judgement:
view Petition Nos.
557 564 & 571,594/1987.
IN 827 CIVIL MISC.
PETITION NOS.
25279, 13195, 19336, 18600, 1563, 15031 33, 19552, 20695/1986.
IN CIVIL APPEAL NOS.
3005, 1599, 2194, 2067, 158 2148 50, 2902/86, 2533/86,223/88.
G. Ramaswamy Additional Solicitor General, A.K. Ganguli, P.P. Singh, R.P. Srivastava and P. Parmeswaran for the Petitioner.
J. Ramamurthy, B. Parthasarthi, V.J. Francis, C.S Vai dyanathan, S.R. Setia, Harish N. Salve, Ravinder Narain, D .N. Misra, section Padmanabha Mahale, Mrs. Leelawati, K.K. Gupta V. Balachandran and Uma Dutta for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKIIARJI, J.
In these matters, the question that arises for consideration is, whether a learned Single Judge sitting in Chambers is competent to dismiss applica tion for condonation of delay in statutory appeals under Order XX A of the Supreme Court Rules, 1966, regarding appeal under section 55 of the as well as under Order XX B re garding appeals under Section 130 E of the and Section 35 L of the Central Excises & Salt Act, 1944.
It appears that an application for condonation of delay came before a learned Single Judge and in the circumstances mentioned in the Review Petition No. 557 of 1987, the appli cation was dismissed by the learned Single Judge.
That application was dismissed by one of us on 11.1 I. 86.
That order was passed by learned Single Judge under Order VI rule 2(14) of the Supreme Court Rules, 1966.
The application had been filed for the condonation of delay along with the Statutory Appeal against the Judgment/Order of the Customs, Excises and Gold Control Appellate Tribunal.
The revenue being the Collector of Central Excise, Madras in this case filed a review petition on the ground that the application for condonation of delay made in Statutory Appeals arising out of final orders of the Tribunal under several Acts should be heard by a bench of at least two Judges.
The matter was posted before this bench for consideration wheth er the learned Single Judge had jurisdiction to dismiss such application for condonation of delay or not.
In order to decide this question, it is necessary to have a cons 828 pectus of the relevant rules.
In the Supreme Court Rules, 1966 (hereinafter referred to as 'the Rules '), as amended in 1983, under Order XX B, of the said rules, provision has been made for appeals under clause (b) of Section 130 E of the and under Section 35 L of the .
According to Rule 1 thereof, the petition of appeal shall, .subject to the provisions of Sections 4, 5 & 12 of the be presented within 60 days from the date of the order sought to be appealed against or within 60 days from the date on which the order sought to be appealed against is communicated to the Appellate, whichever is later.
The time required for obtaining a copy of the order should be excluded.
There is, however, no provision providing for limitation in the con cerned Statutes.
According to Rule 2 of Order XX B, Rules 1 to 7 of Order XX A of the Rules relating to appeals under Section 51 of the shall with necessary modifications and adaptations, apply to appeals under that Order.
Rule 3 of Order XX A provides as under: "After the appeal is registered, it shall be put up for hearing ex parte before the Court which may either dismiss it summarily or direct issue of notice to all necessary par ties, or may make such orders as the circum stances of the case may require".
According to this provision, it appears that all such statutory appeals have to be placed before a Court for ex parte admission.
According to Section 5 of the : "Any appeal or any application . may be admitted after a prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not prefer ring the appeal or making an application within such a period.
" Some grounds, according to the appellant, had been made for condonation of delay.
Apparently, in the facts of the case, the learned Single Judge did not find any merit in those grounds and refused to condone the delay.
Consequently, it was contended that the effect of the refusal of condonation of delay was dismissal of the appeal following as a result thereof.
The question is, can the learned Single Judge do it9 The 829 learned Single Judge has done it by virtue of Rule 2(14) of Order VI of the said Rules.
Order VI deals with the 'Busi ness in Chambers '.
Order VI, Rule 1 provides that the powers of the Court in relation to the matters enumerated thereun der would be exercised by the Registrar.
Order VI, Rule 2 provides that the powers of the Court in relation to certain matters may be exercised by a single Judge sitting in Cham bers.
Thereafter 28 such matters are enumerated.
Rule 2(14) of Order VI provides as follows: "Applications for enlargement or abridgement of time except where the time is fixed by the Court and except applications for condonation of delay in filing special leave petitions".
Reading the rule simply, it appears to us that it means all applications for the enlargement or abridgement of time would be cognizable by the learned Single Judge in Chambers except, those applications time for which has been fixed by the Court in terms of Order VII and also applications for condonation of delay in filing special leave petitions.
This appears to us to be logical and literal meaning of the said rule.
The question, however, has been posed is this an application for condonation of delay or an application for enlargement or abridgement of time.
This question, it ap pears to us, is concluded by the decision of this Court in Commissioner of Income Tax, Bombay City vs R.H. Pandi Manag ing Trustees of Trust, Bombay; , There a bench of three learned Judges of this Court had occasion to con sider this question.
A question arose there as to whether the application for condonation of delay in filing petition of appeal could be heard by the Judge in his Chambers.
Ray, C.J. observed in the said judgment an argument was advanced before the Hon 'ble Judge in Chambers that if an application for condonation of delay was refused by the Judge in Cham bers it would amount to dismissal of the appeal by the Judge in Chambers.
Therefore, it was said that these applications should be heard by 'the Court ' which alone was competent to dismiss the appeal.
By Court, it was urged, meant a bench of two learned Judges.
After giving notices to the learned Attorney General and the Bar Association, the matter was discussed by this Court and it was held that in view of Order VI, Rule 2(14) of the Rules set out hereinbefore, all applications for enlargement or abridgement of time except the three cases mentioned in Order VI, Rule 2(14) were to be heard by the Judge in Chambers.
At the relevant time, the three matters included, inter alia, deposit of security.
This Court observed in the said decision that an important exception was the application for condonation of delay in 830 filing special leave petitions.
It was observed that Order XLVII Rule 3 of the Rules stated that the Court might en large or abridge any time appointed by these rules or fixed by any order enlarging time, for doing any act or taking proceedings, upon such terms, if any, as the justice of the case might require, and any enlargement might be ordered, although the application therefore was not made until after the expiration of the time appointed or allowed.
A petition of appeal was required under Order XV of the Rules to be presented within 60 days from the grant of certificate of fitness.
The time to present the petition of appeal was fixed by the Rules of this Court.
It was observed, there fore, that Order XLVII Rule 3 should apply with regard to enlargement or abridgement of any time appointed by the Rules for doing any act.
This Court was of the view that Order VI Rule 2(14) spoke of the applications for enlarge ment or abridgement of time.
Here the words "enlargement or abridgement of time" took in applications for enlargement of time appointed by the Rules, that is to say, according to this Court, fixed by the Rules.
The significant feature of the Rules was that applications for condonation of delay in filing special leave petitions were excepted from the busi ness of a Chamber Judge.
The natural presumption was that but for the exception the Rule would have to be included also applications for condonation of delay in filing special leave petitions.
Any application for condonation of delay in filing petition of appeal was therefore included in applica tions for enlargement or abridgement of time.
This Court noted that the practice of the Chamber Judge hearing appli cations for condonation of delay in filing petitions of appeal within the time appointed by the Rules of this Court had been followed ever since 1966.
Cursus curiae est lex curiae.
The practice of this Court is the law of the Court.
See Broom 's Legal Maxims at p. 82.
Where a practice had existed it was convenient to adhere to it because it was the practice.
It was noted that the power of each Court over its own process is unlimited; it is a power incident to all Courts.
Reliance was placed on the observations in Cooker vs Tempest, Therefore, this Court held that applications for condonation of delay in filing petitions of appeal were within the Chamber business under Order VI Rule 2(14).
Learned Additional Solicitor General contended that the aforesaid decision requires reconsideration.
He submit ted that a prior decision of this Court and a decision of Calcutta High Court were not adverted to.
He further submit ted that this Court spoke of "enlargement or abridgement of time" fixed by the Rules.
Therefore, it could not be con tended that the application for condonation of delay would come within this purview.
Furthermore, it was argued that if the exceptions in favour of special leave petitions are maintained, there would be hostile discrimi 831 nation without any basis, namely, special leave petitions being amenable to be dealt with by the two Judges, while the learned Single Judge will dispose of the application for condonation of delay under Statutory Appeals.
This, it was submitted, is irrational and violative of Article 14 of the Constitution and the Rules should not be so construed.
The Learned Additional Solicitor General, therefore, submitted before us that we should hold that as dismissal of applica tion for condonation of delay amounts to dismissal of the appeal, it should be heard in terms of Order VII Rule 1 subject to other provisions, namely, it should be heard by not less than two Judges.
He submitted that if we were not inclined to accept this submissions in view of the decision of this Court in C. 1.
T., Bombay City vs R.H. Pandi Manag ing Trustees of Trust, Bombay, (supra), we should refer the matter to a larger bench for reconsideration of the matter.
We have considered the matter.
We are unable to accept the submission of the learned Additional Solicitor General.
We accept the reasoning to the decision of this Court in Commissioner of Income tax vs R.H. Pandi, (supra).
We find that was the practice of the Court.
That has been sanctified by the judicial decision.
We also see reason in the decision and the practice.
We do not find any reason for holding that the practice of this Court followed since 1966 requires to be altered.
Arranging the business of the Court is within the domain of the Court.
These Rules have been framed by this Court with the approval of the President of India.
Under Order I Rule 2(1)(g) of the Rules, 'Court ' means the Supreme Court of India.
Sub rule (14) of Rule 2 of Order VI empowers a Single Judge to decide certain matters which speaks of applications for enlargement or abridgement of time except where the time is fixed by the Court and except, inter alia, applications for condonation of delay in filing special leave petitions.
On a proper reading, it appears to us that the exception made only in favour of the time fixed by the Court means Court functioning judicially in terms of Order VII Rule 1 as well as time fixed by the Rules of the Court.
All other applications for enlargement or abridgement of time could be heard by the learned Single Judge.
As is clear, Order VI demarcates the power of the Registrar, and the learned Single Judge and Order VII demarcates the con stitution of the Division Courts, powers of a Single Judge and the Vacation Judge.
This is arranging the business of the Court.
This is within the power of the Court.
Two deci sions were referred to us by the learned Additional Solici tor General.
Our attention was drawn to the observations in the Division Bench Judgment of the Calcutta High Court in Promotho Nath Roy vs W.A. Lee, AIR 1921 Calcutta 415.
There the Court was concerned 832 with the provisions of Civil Procedure Code, Section 109.
The Court observed that an order dismissing an appeal as barred by limitation prescribed therefore after further refusing an application under section 5 of the to admit the appeal after the prescribed time, was 'passed on appeal ' under Section 109.
Sanderson, C.J. doubt ed the said conclusion but observed that this involved a substantial question of law.
That was an application by the defendant for a certificate that the decree of this Court, from which the appeal was sought to the Privy Council in volved a claim of Rs. 10,000 and that the appeal involved some substantial question of law.
The question was whether such application should be allowed.
A point was taken on behalf of the plaintiff that the decree of the High Court was not one 'passed on appeal ' within the meaning of clause (a) of Section 109 of the Civil Procedure Code.
There it appears that the order of Mr. Justice Greaves against which the appeal was directed, was made on 26th July, 1918.
On the 30th August, 1918, being the last date of sitting of the Court, at about 5.00 P.M. after the Court of Appeal had risen an application was made to Mr. Justice Chaudhuri sitting on the Original Side for leave to file the memoran dum of appeal without a copy of the order against which the defendant desired to appeal.
The learned Judge granted leave to the defendant to file the memorandum of appeal subject to any objection which might be taken on behalf of the plain tiff.
When the matter came before the appeal Court, the plaintiff took the point that the appeal was out of time.
The appeal Court decided that the appeal was out of time, being barred by the , and the Court further refused an application under Section 5 of the to admit the appeal after the prescribed time and the appeal was dismissed.
Having regard to the above mentioned facts, Sanderson, C.J. observed that it cannot be held that the order was not one 'passed on appeal '.
Sanderson, C.J. had some doubts on that proposition but agreed with Woodroffe, J. that the appeal involved substantial question of law.
In that appeals, a certificate was granted.
In our opinion, this decision is not relevant for the issue before us.
Whether an order dismissing an application for condonation of delay in case of Statutory Appeal is an order or appeal is not quite in issue here and is not decisive of the mat ter.
It does not solve the question whether a learned Single Judge can dismiss an application for condonation of delay in a statutory appeal.
After all, the Court functions by its arrangement under the Rules.
Order VI mentions the Chamber Business and the Business to be transacted by the Registrar and Single Judge sitting in Chambers.
The powers of the Court, that is to say, the whole Court and the powers of Division Bench normally, except those mentioned in Order VI, will be as enjoined by Rule.
1 of Order VII, 833 that is to say, a bench consisting of not less than two Judges.
In that view of the clear provisions of the Rule, we are of the opinion that the said decision of the Calcutta High Court upon which reliance has been placed does not in any manner detract the decision of this Court in C. 1.
T., Bombay City vs R.H. Pandi.
Our attention was also drawn to a decision of this Court in M/s. Mela Ram & Sons vs The Com missioner of Income Tax, Punjab; , There the appellant firm had filed appeals against orders assessing it to income tax and super tax for two years 1945 46 and 1946 47 beyond the time prescribed by Section 30(2) of the Income Tax Act.
The appeals were numbered and notices were issued for their hearing under Section 31 of the Income Tax Act, 1922.
At the hearing of the appeals before the Appellate Assistant Commissioner, the Department took the objection that the appeals were barred by time.
The appellant prayed for condonation of delay, but that was refused, and the appeals were dismissed as time barred.
The appellant then preferred appeals against the orders of dismissal to the Tribunal under Section 33 of the Act, and the Tribunal dismissed them on the ground that the orders of the Assist ant Commissioner were in substance passed under Section 30(2) and not under Section 31 of the Act and that no appeal lay against them under Section 33 of the Act.
This Court observed that an appeal presented out of time is an appeal and an order dismissing it as time barred is one 'passed in appeal '.
Section 31 of the Act was the only provision relat ing to the hearing and disposal of appeals and if an order dismissing an appeal as barred by limitation as in the present case is one passed in appeal it must fall within Section 31 and as Section 33 confers a right of appeal against all orders passed under Section 31, it must also be appealable.
These observations, in our opinion, were made entirely in different statutory context and cannot be used in the context in which the question has arisen before us in the present case.
Learned Additional Solicitor General submitted before us that in view of the fact that these two decisions were not considered by this Court in C. 1.
T., Bombay City vs R.H. Pandi, (supra) and in view of the fact that this argument in favour of statutory appeals to be heard by the learned Single Judge while the applications for condonation of delay in respect of the special leave peti tions to be heard by the bench of two learned Judges will be violative of Article 14 of the Constitution and as such this contention should be heard by a larger bench.
We are unable to accept this submission.
This Court had occasion to consider the situation in which question settled by this Court can be reviewed.
Refer ence may be made to the observations of Gajendragadkar, CJ in the Keshav Mills Co. Ltd. 834 vs C.I.T., Bombay North; , at page 921 the learned Chief Justice observed: "In dealing with the question as to whether the earlier decisions of this Court in the New Jehangir Mills, [(1960)] 1 SCR 249] case, and the Petlad Ltd. case [(1963)] Supp. 1 SCR 871] should be reconsidered and revised by us, we ought to be clear as to the approach which should be adopted in such cases.
Mr. Palkhivala has not disputed the fact that in a proper case, this Court has inherent jurisdiction to reconsider and revise its earlier decisions, and so, the abstract question as to whether such a power vests in this Court or not need not detain us.
In exercising this inherent power, however, this Court would naturally like to impose certain reasonable limitations and would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so.
It is general judicial experience that in matters of law involving ques tions of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision making is often very difficult and delicate.
When this Court hears appeals against decisions of the High Courts and is required to consider the propriety or correctness of the view taken by the High Courts on any point of law, it would be open to this Court to hold that though the view taken by the High Court is reasonably possible, the alternative view which is also reasonably possible is better and should be preferred.
In such a case, the choice is between the view taken by the High Court whose judgment is under appeal, and the alterna tive view which appears to this Court to be more reasonable; and in accepting its own view in preference to that of the High Court, this Court would be discharging.
its duty as a Court of Appeal.
But different considerations must inevita bly arise where a previous decision of this Court has taken a particular view as to the construction of a statutory provision as, for instance, Section 66(4) of the Act.
When it is urged that the view already taken by this Court should be reviewed and revised, it may not necessarily be an ade quate reason for such review and revision to hold that though the earlier view is a reasonably 835 possible view, the alternative view which is pressed on the subsequent occasion is more reasonable.
In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised.
When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and conti nuity in the interpretation of law in the country.
Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may inci dentally tend to make law uncertain and introduce confusion which must be consistently avoided.
That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satis fied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified.
It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions.
It would always depend upon several relevant considerations: What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any previous decision of this Court bearing on the point not noticed?.
Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be impact of the error on the general administra tion of law or on public good?.
Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts?.
And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief?.
These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earli er decisions.
" 836 This view was again reiterated by this Court in the Pillani Investment Corporation Ltd. vs Income Tax Officer, "A" Ward, Calcutta, and Another[1972] In the facts and circumstances of the case, in the light of the provisions of the said Rules as noticed before, we cannot say that we are satisfied that the earlier decision of this Court in C.I.T. Bombay City vs R.H. Pandi, (supra) was clearly erroneous.
In that view of the matter, it is not necessary to refer this question to a larger bench or to disturb the settled practice of this Court.
There is no substance in the contention of any discrimi nation under Article 14 of the Constitution or in Order VII rule 2(14).
Applications under Article 136 is a special class and are sui juris.
These are and should legitimately be treated separately other than all other applications including applications under Statutory Appeals.
If a sepa rate and distinct provision is made for application of condonation of delay under Article 136 of the Constitution, we do not see any conceivable ground which can be taken for contending that it is violative of Article 14 of the Consti tution.
After all Article 136 is the residuary power of this Court to do justice where the Court is satisfied that there is injustice.
These are class apart.
The practice of the learned Single Judge disposing of in Chambers applications for condonation of delay in statutory appeals is just, fair and reasonable.
Every court has the right to arrange its own affairs.
We find no reason either to upset that practice or to cast doubt on the propriety of such practice.
In this connection, reference may be made to the decision of this Court in P.N. Eswara lyer etc., etc.
vs The Registrar, Supreme Court of India, where this Court upheld the circulation system for the disposal of the Review Petitions and held that early hearing was the essential requirement if a review petition is found devoid of substance.
Such different treatment in respect of different applications has always been within the domain of Court 's arrangement of business.
These do not involve any violation of the fundamental right.
In the premises, we do not find any reason to interfere with the order passed.
We hold that a Single Learned Judge in Chambers is and was always competent to dismiss all applications for condonation of delay in statutory appeals.
We find nothing repugnant in the same and no substance in the contention that otherwise the same would be violative of Article 14 of the Constitu tion.
The Review Petitions therefore, fail and are dis missed.
N.P.V. Petitions dismissed.

summary/full:
An application for condonation of delay was filed by the petitioner Revenue alongwith statutory appeals against the judgment/order of the Customs, Excise and Gold Control Appellate Tribunal.
The application was rejected by a Single Judge of this Court under Order VI, Rule 2(14) of the Su preme Court Rules, 1966.
The Revenue filed review petitions on the ground that the application for condonation of delay made in statutory appeals under several Acts should be heard by a bench of at least two Judges.
It was contended that the effect of the refusal of condonation of delay was dismissal of the appeal itself, that the exception in favour of Special Leave Peti tions amounted to hostile discrimination without any basis in that the Special Leave Petitions will be amenable to be dealt with by two Judges, while a Single Judge will dispose of applications for condonation of delay under statutory appeals, which was irrational and violative of article 14 of the Constitution and, therefore, the Court should either hold that as dismissal of application for condonation of delay amounted to dismissal of the appeal itself, it should be heard by not less than two Judges in terms of Order VII Rule 1 subject to other provisions or refer the matter to a larger bench for re consideration, in view of the decision 825 of this Court in Commissioner of Income Tax Bombay City versus R.H. Pandi, Managing Trustees of Trust.
Bombay, holding that the applications for condonation of filing petitions of appeal were within the Chamber business under Order VI Rule 2(14).
On the question whether a Single Judge has jurisdiction to dismiss applications for condonation of delay in statuto ry appeals.
Dismissing the review petitions, HELD: 1.1 A Single Judge in Chambers is and was always competent to dismiss all applications for condonation of delay in statutory appeals.
There is nothing repugnant in the same that it is not violative of article 14 of the Consti tution.
[836G] 1.2 Order VI, Rule 2 of the Supreme Court Rules provides that the powers of the court in relation to a certain mat ters may be exercised by a Single Judge sitting in Chambers.
Rule 2(14) deals with applications for enlargement or abridgement of time with some exceptions.
Reading the rule simply, it means all applications for enlargement or abridgement of time would be cognizable by the Single Judge in Chambers except those applications, time for which is fixed by the court in terms of Order VII and also applica tions for condonation of delay in filing Special Leave Petitions.
[831E F] 1.3 On a proper reading, the exception made only in favour of the time fixed by the court means court function ing judicially in terms of Order VII Rule 1 as well as time fixed by the rules of the court.
All other applications for enlargement or abridgement for time could be heard by the Single Judge.
[831F G] 1.4 If a separate and distinct provision is made for application for condonation of delay under article 136 of the Constitution, it is not violative of article 14 of the Consti tution.
Applications under article 136 are a special class and are sui juris.
These are and should legitimately be treated separately other than all other applications including applications under statutory appeals.
article 136 is the resid uary power of this Court to do justice, where the court is satisfied that there is injustice.
These are class part.
There is, therefore, no discrimination under article 14 of the Constitution or in Order VI Rule 2(14).
[836C D] 2.1 Order VI demarcates the power of the Registrar and the Single Judge and Order VII demarcates the constitution of the divi 826 sion courts, powers of a Single Judge and a Vacation Judge.
This is arranging the business of the court, this is within the power of the court.
[831G] 2.2 Different treatment in respect of different applica tions has always been within the domain of Court 's arrange ment of business.
These do not involve any violation of the fundamental rules.
[836F) P.N. Eswara Iyer etc., etc.
vs The Registrar, Supreme Court of India, relied on.
3.1 The practice of one Single Judge disposing of in Chambers applications for delay in statutory appeals is just, fair and reasonable.
There is no reason either to upset that practice or to cast doubt on the proprietory of such practice, which has been valid since 1966, and which has been sanctified by the judicial decision.
There is reason in the decision and the practice.
[836E; 831D E] Commissioner of Income Tax, Bombay City vs R.H. Pandi Managing Trustees of Trust, Bombay, ; affirmed.
3.2 In the facts and circumstances of the case and in the light of the provisions of the Rules, it cannot be said that the earlier decision of this Court in Commissioner of Income Tax, Bombay City versus R.H. Pandi was clearly erro neous and, therefore, it is not necessary to refer this question to a larger bench or to disturb the settled prac tice of this Court.
[836B] Keshav Mills Co. Ltd. vs C.I.T. Bombay North, ; and Pillani Investment Corporation Ltd. vs Income Tax Officer, "A" Ward, Calcutta, and Another, , relied on.
Promotho Nath Roy vs W.A. Lee, AIR 1921 Calcutta 415 and M/s. Mela Ram & Sons vs The Commissioner of Income Tax, Punjab, ; , distinguished.
Cooker vs Tempest, , referred to.


judgement:
Criminal Appeal No. 530 of 1978 From the Judgment and Order dated 13.9.1978 of the Punjab and Haryana High Court in Criminal Appeal No. 1154 of 1975.
M.L. Verma, S.K. Bagga and Mrs. section Bagga for the Appellant.
Tara Chand Sharma and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
The appellant, having been convicted by the learned Sessions Judge, Chandigarh under Section 302.
I.P.C., and his appeal against conviction having been dis missed by the High Court of 943 Punjab & Haryana, has preferred this appeal by special leave.
The conviction of the appellant is principally based on the ocular evidence of PW 2 Kesho Gupta and PW 4 Varinder Singh.
The facts emerging from the evidence of these two main witnesses coupled With the evidence of the other prose cution witnesses may be stated as follows: PW 5 Mangal Dass was the owner of House No. 3220 in Sector 23 D, Chandigarh, consisting of the ground floor and the first floor.
The ground floor was occupied by Mangal Dass himself while the first floor consisting of four rooms and a kitchen was tenanted; two rooms and a kitchen were rented to PW 4 while the other two rooms were occupied by Sikander Lal, the father of the appellant and Amrit Lal (the acquitted accused).
PW 2 Kesho and his brother Nitya Nand (deceased) belonged to village Narnaul to which PW 4 also belonged.
They had come to Chandigarh a couple of years back and were sharing the accommodation with PW 4.
As Amrit Lal 's marriage was scheduled on December 7, 1974, a request was made to PW 4 by Sikander Lal to permit the use of the kitch en for a few days.
Accordingly, the possession of the kitch en was delivered to Sikander Lal on December 4, 1974 on a clear understanding that it would be returned to PW 4 after the marriage.
As the possession of the kitchen was not returned immediately after the marriage, PW 2 and his de ceased brother Nitya Nand demanded possession thereof from Sikander Lal.
They were initially put off but according to the prosecution the possession of the kitchen was delivered on January 1, 1975.
However, as the kitchen had to be cleaned it was not occupied by PW 2 and PW 4 till January 3, 1975 on which date the family members of Sikander Lal are stated to have re entered the kitchen.
It may here be men tioned that this part of the prosecution evidence has not been accepted by the learned Sessions Judge.
According to the learned Sessions Judge, the possession of the kitchen was not delivered to PW 4 till January 3, 1975 and that led to the quarrel in which PW 2 received a knife injury on the neck and his brother Nitya Nand lost his life.
On this aspect of the matter, the High Court has not expressed any opinion.
On a perusal of the relevant evidence we are in clined to think that the finding of fact recorded by the learned Sessions Judge in this behalf is correct.
On January 3, 1975, at about 7.15 p.m., PW 2 and his deceased brother had an heated argument with the appellant and his brother Amrit Lal in regard to the return of the kitchen.
In the course of this heated exchange PW 2 is alleged to have showered filthy abuses.
Although PW 2 denies this fact, PW 4 has admitted the same.
PW 2 also threatened to throw out the utensils and lock the kitchen.
Since 944 PW 2 was uttering filthy abuses in the presence of the appellant 's sister and Nitya Nand did not restrain him, the appellant got enraged, went into the kitchen and returned with a knife with which he inflincted one blow on the neck of PW 2 causing a bleeding injury.
In the melee the appel lant inflicted three knife blows to Nitya Nand; one on the shoulder, the other on the elbow and the third on the chest, as a result whereof Nitya Nand collapsed to the floor and later died while on the way to the hospital.
The fact that Nitya Nand died a homicidal death is not in dispute.
The appellant 's defence was that on the date of the incident PW 2 and his deceased brother had demanded vacant possession of the kitchen and on being told that PW 4 had permitted them to continue to occupy it they uttered filthy abuses in the presence of his sister and on being asked to desist from using such language PW 2 began to throw out the utensils from the kitchen.
When the appellant tried to stop him from doing so, PW 2 took out a knife from his pant pocket whereupon the appellant took shelter behind a door.
PW 2 rushed towards him with the knife but in the meanwhile Nitya Nand moved in between and sustained the injuries in question.
The courts below have, however, concluded, and in our opinion rightly, that the appellant had in the course of the quarrel given stab wounds to PW 2 and the deceased Nitya Nand.
The learned Advocate for the appellant submitted that there was no previous iII will between the parties, on the contrary the relations were cordial and the appellant was not the one who had started the quarrel but he acted in the heat of passion during a sudden quarrel without any premedi tation and hence Exception 4 to Section 300, IPC was clearly attracted.
On the other hand the learned counsel for the State argued that the High Court had rightly held that the appellant had acted in a cruel and unusual manner and was not entitled to the benefit of the said exception.
He sub mitted that the appellant had attacked an unarmed person and had caused as many as three injuries which showed that he had acted in a cruel manner.
The appellant 's counsel coun tered by pointing out from the evidence of PW 1 Dr. Goyal that the appellant had a deformity in the left leg which restricted his movement and he would ordinarily not venture to attack unless he was forced by circumstances to use the weapon to contain PW 2.
Exception 4 to Section 300 reads as under: "Exception 4: Culpable homicide is not murder if it is 945 committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault." To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of pas sion; and (iv) the assailant had not taken any undue advan tage or acted in a cruel manner.
The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault.
The number of wounds caused during the occurrence is not a decisive factor but what is impor tant is that the occurrence must have been sudden and unpre meditated and the offender must have acted in a fit of anger.
Of course, the offender must not have taken any undue advantage or acted in a cruel manner.
Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.
In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen.
When they found that the appel lant was disinclined to handover possession of the kitchen, PW 2 quarrelled and uttered filthy abuses in the presence of the appellant 's sister.
On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other.
In the course of this heated argument it is the appellant 's case that PW 2 took out a knife from his pant pocket.
This part of the appeIIant 's case seems to be probable having regard to the antecedents of PW 2.
It is on record that PW 2 was convicted at Narnaul on two occa sions under Section 411, IPC and his name was registered as a bad character at the local police station.
It was presuma bly because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4.
When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife.
From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target.
That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant.
It further 946 seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2" below the nipple It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of PW 2 was a selfinflicted wound and had therefore acquitted the appel lant of the charge under Section 307, IPC, against which no appeal was carried.
We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident.
From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter 's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck.
It would be reasonable to inter that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal.
Taking an overall view of the inci dent we are inclined to think that the appellant was enti tled to the benefit of the exception relied upon.
The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner.
Under these circumstances, we think it proper to convict the accused under Section 304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years.
In the result, this appeal partly succeeds.
The order of conviction and sentence passed under Section 302, IPC is set aside and the fine, if paid, is directed to be refunded.
The appellant is convicted under Section 304 Part I, IPC and is directed to suffer rigorous imprisonment for 7 years.
S.K.A. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The deceased and his brother P.W. 2 were sharing accom modation with P.W. 4 as a tenant on the 1st Floor of a house in Chandigarh.
The father of the appellant also occupied two rooms on the same floor as a tenant.
As a marriage was scheduled in the family of the appellant 's father a request was made to P.W 4 to permit the use of the kitchen for a few days.
The possession of the kitchen was delivered on a clear understanding that it would be returned to P.W. 4 after the marriage.
The possession of the kitchen was however not delivered to P.W. 4 and that led to the quarrel.
The de ceased and his brother P.W. 2 had an heated argument with the appellant in regard to the return of the kitchen.
P.W. 2 was alleged to have showered filthy abuses in the presence of the appellant 's sister, and taken out a pen knife from his pocket and also threatened to throw out the utensils and lock up the kitchen.
The appellant got enraged, went into the kitchen and returned with a knife with which he inflict ed one blow on the neck of P.W. 2 causing a bleeding injury and also inflicted three knife blows to the brother of P.W. 2 as a result whereof he collapsed on the floor and later died while on the way to the hospital.
The appellant was convicted by the Sessions Judge under Section 302, Indian Penal Code and his conviction having been upheld by the High Court, he preferred an appeal by special leave to this Court.
It was contended for the appel lant that there was no previous iII will between the par ties, on the contrary the relations were cordial and the appellant was not the one who had started the quarrel but he acted in the heat of passion during a sudden quarrel without any premeditation and hence Exception 4 to Section 300, I.P.C. was applicable.
On the other hand counsel for the State argued that the High Court had rightly held that the appellant had acted in a cruel and unusual manner and was not entitled to the benefit of the said Exception, and that the three injuries inflicted showed that the appellant had acted in a cruel manner.
942 Partly allowing the appeal, this Court, HELD: To invoke Exception 4 to Section 300 I.P.C. four requirements must be satisfied, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion, and (iv) the assailant had not taken any undue advantage or acted in a cruel manner.
The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault.
The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger.
[945B D] Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly.
[945D E] In the instant case, after P.W. 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter 's sister, tempers ran high and on P.W. 2 taking out a pen knife, the appellant picked up the knife from the kitchen, ran towards P.W. 2 and inflicted a simple injury on his neck.
It would be reasona ble to infer that the deceased must have intervened on the side of his brother P.W. 2 and in the course of the scuffle he received injuries, one of which proved fatal.
Under these circumstances, it is proper to convict the accused under Section 304, Part 1, I.P.C. and direct him to suffer rigor ous imprisonment for 7 years.
[946C E]


judgement:
onstrued.
One should not concentrate too much on one rule and pay too little atten tion on the other, for that would lead astray and result in hardship, such construction should be avoided.
[955C D] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 30373038 of 1984 From the Judgment and Order dated 12.12.
1983 of the Bombay 950 High Court in W.P. No. 1189 of 1980.
S.K. Dholakia, A.S. Bhasme and A.M. Khanwilkar for the Appellant.
N.B. Shetya, S.B. Bhasme, section Ramachandran, R. Ramachan dran, Maknand Adkar and Mrs. M. Karanjawala for the Respond ents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These two appeals by special leave are by the State of Maharashtra.
They are directed against the judgment of the High Court of Bombay dated 12th January, 1983 by which the High Court issued the following two directives to the State Government: "(1) To recast the Revised/Final Sen iority List dated 20.12.
1982 vis a vis the persons shown in the category of 'Late Pass ing ' and assign them seniority strictly in accordance with Rule 2 and the other Govern ment orders referred to in Paragraph 96 of the judgment; and (2) The seniority in the Superintend ent 's cadre so fixed should also be considered as seniority for further promotions.
" The background to these directives is, in outline, this: Respondents 1 to 8 are Assistant Secretaries/Section Officers/ Superintendents in different departments of the Government of Maharashtra.
The State Government prescribed departmental examinations as a condition precedent for promotion to the cadre of Superintendents.
The examination was required to be conducted every year, and the officials have to pass within the stipulated period.
Those who could not pass within the time frame would lose their seniority but they will be promoted as and when they qualify them selves.
The Government for some reason or the other could not hold the examinations every year.
Particularly in 1968, 1969 & 1970, the Government did not hold the examinations.
The Government, however, did not pass any order extending the period prescribed for passing the examinations, nor promoted the seniors subject to their passing the examina tion.
The juniors who qualified themselves were promoted overlooking the case of seniors and seniors were only pro moted upon their passing the examination.
In the cadre of Superinten 951 dents, however, the Government revised the seniority list so as to reflect the rankings in the lower cadre irrespective of the date of promotion.
The validity of the revision of seniority was challenged before the High Court.
The High Court conceded the power to the Government to relax the rules relating to passing of the examination in case of hardship, but refused to recognise the power of the Govern ment to give seniority to those who could not pass the examination within the time schedule.
The High Court was of opinion that without specific orders of the Government relaxing the conditions of the rules, the persons could not be given seniority for 'Late Passing '.
There are also other reasons given by the High Court which we will presently consider.
But before that, it is important that we should have a chronology of the relevant rules and resolutions of the Government.
It is as follows: On 22nd August, 1951, the Government made a resolution prescribing departmental examination for the members of the Upper Division of the Subordinate Secretariat Service, and further directing that only those persons who pass the examination should be promoted as Superintendents.
The accompanying rules (The 1951 Rules) thereunder provided the procedure for passing the examination as well as the conse quences of failure to pass the examination.
On 24th August, 1955, the Government framed rules (The 1955 Rules) under the proviso to Article 309 of the Constitution specifically providing power to dispense with, or relax, the requirements of the operation of any rule regulating the conditions of service of Government servants; or of any class thereof if it causes undue hardships in any particular case.
On 15th January, 1962, the Government issued a circular purporting to restrict the scope of the rule permitting relaxation only in respect of travelling allowance rules, leave rules, etc.
The circular also clarified that the 1955 Rules could not be invoked for conferring benefit on an individual by relaxing the conditions relating to recruitment, promotion, grant of extension of service or re employment.
On 28th December, 1961, the Government made the revised rules in supersession of the 1951 Rules.
They were brought into force with effect from 1st January, 1962 (the 1962 Rules).
They were made appl icable to all persons recruited to the Upper Division of the Subordinate Secretariate Service on or after that date and also to those who have been in service prior to 1st Jan uary, 1962 unless they had already passed the examination under the 1951 Rules.
The rules 1 to 5 are as follows: "1.
Every member of the Upper Divi sion of the Subordinate Secretariat Service will be required to pass within 952 nine years from the date of his entry in the Upper Division, a departmental examination for promotion to the posts of Superintendents according to the prescribed syllabus.
For being eligible to appear for the examination a candidate must have passed the Post Recruit ment Training Examination for Junior Assistant and must have also completed not less than five years ' continuous service in the Upper Division.
(2) Subject to Rule 1, a candidate will be allowed to appear for the examination in three chances which must be availed of within a period of four years.
This period of 4 years will not be extended for any reasons irrespective of the fact whether a candidate has availed himself of 3 chances or not during the period.
Similarly no candidate will be allowed to take during this period more than 3 chances.
A candidate who does not pass the examination at the end of 9 years service in the Upper Division, will lose his seniority to all those candidates who pass the examination before he passes it.
(3) No persons shall be appointed to the post of Superintendent unless he has passed the Superintendents ' Examination.
Provided that this rule shall not apply to short term vacancies not exceeding two months.
(4) Subject to the condition of loss of seniority laid down in rule 2, a candidate will be allowed to take the examina tion in any number of chances after the com pletion of 9 years ' service.
(5) The examination will be held once a year.
XXX XXX XXX XXX " On December 28, 1970, proviso to above rule 3 has been added.
The said proviso reads: "Provided that if the Superintendent 's Examination is not held in any year, a person who has completed 9 years service and who has not exhausted all the permissible chances, may be promoted to the post of Superintendent, provided further that he is otherwise suitable for promo tion, subject to the clear condition that he will have to pass 953 the examination at the earliest opportunity whenever it is held." "It is further clarified that promo tions to the posts of Superintendents should, in view of the above amendments, be given only after ensuring that there are no persons who have passed the Superintendents Examination earlier for being promoted to the posts of Superintendents.
" We may incidentally refer to the subsequent rules made by the Government, although it is not applicable to the present case.
On June 6, 1977, the Government framed the rules called "The Maharashtra Government Subordinate Service Rules, 1977".
Rule 7 of the rules provides that if, for any reason, the examination is not held in any particular year, that year shall be excluded in computing the period speci fied under the rules.
This is, indeed, the true reflection of the underlying concept of purpose of the earlier rules.
Against this backdrop, we may now consider whether the Government was justified in re arranging the seniority by giving benefit to persons in the category of "Late Passing".
We are not concerned herein about the seniority of persons in whose favour the Government has made individual orders extending the period for passing the examination.
We will consider such cases a little later.
For the present, we may examine the rights of those "Late Passing" where the Government has not made any specific order relaxing the conditions for passing the examination.
Under the 195 1 Rules, the candidate could appear for the examination after two years of his entering into the cadre.
He has three chances and he must pass within 6 years of his joining service.
Under the 1962 Rules the scheme provided was slightly different.
Under that scheme, candidate was allowed to take the examination only after completing five years service in the cadre.
He had three chances for taking the examination and that must be availed of within four years.
That means he must pass the examination within the 9 years ' service.
Under both the Rules, the Government was required to hold the examination every year, but no examination was held in 1968, 1969 & 1970.
This is not in dispute.
For a proper appreciation of the question raised, we must first try to understand the hardship resulted by not holding the examination in 1968, 1969 & 1970.
It is as follows: The candidates recruited in 1960 have lost one chance in 1968.
Those recruited in 1961 are deprived of two chances in 1968 and 1969.
The candidates recruited in 1962 are 954 denied of three chances in 1968, 1969 & 1970 and those of the year 1963 have lost two chances in 1969 and 1970.
The last batch to lose one chance in 1970 is of the year 1964.
The aforesaid Rules expressly provided power to the Government to grant more chances for passing the examination in any individual case or in class of cases.
Under the 1955 Rules, the Government preserved power to dispense with, or relax the requirements of any rule regulating "the condi tions of service of government servants; or of any class thereof".
In the exercise of this power, the Government could dispense or relax the operation of any rule, if it causes undue hardships in any particular case.
It is need less to state that this power includes the power to relax the conditions prescribed for promotion since promotion is a condition of service.
There is no restriction as to the exercise of the power or discretion.
The High Court, howev er, has observed that the scope of this power has been constrained by the circular dated 15th January, 1962.
The circular states that the 1955 Rules permitting relaxation cannot be utilised to relax the rules which regulate condi tions of service.
It further states that the scope of the Rules should be limited only to matters relating to travel ling allowance, leave, etc.
But this appears to be an exer cise in vain.
The circular is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to Article 309 of the Constitution.
The Government could not have restricted the operation of the statutory rules by issuing the executive instruction.
The executive instruction may supplement but not supplant the statutory rules.
The High Court was in error in ignoring this well accepted principle.
When we turn to the 1962 Rules with the amendments made in 1970, it becomes more clear about the power of the Gov ernment to relax the conditions for passing the examination.
The proviso dated 28th December, 1970 to rule 3 specifically provides that if the examination is not held in any year, a person Could be promoted to the cadre of Superintendent if he has completed nine years ' service.
The only condition is that he should not have exhausted all the permissible chances.
The promotion, made should be subject to the condi tion that he will have to pass the examination at the earli est opportunity whenever it is held.
The benefit of this proviso was evidently not extended to any of the persons falling into the category of "Late Passing".
Counsel for the contesting respondents however, urged that the proviso does not entitle the candidate to get his legitimate seniority if 955 he does not pass the examination at the end of nine years ' service.
He depended upon rule 2 of the 1962 Rules which states that the candidate who does not pass the examination within 9 years ' service will lose his seniority to all those candidates who pass the examination earlier.
He also argued that the proviso is only to rule 3 and not to rule 2 and the Government has no power to restore the seniority of a person who has lost it by the operation of rule 2.
This is a question of construction of the rules which form part of the scheme prescribing a condition for promo tion.
We do not have to reflect upon the rules of interpre tation since they are well settled.
They are now like the habits of driving which have become ingrained.
They come to our assistance by instinct.
We are to use the different rules meticulously to give effect to the scheme as we use the clutch, brake and accelerator for smooth driving.
These rules are to be harmoniously construed.
We should not con centrate too much on one rule and pay too little attention on the other.
That would lead us astray and result in hard ship.
We must avoid such construction.
Rule 2 of the 1962 Rules no doubt states that a candidate who does not pass the examination at the end of nine years ' service will lose his seniority.
But this rule cannot be read in isolation as the High Court did.
It has to be read along with the other rules since it is a part of the scheme provided for promotion.
Rule 5 requires the Government to hold the examination every year.
This rule is the basis of the entire scheme and the effect of other rules depends upon holding the examination.
If examination is not held in any year, the rule 2 cannot operate to the prejudice of a person who has not exhausted all his chances.
The person who has not exhausted the avail able chances to appear in the examination cannot be denied of his seniority.
It would be unjust, unreasonable and arbitrary to penalise a person for the default of the Gov ernment to hold the examination every year.
That does not also appear to be the intent or purpose of the 1962 Rules.
If the examination is not held in any year, the person who has not exhausted all the permissible chances has a right to have his case considered for promotion even if he has completed 9 years ' service.
The Government instead of promoting such persons in their turn made them to wait till they passed the examination.
They are the persons falling into the category of "Late Passing".
To remove the hardship caused to them the Government wisely restored their legiti mate seniority in the promotional cadre.
There is, in our opinion, nothing improper or illegal in this action and indeed, it is in harmony with the object of the 1962 Rules.
956 This takes us to the question whether the Government was justified in individual cases to relax the period for pass ing the examination.
It is said that the number of persons failing into this category are not more than five.
In the rejoinder filed on behalf of the Government, it is stated that the Government made some orders extending the period for individuals to pass the examination on administrative grounds or on some genuine hardships.
It is also stated that such orders were made upon recommendations by the respective departments and those persons passed the examination within the period extended.
There is no reason to doubt the cor rectness of these statements made in the rejoinder.
The power to relax the conditions of the rules to avoid undue hardship in any case or class of cases cannot now be gain said.
It would be, therefore, futile for the respondents to make any grievance.
In the result and for the reasons stated, we allow these appeals and in reversal of the judgment of the High Court, we dismiss the writ petitions filed by the contesting re spondents.
In the circumstances of the case, however, we make no order as to costs.
Y.L. Appeals allowed.

summary/full:
Respondents 1 to 8 are Assistant Secretaries/Section Officers/ Superintendents who are working in different departments of the State of Maharashtra.
Under the Rules governing their Service conditions the Govt. had prescribed Departmental Examination for promotion to the cadre of Superintendents; the passing of the examination was a condi tion precedent for the officials for being promoted as superintendents.
The Examination in question was required to be conducted every year and the officials were required to pass the same within the stipulated period; and the offi cials who were not able to pass the said examination within the prescribed period were to lose their Seniority, but they were permitted to take the examination in any number of chances after the expiry of the stipulated period and they were to be promoted only when they qualify themselves.
The Govt.
as required under the Rules, could not hold the exami nation every year particularly in the years 1968, 1969 & 1970.
The Govt.
neither extended the period within which the officials were required to pass the examination nor promoted the seniors in the cadre of Superintendents subject to their passing the examination and instead thereof the juniors in the cadre who had qualified in the examination were promoted to the cadre of Superintendents.
The seniors in the cadre were promoted only when they qualified the examination i.e. later in point of time.
The Govt. issued a revised Seniority List relating to the cadre of Superintendents.
In the said List the Respond ents herein were shown juniors to those persons who had not only qualified the Dept. Examination later in point of time but also promoted after them.
Being aggrieved, the Respond ents herein challenged the validity of the revi 948 sion of the Seniority List as also the validity of the Rules being violative of article 14 & 16 of the Constitution by filing a Writ Petition in the Bombay High Court.
The High Court allowed the Writ Petn.
and issued the following two directives to the State Govt.
(1) To recast the Revised/Final Seniority List dated 20.12.1982 vis a vis the persons shown in the Category of "Late Passing" after considering the objections of the Writ Petitioners and Ors.
and assign them seniority strictly in accordance with Rule 2 and the other Government Orders referred to in paragraph 96 of the Judgment, and (2) The Seniority in the Superintendent 's Cadre so fixed should also be considered as seniority for further promo tions.
Being dissatisfied with the said order of the High Court, the State of Maharashtra filed appeals in this Court after obtaining Special Leave.
Allowing the appeals this Court, HELD: Under the 1951 Rules, the candidate could appear for the examination after two years of his entering into the cadre.
He had three chances and he must pass within six years of his joining Service.
Under the 1962 Rules a candi date was allowed to take the examination only after complet ing five years service in the cadre.
He had three chances for taking the examination and that must be availed of within four years.
That means he must pass the examination within 9 years ' service.
Under both the Rules, the Govt was required to hold the examination every year, but no examina tion was held in 1968, 1969 and 1970.
[953F G] Those recruited in 1961 are deprived of two chances in 1968 three chances in 1968, 1969 & 1970 and those of the year 1963 have lost two chances in 1969 & 1970.
The last batch to lose one chance in 1970 is of the year 1964.
[953H; 954A] Under the 1955 Rules, the Government preserved power to dispense with or relax the requirements of any rule regulat ing "the conditions of service of Government servants; or of any class thereof".
[954B] 949 There is no restriction as to the exercise of the power or discretion.[954C] The Circular dated January 15, 1962 is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to article 309 of the Constitution.
The Government could not have restricted the operation of the Statutory Rules by issuing the executive instruction.
The executive instruction may supplement but cannot supplant the statutory rules.
[954D E] Rule 2 of the 1962 Rules no doubt states that a candi date who does not pass the examination at the end of 9 years service will lose his seniority.
But this rule cannot be read in isolation.
[955D] If examination is not held every year.
The rule cannot operate to the prejudice of a person who has not exhausted all his chances.
The person who has not exhausted the avail able chances to appear in the examination cannot he denied of his seniority.
It would be unjust, unreasonable and arbitrary to penalise a person for the default of the Gov ernment to hold the examination every year.
That does not also appear to be the intent or purpose of the 1962 Rules.
[955E F] The Govt.
instead of promoting such persons in their turn made them to wait till they passed the examination.
They are the persons failing into the category of "Late Passing".
To remove the hardship caused to them the Govt.
wisely restored their legitimate seniority in the promotion al cadre.
There is nothing improper or illegal in this action and indeed, it is in harmony with the object of 1962 Rules.
[955G H] The Court need not have to reflect upon the Rules of interpretation since they are well settled.
They are now like the habits of driving which have become ingrained.
They come for assistance by instinct.
The different rules have to be used meticulously to give effect to the scheme as the clutch, brake and accelerator are used for smooth driving.