judgement:
ion No. 489 of 1972.
Petition Under Article 32 of the Constitution of India AND C.A. Nos.
1745 to 1747 of 1974 Appeal by Special Leave from the Judgment & Order dated the 20th May, 1971 of Delhi High Court in C.W. No. 716/69, 553/70 and 574 of 1970.
M. C. Bhandare, P. H. Parekh and section Bhandare, for the Petitioner (In WP No. 489/72) and Appellants (In CA.
No. 1745/74).
981 Lal Narain Sinha, Solicitor General of India, section N. Prasad and R. N. Sachthey, for Respondents Nos.
1 3 (In WP.
No. 489/72).
K. section Ramamurthi, section Balakrishnan and T. M. Ghatate of Bala krishnan and Ghatate, for Respondents Nos. 5, 23, 27, 31 ', 53, 59 & 65 (In WP.
No. 489/72).
section Markandeya, for Respondents Nos. 71, 73, 83, 87, 93, 94, 96, 98, 103, 107, 109 & 111 113 (In WP.
No. 489/72).
P. P. Rao, for Intervener Nos.
1 8 (In WP.
No. 489/72).
P. H. Parekh and section Bhandare, for Intervener No. 8 (In WP.
No. 489/72).
P. P. Rao, for the Appellants (In CAS Nos. 1746 1747/1974).
Balakrishnan and N. M. Ghatate, for Respondent No. 3 (In All the Appeals).
The Judgment of the Court was delivered by GOSWAMI, J.
The petitioners in Writ Petition No. 489 of 1972 are confirred Assistant Engineers in the Central Engineering Service (Class 11).
They were promoted to officiate as Executive Engineers in Class I between December 27, 1956 and September 8, 1959, by a properly constituted Departmental Promotion Committee and have been working as Executive Engineers in the Central Public Works Department of the Ministry of Works and Housing of the Government of India.
Except one petitioner (namely, K. G. Chopra) all the petitioners were promoted to the grade of Executive Engineer prior to their confirmation as Assistant Engineers.
The respondents 4 to 66 were initially recruited as Assistant Executive Engineers in Class I and were promoted to the grade of Executive Engineer between the period March 11, 1957 and February 23, 1966.
The appellants in Civil Appeals Nos.
1745 of 1974 and 1746 and 1747 of 1974, who were recruited directly to Class 11 as a result of competitive examination in which they had failed to secure requisite marks for being selected for Class 1, are also confirmed Assistant Engineers in Grade II and have been officiating as Executive Engineers in Grade I.
They have obtained special leave against the Full Bench judgment of the Delhi High Court in their writ petitions under Article 226 of the Constitution decided by a common judgment of 20th May, 1971.
Since a common question of law is involved in all these matters, this judgment will govern all the above matters.
We will, therefore, include the appellants also in describing them as petitioners in this judgment.
The Service with which we are concerned is the Central Engineering Service, Class I.
According to the Central Engineering Service, Class 1, Recruitment Rules (briefly the Rules) framed in the year 1954 by S.R.O. 1841 dated May 21, 1964, which are admittedly similar to those of 1949 Recruitment Rules, officers in the grade of Assistant Executive Engineer (Class I) and certain Assistant Engineers (Class II) are eligible for promotion to the grade of Executive Engineer 982 (Class 1).
The vacancies in the grade of Executive Engineer can only be filled by promotion from the aforesaid two grades in the ratio of 75% and 25%.
The aforesaid quota was retrospectively altered with effect from September 7, 1955, to 66 2/3% and 33 113 %.
Part I of the Rules contains the definitions.
By Rule 2(b) thereof, "The Commission" means the Union Public Service, Commission.
Rule 2(c) defines "The Service" as the Central Engineering Service, Class I.
The Service includes various grades of posts.
Rules 3, 4 and 5 relevant for our purpose are as under "3.
Recruitment to the service shall be made by any of the following methods: (a) By competitive examination in India in accordance with Part III of these rules.
(b) By promotion in accordance with Part IV of these Rules.
(c) By transfer in accordance with Part V of these Rules.
(1)All appointments to the service or to posts borne upon the cadre of the Service shall be made by Government.
(2) Subject to the provisions of rule 3 Government shall determine the method or methods of requirement (sic) (recruitment?) to be employed for the purpose of filling any particular vacancies in the Service or such vacancies therein as may be required to be filled during any particular period and the number of candidates to be recruited by each method.
Provided that all recruitments by competitive examination (vide Part HI of the rules) shall be to the grade of Assistant Executive Engineer, Class I only.
Seventy five per cent of the vacancies in the grade of Executive Engineer, Class 1, shall be filled by promotion of Assistant Executive Engineers, Class 1, the rest of the vacancies being filled by promotion and/ or by transfer in accordance with Parts IV and V of the Rules respectively.
Appointments to the Service made otherwise than by promotion will be subject to orders issued from time to time by the Ministry of Home Affairs regarding special representation in the Services for specific, sections of the people.
As noted earlier the quota for promotion between the directly recruited Assistant Executive Engineers and promotees from Clam II, which was initially in the ratio of 75% and 25%, was later altered to 66 2/3% and 33 1/3% in 1956 and with effect from April 1, 1972, the percentage has come to be 50:50 for a period of seven years.
983 According to the petitioners prior to their promotion as Excise Engineers the petitioners and respondents 4 to 66 were holding interchangeable posts, the nature of work, responsibilities, powers and duties discharged by all of them being the same and subsequent to their promotion all these and the pay scales were identical in every respect.
Prior to the promotion, however, the pay scale of the petitioners was different from that of the Assistant Executive Engineers who were already in Grade 1.
The Assistant Executive Engineers are directly recruited to Grade I by competitive examination and sometimes Assistant Engineers (Class 11) are also recruited by the same competitive examination to Class 11 when they cannot quality with the requisite marks to obtain entry in Class I Services.
Besides, Class III Officers are also promoted to Class 11.
In order, therefore, to give incentive of promotion to employees in Class II, who have already gathered experience in the service, a certain percentage of quota is reserved for their promotion to the grade of Executive Engineer in the recruitment rules.
The Principal grievance of the petitioners is against the seniority list as on 1 7 1971 (Annexure 'J ') where the petitioners have bets shown as Junior to the respondents 4 to 66 (in Writ Petition No. 489 of 1972) and to the respondents in the other two appeals.
According to them notwithstanding the fact that they were recruited by promotion to officiate in the grade of Executive Engineer regularly as a result of selection by the Departmental Promotion Committee and they bay been working in that capacity for nearly 13 years or over their cases were not considered for the purpose of promotion to the still higher grades in Class I and Assistant Executive Engineers recruited several years after their recruitment have been held to be, senior to them and some of them have been promoted to the next higher grades ignoring their claim.
It is admitted that there are no statutory seniority rules as such and both sides depend upon certain memorandum issued by the Government of India in the Home Department to establish their respective claims.
According to the respondents it is manifest in the quota rule that there is ail implied rotational system by which only at the time of confirmation of the petitioners as Executive Engineers the seniority may be fixed in accordance with the quota.
According to the learned Solicitor General appearing on behalf of the Union of India the petitioners, who were confirmed in Class II, have a lien in that grade and they cannot be expected to belong to two grades at the same time.
It is, therefore, only at the lime of confirmation against permanent vacancies that for the first time the petitioners may be held to have been recruited to class I of the Service.
Since according to him the recruitment is from two sources it is essential that recruitment can only be understood within the meaning of these rules to have taken place at the time of confirmation of the petitioners in the superior grade, namely, Class 1.
Necessarily, therefore, says the learned Solicitor General, the quota rule applies at the stage, of confirmation and seniority would be relateable to confirmation in Grade I of the Service.
984 It will be necessary also to refer to rule 23 in Part IV referred to in rule 4(2) providing for promotion: "23(1) No Assistant Engineer, Class II shall be promoted as Assistant Executive Engineer, Class 1.
(2) Recruitment by promotion to the Grade of Executive Engineer, Class I shall be made by selection from among permanent Assistant Engineers in the Central Engineering Service, Class 11, after consultation with the Commission.
No officer shall have any claim to such promotion as of right.
(3) No Assistant Engineer shall be eligible for promotion to the Service, unless he (a) would, but for age, be qualified for admission to the competitive examination under Part III of these Rules.
(b) has rendered at least three years ' services in a permanent or temporary capacity as an Assistant Engineer and subordinate under the Central Government; and (c) satisfies the Commission that he is in every respect suitable for appointment to the Service.
It shall not be necessary to consult the Commission, under this rule, in the case of any person, if the Commission had been consulted in connection with his temporary promotion to the Service.
The learned Solicitor General draw& our particular attention to rule 23 (2) which provides that recruitment to the grade of Executive Engineer (Class 1) has to be made by selection from amongst permanent Assistant Engineers in Class H.
He submits that the word 'permanent ' in sub rule (2) is very significant.
Since recruitment by promotion can be made only from amongst permanent Assistant Engineers, there can be no recruitment earlier when an Assistant Engineer is holding his post in an officiating or temporary capacity.
According to him the petitioners could not be said to be recruited to Class I when they were not permanent Assistant Engineers.
Again according to him the petitioners could be considered as permanent Assistant Engineers only when they were confirmed in their posts in Class 11.
According to the respondents, confirmation and not officiating appointment in the grade of Executive Engineer is sine qua non of recruitment to Clauses.
As stated earlier there are no statutory seniority rules as such.
The whole question will turn on the construction of rule 4 read with rule 23 and also any other appropriate administrative instructions, issued by the Ministry of Home Affairs with regard to the principles for determining seniority.
We have already quoted the said rules.
We have now to consider the Memorandum of the Home Ministry dated June 22, 1949 (Annexure G 1) and another similar Memorandum dated 985 December 22, 1959 (Annexure G 11).
The latter Memorandum givesan annexure containing the general principles for determination of seniority in the Central Services.
Mr. Bhandare followed by Mr. Rao relies upon the Memorandumof June 22, 1949 and agrees with the learned Solicitor General that the Memorandum of December 22, 1959, is not relevant: But the learned Solicitor General goes further to submit that the Memorandum of June 22, 1949, is also not relevant as it deals with seniority of displaced Government servants who have been absorbed temporarily in the Central Government and the petitioners do not fall in that category.
On the other hand, the petitioners submit that from the Memorandum of December 22, 1959, it is clear that although the instructions contained in the Memorandum dated June 22, 1949, were issued in order to safeguard the interests of the displaced Government servants, later on as the specific objects underlying the instructions cited above have been achieved, there is no longer any reason to apply those instructions in preference to the normal principles for determination of seniority.
The Memorandum proceeds "it has, therefore, been decided in consultation with the Union Public Service Commission that hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accordance with the General Principles annexed hereto".
"The instructions contained in the various office Memorandum cited in paragraph I (including that of June 22, 1949) above are hereby cancelled, except in, regard to determination of seniority of persons appointed to the various Central Services prior to the date of this Office Memorandum.
The revised General Principles embodied in the Annexure will not apply with retrospective effect, but will come into force with effect from the date of issue of these orders, unless a different date in respect of any particular service/grade from (sic (for?) which revised principles are to be adopted for purpose of determining seniority has already been or is hereafter agreed to by this Ministry".
It is, therefore, clear that so far as the petitioners are concernedthe Memorandum of December 22, 1959, is not attracted.
On the other hand the Memorandum of June 22, 1949, will clearly apply (See Union of India and Others vs M. Ravi Varma and Others, etc.(1).
Para 2 of that Memorandum may now be quoted "2.
The question of seniority of Assistants in the Secretariat was recently examined very carefully in consultation with all the Ministries and the Federal Public Service Commission and the decisions reached are incorporated in para 8 of the instructions for the initial constitution of the grade of Assistants, an extract of which is attached.
It has been decided that this rule should generally be taken as the model in framing the rules of seniority for other services and in respect of persons employed in any particular grade seniority should, as a general rule, be determined on the basis of the (1) ; 16 346SupCI 75 986 length of service in that grade as well as service in an equivalent grade irrespective of whether the latter was under Central or Provincial Government in India or Pakistan".
Paragraph 8 to which a reference is made in the above Memorandum reads as follows : "8.
Seniority of Assistants in Grade IV as newly constituted.
The names of all existing permanent Assistant who are included in the permanent strength of the service and who were confirmed in their ' posts prior Lo the 22nd October, 1943, will be arranged in the first instance Ministry wise in accordance with the rules in force at present.
Such permanent Assistance will be considered senior to all others conferment in pursuance of these instructions in vacancies arising upto the 22nd October, 1950.
The order of seniority of the latter group of Assistants, namely, those confirmed after the 22nd October, 1943, which will be arranged in a single list for all Ministries, will be determined inter se on the basis of their length of continuous service, temporary or permanent in the grade of Assistant or in an equivalent grade, provided that any period of service during which the pay actually drawn exceeds Rs. 160/ per month should be deemed to be service in a grade equivalent to that of an Assistant".
It is submitted on behalf of the respondents that the question of seniority arises between Assistant Executive Engineers and Assistant Engineers only when the latter are members of ' the same class grade which happens only after the Assistant Engineers are confirmed as Executive Engineers.
It is emphasised that as between members of different classes the question of relative Seniority cannot arise.
It is further submitted that having regard to the nature of the scheme the rules provide that the grade of Assistant Executive Engineer will consists exclusively of young men of merit proved by competitive examination who will quickly after the necessary training have promotion to the posts of Executive Engineer and above.
In the context of that scheme rule 4 (2) requires 66 2/3 % vacancies to be filled by the Assistart ', Executive Engineers and "the rest" by promotion of the Assistant Engineers or by transfer.
We are not concerned with transfer from other service in this case.
It is also contended that the rule clearly gives preference to the extent of 66 2/3% to the Assistant Executive Engineers.
It is only after their appointment to the extent of 66 2/3% that "the rest" comes into existence.
The argument proceeds that it is only on confirmation and absorption of Assistant Engineers in Class I that the question of relative seniority between them and Assistant Executive Ercincers promoted as Executive Engineers can arise.
It is strenuously contended that an Assistant Engineer officiating as Executive Engineer cannot be senior to an Assistant Executive Engineer while officiating as Executive Engineer.
Particular vacancies as and when they go on arising must be finally filled to give effect to 66 2/3% to Assistant Engineers and thereafter only the residue to Assistant Engineers or transferred officers.
It is stressed by the respondents that appointment by rotation is involved in the mandate rule 4(2) itself.
987 Mr. Ramamurthi and Mr. Balakrishnan while adopting the argu ments of the learned Solicitor General reply upon an Office Memorandum of December 8, 1960, of the Ministry of Works, Housing and Supply, Government of India, on the subject of principles for seniority in the Central Engineering Service and Central Electrical Engineering Service (Class 1) in the Central Public Works Department.
The learned Solicitor General did not address us on this Office Memorandum as he rightly found considerable difficulty in doing so.
It will appear from the recital in this Memorandum that it has not emanated from the Home Ministry which is the appropriate Department for issuing instructions in service matters under the Allocation of Business Rules of the Central Government under Article 77(3) of the Constitution.
Besides, this Office Memorandum refers to and relies upon a Notification of November 22, 1960, of the Home Ministry, namely, U.0.
No. 9/38/60 Estt(D) for issuing these instructions.
The said Notification of the Home Ministry could not be traced and was not produced before us and in its absence we are unable to take into consideration the Memorandum of December 8, 1960.
The learned Solicitor General is, therefore, correct in not referring to the same but submitted his arguments mainly on the construction of the Recruitment Rules.
He, however, did submit that what was recited in para 4 of the Memorandum of December 8, 1960, actually followed from rule 4(2) read with rule 23 and it was not, therefore, necessary at all to make any reference to this Memorandum.
It will be appropriate at this stage to refer to the judgment of the Delhi High Court under appeal where the High Court relied upon the said Notification of December 8, 1960 and also accepted the arguments on the line made before us by the learned Solicitor General.
The High Court relied upon the Circular of December 8, 1960 and paragraph 7 of the annexure to the Office Memorandum of December 22, 1959, of the Home Ministry with regard to the relative seniority of direct recruits and promotees and observed as follows "The rotational sysstem is, therefore, firstly justified by rule 4 (2) itself.
Even if it is assumed for the sake of argument that rule, 4(2) is silent about the rotational system, then the administrative instructions make it clear that the quota system in rule 4(2) has to be worked out only by the rotational system and not in any other manner".
The High Court further held as follows "The case of Shri Ojha (appellant in Civil Appeal NO. 1745 of 1974) is that because he was officiating as an Executive Engineer Class I from before the time the respondent No. 9 started officiating Shri Ojha was entitled to seniority not only against respondent No. 9 but against the other respondents also.
This stand is contrary to the last part of rule 4(2) which compels the Government to fill the vacancies in the grade of Executive Engineers Class 'I strictly by rotation system implementing the quota rule.
Our conclusion on question No. 1, therefore, is that the earlier confirmation and 988 the higher seniority given to the respondents are legal both according to the statutory rule 4(2) and according to the administrative instructions".
The administrative instruction which is referred to in the above extract is to be found in the aforementioned paragraph 6 of the Circular of December 22, 1959, regarding relative seniority of direct recruits and promotees.
We have already made it clear that the Memorandum of December 22, 1959, is not applicable in this particular case.
We have, therefore, to examine whether it is correct to hold that it is implicit in rule 4(2) read with rule 23 that the rotational system is necessarily implied to the extent of denying seniority to the petitioners if appointed regularly earlier within their quota at the time of recruit ment.
We have also to examine the correctness of the submission as to whether the Assistant Engineers after they are confirmed as such and continue to hold the appointments of Executive Engineer in regular course of selection through the Departmental Promotion Committee, presided over by a member of the Union Public Service Commission are entitled to claim seniority vis a vis the Assistant Executive Engineers when promoted subsequent to their appointments.
Now the question which arises for consideration is what is the meaning of the words "vacancies in the grade of Executive Engineer" as used in the aforesaid paragraph of rule 4(2).
When does a vacancy in the grade of.
Executive Engineer arise? To answer this question it is necessary to ascertain what are the posts which the grade of Executive Engineer consists of, for the vacancies can only be in the posts in the grade 'of Executive Engineer.
The word "grade" has various shades of meaning in the service jurisprudence.
It is sometimes used to denote a pay scale and sometimes a cadre.
Here it is obviously ,used in the sense of cadre.
A cadre may consists only of permanent posts or sometimes, as is quite common these days, also of temporary posts.
To give one example, the cadre of Income Tax Officers, Class 1, Grade II, as pointed out by this Court in Bishan Sarup Gupta vs Union of India and Others(1) in para 18 of the report, consisted of It permanent and temporary posts".
Here in the present case it has been stated on oath by P. K. Kulkarni, Under.
Secretary to the Ministry of Works and Housing, in paragraph 7 of his Affidavit inreply at page 252 of the Paper Book that "there are permanent and temporary posts sanctioned from time to time in the grade of Executive Engineer, Class 1.
Promotions from the grade of Assistant Executive Engineers and/or Assistant Engineers are initially made in an officiating capacity against the available vacancies,.
the avail able vacancies obviously being in the permanent and temporary posts in the grade of Executive Engineer.
Paragraph 23 of the same Affidavit in reply at page 257 of the record is also to the same effect "I say that there are permanent and temporary posts sanctioned in the grade of Executive Engineer".
It is, therefore, clear that the cadre of Executive Engineer consists both of permanent posts and tempo 1. ; 98 9 rary posts.
Even from the statement of sanctioned strength of Engineering Officer Class 1, Central P.W.D., from 1960 to 1972 filed by the Solicitor General in the course of argument it is apparent that the cadre includes both permanent and temporary posts.
Whenever therefore, a vacancy arises in a permanent post or in a temporary post it would be a vacancy in the grade of Executive Engineer and the quota rule for promotion would apply.
The above conclusion at which we have reached is reinforced also by a reference to rule 2 of section 6 in Chapter V at page 31 of the C.P.W.D. Manual, Volume 1 (1970 edition) (hereinafter referred to as the Manual) wherein "every officer appointed against a permanent or temporary post" is specifically adverted to.
Again at page 35, rule 19(b), there is a reference to Class I Direct Recruits (temporary).
Indeed we find an admission in paragraph 67 of the Affidavit in reply filed by P.B. Kulkarni at page 271 of the record: "I submit that the quota rule is to be applied as and when vacancies in the grade of Executive Engineer are required to be filled but as already stated earlier it has not been possible to apply this quota rigidly at the time of officiating promotions as promotions from the grade of Assistant Engineer have been far in excess of their quota".
It may also be noted that it is at the stage of promotion to the grade of Executive Engineer that the quota rule is to be applied.
Now there is a well recognised distinction between "promotion" and "confirmation" and that is apparent from the Manual, Chapter VI, Section 6 at pages 46 47.
Rule 6, at page 47 says that promotions by a Departmental Promotion Committee on the basis of assessment of merit from a field of choice which may extend upto 5 6 times the number of ex pected vacancies, while rule 4 provides that the confirmation is subject to satisfactory performance and clearance from the vigilance angle and the confidential dossier of the official concerned is required to be reviewed to see that the individual has been reported satisfactorily during the 'period of last three years as may be fixed by the Departmental Promotion Committee for the purpose and if the reports are unfavourable or below average, the incumbent shall 'have to wait for a further period till he gains satisfactory reports.
The tests , to be applied for the purpose of "promotion" and "confirmation" are entirely different.
When promotion is made by selection, as it is, from amongst Assistant Engineers, it is based on the assessment of relative merit from a field choice consisting of the senior most persons in the lower cadre upto about 5 or 6 times the number of expected vacancies, while for confirmation the only aspect considered is whether the performance of the incumbent is satisfactory and there is nothing objectionable from the violence angle.
Then again section 7 of Chapter V of the Manual deals with the subject of promotion while section 8 of the same chapter deals with the subject of confirmation clearly recognising the distinc tion between promotion and confirmation.
Rule 4 of section 7 at page 48 also makes a clear distinction between promotion and confirmation.
Rule 9 of the same section at page 50 lays down the procedure for promotion to the selection posts and this procedure has clearly no application in cases of confirmation.
It was this procedure which was apparently followed when the petitioners and respondents 67 to 118 9 90 were promoted as officiating Executive Engineers from the grade of Assistant Engineer.
Then rule 12 of section 7 at page 52 lays down that in order to be eligible for promotion as Superintending Engineer an Executive Engineer promoted from Class I Service would have to, put in "7 years ' service in the grade of Executive Engineer".
Similarly an Executive Engineer promoted from Class II service also has to put in "7 years ' service in the grade of Executive Engineer '.
Thus once an Assistant Engineer is regularly promoted to officiate in the grade of Executive Engineer, there is no further restriction under the rules in his next jump to the grade of Superintending Engineer.
Now it cannot be disputed that for the purpose of promotion to the grade of Superintending Engineer 7 years service in the grade of Executive Engineer would count by taking into account not only service rendered after confirmation in the permanent post of Executive Engineer but also service rendered in an officiating capacity in a permanent or temporary post as Executive Engineer.
This can be explained only on the hypothesis that the grade of Executive Engineer consists both of permanent and temporary posts and service in an officiating capacity, here, is service in the grade of Executive Engineer.
When an Assistant Executive, Engineer or Assistant Engineer is promoted to officiate as Executive Engineer he is regarded as promoted to and serving in the grade of Executive Engineer.
Again rule 11 of section 8 at page 57 of the Manual enunciates a very important principle which clearly brings out the distinction between promotion and confirmation.
It says inter alia that the list of eligibility, is to be finalised "after keeping in view the seniority of the persons concerned in the post in which he is to be confirmed".
Seniority "in the post in which he, is to be confirmed" is to be reckoned.
That means that those who are to be confirmed as Executive Engineers have a seniority in the grade of Executive Engineer though they are only officiating Executive Engineers and their confirmation would follow according to their seniority as officiating Executive Engineers which would depend on when they were promoted as officiating Executive Engineers in a regular manner within their quota.
It would, therefore, be seen that so far as this service is concerned promotion has always been recognised as distinct from confirmation.
During the course of hearing instances have been shown where Assistant Engineers before confirmation in Class It have been regularly promoted to officiate as Executive Engineers.
So also Executive Engineers prior to their confirmation as such have been promoted to officiate as Superintending Engineers.
The process of selection by the Departmental Promotion Committee, according to rule 9 of section 7 at page 50 of the Manual is applied at the stage of promotion of Assistant Engineers as officiating Executive Engineers and not at the stage of their confirmation which is required to be made according to rule 4 of section 6 at page 46 and rule 1 1. of section 7 at page 57 of the Manual.
The quota rule which on the plain language of the last paragraph of rule 4(2) is to be applied at the stage of promotion must, therefore, be given effect to at the point of time when Assistant Engineers and Assistant Executive Engineers are promoted as officiating Executive Engineers and not at the stage of their confirmation.
It is submitted by the respondents that one third quota cannot be filled unless the two third quota was exhausted.
This, in our view, 991 will introduce sterility in the quota rule so far as the promotees are concerned.
Their hopes and aspirations cannot be related to the availability or non availability of the direct recruits to fill the two third quota.
Each quota will have to be worked independently on its own force.
The word "rest" in the quota rule cannot be pressed into service to defeat the object of the rule coming in aid of advancement of prospects of promotees in the hierapchy by of the Service.
It may be pointed out that even in the case of recruitment to the cadre of Income Tax Officer, Grade II, Class 1, the, letter of the Government of India dated September 29, 1944, which fixed the quota between direct recruits and promotees pursuant to rule 4 was substantially in the same terms as the last paragraph of the present rule 4(2).
It is stated that the recruitment to Grade 11 of Class I will be made partly by promotion and partly by direct recruitment and that "80% of the vacancies arising in the grade will be filled by direct recruitment and the remaining 20% vacancies will be filled on the basis of the promotion by selection provided suitable number of men are available for promotion".
This quota of 80% and 20% was subsequently altered by Government of India to 66 2/3% and 33 1/3% by their letter dated October 18, 1951.
This Court held in Bishan Sarup Gupta 's case (supra) interpreting the quota rule of 1944 and 1951 in para 18 thereof as follows "It is feebly contended on behalf of the direct recruits that the quota rule should relate to only vacancies in permanent posts and not temporary posts.
This contention is not accepted either by the promotees or the department.
There is nothing in the ' Rules of 1945 or the quota rule of 1951 which says that the vacancies must be vacancies in perma nent posts.
Indeed the vacancies must be permanent vacancies that is to say vacancies which are not for a few days, or for a few months or are otherwise adventitious.
The whole cadre has consisted of permanent and temporary Posts for years.
Permanent vacancies are, therefore, likely to take place both in the permanent posts and in the temporary posts.
In fact Mr. Dutt, in his affidavit filed in Jaisinghani 's case (supra), had clearly alleged in paras 25 and 26 of the affidavit that all the: direct recruits from 1948 onwards were initially appointed against temporary posts and even at the time of the filing of the affidavit, i.e. on January 31, 1967, direct recruits were being appointed against temporary posts.
We, therefore, find no sufficient warrant for the contention that the vacancies referred to in the quota rule are vacancies only in the permanent posts".
This reasoning applies equally in the present case and it must be held that the vacancies referred to in the quota rule in the last paragraph of rule 4(2) are vacancies not only in the permanent posts but also in the temporary posts in the grade of Executive Engineer and the quota rule applies at the stage when Assistant Engineers and Assistant Executive Engineers are promoted even if it be in an offi 992 ciating capacity to fill vacancies in the grade of Executive Engineer irrespective of whether the vacancies are in permanent posts or temporary posts.
But then the question may arise as to how the quota rule is to be applied.
Here again we find that guidance is afforded by the decision of this Court in Bishan Sarup Gupta 's case (supra).
Paragraph 14 of the judgment in that case deals with this very question vis a vis recruitment to the cadre of Income Tax Officers, Grade 11, Class I "On the other hand, the contention on behalf of the direct recruits is that the real intention of the rule was to secure that at any given moment the service must consist of direct recruits and promotees in the proportion of 2:1.
If, for example, in any year 50 direct recruits were appointed, than not more than 25 promotees could be appointed in that year.
If also no direct recruit was appointed in a year there could be no appointment of promotees.
This line of argument has been accepted by the High Court and it was substantially on that ground that the seniority list prepared on July 15, 1968, has been set aside and directions given for preparing a fresh one.
What was, however, over looked is that the rule, dated October 18, 1951, was not concerned With the constitution of the cadre but was concerned as to how permanent vacancies were to be filled.
Rule 4 of the Income tax Class 1, Grade 11 Service Recruitment Rules also refers to recruitment of candidates to vacancies in the service.
The vacancies for any particular year being ascertained, not more than one third of the same were to go to the promotees and the rest to the direct recruits.
The ratio was not made dependent on whether any direct recruit was appointed in any particular year or not.
We are, therefore, unable to accept the con construction put on the quota rule by the High Court.
In our opinion, the promotees were entitled to one third of the vacancies in any particular year whether or not there was direct recruitment by competitive examination in that year".
It would, therefore, be seen that the Assistant Executive Engineers were entitled initially to three fourth and subsequently to two third of the vacancies in the grade of Executive Engineers arising in any particular year, while Assistant Engineers were entitled initially to ,one fourth and subsequently to one third of such vacancies and the ratio was not dependent on whether any persons from one class or the other were, promoted or not.
If there were three vacancies in a year, two would go to the Assistant Executive Engineers while one would go to the Assistant Engineers and even if there were no eligible Assistant Executive Engineers, who could be promoted to fill in two vacancies belonging to their quota, one vacancy will have to be filled by promotion of an Assistant Engineer.
If having regard to the exigencies of the situation, the two vacancies belonging to the quota of Assistant Executive Engineers had to be filled in by Assistant Engineers for want of availability of eligible Assistant Executive Engineers, 993 the appointment of the Assistant Engineers to fill in such two vacancies would be irregular, because that would be outside their quota and in that event they would have to be pushed down to later years when their appointment can be, regularised as a result of absorption in their lawful quota for those years.
This is what was directed to be done by this Court for the purpose of fixing inter se seniority amongst direct recruits and promotees in the grade of Income Tax Officers Grade 11, Class 1, in Bishan Sarup Gupta 's case (supra).
This Court pointed out in that case as follows at page 8 "If there were promotions in any year in excess of the quota those promotions were merely invalid for that year but they were not invalid for all time.
They can be regularised by being absorbed in the quota for the later years.
That is the reason why this Court advisedly used the expression "and onwards" just to enable the Government to push down ex cess promotions to later years so that these promotions can be absorbed in the lawful quota for those years".
The same procedure will have to be followed in the present case.
Whenever it is found that Assistant Engineers were promoted as officiating Executive Engineers in excess of their quota they would have to be pushed down to later years in order that their promotion may be regularised by being absorbed in their quota for later years.
When recruitment is from two or several ' sources it should be observed that there is no inherent invalidity in introduction of quota system and to Work it out by a rule of rotation.
The existence of a quota and rotational rule, by itself, will not violate article 14 or article 16 of the Constitution (See Marvyn Coutinho & Ors.
vs Collector of Customs, Bombay & Ors.
,(1) and Govind Dattatray Kelkar & Ors.
V. Chief Controller of Imports & Exports & Ors.) .(2) It is the unreasonable implementation of the same which may, in a given case, attract ,he frown of the equality clause.
If the seniority list is now properly prepared in the manner indicated in this judgment, +,here may be no objection on the score of article 14 or article 16 of the Constitution.
In this view of the matter, it is not necessary to pursue the arguments addressed regarding violation of articles 14 and 16 of the Constitution.
To summarise the conclusions (1) When Assistant Engineers (Class 11) are initially appointed in a regular manner in accordance with the rules to, officiate as Executive Engineers, their seniority in service in Grade I will count from the date of their initial officiating appointment in Class I provided their initial officiating appointment as Executive Engineers was within their quota.
(2) Their seniority will not be reckoned from the date of their future confirmation in Class 1.
(1) ; [1967] 2 S.C.R. 29. 9 94 The above principle is, however, suspect to one reservation, namely, if an Assistant Engineer before his confirmation in Class 11 were appointed to officiate in Class I in the grade of Executive Engineer, although within his quota, his seniority will count only from the date of his confirmation in Class 11 as permanent Assistant Engineer notwithstanding his earlier officiating appointment as Executive Engineer.
(3) The quota rule will be enforced at the time of initial recruitment, in an officiating capacity, to the grade of Executive Engineer and not at the time of confirmation.
(4) The quota rule will be enforced with reference to vacancies in all posts, whether permanent or temporary, included in the sanctioned strength of the cadre (except such vacancies as are purely of a fortuitous or adventitious nature) and the operation of the quota rule will not depend upon the availability or non availability of Assistant Executive Engineers for appointment as Executive Engineers.
The non availability of Assistant Executive Engineers for recruitment to the grade of Executive Engineer will not postpone the regular recruitment of the Assistant Executive Engineers as Executive Engineers within their quota.
(5) Once the Assistant Engineers are regularly appointed to officiate as Executive Engineers within their quota they will be entitled to consideration in their own rights as Class I Officers to further promotions.
Their "birth marks" in their earlier service will be of no relevance once they are regularly officiating in the grade of Executive Engineer within their quota.
(6) If Assistant Engineers are recruited as Executive Engineers in excess of their quota in a Particular year they will be pushed down to later years for absorption when due within their quota.
In the result the Writ Petition and the Civil Appeals are allowed.
The judgment of the High Court is set aside.
The respondents 1 to 3 in Writ Petition No. 489 of 1972 (respondent No. 1 being common in the other two Appeals) are directed to amend and revise the 995 seniority list of 1971 (Annexure 'J ') in the light of the directions in this judgment and to give effect thereafter to the revised seniority list so prepared.
The revision of the seniority list shall not, however,.
affect those employees who are not impleaded in the proceedings before this Court and who have already been promoted and confirmed in higher grades in the Service.
Respondents 1 to 3 will pay the costs of the petitioners in Writ Petition No. 489 of 1972 and respondent No. 1 will pay to the appellants in the Civil Appeals costs through out.
C.M.P. No. 1889 of 1974 regarding delay in filling of the counter affidavit on behalf of respondents 1 to 3 in the Writ Petition is.
allowed.
We may observe in the end that it maybe desirable that the time , of this Court may not be consumed in resolving these complex tangles in conditions of service breeding human discontent and the solution thereof is better left to a fair and proper formulation of precise and ' unequivocal statutory rules after examination of the problems with a,.
broad humane approach.

summary/full:
The petitioners who were Assistant Engineers (Class II) were promoted to officiate as Executive Engineers in Class I Central Engineering Service by a properly constituted Departmental Promotion Committee.
Respondents 4 to 66 we initially recruited as Assistant Executive Engineers Class I and were promoted to the grade of Executive Engineer.
The vacancies in the grade of Executive Engineer can only be filled by promotion from the aforesaid two grades in the ratio of 75 % and 25%.
The relevant rule reads as under : "75 per cent of the vacancies in the grade of Executive Engineer, Class 1, shall be filled by promotion of Assistant Executive Engineers Clause I., the rest of the vacancies being filled by promotion and or by transfer in accordance with parts 4 and 5 of the rules respectively".
There are no statutory seniority rules.
The petitioners ware shown as junior to respondents No. 4 to 66 and they were not considered for promotion to the higher post of Superintending Engineer, although they have been Executive Engineers for longer period by following the quota rule at the stage of confirmation.
The petitioners contended that their seniority should be determined in accordance with the Home Ministry 's Memorandum dated 22 6 1949.
i.e., the length of service put in by them in the grade of Executive Engineer.
It was contended on behalf of the respondents.
(1) In the quota rule there is an implied rotational system by which only at the time of confirmation of the petitioners as Executive Engineers the seniority may be fixed in accordance with the quota.
(2) Reliance was also placed on the Office Memorandum dated 8 12 1960 issued by the Ministry of Works, Housing and Supply according to which confirmation was to be made by applying rotational method in working out the quota rule.
(3) Vacancies in quota rule means only vacancies in permanent posts.
(4) Quota rule applies at the stage of confirmation and the seniority would be relatable to confirmation.
(5) One third quota cannot be filled in until and unless two third quota is available and filled in.
(6) Since the petitioners had their lien in Class II posts they cannot be expected to belong to 2 grades at the same time.
(7) Memorandum dated 22 6 1949 has no application since it was issued is order to safeguard the interests of the displaced government servants.
980 HELD: (1) When recruitment is from two or several sources there is so inherent invalidity in introduction of quota system and to work it out by a rule of rotation.
The existence of a quota and rotational rule by itself will not violate Article 14 or Article 16 of the Constitution.
[993 E] Mervin Coutinho and Govind Dattatraya Kelkar cases referred to.
It is the unreasonable implementation of the same which may in a given came attract the frown of the equality clause.
[993 E F] (2) The Memorandum dated 8 12 1960 issued by the Ministry of Works, Housing and Supply has not emanated from the Home Ministry which is the appropriate department for issuing instructions n ,service matters under Allocation of Business Rules of the Central Government framed under Article 77(3) of the Constitution.
The said Memorandum also refers to a notification dated 22 11 1960 of the Home Ministry which ha , not been produced.
The said Memorandum, therefore.
cannot be availed of.
The High Court wrongly relied upon the Memorandum dated 8 12 1960.
[987 B D] (3) Words "vacancies in the grade of Executive Engineer" include both vacancies in the permanent posts as well as in temporary posts since the cadre consists of both permanent and temporary posts.
The quota rule will be enforced with refer ence to vacancies in all posts, whether permanent or temporary, included in the sanctioned strength of the cadre (except such vacancies as are purely of a fortuitous or adventitious nature).
[991 H 992 A; 994 C D] (4) The quota rule will be enforced at the time of initial recruitment in officiating capacity to the grade of Executive Engineer and not at the time of confirmation.
[994 B C] (5) The argument that one third quota cannot be filled in unless two third quota was exhausted was negatived as the argument if accepted would introduce sterility in the quota rule so far as the promotees are concerned.
Their hopes and aspirations cannot be related to the availability of the direct recruits to fill two third quota.
Each quota will have to be worked independently on its own force.
The word "rest ' in the quota rule cannot be pressed into service to defect the object of the rule coming in aid of advancement of prospects of promotees.
[991 A B] The case of Bishan Sarup Gupta applied.
(6) There is a well recognised distinction between promotion and confirmation.
The tests to be applied for the purposes of promotion and confirmation are entirely different.
[989 F G] (7) Memorandum dated 22 6 1949 will clearly apply and Memorandum dated 22 12 1959 is not applicable in this particular case.
[985 F G] Union of India & Ors.
vs Ravi Varma and others, etc.
; , , followed (8) In view of the judgment in the Writ Petition the Judgment of the full Bench of Delhi High Court was set aside.
[994 H]


judgement:
Civil Appeal No. 208 of 1973.
From the Judgment and order dated the 25th September, 1973 of the Patna High Court in Election Petition No. 4 of 1972.
K. K. Prasad, K. K. Sinha and section K. Sinha for the appellant.
K. P. Varma, D. P. Mukherjee and D. Goburdhan for respondent No. 1.
U. section Prasad for respondent No. 3.
The Judgment of the Court was delivered by SARKARIA, J.
Election from 168 Katoria Bihar Legislative Assembly Constituency took place in March, 1972.
The poll was held on March 11, 1972 and the votes were counted on March 12, 1972.
Respondent No. 1 herein, an independent candidate, % as declared elected having secured 16649 votes as against 16074 polled by the appellant, a nominee of Indian National Congress (R).
There were three other candidates (Respondents 2 to 4) who secured 2347, 8001 & 1542 votes respectively.
The votes rejected as invalid, were 1219.
On April 14, 1972, the appellant filed an election petition under the Representation of the People Act, 1951 challenging the election of the returned candidate on the ground that several irregularities and illegalities were committed in the counting of votes.
The petition was resisted by the returned candidate.
The High Court framed issues, recorded the evidence produced by the parties 23 and held that the allegations had not been substantiated.
It declined the request for a recount and dismissed the petition.
Hence this appeal by the petitioner.
Mr. Prasad, learned Counsel for the appellant contends that the following irregularities/illegalities in the counting had been established : (1) Four unauthorised persons, viz., Ajudhya Prasad Singh, Q. M. Zaman, Parvez Ahmed and Radhey Sham Sah were allowed to work as Counting Supervisors at tables 4, 5, 7 and 9 in breach of the rules, and this had vitiated the counting.
(2) In the first round of counting at table No. 4 in the box relating to polling station No. 74, Madhopur U.P. School, 50 unsigned ballot papers were found in excess of those actually polled.
When this was detected and brought to the notice of the Assistant Returning officer, he, in violation of Rule 93(1) of the Conduct of Election Rules (for short, called the Rules) and to cover up the irregularity, opened that packet and inspected those unused ballot papers.
(3) The detailed result sheet which was inter alia prepared tablewise, in accordance with the instructions of the Election Commission, has been deliberately suppressed to prevent detection of mistakes and manipulations made in the counting.
(4) About 600 700 uncounted ballot papers in bundles were kept below his table by the Assistant Returning Officer.
In the final round of counting, despite protest, 600 votes were counted twice, in favour of Respondent No. 1.
That was why the petitioner who at the end of the third round was leading by a margin of 2205 votes, was shown having lost by 575 votes to Respondent No. 1, notwithstanding the fact that in the last round there were only 3800 ballot papers to be counted.
Before dealing with these contentions, we may recall, what this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of course.
The reason is two fold.
Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed.
Secondly, the Rules provide an elaborate procedure for counting of ballot papers.
This procedure contains so many statutory checks and effective safeguards against trickery mistakes and fraud in counting, that it can be called almost fool proof.
Although no, hard and fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus : The Court would be justified in ordering a recount of the ballot papers, only where : (1) the election petition contains an adequate statements of all the material facts on which the allegations of 24 irregularity or illegality in counting are founded; (2).
On the basis of evidence adduced such allegations are believing that there has been a mistake in counting prima facie established, affording a good ground for and (3) the Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
The contentions advanced in this case are to be tested in the light of these principles.
Since, on the whole, we agree with the findings and the conclusion of the court below, we will confine the discussion to the broad features of the case and the legal aspects of the contentions canvassed before 'US.
The first contention is that four unauthorised persons were allowed to act as Counting Supervisors at tables Nos. 4, 5, 7 and 9.
The argument proceeds that the list of all the persons who were appointed as Counting Supervisors/Counting Assistants, was summoned from the office of the District Election Officer, and in response thereto, the list exhibit 6, has been produced.
It is argued that since the names of Ajudhya Prasad Singh, Q. M. Zaman, Parez Ahmed and Radhey Sham Sah do not find mention in Exh. 6, they were never appointed to act a, , Counting Supervisors.
In this connection, reference has been made to the application filed on April 14, 1972, by the petitioner for summoning documents, the list exhibit 6, and the Check Memos (exhibit C/3, exhibit C/4, exhibit C/6 and exhibit C/8).
The Check Memos show that the aforesaid persons actually supervised the counting at tables Nos. 4, 5, 7 and 9.
It may be noted that there is not even an oblique hint in the election petition that any unauthorised person was allowed to act as Counting Supervisor or Counting Assistant.
Such an allegation was made for the first time in the application, dated 3 7 1973.
This application seeking a recount was made at the stage of final arguments, after the parties had closed their evidence.
It is true that in cross examination the Returning Officer and the Assistant Returning Officer were questioned by the Counsel for the petitioner with regard to the authorisation of these persons to act as Counting Supervisors.
But that could hardly constitute an adequate notice to the Respondent of this new plea which was sought to be smuggled into the case in a questionable manner at the belated stage.
The Respondent could be justified in assuming that the evidence on this plea which was not even faintly adumberated in the petition nor put in issue would not be looked into by the Court.
In any case at that stage the Respondent had no opportunity or right to produce evidence to show that apart from 'the list.
6, there was other record showing that the aforesaid persons were duly appointed by the Returning Officer to act as Counting SuperviSors.
25 Be that as it may, it has not been shown that these four persons who took part in the counting, were unauthorised persons.
It is not disputed that the are all Government officials.
The mere fact that their names do rot appear in Exh.
6 does not exclude the probability of their having been appointed and kept in reserve by a separate order or orders to act as Counting Supervisors in case of need.
That such appointments were made and a waiting list of such appointees in reserve was prepared, is clear from the answer that the Returning Officer (R.W. 14), Mr. Sinha, gave to a Court question "If an officer of this list did not turn up in time to participate in the counting then in his place another officer had to be appointed from the waiting list that was maintained in my office regarding this matter.
That waiting list contained the names of officers reserved whose services were to be utilised in case, any of the appointed officer did not turn up or % as subsequently exempted from working as such inside the counting hall.
" In reply to a further question put by the petitioner 's Counsel, the Returning Officer reiterated "There was a reserved list like this in my office regarding this matter which had been prepared under my orders." The fact that such a list of officials in reserve was prepared and exists receives further support from the evidence of R.W. 18 and R.W 19 who had worked as Counting Supervisors at tables Nos. 6 and 3.
respectively.
The petitioner appeared in the witness box as P.W. 19 on 7 5 1973.
Even then he did not make any allegation that any unauthorised persons had been admitted into the Counting Hall.
His Chief Counting Agent who appeared as P.W. 13, also did not allege anything of this kind.
The circumstances of this case fully attract the maximum omnia praesumuntur rite esee acta, and it would be presumed that the aforesaid four persons were rightly and regularly appointed and admitted into the Counting Hall to act as Counting Supervisors, by the Returning Officer.
On this score no violation of Rule 53 or any other statutory provision has been shown.
Now we turn to the second contention of Mr. Prasad.
The argument is that at the first round of counting in the box of Polling Station No. 74 (Madhopur), fifty unsigned ballot papers were found in excess of those polled.
This irregularity, it is submitted, was brought to the notice of the Returning Officer by Prof. Yadav, the Chief Counting Agent of the appellant, but to no avail.
Part I of exhibit 4 is the Ballot Paper Account sent by the Presiding Officer of Polling Station No. 74.
Its Part 11 contains the result of the initial counting of those ballot papers at table No. 4.
In Part 1, in column No. 2(a), the number of unused ballot papers is shown as 397, and in column 3, the number of ballot papers issued to voters is given as 323.
In Part 11, column 1, the total number of ballot papers found 26 in the ballot box used at the polling station, is entered as 373, and in column 2, captioned Discrepancy, if any etc. ', it is written "Found fifty excess including one ballot paper unsigned".
The entries in columns 1 and 2 of Part II purport to bear the signature of the Counting Supervisor, R. Shyam Sah who was not examined by either side.
It is common ground that when this discrepancy was brought to the notice of the Assistant Returning Officer and the Returning Officer, the sealed packet of the unused ballot papers was opened and the papers were counted.
The result of that count is to be found noted on the back of exhibit 4 by the Assistant Returning Officer, thus : "On verification by counting the actual number of unused ballot papers by opening the statutory packet in presence of the Returning Officer and the candidates,/agents, it was found that only 347 unused ?) ballot papers have been returned.
This settles the discrepancy in the ballot paper account.
" Under it is the endorsement of the Returning Officer to the effect "This was done by (A.R. O?) in my presence.
" The Assistant Returning Officer stated in the witness stand as R.W. 13, that in the Ballot paper Account, the total number of unused ballot papers was wrongly shown as 397, while it should have been 347, which was the actual number of ballot papers found in the packet.
Thus, the physical verification revealed that this apparent discrepancy did not actually exist.
The court below has accepted the genuineness of the endorsements of the Assistant Returning Officer (R.W. 13) and the Returning Officer (R.W. 14) on exhibit 4 and the evidence of those officers in preference to the, interested statements of the Counting Agent (P.W. 9) and the Chief Counting Agent (P.W. 13) of the petitioner.
It has also found that only one unused ballot paper was found unsigned, and not fifty.
We have no good reason to differ from those findings.
Indeed the main burden of the arguments of Mr. Prasad, is that the Assistant Returning Officer/Retarning Officer was not competent to open the packet of unused ballot papers and inspect the same as such a course was expressly forbidden by Rule 93 (1) of the Rules.
It is stressed that this illegality vitiating the counting, was itself a good ground for ordering a recount.
Rule 93 reads "Production and inspection of election papers. (1) While in the custody of the district election officer or, as the case may be, the returning officer (a) the packets of unused ballot papers with counterfoils attached thereto; (b) the packets of used ballot papers whether valid, tendered or rejected; 27 (c) the packets of the counterfoils of used ballot papers; (d) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub section (1) or sub section (2) of section 152; and (e) the packets of the declaration by electors and the attestation of their signature; shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a com petent court.
(2) Subject to such conditions and to the payment of such fee as the Election Commission may direct, (a) all other papers relating to the election shall be open to public inspection; and (b) copies thereof shall on application be furnished.
(3) Copies of the returns by the returning officer forwarded under rule 64, or as the case may be, under clause (b) of sub rule (1) of rule 84 shall be furnished by the returning officer, district election officer, chief electoral officer or the Election Commission on payment of a fee of two rupees for each copy.
For understanding the import and object of Rule 93, it would her appropriate to have a short and swift glance at the scheme of them Rules.
Part V of the Rules makes provision with regard to "Counting of Votes in Parliamentary and Assembly Constituencies.
" It cover&.
Rules 50 to 66.
Part VI relates to "Voting at Elections by Assembly Members and in Council Constituencies" '.
It includes Rules 67 to 70.
Part VII provides for "Counting of votes at Elections by Assembly Members or in Council Constituencies".
It contains Rules 71 to 85.
It will be, seen that Rule 93 has not been placed in any of the Parts relating to counting of votes.
It seems to have been advisedly placed ' in Part TX captioned "Miscellaneous", which in the serial order comes after the Parts dealing with voting and counting of votes.
Viewed in the light of the scheme of the Rules, and its setting, the language of Rule 93 seems to us clear enough to indicate that the custody of the District Election Officer or the Returning Officer spoken of in the Rule is a post election custody.
Such an indication is available in the words "unused ballot papers" which repeatedly occur in this rule.
The word "unused" in the context means that which "was made available for use in the election but remained unused in the election".
Sub rule (3) of the Rule enables the authorities mentioned therein to issue copies of the returns forwarded by the Returning Officer under Rule 64 or Rule 84(1) (b).
The supply of such copies will obviously be a post election function.
28 Any other interpretation of Rule 93 and its scope would make it difficult, if not altogether impossible, for the Returning Officer to perform the various functions and duties enjoined by the rules at the stage of counting.
This will be clear from a reference to the other Rules.
Take for instance Rule 56 which requires that the ballot papers shall first, be taken out from the boxes used in a constituency and mixed together and then arranged in convenient bundles and scrutinised.
Subrule (2) of Rule 56 further requires inter alia that if a ballot paper does not bear any mark at all or does not bear both the mark or the signature which it should have borne under the provisions of sub rule (1) of Rule 38, it shall be rejected by the Returning Officer.
To perform this duty it would be absolutely necessary for the Returning Officer to inspect such ballot papers.
Indeed, in the present case, in ,objection was raised that fifty unused ballot papers in the packet did not bear the mark or signature required by Rule 38(1).
The Returning Officer was therefore, fully competent to open the packet and inspect and count the ballot papers found therein.
Instruction 23 in the Hand Book issued by the Election Com mission, also indicates that R. 93(1) operates at a post election stage.
Under this instruction, the Returning Officer is required to seal the packets of all the papers relating to the election, specified in Clauses (a), (b), (c), (d) and (e) of R. 93(1) immediately after the counting of the votes is over, with his own seal and also with that of the Commission.
After the: sealing, the packets are to be put in a separate steel box which shall be locked with two locks and each lock shall be sealed.
Immediately after the declaration of the election results the sealed box is to be despatched to the District Election Officer who on receipt of the same shall forthright deposit it in safe custody in the Treasury under double lock.
The key of one of the locks is entrusted to the Treasury Officer.
In Union Territories such a deposit is to be made by the Returning officer.
The secret seals of the Commission are returned immediately after their required use.
Thus, it is clear that the custody contemplated by Rule 93(1) is the post election custody.
In the light of the above discussion, the conclusion is inescapable that the act of the Returning Officer in opening.
the packet, and in inspecting and counting the unused ballot papers found therein, far from amounting to an illegality, was necessary for the due performance of the duty enjoined on him by the Rules.
Accordingly, we overrule this contention.
It is urged that the detailed result sheet, prepared candidatewise, table wise and roundwise, from which figures mentioned in the final result sheet (Exh. 7) were extracted has been deliberately withheld to prevent detection of the hanky panky done in the counting.
Such a detailed result sheet, it is maintained, was required to be prepared and was admittedly prepared under instruction No. 17(q) in the Hand Book for Returning Officers (1970)" issued by the Election 'commission.
The contention appears to be attractive but does not stand a close examination.
29 Instruction 17(q) in the Hand Book runs thus "Side by side, the work of tabulating the result of counting shall be done.
The Check Memos duly signed by the Returning Officer shall be passed on to an officer seated at a separate table near the Returning Officer/Assistant Returning Officer.
This officer shall fill in the result of counting of each round of each table in Form 20.
It is desirable that a separate sheet for each round is used for the purpose.
Copies of Form 20 may be printed, cyclostyled or type written.
The entries in the form should be made on loose sheets prepared for the purpose.
A copy of Form 20 is at Annexure XIII.
" A perusal of Form 20 prescribed under rule 56(7) of the Rules would show that, it does not require that the final result sheet should be prepared tablewise, also.
It is sufficient if the final result sheet is candidate wise and round wise.
The final result sheet (Exh. 7) exactly conforms to the prescribed Form 20.
The Assistant Returning Officer (R.W. 13) in cross examination said : "On the above table where the entries used to be made in the result sheets from the check memos, those entries were made candidate wise, table wise and round wise.
The figures of total votes of the different rounds of counting, as mentioned in this abstract result sheet, Exh. 7, (the witness looks into it) were not directly taken from the figures as they found mention in the different check memos of the different tables of the different rounds of counting, but from these check memos the figures were first extracted on the detailed result sheet giving their numbers round wise, candidate wise and table wise and thereafter those figures were totalled round wise and extracted in this Exh. 7.
" From the statement of R.W. 13 extracted above, it would appear that at first a detailed result sheet in which figures were tabulated candidatewise, tablewise and roundwise was I prepared, and then, therefrom, all the figures, excepting.those showing table wise break up, were carried over to the final result sheet, Exh. 7, drawn up in the prescribed Form 20.
This detailed result sheet, though summoned, is not forthcoming from the District Election Officer might be, it hag been misplaced.
Might be, it was destroyed by the Counting Staff after the preparation of the final result sheet in the prescribed Form.
Whatever be the case, the absence of that document, does not make the checking and verification of the figures entered in the final result sheet, Exn. 7 impossible or even difficult.
Its preparation is not a requirement of any statutory provision.
It is prepared only as a matter of convenience in view of the instructions of the Election Commission, by carrying over, collating and totalling the figures from the Check Memos containing tablewise figures of each round of counting.
It is a sort of rough intermediary tabulation intended to facilitate the compilation of the final result sheet in the prescribed form.
The basic figures from which the final result sheet, whether detailed or abstracted, are worked out are 30 given in the Check Memos pertaining to the various counting tables.
,Such Check Memos are available and indeed reference to some of them namely, Exh. C/3, C/4, C/6 and C/8 was specifically made before us. 'The correctness or otherwise of the figures given in exhibit 7 could easily 'be verified by tallying the same with the aggregate of those given in the Check Memos.
Indeed, no argument has been advanced before us that the figures given in the final result sheet, exhibit 7, would not agree with the figures taken and totalled from the Check Memos.
We therefore, repel this contention.
This bring us to the last contention.
The argument advanced by Mr. Prasad is that during the fourth round of counting, 600 to 700 unused and uncounted ballot papers in bundles of 25 each were detected by the petitioner 's counting agent, Jagannath Sah, lying under the table of the Assistant Returning Officer.
Jagannath Sah protested.
The Assistant Returning Officer, however, put those uncounted ballot papers in the lot of counted votes.
P.W. 13 also, on coming to know about it, protested against that mixing.
In support of this contention, ,Counsel has.referred to the circumstance that at the end of the third round of counting, the appellant was leading by a margin of 2205 votes.
It is urged, this lead of 2205 votes could not thereafter be turned into a deficit of 575 votes when the total number of ballot papers that remained to be counted in the last round, was 3800 only.
Like the elusive cloud, this ground of objection, also, has been ever changing its hue and shape.
In the application 'Exh. 3, for a recount which was submitted by the petitioner to the Returning officer ,at 7 p.m. towards the close of.
the final round of counting all that was stated, was : "It is respectfully submitted that recounting of 168 Katoria Assembly Constituency be done.
Because one bundle of 600 votes have been recounted again.
All the votes be recounted.
" It was not alleged therein, even in an embryonic form that 600 uncounted votes in bundles were detected lying underneath the table of the Assistant Returning Officer.
Such an allegation, appeared for the first time in the election petition which was filed about 33 days after the election.
What was earlier said to have been 'counted twice over ', had now become completely 'uncounted '.
What was then alleged in exhibit 3 to have been counted on the table, has now gone underneath the table.
The original allegation in exhibit 3 (which was repeated in the second application, exhibit 3a, presented at 7 40 p.m.) was manifestly untenable.
because if there was double counting of any ballot papers, the total of the votes polled should have exceeded by the number doubly counted.
No such excess was reflected in the grand total of the final result sheet.
The total was correct.
The petitioner bad no explanation as to why the grand total of the final result sheet did not show an excess of 600 or any other number of ballot papers.
It was mainly for this reason, that the Returning Officer had rejected the applications of the petitioner for a recount.
That is why the petitioner has now come forward with a changed version, invented as an after thought.
31 The final result sheet, Exh. 7, falsifies his present contention also.
it shows that at the end of the third round, the appellant was leading by a margin of 424 votes only.
There is no good reason to doubt the authenticity of the figures given in Exh. 7.
As against it, the notes, exhibit 2 Series, on which the petitioner relies for his contention that at the end of the third round he was leading by 2205 votes, was a self serving and wholly unreliable piece of evidence.
These notes (Exh.
2 series) were not mentioned in the list of reliance filed along with the petition.
There is no reference to any such notes or their contents in the appli cations Exhs. 3 and 3a.
These notes are said to have been made by the Counting Agents of the petitioner at the time of counting.
But in the initial list submitted by the petitioner on 30 8 1972 for summoning among others his Counting Agents as witnesses, it was not mentioned that they would produce any such notes.
Subsequently on 28 3 1973 he moved the court requesting that these witnesses be required to bring their notes.
In these circumstances, the High Court was right in holding that these notes had been subsequently brought into existence for the purpose of this petition.
For the foregoing reasons, we are of the opinion that the appellant has been unable to make out a good case for a recount of the ballot papers.
We dismiss his appeal.
He shall pay the costs of Respondent No. J. V.M.K. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
In the election from 168 Katoria Bihar Legislative Assembly constituency, the Respondent No. 1 was declared elected having secured 16649 votes as against 16074 polled by the appellant.
The votes rejected as invalid were 1219.
The appellant filed an election petition challenging the election of the returned candidate on the ground that several irregularities and illegalities were committed in the counting of votes.
The petition was resisted by the returned candidate.
The High Court framed issues, recorded the evidence produced by the parties and held that the allegations had not been substantiated.
It declined the request for a recount and dismissed the petition.
Hence this appeal by the petitioner.
It was contended for the appellant : (i) Four unauthorised persons were allowed to work as Counting Supervisors at tables 4, 5, 7 and 9 in breach of the rules and this had vitiated the counting, (ii) When the fact, that, 50 unsigned ballot papers relating to polling station No. 74 were in excess of those actually polled, was brought to the notice of the Assistant Returning Officer, he, in violation of Rule 93(i) of the Conduct of Election Rules and to cover up the irregularity, opened that packet and inspected those unused ballot papers; (iii) The detailed result sheet prepared tablewise in accordance with the instructions of the Election Commission has been deliberately suppressed to prevent detection of mistakes and manipulations made in the counting, and (iv) Despite protest, 600 votes were counted twice in favour of Respondent No. 1.
Rejecting the contentions and dismissing the appeal, HELD : The court would be justified in ordering a recount of the ballot papers, only where : (1) the election petition contains an adequate statements of all the material facts on which the allegations of irregularity or illegality in counting are founded.
(2)On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting and; (3) the Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
[23H; 24A B] (i) There is not even an oblique hint in the election petition that any unauthorised person was allowed to act as Counting Super visor or Counting Assistant.
It was made at the stage of final arguments in the application seeding a recount.
Questioning the Returning Officer and the Assistant Returning officer in this regard during cross examination, could hardly constitute an adequate notice to the Respondent of this new plea.
That apart, neither the petitioner nor his chief Counting Agent alleged anything of this kind.
All the four persons are Govt.
Officials.
The fact that their names do not appear in exhibit 6 does not exclude the probability of their having been appointed and kept in reserve by a separate order or orders to act as counting Supervisors in case of need.
That such appointments were made and a waiting list was prepared is disclosed in the evidence of the Returning Officer, and it receives further support from the Evidence of R.W. 18 22 and R.W. 19.
The circumstances of this case fully attract the maxim omnia praesumuntur rite esse acta, and it would be presumed that the aforesaid four persons were rightly and regularly appointed and admitted into the Counting Hall to act as Counting Supervisors, by the Returning Officer.
On this score no violation of Rule 53 or any other statutory provision has been established.
[24F H; 24A E] (ii) The act of the Returning Officer in opening the packet, and inspecting and counting the unused ballot papers found the rein, far from amounting to an illegality, was necessary for the due performance of the duty enjoined on him by the Rules.
The language of Rule 93 is clear enough to indicate that the custody of the District Election Officer or the Returning Officer spoken of in the Rule is a postelection custody.
Indeed, in the present case, an objection was raised that fifty unused ballot papers in the packet did not bear the mark or signature required by Rule 38(1).
The Returning Officer was therefore, fully competent to open the packet and inspect and count the ballot papers found therein.
[28F; C] (iii) The absence of a detailed result sheet showing tablewise figures of each round of counting does not make the verification of the figures collated in the final result sheet drawn up in Form 20, impossible or even difficult as such figures can always be checked with the aid of Check Memos which contain tablewise figures of each round.
[29G H] (iv) In the application for a recount submitted to the Returning Officer, the appellant alleged that 600 votes constituting one bundle, have been "recounted again".
But it was not alleged therein, even in an embryonic form, that 600 uncounted votes in bundles were detected lying underneath the table of the Assistant Returning Officer.
Such an allegation appeared for the first time in the election petition filed 33 days later.
The original allegation was untenable because such an excess was not reflected in the grand total of the result sheet.
The total was correct.
The result sheet falsified the subsequent contention also which had been put forward as an afterthought.
[30F H]