judgement:
N: Criminal Appeal No. 483 of 1980.
From the Judgment and Order dated 6.11.79 of the Andhra Pradesh High Court in Crl.
A. No. 789 of 1979.
T.V.S.R. Krishna Sastry, Vishnu Mathur and V.B. Saharya, Amicus curiee (NP) for the Appellants.
G. Prabhakar for the Respondent.
The Judgment of the Court was delivered by KASLIWAL, J.
Twelve persons were challaned for the murder of Nethala Veeraswamy, a resident and Sarpanch of village Ramaraogudem in Eluru Taluq, West Godavari District (A.P.) in the night of 31.12.1977.
Learned Sessions Judge, West Godavari Division, Eluru tried the case and relying on the evidence of P.Ws. 1,2 and 7 in toto and the evidence of P.W.3 to some extent convicted all the accused persons for the offences charged under Section 302 read with Section 149 I.P.C. and awarded each one of them sentence of imprisonment for life and other minor terms of imprisonment for other offences.
On appeal the High Court set aside the conviction and sentence of seven accused persons, namely, Dasari Bhaskara Rao (A 4), Kali China Krishna (A 5), Namburi Lakshmana (A 8), Namburi Ramulu (A 9), Namburi Prasada Rao (A 10), Mada Govardhana Rao (A 11) and Kali Kamaka Rao (A 12).
The High Court confirmed the conviction of the remaining five accused persons Mullagiri Vajram (A 1), Mada Lakshmandas (A 6) and Gandi Abraham (A 7) under Section 302 read with Section 149 I.P.C. and sentenced them to imprisonment for life.
The High Court further held that as these accused had been sentenced for the main offence under Section 302 read with Section 149 I.P.C. there was no need of separate sentence under Sections 148 and 147 I.P.C.
The five accused A 1, A 2, A 3, A 6 & A 7 have come before this Court in appeal against the order of the High Court by grant of Special Leave.
Mada Lakshmandas (A 6) expired during the pendency of appeal before this Court as such the appeal filed by him was dismissed as having abated by order dated 8.4.1992.
We are now concerned in this appeal with the four accused appellants A 1, A 2, A 3 and A 7.
We have gone through the Judgment of the lower courts and have perused the record and have considered the arguments advanced by learned counsel for the parties.
The High Court has considered the prosecution evidence in detail and has placed reliance on the statements of P.Ws. 1,2,3 and 4 as eye witnesses of the incident.
The High Court has placed implicit reliance on the testimony of P.W.2 and who was a clerk working in the panchayat office of Ramaraogudem and had accompanied the deceased in an autorickshaw and had seen the incident.
We find no infirmity in the statement of P.W.2 and the High Court has rightly placed reliance on his evidence.
Learned counsel for the accused persons submitted that even if the statement of P.W.2 is taken to be correct, no offence is made out so far as accused (A 3) is concerned.
Learned counsel in this regard submitted that P.W.2 in the cross examination has admitted that he did not state the name of A 3 in his statement recorded under Section 164 Cr.
It was also submitted that though P.W. 2 stated that he had given the name of A 3 in his statement recorded at the inquest but the name of A 3 does not find mention in exhibit D 7, the statement of P.W.2 recorded at the inquest.
We see force in the aforesaid contention.
A perusal of the statement of P.W.2 shows that he did not make a mention of the name of A 3 in his statement recorded under Section 164 Cr.
P.C. and also in his statement exhibit D 7 recorded at the inquest.
In view of these circumstances the accused A 3 is also entitled to the benefit of doubt.
It was next contended by learned counsel on behalf of the accused A 2 and A 7 that P.W.2 in the cross examination admitted that after the incident he had gone to police station seven or eight times.
He had gone to the police station as he was asked by the police.
He also admitted that at that time accused persons were in police lock up.
On the basis of the aforesaid statement of P.W.2 it was contended that when P.W.2 had gone to the police station scene or eight times after the incident the possibility of his seeing the accused (A 2) and (A 7) in the police station cannot be ruled out.
It was thus contended that any identification parade held on 25.1.1978 and 26.1.1978 has no value as P.W.2 had already seen the accused persons in the police station.
We find no force in this contention.
Exhibits P 16 and P 17 are the proceedings of identification parade held on 25.1.1978 and 26.1.1978 respectively.
A perusal of these documents shows that P.W.2 Garapati Krishnavatharam had himself stated that he had prior acquaintance with Mullagiri Yesupadam (A 2) and Gandi Abraham (A 7).
The High Court has examined this aspect of the matter and has rightly arrived to the conclusion that P.W.2 in his evidence has stated that he came to know the names of the accused from the children of the deceased and it was not unnatural for a person, who resides in a village for a period of two months and especially when they reside opposite to the residence of the president(deceased) in whose office he was working as a clerk to know the names of the persons residing nearby.
P.W.2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A 2 and A 7.
P.W.2 is a witness of sterling worth and both the trial court and the High Court have placed reliance on his testimony.
He had identified A 1, A 2 and A 7 in the Court.
Their conviction is not based on the identification parade but on the statement of P.W.1 AND P.W.2 made during the trial as eye witness.
It is established beyond any manner of doubt that there were two factions and long standing rivalry in between the two groups in the Village.
The accused persons belonged to the group headed by A 6, A 7 and the deceased was the leader of the other group.
Nethalaveeraswamy the deceased was given merciless beatings and was done to death in the midnight of 31.12.1977.
He was found to have 26 external injuries as recorded in the autopsy of his dead body conducted by the Doctor.
It has also been found established by the learned trial court as well as by the High Court that A 1 inflicted injuries by and axe and A 2 by a spear and A 7 was Court that A 1 inflicted injuries by an axe and A 2 by a spear and A 7 was among the other persons who inflicted injuries by a stick.
It has also come in the evidence of P.W. 19, Inspector of Police that the accused persons had absconded and on 9.1.1978 on information by 5.00 A.M., he along with mediators visited Ramaraogudem and the absconded accused were hiding in the house of A 7.
He surrounded the house with his staff, guarded the house and in that house he found the twelve persons against whom the case was challaned.
It has also been proved by the prosecution that A 7 was the leader of the rival faction against the deceased.
Thus we find that there is no infirmity at all in the reasoning and conclusion arrived at by the High Court so far as accused A 1, A 2 and A 7 are concerned.
In the result we allow the appeal so far as Dasari Bhima Rao (A 3) is concerned and he is acquitted of all the charged levelled against him his bail bonds shall stand discharged.
The appeal filed by Mullagiri Vajram (A 1), Mullagiri Yesupadam (A 2) and Gandi Abraham(A 7) is dismissed.
They shall surrender to their bail bonds and serve out the sentence awarded to them by the High Court.
N.P.V. Appeal disposed of .

dataset_name: IN-Abs

summary/full:
Twelve persons, including the appellants, were challaned for the murder of Sarpanch of a village.
Relying on the evidence of P.Ws. 1,2 and 7 in toto and that of P.W.3 to some extent, the Sessions Judge convicted all the accused persons for the offences under Section 302 read with Section 149 I.P.C. and awarded sentence of imprisonment for life and other minor terms of imprisonment for other offences.
On appeal, the High Court set aside the conviction and sentence of seven accused persons, namely, A 4, A 5, A 8 to 12 and confirmed the conviction of the remaining five accused persons, A 1, A 6 and A 7 under Section 302 read with Section 149 I.P.C. and sentenced them to imprisonment for life.
These five accused filed an appeal, by special leave, before this Court.
During the pendency of the appeal one of the accused appellants died and as such appeal filed by him was dismissed as having abated.
On behalf of the accused persons it was submitted that even if the statement of P.W. 2 was taken to be correct no offence was made out so far as accused A 3 was concerned, inasmuch as P.W.2 had admitted in the cross examination that he did not state the name of A 3 in his statement recorded under Section 164 Cr.
P.C., and that the name of A 3 was also not found in Exhibit D 7, the statement of P.W.2 recorded at the inquest, and that since P.W.2 had gone to police station seven or eight times after the incident, there was a possibility of his seeing the accused, A 2 and A 7 in the police lock up and hence the identification parades held had no value.
Disposing of the appeal, this Court, HELD: 1.1.
There is no infirmity at all in the reasoning and conclusions arrived at by the High Court so far as accused A 1, A 2 and A 7 are concerned.[24 B] 1.2 It is established beyond any manner of doubt that there were two factions and long standing rivalry in between the two groups in the village.
The accused persons belonged to the group headed by A 6, A 7 and the deceased was the leader of the other group.
The deceased was given merciless beatings and was done to death in the midnight.
He was found to have 26 external injuries as recorded in the autopsy of his dead body conducted by the Doctor.
It has also been found established by the trial court as well as by the High Court that A 1 inflicted injuries by an axe and A 2 by a spear and A 7 was among the other persons who inflicted injuries buy a stick.
It has also come in the evidence of P.W.19, Inspector of Police, that the accused persons had absconded and after a few days of the incident, on information, he, alongwith mediators, visited the village and the absconded accused were hiding in the house of A 7.
He surrounded the house with hes staff, guarded it and found therein, the twelve persons against whom the case was challaned.
It has also been proved by the prosecution that A 7 was the leader of the rival faction against the deceased.
[23 F H, 24 A] 1.3.
The High Court has considered the prosecution evidence in detail and has placed reliance on the statements of P.Ws.1 to 4 as eye witnesses of the incident.
The High Court has placed implicit reliance on the testimony of P.W.2.
a clerk in the deceased 's office, and who had accompanied the deceased in an autorickshaw and seen the incident.
There is no infirmity in the Statement of P.W.2 and the High Court has rightly placed reliance on his evidence.
[22 D,E] 1.4.
P.W.2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A 2 and A 7.
P.W.2 is a witness of sterling worth and both the trial court and the High Court have placed reliance on his testimony.
He had identified A 1, A 2 and A 7 in the Court.
Their conviction is not based on the identification parade but on the statement of P.W.1 and P.W.2 made during the trial as eye witness.
[23 E] 1.5.
A perusal of the statement of P.W.2 shows that he did not make a mention of the name of A 3 in his statement recorded under Section 164 Cr.
and also in his statement, Exhibit D 7, recorded at the inquest.
In the circumstances, the circumstances, the accused A 3 is also entitled to the benefit of doubt.
[22 G] 1.6.
In the result, A 3 is acquitted of all the charges levelled against him, and the conviction and sentence of the other appellants, A 1, A 2 and A 7 are confirmed.
[24 c]


judgement:
Appeal No. 2822 of 1979.
from the Judgment and Order dated 28.9.1978 of the Punjab and Haryana High Court in Civil Revision No. 480 of 1977.
E.C. Agrawala for the Appellants.
Bishambar Lal Khanna and Ms. Geetanjali Mohan for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
This appeal by grant of special leave is directed against the judgment of Punjab & Haryana High Court dated September 28,1978.
The short controversy raised in the present case is regarding the date from which the period of limitation shall commence under Article 137 of the .
According to the facts found established on record, Grubachan Singh respondent was delivered actual possession of 135 Kanals of land and symbolical possession of 62 kanals, 13 marlas on June 13,1963 in execution of decree for pre emption obtained by him.
According to the decree, Gurbachan Singh was only entitle to actual possession was concerned, it was beyond the terms of the decree.
Ladha Singh, father of the appellants having come to know about the said mistake, filed a suit for declaration and for permanent injunction in the year 1965.
The said suit was decreed in favour of Ladha Singh and the said declaratory decree was affirmed in appeal by the Additional District on actual possession of the portion over which symbolical possession was recorded in execution proceedings.
It remains undisputed that the aforesaid judgment given by the Additional District Judge, Karnal dated 12.5.1969 became final.
Gurbachan Singh has now filed a suit for partition in the year 1973 claiming not only 135 kanals on which he had obtained actual physical possession, but also 62 Kanals and 13 marlas on which he had been granted symbolical possession in the execution proceedings in 1963.
After the filing of the suit for partition, the appellants filed an objection petition under Sections 47/152/151 of the code of Civil Procedure Praying that necessary correction may be made in revenue record by restitution of excessive area wrongly delivered to the decree holder.
The respondent decree holder contested the above application.
Apart from the other objections, one the ground raised was that the objection petition was barred by limitation as the same was not filed within three years of the order dated 13.6.1963 under which the symbolical possession was given to the decree holder.
The Learned Sub Judge First Class, Karnal held that the limitation will only start to run when the respondent decree holder tried to interfere in the possession of the petitioners by filing the partition proceedings in the year 1973.
It was also held that the decree holder had already obtained possession of the area measuring 135 Kanals to which he was entitled under the decree and he was not entitled to retain the possession of the excessive area of 62 Kanals, 13 marlas of which only symbolical possession was given to him.
It was thus, held that the possession of the land measuring 62 Kanals, 13 marlas of which symbolical possession was obtained was to be restored in favour of the objector judgment debtor.
Aggrieved against the aforesaid order, the decree holder filed a revision before the High Court.
Learned Single Judge allowed the revision on the ground that the limitation in case of such applications is three years and as the symbolical possession had been delivered on June 13,1963, the present application filed on July 22,1973 was barred by time.
The High Court further held that actual possession of the land was never delivered by the Executing Court and it was only symbolical possession which was delivered.
Thus, for the purpose of restitution, if at all, there was a necessity to move the application, the same could be done within three years from the date of the delivery of the symbolical possession.
The High Court, as such allowed the revision and set aside the order of the Executing Court and dismissed the application filed by the judgment debtor.
3 We have heard Learned Counsel for the parties and have gone through the record.
It is not in dispute that Article 137 of the shall govern the present case.
Article 137 reads as under: table ====== "137.
Any other application for which Three years.
When the no period of limitation is provided right to apply elsewhere in this Division.
accrues.
" table ===== The period of limitation under Article 137 is three years which commences from the date when the right to apply accrues.
The question when such right to apply accrues will depend on the facts and circumstances of each case.
In the present case in execution of the decree for pre emption on 13.6.1963, the delivery of symbolical possession on an area measuring 62 Kanals, 13 marlas was wrongly recorded.
Ladha Singh, father of the appellants continued to remain in possession over the aforesaid land and he also filed declaratory suit challenging the recording of the delivery of symbolical possession in favour of the decree holder.
The Said declaratory suit was decreed in favour of Ladha Singh by the trial court and was affirmed by the Additional District Judge by order dated 12.5.1969.
No in actual possession of the land.
The decree holder now in 1973 filed suit for partition claiming land on the basis of order dated 13.6.1963.
The appellants as such submitted an objection petition under Sections appellants as such submitted an objection petition under Sections 47/152/151 of the Code of Civil Procedure in the Executing Court on 22.71973 for rectifying the mistake and for restitution of the land for which symbolical possession was wrongly recorded.
In the aforesaid admitted facts, we are of the view that the period of limitation under Article 137 would commence when actual threat of dispossession commenced i.e. on taking the proceedings for partition in the 1973.
The High Court in our view was not right in holding that the limitation in the facts and circumstances of the present case would commence from 13.6.1963 and not in 1973.
Even otherwise, it is a case where by mistake excess land beyond the terms of the decree was recorded by way of symbolical possession in favour of the Decree holder even in written arguments submitted before this court.
This error has been rightly corrected by the Executing Court on an objection petition filed under Section 47 of the Code of Civil Procedure read with Section 151.
Apart from that the judgment in the declaratory suit filed by Ladha singh in this regard has also become final and binding on the decree holder.
We, therefore, do not consider it proper in the interest of justice to prolong this litigation by remanding the matter to the High Court as prayed in the alternative on behalf of the respondents.
We find support in the view taken by us on the decision of this Court in Merla Ramanna vs Nallaparaju and others, , in which it was held that an application by a party to the suit to recover possession of properties which had been taken delivery of under a void execution sale would be in time under Article 181 (corresponding Article 137 of the ), if it was filed within three years of dispossession.
In the result, we allow this appeal, set aside the judgment of the High Court dated 28.9.1978 and restore the judgment of the Executing Court dated 19.2.1977.
No order as to costs in the facts and circumstances of the case.

summary/full:
In execution of decree for pre emption obtained by the respondent he was delivered actual possession as well as symbolic possession of lands.
According to the decree, the respondent was only entitle to actual possession, and so far as the delivery of symbolic possession was concerned, it was beyond the terms of the decree.
The father of the appellants having come to know about the aforesaid mistake, filed a suit for declaration and for permanent injunction in the year 1965, which was decreed in his favour, and the said declaratory decree was affirmed in appeal by the Additional District Judge on 12.5.1969, but the relief of injunction was denied as he was in actual possession of the portion over which symbolic possession was recorded in execution proceedings.
This order became final.
The respondent in the appeal filed a suit for partition in the year 1973 claiming not only the lands in which he had obtained actual physical possession, but also the lands on which he was granted symbolic possession in the execution proceedings in 1963.
After the filing of the suit for partition, the appellants filed an objection petition under sections 47,151 and 152 of the Code of Civil Procedure praying that necessary correction may be made in revenue record by restitution of excessive area wrongly delivered to the decree holder.
The respondent decree holder contested the application and one of the ground raised was that the objection petition was barred by limitation as the same was that the objection petition was barred by limitation as the same was not filed within three years of the order dated 13.6.1963, under which symbolic possession was given to the decree holder.
The Sub Judge held that the limitation will only start to run when the respondent decree holder tried to interfere in the possession of the petitioners by filing the partition proceedings in the year 1973.
It was also held that the decree holder had already obtained possession of the land to which he was entitled under the decree and he was not entitled to retain the possession of the excessive area of which only symbolic possession was given to him.
Aggrieved by the aforesaid order, the decree holder filed a revision before the High Court, and a Single Judge allowed the revision on the ground that the limitation in case of such applications was three years, and the symbolic possession having been delivered on June 13,1963, the application filed on July 22,1973 was barred by time.
It was further held, that actual possession of the land was never delivered by the Executing Court and it was only symbolical possession which was delivered, and for the purpose of restitution, if at all, there was a necessity to move the application, the same could be done within three years from the date of the delivery of the symbolical possession.
The order of the Executing Court was accordingly set aside, and the application filed by the judgment debtor was dismissed.
In the appeal to this Court, on the question regarding the date from which the period of limitation shall commence under Article 137 of the .
Allowing the appeal, this Court, HELD : The period of limitation under Article 137 is three years which commences from the date when the right to apply accrues.
The question when such right to apply accrues will depend on the facts and circumstances of each case.
[17 E] In the instant case, in execution of the decree for pre emption on 13.6.1963 the delivery of symbolic possession on an area measuring 62 canals, 13 marlas was wrongly recorded.
The father of the appellants continued to remain in possession over the aforesaid land and he also filed a declaratory suit challenging the recording of the delivery of symbolical possession in favour of the decree holder.
The suit was decreed in his favour by the trial court and confirmed by the Additional District Judge by order dated 12.5.1969.
In 1973 the decree holder filed the suit for partition claiming the land on the basis of order dated 13.6.1963.
An objection petition was submitted by the appellants in the Executing Court on 22.7.1973 of rectifying the mistake and for restitution of the land for which symbolical possession was wrongly recorded.
The period of limitation under Article 137 would therefore commence when actual threat of dispossession commenced i.e. on taking the proceedings for partition in the year 1973.
[17 F H, 18 A] The High Court was not right in holding that the limitation would commence from 13.6.1963 and not in 1973.[18 B] This is a case where by mistake excess land beyond the terms of the decree was recorded by way of symbolical possession in execution proceedings.
This fact is not disputed by the decree holder.
This error has been rightly corrected by the Executing Court on an objection petition filed under section 147 of the Code of Civil Procedure read with section 151.
The judgment in the declaratory suit has also become final and binding on the decree holder.
It is not considered proper in the interest of justice to prolong this litigation by remanding the matter to the High Court.
The judgment of the High Court dated 28.9.1978 is therefore set aside and the judgment of the Executing Court dated 19.2.1977 is restored.
[18 C D F] Merla Ramanna vs Nallaparaju and Others,[1995] 2 S.C.R. 938, relied on.


judgement:
Civil Appeal Nos.4255 57 of 1992.
From the Judgment and order dated 15.10.1991,28.11.1991 and 17.12.1991 of Madhya Pradesh Administrative Tribunal, Jabalpur in O.A.Nos.
140 of 1990 and 3024 of 1991 and T.A. No.35 of 1988.
U.N. Bachawat, B.S. Banthia, G. Prakash, L.C. Agrawala, K.K. Chagotra and Indra Makwana for the Appellants.
S.S. Ray, A. Raghuvir, A.K. Sen. Dr. N.M. Ghatate, S.K. Gambhir, Vivek Gambhir, S.K. Jain, A.P. Dhamija, R.B. Misra, N.D.B. Raju, Anand Prasad, S.V. Deshpande and S.K. Agnihotri for the Respondents.
The Judgments of the Court was delivered by KASLIWAL, J. Special leave granted in all the above cases.
All the above appeals are disposed of by a common order, as identical questions of law are involved in these cases.
For the purpose of understanding the controversy raised in all these cases, we are stating the facts of appeal arising out of special leave petition No. 2507 of 1992.
The appellants and the private respondents were Sub Engineers in Public Health Engineering Department of Government of Madhya Pradesh.
They are governed by Madhya Pradesh Public Health Engineering (Gazetted) Service Rules 1980 (hereinafter referred to as `the Rules ').
Under Schedule IV of the Rules, the next higher post for promotion from the post of Sub Engineers in Civil or Mechanical is the post of Assistant Engineers.
The minimum period for Sub Engineer to qualify for promotion to the post of Assistant Engineer is 12 years for diploma holders and 8 years for such Sub Engineers who obtain degree of graduation in the course of service.
Earlier 60 per cent quota for the posts of Assistant Engineers was fixed by direct recruitment and 40 percent by promotion from the Sub Engineers, Draftsman and Head Draftsman.
By and executive order dated 7.2.1989, quota of direct recruitment was reduced to 50 percent and the quota by promotion increased to 50 per cent.
This 50 per cent quota by promotion with which we are concerned in the above cases has been sub divided in the following manner: (i) Diploma holder Sub Engineers completing 12 years of service 35% (ii) Draftsman & Head Draftsman completing 12 years of service 5% (iii) Graduate Sub Engineers completing 8 years of service 10% In the above cases we are now concerned with the third category of cases which deal with the promotion of Graduate Sub Engineers Completing 8 years of service.
The State Government had been applying the principle of counting the seniority of Graduate Sub Engineers from the date of their continuous officiation irrespective of the date on which such diploma holder Sub Engineer acquired degree of graduation in engineering.
On this basis, the Departmental promotion Committee took into consideration 30 Graduate Sub Engineers for promotion to the post of Assistant Engineers.
The D.P.C. by order dated 4.12.1989 prepared a panel of 18 Graduate Sub Engineers found suitable for promotion to the post of Assistant Engineer.
The Government by order dated 6.12.1989 promoted M.B. Joshi and six others as Assistant Engineer who are appellants in appeal arising out of special leave petition No. 2507 of 1992.
The private respondents in this appeal filed application No. 140/90 in Madhya Pradesh Administrative Tribunal, Jabalpur challenging the aforesaid orders dated 4.12.1989 and 6.12.1989.
The contention of these persons before the Tribunal was that the seniority for the purpose of promotion to the post of Assistant Engineers in 10 per cent quota of Graduate Sub Engineers completing 8 years of service ought to have been considered from the date of attaining the Graduate degree of engineering and not from the date of appointment as sub Engineer.
The Tribunal placing reliance on its earlier decision in T.A. No. 771/88 Sanaulla Sunzani vs State of M.P. & 5 others, held that the seniority of diploma holder Sub Engineers acquiring the degrees of graduation in engineering for inclusion in the gradation list of Sub Engineers should be counted from the dates of acquisition of graduation in engineering or of any other equivalent degree and not from the dates of their initial entries as Sub Engineers.
Applying to aforesaid principle laid down in Sanaulla 's case, the Tribunal held that the applicants (private respondents in the appeal) having secured the degrees in engineering prior to respondents 3 to 9 (the appellants in the appeal) will rank higher in the gradation list of Graduate Sub Engineers.
The Tribunal as such allowed the petition filed before them and directed the State Government and Engineer in Chief, Public Health Engineering Department to convene a special D.P.C. to consider applicants for promotion to the post of Assistant Engineers as on 4.12.1989 and if found suitable for promotion, promote them and give them seniority over respondents 3 to 9 within 4 months of the date of receipt of the order.
The short controversy arising in these cases relates to the determination of seniority amongst the diploma holder Sub Engineers who acquired the degree of graduation in engineering during the period service qualifying them for promotion in 8 years to the post of Assistant Engineer.
It is an admitted position that there is no specific rule governing such situation.
Relevant extracts of Schedule IV of the Rules as published in the Madhya Pradesh Gazette dated 27.2.1981 issued in Hindi read as under: Mr. S.S. Ray, learned senior counsel appearing on behalf of the appellants contended that so far as the post of Sub Engineers is concerned, the minimum qualification prescribed is diploma holder.
Initially, in the Public Health Engineering Department till 1980, fresh degree holders used to get job directly as Assistant Engineers and the diploma holders used to be appointed as Sub Engineers.
Thereafter on account of unemployment, the degree holders also started seeking appointments as Sub Engineers.
However, so far as the post of sub Engineer was concerned, the seniority was determined on the basis of the date of appointment on the post of Sub Engineer irrespective of the fact that the person joining such post was a degree holder or a diploma holder.
The scale of pay was similar and the diploma holder and degree holder Sub Engineers stood on the same footing and their gradation list was prepared on the basis of length of service in the cadre of Sub Engineers.
The next higher post for promotion from the post of Sub Engineer is the post of Assistant Engineer.
Every diploma holder sub Engineer became eligible for promotion to the post of Assistant Engineer after having completed 12 years of service.
The Government however, considered it proper to reduce this period of 12 years to 8 years in case of such diploma holder Sub Engineers who obtained a degree of engineering during the continuance of their service as Sub Engineer as a sort of incentive to improve the qualification while continuing in service.
It was thus, submitted by Mr. Ray that it is a well settled principle of service jurisprudence that where the rules are silent, the seniority is always determined on the basis of length of service amongst the employees appointed on a similar post in the same cadre.
It was thus, submitted that obtaining a degree during the continuation of service as Sub Engineer simply accelerated the entitlement to promotion for the post of Assistant Engineer from 12 years to 8 years but it did not in any manner disturb the seniority which was already settled on the basis of length of service on the post of Sub Engineer.
It was submitted that the D.P.C. rightly prepared the panel of selection and the Government took a correct decision in issuing the order dated 6.12.1989.
Mr. Ashok Sen, learned senior counsel appearing on behalf of the respondents contended that it was necessary to obtain the degree of engineering for being qualified for promotion to the post of Assistant Engineer within a period of 8 years instead of 12 years.
It was further argued that the period of 8 years can only be counted from the date when the diploma holder Sub Engineer acquired the degree of engineering and not prior to said date.
Mr. Sen further placed reliance on N. Suresh Nathan & Another vs Union of India & Others, [1992] Supp.1 SCC 584, and submitted that this case clinches the issue raised in these cases and is no longer open for consideration.
We have given our careful consideration to the arguments advanced on behalf of learned counsel for the parties.
We may first deal with N. Suresh Nathan 's case (supra) on which strong reliance is placed by Mr. Ashok Sen.
In this case, the Recruitment Rules for the post of Assistant Engineer in the Public Works Department, Pondicherry, prescribing the educational and other qualifications for appointment by direct recruitment and promotion came for consideration.
For direct recuits, the qualification prescribed was a Degree in Civil Engineering of a recognised University or Diploma in Civil Engineering from a recognised institution with three years, professional experience.
For appointment by promotion of Section Officers now called junior Engineers, the qualification prescribed was as under: "1.
Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years ' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years ' service in the grade 50 percent.
Section Officers possessing a recognised Diploma in Civil Engineering with six years ' service in the grade 50 per cent.
" The dispute in the above case was whether a diploma holder Junior Engineer who obtains a degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of three Years ' service including therein the period of service prior to obtaining the degree or the three years ' service including therein the period of service prior to obtaining the degree or the three years ' service as a degree holder for this purpose is to be reckoned from the date he obtains the degree.
The Central Administrative Tribunal held that the applicants diploma holders were entitled to be considered for promotion to the post of Assistant Engineer on par with the other degree holder Junior Engineers taking due note of their total length other degree holder junior Engineers taking due note of their total length of service rendered in the grade of Junior Engineers taking due note of their total length of service rendered in the grade of grade of junior of Junior Engineer.
Such a consideration should be alongside other Junior Engineers who might have acquired the necessary degree qualification earlier than the applicants, while holding the post of Junior Engineer.
This Court allowed the appeal and set aside the above order of the Tribunal.
While allowing the appeal, this Court held as under: "In our opinion, this appeal has to be allowed.
There is sufficient material including the admission of respondents diploma holders that the practice followed in the department for a long time was that in the case of diploma holder Junior Engineers who obtained the degree during service, the period of three years ' service in the grade for eligibility for promotion as degree holders commenced from the date of obtaining the degree and the earlier period of service as diploma holders was not counted for this purpose.
This earlier practice was clearly admitted by the respondents diploma holders in para 5 of their application made to the Tribunal at page 115 of the paper book.
This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6, 1968 extracted at pages 99 100 of the paper book in the counter affidavit of respondents 1 to 3.
The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it.
If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate.
It is in this perspective that the question raised has to be determined." This Court then considered the Recruitment Rules applicable in the said case and then held that the entire scheme did indicate that the period of three years ' service in the grade required for degree holders according to Rule 11 as the qualification for promotion in that category must mean three years ' service in the grade as a degree holder, and therefore, that period of three years can commence only from the date of obtaining the degree and not earlier.
It was further held that the service in the grade as a diploma holder prior to obtaining the degree cannot be counted as service in the grade with a degree for the purpose of three years ' service as a degree holder.
This Court then observed: "In our opinion, the contention of the appellants degree holders that the rules must be construed to mean that the three years ' service in the grade of a degree holder for the purpose of Rule 11 is three years from the date of obtaining the degree is quite tenable and commends to us being in conformity with the past practice followed consistently.
It has also been so understood by all concerned till the raising of the present controversy recently by the respondents.
The Tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the department." A perusal of the above observations made by this Court clearly show that the respondents diploma holders in that case had admitted the practice followed in that department for a long time.
It was clearly laid down in the above case that if the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate.
It was clearly said "it is in this perspective that the question raised has to be determined.
" It was also observed as already quoted above that the Tribunal was not justified in taking the contrary view and unsettling the settled practice in the department.
That apart the scheme of the rules in N. Suresh Nathan 's case was entirely different from the scheme of the Rules before us.
The rule in that case prescribed for appointment by promotion of Section Officers/Junior Engineers provided that 50 per cent quota shall be from Section Officers possessing a recognised degree in Civil Engineering or equivalent with three years ' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years ' service in the grade.
The aforesaid rule itself provided in explicit terms that Section Officers possessing a recognised Degree in Civil Engineering was made equivalent with three years ' service in the grade.
Thus, in the scheme of such rules the period of three years ' service was rightly counted from the date of obtaining such degree.
In the cases in hand before us, the scheme of the rules is entirely different.
In the cases before us 50 per cent of the posts of Assistant Engineers has to be filed by direct recruitment of persons having degree of graduation in engineering.
The remaining 50 per cent of the vacant posts are to be filled by promotion from the lower cadre of sub Engineer and Draftsman.
Out of this 50 per cent, 35 per cent quota is fixed for diploma holders who have completed 12 years of service on the post of sub Engineer, 5 percent quota for Draftsman who have completed 12 years of service and the remaining 10 per cent with which we are concerned has been kept for such Sub Engineers who during the continuation of their service obtained a degree of graduation or equivalent in engineering and in that case the period of service is reduced from 12 from 8 years.
The Rules in our case do not contemplate any equivalence of any period of service with the qualification of acquiring degree of graduation in engineering as was provided in express terms in N. Suresh Nathan 's case making three years service in the grade equivalent to degree in engineering.
In our opinion, in the rules applicable in the cases before us clearly provide that the diploma holders having obtained a degree of engineering while continuing in service as sub Engineers shall be eligible for promotion to the post of Assistant Engineer in 8 years of service and quota of 10 per cent posts has been earmarked for such category.
If we accept the contention of Mr. Ashok sen, it would defeat the very scheme and the purpose of giving incentive of adding educational qualification by diploma holders while continuing in service in case the period of 8 years ' is counted from the date of obtaining graduate degree in engineering.
It may be noted that no such argument was raised even from the side of the respondents before the Tribunal.
If such interpretation as now sought to be advanced by Mr. Ashok Sen, learned senior counsel is accepted, no relief could have been granted to the respondent Satish Kumar Pandey.
We would illustrate the above position on admitted facts that Shri Satish Kumar Pandey had joined as Sub Engineer on 23.8.1980, but had acquired the degree of engineering in May, 1987.
In that situation, Mr. Satish Kumar becomes eligible only in May 1995 and he could not be considered as eligible in December 1989 when these Sub Engineers were considered for promotion as Assistant Engineers.
Even othrwise, if this period of 8 years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in 8 years would for all practical purposes become nugatory and of no benefit.
It is further important to note that in the cases before us, the Government itself has been adopting the practice and making promotion as contended by the appellants and we are upholding such practice.
In N. Suresh Nathan 's case also this Court had upheld the practice followed by the Government.
It is also well settled principle of service jurisprudence that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance.
Though, in the cases of special leave petitions filed by Shri Ram Sharan Gupta & Others vs The State of M.P. & Others and Shri N.N. Asthana & Another vs Shri Harish Kumar Ahuja & Others, the parties belonged to the Irrigation Department of the State of Madhya Pradesh and were governed with different set of rules, but the controversy arising in these cases is amply covered with the view taken by us and determined in the manner indicated above.
In these circumstances mentioned above, we are clearly of the view.
that the Tribunal was wrong in determining the seniority from the date of acquiring degree of engineering and it ought to have been determined on the basis of length of service on the post of Sub Engineer and the State the basis of length of service on the post of Sub Engineer and the State Government was right in doing so and there was no infirmity in the orders passed by the Government.
In the result, we allow these appeals, set aside the orders of the Tribunal dated 15.10.1991, 28.11.1991 and 17.9.1991 and 8upheld the orders passed by the Government in all these cases.
In the facts and circumstances of the case, no order as to costs.
Appeals allowed.

summary/full:
The appellants and the private respondents were Sub Engineers in Public Health Engineering Department of the Government.
The minimum period for Sub Engineer to qualify for promotion to the post of Assistant Engineer was 12 years for diploma holders and 8 years for such Sub Engineers who obtained the degree of graduation in the course of service.
By an executive order dated 7.2.1989, quota of direct recruitment was reduced to 50 per cent and the quota by promotion from the Sub Engineers, Draftsman, increased to 50 per cent.
The 50 per cent quota by promotion was sub divided.
The promotion quota for category of the Graduate Sub Engineers completing 8 years of service was 10%.
The principle of counting the seniority was from the date of their continuous officiation irrespective of the date on which such diploma holder Sub Engineer acquired degree of graduation in engineering.
The Departmental Promotion Committee considered the cases of 30 Graduate Sub Engineers for promotion to the post of Assistant Engineers and by order dated 4.12.1989 it prepared a panel of 18 Graduate Sub Engineers found suitable for promotion to the post of Assistant Engineer.
On 6.12.1989 the Government promoted one M.B.Joshi and six others as Assistant Engineer, who are appellants in appeal arising out of Special Leave Petition No.2507 of 1992.
The Private respondents in the appeal, filed and application in the State Administrative Tribunal challenging the orders dated 4.12.1989 and 6.12.1989.
They contended that the seniority for the purpose of promotion to the post of Assistant Engineers in 10 per cent quota of Graduate Sub Engineers completing 8 years of service ought to have been considered from the date of attaining the graduate degree of engineering and not from the date of attaining the graduate degree of engineering and not from the date of appointment as Sub Engineer.
The Tribunal allowed the petition placing reliance on its earlier decision in Sanaulla Sunzani V. State of M.P. & Ors., T.A. No. 771/88.
The Tribunal held that the applicants (private respondents in the appeal) having secured the degrees in engineering prior to respondents 3 to 9 ( the appellants in the appeal) would rank higher in the graduation list of Graduate Sub Engineers.
It directed the State Government and Engineer in Chief, Public Health Engineering Department to convene a special D.P.C. to consider the applicants for promotion to the post of Assistant Engineers as on 4.12.1989 and if found suitable for promotion, promote them and give them seniority over respondents 3 to 9.
Identical questions of law were involved in all the appeals (C.A. Nos. 4255 57 of 1992), which were preferred against the judgments of the Tribunals.
The appellants contended that so far as the post of Sub Engineers was concerned, the minimum qualification prescribed was diploma holder and the seniority was determined on the basis of the date of appointment on the post of Sub Engineer irrespective of the fact that the person joining such post was a degree holder or a diploma holder; that the scale of pay was similar and the diploma holder and degree holder Sub Engineers stood on the same footing and their gradation list was prepared on the basis of length of service in the cadre of Sub Engineers that in the service jurisprudence where the rules were silent, the seniority was always determined on the basis of length of service amongst the employees appointed on a similar post in the same cadre; that obtaining a degree during the continuation of service as Sub Engineer simply accelerated the entitlement to promotion for the post of Assistant Engineer from 12 years to 8 years but it did not in any manner disturb the seniority which was already settled on the basis of length of service on the post of Sub Engineer; and that the D.P.C. rightly prepared the panel of selection and the Government took a correct decision in issuing the order dated 6.12.1989.
2 The respondents contended that it was necessary to obtain the degree of engineering for being qualified for promotion to the post of Assistant Engineer within a period of 8 years instead of 12 years; that the period of 8 years to be counted from the date when the diploma holder Sub Engineer acquired the degree of engineering and not prior to said date.
Allowing the appeals, this Court, HELD: 1.1.
It is a well settle principle of service jurisprudence that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance.[12 B] 1.2.
The Government itself has been adopting the practice and making promotion as contended by the appellants.
Such practice is upheld by the Court.
[12 A] 1.3.
The Rules do not contemplate any equivalence of any period of service with the qualification of acquiring degree of graduation in engineering.
The Rules clearly provide that the diploma holders having obtained a degree of engineering while continuing in service as Sub Engineer shall be eligible for promotion to the post of Assistant Engineer in 8 years of service and quota of 10 per cent posts has been earmarked for such category of persons.
[11 C D] 1.4.
If the period of 8 years is counted from the date of acquiring degree then this incentive of adding the qualification during the continuation of service and getting the advantage of acceleration in promotion in 8 years would for all practical purposes become nugatory and of no benefit.
[11 G H] 1.5.
The Tribunal was wrong in determining the seniority from the date of acquiring degree of engineering and it ought to have been determined on the basis of length of service on the post of Sub Engineer and the State Government was right in doing so and there was no infirmity in the orders passed by the Government.
[12 D E] N. Suresh Nathan & Anr.
vs Union of India & Ors., [1992] Supp.1 SCC 584, explained.


judgement:
ivil Appeal Nos. 2684 90 of 1982 etc.
From the Judgment and order dated 23.12.1981 of the Madras High court in Tax Cases (Revision) Nos.206 210, 586 and 825 of 1979.
M.L. Verma, G.L. Sanghi, S.K. Verma, Manoj Prasad, Ms. Minoti Mukherji, A.K. Srivastava, R. Mohan, T. Raja, R. Nedumaran and K. Ram Kumar for the appearing parties.
The Judgment of the court was delivered by RANGANATHAN, J.
By its judgment dated 23.12.1981, report as Ramco cement Distribution Co.(p) Ltd. vs The State of Tamil Nadu, (1982) 51 S.T.C. 171, The Madras High Court disposed of a batch of 48 sales tax revision cases arising out of the assessments, to local sales Tax(T.N.S.T) as well as Central sales Tax (C.S.T), of Ramco Cement Distribution Co. (p) Ltd. (16 cases).
Madras Cements Ltd. (8 cases), Dalmia Cement Bharat Ltd. (21 cases) and India cement Ltd. (3 cases).
The question at issue were answered partly in favour of Revenue and partly in favour of the assessees.
C.A. Nos. 5306 5336/1985 preferred by the state of Tamil Nadu arise out of 31 of these cases; 9 relating to Ramco Cements, 16 relating to Dalmia cements and 6 relating to Madras Cements.
C.A. No. 2684 to 2690/82 are appeals by Ramco Cements and C.A. No. 4043 4044/1982 are by Madras cements from the same judgment.
C.A. Nos. 315 319/1983 arise out of the other 5 cases relating to Dalmia Cements.
C.A. Nos 280 281/1989 arise out of a judgment of the High Court dated 17.1.1985 which dismissed two revision tax cases pertaining to Dalmia Cements.
One of the question involved in these cases was decided in favour in of the assessee by following the decision in 51 S.T.C. 171.
As the question involved are common, all these appeals are being disposed of by a common judgment.
In doing so, we shall refer to the fact in the appeals pertaining to Ramco Cements.
It is common ground that the facts in other cases are similar and that the decision reached in the case of Ramco Cements will govern the other appeals as well.
Ramco Cement Distribution Co. Ltd. (hereinafter referred to as 'the assessee ') are the selling agents of M/s. Madras Cements Ltd., Rajapalayam, For the assessment year 1969 70 , they were assessed to sales tax on a taxable turn over of Rs. 2,37,66,245 which included an amount of Rs. 29,71,527, representing freight charges.
The assessee claimed exclusion of freight charges in computing the taxable turnover on the ground that freight had been independently charged in the invoice.
It relied on the decision of the supreme court in the case of Hyderabad Asbestos Cements products Ltd. vs state of Andhra Pradesh, (1969) 24 S.T.C. 487.
This contention was rejected by the assessing authority, the appellate authority as well as the Tribunal.
Aggrieved by the above orders the assessee preferred revisions to the High court were enunciated as follows at the commencement of its judgment: (i) Whether the freight charges incurred by a dealer in the despatch of cement to the place of the customer could be deducted from the total turnover of the dealer under the Central sales Tax Act, (ii) Whether the packing charges being the cost of the packing materials used by the dealer in packing cements for being delivered to his customers could be properly excluded from his turnover for the assessment of sales tax; (iii) Whether the excise duty paid on packing materials used by a dealer for packing cement to be sold to his customers can be excluded in his total turnover.
These questions were answered by the High Court as follows: "In tax revision cases arising under the Central sales Tax act, we hold that the freight, packing charges and excise duty on packing materials have to be included in the sale price for the computation of sales tax.
In cases arising under the Tamil Nadu General Sales Tax Act and Tamil Nadu Additional Sales Tax Act, we hold that freight, packing changes and excise duty on packing materials are not liable to be included in the sale price for the computation of the sale price.
The assessees are not liable to pay additional sales tax on freight, packing materials and excise duty on packing materials in those cases arising under the Tamil Nadu Additional sales Tax Act.
" The High court certified the case to be one fit for appeal the Supreme Court and hence these appeals.
Both the asseesses as well as the state urges that, the High court having held that the amounts in question were liable to be included in the turnover for purpose of Central sales Tax, ought to have also held that these amounts were liable to be included in the taxable turnover for purposes of Tamil Nadu Additional sales Tax Act.
On the other hand, on behalf of the assessees it is contended that, even for the purposes of C.S.T., the freight charges, the cost of packing materials and excise duty on the packing materials should have been excluded in the computation of the taxable turnover.
It is thus there are cross appeals before us.
We have heard learned counsel on both sides.
In our opinion, so far as C.S.T is concerned, the issue in the present case is July and directly covered by the decision of this court in Hindustan Sugar mills Limited vs State of Rajasthan, (1979) 43 S.T.C.13.
AS stated earlier, the assessee relied strongly on the decision of this court in Hyderabad Asbestos cement Products Ltd. vs state of Andhra Pradesh, (1969) 24 S.T.C. 487 but this decision has been considered and explained in the Hindustan sugar Mills case.
We do not wish to state the facts or discuss the issues at great length since, in our opinion, they are all facts and issue at great length sine, in our opinion, they are all facts and issues that were under consideration by this Court in Hindustan Sugar Mills Ltd. Learned counsel for the assessee contended that the Cement Control order, the terms of which sales of cement were effected during the relevant period by all cement manufactures, had no relevance to the question presently at issue.
According to them all that the Cement Control order laid down was that cement could not be sold at a price higher than a price fixed by the Cement Control order on terms described "as free on rail (F.O.R.), destination" It did not stand in the way of cement manufacturers with various purchasers that the letter should bear the freight charges.
In view of this, it was submitted that the terms of the cement control order do not alter the principal enunciated by this court in the Hyderabad Asbestos Cement products case.
It was then urged that, in fact, the assessees had entered into contracts with the purchasers which clearly stipulated that the freight will be payable by the letter.
The following terms and conditions of sale were cited before us as an instance of the type of contracts entered into by the assessees: " Condition 2 : Once the consignment is handed over to the carriers and a receipt is obtained, the responsibility of the company ceases.
The company does not accept any liability for any delay, shortage, damage or loss of goods in transit.
Claims should be lodged with the carriers by buyers directly.
Condition 3 : The consignees shall arrange to take delivery against indemnity bond, should the railway receipt or bill of lading not reach them in time.
The company is not liable in any manner whatsoever and is also not responsible for any demurrage or damages that may accrue due to non receipt or late receipt of railway receipt or bill of lading by the consignees.
Condition 4 : Prices shall be charged as ruling on the date of despatch of the goods and the company shall not be responsible for any variation in prices.
The price of the cement supplied to the buyers shall be the current general gross list price charged by the company, free on rail less such discount as may be fixed by the company from time to time.
But the terms and the times of delivery and the payments therefore shall be in the absolute discretion of the company who may vary the same from time to time.
Each despatch shall be a separate contract.
Condition 10 : The condition of any railway receipt shall be binding on the buyer and the date of delivery shall mean the date of the railway receipt and in the case of consignments sold free on rail destination, the railway freight shall be nevertheless payable by the buyers at the destinations.
Condition 11 : The buyer shall further be responsible for any additional freight, should transport by expensive route be undertaken or should the quantity despatched be less than a wagon load.
Condition 12 : In the case of road deliveries, freight will be allowed upto the nearest rail head to the destination or actual transport charges whichever is less or according to the instruction of the control authorities from time to time.
Condition 13 : The buyer shall put up his claim with the Railways direct whenever amounts are collected in excess of the freight indicated in the Railway receipt.
The company will allow freight only at the scheduled wagon load rate basing themselves on these terms and conditions, learned counsel for the assessee contended that this was a case where, despite the terms of the control order, the assessees chose to sell the goods free on rail and that the liability to pay point where the goods were loaded on rail and that the liability to pay freight was entirely that of the purchasers.
It was contended that these contracts were not inconsistent with or repugnant to the terms of the Cement Control Order and that on the same basis as the decision of this court in the Hyderabad Asbestos Cement products Ltd. case, the assesses are entitled to exclude the amounts of freight as not forming the part of the turn over at all.
Interesting as these arguments are, we find that they are merely a repetition of what was urged in the case of Hindustan Sugar Mills Ltd. In that case also the point urged was that the Cement Control order only fixes the maximum price and that there was nothing to prevent the producer opted to sell his cement at price lower than the control price and allow credit to the purchaser where the smaller amount by deducting the freight, the sale price can only be the smaller amount of the bill.
The second argument, based in the terms of the contract between the parties, was also addressed in the Hindustan Sugar Mills case.
There also clauses 5,8 and 11 of the general terms and condition of supply were strongly relied upon on behalf of the assessee.
Under those terms and conditions, it was specifically mentioned that although the price of cement was on the basis of F.O.R. destination railway station, consignments would nevertheless be despatched 'freight to pay ' and credit afforded in the bill for the amount of freight payable and that the purchaser should accordingly arrange to pay railway freight or road transport charges at the destination at the time of taking delivery.
This Court, after referring to the above contention, pointed out that, if the terms and conditions of the contract had stood alone, the assessee might have been entitled to succeed in excluding the freight charges on the principle of Hyderabad asbestos cement Products Ltd. case but that relief could not be given to the assessee in view of the scheme and provisions of the cements control order and their implications.
The terms of the Cement control order have been fully analysed and discussed at pages 33 to 35 of the report.
There is, therefore no difference either on facts or in principal between this case and the Hindustan Sugar Mills Ltd. case.
on the other hand, as pointed out by the learned Judges in that case, the whole purpose of the cement control order was do not find any reason to doubt or dissent from the decision in the Hindustan Sugar Mills Ltd. case.
On the other hand, as pointed out by the learned Judges in that case, the whole purpose of the Cement Control order was cement should be available for sale at all places in the country at a controlled price.
No doubt, the price was described as a maximum beyond which the sale price could not go but the intention, which was also carried out by all the suppliers, was that cement was to be sold at what may be described as a controlled price on terms 'free on rail destination '.
In other words, the producer was entitled to the controlled price irrespective of the amount of freight which might have been incurred in respect of the transaction.
Having regard to the fact that the freight on consignments to places near the factory and consignments to places to places far away from the factories could show a lot of variation, the control order created a machinery by which all freight charges were credited to common account ad any particular cement manufacturer incurring more than a specified amount was entitled to be reimbursed for the excess freight incurred by him.
As the learned Judges pointed out in the earlier decision, the whole control order proceeds on the footing that the freight charges are to be met by the producer and that he was entitled to a cosolidated price irrespective of the freight he may have incurred.
In this view of the matter, the sale price, on the terms of the Central sales Tax Act, could only be the controlled price as fixed by the cement control Order.
We find that the factual position in these cases is also not as described by the learned counsel for the assessee.
The assessee 's arguments in this regard were sought to be highlighted by the production of one of the invoices by which certain goods were despatched by Dalmia cements to Karaikal.
It is interesting to see that this invoice mentions F.O.R. cement price as the controlled price stipulated in the Cement Controlled Order, and this is also what is contemplated by condition 4 set out earlier.
To this is added a central Excise Duty.
Thereafter, the assessee purports to give credit for railway freight and a net price, which is described as net price F.O.R. with a liability on the purchasers to bear the railway freight the invoice need not have contained all the details which it purports to contain including all the above calculations starting with the F.O.R. price at the controlled rate.
In such an event all that the assessee need have done was to invoice the purchasers at the net price F.O.R. Works Siding and despatch the goods under 'freight to pay ' .
It is also interesting to see that the invoice specifically includes a deposit to " cover any levy of sales tax on freight" .
It is clear that the invoice has been drawn up in terms of the control order.
The price charged by the assessee is F.O.R. Central Excise Duty has been added on this footing.
The invoice mentions the amount of railway freight and permits it to be deducted only because the freight will be paid to the Railways by the Purchasers on behalf of the assessee and credit is given therefor in the invoice.
This process is necessary because the amounts of freight for which credit has been given have to be eventually adjusted while settling accounts between the manufacturer of cement and obtaining reimbursement, if any , from the pool account.
The producer will have to satisfy the concerned authorities that, in certain instances, the freight paid is in excess of the freight which a producer can be called upon to pay in terms of para 9 of the Cement Control order.
In our opinion the invoice placed before us only reinforce the factual and legal position outlined by this Court in the Hindustan Sugar Mills Ltd. case in regard to the purpose and effect of the terms of the Cement Control Order.
For the reasons above mentioned, we are of the opinion that the High court was fully justified in applying the decision in Hindustan Sugar Mills Ltd. to the present case and denying the benefit of deduction of freight charges from the controlled price to arrive at the turnover of the assessee for the purpose of the Central sales Tax Act.
Turning now to the appeals filed by the state, the contention, as earlier mentioned, is that the High court should have arrived at the same conclusion on the provisions of the Tamil Nadu General Sales Tax Act and Additional sales Tax Act as it did under the Central Sales Tax Act and that in view of the decision of this Court in the Hindustan Sugar Mills case the relief granted for purpose of the local sales tax is erroneous.
In coming to a different conclusion on the provisions of the local sales Tax Act from that reached in respect of the Central Act, the High Court has relied upon the fact that the local sales tax is charged not on the turnover of the dealer but only on his taxable turnover.
The explanation 'taxable turnover ' has been defined in section 2(p) as follows: "2(p) 'taxable turnover ' means the turnover of which a dealer shall be liable to pay tax as determined after making such deduction from his total turnover and in such manner as may be prescribed .
" The Tamil Nadu General sales Tax Rules, 1959, have prescribed rules for the determination of the taxable turnover.
Rules 6 reads thus: " Rules 6 The tax or taxes under section 3,4 or 5 shall be levied on the taxable turnover of the dealer .
In determining the taxable turnover, the amount specified in the following clause shall, subject to the conditions specified in the following clauses shall, subject to the conditions specified therein, be deducted from the total turnover of a dealer (a) all amounts for goods specified in the Third Schedule to the Act are sold; (b) all amounts for which goos exempted by a Notification under Section 17 are sold or purchased, as the case may be provided that the terms and conditions, if any, for the exemption in the notification are complied with; (c) all amounts falling under the following three heads when specified and charged for by the dealer, separately with out including him in the price of the goods sold (i) freight; (ii)(omitted); (iii) charges for delivery; (cc) all amounts falling under the head charged for packing, that is to say, cost of packing materials and cost of labour.
(i) when charged for by the dealer separately without including such amounts in the price of the goods sold in respect of the goods liable to tax at the hands of the assessee; and (ii) whether or not such amounts are specified and charged for by the dealer separately, in respect of the goods not liable to tax the hands of the assessee".
The High Court has held that since freight is one of the items specified in clause (i) of rule 6(c) and since the assessee have specified and charged for freight separately in their invoices, they ar entitled to the deduction of the freight in the computation of the taxable turnover.
This is the short ground on which the High court has reached, in respect of the local Act, a conclusion different from that reached in respect of the central Act.
We agree with the learned counsel for the state of Tamil Nadu that, in coming to the above conclusion, the High court has over looked the significance of the inclusion of the words "without including them in the price of the goods sold" in clause (c).
These words make it clear it clear that the freight charges are not to be deducted in the computation of the taxable turnover merely because they are specified and charged for separately by the dealer.
A further pre requisite for their deduction is that these charges should not have been included in the price of the goods sold.
This takes us back to the consideration as to whether the price charged for by the assessee includes freight or not, which we have discussed elaborately in respect of the levy of Central sales tax.
once we comp to the conclusion as we have that freight has been included as part of the price sold and that the liability to pay the freight remains with the dealer, though permitted to be set off against the sale price by the purchaser or consumer, it follows that the deduction of the freight as a separate items in the computation of taxable turnover is not permissible.
Rule 6(c) will apply only in cases where the sale price charged does not include the freight charges and the dealer separately collects freight from the consumer without including the same in the sale price.
IN fact this aspect has been made clear in three decisions of this court dealing with similar rules.
In Tungabhadra Industries Ltd. vs Commercial Tax officer, Kurnool, (1960) 11 S.T.C. 827, the dealer claimed deduction of railway freight form the amount of price of the goods sold as stated in the bill on the strength of rule 5(1) (g) of the madras General sales Tax (Turnover and Assessment ) Rules, 1939, which is in precisely the same terms, as rules 6, which is now being considered by us.
The claim was negative by this court.
It observed : "The appellant claimed exemption on a sum of Rs. 3,88, 377 13 3 on the ground that it represented the freight in respect of the ground that it represented the freight in respect of the goods sold by the appellant, asserting that they had been charged for separately.
The assessing officer rejected the claim and this rejection was upheld by the departmental authorities and by the High Court in revision.
It would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold.
The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the appellant.
We consider, the decision of the High Court on this point was correct.
In the specimen bill which the learned counsel for the appellants has placed before us, after setting out the quality sold by weight (23, 760 lb.) the price is specified as 15 annas 9 pies per lb.
and the total amount of the price is determined at Rs. 23,388 12 0.
From this the railway freight of Rs. 1,439 12 0 is deduced and the balance is shown as the sum on which sales tax has been computed.
From the contents of this invoice it would be seen that the appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of rule 5(1) (g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of goods sold.
The conditions of the rule not having been complied with, the appellant was not entitled to the deduction in respect of freight.
" The same conclusion was reached by this Court in Dyer Meakin Breweries Ltd. vs State of Kerala, (1970) 26 S.T.C. 248.
Here, the appellant company which manufactured liquor at various places in U.P. and Haryana, transported the goods from its breweries and distilleries to its place of business in Ernakulam and sold them there.
When selling liquor to the customers the appellant made out separate bills for ex factory price and for "freight and handling charges".
The appellant claimed that the amount charged for "freight and handling charges" incurred by it in transporating the goods from the breweries and distilleries to the warehouse in Kerala were eligible for deduction under rule 9(f) of the Kerala General Sales Tax Rules, 1963, a rule which is in the same terms as rule 6, with which we are now concerned in the present case.
This claim was negatived by this Court.
The Court obvserved: "It is common ground that the sale of the liquor took place in Ernakulam.
The company arranges to transport liquor for sale from the factories to its warehouse t Ernakulam.
It was not brought for any individual customer.
All the expenditure incurred s prior to the sale and was evidently a component of the price for which the goods were sold.
it is true that separate bills were made out for the price of the goods ex factory and for" freight and handling charges".
But, in our judgment, the Tribunal was right in holding that the exemption under clause (f) of rule 9 applied when the freight and charges for packing and delivery are found to be incidental to the sale and when they are specified and charged for by the dealer separately and expenditure in curred for freight and packing and delivery charges prior to the sale and for transporting the goods from the factories to the warehouse of the company is not admissible under rule 9(f) .
Rule 9(f) seeks to exclude only those charges which are incurred by the dealer either expressly or by necessary implication for and no behalf of the purchaser after the sale when the dealer undertakes to transport the goods and to deliver the same or where the expenditure is incurred as an incident of sale.
It is not intended to exclude forms the taxable turnover any component of the price, expenditure incurred by the dealer which he had to incur before sale and to make the goods available to the intending customer at the place of sale.
" In Johar and sons(p) Ltd. vs Tax officer Ernakulam, (1971) 27 S.T.C.120, The same question arose, again in the context of the Kerala General sales Tax Rules, 1963.
The court followed the decision in Dyer Meakin Breweries Ltd. case.
It was pointed out that the decision in Tungabhadra Industries Ltd. had rested on the facts of the case without going into the interpretation of the relevant rule of the Madras General Sales Tax (Turnover and Assessment ) Rules, 1939.
It was, held that the Dyer Meakin decision would apply to the case before the court.
A number of subsequent decisions has also held to a like effect : C.C.T. vs Ashoka Marketing Ltd.,(1973) 32 S.T.C. 411, State of Mysore vs Panyam Cements and Mineral Industries Ltd. (1974) 33 S.T.C. state of Tamil Nadu vs parry and company (1976) 38 S.T.C. 122, state of Tamil Nadu vs Chettinad Cement Corporation Ltd.,(1976) 38 S.T.C. 519 and Premier Breweries Ltd. vs state of Karnataka, (1984) 56 S.T.C. 14 we are, therefore, of the opinion that High court was in error in trying to distinguish the decision in the Hindustan Sugar Mills case and in excluding freight charges from the taxable turnover for the purpose of the Tamil Nadu Act.
The position in regard to packing charges as well as the excise duty on packing charges is also no different.
As pointed out by this court in the Hindustan Sugar Mills case and in Commissioner of sales Tax vs Rai Bharat Das & Bros., [1988] 71 S.T.C. 277 (SC), packing charges from part of "sale price" because the expression " any sum charged for anything done by the dealer in respect of the goods" used in the definition in section 2(h) of the Central sales Tax Act, 1956, squarely covers such charges, as packing is an integral element of the transaction of sale and packing charges are an integral part of the sale price.
Once this is so, it follows that these charges and the excise duty thereon cannot be excluded from the turnover for purpose of the Central sales Tax Act.
Nor will, for the reasons earlier discussed in relation to freight charges, the assessee be in a position to claim a deduction in respect of these charges by virtue of rule 6(cc) of the sales Tax Rules.
In our view, this position has been correctly set out, applying the decision in the case of Rai Bharat Das and Bros., in state of Tamil Nadu vs Vanniaperumal & co., (1990) 76 S.T.C. 203, Dalmia cement (Bharat) Ltd. vs state of Tamil Nadu, (1991) 81 S.T.C. 327 and Dalmia Cement (Bharat) Ltd. vs state of Tamil Nadu, (1991) 83 S.T.C. 442.
we are, therefore, of the opinion that the packing charges and excise duty thereon cannot also be deducted in computing the taxable turnover for the purpose of the Tamil Nadu Acts.
We, therefore, hold (i) That the freight charges could be included in arriving at the taxable turnover for purposes of C.S.T. and T.N.S.T.; and (ii) that packing charges and excise should be included in arriving at the taxable turnover for purposes of both C.S.T. and T.N.S.T.
The appeals by the state of TAmil Nadu are accordingly allowed and the appeals filed by the assessee ar dismissed.
There will, however, be no order regarding costs.
N.P.V. C.A. Nos.2684 90,4043 44/82 315 19/83 dismissed.
C.A. Nos 5306 36/85 and 280 81/89 allowed.

summary/full:
The appellants assessees in the first set of appeals were selling agents of appellants in the second set of appeals.
For the assessment year 1996 70, they were assessed to sales tax on taxable turn over of Rs. 2,37,66,245 which included an amount of Rs. 29,71,527 representing freight charges.
The assessee claimed exclusion of freight charges in computing the taxable turnover on the ground that freight had been independently charged in the invoices.
This was rejected by the assessing authority, the appellate authority as well as Tribunal.
Aggrieved, the assessee preferred revisions to the High court.
The High court held that in cases arising under the Central sales Tax Act, the freight, packing charges and excise duty on packing materials had to be included in the sale price for the computation of sales tax, that in cases arising under the Tamil Nadu General sales Tax Act and Tamil Nadu Additional sales Tax Act, freight, packing charges and excise duty on packing materials were not liable to be included in the sale price for the computation of the sale price, and that the assessees were not liable to pay additional sales tax on freight, packing materials and excise duty on packing materials in the cases arising under the Tamil Nadu Additional sales Tax Act.
Aggrieved, both the as well as well as the state Government filed appeals before this Court.
On behalf of the state it was contended that the High court, having held that the amounts in question were liable to the included in the turnover for purposes of Central sales Tax Act, ought to have also held that these amounts were liable to be included in the taxable turnover for purposes of Tamil Nadu General sales Tax Act and the Tamil Nadu Additional sales Tax Act also, and relief granted for purposes of the local sales tax was erroneous.
On behalf of the assessees, it was contended that, even for the purpose of C.S.T., the freight charges, the cost of packing materials and the excise duty on the packing materials should have been excluded in the computation of the taxable turnover, that the Cement Control order, under the terms of which sales of cement were effected during the relevant period by all cement manufacturers, had no relevance to the question at issue, that all that the cement control order laid down was that Cement could not be sold at a price higher than a price fixed by the cement control order on terms described " as free on rail (F.O.R) , destination ', that the order did not stand in the way of cement manufacturers charging a price less than the ceiling fixed under the order, nor did it preclude individual contracts by the cement manufacturers with various purchasers that the latter should bear the freight charges that the assessees had and that the assessees had entered into contract with the purchasers which clearly stipulated that the freight would be payable by the latter, as per terms and condition of sale, the instant case was one where, despite the terms of the control order, the assessees chose to sell the goos free on rail at the point where the goods were loaded on rail and that the liability to pay freight was entirely that of the purchasers , and that these contracts were not inconsistent with or repugnant to the terms of the cement control order and therefore, the assessees were entitled to exclude the amounts of freight as not forming the part of the turnover at all.
Allowing the appeals of the state and dismissing those of the appellant dealers, this court, HELD: 1.
The freight charges should be included in arriving at the taxable turnover for purposes of Central sales Tax as Tamil Nadu sales Tax Act; and the packing charges and excise duty thereon should also be included in arriving at the tax able turnover or purposes of both central sales Tax and Tamil Nadu sales Tax.
[94 D,E] 2.1 The whole purpose of the cement control order was that cement should be available for sale at all places in the country at a controlled price.
No. doubt, the price was described as a maximum beyond which the sale price could not go but the intention, which was also carried out by all the suppliers, was that cement was to be sold at what may be described as a controlled price on terms 'free ' on rail destination '.
In other words, the producer was entitled to the controlled price irrespective of the amount of freight which might have been incurred in respect of the transaction.
Having regard to the fact that the freight on consignments to places near the factory and consignments places far away from the factories could show a lot of variation the control order created a machinery by which all freight charges were credited to a common account and any particular cement manufacturer incurring more than a specified amount was entitled to the reimbursed for the excess freight incurred by him.
The whole control order proceeds on the footing that the freight charges are to be met by the producer and that he was entitled to a consolidated price irrespective of the freight he may have incurred.
Hence the sale price, on the terms of the Central sales Tax Act, could only be the controlled price as fixed by the Cement control order.
[87 F H; 88 A C] Hindustan Sugar Mills Ltd. vs State of Rajasthan, (1979) 43 S.T.C.13, relied on.
Hyderabad Asbestos Cements products Ltd. vs State of Andhara Pradesh, (1969) 24 S.T.C.487, distinguished.
2.2 The High court was, therefore, fully justified in denying the benefit of deduction of freight charges from the controlled price to arrive at the turnover of the assessee for ter purpose of the central sales Tax Act.
[89 C] 3.1.
In coming to the different conclusion in respect of the local Act, from that reached in respect of the Central Act , viz., that since freight was one of the items specified in clause (i) of Rule 6 (c) of Tamil Nadu General sales Tax Rules, 1959, and since the assessees had specified and charged for freight separately in their invoices, they were entitled to the deduction of the freight in the computation of the taxable turnover, the High court has over looked the significance of the inclusion of the words " without including them in the price of the goods sold" in clause (c) of the Tamil Nadu General Sales Tax Rules.
These words make it clear that the freight charges are not to be deducted in the computation of the taxable turnover merely because they are specified and charged for separately by the dealer.[90 G,H; 91 A] 3.2.
A further pre requisite for their deduction is that these charges should not have been included in the price of the goods sold.
Once it is concluded that freight has been included as part of the price sold and that the liability to pay the freight remains with the dealer, though permitted to be set off against the sale price by the purchaser or consumer, it follows that the deduction of the freight as separate item in the computation of taxable turnover is not permissible.
Rule 6(c) will apply only in cases where the sale price charged does not include the freight charges and the dealer separately collect freight from the consumer without including the same in the sale price.
The High court was, therefore, in error in excluding freight charges from the taxable turnover for the purpose of the Tamil Nadu Act.
[91 A C; 93 F] Tungabhadra Industries Ltd. vs Commercial Tax officer, Kurnool, (1990) 11 S.T.C. 827; Dyer Meakin Breweries Ltd. vs State of Kerala , (1970) 26 S.T.C 248; Johar & sons (p) Ltd. vs sales Tax officer, Ernakulam, (1971) 27 S.T.C.120; C.C.T. V. Ashok Marketing Ltd., (1973) 32 S.T.C.411; State of Mysore vs Panyam cements and Mineral Industries Ltd., (1974)33 S.T.C. 407; State of Tamil Nadu vs Parry and company,(1976) 38 S.T.C.122; State of Tamil Nadu vs Chettinad cement Corporation Ltd., (1976) 38 S.T.C.519 and premier Breweries Ltd. vs state of Karnataka, (1984) 56 S.T.C. 14, relied on.
The position in regard to packing charges as well as the excise duty thereon is also no different.
Packing charges from part of " sale price" because the expression " any sum charged for anything done by the dealer in respect of the goods" used in the definition in Section 2(h) of the central sales Tax Act.
Nor will, the assessee be in a position to claim a deduction in respect of these charges by virtue of Rule 6(c) of the Sales Tax Rules.
Therefore, the packing charges and excise duty thereon cannot also be deducted in computing the taxable turnover for the purpose of the Tamil Nadu Acts.[93 G, H; 94 A C] Hindustan Sugar Mills Ltd. vs State of Rajasthan & ors.
, (1979) 43 S.T.C. 13 and Commissioner of sales Tax vs Rai Bharat Das & Bros.,(1988) 71 S.T.C. 277 (SC), relied on.
State of Tamil Nadu vs Vanniaperumal & Co., (1990) 76 S.T.C.203; Dalmia Cement (Bharat) Ltd. vs State of Tamil Nadu, (1991) 81 S.T.C. 327; Dalmia Cement (Bharat) Ltd. vs State of Tamil Nadu, (1991) 83 S.T.C.442, approved.


judgement:
l Leave petition (c) No. 4748 of 1991.
From the Judgment and Order dated 21.1.91 of the Bombay High Court in W.P. No. 3481 of 1990.
N.B. Shetye, P.M. Pradhan and A.M. khanwilkar for the petitioner.
Dushyant Dave, Beliram Vakil, Abrar Ali, Ajit Yogi, Gajender Lal, Mukul Gupta and Ms. Sonia Khan for the Respondents.
The Judgment of the court was delivered by SAWANT, J.
The petitioner is diploma holder in Engineering and holds the post of Executive Engineer in the respondent Corporation.
Till 1974, the promotion post of the superintending Engineer was available both for diploma holders and degree holders according to merit cum seniority.
This was so according to the practice followed by the Corporation without making any rules or regulation in that behalf.
In 1974, the corporation made regulation by passing a resolution by passing a resolution and continued the same practice.
Admittedly, the regulation were not made under section 64 of the Maharashtra Industrial Development Act, 1961 [hereinafter referred to as the 'Act '] under which the respondent corporation was created.
Thereafter in 1988, the corporation passed a resolution, for the first time,.
making 75 per cent of the posts of superintending engineers available to the executive Engineers holding degrees and 25 per cent to the Executive Engineers who were diploma holders.
This resolution was also admittedly not a regulation made under the said section 64.
But for this resolution, the petitioner who was senior to respondent NO. 2 would have been promoted to the post of Superintending Engineer on 31st October, 1990.
However, since respondent No.2 was a degree holder, he got the said resolution and was promoted to the said post on that date.
It is this promotion which was challenged by the petitioner by a writ petition in the High Court.
The High Court by the impugned judgment dismissed the said petition.
Two contentions were raised before us.
(i) that no classification could be made among the Executive Engineers on the basis of their educational qualification for the purpose of promotion to the post of superintending Engineer, since they belong to the same cadre of Executive Engineers and do the same work.
There was also a common seniority of the Executive Engineers maintained.
hence the classification was discriminatory in nature and violative of Articles 14 and 16 of the Constitution .
(ii) that if at all such a discrimination was permissible, it could be made only be a statutory rule or regulation framed under Section 64 of the said Act.
A mere resolution or an executive instruction could not effect such discrimination.
We find not merit in either of the two contentions.
It is now well settled that for the purpose of promotion, a valid classification can made among the members holding the same post on the basis of their qualification.
In state of Jummu & Kashmir vs Triloki Nath Khosa & Ors., ; , a Constitution Bench of his court has clearly held that such a classification is permissible and does not violate Articles 14 and 16 of the Constitution the Court has observed there that in state of Mysore & Anr.
vs P. Narasing Rao, ; and The Union of India and others vs Dr.(Mrs.) S.B. Kholi; , , it was already held that classification on the basis of educational qualification was permissible.
The Court then referred to Roshan Lal Tandon vs Union of India, ; and distinguished it on the facts by pointing out that it was a case of the direct recruits and promotees integrated into one cadre.
Once they were integrated they lost their birth birth marks, viz. the different sources from which they were recruited.
[Emphasis supplied].
The court pointed out that Roshan Lal 's case [supra] was thus no authority for the proposition that if direct recruits and promotees are integrated into one class they cannot be classified for purposed of promotion on a basis other than that in the case before the them the classified for purpose of promotion on a basis other than that they were drawn from different sources.
The court also pointed out that the very Bench which decided Roshan Lal 's case [supra] held about a fortnight later in Narsingh Rao 's case [supra t] that higher educational qualifications were a relevant consideration for fixing higher pay scale and , therefore, matriculates Tracers could be given a higher scale than non matriculate Tracers thought their duties were identical .
The court, further on the same reasoning distinguished Mervyn Coutindo & Ors.
Collector of Customs Bombay & Ors.,[1966] 3 SCR 600 and S.M. Pandit and others, etc.
vs state of Gujarat and others, AIR 1972 SC 252 by pointing out that both the cases related to the classification made on the basis of the sources of recruitment and not on the basis of educations.
The court then concluded : "We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualification.
The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders does not violate Articles 14 and 16 of the Constitution and must be upheld.
" The reliance placed by Shri Shetye appearing for the petitioner on a later decision of a Bench of two learned judges of this Court in H.C. Sharma and others vs Municipal Corporation of Delhi and others; , 372 is, we are afraid, not justified.
It was a case where no separate quota for promotion to the post of Assistant Engineer was kept for degree holder Junior Engineers and diploma holder Junior Engineers.
The degree holders Junior Engineers had sought a relief that such a quota be kept.
It is while dealing with this relief claimed, that this Court had observed that it could not be don e except by carving out two classes in the same category of junior Engineers.
It may be observed that it was not a case where the classification was already made which was challenged before the Court.
It was case where the writ petitioners wanted such a classification to be made.
It is for the authorities if they so desire, taking into consideration the nature of work, the requisite qualification for the work and the necessity for making such a classification that quotas could be prescribed on the basis of educations.
It is true that the following observation made in that case while dealing with the relief claimed, do support the petitioner: " Prayer No. 4 is to declare the petitioner Graduate Engineers as a separate category amongst Junior Engineers and give them equal quota like the Diploma holder Junior Engineer`s out of the 50% quota for promotion a Assistant Engineers.
This cannot be done except by carving out two classes in the same category of Junior Engineers o the basis merely of their qualification which is not permissible in law though the creation of selection grade in the same category on the basis of merit and on seniority is well known and permissible.
The Junior Engineers do the same kind of work and bear the same responsibility whatever their qualification, whether they are Degree holders or Diploma holders. " However , these observations have been made without noticing the decision in Khosa 's case (supra).
Hence, the observation are per incuriam as regards the next contention, admittedly neither the practice followed till 1988, nor the resolution passed by the respondent Corporation in 1988 nor the resolution passed in accordance with section 64 of the Act.
It is well settled that in the absence of rule or regulation the authority can prescribe service conditions by executive instructions and this is what was done till the year 1988 and is also sought to be done since 1988 by the impugned resolution.
The proposition that in the absence of the rules and regulations, the authority can act by executive instruction finds direct support in Mysore state Road Transport Corporation vs Gopinath Gundachar char, {1968] 1 SCR 767 and vs Balasubramaniam and others vs Tamil Nadu housing Board and others; , In view of the above, the petition stands dismissed.
G.N Petition dismissed.

summary/full:
The petitioner, a diploma holders in Engineering, was Executive Engineer in the respondent Corporation.
He would have been promoted as superintending Engineer, but for a Resolution passed in 1988 making 75% of the posts of Superintending Engineers available to Executive Engineers with diploma in Engineering degrees and 25% to Executive Engineers with diploma in Engineering Respondent No.2 who junior to petitioner but had engineering degree was promoted as superintending Engineer.
The petitioner challenged the promotion of Respondent No. 2 before the High court by way of a writ petition.
The High court having dismissed the same, the petitioner preferred the present special Leave petition.
On behalf of the petitioner, it was contended that since there was a common seniority list of Executive Engineers, any classification on the basis of education qualification was discriminatory and violative of Articles 14 and 16 of the Constitution; and that in the absence of any statutory rule or regulation, a mere resolution could not effect such discrimination.
Dismissing the petition, this court, HELD: 1.1.
It is now well settled that for the purpose of promotion, a valid classification can be made among the members holding the same post on the basis of their qualification.
Such a classification is permissible and does not violate Articles 14 and 16 of the Constitution.
[99 A B] 1.2.
It is for the authorities if they so desire, taking into consideration the nature of work, the requisite qualification for the work, and the necessity for making a classification, to prescribe quotas on the basis of educational qualification.
[99 D] State of Jammu & Kashmir vs Triloki Nath Khosa & ors., [1974]1 SCR 771, followed.
H.C. Sharma & ors.
vs municipal corporation of Delhi & ors.
; , , referred to.
In the instant case, admittedly neither the practice followed till 1988, nor the resolution passed by the respondent Corporation in 1988 was a regulation passed in accordance with section 64 of the Act.
However, it is well settled that in the absence of a rule or regulation, the authority can prescribe service conditions by executive instructions and this is what was done till year 1988 and is also sought to be done since 1988 by the resolution under challenge.
[100 A,B] Mysore state Road Transport Corporation vs Gopinath Gundachar char; , and V. Balasubramaniam and others vs Tamil Nadu Housing Board and others, [1987]4 SCC 738, relied on.