judgement:
: Criminal Appeal No.490 of 1985.
From the Judgment dated 29.5.1985 of the Judge, Special Court, Ferozepur in Case No.62/84, Trial No.23/85 and FIR No.154 of 1984.
U.R.Lalit and Prem Malhotra for the Appellants.
261 N.S.Das Behl and R.S.Suri (NP) for the Respondent.
The Judgement of the Court was delivered by K.RAMASWAMY,J.
This appeal under s.14(1) of the , 61 of 1984 for short `the Act ' the reference under s.15(3) thereof and s.366 of the Code of Criminal Procedure, 1973 for short `the Code ' for confirmation of the death sentence of Malkiat Singh, accused No. 1 in Sessions case No.62 of 1984, Trial No.23 of 1985 on the file of the Special Court, Ferozepur.
The first accused was convicted under s.302 read with s.34, I.P.C. for causing the deaths of Ram Babu, D 1, Sunder Lal, D 2, Ram Nath, D 3 and Ram Chand, D 4 of each death and sentenced to death subject to confirmation by this court.
He was also further convicted under s.307 read with s.34, I.P.C. and sentence to undergo rigorous imprisonment for 5 years for attempt to murder Ashok Kumar, PW 4.
Sukhdev Singh A 2 and Sohna Singh, A 3 were convicted under s.302 read with s.34, I.P.C. for causing deaths of D 1, to D 4 and sentenced to undergo imprisonment for life.
A 2 and A 3 were convicted under s.307 read with S.341 I.P.C. for attempt to murder of PW 4 and were sentenced to undergo rigorous imprisonment for 5 years, all the sentences to run concurrently.
Ram Avtar, PW 3 and D 3 Ram Nath, first cousin, had liquor contract in the village Kotli Ablu from 1983 and 1984.
D 2 and PW 4 were working in the liquor shop.
The wives of D 2 and D 4 are sisters.
D 4 came to see D 2.
D 1 was working in the liquor shop at Ablowbad.
Since the liquor therein had exhausted he came to Kotli Ablu to sell the liquor in the shop of D 3.
A 1 and A 2 are brothers and are residents of Kotli Ablu and Sohna Singh, A 3 is their maternal uncle (mother 's brother) and a resident of Rameana situated at a distance of 8 km.
to Kotli Ablu.
These are the admitted facts.
It is the case of the prosecution that at about 9.00 p.m. On June 4, 1984, A 1 and A 3 came to the liquor shop of D 3 wherein PW 3, D 1, D 2 and PW 4 were also present and were vending the liquor.
They sold one bottle of liquor to A 1 and A 3 on credit.
After its consumption A 1 and A 3 demanded another bottle to which D 3 refused to sell on credit.
Thereon A 1 and A 3 abused them and a quarrel ensued.
Both left the shop in anger.
D 1 and D 2 slept on a cot in front of the liquor shop.
D 3 and D 4 slept wooden takthposh in front of the liquor shop.
PW 3 and PW 4 climbed the roof of the shop and slept there.
During past midnight of June 4 5, 1984 at about 12.30 a.m. PW 3 and PW 4 heard gun shot fire and got up and saw with visibility of electric light emanating 262 from the house of one Gurbax Singh whose son was examined on DW 2 that A 1 was firing with rifle at D 1 to D 4 and A 2 and A 3 hitting them with Gandasas (sharp edged weapons).
Seeing PW 3 and PW 4 on the terrace A 1 fired at them but they escaped uninjured and they jumped down.
PW 3 jumped towards back side of the shop and ran towards the village and hid in the school.
PW 4 jumped to the front side and ran towards the village.
A 1 fired at PW 4 and A 2 hit him.
He received seven bullet injuries fired by A 1 on the backside, of right, leg, thigh and left side of the abdomen while he was running.
A 2 hit him on the right shoulder and had incised injury.
He ran to the house of Gurmail Singh, PW 3 with bleeding injuries, knocked the door and fell down unconscious.
On June 5, 1984 at about 9.00 a.m. Jit Singh, the Chowkidar of the village reached Kotli Police Station and reported to PW 5, S.H.O. who reduced Ex.P 24 into writing.
In the F.I.R. he stated that he had heard gun shot firing from the side of the liquor shop.
Due to fear and the prevailing tense situation he did not come out.
Next day morning he saw several people collected at the liquor shop and saw the dead bodies of D 1 to D 4 and PW 4 was lying unconscious in the house of DW 3 and he was asked to report the matter accordingly.
PW 5 after issuing F.I.R. to all the concerned, went alongwith police party to the spot at noon and saw the dead bodies.
He went to the house of DW 3 and found PW 4 under shock and unconscious.
He sent him for medical examination by PW 2, the Doctor as his condition was serious.
PW 3 on coming to know the arrival of the police and the military people at noon mustered courage and came out from the school and went to the shop.
He was examined at the inquest and he also attested the statement recorded by the police at the inquest.
PW 5 enclosed the copies of his statement to the inquest report Ex.P 4, P 6, P 8 and P 10 and sent the dead bodies with the reports for post mortem by PW 2 Doctor.
He also prepared rough sketch of the scene under Ex P1/A.
He recovered the blood stained earth and cots etc under exhibit
He recovered 7 empty and two live cartridges exhibit M 0/1 to M 0/9 under panchnama Ex.p 18.
He remained on the spot till 10.30 p.m. and saw the light emanating from the house of Gurbax Singh and falling at the scene of occurrence.
He sent requisition twice to the hospital to find whether PW 4 was in a fit condition for recording his statement.
On June 7, 1984 at about 7.00 a.m. he received an endorsement that PW 4 was in a fit condition to make the statement.
Accordingly he recorded the statement.
He sent M.O.S.1 to 9 cartridges and pellets recovered from body of D 4 under exhibitP 25 to ballistic expert for report.
on June 15, 1984 when he was picketing on the drain of village Chand Bhan at about 3.30 a.m. he arrested the appellants and recovered from the person of A 1.
exhibit 263 M 0/11 rifle, 351 bore (semi automatic) of U.S.A. make loaded with two cartridges M 0/12 and M 0/13 under panchnama in the presence of panch.
Pursuant to a statement made under s.27 Evidence Act by A 3 leading to discover Gandasa M 0/14 was recovered under ex.P 27 and sent them to the chemical examination and the ballistic reports.
Under exhibitP 28, the Ballistic expert found that the empties exhibit M 0/1 to M 0/9 had been fired from rifle exhibit M 0/11.
Gandasa was stained with human blood as per the report exhibit PW 2 who conducted the post mortem on D 1 and D 2 found on each of the dead bodies two gun shot entry and exit wounds.
D 3 and D 4 were found to have 4 gun shot lacerated and two incised injuries and 5 lacerated and two incised injuries respectively.
He removed M.O.S.16 and 17 pellet from the body of D 4.
He issued post mortem certificates Ex.P 3, P 5, P 7 and P 9 respectively.
He also examined PW 4.
He found as many as 7 lacerated gun shot injuries and one incised injury and issued medical certificate Ex.
Injuries and one incised injury and issued medical certificate exhibit Injuries 1 to 7 were caused by gun shot fire and injury 8 by a sharp weapon.
PW 5 sent two pellets recovered by him from the body of D 4 to the Ballistic and Chemical Examination.
The defence consented to mark F.I.R., the affidavits of panch witnesses and constables; the fire arms licence of A 1 under exhibit P 17 and also the reports of the ballistic expert and chemical examination reports without oral evidence.
PW 6, the Deputy Superintendent of Police supervised the investigation conducted by PW 5.
The prosecution examined 6 witnesses and defence examined 3 witnesses and marked the documents.
The accused were examined 3 witnesses and marked the documents.
The accused were examined under s.313 and denied their complicity and examined DW 1 to DW 3 to prove that the bulb of Gurbax Singh was not burning and PW 3 was residing at Medhak and he was brought to Kotli Ablu by the Police and PW 4 was conscious and did not disclose the names of the appellants at that time.
The lower court believed the direct evidence of PW 3 and PW 4 and the prosecution case that A 1 fired at the deceased with M 0/11 rifle, A 2 and A 3 also participated in the attack.
If also found that M 0/11, the rifle belongs to A 1 and he fired the deceased and PW 4.
Accordingly convicted them for an offences under sections 302/34 and 307/34 I.P.C. When they were asked under s.235(2), they declined to lead evidence and the Sessions Court awarded sentence to the accused as referred to earlier.
Shri Lalit, the learned senior counsel for the appellants contended that the evidence of PW 3 and PW 4 is highly artificial, unbelievable and untrustworthy; barring their evidence, there is no other evidence to connect the appellants with the commission of the crime.
The story that PW 3 and PW 4 climbed on the terrace and were sleeping is 264 false as they cannot climb to a height of 8/1/2 ft. PW 3 did not disclose his witnessing the occurrence to any one till noon.
DW 3 the Sarpanch of Madhok spoke that PW 3 alongwith the panch witnesses were brought from Madhok in a Jeep by the police, so he is a planted witness.
In support thereof he contends that the specific evidence of DW 3 in this regard was not challenged in cross examination.
PW 4 was not examined at the inquest though he was conscious.
The police requisitioned the dog squad to sniff the scene of offence to identify the unknown accused.
PW 5 and PW 2 the Doctor admitted that the omission of the names of the accused in the case diary and memos would belie the theory of witnesses.
The omission of the names of the accused in the cause title (Banam) would clearly show that PW 3 and PW 4 were not direct witnesses and PW 3 was introduced at a later stage and he was not examined at the inquest and that PW 4 did not identify the appellants.
This was also further corroborated from the fact that admittedly exhibit P 24, recited that three unknown assailants had killed the deceased.
Admittedly the dog squad was requisitioned.
The appellants were falsely implicated.
As regards PW 4, he further contended that as per the evidence of DW 2 son of Gurbux Singh and DW 3, Gurmail Singh, PW 4 was conscious at that time of his coming to the house of DW 3 and remained to be conscious.
The police did not examine him till June 7, 1984 as the assailants were not known.
There was no light in the house of DW 1 and PW 3 and PW 4 could not have identified the assailants.
The theory of liquor vending is doubtful for the reason that the entire State was under curfew on that day due to blue star operation on June 3, 1984 and no vending would take place when there is a curfew.
If really the appellants 1 and 3 had taken the liquor on credit, nothing prevented the prosecution to produce the chit admittedly taken by D 3.
The theory of burning the shop shows that it is an act of terrorists as was noted in the case diary by PW 6.
Thus the appellants were implicated by suspicion and the prosecution had not established the guilt of the appellant beyond reasonable doubt.
The conviction and sentence by the special court was on the same day, namely May 29, 1985 which contravenes the mandatory provision of s.235 of the Code.
In view of the decision of this court in Allauddin vs State of M.P., J.T.(1989) 2 SC 171 and Anguswamy vs State of Tamilnadu, J.T. the sentence of death awarded to A 1 is illegal.
A 2 had no axe to grind against the deceased.
He neither went for drinking at 9.00 p.m. on that day nor had a quarrel.
He bears no motive to kill the deceased or attack PW 4.
No recovery of Gandasa was made from him.
PW 3 and PW 4 have no prior acquaintance with him.
Therefore, it was highly doubtful whether A 2 had participated in the offence.
As regards to the third 265 appellant (A 3), it is his contention that he is a resident of Rameana.
PW 3 or PW 4 do not know A 6 at all.
Therefore, he may not be able to have participated in the crime.
It was resisted by Mr.Das Bahl, learned counsel for the State.
The acceptance of the prosecution case rests on the evidence of PW 3 and PW 4.
PW 3 and D 3 had the licence to vend liquor at Kotli Ablu.
PW 4 and D 2 were vending liquor under them.
D 4 came to see D 2 as they were married sisters.
D 1 came and was vending on the fateful day in the shop.
D 1 to D 4 were killed in the intervening night of June 4 5, 1984 is practically admitted from the evidence of DW 3.
During the course of the same transaction PW 4 sustained 7 lacerated gunshot injuries and one incised injury is also admitted through the evidence of DW 2 and DW 3, PW 2, the Doctor 's evidence conclusively established that D 1 and D 2 died due to gun shot injuries.
D 1 and D 2 each had two entry and exit wounds due to gun shots.
D 3 and D 4 also had gunshot lacerated as well as incised injuries.
They also died on the spot due to the injuries which are sufficient to cause death in the ordinary course of nature.
Seven empty and two live cartridge fired from M 0/11 rifle of 351 bore of U.S.A. make belonging to A 1 were recovered from the scene of occurrence.
Therefore, the deaths of D 1 and D 2 due to gunshot injuries and D 3 and D 4 due to gunshot and incised injuries are proved beyond doubt.
Equally PW 4 sustained injuries is also established.
The only question is whether the appellants are assailants.
The conviction of the appellants hinges upon the acceptability of the testimony of PW 3 and PW 4.
Let us first take the evidence of PW 4, the injured witness whose presence at the time of occurrence stands confirmed.
He is aged about 19 years.
He was working in the liquor shop of D 3 and PW 3 at Kotli Ablu.
He is residing in that village was not disputed.
As stated earlier he sustained 8 injuries (7 gunshot and one incised) during the course of the same transaction is also indisputable, and in fairness, was not disputed by Shri Lalit.
His serious attack is that PW 4 did not disclose the names of the assailants for two days which would show that he did not either see the assailants or the assailants were not known him.
We find it difficult to accept.
His case that he jumped from the terrace in front of the shop and he was attacked by the assailants was not disputed in the cross examination.
The suggestion that he was sleeping alongwith D 4 would show that he could see A 1 who fired at him while he was running away and it receives corroboration from medical evidence of PW 2 that the injuries are on the backside while he was chased by the accused.
So he 266 could clearly identify his own assailants as the occurrence did not take place at a fleet or glimpse.
In the F.I.R. at the earliest, it was specifically stated that PW 4 was not in a condition to speak.
It would mean that he was either under shock or unconscious.
The First Information Report given by the Chowkidar was admitted in evidence with the consent of the defence.
It is settled law that the First Information Report is not substantive evidence.
It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an after thought.
Since the examination of first information was dispensed with by consent Ex P 24, F.I.R. became part of the prosecution evidence.
Under section 11 of the Evidence Act read with s.6 the facts stated therein namely, PW 4 was not in a speaking condition, could be used only as a relevant fact of prior existing state of facts in issue as resgestae of "the earliest information".
It is not used to corroborate the prosecution case, but can be looked into as an earliest information of the existing condition of PW 4 at 9.00 a.m. on June 5, 1984 i.e. when the report was given in exhibit p 24, PW 4 was still unconscious.
When PW 4 had stated that he became unconscious as soon as he came and tapped the door of DW 3, and fell down, by operation of section 11 of the Evidence Act it may be relevant fact of the previous existing condition that PW 4 contained to remain unconscious till the report was given.
Therefore, the F.I.R. could be used as relevant existing state of fact namely the continuous unconscious condition of PW 4 till PW 5 S.H.O.reached and saw him within the meaning of s.11 read with s.6 of the Evidence Act.
When PW 4 received 7 gun shot injuries and one incised injury and ran for life to a distance with bleeding injuries, it would be quite likely that he would be under severe shock and his evidence that after reaching the home of DW 3 and knocked the door he fell down unconscious appears to be quite natural and probable.
The evidence of PW 5, that on seeing PW 4 in critical unconscious condition he sent him to the Doctor for medical examination and the doctor administering sadation appear to be human probabilities and there is nothing intrinsic to suspect their evidence.
Thus PW 4 was not in a fit condition to give statement till June 7, 1984 at 7.00 a.m. PW 4 's evidence that he was residing at Kotli Ablu and that he knew the accused was not disputed in the cross examination.
It is not uncommon in normal human probability that he was not expected to know the names of the relations of A 3.
When A 1 and A 3 came in that very night to the shop and quarreled for non supply of liquor on credit, it would be fresh in the memory of PW 4 and as he saw the assailants he could have easily recognized A 3. 267 Undoubtedly, ocular defence evidence, if it is not subjected to critical cross examination, is entitled to the same weight as prosecution evidence.
But merely because the prosecution, as usual, made insipid cross examination, the defence evidence is not to be believed automatically.
Witnesses may be prone to speak lies but circumstances will not.
So even though the burden of the defence is not as heavy as of the prosecution, the oral evidence tendered by the defence must also be subjected to critical scrutiny and be considered in the light of the given facts and attending circumstances of the case and human probabilities.
The evidence on record is clear that PW 4 was left attended, though was lying with injuries at the house of DW 3, till the investigating officer PW 5 came and saw him in critical condition.
The normal human conduct, which is common in the country side, is to give immediate first aid and then to make inquire of the cause for injuries and the persons who caused the same.
As DW 3 betrayed such conduct, make us to suspect the credibility and veracity of his evidence and of DW 2 that PW 4 was conscious all through and that he did not disclose the assailants ' names.
Therefore, the evidence of DW 2 and DW 3 that PW 4 was professed to have disclaimed the names of the assailants is unbelievable despite no specific cross examination was directed on that aspect.
That apart they did not tender themselves to be examined by PW 5, the investigating officer.
As regards the shedding of the light from the house of Gurbax Singh is concerned, there is uncontroverted evidence of PW 5, that he remained in the village till 9.30 p.m. on June 5, 1984 to see whether the light was emanating from the house of Gurbax Singh and found to be so and sufficient for PW 3 and PW 4 to identify the assailants.
No cross examination on this aspect was directed.
Gurbax Singh, the owner of the house was not examined by the defence.
Only his son DW 2, an youngster, came into the box and perjured the evidence.
Therefore, the claim that the light was not working for three months prior to the date of occurrence, cannot be believed.
Even assuming that there was no light, even then, PW 4 could identify his own assailants when he was attacked and chased in the course of the same transaction.
Nothing worthwhile was brought out in the cross examination to disbelieve his testimony.
He had no axe to grind against any of the accused.
To motive to make false implication of the accused was even suggested.
He cannot be expected to allow his own assailants to go unpunished and would implicate innocent persons.
Moreover the medical evidence of PW 2 fully corroborated the evidence of PW 4.
It is settled law that corroboration is not a rule of law, but one of caution as an assurance.
The conviction could be made on the basis of 268 the testimony of a solitary witness.
The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness after the incident, the nearness of the witness to the victim, his pre disposition towards the accused, are some of the circumstances to be kept in view to weigh and accept the ocular evidence of a witness.
It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance.
Considered in this light, we have no hesitation to conclude that PW 4 is a witness of truth and inspires us to believe his evidence.
He would, even in the absence of any light have identified the accused, who had attacked him and committed the murders of sleeping, unarmed and innocent D 1 to D 4.
The evidence of PW 3, though was severely attacked by Shri Lalit, giving our anxious consideration and subjecting to careful analysis, we find that the Special Court committed no error in accepting his evidence.
It is common knowledge that the villagers during summer sleep outside the house, court yard of the house, if any, or on the terrace of the concrete houses.
No doubt there is no stairs to the terrace of the shop whose height is only 8 and 1/2 feet.
PW 4 and PW 3 being young men it is not difficult to climb up and sleep and now it was proved providential for them.
Therefore, the absence of producing, the quilts or lack of steps is not a serious infirmity to doubt the presence of PW 3 and PW 4 and that they slept on the terrace of the shop.
In view of curfew and tense condition in the State, it would be unlikely that PW 3 would have traveled in the night to Madhok at a distance of 23 km.
The evidence on record clearly shows that the defence has freely used the entries in the case diary as evidence and marked some portions of the diary for contradictions or omissions in the prosecution case.
This is clearly in negation of and in the teeth of s.172(3) of the Code.
Section 172 reads thus: "Diary of proceedings in investigation. (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forthwith the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
269 (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the (1 of 1872) shall apply.
" It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation.
Under sub section(2) the Court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial.
Neither the accused, nor his agent, by operation of sub section(3), shall be entitled to call the diary, nor shall he be entitled to use it as evidence merely because the Court referred to it.
Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness, by operation of s.161 of the Code section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re examination by the prosecution, with permission of the court.
It is, therefore, clear that unless the investigating officer or the Court uses it either to refresh the memory or contradicting the investigating officer as previous statement under s.161 that too after drawing his attention thereto as is enjoined under s.145 of the Evidence Act.
The entries cannot be used by the accused as evidence.
Neither PW 5, nor PW 6, nor the court used the case diary.
Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence.
Thereby the defence cannot place reliance thereon.
But even if we were to consider the same as admissible that part of the evidence does not impinge upon the prosecution evidence.
As regards the omission of the names of the appellants in the memos sent to the Medical Officer PW 2 under exhibit D 13 and 15 it is also not evidence except as record of investigation.
It is not a rule of 270 law that the memo should bear names with cause title of accused.
It is enough if the name of the injured is mentioned in the memo.
Therefore, the omission to refer their names after the word Banam in the memos sent to the Doctor would not create any doubt that the appellants were later implicated.
Equally the prosecution cannot rely on the statement of PW 3 enclosed to the inquest reports as substantive evidence, as is done and argued with vehemence by Sri Das Bahl.
Section 174 of the Code empowers a police officer to investigate in the presence of two or more respectable witnesses and report only the cause of death and the person, if known, that has committed the offence.
Section 175 empowers him to summon any person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend the inquest and answer truely all the questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
The statement made by such person is a "previous statement" within the meaning of s.162 and it shall not be signed.
So the statement made by such a person to police officer is in the course of the investigation, and when reduced to writing, it shall be used only by the accused to contradict such witness in the manner provided by s.145 of the Evidence Act or with the permission of the court the prosecution could use it for re examination only to explain the matter referred to in his cross examination.
It is settled law that s.162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police office being used for any purpose whatsoever.
The obvious reason is that the previous statement under the circumstances was not made inspiring confidence.
It enables the accused to rely thereon only to contradict the witnesses in the manner provided by s.145 drawing attention of the witness of that part of the statement intended to be used for contradiction.
It cannot be used for corroboration of a prosecution or defence witness or even a court witness, nor can it be used contradicting a defence or a court witness.
The investigating officer is enjoined to forward the inquest report to the Magistrate alongwith the statement recorded at the inquest, so that the court would see the record, at the earliest of the circumstances leading to the cause of the death of the deceased and the witness examined during the inquest.
Therefore, the statement of PW 3 record during inquest is not evidence.
It is a previous statement reduced to writing under s.162 of the Code and enclosed to the inquest report and cannot be used by the prosecution for any purpose including to show the names of the accused except to contradict the maker thereof, or to explain the same by prosecution.
271 It is true that DW 1 had stated and was not effectively cross examined that PW 3 was brought by the police in a jeep alongwith the Panch.
But he was examined at the inquest is evident from the record.
PW 3 was present at 9.00 p.m. at the time of vending liquor on credit to A 1 and A 3 and the quarrel.
PW 4 stated that PW 3 and himself slept together on the terrace.
He was examined at the inquest is corroborated by doctor 's evidence that statement of PW 3 recorded under s.162 was enclosed to the inquest reports and sent to PW 2, the Doctor alongwith the dead bodies.
There is ring of truth in the evidence of PW 3.
During curfew, in the night he would not have under taken to go to Madhok at a distance of 23 km.
The attending circumstances for coming to the scene of offence appear to be natural and probable in the ordinary course of human conduct.
Having seen that four of his companions were done to death, the instinct of self preservation and the grip of fear would have made him not to stir out from the school and mustered courage only when the police and the military people arrived at the scene at noon.
Thus he came to be examined at the earliest at inquest whereat he disclosed the names and the participation of the appellants.
Thus the evidence of PW 3 would lend to corroborate PW 4 's evidence.
In addition there is a strong circumstantial evidence against A 1 and A 3.
On his arrest on June 15, 1984, M/0/11, rifle was recovered from A 1.
As per exhibit P 17 licence, it belongs to him, the ballistic report exhibit P 20 establishes that the empty cartridges exhibit M.1 to M.7 were discharged from the bore of M/0/11.
This evidence clearly established that M/0/11 was used by A 1 in the crime.
In his examination under s.313, no explanation was given as to how M/0/11 rifle could go out from his custody for being used, in committing the crime by third parties.
From its recovery from the person of A 1, it is clear that it continued to remain in his custody from the time of user in the crime till it was recovered from him.
These circumstances coupled with oral evidence of PW 4 and PW 3 clearly establish the complicity of A 1 in committing the offences of murder of D 1 to D 4.
As equally A 3 accompanied A 1 to the liquor shop and had quarrel.
When A 1 and A 3 left the shop in anger, it is clear that they left the shop in a huff smarting from humiliation at the hands of the contractor from out side the state and their staff.
To avenge the humiliation heaped upon them, they animated to finish the prosecution party.
Obviously they chose past mid night to be sure that all would be asleep and no evidence of their crime would be available.
Thus they have strong motive to kill the deceased and to make murderous attack on PW 4.
Moreover gandasa was recovered pursuant to A 3 's statement under s.27 of 272 Evidence Act leading to its discovery and it contained human blood though blood group could not be detected due to disintegration.
The two incised injuries each on the persons of D 3 and D 4 as corroborated by medical evidence clearly establishes the participation of A 3 in attacking the deceased.
He accompanied A 1 at dead of night to the liquor shop and killed D 1 to D 4 and attempted to kill PW 4.
Thus he shared with A 1 the common intention to kill the deceased D 1 to D 4 and attempt to kill PW 4.
The production of the credit chit kept on the table in the shop would have lent corroboration to the prosecution case of the sale of liquor to A 1 and A 3 on credit.
It is not the prosecution case that it was signed by either of the accused.
It is now in evidence that it was burnt out also with the shop, though no definite evidence for cause of burning is on record, except vague suggestions but denied by the prosecution witnesses that the terrosists committed the arson and killings.
From a totality of facts and circumstances it cannot be concluded that terrorists committed the offence.
As regards A 2 we have grave doubt of his participation in the crime.
Admittedly, he had no motive to kill any of the deceased or to attack PW 4.
He did not come at 9.00 p.m. on June 4, 1984 to the liquor shop for drinking.
There is no recovery of gandasa from him, though he was arrested alongwith A 1 and A 3.
The doubt whether A 2 was likely to be a participant in the commission of this grave crime of four deaths has not been removed from our minds.
It is undoubtedly true that PW 4 had stated that A 2 attacked him with the gandasa but when he was attacked while he was fleeing for life the possibility of mistaken identity of A 2 to A 3 cannot be ruled out.
We make it clear that we are not doubting the veracity of PW 4.
In these circumstances A 2 is entitled to the benefit.
Accordingly, we hold that A 1 and A 3 have shared common intention, they had motive to kill the deceased.
They came together, killed the sleeping innocent four persons D 1 to D 4 and also attempted to kill PW 4.
Accordingly, we hold that A 1 committed the offence of murder of D 1 and D 2 punishable under s.302; D 3 and D 4 's under s.302 read with s.34 I.P.C. and attempt of murder of PW 4 punishable under s.307 read with s.34, I.P.C. A 3 shared the common intention with A 1 and also committed the said offences under s.302 read with s.34; s.307 read with s.34 I.P.C. A 3 was given the minimum sentence of imprisonment of life.
The sentences were directed to run concurrently.
273 On finding that the accused committed the charged offences, s.235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him.
Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty.
Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.
No doubt the accused declined to adduce oral evidence.
But it does not prevent to show the grounds to impose lesser sentence on A 1.
This Court in the aforestated Alluddin and Anguswamy 's cases held that the sentence awarded on the same day of finding guilt is not in accordance with the law.
That would normally have the effect of remanding the case to the Special Court for reconsideration.
But in the view of the fact that A 1 was in incarceration for long term of six years from the date of conviction, in our considered view it needs no remand for further evidence.
It is sufficient that the sentence of death awarded to A 1 is converted into rigorous imprisonment for life.
The sentences of death is accordingly modified and A 1 is sentenced to undergo rigorous imprisonment for life for causing the deaths of all four deceased.
The conviction of A 1 for attempt to murder PW 4 and sentence of five years ' rigorous imprisonment is also upheld and all the sentences would run concurrently.
A 2 is acquitted of all charges.
The bail bonds are cancelled.
He shall be set at liberty unless he is required in any other case.
The appeal is allowed only to the above extent.
V.P.R. Appeal Partly allowed.

dataset_name: IN-Abs

summary/full:
The case of the prosecution was that at about 9.00 p.m. on June 4,1984, A 1 and A 3 came to the liquor shop of D 3 wherein PW 3, D 1, D 2 and PW 4 were also present and were vending the liquor.
They sold one bottle ofliquor to A 1 and A 3 on credit.
After its consumption A 1 and A 3 demanded another bottle to which D 3 refused to sell on credit.
There on A 1 and A 3 abused them and a quarrel ensued.
Both left the shop in anger.
D 1 and D 2 slept on wooden takthposh in front of the liquor shop.
PW 3 and PW 4 climbed the roof of the shop and slept there.
During past mid night of June 4 5, 1984 at about 12.30 a.m., PW 3 and PW 4 heard gun shot fire and got up and saw with the visibility of electric light emanating from the house of one Gurbax Singh, the father of DW 2 that A 1 was firing with rifle at D 1 to D 4 and A 2 and A 3 hitting them with Gandasas (sharp edged weapons).
Seeing PW 3 and PW 4 on the terrace A 1 fired at them but they escaped uninjured and they jumped down.
PW 3 jumped towards back side of the shop and ran towards the village and hid in the school.
PW 4 jumped to the front side and ran towards .
the village A 1 fired at PW 4 257 and A 2 hit him.
He received seven bullet injuries fired by A 1 on the backside, of right leg, thigh and left side of the abdomen while he was running.
A 2 hit him on the right shoulder and had incised injury.
He ran to the house of PW 3 with bleeding injuries, knocked the door and fell down unconscious.
On June 5, 1984 at about 9.00 a.m. the Chowkidar of the village reached Kotli Police Station and reported to PW 5, H.O.who reduced F.I.R. into writing.
In the F.I.R. the chowkidar stated that he had heard gun shot firing from the side of the liquor shop.
Due to fear and the prevailing tense situation he did not come out.
Next day morning he saw several people collected at the liquor shop and saw the dead bodies of D 1 to D 4 and PW 4 was lying unconscious in the house of DW 3 and he was asked to report the matter accordingly.
The defence consented to mark F.I.R., the affidavits of the panch witnesses and constables, the fire arms licence of A 1 under Ex.p 17 and also the reports of the ballistic expert and chemical examination reports without oral evidence.
The lower court believed the direct evidence of PW 3 and PW 4 and the prosecution case that A 1 fired at the deceased with MO 11 rifle, A 2 and A 3 also participated in the attack.
The first accused was convicted under s.302 read with s.34, I.P.C. for causing the deaths of D 1, D 2, D 3 and D 4 and sentenced to death subject to confirmation by this Court.
He was also further convicted under s.307 read with s.34, I.P.C. and sentenced to undergo rigorous imprisonment for 5 years for attempt to murder PW 4.
A 2 and A 3 were convicted under s.302 read with s.34, I.P.C. for causing deaths of D 1 to D 4 and sentenced to undergo imprisonment for life.
A 2 and A 3 were convicted under s.307 read with s.34 I.P.C. for attempt to murder of PW 4 and were sentenced to undergo rigorous imprisonment for 5 years, all the sentences to run concurrently, against which the accused filed appeal u/s.14(1) of the Terrorist Affected Areas (Special Court) Act, 1984.
The appellants contended that the evidence of PW 4 was highly artificial, unbelievable and untrustworthy; that barring their evidence, there was no other evidence to connect the appellants with the commission of the crime; that the omission of the names of the accused in the case diary and memos would belie the theory of witnesses; that the appellants were implicated by suspicion and the prosecution had not 258 established the guilt of the appellant beyond reasonable doubt; that the conviction and sentence by the special court was on the same day, which contravened the mandatory provision of s.235 of the Code.
Partly allowing the appeal, this Court, HELD: 1.
The First Information Report is not substantive evidence.
It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an after thought.
[266B C] 2.
Since the examination of first information was dispensed with by consent F.I.R. became part of the prosecution evidence.
[266B C] 3.
Ocular defence evidence, if it is not subjected to critical cross examination, is entitled to the same weight as prosecution evidence.
But merely because the prosecution, as usual, made insipid cross examination, the defence evidence is not to be believed automatically.
[267A B] 4.
Witnesses may be prone to speak lies but circumstances will not.
So even though the burden of the defence is not as heavy as of the prosecution, the oral evidence tendered by the defence must also be subjected to critical scrutiny and be considered in the light of the given facts and attending circumstances of the case and human probabilities.
[267A C] 5.
Corroboration is not a rule of law, but one of caution as an assurance.
The conviction could be made on the basis of the testimony of a solitary witness.
The occasion for the presence at the time of occurrence, opportunity to witness crime the normal conduct of the witness after the incident, the nearness of the witness to the victim, his pre disposition towards the accused, are some of the circumstances to be kept in view to weigh and accept the ocular evidence of a witness.
It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance.
[267H 268B] 6.
The case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation.
Under Section 172(2) the Court is entitled at the trial or inquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial.
Neither the accused, nor his agent, by operation of sub section
(3), shall be entitled to call the diary, nor shall he be entitled to use it as evidence merely because the Court 259 referred to it.
Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness, by operation of s.161 of the Code and s.145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e., Investigation Officer or to explain it in re examination by the prosecution, with permission of the Court.
It is, therefore, clear that unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as previous statement under s.161 that too after drawing his attention thereto as is enjoined under s.145 of the Evidence Act.
The entries cannot be used by the accused as evidence.
[269C G] 7.
The memos sent to the Medical Officer are not evidence except as record of investigation.
It is not a rule of law that the memo should bear names with cause title of accused.
It is enough if the name of the injured is mentioned in the memo.
[269H 270A] 8.
Section 174 of the Code empowers a police officer to investigate in the presence of two or more respectable witnesses and report only the cause of death and the person if known, that has committed the offence.
Section 175 empowers him to summon any person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend the inquest and answer truely all the questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
The statement made by such a person is a "previous statement" within the meaning of section 162 and it shall not be signed.
So the statement made by such a person to police officer is in the course of the investigation, and when reduced to writing, it shall be used only by the accused to contradict such witness in the manner provided by section 145 of the Evidence Act or with the permission of the court the prosecution could use it for re examination only to explain the matter referred to in his cross examination.[270B E] 9.
S.162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police officer being used for any purpose whatsoever.
The obvious reason is that the previous statement under the circumstances was not made inspiring confidence.
It enables the accused to rely thereon only to contradict the witnesses in the manner provided by s.145 drawing attention of the witness of that part of the statement intended to be used for contradiction.
It cannot be used for corroboration of a prosecution or defence witness or even a court witness, nor can it be used contradicting a 260 defence or a court witness.
The investigating officer is enjoined to forward the inquest report to the Magistrate alongwith the statement recorded at the inquest, so that the court would see the record, at the earliest of the circumstances leading to the cause of the death of the deceased and the witness examined during the inquest.
[270E G] 10.
The statement of witness PW 3 recorded during inquest is not evidence.
It is a previous statement reduced to writing under s.162 of the Code and enclosed to the inquest report and cannot be used by the prosecution for any purpose including to show the names of the accused except to contradict the maker thereof, or to explain the same by prosecution.
[270G H] 11.
On finding that the accused committed the charged offence, s.235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him.
Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty.
Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.
If the accused declines to adduce oral evidence, it does not prevent to show the grounds to impose lessor sentence on.
[273A D] 12.
The sentence awarded on the same day of finding guilt is not in accordance with the law.[273C D] Allauddin vs State of M.P., J.T.(1989) 2 SC 171 and Anguswamy vs State of Tamilnadu, J.T.(1989) 2 SC 184, referred to.


judgement:
Civil Appeal No.1779 of 1991.
From the Judgment and Order dated 10 4 1990 of the Bombay High Court in W.P.No.1944 of 1987.
M.C.Bhandare, CPU Nair, Ms.
Kamini Lao and M.N.Shroff for the Appellants.
V.N.Ganpule, S.K.Agnihotri, A.S.Bhasme and Ms.
H.Wahi for the Respondents.
The Judgment of the Court was delivered by Sawant,J.
Leave granted.
Appellant No.1 is a Trust which runs and manages an Ayurveda College in Bombay.
Appellant No.2, is the Principal of the College.
There was a vacancy in the post of a lecturer in Sanskrit for the academic year 1983 84 which was admittedly reserved for a candidate from the backward classes.
The Ist respondent had applied for the said post on 19th September, 1983 even before the appellant Trust had invited applications by advertising the vacancy as it was required 286 to do.
Subsequently, on October 13, 1983, the appellant Trust issued an advertisement inviting applications for the post without mentioning for which academic year the appointment was to be made.
The parties before us agree that it was for the academic year 1983 84.
In the advertisement, it was specifically mentioned that the post was reserved for a backward class candidate and if no suitable candidate from the backward classes was available, a candidate from the non backward classes may be appointed for an year.
It appears that within a month thereafter on the 12th November, 1983, a second advertisement was issued repeating the earlier advertisement.
No application was received from any candidate from the backward classes in response even to this advertisement, and hence, the Ist respondent who had already applied as stated earlier, was appointed to the said post for the period from March 19, 1984 till April 30, 1984.
The total period of service put in by the Ist respondent for the said academic year was 41 days.
On April 28, 1984, the appellant Trust issued an advertisement for the same post repeating the contents of the earlier advertisement, but for the academic year 1984 85.
The applications were invited by 30th April, 1984.
No candidate from the backward classes applied in response to the said advertisement.
The interview was held on June 30, 1984 and the Ist respondent was appointed for the period from 21st August, 1984 to 19th April, 1985.
In the third academic year 1985 86, admittedly no advertisement was issued and no applications from the candidates including candidates from the backward classes were invited.
However, the Ist respondent was appointed to the post from July 10, 1985 to April 30, 1986.
Thereafter the Ist respondent 's services were terminated w.e.f.
30th April, 1986 by a notice dated March 12, 1986.
No appointment was made to the said post for the academic year 1986 87.
On May 1,1987, the Trust issued advertisement inviting applications to the said post from candidates belonging to all classes since, according to the Trust, the post was dereserved during the said period.
Three candidates belonging to the non backward classes including the Ist respondent and the 5th respondent applied for the post and the 5th respondent was selected and appointed to the same.
It appears that the Ist respondent was not paid salary for the summer vacations following the academic years 1984 85 and 1985 86.
She was also not paid salary from November 1985 to April 1986.
She approached the College Tribunal praying for salary for (i) November 1985 to April 1986, and (ii) for the summer vacations following 287 academic years 1984 85 and 1985 86, i.e., for the months of May and part of June 1985, and May and part of June 1986, and (iii) for setting aside her termination of service and for reinstatement.
The Tribunal allowed her claim for the salary for the relevant periods, but dismissed her claim for reinstatement holding that her appointment was purely temporary and her claim that she should be deemed to have been confirmed because she had served for two academic years was not established in the circumstances of the case.
This decision was delivered by the Tribunal on December 9, 1986.
As stated earlier, during the academic year 1986 87, no appointment was made to the said post and it was subsequent to this decision that an advertisement was issued calling for applications from candidates belonging to all classes and 5th respondent was appointment to the said post.
Against the decision of the Tribunal the Ist respondent approached the High Court under Article 226 of the Constitution, and the High Court held that notwithstanding the break in her actual appointment, she was continuously in employment from March 19, 1984 to April 30, 1986.
She was, therefore, entitled to the benefit of the resolutions of the State Government and the University of Bombay dated September 29, 1986 and February 27, 1987 respectively which, according to the High Court, laid down that an employee who was appointed for two consecutive academic years must be deemed to have been on probation right from the time of the first appointment and, therefore, confirmed in the post.
The High Court, therefore, allowed her petition and directed the appellants to reinstate her forthwith in the post and also to treat her as if she had been in continuous employment from March 19, 1984 with the benefit of full back wages, seniority etc.
The High Court also directed the University, the Director of Ayurveda, Maharashtra and the State of Maharashtra who were respondents 3,4 and 5 respectively to the petition, and who are respondents 2,3 and 4 to the present appeal respectively, to make appropriate sanctions including grant of money, if necessary.
The High Court further granted cost and directed compliance with the orders by the appellants within six weeks from the date of its order, which is April 10, 1990.
Although various contentions have been raised we find that it is not necessary to go into them.
According to us the appellant Trust has violated the directions of the Government as well as of the University in the appointments in question in two major respects, as a result of which neither the appointment of the Ist respondent nor that of the 5th respondent can be said to have been validly made.
Unfortunately, these aspects of the matter which are evident from the record 288 were lost sight of both by the Tribunal and the High Court.
The result has been that the illegalities which are patent on the face of the record have been perpetuated.
The Government of Maharashtra had issued a Govt.
resolution No.
1177/129387/XXXII (CELL) on October 25, 1977 prescribing conditions of service as shown in Appendix III to the resolution.
By a further resolution of April 3, 1978, Government made it clear that the revised scales of pay which were sanctioned by the resolution of October 25, 1977 could be implemented only after statutes had been duly made by the University.
Since the making of the statutes was to take some time and the revised scales of pay recommended of the University Grants Commission were to be effective from January 1, 1973 as laid down in the GR of October 25, 1977, the Vice Chancellor exercised his powers conferred upon him under Section 11(6)(b) of the Bombay University Act 1974 (hereinafter referred to as the "Act") and issued his direction No.192 of 1978 on 7th June, 1978.
This direction, among other things, laid down the mode of recruitment of the teachers and principals, as follows: "Futuer recruitment to posts of Teachers and Principals of colleges shall be made through a Selection Committee, the composition of which is specified in the terms and conditions (Appendix II)." Appendix II states as follows: " Terms and conditions attached to the revised scales of pay.
(i) x x x x x x x x (ii) All appointments of teachers in colleges shall be made on merit and on the basis of all India advertisement.
The qualifications prescribed for the posts should essentially be related to the academic attainment in the subject concerned and should not be linked with language or other regional consideration.
Appointment should not be made on communal or caste consideration.
The constitution of Selection Committee for recruitment to the posts of lectures in a college should be as follows: (a) Chairman, Governing Body of the College or his nominee; 289 (b) a nominee of the Vice Chancellor.
(c) one expert to be nominated by the University.
(d) one nominee of the Director of Education (Higher Education).
(e) Principal of the college; and (f) Head of the Department concerned of the college.
No selection shall be considered valid unless at least one expert is present.
The recommendations of the Selections Committee shall be subject to the approval of the Vice Chancellor.
* * * * * * * * (Emphasis Supplied) 8.
The effect of the aforesaid government resolutions and the University directions is (a) that all appointment of teachers in colleges have to be made on merit and on the basis of all India advertisement;(b) that the appointments have to be made by a Selection Committee which consists, among others, of nominee of the Vice Chancellor, an expert to be nominated by the University and a nominee of the Director of Education (Higher Education).
No selection will be considered valid unless at least one expert is present for the selection.
Admittedly, the selection of the 5th respondent was made by a committee where neither the nominee of the Vice Chancellor nor the expert nominated by the University nor the nominee of the Director of Education (Higher Education), i.e., in the present case of the Director of Ayurveda was present.
The selection so made was, therefore, not valid.
Shri Bhandare, the learned counsel for the appellant Trust Pointed out to us the letter of June 6, 1989 sent by the University of Bombay according approval to the appointment of the 5th respondent as a lecturer in Sanskrit on probation from 2nd July, 1987 and contended that in view of the said approval the invalidity of the appointment, if any, on account of the absence of the expert in the Selection Committee, should be deemed to have been condoned.
We are not impressed by this contention.
In the first instance, there is nothing on record to show whether when the appellant Trust forwarded its report on appointment of the 5th respondent, the Trust had apprised the 290 University of the absence of the expert at the time of his selection.
Secondly, the University has not reserved the power to relax the rule and permit selection without the presence of the expert.
There is nothing in the University 's letter to show why the University had condoned the absence of the expert.
It is, therefore, obvious that the approval given by the University being in ignorance of the true state of affairs and in breach of the rule is legally ineffective and cannot validate the appointment.
There is further a common illegality in the appointment of both the 1st and the 5th respondent which arises on account of the failure to follow the Government Resolutions and University directions in the matter of reservation of the seats for the backward classes, which are binding on the College.
On 30th March 1981, the Government of Maharashtra passed a resolution in exercise of the powers conferred on it under sub Section (2) of Section 77 C of the Act issuing instruction to all the non agricultural Universities in regard to the reservation of posts to be made in favour of Scheduled Castes and Scheduled Tribes while making appointments to teaching and non teaching posts in the University affiliated colleges and recognized institutions.
The reservation prescribed was as follows: (1) Scheduled Castes 13 p.c.
(2) Scheduled Tribes 7 p.c.
(3) Nomadic Tribes & Vimukta Jatis 4 p.c.
Total 24 p.c.
That resolution further says that the various orders contained in the booklet "Reservation and other concessions in Government service for backward classes" will be applicable for recruitment to the teaching and non teaching posts reserved for backward classes in the University and the affiliated colleges and recognized institutions subject to the following modifications in regard to recruitment to the teaching posts.
The modifications, among other things, were as follows: "Similarly, at any given time of recruitment to the teaching posts, only the total number of reserved vacancies and the sections from which they are to be filled in should be 291 determined.
It would be enough if the require percentage is fulfilled as a whole and not with reference to any particular post.
If the reserved vacancies cannot be filled, then so many posts as cannot be filled in may be kept vacant for six months and should be again advertised thrice.
Even after readvertising the posts 3 times if suitable candidates belonging to backward classes do not become available, they may be filled in by candidate belonging to the open category." "For giving effect to the aforesaid instructions, it will be necessary for the Universities to make statutes under Section 77C(1) under their respective Universities Acts of 1974.
For ensuring immediate implementation, the Vice Chancellors of the Universities, under clause (b) of Section 11(6) of the respective Universities Act of 1974.
" (Emphasis supplied) 12.
By its subsequent resolution of October 20, 1983, the Government of Maharashtra clarified its earlier resolution of March 30, 1981 and stated as follows: "1. x x x x x x x x 2.
After reconsideration of the above decision, it is now directed that if suitable candidates cannot be found to fill posts reserved for backward classes in Universities, affiliated colleges and recognized institutions, those posts should be temporarily filled with candidates belonging to non backward classes for one academic year.
But as mentioned in the resolution the appointment of a non backward class candidate to a reserved vacancy should be made only in the event of failure to find a backward class candidate even after the post has been advertised thrice.
x x x x x x x x" (Emphasis supplied) 13.
Thereafter a further resolution was issued by the Government on September 29,1986 on the subject stating therein that it had come to the notice of the Government that some institutions had not 292 implemented the instructions contained in the earlier resolutions of March 30, 1981 and of October 30, 1983.
The Government therefore directed that the said directions should be implemented strictly.
This resolution further directed that the non backward class candidates who were being repented for the second and third academic years when backward class candidates were not found for appointment for the first academic year, should not be called for interview every year and that the candidates belonging to the non backward classes should be appointed for the second and third academic year also, without calling them for interview.
It is further stated in the said resolution that, similarly, as soon as the reserved post is dereserved, the appointed candidate should be confirmed in that post from the date of dereservation subject to all other terms and conditions.
It was also directed that necessary statutes should be made by the University in accordance with the provisions of the Act and for ensuring immediate implementation, the vice Chancellor should issue directions under clause (b) of Section 11(6) of the Act.
Pursuant to the said resolution of the Government, the Vice Chancellor of the University issued direction on March 11, 1987 as follows: "x x x x x x x (1) That the reserved teaching post which is filled in by appointment of a suitable non backward class candidate in the first year by following the prescribed procedure of selection shall be advertised again for the second and third years for inviting applications only from persons belonging to Scheduled Castes, Scheduled Tribes, Denotified Tribes and Nomadic Tribes.
However, applications may also be invited from persons belonging to non backward class if the suitable non backward class candidate already appointed in the first year is not available for reappointment in the second or third year and or his services are required to be terminated on account of unsatisfactory performance of work in the first year; (2) That if in the second year, in response to the advertisement, a backward class candidate is not available, then the suitable non backward class candidate already appointed in the reserved post shall not be required to appear for interview before the Selection Committee again for the second 293 and: or third year (s) but that he shall be reappointed in the reserved post, if he is available for reappointment; (3) That if in response to the third advertisement in the third year, no application is received for the reserved post from candidates belonging to SC, ST, DT, or NT, the college authorities shall start the process of dereservation of the reserved post.
After the process of dereservation of the post is completed, the appointment of non backward class teacher shall be deemed to be on probation with retrospective effect from the date of his initial appointment if he has held continuous appointment for two years in the college or in any other college under the same management, and that his appointment shall be confirmed from the dates of completion of two years of continuous appointment.
The aforesaid direction shall come into force with retrospective effective from the date of the Maharashtras Government Resolution, that is, of 29 9 1986, which means that non backward class teacher who is eligible to get the benefit of the above direction shall be confirmed in his post with effect from 29 9 1986 or from any later date on which he may become eligible for confirmation in accordance with the aforesaid directions.
x x x x x x x x x" (Emphasis supplied) 14.
According to these Government resolutions and University directions (a) whenever a post is reserved to be filled in by the candidates from the backward classes, the post is to be advertise thrice within 6 months in each academic year.
The post is to be kept vacant for the said months 6 months if no suitable candidate from the backward classes is available; (b) the post is to be filled in temporarily for one academic year by a non backward class candidate only after the three advertisements have been given as above; (c) the aforesaid process is to be repeated for two more academic years; (c) the candidate from the non backward classes appointed temporarily in the first academic, year for want of a backward class candidate, is to be continued as a temporary appointee for the next two academic years without being interviewed afresh for the next two years; (d) if in spite of the third advertisement in the third academic year, no application is received from a backward class candidate, the College authorities are free to 294 start the process of dereservation of the reserved post; (e) after the process of dereservation of the post is completed, the appointment of non backward class teacher will be deemed to be on probation with retrospective effect from the date of his initial appointment and he shall be confirmed in the post on his completing two years of his continuous service.
Admittedly, as pointed out earlier, the post was reserved for the academic year 1983 84.
The Trust had not given three advertisements within six months for any of the academic years 1983 84, 1984 85 and 1985 86.
On the other hand for the academic year 1983 84, it issued only two advertisements, viz., on October 30, 1983 and November 12, 1983.
It is not known as to why even two advertisements were not issued at the beginning of the said academic year.
The academic year admittedly begins from June.
May that be, as it is.
As regards the second academic year 1984 85, it issued only one advertisement and that was on April 28, 1984.
It did not issue any advertisement for the academic year 1985 86.
The initial appointment of the 1st respondent for the academic year 1983 84 and her continuation for the subsequent academic years, viz., 1984 85 and 1985 86 was thus in breach of the Government resolutions and the University directions and, therefore, illegal.
Similarly, since the appointment of the 5th respondent was made without fallowing the procedure prior to dereservation, viz., three advertisements repeated every year for all the three academic years for which the post was to be reserved, his appointment to the post, as if the post stood legally dereserved was also illegal since in the facts and circumstances of the case, it is obvious that the post could not have been dereserved to make it available for non backward class candidate.
Shri Bhandare, however, contended that in the meanwhile the appellant Trust had taken steps to shift the reservation from the post of a lecturer in Sanskrit to the post of lecturer in Sanhita.
The Trust had written a letter on July 2, 1986 for the purpose to the Directorate had by its letter of July 11, 1986 accorded the sanction.
It may, however, be pointed out the representation made by the lecturer in Sanskrit to the post of lecturer in Sanhita had proceeded on the basis that the Trust had made efforts to fill in the said post from the candidates of the backward classes as required by the Government resolutions and the University directions.
As pointed out above, the Trust had not made the efforts as required by the said resolutions and directions.
It had not issued the advertisements 295 as it was required to do.
The sanction was obtained and granted obviously on the basis of inadequate information.
The sanction was, therefore, defective in law.
The High Court unfortunately did not notice these infirmities in the appointment of either of the respondents.
Shri Ganpule, the learned counsel appearing for the 1st respondent contended that since the 1st respondent was appointed in the first academic year, viz., 1983 84 and continued for the next two academic years, viz., 1984 85 and 1985 86 she was entitled to the benefit of the directions of the University contained in Circular No. 98 of 1987 dated March 11,1987 which had stated that if the non backward class teacher is on probation continuously for two years he would be deemed to be on probation with retrospective effect from the date of ;his initial appointment.
Although the services of the 1st respondent were terminated w.e.f.
April 30, 1986, since she was entitled to the benefit of the vacation salary following the academic year 1985 86 she would be deemed to be in service after the completion of the vacation and, therefore, she may be said to be in service on September 29, 1986 from which date the said University direction was to be effective.
The contention proceeds on the footing that her initial appointment and the continuation of service for the next two academic years was valid.
We have already pointed out above that they cannot be considered to be valid.
However, assuming that her initial appointment and subsequent continuation of service was valid, she would not be entitled to the b benefit of the University Direction of March 11, 1987 because her entitlement to the vacation salary does not extend her period of employment up to the end of the vacation.
That is a perquisite which is conferred on every teacher who has served during the academic year.
It has no connection with the continuation of the employment since even those teachers whose services are validly terminated before the beginning of the vacation period are given the benefit of the salary of the vacation period.
Statute 424 of the University which is reproduced as Annexure 'C ' to the petition makes this position clear.
The argument, therefore, has no merit.
In the view we have taken the appointments of both 1st and the 5th respondents were not valid.
The post was reserved for the academic year 1983 84.
We are now at the end of the academic year 1990 91 A fresh appointment, therefore, will have to be made for the academic year 1991 92.
In the meanwhile, several events have occurred.
The appointment of the 1st 296 respondent has already been terminated w.e.f. April 30, 1986.
The 5th respondent has been in service from July 2, 1987.
We are informed across the bar that today he has become overaged.
The 1st respondent was overaged even at the time of her initial appointment.
Although the advertisemently had stated that the candidate should not be above 32 years, at the time of her initial appointment itself, she was about 40 years old.
The advertisement had also not l;mentioned anywhere that the age was relaxable.
But that is a matter of history.
In the meanwhile.
as pointed out above, on incomplete information, the Directorate of Ayurveda has allowed the appellant Trust to shift the reservation from the post to the post of a lecturer in Sanhita.
Taking into account all the facts and circumstances, we are of the view that an opportunity should be given to the appellant Trust to cure the illegalities.
While, therefore, we maintain the order of Tribunal and set aside the order of the High Court, we direct the appellant Trust to advertise the post three times sufficient in advance and in any case within six months from the close of the present academic year, viz.
,1990 91 as a post reserved for the backward class candidate, and if no application is received from a suitable backward class candidate, the post will be deemed to have been dereserved.
The Trust will then proceed to fill in the same by a candidate belonging to non backward classes.
This fact may be made clear in all the three advertisements.
The 5th respondent will be entitled to apply for the post notwithstanding the fact that he has by this time become overaged.
If he is selected on the basis of his other qualifications, the Selection Committee shall relax in his favour the condition with regard to the maximum age.
If he is appointed to the post, his appointment will be a fresh one and his past service will not count for the probation period.
The Trust shall for the purpose constitute a proper Selection Committee according to the rules.
The appeal is allowed accordingly.
The parties will bear their own costs.
Before parting with this appeal, we must observe that our decision has proceeded on the basis of the Government resolutions and University directions placed before us.
The resolutions and directions as pointed out above require that the posts reserved for backward class candidates should be kept vacant for six months and it is only after the third advertisement during the said six months in each academic year that they should be filled in by candidates belonging to 297 the non backward classes if suitable candidate from backward classes are not available.
Literally interpreted, it would mean that in each academic year, there will be no teacher for the first six months, if the process of advertisement is to begin at the commencement of the academic year.
This is bound to cause hardship to the students.
It is, therefore, incumbent upon the institutions concerned to advertise the posts thrice within six months well before each academic year begins.
Since in the present case the academic year begins in June, the process of advertisement must begin in December of the preceding year.
This should be the normal practice.
An exception has to be made in the present case because the decision is being given today.
To overcome the hardship to the decision is being given today.
To overcome the hardship to the students, we would recommend that the 5th respondent may be permitted to teach as a purely temporary teacher during the period that the process is not completed for the academic year 1991 92.
However, the appellant Trust will take steps within two weeks from the receipt of this order to start the process of advertisement as directed above.
G.N. Appeal allowed.

summary/full:
For the academic year 1983 84, there was a vacancy for the post of Lecturer in Sanskrit, in the College managed by the appellant Trust.
The said post was reserved for candidate from backward classes.
The first Respondent, not belonging to any backward class, applied for the post, even before the appellant Trust issued an advertisement.
An advertisement was issued later without mentioning the academic year for which the appointment was to be made, though admittedly it was for the academic year 1983 84.
The advertisement specifically stated that the post was reserved for a backward class candidate and if no such candidate was available, a candidate from the non backward classes may be appointed for one year.
Within a month, the advertisement was repeated and yet no application was received from any candidate from backward classes.
Hence the appellant trust appointed the First Respondent, who had earlier applied, from 19.3.84 till 30.4.1984.
Again, an advertisement was issued in 1984 for the academic year 1984 85.
And there was no response from any candidate belonging to backward classes.
The First Respondent was interviewed and appointed for one year, till 19.4.1985.
For the academic year 1985 86, no advertisement was issued.
The First Respondent was again appointment to the said post from July 10, 1985 to April 30, 1986.
Thereafter her services were terminated after issue of notice.
No appointment was made to the said post for the academic year 1986 87.
However, on 1.5.1987, an advertisement was issued inviting applications for the said post from candidates belonging to all classes, 283 dereserving the post.
Respondents 1 and 5 and another candidate, all belonging to non backward classes applied.
The 5th Respondent was selected and appointed to the said post.
Thereafter, in respect of non payment of salary for certain period and for setting aside her termination order, the First Respondent approached the College Tribunal.
The Tribunal allowed her claim for salary for the relevant periods, but dismissed her claim for reinstatement, holding that her appointment was purely temporary and her claim that she should be deemed to have been confirmed because she had served for two academic years was not established in the circumstances of the case.
Against the Tribunal 's decision, the First Respondent approached the High Court by way of a Writ Petition.
The High Court allowed the Writ Petition holding that notwithstanding the break in her actual appointment, she was continuously in employment from March 19, 1984 to April 30, 1986, and hence entitled to the benefit of the resolutions of the State Government and the University directions which, according to the High Court, laid down that an employee who was appointed for two consecutive academic years must be deemed to have been on probation right from the time of the first appointment and, therefore, she should be confirmed in the post.
The benefit of full back wages, seniority etc.
was also ordered.
Aggrieved by the Judgment of the High Court, the appellants preferred the present appeal, by special leave.
Allowing the appeal, this Court, HELD: 1.
The appellant Trust had violated the directions of the Government as well as of the University in the appointments in question as a result of which neither the appointment of the 1st respondent nor that of the 5th respondent can be said to have been validly made.
Both the appointments were made without following the Government Resolutions and the University directions in the matter of reservation of seats for backward classes which are binding on the college.
Unfortunately, these aspects of the matter which are evident from the record were lost sight of both by the Tribunal and the High Court.
[287G H;288A] 2.1.
Admittedly, the selection of the 5th respondent was made by a committee where neither the nominee of the Vice Chancellor nor the expert nominated by the University nor the nominee of the Director of 284 Education (Higher Education), i.e., the Director of Ayurveda, was present.
The selection so made was, therefore, not valid.
[289F] 2.2 There is nothing on record to show that when the appellant Trust forwarded its report on appointment of the 5th respondent, it apprised the University of the absence of the expert at the time of his selection.
The University has not reserved the power to relax the rule and permit selection without the presence of the expert.
There is nothing in the University 's letter to show why the University had condoned the absence of the expert.
The approval given by the University being in ignorance of the true state of affairs and in breach of the rule, is legally ineffective and cannot validate the appointment.
[289H,290A B] 3.
Admittedly, the post was reserved for the academic year 1983 84.
The Trust had not given three advertisements within six months for any of the academic years 1983 84, 1984 85 and 1985 86.
On the other hand, for the academic year 1983 84, it issued only two advertisements.
It is not known as to why even these two advertisements were not issued at the beginning of the said academic year.
As regards the second academic year 1984 85, it issued only one advertisement, and no advertisement was issued for the academic year 1985 86.
The initial appointment of the Ist respondent for the academic year 1983 84 and her continuation for the subsequent academic years, viz., 1984 85 and 1985 86 was thus in breach of the Government resolutions and the University direction and, therefore, illegal.
Similarly, since the appointment of the 5th respondent was made without following the procedure prior to dereservation, viz., three advertisements repeated every year for all the three academic years for which the post was to be reserved, his appointment to the post, as if the post stood legally dereserved, was also illegal since the post could not have been dereserved to make it available for a non backward class candidate.[294B E] 4.
Even assuming that her initial appointment and subsequent continuation of service was valid, the First Respondent would not be entitled to the benefit of the University direction of March 11, 1987 because her entitlement to the vacation salary does not extend her period of employment up to the end of the vacation.
That is a perquisite which is conferred on every teacher who has served during the academic year.
It has no connection with the continuation of the employment since even those teachers whose services are validly terminated before the beginning of the vacation period are given the benefit of the salary of the vacation period.
[295E F] 285 5.
The appellant Trust shall advertise the post three times sufficiently in advance and in any case within six months from the close of the present academic year, viz., 1990 1991 as a post reserved for the backward class candidate, and if no application is received from a suitable backward class candidate, the post will be deemed to have been dereserved.
The Trust will then proceed to fill in the same by a candidate belonging to non backward classes.
This fact may be made clear in all the three advertisements.
The 5th respondent will be entitled to apply for the post notwithstanding the fact that he has become overaged.
If he is selected on the basis of his other qualifications, the Selection Committee shall relax in his favour the condition with regard to the maximum age.
If he is appointed to the post, his appointment will be a fresh one and his past service will not count for the probation period.
The Trust shall constitute a proper Selection Committee according to the rules.
[296D F] 6.
To overcome the hardship to the students, the 5th respondent may be permitted to teach as a purely temporary teacher till the process is completed for the academic year 1991 92.
[297C]


judgement:
121 of 1958.
Petition under Article 32 of the Constitution for enforcement of Fundamental rights.
G. B. Pai and Sardar Bahadur, for the petitioner.
M. C. Setalvad, Attorney General for India, B. Sen and T. M. Sen, for the respondents.
December 11.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
The petitioner has been doing business as an exporter of coir products to foreign countries for the last twenty years.
On July 4, 1958, he applied to respondent 2, the Chairman, Coir Board, Ernakulam, requesting that he should be registered as an established exporter.
This application was accompanied by an income tax clearance certificate and attested copies of bills of lading.
Respondent 2 declined to register the petitioner on the ground that his application was defective inasmuch as the requisite certificate regarding his financial status bad not been produced and no evidence had been given to show that he had exported the minimum quantity required (500 Cwts.).
The petitioner was told that unless he complied with the requirements asked for within seven days his application would be rejected without further notice.
The petitioner found that he could not comply with the directions issued by respondent 2 and so it became impossible for the petitioner to get registration and licence applied for by him.
That is why he filed the present petition under article 32 of the Constitution and prayed for the issue of a writ or order in the nature of mandamus to direct the second respondent to grant the petitioner registration and licence as applied for by him and to prohibit or restrain the said respondent from acting on, or implementing, the rules issued under the , by issue of a writ of certiorari, prohibition or such other writ or order appropriate to protect his rights.
The petitioner also prayed that " if found necessary " the said 781 rules should be declared to be ultra vires the powers of the Central Government and invalid being in violation of the fundamental rights guaranteed by articles 14 and 19 of the Constitution.
The Union of India has, been impleaded as respondent 1 to the petition.
Before dealing with the points raised by the petition it would be necessary to refer briefly to the provisions( of the (45 of 1953), hereinafter called the Act, and the rules framed under it in 1958.
This Act was enacted by the Parliament because it was thought expedient in the public interest that the Union should take under its control the coir industry (section 2).
Section 4 of the Act provides for the establishment and constitution of the Coir Board and section 10 enumerates its functions and duties.
Under section 10(1) it shall be the duty of the Board to promote by such measures as it thinks fit the development under the control of the Central Government of the coir industry.
Sub section (2) enumerates the measures which the Board may take with the object of developing the coir industry without prejudice to the generality of the provisions of sub section
Amongst the measures thus enumerated, sub section
(2) (b) refers to the regulation under the supervision of the Central Government of the production of husks, coir yarn and coir products by registering coir spindles and looms for manufacturing coir products, as also manufacturers of coir products, licensing exporters of coir yarn and coir products and taking such other appropriate steps as may be prescribed.
Sub section (2)(g) refers to the promotion of co operative Organisation among producers of husks, coir fibre and coir yarn and manufacturers of coir products, and sub section
(2)(1) refers to the licensing of retting places and warehouses and otherwise regulating the stocking and sale of coir fibre, coir yarn and coir products both for internal market and for exports.
Section 26(1) confers on the Central Government power to make rules for carrying out the purposes of the Act subject to the condition of previous publication.
Sub section (2) enumerates the matters in res pect of which rules may be made, in particular and without prejudice to the generality of the power 782 conferred by sub section
Sub section (2) (k) refers inter alia to the registration of manufacturers of coir products and the conditions for such registration and the ,,grant or issue of licences under the Act; and sub section
(2)(1) deals with the form of applications for registration and licences under the Act and the fee, if any, to be paid in respect of any such applications.
Under the powers conferred by section 26 the Central Government framed rules in 1958.
For the purposes of the present petition it would be relevant to refer to rr.
17 to 22.
Rule 17 deals with registration and licensing of exports; and it provides that no person shall, after the coming into force of the rule, export coir fibre, coir yarn or coir products unless he has been registered as an exporter and has obtained an export licence under these rules.
The proviso deals with exemptions with which we are not concerned.
Rule 18 lays down that any person who has in any of the three years immediately preceding the commencement of the rules exported not less than twenty five tons of coir yarn or coir products other than coir rope, or exported any quantity of coir fibre or coir rope, may be registered an exporter of coir yarn, coir products other than coir rope or coir fibre or coir rope as the case may be.
Rule 19 provides for the registration of persons other than those covered by r. 18 and it lays down inter alia that such persons may be registered as exporters of coir yarn if, during the period of twelve months immediately preceding the date of application, a minimum quantity of twenty five tons of coir yarn had been rehanked or baled in a factory owned or otherwise possessed by the applicant and registered under the Indian , or, if the applicant has had a total purchase turnover of one hundred tons of coir yarn.
The proviso to this rule authorises the Chairman by notification to exempt from the operation of this rule any co operative society the members of which are owners of industrial establishments or any Central Co operative Marketing Society.
Rules 20 and 22 prescribe the mode of making an application for registration as an exporter and for licence respectively while r. 21 provides for the 783 cancellation of registration.
The present petition does not challenge the validity of any of the provisions of the Act.
It, however, seeks to challenge the vires of rr. 18, 19, 20(1)(a), 21 and 22(a).
There is no doubt that coir and coir products play an important role in our national economy.
They are commodities which earn foreign exchange, the total ' value of our exports in these commodities being of the order of Rupees Ten Crores per year.
It was found that several malpractices had crept in the export trade of these commodities such as non fulfilment of contracts, supplying goods of inferior qualities and cut throat competition; and these in turn considerably affected the volume of the trade.
That is why Parliament thought it necessary that the Union should take under its control the coir industry in order to regulate its export trade.
It is with the object of developing the coir industry that the Coir Board has been established and the registration and licensing of exporters has been introduced.
The petitioner does not dispute this position and makes no grievance or complaint against the relevant provisions in the Act.
It is, however, urged that the relevant rules which prescribe the quantitative test for the registration of established exporters are ultra vires because the introduction of the said test is inconsistent with the provisions of the Act.
In this connection Mr. Pai, for the petitioner, sought to rely on the report submitted by the Ad Hoc Committee for external marketing which the Coir Board had appointed on August 20, 1954.
His grievance is that the report of the said Committee does not recommend the adoption of the quantitative test, but seems to suggest that a qualitative test would be more appropriate ; and that, according to Mr. Pai, also indicates that the quantitative test had been improperly prescribed by the rules.
We are not impressed by these arguments.
It is clear that there is no provision in the Act which excludes or prohibits the application of the quantitative test in making rules for registration of exporters or for issuing licences for export trade.
In fact the Act has deliberately left it to the rule making authority to frame rules 784 which it may regard as appropriate for regulating the trade; and so it would be impossible to accept the argument that the rule making authority was bound to prescribe the qualitative rather than the quantitative test.
Besides, it does not appear that the report of the Committee on which Mr. pai relied definitely indicated its partiality for the adoption of the qualitative test.
Indeed Appx.
XI to the said report would suggest that the Committee in fact was not averse to the adoption of a quantitative test; but even if the Committee had expressly recommended the adoption of a qualitative, not a quantitative, :test, it would be idle to suggest that the Coir Board was bound to accept the said recommendation or that the Central Government was not competent to make rules contrary to the recommendations of the Committee.
The validity of the rules can be successfully challenged if it is shown that they are inconsistent with the provisions of the Act or that they have been made in excess of the powers conferred on the rule making authority by section 26 of the Act.
In our opinion, no such infirmity has been established in respect of the impugned rules.
It is then contended that the relevant rules would ultimately tend to establish a monopoly in the export trade of coir commodities and would thereby extinguish the trade or business of small dealers like the petitioner.
It is also contended that the application of the quantitative test discriminates between persons carrying on business on a large scale and those who carry on business on a small scale.
That is how articles 19 and 14 of the Constitution are invoked and the validity of the relevant rules is challenged on the ground that they violate the fundamental rights of the petitioner under the said Articles.
We think there is no substance in this contention.
If it is conceded that the regulation of the coir industry is in the public interest, then it would be difficult to entertain the argument that the regulation or control must be introduced only on the basis of a qualitative test.
It may well be that there are several difficulties in introducing and effectively enforcing the qualitative test.
It is well known that granting 785 permits or licences to export or import dealers on the basis of a quantitative test is not unknown in regard to export and import of essential commodities.
It would obviously be for the rule making authority to decide which test would meet the requirements of public interest and what method would be most expedient in controlling the industry for the national ' good. Beside,%, even the adoption of a qualitative test may tend to extinguish the trade of those who do not satisfy the said test; but such a result cannot obviously be treated as contravening the fundamental rights under article 19.
Control and regulation of any trade, though reasonable within the meaning of article 19, sub article
(6), may in some cases lead to hardship to some persons carrying on the said trade or business if they are unable to satisfy the requirements of the regulatory rules or provisions validly introduced ; but once it is conceded that regulation of the trade and its control are justified in the public interest, it would not be open to a person who fails to satisfy the rules or regulations to invoke his fundamental right under article 19(1)(g) and challenge the validity of the regulation or rule in question.
In our opinion, therefore, the challenge to the validity of the rules on the ground of article 19 must fail.
The challenge to the validity of the said rules on the ground of article 14 must also fail, because the classification of traders made by rr. 18 and 19 is clearly rational and is founded on an intelligible differentia distinguishing persons falling under one class from those falling under the other.
It is also clear that the differentia has a rational relation to the object sought to be achieved by the Act.
As we have already pointed out, the export trade in coir com modities disclosed the existence of many malpractices which not only affected the volume of trade but also the reputation of Indian traders; and one of the main reasons which led to this unfortunate result was that exporters sometimes accepted orders far beyond their capacity and that inevitably led to non fulfilment of contracts or to supply of inferior commodities.
In 99 786 order to remedy this position the trade had to be regulated and so the intending exporter was required to satisfy the test of the prescribed minimum capacity and to establish the prescribed minimum status before his application for registration is granted.
In this connection it may also be relevant to point out that the rules seem to contemplate the granting of exemption from the operation of some of the relevant tests to co operative societies; and that shows that the intention of the Legislature is to encourage small traders to form co operative societies and carry on export trade on behalf of such societies; and so it would not be possible to accept the argument that the impugned rules would lead to a monopoly in the trade.
It is thus clear that the main object which the rules propose to achieve is to remove the anomalies and malpractices prevailing in the export trade of coir commodities and to put the said trade on a firm and enduring basis in the interest of national economy.
We are, therefore, satisfied that the challenge to the impugned rules on the ground of infringement of article 14 of the Constitution must also fail.
In the result we hold that there is no substance in the petition.
It accordingly fails and is dismissed with costs.
Petition dismissed.

summary/full:
The petitioner, an unsuccessful applicant for registration as an exporter and licensee for exporting coir products, challenged the vires of the rr. 18, 19, 20(1)(a), 21 and 22(a) made by the Central Government in exercise of its powers under section 26(1) of the (45 Of 1953).
The Act had for its object the regulation and control of the Coir industry in public interest.
It was contended on his behalf that the impugned rules, which prescribed the quantitative, and not the qualitative, test for registration of established exporters, were inconsistent with the provisions of the Act and as such, ultra vires the Act and that they tended to create a monopoly in the export trade of coir commodities and thereby destroy the business of small dealers and discriminated between those who carried on large scale business and those who carried on small scale business and thus impugned articles 19 and 14 Of the Constitution.
Held, that the contentions were without substance and must be negatived.
There was no provision in the , that excluded or prohibited the application of the quantitative test and the rules were in no way inconsistent with the Act nor in excess of the powers conferred on the Central Government by section 26 of the Act.
Where an Act sought to control an industry in public interest it would obviously be for the rule making authority to decide which rules and regulations would meet the requirement of public interest.
Such rules and regulations, though reasonable within the meaning of article 19(6), might cause hardship to those who failed to comply with them.
But once it was conceded that the regulation and control of the trade were justified in public interest, article 19(1)(g) could not be invoked to challenge the validity of the rules.
Nor did the impugned rules violate article 14 Of the Constitu tion.
The classification of traders under rr.
18 and 19 was clearly founded on an intelligible differentia that had a rational relation to the object of the Act.
The exemption made by the rules in favour of co operative societies from some of the relevant tests indicated that the Legislature intended to encourage small 780 traders.
It was not, therefore, correct to say that the rules would lead to a monopoly in the trade.