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Appeal No.122 of 1956.
Appeal from the judgment and order dated March 5, 1954, of the Bombay High Court in Appeal from its Original Jurisdiction Misc.
Application No. 1 of 1954.
H. N. Sanyal, Addl.
Solicitor General, G. N. Joshi and R. H. Dhebar, for the appellants.
N. A. Palkhivala, section N. Andley, J. B. Dadachanji, P. L. Vohra and Rameshwar Nath, for the respondent.
April 28.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
This is an appeal by the Income tax Officer, Companies Circle I (1), Bombay and the Union of India and it raises a short question about the construction of section 35 of the Income tax Act read with section 1, sub section
(2) and section 13 of the Indian Income tax (Amendment) Act, 1953 (XXV of 1953).
It arises in this way.
The Income tax Officer, by his assessment order made on October 9, 1952, for the assessment year 1952 53, assessed the respondent, the Bombay Dyeing and Manufacturing Co. Ltd., under the Act.
In the said assessment order the respondent, was given credit for Rs. 50,603 15 0 as representing interest at 2% on tax paid in advance under section 18A of the Act.
This credit was given to the respondent in pursuance of the provisions contained in section 18A, sub section
(5) of the Act as it then stood.
On May 24, 1953, the Amendment Act came into force.
Section 1, sub section
(2) of the Amendment Act provides that " subject to any special provision made in this behalf in the Amendment Act, it shall be deemed to have come into 705 force on the first day of April, 1952 ".
By section 13 of the Amendment Act, a proviso was added to section 18A (5) of the Act.
The effect of the amendment made by the insertion of the said proviso to section 18A (5) was that the.
assessee was entitled to get interest at 2% not on the whole of the advance amount of tax paid by him as before but only on the difference between the payment made and the amount at which the assessee was assessed to tax under the regular assessment under section 23 of the Act.
After the Amendment Act was passed, the first appellant exercised his power under section 35 of the Act and purported to rectify the mistake apparent from the record in regard to the credit for Rs. 50,603 15 0 allowed by him to the assessee.
The first appellant held that the assessee was really entitled to a credit of only Rs. 21,157 6 0 by way of interest on tax paid in advance as a result of the retrospective operation of the amendment made in section 18A (5) by the Amendment Act.
In accordance with this order a notice of demand under section 29 of the Act was issued against the assessee for the sum of Rs. 29,446 9 0 on the ground that the assessee had been given credit for this excess amount through mistake.
Aggrieved by this notice of demand, the respondent filed a petition in the High Court of Bombay on January 4, 1954, under article 226 of the Constitution praying for a writ against the appellants inter alia prohibiting them from, enforcing the said rectified order and the said notice of demand.
It appears that this petition was admitted by Tendolkar J. on January 6, 1954, and a rule issued on it.
Thereafter the said petition was referred to a Division Bench by the Hon 'ble the Chief Justice for final disposal.
Accordingly on March 5, 1954, the petition was heard by Chagla C. J. and Tendolkar J. and a writ was issued against the appellants.
The High Court held that section 35 of the Act had no application to the facts of the case because the mistake apparent from the record contemplated by the said section is not a mistake which is the result of the amendment of the law even though the amending law may be retrospective in operation.
In other words, in the opinion of the High Court, the 706 mistake mentioned by section 35 had to be apparent on the face of the order and it can only be judged in the light of the law as it stood on the day ,When the order was passed.
The appellants then applied for and obtained a certificate from the High Court on October 8, 1954; on their behalf it is urged ' that the High Court of Bombay has erred in law in taking the view that the appellant No. I was not entitled to rectify the mistake in question under section 35 of the Act.
Thus the short question which arises before us in the present appeal is whether an order which was proper and valid when it was made can be said to disclose a mistake apparent from the record if the said order would be erroneous in view of a subsequent amendment made by the Amendment Act when the Amendment Act is intended to operate retrospectively ? It is unnecessary to refer to the provisions of section 18A (5) as well as the provision of the proviso which was subsequently added by section 13 of the Amendment Act.
It is common ground that, in the absence of the subsequently inserted proviso, the assessee would be entitled to obtain a credit for Rs. 50,603 15 0.
It is also common ground that, if the subsequently inserted proviso covered the assessee 's case, he would be entitled to a credit only of Rs. 21,156 9 0.
It is thus obvious that the order giving the relevant credit to the assessee was valid when it was made and that it would be erroneous under the subsequent amendment.
Under these circumstances, was the first appellant justified in exercising his power of rectification under section 35 of the Act ? In deciding this question it would be necessary to determine the true legal effect of the retrospective operation of the Amendment Act.
Section 1, sub section
(2) of the Amendment Act expressly provides that subject to the special provisions made in the said Act it shall be deemed to have come into force on the first day of April 1952.
The result of this provision is that the amendment made in the Act by s, 13 of the Amendment Act must, by legal fiction, be deemed to have been included in the principal Act as from the first of 707 April, 1952, and this inevitably means that, at the time when the Income tax Officer passed his original order on October 9, 1952, allowing to the respondent credit for Rs. 50,603 15 0, the proviso added by section 13 of the Amendment Act must be deemed to have been inserted in the Act.
As observed by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. vs Finsbury Borough Council (1), " if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.
One of those in this case is emancipation from the 1939 level of rents.
The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs ".
Thus, there can be no doubt that the effect of the retrospective operation of the Amendment Act is that the proviso inserted by the said section in section 18A (5) of the Act would, for all legal purposes, have to be deemed to have been included in the Act as from April 1, 1952.
But it is urged for the respondent that the retrospective operation of the relevant provision is not intended to affect completed assessments.
It is conceded that, if any assessment proceedings in respect of the assessee 's income for a period subsequent to the first of April 1952 were pending at the time when the Amendment Act was passed, the proviso inserted by section 13 would govern the decision in such assessment proceedings; but where an assessment proceeding has been completed and an assessment order has been passed by the Income tax Officer against the assessee, such a completed assessment would not be affected and cannot be reopened under section 35 by virtue of the retrospective operation of the Amendment Act.
In support of this contention, reliance is placed on the observations of the Privy Council in Delhi Cloth and (1) , 132.
90 708 General Mills Co. Ltd. vs Income tax Commissioner, Delhi and Anr.
Lord Blanesburg who delivered the judgment of the Board referred to the Board 's earlier decision in the Colonial Sugar Refining Company vs Irving (2) where it was in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.
The learned Judge then added that " Their Lordships have no doubt that the provisions which, if applied retrospectively, would deprive of their existing finality orders which, when that statute came into force, were final, are provisions which touch existing rights.
" The argument for the respondent is that the assessee has obtained a right under the order passed by the Income tax Officer to claim credit for the specified amount under section 18A(5) and the said right cannot be taken away by the retrospective operation of section 13 of the Amendment Act.
The same argument is put in another form by contending that the finality of the order passed by the Incometax Officer cannot be impaired by the retrospective operation of the relevant provision.
In our opinion, this argument does not really help the respondent 's case because the order passed by the Income tax Officer under section 18A(5) cannot be said to be final in the literal sense of the word.
This order was and continued to be liable to be modified under section 35 of the Act.
What the Income tax Officer has purported to do in the present case is not to revise his order in the light of the retrospective amendment made by section 13 of the Amendment Act alone, but to exercise his power under section 35 of the Act; and so the question which falls to be considered in the present appeal.
centres round the construction of the expression "mistake apparent from the record " used in section 35.
That is why we think the principle of the finality of the orders or the sanctity of (1)[1927] L.R. 54 I.A. 421.
(2)[1905] A.C. 369.
709 the existing rights cannot be effectively invoked by the respondent in the present case.
The respondent then urged that the Amendment Act should not be given greater retrospective operation than its language and its general scheme render necessary.
This convention is based on the provisions of section 3, sub section
(2), section 7, sub section
(2) and section 30, sub section
(2) of the Amendment Act.
Where the Amendment Act intended that its provisions should affect even concluded orders of assessment it is expressly so provided.
Since section 13 does not specifically authorise the reopening of concluded assessments it should be held that its retrospective operation is not intended to cover such concluded assessments.
That in brief is the argument.
We are, however, not satisfied that this argument is wellfounded.
Let us examine the three provisions of, the Amendment Act on which the argument rests.
Section 3, sub section (1) of the Amendment Act makes several additions and modifications in section 4 of the principal Act.
Section 3, sub section (2) then provides that, the amendments made by sub cl.
(3) of cl.
(b) of sub section
(1) shall be deemed to be operative in relation to all assessments for any year whether such assessments have or have not been concluded before the com mencement of the Amendment Act of 1953.
It would be noticed that the main object of this sub section is to extend the retrospective operation of the relevant provisions of the Amendment Act beyond the first of April 1952 mentioned by section 1, sub section
(2) of the Amendment Act.
Since it was intended to provide for such further retrospective operation of the relevant provision the legislature thought it advisable to clarify the position by saying that the said extended retrospective operation would cover all assessments whether they had been completed or not before the commencement of the Amendment Act.
Section 7, sub section
(1) adds two provisos to section 9 of the principal Act by cls.
(a) and (b).
Sub section (2) of section 7 then lays down that the amendments made in cl.
(a) of sub section
(1) shall be deemed to be operative for any assessment for the year ending the 31st day of March, 1952, whether made before or after the commencement of this Act and, where any such 710 assessment has been made before such commencement, he Income tax Officer concerned shall revise it whenever necessary to give effect to this amendment.
The position under section 30, sub section
(2) of the Amendment Act is substantially similar.
By sub section
(1) of this section certain additions and amendments are made in the schedule to the principal Act by cls.
(a), (b), (c) and (d).
sub section
(2) then provides for the retrospective operation of the amendment made by sub section
(1) in terms similar to those used in section 7, sub section
It is clear that the Provisions in sections 7 and 30 are intended for the benefit of the assessees and so the legislature may have thought it necessary to confer on the Income tax Officer specific and express power to revise his orders in respect of the relevant assessments wherever necessary to give effect to the amendments in question.
The effect of this provision is to make it obligatory on he Income tax Officer to revise his original orders in he light of the amendments and also to confer on the assessee right to claim such revision.
It may be con ceded that in respect of the other retrospective provisions of the Amendment Act such a power to revise the earlier orders cannot be claimed or exercised by the Income tax Officer.
In other words, a distinction can be drawn between there two provisions of the Amendment Act and the rest in respect of the power which the Income tax Officer can purport to exercise to give effect to the amendments made by the Amendment Act.
Whereas, in respect of the amendments made by section 7 and section 30 of the Amendment Act, the Income tax Officer can and must revise his earlier orders covered by section 7, sub section
(2) and section 30, sub section
(2), such a power of revision has not been conferred on him in the matter of giving effect to the other amendments made in the Amendment Act.
Even so, we do not think it would be legitimate or reasonable to hold that the provisions of section 7(2) and section 30(2) lead to the infference that the retrospective operation of the other provisions of the Amendment Act is not intended to affect concluded assessments in any manner whatever.
In this connection, it would be pertinent to remember that the power to revise which has been conferred on 711 the Income tax Officer by section 7(2) and section 30(2) of the Amendment Act is distinct and independent of the power to rectify mistakes which the Income tax Officer can exercise under section 35 of the Act.
It is in the light of this position that the extent of the Income tax Officer 's power under section 35 to rectify: mistakes apparent from the record must be determined; and in doing so, the scope and effect of the expression " mistake apparent from the record " has to be ascertained.
At the time when the Income tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952.
If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603 15 0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record.
If a mistake of fact apparent from the record of the assessment order can be rectified under section 35, we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified.
Prima facie it may appear somewhat strange that an order which was good and valid when it was made should be treated as patently invalid and 'wrong by virtue of the retrospective operation of the Amendment Act.
But such a result is necessarily involved in the legal fiction about the retrospective operation of the Amendment Act.
If, as a result of the said fiction we must read the subsequently inserted proviso as forming part of section 18A(5) of the principal Act as from April 1, 1952, the conclusion is inescapable that the order in question is inconsistent with the provisions of the said proviso and must be deemed to suffer from a mistake apparent from the record.
That is why we think that the Income tax Officer was justified in the present case in exercising his power under section 35 and rectifying the said mistakes.
Incidentally we may mention that in Moka Venkatappaiah vs Additional Income Tax Officer, Bapatla (1), the High Court of Andhra has taken the same view.
(1)(1957) 712 In this connection it would be useful to refer to the decision of the Privy Council in the Commissioner of [Income Tax, Bombay Presidency and Aden vs Khemchand Ramdas (1).
In Khemchand 's case, the assessees were registered as a firm and they were assessed under section 23(4) on an income of Rs. 1,25,000 at the maximum rate.
Being a registered firm no super tax was levied.
A notice of demand was also made before March 1927.
On February 13, 1928, the Commissioner, in exercise of his powers under section 33, cancelled the order registering the assessee as a firm and directed the Income tax Officer to take necessary action.
The Income tax Officer accordingly assessed the firm to super tax on May 4, 1929.
The Privy Council held that the assessment made on January 17, 1927, was final both in respect of the income tax and super tax.
The fresh action taken by the Income tax Officer on May 4, 1929, was out of time though it had been taken in pursuance of the directions of the Commissioner and that the order of May 4, 1929, was one which the Income tax Officer had no power to make.
One of the points raised before the Privy Council was whether, under the relevant circumstances the Income tax Officer had power to make the impugned order in view of the provisions of sections 34 and 35 of the Act.
The Privy Council dealt with this question on the footing that the Commissioner 's order cancelling the registration had been properly made.
On this basis their Lordships thought that it was unnecessary to consider whether the. case would attract the provisions of section 34 " inasmuch as in Their Lordships ' opinion the case clearly would have fallen within the provisions of section 35 had the Income tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents ".
The judgment shows that Their Lordships took the view that looking at the record of the assessments made upon the respondents as it stood after the cancellation of the respondents ' registration and the order effecting the cancellation would have formed part of the record it would be apparent that a mistake (1)(1938) L.R. 65 I.A. 236. 713 had been made in stating that no super tax was leviable.
This decision clearly shows that the subsequent cancellation of the assessees ' registration was held by Their Lordships of the Privy Council to form part of the record retrospectively in the light of the said subsequent event, and the order was deemed to suffer from a mistake apparent from the record so as to justify the exercise of the rectification powers under section 35 of the Act.
It is because Their Lordships thought that section 35 would have been clearly applicable that they did not decide the question as to whether section 34 could also have been invoked.
This decision lends considerable support to the view which we are disposed to take about the true meaning and scope of the expression " the mistake apparent from the record " occurring in section 35.
We must accordingly hold that the High Court of Bombay was in error in coming to the conclusion that the notice issued by the Income tax Officer calling upon the respondent to pay 9the sum of Rs. 29,446 9 0 was not warranted by law.
The result is the order passed by the High Court issuing a writ against the appellant is set aside and the appeal is allowed with costs throughout.
Appeal allowed.

Output:
The Income tax Officer, by his order dated October 9, 1952, assessed the respondent for the assessment year 1952 53 and gave him credit for Rs. 50,603 15 0 as representing interest on tax paid in advance under section 18 A(5) of the Income tax Act.
On May 24, 1953, the Indian Income tax (Amendment) Act, 1953, came into force adding a proviso to s.18 A(5) of the Act to the effect that the assessee was entitled to interest not on the whole of the advance tax paid by him but only on the difference between the payment made and the amount assessed.
The Amendment Act provided that it shall be deemed to have come into force on April 1, 1952.
The Income tax Officer, acting under section 35 of the Act, rectified the assessment order holding that the assessee was entitled to a credit of only Rs. 21,157 6 0 by way of interest on tax paid in advance as a result of the retrospective operation of the amendment in section 18 A(5), and issued a notice of demand against the assessee for the balance of Rs. 29,446 9 0.
The assessee filed a petition in the High Court of Bombay.
under article 226 of the Constitution praying for a writ prohibiting the appellants from enforcing the rectified order and notice of demand.
The High Court issued the writ holding that section 35 was not applicable to the case as the mistake mentioned in section 35 had to be apparent on the face of the order and the question could only be judged in the light of the law as it stood on the day when the order was, passed: Held, that the Income tax Officer was justified in exercising his powers under section 35 and rectifying the mistake.
As a result of, the legal fiction about the retrospective operation of the Amendment Act, the subsequently inserted proviso must be read as.
forming part of section 18 A(5) of the principal Act as from April 1, 1952, and consequently the order of the income tax Officer dated October 9, 1952, was inconsistent with the provisions of the proviso, and suffered from a mistake apparent from the record.
Commissioner of Income tax, Bombay Presidency and Aden vs 704 Khemchand Ramdas, (1938) L.R. 65 I.A. 236 and Moka Venkatap paiah vs Additional Income tax Officer, Bapatla, (1957)32 I.T.R. 274, referred to.
The order passed by the Income tax Officer under section 18 A was not final in the literal sense of the word; it was and con tinued to be liable to be modified under section 35.
It is also not correct to say that the retrospective operation of the amended s.18 A(5) was not intended to affect concluded transactions.


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No. 2381 of 1968.
(From the Judgment and Order dated the 30th March 1965 of the Andhra Pradesh High Court in Appeal against Order No. 443 of 1963) P. Ram Reddy, K. Jayaram and K. Ram Kumar, for the appellant.
B.R. Agarwala, for respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by certificate arises out of execution proceedings in respect of a decree obtained by the respondents/decreeholders.
It appears that the 5th re spondent/decree holder Siddam Pedda Rami Reddi hereinafter referred to as "SP" Reddi obtained a decree in O.S. No. 15 of 1949 from the Court of Sub Judge Kurnool against the judgment debtor Pujari Subbarayudu hereinafter referred to as "Pujari" or "judgment debtor".
The 5th respondent had also obtained another money decree against Pujari in another suit being O.S. No. 19 of 1953.
The 5th respondent/decree holder filed Execution Proceedings No. 24 of 1953 in the Trial Court for selling the properties be longing to the judgment debtor in order to satisfy the decree in O.S. No. 15 of 1949 and he also applied for per mission to bid at the auction sale.
The first sale was held on October 12, 1954 at which the lands situated in villages Devanoor and Gudipadu were put to sale.
But this sale was set aside as there was some delay in payment of the sale price.
Consequently a second sale was held on March 2, 1955 at which the 5th respondent SPR Reddi purchased the lands situated in village Davanoor and the appellant/auc tion purchaser T.P.S. Reddy purchased the lands in village Gudipadu.
It is also not disputed that in the warrant of sale as also the sale proclamation, the decretal amount for which the properties were to be sold was mentioned as Rs. 16,715 8 0.
The sale of lands in village 694 Devanoor alone fetched a sum of Rs. 16,880/ at which the sale was knocked down.
Thus it would appear that the sale proceeds of the lands in village Devanoor were sufficient to satisfy the decretal amount mentioned in the proclamation of sale.
Despite this fact, the Court proceeded to sell the properties of the judgment debtor in village Gudipadu which fetched Rs. 12,500/ and which were purchased by the appellant/auction purchaser.
On April 20, 1955 the decree holder obtained an order from the Court for rateable distribution of the sale pro ceeds.
In other words, this order was passed by the Court not before the sale so that the entire decretal amount could have been mentioned in the sale proclamation but a few days after the sale had already taken place.
This is rather an important aspect of the matter which appears to have been completely overlooked by the Trial Court.
On March 31, 1955 the judgment debtor Pujari filed an application to set aside the sale on various grounds, namely, that the sale was vitiated by material irregularities which caused serious prejudice to the judgment debtor and that the properties sold by the Court were valuable properties and the same were grossly undervalued in the sale proclamation.
Finally it was contended by the judgment debtor that once the sale of the properties in village Devanoor was sufficient to satisfy the amount mentioned in the sale proclamation, the Court should have stopped the sale as required by the mandatory provisions of 0.21 r. 64 of the Code of Civil Procedure hereinafter referred to as the Code instead of continuing the sale of the properties in village Gudipadu.
The Trial Court, however, after heating the objections of the decree holder rejected the application of the judgment debtor.
Thereafter the judgment debtor preferred an appeal before the High Court which, while negativing the grounds taken by the judgment debtor regarding the material irregularities in the conduct of sale or the under valuation of the properties, accepted the plea of the judgment debtor regarding the non compliance with the provisions of 0.21 r. 64 of the Code.
The High Court held, and in our opinion rightly, that as the sale of the properties in village Devanoor fetched an amount which was sufficient to satisfy the amount mentioned in the sale warrant, the Executing Court was not justified in proceeding with the sale of the properties in village Gudipadu and should have stopped the sale.
The High Court accordingly accepted the plea of the judgment debtor and set aside the sale with respect to the properties situated in village Gudipadu, but granted a certificate to the appellant to file an appeal in this Court and hence this appeal before us.
In this appeal the facts are more or less undisputed and the only serious point argued by the appellant is that the High Court was in error in setting aside the sale because even if the entire decretal amount was not mentioned in the sale proclamation, that was at best an irregularity which did not cause any prejudice to the judgment debtor.
It was also argued by learned counsel for the appellant that the judgment debtor did not raise any objection before the Executing Court against continuing the sale of other proper ties situated in village Gudipadu.
It was next submitted that the 5th respondent/decreeholder had obtained another decree in O.S 19 of 1953 and the total 695 amount under the two decrees fully justified the selling of the properties in village Gudipadu also, particularly when the decree holder had taken an order from the Executing Court for rateable distribution of the sale proceeds.
It is true that the High Court has not considered this aspect of the matter, but in our opinion the contentions raised by the appellant are wholly untenable.
It is not disputed that the warrant of sale was prepared long after the 5th respondent/decreeholder had obtained the second decree in O.S. 19 of 1953 and yet no attempt was made by the decree holder to approach the Court for amending the decretal amount mentioned in the sale proclamation, so as to include the decretal amount not only of the decree in the first suit No. O.S. 15 of 1949 but also of the decree in the second suit in O.S. 19 of 1953.
In these circumstances, therefore, under the provisions of 0.21 r. 64 of the Code when the amount as specified in the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the sale of further items of the properties.
It is manifest that where the amount specified in the proclamation of sale for the recov ery of which the sale was ordered is realised by sale of certain items, the sale of further items should be stopped.
This, in our opinion, is the logical corollary which flows from O.21 r. 64.of the Code which may be extracted thus: "Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shah be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
" Under this provision the Executing Court derives jurisdic tion to sell properties attached only to the point at which the decree is fully satisfied.
The words "necessary to satisfy the decree" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation.
In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage.
In the instant case, we have already indicated that the sale of lands in village Devanoor alone fetched a sum of Rs. 16880 which was more than sufficient to satis fy the amount of Rs, 16,715 8 0 mentioned in the sate proclamation.
It is true that the decree holder had ob tained another decree in O.S. No. 19 of 1953, but there is nothing to show that the decree holder had approached the Court for including the second decretal amount in the proc lamation of sale.
In these circumstances, therefore, we are clearly of the opinion that the Executing Court was not justified, in the facts and circumstances of the present case, in selling the properties situated in village Gudipa du.
The fact that the judgment debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non compliance with the provisions of O. 21 r. 64 of the Code was sufficient to vitiate the same so far as the 696 properties situated in village Gudipadu were concerned.
For these reasons the contentions raised by counsel for the appellant must be overruled.
This, however, does not put an end to the issue, be cause the High Court, while setting aside the sale, has passed no order for adjusting the equities between the parties.
According to the appellant he had taken possession of the properties purchased by him at the auction sale and had made substantial improvements.
If the sale of these properties is to be set aside, the appellant will have to return these properties to the judgment debtor, but he will be entitled to receive the value of improvement 's made by him during the time he was in possession of those properties in addition to the return of the sum of Rs. 12,500/ .
The Executing Court will have to hold an inquiry into the matter and determine the value of the improvements made by the appellant which will have to be paid to him.
The appellant will not be entitled to any interest on the value of the improvements if he is found to be in possession of the properties.
If, however, the Executing Court finds that the auction purchaser was not in possession of the properties and the properties continued to be in possession of the judgment debtor, then the question of the value of improve ments will naturally not arise.
In that event the judg ment debtor will have to refund the amount of Rs. 12,500/ to the appellant with interest at the rate of 12% per annum from the date of sale upto the date of refund.
For these reasons, therefore, the appeal is dismissed with the modification indicated above and the case is sent back to the Executing Court to hold an inquiry into the matter.
In the special and peculiar circumstances of the present case, we make no order as to costs.
S.R. Appeal dismissed.

Output:
Order XXI Rule 64 of the C.P.C. lays down that "any court executing a decree may order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale, or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same.
" The 5th respondent/decree holder, S.P.R. Reddy obtained two decrees against the Judgment debtor Pujari Subbarayudu in two suits viz.; U.S. 15 of 1949 and O.S. 19 of 1953.
He filed execution proceedings No. 24 of 1953 in the trial Court for selling the properties belonging to the judgment debtor in Devanoor and Gudipadu villages in order to satis fy the decree in U.S. 15 of 1949.
He also applied for permission to bid at the auction sale.
In the auction sale held on March 2, 1955, the 5th respondent purchased the lands situated in village Devanoor for a sum of Rs. 16,880/ .
Despite the fact that the sale proceeds of the lands in village Devanoor alone was sufficient to satisfy the decretal amount mentioned in the warrant of sale and the proclamation of sale viz.; Rs. 16,715.50, The Court proceed ed to sell the properties of the judgment debtor in village Gudipadu which fetched Rs. 12,500/ and which were purchased by the appellant auction purchaser.
The judg ment debtor filed an application on March 31, 1955 to set aside the sale contending, inter alia, that once the sale of the properties in village Devanoor was sufficient to satis fy the amount mentioned in the sale proclamation, the Court should have stopped the sale as required by the mandatory provisions of Order XXI Rule 64 of the C.P.C.
The Trial Court rejected the said application; whereupon the decree holder on April 20, 1955 obtained an order from the court for rateable distribution of the sale proceeds.
In appeal the High Court accepted the plea of the judgment debtor regarding non compliance with the provisions of O.XXI Rule 64 C.P.C. and set aside the sale with respect to the proper ties situated in village Gudipadu.
Dismissing the appeal by certificate the Court, HELD: (1) The High Court rightly held that as the sale of the properties in village Devanoor fetched an amount mentioned in the sale warrant.
the Executing Court was not justified in proceeding with the sale of the properties in village Gudipadu and should have stopped the sale.
[694 F] (2) The logical corollary which flows from O.XXI Rule 64 of the Code is that where the amount specified in the proc lamation of sale for the recovery of which the sale was ordered is realised by sale of certain items, the sale of further items should be stopped.
[695 C D] (3) Under Order XXI Rule 64, the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied.
The words "necessary to satisfy the decree" clearly indicate that no s,de can be mentioned in the sale proclamation and is sufficient to satisfy the decree, no allowed beyond the decretal amount mentioned in the sale proclamation.
In other words.
where the sale fetches a price equal to or higher than the amount further sale should be held and the court should stop at that stage.
[695 E F] (4) In the facts and circumstances of the present case, there being nothing to show that the decree holder had approached the court for including the second decretal amount obtained in O.S. 19 of 1953 in the proclamation of sale, the 693 Executing Court was not justified in selling the properties situated in village Gudipadu.
The fact that the Judgment debtor did not raise an objection on this ground before the Executing Court rs not sufficient to put him out of court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non compliance with the provisions of O.XXI, Rule 64 of the Code was sufficient to vitiate the same so far as properties situated in village Gudapadu were concerned.
[695 G H, 696 A] (5) The Court remitted the matter to the Executing Court for an inquiry with the following directions: (i) The appellant will have to return the properties in village Gudipadu to the judgment debtor and he will be entitled to receive the value of improvements made by him during the time he was in possession of these properties, as determined by the Executing Court in addition to Rs. 12,500/ .
(ii) He will not he entitled to any interest on the value of the improvements, if he is found to be in posses sion of the property.
(iii) If the Executing Court finds that the auction purchaser was not in possession of the properties, the judgment debtor will have to refund the amount of Rs. 12,500/ to the appellant with interest at the rate of 12 per cent per annum from the date of sale upto the date of refund.
[696 B E]


Input:
tition Nos.
626 630 of 1979.
(Under Article 32 of the Constitution) Raghubir Malhotra, Yash Pal, N. D. Garg and section K. Bisaria for the Petitioners.
Miss. A Subhashini for Respondent No. 1.
section T. Desai, Miss Bina Gupta and Praveen Kumar for other Respondents.
The Judgment of the Court was delivered by PATHAK, J.
The petitioners have filed these writ petitions under article 32 of the Constitution challenging the validity of the Central Secretariat Service (Amendment) Rules, 1979 and of the Regulations made consequent thereto by the Union of India for the purpose of holding a departmental competitive examination limited to candidates belonging to the Scheduled Castes and Scheduled Tribes for filling up vacancies reserved for those categories in Grade I of the Central Secretariat Service.
The petitioners are permanent Section Officers in the Central Secretariat Service and almost all of them are presently officiating as Under Secretaries in different Ministries.
The next higher category in the Central Secretariat Service above the Section Officers ' Grade consists of Grade I posts.
Recruitment to the Grade I posts are made under Rule 12 of the Central Secretariat Service Rules; vacancies are filled by the promotion of, inter alia, permanent officers of the Section officers ' Grade who satisfy certain prescribed qualifications.
For the purpose of such promotion a select list is prepared.
1187 The preparation of the select list is governed by the Central Secretariat Service (Promotion to Grade I & Selection Grade) Regulations, 1964.
The select list is to be prepared once every year.
The names of eligible officers are arranged in a single list by the Department of Personnel & Administrative Reforms in the Cabinet Secretariat in accordance with the field of selection determined by the Selection Committee.
Pursuant to an Office Memorandum issued by the Department on 20th July, 1974, 15% and 7/12% of the promotion posts stand reserved for Scheduled Caste and Scheduled Tribe candidates respectively.
The petitioners along with several other officials were included in the field of selection for the purpose of drawing up the select list for the year 1977 for promotion to the Grade I posts.
After an interview by the Selection Committee, ninety one unreserved vacancies were filled from the first ninety one candidates in the general category.
Twenty seven vacancies, reserved for members of the Scheduled Castes and Scheduled Tribes, remained unfilled because no candidate belonging to those categories was found suitable for including in the field of selection.
For the purpose of filling those reserved vacancies, the Government of India decided to hold a limited departmental competitive examination confined to members of the Scheduled Castes and Scheduled Tribes.
Accordingly, the President enacted the Central Secretariat Service (Amendment) Rules, 1979 whereby sub rule (2a) was inserted below sub rule (2) of Rule 12 of the Central Secretariat Service Rules.
Regulations, described as the Central Secretariat Service Grade I (Limited Departmental Competitive Examination for filling the vacancies reserved for Scheduled Castes and Scheduled Tribes) Regulations, 1979 were promulgated providing for the holding of a limited departmental competitive examination, including a statement of the conditions of eligibility and indicating how the selection would take place on such examination.
The first such examination was scheduled for July, 1979.
The case of the petitioners in the writ petitions is that the Government of India was not empowered to fill up the reserved vacancies by recourse to a departmental competitive examination for candidates from the Scheduled Castes and Scheduled Tribes and that instead the Government should have dereserved the vacancies and made them available to candidates falling under the general category.
Had that been done, the petitioners say, they would have been considered for promotion and, having regard to their position in the select list, they allege that they stood a probable chance of being promoted to Grade I.
The petitioners pray that the amendment of 1188 Rule 12, Central Secretariat Service Rules and the framing of regulations pursuant to the amendment should be declared ultra vires, and alternatively the amendment of the rules and the framing of the related regulations be regarded as prospective only and not affecting the twenty seven reserved vacancies pertaining to the year 1977.
It is also prayed that the Union of India should be directed to take immediate steps for de reserving the twenty seven vacancies for the year 1977 and upon such de reservation the petitioners be considered for filling those twenty seven vacancies.
The reservation of vacancies for Scheduled Castes and Scheduled Tribes in promotion posts from class II to class I of Government services flows from the Department of Personnel & Administrative Reforms Office Memorandum No. 10/41/73 Estt.
(SCT), dated 20th July, 1974.
Paragraph 2 of the Office Memorandum spells out how the vacancies should be filled up.
The selection is made from among Scheduled Caste and Scheduled Tribe officers who are within the normal zone of consideration.
If candidates qualifying on the basis of merit with due regard to seniority do not fill up all the reserved vacancies, those remaining unfilled are to be filled by selecting candidates of the two communities who are in the zone of consideration irrespective of merit but subject to their being considered fit for promotion.
A select list is then prepared of all the selected officers, general as well as those belonging to Scheduled Castes and Scheduled Tribes, arranged in the order of merit and seniority according to principles laid down by the Ministry of Home Affairs.
For determining the number of vacancies to be reserved for Scheduled Castes and Scheduled Tribes in a select list, a separate roster prescribed by an Office Memorandum dated 22nd April, 1970 is followed.
Then, the relevant provision declares: "If, owing to non availability of suitable candidates belonging to Scheduled Castes or Scheduled Tribes, as the case may be, it becomes necessary to de reserve a reserved vacancy, a reference for de reservation should be made to this Department indicating whether the Scheduled Castes/Scheduled Tribes candidates eligible for promotion in reserved vacancies have been considered in the manner indicated in this Office Memorandum." A further provision prohibits the carrying forward of reservations from year to year in the event of an adequate number of Scheduled Caste and Scheduled Tribe candidates not being available in any particular year.
1189 Shri Raghubir Malhotra, appearing on behalf of the petitioners, opened with the contention that the reservation of vacancies for members of the Scheduled Castes and Scheduled Tribes by the Office Memorandum dated 20th July, 1974 was invalid.
It was urged that the Office Memorandum possessed at best the status of departmental instructions and could not amend the Central Secretariat Service Rules.
It is not, it was said, a case of administrative instructions filling any gap or area left uncovered by that body of rules but, on the contrary, it is a case where administrative instructions have been made inconsistently with the rules.
At the outset an objection was taken by the respondents to our entertaining the contention because, they point out, it is not a contention raised in the writ petitions and should not be allowed to be raised for the first time by way of oral submission in the course of arguments during the final hearing of the writ petitions.
It is not denied by learned counsel for the petitioners that the point has not been specifically and clearly raised in the writ petitions, but he asks us to consider it by reason of what he describes as "its fundamental importance".
We have carefully perused the writ petitions, and it is plain that the entire scope of the petitions is limited to challenging the validity and application of the Central Secretariat Service (Amendment) Rules, 1979 and the consequent regulations for holding a limited departmental competitive examination.
No relief has been sought for quashing the Office Memorandum dated 20th July, 1974.
No ground has been taken in the writ petitions assailing the validity of the Office Memorandum on the basis now pressed before us.
We are of opinion that the courts should ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well known process of formally applying for amendment.
We do not mean that justice should be available to only those who approach the court confined in a straight jacket.
But there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings.
If undue laxity and a too easy informality is permitted to enter the proceedings of a court it will not be long before a contemptuous familiarity assails its institutional dignity and ushers in chaos and confusion undermining its effectiveness.
Like every public institution, the courts function in the security of public confidence, and public confidence resides most where institutional discipline prevails.
Besides this, oral submissions raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice hold it entitled, of adequately preparing its response.
1190 We must, therefore, decline to entertain the point now raised concerning the validity of the Office Memorandum.
We shall now proceed directly to the principal contentions raised in the writ petitions.
It is first contended that sub rule (2a) of Rule 12, newly enacted in the Central Secretariat Service Rules, and the related Regulations, providing for a limited departmental competitive examination for members of the Scheduled Castes and Scheduled Tribes are invalid because the Central Government should have dereserved the twenty seven vacancies when it was found that suitable Scheduled Caste and Scheduled Tribe candidates were not available for inclusion within the field of selection.
There is no merit in this contention.
Whether or not reserved vacancies should be de reserved is a matter falling primarily within the administrative discretion of the Government.
There is no right in candidates seeking to fill vacancies belonging to the general category to insist on dereservation of reserved vacancies so long as it is possible in law to fill the reserved vacancies.
If at all, a claim in that behalf can arise only if no valid arrangement can be made for filling the reserved vacancies, and dereservation is called for by reason of the prohibition, in clause (v) of paragraph 2 of the Office Memorandum dated 20th July, 1974, against the carry forward of reservations from year to year in the event of an adequate number of Scheduled Caste and Scheduled Tribe candidates not being available in any particular year.
Before reaching this extremity, the Government acts wholly within its power in adopting an alternative arrangement for filling the reserved vacancies.
Dereservation as a process should be resorted to only when it is not reasonably possible, within the contemplation of law, to fill the reserved vacancies.
The process of dereservation would otherwise be antagonistic to the principle embodied in Article 16(4) and Article 46 of the Constitution.
Paragraph 10.4 in the Brochure on Reservation of Scheduled Castes and Scheduled Tribes in the Services, prepared by the Government of India, provides that dereservation should be proposed only when such a course becomes inevitable due to non availability of Scheduled Caste and Scheduled Tribe candidates for appointment against the reserved vacancies after having fully observed the procedure prescribed in this behalf and after applying relaxed standards in the case of such candidates.
Once a decision has been taken to reserve vacancies for a backward class of citizens, the programming effected to that end should not be disturbed unless the avenues for fulfilling it have been explored and have failed.
If the petitioners can succeed in showing that the provisions in the Central Secretariat Service Rules, and the consequent Regulations, 1191 providing for holding the limited departmental competitive examination are ultra vires and void and there is no evidence of any other appropriate arrangement for filling the reserved vacancies they may have a case for contending that as there is no prospect of finding suitable Scheduled Caste and Scheduled Tribe candidates for appointment to the reserved vacancies it is only reasonable that the Government should dereserve the vacancies in view of the prohibition against carrying them forward to the next year.
That takes us then to the validity of sub rule (2a) of rule 12 of the Central Secretariat Service Rules and the Regulations of 1979.
Their validity is challenged by the petitioners on the ground that they violate Articles 14, 15 and 16 of the Constitution inasmuch as they result in two avenues of promotion for Government servants belonging to the Scheduled Castes and Scheduled Tribes, while a single avenue only of promotion is available to other Government servants.
Ex facie, the contention must fail.
The two avenues of promotion pointed out by learned counsel for the petitioners consist in, one, the preparation of a list of officers falling within the field of selection, both of the general category as well as members of Scheduled Castes and Scheduled Tribes and their selection on the basis of the principles laid down and, two, the selection of candidates of Scheduled Castes and Scheduled Tribes consequent upon the limited departmental competitive examination.
While considering this submission, we must remember that resort to the limited departmental competitive examination is not simultaneous with the preparation of the list embodying the field of selection.
The question of holding the examination arises only, as sub rule (2a) of rule 12 declares, when the reserved vacancies cannot be fined because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process.
Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes, because reserved vacancies must be filled if that is possible.
The petitioners could complain if such a need arose in respect of general category vacancies and was not supplied.
It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates.
No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies.
In the circumstances, it is not possible to see how a legitimate complaint can be laid by the petitioners on the basis alleged before us.
It has been urged that the decision of the Government not to dereserve the twenty seven vacancies is vitiated by legal malice.
Having regard to the considerations to which we have adverted, we see no substance in that submission.
1192 The next contention on behalf of the petitioners is that sub rule (2a) of rule 12 enacted in 1979 operates prospectively only and cannot effect the twenty seven vacancies to be filled in the Select List of 1977.
The argument proceeds on the assumption that the Select List of 1977 must be completed during the year 1977.
The submission is formed in fallacy.
There is no requirement in law that the Select List pertaining to a particular year must be finalised within that year.
It is open to the Government to complete the process of selection and finalise it after the expiry of that year.
It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies.
It appears that on 10th August.
1978 the Government stated in Parliament that as no Scheduled Caste and Scheduled Tribe officers could be included in the field of consideration proposals for filling the vacancies through some special method had been taken up with the Union Public Service Commission.
The Select List for 1977, which included already ninety one names of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling the twenty seven reserved vacancies.
After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination.
As long as the Select List was not declared final, no officer could claim any right.
In the aforesaid circumstances, it is not possible to say that in holding the departmental competitive examination the Government was applying sub rule (2a) of rule 12, and the Regulations, retrospectively.
A grievance has also been made of the circumstance that the qualifying standard for Scheduled Caste and Scheduled Tribe candidates appearing at the limited departmental competitive examination is as low as four years approved and continuous service in the Section officer 's Grade, while a period of ten years is insisted on in the case of officers who do not belong to either class and are considered for vacancies in the general category.
The definition of "crucial date" in clause (a) of Regulation 2 of the Regulations of 1979 as a point of reference qualifying the eligibility standard, it is urged, permits an even lower eligibility standard for Scheduled Caste and Scheduled Tribe candidates.
It is now well accepted, and has been affirmed by successive decisions of this Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes.
The principle finds expression also in the original rule 12 of the Central Secretariat Service Rules.
The record before us 1193 indicates that the lower eligibility standard was decided on after consultation with the Chairman of the Union Public Service Commission.
As regards the number of years of approved service considered sufficient for eligibility, we find that even if we consider ourselves entitled to go into that question the paucity of relevant material does not permit us to express any opinion in the matter.
Learned counsel for the petitioners has also challenged the reservation of the twenty seven vacancies on the ground that the vacancies pertain to selection posts.
On this point, we find ourselves bound by the decision of this Court in General Manager, Southern Railway vs Rangachari(1) where it has been held that Article 16(4) of the Constitution extends to selection posts.
C Finally, learned counsel for the petitioners challenges the reservation of vacancies on the ground that they are irrational, inhibiting and do not provide for healthy growth of the services besides offending the equality provisions of Part III of the Constitution.
Having regard to the percentage of vacancies reserved under the office memorandum dated 20th July, 1974, we consider that the case falls within the.
principles laid down in M. R. Balaji vs State of Mysore.(2) The majority view in State of Kerala vs N. M. Thomas(3) supports the validity of the reservation.
Accordingly, the writ petitions are dismissed, but without any order as to costs.

Output:
The Central Secretariat Service (Amendment) Rules 1979 which inserted sub rule (2a) below sub rule (2) of Rule 12 of the Rules provided for the holding of a limited departmental competitive examination, including a statement of the conditions of eligibility and indicating how the selection would take place on such examination.
The next higher category in the Central Secretariat Service above the Section officers ' Grade consists of Grade I posts.
Recruitment to the Grade I posts are made under Rule 12 of the Central Secretariat Service Rules.
For the purpose of such promotion a select list is prepared.
Pursuant to an office Memorandum issued by the Department on 20th July, 1974, 15%, and 7%, of the promotion posts stand reserved for Scheduled Caste and Scheduled Tribes candidates respectively.
The petitioners were permanent Section officers in the Central Secretariat Service and officiating as Under Secretaries in different Ministries.
They alongwith several other officials were included in the field of selection for the purpose of drawing up the select list for the year 1977 for promotion to Grade I posts.
Twenty seven vacancies reserved for members of the Scheduled Castes and Scheduled Tribes, remained unfilled because no candidate belonging to those categories was found suitable.
For the purpose of filling those reserved vacancies, the Government of India decided to hold a limited departmental competitive examination confined to members of the Scheduled Castes and Scheduled Tribes.
The petitioners argued that (i) the reservation of vacancies for members of the Scheduled Castes and Scheduled Tribes by the office Memorandum dated 20th July, 1974 was invalid (ii) the newly enacted sub rule (2a) of Rule 12, in the Central Secretariat Service Rules and the related regulations were invalid and the rule operated prospectively only and could not affect the 27 vacancies to be filled in the select list of 1977.
The Respondents took a preliminary objection that it was not a contention raised in the writ petitions and should not be allowed to be raised for the first time by way of oral submission.
Dismissing the petition.
^ HELD: 1.
The entire scope of the petitions is limited to challenging the validity and application of the Central Secretariat Service (Amendment) Rules, 1979 and the consequent regulations for holding a limited departmental competitive examination.
No relief has been sought for quashing the office Memorandum dated 20th July, 1974.
No ground has been taken in the writ petitions assailing the validity of the office Memorandum.
The Courts should 1185 ordinarily insist on the parties being confined to their specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well known process of formally applying for amendment.
It is not that justice should be available to only those who approach the court confined in a straight jacket; but there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings.
[1189D F] If undue laxity and a too easy informality is permitted to enter the proceedings of a court, it will not be long before a contemptuous familiarity assails its institutional dignity and ushers in chaos and confusion undermining its effectiveness.
[1189 F G] Oral submission raising new points for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice held it entitled, of adequately preparing its response.
[1189G H] Whether or not reserved vacancies should be dereserved is a matter falling primarily within the administrative discretion of the Government.
There is no right in candidates seeking to fill vacancies belonging to the general category to insist on dereservation of reserved vacancies so long as it is possible in law to fill the reserved vacancies.
If at all, a claim in that behalf can arise only if no valid arrangement can be made for filling the reserved vacancies and dereservation is called for by reason of the prohibition, in clause (v) of paragraph 2 of the office memorandum dated 20th July, 1974, against the carry forward of reservations from year to year in the event of an adequate number of Scheduled Caste and Scheduled Tribe candidates not being available in any particular year.
Before reaching this extremity, the Government acts wholly within its power in adopting an alternative arrangement for filling the reserved vacancies.
Dereservation as a process should be resorted to only when it is not reasonably possible, within the contemplation of law, to fill the reserved vacancies.
The process of dereservation would otherwise be antagonistic to the principle embodied in Article 16(4) and Article 46 of the Constitution.
[1190G F] 3.
Once a decision has been taken to reserve vacancies for a backward class of citizens, the programming effected to that end should not be disturbed unless the avenues for fulfilling it have been explored and have failed.
It is only reasonable that the Government should dereserve the vacancies in view of the prohibition against carrying them forward to the next year.
[1190 G H, 1191B] 4.
The question of holding the examination arises only, as sub rule (2a) of rule 12 declares that when the reserved vacancies cannot be filled because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process.
Resort to the further process arises because of the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes because reserved vacancies must be filled if that is possible.
It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates.
No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies.
There is no requirement in law that the select list pertaining to a particular year must be finalized within that year.
[1191 E G, 1192 B] It is open to the Government to complete the process of selection and finalise it after the expiry of that year.
It seems that when the Government found that suitable candidates belonging to the Scheduled Castes and Scheduled Tribes 1186 were not available for inclusion in the field of selection, it decided to consider the advisability of adopting some other mode of filling the reserved vacancies.
The select list for 1977, which included already ninety one names of officers appointed to the general category vacancies, was held in abeyance for the purpose of filling the twenty seven reserved vacancies.
After discussion with the Chairman of the Union Public Service Commission and consideration of the alternatives before it the Government decided on holding a limited departmental competitive examination.
As long as the select list was not declared final, no officer could claim any right.
[1192B E] 6.
It is now well accepted, and has been affirmed by successive decisions of this Court, that relaxed eligibility criteria would be justified in the case of candidates of backward classes.
The principle finds expression also in the original rule 12 of the Central Secretariat Service Rules.
The record indicates that the lower eligibility standard was decided on after consultation with the Chairman of the Union Public Service Commission.
[1192 GH, 1193A] General Manager, Southern Railway vs Rangachari, ; M. R. Balaji vs State of Mysore [1963] Supply.
1 S.C.R. 434 State of Kerala vs N. M. Thomas. , affirmed.


Input:
Civil Appeal No. 2422 of 1978.
Appeal by Special Leave from the Judgment and Order dated 13 2 1978 of the Kerala High Court in TRC No. 63/76.
M.M. Abdul Khader, V.J. Francis and M.A. Firoz for the Appellant.
The Judgment of the Court was delivered by BHAGWATI, J.
The questions of law which arise for determination in this appeal lie in a very narrow compass and do not present any difficulty in answering them.
They are the usual type of questions that arise under the Sales Tax legislation, namely, whether a particular commodity sold or purchased by the assessee falls within one entry or another.
The assessee always contends that it falls within an entry which attracts lesser rate of tax while the Revenue invariably seeks to bring it within the entry attracting a larger rate of tax.
Two questions arise here for consideration.
One question is whether certain ornaments and other articles of gold purchased by the assessee with a view to melting them and making new ornaments 940 or other articles out of the melted gold fall within Entry 56 in the First Schedule of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the Act") which reads "Bullion and Specie".
If the ornaments and other articles of gold purchased by the assessee fall within this Entry, the turn over of purchases of these goods would be liable to be taxed at the rate of 1 per cent, while it would have to suffer tax at the rate of 3 per cent if these goods do not fall within the Entry and are taxable under section 5A read with sec.
5(1) (ii) of the Act.
The other question relates to taxation of the turnover of sales of G.I. Pipes effected by the assessee and it raises the point whether G.I. Pipes sold by the assessee fall within Entry 26A in the First Schedule to the Act which reads "Water Supply and Sanitary Fittings".
If they do not fall within this Entry, the turn over of their sales would be liable to be taxed at the rate of 3 per cent under section 5(1) (ii) of the Act, but if they do, then the rate of tax would be 7 per cent.
The Sales Tax Officer, and in appeal the Appellate Assistant Commissioner decided both the questions against the assessee and taxed the turn over of purchases of ornaments and other articles of gold at the rate of 3 per cent and the turn over of sales of G.I. Pipes at the rate of 7 per cent.
The Tribunal, on further appeal by the assessee, disagreed with the view taken by the tax authorities and holding that the ornaments and other articles of gold purchased by the assessee were "Bullion and specie" within the meaning of Entry 56 and G.I. Pipes sold by the assessee were not covered by the expression "water supply and sanitary fittings" in Entry 26A, taxed the assessee at the lesser rates as claimed by him.
The Revenue thereupon took the matter by way of revision to the High Court, but the High Court also took the same view and affirmed the judgment of the Tribunal.
This decision of the High Court is assailed in the present appeal preferred by the Revenue after obtaining special leave from this Court.
We will first consider the question whether the ornaments and other articles of gold purchased by the assessee fall within the description of "Bullion and specie" given in Entry 56.
There are two expressions in this Entry which require consideration; one is "bullion" and the other is "specie".
Now there is one cardinal rule of interpretation which has always to be borne in mind while interpreting entries in Sales Tax legislation and it is that the words used in the entries must be construed not in any technical sense nor from the scientific point of view but as understood in common parlance.
We must give the words used by the legislature their popular sense meaning "that sense which people conversant with the subject matter with 941 which the statute is dealing would attribute to it".
The word "bullion" must, therefore, be interpreted according to ordinary parlance and must be given a meaning which people conversant with this commodity would ascribe to it.
Now it is obvious that "bullion" in its popular sense cannot include ornaments or other articles of gold.
"Bullion" according to its plain ordinary meaning means gold or silver in the mass.
It connotes gold or silver regarded as raw material and it may be either in the form of raw gold or silver or ingots or bars of gold or silver.
The Shorter Oxford Dictionary gives the meaning of "bullion" as "gold or silver in the lump; also applied to coined or manufactured gold or silver considered as raw material." So also in Jowitt 's Dictionary of English Law and Wharton 's Law Lexicon we find that the following meaning is given for the word "bullion", "uncoined gold and silver in the mass.
These metals are called so, either when melted from the native ore and not perfectly refined, or where they are perfectly refined, but melted down into bars or ingots, or into any unwrought body, of any degree of fineness".
It would, therefore, be seen that ornaments and other articles of gold cannot be regarded as "bullion" because, even if old and antiquated, they are not raw or unwrought gold or gold in the mass, but they represent manufactured or finished products of gold.
Nor do they come within the meaning of the expression "specie".
The word "specie" has a recognised meaning and according to Webster 's New World Dictionary, it means "coin, as distinguished from paper money".
The Law Dictionaries also give the same meaning.
Wharton 's Law Lexicon and Jowitt 's Dictionary of English Law state the meaning of "specie" as "metallic money" and in Black 's Law Dictionary, it is described as "coin of the precious metals, of a certain weight and fineness, and bearing the stamp of the Government, denoting its value as currency" while "Words and Phrases Permanent Edition Vol.
39A" also gives the same meaning.
Therefore, according to common parlance, the word "specie" means any metallic coin which is used as currency and if that be the true meaning, it is obvious that ornaments and other articles of gold cannot be described as "specie".
It would thus seem clear that the ornaments and other articles of gold purchased by the assessee do not fall within Entry 56 and they are, accordingly, liable to be taxed not at the lesser rate of 1 per cent applicable to "bullion and specie" but at the general rate of 3 per cent under section 5A read with Section 5(1) (ii) of the Act.
That takes us to the second question in regard to taxability of the turnover of sales of G.I. Pipes made by the assessee.
The Revenue 942 contended that G.I. Pipes fall within the description "water supply and sanitary fittings" in Entry 26A so as to be exigible to tax at the higher rate of 7 per cent while the assessee contended that they are not covered by this expression and are, therefore, taxable only at the lesser rate of 3% under sec.
5(1) (ii) of the Act.
The determination of this question turns on the true interpretation of the words "water supply and sanitary fittings".
So far as the expression "sanitary fittings" is concerned, it has received judicial interpretation by this Court in State of Uttar Pradesh vs Indian Hume Pipe Ltd. where it has been laid down that "sanitary fittings" according to the popular sense of the term mean such pipes or materials as are used in lavatories, urinals or bath rooms of private houses of public buildings.
The G.I. Pipes sold by the assessee would, therefore, fall within the description of "sanitary fittings" only if it can be shown and the burden of so doing would be on the Revenue, that they were meant for use in lavatories, urinals or bath rooms.
It does not appear that the attention of the assessee and the tax authorities was drawn to this aspect of the question and hence no material was brought on record which would throw light on the question as to what was the use for which the G.I. Pipes were meant.
If the G.I. Pipes were heavy and intended to be laid underground for carrying supply of water from one place to another, they would obviously not be "sanitary fittings".
This is, however, a question which has not been considered by the Revenue authorities and the case would, therefore, have to be remanded to the Appellate Assistant Commissioner for the purpose of determining whether having regard to the meaning which this Court has placed on the expression "sanitary fittings", the G.I. Pipes sold by the assessee fall within that description.
But the Revenue contended that even if the G.I. Pipes are not "sanitary fittings" within the meaning of that expression, they would still fall within the description "water supply. .fittings".
Now, it must be remembered that the category of goods in Entry 26A is not described as "water supply pipes" but as "water supply and sanitary fittings".
The use of the word "fittings" suggests that the expression is intended to refer to articles or things which are fitted or fixed to the floor or walls of a building and they may in a given case include even articles or materials fitted or fixed outside, provided they can be considered as attached or auxiliary to the building or part of it, such as, for example, a pipe carrying faecal matter from the commode to the sceptic tank, but they cannot include pipes laid underground 943 for carrying water supply.
Moreover, the words "water supply. . fittings" do not occur in isolation, but they are used in juxtaposition of the words "sanitary fittings".
The entire expression "water supply and sanitary fittings" is one single expression and the words "water supply. fittings" must receive colour from the immediately following words "sanitary fittings".
We are, therefore, of the view that the expression "water supply. fittings" in the context in which it occurs means such pipes or materials as are meant for use for supply of water to or in lavatories, urinals or bath rooms of private houses or public buildings and they do not include heavy pipes which are laid underground as mains for carrying water supply from one area or place to another.
Therefore, even for the purpose of determining whether G.I. Pipes sold by the assessee are "water supply. . fittings", it would have to be found as to what is the purpose for which they were meant to be used and since the question has not been approached from this point of view, we think it desirable that the case be sent back to the Appellate Assistant Commissioner for the purpose of determining whether, in the light of this meaning placed by us on the words "water supply. fittings", the G.I. Pipes sold by the assessee could be said to be "water suply. . . fittings.
" We, therefore, allow the appeal, set aside the orders made by the High Court, the Tribunal and the Appellate Assistant Commissioner and hold that so far as the ornaments and other articles of gold purchased by the assessee are concerned, they were liable to be taxed at the general rate of 3 per cent under section 5A read with section 5(1) (ii) of the Act and so far as G.I. Pipes sold by the assessee are concerned, we remand the case to the Appellate Assistant Commissioner for the purpose of deciding on the basis of the existing material as also such further material as may be adduced, whether G.I. Pipes sold by the assessee fell within the description "water supply and sanitary fittings" so as to be exigible to sales tax at the higher rate of 7 per cent under Entry 26A.
There will be no order as to costs of the appeal.
N.V.K. Appeal allowed.

Output:
On the questions (1) Whether the ornaments and other articles of gold purchased by the assessee fell within the description of "Bullion and specie" given in Entry 56 in the First Schedule of the Kerala General Sales Tax Act 1956 and (2) the taxability of the turn over of sales of G.I. Pipes made by the assessee.
^ HELD: 1.
One cardinal rule of interpretation while interpreting entries in Sales Tax legislation is that the words used in the entries must be construed not in any technical sense nor from the scientific point of view but as under stood in common parlance.
The words used by the legislature must be given their popular sense meaning, "that sense which people conversant with the subject matter with which the statute is dealing would attribute to it." [940 H, 941A] 2.
"Bullion" in its popular sense cannot include ornaments or other articles of gold.
"Bullion" according to its plain ordinary meaning means gold or silver in the mass.
It connotes gold or silver regarded as raw material and it may be either in the form of raw gold or silver or ingots or bars of gold or silver.
[941 B] 3.
Ornaments and other articles of gold cannot be regarded as "bullion" because, even if old and antiquated, they are not raw or unwrought gold or gold in the mass, but they represent manufactured or finished products of gold.
Nor do they come within the meaning of the expression "specie".
The word "specie" means coin, as distinguished from paper money".
[941 D] 4.
The ornaments and other articles of gold purchased by the assessee do not fall within Entry 56 and they are, liable to be taxed not at the lesser rate of 1 per cent applicable to "bullion and specie" but at the general rate of 3 per cent under section 5A read with section 5(i) (ii) of the Act.
[941 G, 943 E] 5.
In State of Uttar Pradesh vs Indian Hume Pipe Ltd., 39 STC 355 it has been held by this Court that 'sanitary fittings ' according to the popular sense of the term means such pipes or materials as are used in lavatories urinals or bath rooms of private houses or public buildings.
[942 C] 939 6.
The G.I. Pipes sold by the assessee would fall within the description of 'sanitary fittings ' only if it can be shown and the burden of so doing would be on the Revenue, that they were meant for use in lavatories, urinals or bath rooms.
The attention of the assessee and the tax authorities was not drawn to this aspect of the question and no material was brought on record which would throw light on the question as to what was the use for which the G.I. Pipes were meant.
If the G.I. Pipes were heavy and intended to be laid underground for carrying supply of water from one place to another they would obviously not be 'sanitary fittings '.
[942 C E] 7.
The category of goods in Entry 26A is not described as 'water supply pipes ' but as 'water supply and sanitary fittings '.
The words 'water supply. fittings ' do not occur in isolation but they are in juxtaposition of the words 'sanitary fittings '.
The entire expression 'water supply and sanitary fittings ' is one single expression and the words 'water supply. fittings ' must receive colour from the immediately following words 'sanitary fittings '.
The expression 'water supply. .fittings ' in the context in which it occurs means such pipes or materials as are meant for use for supply of water to or in lavatories, urinals or bath rooms of private houses of public buildings and they do not include heavy pipes which are laid underground as mains for carrying water supply from one area or place to another.
[942 G, 943 A B] 8.
As far as G.I. Pipes sold by the assessee are concerned the case remanded to the Appellate Assistant Commissioner for the purpose of deciding on the basis of the existing material as also such further material as may be adduced, whether G.I. Pipes sold by the assessee fall within the description "water supply and sanitary fittings" so as to be exigible to sales tax at the higher rate of 7 per cent under Entry 26A. [943 F]