judgement:
Appeal Nos.
266 267 of 1993.
From the Judgment and Order dated 8.2.91 & 22.3.91 of the Central Administrative Tribunal Principal Bench, New Delhi in O.A. No. 2540/89 & M.P. No. 219 of 1991.
K.T.S. Tulsi, Additional Solicitor General B. Parthasarthy, P. Parmeshwaran and C.V.S. Rao for the Appellants.
Indu Malhotra for the Respondent.
The Judgment of the Court was delivered by MOHAN, J.
Leave granted.
The respondent, while working as Income Tax Officer, Muktsar during the year 1982 83 completed certain assessments.
A charge memorandum dated 2.5.1989 was served on him to the effect it was proposed to hold an inquiry against him under Rule 14 of the Central Civil Services (Classification, Central & Appeal) Rules, 1965.
A statement of article of charge framed against him was to the following effect : STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST, SHRI K.K. DHAWAN, A GROUP 'A ' NOW POSTED AS ASSISTANT COMMISSIONER OF INCOME TAX, BOMBAY.
Article I Shri K.K. Dhawan while functioning as I.T.O. "A" 300 Ward, Muktsar during 1982 1983 completed nine assessments in the case of : (1) M/s Chananna Automobiles, (2) N/s Gupta Cotton Industries, (3) M/s Ajay Cotton Industries, (4) M/s National Rice Mills, (5) M/s Tek Chand Buchram, (6) M/s Tilak Cotton Industries, (7) M/s Chandi Ram Behari Lal, (8) M/s Phuman Mal Chandi Ram and (9) M/s Modern Tractors in an irregular manner, in undue haste and apparently with a view to conferring undue favour upon the assessees concemed By his above acts Shri Dhawan failed to maintain absolute integrity and devotion to duty and exhibited a conduct unbecoming of a Govt.
servant, thereby violating provisions of Rules 3(1) (i), 3(1) (ii) and 3(1) (iii) of the CCS (Conduct) Rules, 1964.
This was accompanied by a statement of imputation of his misconduct or misbehaviour in support of the article of charge framed against him.
In each of the nine cases of the assesses above referred to, the details relating to misconduct or misbehaviour were furnished.
Therefore, it was charged that the respondent had violated the provisions of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964.
The necessary documents in support of these allegations were also enclosed.
Against the said memorandum dt.
2.5.1989, the respondent preferred an application O.A. No. 2540/89 before the Central Administrative Tribunal, New Delhi praying for a stay of the disciplinary proceedings and to consider his case for promotion on merits without resort to the sealed cover procedure.
301 By its order dt.
8.2.1991, Central Administrative Tribunal, Principal Bench, New Delhi directed the respondent Union of India to open the sealed cover immediately and implement the recommendations of the Departmental Promotion Committee in so far as it pertained to the petitioner and to promote him to the post of Deputy Commissioner of Income Tax if he was found fit for promotion within two weeks from the date of said order.
Thereafter, by a detailed judgment dated 22.3.1991, the Tribunal relying on S.L.P. (C) Nos.
2635 36/89 in Civil Appeal No. 4986 87/90, held that the action taken by the officer was quasi judicial and should not have formed the basis of disciplinary action.
Therefore, the application was allowed and the impugned memorandum dated 2.5.1989 was quashed.
The earlier order dated 8.2.1991 to open the sealed cover and implement the recommendations of Departmental Promotion Committee was made absolute.
Aggrieved by these two orders, the present special leave petitions have been preferred.
The teamed counsel for the appellant Shri K.T.S. Tulsi submits as under: (i) That in a case where disciplinary proceedings are pending against the respondent, the procedure of opening the sealed cover should not have been resorted to.
Otherwise, it would amount to putting a premium on misconduct.
(ii)The Tribunal failed to appreciate the ratio of the order in C.A. Nos.
4986 87/90.
In that case, the enquiry report showed that the charge framed against the officer had not been proved.
That is entirely different from holding that in a case of quasi judicial action taken by the Officer no disciplinary action could be taken.
The true purport of that observation is only to buttress the earlier finding that the charge had not been proved.
Therefore, reliance ought not to have been placed on this ruling which turned on the peculiar facts and circumstances of that case.
302 (iii)Though nine cases were cited in the charge memorandum, only one of the cases had been discussed.
(iv)Lastly, it is submitted that the respondent is charged for violation of Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964.
Therefore, if the conduct of the respondent could be brought within the scope of the Rules, immunity from the disciplinary action cannot be claimed.
In support of these submissions, reliance is placed on Union of India & Ors.
vs A.N. Saxena, ; In Civil Appeal No. 560 of 1991, the peculiar facts art different; in disregard to the instructions of the Central Board of Direct Taxes, refund of taxes was ordered.
Further, there was no allegation of corrupt motive or to oblige any person on account of extraneous considerations.
Therefore, that ruling is distinguishable.
The respondent would try to support the impugned order contending that the opening of the sealed cover was correctly ordered because on the date when the Departmental Promotion Committee met in March 1989, no charge sheet had been served on the respondent.
The charge memorandum dated 2.5.1989 came up to be served only on 5.5.1989.
Therefore, following the earlier procedure such a direction was given.
This is a case in which the respondent was exercising quasi judicial functions.
If the orders were wrong the remedy by way of an appeal or revision could have been resorted to.
Otherwise, if in every case of wrong order, disciplinary action is resorted to, it would jeopardize the exercise of judicial functions.
The immunity attached to the officer while exercising quasi judicial powers will be lost.
Rightly, therefore, the Tribunal relied on Civil Appeal Nos.
4986 87/90 where this Court took the view that no disciplinary action can be taken in respect of exercising quasi judicial functions.
To the same effect in Civil Appeal No. 560/91 the decision relied on by the appellant namely Union of India & Ors., ; (supra) has no application to the instant case.
The charge memorandum dated 2.5.1989 states as follows 303 MEMORANDUM "The President proposes to hold an inquiry against Shri K.K. Dhawan under Rule 14 of the Central Civil Services (Classification, Central and Appeal) Rules, 1965.
The substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of article of charge.
" At this stage, we will refer to Rule 3(1)(i) , 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964 which are as under Rule 3 (1) : Every government servant shall at all time (i) maintain absolute integrity; (ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a government servant.
The substance of the charge is the completion of nine assessments in an irregular manner, hastily with a view to confer undue favour upon the various assessees.
By such act, the respondent failed to maintain absolute integrity and devotion to duty and exhibited a conduct unbecoming of government servant.
Certainly, it cannot be contended that concerning the violation of these rules, no disciplinary action could be taken.
However, what is urged is that in so far as the respondent was exercising quasi judicial functions, he could not be subject to disciplinary action.
The order may be wrong.
In such a case, the remedy will be to take up the matter further in appeal or revision.
The question, therefore, arises whether an authority enjoys immunity from disciplinary proceedings with respect to matters decided by him in exercise of quasi judicial functions? In Govinda Menon vs Union of India, ; , it was contended that no disciplinary proceedings could be taken against appellant for acts or omissions with regard to his work as Commissioner under Madras Hindu Religious and Charitable Endowments Act, 1951.
Since the 304 orders made by him were quasi judicial in character, they should be challenged only as provided for under the Act.
It was further contended that having regard to scope of Rule 4 of All India Services (Discipline and Appeal) Rules, 1955, the act or omission of the Commissioner was such that appellant was not subject to the administrative control of the Government and therefore, the disciplinary proceedings were void.
Rejecting this contention, it was held as under : "It is not disputed that the appropriate Government has power to take disciplinary proceedings against the appellant and that he could be removed from service by an order of the Central Government, but it was contended that I.A.S. Officers are governed by statutory rules, that ,any act or omission ' referred to in Rule 4(1) relates only to an act or omission of an officer when serving under the Government, and that 'serving under the Government ' means subject to the administrative control of the Government and that disciplinary proceedings should be, therefore, on the basis of the relationship of master and servant.
It was argued that in exercising statutory powers the Commissioner was not subject to the administrative control of the Government and disciplinary proceedings cannot, therefore, be instituted against the appellant in respect of an act or omission committed by him in the course of his employment as Commissioner.
We are unable to accept the proposition contended for by the appellant as correct.
Rule 4(1) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted.
Rule 4(1) (b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the Service would be the Government under whom such member was serving at the time of the commission of such act or omission.
It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant.
It is, therefore, open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast 305 a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the service.
It is not disputed that the appellant was, at the time of the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue.
In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject matter of disciplinary proceedings.
In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship.
To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government.
The test is whether the act or omission has some reasonable connection with nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant.
We are of the opinion that even if the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the service.
" In this context reference may be made to the following observations of Lopes, LJ.
in Pearce vs Foster, [1866] 17 OBD 536, p.542.
"If a servant conducts himself in a way inconsistent with the 306 faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal.
That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business.
It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant." (emphasis supplied) Concerning, the exercise of quasi judicial powers the contention urged was to the following effect : "We next proceed to examine the contention of the appellant that the Commissioner was exercising a quasi judicial function in sanctioning the leases under the Act and his order, therefore, could not be questioned except in accordance with the provisions of the Act.
The proposition put forward was that quasi judicial orders, unless vacated under the provisions of the Act, are final and binding and cannot be questioned by the executive Government through disciplinary proceedings.
It was argued that an appeal is provided under S.29(4) of the Act against the order of the Commissioner granting sanction to a lease and that it is open to any party aggrieved to file such an appeal and question the legality or correctness of the order of the Commissioner and that the Government also may in revision under S.99 of the Act examine the correctness or legality of the order.
it was said that so long as these methods were not adopted the Government could not institute disciplinary proceedings and reexamining the legality of the order of the Commissioner granting sanction to the leases.
" That was rejected as under: 'The charge is, therefore, one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of S.29 and the Rules thereunder in sanctioning the leases.
On behalf of the respondents it was argued 307 both by Mr. Sarjoo Prasad and Mr. Bindra that the Commissioner was not discharging quasi judicial functions in sanctioning leases under S.29 of the Act, but we shall proceed on the assumption that the Commissioner was performing quasi judicial functions in granting leases under S.29 of the Act.
Even upon that assumption we are satisfied that the Government was entitled to institute disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty.
It is true if the provisions of S.29 of the Act or the Rules are disregarded the order of the Commissioner is illegal and such an order could be questioned in appeal under S.29 (4) or in revision under S.99 of the Act.
But in the present proceedings what is sought to be challenged is not the correctness or the legality of the decision of the Commissioner but the conduct of the appellant in the discharge of his duties as Commissioner.
The appellant was proceeded against because in the discharge of his functions, he acted in utter disregard of the provisions of the Act and the Rules.
It is the manner in which he discharged his functions that is brought up in these proceedings.
In other words, the charge and the allegations are to the effect that in exercising his powers as Commissioner the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against.
It is manifest, therefore, that though the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the Commissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power.
We see no reason why the Government cannot do so for the purpose of showing that the Commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was 308 guilty of misconduct or gross negligence.
We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of the case.
" The above case, therefore, is an authority for the proposition that disciplinary proceedings could be initiated against the government servant even with regard to exercise of quasi judicial powers provided : (i) The act or omission is such as to reflect on the reputation of the government servant for his integrity or good faith or devotion to duty, or (ii)there is prima facie material manifesting recklessness or misconduct in the discharge of the official duty, or (iii)the officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power.
We may also usefully refer to two English decisions.
Thayre vs The London, Brighton and South Coast Railway Company, states: "Dishonesty ' included dishonesty outside the service of the company as well as dishonesty towards the company." In Thompson vs British Berna Motor Lorries Limited 33 T.L.R. 187 at page 188, it has been held as under : "It was the duty of the servant to render proper, full and clear accounts to his principals, and it was the duty of a servant to render prompt obedience to the lawful orders of his master.
in this case the plaintiff had failed in both respects.
There was no question as to the plaintiff 's honesty, but he had been negligent.
" The Tribunal has chosen to rely on Civil Appeal Nos.
4986 87/90.
The order in that case clearly shows the ultimate conclusion was that the charge framed against the delinquent officer had not been established.
In support of that conclusion, it was observed as under 309 "We are also of the view that the action taken by the appellant was quasi judicial and should not have formed the basis of disciplinary action.
" We do not think where to buttress the ultimate conclusion, this observation was made, that could ever be construed as laying the law that in no case disciplinary action could be taken if it pertains to exercise of quasi judicial powers.
Then, we come to Civil Appeal No. 560/91 to which one of us (Mohan, J.) was a party.
The ruling in this case turned on the peculiar facts.
Nevertheless, what we have to carefully notice is the observation as under : "On a reading of the charges and the allegations in detail learned Additional Solicitor General has fairly stated that they do not disclose any culpability nor is there any allegation of taking any bribe or to trying to favour any party in making the orders granting relief in respect of which misconduct is alleged against the respondent.
" The above extract will clearly indicate that if there was any culpability or any allegation of taking bribe or trying to favour any party in exercise of quasi judicial functions, then disciplinary action could be taken.
We find our conclusion is supported by a following observations found in the said order at page 3: "In our view, the allegations are merely to the effect that the refunds were granted to unauthorized instructions of the Central Board of Direct Taxes.
There is no allegation, however, either express or implied that these actions were taken by the respondent actuated by any corrupt motive or to oblige any person on account of extraneous considerations.
In these circumstances, merely because such orders of refunds were made, even assuming that they were erroneous or wrong, no disciplinary action could be taken as the respondent was discharging quasi judicial function.
If any erroneous order had been passed by him correct remedy is by way of an appeal or revision to have such orders set aside.
" 310 In the case on hand, article of charge clearly mentions that the nine assessments covered by the article of charge were completed (i) in an irregular manner, (ii) in undue haste, and (iii) apparently with a view to confer undue favour upon the assessees concerned.
(Emphasis supplied) Therefore, the allegation of conferring undue favour is very much there unlike Civil Appeal No. 560/91.
If that be so, certainly disciplinary action is warranted.
This Court had occasion to examine the position.
In Union of India & Ors.
vs A.N. Saxena; , to which one of us (Mohan, J.) was a party, it was held as under : "It was urged before us by learned counsel for the respondent that as the respondents was performing judicial or quasi judicial functions in making the assessment orders in question even if his actions were wrong they could be corrected in an appeal or in revision and no disciplinary proceedings could be taken regarding such actions.
In our view, an argument that no disciplinary action can be taken in regard to actions taken or purported to be done in the course of judicial or quasi judicial proceedings is not correct.
It is true that when an officer is performing judicial or quasi judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant.
The initiation of such proceedings, it is true, is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence.
Hence, the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi judicial functions in respect of his actions in the discharge or purported to discharge his functions.
But it is not as if such action cannot be taken at all.
Where the 311 actions of such an officer indicate culpability, namely a desire to oblige himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken.
" This dictum fully supports the stand of the appellant.
There is a great reason and justice for holding in such cases that the disciplinary action could be taken.
It is one of the cardinal principles of administration of justice that it must be free from bias of any kind.
Certainly, therefore, the officer who exercises judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge.
Accordingly, the contention of the respondent has to be rejected.
It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer.
The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act.
But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules.
Thus, we conclude that the disciplinary action can be taken in the following cases (i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; (ii)if there is prima facie material to show recklessness or misconduct in the discharge of his duty; (iii)if he has acted in a manner which is unbecoming of a government servant; (iv)if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers; (v) if he had acted in order to unduly favour a party , (vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great.
" 312 The instances above catalogued are not exhaustive.
However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted.
Here, we may utter a word of caution.
Each case will depend upon the facts and no absolute rule can be postulated.
In view of the foregoing discussion, the appeals will stand allowed.
There will be no order as to costs.
We make it clear that it is open to the respondent to put forth all defenses open to him in the departmental inquiry which will be considered on its merit.
V.P.R. Appeals allowed.

summary/full:
The respondent while working as Income Tax Officer completed certain assessments during the year 1982 83.
A charge memorandum, was served on him, proposing to hold an inquiry against him under Rule 14 of the Central Civil Services (Classification, Central Appeal) Rules, 1965.
A statement of article of charge was framed against the respondent.
The substance of the charge was the completion of nine assessments in an irregular manner, hastily with a view to confer undue favour upon the assessees, and by such act, he failed to maintain absolute integrity and devotion to duty and exhibited a conduct unbecoming of government servant.
The details relating to misconduct or misbehaviour of the respondent were furnished and he was charged for violating the provisions of Rules 3 (1) (i), 3 (1) (ii) and 3 (1) (iii) of the Central Civil Services (,Conduct) Rules, 1964.
In support of the allegations, he was also supplied with the necessary documents.
Against the memorandum, the respondent preferred an application before the Central Administrative Tribunal, praying for a stay of the disciplinary proceedings and to consider his case for promotion on merits without resort to the sealed cover procedure.
On 8.2.1991, the Tribunal directed the appellant Union of India to open the sealed cover and to implement the recommendations of the 297 Departmental Promotion Committee to promote the respondent to the post of Deputy Commissioner of Income Tax, if he was found fit for promotion within two weeks from the date of order.
Later on 223.1991, the Tribunal allowed the respondent 's application, holding that the action taken by the respondent officer was quasi judicial and should not have formed the basis of disciplinary action.
The Tribunal also made its earlier order dated 8.2.1991 absolute.
The Union of India preferred the present appeals by special leave against the orders of the Tribunal, contending that in a case where disciplinary proceedings were pending against the respondent, the procedure of opening the sealed cover should not have been resorted to.
Otherwise, it would amount to putting a premium on misconduct ; that the Tribunal failed to appreciate the ratio of the order in C.A. Nos.
4986 87/90; that as the respondent was charged for violation of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964; immunity from the disciplinary action could not be claimed.
The respondent contended that the opening of the sealed cover was correctly ordered because on the date when the Departmental Promotion Committee met in March 1989, no charge sheet was served on the respondent; that as the respondent was exercising quasi judicial functions, orders made by him if were wrong, the remedy by way of an appeal or revision could be resorted to; that if in every case of wrong order, disciplinary action was resorted to, it would jeopardize the exercise of judicial functions; and the immunity attached to the officer while exercising quasi judicial powers would be lost.
On the question, whether an authority enjoys immunity from disciplinary proceedings with respect to matters decided by him in exercise of quasi judicial functions; allowing the appeals, this Court, HELD : 1.01.
The disciplinary action can be taken in the following cases : (i) Where the Officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty ; (ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty; (iii) if he has acted in a manner which is unbecoming of a govern 298 ment servant; [311E F] (iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers; (v) if he had acted in order to unduly favour a party, (vi) if he had been actuated by corrupt motive however, small the bribe may be.
[311G H] The instances above catalogued are not exhaustive.
For a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted.
Each case will depend upon the facts and no absolute rule can be postulated.
[312A B] 1.02.
There is a great reason and justice for holding in such cases that the ' disciplinary action could be taken.
It is one of the cardinal principles of administration of justice that it must be free from bias of any kind.
[311B] 1.03.
The officer who exercises judicial or quasi judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a judge.
[311C] 1.04.
In the present case, this Court Is not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer.
The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act.
[311D] 1.05.
In the case on hand, article of charge clearly mentions that the nine assessments covered by the article of charge were completed (i) in an irregular manner, (ii) in undue haste, and (iii) apparently with a view to confer unduefavour upon the assessees concerned.
[310A B] Therefore, the allegation of conferring undue favour is very much 299 there and certainly disciplinary action is warranted.
[310C] Govinda Menon vs Union of India, ; ; Thayre vs The London, Brighton and South Coast Railway Company, and Thompson vs British Berna Motor Lorries Limited, at page 188, referred to.
Union of India & Ors.
vs A.N. Saxena, ; , explained.
SLP (C) Nos.
2635 36/89 in CA No. 4986 87/90, distinguished


judgement:
N: Criminal Appeal No. 715of 1981.
WITH Criminal Appeal No. 716 of 1981.
From the judgment and order dated 15.5.1981 of the Punjab and Haryana High Court in Criminal Appeal No. 419(DB) of 1980.
U.R. Lalit, A.N. Mulla, S.K. Sabharwal and O.K. Khullar for the Appellants.
I.S. Goyal for the Respondent.
The Judgment of the court was delivered by PUNCHHI, J.
These two appeals are directed against the judgment and order of May 15,1981 passed by a Division Bench of the Punjab and Haryana High Court in Criminal Appeal No. 419 DB of 1981.
589 The appellants are three in number .
They are Wazir Singh, his nephew Darbara Singh and share cropper(seeri)Dalip Singh.
These three, together with Mohin der Singh the brother of Wazir Singh ' and father of Darbara Singh, as also one Avtar Singh, Wazir Singh 's father in law 's brother, stood trial before the sessions Judge, Bhiwa ni for offences under sections 148, 302/149 and 323/149 I.P.C.for having caused the murder of Sadha Singh, paternal cousin of Wazir Singh and Mohinder Singh accused, as also to have caused simple hurts to Ranjit Singh, PW4 sister 's son of the deceased.
The learned Sessions Judge acquitted Avtar Singh taking the view that since the Investigating Officer could not recover the gun, the weapon of offence, from him in spite of interrogation, his name had been introduced by the prosecution in order to complete the alleged unlawful asembly,convenient and handy as it was because of relation ship with deceased.
Avtar Singh was attributed no part in the actual occurrence except exhortations.
The remaining four accused were convicted under sections 302/34 and 323/34 I.P.C. and were sentenced to life imprisonment and six months rigorous imprisonment respectively.
In appeal the High Court acquitted Mohinder Singh accused taking the view that though he was stated to have used his kirpan with force, the medical evidence did not corroborate this version because DR.
B.M. Kapur, PW 2, who performed the autopsy of the deceased, opined that the injuries which apparently were kirpan injuries could only be caused by the tip of the kirpan suggesting that much force had not been used.
The High Court then went on to agree with the opinion of Dr. Kapur to say that all the incised wounds on the deceased could have been caused by Kulhari exhibit
This Kulhari was suggested to have been used by Wazir Singh appellant towards commission of the crime.
On that premise the High Court let off Mohinder singh recording the opinion that his participa tion was doubtful.
For lack of coroboration of medical evidence the High Court also observed that it was quite probable that like Avtar Singh, acquitted co assused, Mohin der Singh accused too had been brought in as an accused.
As a result the three apellants remained convicted and sen tenced.
So they are here before us.
Criminal Appeal No.714 of 1981 was preferred by Ranjit Singh complainant against acquitted co accused Mohinder Singh but this appeal was dismissed by us on 8 4 1992 for non prosecution because learned counsel for that appellant stated that he had no instructions.
So Mohinder Singh re mained acquitted.
590 The occurrence took palce on November 10,1979 at 12.30 P.M. in the open fields of Village Kikral.
Deceased Sadha Singh was present in his fields taking out grass while deceased 's nephew Ranjit Singh P.W.4 was present ploughing the de ceased 's field.
close by in their own fields were Jagir Singh P.W.5 and Malkiat Singh P.W.6.
At that juncture Mohin der Singh acquitted co accused armed with a sword, Wazir Singh armed with a kulhari, Darbara Singh and Dalip Singh, armed with lathis each and Avtar Singh acquitted co accused armed with a gun came together towards the deceased and opened assault on him.
Wazir Singh apellant started and gave a kulhari blow on the head of the deceased whereas Mohinder Singh acquitted co accused gave injuries by kirpan.
Dalip Singh and Darbara Singh appellants inflicted lathi blows, Avtar Singh acquitted co accused raised exhortations.
When Ranjit Singh P.W. interfered he was given lathi blows by Dalip Singh and Darbara Singh, appellants.
Jagir Singh and Malkiat Singh P.Ws.
who saw the occurrence came running to the place and found Sadha Singh lying injured seriously.
Sadha Singh and Ranjit Singh victims were brought by Jagir Singh and Malkiat Singh P.Ws.
in injured condition to Rural Dispensary, Siwani which is at a distance of 5 kilometers from the place of occurrence.
Dr. Ram Krishan P.W.3 Incharge of the Dispensary, after examining and giving first aid to Sadha Singh advised him to be taken to Civil Hospital, Bhiwani as his condition was serious.
Ranjit Singh P.W. however was admited in the Rural Dispensary Siwani, Siwani police was informed about the arrival of both the them.
Sadha Singh was taken to Civil Hospital, Bhiwani, where he was found dead.
Dr. Gambhir P.W. 1 sent message to the police station informing the Bhiwani police about the arriv al of the dead body.
Sub Inspector Sadhu Sing P.W. 12 on the basis of message of Dr. Ram Kishan P.W. 3 went to Rural Dispensary, Siwani where he recorded the statement of Ranjit Singh P.W.4 at 4.15 p.m.
First Information Report on the basis of the said statement was recorded at the police station at 5.30p.m.
The special report reached the Magis trate at Bhiwani on 11 11 1979.
Now about the motive.
The grand father of sadha singh deceased had four sons, chanan Singh , Bishan Singh, Kishan Singh and Makhan Singh.
The eye witnesses Malkiat Singh and jagir Singh are the sons of Chanan Singh.
Sadha Singh de ceased was the son of Bishan Singh.
Mohinder Singh acquitted co accused and Wazir Singh appellant are sons of Kishan Singh.
Makhan Singh the fourth son was married to Harnam Kaur but had not made issue.
It appears that Makhan Singh on September 591 20,1975 executed an agreement to sell his lands in some proportions to the three families of his brothers, but Mohinder Singh acquitted co accused wanted to purchase all the land of Makhan Singh.
The agreement ultimately did not materialise.
Thereafter there is history of acrimony and illwill between the parties itching to obtain the land of Makhan Singh.
Besides Wazir Singh appellant got lodged FIR against Sadha Singh deceased in may, 1977 accusing him of an attack and of having stolen away his motor cycle.
such were the strained relations which provided the motive of the crime.
The post mortem of Sadha Singh deceased performed by Dr. B.M. Kapur P.W.2 revealed 13 injuries on his body.
the first one was an incised wound 2"x1/2" over the left side of the forehead, on dissection of which it was found to be a fracture of the frontal bone.
There was also extra dural haemotoma and fracture of the skull on the left side.
The other injuries were either incised wounds or blunt weapon injuries.
They were on non vital parts of the body.
There were, however, compound and diverse fractures of both bones of both the legs as well as that of both the arms.
The cause of death then opined by Dr. Kapur was, due to shock and haemorrhage on account of multiple injuries, which was sufficient to cause death in the ordinary course of nature.
At the trial however Dr. Kapur went on to add that injury No.1 could individully be sufficient in the ordinary course of nature to cause death.
He also opined that injuries other than injury NO.1 collectively were sufficient to cause death in the ordinary course of nature even if one were to exclude injury No.1.
Dr. Kapur further opined that all the incised wounds could be caused by kulhari P.1.
Dr. Ram Kishan P.W.3 on examination found Ranjit Singh having five injuries on his person which were simple in nature and were caused by a blunt weapon.
Four of them were contusions which were size able and one was an abrasion.
During the investigations the weapons of the offence were recovered by the investigating officer at the instance of recovery statements made by the accused persons respec tively.
The entire bundle of evidence was produced before the Court of sessions which led to the result above indicated.
Learned counsel for the appellants individually as well as collectively at the first instance pressed into service reasons for the acquittal of Avtar Singh and Mohinder Singh 592 co accused to contend that the prosecution case has been discredited by the courts below rendering it unacceptable.
Highlighting this aspect it was contended that the complain ant party apparently had spread their net wide and had dragged in Avtar Singh acquitted co accused just in order to lay charge of unlawful assembly and Mohinder Singh co accused to share the incised injuries, when those injuries could have been caused by one weapon like kulhari exhibit
On that basis it was asserted that P.W.s having told lies the entire prosecution case deserved throwing out.
Beside it was urged that the evidence regarding recovery of weapons did not inspire confidence.
These arguments even though attrac tive do not appeal to us.
There may be a tendency here and there to implicate a person in addition to actual assailants in a crime but substitution is rare and that cannot be the case here.
As is evident the parties are closely related.
The crime was committed in broad day light.
Ranjit Singh is a stamped witness.
There was no reason for the prosecution to falsely evolve a case against the appellants.
Now here there are two types of injuries on the deceased being in cised wounds and blunt weapon injuries totalling 13 in number.
This is suggestive of at least two assailants re spectively armed with suitable weapons.
to be responsible for these injuries.
But when these seven blunt weapon in juries of the deceased are added to five blunt weapon in juries of Ranjit Singh P.W. and the extensive damage caused seen, it becomes evident that there were more than one assailant inflicting blunt weapon injuries.
Thus there were three assailants as is evident from the result.
Besides shortly before the occurrence Ranjit Singh P.W. was plough ing the field and it is expected of a ploughman to be carry ing a stick.
The very fact that he did not claim to have used any goes to confirm that he was a victim of two assail ants who could use their blunt weapons against him as well as against the deceased.
The medical evidence is thus con sistent and corroborative in connecting all the three appel lants, that is, in Wazir Singh having used his kulhari and Dalip Singh and Darbara Singh having used their lathis in the commission of the crime.
On the eye witness account and the corroboration it receives from medical evidence, their guilt is established even if the evidence of recovery of weapons is kept aside.
We have thus no reason to question the ultimate result arrived at by the High Court though we have our doubts about the reasoning employed by it to acquit Mohinder Singh co accused.
The next point urged was with regard to nature of the offence committed by the appellants.
We notice that out of 13 injuries on the dead body of Sadha Singh, six were in cised wounds and the remaining were blunt 593 weapon injuries.
Amongst the incised wounds the first one above described was by itself sufficient in the ordinary course of nature to cause death of the deceased.
That injury was positively attributed to Wazir Singh appellant who opened the attack but the remaining five incised wounds were not positively attributed to Wazir Singh appellant alone.
It can safely be assumed that some may have fallen in his share to be inflicted and others to Mohinder Singh co accused who has since been acquitted.
Even though Dr. B.M. Kapur has stated that all the incised wounds could have been caused by kulhar p.1 but that by itself cannot go on to conclude that all the incised wounds were caused by Wazir Singh appellant.
Distinguishing the role assigned to Wazir Singh in this manner, we take the view that on the infliction of the first incised wound on the head of the deceased, which was suffi cient by itself in the ordinary course of nature to cause death, and death did ensue, Wazir Singh appellant has ren dered himself liable to be adjudged guilty under section 302 I.P.C. Dr. B.M. Kapur has further opined that leaving aside injury No.1, injuries nos.2 to 13 were collectively sufficient to cause death in the ordinary course of nature.
In this collection we have five incised wounds and seven blunt weapon injuries.
The blunt weapon injuries are frac tures of bones of both the arms and legs.
Even though some of those blunt weapon injuries are extensive and grievious in nature because of the fracture of bones of the left fore arm, right fore arm, elbow, left leg and right leg, these by themselves cannot in the facts and circumstances of this case, be said to have been inflicted by the assailants other than Wazir Singh appellant with the intention of causing death, or in ratification of the act of Wazir Singh appellant.
But since extensive damage had been done to the limbs of Sadha Singh, after the infliction of vital injury No.1, it can safely by inferred that despite the assailant 's choosing non vital parts of the body for inflicting those injuries, they must be attributed the knowledge that by their concerted act they were likely to cause death of the decease, for which act they could be punishable under sec tion 304 part II of the Indian Penal Code.
The act was done while sadha Singh was alive.
The outcome of injury No.1 may or may not have been perceived by assailants other than Wazir Singh but they were satisfied in choosing and inflict ing injuries on non vital parts of the body of Sadha Singh, Which injuries were breaking bones of his arms and legs.
We have leaned towards this view also for the reason that Darbara 594 Singh, due to his young age being in teens, may have acted under the influence of his paternal uncle Wazir Singh, appellant and though he shared the common intention of causing extensive injuries to deceased Sadha Singh and injuries to Ranjit Singh P.W. he may not have shared the common intention of causing the former 's death but can definitely be attributed the knowledge that by his concerted act Sadha Singh could die.
Similarly Dalip Singh, a share cropper of his employer, Wazir singh and Mohinder singh, perhaps had acted under the influence of his employers but cannot in these facts be said to be a co participant in intentionally causing the death of Sadha Singh.
He too must be attributed the knowledge that by his act in concert with others he was likely to cause to death of the deceased.
It is worth reminding that neither of the two accused Darbara Singh and Dalip Singh are attributed any injury on any vital part of the body of the deceased.
Thus on the above analysis Darbara Singh and Dalip Singh, appellants are held guilty for offence under section 304 IPC, read with Section 34 IPC.
Resultantly we alter the conviction of Wazir Singh appellant to a plain one under section 302 IPC and maintain his life sentence.
His conviction and sentence under section 323/34 is also sustained.
The convictions of Darbara Singh and Dalip Singh appellants are altered to one under section 304 IPC read with section 34 IPC for which sentence of seven years rigorous imprisonment is imposed on each of them.
The appeals stand disposed of accordingly.
G.N. Appeals disposed of.

dataset_name: IN-Abs

summary/full:
The appellants and two others were charged with and tried for offences under sections 148,302,149 and 323/149 IPC for causing the murder of one S and causing simple hurts to one R, both related to the accused.
The Trial Judge acquitted one of the five accused since no part of the actual occurrence except exhortations were attributed to him and convicted the other four accused under section 302/34 and 323/34 IPC, and sentenced them to life imprisonment and 6 months rigorous imprisonment respectively.
On appeal, the High Court acquitted one more accused on the ground that the medical evidence did not corroborate the claim that he used his kirpan with force as alleged by the prosecution.
The appeal preferred by the complainant against this acquittal,was dismissed by this Court.
The other three accused whose conviction and sentence were confirmed by the High Court, have preferred the present appeals.
It was contended on behalf of the appellants that the prosecution case has been discredited by the Courts render ing the same unacceptable resulting in the acquittal of two accused and for the same reasons, they also deserved acquit tal.
It was also contended that the evidence regarding recovery of weapons did not inspire confidence.
587 Disposing of the appeal, this court, HELD: 1.
There may be a tendency here and there to implicate a person in addition to actual assailants in a crime but substitution is rare and that cannot be the case here.
As is evident the parties are closely related.
The crime was committed in broad day light.
The witness is a stamped witness.
There was no reason for the prosecution to falsely evolve a case against the appellants.
The medical evidence is consistent and corroborative in connecting all the three appellants.
On the eye witness account and the corroboration it receives from medical evidence, their guilt is estab lished even if the evidence of recovery of weapon is kept aside.[592 C G] 2.
Out of 13 injuries on the dead body six were incised wounds and the remaining were blunt weapon injuries.
Amongst the incised wounds the first one was by itself sufficient in the ordinary course of nature to cause death of the de ceased.
That injury was positively attributed to the appel lant in the second case who opened the attack but the re maining five incised wounds were not positively attributed to him alone.
It can safely be assumed that some may have fallen to his share to be inflicted and others to the co accused who has since been acquitted.
Even though the Doctor has stated that all the incised wounds could have been caused by Kulhar P.1, that by itself cannot go to conclude that all the incised wounds were caused by the appellant in the second case.
Since he inflicted the first incised wound on the head of the deceased, which was sufficient by itself in the ordinary course to cause death, he has rendered himself liable to be adjudged guilty under section 302 IPC.
[592 H; 593 A_C] 3.
Since extensive damage had been done to the limbs of the deceased after the infliction of vital injury No.1, it can safely be inferred that despite the assailants ' choosing non vital parts of the body for inflicting those injuries, they must be attributed the knowledge that by their concert ed act they were likely to cause death of the deceased, for which act they could be punished under section 304 part II of the Indian penal Code.
The act was done while the de ceased was alive .
The outcome of injury No.1 may or may not have been perceived by the assailants except the appellant in the second case, but they were satisfied in choosing and inflicting injuries on non vital parts which injuries were caused by breaking the bones of his arms and legs.[593 F H] 4.
Due to his young age, being in teens, the appellant in the first case 588 may have acted under the influence of his paternal uncle, viz; the appellant in the second case.
Though he shared the common intention of causing extensive injuries to the de ceased and injuries to P.W.4 he may not have shared the common intention of causing death but can definitely be attributed the knowledge that by his concerted act the victim could die.
Similarly the share cropper had acted under the influence of his employers.but cannot be said to be a co participant in intentionally causing the death of the death of the deceased.
He too must be attributed the knowledge that by his act in concert with others he was others he was likely to cause the death of the deceased.
Also, no injury on any vital part of the body of the de ceased was attributed to either of these accused.
According ly, these appellants are held guilty of offence under sec tion 304 IPC, read with section 34 IPC, and not under section 302 IPC.[594 A D] 5.
The conviction of the appellant in second case is altered to a plain one under section 302 IPC and his life sentence is maintained.
His conviction and sentence under section 323/34 is also sustained.
The conviction of the other appellants are altered to one under section 304 IPC read with section 34 IPC for which a sentence of seven years rigorous imprisonment is imposed on each of them.[594 D,E]


judgement:
Appeal Nos.
185 187 of 1993.
From the Judgment and Order dated 5.8.1991 of the Orissa Ad ministrative Tribunal, Bhubaneshwar in O.A. No. 679 of 1988.
246 B.A. Mohanty, A Mariarputham, Mrs. Aruna Mathur, Raju Rama chandran and A.K. Panda for the Appellants.
Shanti Bhushan, Prashant Bhushan, P.N. Misra, P. Gour, R.P. Wadhwani and C.N. Sreekumar for the Respondents.
The Judgment of the Court was delivered by MOHAN, J.
Leave granted in all the matters.
All these appeals can be dealt with under a common judgment since they are directed against the judgment and order dated August 5, 1991 passed by the Orissa Administrative Tribunal Bhubaneshwar in Original Application No. 679 of 1988.
Prakash Chandra Misra (Respondent 1 in all these appeals) was directly recruited to the Orissa State Forest Service Class 11 by the Orissa Public Service Commission in the year 1979.
After completion of training for two years at Forest Service College, Burnihat, Assam he was appointed as an Assistant Conservator of Forests.
He moved the Administrative Tribunal challenging the seniority of the Forest Rangers who were members of Orissa Subordinate Forest Service and were promoted as Assistant Conservator of Forests, between his recruitment and the joining of service after training.
According to first respondent, the promotees who were promoted in the years 1981 and 1982 ought to have been assigned a place below him as per recruitment rules.
The seniority of direct recruits vis a vis the promotees required to be decided on the basis of the Orissa Forest Service Class II Recruitment Rules, 1959.
It was further urged that he was recruited in the year 1979 through Public Service Commission.
He had to undergo training for two years and thereafter he was appointed in the year 1981.
Therefore, the short question was whether the respondent was to be assigned seniority from the year 1979 (the year of recruitment) or from the year 1981 (the year of appointment).
The Tribunal observed that Rule 9(a) of 1959 Rules read with Rule 6 would point out that the promotee officers were to be on probation for a period of two years like the direct recruits.
Such direct recruits were also sent for training to the Forest Training College.
The 1959 Rules used the word 'recruited ', the 1984 Rules used the word "appointed".
These words must be assigned proper meaning.
247 Inasmuch as the direct recruits were to be treated as seniors to promotees 'en bloc ' the first respondent must be treated as a recruit of 1979 and ought to be treated as senior to promotees.
The next question that came up for consideration was as to the application of quota rule.
On this, the Tribunal held that both in the 1959 Rules as well as in the 1984 Rules, the promotees and direct recruits will be in the proportion of 1/3rd and 2/3rd.
In the present case, 1959 Rules being applicable there was no doubt that promotees have substantially encroached upon the quota for direct recruits.
In view of that, promotions which have been made more than the quota prescribed in the rules have to be either adjusted against future vacancies in the promotion quota or reverted.
Such promotions beyond the prescribed quota are illegal.
In view of these findings, the Tribunal held that the first respondent was entitled to be treated (i) as a direct recruit of 1979 and (ii) he shall be confirmed and promoted on the basis of being direct recruit of 1979.
His seniority was to be fixed on the basis of being a direct recruit of 1979 within the 2/3rd quota for direct recruits.
These directions were to be implemented within six months from the date of the order.
On these terms, the petition of the first respondent came to be allowed.
Aggrieved by this judgment, SLP (C) No. 615 of 1992 has come to be preferred by Prafulla Kumar Swain, a promotee (Respondent No. 91 before the Orissa Administrative Tribunal).
SLP (Civil) No. 1604 of 1992 has come to be preferred by Bijay Kishore Mohanty and 10 others (respondents before the Orissa Administrative Tribunal).
The State has preferred SLP (C) No. 4186 of 1992.
Mr. Raiu Ramachandran, learned counsel for the appellant in SLP (C) No. 1604 of 1992 would submit that the first respondent was selected for undergoing superiod Forest Service Course at the Forest Service College, Burnihat, Assam in the year 1979.
Having regard to the terminology of the order wh ich says 'he was selected", it cannot be held that he could lay a claim to the post.
The Orissa Forest Service Class II Recruitment Rules, 1959 govern the case in question.
The Tribunal had gone wrong in its interpretation of the various 248 rules.
First of all, it is incorrect to hold that they are merely administrative instructions.
On the contrary, they are rules framed under proviso to Article 309 of the Constitution of India, as a result of which, they have statutory force.
Having held that both the direct recruits as well as the promotees undergo probation for a period of two years, properly speaking, the period of training for the direct recruits could not count as service.
That is precisely what is stated in clause (c) of Regulation 12.
If under the said Regulation the appointment to service is to commence only after the successful completion of training there is no justification whatever to conclude that the date of recruitment could be the relevant date for the purposes of reckoning the seniority.
Recruitment in the submission of the learned counsel would merely mean enlistment or selection.
That is why Regulation 13 says the "selected candidates".
Even Rules 9 has not been appreciated in its proper perspective.
As regards the ratio of 2/3rd and 1/3rd between direct recruits and promotees the relevant rule that is applicable is Rule 5(3).
That sub rule contains a provision: "Save as otherwise decided by Government".
If, therefore, it has been otherwise provided by the Government, this ratio of 2/3rd and 1/3rd does not apply.
In other words, there is overriding power vested in the Government.
Hence, the ratio is flexible and contemplates a departure whenever the Government otherwise decides.
Here again, the Tribunal has gone wrong.
In Direct Recruit Class II Engineering Officers ' Association and Ors.
vs State of Maharashtra and Ors.
, ; at page 938 this Court has taken the view that where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
In any event, the placement of Respondents 42 to 94 as per Civil List corrected upto 1982 was published in the year 1985 by the State Government.
They are the promotees from amongst the various Rangers in Subordinate Service Class 11 as Assistant Conservator of Forests in 1980.
This was at a time when the first respondent was undergoing training at Burnihat, Assam.
If really, therefore, the gradation list was published as early as 1985, there is absolutely no justification for the first respondent to approach in the year 1988.
The judgment of the Tribunal has resulted in unsettling the settled matters.
For these reasons, it is prayed that the order of the Tribunal may be reversed.
Mr. A.K. Panda, learned counsel for the State adopts the arguments 249 of Mr. Raju Ramchandran, learned counsel for the appellant.
Mr. Shanti Bhushan, learned counsel appearing for the first respondent would submit that recruitment is different from appointment.
The definition of the service is contained under Rule 3(e) which states "service" means Orissa Forest Service Class 11.
The service consists of Officers of Class 11 who are designated as Assistant Conservator of Forests.
Rule 5(c) talks of recruitment to Class II.
In sub rule (a) a reference is made to Regulation.
What is contemplated hereunder is nothing more than the competitive examination prescribed under Regulation.
Therefore, Regulation 12 cannot be pressed into service.
When an officer is recruited to Class 11 Service it does not mean that only from the date of appointment his seniority is to be reckoned.
The very fact that his recruitment to the service is enough.
The argument of the other side that the period of training will have to be excluded merely because both the direct recruits as well as the promotees undergo probation is untenable.
The question is, whether the direct recruits who are definitely superior could be pushed lower down to the promotees.
In Service Law the direct recruits are always treated on a better footing than the promotees.
Even though the relevant years of recruitment and promotion of persons involved are essentially of the years 1979 to 1984, yet it is 1984 Rules which will govern.
Rule 24 of the 1984 Rules contains the repeal and saving clauses.
That says that all the officers who were appointed prior to the repeal shall be deemed to have been appointed under the provisions of 1984 Rules.
If that be so, the aforesaid Explanation to Rule 16 must apply.
Thus it is clear as on today the seniority by the 1984 Rules.
The same has clearly provided that the date of appointment of direct recruits for the purposes of seniority will be deemed to be 2 years prior to the date of appointment to a working post.
Since the normal period of training is 2 years this cannot but mean that the date of appointment of direct recruits for the purposes of seniority will be the date of selection.
If the seniority is not a vested right it is well open to the Government to alter the same by making a departure from 1959 and providing for the same in the amended 1984 Rules.
Learned counsel draws our attention to Indian Forest Service (Appointment by Promotion) Regulations of 1966.
In the said Regulations, Regulation 5 in its Explanation 11 states that in computing the period of 250 continuous service the period of training which an officer had undergone is to be included.
If that is the intention for Grade I Service, certainly a different intention cannot be spelt out under the 1959 Rules for Grade 11 Service.
This is also evident when the 1984 Rules are looked at.
There the rules clearly lay down in Rules 16 in its Explanation that the training period is not to be excluded.
When rules specifically prescribe the quota as 1/3rd the Government cannot wriggle out of the situation that a saving provision had been made which is factually not so in this case.
For this purpose, the Government has relied upon the proceedings held on 5.1.80 and 7.1.80.
The proceedings of Departmental Promotion Committee will not constitute the Government order.
All Government orders must be issued under the signature of the Minister according to the Rules of Business.
In the present case, no such order of the Minister regarding the alteration of quota is produced.
The statutory rules lay down a clear legislative policy with regard to fixation of quota so that the brightest talent be made available for the service.
As to what would be the consequence of violating a statutory rule has come to be laid down in Keshav Chandra Joshi and Ors.
vs Union of India, [1990] Supp. 2 SCR 573 at page 586.
That ratio squarely applies to the facts of the case.
The point relating to laches was never argued before the Tribunal.
Therefore, the appellant cannot be allowed to argue at this stage.
We will now proceed to set out the necessary factual background.
The Orissa Public Service Commission through an advertisement dated 8.10.64 invited applications from open market for admission of candidates to a competitive examination for selection to the posts of Orissa Forest Service Class II service.
18 candidates were selected.
They were sent for training at Indian Forest College, Dehradun during the year 1965 67.
Only on successful completion of the training they could be appointed to Class 11 Service.
One of the candidates who was successful in completion of training and who received the posting order 233/67 came forward with a writ petition before the Orissa High Court that he had been assigned in the list of gradation a rank junior to the promotees who were confirmed by Service Commission after the recruitment of the petitioner.
The scope of 1959 Rules came up for consideration and the High Court concluded that the recruitment to Class II Service was complete only after successful 251 completion of two years ' training in the Forest College.
Relief was granted on that basis.
That came up in appeal to this Court in Civil Appeal Nos.
2051 52 of 1974 State of Orissa vs Manoranjan Rath & Ors.
By an order dated 7th of January, 1988, finding that there was no ground to interfere with the judgment of the High Court, the appeals came to be dismissed.
While the matter stood thus one of the directly recruited officers (Prakash Chandra Misra, respondent No.1) filed a petition before the Tribunal challenging the seniority.
He contended that the promotees who were promoted in the year 1981 82 ought to have been assigned a place lower than him as per recruitment rules.
Two main contentions were: 1.
His services should be reckoned from the date of recruitment itself and not from the date of actual appointment.
Therefore, the exclusion of the period of two years ' training for the purposes of reckoning the seniority was illegal.
The promotees had been appointed in excess of the quota which the rules had prescribed.
There is no specific order of Government providing otherwise.
The Tribunal accepted these contentions and held that the petitioner before it being a direct recruit of the year 1979 must be treated as such and had to be confirmed and promoted on the basis of being a direct recruit of the year 1979.
This should be done within the 2/3rd quota for direct recruits.
Accordingly the petition was allowed.
It is under these circumstances, special leave petitions have come to be preferred.
Having regard to the arguments two points arise for our determination: (1) Whether the direct recruits are to be considered as recruited in the year in which they were selected by the Service Commission and sent for training into the Forest College or in the year in which they were actually appointed to a working post on completion of training? (2) Whether there was a quota fixed for promotees in the Orissa Forest Service during the relevant years.
Even at the outset, we may point out that the Tribunal has grossly erred in holding that the Orissa Service Class 11 Recruitment Rules of 1959 are mere administrative instructions.
On the contrary, these rules were framed under the proviso to Article 309 of the Constitution and they are 252 statutory in character.
Section 3(e) of 1959 Rules says 'Service" means the Orissa Forest Service Class II.
Rule 5 reads as under: "5.
(1) Recruitment to Class II service shall be made (a)by direct recruitment on the result of competitive examination as per Regulation I appended to this rule; (b)by promotion as per the Regulation 11 appended to this rule governing promotions to the Orissa Forest Service, Class II; (2)Government shall decide from time to time the number of vacancies in class II Service to be filled by direct recruitment and by promotion.
(3)Save as otherwise decided by Government, number of posts of the service filled up by promotion shall not exceed one third of the total number of such posts in the cadre.
" Rule 9 is as follows: "9(a) When officers are recruited by promotion and by direct recruitment during the same year the directly recruited members shall be considered senior to the promoted members irrespective of their dates of appointment.
(b)In case of promotion, seniority may be determined in accordance with the positions the promoted officers held in the recommendation of Public Service Commission made according to merit.
(c)In case of direct recruitment, seniority may be determined according to the achievements in the examination in the Forest College.
" Besides these rules there are also Regulations dealing with direct recruitment.
It may be stated that the Regulations prescribe the condition of eligibility (Regulation 1(2)), educational qualification (Regulation I(6)), written test by means of a competitive examination (Regulation 18(a)) and 253 a viva voice test.
The candidates are to be summoned for viva voice test on securing the minimum qualifying marks prescribed by the Commission.
Thereafter the Commission prepares a list of successful candidates provided they are found fit in the physical test as prescribed under Regula tion 1(5).
The fist of successful candidates is to be forwarded to the Government for approval.
Regulation 12 is important for our purposes.
Under that Regulation the finally selected candidates are required to undergo two years training.
During the period of pendency a consolidated monthly allowance of Rs. 150 as stipend is paid.
Under clause (b) of that Regulation he is required to execute a bond provided for in Appendix A. Regulation 12(c) in unmistakable terms says the period of training will not count as service under Government.
Such service will count only from the date of appointment to the service after successful completion of the course of training.
(Emphasis supplied).
We must give full meaning and effect to this Regulation.
At this stage, we will proceed to decide as to the meaning and effect of the words "recruitment" and "appointment".
The term "recruitment" connotes and clearly signifies enlistment, acceptance, selection or approval for appointment.
Certainly, this is not actual appointment or posting in service.
In contradistinction the word "appointment" means an actual act of posting a person to a particular office.
Recruitment is just an initial process.
That may lead to eventual appointment in the service.
But, that cannot tantamount to an appointment.
No doubt, Rule 5 talks of recruitment to Class II Service.
We consider these are two sources of recruitment.
Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination.
On the contrary, Regulation 12(c) is very clear that the period of training is not to be reckoned as Government service.
It is admitted before us that after the successful completion of training when the appointment order is issued the direct recruits are put on probation.
Similar is in the case of the promotees.
Both of them undergo probation.
Therefore, in the light of these provisions it is not possible for us to accept the contention advanced on behalf of the direct recruits that their seniority must be reckoned from the date of their recruitment.
This is why Mr. Shanti Bhushan, learned counsel for the direct 254 recruits, respondents, would urge that 1984 Rules would govern.
Rule 16 in Explanation provides thus: "Explanation For the purpose of clause (a), the year of appointment of direct recruits shall be deemed to be the year arrived at after deducting two years from the date of successful completion of the training in the Forest College." He would urge that in view of Rule 24 all the appointments must be deemed to have been made under these Rules.
Rule 24 reads thus: "24.
All rules and orders corresponding to these rules and in force immediately before the commencement of these rules are hereby repealed: Provided that nothing in these rules shall be construed as affecting or invalidating the appointments already made or orders issued in accordance with the provisions of any rules or orders in force immediately before the commencement of these rules and that all such appointments and orders shall continue in force and shall, as far as may be, be deemed to have been made and issued under the appropriate provisions of these rules: Provided further that Government may, by order, direct that any of the provisions of these rules shall not apply to the Officers already appointed under the rules and orders in force immediately before the commencement of these rules or shall apply to them with such modifications as the Government may specify in that order. ' Therefore, according to him, the benefit of Explanation to Rule 16 quoted above must apply.
We find it impossible to accept this contention for the following reasons: 1.Since the appointments in question have been made under 1959 Rules, 1984 Rules will be inapplicable.
2.The 1984 Rules came into force only when they were published in the Official Gazette on December 21, 1984.
255 3.
Explanation under Rule 16 is a substantive provision.
Therefore, it cannot be retrospective.
As regards Rule 24, the proviso clearly states that the Rules cannot be construed as affecting or invalidating the appointments already made.
Therefore, if any right has been acquired or any privilege had accrued that would remain unaltered.
Therefore, these appointments which are governed by the 1959 Rules will continue notwithstanding the repeal.
Clauses (a) and (e) of Section 6 of the also point this position: 6.
Effect, of repeal: Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made, or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) (c) (d) (e) effect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
" Coming to the deeming clause, that creates a legal fiction; the Court is to ascertain for what purpose the fiction is created.
In Justice G.P. Singh Principles of Statutory Interpretation (Fourth Edition 1988) at page 208 it is stated thus: "As was observed by James, LJ. : 'When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what person the statutory fiction is to be resorted to '. 'When a legal fiction is created ', stated S.R. Das, J. "for what purposes, one is led to 256 ask at once, is it so created?" Therefore, by the operation of deeming clause it only enables appointments made under 1959 Rules to be continued under 1984 Rules.
Certainly, by the repeal of 1959 Rules it cannot mean all those appointments cease.
Nor again, the substantive provision of Rule 16, as stated above.
Would govern.
Therefore, Rule 24 has no application.
Thus, we conclude that the seniority of direct recruits will have to be reckoned only from the date of appointment and not from the date of recruitment.
The gradation list which was impugned by the first respondent before the Tribunal was prepared in pursuance of the order of this Court read with the aforementioned judgment of the Orissa High Court and this is so stated in a letter dated 4th January, 1989 written by the Deputy Secretary to the Government of Orissa, Forest, Fisheries and Animal Husbandry Department, Bhubaneshwar to the Principal Chief Conservator of Forest, Orissa, Bhubaneshwar (Annexure II to the Special Leave Petition in S.L.P. (C) No. 1604 of 1992).
That this gradation list had been framed upon the aforesaid basis also does not appear to have been brought to the attention of the tribunal.
The gradation list has been in operation over several years.
We see no reason to unsettle the settled position.
In this behalf we draw support from the judgment of this Court in Direct Recruit Class II Engineering Officers ' Association vs State of Maharashtra and others.
; , We may also note that though the same question was before this Court a little before the petition was made by the first respondent before the Tribunal, no effort was made by the first respondent to intervene and place before this Court his point of view.
It is inconceivable that he would not have known that the same question was before this Court.
Turning to the quota rule the records reveal that the Government had clearly taken a decision to increase the number of posts to be filled up by promotion in excess of the 1/3rd of total posts in the cadre on administrative grounds connected with nationalisation of Kendu Leaf Trade in 1972 73 in the interest of public due to non availability of direct candidates trained in the Indian Forest College, Dehradun.
It is not correct to say that Government have decided that the quota of direct recruitment which will be encroached upon by the promotees will be released as and when direct recruits are available.
In fact, it was decided that the 4 direct 257 candidates who were by then under diploma course Training in forestry at Dehradun in the event of their coming out successful during 1974 from the training College may be appointed and in consequence, the junior most promotee officers whom were appointed on ad hoc basis as aforesaid pending concurrence of Orissa Public Service Commission will have to be reverted to make room for them.
No promotion to Orissa Forest Service Class 11 could be made on regular basis without obtaining concurrence of the Orissa Public Service Commission as per Clause 2(h) of Regulation 11 appended to the Orissa Forest Class II Recruitment Rules, 1959.
In view of the urgency to implement the Kendu Leaf Scheme in 1973, 39 Forest Rangers were appointed to Class 11 Forest Service on an 'ad hoc ' basis for a period of six months or till concurrence of the Commission is received for their final appointment.
The 39 Forest Ranger had already been promoted to Orissa Forest Service Class 11 on regular basis on the recommendation of the Orissa Public Service Commission.
In view of this, it is not correct to say in that the decision taken by Government for promoting excess promotees in the year 1972 was only to promote them on an ad hoc basis within that quota.
Hence, to contend that the promotees would obviously have to yield to direct recruits who came in subsequently within their quota and would consequently also not be eligible for seniority above direct recruits, is untenable.
We may also add that there were earlier proceedings in Transfer Application No.147 of 1986 before the Orissa Administrative Tribunal.
The decision was rendered on 3.7.87.
SLP (C) No. 1624 of 1.988 filed against the said decision was dismissed by this Court on 18.1.89.
There was also an application, OJ.C. No. 588 of 1972 before the Orissa High Court in Manoranjan Rath vs State of Orissa and others.
The decision was rendered on 10.6.74.
Against the said decision Civil Appeal Nos.
2051 52 of 1974 were preferred to this Court which were dismissed on 7.1.88.
The Tribunal in the above judgment had held on perusal of the departmental file that the Government had taken decision to increase the number of posts to be filled up by promotion on administrative grounds.
This was necessitated because of the nationalisation of Kendu Leaf Trade.
Action to fill up the posts by promotion of Forest Rangers in excess of 1/3rd of the total posts in the cadre was taken in pursuance of the decision of the Government.
Though the actual decision of the Government is not produced before us yet the proceedings of the meetings of the Departmental Committee held on 5.1.80 and 7.1.80 to select Forest Rangers suitable for promotion took note of 258 Rule 5(3) which contains the saving clause.
"Save as otherwise decided by Government, number of posts of the service filled up by promotion shall not exceed one third of the total number of such posts in the cadre.
" These proceedings speak volumes.
The proceedings were given effect to by promotions.
Such promotions in excess of the prescribed quota had to be made since no more directly recruited candidates were available during that year.
The Government did not want its work to be hampered by allowing the posts were to remain vacant.
While seeking the concurrence of Orissa Public Service Commission to the decision taken by the Departmental Committee held on 5.1.80 and 7.1.80, the proceedings of the Committee explain the circumstances under which the Government decision was taken.
From this point of view, we find the decision in Keshav Chandra Joshi 's case (supra) has no application here.
Therefore, the promotions given in excess of 1/3rd quota are valid.
There is no justification to push down the promotees in seniority.
The promotion in excess of the prescribed quota was necessitated by the exigencies and in the interest of the public.
It is supported by a conscious decision of the Government which is permissible under Rule 5(3).
Therefore, we reject the arguments advanced on behalf of the direct recruits in this regard.
A reference was made to the Indian Forest Service (Appointment by Promotion) Regulations, 1966, particularly Regulation 5.
It is also urged that from the post of Class 11, promotion is to be made to Class 1.
We are of the view that since the appointments in question are regulated under Orissa Forest Service Class II Recruitment Rules, the said Regulations of 1966 have no application.
Further, as pointed out above, the Orissa Rules were framed under proviso to Article 309 of the Constitution of India and have statutory and binding force.
Now comes the proverbial last straw on the camel 's back.
There have been laches on the part of the direct recruits in seeking the remedy.
When the list was published in 1985 nothing prevented them to approach earlier.
This is the point to be put against them.
That this position was known to the direct recruit (Prakash Chandra Mishra) is clear from paragraph 18 of his petition before the Tribunal.
It 259 reads thus.
Therefore, placement of Respondent Nos.
42 to 94 as per Civil List corrected upto 1982 published in the year 1985 by the State Government who are promotees from amongst the Forest Rangers in Subordinate Service to Class II Service as Assistant Conservator of Forests in the year 1980 when this applicant was undergoing training at Burnihat, Assam, is patently illegal and an act without jurisdiction by the State Government of Orissa. ' (Emphasis supplied) We do not want to unsettle settled matters which will lead to several complications.
In view of the foregoing discussion, we set aside the judgment of the Tribunal.
The appeals will stand allowed.
However, there shall be no order as to costs.
V.P.R. Appeals allowed.

summary/full:
The Orissa Public Service Commission through an advertisement dated 8.10.64 Invited applications for admission of candidates to a competitive examination for selection to the posts of Orissa Forest Service Class II Service.
The 18 selected candidates were sent for training at the Indian Forest College during the year 1965 67.
One of the candidates, who successfully completed the training was appointed to Class 11 Service.
He filed a writ petition in the High Court, as he was assigned in the list of gradation a rank junior to the promotees, who were confirmed by Service Commission after his recruitment The High Court held that the recruitment to class II Service was complete only after successful completion of two years ' training in the Forest College.
The appeals by special leave flied against the High Courts 242 Judgment were dismissed by this Court.
In 1979, the respondent No. 1 (in all the present appeals) was directly recruited to the Orissa State Forest Service Class II by the State Commission.
He was appointed as an Assistant Conservator of Forests, after his completion of training for two years at the Forest Service College.
Respondent No. 1 moved the Administrative Tribunal challenging the seniority of the Forest Rangers, who were members of the Orissa Subordinate Forest Service and were promoted as Assistant Conservators of Forests, when the respondent was undergoing his training.
Respondent contended before the Tribunal that the seniority of direct recruits vis a vis the promotees required to be decided on the basis of the Orissa Forest Service Class II Recruitment Rules, 1959; that his services should be reckoned from the date of recruitment Itself and not from the date of actual appointment; that the exclusion of the period of two years ' training from the purposes of reckoning the seniority was illegal; and that the appointment of the promotees in excess of the quota prescribed by the Rules and in the absence of any specific order of Government providing otherwise was illegal.
Allowing the petition, the Tribunal held that the respondent No.1 (in the present appeals) was entitled to be treated as a direct recruit of 1979 and he be confirmed and promoted on being direct recruit of 1979 and his seniority to be fixed on the basis of being a direct recruit of 1979 within the 2/3rd quota for direct recruits.
The present appeals by special leave were preferred by the aggrieved parties against the judgment of the Tribunal.
The appellant in SLP (C) No. 1604 of 1992 submitted that the respondent No.1 was selected for undergoing superior Forest Service Course at the Forest Service College in 1979; that having regard to the terminology of the order which stated, "he was selected", it could not be held that he could lay a claim to the post; that the Tribunal had gone wrong in its interpretation of the rules that having held that both the direct recruits as well as the promotees were to undergo probation for a period of two years, the period of training for the direct recruit could not count as service; that the ratio of 2/3rd and 1/3rd between direct recruits 243 and promotees did not apply, if the Government provided otherwise; that the Civil List corrected upto 1982 was published in 1985; and that the judgment of the Tribunal resulted in unsettling the settled matters, hence same to be reversed.
The State adopted the arguments of the appellant in SLP (C) No. 1604/92.
The respondent No.1 submitted that recruitment was different from appointment; that when an officer was recruited to Class 11 Service if did not mean that only from the date of appointment his seniority was to be reckoned, that the argument that the period of training to be excluded merely because both the direct recruits as well as the promotees undergo probation was untenable; that when rules specifically prescribed the quota as 2/3rd and 1/3rd, the Government could not wriggle out of the situation that a saving provision was made which was factually not so in this case; that the point relating to laches which was never argued before the Tribunal, could not be raised before the Court.
Allowing the appeals, this court, HELD, 1.01.
The term 'recruitment "connotes and clearly signifies enlistment, acceptance, selection or approval for appointment Certainly, this Is not actual appointment or posting in service.
In contradistinction, the word 'appointment ' means an actual act of posting a person to a particular office.
[253E] 1.02.
Recruitment is just an initial process. 'Mat may lead to eventual appointment in service.
But, that cannot tantamount to an appointment.
No doubt, Rule 5 talks of recruitment to Class 11 Service.
[253E] 1.03.
Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination.
On the contrary, Regulation 12(c) is very clear that the period of training is not to be reckoned as Government service.
[253F] 1.04.
Under Regulation 12 the finally selected candidates are required to undergo two years training.
During the period of pendency & consolidated monthly allowance of Rs. 150 as stipend is paid.
Under clause (b) of that Regulation he is required to execute a bond provided for 244 in Appendix A. Regulation 12 (c) in unmistakable terms says the period of training will not count as service under Government.
Such service will count only from the date of appointment to the service after successful completion of the course of training.
[253B C] 1.05.
After the successful completion of training when the appointment order Is issued the direct recruits are put on probation.
Similar Is in the case of the promotees.
Both of them undergo probation.
[253G] 1.06.
The seniority of direct recruits will have to be reckoned only from the date of appointment and not from the date of recruitment.
[253G] 2.01.
The Government had clearly taken a decision to increase the number of posts to be filled up by promotion in excess of the 1/3rd of total posts in the cadre on administrative grounds connected with nationalisation of Kendu Leaf Trade in 1972 73 in the interest of public due to non availability of direct candidates trained In the Indian Forest College, Dehradun.
[256G] 2.02.
It is not correct to say that Government have decided that the quota of direct recruitment which will be encroached upon by the promotees will be released as and when direct recruits are available.
[256H] 2.03.
Hence, to contend that the promotees would obviously have to yield to direct recruits who came in subsequently within their quota and would consequently also not be eligible for seniority above direct recruits, is untenable.
[257D] 2.04. ]Me promotions given in excess of 1/3rd quota are valid.
There is no justification to push down the promotees in seniority.
The promotion in excess of the prescribed quota was necessitated by the exigencies and in the intersest of the public.
It is supported by a conscious decision of the Government which is permissible under Rule 5(3).
[258D] Keshav Chandra Joshi and Ors.
vs Union of India, [1990] Supp. 2 SCR 573 at page 586, distinguished.
Direct Recruit Class II Engineering Officers Association and Ors.
vs State of Maharashtra and Ors.
, ; at page 938; SLP (C) No. 1624 of 1988 Disposed of on 18.01.89; CA.
2051 52 of 1974 Disposed of on 7.1.88, referred to.
245 3.01.
By the operation of deeming clause it only enables appointments made under 1959 Rules to be continued under 1984 Rules.
Certainly, by the repeal of 1959 Rules It cannot mean all those appointments cease.
Nor again, the substantive provision of Rule 16 would govern.
Therefore, Rule 24 has no application.
[256A B] 3.02.
Since the appointments in question have been made under 1959 Rules, 1984 Rules will be inapplicable.
The 1984 Rules, came into force only when they were published in the Official Gazette on December 21, 1984.
Explanation under Rule 16 is a substantive provision.
Therefore, it cannot be retrospective.
As regards Rule 24, the proviso clearly states that the Rules cannot be construed as affecting on invalidating the appointments already made.
Therefore, if any right has been acquired or any privilege had accrued that would remain unaltered.
Therefore, these appointments which are governed by the 1959 Rules will continue not withstanding the repeal.
[254H, 255A B] 3.03.
Since the appointments in question are regulated under Orissa Forest Service Class 11 Recruitment Rules, the Indian Forest Service (Appointment by Promotion) Regulations of 1966 have no application.
The Orissa Rules were framed under proviso to Article 309 of the Constitution of India and have statutory and binding force.
[258F] G.P. Singh: Principles of Statutory Interpretation Fourth Edition 1988, at page 208, referred to.
There have been laches on the part of the direct recruits in seeking the remedy.
When the list was published in 1985 nothing prevented them to approach earlier.
This is the point to be put against them.
[258G] 4.02.
The gradation list has been in operation over several years.
There is no reason to unsettle the settled position.
[256E] Direct Recruit Class II Engineering Officers ' Association vs State of Maharashtra and others; , , referred to.