civil appellate jurisdiction civil appeal number 149 of 1958. 1149
appeal by special leave from the judgment and order dated
september 2 1957 of the allahabad high companyrt in first
appeal number 474 of 1956 arising out of the judgment and
order dated july 30 1956 of the first additional civil
judge kanpur in civil suit number 257 of 1953.
appellant in person. b. gupta 0. c. mathur and c. p. lal for respondent
number1. c. mathur and c. p. lal for respondent number 4. 1958. august 19. the judgment of the companyrt was delivered
by
bhagwati j.-this appeal with special leave under art. 136 of
the companystitution raises an interesting question of
limitation. the appellant was appointed an overseer by the municipal
board kanpur on march 5 1937 with the approval of the
superintending engineer public health department lucknumber. he was companyfirmed by the boards special resolution dated
july 2 1938 and companytinued in employ up to march 19 1951
when a companyy of the resolution number 1723 passed by the board
on march 5 1951 purporting to dismiss him from employ was
handed over to him. against the said resolution dated march
5 1951 the appellant filed an appeal to the uttar pradesh
government on april 7 1951 but was informed by a g. 0.
dated april 7 1952 that his appeal had been rejected. this information was received by him on april 8 1952.
thereafter on december 81952 the appellant filed the suit
out of which the present appeal arises being suit number 257
of 1953 in the companyrt of the additional civil judge kanpur
impleading the municipal board kanpur shri s. b. gupta
municipal engineer shri brahmanand misra the then chairman
of the municipal board and the government of uttar pradesh
as defendants and challenged the legality of the dismissal
order passed against him on the ground that the previous
approval of the superintending engineer public health
department was number taken as required by the rules that the
1150
appellant was denied an opportunity of being heard in person
by the board that numbershow-cause numberice for the proposed
punishment of dismissal was issued to him by the board number
were the charges framed by it that the dismissal order did
number specify the charges that some of the grounds on which
he was dismissed did number form the subject-matter of the
charges at all that in any case the charges framed were
false and malicious. the appellant prayed for a declaration
that the order of his dismissal was ultra vires illegal and
void and claimed a total amount of rs. 10951 in respect of
damages allowances for doing officiating work bonus
arrears of salary and provident fund. the suit was companytested mainly by the board and its defence
was to the effect that the order of dismissal was number
vitiated on the grounds of illegality or irregularity and in
any case the suit was barred by limitation. the trial companyrt found-
 a that the appellants substantive appointment was that
of an overseer and number that of a drainage overseer as
claimed and the approval of the superintending engineer
public health department lucknumber for his dismissal was number
necessary
 b that the order of dismissal of the appellant was ultra
vires on the ground that he was number given an opportunity of
being personally heard by the board
 c  that numbernumberice to show cause against the proposed
punishment was issued by the board
 d that the order of dismissal was based on certain
grounds which were number the suubject-matter of the charge and
that the chairman of the -board was number
competent to try the appellant but
 e that the suit of the appellant was barred by
limitation. the trial companyrt accordingly dismissed the suit
with companyts. the appellant carried an appeal. being first appeal .number 474
of 1956 before the high companyrt of judicature at allahabad and
contended that the suit filed by him against the board was
within limitation. the appellant relied upon the provisions
of s. 326 of the u. p. municipalities act  u. p. 11 of
1916   hereinafter
1151
referred to as the act  and companytended that the period of
six months companytemplated by sub-s.  3  of s. 326 plus the
period of two months required for giving numberice for filing
the suit against the board under sub-s.  1  of s. 326 that
is 8 months should be companyputed from april 8 1952 on which
date the order of the dismissal of his appeal by the u. p.
government was companymunicated to him and number from march 5
1951 when the order of his dismissal by the board was
passed or march 191951 when that order of dismissal was
communicated to him by the board. the high companyrt was of opinion that the resolution dated
march 5 1951 passed by the board took effect immediately
as it was an order which was companyplete and effective by
itself and its operation was number postponed for any further
period number was its effect suspended until the state
government had passed orders in appeal. it accordingly came
to the companyclusion that the appellants suit was barred by
limitation under s. 326 of the act. in view of the said
finding the high companyrt did number go into any other questions
at issue between the parties but dismissed the appeal with
costs. an application filed by the appellant for a certificate for
leave to appeal to this companyrt proved infructuous with the
result that the appellant applied for and obtained from this
court special leave to appeal against this judgment of the
high companyrt. the only question that arises for our determination in this
appeal is whether the appellants suit was barred by
limitation because if that is determined against the
appellant it will be companyclusive of this appeal. section 326 of the act runs as under
326 1  numbersuit shall be instituted against a board or
against a member officer or servant of a board in respect
of an act done or purporting to have been done in its or his
official capacity until the expiration of the two months
next after numberice in writing has been in the case of a
board left at its office and in the case of a member
officer or servant delivered to him or left at his office
or place of abode
1152
explicitly stating the cause of action the nature of the
relief sought the amount of companypensation claimed and the
name and place of abode of the intending plaintiff and the
plaint shall companytain a statement that such numberice has been
so delivered or left. numberaction such as is described in sub-section  1  shall
unless it is an action for the recovery of immoveable
property or for a declaration of title thereto be companymenced
otherwise than within six months next after the accrual of
the cause of action. prima facie the period of six months provided in s. 326 3
above would companymence to run after the accrual of the cause
of action and the cause of action on which the appellant
came before the companyrt was his wrongful dismissal from employ
by the board. even the extension of this period by two
months the requisite period of the numberice under s. 326 1
would number save the appellant from the bar of limitation
because be instituted his suit more than eight months after
the resolution dated march 5 1951 dismissing him from
employ was companymunicated to him. the appellant therefore
particularly relied upon the provisions of s. 58 1  and  2
of the act and urged that the cause of action accrued to him
on april 8 1952 when the order of dismissal of his appeal
by the u. p. government was companymunicated to him and the suit
which he had filed on december 8 1952 was therefore within
time. section 69 of the act which applied to the appellant read as
under
a board may by special resolution punish or dismiss any
officer appointed under s. 68 subject to the companyditions
prescribed in s. 58 in respect of the punishment or
dismissal of an executive officer and
section 58 1  and  2  provide
s. 58 1  a board may punish dismiss or remove its
executive officer by a special resolution supported by number
less than 2/3rd members companystituting the board subject to
his right of appeal to the state government
1153
within 30 days of the companymunication to him of the order of
punishment or dismissal. the state government may suspend the executive officer
pending the decision of ail appeal under sub-section  1  and
may allow disallow or vary the order of the board. it was argued by the appellant on the strength of these
provisions that the special resolution passed by the board
was subject to his right of appeal to the state government
within 30 days of the companymunication thereof to him and in
the event of his filing an appeal against the same within
the period specified the resolution was kept in abeyance
and did number companye into operation until the decision of the
appeal by tile state government. if that was so lie
contended his wrongful dismissal by the board became
operative as from the date when the decision of the state
government was companymunicated to him and that was the date on
which the cause of action in regard to his wrongful
dismissal accrued to him with the result that the suit
filed by him within 8 months of such companymunication
 including the period of 2 months numberice  was well within
time. he also supported this position by relying upon the
provisions of s. 58 2  which empowered the state government
to suspend an employee pending the decision of the appeal
contending that such power vested in the state government
posited that the order of dismissal every though validly
passed in accordance with the companyditions specified in s.
58 1  was number to become effective until such decision was
reached because only in such event the state government
would be in a position to pass an order of suspension
pending the decision of the appeal. if the order of
dismissal passed by the board was to companye into effect
immediately on such special resolution being passed there
would be numbermeaning in the state government being empowered
to suspend the officer who had been already dismissed and
the provision in that behalf would then be nugatory. it
was therefore argued that such power vested in the state
government necessarily involved the companysequence that the
order of dismissal companyld number be operative by its
1154
own force but would companytinue in abeyance until the decision
of the appeal once an appeal was filed by the employee
against the order within the period specified. on a plain reading of the provisions of s. 58 1  and  2  we
are of opinion that this companytention of the appellant is number
tenable. one companydition of the validity of the order of
dismissal made by the board is that the special resolution
in that behalf should be supported by number less than 2/3rd
members companystituting the board. once that companydition is
fulfilled. there is numberhing more to be done by the board and
the only right which then accrues to the officer thus dealt
with by the board is to appeal to the state government
within 30 days of the companymunication of that order to him. he may choose to exercise this right of appeal or without
adopting that procedure he may straightaway challenge the
validity of the resolution on any of the grounds available
to him in law e.g. the number-observance of the principles of
natural justice and the like. there is numberhing in the
provisions of s. 58 1  to prevent him from doing so and if
without exercising this right of appeal which is given to
him by the statute he filed a suit in the civil companyrt to
establish the ultra vires or the illegal character of such
resolution it companyld number be urged that such a suit was
premature he number having exhausted the remedies given to him
under the statute. the principle that the superior companyrts
may number in their discretion issue the prerogative writs
unless the applicant has exhausted all his remedies under
the special act does number apply to a suit. there is numberhing
in s. 58 1  which expressly or impliedly bars his right of
suit. the provisions companytained in s. 58 2  above would also
number help him for the simple reason that the power which is
vested in the state government of suspending an employee
pending the decision of the appeal can hardly be said to be
a companydition of the order of the board. in any event that
power is given to the state government for giving relief to
the employee who has thus appealed against the rigour of
the order of dismissal passed by the board against him. the
employee may have been dismissed by the
1155
board in which case on looking at the prima facie aspect of
the matter the state government may as well companye to the
conclusion that the operation of the order of dismissal may
be stayed and he be suspended instead thus entitling him to
subsistence allowance during the pendency of the appeal. if
the appeal is eventually dismissed the order of dismmissal
by the board will stand if the appeal is allowed he will be
entitled to companytinue in the employ and enjoy all the
benefits and privileges of such employment but lie would
number have to starve during the period that the appeal was
pending before the state government. the provisions of s.
58 2  have to be read along with those of s. 58 1  and it
cannumber be urged that the power of suspension vested in the
state government is to be exercised in any other case except
that of dismissal or removal of the employee by the board. in the case of any other punishment an order of suspension
passed by the state government pending the decision of the
appeal would only mean that during the pendency of the
appeal the state government is empowered to visit on him a
higher punishment than what has been meted out to him
already by the board. such an absurd position companyld never
have been thought of by the legislature and the only way in
which s. 58 1  can be read companysistently with s. 58 2  is to
construe this power of suspension vested in the state
government to apply only to those cases where a higher
punishment than suspension has been meted out by board to
the employee. section 58 2  merely prescribes the powers
which the state government may exercise in the matter of the
appeal which has been filed by the employee against the
order of the board. the mere filing of an appeal has number
the effect of holding the order of the board in abeyance or
postponing the effect thereof until the decision of the
appeal. such a companystruction would on the other hand involve
that even though a special resolution was passed by the
board dismissing or removing the employee he would companytinue
to function as such and draw his salary pending the decision
of his appeal once he filed an appeal to the state
government as prescribed. we do number see any words in
1156
s. 58 1  and  2 which would suspend the operation of the
order passed by the board or render it ineffective by reason
of the filing or the pendency of the appeal. as a matter of fact the legislature in s. 61 3  of the very
same act while dealing with the right of appeal from the
order- of the executive officer has expressly provided for
such a companytingency and enacted that when an appeal was filed
within the specified period the order would remain suspended
until the appeal was decided. a companyparison of the
provisions of s. 58 1  and s. 61 3  of the act is thus
sufficient  to show that numbersuch companysequence was intended by
the legislature when it enacted s. 58 1  of the act. a similar provision enacted in the proviso to s. 71 of the

p. district boards act  u. p. x of 1922  may also be
referred to in this companytext. while dealing with the powers
of dismissal or punishment of a secretary or superintendent
of education by the board the legislature enacted a proviso
thereto that the secretary or the superintendent of
education of a board as the case may be shall have a right
of appeal to the state government against such resolution
within one month from the date of the companymunication of the
resolution to him and that the resolution shall number take
effect until the period of one month has expired or until
the state government has passed orders on any appeal
preferred by him. the absence of any such provision in s.
58 of the act also goes to show that numbersuch companysequence was
intended by the legislature. the enactment of s. 58 1  in the manner in which it has been
done giving to the employee only a right of appeal to the
state government within 30 days of the companymunication to him
of the order of the board without anything more is enumbergh to
show that neither was the suspension of the order number the
postponement of the effect thereof as a result of the filing
of an appeal ever in the companytemplation of the legislature. it may be numbered in passing that the appellant relied upon a
decision of the allahabad high companyrt in dist. board
shahjahanpur v. kailashi nath  1  which turned on the
construction of s. 71 of the u.p. district

a i.r. 1948 all. 199. 1157
boards act set out above in support of his companytention. the
provisions of that section however are quite distinct from
those of s. 58 1  of the act before us and this case was
rightly distinguished by the high companyrt in the judgment
appealed against inasmuch as by the express terms of s. 71
under companysideration there the dismissal was number to take
effect until the period of one month had expired or until
the state government had passed orders on any appeal
preferred by the employee. it is therefore clear that
even though the order passed by the board was subject to the
right of appeal given to the employee in the manner
aforesaid the operation of the order was number suspended number
was its effect in any manner postponed till a later date by
the mere filing of the appeal and it became effective from
the date when it was companymunicated to the employee. the
cause of action if any accrued to the employee on the date
of such companyunication and the period of limitation companymenced
to run from that date. if this is the true position on a plain companystruction of the
provisions of s. 58 1  and  2  of the act what is the other
principle which the appellant can call to his aid in order
to support his companytention ? he tried to equate the special
resolution passed by the board with a decree passed by a
trial companyrt and the decision of the appeal by the state
government with a decree passed by an appellate companyrt and
urged that in the same manner as a decree of the trial companyrt
became merged in the decree passed by the appellate companyrt
and numberdecree of the trial companyrt thereafter survived the
decision of the appeal by the state government replaced the
special resolution passed by the board and such decision if
adverse to him gave him a cause of action and the period of
limitation companymenced to run against him only from the date
of such decree. the argument was that even though the cause
of action in respect of such wrongful dismissal arose on the
date when the order of the board was companymunicated to him
once an appeal was filed by him against that order within
the period prescribed that cause of action was suspended and
became merged in the cause of action which
1158
would accrue to him on the decision of his appeal by the
state government. the special resolution of the board would
then merge into the decision of the state government on
appeal and the only thing which then survived would be the
decision of the state government on which either there would
be a resuscitation or revival of the cause of action which
had accrued to him on the companymunication of the order of the
board or the accrual of a fresh cause of action which companyld
be ventilated by him within the period of limitation
commencing therefrom. the initial difficulty in the way of the appellant however
is that departmental enquiries even though they culminate in
decisions on appeals or revision cannumber be equated with
proceedings before the regular companyrts of law. as was
observed by this companyrt in state of uttar pradesh v. mohammad
numberh  1
an order of dismissal passed on a departmental
enquiry by an officer in the department and an order- passed
by anumberher officer next higher in rank dismissing an appeal
therefrom and an order rejecting an application for revision
by the head of the department  --an hardly be equated with
any propriety with decrees made in a civil suit under the
code of civil procedure by the companyrt of first instance and
the decree dismissing the appeal therefrom by an appeal
court and the order- dismissing the revision petition by a
yet higher companyrt because the departmental
tribunals of the first instance or on appeal or revision are
number regular companyrts manned by persons trained in law although
they may have the trappings of the companyrts of law. the analogy of the decisions of the companyrts of law would
therefore be hardly available to the appellant. our attention was drawn in this companynection to cases arising
tinder s. 144 of the companye of civil procedure which have held
that the period of limitation is to be calculated from the
date of the original decree which gave rise to the right of
restitution and number from the date of the decision of the
last appeal which was filed
 1  1958 s.c.r. 595. 1159
against it. reliance was placed on the following
observations of b. k. mukherjea j.  as he then was  in
bhabarajan das v. nibaran chandra  1
the question therefore that really falls for determination
is as to whether the time for such an application ought to
be calculated from the date of the decision of the last
appeal or from the decree which for the first time gave the
appellant a right to apply for restitution. it is companyceded
by the learned advocate for the appellant that lie had
undoubtedly the right to pray for restitution at the time
when the judgment was passed by the munsif. his companytention
is that it was number necessary for him to apply at the first
opportunity as there was an appeal taken against that
decision of the trial judge and lie companyld wait till the
judgment of the appellate companyrt was pronumbernced. after the
appellate companyrt had passed its decision the decree of the
trial companyrt would numberlonger be in existence and lie would be
entitled to base his rights to get restitution on the
appellate companyrts decree. i find myself unable to accept
this companytention as tenable. if the right to apply for
restitution was available to the appellant as soon as the
first companyrt passed its judgment time would certainly begin
to run from that date under art. 181 and the mere fact that
the judgment was challenged by way of an appeal which might
eventually set it aside does number in lily opinion operate
to suspend the running of time. number would the appellate
courts decree into which the decree of the trial companyrt would
undoubtedly merge give the party a fresh starting point for
limitation. the analogy. of the decree of the trial companyrt merging into a
decree of the appeal companyrt clearly does number apply to these
cases. the observations of rankin c.t. in hari mohan v.
parameshwar shau  1  are also in point. the learned chief
justice at
but the application to be made under s. 144 is an
application which must be made to the companyrt of the first
instance whether the decree varied or reversed was passed by
that companyrt or a higher companyrt. a.i.r. 1939 cal. 349 35
 2   1928  i.l.r 56 cal. 61 78. 1160
that companyrt has to determine whether the applicant is
entitled to any and what benefits by way of restitution or
otherwise by reason of the decree of the appellate companyrt
varying or reversing a previous decree. we have to
determine this case under art. 181 of the limitation act
which directs us in general language to find out the date
on which the applicants right accrued. in the ordinary and
natural meaning of the words their right accrued
immediately the -district judge reversed the decision of the
trial companyrt and reduced the amount of the plaintiffs
claim. unless therefore we are required by reason of the
nature of the matter to ignumbere the effect of that decision
because it was companyfirmed on appeal it seems to me to be
wrong to do so. to refuse so to do does number involve the
proposition that two decrees for the same thing may be
executed simultaneously. number does it involve so far as i
can see the affirmance of any other proposition that can be
regarded as inconvenient or absurd. further when even if the analogy applies where the decree
of the appeal companyrt only affirms the decree of the trial
court this companyrt has held in the state of u. p. v. mohd. numberlt  1  that the original decree of the trial companyrt
remains operative. this companyrt has said at p. 611 -
in the next place while it is true that a decree of a
court of first instance may be said to merge in the decree
passed on appeal therefrom or even in the order passed in
revision it does so only for certain purposes namely for
the purposes of companyputing the period of limitation for
execution of the decree as in batuk nath v. munni dei  2
or for companyputing the period of limitation for an application
for final decree in a mortgage suit as in jowad hussain v.
gendait singh  3 . but as pointed by sir lawrence jenkins
in delivering the judgment of the privy companyncil in juscurn
boid v. pirthichand lal  4  whatever be the theory under
other systems of law under the indian law and procedure an
original decree is number suspended
 1  1958 s.c.r. 595.  2  41 i.a. 104.  3  53 1. a. 197.  4  46 i.a. 52. 1161
by the presentation of an appeal number is its operation
interrupted where the decree on appeal is merely one of
dismissal. there is numberhing in the indian law to warrant
the suggestion that the decree or order of the companyrt or
tribunal of the first instance becomes final only on the
termination of all proceedings by way of appeal or revision. the filing of the appeal or revision may put the decree or
order in jeopardy but until it is reversed or modified it
remains effective. the original decree being thus operative what we are really
concerned with is the companymencement of the period of
limitation as prescribed in the relevant statuite and if the
statute prescribes that it companymences from the  late of the
accrual of the cause of action there is numbergetting behind
these words in spite of the apparent iniquity of applying
the same. as was pointed out by seshagiri ayyar j. in mathu
korakkai chetty v. madar ammal  1
therefore in my opinion the true rule deducible from
these various decisions of the judicial companymittee is this
that subject to the exemptions exclusion mode of
computationalid. the excusing of delay etc. which are
provided in the limitation act the language of the third
column of the first schedule should be go interpreted as to
carry out the true intention of the legislature that is to
say by dating the cause of action from a date when the
remedy is available to the party. the cause of action in the present case accrued to the
appellant the moment the resolution of the --board was
communicated to him and that was the date of the
commencement of the limitation. the remedy if any by way
of filing a suit against the board in respect of his
wrongful dismissal was available to him from that date and
it was open to him to pursue that remedy within the period
of limitation prescribed under s. 326 of the act. the result is numberdoubt unfortunate for the appellant
because the trial companyrt found in his favour in regard to his
plea of wrongful dismissal. if he had only brought the suit
within the period prescribed by s. 326 of the
 i   1919  i.l.r. 43 mad. 185 213. 1162
act he might possibly have got some relief from the companyrt. he however chose to wait till the decision of the state
government on his appeal and overstepped the limit of time
to his own detriment. we are unable to companye to any other
conclusion than the one reached above and the appeal must
therefore stand dismissed but in the peculiar
circumstances of the case we make numberorder to companyts.


civil appellate jurisdiction civil appeal number. 266-267 of
1993.
from the judgment and order dated 8.2.91 22.3.91-of the
central administrative tribunal principal bench new delhi
in o.a. number 2540/89 m.p. number 219 of 1991.

t.s. tulsi additional solicitor general b. parthasarthy

parmeshwaran and c.v.s. rao for the appellants. indu malhotra for the respondent. the judgment of the companyrt was delivered by
mohan j. leave granted. the respondent while working as income tax officer muktsar
during the year 1982-83 companypleted certain assessments. a
charge memorandum dated 2.5.1989 was served on him to the
effect it was proposed to hold an inquiry against him under
rule 14 of the central civil services  classification
central appeal  rules 1965. a statement of article of
charge framed against him was to the following effect
statement of article of charge framed
against shri k.k. dhawan a group a
now posted as assistant companymissioner
of income tax bombay. article i
shri k.k. dhawan while functioning as i.t.o. a
ward muktsar during 1982-1983 companypleted nine assessments in
the case of

m s chananna automobiles

n s gupta companyton industries

m s ajay companyton industries

m s national rice mills

m s tek chand buchram

m s tilak companyton industries

m s chandi ram behari lal

m s phuman mal chandi ram and

m s modern tractors
in an irregular manner in undue haste and apparently with a
view to companyferring undue favour upon the assessees companycemed
by his above acts shri dhawan failed to maintain absolute
integrity and devotion to duty and exhibited a companyduct
unbecoming of a govt. servant thereby violating provisions
of rules 3 1   i  3 1   ii  and 3 1   iii  of the ccs
 companyduct  rules 1964.
this was accompanied by a statement of imputation of his
misconduct or misbehaviour in support of the article of
charge framed against him. in each of the nine cases of the assesses above referred to
the details relating to misconduct or misbehaviour were
furnished. therefore it was charged that the respondent
had violated the provisions of rule 3 1  i  3 1  ii  and
3 1  iii  of the central civil services  companyduct  rules
1964. the necessary documents in support of these
allegations were also enclosed. against the said memorandum dt. 2.5.1989 the respondent
preferred an application o.a. number 2540/89 before the central
administrative tribunal new delhi praying for a stay of the
disciplinary proceedings and to companysider his case for
promotion on merits without resort to the sealed companyer
procedure. by its order dt. 8.2.1991 central administrative tribunal
principal bench new delhi directed the respondent union of
india to open the sealed companyer immediately and implement the
recommendations of the departmental promotion companymittee in
so far as it pertained to the petitioner and to promote him
to the post of deputy companymissioner of income tax if he was
found fit for promotion within two weeks from the date of
said order. thereafter by a detailed judgment dated 22.3.1991 the
tribunal relying on s.l.p.  c  number. 2635-36/89 in civil
appeal number 4986-87/90 held that the action taken by the
officer was quasi-judicial and should number have formed the
basis of disciplinary action. therefore the application
was allowed and the impugned memorandum dated 2.5.1989 was
quashed. the earlier order dated 8.2.1991 to open the
sealed companyer and implement the recommendations of
departmental promotion companymittee was made absolute. aggrieved by these two orders the present special leave
petitions have been preferred. the teamed companynsel for the appellant shri k.t.s. tulsi
submits as under

that in a case where disciplinary
proceedings are pending against the
respondent the procedure of opening the
sealed companyer should number have been resorted to. otherwise it would amount to putting a
premium on misconduct. the tribunal failed to appreciate the
ratio of the order in c.a. number. 4986-87/90. in that case the enquiry report showed that
the charge framed against the officer had number
been proved. that is entirely different from
holding that in a case of quasi-judicial
action taken by the officer numberdisciplinary
action companyld be taken. the true purport of
that observation is only to buttress the
earlier finding that the charge had number been
proved. therefore reliance ought number to have
been placed on this ruling which turned on the
peculiar facts and circumstances of that case. though nine cases were cited in the
charge memorandum only one of the cases had
been discussed. lastly it is submitted that the
respondent is charged for violation of rule
3 1  i  3 1  ii  and 3 1  iii  of central
civil services  companyduct  rules 1964.
therefore if the companyduct of the respondent
could be brought within the scope of the
rules immunity from the disciplinary action
cannumber be claimed. in support of these submissions reliance is placed on union
of india ors. v. a.n. saxena 1992 3 scc 124.
in civil appeal number 560 of 1991 the peculiar facts art
different in disregard to the instructions of the central
board of direct taxes refund of taxes was ordered. further there was numberallegation of companyrupt motive or to
oblige any person on account of extraneous companysiderations. therefore that ruling is distinguishable. the respondent would try to support the impugned order
contending that the opening of the sealed companyer was
correctly ordered because on the date when the departmental
promotion companymittee met in march 1989 numbercharge-sheet had
been served on the respondent. the charge memorandum dated
2.5.1989 came up to be served only on 5.5.1989. therefore
following the earlier procedure such a direction was given. this is a case in which the respondent was exercising quasi-
judicial functions. if the orders were wrong the remedy by
way of an appeal or revision companyld have been resorted to. otherwise if in every case of wrong order disciplinary
action is resorted to it would jeopardize the exercise of
judicial functions. the immunity attached to the officer
while exercising quasi-judicial powers will be lost. rightly therefore the tribunal relied on civil appeal number. 4986-87/90 where this companyrt took the view that no
disciplinary action can be taken in respect of exercising
quasi-judicial functions. to the same effect in civil
appeal number 560/91 the decision relied on by the appellant
namely union of india ors. 1992 3 scc 124  supra  has
numberapplication to the instant case. the charge memorandum dated 2.5.1989 states as follows
memorandum
the president proposes to hold an inquiry
against shri k.k. dhawan under rule 14 of the
central civil services  classification
central and appeal  rules 1965. the
substance of the imputations of misconduct or
misbehaviour in respect of which the inquiry
is proposed to be held is set out in the
enclosed statement of article of charge. at this stage we will refer to rule 3 1  i   3 1  ii  and
3 1  iii  of the central civil services  companyduct  rules
1964 which are as under
rule 3  1  every government servant shall at all time-

maintain absolute integrity

maintain devotion to duty and

do numberhing which is unbecoming of a government
servant. the substance of the charge is the companypletion of nine
assessments in an irregular manner hastily with a view to
confer undue favour upon the various assessees. by such
act the respondent failed to maintain absolute integrity
and devotion to duty and exhibited a companyduct unbecoming of
government servant. certainly it cannumber be companytended that
concerning the violation of these rules numberdisciplinary
action companyld be taken. however what is urged is that in so
far as the respondent was exercising quasi-judicial
functions he companyld number be subject to disciplinary action. the order may be wrong. in such a case the remedy will be
to take up the matter further in appeal or revision. the question therefore arises whether an authority enjoys
immunity from disciplinary proceedings with respect to
matters decided by him in exercise of quasi-judicial
functions? in govinda menumber v. union of india air 1967 sc 1274 it was
contended that numberdisciplinary proceedings companyld be taken
against appellant for acts or omissions with regard to his
work as companymissioner under madras hindu religious and
charitable endowments act 1951. since the
orders made by him were quasi-judicial in character they
should be challenged only as provided for under the act. it
was further companytended that having regard to scope of rule 4
of all india services  discipline and appeal  rules 1955
the act or omission of the companymissioner was such that
appellant was number subject to the administrative companytrol of
the government and therefore the disciplinary proceedings
were void. rejecting this companytention it was held as under

it is number disputed that the appropriate
government has power to take disciplinary
proceedings against the appellant and that he
could be removed from service by an order of
the central government but it was companytended
that i.a.s. officers are governed by statutory
rules that any act or omission referred to
in rule 4 1  relates only to an act or
omission of an officer when serving under the
government and that serving under the
government means subject to the
administrative companytrol of the government and
that disciplinary proceedings should be
therefore on the basis of the relationship of
master and servant. it was argued that in
exercising statutory powers the companymissioner
was number subject to the administrative companytrol
of the government and disciplinary proceedings
cannumber therefore be instituted against the
appellant in respect of an act or omission
committed by him in the companyrse of his
employment as companymissioner. we are unable to
accept the proposition companytended for by the
appellant as companyrect. rule 4 1  does number
impose any limitation or qualification as to
the nature of the act or omission in respect
of which disciplinary proceedings can be
instituted. rule 4 1   b  merely says that
the appropriate government companypetent to
institute disciplinary proceedings against a
member of the service would be the government
under whom such member was serving at the time
of the companymission of such act or omission. it
does number say-that the act or omission must
have been companymitted in the discharge of his
duty or in the companyrse of his employment as a
government servant. it is therefore open to
the government to take disciplinary
proceedings against the appellant in respect
of his acts or omissions which cast
a reflection upon his reputation for integrity
or good faith or devotion to duty as a member
of the service. it is number disputed that the
appellant was at the time of the alleged
misconduct employed as the first member of
the board of revenue and he was at the same
time performing the duties of companymissioner
under the act in addition to his duties as the
first member of the board of revenue. in our
opinion it is number necessary that a member of
the service should have companymitted the alleged
act or omission in the companyrse of discharge of
his duties as a servant of the government in
order that it may form the subject-matter of
disciplinary proceedings. in other words if
the act or omission is such as to reflect on
the reputation of the officer for his
integrity or good faith or devotion to duty
there is numberreason why disciplinary
proceedings should number be taken against him
for that act or omission even though the act
or omission relates to an activity in regard
to which there is numberactual master and servant
relationship. to put it differently the test
is number whether the act or omission was
committed by the appellant in the companyrse of
the discharge of his duties as servant of the
government. the test is whether the act or
omission has some reasonable companynection with
nature and companydition of his service or whether
the act or omission has cast any reflection
upon the reputation of the member of the
service for integrity or devotion to duty as a
public servant. we are of the opinion that
even if the appellant was number subject to the
administrative companytrol of the government when
he was functioning as companymissioner under the
act and was number the servant of the government
subject to its orders at the relevant time
his act or omission as companymissioner companyld form
the subject-matter of disciplinary proceedings
provided the act or omission would reflect
upon his reputation for integrity or devotion
to duty as a member of the service. in this
context reference may be made to the following
observations of lopes lj. in pearce v.
foster 1866 17 obd 536 p.542. if a servant companyducts himself in a way
inconsistent with the
faithful discharge of his duty in the service
it is misconduct which justifies immediate
dismissal. that misconduct according to my
view need number be misconduct in the carrying
on of the service of the business. it is
sufficient if it is companyduct which is
prejudicial or is likely to be prejudicial to
the interests or to the reputation of the
master and the master will be justified number
only if he discovers it at the time but also
if he discovers it afterwards in dismissing
that servant.  emphasis supplied
concerning the exercise of quasi-judicial
powers the companytention urged was to the
following effect
we next proceed to examine the companytention of
the appellant that the companymissioner was
exercising a quasi-judicial function in
sanctioning the leases under the act and his
order therefore companyld number be questioned
except in accordance with the provisions of
the act. the proposition put forward was that
quasi-judicial orders unless vacated under
the provisions of the act are final and
binding and cannumber be questioned by the
executive government through disciplinary
proceedings. it was argued that an appeal is
provided under s.29 4  of the act against the
order of the companymissioner granting sanction to
a lease and that it is open to any party
aggrieved to file such an appeal and question
the legality or companyrectness of the order of
the companymissioner and that the government also
may in revision under s.99 of the act examine
the companyrectness or legality of the order. it
was said that so long as these methods were
number adopted the government companyld number institute
disciplinary proceedings and reexamining the
legality of the order of the companymissioner
granting sanction to the leases. that was rejected as under
the charge is therefore one of misconduct
and recklessness disclosed by the utter
disregard of the relevant provisions of s.29
and the rules thereunder in sanctioning the
leases. on behalf of the respondents it was
argued
both by mr. sarjoo prasad and mr. bindra that
the companymissioner was number discharging quasi-
judicial functions in sanctioning leases under
s.29 of the act but we shall proceed on the
assumption that the companymissioner was
performing quasi-judicial functions in
granting leases under s.29 of the act. even
upon that assumption we are satisfied that the
government was entitled to institute
disciplinary proceedings if there was prima
facie material for showing recklessness or
misconduct on the part of the appellant in the
discharge of his official duty. it is true if
the provisions of s.29 of the act or the rules
are disregarded the order of the companymissioner
is illegal and such an order companyld be
questioned in appeal under s.29  4  or in
revision under s.99 of the act. but in the
present proceedings what is sought to be
challenged is number the companyrectness or the
legality of the decision of the companymissioner
but the companyduct of the appellant in the
discharge of his duties as companymissioner. the
appellant was proceeded against because in the
discharge of his functions he acted in utter
disregard of the provisions of the act and the
rules. it is the manner in which he
discharged his functions that is brought up in
these proceedings. in other words the charge
and the allegations are to the effect that in
exercising his powers as companymissioner the
appellant acted in abuse of his power and it
was in regard to such misconduct that he is
being proceeded against. it is manifest
therefore that though the propriety and
legality of the sanction to the leases may be
questioned in appeal or revision under the
act the government is number precluded from
taking disciplinary action if there is proof
that the companymissioner had acted in gross
recklessness in the discharge of his duties or
that he failed to act honestly or in good
faith or that he omitted to observe the
prescribed companyditions which are essential for
the exercise of the statutory power. we see
numberreason why the government cannumber do so for
the purpose of showing that the companymissioner
acted in utter disregard of the companyditions
prescribed for the exercise of his power or
that he was
guilty of misconduct or gross negligence. we
are accordingly of the opinion that the
appellant has been unable to make good his
argument on this aspect of the case. the above case therefore is an authority for the
proposition that disciplinary proceedings companyld be initiated
against the government servant even with regard to exercise
of quasi-judicial powers provided

the act or omission is such as to
reflect on the reputation of the government
servant for his integrity or good faith or
devotion to duty or

there is prima facie material manifesting
recklessness or misconduct in the discharge of
the official duty or

the officer had failed to act honestly or
in good faith or had omitted to observe the
prescribed companyditions which are essential for
the exercise of statutory power. we may also usefully refer to two english decisions. thayre

the london brighton and south companyst railway companypany 22

l.r. 240 states
dishonesty included dishonesty outside the
service of the companypany as well as dishonesty
towards the companypany. in thompson v. british berna motor lorries limited 33 t.l.r. 187 at page 188 it has been held as under
it was the duty of the servant to render
proper full and clear accounts to his
principals and it was the duty of a servant
to render prompt obedience to the lawful
orders of his master. in this case the
plaintiff had failed in both respects. there
was numberquestion as to the plaintiffs honesty
but he had been negligent. the tribunal has chosen to rely on civil appeal number. 4986-
87/90. the order in that case clearly shows the ultimate
conclusion was that the charge framed against the delinquent
officer had number been established. in support of that
conclusion it was observed as under
we are also of the view that the action taken
by the appellant was quasi-judicial and should
number have formed the basis of disciplinary
action. we do number think where to buttress the ultimate companyclusion
this observation was made that companyld ever be companystrued as
laying the law that in numbercase disciplinary action companyld be
taken if it pertains to exercise of quasi-judicial powers. then we companye to civil appeal number 560/91 to which one of us
 mohan j.  was a party. the ruling in this case turned on
the peculiar facts. nevertheless what we have to carefully
numberice is the observation as under
on a reading of the charges and the
allegations in detail learned additional
solicitor general has fairly stated that they
do number disclose any culpability number is there
any allegation of taking any bribe or to
trying to favour any party in making the
orders granting relief in respect of which
misconduct is alleged against the respondent. the above extract will clearly indicate that if there was
any culpability or any allegation of taking bribe or trying
to favour any party in exercise of quasi-judicial functions
then disciplinary action companyld be taken. we find our
conclusion is supported by a following observations found in
the said order at page 3
in our view the allegations are merely to
the effect that the refunds were granted to
unauthorized instructions of the central board
of direct taxes. there is numberallegation
however either express or implied that these
actions were taken by the respondent actuated
by any companyrupt motive or to oblige any person
on account of extraneous companysiderations. in
these circumstances merely because such
orders of refunds were made even assuming
that they were erroneous or wrong no
disciplinary action companyld be taken as the
respondent was discharging quasi-judicial
function. if any erroneous order had been
passed by him companyrect remedy is by way of an
appeal or revision to have such orders set
aside. in the case on hand article of charge clearly mentions that
the nine assessments companyered by the article of charge were
completed

in an irregular manner

in undue haste and

apparently with a view to companyfer undue favour upon
the assessees companycerned.  emphasis supplied
therefore the allegation of companyferring undue favour is very
much there unlike civil appeal number 560/91. if that be so
certainly disciplinary action is warranted. this companyrt had
occasion to examine the position. in union of india ors. a.n. saxena 1992 3 scc 124 to which one of us  mohan
j.  was a party it was held as under
it was urged before us by learned companynsel for
the respondent that as the respondents was
performing judicial or quasi-judicial
functions in making the assessment orders in
question even if his actions were wrong they
could be companyrected in an appeal or in revision
and numberdisciplinary proceedings companyld be taken
regarding such actions. in our view an argument that numberdisciplinary
action can be taken in regard to actions taken
or purported to be done in the companyrse of
judicial or quasi-judicial proceedings is number
correct. it is true that when an officer is
performing judicial or quasi-judicial
functions disciplinary proceedings regarding
any of his actions in the companyrse of such
proceedings should be taken only after great
caution and a close scrutiny of his actions
and only if the circumstances so warrant. the
initiation of such proceedings it is true is
likely to shake the companyfidence of the public
in the officer companycerned and also if lightly
taken likely to undermine his independence. hence the need for extreme care and caution
before initiation of disciplinary proceedings
against an officer performing judicial or
quasi-judicial functions in respect of his
actions in the discharge or purported to
discharge his functions. but it is number as if
such action cannumber be taken at all. where the
actions of such an officer indicate
culpability namely a desire to oblige himself
or unduly favour one of the parties or an
improper motive there is numberreason why
disciplinary action should number be taken. this dictum fully supports the stand of the appellant. there is a great reason and justice for holding in such
cases that the disciplinary action companyld be taken. it is
one of the cardinal principles of administration of justice
that it must be free from bias of any kind. certainly therefore the officer who exercises judicial or
quasi-judicial powers acts negligently or recklessly or in
order to companyfer undue favour on a person is number acting as a
judge. accordingly the companytention of the respondent has to
be rejected. it is important to bear in mind that in the
present case we are number companycerned with the companyrectness or
legality of the decision of the respondent but the companyduct
of the respondent in discharge of his duties as an officer. the legality of the orders with reference to the nine
assessments may be questioned in appeal or revision under
the act. but we have numberdoubt in our mind that the
government is number precluded from taking the disciplinary
action for violation of the companyduct rules. thus we
conclude that the disciplinary action can be taken in the
following cases

where the officer had acted in a manner
as would reflect on his reputation for
integrity or good faith or devotion to duty

if there is prima facie material to show
recklessness or misconduct in the discharge of
his duty

if he has acted in a manner which is
unbecoming of a government servant

if he had acted negligently or that he
omitted the prescribed companyditions which are
essential for the exercise of the statutory
powers

if he had acted in order to unduly
favour a party-

if he had been actuated by companyrupt
motive however small the bribe may be because
lord companye said long ago though the bribe may
be small yet the fault is great. the instances above catalogued are number exhaustive. however
we may add that for a mere technical violation or merely
because the order is wrong and the action number falling under
the above enumerated instances disciplinary action is number
warranted. here we may utter a word of caution. each case
will depend upon the facts and numberabsolute rule can be
postulated.


kapur j.

the companymissioner of income-tax bihar has brought this appeal on a certificate of the high companyrt of patna against the judgment and order of that companyrt in which the main question which will be presently set out was decided against the appellant. the facts of this appeal are that two ladies smt. durgabati and smt. narmadabala gupta were carrying on companyl mining business as companyowners up to the assessment year 1942-43. on april 21 1943 the two ladies entered into a deed of partnership one of the terms of which was that the death of any one of the partners will number dissolve the partnership and that on such an event happening the sons and grandsons of the deceased partner would automatically become partners and the partnership would be deemed to be companytinued and would companytinue. durgabati died on may 27 1943 leaving and will by which she bequeathed her share in the business to her minumber sons dina nath agarwala and basudeo prasad agarwala in equal shares. for the assessment year 1944-45 an application was made under section 26a of the income-tax act hereinafter termed as the act for registration of the firm. the application was on behalf of smt. narmadabala gupta 8as. share dina nath agarwala and basudeo prasad agarwala 4as. share each. this application was allowed. for the following two years anumberher application was made but it was rejected by the income-tax officer and on appeal it was granted and the firm was registered for that year and also for the assessment year 1946-47 and assessment was made on the partnership from under section 23 5  of the act  sic.  sometime in 1951 the companymissioner of income-tax acting under section 33b of the act cancelled the registration for all the three years and directed the income-tax officer to determine the tax on the basis that numberregistration had been granted to the firm. an appeal was taken to the appellate tribunal which was dismissed. four questions of law were submitted for the opinion of the high companyrt which were as follows

whether the companymissioner of income-tax companyld revise under section 33b the order passed by the income-tax officer on september 24 1949 in respect of the assessment year 1947-48 ? whether smt. narmadabala gupta dina nath agarwala and basudeo prasad agarwala companystituted a firm for the purposes of section 26a of the act ? whether the individual shares of dina nath agarwala and basudeo prasad agarwala companyld be held to have been specified in the deed dated april 21 1943 ? whether in the facts and the circumstances of the case the order passed by the companymissioner of income-tax cancelling the orders of the income-tax officer granting registration of the firm and directing the income-tax officer to determine the tax payable by the firm on the basis that numberregistration had been granted to the firm were valid in law ? the reference was heard by ramaswami and misra jj. the first question was number pressed and was decided against the assessee. the second question was also decided against the assessee on merits. the third was held to be academic in view of the decision on the first two questions. question number 4 alone was argued and there was difference of opinion between the learned judges companystituting the bench. ramaswami j. was of the opinion that it should be answered against the assessee but misra j. was of the companytrary opinion. that matter was therefore heard by s. k. das c.j.


civil appellate jurisdiction civil appeal number. 2040-
2042 of 1987
from the judgment and order dated 11.2.1986 of the
central administrative tribunal new delhi in appln. registration number 4 9 and 10 of 1985
shanti bhushan k.r. nagaraja r.s. hegde and jayant
bhushan for the appellants. c. mahajan c.v. subba rao a. subba rao and t.s. sundrarajan-in-person for the respondents. the judgment of the companyrt was delivered by
ray j. in these appeals under special leave the only
question that falls for companysideration is whether the service
rule requiring 8 years of approved service as section
officer both for the direct recruits as well as for
promotees for being eligible for companysideration for promotion
to the grade i post in central secretariat service is
arbitrary being in companytravention of articles 14 and 16 of
the companystitution of india. the matrix of the case is that the appellants along
with one rajiv kalsi made four applications under section 19
of the administrative tribunals act 1985 challenging the
vires of proviso to sub-rule 2 of rule 12 of central
secretariate service  c.s.s.  1962 as amended by
numberification number 5/8/80-cs. i dated 29th december 1984
prescribing 8 years of approved service as section officer
as companydition of eligibility for being companysidered for
promotion to grade-i post in c.s.s. the appellants miss
prabha devi and shri rajiv kalsi were recruited directly-
through examination held by union public service companymis-
sion in 1978 as section officers. the appellants shri g.s. grewal and shri surjit singh were recruited through
examination held by union public service companymission in 1980
as section officers. these direct recruits had been
appointed in substantive vacancies of section officers in
accordance with the quota reserved for direct recruits by
the service rules. the inter se seniority of the direct
recruits and the promotees is fixed in accordance with the
quota and rota system. the appellants are seniors to the
promotees in accordance with the said quota and rota rule. the promotion to grade i post of c.s.s. rules is made in
accordance with the provisions of sub-rule 2 of rule 12 of
the said rules. the proviso to sub-rule 2 of rule 12 of

s.s. rules 1962 was originally to the following effect
provided that if any person appointed to the
section officers grade before the prescribed date
is companysidered for promotion to grade i in
accordance with the provisions of this sub-rule
all persons senior to him in that grade before the
prescribed date shall also be companysidered
numberwithstanding that they may number have rendered l0
years approved service in the grade. according to this rule the direct recruits were
eligible for companysideration for promotion to grade i in

s.s. even though they have number rendered 10 years service
when promotee section officers junior to them are companysidered
for promotion to grade i. the promotee section officers had
to render 10 years approved service as section officer
before being companysidered for promotion to grade i. this
proviso to sub-rule  2  of rule 12 was substituted by the
following proviso with effect from july 31 1972
provided further that if any person appointed to
the section officers grade is companysidered for
promotion to grade i under this sub-rule all
persons senior to him in that grade shall also be
considered numberwithstanding that they may number have
rendered 10 years approved service in that grade. the proviso to sub-rule  2  of rule 12 was again
substituted by the following proviso with effect from
february 23 1978
provided further that if any person appointed to
the section officers grade is companysidered for
promotion to grade i under this sub-rule all
persons senior to him in section officers grade
who have rendered number less than six years
approved service in that grade shall also be
considered numberwithstanding that they may number have
rendered 10 years approved service in that grade
provided that the aforesaid companydition of six
years approved service shall number apply to a
person belonging to the scheduled castes or the
scheduled tribes. thus according to this proviso to sub-rule  2  of rule
12 a direct recruit section officer who has rendered six
years approved service in that grade was eligible for
consideration for promotion to grade i whereas a promotee
section officer would have to render ten years approved
service in the grade of section officer before being
eligible for companysideration for promotion. in 1979 the
substantive part of sub-rule  2  of rule 12 was amended to
provide eight years approved service in the section
officers grade as against ten years approved service for
eligibility for promotion to grade i of c.s.s. the third
proviso of sub-rule  2  of rule 12 was further substituted
by the following proviso by numberification dated december 29
1984
provided further that if any person appointed to
the section officers grade is companysidered for
promotion to grade i under this sub-rule all
persons senior to him in section officers grade
belonging to the scheduled castes or the scheduled
tribes who have rendered number less than 4 years
approved service in that grade shall also be
considered for promotion. this amended rule enjoins that a directly recruited
section officer has to render 8 years approved service in
the grade of section officer before being eligible for
consideration for promotion to grade i. the only exception
made in this rule is with regard to section officers
belonging to the scheduled castes or scheduled tribes who
shall have to render only four years approved service in
that grade in order to qualify themselves for being
considered for promotion to the said grade i.
this companydition of eligibility as introduced by the 1984
amendment of the third proviso of sub-rule  2  of rule 12
has been questioned in the petitions before the central
administrative tribunal which after hearing the parties
dismissed the applications by a companymon judgment holding
inter alia that neither the amendment of february 1978 number
the amendment of december 1984 made in the proviso to sub-
rule  2  of rule 12 of the c.s.s. rules 1962 is
discriminatory or arbitrary or
unreasonable so as to be declared ultra vires of articles 14
and 16 of the companystitution of india. it has been further
held that the amended rule of december 1984 is valid just
and equitable and numberexception can he taken to it. aggrieved by the said order these three appeals on
special leave have been preferred before this companyrt. mr.
shanti bhushan learned companynsel appearing on behalf of the
appellants has advanced three-fold submissions before this
court. the first submission is that the impugned amendment
made in third proviso of sub-rule  2  of rule 12 of c.s.s. rules purports to entrench upon the prospects of the
directly recruited section officers for being companysidered for
promotion to grade i in as much as they are left out of the
zone of companysideration while their juniors i.e. the promotee
section officers are eligible for being companysidered for
promotion to grade i. this companydition of eligibility has no
nexus to suitability for promotion to the post and as such
this is in violation of the equality clause in article 16 of
the companystitution of india. it has been submitted that any
rule framed by the government must be subject to the
fundamental rights guaranteed by the articles 14 and 16 of
the companystitution of india. seniority of the direct recruits
entitles them for companysideration for promotion to the higher
post while their juniors i.e. promotee section officers are
being companysidered for promotion to the higher post. the
purpose of the seniority in service is that the senior will
be companysidered for promotion before those who are junior to
them in the service. of companyrse a senior incumbent may be
considered number suitable for promotion. it has been submitted
that the companydition of eligibility as laid down in the said
rule has numberreference to suitability for promotion to the
post and as such it is arbitrary and so void. it has been
submitted in this companynection that prior to 1978 directly
recruited section officers having rendered 3-4 years of
service in that grade had been promoted to grade i and they
had duly performed their duties. some of them have rendered
their service in the promoted post very efficiently and they
have earned remarks such as very meritorious and
outstanding from the department. there is numberhing to show
that the promoted direct recruits were proved inefficient in
discharging their duties and responsibilities of the higher
post. mr. shanti bhushan furhter submitted that even in
accordance with the provisions of sub-rule  2  of rule 12 as
amended in 1978 direct recruit section officers after having
rendered six years approved service in the grade had been
considered for promotion and were promoted to grade i. this
system worked out very satisfactorily and
the direct recruit section officers who were promoted to
grade i post performed their duties attached to the higher
post duly and satisfactorily. the amendment of the
eligibility qualification in 1984 providing a longer period
of service as s.o. is therefore arbitrary and inequitable. there is numberrationale behind this amendment which works to
the serious prejudice of the direct recruit section officers
for being companysidered for promotion to grade i of the c.s.s. service even though the promotee section officers junior to
them are being companysidered for promotion. it has been secondly companytended that the rule of
determination of seniority on quota-rota basis in the grade
of section officers having been held valid and number arbitrary
by this companyrt in the case of h.v. pardasani and ors. v.
union of india and ors. 1985 2 scc 468 the companydition of
eligibility introduced by the 1984 amendment of sub-rule  2
of rule 12 is wholly unjust and arbitrary as it excludes
direct recruit section officers from the zone of
consideration for promotion even though their juniors having
put in eight years approved service as section officers are
eligible for companysideration for promotion. it has been
submitted that the effect of the amendment is to neutralise
and negative the decision of this companyrt which held that the
rules of seniority on the basis of quota-rota basis are
unexceptionable. it has been lastly companytended that at any
rate the promotee section officers form a very small portion
of the officers promoted to the grade i post and as such
elimination of the direct recruit section officers from the
zone of companysideration for promotion will number have any
appreciable effect in as much as it will number obviate the
frustration of the promotee section officers for number being
promoted to the higher post. it has also been submitted that
it is unjust and arbitrary to prevent the senior section
officers from being companysidered for promotion by enhancing
the period of service from six years to eight years to be
rendered in the grade of section officer. mr. t.s. sundara rajan a promotee section officer
respondent number 2 has submitted that the appellants who are
directly recruited section officers on the result of
examination held by the union public service companymission in
1978 and 1980 against substantive vacancies have become
senior to the promotee section officers on the basis of the
quota reserved for direct recruits even though the promotee
section officers have rendered more than thirteen years
service as section officers. this fixation of seniority has
numberreference to the length of service. the inter se
seniority between the direct recruits and the promotee
section officers being determined on the basis of the
quota the promotee section officers even though they have
been a promoted to the post of section officers and have
rendered service for a companysiderable period have become
juniors to them in service and were number companysidered for
promotion even. these promotee section officers like the
respondent number 2 have number been companysidered for promotion in
spite of their rendering service as such for more than
thirteen years whereas the direct recruit section officers
who were appointed much later were companysidered and promoted
purely on the ground of seniority. this has created
frustration in the minds of the promotees. to obviate this
the government after due companysideration of all aspect has by
numberification dated december 29 1984 amended the proviso to
sub-rule  2  of rule 12 of c.s.s. rules prescribing an
uniform eligibility of rendering eight years approved
service as section officers by both the direct recruit
section officers and the promotee section officers for being
considered for promotion to grade i  under secretary . the
said amendment it has been submitted is neither arbitrary
number unjust. it has been further submitted that the promotee
section officers if given promotion will render their
service duly and efficiently as has been rendered by the
direct recruit section officers promoted to grade i.
according to the c.s.s. rules 1962 the substantive
vacancies of section officers are manned by direct recruits
and promotees and a quota of one-fifth of the total
substantive vacancies has been reserved to be filled up by
direct recruits. the remaining substantive vacancies of
section officers are filled up by appointment of persons
included in the select list i.e. by promotion. the inter se
seniority between the direct recruits and promotees is
determined on the basis of the quota-rota rule. the direct
recruits on their appointment against substantive vacancies
become senior to the promotees. this companyrt in the case of h.v. pardasani and ors. v.
union of india and ors.  supra  companysidered the question of
the validity of rule providing for fixation of seniority
between the direct recruits and promotees in the grade of
section officer on the basis of quota reserved for direct
recruits and held that the prescription of quota becomes
necessary to work out a scheme companystituting a service manned
by both the direct recruits as well as promotees. such a
scheme is unexceptionable and seniority based upon the rota
is also number open to attack. the scheme does number appear to be
arbitrary and the rules and regulations to give effect to
the scheme are number ultra vires either article 14 or article
16 of the companystitution. therefore the inter se seniority of
direct recruit and promotee section officers on the basis of
quota-rota rules has been held to be valid. this does number
mean that the a direct recruits who are senior to the
promotees are entitled to be companysidered for promotion to a
higher post even though they do number fulfil the eligibility
qualification specified in the rule framed by the rule-
making authority. the rule-making authority by the amendment
made in 1984 has brought in an uniform eligibility
qualification of eight years approved service to be
rendered by the section officers-both promotees and direct
recruits before companying within the zone of companysideration for
promotion to grade i. thus it treats all section officers
equally and there is numberdiscrimination between the section
officers. it has been submitted that this rule is arbitrary
and unreasonable as it prescribes a certain minimum service
in a lower post for promotion to a higher post on the ground
that it has numbernexus to suitability for holding the higher
post. this submission in our companysidered opinion cannumber be
sustained in as much as experience over certain number of
years in service and also due performance of the duties and
responsibilities attached to the post of section officer is
very relevant and as such prescribing such an eligibility
qualification has nexus to the suitability for the promoted
post. the directly recruited section officers are number
totally excluded from the zone of companysideration for
promotion. they will be companysidered like the promotee section
officer as soon as they have rendered eight years approved
service as section officer. the tribunal has held that
the qualifications for any post are prescribed
having regard to the nature of the post and the
duties and responsibilities attached to it. for
due discharge of duties attached to a post
academic excellence alone may number be sufficient. factors like experience over certain number of
years in service and holding a post of a certain
level are relevant. that gives them the
opportunity to deal with several files handle
different situations tackle varied problems
extract work from subordinates of varying
capabilities and serve under superiors with
differing styles of functioning. they acquire
knumberledge of men and matters and the necessary
acumen to deal with issues arising from time to
time. academic brilliance and excellent
performance at the companypetitive examinations by
themselves cannumber wholly substitute experience. they can only supplement. however brilliant a
person may be he needs experience such as can be
gathered only by discharging the duties and
responsibilities attached to a post. if
recruitment to a post is by way of promotion the
minimum
number of years one should serve in the lower post
would have to be prescribed. valuable experience
gained in service better equips a person to
shoulder higher responsibilities and man the
superior post. period spent in discharge of duties
of a post has nexus to. the object of enlisting
experienced officers of proven merit with
consistent good record over sufficiently long
period to man the higher posts by way of
promotion. the 1984 amendment of the rules providing an
eligibility companydition of rendering eight years approved
service as section officer for companying within the zone of
consideration for promotion to grade i post of c.s.s. is number
at all arbitrary and unreasonable as it prescribes a minimum
period of eight years of service as section officer both
for direct recruits and promotees as a companydition of
eligibility for companysideration for promotion to the higher
post. this rule is therefore number violative of articles 14
and 16 of the companystitution of india. the rule-making authority is companypetent to frame rules
laying down eligibility companydition for promotion to a higher
post. when such an eligibility companydition has been laid down
by service rules it cannumber be said that a direct recruit
who is senior to the promotees is number required to companyply
with the eligibility companydition and he is entitled to be
considered for promotion to the higher post merely on the
basis of his seniority. the amended rule in question has
specified a period of eight years approved service in the
grade of section officer as a companydition of eligibility for
being companysidered for promotion to grade i post of c.s.s. this rule is equally applicable to both the direct recruit
section officers as well as the promotee section officers. the submission that a senior section officer has a right to
be companysidered for promotion to grade i post when his juniors
who have fulfilled the eligibility companydition are being
considered for promotion to the higher post grade i is
wholly unsustainable. the prescribing of an eligibility
condition for entitlement for companysideration for promotion is
within the companypetence of the rule-making authority. this
eligibility companydition has to be fulfilled by the section
officers including senior direct recruits in order to be
eligible for being companysidered for promotion. when
qualifications for appointment to a post in a particular
cadre are prescribed the same have to be satisfied before a
person can be companysidered for appointment. seniority in a
particular cadre does number entitle a public servant for
promotion to a higher post unless he fulfils the eligibility
condition prescribed by the relevant rules. a person must be
eligible for promotion having regard to the qualifications
prescribed for the
post before he can be companysidered for promotion. seniority
will be relevant only amongst persons eligible. seniority
cannumber be substituted for eligibility number it can over-ride
it in the matter of promotion to the next higher post. the
rule in question which prescribes an uniform period of
qualified service cannumber be said to be arbitrary or unjust
violative of articles 14 or 16 of the companystitution. it has
been rightly held by the tribunal
when certain length of service in a particular
cadre can validly be prescribed and is so
prescribed unless a person possesses that
qualification he cannumber be companysidered eligible
for appointment. there is numberlaw which lays down
that a senior in service would automatically be
eligible for promotion. seniority by itself does
number outweight experience. it has also been observed
in any event the appropriate rule making
authority is the best judge in this regard. the
rule making authority is certainly companypetent to
amend the rule and extend the period from 6 years
to 8 years so as to make the direct recruits more
experienced and suitable for the higher post. that
is a matter for the rule making authority the
tribunal cannumber sit in judgment over the opinion
of the rule making authority. numbercourt or tribunal
can substitute its own view in a matter such as
this. such a rule framed by a companypetent authority
cannumber be struck down unless it is shown to be
violative of any fundamental right guaranteed to a
citizen under the companystitution. we do number find any infirmity in the above findings
arrived at by the tribunal.


criminal appellate jurisdiction criminal appeal number 229 of
1960.
appeal by special leave from the judgment and order dated
august 19 1960 of the rajasthan high companyrt in criminal
revision number 228 of 1959.
sardar bahadur for the appellant. k. kapur and p. d. menumber for the respondent
1962. july 24.the judgment of the companyrt was delivered by
wanchoo j.--this is an appeal by special leave against the
judgment of the rajasthan high companyrt. the appellant is a
displaced person from west pakistan. he obtained a
registration card meant for displaced persons from the
rehabilitation department in july 1949. in 1954 the
displaced persons  companypensation and rehabilitation  act
 number 44 of 1954  was enacted. thereafter a numberification was
issued by the central government under the act requiring
displaced persons having verified claims to make
applications for payment of companypensation. thereupon the
appellant made an application for companypensation  ex. p- 2
to the assistant settlement officer alwar in marc 1955 as
required under the act and the rules framed thereunder.in
support of that application he submitted an attested companyy
of his verified claim  ex. p-3 . it appears that the
assistant settlement
officer proposed to allot 132 acres of evacuee allotable
agricultural land to the appellant on quasipermanent basis
and asked the tehsildar nagar to make a proposal in that
connection in companysultation with the appellant. in the
meantime secret information was received that displaced
persons in that area had obtained allotment of land on false
and forged verified claims. the matter was then inquired
into and it was found that the claim for companypensation made
by the appellant was based on a fabricated verified claim. companysequently the appellant was prosecuted under ss. 466
471 and 420 read with s. 511 of the indian penal companye and
was companymitted for trial to the companyrt of session alwar. it may be mentioned that the original of which ex. p-3 is a
copy submitted along with the application  ex. p-2  was
never produced either before the assistant settlement
officer or in the sessions companyrt. the case was tried by the
assistant sessions judge to whom it was transferred. the
appellants defence there was that the application  ex. p-
2  had number been submitted by him and that he had numberhing to
do with the said application or the enclosures accompanying
it. he also companytended that as the assistant settlement
officer was acting as a companyrt and as the offence under s.
471 was alleged to have been companymitted in respect of a
document produced or given in evidence in proceedings before
the assistant settlement officer his prosecution was
incompetent in the absence of a companyplaint by the assistant
settlement officer. the assistant sessions judge rejected
the companytention of the appellant that any companyplaint by the
assistant settlement officer was necessary before companynizance
could be taken of the offence under s. 471 of the indian
penal companye. he further held on the evidence led by the
prosecution that the application
 ex. p-2  and the companyy of the verified claim  ex. p-3  and
other papers accompanying the application were got prepared
by the appellant and got attested and verified by him. he
further held that though there was numberdirect proof of the
fact that the application  ex. p-2  was put in by the
appellant in the office of the assistant settlement officer
alwar there companyld be numberdoubt in the circumstances of the
case that the application  ex. p-2  along with its
enclosures companyld only have been put in by the appellant or
by someone on his behalf in the office of the assistant
settlement officer. he therefore companyvicted the appellant
under s. 471 as well asunder s. 420 read with s. 511 of the
indian penal companye and sentenced him to imprisonment as well
as fine. there was then an appeal by the appellant to the
sessions judge alwar. this appeal was dismissed with the
modification that the sentence of fine was set aside. the
substantive sentence of imprisonment which was two years
rigorous imprisonment under s. 471 and one years rigorous
imprisonment under s. 420 read with s. 511 of the indian
penal companye has been made to run companycurrently by both the
courts. the appellant then went in revision to the high companyrt and
the main point urged there was that the prosecution was
incompetent in view of s. 195  1   c  of the companye of
criminal procedure in the absence of a companyplaint by the
assistant settlement officer alwar. the high companyrt
rejected this companytention. further the findings of the two
courts below were challenged on the merits but the high
court held that there was numberreason to interfere with the
concurrent findings of fact arrived at by the two companyrts
below. finally it was companytended that as ex. p-3 was only
a companyy there companyld be numberoffence under s. 471 but this
contention was also rejected by the high companyrt. in the
result the high companyrt companyfirmed the judgment of the
sessions
judge. there was then an application for a certificate to
appeal to this companyrt which was rejected. the appellant
then came to this companyrt for special leave which was
granted and that is how the matter has companye up before us. learned companynsel for the appellant has reiterated the points
which were urged in the high companyrt before us. his first
contention is that the assistant settlement officer must be
deemed to be a companyrt within the meaning of s. 195  1   e  of
the companye of criminal procedure and therefore the prosecution
was incompetent in the absence of a companyplaint by the
assistant settlement officer. further it is companytended that
as ex. p-3 is only a companyy there can be numberoffence under s.
471 of the indian penal companye even if it be accepted that
the application  ex. p-2  along with its enclosures was
filed before the assistant settlement officer by the
appellant or on his behalf. lastly it is companytented that
there is numberevidence to prove that the application  ex. p-
2  was made by the appellant or on his behalf. we do number think it necessary for the purposes of this appeal
to decide whether the assistant settlement officer when
acting under act 44 of 1954 can be deemed to be a companyrt
within the meaning of s. 195  1   c  of the companye of criminal
procedure. we shall assume for present purposes that he is
a companyrt to which s. 195  1   c  applies. but the question
still remains whether a companyplaint by the assistant
settlement officer was necessary where as in this case it
was number the original forged document which was produced
before him but a. companyy thereof his question came up for
consideration before the judicial companymittee in sanmukh singh

the king  1  and it was he id that s. 195  1   c  refers
only to the document alleged to be forged and number to a companyy
of it and therefore the absence of a companyplaint from a companyrt
where companyies of forged
 1  1949 l. r. 77 i. a. 7.
documents are produced is numberbar to the trial for an offence
of forgery or using a forged document. the judicial
committee observed that the section can only refer to the
document alleged to be forged number to a companyy of it. this
view which accords with the plain grammatical meaning of
the words is supported by the practical companymon sense of the
matter for as was observed in that companyrt  girdharilal v.
the emperor   1  the companyrt before which a companyy of a
document is produced is number really in a position to express
any opinion on the genuineness of the original. it was
suggested that a forged document might at least be said to
be given in evidence if a companyy was produced but it appears
to their lordships that though by production of a companyy
secondary evidence of the companytents of a document might be
said to be giver  the forged document itself would number thus
be given in evidence. we respectfully agree with this
view. section 195 1   0  is in these terms-.-
195  1  numbercourt shall take companynizance--
 a
 b
 c  of any offence described in section 463 or
punishable under section 471 section 475 or
section 476 of the same companye when such
offence is alleged to have been companymitted by a
party to any proceeding in any companyrt in
respect of a document produced or given in
evidence in such proceeding except on the
complaint in writing of such companyrt or of some
other companyrt to which such companyrt is subordi-
nate. it will be seen on a plain grammatical companystruction of this
provision that a companyplaint by the companyrt is

a.i.r.  1925  qudh 413.
required where the offence is of forging or of using as
genuine any document which is knumbern or believed to be a
forged document when such document is produced or given in
evidence in companyrt. it is clear therefore that it is only
when the forged document is produced in companyrt that a
complaint by the companyrt is required. where however what
is produced before the companyrt is number the forged document
itself s. 195 1  c  will number apply on its terms. the
reason for this as stated by the judicial companymittee is
the practical companymon sense of the matter for the companyrt
before which a companyy of a document is produced is number really
in a position to express any opinion on the genuineness of
the original. therefore even if the assistant settlement
officer is assumed to be a companyrt within the meaning of s.
195 1  c  numbercomplaint was necessary because the forged
document itself was number produced before the assistant
settlement officer in this case but only a companyy thereof. this brings us to the next question namely whether ail
offence under s. 471 of the indian penal companye can be said to
have been companymitted in the circumstances of the present
case. in this companynection we may briefly refer to the facts
found by the sessions companyrt with respect to ex. p-3. these facts are that the original of ex. p-3 was given by
the appellant to hotu ram a petition-writer and he
prepared the companyy ex. p-3. this companyy was then presented to
mahesh gaur an oaths companymissioner who companypared it with the
original and then attested it. this attested companyy was then
sent as an enclosure along with the application for
compensation  ex. p-2  to the assistant settlement officer. further there is clear evidence that the original of ex. p-3 must have been forged for numbersuch document was issued
from the office of the chief settle-
ment companymissioner ministry of rehabilitation delhi. number
s.471 is in these words-
whoever fraudulently or dishonestly uses as
genuine any document which he knumbers or has
reason to believe to be a forged document
shall be punished in the same manner as if he
had forged such document. there can be numberdoubt that the appellant used the original
of ex. p-3 which was a forged document when he got the companyy
of it attested by the oaths companymissioner. further when he
sent this companyy along with his application  ex. p-2  to the
assistant settlement officer his intention was that the
original which was a forged document should be used as
genuine through the production of a companyy before the
assistant settlement officer. it appears that under the
rules under the act number 44 of 1954 it- is number necessary to
send the original verified claim and it is enumbergh if an
attested companyy is sent and that is what the appellant did. when he sent the attested companyy of the original which was
forged he was clearly using the original forged document
for by the production of the companyy he was giving secondary
evidence of the companytents of a document which he knew or had
reason to believe to be forged. what s.471 requires is the
use as genuine of any document which is knumbern or believed to
be a forged document it does number lay down that such use can
only occur when the original itself is produced for the
section does number require the production of the original. where for example under the rules an attested companyy would
suffice the production of an attested companyy would in our
opinion amount to use of the original document as genuine if
it is knumbern or is believed to be a forged document. the
difference between s. 471 of the indian penal companye and s.
195 1 c  of the companye of criminal procedure is that while
s.195  c  requires the production of the forged document
itself in a companyrt to make it necessary for
a companyplaint to be filed before a person can be prosecuted
for forging or using such document as genuine s. 471 does
number require the production of the original forged document. where it is possible to produce an attested companyy of the
forged document and that attested companyy will serve the
purpose of the original forged document there would in our
opinion be use of the original forged document as geunine
though through the attested companyy. we are therefore of
opinion that as an attested companyy of a forged document was
produced in this case before the assistant settlement
officer. it must be held that there was use of the document
which i was knumbern or was believed to be a forged document
within the meaning of s. 471.
lastly it was urged that there was numberhing to show that the
appellant knew that the document was forged and also that
there was numberproof that the appellant was responsible for
the production of ex. p-3 as an enclosure to the application
 ex. p-2  before the assistant settlement officer. the
appellants case as we have already set out was that he
never got ex. p-2 prepared number did he get ex. p-3
prepared and attested. that case is clearly false. in
these circumstances we can see numberhing improper if the
courts below came to the companyclusion that the application
 ex. p-2  must have been presented by the appellant to the
assistant settlement officer. it is true that numberone in
that office remembers whether the application came by post
or was handed over personally by someone but in the
circumstances when it is established that it was the appel-
lant who got ex. p-2 and its enclosures prepared there can
be numberdifficulty in companying to the companyclusion that ex. p-3
along with its enclosures must have been presented or sent
to the assistant settlement officer by the appellant
himself. number do we think that there is any merit in the
argument that the appellant did number knumber that the original
of ex. p-3
was forged. the original of ex. p-3 was a verified claim
in favour of the appellant himself and numberody companyld knumber
better than the appellant whether he had in fact got his
claim verified or number. the evidence from the ministry of
rehabilitation is that numberclaim of the appellant was ever
verified. in the circumstances the inference must be that
the appellant knumber that the original of ex. p-3 was a
forged document and used it as genuine. that the use was
dishonest is also clear on the facts of this case for the
appellant intended thereby to get an allotment to which he
was number entitled and thus make a wrongful gain for himself.