition.
In this case we do not have the usual picture of great injustice glaring in the face, of promotees being eased out of their places by direct recruits after a long lapse of time.
Here we are dealing with a small Society with a limited number of employees and the dispute relates to a short period from 1965 to 1973.
The petitioners cannot, in this case, put forward either the case of a wholesale reduction of their places, legitimately due to them or the collapse of the quota and rota system as was the case in some of the decided cases.
The short point here is as to when the petitioners were regular appointed in the grade of Assistants and as to whether the petitioners ' rightful places have been robbed by the Society and the direct recruits by the impugned seniority list.
The petitioners were originally Upper Division Clerks with the Agricultural Department of Government of India.
They came to Court with the definite plea that their seniority was fixed on the basis of the principles applicable to Government service in the absence of any rules framed by the society, regulating their service conditions.
It is stated in the petition that they made representations to the authorities for laying down of clear principles to determine the inter se seniority between them and the direct recruits and as a consequence, the Government of India issued a Memorandum dated 20th April, 1970, asking the Govern ment employees to give their option by 30th April.
1970 and 1069 reiterating at the same time that the inter se seniority of the ministerial staff under the reorganised Council would be fixed on the basis of the date of appointment made on a regular basis.
It is significant to note that the petitioners have not produced a single of their appointment orders for this Court to be satisfied as to then they were appointed as Assistants on a regular basis while a specimen appointment order of direct recruits has been produced.
Still the petitioners insist that the crucial date for determining the inter se seniority is 1 4 1965, the date on which the Society was reorganised.
We find it difficult to accept the contention that the length of service has to be reckoned from 1.4.1965 or from the respective dates when they entered the service of the Society on exercise of their option when the Memorandum, produced by them, has clearly stated that the inter se seniority will be fixed on the basis of the date of appointment in the grade on the regular basis.
We have looked into the Memorandum Annexure 4, dated 20th April, 1970.
It clearly states that the date for exercise of option has been extended to 30th April ' 1970 and that the principles determining the inter se seniority of the ministerial staff in the reorganised Council was considered by the Society in consultation with the Ministries of Law and Home Affairs and Finance and that it was decided that the seniority of the ministerial staff in the reorganised Council would be fixed on the basis of " date of appointment to the grade on a regular basis .
" This statement in the Memorandum which finds a place in paragraph 8 of the Writ Petition also shows, according to us, the hollowness of the contention of the petitioners that seniority has to be fixed with reference to the date on which option was exercised by them.
Direct recruitment to the post of Assistants in the Society was made by holding competitive examination in 1967 and 1971.
Upper Division Clerks, like the petitioners who were working with the Agricultural Dept., Govt.
Of India, could very well have appeared for this competitive examination and got themselves directly recruited as Assistants on successfully passing the competitive examination.
We are told that some of the petitioners in fact, appeared for the competitive test without success.
Though this statement made by the counsel for the respondents at the bar was not disputed by the petitioners ' counsel, we do not propose to rely on it since it is not a matter on record.
Those who were successful at the competitive examination and the interview were offered the posts of Assistant by regular appointment as per appointment order produced as 1070 Annexure 5, issued by the Society, containing the terms of appointment.
As already indicated, the petitioners have either by design or by oversight failed to make available to us their orders of appointment on a regular basis in the grade when they exercised option.
It is against this background that the challenge to the 1981 list has to be considered.
If the petitioners can satisfy us that they had greater length of service in equivalent grade than the direct recruits, they are entitled to succeed.
If they fail, the list has to stand despite the fact that the earlier list was not challenged by the direct recruits.
We do not have on record anything to show when the petitioners were regularly appointed in the grade of Assistants.
In the absence of this evidence, can the petitioners succeed ? As already stated the Society and the Union Government were originally under a misapprehension that no rules existed governing the service conditions in the Society.
The petitioners have produced a Memorandum Annexure 3 dated 21st August, 1967 which throws considerable light on the dispute involved in the case.
lt is stated therein that the Government of India have approved of the reorganisation of the Indian Council of Agricultural Research into an office wholly controlled and financed by the Indian Council of Agricultural Research, with effect from a date to be appointed shortly.
As a consequence of the above decision the various posts existing as Government posts in the said Secretariat, will be abolished with effect from the aforesaid date and corresponding number of posts in various cadres will be created as nongovernment posts under the Society.
Paragraph 2 of this Memorandum reads: "The Indian Council of Agricultural Research has, however, agreed to take over such officers as belong to the C.S.S. (holding posts of Section Officer 's grade and Grade IV only), C.S.S.S. and C.S.C.S., employed on date in the Department of Agriculture and its attached offices (including the Indian Council of Agricultural Research) as are willing to serve the Council.
The Indian Council of Agricultural Research will, of course, select from amongst the persons opting for its service only the number of persons required by them, keeping in view the total number of existing posts in the various cadres borne on the Govern _ 1071 ment side of the Indian Council of Agricultural Research.
" Clause VI of Para 2 reads as follows: "The inter se seniority of the staff in Indian Council of Agricultural Research shall be determined in accordance with the rules to be framed for the purpose taking into account, among others, the principles governing the seniority under the Central Government.
" From the passages extracted above, it becomes clear that appointments are to be regularly made to various grades only with effect from a date to be appointed after 21st August, 1967, the date of the Memorandum, which means that the deemed date of appointment mentioned in the 1976 list cannot be relied upon by the petitioners to project a case of their length of service from that date.
The petitioners placed strong reliance on the Memorandum,` Annexure 4 dated 20th April, 1970, and in particular to the following: It has also been decided that 1st April, 1965 shall constitute the crucial date for determining the inter se seniority of the staff finally merging into the reorganised Council.
Accordingly, a combined inter se seniority list will be prepared for each grade of the persons on the basis of the above principle in accordance with the position obtaining in respect of each individual as on 1st April, 1965 and all regular vacancies arising in the Council with effect from 1st April, 1965 upto date, meant to be filled by promotion (including those which have been filled up on ad hoc basis) will be filled up on a regular basis from the 1? inter se seniority list drawn up in the manner indicated above.
Relying on this, the petitioners attempt to contend that their seniority should start from the date they exercised option and that this is correctly reflected in 1976 list.
This submission overlooks the fact that even at that time, there were rules in existence prescribing a ratio of 1: 1 between promotees and direct recruits.
In addition to this, it has to be noted that here also, filling up of vacancies on a regular basis is emphasised.
1072 13.
The Petitioners cannot therefore seek support from this to press a case of seniority from the date of exercise their options or from the deemed date of appointment.
Rights can accrue to them as members of the new service only from the date they are regularly appointed in the grade.
The impugned list instead of continuing the mistake committed in the 1976 list, has only corrected the mistake.
We find from the records that the Union Government and the Society were originally in error in their assumption that no rules existed for regulating the service conditions in the Society.
We have at page 91 as Annexure 6, rules relating to the Indian Council of Agricultural Research before its reorganisation.
The said rules show that the posts of Assistants can be fill d up 50% by direct recruitment and 50% by promotions.
In other words, for every promotee there should be a direct recruit also.
As is seen in the Handbook for personnel officer, the relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
New recruitment rules for verious posts in the Society including Assistants with which we are concerned, came into force with effect from 1.9.1974.
Under these rules, in the number of posts available for Assistants 50% was to be by way of promotion from amongst the U.D.Cs.
having rendered at least 5 years approved service in the grade on the basis of seniority cum fitness subject to rejection of the unfit on the recommendations of the D.P.C. and 50% by direct recruitment on the basis of the results of competitive examination held by the ICAR.
This method of recruitment was to be with effect from 1.1.1976.
The method of recruitment before this date is also indicated in these rules.
It is provided in these rules that vacancies, arising between 29.8.1973 and 31.12.1975, will be filled wholly (100%) by promotion.
This means that vacancies prior to 2.9.1973 will be filled up in accordance with the 1964 rules and vacancies between 29.8.1973 and 31.12.1975, will be filled by the promotees alone and thereafter in the ratio I :1.
From these rules it is evident 1073 that the Society was conscious of the claims of the promotees and hence safeguarded their interests by providing 100% posts for them between 29.8.1973 and 31.12.1975.
By doing so, justice was done to them in a great measure.
The petitioners have no grievance that in preparing the 1981 list, which is impugned in this writ petition, a departure has been made to their detriment, without adhering to the quota provided in the rules.
Their only grievance is that the earlier list was changed without taking into account the deemed dates of appointment.
We have already indicated that in the absence of satisfactory proof of the date of appointment of the petitioners in the Grade as assistants in the Society, the petitioners cannot successfully urge before us a violation of Article 14 and 16 of the Constitution of India.
A look at the list prepared in accordance with the above rules, fortifies our conclusion that no great injustice was done to the promotees in the preparation of the list.
As one goes through the list, one finds that the gap between the promotees and the direct recruits is of a very short duration and not wide as in other cases.
It is true that direct recruitment was made first only in 1967.
However, to world out the quota system an earlier date of appointment had to be given to the direct recruits.
This could not be avoided.
This according to us, has not done any great injustice to pursuade us to give relief to the petitioners.
The dislocation was limited only to a period between 1965 to 1967 and 1967 to 1971 aod not to a fairly long period of time.
E In our Judgment, therefore, the petitioners are not entitled to succeed.
The writ petition fails and is dismissed.
The parties are directed to bear their costs, N.V.K. Petition dismissed.

summary/full:
The 39 petitioners in the writ petition were promotees to the post of Assistant in the Indian Council of Agricultural Research first respondent.
The Nos. 3 second respondent was the Union of India and respondent Nos. 3 to 31 were direct recruits to the same post.
Respondent Nos. 32 to 88 were also promotees and impleaded as proforma respondents.
The petitioners contended that they belonged to the service of the Central Secretariat, (Department of Agriculture) and the society was a part of that Department till 1.4.1965 on which date the Government of India decided to re organise the society into a fully autonomous organisation with its own Secretariat.
The petitioners opted to join the service in the Society on such re organisation.
Respondent Nos. 3 to 31 were directly recruited after an Open competitive test.
The seniority list was prepared by the Society in 1976 showing the relative positions of the promotees and the direct recruits.
A second seniority list was published by the Society on 7.4.1981 and this list brought changes in the earlier list and pushed down the promotees from the positions they occupied in that list.
The petitioners contended that this seniority list should be quashed on the ground that it violated Article 14 and 16 of the Constitution, as recruitment rules laying down the terms of services in the Society were not available seniority had to be fixed on length of service.
They were also entitled to seniority on the basis of the length of their service from the date of they came into the Society by virtue of the option.
The case of the contesting respondents was that seniority has to be fixed not with reference to tho reorganisation of the Society but on the date of their appointment on a regular basis, and that the petitioners had to establish that they were duly appointed in the service on a regular basis when they exercised their option.
Dismissing the Writ Petition.
1065 ^ HELD: 1.
In the absence of satisfactory proof of the date of appointment of the petitioners in the grade as assistants in the Society the petitioners cannot successfully urge violation of Article 14 and 16 of the Constitution.
No great injustice was done to the promotees in the preparation of the list.
Goeing through the list, one finds that the gap between the promotees and the direct recruits is of a very short duration and not wide as in other cases.
Direct recruitment was made first only 1967.
However, to work out the quota system an earlier date of appointment had to be given to the direct recruits.
This could not be avoided.
This has not done great injustice to the petitioners.
This dislocation was limited only to a period between 1965 to 1967 and 1967 to 1971 and not a fairly long period of time.
[1073 C E] 2.
The memorandum Annexure 4 dated 20th April, 1970 clearly states that the principles to determine the inter sc seniority of the ministerial staff in the reorganised Council was considered by the Society and that it was decided that the seniority of the Ministerial staff would be fixed on the basis of "date of appointment made on a regular basis.
" The contention of the petitioners that seniority has to be filed with reference to the date on which option was exercised by them, has no basis.
[1069D.E] 3.
Direct recruitment to the post of Assistants in the Society was made holding competitive examination in 1967 and 1971.
Upper Division Clerks, like the petitioners who were working with the Agricultural Department, could very well have appeared for this competitive examination and got themselves directly recruited as Assistants on successfully passing the competitive examination.
Some of the petitioners in fact appeared for the competitive test without success.
Those who were successful at the competitive examination and the interview were offered the post of Assistant by regular appointment.
[1069F H] 4.
Relying on Annexure 4 Memorandum dated 24.4.70 the petitioners ' attempt to contend that their seniority should start from the date they exercised option and that this is correctly reflected in 1976 list.
This submission overlooks the fact that even at that time, there were rules in existence prescribing a ratio of 1: I between promotees and direct recruits.
In addition to this, it has to be noted that here also, filling up of vacancies on a regular basis is emphasised, [1071 G H] 5.
The Union Government and the Society were originally in error in their assumption that no rules existed for regulating the service conditions in the Society Annexure 6, are rules relating to the Indian Council of Agricultural Research before its reorganisation.
The said rules show, that the posts of Assistants can be filled up 50% by direct recruit also.
The handbook for personnel officer shows that the relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
New recruitment rules came into effect from 1.91974.
This method of recruitment was to be with effect from 1.1.1976.
It further provided that vacancies arising between 29.8.1973 and 31.12.1975 were to be filled wholly (100%) by promotion This 1066 means that vacancies prior to 29.8.1973 and 31.12.1975 will be filled up in accordance with the 1964 rules and vacancies between 29.8.1973 and 31.12 1975 will be filled by the promotees along and thereafter in the ratio 1: 1.
From these rules it is evident that the Society was conscious of the claims of the promotees and hence safeguards their interests by providing 100% posts for them between 29.8.1973 and 31.12.1975.
By doing so, justice was done to them in a great measure.
[1072 C E; G H; 1073]


judgement:
N: Criminal Appeal Nos.
107 108 of 1985 From the Judgment and Order dated 20.12.1984 of the Rajasthan High Court in D.B. Civil Habeas Corpus Petition Nos. 1489 and 1575 of 1984.
87 N.L. Jain, Advocate General and Badri Das Sharma for the Appellants.
Ram Jethmalani and Miss Rani Jethmalani for the Respondent.
M.R. Sharma, Dalveer Bhandari and R.N. Poddar for the Intervener, Union of India.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The respondent, an Advocate, was ordered to be detained by the Government of Rajasthan under section 3(2) of the (hereinafter referred to as the Act), on August 14, 1984, and he was actually taken into custody and detained on the following day.
The grounds of detention were supplied to him when he was detained.
Respondent challenged his detention before the Rajasthan High Court by filing two applications under Article 226 of the Constitution on several grounds.
Both the writ applications were clubbed and heard together and disposed of by a common judgment.
The High Court found that the representation of the detenu respondent had not been placed before the Advisory Board within three weeks as required by section 10 of the Act and such violation vitiated the continued detention of the respondent.
It also found that the Advisory Board had not considered the documentary evidence produced by the detenu and the opinion formed by the Board that the respondent should be detained was, therefore, not an appropriate one.
The Court took the view that the materials in the record which had been considered by the Advisory Board in formulating its recommendation to the State Government had not been transmitted to the Government and the same was not available before the State Government when it made the order of confirmation.
The Court was also of the further view that the contents of the intelligence reports referred to in the grounds of detention had not been supplied to the detenu and he had, therefore, been deprived of the opportunity of making an effective representation against his detention.
On these findings the High Court held that the detention of the respondent cannot be upheld and the order of detention dated August 14, 1984, and the subsequent order dated October 22, 1984, directing him to be detained for one year be quashed.
The Court further directed: "In the interest of justice and in the interest of National Security, without curtailing seriously individual liberty, we give the following directions: 88 (1) that the detenu Shamsher Singh being entitled to liberty on account of the above order of ours will be released from the Central Jail, Ajmer; (2) that the detenu Shamsher Singh would be none theless kept either under house arrest or in a place like Dak Bungalow or Circuit House at Ajmer or a nearby place within the radius of 50 kms.
with the members of his family, which would consist of his wife and three minor sons; (3) that if the detenu is kept under house arrest, the expenses will be borne by the detenu, but if he is kept in some Dak Bangalow or other Circuit House, then his expenses will be borne by the State; (4) that the authorities would permit interview with other relatives also, if the detenu is kept outside his house.
In case no stay order is received staying the operation of the judgment of this Court, the detenu shall be released on expiry of three weeks, i.e. on 11.1.85.
" This Court granted special leave to appeal against the judgment of the High Court by its order dated January 18, 1985.
In the mean time, the High Court had suspended the operation of its order till January 21, 1985, and while granting special leave, this Court stayed operation of the judgment.
Learned Advocate General of the appellant State appearing in support of the appeal maintained that each of the four grounds accepted by the High Court in quashing the detention is wrong and not sustainable as a ground for such quashing while Mr. Jethmalani appearing for the respondent supported the reasonings and the ultimate conclusion of the High Court.
We have already stated that the High Court formulated the reasons for its order in the shape of four conclusions and we propose to deal with them seriatim for convenience.
The first ground of attack advanced by the respondent against the order which impressed the High Court is that there has been 89 violation in complying with the provisions of section 10 of the Act.
Indisputably the respondent was taken into custody on August 15, 1984.
On August 22, 1984, the State Government placed before the Advisory Board the grounds on which the order of detention had been made.
By then no representation had been made by the detenu and, therefore, there was no occasion for causing that also to be placed before the Board.
The respondent made a representation on August 28, 1984, which was received by the Superintendent of the Central Jail where the detenu had been lodged and the same was received by the State Government on August 30, 1984.
There is no dispute that the representation was placed before the Advisory Board on September 6, 1984.
As far as relevant, section 10 of the Act provides: ". in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order . " It is the contention of the respondent that his representation against the detention has been placed before the Advisory Board a day too late inasmuch as while section 10 requires the placing to be done within three weeks from the date of detention, the representation has been placed before the Advisory Board on the 22nd day.
There was no dispute before the High Court nor is there any challenge before us that there has been a day 's delay in placing the representation of the respondent before the Board.
The High Court has accepted the respondent 's submission that the requirement under section 10 of the Act was mandatory and failure to place before the Advisory Board the representation of the respondent has vitiated the detention.
While Mr. Jethmalani appearing for the respondent reiterates that stand, learned Advocate General in support of the appeal has contended that as a fact there has been compliance of section 10 of the Act within a week of commencement of the detention and as by than no representation from the respondent had been received, the same could not be placed before the Board along with the grounds of detention.
The State Government received the representation on the 30th August, 1984, and after looking 90 into the contents, caused it to be placed before the Board with due haste and that was done on September 6, 1984.
On the basis of the reference made on the 22nd August, 1984, the Advisory Board had already fixed the consideration of the respondent 's detention at the meeting on September 10, 1984, and as a fact, four days before the date of hearing fixed by the Board the representation was before it.
As a fact, no adjournment had to be given in the matter of consideration of the representation of the respondent on account of a day 's delay in the placing of the representation before the Board.
Learned Advocate General further submitted that when a representation from the detenu is received against his detention by the detaining authority (here the State Government), the contents of the representation are intended to be perused so that the detaining authority may consider whether continuing the detention is proper and expedient.
At that stage it is open to the detaining authority to rescind the order of detention and in that event no further reference to the Advisory Board is warranted.
Since the detaining authority is not a mere post office being required to receive the representation and have it placed before the Advisory Board a little time is bound to be taken in dealing with the representation.
Taking a practical view of the situation some time is bound to lapse between the receipt of the representation and the forwarding of the same for being placed before the Board.
A day 's delay in such process cannot indeed be taken to be fatal so as to warrant the quashing of the detention.
A Constitution Bench in A. K. Roy etc.
vs Union of India Anr.,(1) has upheld the vires of the Act.
It was pointed out in Ichhu Devi Choraria vs Union of India & Ors.(2) that "the burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law.
This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the Court that it has acted in accordance with the law.
This is an area where the Court has been most strict and scrupulous in ensuring observance with the 91 requirements of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred.
" This Court in Khudi Ram Das vs State of West Bengal & Ors., (1) said: "The constitutional imperatives enacted in this article (22) are two fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention.
These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security.
" The view indicate in these decisions is well accepted and the same is not open to doubt or dispute.
We have already pointed out that within a week of detention of the respondent a reference to the Advisory Board had actually been made in this case but without the respondent 's representation as the same had not been made by then.
Section 10 stipulates that the grounds on which the order has been made and also the representation of the detenu, if any, have to be placed before the Board when the reference is made.
The legislative scheme contained in this section envisages the situation that there may be a case where no representation at all is made or within the time contemplated under section 10, the representation has not been forthcoming.
We agree with the submission of Mr. Jethmalani that the obligation cast under section 10 of the Act is paramount and the strictness with which such a mandate has to be complied with is absolute.
While making of the reference under section 10 with the grounds of detention is a must, furnishing of the representation is conditional upon it having been made and receipt thereof by the appropriate Government.
Though 92 under the general scheme of the Act definite and different periods have been prescribed for compliance with the step to step treatment of the matter, there is no obligation cast on the detenu to make a representation within any definite time.
We are, therefore, prepared to accept the submission of the learned Advocate General that while considering the compliance with section 10 of the Act emphasis has to be laid on making of the reference and forwarding of the grounds of detention, and the placing of the representation has to be judged on different basis.
We may not be understood to be of the view that it is open to the appropriate Government to withhold the placement of the representation unduly or indefinitely.
When the reference is received and the grounds of detention are available, the Board proceeds to fix a date of hearing for consideration of the justification of detention.
The procedure of the Advisory Board contained in section 11 of the Act indicates that the Board is to consider the materials placed before it and is entitled to call for such information as it may deem necessary from the appropriate Government or from any other person concerned and after hearing the detenu, if he wants to be heard in person, has to report to the appropriate Government within seven weeks from the date of detention in the manner indicatad in the remaining sub sections of that section.
While dealing with this aspect of the matter it is to be borne in mind that section 10 requires the reference to be placed before the Board within three weeks and section 11 requires the report to be submitted to the appropriate Government within seven weeks.
The legislative scheme in fixing the limit of three weeks in section 10 and the further limit of seven weeks in section 11 allows at least four weeks ' time to the Board to deal with the matter.
The Board on receipt of the reference on August 22, 1984, directed its sitting to be convened for September 10, 1984, for considering the justifiability of the respondent 's detention.
This had apparently been done on the basis of the reference from the appropriate Government but without the representation but the representation was received by the Board in the mean time on September 6, 1984.
The first meeting of the Advisory Board was thus fixed within four weeks from the date of detention and the consideration of the matter by the Board was not required to be adjourned on account of any delay in receiving the copy of the representation of the detenu.
We agree with the submission of Mr. Jethmalani that it is obligatory for the appropriate Government to forward the representation, when received, to the Board without delay because unless on 93 the basis of the representation the appropriate Government rescinds the order of detention, the representation is a document intended for the Board.
Where the representation has been received the same should, as expeditiously as possible, reach the Board.
In this case the State Government received the representation on August 30, 1984, and placed the same before the Board on September 6, 1984.
Six clear days have intervened between the receipt of the representation by Government and the placing thereof before the Board.
Admittedly, if the representation had reached the Board by September 5, 1984, respondent would not be entitled to raise any objection.
Can it, on the facts of the case and in the circumstances indicated, be said to be non compliance with section 10 of the Act? Mr. Jethmalani placed before us a passage from Broom 's Legal Maxims (p. 162), 10th Edn., where the doctrine of impossibility of performance (lex non cogit ad imporsibilia) has been discussed.
It has been indicated therein that however mandatory the provision may be, where it is impossible of compliance that would be a sufficient excuse for non compliance, particularly when it is a question of the time factor.
Keeping the attendant circumstances of this case in view, we find it difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in non compliance of section 10 of the Act so as to vitiate the detention.
It is useful to refer to a paragraph from a judgment of this Court in Frances Corolie Mullin vs W. C. Khambra & Ors,(1) while we are on this point.
A Division Bench was dealing with a COFEPOSA detention.
Section 8 of the COFEPOSA requires the appropriate Government to make a reference to the Board within five weeks from the date of detention.
While dealing with an argument referring to this aspect of the matter, the Court observed: "The four principles enunciated by the Court in Jayanarayan Sukul vs State of West Bengal ; , as well as other principles enunciated in other cases, an analysis will show, are aimed at shielding personal freedom against indifference, insensibility, routine and red tape and thus to secure to the detenu the right to make an effective representation.
We agree: (1) the detaining authority must provide the detenu a very early opportunity to make a representation, (2) the detaining 94 authority must consider the representation as soon as possible, and this, preferably must be before the representation is forwarded to the Advisory Board, (3) the representation must be forwarded to the Advisory Board before the Board makes its report, and (4) the consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage.
We, however, hasten to add that the time imperative can never be absolute or obsessive.
The Court 's observations are not to be so understood.
There has to be lee way, depending on the necessities (we refrain from using the word 'circumstances ') of the case.
One may well imagine, a case where a detenu does not make a representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before then but may merely forward it to the Board without himself considering it.
Several such situations may arise compelling departure from the time imperative.
But no allowance can be made for lethargic indifference.
No allowance can be made for needless procrastination.
But allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved.
" It is useful at this stage also to refer to a later decision of another Division Bench of this Court in Raisuddin alias Babu Tamchi vs State of Uttar Pradesh & Anr.(1) That was a case of detention under the Act and there was a delay of six days between the receipt by the District Magistrate (the detaining authority) of the comments from the Superintendent of Police on the representation and despatch of the representation to the State Government.
While negativing the contention founded on delay and the resultant effect on the order of detention, this Court observed: "In this context we consider it necessary to emphasise that the question whether the representation 95 submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case; if on such examination it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu; on the other hand, if the Court is satisfied that the delay was occasioned not by any lack of diligence or promptness of attention on the part of the party concerned, but due to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention. " We agree with the principle indicated above and in our opinion, in the facts of the present case, it cannot be said that there has been any negligence or remissness on the part of the State Government in dealing with the representation of the detenu or in the matter of causing the same to be placed before the Advisory Board.
We are impressed by the fact that no prejudice has been caused to the detenu on account of the delay of a day beyond the statutory period in placing the representation before the Advisory Board inasmuch as the Advisory Board had caused the matter to be heard on the 10th September 1984 and before the appointed date the representation was before the Board.
The first ground on which the High Court came to hold that the detention was invalid has, therefore, to be negatived.
The next contention advanced on behalf of the respondent which has been accepted by the High Court in support of its conclusion against the detention is that the Advisory Board did not consider the documentary evidence produced by the detenu.
Under section 11 (2) of the Act the report of the Advisory Board has to specify in a separate part thereof the opinion of the Board as to whether or not there is sufficient cause for the detention of the person concerned and as sub section
(4) provides, the proceedings of the Board and its report, except that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.
In view of the 96 specific plea raised by the detenu and the argument advanced before the High Court that the Board had not considered the documentary evidence, the State Government placed the report before the High Court and the same has been also placed before us as a part of the record.
On a reference to the report we find that the Advisory Board in the instant case was constituted by three Judges of the High Court, one of them being the Chairman.
That would justify our assumption that the members of the Board by their professional ability and acumen were capable to assess the matter in a proper way and form an objective opinion on the basis of materials produced.
The detailed conclusion with reasons given by the Board has also been disclosed.
That shows that the detenu made before the Board very lengthy arguments and cited a number of authorities in support of his submissions.
The detenu in the instant case is a practising advocate and we are impressed by the learned Advocate General 's submission that we could assume that such a practising advocate must have very properly placed his points before the Board.
The Board is not required to write out a judgment wherein one would expect mention of the respective pleas, materials produced by the parties, specification of contentions advanced and reasons for the conclusion as may have been drawn.
What is required is the unbiased and impartial conclusion on the materials available with reference to the grounds of detention as to whether the detention order when made and the continued detention of the person concerned are justified.
The High Court, in our view, had no justification to accept the submission of the detenu that the documentary evidence produced by the detenu had not been considered by the Board.
The second ground accepted by the High Court has, therefore, to be repelled as not sustainable.
We proceed to examine the next ground, viz., that all the records had not been sent to the State Government by the Board and, therefore, such records were not available for consideration of the State Government at the time of confirmation of the detention.
There is no dispute that the Board had not sent the entire record to the State Government.
Under section 11(2) of the Act, the Board is required to submit its report and there is no obligation cast by the Act that the entire record of the Board should be placed before the State Government.
It is, however, not disputed by learned Advocate General that the report of the Board is only a recommendation and 97 the ultimate decision on the basis of the report as to what further action has to be taken is for the State Government to make.
Section 12 in its two sub sections indicates two alternative courses open to the State Government on the basis of the report.
If the Board is of the view that there is no sufficient cause for detention of the person, the appropriate Government is obliged to revoke the detention and release the detenu.
On the other hand, where the Board is of the view that there is sufficient cause for the detention of the person, the appropriate Government may confirm the detention order and continue the detention.
The two provisions have been expressed in different languages.
Where the report is against the detention no option is left to the State Government and a duty is cast on it to release the detenu.
When the Board recommends that there is sufficient cause for detention, the State Government may confirm the detention or even revoke it.
Since the final order has to be made by the State Government, we are inclined to accept the submission of Mr. Jethmalani that the entire record or at least all relevant materials should be available to the State Government when it proceeds to apply its mind to decide whether the detention should be continued or revoked.
This view is in accord with produce and is also judicially supported by a decision of this Court.
In Nand Lal Bajaj vs The State of Punjab & Anr.(1), this Court observed: "We were informed that the Advisory Board did not forward the record of its proceedings to the State Government.
If that be so, then the procedure adopted was not in consonance with the procedure established by law.
The State Government while confirming the detention order under section 12 of the Act has not only to peruse the report of the Advisory Board; but also to apply its mind to the material on record.
If the record itself was not before the State Government, it follows that the order passed by the State Government under section 12 of the Act was without due application of mind.
This is a serious infirmity in the case which makes the continued detention of the detenu illegal.
" We have already indicated that the procedure established by law does not require the entire record to be sent by the Board to the State Government; yet it is certainly proper that the record should 98 be available for being looked into in such manner as the confirming authority considers appropriate before the final decision one way or the other is taken.
The grounds of detention were available with the State Government.
Materials referred to in the grounds of detention were also available in the file.
The only materials which the State Government did not have before it are the documents which the detenu claims to have produced before the Board.
With a view to forming a prima facie impression that there was any material document which would have a bearing on the question at issue, we sent for the record and the same has been produced before us.
On looking into the documents produced by the detenu before the Board, we have come to the conclusion that this did not contain any material which could persuade the State Government to act in a different way.
We are cognizant of the position that it is for the State Government and not for this Court to act as the confirming authority and non compliance with the procedure laid down by law makes the order of detention liable to be quashed.
But we have also already said that non placing of the record of the Board before the appropriate Government is not a failure of compliance with the prescribed procedure.
It is, therefore, that we looked at the record to find out if it can be said to be a defect having material bearing on the question and a matter of prejudice so far as the detenu is concerned.
We reiterate by agreeing with the view of our learned Brother Sen, J. expressed in Nand Lal Bajaj 's case (supra) that the appropriate Government should have the entire material before it along with the report of the Board when it is called upon to consider whether to confirm or not to confirm the detention on the basis of the report of the Board under section 12(1) of the Act.
The Board should therefore, forward the record containing the papers placed before it at the hearing of the matter along with its report so that the matter can be attended by the State Government with due despatch and on taking a full view of the matter.
Our conclusion with reference to the third ground, therefore, is that the High Court was not right in the facts of the case to hold that the order of confirmation of detention was bad.
The respondent contended and the High Court accepted the submission that not providing copies of intelligence reports to the detenu, though the same had been relied upon in the grounds of detention, vitiated the order of detention.
The grounds of detention were divided into two groups, one labelled as criminal activities and the other as extremist activities.
Against extremist activities it was 99 further indicated, ' on the basis of confidential reports '.
The facts by way of accusations were detailed but copies of the reports as such were not furnished.
It is the settled position in law and learned Advocate General did not attempt to contend to the contrary that the detenu has to be supplied all materials relied upon in making the order of detention with a view to being provided an adequate opportunity of making an effective representation.
Personal freedom is an invaluable treasure and the founding fathers took great care to protect it by making appropriate provisions in the Constitution.
Simultaneously taking into consideration the peculiar situations prevailing in the country, the right of the State to order preventive detention was also provided therein.
In order that personal freedom may not be curtailed beyond necessity and the executive administration may not make it an empty guarantee, detailed provisions were made in Article 22 providing an effective procedure in the matter of making of representation and scrutiny of the materials in the presence of the detenu and even hearing him, if he so desired, by an independent Board with adequate judicial bias.
While that is so, the detenu is not entitled to a disclosure of the confidential source of information used in the grounds or utilised for the making of the order.
What is necessary for the making of an effective representation is the disclosure of the material and not the source thereof.
By indicating that the facts have been gathered from confidential reports, a suggestive disclosure of the source has also been made.
The Constitution Bench in the case of State of Punjab & Ors.
vs Jagdev Singh Talwandi,(1) dealt with this aspect of the matter.
The learned Chief Justice, speaking for the Court, observed: "It was further argued by the learned counsel that the detaining authority should have disclosed the evidence on the basis of which the order of detention was passed because, in the absence of knowledge of such evidence, the respondent could not have made an effective representation against the order of detention.
There is no substance in this contention.
It is not the law that the evidence gathered by the detaining authority against the detenu must also be furnished to him".
Reference was made to Beni Madhob Shaw vs State of West Bengal(2) Har Jas Dev Singh vs State of Punjab(3), and Vakil Singh vs 100 State of J & K.(1), and the learned Chief Justice proceeded to state: "These cases show that the detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him as, for example, the evidence corroborating that the report of the C.I.D. is true and correct.
His right is to receive every material particular without which a full and effective representation cannot be made.
If the order of detention refers to or relies upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu as held by this Court in Ichhu Devi Choraria (supra).
" In view of what has been said by the Constitution Bench, there was no force in the submission of the respondent that there has been an infraction of the law in not supplying the respondent copies of the reports or disclosing the source thereof.
The respondent had actually been given in the grounds all material details necessary for making an effective representation.
The fourth ground accepted by the High Court in support of its order is also not tenable in law.
As all the grounds accepted by the High Court for its conclusion are not sustainable for reasons discussed above, the order of the High Court quashing the detention is not supportable.
The appeal is allowed and the order of the High Court is set aside.
In course of the hearing, Mr. Jethmalani had drawn our attention to the fact that many detenus like the respondent have been and are being released, and the respondent who has already under gone more than two thirds of the period should be released.
That is a matter entirely for the detaining authority to decide and we hope and trust that notwithstanding the reversal of the decision of the High Court, the State Government will proceed to review the matter expeditiously and make such appropriate directions as it consider fit.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The respondent, an Advocate, was ordered to be detained by the State Government under Section 3(2) of the National Security Act, 1950.
He was taken into custody and detained.
The grounds of detention were supplied to him when he was detained.
The respondent challenged his detention in the High Court.
The High Court found: (1) that the representation of the detenu respondent had not been placed before the Advisory Board within three weeks as required by section 10 of the Act and such violation vitiated the continued detention of the respondent.
(2) that the Advisory Board had not considered the documentary evidence produced by the detenu and therefore the opinion formed by the Board that the respondent should be detained was not an appropriate one, (3) that the materials in the record which had been considered by the Advisory Board in formulating its recommendation to the State Government had not been transmitted to the Government, and the same was not available before the State Government, when it made the order of confirmation, (4) that the contents of the intelligence reports referred to in the grounds of detention had not been supplied to the detenu and he had, therefore, been deprived of the opportunity of making an effective representation against his detention.
The High Court consequently held that the detention of the respondent cannot be upheld, and directed the order of detention directing him to be detained for one year be quashed.
In the appeal to this Court, it was contended on behalf of the State appellant, that the four grounds accepted by the High Court in quashing the detention was wrong and not sustainable as a ground for such quashing.
It was further contended that as a fact there had been compliance of section 10 of the Act within a week of commencement of the detention and as by then no representation from the respondent had been received, the same could not be placed before the Board along with the grounds of detention.
The respondent is a practising advocate and must have therefore properly placed his points 84 before the Advisory Board.
As the Board had not been sent the entire records, all the records were not available for the consideration of the State Government at the time of confirmation of the detention.
The respondent had actually been given in the grounds all the material details necessary for making an effective representation.
Allowing the Appeal, ^ HELD : 1(a) While making of the reference under section 10 with the grounds of detention is a must, furnishing of the representation is conditional upon it having been made and receipt thereof by the appropriate Government.
Though under the general scheme of the Act definite and different periods have been prescribed for compliance with the step to step treatment of the matter, there is no obligation cast on the detenu to make a representation within any definite time.
[91 H; 92 A] (b) The procedure of the Advisory Board contained in section 11 of the Act indicates that the Board is to consider the materials placed before it and is entitled to call for such information as it may deem necessary from the appropriate Government or from any other person concerned and after hearing the detenu, if he wants to be heard in person, has to report to the appropriate Government within seven weeks from the date of detention.
[92 D E] (c) The legislative scheme in fixing the limit of three weeks in section 10 and the further limit of seven weeks in section 11, allows at least four weeks ' time to the Board to deal with the matter.
[92 E] (d) It is obligatory for the appropriate Government to forward the representation, when received, to the Board without delay because unless on the basis of the representation the appropriate Government rescinds the order of detention, the representation is a document intended for the Board.
Where the representation has been received the same should, as expeditiously as possible, reach the Board.
[92 H; 93 A] In the instant case the Board on receipt of the reference on August 22, 1984, directed its sitting to be convened for September 10,1984 for considering the justifiability of the respondents detention.
The State Government received the representation on August 30,1984, and placed the same before the Board on September 6,1984.
Six clear days had intervened between the receipt of the representation by Government and the placing thereof before the Board.
Admittedly, if the representation had reached the Board by September 5, 1984, the respondent would not be entitled to raise any objection.
Keeping the attendant circumstances in view, it is difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in non compliance of section 10 of the Act so as to vitiate the detention.
It cannot also be said that there has been any negligence or remissness on the part of the State Government in dealing with the representation of the detenu or in the matter of causing the same to be placed before the Advisory Board.
No prejudice has been caused to the detenu on account of the delay of a day 85 beyond the statutory period in placing the representation before the Advisory Board inasmuch as the Advisory Board had caused the matter to be heard on the 10th September, 1984 and before the appointed date the representation was before the Board.
B; D; 95 D E] A.K. Roy, etc.
vs Union of Indian & Anr.
, ; ; Ichhu Devi Choraria vs Union of India & Ors., ; ; Khudi Ram Das vs State of West Bengai & Ors.,[1975] 2 S.C.R. 832; Frances Coralie Mullin vs W.C. Khambra & Ors.,[1980] 2 S.C.R. 1095 and Raisuddin alias Babu Tamchi vs State of Uttar Pradesh & Anr., ; ; referred to. 2(a) Under section 11(2) of the Act the report of the Advisory Board has to specify in a separate part thereof the opinion of the Board as to whether or not there is sufficient cause for the detention of the person concerned and sub section
(4) provides, the proceedings of the Board and its report, except that part of the report in which the opinion of the Advisory Board is specified shall be confidential.
[95 G H] (b) The Board is not required to write out a judgment.
What is the unbiased and impartial conclusion on the materials available with reference to the grounds of detention as to whether the detention order when made and the continued detention of the person concerned are justified.
[96 E] In the instant case, the Advisory Board was constituted by three Judges of the High Court, one of them being the Chairman.
That justifies the assumption that the members of the Board by their professional ability and acumen were capable to assess the matter in a proper way and form an objective opinion on the basis of materials produced.
The detailed conclusions with reasons given by the Board show that the detenu made before the Board very lengthy arguments and cited a number of authorities in support of his submissions.
The High Court had therefore no justification to accept the submission of the detenu that the documentary evidence produced by the detenu had not been considered by the Board.
[96 B C; 96 F] 3.
(a) Under section 11(2) of the Act, the Board is required to submit its report and there is no obligation cast by the Act that the entire record of Board should be placed before the State Government.
Section 12 in its two subsections indicates two alternative courses open to the State Government on the basis of the report.
If the Board is of the view that there is no sufficient cause for detention of the person, the appropriate Government is obliged to revoke the detention and release the detenu.
On the other hand, where the Board is of the view that there is sufficient cause for the detention of the person, the appropriate Government may confirm the detention order and continue the detention.
The two provisions have been expressed in different language.
[96 G H; 97 A B] Nand Lal Bajaj vs State of Punjab & Anr.
1981 Cr. L.J. 1501, referred to.
86 (b) The procedure established by law does not require the entire record to be sent by the Board to the State Government; yet it is certainly proper that the record should be available for being looked into in such manner as the confirming authority considers appropriate before the final decision one way or the other is taken.
The grounds of detention were divided into two groups, one labelled as criminal activities and the other as extremist activities.
[97 H; 98 A] In the instant case, the documents produced by the detenu before the Board did not contain any material which could persuade the State Government to act in a different way.
The High Court was therefore not right to hold that the order of confirmation of detention was bad.
[98 F G] 4.
(a) Personal freedom is an invaluable treasure and the founding fathers took great care to protect it by making appropriate provisions in the Constitution.
Simultaneously taking into consideration the peculiar situations prevailing in the country, the right of the State to order preventive detention was also provided therein.
In order that personal freedom may not be curtailed beyond necessity and the executive administration may not make it an empty guarantee, detailed provisions were made in Article 22 providing an effective procedure in the matter of making of representation and scrutiny of the materials in the presence of the detenu and even hearing him, if he so desired, by an independent Board with adequate judicial bias.
[99 B C] (b) The detenu is not entitled to a disclosure of the confidential source of information used in the grounds or utilised for the making of the order What is necessary for the making of an effective representation is the disclosure of the material and not the source thereof By indicating that the facts have been gathered from confidential reports, a suggestive disclosure of the source has also been made.
[99 D E] State of Punjab & Ors. vs Jagdev Singh Talwandi, ; ; Beni Madhob Shaw vs State of West Bengal, AIR 1973 SC 2455; Har Jas Dev Singh vs State of Punjab, ; and Vakil Singh vs State of J & K, AIR 1974 SC 2337, referred to.
In the instant case, the grounds of detention were divided into two groups, one labelled as criminal activities and the other as extremist activities.
Against extremist activities it was further indicated, 'on the basis of confidential reports '.
The facts by way of accusations were detailed, but copies of the reports as such were not furnished.
The respondent had actually been given in the grounds all material details necessary for making an effective representation.
[98 H; 99 A]