judgement:
Appeal Nos.
714 16 of 1993.
From the Judgment and Order dated 14.9.92 of the Allahabad High Court in Civil Misc.
W.P. Nos. 20731, 23861 & 24353 of 1991.
AND Civil Appeal No. 717 of 1993.
39 From the Judgment and Order dated 9.12.91 of the Allahabad High Court in Civil Misc.
W.P.No.
11114 of 1990.
D.V. Sehgal, Ravi Kiran Jain, Sunil Gupta, Jamshed Bey, H.K. Puri, Mrs. Rani Chhabra and R.B. Misra for the Appellants.
Sabir Hussain Saif, Shakeel Ahmed Syed, Bahar U. Barqi, Anis Suhrawardy and Vijay Hansaria for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
Special leave granted.
As common questions of fact and law are involved in all the above cases, as such they are disposed of by one single order.
First proviso to Section 9 of the United Provinces Municipalities Act, 1916 (hereinafter referred to as 'the Act ') provided for nomination of only one woman as a member of the Municipal Board by the State Government.
Further, there was no provision permitting the State Government to cancel the nomination of such member at its pleasure.
One Smt.
Sarla Devi was nominated by the State Government as the sole Woman member for the Shahjahanpur Municipal Board (hereinafter referred to as 'the Board) in January, 1989.
By U.P. Ordinance No. 2 of 1990 later on succeeded by Ordinance No. 8 of 1990 and eventually replaced by U.P. Act No. 19 of 1990, the aforesaid first proviso to Section 9 of the Act was substituted by another proviso which made provision for the nomination of two women members by the State Government.
Further, a fourth proviso was also added to Section 9 of the Act which provided that the nomination of the aforesaid two members was at the pleasure of the State Government.
The aforesaid Ordinance No. 2 of 1990 was promulgated on 15.2.1990.
Soon thereafter on 19.2.1990, a general notification was issued by the State Government cancelling of nominations of Women members in several Municipal Boards in Uttar Pradesh.
The nomination of Smt.
Sarla Devi also stood cancelled.
On 19.4.1990, the State Government nominated Smt.
Abida and Hazra Khatoon as members of the Board under the newly introduced fourth proviso to Section 9 of the Act.
The total strength of the Board was 37 including two nominated women members.
On 22.7.1991 Mohd. Iqbal was the President of the Board and Shri Om Narain Agarwal was the Vice President of the Board.
Some members of the Board on 40 22.7.1991initiated no confidence motion against Mohd. Iqbal before the District Magistrate in accordance with the procedure prescribed under Section 87 A of the Act.
The District Magistrate fixed 12.8.1991 for consideration of the no confidence motion.
In the meantime, the State Government on 2.8.1991 in exercise of its powers under the fourth proviso to Section 9 of the Act issued notification cancelling the nominations of Smt.
Abida and Hazra Khatoon and in their place nominated Smt.
Shyama Devi and Smt.
Baijanti Devi as the two women members of the Board.
On 9.8.1991 Mohd. Iqbal filed a Writ Petition No. 20731 of 1991 in the High Court challenging the constitutional validity of the fourth proviso to Section 9 of the Act as well as the notification dated 2.8.1991 whereby the nomina tions of Smt.
Abida and Hazra Khatoon were cancelled and in their place Smt.
Shyama Devi and Smt.
Baijanti Devi were nominated.
Mohd. lqbal also challenged the proceedings of no confidence motion initiated against him.
The High Court in the aforesaid Writ Petition passed an interim order stating that outcome of the no confidence proceedings shall be subject to the result of the Writ Petition but did not grant any stay of no confidence proceedings.
Shyama Devi and Smt.
Baijanti Devi participated in the meeting held on 12.8.1991 and so far as Smt.
Abida and Hazra Khatoon are concerned, they neither attended the said meeting nor claimed any right to attend the same.
In the aforesaid meeting held on 12.8.1991, 20 members of the Board voted in favour of the no confidence motion out of the total strength of 37 members of the Board.
After the no confidence motion dated 12.8.1991 having been passed against Mohd. lqbal, a casual vacancy arose in the Office of the President of the Board by virtue of Section 47 A of the Act and Shri Om Narain the then Vice President was elected as President of the Board.
Om Narain took charge of the said Office and continued to function as President thereafter.
Mohd. Iqbal then filed another Writ Petition No. 23861 of 1991 on 20th August, 1991 challenging the no confidence motion dated 12.8.1991 passed against him.
The High Court refused to pass any stay order in favour of Mohd. Iqbal.
Abida and Smt.
Hazra Khatoon also filed a Writ Petition No. 24353 of 1991 on 12.9.1991 challenging the cancellation of their nominations and nominating Smt.
Shyama Devi and Smt.
Baijanti Devi in their place.
A Division Bench of the Lucknow Bench of the Allahabad High Court in Writ Petition No. 1067 of 1991 Prem Kumar Balmiki vs State of U.P. by order dated 13.11.1991 held that the fourth proviso to Section 9 of the Act was constitutional and valid and any notification issued by the State 41 Government under the said provision was also valid.
Another Division Bench of the Allahabad High Court sitting at Allahabad in Writ Petition No. 11114 of 1990 Dr. Smt.
Rama Mishra vs State of U.P. by 'order dated 9.12.1991 held that the fourth proviso to Section 9 of the Act was arbitrary, unreasonable, unconstitutional and invalid and any notification issued thereunder cancelling the nomination of any woman member of the Board and nominating a new member was invalid.
A Division Bench of the Allahabad High Court considered all the three Writ Petitions, two filed by Mohd. Iqbal and one by Smt.
Abida and Smt.
Hazra Khatoon and by a common order dated 14.9.1991 recorded its agreement with the decision in Rama Mishra 's case and quashed the notification dated 2.8.1991 whereby Smt.
Abida and Smt.
Hazra Khatoon were ousted and in their place Smt.
Shyama Devi and Smt.
Baijanti Devi were nominated and also declared Mohd. Iqbal to be the President of the Board.
In this judgment the High Court though followed Rama Mishra 's case but failed to take notice of the decision of the Lucknow Bench of the High Court dated 13.11.1991 given in Prem Kumar Balmiki 's case.
A review application filed by Om Narain and others was also dismissed by the High Court by order dated 21.9.1992.
Aggrieved against the aforesaid decision of the High Court, Om Narain Agarwal former Vice President, Smt.
Shyama Devi and Smt.
Bailjanti Devi have come in appeal by Special Leave Petition Nos.
13621 23 of 1992.
Bashiran who was a nominated woman member in the Municipality of Varanasi and whose nomination was subsequently cancelled has filed Special Leave Petition No. 13004 of 1992 against the judgment of the Allahabad High Court dated 9.12.1991 passed in Dr. Rama Mishra 's case.
The Division Bench of the High Court in the impugned order dated 14.9.1992 has agreed with the view taken in Dr. Rama Mishra 's case.
After taking the aforesaid view the High Court held that the State Government had no power to cancel the nominations of Smt.
Abida and Smt.
Hazra Khatoon and to nominate Smt.
Shyama Devi and Smt.
Baijanti Devi in their place.
The High Court as a result of the above finding held that the notification dated 2.8.1991 was a nullity and that being so, the earlier notification dated 19.4.1990 nominating Smt.
Abida and Smt.
Hazra Khatoon remained operative.
The High Court then considered the next question as to what was the effect of the notification dated 2.8.1991 and the motion of no confidence passed on 12.8.1991.
The High Court in this 42 regard took the view that the total strength of the members was 37 and the motion of no confidence was carried out by 20 members including the two nominated members Smt.
Shyama Devi and Smt.
Baijanti Devi.
As nomination of these two women members was declared to be invalid, their par ticipation and voting right shall have to be ignored and in that view of the matter, proceedings dated 12.8.1991 shall be considered as having been attended only by 18 eligible members and the motion cannot be deemed to have been carried by a majority of the members consisting of at least 19 members.
The High Court thus held that the provision of Section 87 A (12) of the Act being mandatory and the resolution of no confidence having not been passed by a requisite majority the entire proceedings held on 12.8.1991 relating to the motion of no confidence was non est and as such the resolution of no confidence passed therein was void.
The High Court also repelled the contention that till the nomination of Smt.
Shyama Devi and Smt.
Baijanti Devi was declared void, all acts done by them will be protected by de facto doctrine.
The High Court also repelled the contention that the nomination of Smt.
Abida and Smt.
Hazra Khatoon vide notification dated 19.4.1990 should also be declared invalid on the analogy on which the notification dated 2.8.1991 nominating Smt.
Shyama Devi and Smt.
Baijanti Devi has been declared invalid.
The High Court in this regard held that the notification dated 19.4.1990 shall remain operative unless the same is challenged and declared to be void.
It was also held by the High Court that in view of the interim order passed on 9.8.1991 in Writ Petition No. 20731 of 1991 to the effect that the result of no confidence motion shall be subject to the decision of the Writ Petition, Section 47 A(1)(b) of the Act cannot be invoked against the writ petitioner.
The High Court after recording the above findings passed the following operative order: "In the result the Writ Petition No. 20731 of 1991 is partly allowed and the notification dated 2.8.1991 (Annexure No. 3 to the Petition) is quashed.
The Writ Petition No. 23861 of 1991 succeeds and is allowed and the entire proceedings taken up in the meeting dated 12.8.1991 including the resolution of no confidence passed against the petitioner are quashed.
Annexures No. 1 and 1 A to this petition are quashed.
The respondents are directed not to interfere with the petitioner 's working as President of the Municipal Board, Shahjahanpur.
The Writ Petition No. 24353 of 1991 succeeds and is allowed.
Notification dated 2.8.1991 (An 43 nexure No. 1 to this petition having been quashed, the respondents are directed to treat the petitioners as members of the Municipal Board, Shahjahanpur and permit them to act as such.
No order as to costs.
" Before considering the arguments advanced on behalf of the appellants, it would be necessary to state the relevant provisions of the Act namely, Sections 9, 47 A and 87 A of the Act.
Section 9 of the Act including the amendment added from 15.2.1990 is reproduced as under: "[Section 9.
Normal composition of the board.
Except as otherwise provided by Section 10, a Board shall consist of (a) The President; (b) The elected members who shall not be less than 10 and not more than 40, as the State Government may by notification in the Official Gazette specify; (c) The ex officio members comprising all members of the House of People and the State Legislative Assembly whose constituencies include the whole or part of the limits of the Municipality;] [(d) Ex officio members comprising all members of the Council of States and the State Legislative Council who have their residence within the limits of the Municipality.
Explanation.
For the purposes of this clause, the place of residence of a member of the Council of States or the State Legislative Council shall be deemed to be the place of his residence mentioned in the notification of his election or nomination, as the case may be] : [Provided that if none of the members elected under clause (b), is a woman, the State Government may by a like notification nominate one woman as a member of the Board and thereupon, the normal composition of the 44 Board shall stand varied to that extent] [Provided that if none or only one of the members elected under clause (b), is a woman, the State Government may, by notification, nominate two women members or one more woman member, as the case may be, so that the number of women members in the Board is not less than two and thereupon the normal composition of the Board shall stand varied to that extent] [Provided further that if any member of the State Legislative Council representing the Local Authorities Constituency does not have his residence within the limits of any Municipality, he will be deemed to be ex officio member of the board of such one of the municipalities situated within his constituency as he may choose : Provided also that if none of the members elected under clause (b) belongs to safai mazdoor class, the State Government may, by notification, nominate a person belonging to the said class a member of the Board, and thereupon the normal composition of the Board shall stand varied to that extent.
Explanation : A person shall be deemed to belong to the Safai Mazdoor class if he belongs to such a class of scavengers by occupation or to such of the Scheduled Castes traditionally fol lowing such occupation as may be notified by the State Government] : [Provided also that a member nominated under this section, whether before or after February 15, 1990 shall hold office during the pleasure of the State Government, but not beyond the term of the Board.]" "[47 A. Resignation of President of vote of non confidence. (1) If a motion of non confidence in the President has 45 been passed by the board and communicated to the President in accordance with the provisions of Section 87 A, the President shall (a) With three days or the (receipt) of such communication, either resign his office or represent to the State Government to (supersede) the board stating his reasons therefore, and [(b) unless he resigns under clause (a), cease to hold office of President on the expiry of three days after the date of receipt of such communication, and thereupon a casual vacancy shall be deemed to have occurred in the office of the President within the meaning of Section 44 A: Provided that.if a representation has been made in accordance with clause (a) the board shall not elect a President until an order has been made by the State Government under sub section (3)].
[(2) ****] (3) If a representation has been made in accordance with sub section (1), the State Government may after considering the same [either supersede the board for such period, not exceeding the remainder of the term of the board, as may be specified, or reject the representation.] [(4)*****] [(5)*********] [(6) If the State Government supersedes the board under sub section (3) the consequences mentioned in Section 31 shall follow as if there had been a supersession under Section 30. '] "[87 A. Motion of non confidence against President.
(1) Subject to the Provisions of this section, a motion expressing non confidence in the President shall be made 46 only in accordance with the procedure laid down below.
[(2) Written notice of intention to make a motion of no confidence in its President signed by such number of members of the Board as constitute no less than [one half] of the total number of members of the Board together with a copy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the notice to the District Magistrate.] (3) The District Magistrate shall then convene a meeting for the consideration of the motion to be held at the office of the board, on the date and at the time appointed by him which shall not be earlier than thirty and not later than thirty five days from the date on which the notice under sub section (2) was delivered to him.
He shall send by registered post not less than seven clear days before the date of the meeting, a notice of such meeting and of the date and time appointed therefor, to every member of the board at his place of residence and shall at the same time cause such notice to be published in such manner as he may deem fit.
Thereupon every member shall be deemed to have received the notice.
(4) The District Magistrate shall arrange with the District Judge for a stipendiary civil judicial officer to preside at the meeting convened under this section, and no other person shall preside thereat.
If within half an hour from the time appointed for the meeting, the judicial officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and the time to be appointed and notified to the members by that officer under sub section (5).
(5) If the judicial officer is unable to preside at the meeting, he may, after recording his reasons adjourn the meeting to such other date and time as he may appoint, but not later than fifteen days from the date appointed for the meeting under sub section (3).
He shall without delay communicate in writing to the District Magistrate the 47 adjournment of the meeting.
It shall not be necessary to send notice of the date and the time of the adjourned meeting to the members individually, but the District Magistrate shall give notice of the date and the time of the adjourned meeting by publication in the manner provided in sub section (3).
(6) Save as provided in sub sections (4) and (5) a meeting convened for the purpose of considering a motion under this section shall not for any reason be adjourned.
(7) As soon as the meeting convened under this section has commenced, the judicial officer shall read to the board the motion for the consideration of which it has been convened and declare it to be open for discussion.
(8) No discussion on any motion under this section shall be adjourned.
(9) Such discussion shall automatically terminate on the expiry of three hours from the time appointed for the commencement of the meeting, unless it is concluded earlier.
Upon the conclusion of the debate or upon the expiry of the said period of three hours, as the case may be, the motion shall be put to the vote of the board.
(10) The judicial officer shall not speak on the merits of the motion, nor shall he be entitled to vote thereon.
(11) A copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon shall on the termination of the meeting, be forwarded forthwith by the judicial officer to the [President and the] District Magistrate [Provided that if the President refuses or avoids to take delivery of the copies so forwarded, the same shall be affixed at the outer door of his last Known residence and .he shall be deemed to have received the same at the time such affixation is made.] 48 [(11 A.] As soon as may be after three days of the receipt of the copies mentioned in sub section (11), the District Magistrate shall forward the same to the State Government, together, in the event of the motion of non confidence having been carried, with a report whether or not the President has forwarded his resignation in accordance with the provisions of Sections 47 and 47 A;] [(12) The motion shall be deemed to have, been carried only when it has been passed by a majority of [more than one half] of the total number of members of the Board.] [(13) If the motion is not carried by a majority as aforesaid, or if the meeting cannot be held for want of quorum which shall not be less than two thirds of the total number of members of the Board, for the time being, No. notice of any subsequent motion of no confidence in tic same President shall be received until after the expiry of a period of two years from the date of the meeting.] [(14) No Notice of a motion of no confidence under this section shall be received within two years of the assumption of office by a President.] [(15) Nothing done by any member of the board, the District Magistrate, the judicial officer or the [State Government] in pursuance of the provisions of this section shall be questioned in any Court.]" It was contended on behalf of the appellants that the view taken in Dr. Rama Mishra 's case was not correct and the view taken by the Lucknow Bench of the Allahabad High Court in Prem Kumar Balmiki 's case was correct.
It was submitted that the State Legislature was fully competent to insert fourth proviso and to lay down that the nominated members shall hold office during the pleasure of the State Government.
It was submitted that the pleasure doctrine also finds place in several other enactments including the Constitution of India.
It was submitted that under Article 75 (2) of the Constitution, Ministers of the Central Government hold office during the pleasure of the President.
Similarly, under Article 164 (1), the Ministers in the States of the Indian Union hold office during the pleasure 49 of the Governor.
Similarly, under Article 76 (1), the President appoints Attorney General for India and in view of clause 4 of the said Article this office is held during the pleasure of the President.
It was also submitted that Governors for the States are appointed by the President under Article 155 and under Article 156 (1),.
the Governor holds office during the pleasure of the President.
It was also contended that the Office of member of Municipal Board is a political office.
It was further argued that if the initial appointment by nomination is made on political considerations, there appears no reason why political consideration should not be allowed to operate in terminating such appointments made by nomination.
In these circumstances if the Legislature has itself added the fourth proviso to Section 9 of the Act authorising the State Government to allow the nominated member to hold the Office during the pleasure of the State Government, there is no violation of any principle of natural justice nor such provision is arbitrary so as to be violative of Article 14 of the Constitution.
It was contended that the only requirement under the second proviso to Section 9 of the Act was that if none or only one of the members elected under clause (b) is a woman, the State Government may by notification, nominate two women members or one more woman member as the case may be, so that the number of women members in the Board is not less than two.
It was submitted that the State Government has not violated the aforesaid provision inasmuch as Smt.
Shyama Devi and Smt.
Baijanti Devi were nominated in place of Smt.
Abida and Smt.
hazra Khatoon and the number of two women members in the Board was kept intact.
Learned counsel for the private respondents submitted that once the power of nominating the women members is exercised by the State Government, such nominated members cannot be removed prior to the completion of the term of the Board unless they are removed on the grounds contained under Section 40 of the Act.
It was also contended that the State Government cannot be allowed to remove a nominated member at its pleasure without assigning any reason and without affording any opportunity to show cause.
Once a woman member is nominated she gets a vested right to hold the office of a member of the Board and the State Government cannot be given an uncanalised, uncontrolled and arbitrary power to remove such member.
It is contended that such arbitrary and naked power without any guidelines would be contrary to the well established principles of democracy and public policy.
It would hamper the local bodies to act 50 independently without any hindrance from the side of the Government.
Section 10 A of the Act prescribes the term of the Board which is five years.
Section 38 prescribes the term of office of members elected or nominated to fill casual vacancies and reads as under: "The term of office of a member elected to fill a casual vacancy or a vacancy remaining unfilled at the general election shall begin upon the declaration of his election under the Act and shall be the remainder of the term of the Board.
" Section 39 deals with resignation by a member of the Board.
Section 40 provides the grounds for removal of a member of the Board.
Sub section (5) of Section 40 deals with suspension of a member.
From a perusal of the above provisions it is clear that the term of an elected or nominated member is con terminous with the term of the Board.
The normal term of the Board is five years, but it may be curtailed as well as extended.
If the term of the Board is curtailed by dissolution or supersession, the term of the member also gets curtailed.
Similarly, if the term of the Board is extended, the term of the member is also extended.
Apart from the curtailment of the term of a member of the Board by dissolution of supersession of the Board itself, the term of a member also gets curtailed by his resignation or by his removal from office.
Section 40 specifically provides the grounds under which the State Government in the case of a city, or the prescribed authority in any other case, may remove a member of the Board.
The removal under Saction 40 applies to elected as well as nominated members.
In respect of a nominated member, power of curtailment of term has now been given to the State Government under the fourth proviso to Section 9 added after the third proviso through the amending Act of 1990.
In the cases before us, we are concerned with the removal of nominated members under the fourth proviso to Section 9 of the Act and we are not concerned with the removal as contained in Section 40 of the Act.
The right to seek an election or to be elected or nominated to a statutory body, depends and arises under a statute, The initial nomination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government.
If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the Legislature 51 authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place.
The nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member.
In case of an elected member, the legislature has provided the grounds in Section 40 of the Act under which the members could be removed.
But so far as the nominated members are concerned, the Legislature in its wisdom has provided that they shall hold office during the pleasure of the Govern ment.
It has not been argued from the side of the respondents that the Legislature had no such power to legislate the fourth proviso.
The attack is based on Articles 14 and 15 of the Constitution.
In our view, such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution.
There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members.
It is done purely on political considerations.
In Dr. Rama Mishra 's case, the High Court wrongly held that the pleasure doctrine incorporated under the fourth proviso to Section 9 of the Act was violative of the fundamental right of equality as enshrined in Article 14 and Article 15 (3) of the Constitution.
We are unable to agree with the aforesaid reasoning of the High Court.
Clause (3) of Article 15 is itself an exception to Article 14 and clauses (1) and (2) of Article 15 of the Constitution.
Under Article 14, a duty is enjoined on the State not to deny any person equality before the law or the equal protection of the laws within the territory of India.
Article 15 (1) provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Article 15 (2) provides that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them .be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainments; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the 52 use of the general public.
Thereafter Article 15 (3) provides that nothing in this Article shall prevent the State from making any special provision for women and children.
This means that in case any special provision is made for women, the same would not be violative on the ground of sex which is prohibited under clauses (1) and (2) of Article 15 of the Constitution.
Thus, the special provision contained for nominating one or two women members as the case may be provided in Section 9 of the Act would be protected from challenge under clause (3) of Article 15 of the Constitution.
It may also be worthwhile to note that the provision of pleasure doctrine incorporated by adding proviso four does not, in any manner, take away the right of representation of women members in the Board, but it only permits the State Government to keep the nominated women members of its own choice.
The High Court in Dr. Rama Mishra 's case took a wrong view in holding that the fourth proviso to Section 9 of the Act was violative of Article 15 (3) of the Constitution under an erroneous impression that this provision in any manner curtailed the representation of women members in the Board.
We are not impressed with the reasoning given by the High Court that the fourth proviso to Section 9 of the Act in any manner deprived the fundamental right of equality as enshrined in Article 14 of the Constitution.
It is well established that the right of equality enshrined under Article 14 of the Constitution applies to equals and not to enequals.
The nominated members of the Board fall in a different class and cannot claim equality with the elected members.
We are also not impressed with the argument that there would be a constant fear of removal at the will of the State Government and is bound to demoralise the nominated members in the discharge of their duties as a member in the Board.
We do not find any justification for drawing such an inference, inasmuch as, such contingency usually arises only with the change of ruling party in the Government.
Even in the case of highest functionaries in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they are bound to demoralise or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office.
Thus, in the circumstances mentioned above, we are clearly of the 53 view that the decision in Dr. Rama Mishra 's case does not lay down.
the .correct law and is overruled and the view taken by the High Court in Prem Kumar Balmiki 's case (supra) is held to be correct.
We do not consider it necessary to dwell upon other arguments made before us or made and dealt with by the High Court, as the above appeals can be disposed of on the point already dealt and decided by us.
Thus, as a result of the view taken by us, we hold that Smt.
Shyama Devi and Smt.
Baijanti Devi, the two women.
members had been rightly nominated in place of Smt.
Abida and Smt.
Hazra Khatoon and were entitled to take part in the meeting held on 12.8.1991 for considering the motion of no confidence against Mohd. Iqbal, the President of Nagar Palika Shahjahanpur.
Further, the motion of no confidence being supported by 20 members which admittedly constituted a majority of the total strength of the members of the Board being 37, the no confidence motion has been rightly carried out and as a result of which Mohd. Iqbal was not entitled to continue as President of the Board.
Similarly, Smt.
Abida and Smt.
Hazra Khatoon having been rightly removed as nominated members, they are no longer entitled to continue as nominated members of the Municipal Board, Shahjahanpur and in their place Smt.
Shyama Devi and Smt.
Baijanti Devi shall be entitled to continue as nominated members of the Board.
In the result, all the above appeals are allowed, the judgment of the High Court dated 14.9.1992 in Writ Petition Nos.
20731 of 1991, 23861 of 1991 and 24353 of 1991 and dated 9.12.1991 in Writ Petition No. 11114 of 1990 are set aside and all the aforesaid Writ Petitions stand dismissed.
No order as to costs.
V.P.R. Appeals allowed.

summary/full:
In January, 1989, in accordance with First Proviso to Section 9 of the United Provinces Act, 1916 one Smt.
Sarla Devi was nominated by the State Government as the sole Woman member for the Municipal Board.
On 15.2.1990 U.P. Ordinance No. 2 of 1990 later on replaced by U.P. Act No. 19 of 1990 amended the proviso of Section 9 of the Act substituting a new proviso, providing for the nomination of two Women members by the State Government.
The Amendment Act also added a fourth proviso to the Section which provided that the nomination of the two women members was at the pleasure of the State Government.
On 19.2.1990 the Government issuing a general notification and cancelled nominations of Women members in several Municipal Boards.
Cancelling the nomination of Smt.
Sarla Devi, Smt.
Abida and Smt.
Hazra Khatoon were nominated by the Government on 19.4.1990.
On 22.7.1991 under Section 87 A of the Act a no confidence motion against one Mohd. Iqbal, the President of the Board was initiated by some members before the District Magistrate.
The District Magistrate fixed 12.8.1991 for consideration of the confidence motion.
On 2.8.1991, the Government nominated Smt Shyama Devi and Smt.
Baijanti Devi as the two women members of the Board, cancelling the nominations of Smt.
Abida and Smt Hazra Khatoon.
35 On 9.8.1991 Mohd. Iqbal, President of the Municipal Board, against whom the non confidence motion was pending, filed a writ petition in the High Court challenging the constitutional validity of the fourth proviso to Section 9 of the Act and also challenged the notification dated 2.8.1991.
Further he challenged the proceedings of no confidence motion initiated against him.
The High Court did not grant any stay of no confidence proceedings, but ordered that the outcome of the no confidence proceedings shall be subject to the result of the writ petition.
In the meeting fixed on 12.8.1991 by the District Magistrate to consider the no confidence motion 20 members of the Board voted in favour of the no confidence motion, out of the total strength of 37 members of the Board.
The newly nominated Women members by notification dated 2.8.1991 participated in the meeting, whereas Smt Abida and Hazra Khatoon neither attended the meeting nor claimed any right to attend the same.
The no confidence motion dated 12.8.1991 was passed against Mohd. Iqbal.
One Om Narain, The appellant No. 1 in C.A. Nos.
714 16 of 1993) who was the Vice President of the Board was elected as the President in the vacancy.
The appellant Om Narain took charge of the office of the President of the Board and continued to function as the president.
Mohd. Iqbal, the former President filed another writ petition challenging the no confidence motion dated 12.8.1991 passed against him.
Abida and Smt Hazra Khatoon also filed a writ petition, challenging the notification dated 2.8.1991, which cancelled their nominations and nominated Smt.
Shyama Devi and Smt.
Baijanti Devi in their places.
A Division Bench of the High Court considered all the three writ petitions two by the former President and one by the former women members.
Agreeing with the decision in Dr. Smt.
Rama Mishra vs State of U.P. (Writ Petition No. 11114 of 1990 disposed on 9.12.1991) allowed the writ petitions, quashing the notification dated 2.8.1991 and declaring Mohd. Iqbal to be the president of the Board.
The review application flied by the appellants was dismissed by the High Court.
36 Being aggrieved against the High Court 's decision, the former Vice President and the Women members nominated by notification dated 2.8.1991 approached this Court in these appeals (C.A.Nos.
714 716 of 1993) by special leave.
The C.& No. 717 of 1993 was by another Woman member of another Municipal Board, having aggrieved against the judgment of the High Court dated 9.12.1991 passed in Dr. Rama Mishra 's case.
The appellants contended that the view taken in Dr. Rama Mishra 's case was not correct and the view taken in Prem Kumar Balmiki vs State of U.P. (W.P. No. 1067 of 1991, disposed of on 13.11.1991) was correct; that the State Legislature was competent to insert fourth proviso and to lay down that the nominated members shall hold office during the pleasure of the State Government; that if the initial appointment by nomination was made on political considerations, political considerations should be allowed to operate in terminating such appointments made by nomination; that there was no violation of any principle of natural justice nor such provision was arbitrary so as to be violative of Article 14 of the Constitution; and that the only requirement under the second proviso to Section 9 of the Act was that if none or only one of the members elected under clause (b) was a woman, the State Government was to nominate by notification two Women members or one more Woman member, as the case may be, so that the number of Women members in the Board was not less than two, and that the State Government did not violate the provision.
The private respondents submitted that once the power of nominating the Women members was exercised by the State Government, such nominated members could not be removed prior to the completion of the term of the Board, unless they were removed on the grounds contained under section 40 of the Act; that the State Government could not be allowed to remove a nominated member at its pleasure without assigning any reason and without affording any opportunity to show cause; that once a Woman member was nominated, she got a vested right to hold the office of a member of the Board and the State Government could not be given an uncanalised, uncontrolled and arbitrary power to remove such member; that such arbitrary power without any guidelines would be contrary to the well established principles of democracy and public policy and that it would hamper the local bodies to act independently without any hindrance from the side of the Government.
37 Allowing the appeals, this Courts, HELD: 1.01.
The right to seek an election or to be elected or nominated to a statutory body, depends and arises under a statute.
The initial nomination of the two Women members itself depended on the pleasure and subjective satisfaction of the State Government.
If such appointments made initially by nomination are based on political con siderations, there can be no violation of any provision of the Constitution in case the Legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place.
[50G H] 1.02.
The nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member.
In case of an elected member, the Legislature has provided the grounds in Section 40 of the Act under which the members could be removed, But so far as the nominated members are concerned, the Legislature in its wisdom has proved that they shall hold office during the pleasure of the Government.
[51B] 1.03.
Such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution.
There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members.
It is done purely on political considerations.
[51D] 1.04.
In Dr. Rama Mishra 's case, the High Court wrongly held that the pleasure doctrine incorporated under the fourth proviso to Section 9 of the Act was violative of the fundamental right of equality as enshrined in Article 14 and Article 15(3) of the Constitution.
[51E] Dr. Smt.
Rama Mishra vs State of U.P. Writ Petition No. 11 114 of 1990 decided on 9.12.1991 by the Allahabad High Court, over ruled.
Prem Kumar Balmiki vs State of U.P. Writ Petition No. 1067 of 1991 decided on 13.11.1991 by the Allahabad High Court, approved.
The special provision contained for nominating one or two 38 women members as the case may be provided in Section 9 of the Act would be protected from challenge under clause (3) of Article 15 of the Constitution.
[52B] 1.06.
The provision of pleasure doctrine incorporated by adding proviso four does not, in any manner, take away the right to representation of women members in the Board, but it only permits the State Government to keep the nominated women members of its own choice.
[52C] 1.07.
The right of equality enshrined under Article 14 of the Constitution applies to equals and not to unequals.
The nominated members of the Board fall in a different class and cannot claim equality with the elected members.
[52E] 1.08.
Even in the case of highest functionaries in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they are bound to demoralise or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office.
[52G] 1.09.
The motion of no confidence being supported by 20 members which admittedly constituted a majority of the total strength of the members of the Board being 37, the no confidence motion has been rightly carried out and as a result of which Mohd. Iqbal was not entitled to continue as President of the Board.
Similarly, Smt.
Abida and Smt.
Hazra Khatoon having been rightly removed as nominated members, they are no longer entitled to continue as nominated members of the Municipal Board, Shahjahanpur and in their place Smt.
Shyama Devi and Smt.
Baijanti Devi shall be entitled to continue as nominated members of the Board.
[53C D]


judgement:
minal Appeal No. 827 of 1981.
From the Judgment and Order dated 22.7.81 of the Allahabad High Court in Government Appeal No. 1861 of 1975.
P.K. Dey, Rakesh Goswami and Ms.
Rani Jethmalani (N.P.) for the Appellant.
R.C. Verma for the Respondent.
The Judgment of the Court was delivered by N.P. SINGH, J.
The appellant was acquitted of the charges under sections 302 and 307 read with section 34 of the Penal Code by the Trial Court.
On appeal being filed on behalf of the State of Uttar Pradesh he has been convicted under section 302 of the Penal Code by the High Court and sentenced to undergo rigorous imprisonment for life.
It is the case of the prosecution that on 25.2.1974 at about 6.00 P.M. Chandrapal (PW 2) along with Jagdish (hereinafter referred to as "the deceased") were returning after answering the call of nature.
It is said that at that time this appellant along with co accussed Ramesh came from the side of the village; seeing Chandrapal (PW 2) and the deceased, the appellant and Ramesh rushed towards them with knives.
After some chase the appellant gave a knife blow on the chest of the victim.
The co accused Ramesh gave a knife blow to Chandrapal (PW 2).
Thereafter the appellant and Ramesh fled away.
The victim while being taken to Debai, died on the way, Chandrapal (PW 2) lodged the first information report at the Police Station Debai at about 11.30 P.M. the same night.
75 The motive of the occurrence, according to the prosecution, is that about 10 or 12 days before the date of the aforesaid occurrence, there was some altercation between Chandrapal (PW 2) and the deceased on the one side and this appellant on the other, in which the appellant is said to have abused them.
Chandrapal (P.W 2) and the deceased had given two/three slaps to the appellant.
The defence of the appellant was that the prosecution has suppressed the real manner of occurrence.
According to the appellant,.
for last two days prior to the date of occurrence the crop of his grand father Sohan Lal was being damaged.
Because of that he was keeping a watch on the said field.
During night Chandrapal (PW 2) and the deceased came to the field.
The appellant raised an alarm chor chor.
Thereafter Chandrapal (PW 2) and the deceased started running.
The appellant chased them to catch them.
But soon they turned back and started assaulting the appellant with lathies.
To save his life the appellant attacked with a 'ballam ' (spear).
The injuries on the person of the appellant were examined the next morning.
He also filed an application before the Superintendent of Police, giving his version of the occurrence in which he admitted that when he was being assaulted by Chandrapal (PW 2) and the deceased, he bad used a ballam.
A case was registered by the Police at about 10.25 A.M. on 26.2.1974, on the basis of the petition filed on behalf of the appellant.
The injuries on the person of the appellant were examined by Dr. R.P. Rastogi at the District Hospital, Bullandshahar, on 26.2.1974.
He found the following injuries on his person: "(1) Faint contusion 2 cm x 1/2 cm back of left shoulder upper part.
(2) Faint contusion 10 cm x 2 cm on outer side left back at the lower angle of scapula.
(3) Faint contusion 4 1/2 cm x 1 cm on back of upper part 1/3rd left forearm.
(4) Faint contusion 12 cm x 1 cm on the back and inner aspect left forearm upper 1/3rd.
" During the post mortem examination of the deceased which was also held on 26.2.1974, the following injury was found on his person: 76 "Stab wound 1" x 1/2" x 1.3/4".
On probing, on left side front of chest, 2.1/2" inner to left nipple at 10 O ' clock position pointing the onwards and downwards.
" The Doctor (PW 1), who held the post mortem examination, ad mitted that the aforesaid injury could be caused by ballam.
So far Chandrapal (PW 2) is concerned, the Doctor noted the following injury on 26.2.1974: "Abrasion 1 1/2 x 1/3" on the left side front of chest, horizontally with shallow edge, medically, 7" below ancillary pit.
The wound was not bleeding afresh, but had got clotted blood over it.
" The Doctor in Court stated that possibility of self infliction of that injury could not be ruled out.
According to the State, even if the version disclosed by the appellant is accepted, it will amount to a case of free fight between the prosecution party and the accused, both being armed and when there is a free fight there is no question of right of private defence accruing to any side.
A free fight is that when both sides mean to fight a pitched battle.
The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party.
In such cases of mutual fights, both sides can be convicted for their individual acts.
This position has been settled by this Court in the cases of Gajanand vs State of Uttar Pradesh, AIR 1954 SC 695; Kanbi Nanji Virji vs State of Gujarat AIR 1970 SC 219; Puran vs State of Rajasthan, AIR 1976 SC 912 and Vishvas Aba Kurane vs State of Maharashtra, AIR 1978 SC 414.
As such once it is established by the prosecution that the occurrence in question is result of a free fight then normally no right of private defence is available to either party and they will be guilty of their respective acts.
But so far the facts of the present case are concerned, if the version disclosed by the accused can be held to be a probable version of the occurrence then it cannot be held to be a case of free fight.
According to the appellant, the crops of the field of his grand father were being damaged for last two days prior to the date of the occurrence; because of that appellant claims that he was watching the said field.
During the night the 77 deceased and Chandrapal (PW 2) came to the same field and the appellant chased them.
But soon they turned back and started assaulting the appellant with lathies.
At this stage the appellant wielded his ballam (spear) which caused an injury to the deceased which ultimately proved fatal.
It is an admitted position that the appellant filed a petition before the Superintendent of Police giving his version of the occurrence in the morning of 'basis of that a case was registered at about 10.25 A.M. on 26.2.1974, the occurrence having taken place during the night of 25.2.1974.
This fact has been admitted by Shri Manohar Singh (PW 6) who has proved the first information report lodged on behalf of the prosecution.
On the examination, Dr. R.P. Rastogi (PW 3) of the District Hospital, Bullandshahar, did find four injuries including one on the scapula of the appellant.
It is true that injuries were simple in nature.
But even on the deceased only one injury 1" x 1/2 1.3/4" was found on the left side front of the chest, which according to the Doctor who held the post mortem examination, could have been caused by a weapon like ballam (spear).
In the statement under section 313 of the Code of Criminal Procedure (hereinafter referred to as "the Code") given by the appellant, it was stated by the appellant in detail as to how the standing crops on the land of his grand father were being damaged and on the night of the occurrence he was guarding the field when he saw the deceased and Chandrapal (PW 2) destroying the crops in the field.
He also stated that he shouted chor chor and then chased them to catch them.
But soon they turned round and started giving lathies blows and in self defence the appellant used a ballam.
It appears that all this happened in the aforesaid field which the apppellant was guarding.
From time to time this Court has pointed out that merely because some injuries are found on the accused, which have not been explained by the prosecution, by itself shall not be a ground for rejecting the whole prosecution case.
It will depend on facts of each case what inference should be drawn by the Court.
In the case of The State of Gujarat vs Bai Fatima; , , it was said that when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow : "(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
78 (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
" The aforesaid three inferences drawn on basis of the nature of injuries were reiterated in the case of Lakshmi Singh vs State of Bihar, AIR 1976 SC 2263, and it was further observed: "It seems to us that in a murder case, the non explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version: (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
" A three Judge Bench in yet another case of Bliaba Nanda Sarma vs The State of Assam, ; , said: "The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances.
This is not the law.
It all depends upon the facts and 79 circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused.
" In the case of Hare Krishna Singh vs State of Bihar, ; , it was said: "If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise.
When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.
" But in the case of State of Rajasthan vs Madho, AIR 1991 SC 1065, it was held: "If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident.
It gives the impression that the witnesses are suppressing some part of the incident.
The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt." As first impression there appears to be some conflict in the views expressed in the different judgments of this Court referred to above.
But on proper reading with reference to the facts of each case, there is no basic difference and according to us this Court rightly in the case of The State of Gujarat vs Bai Fatima (supra) put in three categories the result which may follow from the facts of each case.
It is well known that guilt of the 80 accused is to be judged on the basis of the facts and circumstances of the particular case.
In any particular case the injuries found on the person of the accused being serious in nature may assume importance in respect of the genesis and manner of occurrence alleged by the prosecution.
In other case the injuries being superficial, by themselves may not affect the prosecution case; the version disclosed by the prosecution having been proved by witnesses who are independent, reliable and trustworthy, supported by the circumstances of that particular case, including the prompt ness with which the first information report was lodged on behalf of the prosecution.
But if the first information report has not been lodged promptly and there is no reasonable explanation for the delay; the witnesses who support the version of the prosecution are not only inimical but even their evidence is not consistent with the circumstances found during the course of investigation, then in that situation, injuries on the person of the accused which are not very serious in nature assume importance for the purpose of consideration as to whether the defence of the right of private defence pleaded by the accused should be accepted.
It is well known that accused pleading the right of private defence need not prove it beyond reasonable doubt.
It is enough if on the basis of the circumstances of a particular case, applying the test of preponderance or probabilities the version becomes acceptable.
There are not two parallel versions before the Court, one on behalf of the prosecution and other on behalf of the accused and the Court is required to choose as to which of the two versions is the correct version of the occurrence.
The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable.
The onus of the accused under section 105 of the Evidence Act has been examined by this Court in the cases of Partap vs The State of U.P., ; ; Mohan Singh vs State of Punjab, AIR 1975 SC 2161; Seriyal Udayar vs State of Tamil Nadu, AIR 1987 SC 1289; Vijayee Singh vs State of U.P., ; and Buta Singh vs State of Punjab, So far the present case is concerned the injuries found on the person of the appellant are not serious in nature and merely on the ground that prosecution has suppressed those injuries, the appellant is not entitled to the acquittal.
But those injuries can certainly be taken into consideration 81 while judging whether the defence version of the accused is probable.
The motive disclosed on behalf of the prosecution for the occurrence is not acceptable.
Even if it is assumed that because of some altercation 10/12 days before the date of occurrence, the appellant had decided to cause the murder of Jagdish then more injuries would have been caused on the person of the victim by the appellant instead of an injury 1" x 1/2 x 1 3/4".
The prosecution case regarding assault by Ramesh with a knife on Chandrapal (PW 2) has been disbelieved by the Trial Court as well as the High Court.
The delay in lodging the first information report by Chandrapal (PW 2) has not at all been explained.
The occurrence according to prosecution took place at 6.00 P.M. in the evening.
The victim while being taken to Debai which is at a distance of five kilometers expired on the way.
Then why first information report was lodged at 11.30 P.M., there is no explanation.
On the other hand the appellant 's case is that the occurrence did not take place at 6.00 P.M. in the evening but at later part in the night.
That appears to be more probable.
The appellant appeared before the Superintendent of Police, the next morning and disclosed his version of the occurrence on basis of which a case was registered.
His injuries were also examined only the next morning.
He also took a firm stand during his statement under section 313 that he give a ballam blow when the deceased and Chandrapal (PW 2) started assaulting him with lathies.
Out of the four injuries one was on the scapula,.
The doctor has not opined that they were manufactured or self inflicted.
Those injuries, according to the doctor, had been caused by a blunt weapon which is consistent with the defence version of the occurrence.
The injury found on the chest of the deceased is inconsistent with the prosecution case that appellant chased the deceased and then gave a blow by knife.
But it is consistent with the defence version that soon the deceased and Chandrapal (PW 2) returned and started assaulting the appellant when the appellant gave a ballam blow in the chest of the deceased.
If the appellant had given the ballam blow while chasing the deceased, in that event it would have caused injury on the back of the deceased.
The High Court has not disbelieved 'the version disclosed by the appellant.
The High Court on consideration of the evidence and the circumstances of the case has observed: "It is true that this respondent gave a different time of the occurrence and his version of the occurrence was also 82 different and it has been disbelieved by the learned Sessions Judge, obviously on cogent grounds.
But this cannot wash out the effect of his clear stand all through that there was a marpit between him and the informant and the deceased in which he had wielded a spear on them.
This part of this respondent 's version was clearly severable from the rest of his version and it was not at all necessary that if the learned Sessions Judge disbelieved his version regarding the manner of the occurrence, he was bound to rule out of consideration this admission of the respondent which was clearly separate and severable from the rest of his story.
" The High Court has used a part of the statement of the appellant as an admission.
According to us, that part of the statement made by the accused under section 313 of the Code cannot be used as an admission, supporting the prosecution case.
It is well known that an admission has to be taken as a whole.
It was not open to the High Court to reject one part so far the aggression and assault by the prosecution party which according to the appellant preceded giving of the ballam blow, and to accept only the later part of the statement that appellant gave a ballam blow, for the purpose of convicting the appellant.
In the case of Hanumant Govind Nargunadkar vs State of Madhya Pradesh, AIR 1952 SC 343.
it was said: "It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.
An admission must be used either as a whole or not at all.
" The High Court should have taken the whole statement made by the appellant as an admission and then should have examined what shall be the effect thereof on the prosecution case.
According to us, taking all facts and circumstances into consideration the version of the accused of the occurrence appears to be probable and acceptable.
The next question is as to whether in the circumstances of the case appellant could have caused the death of Jagdish.
While accepting the plea of right of private defence it has been said that if the right is available, while judging the question whether the accused has exceeded such right, should not be weighed in a golden scale.
But the right of private defence 83 does not extend to infliction of more harm than is necessary for the purpose of defence.
When the appellant caused the injury with a ballam (spear) in the chest of the victim which resulted in his death, certainly he exceeded his right of private defence.
Accordingly, the conviction of the appellant under section 302 of the Penal Code is set aside.
But the appellant is convicted under section 304, Part 1, and sentenced to rigorous imprisonment for seven years which according to us shall meet the ends of justice.
The appeal is allowed in part to the extent indicated above.
V.P.R. Appeal allowed partly.

dataset_name: IN-Abs

summary/full:
The prosecution 's case was that on the date of occurrence, the pw.2 and the deceased were returning after answering the call of nature at about 6 P.M.
At that time the appellant along with co accused came there.
Seeing the p.w.2 and the deceased the accused came rushed towards them with knives.
Appellant chased the deceased and gave a knife blow on his chest.
The P.W.2 received a knife blow from the co accused.
Thereafter the accused fled away.
The victim died on the way while he was being taken to Debai.
The P.W. 2. lodged the first information report on the same night at about 11.30 P.M.
The motive for the occurrence was that about 10 or 12 days before the date of occurrence, the appellant abused the P.W.2 and the deceased.
They gave two/three slaps to the appellant The appellant accused 's case was that for last two days prior to the date of occurrence the crop of his grand father was being damaged.
Therefore, he was keeping a watch on the field.
During night the P.W.2 and the deceased came to the field.
Seeing them, the appellant raised an alarm Chor Chor.
They started running.
The appellant chased them to catch 71 them.
But they turned back and started assaulting the appellant with lathies.
The appellant attacked them with a 'ballam ' to save his life.
The injuries on the person of the appellant were examined, in the next morning.
He filed an application before the Superintendent of Police and a case was registered at about 10.25 A.M. on the next day of the date of occurrence on the basis of appellant 's petition.
The trial Court acquitted the appellant of the charges under sections 302 and 307 read with section 34 of the penal Code.
The State 's appeal was allowed by the High Court and the present appellant was convicted under section 302 of the Penal Code and was sentenced to undergo rigorous imprisonment for life.
Present appeal was filed by the accused against the High Court 's judgment.
The State contended that if the version of appellant was accepted, it would amount to a case of free fight between the prosecution party and the accused, both being armed and that in a case of free right no party could claim right of private defence.
Partly allowing the appeal, this court, HELD: 1.01.
A free right is that when both sides mean to right a pitched battle.
The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party.
In such cases of mutual rights, both sides can be convicted for their individual acts, [76E] 1.02.
So far the facts of the present case are concerned, if the version disclosed by the accused can be held to be a probable version of the occurrence then it cannot be held to be a case of free fight.
[76G] 1.03.
In any particular case the injuries found on the person of the accused being serious in nature may assume importance in respect of the genesis and manner of occurrence alleged by the prosecution.
In other case the injuries being superficial, by themselves may not affect the prosecution case; the version disclosed by the prosecution having been proved by witnesses who are independent, reliable and trustworthy, supported by the circumstances of that particular case, including the promptness with 72 which the first information report was lodged on behalf of the prosecution.
But if the first information report has not been lodged promptly and there is no reasonable explanation for the delay , the witnesses who support the version of the prosecution are not only inimical but even their evidence is not consistent with the circumstances found during the course of investigation, then in that situation, injuries on the person of the accused which are not very serious in nature assume importance for the purpose of consideration as to whether the defence of the right of private defence pleaded by the accused should be accepted.
[80B D] 1.04.
So far the present case is concerned the injuries found on the person of the appellant are not serious in nature and merely on the ground that prosecution has suppressed those injuries, the appellant is not entitled to the acquittal.
But those injuries can certainly be taken into consideration while judging whether the defence version of the accused is probable.
[80H] 1.05.
The motive disclosed on behalf of the prosecution for the occurrence is not acceptable.
Even if it is assumed that because of some altercation 10/12 days before the date of occurrence, the appellant had decided to cause the murder of the deceased, then more injuries would have been caused on the person of the victim by the appellant.
[81B] 1.06.
The delay in lodging the first information report by PW 2 has not at all been explained.
The occurrence according to prosecution took place at 6.00 P.M. in the evening.
The victim while being taken to Debai which is at a distance of five kilometers expired on the way.
Then why first information report was lodged at 11.30 P.M., there is no explanation.
On the other hand the appellant 's case is that the occurrence did not take place at 6.00 P.M. in the evening but at later part in the night.
That appears to be more probable.
[81C] 1.07.
The injury found on the chest of the deceased is inconsistent with the prosecution case that appellant chased the deceased and then gave a blow by knife.
But it is consistent with the defence version that soon the deceased and PW.2 returned and started assaulting the appellant when the appellant gave a ballam blow in the chest of the deceased.
If the appellant had given the ballam blow while chasing the deceased, in that event it would have caused injury on the back of the deceased.
[81F] 73 1.08.
Taking all facts and circumstances into consideration the version of the accused of the occurrence appears to be probable and acceptable.
[82G] Gajanandv.
State of Uttar Pradesh, AIR1954SC 695;Kanbi Nanji Virji vs State of Gujarat AIR 1970 SC 219; Puran vs State of Rajasthan, AIR 1976 SC 912; Vishvas Aba Kurane vs State of Maharashtra, AIR 1978 SC 414; The State of Gujarat vs Bai Fatima, ; ; Lakshman Singh vs State of Bihar, AIR 1976 SC 2263; Bhaba Nanda Sarma vs The State of Assam, ; ; Hare Krishna Singh vs State of Bihar, ; and State of Rajasthan vs Madho, AIR 1991 SC 1065, referred to.
[76F] 2.01.
Once it is established by the prosecution that the occurrence in question is result of a free fight then normally no right of private defence is available to either party and they will be guilty of their respective acts.
[76G] 2.02.
Accused pleading the right of private defence need not prove it beyond reasonable doubt.
It is enough if on the basis of the circumstances of a particular case, applying the test of preponderance or probabilities the version becomes acceptable.
[80E] 2.03.
There are no two parallel versions before the Court, one on behalf of the prosecution and other on behalf of the accused and the Court is required to choose as to which of the two versions is the correct version of the occurrence.
The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable.
[80E F] 2.04.
If the right of private defence is available.
While judging the question whether the accused has exceeded such right, should not be weighed in a golden scale.
But the right of private defence does not extend to the infliction of more harm than is necessary for the purpose of defence.
When the appellant caused the injury with a ballani (spear) in the chest of the victim which resulted in his death, certainly he exceeded his right of private defence.
[82H, 83A] Partap vs )le State of U.P., ; Mohan Singh vs State of Punjab, AIR 1975 SC 2161; Seniyal Udayar vs State of Tamil Nadu, AIR 1987 SC 1289; Vijayee Singh vs State of U.P.; , and Buta 74 Singh vs State of Punjab, , referred to.
[80G] 3.
An admission has to be taken as a whole.
It was not open to the High Court to reject one part so far the aggression and assault by the prosecution party which according to the appellant preceded giving of the ballam blow, and to accept only the later part of the statement that appellant gave a ballam blow, for the purpose of convicting the appellant [82D].
Hanumant Govind Nargundkar vs State of Madhya Pradesh, AIR 1952 SC 343, referred to.


judgement:
Appeal Nos.
724 725 of 1992.
From the Judgment and Order dated 13.11.90 & 10.8.90 of the Central Administrative Tribunal, New Bombay in M.P. No. 855/90, & O.A. No. 799 of 1989.
N.M. Ghatate, Anand Prasad and S.V. Deshpande for the Appellant.
T.C. Sharma and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Special leave granted in both the matters.
B.G. Kajrekar joined service as Chief of Police on August 1, 1954 in Dadra and Nagar Haveli.
He worked in that capacity upto April 19, 1966.
Thereafter he was sent on deputation to the Central Reserve Police, 62 Neemuch (Madhya Pradesh).
He came back to his original post in Dadra and Nagar Haveli on November 17, 1967 and worked as Chief of Police upto April 6, 1971.
He was transferred to Delhi Armed Police on April 7, 1971 where he worked as Deputy Superintendent of Police till his retirement on July 31, 1977.
He has thus, put in about twenty three years of service.
Kajrekar was not given pension on the ground that throughout his service he worked on officiating basis and was never appointed substantively to any of the posts held by him.
Kajrekar challenged the action of the respondents, denying pension to him, before the Central Administrative Tribunal, Bombay.
The Tribunal rejected his application on the ground that he retired from service without holding lien on any substantive post and as such was not entitled to pension under Rule 13 of the Central Civil Services (Pension) Rules, 1972 (the Rules).
The application of Kajrekar was disposed of ex parte by the Tribunal and his prayer for restoration and hearing was also rejected.
These appeals by way of special leave petitions are against the orders of the Central Administrative Tribunal.
It is not disputed that the post of Chief of Police under Dadra and Nagar Haveli Administration was declared permanent with effect from June 14, 1967.
On that date the appellant had already put in about thirteen years of service but his case for confirmation was not considered on the ground that there were no Recruitment Rules for the post in existence.
The Recruitment Rules for the post of Chief of Police under the Administration of Dadra and Nagar Haveli came into force on January 19, 1980.
The said Rules provided "by transfer on deputation" as the method of recruitment to the post of Chief of Police.
The Recruitment Rules have no relevance to the question of confirmation of the appellant as he had retired from service on January 31, 1977 much before the coming into force of the Recruitment Rules.
It was incum bent on the respondents to have considered the question of confirmation of the appellant before his retirement, specially when he was being retired after serving the respondents for twenty three years.
It was wholly arbitrary on the part of the respondents to have kept the appellant as an unconfirmed employee for a period of twenty three years on the ground that there were no Recruitment Rules for the post he was holding.
The Union Territory of Dadra and Nagar Haveli in its counter filed in this Court has stated that after the publication of the Recruitment Rules 63 a Departmental Promotion Committee was convened on July 4, 1981 for considering the question of confirmation of the appellant as Chief of Policy.
The Departmental Promotion Committee did not recommend the appellant for confirmation on the ground that during the course of his service, two departmental enquiries were instituted against the appellant.
The enquiries could not be completed before the appellant 's retirement and the findings were made available thereafter.
The proceedings of the Departmental Promotion Committee further show that as a result of the enquiries Rs. 4,000 was to be deducted from the gratuity amount of the appellant as a measure of punishment.
The Departmental Promotion Committee found that the confidential reports of the appellant for the last three years were good but the Committee declined to recommend confirmation because of the two enquiries.
It is not disputed that the findings in the two enquiries were never communicated to the appellant during the period of his service.
Those were served on him only after retirement.
The question of his confirmation which was due in the year 1967 could not have been linked with the enquiries which were initiated at a much later stage.
The Departmental Promotion Committee should have considered the appellant for confirmation on the basis of the record of the appellant as existed in the year 1967/1968.
There is no material before us to show that the service record of the appellant prior to 1970 was adverse in any manner rather the averments made by the appellant in the rejoinder to the effect that there was nothing adverse against him on the record prior to 1971, have not been controverted.
Even the Departmental Promotion Committee found the confidential reports of the appellant for the last three years as good.
We are of the view that on the availability of a permanent post of Chief of Police on June 14, 1967 the appellant was entitled to be confirmed against the said post.
It was wholly arbitrary for the respondents to have deferred the question of confirmation of the appellant on the ground that there were no Recruitment Rules.
We, therefore, hold that the appellant having served the respondents for about thirteen years on June 14, 1967 when the post of Chief of Police was made permanent and there being nothing adverse against him at that point of time, he was entitled to be confirmed in the said post.
In that view of the matter the appellant was a confirmed employee when he retired from service on July 31, 1977.
We, therefore, direct the respondents to treat the appellant as having 64 been retired as a confirmed employee and fix his pension and other post retiral benefits on that basis.
We further direct the respondents to complete the pension case of the appellant within three months from today and pay him all the arrears of the pension within two months thereafter alongwith 12% interest on the said arrears.
We allow the appeals with costs which we quantify as Rs. 10,000.
G.N. Appeals allowed.

summary/full:
The appellant retired in 1977 after putting in 23 years of service.
But he was not given pension on the ground that throughout his service he was working on officiating basis and was never appointed substantively to any of the posts held by him.
The appellant challenged the denial of pension to him before the Central Administrative Tribunal.
The Tribunal held that since the appellant retired from service without holding lien on any substantive post, he was not entitled to pension under Rule 13 of the Central Services (Pension) Rules, 1972.
The application of the appellant was disposed of ex parte by the Tribunal and his application for restoration and hearing was also rejected.
Against these orders of the Tribunal appellant preferred the present appeals.
The Respondents contested the appeals on the ground that the Departmental Promotion Committee did not recommend the appellant 's confirmation since two departmental enquiries were initiated against him, resulting in deduction of Rs. 4,000 from his gratuity, by way of punishment.
Allowing the appeals, this Court, HELD: 1.
Admittedly the findings in the two enquiries were never communicated to the appellant during the period of his service.
Those were served on him only after retirement The question of his confirmation which was due in the year 1967 could not have been linked with the enquiries which were initiated at a much later stage.
The Departmental Promotion Commit60 61 tee should have considered the appellant for confirmation on the basis of the record of the appellant as existed in the year 1967/1968.
There is no material on record to show that the service record of the appellant prior to 1970 was adverse in any manner.
Even the Departmental Promotion Com mittee found the confidential reports of the appellant for the last three years as good.
On the availability of a permanent post of Chief of Police on June 14, 1967 the appellant was entitled to be confirmed against the said post.
It was wholly arbitrary on the part of the respondents to have deferred the question of confirmation of the appellant on the ground that there were no Recruitment Rules.
The appellant having served the respondents for about thirteen years, on June 14, 1967 when the post of Chief of Police was made permanent and there being nothing adverse against him at that point of time, he was entitled to be confirmed in the said post.
In that view of the matter the appellant was a confirmed employee when he retired from service on July 31,1977.
[63D G] 2.
The respondents are directed to treat the appellant as having been retired as a confirmed employee and fix his pension and other post retiral benefits on that basis.
The respondents are further directed to complete the pension case of the appellant within three months and pay him all the arrears of the pension within two months thereafter alongwith 12% interest on the said arrears.
[63H; 64A]


judgement:
minal Appeal No. 645 of 1989.
From the Judgment and Order dated 17.3.89 of the Delhi High Court in Criminal Appeal No. 270/85.
AND Criminal Appeal No. 534 of 1989.
A.P. Mohanty and S.K. Sabharwal for the Appellants.
K. Lahri, V.C. Mahajan, Mrs. Indra Sawhney and B.K. Prasad for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Sardar Singh, his wife Saraswati and his brother 's wife Savitri were charged under Sections 302/34 and 201/34, Indian Penal Code (IPC) for the murder of one Charanjit.
The trial Court convicted Sardar Singh and his wife Saraswati on both the counts and sentenced them to imprisonment for life on the first count and for five years on the second count.
Accused Savitri was, however, acquitted by the trial Court.
The High Court dismissed the appeal filed by Sardar Singh.
Saraswati was acquitted of the charge under Sections 302/34, IPC but her conviction and sentence Under Section 201/34 IPC was maintained by the High Court.
These two appeals are by Sardar Singh and Saraswati against the judgment of the High Court.
67 Sardar Singh, appellant and one Tara Chand are real brothers.
Both the them were residing in village Jhatikara.
They were living in adjoining houses.
Deceased Charanjit was living in a house adjacent to their houses.
Charanjit 's wife had died about ten years ago and he was living in the house by himself.
Deceased Charanjit had developed illicit relation with Savitri wife of Tara Chand and also with appellant Saraswati.
The prosecution case in a nut shell is that deceased Charanjit was having illicit relations with both Saraswati and Savitri and used to visit them during night for the last so many years.
On March 31, 1983 the deceased had gone to sleep in his house in the evening and did not appear thereafter.
On April 4, 1983 Lakhmi Chand, brother of the deceased, lodged report with the police expressing suspicion against the appellants and Savitri.
It is alleged that during the course of interrogation Sardar Singh appellant made a disclosure statement and consequently led the policy party to his sitting room where he pointed out a spot covered by a cot.
Sardar Singh, thereafter, dug the floor and the dead body of the deceased was recovered from a five feet deep grave.
Thereafter, at the pointing out of the appellant Sardar Singh, the police also seized doe (wood cutter) and knife contained in a canvas bag hanging in the adjacent room.
The dead body was tied with a rope and was wrapped in three gunny bags.
The recovered knife had no blood stained while the doe was found stained with blood.
On examination by the Serologist the blood stains on the doe were found to be human and of the same group as that of the deceased.
The entire case of the prosecution is based on circumstantial evidence.
The circumstances relied upon by the prosecution are as under: (1) The deceased had illicit relations with Saraswati and Savitri, wife and brother 's wife of appellant Sardar Singh.
(2) The deceased was last seen on the night of March 31, 1983 when he went to sleep in his house and thereafter his dead body was found buried in the appellants ' house.
(3) Sardar Singh appellant, on interrogation made a disclosure statement leading to the recovery of the dead body from a five feet deep pit in the sitting room of the appellants.
(4) Recovery of doe from the possession of the appellant which was 68 found to bear the same human blood group as that of the deceased.
Relying upon the above mentioned circumstances the trial Court and the High Court have convicted the appellants.
So far as appellant Sardar Singh is concerned, the chain of circumstances relied upon by the prosecution and accepted by the courts below leaves no manner of doubt that it was he who committed the murder of Charanjit.
We have been taken through the judgments of the trial Court and that of the High Court.
We agree with the reasoning and the conclusions reached therein.
We, therefore, uphold the conviction and sentenced of appellant Sardar Singh and dismiss his appeal.
So far as appellant Saraswati is concerned the High Court dealt with her case in the following manner: "Before we part with this order, there is one more fact which needs our consideration.
In this case, the disclosure that led to the recovery of the dead body has been made by Sardar Singh appellant.
There is no evidence direct or indirect to connect the appellant Saraswati with the commission of murder, though it can safely be said that she being the inmate of the house was in know of the fact that the dead body was buried in the house with a view to cause the disappearance of evidence.
In our view, the process of digging a grave of 5 feet deep and of the size of the deceased in length, the filling of the grave and then erasing the traces of the same is a long process and she must have been necessarily involved in the same.
since, in our view, there is no evidence to connect her with the commission of murder we acquit the appellant Saraswati of the charge under Section 302/34 IPC but maintain her conviction and sentence under Section 201/34 IPC.
" We are of the view that the reasoning adopted by the High Court in acquitting Saraswati of the charge under Section 302/34 IPC is equally applicable to the charge against her under Section 201/34 IPC.
It may be correct that the process of digging a grave of five feet deep, the filling of the grave and then erasing the traces etc.
may not have been done by Sardar Singh alone but there is not an iota of evidence on the record not even a whisper to the effect that it was Saraswati who helped him in 69 concealing or causing the evidence of the commission of the offence to disappear.
Simply because she is the wife of appellant Sardar Singh and as such is supposed to be living in the same house, it cannot be assumed that she was guilty of the offence under Section 201/34 of the Indian Penal Code.
According to the Prosecution Saraswati was having illicit relation with the deceased for several years.
Sardar Singh may or may not have taken her help in concealing the dead body.
Her being wife of Sardar Singh by itself is not sufficient to prove the charge under Section 201/34 IPC against her.
We, therefore, give benefit of doubt to Saraswati, allow her appeal and acquit her of the charge under Section 201/34, Indian Penal Code.
She is already on bail.
Her bail bonds are cancelled.
T.N.A. Crl.
A. No.645/89 dismissed.
Criminal Appeal No. 534/89 allowed.

summary/full:
The appellant, A 1, his wife, A 2, and his brother 's wife, A 3, were prosecuted under Sections 302/34 and 201/34 of the Indian Penal Code.
Ile entire case was based on the circumstantial evidence : (a) the deceased had illicit relations with A 2 and A 3; (b) the deceased was last seen on the night when he went to sleep in his house and thereafter his dead body was found buried in the house of A 1; (3) during interrogation A 1 made a disclosure statement and consequently lead the police party to his sitting room where he pointed out a spot covered by a cot and thereafter he dug the floor and, the dead body of the deceased was recovered from a five feet deep pit; and (4) recovery of doe (woodcutter) from his possession bearing the same human blood group as that of the deceased.
Relying upon these circumstances the trial court convicted A 1 and A 2 on both the counts and sentenced them to imprisonment for life on the first count and for five years on the second count but acquitted A 3. 'Me High Court dismissed the appeal of A 1.
However, it acquitted A 2 on the ground that there was no evidence to connect her with the commission of the murder but maintained her conviction and sentence under sections 201/34 on the ground that she being the inmate of the house was in the know of the fact that the dead body was burried in the house with a view to causing the disappearance of evidence and she must have been necessarily involved in the process of digging a grave of five feet deep, the filling of the grave and erasing the traces etc.
Both the accused filed appeals in this Courts.
Dismissing the appeal of A 1 and allowing the appeal of A 2, this Court, 66 HELD: 1.
The chain of circumstances relied upon by the prosecution and accepted by the Courts below leaves no manner of doubt that A 1 committed the murder.
Accordingly his conviction and sentence is upheld.
[68B] 2.
There is not an iota of evidence on the record not even a whisper to the effect that it was A 2 who helped in concealing or causing the evidence of the commission of the offence to disappear.
Simply because she is the wife of A 1 and as such is supposed to be living in the same house, It cannot be assumed that she was guilty of the offence under section 201/34.
A 1 may or may not have taken help of his wife in concealing the dead body.
Her being wife of A 1 by itself is not sufficient to prove the charge under section 201/34.
She is accordingly acquitted of that charge.
[68H, 69A B]


judgement:
Appeal Nos. 182 and 183 of 1993.
From the Judgment and Order dated 6.6.86 of the Central Ad ministrative Tribunal, Chandigarh in O.A./T.A. Nos.49 & 102 of 1986.
Raj Birbal for the Appellant.
Rajinder Sachher, Mahabir Singh and A.K Mahajan for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Kamlesh Baboo and V.K. Bhardwaj were promoted as Executive Engineer (Civil) with effect from January 21, 1986 in the Engineering Department of the Chandigarh Administration.
The promotion was made on the basis of merit and suitability as determined under the provisions of the Punjab Service of Engineers, Class I (Buildings and Road Branch) Rules, 1960 (Rules) as applicable to the Chandigarh Administration.
Both of them approached the Central Administrative 123 Tribunal, Chandigarh Bench seeking a direction to the effect that their 'seniority in the cadre of Executive Engineers be determined from the date when they became eligible to be considered for promotion under the Rules.
In other words, they claimed January 1, 1985 the eligibility date as the date of their promotion to the post of Executive Engineer instead of January 21, 1986 when they were actually promoted.
The Tribunal by its order dated June 6, 1986 granted the relief asked for by Kamlesh Baboo and V.K. Bhardwaj in the following terms: "In view of the above discussion, we direct that the applicant, who was promoted as Executive Engineer from 21.1.1986 (vide Office Order dated 20.1.1986 and 2.5.1986) shall be continued as Executive Engineer even if the approval of the U.P.S.C. is not received within six months from the date of his promotion.
For the purposes of seniority, the applicant shall be considered from the date when he became eligible.
The promotion of the applicant as Executive Engineer, shall however, be subject to the approval by the U.P.S.C. and without prejudice to the decision of the competent court in the matter of seniority, which is in dispute.
" These two appeals by the Chandigarh Administration are against the order of the Tribunal.
Kamlesh Baboo joined service as Section Officer under the Chandigarh Administration on March 8, 1971.
He was promoted to the post of Sub Divisional Engineer on December 29, 1976 and was confirmed as such on August 13, 1985.
The service particulars of V.K. Bhardwaj are identical.
The conditions of service of the respondents are governed by the Rules.
Rules 6(b) and 8 (1)(3)(4)(8)(9)(10)(11) which are relevant are reproduced hereunder: "6 (b) in the case of an appointment by promotion from Class 11 Service has 8 years completed service, in that class and has passed the departmental examination, as provided in rule 15; 8(1) A committee consisting of the Chairman of the Public 124 Service Commission or where the Chairman is unable to attend, any other member of the Commission representing it, the Secretary, P.W.D. (Buildings and Roads Branch), and the Chief Engineers, Punjab, P.W.D. Buildings and Roads Branch, shall be constituted.
(3)The Committee shall meet at intervals, ordinarily not exceeding one year, and consider the cases of all eligible officers for promotion to the senior scale of the Service, as on the first day of January of that year.
(4)The Committee shall prepare a list of officers suitable for promotion to the senior scale of the Service.
The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority.
(8)The fist prepared or revised in accordance with subrules (4), (5) and (6) shall then be forwarded to the Commission by Government along with (i) the records of all officers included in the list; (ii) records of all officers proposed to be superseded as a result of the recommendations made by the Committee; (iii)the reasons, if any, recorded by the Committee for the proposed supersession of any officer; (iv) the observations, if any of the State Government on the recommendation of the Committee.
(9) The Commission shall consider the list prepared by the Committee along with other documents received from the State Government and,unless it considers any change necessary, approve the list.
(10) If the Commission considers it necessary to make any, changes in the list received from Government, the 'Commission shall make the changes it proposes and forward the list it considers suitable to the State Government.
125 (11) Appointments to the Service shall be made by Government from this list in the order in which names have been placed by the Commission.
" It is not disputed that the respondents in these two appeals completed eight years of service in Class 11 cadre, by the end of December 1984 and as such they were eligible to be considered for promotion to the post of Executive Engineer on January 1, 1985.
The selection to the post of Executive Engineer was to be done by following the procedure laid down under Rule 8 of the Rules, reproduced above.
Rule 8 of the Rules envisages a Selection Committee presided over by Chairman/Member of the Public Service Commission.
The Committee considers the cases of eligible officers on the basis of merit and suitability, the list of the selected officers is sent to the Commission for final approval and thereafter the appointments are made out of the approved list in accordance with the merit assigned therein.
It is thus obvious that eligibility under Rule 6(b) of the Rules by, itself does not give a right to a member of Class II service to be promoted to the post of Executive Engineer in Class I service.
The promotion has to be made in accordance with the procedure laid down under Rule 8 of the Rules.
No member of Class 11 service can claim promotion to the post of Executive Engineer on the ground of eligibility alone.
Unless a Class 11 officer has been selected in accordance with Rule 8 of the Rules he cannot be promoted to the post of Executive Engineer.
The question of Assigning seniority in Class I service only arises after a Class 11 officer has been selected and appointed to the said service.
The seniority in class I is determined under Rule 12 of the Rules, keeping in view the date of appointment as a result of selection under Rule 8 of the Rules.
Both the respondents in these appeals were appointed to the post of Executive Engineer, as a result of selection held under Rule 8 of the Rules, with effect from January 21, 1986.
Their seniority has to be determined in class I service keeping in view the date of their appointments as January 21, 1986.
The Tribunal grossly erred in directing the Chandigarh Administration to give seniority to the respondents from the date of their eligibility.
The respondents can neither be given the date of appointment as January 1, 1985 nor their seniority fixed from that date.
The directions of the Tribunal in this respect are patently violative of the Rules and cannot be sustained.
Even otherwise both Kamlesh Baboo and V.K. Bhardwaj were working as 126 Sub Divisional Engineer on January 1, 1985 and as such treating them to have been appointed to Class I service from that date and giving them benefit towards seniority on that basis would be wholly erroneous.
The question as to whether the deputationists from Punjab and Haryana should be permitted to continue to serve the Chandigarh Administration has no relevance to the controversy involved in these appeals.
That is a matter of policy between the States of Punjab, Haryana and Union Territory of Chandigarh.
The Tribunal was wholly unjustified in seeking support from the non existent fact that because of the presence of many deputationists the respondents in these appeals were not being considered for promotion.
As a matter of fact the respondents got their promotion at the earliest possible opportunity.
They became eligible on January 1, 1985 and thereafter within a period of one year the procedure under Rule 8 was completed and they were promoted with effect from January 21, 1986.
We allow the appeals, set aside the order of the Tribunal dated June 6, 1986 and dismiss the applications filed by respondents Kamlesh Baboo and V.K. Bhardwaj before the Tribunal.
No costs.
V.P.R. Appeals allowed.

summary/full:
The respondent in C.A. No.182 of 1993 joined service as Section Officer under the appellant on 83.1971.
On 29.12.1976 he was promoted to the post of Sub Divisional Engineer and was confirmed on 13.8.1985.
With effect from 21.1.1986, the.
respondent was promoted as Executive Engineer (Civil).
The service particulars of the respondent in C.A. No.183 of 1993 were identical.
The respondents approached the Central Administrative Tribunal to determine their seniority in the cadre of Executive Engineers from the date of eligibility, ie.
1.1.1985 and not from 21.1.1986.
The Tribunal allowed the applications of the respondents, against which the present appeals were riled by the Administration.
Allowing the appeals, this Court, HELD:1.01.
The selection to the post of Executive Engineer was to be done by following the procedure laid down under Rule 8 of the Punjab Service of Engineers, Class I (Buildings and Roads Branch) Rules 1960.
Eligibility under Rule 6(b) of the Rules by itself does not give a right to a member of Class 11 service to be promoted to the post of Executive Engineer in Class I service.
The promotion has to be made in accordance with the procedure laid down under Rule 8 of the Rules.
No member of Class 11 service can claim 122 promotion to the post of Executive Engineer on the ground of eligibility alone.
Unless a Class II officer has been selected in accordance with Rule 8 of the Rules he cannot be promoted to the post of Executive Engineer.
[125C E] 1.02.
The question of assigning seniority in Class I service only arises after a Class 11 officer has been selected and appointed to the said service.
The seniority in class I is determined under Rule 12 of the Rules, keeping in view the date of appointment as a result of selection under Rule 8 of the Rules.
[125F] 1.03.
The respondents in these appeals were appointed to the post of Executive Engineer, as a result of selection held under Rule 8 of the Rules, with effect from January 21, 1986.
Their seniority has to be determined in Class I service keeping in view the date of their appointments as January 21, 1986.
[125F G] 1.04 The Tribunal grossly erred in directing the Chandigarh Administration to give seniority to the Respondents from the date of their eligibility.
The respondents can neither be given the date of appointment as January 1, 1985 nor their seniority fixed from that date.
The directions of the Tribunal in this respect are patently violative of the Rules.
[125G H]