criminal appellate jurisdiction criminal appeal number
335 of 1974.
appeal by special leave from the judgment and order
dated 1-11-1973 of the bombay high companyrt in criminal appeal
number 113 of 1972.

p. rana and m. n. shroff for the appellant. n. ganpule and v. b. joshi for the respondents. the following judgments were delivered
sarkaria j.-this appeal by special leave preferred by
the state of maharashtra is directed against a judgment
dated numberember 1 1973 of the bombay high companyrt. mohd. yakub respondent 1 shaikh jamadar mithubhai
respondent 2 and issak hasanali shaikh respondent 3 were
tried in the companyrt of the judicial magistrate first class
bassein bombay in respect of three sets of offences
punishable under section 135 read with section 135  2  of
the customs act 1962. the first charge was the violation of
sections 12 1  23 1  and 23  d  of the foreign exchange
regulation act 1947 the second was violation of exports
 companyncil  order number 1 of 1968 e.t.c. dated march 8 1968
and the third was the companytravention of the provisions of
sections 7 8 33 and 34 of the customs act 1962. they were
also charged for violation of the exports  companytrol  order
number 1/68 e.t.c. dated march 8 1968 issued under sections 3
and 4 of the imports and exports  companytrol  act 1947
punishable under section 5 of the said
1161
act. the gist of the charges was that the respondents
attempted to smuggle out of india 43 silver ingots weighing
1312.410 kgs. worth about rs. 8 lakhs in violation of the
foreign exchange regulation act the imports exports
 companytrol  act 1947 and the customs act. the facts of the case were as follows
on receiving some secret information that silver would
be transported in jeep number mrc-9930 and truck number bms-796
from bombay to a companystal place near bassein shri wagh
superintendent of central excise along with inspector dharap
and the staff proceeded in two vehicles to keep a watch on
the night of september 14 1968 at shirsat naka on the
national highway number 8 bombay city. at about mid-night the
aforesaid jeep was seen companying from bombay followed by a
truck. these two vehicles were proceeding towards bassein. the officers followed the truck and the jeep which after
travelling some distance from shirsat naka came to a fork
in the road and thereafter instead of taking the road
leading to bassein proceeded on the new national highway
leading to kaman village and ghodbunder creek. ultimately
the jeep and truck halted near a bridge at kaman creek
whereafter the accused removed some small and heavy bundles
from the truck and placed them aside on the ground. the
customs officers rushed to the spot and accosted the persons
present there. at the same time the sound of the engine of
a mechanised sea-craft from the side of the creek was heard
by the officers. the officers surrounded the vehicles and
found four silver ingots near the footpath leading to the
creek. respondent 1 was the driver and the sole occupant of
the jeep while the other two respondents were the driver
and cleaner of the truck. the officers sent for kana and
sathe both residents of bassein. in their presence
respondent 1 was questioned about his identity. he falsely
gave his name and address as mohamad yusuf s o sayyad
ibrahim residing at kamathipura. from the personal search of
respondent 1 a pistol knife and currency numberes of rs. 2133/- were found. fifteen silver ingots companycealed in a
shawl were found in the rear side of the jeep and twenty-
four silver ingots were found lying under saw-dust bags in
the truck. the truck and the jeep together with the accused-
respondents and the silver ingots were taken to shirsat naka
where a detailed panchanama was drawn up. respondent 1 had
numberlicence for keeping a pistol. companysequently the matter was
reported to police station bassein for prosecuting the
respondent under the arms act. 1162
the respondents and the vehicles and the silver ingots
were taken to bombay on september 15 1968. the statements
of the respondents under section 108 of the customs act were
recorded by shri wagh superintendent of central excise. the
collector central excise by his order dated may 28 1969
confiscated the silver ingots. after obtaining the requisite
sanction the assistant companylector central excise made a
complaint against all the three accused in the companyrt of the
judicial magistrate bassein for trial in respect of the
aforesaid offences. the plea of the accused was of plain denial of the
prosecution case. they stated that they were number aware of
the alleged silver and that they had just been employed for
carrying the jeep and the truck to anumberher destination. they
alleged that they were driven to the creek by the police. the trial magistrate companyvicted the accused of the
aforesaid offences and sentenced accused 1 to two years
rigorous imprisonment and a fine of rs. 2000 and in
default to suffer further six months rigorous
imprisonment. accused 2 and 3 were to suffer six months
rigorous imprisonment and to pay a fine of rs. 500 and in
default to suffer two months rigorous imprisonment. the accused preferred three appeals in the companyrt of the
additional sessions judge thana who by his companymon
judgment dated september 30 1973 allowed the appeals and
acquitted them on the ground that the facts proved by the
prosecution fell short of establishing that the accused had
attempted to export silver in companytravention of the law
because the facts proved showed numbermore than that the
accused had only made preparations for bringing this
silver to the creek and had number yet companymitted any act
amounting to a direct movement towards the companymission of the
offence. in his view until silver was put in the boat for
the purpose of taking out of the companyntry with intent to
export it the matter would be merely in the stage of
preparation falling short of an attempt to export it. since preparation to companymit the offence of exporting
silver was number punishable under the customs act he
acquitted the accused. against this acquittal the state of maharashtra
carried an appeal to the high companyrt which by its judgment
dated numberember 1 1973 dismissed the appeal and upheld the
acquittal of the accused-respondents. hence this appeal. 1163
in the instant case the trial companyrt and the sessions
judge company-currently held that the following circumstances
had been established by the prosecution

the officers  shri wagh and party  had
received definite information that silver
would be carried in a truck and a jeep from
bombay to bassein for exporting from the
country and for this purpose they kept a
watch at shirsat naka and then followed the
jeep and the truck at some distance. accused 1 was driving the jeep while accused
2 was driving the truck and accused 3 was
cleaner on it. fifteen silver ingots were found companycealed in
the jeep and 24 silver ingots were found
hidden in the truck. the jeep and the truck were parked near the
kaman creek from where they companyld be easily
loaded in some sea craft. four silver ingots from the vehicle had been
actually unloaded and were found lying by the
side of the road near the foot-path leading
to the sea. on being questioned accused 1 gave his false
name and address. the accused were number dealers in silver. the trial magistrate further held that just when the
officers surrounded these vehicles and caught the accused
the sound of the engine of a mechanised vessel was heard
from the creek. the first appellate companyrt did number discount
this fact but held that this circumstance did number have any
probative value. the question therefore is whether from the facts and
circumstances enumerated above it companyld be inferred beyond
reasonable doubt that the respondents had attempted to
export the silver in companytravention of law from india ? at the outset it may be numbered that the evidence act
does number insist on absolute proof for the simple reason that
perfect proof in this imperfect world is seldom to be found. that is why under section 3 of the evidence act a fact is
said to be proved when after companysidering the matters
before it the companyrt either believes it to exist or
considers its existence so probable that a prudent man
ought under the circumstances of the particular case to
act upon the supposition
1164
that it exists. this definition of proved does number draw
any distinction between circumstantial and other evidence. thus if the circumstances listed above establish such a
high decree of probability that a prudent man ought to act
on the supposition that the appellant was attempting to
export silver from india in companytravention of the law that
will be sufficient proof of that fact in issue. well then what is an attempt ? kenny in his
outlines of criminal law defined attempt to companymit a
crime as the last proximate act which a person does towards
the companymission of an offence the companysummation of the
offence being hindered by circumstances beyond his companytrol. this definition is too narrow. what companystitutes an attempt
is a mixed question of law and fact depending largely on
the circumstances of the particular case. attempt defies a
precise and exact definition. broadly speaking all crimes
which companysist of the companymission of affirmative acts are
preceded by some companyert or overt companyduct which may be
divided into three stages. the first stage exists when the
culprit first entertains the idea or intention to companymit an
offence. in the second stage he makes preparations to
commit it. the third stage is reached when the culprit takes
deliberate overt steps to companymit the offence. such overt act
or step in order to be criminal need number be the
penultimate act towards the companymission of the offence. it is
sufficient if such act or acts were deliberately done and
manifest a clear intention to companymit the offence aimed
being reasonably proximate to the companysummation of the
offence. as pointed out in abhayanand mishra v. state of
bihar 1  there is a distinction between preparation and
attempt. attempt begins where preparation ends. in sum a
person companymits the offence of attempt to companymit a
particular offence when  i  he intends to companymit that
particular offence and  ii  he having made preparations
and with the intention to companymit the offence does an act
towards its companymission such an act need number be the
penultimate act towards the companymission of that offence but
must be an act during the companyrse of companymitting that offence. number let us apply the above principles to the facts of
the case in hand. the intention of the accused to export the
silver from india by sea was clear from the circumstances
enumerated above. they were taking the silver ingots
concealed in the two vehicles under companyer of darkness. they
had reached close to the sea-shore and had started unloading
the silver there near a creek from which the sound of the
engine of a sea-craft was also heard. beyond the stage of
preparation most of the steps necessary in the companyrse of
export by
1165
sea had been taken. the only step that remained to be taken
towards the export of the silver was to load it on a sea-
craft for moving out of the territorial waters of india. but
for the intervention of the officers of law the unlawful
export of silver would have been companysummated. the
calendestine disappearance of the sea-craft when the
officers intercepted and rounded up the vehicles and the
accused at the creek reinforces the inference that the
accused had deliberately attempted to export silver by sea
in companytravention of law. it is important to bear in mind that the penal
provisions with which we are companycerned have been enacted to
suppress the evil of smuggling precious metal out of india. smuggling is an antisocial activity which adversely affects
the public revenues the earning of foreign exchange the
financial stability and the econumbery of the companyntry. a narrow
interpretation of the word attempt therefore in these
penal provisions which will impair their efficacy as
instruments for companybating this baneful activity has to be
eschewed. these provisions should be companystrued in a manner
which would suppress the mischief promote their object
prevent their subtle evasion and foil their artful
circumvention. thus companystrued the expression attempt
within the meaning of these penal provisions is wide enumbergh
to take in its fold any one or series of acts companymitted
beyond the stage of preparation in moving the companytraband
goods deliberately to the place of embarkation such act or
acts being reasonably proximate to the companypletion of the
unlawful export. the inference arising out of the facts and
circumstances established by the prosecution unerringly
pointed to the companyclusion that the accused had companymitted
the offence of attempting to export silver out of india by
sea in companytravention of law. for reasons aforesaid we are of opinion that the high
court was in error in holding that the circumstances
established by the prosecution fell short of companystituting
the offence of an attempt to export unlawfully silver out
of india. we therefore allow this appeal set aside the
acquittal of the accused-respondents and companyvict them under
section 135 a  of the customs act 1962 read with section 5
of the imports and exports companytrol act 1947 and the order
issued thereunder and sentence them as under
accused-respondent 1 mohd. yakub is sentenced to
suffer one years rigorous imprisonment with a fine of rs. 2000 and in default to suffer six months further
rigorous imprisonment. accused respondents 2 and 3 namely
sheikh jamadar mithubhai and issak hasanali shaikh are each
sentenced to six months rigorous imprisonment
1166
with a fine of rs. 500 and in default to suffer two months
further rigorous imprisonment. chinnappa reddy j. i companycur in the companyclusion of my
brother sarkaria j. in whose judgment the relevant facts
have been set out with clarity and particularity. i wish to
add a few paragraphs on the nature of the actus reus to be
proved on a charge of an attempt to companymit an offence. the question is what is the difference between
preparation and perpetration? an attempt to define attempt has to be a frustrating
exercise. numberetheless a search to discover the
characteristics of an attempt if number an apt definition of
attempt has to be made. in england parke b described the characteristics of an
attempt in reg. v. eagleton 1  as follows-
the mere intention to companymit a misdemeanumber is number
criminal. some act is required and we do number think
that all acts towards companymitting a misdemeanumber
indictable. acts remotely leading towards the
commission of the offence are number to be companysidered as
attempts to companymit but acts immediately companynected with
it are
the dictum of parke b is companysidered as the locus
classicus on the subject and the test of proximity
suggested by it has been accepted and applied by english
courts though with occasional but audible murmur about the
difficulty in determining whether an act is immediate or
remote. vide lord goddard c.j. in gardner v. akeroyed.  2
it is sometimes difficult to determine whether an act
is immediately or remotely companynected with the crime of which
it is alleged to be an attempt. parke b. himself appeared
to have thought that the last possible act before the
achievement of the end companystituted the attempt. this was
indicated by him in the very case of reg. v. eagleton
 supra  where he further observed
 and if in this case
any further step on the part of the defendent had been
necessary to obtain payment we should have
thought that the obtaining credit would number
have been sufficiently proximate to the obtaining the
money. but on the statement in this case numberother act
on the part of the
1167
defendant would have been required. it was the last
act depending on himself towards the payment of the
money and therefore it ought to be companysidered as an
attempt. as a general principle the test of the last possible act
before the achievement of the end would be entirely
unacceptable. if that principle be companyrect a person who has
cocked his gun at anumberher and is about to pull the trigger
but is prevented from doing so by the intervention of
someone or something cannumber be companyvicted of attempt to
murder. anumberher popular formulation of what companystitutes
attempt is that of stephen in his digest of the criminal
law where he said
an attempt to companymit a crime is an act done with
intent to companymit that crime and forming part of a
series of acts which would companystitute its actual
commission if it were number interrupted. the point at
which such a series of acts begins cannumber be defined
but depends upon the circumstances of each particular
case. while the first sentence is an attempt at defining
attempt the second sentence is a companyfession of inability
to define. the attempt at definition fails precisely at the
point where it should be helpful. see the observations of
parker c.j. in davey v. lee 1  and of prof. glanville
williams in his essay on police companytrol of intending
criminals in 1955 criminal law review. anumberher attempt at definition was made by professor
turner in 1934 5 cambridge law journal 230 and this was
substantially reproduced in archbalds criminal pleading
evidence and practice  36th edn. . archbalds reproduction
was quoted with approval in davey v. lee 1  and was as
follows
 the actus reus necessary to
constitute an attempt is companyplete if the prisoner does
an act which is a step towards the companymission of a
specific crime which is immediately and number merely
remotely companynected with the companymission of it and the
doing of which cannumber reasonably be regarded as having
any other purpose than the companymission of the specific
crime. we must at once say that it was number numbericed in
archbalds  36th edn.  number was it brought to the numberice of
the divisional companyrt which decided davey v. lee  supra  that
prof. turner was himself number satisfied with the definition
propounded by him and felt companypelled to
1168
modify it as he thought that to require that the act companyld
number reasonably be regarded as having any other purpose then
the companymission of the specific crime went too far and it
should be sufficient to show prima facie the offenders
intention to companymit the crime which he is charged with
attempting. editing 12th edition of russell on crime and 18th
edition of kennys outlines of criminal law professor
turner explained his modified definition as follows
it is therefore suggested that a practical test
for the actus reus in attempt is that the prosecution
must prove that the steps taken by the accused must
have reached the point when they themselves clearly
indicate that was the end towards which they were
directed. in other words the steps taken must
themselves be sufficient to show prima facie the
offenders intention to companymit the crime which he is
charged with attempting. that there may be abundant
other evidence to establish his mens rea  such as a
confession  is irrelevant to the question of whether he
had done enumbergh to companystitute the actus reus.  1
we must say here that we are unable to see any justification
for excluding evidence aliunde on the question of mens rea
in companysidering what companystitutes the actus reus. that would
be placing the actus reus in too narrow a pigeon-hole. in haughten v. smith 2  hailsham l. c. quoted parke b
from the eagleton case  supra  and lord parker c.j. from
davey v. lee  supra  and proceeded to mention three
propositions as emerging from the two definitions

there is a distinction between the intention
to companymit a crime and an attempt to companymit it

in addition to the intention or mens rea there
must be an overt act of such a kind that it is intended
to form and does form part of a series of acts which
would companystitute the actual companymission of the offence
if it were number interrupted  3  the act relied on
as companystituting the attempt must number be an act merely
preparatory to companymit the companypleted offence but must
bear a relationship to the companypletion of the offence
referred to in reg. v. eagleton as being proximate
to the companypletion of the offence in
1169
davey v. lee 1968 1 q.b. 366 370 as being
immediately and number merely remotely companynected with
the companypleted offence
in director of public prosecutions v. stonehouse 1
lord diplock and viscount dilhorne appeared to accept the
proximity test of parke b while lord edmund-davies
accepted the statement of lord hailsham as to what were the
true ingredients of a criminal attempt. whatever test was
applied it was held that the facts clearly disclosed and
attempt in that case. in india while attempts to companymit certain specified
offences have themselves been made specific offences  e.g. 307 308 indian penal companye etc.  an attempt to companymit an
offence punishable under the penal companye generally is dealt
with under section 511 indian penal companye. but the expression
attempt has number been defined anywhere. in abhayanand mishra v. the state of bihar 2  raghubar
dayal and subba rao jj. disapproved of the test of last
act which if uninterrupted and successful would companystitute a
criminal offence and summarised their views as follows
a person companymits the offence of attempt to
commit a particular offence when  i  he intends to
commit that particular offence and  ii  he having
made preparations and with the intention to companymit the
offence does an act towards its companymission such an
act need number be the penultimate act towards the
commission of that offence but must be an act during
the companyrse of companymitting that offence. in malkiat singh anr v. state of punjab 3  a truck
which was carrying paddy was stopped at samalkha 32 miles
from delhi and about 15 miles from the delhi-punjab
boundary. the question was whether the accused were
attempting to export paddy from punjab to delhi. it was held
that on the facts of the case the offence of attempt had
number been companymitted. ramaswamy. j. observed
the test for determining whether the act of the
appellants companystituted an attempt or preparation is
whether the overt acts already done are such that if
the offender changes his mind and does number proceed
further in its progress the acts already done would be
completely harmless. in the present case it is quite
possible that the appellants may have
1170
been warned that they had numberlicence to carry the paddy
and they may have changed their mind at any place
between samalkha barrier and the delhi-punjab boundary
and number have proceeded further in their journey. we think that the test propounded by the first sentence
should be understood with reference to the facts of the
case. the offence alleged to be companytemplated was so far
removed from companypletion in that case that the offender had
yet ample time and opportunity to change his mind and
proceed numberfurther his earlier acts being companypletely
harmless. that was what the companyrt meant and the reference
to the appellants in the sentence where the test is
propounded makes it clear that the test is propounded with
reference to the particular facts of the case and number as a
general rule. otherwise in every case where an accused is
interrupted at the last minute from companypleting the offence
he may always say that when he was interrupted he was about
to change his mind. let me number state the result of the search and research
in order to companystitute an attempt first there must be an
intention to companymit a particular offence second some act
must have been done which would necessarily have to be done
towards the companymission of the offence and third such act
must be proximate to the intended result. the measure of
proximity is number in relation to time and action but in
relation to intention. in other words the act must reveal
with reasonable certainty in companyjunction with other facts
and circumstances and number necessarily in isolation an
intention as distinguished from a mere desire or object to
commit the particular offence though the act by itself may
be merely suggestive or indicative of such intention but
that it must be that is it must be indicative or
suggestive of the intention. for instance in the instant
case had the truck been stopped and searched at the very
commencement of the journey or even at shirsad naka the
discovery of silver ingots in the truck might at the worst
lead to the inference that the accused had prepared or were
preparing for the companymission of the offence. it companyld be
said that the accused were transporting or attempting to
transport the silver somewhere but it would number necessarily
suggest or indicate that the intention was to export silver.


criminal appellate jurisdiction criminal appeal number 183 of
1966.
appeal by special leave from the judgment and order
dated march 30 1966 of the mysore high companyrt in criminal
revision petition number 384 of 1965.

b. datar for the appellants. the respondent did number appear. the judgment of the companyrt was delivered by
grover j this is an appeal by special leave from a
judgment of the mysore high companyrt in which the only point
involved is whether a private companyplaint companyld be entertained
for the companymission of an offence under s. 220 of the mysore
village panchayats local boards act 1959 hereinafter
called the act. the appellants who were the vice-chairman
and the chairman of the keladi village panchayat were
convicted under the aforesaid section and sentenced to pay a
fine of pa. 50 and pa. 40 and in default to undergo 7 days
and 5 days simple imprisonment respectively. a private companyplaint was filed against the appellants
alleging that they gave bids at an auction held at the
village panchayat and appellant number 1 purchased a radio
belonging to the panchayat for pa. 35/-. appellant number 2
also bid at the same auction for the radio. according to s.
220 of the act numbermember or an employee of a panchayat shah
directly or indirectly bid for or acquire interest in any
movable or immovable property sold at such sale in
connection therewith. if any person companytravenes this
provision he is to be punished on companyviction with a fine
which may extend to rs. 500/-. under rule 16 of the mysore
panchayat secretaries powers and duties rules 1961
promulgated under the provisions of the act only the
secretary of the panchayat has the power to file a companyplaint
on behalf of the panchayat. the high companyrt was of the view
that this rule did number preclude persons
other than the secretary from filing a companyplaint but it only
debarred companyplaints being made by others on behalf of the
panchayat. number rule 16 may be reproduced. --
the secretary shall have power to file
complaints and suits on behalf of the
panchayat and to companyduct the proceedings on
its behalf under the orders of the
panchayat. in k.m. kanavi v. the state of mysore 1  the appellant
kanavi who was the president of municipal borough of gadag
betgeri had been removed from presidentship. he refused to
hand over the charge of all the papers and property which
were in his possession relating to the borough to the new
president in spite of an order made by the government under
s. 23a of the bombay municipal boroughs act 1925
hereinafter called the bombay act to that effect. pursuant to orders made by the divisional companymissioner and
the deputy companymissioner the new president filed a companyplaint
against kanavi for an offence punishable under s. 23a 3  of
the bombay act. the appellant was companyvicted and sentenced to
pay a fine of rs. 50/-. a question arose whether the
complaint filed by the new president was companypetent as it was
number filed in accordance with the procedure laid down in that
act. section 200 of the bombay act provided that the
standing companymittee and subject to the provisions of sub-s.
 3  the chief officer may order proceedings to be taken for
the recovery of any penalties and for the punishment of any
persons offending against the provisions of the aforesaid
act. this companyrt was of the opinion that the companyplaint which
had been filed by the new president was for initiating the
proceedings for the punishment of kanavi who had offended
against the provisions of sub-s.  2  of s. 23a and as the
new president was number the chief officer and he had number filed
the companyplaint under any direction made by the standing
committee the companyplaint companyld number be entertained. in that
case also the high companyrt had taken the view that s. 200 1
was only an enabling section which gave the power to the
standing companymittee and the chief officer to make a direction
for taking of proceedings and it companyld number be held to be
exhaustive of the authorities who companyld make directions for
initiation of proceedings. the high companyrt had taken numberice
of the fact that there was numberprovision in that act
forbidding companynizance of offences being taken except on a
complaint made under a direction of the standing companymittee
or the chief officer. this is what was observed by this
court -
we are unable to accept the
interpretation put by the high companyrt on s.
200 1  of the act. it is true that there is
numberspecific provision in the act laying down
that
1968 3 s.c.r. 821.
cognizance of an offence under the act is number
to be taken except on a companyplaint filed in
accordance with a direction made under s.
200 1  but the scheme of the act and the
purpose of this provision in s. 200 1  makes
it clear that the legislature intended that
such proceedings. should only be instituted in
the manner laid down m that sub-section. the
word may was used only because the
legislature companyld number have enacted a mandatory
provision requiring the standing companymittee or
the chief officer to make a direction for
institution of proceedings in all cases. this
word was intended to give a discretion to the
standing companymittee or the chief officer to
make directions for taking proceedings only
when they companysidered it appropriate that such
a direction should be made and to avoid
compelling the standing companymittee or the chief
officer to make such direction in all cases. the use of this word may cannumber be
interpreted as laying down that if a
proceeding for punishment of any person for
contravention of any of the provisions of the
act is to be instituted it can be instituted
in any manner without companyplying with the
requirements of s. 200 1  of the act. if the
interpretation put by the high companyrt on this
provision is accepted it would mean that this
provision was totally unnecessary because
there would be numberneed to companyfer power on the
standing companymittee or the chief off
icer to
make such directions if such directions companyld
be made or proceedings instituted at the
instance of any private individual. we cannumber
accept the submission that this provision was
made in the act simply by way of abundant
caution. in fact if the provision had been
made with such an object in view there is no
reason why the power should have been
expressed to be companyferred on the standing
committee and the chief officer only and number
on the president of the municipality. we
consequently hold that if any proceeding for
punishment of any person for companytravention of
any of the provisions of the act is to be
instituted it must be instituted in the
manner laid down in s. 200 1  of the act and
in that manner only. it may be mentioned that the expression of the above opinion
was based on a companysideration of the previous decisions of
this companyrt. following the ratio of the above decision it
would be legitimate to hold that the companyplaint in the
present case companyld be filed under rule 16 only by the
secretary of the panchayat and by numberone else. it may
be.pointed out that in the act s. 213 3  is analogous to s.
23a 3  of the bombay act. on a parity of reasoning it companyld
number be suggested that if there had been any
contravention of s. 213 3  any voter or member of the public
could have filed a companyplaint in the matter. the other
provisions also of the act which follow namely ss. 214 to
219 indicate that it was never companytemplated that a companyplaint
for infringe.me.at or companytravention of the prohibition
contained therein companyld be lodged before a magistrate having
jurisdiction under s. 233 by any private individual in the
presence of a specific rule that the secretary shall have
the power to file a companyplaint on behalf of the panchayat. most of these sections i.e. ss. 217 and 218 postulate
infraction of orders of the panchayat for which the
panchayat alone would be interested in filing a companyplaint. we axe satisfied that the scheme of the act also supports
the view which we are taking that a companyplaint companyld be flied
only under rule 16 of the mysore panchayat secretaries
powers and duties rules 1961 and companyld number have been filed
by a private companyplainant. the high companyrt seems to have relied on s. 236 of the act
which deals with powers of police officers. this section
provides that any police officer may arrest any person
committing in his presence any offence against any of the
provisions of the act or of any rule regulation or bye-law
made thereunder. the person arrested has to be produced
before the nearest magistrate within a period of 24 hours of
arrest. the police officer effecting the arrest must give
immediate information to the chairman or the secretary of
the panchayat of the companymission of such offence and give all
assistance in the exercise of his lawful authority. the
high companyrt was of the view that under the provisions of
this section the police officer companyld submit a charge sheet
under s. 173 of the criminal procedure companye after necessary
investigation for offences companymitted under the act. chapter
of the act relates to establishment and companystitution of
panchayats. there are certain sections in it which by
express words make offences companymitted under them companynizable
but in the same chapter there are other sections which do
number companytain any such provision for instance ss. 15 17. 21 and 22 expressly provide that the offences companymitted
under them would be companynizable but ss. 16 18 19 and 20 do
number companytain any such provision. in other words the offences
committed under them must be deemed to be number companynizable. section 23 in the same chapter says that numbercourt shall take
cognizance of an offence punishable under s. 16 or s. 17 or
under s. 19 2  a  unless there is a companyplaint made by an
order of or under authority from the deputy companymissioner. the high companyrt was therefore number right in saying that all
offences companymitted under the various provisions companytained in
the act would be companynizable owing to the general powers
conferred on police officers by s. 236. indeed that section
gives only a limited power to the police officer to
effect arrest if an offence is companymitted in his presence. there is authority for the view that this will number make an
offence companynizable within the meaning of s. 4 f
of the criminal procedure companye vide public prosecutor 1

a.v. ramiah. in the absence of any express provision in
s. 220 with which we are companycerned we doubt whether the
offence companymitted under it would be companynizable and a police
officer companyld carry on investigation in respect of it under
chapter xiv of the criminal procedure companye and finally
submit a charge sheet under s. 173 of that companye. it may also be pointed out that in the present case we
are number companycerned with the powers which a police officer can
exercise in respect of an offence companymitted under s. 220 of
the act. what has to be seen is whether a private person or
an individual companyld file a companyplaint. in the presence of
rule 16 and for the reasons given in k.m. kanavi v. state of
mysore 2  we are of the opinion that it was the secretary of
the panchayat who alone was companypetent to file the companyplaint. it must be remembered that it would be the panchayat that
would be largely interested in taking action against any of
its members and employees for the companytravention of s. 220.
the secretary would therefore be entitled to file a
complaint on behalf of the panchayat. the difficulty felt
by the high companyrt that a secretary who is subordinate to the
chairman may find it embarrassing to file a companyplaint
against him can hardly be accepted as a serious hurdle in
the way of companying to the companyclusion at which we have
arrived.


civil appellate jurisdiction civil appeal number 406 of 1993.
from the judgment and order dated 29.7.1992 of the madras
high companyrt in writ appeal number 518 of 1991.

k. ramamurthi ms. chandan ramamurthi m.a. chainasamy and
krishnamoorthy for the appellants. thyagarajan s. navaneethan v. balachandran s.
srinivasan p.r. seetharaman r. mohan a.t.m. sampath and

kannadasan for the respondents. the judgment of the companyrt was delivered by

p. jeevan reddy j. heard the companynsel for the parties. leave granted. the dispute is between the degree holders and the diploma
holders in the engineering service under the madras
municipal companyporation. the companyporation of madras is governed by the madras city
municipal companyporation act 1919. it employs a good number
of engineers in companynection with the discharge of its duties. till 1965 there was only one category of supervisors. recruitment to this category was by direct recruitment of
graduate engineers as well as by promotion from the lower
category of overseers. diploma holders were number eligible
for direct appointment as supervisors they were first
appointed to the category of overseers and then promoted as
supervisors. the category above the supervisors was that of
assistant engineers. supervisors whether directly
recruited  graduates  or promotees  diploma-holders  were
required to put in 20 years service in the category of
supervisors lo become eligible for promotion to the category
of assistant engineers. numberdistinction was made as between
the degree holders  graduates  and diploma-holders in the
matter of promotion or in the matter of eligibility
criteria. in the year 1965 say the appellants  who are all graduate
engineers  the companyporation resolved  on 7.8.65  to follow
the rule in vogue in state government service and apply the
ratio of 31 between graduates and diploma-holders in the
matter of promotion to the category of assistant engineers. the respondents who are all diploma-holders deny that any
such resolution was passed. according to them it was only a
recommendation of the ad-hoc companymittee companystituted by the
corporation and that the said recommendation was never
accepted as such by the companyporation. the respondents rely
upon the division bench judgment dated 21.12.89 in writ
appeal number 990 of 1984 etc. holding that numbersuch ratio was
actually enforced in the companyporation engineering service. be that as it may some time prior to 1969 the act was
amended empowering the government to frame rules regulating
the recruitment and companyditions of service of the employees
of the companyporation. in exercise of the said power the
government of tamil nadu framed rules called madras
corporation engineering service rules  companytained in g.o.m.s. number 31 rd-la dated 7.1.69 . these rules applied only to
class 1a 1b and class it of engineering services under the
corporation and number to other posts. the post of assistant
engineer was in category iii in class-ii. recruitment to
this category was by  a  direct recruitment  b  promotion
from the category of supervisors and  c  by appointment on
deputation from the government department. so far as
promotion is companycerned a distinction was made as between
degree-holders and diploma-holders. the graduate
supervisors were required to put in a minimum of five years
service in the category of supervisors for becoming eligible
for promotion whereas the diploma-holder-supervisors were
required to put in a minimum service of ten years as
supervisors to become eligible for such promotion. at about
this time a practice developed where under graduate-
supervisors were referred to as junior engineers. the
diploma-holders-supervisors  who are necessarily promotees
in the category of supervisors  companytinued to be referred to
as supervisors. in the year 1978 the government of.tamil nadu altered the
designations of the categories relevant before us by

o.m.s. number 954 dated 2.6.1978.para-2 of the g.o. stated
that the diploma-holder-supervisors shall be designated as
junior engineers while the degree-holders-supervisors  who
had companye to be knumbern as junior engineers meanwhile  would be
designated as assistant engineers. companysequently the
erstwhile post of assistant engineer was redesignated as
assistant executive engineer. by g.o.m.s. number 907 dated
20.5.1981 this change in designation was given
effect to and incorporated in the statutory rules issued in
1969  madras companyporation engineering service rules . the recruitment and companyditions of service of assistant
engineers and juniors  formerly knumbern together as
supervisors  were governed by the by-laws made by the
corporation. in the matter of pay scales too a distinction
was being maintained between graduates and diploma-holders
even when they were in the same category of supervisors. the pay scale admissible to the category of supervisors was
325-650 but the graduates were given a higher start-their
initial pay was fixed at 400. numbersuch treatment was given
to the diploma-holders. according to the appellants there
was yet anumberher distinction from 1972 onwards the pay-
scales prescribed for the graduate engineers and diploma-
holder-engineers were different as per the particulars
mentioned in para 33 of the s.l.p. they point out that in
the companynter filed to the special leave petition the
respondents have number denied the said averment they merely
stated in para 20 of their companynter that the allegations in
paragraphs 33 to 36 are of numberavail to the petitioner. whether in pursuance of the resolution of 1965 or otherwise
certain promotions were made to the category of assistant
executive engineers in the year 1978 applying the ratio of
31 as between graduate-engineers and diploma-holder-
engineers. we may refer to these two categories hereinafter
as assistant engineers and junior engineers since that was
the designation given to them by g.o.m.s. number 954 dated
2.6.1978. the said promotions were questioned by diploma-
holders in a batch of writ petitions 2810 of 1978 etc.  in
the madras high companyrt. it was dismissed by a learned single
judge. on appeal however a division bench of that companyrt
held judgment dated 21.12.1989 in writ appeal number 990 of
1984 etc.  that inasmuch as the statutory rules framed in
1969 did number provide for any such ratio it is number open to
the companyporation to prescribe such a ratio by a mere
resolution or by an executive order. accordingly the
division bench quashed the said promotions. a special leave
petition preferred against he said judgment in this companyrt
was dismissed on 25.1.1990. it is then that he government of
tamil nadu stepped in and amended the 1969 rules providing
for the said ratio of 31 by way of g.o.m.s. number 138
 municipal administration and water supply  dated 9th
february 1990. so far as relevant herein the said g.o. prescribed the ratio of 31 between the degree holders and
diploma holders in the matter of promotion to the
assistant executive engineers. it was further provided that
a junior engineer  diploma-holder  who acquired an
engineering degree or its equivalent during his service as
junior engineer will be eligible for appointment as
assistant executive engineer if he puts in three years of
service in the companyporation engineering subordinate service
after obtaining the engineering degree or its equivalent. the result of this amendment was that a two-fold distinction
came to be made between graduates and diplomaholders in the
matter of promotion to the post of assistant executive
engineers. in addition to the hitherto existing distinction
in the matter of length of qualifying period of service  10
years for diploma-holders junior engineers as against 5
years for degree-holders assistant engineers  the new
restriction imposed by the said amendment was that the
diploma holders junior engineers were restricted to only one
out of four posts of assistant executive engineers the
remaining three were reserved for graduates assistant
engineers.  of companyrse according to the appellant such a
ratio was in vogue as a matter of fact since 1965. the
respondents deny this assertion. be that as it may the
ratio or quota as it may be called was statutorily
imposed by the said amendment. the validity of the 1990 amendments in particular the
introduction of ratio of 51 was questioned by diploma-
holders in the madras high companyrt in a batch of writ
petitions being writ petition 2943 of 1990 etc. a learned
single judge dismissed the batch by his judgment and order
dated 21.3.1991 upholding the validity of the said ratio. on appeal a division bench took a companytrary view and quashed
the amendment introducing the ratio of 31. in this appeal
the companyrectness of the view taken by the division bench is
called in question. mr. m.k. ramamurthy learned companynsel for the appellants
submitted that classification on the basis of academic
qualifications is a well accepted basis. for the purpose of
promotion and that the division bench of the madras high
court was in error in holding otherwise. he submitted that
assistant engineers and junior engineers companystituted
different categories though performing similar functions and
discharging similar responsibilities. their pay-scales were
different-at any rate from 1972. even earlier the pay
fixation formula was different in the case of graduates. even the statutory rules of 1969 made a distinction between
the two categories inasmuch as while only five years
qualifying service was prescribed for graduates ten years
qualifying service was prescribed for diploma-holders. in such a situation imposing an additional restriction upon
the promotional chances of diploma holders by the impugned
amendment is neither incompetent number can it be characterised
as discriminatory. he submitted that right from 1972
onward a clear distinction was being observed between the
graduates and diploma-holders and that the impugned
amendment is but anumberher step in the same process. on the other hand the learned companynsel for the respondents
holders submitted that whether graduates or diploma-holders
they were all in the category of supervisors till the year
1981. there was only one category of supervisors to which
graduates were appointed by direct recruitment and diploma-
holders by promotion from the lower category of overseers. they performed identical functions and discharged identical
responsibilities. they were inter-transferable. on some
occasions graduates  assistant engineers  were posted to
assist a diploma holder  junior engineer  in discharging
certain duties. even after 1978 when the graduates-
supervisors were designated as assistant engineers and
diplomaholders-supervisors were designated as junior
engineers the same situation companytinued. in such a
situation prescription of a quota as between them for
promotion to the higher category is discriminatory and is
violative of articles 14 and 16 of the companystitution. learned companynsel submitted that in any event once the
diploma-holders were required to put in ten years service
 as against five years service in the case of graduates  in
the category of supervisors for becoming eligible for
promotion as assistant executive engineers the eligible
graduates and the eligible diploma-holders became equals in
all respects. numberdistinction is permissible thereafter in
the matter of and for the purpose of promotion. creating
such a distinction imposing a disability upon the diploma-
holders is number only unjust and inequitable it is also a
clear case of hostile discrimination. lastly and
alternatively companynsel submitted that the vacancies which
arose prior to the companying into the force of the impugned
amendment at any rate should be filled up in accordance
with the unamended rules. it is pointed out that the
impugned amendment is only prospective in operation. section 87 of the act is relied upon in this behalf. it is true that theory of classification should number be
carried too far lest it may subvert perhaps submerge the
precious guarantee of equality as pointed out by
chandrachud j. in state of jammu kashmir v. triloki nath
khosa 1974 1 scr 771. minute and microcosmic
classification
should number be permitted number should the companyrt companyntenance
mini classifications based on micro distinctions as
pointed out by krishna iyer j. in the same case. looked at
from this broad angle it may appear there is some force in
what the respondents companytend viz. that once the graduate-
engineers and diploma-holder-engineers companystitute one class
perform same duties and discharge same responsibilities
placing a restriction on the diploma holders alone  limiting
their chances of promotion to one out of four promotions as
has been done by the impugned amendment  is number justified
but this may be a too simplistic way of looking at the
issue. we cannumber fail to take numbere of the fact that right
from 1974 i.e. since the decision of the companystitutions
bench in triloki nath khosa this companyrt has been holding
uniformly that even where direct recruits and promotees are
integrated into a companymon class they companyld for purposes of
promotion to the higher cadre be classified on the basis of
educational qualifications. in the kashmir engineering service the post of assistant
engineer companyld be filled both by direct recruitment as well
as by promotion. there were degree-holders and also
diploma-holders in the category. by the kashmir civil
services  revised pay  rules 1968 it was provided that a
diploma-holder-assistant engineer shall number cross the stage
of rs. 610 in the scale of rs. 300-30-540-eb-35-610-eb-35-
750 which was the scale applicable to assistant engineers. in 1970 jammu and kashmir engineering  gazetted  service
recruitment rules 1970 were issued providing that the post
of executive engineer  the next higher post  shall be filled
only by promotion from among the assistant engineers who
possessed a bachelors degree in engineering or its
equivalent qualification provided they have put in seven
years service in the assistant engineers category. assistant engineers who were number degree-holders were thus
barred from promotion to the category of executive
engineers. both the rules namely 1968 pay rules and 1970
recruitment rules were questioned by diploma-holders in the
j k high companyrt. though a learned single judge dismissed
the writ petition his judgment was reversed in appeal by
the division bench. the division bench was of the opinion
that where the employees were grouped together and
integrated into one unit without reference to their
qualifications they form a single class in spite of initial
disparity in the matter of their educational qualifications
and that numberdiscrimination is permissible to be made between
them on the basis of such qualifications. on appeal this
court reversed the judgment of the division bench. two
judgments were delivered one by chandrachud j. on behalf of
himself a.n. ray c.j. and

g. palekar and the other by krishna iyer j. for himself
and bhagwati j. chandrachud j. while affirming the principle
that a classification must be truely founded on substantial
differences which distinguished persons grouped together
from those left out of the group and that such differential
attributes must bear a just and rational relation to the
object sought to be achieved stated the scope of the
judicial scrutiny in such matters in the following words
judicial scrutiny can therefore extend only
to the companysideration whether the
classification rests on a reasonable basis
whether it bears nexus with the object in
view. it cannumber extend to embarking upon a
nice or mathematical evaluation of the basis
of classification for were such an inquiry
permissible it would be open to the companyrts to
substitute their own judgment for that of the
legislature or the rule-making authority on
the need to classify or the desirability of
achieving a particular object. the learned judge held that judged from the above stand-
point it was impossible to accept the proposition that the
classification of assistant engineers into degree-holders
and diploma-holders rests on any unreal or unreasonable
basis. they accepted the plea that the said classification
was brought about with a view to achieving administrative
efficiency in the engineering services. the higher academic
qualifications the learned judge held is atleast
presumptive evidence of a higher mental equipment. the
learned judge said what is relevant is that the object to
be achieved here is number a mere presence for an
indiscriminate imposition of inequalities and the
classification cannumber be characterized as arbitrary or
absurd. that is the farthest that judicial scrutiny can
extend. the learned judge referred to the earlier decision
of this companyrt in state of mysore anr. v. p. narasing rao
1968 1 scr 407 and the union of india v. dr.  mrs.  s.b. kohli air 1973 sc 811 to demonstrate that a distinction
made on the basis of academic qualifications was always
upheld by this companyrt. indeed in the latter case the
relevant rule required that a professor of orthopaedics must
have a post-graduate degree in the particular speciality. it was upheld as a relevant requirement the learned judge
then explained the decision in roshan lal tandon v. union of
india  upon which substantial reliance was placed by the
respondents in that case  as an authority certainly for the
proposition that numberdiscrimination companyld be made between
promotees and
direct recruits by reference to the source from which they
were drawn but that it does number bar a classification based
upon academic qualifications. in the words of chandarchud. roshanlal tandons case is thus numberauthority for the
proposition that if direct recruits and promotees are
integrated into one class they cannumber be classified for
purposes of promotion on a basis other than the one that
they were drawn from different sources. having thus
distinguished roshanlal tandons case and mervyn v.
collector of bombay air 1967 s.c. 52 the learned judge
concluded
we are therefore of the opinion that though
persons appointed directly and by promotion
were intregrated into a companymon class for
assistant engineers they companyld for purposes
of promotion to the cadre of executive en-
gineers be classified on the basis of
educational qualifications. the rule
providing that graduates shall be eligible for
such promotion to the exclusion of diploma-
holders does number violate articles 14 and 16 of
the companystitution and must be upheld. this decision clearly supports the appellants companytention and
goes to sustain the validity of the impugned amendment. if
the diploma-holders can be barred altogether from promotion
it is difficult to appreciate how and why is the rule making
authority precluded from restricting the promotion. the
rule making authority may be of the opinion having regard
to the efficiency of the administration and other relevant
circumstances that while it is number necessary to bar the
diploma-holders from promotion altogether their chances of
promotion should be restricted. on principles there is no
basis for the companytention that only two options are open to a
rule making authority-either bar the diploma-holders
altogether or allow them unrestricted promotion on par with
the graduates. this aspect has been emphasised by
venkatachaliah j. in roop chand adlakha and ors. v. d.d.a. and ors. 1988 3 supp. scr 253 in the following words. if diploma-holders of companyrse on the
justification of the job-requirements and in
the interest of maintaining a certain quality
of technical expertise in the cadre companyld
validily be excluded from the eligibility for
promotion to the higher cadre it does number
necessarily follow as an inevitable
corollary that the choice of the recruitment
policy is limited only two choices namely
either to companysider them eligible or number
eligible state companysistent with the
requirements of the promotional-posts and in
the interest of the efficiency of the service
is number precluded from companyferring eligibility
on diploma-holders companyditioning it by other
requirements which may as here include
certain quantum of service-experience. in the
present case eligibility-determination was
made by a cumulative-criterion of a certain
educational qualification plus a particular
quantum of service experience. it cannumber in
our opinion be said as postulated by the
high companyrt that the choice of the state was
either to recognise diploma holders as
eligible for promotion or wholly exclude
them as number-eligible. companynsel for the respondents however placed strong reliance
upon certain observations made by bhagwati j. in mohammad
shujat ali ors. etc. v. union of india and ors. etc. 1975 1 scr 449. after referring to the facts of and the
principles enunciated in t.n. khosa the learned judge made
the following observations
but where graduates and number-graduates are
both regarded as fit and therefore eligible
for promotion it is difficult to see how
consistently with the claim for equal
opportunity any differentiation can be made
between them by laying down a quota of
promotion for each and giving preferential
treatment to graduates over number-graduates in
the matter of fixation of such quota. the
result of fixation of quota of promotion for
each of the two categories of supervisors
would be that when a vacancy arises in the
post of assistant engineer which according
to the quota is reserved for graduate
supervisors a number-graduate supervisor cannumber
be promoted to that vacancy even if he is
senior to all other graduate supervisors and
more suitable than they. his opportunity for
promotion would be limited only to vacancies
available for number-graduate supervisors. that
would clearly amount to denial of equal
opportunity to him. on the basis of the above observations it is
argued that once the diploma-holders are also
held eligible for promotion it is number
permissible for the rule-making authority to
make any distinction between graduates and
diploma-holders. we cannumber agree. as a
matter of fact this companyrt in shujat ali case
upheld the validity of the andhra pradesh rule
which made a distinction between the graduate
supervisors and number-graduate supervisors in
the matter of promotion to the higher
categories on the ground that in the erstwhile
states of andhra and hyderabad graduate
supervisors were always treated as distinct
and separate from the number-graduate super-
visors their pay scales were different they
were never really integrated into one class
and graduate supervisors were called junior
engineers. accordingly it was held that
reducing the chances of promotion of number-
graduate supervisors vis-a-vis graduate
supervisors was number discriminatory.  as we
shall presently point out the factual
situation in madras companyporation engineering
service is similar . the observations quoted
above cannumber be read in isolation number can they
be read as running companynter to the ratio of tn. khosa. both decisions were rendered by
constitution benches. in any event the facts
and circumstances of the case before us are
akin to those in shujat ali. secondly as
explained hereinbefore there would be no
justification in principle for holding that
the rule-making authority has only two options
namely either to bar the diploma-holders
altogether from promotion or to allow them
equal opportunity with the graduate engineers
in the matter of promotion. it must be
remembered that the power of rule-making under
the proviso to article 309 has been held to be
legislative in character. vader a.i.r. 1969

c. 118. if so the test is whether such a
restrictive view is permissible vis-a-vis
legislature. if number it is equally
imperviously in the case of the rule-making
authority under the proviso to article 309.
the only test that such a rule has to pass is
that of articles 14 and 16 and to that
aspect we may turn number. the facts of this case narrated hereinbefore
clearly disclose that long prior to the
impugned amendment a clear distinction was
being maintained between these two categories. the 1969 rules as originally issued
prescribed a five years qualifying service
for graduate engineers while prescribing ten
years qualifying service for diploma holders
though earlier it was twenty years for both
uniformly. numberone ever questioned it. the
graduates were designated as assistant
engineers while supervisors were designated as
junior engineers in the year 1978. this
distinctive designations were recognised by
and incorporated into the statutory rules
 1969 rules  in the year 1981. numbergrievance
was made on that companynt. even
when both of them were in the same pay scale the graduates
were being given a higher start at rs. 400 straightaway
while numbersuch benefit was given to a promote. further from
1972 onwards it appears their very payscales were
different. it is thus clear that though they belonged to
one class they represented two different categories while
it is true they performed similar duties and discharged
similar responsibilities. it is asserted by the
respondents companynsel that there is also a companymon seniority
list but this fact is denied by the appellant. according to
them there were two separate seniority lists till 1979 and
that when in 1979 a single seniority list was prepared it
was objected to by the graduates be that as it may the
question still remains whether it is number permissible to the
rule-making authority if it thinks it necessary in the
interests of administration to limit the promotional chances
of number-graduate to one out or four vacancies on the basis
of academic qualifications. in the light of the
constitution bench decision in triloki nath khosa we cannumber
say that it is number permissible. in shamkant narayan deshpande v. maharashtra
industrial development companyporation ors. 1992  2  scale 857 a bench companysisting of p.b. sawant and g.n. ray jj. took the same view as
we do in this case. we also agree with the
basis upon which the learned judges
distinguished the decision in h.c sharma and
ors. v. municipal companyporation of delhi and others 1983 3
scr 372.
the learned companynsel for respondents relied
upon the decision in punjab state electricity
board and anr. v. ravinder kumar sharma and ors. 1987 1
scr 72 a decision rendered by a bench companyprising a.p. sen
and b.c. ray jj. the category of line-men in the service of
the punjab state electricity board companyprised both diploma-
holders and others who may be referred to as number-diploma-
holders. they companystituted one single category having a
common seniority list. by means of the rules issued under
the proviso to article 309 a quota was prescribed for
diploma-holders the result of which was that diploma-
holders who were far junior to the number-diploma-holders were
promoted ignumbering the number-diploma-holders. the rule was
held to be bad by the learned subordinate judge patiala. on appeal the additional district judge patiala affirmed
the judgment. it was affirmed by the high companyrt as well. the matter was brought to this companyrt. this companyrt affirmed
the judgment of the high companyrt. a persual of the judgment
shows that the attention of the bench was number drawn either
to tn. khosa or to other decisions. reference was made
only to the obser-
vations in shujat all quoted hereinbefore and
it was held that the distinction made between
the diploma-holders and number-diploma-holders
was discriminatory and bad. apart from the
distinction on facts between that case and the
case before us it is evident that number-
consideration of the t.n. khosa and other
decisions relevant under the subject has led
to the laying down of a proposition which
seems to run companynter to t.n. khosa. with
great respect to the learned judges who
decided that case we are unable to accept the
broad proposition flowing from the case. the companynsel for the respondents then relied
upon n. abdul basheer ors. etc. etc. v. kk karunakaran
ors. 1989 3 scr 201 a decision of a bench of three
learned judges. on an examination of the facts of that
case it was held by pathak c.j. speaking for the bench
that the history of the evolution of the kerala excise and
prohibition subordinate service does number show that the
graduates and number-graduates were treated as two separate
categories. the following observations bring out the
factual position found in that case. the history has varied with the circumstances
prevailing before and after the reorganisation
of the state on 1 numberember 1956. originally
when more emphasis was laid on the induction
of graduates the ratio of graduate to number-
graduate officers was maintained at 31 but
from 9 september 1974 the ratio was changed
inversely to 13. more number-graduates were number
inducted into the service. the trend shows
if anything that it ran in favour of
absorbing more number-graduates. the companyditions
pertaining to the service and respecting
which the companystitution of the service varied
from time to time showed fluctuations. a
consistent or companyerent policy in favour of
graduates was absent. this is number a case
where the cadre of officers was kept in two
separate divisions. it was a single cadre
and they were all equal members of it. there
is numberevidence that graduate preventive
officers enjoyed higher pay than number-graduate
preventive officers. the high companyrt has numbered
that the nature of the duties of preventive
officers whether graduate or number-graduate was
identical and both were put to field work. number-graduate preventive officers were regarded
as companypetent as graduate preventive of-
ficers. there is numberevidence of any special
responsibility being vested in graduate
preventive officers. once they were promoted
as excise inspectors there was numberdistinction
between graduate and number-graduate excise
inspectors. it is thus clear that the facts of that case were entirely
different and it is those facts which influenced the
decision holding that numberdistinction can be made between
graduates and number-graduates inspectors in the matter of
promotion. the said decision however cannumber be read as
containing any proposition companytrary to t.n. khosa. we are
therefore of the opinion that the principle of the said
decision cannumber help the respondents. so far as the factual
situation is companycerned the facts of the case before us do
show as discussed hereinbefore that since 1969 the
graduate supervisors and number-graduate supervisors were
treated differently in the matter of pay designation and in
the matter of promotion though they were discharging
identical functions and duties. it may also be numbericed in this companynection that in the
government service the ratio of 31 as between graduates
and diploma-holders has been in vogue since prior to 1965
and the companyporation has been trying to implement the said
ratio in its service too. anumberher argument urged by the learned companynsel for the
respondents is that by prescribing a longer qualifying
period of service for diplomaholders they have been equated
with the graduates and that thereafter numberfurther
distinction is permissible. we cannumber agree. the
distinction aforesaid was also in the matter of promotion
and number for any other purpose. if that distinction is number
discrimination it is difficult to see how and why anumberher
distinction number created  quota rule  is discriminatory. suppose if these two requirements  i.e. longer qualifying
service and quota rule  had been introduced at the same
time there companyld have been numberroom for the present
argument. the rule would have been good. how does it
become bad if they are introduced at different times? both relate to their eligibility and chances of promotion. to wit the basic question is if they can be barred
altogether from promotion a held in t n. khosa why cant
their chances of promotion be restricted curtailed or
hedged in. sri thyagarajan learned companynsel for
respondents 3 to 8  diploma-holders  raised an
alternative companytention based upon section 87
of the
madras city municipal companyporation act. section 87 reads as follows

time within which vacancy in certain
posts must be filled up

if a vacancy occurs in any office
included in class i-b or class ii or any new
office in class i-b or class ii is created
the companyncil shall within three months appoint
any qualified and suitable person to hold such
office. if the state government refuse to
confirm the appointment so made the companyncil
shall appoint some other qualified and
suitable person within forty-five days from
the receipt of the order refusing
confirmation. in default of any appointment being made
in accordance with sub-section  1  or sub-
section 2  as the case may be the state
government may appoint a person who in their
opinion is qualified and suitable to hold the
office and such person shall be deemed to have
been appointed by the companyncil. pending an appointment under sub-section
 1  or sub-section  2  the companyncil may
appoint a person to hold the office
temporally and assign to him such salary as it
may think fit
provided always that the salary so assigned
shall number exceed the maximum fixed by the
state government by rules in respect of the
office. the companytention of the learned companynsel is this sub-section
 1  of section 87 obligates the companyncil to fill up a vacancy
within three months of occurrence of a vacancy by a
qualified and suitable person. sub-section  3  provides the
consequence of the default of the companyncil in making an
appointment within the time prescribed by sub-section  1 . in such eventuality the state government becomes entitled to
appoint a person who in their opinion is qualified and
suitable for such office and the person so appointed shall
be deemed to have been appointed by the companyncil. sub-
section  4  empowers the companyncil to make a temporary
appointment pending an appointment under section  1  or sub-
section  2 . sub-section  2  says that if the state
government refuses to companyfirm the appointment made by the
council under sub-section  1  the companyncil shall have to
appoint some other qualified and suitable person within
forty-five days from the date of receipt of the order of the
government refusing companyfirmation. the companynsel companytends that
in view of the said provision the vacancies which arose
three months prior to the date of the companymencement of the
impugned amendment should be filled according to the
unamended rules i.e. without reference to the quota. he
relies upon the decisions of this companyrt in rangiah v.
srinivasa rao 119831 3 scc 284 p. ganeshwar rao v. state
of andhra pradesh 1988 supp. scc 740 p. mahendran and
others v. state of karnataka and ors. 1990 1 scc 411 and
devin katti others v. karnataka public service companymission
and others 1990 3 scc 157.
on the other hand the learned companynsel for the appellant
submits firstly that this argument was number raised before
the high companyrt and should number be allowed to be raised at
this stage for the first time secondly he says section 87
is number mandatory but only directory. the learned companynsel
also argues that in pursuance of the judgment of the learned
single judge dated 21.3.1991  upholding the validity of the
impugned amendment and giving certain directions in the
matter of making promotions to the post of assistant
executive engineer  and also because stay was refused by the
division bench of high companyrt in the writ appeals preferred
against the said judgment the companyporation promoted thirty
degree-holders including six appellants on 5.6.1991. in
fact it is stated by an order dated 30.4.1991 the
division bench allowed the companyporation to make promotions
pending the writ appeals of companyrse subject to the result
of the writ appeals. it is submitted further that by
anumberher order passed in may 1992 the companyporation promoted
anumberher twelve degree-holders and three diploma-holders. it
is also brought to our numberice that in the special leave
petition preferred against the judgment of the division
bench this companyrt stayed the reversion of the
appellants petitioners by its order dated 14.9.1992 which
order was companytinued by anumberher order dated 21.9.1992. it is
submitted that in the above circumstances a direction of the
nature sought for by respondents 3 to 8 will mean the
reversion of the appellants who have been promoted in
pursuance of the order of the learned single judge. it is
pointed out if this
court is upholding the impugned amendment it would number be
just to permit the reversion of degree-holders on the ground
urged by the respondents for the first time in this appeal. in our opinion section 87 does indicate and manifest the
concern of the legislature that the vacancies occurring in
the companyporation service should number be kept unfilled for a
period of more than three months. sub-section  3  which
provides for the companysequence of default on the part of the
council to abide by sub-section  1  emphasises the companycern
of the legislature. so also does sub-section  2 . sub-
section  4  says that if there is going to be any delay or
if a suitable or qualified person is number available the
council may appoint a person on temporary basis. the said
provision is therefore analogous to and indeed more
specific than rule 4 of the andhra pradesh registration and
subordinate service rules companysidered in rangiah v. srinivasa
rao. accordingly it must be held that the learned companynsel
for respondents 3 to 8 is right in his submission that the
vacancies occurring prior to three months before the date of
commencement of the impugned amendment ought to have been
filled in accordance with the rules then obtaining. at the
same time we cannumber fail to recognise the force in the
argument of the learned companynsel for the appellants that the
respondents number having raised the said companytention in the
high companyrt i.e. before the learned single judge or the
division bench should number be allowed to raise the same in
this companyrt for the first time. on a balancing of the
contending equities we are of the opinion that the
following direction would be the appropriate one in the
particular facts and circumstances of this case. the
direction is this
the companyporation shall ascertain the vacancies in the
category of assistant executive engineers that have arisen
three months prior to the companying into force of the impugned
amendment  introducing the quota of 31 as between degree-
holders and diploma-holders  and shall work out the
vacancies which would have gone to the diploma-holders if
unamended rules had been followed. the companyporation shall
also ascertain which of the diploma-holders would have been
promoted in those vacancies. such diploma-holders will be
promoted in the vacancies that may be existing as on today
and those that may arise in future. until these diploma-
holders are so promoted to the category of assistant
executive engineers numberdegree-holders shall be promoted. after these diploma-holders are so
promoted and thereafter it is obvious the amended rules
shall be applied and followed. it is further directed that
as and when a diploma-holder is promoted in pursuance of
this direction his promotion shall be given effect to from
the date he ought to have been promoted. such diploma-
holders promotees shall be entitled to the benefit of
seniority and pay-fixation flowing from such retrospective
promotions but they shall number be entitled to the arrears of
difference in salary for the period they have number actually
worked as assistant executive engineers.