judgement:
No. 134 of 1958.
Writ Petition under Article 32 of the Constitution of India for the Enforcement of Fundamental Rights.
N. C. Chatterjee, K. P. Mukherjee, P. D. Himatsinghka and B. P. Maheshwari, for the petitioners.
M. C. Setalvad, Attorney General for India, B. Sen and R. H. Dhebar, for the respondent.
K. P. Khaitan, K. P. Mukherjee and B. P. Maheshwari, for Interveners 1 to 10.
G. section Pathak, K. P. Mukherjee and B. P. Maheshwari, for Interveners 11 to 13.
January 23.
The Judgment of the Court was delivered by , WANCHOO, J.
This petition under article 32 of the Constitution challenges the legality of the notification dated July 30, 1958, (hereinafter called the impugned notification), issued by the Government of India fixing the ex factory price per maund of sugar produced in Punjab, Uttar Pradesh and North Bihar.
It has been supported by two sets of interveners consisting of sugar factories in these areas who did not join the petition.
The case of the petitioners is that the (X of 1955).
(hereinafter called the Act), was passed by Parliament in 1955, for the control of the production, supply and distribution of, and trade and commerce in, certain commodities, which included sugar.
By section 3 of the Act, the Central Government was given the power, if it was of opinion that it was necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and 125 availability at fair prices, to provide by order for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
Section 3(2) further provided inter alia for controlling the price at which any essential commodity might be bought or sold.
In exercise of these powers, the Central Government promulgated the Sugar (Control) Order, 1955, (hereinafter called the Order), on August 27, 1955.
Clause 5 of the Order gave power to the Central Government, by notification in the Official Gazette, to fix the price or the maximum price at which any sugar might be &old or delivered, and different prices might be fixed for different areas factories or different types or grades of sugar.
Such price or maximum price had to be fixed with due regard to various factors, with which we shall deal later.
On June 27, 1958, the Central Government promulgated the Sugar Export Promotion Ordinance, No. V of 1958, empowering it to appoint an export agency for carrying out the work of buying sugar in the Indian market and exporting the same to foreign markets and fixing the quantity of sugar for export.
The Central Government was also authorised by that Ordinance to fix quotas apportioning the quantity of sugar to be supplied by each factory for export and levy an additional excise duty at the rate of Rs. 17 per maund on any factory failing to deliver its quota of sugar for export.
On the same day, three notifications were issued: (i) fixing 50,000 tons of sugar as the quantity to be exported out of India during the period ending October 31, 1958, (2) appointing the Indian Sugar Mills Association, Calcutta, as the export agency, and (3) delegating the powers conferred on the Central Government to the Chief Director of Sugar and Vanaspati, Ministry of Food and Agriculture also.
Then followed the impugned notification fixing ex factory prices of sugar produced by the factories in Punjab, Uttar Pradesh and North Bihar.
It is being challenged on the ground that the price fixed is considerably below the cost of production and ignores various factors affecting the cost of production and distribution of sugar including charges incidental to sale and 126 distribution.
The impugned notification is also attacked on the ground that it did not fix any price at which the persons purchasing sugar from the mills would sell it, so that it was open to the middleman who bought sugar from the factories to sell it at any price, thus creating discrimination between factories and factories and between the producers selling sugar and the middlemen who buy sugar selling the same in their turn.
It is also alleged that fixing of the price was arbitrary and did not take into account the cost of production of a large number of units in the country and did not provide for a fair and equitable distribution of sugar in the country at a price in any way related to the price at which the factories were compelled to sell their products.
Consequently, the petitioners prayed for an appropriate order, direction or writ in the nature of mandamus or any other writ quashing the Sugar (Control) Order, 1955, and all orders made in pursuance of it including the impugned notification.
The petition has been, opposed by the Central Government.
It is contended on their behalf that the entire object of fixing the price of sugar was (a) to make it available at a reasonable price to the consumer, and (b) to ensure adequate and smooth flow and supply of sugar which is an essential commodity for the life of the people to all parts of the country according to their needs and requirements, checking the speculative tendency of the market and destroying the creation of an artificial shortage by unscrupulous persons.
Prices of sugar were first put under control as far back as 1942 and this control continued up to 1947, when it was withdrawn on December 8, 1947.
It was, however ' found that internal prices were raised during the de control period on the pretext of subsidizing export, which never materialised.
In consequence,, control was again imposed on September 2, 1949; but it was lifted in 1952, when it was found that there was sufficient stock available at the end of the 1951 52 season.
In 1953 54, however, production fell and control had again to be imposed for that season.
It was, however, lifted a year later.
In November 1956 127 there was a considerable surplus of sugar and the Central Government permitted export of 1.53 lakh of metric tons in 1957.
The Central Government was again approached in 1958 to make the export of sugar a permanent feature and it agreed to allow export during 1958 in view of the carry over from the previous season and also for earning foreign exchange in the interest of the country.
Therefore, the Central Government promulgated the Sugar Export Promotion Ordinance, No. V of 1958, on June 27, 1958.
But as this Ordinance was expected, a tendency developed 'in the sugar industry to push up prices after the month of April 1958.
As a result of this tendency, prices went up by about a rupee per maund in May and June 1958, and it was feared that they might go up further in view of the quota for export announced on June 27, 1958.
In view of this apprehension, the industry assured Government that the sugar factories would offer to sell their released stocks freely at prices prevalent before the export policy was announced, i.e., in the week before June 27, 1958.
In spite, however, of this assurance, there was a general rise in prices during the four weeks preceding the impugned notification.
This rise was particularly marked in Northern India.
It was in these circumstances that the Government decided to control ex factory prices of sugar in Punjab, Uttar Pradesh and North Bihar.
The Government took all relevant factors into account in fixing the price.
This was done in the interest of the general public in order that sugar might be available at fair prices.
As Uttar Pradesh and North Bihar are the main surplus areas and feed the deficit areas of the country, it was not necessary to control prices elsewhere; nor was it necessary to control prices beyond the ex factory stage as the prices in the whole.
sale or the retail markets are governed by ex factory prices.
There was in the circumstances no question of discrimination or any unreasonable restriction on carrying on trade in sugar.
The Government did not admit that the price fixed was below the cost of production generally.
Consequently, it was prayed that the petition should be dismissed.
128 the interveners raise the following points in support of their contention that the impugned notification is illegal and invalid (1) (a) The impugned notification is beyond the ambit of authority conferred on the Central Government under section 3 of the Act and clause 5 of the Order, and in any case it is bad as it cannot possibly subserve the purposes of the Act ensuring equitable distribution of the commodity to the consumer at a fair price; (b) The impugned notification merely fixes ex factory prices and is bad, firstly, on the ground that the Act and the Order do not authorise the Central Government to fix ex factory prices, and, secondly, on the ground that even if ex factory prices can be Axed under the Act and the Order, the impugned notification is still bad as it fails to fix prices for the ultimate consumer which must be done under the Act; (2) The impugned notification imposes an unreasonable restriction on the right to trade under Article 19 (1) (g), inasmuch as (i) it compels factories to sell sugar at a loss, (ii) it fixes the price arbitrarily, and (iii) there is no reasonable safeguard against the, abuse of power and no provision for a check by way of appeal or otherwise; (3) The impugned notification is bad inasmuch as it is discriminatory because it fixes ex factory prices only for factories in Punjab, Uttar Pradesh and North Bihar and not for factories in other parts of India and there is no reasonable classification discernible on any intelligible differentia on the basis of which prices 'have been controlled in certain regions only.
(1) (a).
The Act deals with essential commodities which have been defined therein.
The preamble shows that it has been passed in the interest of the general, public for the control of the production, supply and distribution of and trade and commerce in, certain commodities.
Section 3 of the Act gives power to the Central Government to pass orders under the Act if it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing 129 their equitable distribution and availability at fair prices.
No attack has been made on the vires of the Act; but the vires of the Order relating to sugar passed under the Act and particularly of the impugned notification fixing ex factory prices in Punjab, Uttar Pradesh and North Bihar have been attacked.
The Order in our opinion merely carries out the purposes of the Act and cl. 5 thereof gives the ambit of the powers of the Central Government in fixing prices, and lays down the manner in which it should be done and the factors which should be taken into consideration in doing so.
Though in the petition, the Order was attacked on the ground that it gave 'uncontrolled, unguided and unfettered ' power to the executive and imposed unreasonable restrictions on the right to carry on trade, no arguments were addressed to us on the constitutionality of the Order itself.
We are in this case concerned only with that part of the Order which deals with the fixation of price.
Clause 5 provides for factors that the Government will take into account in fixing prices and these are: (i) price or minimum price fixed for sugarcane, (ii) manufacturing cost, (iii) taxes, (iv) reasonable margin of profit for producer and/or trade, and (v) any incidental charges.
It is amply clear from this that price is to be fixed after taking into account all reasonable factors which go into the consideration of price fixation.
In view of this it cannot be said that the Order gives 'uncontrolled, unguided and unfettered ' power to the executive to fix prices arbitrarily.
We shall proceed therefore on the basis that the Act and the Order so far as they are concerned with the fixation of price are valid.
This brings us to the question whether the impugned notification is beyond the authority conferred on the Central Government by section 3 of the Act and clause 5 of the Order. ' Reading section 3 of the Act with the preamble, it would be obvious that the object of the Act is to provide for control of the production, supply and distribution of, trade and commerce in, essential commodities in the interests of the general public, so that the 17 130 supplies of such commodities may be maintained or increased, their equitable distribution secured and they may be available to the general public at fair prices.
Considering the history of sugar control and the trends which appeared in the market from April, 1958, it cannot possibly be said that the impugned notification does not subserve the purposes of the Act and the Order.
There can be little doubt that fixation of ex factory prices of sugar mills in the main surplus areas would have the effect of stabilising sugar prices for the general public, which is the consumer, at a fair level and make sugar available at fair prices.
In the affidavit filed on behalf of the Government it is stated that as a result of this action prices have come down to normal levels.
This is demonstrable proof, if such was needed, that the impugned notification subserves the purposes of the Act.
This contention, therefore, fails.
(1) (b).
The argument under this head is two fold.
It is said that in the first instance ' section 3 of the Act requires that prices for the consumer only should be fixed.
The object of section 3 is undoubtedly to secure essential commodities at fair prices for the general public, i.e., the consumer.
It is well known that there are three kinds of prices prevalent in the market for a commodity like sugar, namely, ex factory price, wholesale price and retail price.
It is the last that the consumer has to pay.
It is urged that when section 3 provides for availability of essential commodities at fair prices to the general public it means that price can only be fixed at the stage where the consumer is the purchaser.
In particular, our attention was invited to clause (c) of section 3 (2), which provides for control of price at which any essential commodity may be bought or sold.
Now there is no doubt that the object of the Act is to secure essential commodities for the consumer, i.e., the general public, at fair prices; but it does not follow from this that this object can only be achieved if retail prices are fixed and that there is no other way of achieving it.
In any case, clause (c) of section 3 (2) which speaks specifically of control of price is very general 131 in terms.
It provides for fixation of price at which any essential commodity may be bought or sold ; it does not specify the stage at which the price should be fixed.
Therefore, we are of opinion that the control provided under clause (c) of section 3 (2) is control at any of the three stages mentioned above.
There is no reason to cut down the generality of the words used in clause (c) so as to make them applicable only to the last stage, namely, the retail price.
This contention, therefore, that section 3 only authorises the Central Government to fix the retail price, i.e., the price for the consumer, fails.
It is then urged that even if the power is there to fix prices at all stages, the Act requires that the price must be fixed for the consumer, whether it is fixed at an earlier stage or not.
There are no words in section 3 (1) or section 3 (2) (c) of the Act, which compel such an interpretation.
It is true that the object of the Act is to ensure fair prices for the consumer; but if fair prices for the consumer can be ensured by fixing the ex factory price, there is no reason why the Government should go on also to fix the wholesale or retail price.
It is well known that the wholesale and retail prices depend upon ex factory price, in the case of a commodity like sugar.
Therefore if fixation of price at the ex factory level is enough to ensure a fair price for the consumer, there is no reason why the Government should not stop at that and should go on also to fix wholesale and retail prices.
It is urged that the middleman who buys from the factory is not controlled and he can sell at any price; and, therefore, the object of the Act may not be achieved.
Theoretically this may be so and a middleman may abuse his position.
If he does so, we have no doubt that the Government will intervene as it has ample power to fix wholesale and retail prices also.
But if the purpose is served by merely fixing the ex factory price, we see no reason why the Government must fix wholesale and retail prices also.
The petitioners have not even alleged that as a matter of fact the wholesalers and retailers are profiteering and making it impossible for sugar to be available for the general public at a fair 132 price.
In the circumstances, it was not necessary in fact for the Government to fix wholesale or retail prices.
In law, we see no warrant for holding that under section 3 (1) and section 3 (2) (c) of the Act, the Government must not only fix ex factory prices but also wholesale and retail prices.
What prices the Government will fix depend upon their estimate of the situation, which would serve the object of the Act.
We are, therefore, of opinion that there is no force in this contention either.
The contention under this head is that the impugned notification is invalid as it is an unreasonable restriction on the petitioners ' right to carry on trade under article 19 (1) (g).
The argument is urged in three ways; namely, (i) factories are being compelled to sell at below the cost of production, (ii) the price fixed is arbitrary, and (iii) there is no safeguard Against abuse of power.
The argument that the factories are being compelled to sell at below the cost of production is put in two ways.
It is said that the press note issued by the Government on July 30, 1958, shows that the Government was of the view that prices should be pegged at the level at which they were in the week preceding June 27, 1958, and inasmuch as they fixed prices below that level or even below the level at which they were at the end of May, 1958, the prices were below the cost of production.
We must say that this is a complete misunderstanding of the press note of July 30, 1958.
All that that press note said was that prices had risen even before June 27, 1958, in expectation of a large export quota.
Thereafter, the Government were assured by the industry that prices would not rise further after June 27 ; but this assurance was not kept and prices went up further by one rupee per maund by the end of July.
It was in these circumstances that the Government intervened.
There was, however, no commitment in this press note by the Government that if they intervened they would fix prices at what they were either in the week before June 27 1958, or in the last week of May; nor is there anything in the press note to suggest that the 133 prices prevalent on either of these two days were proper prices and that any price below them would not even meet the cost of production.
The press, note had nothing to do with the cost of production; nor were the Government bound to fix the prices at the level of the end of June or the end of May.
When they eventually decided to intervene at the end of July, they were free to take action under the Act and the Order and so long as the prices fixed were in accordance therewith, the action could not be challenged on the ground that it was an unreasonable restriction on the right to carry on trade under article 19 (1) (g).
Clause 5 of the Order lays down the factors which have to be taken into consideration in fixing prices.
These factors include among other things a reasonable margin of profit for the producer and/or trade and any incidental charges.
This was kept in mind when prices were fixed by the impugned notification.
The petitioners have certainly filed with their affidavit a schedule giving the cost of production.
According to them, their cost of production is above the price fixed by the impugned notification.
This schedule has not been admitted by the Government.
We see no reason to accept the ipse dixit of the petitioners as to their cost of production.
The sugar crushing season begins about the end of October and finishes about the end of May, so that fixation of price in July, 1958, would be on the basis of the 1957 58 season.
Market prices were available to the Government when they fixed the prices by the impugned notification.
In the case of the three States ' namely, Punjab, Uttar Pradesh and North Bihar, the prices fixed by the impugned notification were above the prices prevalent in the beginning of April and also above the average prices for the month of April, though in the: case of Punjab and West Uttar Pradesh they were slightly below the prices of the 30th of April.
These prices were prevalent in the free market and must certainly have taken account of a fair margin of profit for the producer, though in the case of an individual factory due to factors for which the producer might himself be responsible, the cost of production might have been a little more.
134 Therefore, the prices fixed by the Government by the impugned notification can in no circumstances be said to have been proved to be below the cost of production.
The petitioners were also not unaware of this state of affairs, and therefore, in the rejoinder came out with the story of distress sales by the mills in the early part of the crushing season.
We are not impressed by this story, and in any case there could hardly be any question of distress sales in April when the crushing season was almost coming to an end.
We see therefore no reason to hold that the prices fixed were below the cost of production and were therefore an unreasonable restriction on the petitioners ' right to carry on trade under article 19(1)(g).
This also disposes of the second ground of argument under this Head, namely, that the prices were arbitrary.
All relevant factors prescribed under el.
5 of the Order were apparently taken into consideration and the prices fixed themselves show that they were not arbitrary.
The last argument in this connection is that there is no reasonable safeguard against the abuse of power and no check by way of appeal or otherwise is provided against the order of the Central Government.
It is enough to say that we are here dealing with the power of the Central Government to fix prices in the interests of the general public.
It is in these circumstances absurd to expect that there would be some provision by way of appeal or otherwise against this power of the Central Government.
So long as the Central Government exercises its power in the manner provided by the Act and the Order and this is what it appears to have done , it cannot be said that any further safeguard is necessary in the form of an appeal or otherwise.
The safeguards are to be found in el.
5 itself, namely, that the Central Government must give consideration to the relevant factors mentioned therein before fixing the price, and thus these factors are a check on the power of the Central Government if it is ever minded to abuse the power.
We are therefore of opinion that the impugned notification is not an unreasonable restriction on the peti tioners ' right to carry on trade under Art, 19(1)(g).
135 Re.
said that price control is imposed on factories in Punjab, Uttar Pradesh and North Bihar and that there is no reasonable basis for such clasSification ; factories in other parts of India are left uncontrolled with the result that there is discrimination.
From the material supplied it appears that there are 97 sugar factories in Punjab, Uttar Pradesh and North Bihar while there are 50 sugar factories in the rest of India, of which as many as 18 are in the State of Bombay.
In the other States there are very few factories.
, the lowest being in West Bengal, Orissa and Kerala with one factory each and the highest being in Madhya Pradesh with seven factories.
We also understand that the major part of production of sugar in this country is from the factories in Punjab, Uttar Pradesh and North Bihar.
Of the 97 factories which have been controlled, as many as 90 are in Uttar Pradesh and North Bihar and it is these two areas which are what are called mainly surplus areas.
The price of sugar in India depends upon the price of the factories in Uttar Pradesh and Bihar.
The contention of the Government is that as soon as the price is controlled in Punjab, Uttar Pradesh and Bihar the price for the whole of India is fixed, for other States are deficit and import sugar from these States, particularly Uttar Pradesh and North Bihar.
In these circumstances if price is fixed in this area, price all over India is practicalLy fixed, and it is not necessary to fix prices separately so far as factories in other States which are said to be mainly deficit, are concerned.
In the circumstances we are of opinion, that though in form prices are fixed for factories only in Punjab, Uttar Pradesh and North Bihar, in effect they are fixed for the whole of India, once the production of these three regions is controlled.
There is, therefore, in our opinion no discrimination in effect by the fixation of prices in these three regions.
The argument that there is discrimination is purely theoretical, in view of the economic factors which control the price of sugar in, this country.
Thus in fact there is no discrimination after the control of sugar 136 prices in these three regions and the contention that the factories in the other areas are left free to sell at any price is specious and does not merit a moment 's consideration.
We are therefore of opinion that in effect the impugned notification brought about no discrimination between different regions or between producers and middlemen in view of what we have said already in Re. 1 (b), and consequently, it is not necessary to consider the last part of the submission under this head.
There is in fact no discrimination by the impugned notification and this contention fails on that ground.
There is no force therefore in this petition and it is hereby dismissed with costs.
Petition dismissed.

summary/full:
In exercise of the powers under section 3 Of the Essential Com modities Act, 1955, and under cl. 5 of the Sugar (Control) Order, 1955, the Government of India issued a notification dated July 30, 1958, fixing the ex factory price per maund of sugar produced in Punjab, Uttar Pradesh and North Bihar.
The petitioners challenged the legality of the notification on the grounds (1) that it was beyond the ambit of authority conferred on the Central Government under section 3 of the Essential Commodities Act, 955, and clause 5 Of the Sugar (Control) Order, 1955, and that, in any case, it was bad as it could not subserve the purposes of the Act ensuring equitable distribution of the commodity to the consumer at a fair price, (2) that the Act and the Order did not authorise the Central Government to fix ex factory prices, and,, in any case, the notification failed to fix prices for the ultimate consumer, (3) that it imposed an unreasonable restriction on the right to trade under article 10(1)(g), inasmuch as it fixed the price arbitrarily, and there was no reasonable safeguard against the abuse of power, and (4) that it was discriminatory because it fixed ex factory prices only for factories in Punjab, Uttar Pradesh and North Bihar and not for factories in other parts of India and there was no reasonable classification discernible on any intelligible differentia on the basis of which prices had been controlled in certain regions only.
Held, (1) The notification dated July 30, 1958, is within the authority conferred on the Central Government by section 3 Of the , and cl. 5 of the Sugar (Control) Order,1955.
(2) Section 3 of the Act which provides for control of price is very general in terms and authorises the Central Government to fix the ex factory price of sugar without fixing the wholesale or retail prices; and, since fair prices for the consumer are ensured by fixing the ex factory price, the notification in question subserves the purposes of the Act, and is valid.
(3) Clause 5 of the Sugar (Control) Order, 1955, lays down the factors which have to be taken into consideration in fixing prices, and as the prices were fixed in accordance therewith, the 124 action taken by the Government in the interests of the general public could not be challenged on the ground that it was an unreasonable restriction on the right to carry on trade under article 19(1)(g) of the Constitution.
(4) Though under the notification prices are fixed for fac tories only in Punjab, Uttar Pradesh and North Bihar, in effect, they are fixed for the whole of India, as the other States are deficit ; consequently, the notification brought about no discrimination between different regions.


judgement:
tion No. 5723 of 1982 & 219 of 1986.
(Under Article 32 of the Constitution of India).
Mrs Pinky Anand and D.N. Goburdhan for the Petitioners.
B.B. Singh, Pramod Swarup, J.P. Verghese, LJ.
Vadakare and Ms. Kamini Jaiswal (N.P.) for the Respondents.
The following Order of the Court was delivered These two petitions under article 32 of the Constitution challenge the provisions of the Chhota Nagpur Tenancy Act which confines succession to property to the male line by contending that the provision is discriminatory against women and, therefore, ultra vires the equality clause in the Constitution.
Petitioner No. 1 in the first writ petition is the editor of a magazine while petitioners nos.
2 and 3 are two ladies of the 'Ho ' tribe, admittedly one of the sched uled tribes residing in Singhbhum district of Bihar.
The petitioners in the other writ petition belong to the 'Oraon ' tribe of the Chhota Nagpur area.
Challenge is essentially to sections 7 and 8 of the Chhota Nagpur Tenancy Act of 1908.
Sec tions 7 and 8 of the Act provide: "7.(1) Meaning of 'raiyat having khunt khatti rights '.
"Raiyat having khunt katti rights" means a raiyat in occupation of, or having any subsisting title to, land reclaimed from jungle by the original founders of the village or their descendants in the male line, when such raiyat is a member of the family which rounded the village or a descendant in the male line of any member of such family: Provided that no raiyat shall be deemed to have khunt katti 479 rights in any land unless he and all his predecessors in title have held such land or obtained a title thereto by virtue of inheri tance from the original founders of the vil lage.
(2) Nothing in this Act shall prejudicially affect the rights of any person who has law fully acquired a title to a khunt kattidari tenancy before the commencement of this Act.
Meaning of Mundan Khunt khattidar.
"Mundari khuntkattidar" means a Mundari who has acquired a right to hold jungle land for the purpose of bringing suitable portions thereof under cultivation by himself or by male members of his family, and includes (a) the heirs male in the line of any such Mundari, when they are in possession of such land or have any subsisting title thereto; and (b) as regards any portions of such land which have remained continuously in the possession of any such Mundari and his descendants in the male line, such descendants.
" Reliance has been placed on a Division Bench decision of the Patna High court in the case of Jitmohan singh Munda vs Ramaratan Singh & Anr., in support of the proposition that the Patna High Court had more than 30 years back taken the view that the provision was not operative and a widow was also entitled to inherit.
When analysed the judgment of the Patna High Court does not seem to provide prop for the argument raised in the writ petitions.
In paragraph 4 of the judgment the High Court indicated: "The contention based on section 8 also terminologically cannot be accepted in the first place, in defining khunt kattidari interest.
As quoted above, the word used is "includes" whereafter occur clauses (a) and (b) containing reference to the male in the male line of a Mundari.
The word "includes" cannot be taken to be exhaustive.
It only states that the heirs in the male line alone are in the category of a Mundari khunt kattidari in their possession, but in implication it may well be that the heirs of the deceased Mundari who are females will not be entitled to succeed to it.
That does not mean that the section is so definite as to exclude the inclusion of the widow of the deceased Mundari as a person who can hold the land during 480 her life time.
Moreover, clause (a) refers to the heirs male in the male fine.
The word "line" is also significant be cause it evidently refers to a person who has descended from the deceased Mundari whose interest may be in question.
Even, therefore, if these words "the heirs male in the male line" were to be given exclusive meaning, then also it would mean only the persons who are descended from him or repre sent another male line altogether.
There is no reference whatsoever to the exclusion of the widow of the particular Mundari.
In my opinion, the position in respect of the interest of the widow of the deceased Mundari is the same in respect of this property as it would be her position in regard to the other properties of her late husband.
Since the court below has accepted that the family has followed the Hindu rites and Hindu religion, the widow of Kartik Singh would be entitled to be in possession.
Section 8, as I have discussed, is not inconsistent with this position of the widow and, as such, the court below took the correct view in holding that the plaintiff could not recover posses sion of the property during the life time of defendant No. 1, but he is entitled to a declaration that he will succeed after the death of the widow.
" The interpretation given of section 8 in the Division Bench decision, therefore, does not provide full support to the point raised before us by the writ petitioners in the two cases.
It was a case confined to its own facts and the Court proceeded to dispose of the case with reference to the widow by bringing in the concept of Hindu law on the finding that the family had adopted Hindu law and was not bound by its own caste custom.
At an earlier stage while one of these writ petitions was heard we had given time to the State of Bihar to consid er the feasibility of carrying out an amendment in the offending sections and to clearly provide that succession was not confined to the male in the male line.
A committee appears to have been set up by the State of Bihar to examine this question and it has come to the conclusion that by custom prevalent among the scheduled tribes a female heir is excluded from succession and in case the law was otherwise interpreted or changed and property was allowed to go into the hands of female heirs, there would be great agitation and unrest in the area among the scheduled tribe people who have custom based living.
Scheduled tribe people are as much citizens as others and they are entitled to the benefit of guarantees of the Constitution.
It may be that the 481 law can provide reasonable regulation in the matter of succession to property with a view to maintaining cohesive ness in regard to Scheduled Tribes and their properties.
But exclusion from inheritance would not be appropriate.
Since this aspect of the matter has not been examined by the State of Bihar and the feasibility of permitting inheritance and simultaneously regulating such inheritance for the purpose of ensuring that the property does not go out of the family by way of transfer or otherwise we arc of the view that in the peculiar facts of the case the State of Bihar should re examine the matter.
In these circumstances, instead of disposing of the two writ petitions by a final order we adjourn the hearing thereof for three months and direct the State of Bihar to immediately take into consideration our order and undertake the exercise indicated and report to the Court by way of an affidavit and along with that a copy of the report may be furnished by the Committee to be set up by the State of Bihar.
This matter shall not be considered as part heard and shall be next listed before a Bench where Justice Kuldip Singh is one of the members.
R.P. Petitions adjourned.

dataset_name: IN-Abs

summary/full:
Chhota Nagpur Tenancy Act, 1908 confined succession to property to descendants in the male line of Scheduled Tribes covered by the Act.
The petitioners who were the ladies belonging to the 'Ho ' and 'Oraon ' Tribes of the Chhota Nagpur area contended that the provisions of Sections 7 & 8 of the Act were dis criminatory against women and, therefore, ultra vires the equality clause in the Constitution.
The Court at an earlier stage while hearing one of the writ petitions, gave time to the respondent State of Bihar to consider the feasibility of carrying out an amendment in the offending sections so as to clearly provide that succes sion was not confined in the male line.
In pursuance there of, a Committee was set up by the State which came to the conclusion that a custom prevailed among the Scheduled Tribes that a female heir be excluded from succession, and that if there was any change, and the property be allowed to go into the hands of female heirs there would be agitation and unrest.
Adjourning the hearing of the petitions, this Court, HELD: Scheduled Tribe people are as much citizens as others and they are entitled to the benefit of guarantees of the Constitution.
It may be that the law can provide reasonable regulation in the matter of succession to proper ty with a view to maintaining cohesiveness in regard to Scheduled Tribes and their properties.
But exclusion from inheritance would not be appropriate.
Since this aspect of the matter was not examined by the State, it should re examine the feasibility of permitting inheritance and simul taneously regulating such inheritance for the purpose of ensuring 478 that the property does not go out of the family by way of transfer or otherwise.
[480 H; 481 AB] Jitmohan Singh Munda vs Ramratan Singh & Anr., , referred to.
In the circumstances, hearing of the matter be adjourned for three months and the State of Bihar would immediately take into consideration the order and undertake the exercise indicated and report to the Court by way of an affidavit, and along with that a copy of the report may be furnished by the Committee to be set up by the State of Bihar.
[481 B C]


judgement:
vil Appeal No. 1681A(L) of 1979.
From the award dated 2.8.1978 of the Additional Labour Court, Rajasthan in Reference Case No. ALC 120 of 1974.
V.M. Tarkunde, P.H. Parekh and Sunil Dogra for the Appel lant.
474 J.D. Jain for the Respondent.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
The appellant who had been in the service of the respondent company as a Section Salesman was terminated from service on 12th July, 1973 on the ground that he was on an unauthorised absence since 13th January, 1973 and shall be deemed to have left the company 's service of his own account.
At the instance of the appellant the Government of Rajasthan referred to the Labour Court/or adjudication the question whether the termination of the services of the appellant by the respondent company was legal and justified and if not to what relief he was enti tled to.
The Labour Court by its award dated 2.8.1978 held that the appellant was not a "workman" and that, therefore, the reference was incompetent.
We may, however, state that the Labour Court has given findings in favour of the appel lant on the question whether the termination itself was illegal.
The facts as found by the Labour Court for coming to the conclusion that the appellant was not a "workman" are these.
The head office of the company is at Calcutta in West Bengal.
The appellant was appointed as a section salesman and his services were controlled by the head office through its territory office situated in Delhi.
Section salesman are appointed for certain number of districts and in the area of each section salesman, a number of local salesmen and local travelling salesmen are appointed.
The appellant was ap pointed as a section salesman for the districts of Bikaner, Ganganagar, Merta and Barmer in Rajasthan with his head quarters at Bikaner.
There were seven other local salesmen and local travelling salesmen in his area.
The various correspondence and other evidence produced before the Labour Court showed that the appellant was employed for canvassing and pushing and promoting the sales of the company 's product in his area.
The Tribunal also found and in fact it has referred to as an admitted case of both the parties that the respondent company sells its product i.e. cigarettes manu factured by it directly through their wholesalers who in their turn sell the product to the various dealers appointed by the company in the area.
The section salesman neither sells nor collects any money from the wholesaler or retail dealers.
The company controls this through the territory office at Delhi.
Neither the section sales .
man nor the local salesmen or local travelling salesmen are employed in the shop of the wholesaler or any retail dealer to sell the products of the company and to collect the amount of sale.
The section salesmen and the local salesmen and local trav elling salesmen were employed by the company in order to canvass and promote the sales of the company.
From 475 perusal of the records produced before the Labour Court the Tribunal further observed "it was apparent that the appel lant is required to send reports about the publicity and advertisement and of placing posters, holders, cinema slides and suggest means to canvass the sale in this area.
Some of the document relate to matters of publicity in melas, some relate to the existing position of the stock of the goods of the company in the area and the action taken to ameliorate stocks".
It was not the duty of the appellant to procure orders for the company.
None of the salesmen were employed to sell the product of the company in any particular area or collecting the sale proceeds and depositing the same with the company.
However, the Tribunal noted that the appellant was required to supervise the work of the local ' salesmen and local travelling salesmen appointed in the area of his operation as well but it was only incidental to his main function of canvassing and promoting the sale of the product of the company in the four districts allotted to him.
On these facts found, the Tribunal came to the conclusion that the appellant cannot be held to be a workman employed for manual, skilled, unskilled and/or clerical nature and that the provisions of the Industrial Disputes Act was not ap plicable and the reference, therefore, was incompetent.
It is against this order the appeal was filed.
In order to come within the definition of workman under the Industrial Disputes Act as it stood in the year 1973 when the appellant 's service was terminated, the employee has to be ' under the employment to do the work of one of the types of work referred to in the Section i.e. manual, skilled and/or clerical in nature.
The finding of the Tribu nal on the nature of the work is a finding on a question of fact and it is also borne out by the document produced before the Labour Court.
It is seen from the facts found that the appellant was employed to do canvassing and promot ing sales for the company.
The duties involve the suggesting of ways and means to improve the sales, a study of the type or status of the public to whom the product has to reach and a study of the market condition.
He was also required to suggest about the publicity in markets and melas, advertise ments including the need for posters, holders and cinema slides.
These duties do require the imaginative and creative mind which could not be termed as either manual, skilled, unskilled or clerical in nature.
The supervising work of the other local salesmen was part of his work considered by the Tribunal as only incidental to his main work of canvassing and promotion in the area of his operation.
Such a person cannot be termed as a workman is also the ratio of the decision of this Court in Burmah Shell Oil Storage and Distribution Company vs Burmah Shell Management and Staff; ; , D.S. Nagraj vs Labour Officer, Kamal and others, 1973 F.J.R. (42) P. 440, J.J. Dechane Distributor vs State 476 of Kerala and others (1974 11 LLJ.9).
We may also refer to the subsequent passing of the .
This Act defines "sales promotion employees" as meaning a person employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both.
This Act is to apply in the first instance to every establishment engaged in pharmaceuticals industry.
It enables the Central Government by notification to apply the provisions to any Other establishment engaged in any notified industry.
If an industry is notified under this Act then the provisions of the would also be attracted to these types of workmen.
This is a subsequent enactment and it is not applicable to the termination in the instant case which was long prior to the enactment of this Act.
Further no notification under this Act bringing the provisions to the employees like that of the company has been made under the provisions of this Act.
The object of this enactment and the employees covered by the enactment also go to show that persons employed for sales promotion normally would not come within the definition of workmen under the Industrial Dis putes Act.
The Labour Court considered the merits in detail and ultimately held that the termination of the appellant from service was illegal but dismissed the application only on the ground that the was not applica ble.
We would not have interfered with that finding had we differed from the Labour Court on the question whether the appellant is a workman.
In the light of our holding that the is not applicable to him and in view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage.
In the circumstances, we consider that a direction to the Management to pay some compensation is necessary to meet the ends of justice.
We accordingly direct the Company to pay an amount equivalent to three years salary at the rate he was drawing when the appellant 's services were terminated, in addition to whatever amount they were paying during the pendency of the appeal under orders of this Court.
But this direction will not be treated as precedent.
For the foregoing reasons we are of the view that no interference is called for with the decisions of the Labour Court and this appeal accordingly fails and it is dismissed subject to the directions given above.
However, there will be no order as to costs.
V.P.R Appeal dismissed.

summary/full:
The appellant was in the service of the respondent company as a Section Salesman.
He was terminated from serv ice on 12th July, 1973 on the ground that he was on an unauthorised absence since 13th January, 1973.
At the instance of the appellant the Government referred to the Labour Court for adjudication the question whether the termination of the services of the appellant by the respondent company was legal and justified and if not to what relief he was entitled to.
The Labour Court held that the appellant was not a "workman" and that, therefore, the reference was incompetent but it answered the question whether the termination itself was illegal in favour of the appellant.
The appeal was filed in this Court against the order of the Labour Court.
Dismissing the appeal, this Court, HELD: 1.
In order to come within the definition of "workman" under the Industrial Disputes Act as it stood in the year 1973 when the appellant 's service was terminated, the employee has to be under the employment to do the work of one of the types of work i.e. manual, skilled rod/or clerical in nature.
[475 E] 473 2.
The appellant was employed to do canvassing and promoting sales for the company.
The duties involve the suggesting of ways and means to improve the sales; a study of the type or status of the public to whom the product has to reach and a study of the market condition.
He was also required to suggest about the publicity in markets and melas, advertisement including the need for posters, holders and cinema slides.
These duties do require the imaginative and creative mind which could not be termed as either manu al, skilled, unskilled or clerical in nature.
The supervis ing work of the other local salesman was only incidental to his main work of canvassing and promotion in the areas of his operation.
Such a person cannot be termed as a workman.
[475 F G] 3.
The Sales Promotion Employees (Conditions of Service)Act, 1976, defines "sales promotion employees" as meaning a person employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both.
[476 A B] 4.
The object of the enactment and the employees covered by the enactment also go to show that persons who are em ployed for sales promotion normally would not come within the definition of workmen under the Industrial Disputes Act.
[476C D] In view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage.
To meet the ends of justice, the Company is to pay an amount equivalent to three years salary at the rate he was drawing when the appellant 's services were terminated, in addition to whatever amount they were paying during the pendency of the appeal.
[476 E,F] Burmah Shell Oil Storage and Distribution Company vs Burmah Shell Management and Staff, ; ; D.S. Nagraj vs Labour Officer, Kamal & Ors., ; JJ.
Decbane Distributor vs State of Kerala and Ors., , referred to.


judgement:
Appeal No. 849 of 1987.
From the Judgment and Order dated 24.9.1985 of the Delhi High Court in S.A.O. ( 'Second Appeal From Order) No. 295 of 1981.
K.R. Nagaraja, R.S. Hegde and C.B. Nath Babu for the Appel lant.
M .L. Bhargava and Randbit Jain for the Respondents.
The following Order of the Court was delivered: The appellant landlord had filed an application under Sec.
14(1)(b) of the Delhi Rent Control Act, 1958 (for short the 'Act ') for ejectment of the respondents.
All the three courts concurrently found that Gulzar Singh was the sole tenant.
The Rent Controller and the Tribunal found that he sublet the demised premises to Avtar Singh, his brother and therefore ordered ejectment.
The High Court found that the tenant was in exclusive possession of the premises bearing No. W.Z. 258/4, Subash Bazar, Nangal 540 Raya, New Jail Road, New Delhi, and that he did not sublet the premises to Avtar Singh.
On that premise the petition for ejectment was dismissed.
Thus this appeal by special leave under article 136 of the Constitution.
Shri Nagaraja, learned counsel for the appellant has con tended that the High Court has committed a gross error in interfering with the concurrent finding of fact recorded by the Addl.
Rent Controller and the Rent control Tribunal that the tenant, Gulzar Singh has sublet the premises in question to his brother, Avtar Singh and that it is not open to the High court to interfere with the concurrent finding of fact.
He placed reliance on Sec. 18 of the Evidence Act and said that in an affidavit filed by Avtar singh before Income Tax Authorities he claimed exclusive possession as a tenant and that, therefore, the admission made by him would be binding on Gulzar Singh.
The Addl.
Rent Controller and the Rent Control Tribunal relying upon this admission of Avtar Singh and other oral evidence concluded that Avtar Singh alone was in exclusive possession and that, therefore, subletting was proved as a fact.
We find no substance in the contention.
Section 18 of the Evidence Act.
reads as under: "18.
Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject matter by person from whom interest derived.
State ments made by a party to the proceedings, or by an agent to any such party, whom the court regards, under the circumstances of the case, as expressly or impliedly authorised by him to made them, are admissions.
Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.
Statements made by (1) persons whom have any proprietary or pecuniary interest in the subject matter of the proceeding and who make the statement in their character of persons so interested, or (2) persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are admissions, if they are made during the continuance of the inter est of the persons making the statement.
" Section 18 postulates that statements made by a party to the 541 proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the. case, as expressly or impliedly authorised by him to make them, are admissions.
Equally statement made by a person who has an proprietary or pecuniary interest in the subject matter of the proceedings or persons having derivative interest make statements during the continuance of the interest also are admissions.
In this case, admittedly, Gulzar Singh was not a party to the .affidavit signed by Avtar Singh.
Therefore, the admis sion made by Avtar Singh that he is the tenant m exclusive possession of the demised premises does not bind Gulzar Singh.
In view of the plea and stand of the appellant, Avtar Singh cannot claim to have any pecuniary interest or any joint interest alongwith Gulzar Singh in the demised prem ises.
Once it is found that Gulzar Singh alone is the ten ant, as admittedly pleaded by the appellant, Avtar Singh cannot claim to have any pecuniary or derivative interest in the demised premises.
He is not an agent of Gulzar Singh.
Under those circumstances, as rightly found by the High Court, that the admission made by Avtar Singh in the affida vit is inadmissible and does not bind Gulzar Singh.
Once that admission is excluded from consideration, there is no other evidence worth accepting to conclude that Avtar Singh was in exclusive possession as a tenant.
The High Court rightly held that the finding of subletting or parting with possession of the premises in dispute was vitiated in law as it was primarily based on inadmissible evidence.
Having found the finding vitiated, it was open to the High Court to re examine and reappreciate the evidence on record.
On reappraisal it disbelieved the oral evidence.
We do not find any error in such reappraisal.
It is then sought to be contended that Gulzar Singh had other business and it im plies that he is not in exclusive possession of the demised premises.
We find no force in the contention.
It may be that Gulzar Singh had other business but that does not lead to the conclusion that Gulzar singh is not in exclusive posses sion of the demised premises as tenant or that he sublet the premises to Avtar Singh.
Accordingly, the appeal is dismissed, but in the circum stances, without costs.
T.N.A. Appeal dismissed.

summary/full:
The appellant landlord filed an application under Section 14(1)(b) of the Delhi Rent Control Act, 1958 for ejectment of the respondents and the three courts concurrently found that the respondent was the sole tenant.
Relying on an affidavit filed by tenant 's brother before Income Tax au thorities in which he claimed exclusive possession as ten ant, the Rent Controller and the Tribunal concluded that the admission made by the tenant 's brother was binding on the tenant as a result of which sub letting by tenant was proved and consequently allowed the landlord 's eviction petition.
But the High Court dismissed the eviction petition by holding that since the admission made by tenant 's brother was not binding on the tenant, the finding of sub letting by tenant was vitiated in law because it was based on inadmis sible evidence.
In appeal to this court it was contended on behalf of the landlord that (i) the admission made by tenant 's brother was binding on the tenant under section 18 of the Evidence Act; (ii) the High Court erred in interfering with the concurrent finding of fact.
Dismissing the appeal, this Court, 538 539 HELD: 1.
Section 18 of the Evidence Act postulates that statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circum stances of the case, as expressly or impliedly authorised by him to make them, are admissions.
Equally statement made by a person who has any proprietary or pecuniary interest in the subject matter of the proceedings or persons having derivative interest make statements during the continuance of the interest also are admissions.
[540 H, 541 A B] 2.
In the instant case, admittedly, the respondent tenant was not a party to the affidavit signed by his broth er.
Therefore, the admission made by his brother that he is the tenant in exclusive possession of the demised premises does not bind the respondent tenant.
Once it is found that respondent alone is the tenant, his brother cannot claim to have any pecuniary or derivative interest in the demised premises.
He is not an agent of his tenant brother.
Since the admission made by tenant 's brother was inadmissible and not binding on the tenant, the High Court rightly held that the finding of sob letting or parting with possession of the premises in dispute was vitiated in law as it was primarily based on inadmissible evidence.
Consequently, it was open to the High Court to re examine and reappreciate the evidence on record.
[541 B E]


judgement:
Appeal No. 129 of 1986.
From the Judgment and Order dated 12.5.1982 of the Allahabad High Court in Civil Misc.
Writ Petition No. 13431 of 1981.
B.D. Agarwal and Indeever Goodwill for the appellant.
A.K. Srivastava for the Respondents.
The following Order of the Court was delivered: This appeal by special leave has been filed by the landlady.
She laid action under s.21 of the U.P. Urban Building (Regulation of letting, rent and eviction) Act, 1972 (for short 'the Act ') for eviction of the tenant on the ground of bona fide requirement to start business by her son.
The prescribed authority and the Appellate Tribunal found as a fact that the appellant required the premises bona fide to start the business.
But the High Court allowed the writ petition, set aside the order on the sole ground that the married daughters of the original tenant, Lalu were not impleaded who are the necessary parties and, therefore, the non joinder of the necessary parties disentitle the landlady to have the ejectment of the tenants namely the sons and the widow of the deceased tenant Lalu.
The only question that arises in this case is whether the married daughters of the deceased tenant are necessary parties and that non impleading them would disentitle the landlady to maintain the action for ejectment.
Admittedly, Lalu the original tenant died in 1%5.
Thereafter, the pro ceedings were initiated in 1974.
Till then, one of the sons of Lalu, 537 namely, Bhole Nath was in occupation of the premises and did carry on business as admitted by him in affidavit Exhibit SA II "that the deponent is the tenant of a portion of house No. 55, Thatheri Bazar, Allahabad on payment of Rs. 40/ per month as rent including electric charges".
It is also not in dispute that the married daughters never participated, nor claimed interest in the business conducted by Bhole Nath.
It is also an admitted fact that even before the death of the father they were married and they are living with their husbands elsewhere.
Indisputably s.3 (a)(2) postulates that "In this Act, unless the context otherwise requires (a) tenant in relation to a building means a person by whom its rent is payable, and on the tenant 's death (2) in the case of a non residential building, his heirs.
" Therefore, as defined under s.3(a)(2) all heirs of the tenants are the tenants who succeeded intestate as per the .
Certainly, therefore, they are tenants within the meaning of s.3(a)(2).
They are entitled to succeed to the tenant 's lease hold rights under the Act, including not merely to the liabilities to pay rent as contended by the appellant but also to continue the business until duly ejected as per the provisions of the Act.
Whether non im pleadment of the married daughters would vitiate maintain ability of the proceedings for ejectment.
The finding re corded by the Rent Appellate Tribunal that by necessary implication, the married daughters surrendered their tenancy rights inherited under the Act.
After the demise of Lalu, the daughters evinced no interest to assert their rights, is well justified.
Once that is found to be so, their nonim pleadment as respondents does not vitiate the action for non joinder of them as necessary parties nor maintainability of the proceedings for ejectment itself.
The High Court committed grave errors of law in allowing the writ petition and dismissing the application for ejectment.
The order of the High Court is set aside and that of the Prescribed Authority and the Tribunal are restored.
It is not in dis pute that the landlady offered a reasonable portion of the premises to the respondent to an extent of 3 1/2 'x 6 ' in the Varanda but respondent had refused to accept that offer but in this Court the learned counsel for the respondents re quested to allow the tenant to retain the portion offered.
In fairness, Mr. Agarwal, learned senior counsel for the appellant, has not objected to it.
Accordingly it is open to the tenant to occupy the portion offered by the appellant and vacate the other portion which is required by the peti tioner for starting the business of her son.
The appellant would carve out the portion in a suitable and convenient manner to run the business by the respondent.
The appeal is allowed with the above modifications, but in the circum stances parties are directed to bear their own costs.
N.P.V. Appeal Allowed.

summary/full:
The appellant landlady, filed a suit under s.21 of the U.P. Urban Building (Regulation of letting, rent and evic tion) Act, 1972 for eviction of the tenant on the ground of bona fide requirement The prescribed authority and the Appellate Tribunal found as a fact that the appellant 's requirement was bona fide and decreed the suit.
But, the High Court set aside the order on the sole ground that the married daughters of the original tenant, who were the necessary parties, were not impleaded and, therefore, the non joinder of the necessary parties disentitled the appel lant landlady to have the ejectment of the tenants, namely, the sons and the widow of the deceased tenant.
Allowing the appeal of the landlady, this Court, HELD: 1.1 Section 3(a)(2) of the U.P. Urban Building (Regulation, of letting, rent and eviction) Act, 1972 postulates that tenant in relation to a building means a person by whom rent is payable, and on the tenant 's death, in the case of a non residential building, his heirs.
There fore, as defined under s3(a)(2) all heirs of the tenants are the tenants who succeeded intestate as per the Hindu Succes sion Act, 1956.
Consequently, the married daughters are tenants within the meaning of section 3(a)(2), and entitled to succeed to the tenant 's lease hold rights under the Act, including not merely to the liabilities to pay rent but also to continue the business until duly ejected as per the provisions of the Act.
[537 B C] 1.2 However, in the instant case, the original tenant died in 1965.
536 Thereafter, the proceedings were initiated in 1974.
Till then, one of the sons of the deceased tenant.
namely, the first respondent was in occupation of the premises and did carry on business.
The married daughters never participated, nor claimed interest in the business conducted by the first respondent and even before the death of the father, they were married and they were living with their husbands else where.
The Rent Appellate Tribunal has found that by neces sary implication, the married daughters surrendered their tenancy rights inherited under the Act, since after the demise of the original tenant, the daughters evinced no interest to assert their rights.
In view of this, their non impleadment as respondents does not vitiate the action for non joinder of them as necessary parties nor maintain ability of the proceedings for ejectment itself.
[S36 H, 537 AB, D E]


judgement:
Appeal No. 1677 of 1984.
From the Judgment and Order dated 7.7.1983 of the Rajasthan High Court in S.B. Civil Misc.
Appeal No. 6 of 1983.
S.K. Jain, Mrs. Pratibha Jain and Sudhanshu Atreya for the Appellant.
C.K. Sucharita, Y. Prabhakara Rao (N.P.) and Ganpathi Iyer Gopalkrishnan for the Respondents.
544 The following Order of the Court was delivered: This appeal by special leave under article 136 of the Constitution is against the order of the High Court of Rajasthan dated July 7, 1983.
The appellant a partnership firm consists of nine partners of which Satya Narain is one of the partners.
On July 2.5, 1973 Satya Narain submitted a tender to the respondents offering to supply 1000 quintals of Gram Dal at the rate of Rs. 185/ per bag.
This was accepted by the respondents by letter dated August 28, 1973 followed by confirmation letter by the firm on August 31, 1973.
It is the case of the respondents that the appellant committed breach of the contract and as a result, the re spondents filed an application under sec.
20 of the Arbitra tion Act, 1940 (for short as the 'Act ') before the District Court for making reference for arbitration in terms of the contract.
The Addi.
District Judge after considering the evidence and the objections allowed the application and referred the dispute for arbitration.
Against that order, the appeal was filed and the High Court confirmed the order of the Addi.
District Judge.
The contention raised by Sri Sushil Kumar Jain, learned counsel for the appellant is that by operation of Sec.
19(2)(a) of the (for short as the 'Partnership Act ') there is no implied authority given to one of the partners to refer the dispute relating to the business of the firm for arbitration and therefore the reference made by the court, pursuant to a contract entered into by Satya Narain on behalf of the firm, is without jurisdiction.
The High Court found as a fact that none of the partners have entered into the witness box to deny the validity of the contract nor raised any objection that they had not authorised Satya Narain to enter into the contract nor that they were bound by any acts done by him.
It is also found that Satya Narain signed the tender and at that time no other .partners raised objection regarding the signing of the tender by Satya Narain on behalf of the firm.
In view of these facts it is clear that they ratified the contract.
It is also further to be noted that.
in terms of the contract, the corporation had appropriated the security deposit made by the appellant firm and that was not objected to at any time.
This itself would fortify.
the conclusion that the firm had entered into a binding contract with the corpora tion and contract contained the arbitration clause which binds the partners.
The contention raised that the contract is void and that in terms of the contract, making a refer ence is without jurisdiction bears no substance.
The High Court found that Satya Narain has implied power to con duct business on behalf of the partnership firm and the implied authority 545 binds all the partners.
18 of the Partnership Act postulates that "subject to the provisions of the Act a partner is the agent of the firm for the purposes of the business of the firm".
19(1) adumbrates that "subject to the provisions of Sec.
22 the act of the partners which is done to carry on in the usual way the business of the kind carried on by the firm, binds the firm".
Thus, Satya Narain has implied authority to enter into the contract with the corporation to supply the Dal of 1000 quintals at the contracted rate which is the usual course of the business of the appellant.
But it is settled law that the operation of Sees.
18 & 19(1) is subject to the exceptions engrafted in sub sec.
(2) of Sec. provides that in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to submit a dispute relating to the business of the firm to arbitration.
Satya Narain has power to do business on behalf of the firm and in exercise thereof he entered into the contract with the corporation during the usual control of business to supply the Dal.
Then crucial question is whether a valid contract which was not repudiated as per law, binds the other partners? Our answer is yes.
It is not in dispute that the contract engrafts an arbitration clause and in terms thereof the dispute is to be referred to the arbitra tion.
Therefore, the reference made by the Addi.
District Judge under Sec.
20 of the is perfectly within the jurisdiction and in terms of the contract.
It is not the case of the partners that the firm is not carrying on the business of the supply of Dal and that Satya Narain, as found by the Trial Court, was authorised to do business on behalf of the firm.
Under those circumstances, the reference is clearly valid.
We do not find any illegality to interfere with the order of the High Court.
In this view, the decisions in Gopal Das vs Bail Nath & Ors., AIR 1926 Allahabad 238; Finn Radhakishan Chunnilal vs Finn Ashamal lshardas, AIR 1926 Lahore 91; Rajendra Prasad vs Pannalal Champalal & Ors.
AIR 1932 Calcutta 343; Mansab dar Khan vs
M.T. Allah Devi & Ors., AIR 1934 Lahore 48S; Sohanlal vs Finn Madhoram Banwarilal, AIR 19S2 Punjab 240; and M/s Alazappa Cotton Mills vs Indo Bunna Trading Corpora tion, ; cited by learned counsel are of little assistance to the appellant.
In M/s Alazappa Cotton Mills case the original contract does not contain arbitra tion clause.
In a separate letter with a rubber stamp (facsimile) of the firm one of the partners agreed for reference to arbitration.
On those facts it was held that the reference does not bind the other partners.
The appeal is accordingly dismissed.
Since we do not call upon the respondents to argue, there will be no order as to costs.
V.P.R. Appeal dismissed.

summary/full:
The appellant a partnership firm consisted of nine partners.
One Satya Narain was one of the partners.
He submitted a tender to the respondents on July 25, 1973 on behalf of the firm offering to supply 1000 quintals of Gram Dal at the rate of Rs.185/ per bag.
Tender was accepted by the respondents.
The appellant committed breach of the contract and as a result, the respondents filed an applica tion under sec.
20 of the before the District Court for making reference for arbitration in terms of the contract.
The application was allowed and the dispute was re ferred for arbitration.
Against the order of the Addl.
District Judge, an appeal was filed before the High Court and the High Court confirmed the order of the Additional District Judge.
This appeal by special leave under article 136 of the Constitution is against the order of the High Court.
The appellant contended that by operation of Sec.19(2)(a) of the Partnership Act, 1932, there was no implied authority given to one of the partners to refer the dispute relating to the business of the firm for arbitration and therefore the reference made by the court, pursuant to a contract entered into by one of its partner, Satya Narain on behalf of the firm, was without jurisdiction and that the original con tract did not contain arbitration clause.
In a separate letter with a rubber stamp (facsimile) of the firm, one of the partners agreed for reference to arbitration and there fore the reference did not bind the other partners.
Dismissing the appeal, this Court, 543 HELD: 1.
The operation of Secs.
18 & 19(1) is subject to the exceptions engrafted in sub sec.
(2) of Sec. 19.
19(2)(a) provides that in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to submit a dispute relating to the business of the firm to arbitration.
[545B C] 2.
None of the partners have entered into the witness box to deny the validity of the contract nor raised any objection that they had not authorised the partner (Satya Narain) to enter into the contract nor that they were bound by any acts done by him.
When the partner signed the tender, at that time no other partners raised objection regarding the signing of the tender by the partner on behalf of the firm.
In view of these facts it is clear that they ratified the contract.
[544 E F] 3.
The firm had entered into a binding contract with the corporation and contract contained the arbitration clause which binds the partners.
[544 G] 4.
The contract engrafts an arbitration clause and in terms thereof the dispute is to be referred to the arbitra tion.
Therefore, the reference made by the Addl.
District Judge under Sec.
20 of time is within the jurisdiction and in terms of the contract.
[545 D] Gopal Das vs Brij Nath & Ors., AIR 1926 Allahabad 238; Firm Radhakishan Chunnilal vs Firm Ashamal Ishardas, AIR 1926 Lahore 92; Rajendra Prasad vs Pannalal Champalal & Ors, AIR 1932 Calcutta 343; Mansabdar Khan vs M.T. Allah Devi & Or3 '.
, AIR 1934 Lahore 485; Sohanlal vs Firm Madhoram Ban warilal, AIR 1952 Punjab 240; and M/s. Alazappa Cotton Mills vs Indo Burma Trading Corporation, , referred to.


judgement:
Appeal No. 1518 of 1980.
From the Judgment and Order dated 21.8.1979 of the Allahabad High Court in Civil Misc.
Writ No. 9724 of 1978.
J.D. Jain, A. Subba Rao, C.V.S. Rao and Ms. A. Subha shini for the Appellants.
S.S. Khanduja, V.J. Francis and N.M. Popli for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
This appeal by special leave is directed against the judgment of the Division Bench of the High Court of Allahabad dated 21st August, 1979 whereby the High Court allowed the writ petition filed by the four petitioners therein and issued a writ of mandamus directing respondents 1, 2 and 3 (Comptroller & Auditor General of India, New Delhi, The Accountant General, I, U.P. Allahabad and the Union of In&a) not to enforce the circular dated 25th January, 1973 as a rule regarding reservation of Sched uled Caste and Scheduled Tribes in relation to filling up of posts by promotion on the basis of seniority subject to fitness.
The aforesaid respondents were further restrained from promoting respondents 4, 5 and 6 in the writ petition to the post of Accounts Officers on the basis of the im pugned circular dated 25th January, 1973.
We would continue to refer to the parties as per the cause title of the writ petition in the High Court.
The writ petition came to be filed by the petitioners, M.L. Mehrotra and three others.
The petitioners said to be working as Section Officers in the office of the Accountant General I, II and III, Allahabad and they prayed for re straining respondents 1, 2 and 3 from promoting Yamuna Prasad Kureel, respondent No. 4, Ram Raj Ram, respondent No. 5 and Ram Dihal, respondent No. 6, in the writ petition, who were working as 485 Section Officers and belonged to the Scheduled Caste, to the post of Accounts Officer.
The case of the writ petitioners was that they were senior to respondents 4, 5 and 6 and they cannot be promoted to the post of Accounts Officers through seniority quota before the writ petitioners.
Their case was that the promo tion to the post of Accounts Officers is regulated by the rules made by the President in exercise of the powers con ferred by proviso to Article 309 and clause (5) of Article 148 of the Constitution after consultations with the Comp troller and Auditor General of India.
These rules are known as "Indian Audit & Accounts Department (Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 1963" (hereinafter referred to as the Rules).
In the counter affidavit filed it was pleaded that the Assistant Accounts Officers and Assistant Audit Officers are now called Accounts Officers and Audit Offi cers.
The aforesaid rules lay down the method of recruitment to the post of Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers in the Indian Audit and Accounts Department.
The method of recruitment laid down in these rules in respect of these posts is by promotion.
They do not contain any specific provisions for reservation for Scheduled Caste and Scheduled Tribes.
The appellants herein relied upon the administrative instructions contained in the circular letter dated 25th January, 1973 issued by the Comptroller and Auditor General of India for the purpose of reservation for Scheduled Castes and Scheduled Tribes for these promotion posts.
The writ petitioners challenged the validity of these administrative instructions contained in the circular dated 25th January, 1973.
It was further pleaded that the lowest post in the Office of the Accountant General U.P. 1, I1 and II1 is of group 'D ' employees who are selected directly on the basis of merit.
There is a quota fixed for Scheduled Castes and Scheduled Tribes.
Then there are posts of clerks, a fixed quota percentage of which is filled in directly through examination and quota is fixed for Scheduled Castes and Scheduled Tribes.
The remaining posts of clerks are filled in by selection from class 'D ' employees by promotion on the basis of seniority.
The next higher posts are the post of Auditors.
A fixed percentage whereof is filled in directly through examination and a quota is fixed for Scheduled Castes and Scheduled Tribes.
The remaining posts of Auditors are filled in by promotion from clerks on the basis of seniority.
The next higher post is of Section Officers in which the writ petitioners and respondents to the writ petition were working.
These posts are filled in from the cadre of Auditors and clerks.
The Auditors as well as 486 clerks have to pass examination known as Subordinate Ac counts Service.
Normally more candidates pass this examina tion then the number of posts available for the Section Officers.
Here also there is a quota fixed for Scheduled Castes and Scheduled Tribes candidates.
The post of Accounts Officers (i.e. the posts in question) are filled in by promotion from Section Officers.
50 per cent of the vacancies are filled on the basis of merit (called the merit quota) and the remaining 50 per cent are required to be filled in on the basis of seniority (called seniority quota).
Normally the number of candidates avail able in the merit quota are less than 50 per cent of the posts available; hence the number of posts available in seniority quota is usually more than 50 per cent.
It was pleaded in the counter affidavit that the promotion will continue to be made in accordance the existing rules and orders on the subject namely those referred to above includ ing the circular dated 25th January, 1973, validity of which had been challenged.
The High Court took the view (1) that there is no reser vation for Scheduled Castes and Scheduled Tribes made under the rules; (2) that the administrative instructions con tained in the circular No.172 NGE ll/56 72 1 dated 25th January, 1973 issued from the office of Comptroller and Auditor General of India, New Delhi, inter alia, to all the Accountants General and the offices subordinate to them, on its own did not make a provision for the proposed reserva tion in pursuance to the policy decision.
(3) It also took the view that the statutory rules were not silent on the subject of promotion to the post of Assistant Accounts Officer (now called Accounts Officers).
This being so, it was not open to the Government to supplement the statutory rules to fill up the gaps.
This could be done by only amend ing the statutory rules in compliance with the provisions of Article 148(5) of the Constitution.
The High Court drew support from a Division Bench of the Madras High Court in Accountant General, Tamil Nadu & Others vs Doraswami & Oth ers, 1974 Labour Industrial Cases 384 and the decision of the Orissa High Court in the Original Jurisdiction cases No. 357 and 359 of 1977, P. Parbhakar Rao vs Union of India decided on 31st of July, 1978.
The High Court took the view that the administrative Instructions contained in the circu lar letter dated 25th January, 1973 cannot help respondents and no reservations for Scheduled Castes and not Scheduled Tribes can be made on that basis.
The High Court accordingly allowed the writ petition as stated earlier.
Before the High Court the counsel for the writ petition ers also submitted that the administrative instructions contained in the circular dated 487 25th January, 1973 could not be said to be the rules made by the President after consultations with the Comptroller and Auditor General of India as contemplated by Article 148(5) of the Constitution and referred to the language of the circular letter dated 25th January, 1973.
A supplementary counter affidavit of Shri P.P. Dhir, Accountant General l had also been filed where it was stated that the language used in the circular in substance, are the orders of the President.
The High Court took the view that no other mate rial has been referred to in the counter affidavit filed, which will show that the instructions contained in the circular dated 25th January, 1973 were based on the decision of the President of India.
However, the High Court held that they considered it unnecessary to go into this question any further since they had already held that the administrative instructions contained in the circular were of no avail to the respondents in the writ petition as they could not alter the statutory rules in force.
It appears the Department of Personnel issued a memoran dum No. 27/2/71.Estt. (SCT) dated 27th November, 1972 to all Ministries.
The subject of this memorandum was reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion on the basis of seniority subject to fitness.
This memorandum noted in paragraph 2 thereof that the policy in regard to reservation for Scheduled Castes and ScheduLed Tribes officers in posts to be filled by promotion on the basis of seniority subject to fitness now has been reviewed and it has been decided, in supersession of the orders contained in the aforesaid para 2 C of the O.M. dated 11th July, 1968 that there will be reservation at 15 percent for Scheduled Castes and 7 1/2 per cent for Scheduled Tribes in promotions made on the basis of seniority subject to fit ness, in grades or services in which the element of direct recruitment, if any, does not exceed 50 per cent and gave detailed procedure how promotions have to be made on the basis of seniority subject to fitness in the light of the aforesaid reservations.
It was stated in the memorandum that the Ministry of Finance etc.
arc requested kindly to bring the above decisions to the notice of all attached and subor dinate offices under them and semi Government and autonomous bodies.
This memorandum also stated in paragraph 6 thereof as under: "In so far as officers serving under Indian Audit & Accounts Department are concerned, separate orders will issue in due course.
" Thereafter, Shri section Krishnan, Deputy Secretary, De partment of Personnel, Cabinet Secretariat, New Delhi wrote a D.C. No. 27/2/71 Estt 488 (SCT) dated 1st January, 1973 to Shri R. Hariharan, Assist ant Comptroller & Auditor General (N), Office of the Comp troller and Auditor General of India, New Delhi.
In this letter the Deputy Secretary of the Department of Personnel wrote as under "Dear Shri Hariharan, Please refer to your D.O. letter No.2859/NGEII/56 72 dated the 24th November, 1972 regarding reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotion on the basis of seniority subject to fitness.
A copy of the orders issued in this Department 's O.M. No.27/2/71 Est(SCT) dated 27.11.1972 has already been endorsed to the C. & A.G. A copy of the said O.M. is enclosed for ready reference.
We shall be grateful to know whether separate instructions which are pro posed to be issued by C. & A.G. in this regard in respect of persons serving under the Indian Audit & Accounts Department have since been finalised.
The draft of the instructions may please be shown to us, if since finalised.
I need hardly emphasise that it is desirable to expedite issue of such orders.
Yours sincerely, sd/ (section Krishnan)" Thereafter, the Assistant Comptroller & Auditor General (P) also met the said Deputy Secretary of the Department of Personnel and also sent a draft of instructions proposed to be issued to the offices under the Comptroller and Auditor General of India to Deputy Secretary, Department of Person nel vide a D.O.letter No.20 NGE II/56 72 I dated 5th Janu ary, 1973 by Shri R. Hariharan, Assistant Comptroller and Auditor General, Office of Comptroller and Auditor General of India, New Delhi.
Alongwith this letter a draft of in structions proposed to be issued to the offices under the Comptroller and Auditor General was forwarded.
The Deputy Secretary, Department of Personnel, Shri section Krishnan vide their communication dated 22nd January, 1973 informed Shri R. Hariharan, aforesaid, that the draft of instructions proposed to be issued were in order and it was requested that a copy of the instructions when issued may be 489 sent to their department.
It was in pursuance of these consultations that the impugned circular dated 25th January, 1973 was issued from the office of the Comptroller and Auditor General of India, New Delhi.
For facility of under standing the relevant part of the circular dated 25th Janu ary, 1973 issued from the office of the Comptroller and Auditor General of India, New Delhi is reproduced hereunder: No.172 NGE II/56 72 I OFFICE OF THE COMPTROLLER & AUDITOR GENERAL OF INDIA, NEW DELHI 1.
Dated the 25 1 1973.
To All Accountants General and Offices subordi nate to them.
All Chief Auditors of Rlys.
and offices subor dinate to them.
All Regional Directors of Commercial Audit, Chief Auditors of Commercial Accounts and offices subordinate to them.
The Directors, I.A. & A.S. Staff College, Simla.
The Director of Audit, Defence Services and offices subordinate to him.
The Assistant Comptroller and Auditor General (P).
(For G.E.I, G.E.II, &OE & A.Sections) Subject: Reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion promotions on the basis of sen iority subject to fitness.
Sir, I am to invite a reference to para 3(c) of this office circular letter No. 1989 NGE.II/89 68, dated 3.10.1968 according to which there is no reservation for Scheduled Castes & 490 Scheduled Tribes in appointments made by promotion on the basis of seniority subject to fitness although cases involving supersession of Scheduled Castes and Scheduled Tribe Officers in Class II appointments are required to be submitted for prior approval of the Comptroller and Auditor General of India and the cases involving supersession of Scheduled Caste and Scheduled Tribe officers in Class III & Class IV appointments have to be report ed within a month to the Comptroller and Auditor General of India for information.
The policy in regard to reserva tions of Scheduled Caste and Scheduled Tribe officers in posts filled by promotion on the basis of seniority subject to fitness has now been reviewed by the Government of India in consultation with the Comptroller and Auditor General of India and it has been decided, in supersession of the orders contained in the aforesaid para 3(c) of our circular letter dated 3.10.1968 that there will be reservation at 15% for Scheduled Caste and 71% for Sched uled Tribes in promotions made on the basis of seniority subject to fitness in appointments to all Class I, Class II, Class III and Class IV posts in grades, of services in which the element of direct recruitment, if any does not exceed 50%.
The above orders will necessitate reservation for Scheduled Castes and Scheduled Tribes in promotions made on the basis of seniority subject to fitness to the following grades in the I.A. & A.D. Promotions from Class III to Class II The existing procedure of promotions to A.Os.
grade will not undergo any change, as far as the posts filled by selection is con cerned.
Reservation to the extent of 15% for Scheduled Castes and 7 1/4% for Scheduled Tribes will, however, have to be made with reference to the number of posts of Accounts Officers filled in a year on the basis of seniority subject to fitness and for this purpose, a roster maintained in respect of such promotions.
491 4.
The following procedure may be followed to give effect to the decision men tioned in paragraph 2 above.
The above instructions take effect from 27.11.1972 except where a Select List, if any, for promotion by seniority subject to fitness has ' already been prepared by a De partmental Promotion Committee and approved by the appropriate authority before issue of these orders (i.e. 27.11.1972).
The receipt of this circular letter may kindly be acknowledged.
Yours faithfully, Sd/ (R. Hariharan) Asstt.
Comptr.
Genl.(N) The High Court is not right in stating that there cannot be an administrative order directing reservation for Sched uled Castes and Scheduled Tribes as it would alter the statutory rules in force.
The rules do not provide for any reservation.
In fact, it is silent on the subject of reser vation.
The Government could direct the reservation by executive orders.
The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules.
(See: the observa tions in Santram Sharma vs State of Rajasthan and Anr., ; In fact similar circulars were issued by the Railway Board introducing reservations for Scheduled Castes and Scheduled Tribes in the Railway services both for selection and non selection categories of posts.
They were issued to implement the policy of the Central Government and they have been upheld by this Court in Akhil Bhartiya Soshit Karamchari Sangh (Railways) vs Union of India & ors.
; The High Court has also touched upon the validity of the impugned circular and stated that they were not issued by the President after consultation with the Comptroller & Auditor General.
In the present case, the President has not issued the circular, but Comptroller and Auditor General has issued it.
There was however, proper consultation between the Government and the Comptroller & Auditor General for issuing the circular.
The infirmity pointed out that it was not issued in the name of the 492 President, therefore, relates only about the form and not with regard to the substance.
The circular of course, ought to have been issued in the name of the President as required under Article 148(5) of the Constitution, as it affects the service conditions of persons in the Audit and Accounts Department.
But since the Government has approved the circu lar and the circular was in accordance with the declared policy of reservation, we do not want to restrain the Comp troller & Auditor General from enforcing it.
We are thus of the view that the impugned circular is valid and binding.
The circular by its own provides for reservation.
The authorities concerned must take that into account while affecting promotions under the rules.
The result is that the impugned judgment of the High Court is set aside and the appeal is allowed.
In the circumstances of the case, however, we make no order as to costs.
N.P.V. Appeal allowed.

summary/full:
The respondents, Section Officers in the offices of the Accountant General I, II and III, Allahabad, filed a writ petition before the High Court challenging the validity of administrative instructions contained in Circular No. 172 NGE 11/56 72 I dated 25th January, 1973 issued by the first appellant, regarding the reservations for Scheduled Castes and Scheduled Tribes in relation to filling up of posts by promotion on the basis of seniority subject to fitness, and praying that the first appellant and two others be re strained from promoting three of the Section Officers, belonging to the Scheduled Castes to the post of Accounts Officer, contending that since the respondents were senior, those three Section Officers could not be promoted to the post of Accounts Officers through seniority quota before the respondents.
It was also contended that the promotion to the post of Accounts Officers was regulated by Indian Audit & Accounts Department (Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules 1963 made by the President in exercise of the powers conferred by proviso to Article 309 and clause (5) of Arti cle 148 of the Constitution after consultations with the Comptroller and Auditor General of India, which laid down that recruitment to the post of Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers in the Indian Audit and Accounts Department was by promotion, that the rules did not contain any specific provisions for reservation for Scheduled Castes and Scheduled Tribes and hat the administrative instructions contained in the circu lar could not be said to be rules made by the President after consultation with the first 483 appellant as contemplated by Article 148(5) of the Constitu tion.
Allowing the writ petition, the High Court held that there was no reservation for scheduled castes and scheduled tribes made under the rules, that the administrative in structions contained in the circular in question did not make provision for the proposed reservation in pursuance to the policy decision and that the statutory rules were not silent on the subject of promotion to the post of Assistant Accounts Officers, subsequently designated as Accounts Officers and, therefore, it was not open to the Government to supplement the statutory rules to fill up the gaps, which could be done by only amending the statutory rules in com pliance with the provisions of Article 148(5) of the Consti tution.
Hence the appeal by the Department.
Allowing the appeal, this Court, HELD: 1.1 The High Court is not right in stating that there cannot be an administrative order directing reserva tion for Scheduled Castes and Scheduled Tribes as It would alter the statutory rules in force.
The rules do not provide for any reservation.
In fact, they are silent on the subject of reservation.
The Government could direct the reservation by executive orders.
No doubt, administrative orders cannot be Issued In contravention of the statutory rules, but they could be issued to supplement the statutory rules.
In fact, similar circulars were issued by the Railway Board introduc ing reservations for Scheduled Castes and Scheduled Tribes In the Railway Services both for selection and non selection categories of posts.
They were issued to Implement the policy of the Central Government.
[491 D F] Santram Shams vs State of Rajasthan and Anr., ; and Akhil Bhartiya Soshit Karamchari Sangh (Rail ways) vs Union of India & Ors., ; , referred to.
1.2 It is true that the President has not issued the circular in question but the first appellant has issued it.
There was, however, proper consultation between the Govern ment and the first appellant for issuing the circular.
The infirmity pointed out that it was not issued in the name of the President, therefore, relates only to the form and not with regard to the substance.
The circular, of course, ought to have been issued in the name of the President as required under.
Article 148(5) of the Constitution, as it 484 affects the service conditions of persons in the Audit and Accounts Department.
But since the Government has approved the circular and the circular was in accordance with the declared policy of reservation, the first appellant cannot be restrained from enforcing it.
[491 G H, 492 A B] The circular in question is valid and binding.
The circular by itself provides for reservation.
The authorities concerned must take that into account while effecting promo tions under the rules.
[492 B]