Input:
Civil Appeal Nos.
1775 1975 (E), 2736 (E) of 1981.
From the Judgment and Order dated the 10th July, 1981 of the Allahabad High Court (Lucknow Bench) in Election Petition No. 7 of 1980.
M. C. Bhandare, T. Sridharan, Ms. section Bhandare and Ms. Sucharita for the Appellant in CA.
1775/81.
Dr. Y. section Chitale and Ms. A. Subhashini for the Appellant in CA.
No. 1975 of 1981.
Mrs. section Dixit for the Appellant in CA.
2736 of 1981.
Hari Shankar Jain and Mr. K.K. Gupta, for the Respondent.
At the conclusion of the hearing of the above appeals on November 16, 1983, we pronounced the following order: "Heard counsel for the parties.
The appeals are allowed and the order of the High Court is set aside without any order as to costs.
" We now give our reasons.
944 Two questions arise for consideration in these three appeals which are filed against the judgment and order dated July 10, 1981 of the High Court of Allahabad in Election Petition No. 7 of 1980.
They are: 1.
Whether the Secretary of a State Legislative Assembly is not qualified to be appointed as the Returning Officer at an election held to fill a seat in the Rajya Sabha ? 2.
Whether a person elected as a member of a Legislative Assembly but who has not made and subscribed the prescribed oath or affirmation as required by Article 188 of the Constitution can validly propose a person as a candidate at an election held for filling a seat in the Rajya Sabha ? In February, 1980 the Legislative Assembly or the State of Uttar Pradesh was dissolved by the President by issuing a notification under Article 356 of the Constitution.
A notification was issued by the Governor of Uttar Pradesh under section 15 (2) of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act ') in April, 1980 calling upon all the Assembly constituencies in Uttar Pradesh to elect members to the Legislative Assembly.
After the results of the elections in all the constituencies held pursuant to the said notification were declared, the Election Commission of India issued a notification containing the names of the members elected for the said constituencies as required by section 73 of the Act on June 9, 1980.
The elected members were notified that they could take the oath as required by Article 188 of the Constitution at the session of the Legislative Assembly which had been summoned to meet on June 27, 1980 and on subsequent days.
In the meanwhile on June 17, 1980, the Election Commission issued a notification calling upon the elected members of the Uttar Pradesh Legislative Assembly to elect a person for the purpose of filling a vacancy in the Rajya Sabha.
By that notification, the Election Commission fixed the following programme for the purpose of the said election: (a) 24.6.1980 as the last date for making nomination.
(b) 25.6.1980 as the date for scrutiny of the nomination papers (c) 27.6.1980 as the last date for withdrawal of candidature.
945 (d) 4.7.1980 as the date on which a poll, if necessary, would be taken.
(e) 7.7.1980 as the date before which the election had to be completed.
Shri section P. Singh, Secretary of the Uttar Pradesh Legislative Assembly was appointed as the Returning Officer and Shri Uma Shankar, Joint Secretary as the Assistant Returning Officer for conducting the aforesaid election.
Pashupati Nath Sukul, the appellant in Civil Appeal No. 1775 of 1981 (hereinafter referred to as 'the appellant ') and Nem Chandra Jain, respondent No. 1 were nominated as the candidates at that election.
At the time of scrutiny, respondent No. 1 filed objections to the nomination of the appellant raising two grounds (1) that the appellant was disqualified as he was a Government servant and (2) that the proposer of the candidature of the appellant was not qualified to propose his candidature as he had not yet taken the oath as required by Article 188 of the Constitution.
The appellant pleaded that as he had retired voluntarily from the Government service he was not disqualified for being chosen as a member of the Rajya Sabha and that the proposer of his candidature was an elected member of the Legislative Assembly who was competent to make the proposal even though he had not taken the oath as provided in Article 188 of the Constitution.
The Objections of respondent No. 1 were overruled and the nomination papers of both the appellant and respondent No. 1 were accepted by the Returning Officer.
At the poll which took place on July 4, 1980 the appellant secured 325 votes and respondent No. 1 got 41 votes.
Accordingly the appellant was declared to be elected as a member of the Rajya Sabha.
Aggrieved by the result of the election.
respondent No. 1 filed an election petition before the High Court calling in question the result of the election on various grounds and of them we are now concerned with two grounds only and they are (1) that as the Secretary of the Legislative Assembly was neither an officer of the Government nor of a local authority, he could not be appointed as the Returning Officer under section 21 of the Act and (2) that as the proposer of the nomination paper of the appellant had not made or subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of the nomination, there was improper acceptance of the nomination of the appellant.
The appellant, the Election Commission of India, the State of Uttar Pradesh and Shri section P. 946 Singh, the Returning Officer were impleaded as respondents to the election petition.
The name of the Governor of Uttar Pradesh who had also been impleaded as a respondent was deleted by the order of the High Court.
The petition was contested by the appellant and others who had been impleaded as respondents in the election petition.
At the conclusion of the trial, the High Court set aside the election of the appellant on the following grounds viz. that Shri section P. Singh, Secretary, Legislative Assembly was not qualified to be appointed as the Returning Officer; that the proposal of the candidature of the appellant by a member of the Legislative Assembly who had not made and subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of nomination was illegal and hence there was improper acceptance of the nomination of the appellant and that there was no valid electoral roll in force on the date of nomination.
Aggrieved by the judgment of the High Court, the appellant has preferred Civil Appeal No. 1775 of 1981, the Election Commission of India has filed Civil Appeal No. 1975 (E) of 1981 and the State of Uttar Pradesh has preferred Civil Appeal No. 2736 (E) of 1981.
All these three appeals are disposed of by this common judgment.
We shall first deal with the question whether the Secretary of the Legislative Assembly was not qualified to be appointed as the Returning Officer for the election.
Section 21 of the Act which deals with the appointment of Returning Officers reads thus: "21.
Returning Officers For every constituency, for every election to fill a seat or seats in the Council of States and for every election by the members of the Legislative Assembly of a State to fill a seat or seats in the Legislative Council of the State, the Election Commission shall, in consultation with the Government of the State, designate or nominate a returning officer who shall be an officer of Government or of a local authority: Provided that nothing in this section shall prevent the Election Commission from designating or nominating the same person to be the returning officer for more than one constituency." (Emphasis added).
947 The contention of respondent No. 1 which has been accepted by the High Court is that the Secretary of the Legislative Assembly being not an officer of Government or of a local authority he was not qualified to be appointed as the Returning Officer.
The argument is that 'Government ' in the expression 'an officer of Government ' used in section 21 of the Act means the Executive only and an officer of the Legislature is not, therefore, an officer of Government.
This case is an illustration of some legal problems solutions for which appear to be quite obvious but when an attempt is made to give reasons for such solutions one would be confronted with many difficulties though not insurmountable.
The expressions 'Government ' and 'an officer of Government ' are not defined in the Constitution or in the Act.
Article 367 of the Constitution provides that unless the context otherwise requires, the , shall, subject to any adaptations and modifications that may be made therein under Article 372 of the Constitution, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.
Section 3(23) of the defines 'Government ' as follows: "3(23) 'Government ' or 'the Government ' shall include both the Central Government and any State Government.
" The above definition is an inclusive definition and it suggests that there may be other organs of State which may be included within the meaning of the expression 'Government '.
The expressions 'Central Government ' and 'State Government ' are defined in section 3(8) and section 3(60) of the respectively.
These definitions are to be adopted unless there is anything in the context to the contrary.
A general review of the constitutional provisions shows various expressions used in it to describe the several organs of the State.
In of the Constitution the expressions 'the Union '. 'the States ' and 'the Union Territories ' are used.
In Article 12 of the Constitution, we find the expressions 'Government and Parliament of India ' and 'Government and the Legislature of each of the States ' suggesting that Government is different from the Union Legislature or the Legislatures of the States.
This is for purposes of Part III of the Constitution.
In Article 102(1)(a) and Article 191(1)(a) of the Constitution, the expressions 'the Government of India ' and 'the Government of any State ' are used and they provide that a person holding an office of profit under the 948 Government of India or a State Government is disqualified for being chosen as a member of Parliament or of a State Legislature respectively.
Article 98 and Article 187 of the Constitution provide for the appointment of separate secretariat staff of each House of Parliament and of the State Legislatures respectively.
Article 146 and Article 229 of the Constitution respectively deal with the appointment of officers and servants of the Supreme Court and of the High Courts.
Article 148(5) and Article 318 of the Constitution respectively deal with the conditions of service etc.
of the employees working in the office of the Comptroller and Auditor General of India and the Public Service Commissions.
Part XIV of the Constitution contains provisions relating to the services under the Union Government and the State Governments.
It contains Article 311 which guarantees certain rights which cannot be denied to the employees in the Legislature and in the Judiciary.
Dealing with the nature of the office held by the officers working in the High Court, who are governed by Article 229 of the Constitution this Court has observed in Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court(1) thus: "A close scrutiny of the terminology so used shows a marked departure in the language of article 320(3)(c) from that in articles 310 and 311.
Officers and members of the staff attached to a High Court clearly fall within the scope of the phrase "persons appointed to public services and posts in connection with the affairs of the State" and also of the phrase "a person who is a member of a civil service of a State" as used in articles 310 and 311.
The salaries of these persons are paid out of the State funds as appears from article 229(3) which provides that the administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of officers and servants of the High Court, are chargeable upon the Consolidated Fund of a State.
The item relating to such administrative expenses has to from part of the annual financial statement to be presented to the State Legislative Assembly under article 202 and estimates thereof can form the subject matter of the discussion in the Legislature under article 203(1).
They must, therefore, be taken "to hold posts in connection with the affairs of the State and to be members of the civil service of the State".
949 Entry 5 of List II of the Seventh Schedule to the Constitution relates to 'Local Government ' that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self government or village administration.
In each of these cases it becomes necessary to examine the relevant provisions of law applicable to it in order to determine whether the officers and staff of the various organs are officers of Government or not.
Before taking up such examination the meaning of the expression 'Government ' has to be ascertained.
A student of International Law understands by the expression 'State ' as a fully sovereign independent community residing in a specified territory with a legal capacity to enter into international relations and having the power to fulfil the obligations which the international law imposes on the family of nations.
It should also have been admitted or recognised as a State on a footing of equality with other States.
A State implies the existence of a community or group of people occupying a geographical area or territory in which they permanently reside possessing internal sovereignty and independence of foreign control and a political organisation or agency through which the collective will of the people is expressed and enforced.
The last of the elements of a State referred to above is generally called as a Government.
A student of Political Theory and Comparative Politics may describe a Government as a monarchical, republican, democratic or dictatorial depending upon its peculiar features.
It may be federal or unitary.
A political philosopher may describe a Government as imperial, colonial, capitalist or socialist.
The above list is not really exhaustive.
But these are only different forms of Government and Government ' here is used in a very broad sense.
From the legal point of view, Government may be described as the exercise of certain powers and the performance of certain duties by public authorities or officers, together with certain private persons or corporations exercising public functions.
The structure of the machinery of Government and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law which also prescribes to some extent the mode in which these powers are to be exercised or these duties are to be performed (See Halsbury 's Laws of England, Fourth Edition, Vol. 8, Para 804).
Government generally connotes three estates, namely, the Legislature, the Executive and the Judiciary while it is true that in a narrow sense it is used to connote the Executive only.
The meaning to be assigned 950 to that expression, therefore, depends on the context in which it is used.
In our Constitution, which has a federal structure, there are both at the level of the Union and at the level of the States detailed provisions, pertaining to the Legislature, the Executive and the Judiciary.
All the three organs are concerned with the governance of the country one organ makes the laws, the second enforces them and the third interprets them though sometimes their functions may be overlapping.
In this sense all the three organs together constitute the Government at their respective level.
It is significant that the President is a part of parliament under Article 79 of the Constitution, the executive power of the Union is vested in him under Article 53 (1) of the Constitution and he appoints Judges of the Supreme Court under Article 124 (2) and he can issue an order removing a Judge of the Supreme Court under Article 124 (4) of the Constitution, of course, subject to the limitations contained therein.
At the level of the State too the position is analogous to the position at the level of the Union.
The Governor is a part of the Legislature of the State under Article 168(1) of the Constitution.
The executive power of the State is vested in him under Article 154(1) and he is consulted in the appointment of judges of the High Court.
While under Article 235 of the Constitution, the High Court is vested with the control over the Subordinate Judiciary of the State, in the case of dismissal or removal of a judicial officer in the Subordinate Judiciary of the Governor has to issue the order though on the recommendation made by the High Court.
A study of these provisions shows that there is no water tight compartment between the three major organs of the State.
The Comptroller and Auditor General of India though he is assigned an independent status is an officer under the Union Government.
(See Gurugobinda Basu vs Sankari Prasad Ghosal & Ors.) The Judges of the Supreme Court and of a High Court are not servants of Government but hold a constitutional office (vide Union of India vs Sankal Chand Himatlal Sheth & Anr.(2) and Hargovind Pant vs Dr. Raghukul Tilak & Ors.(3) But the Comptroller and Auditor General of India and the Judges of the Supreme Court and of a High Court are not eligible to contest elections to Parliament and the State Legislatures in view of Article 102(1)(a) and Article 191(1)(a) of the Constitution, as the case may 951 be, because they are serving in connection with the affairs of the Union (See Article 360(4)(b) of the Constitution) and are, therefore, holding offices of profit under the Central Government.
The position of a person who works as an officer of the Legislature of a State is also the same.
Even though he belongs under Article 187 of the Constitution to the staff of the State Legislature, he is still an officer of Government in the broad sense in which the expression 'Government ' is used in Article 102(1)(a) and Article 191(1)(a) of the Constitution.
If the expression 'Government ' used here is construed as meaning the Executive Government only, then it would defeat the very purpose of these provisions of the Constitution.
Similarly he has to be treated as an officer of Government for purposes of section 21 of the Act also qualified for being appointed as the Returning Officer for an election held under the Act.
It is not disputed that after the commencement of the Constitution, the Secretaries of the State Legislatures almost as a matter of rule are being appointed as Returning Officers for election to the Rajya Sabha and for election to the Legislative Councils of States and Parliament has not thought it fit to amend suitably, section 21 of the Act expressly including the officers of the State Legislatures amongst the persons qualified to be appointed as Returning Officers even though it has amended that section once by specifically including officers of local authorities.
Parliament all along has treated the Secretaries of the State Legislatures as officers of Government for purposes section 21 and has found it convenient to do so having regard to the nature of the work to be carried out by them.
It may be noted that even though Article 98 and Article 187 of the Constitution contemplate the establishment of a separate secretariat staff for each House of Parliament and of the State Legislature respectively, the salaries and allowances of the members of that staff are paid out of the Consolidated Fund of India or of the State, as the case may be after they are voted by the House or Houses concerned.
Their appointment and other conditions of service are regulated by Rules made by the President or the Governor, as the case may be, until appropriate law is made by Parliament or the State Legislature, as the case may be.
We are of the view that the word 'Government ' Article 102(1)(a) and in Article 191(1)(a) of the Constitution and the word 'Government ' in the expression 'an officer of Government ' in section 21 of the Act should be interpreted liberally so as to include within its scope the Legislature, the Executive and the Judiciary.
The High Court erred in equating the word 'Government ' occurring in section 21 of the Act to the Executive Government only and in further holding that the officers of the 952 State Legislature could not be treated as officers of Government for purposes of that section.
The finding of the High Court that the Secretary of the Uttar Pradesh State Legislature could not be appointed as the Returning Officer for the election to the Rajya Shaba is, therefore, unsustainable.
The second question to be considered is whether the nomination of the appellant was liable to be rejected on the ground that the proposer was not eligible to nominate a candidate as he had not made and subscribed the oath or affirmation as prescribed by Article 188 of the Constitution.
Section 33 of the Act prescribes the requirements for a valid nomination.
It provides that the nomination paper should be completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.
Clauses (d) and (e) of section 2(1) of the Act define the words 'election ' and 'elector ' respectively. 'Election ' means an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State other than the State of Jammu and Kashmir. 'Elector ' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).
Sub clause (b) of clause (1) of Article 80 of the Constitution states that the Council of States (the Rajya Sabha) shall in addition to twelve members nominated by the President under sub clause (a) thereof consist of not more than two hundred and thirtyeight representatives of the States and of the Union territories.
Clause (2) of Article 80 of the Constitution provides that the allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule to the Constitution.
Clause (4) of Article 80 provides that the representatives of each State in Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote.
Section 152 of the Act provides that the Returning Officer for on election by the elected members of the Legislative Assembly of a State to fill a seat or seats in the Council of States shall for the purposes of such election maintain in his office in the prescribed manner and from a list of elected members of that Legislative Assembly.
Clause (c) of sub rule (1) of Rule 2 of the 953 Conduct of Elections Rules, 1961 defines "election by assembly members" as an election to the Council of States by the elected members of the Legislative Assembly of a State or by the members of the electoral college of a Union territory or an election to the Legislative Council of a State by the members of the Legislative Assembly of a State.
Elector ' is defined by clause (d) of sub rule (1) of Rule 2 of the said Rules, in relation to an election by Assembly members as any person entitled to vote at that election.
In the present case, the notification containing the names of elected members of the Uttar Pradesh Legislative Assembly who participated at the election in question had been published under section 73 of the Act on June 9, 1980 and that the previous Legislative Assembly had been dissolved earlier in February, 1980.
This is not a case where general elections to the Legislative Assembly had been held before the normal tenure of the existing Legislative Assembly was over.
Section 73 of the Act which prescribes the publication of results of general elections reads thus: "73, Publication of results of general elections to the House of the People and the State Legislative Assemblies, Where a general election is held for the purpose of constituting a new House of the People or a new State Legislative Assembly, there shall be notified by the Election Commission in the Official Gazette as soon as may be after the results of the elections in all the constituencies (other than those in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30 or for which the time for completion of the election has been extended under the provisions of section 153), have been declared by the returning officer under the provisions of section 53 or, as the case may be, section 66, the names of the members elected for those constituencies and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted: Provided that the issue of such notification shall not be deemed (a) to preclude 954 (i) The taking of the poll and the completion of the election in any Parliamentary or Assembly constituency or constituencies in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30; or (ii) the completion of the election in any Parliamentary or Assembly constituency or constituencies for which time has been extended under the provisions of section 53; or (b) to affect the duration of the House of the People or the State Legislative Assembly, if any, functioning immediately before the issue of the said notification." (emphasis added) On the publication of the notification on June 9, 1980 under section 73 of the Act in the instant case, the Assembly was deemed to be duly constituted.
Article 188 of the Constitution prescribes the oath to be taken or the affirmation to be made by every member of a Legislative Assembly or a Legislative Council.
It reads: "188.
Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
" Article 191 of the Constitution prescribes the disqualifications for membership of the Legislative Assembly or Legislative Council of a State.
On the incurring of any such disqualification a member of a Legislative Assembly or a Legislative Council ceases to be a member thereof.
Article 193 of the Constitution provides for the penalty for sitting and voting before making oath or affirmation under Article 188 of the Constitution or when not qualified or when disqualified the penalty being in respect of each day five hundred rupees to be recovered as a debt due to the State.
It does not say that if an elected member of a Legislative Assembly sits and votes before taking oath as prescribed by Article 188 of the Constitution he shall automatically cease to be a member of the House, even though it is possible that his seat maybe declared as vacant under Article 190(4) 955 of the Constitution if for sixty days he is absent from all meetings of the House without its permission.
Now the question is whether the making of oath or affirmation is a condition precedent for being eligible to act as a proposer of a valid nomination for election to the Rajya Sabha.
The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly cannot sit and vote in the House before making oath or affirmation.
The words `sitting and voting ' in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting.
An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House.
Invariably there is an interval of time between the constitution of a House after a general election as provided by section 73 of the Act and the summoning of the first meeting of the House.
During that interval an elected member of the Assembly whose name appears in the notification issued under section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sahha.
That is the effect of section 73 of the Act which says that on the publication of the notification under it the House shall be deemed to have been constituted.
The election in question does not form a part of the Legislative proceedings of the House carried on at its meeting.
Nor the votes cast at such an election is a vote given in the House on any issue arising before the House.
The Speaker has no control over the election.
The election is held by the Returning Officer appointed for the purpose.
As mentioned earlier, under section 33 of the Act the nomination paper has to be presented to the Returning Officer between the hours of eleven o 'clock in the forenoon and three o 'clock in the afternoon before the last day notified for making nominations under section 30 of the Act.
Then all further steps such as scrutiny of nominations and withdrawal of nominations take place before the Returning Officer.
Rule 69 of the Conduct of Elections Rules, 1961 provides that at an election by Assembly members where a poll becomes necessary, the Returning Officer for such election shall, as soon as may be after the last date for the withdrawal of candidatures, send to each elector a notice informing him of the date, time and place fixed for polling.
Part VI of the Conduct of Elections Rules, 1961 which contains Rule 69 and Part VII thereof deal with the procedure to be followed at an election 956 by assembly members.
Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the returning officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council.
All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House.
We may here refer to the decision of the Calcutta High Court in Bhupendra Nath Basu vs Ranjit Singh.(1) The facts of that case were these.
An election was held on February 14, 1913 to the Legislative Council of the Governor General from the constituency consisting of the non official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor General.
There were at that time thirty four non official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII.
At the election there were four candidates the plaintiff Bhupendra Nath Basu, the Ist defendant Maharaja Ranjit Singh, the 2nd defendant Surendra Nath Banerjee and Nawab Badruddin Haidar.
As a result of the poll the second defendant got 22 votes, the first defendant got 18 votes, the plaintiff 17 and Nawab Badruddin Haidar 11 votes.
Accordingly defendants 1 and 2 were declared elected to fill the two seats.
The plaintiff after being unsuccessful in his petition to the Governor General filed a suit before the High Court questioning the validity of the election.
He prayed that the votes should be recounted after excluding the votes cast by the two members who had not taken the oath of allegiance.
Regulation VII referred to above provided that every person elected nominated under the regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person "fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor in Council may consider reasonable, the Governor, shall by notification in the local Official Gazette declare the election or nomination to be void or his seat to be vacate".
Such a declaration had not been made on the date of the election.
957 The contention of the plaintiff was rejected by the High Court in the following terms: "Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one.
Doubtless the English cases that were referred to, the case of the Mayor of Penryn (1 Strange 582) and The King vs Swyer (1830) 10 B. & C. 486) have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken.
That does not get rid of the difficulty that arises from these Regulations.
These Regulations constitute an electoral College of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor General.
I am not satisfied on the Regulations that the learned Advocate General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college.
It is only for the purpose of exercising the legislative functions conferred by the Regulations and by the Act that the oath of allegiance is required.
Moreover, as the Advocate General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance.
In my opinion, in this case the Rule fails and must be discharged, and discharged with costs.
We are of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of the Act can take part in all non legislative activities of an elected member.
The right of voting at an election to the Rajya Sabha can also be exercised by him.
In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act 958 and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination.
For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal.
That is how even respondent No. 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation.
The second contention also fails.
No other contention was pressed before us.
We are therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous.
In the result we allow the above appeals, set aside the judgment of the High Court and dismiss the election petition filled by respondent No. 1.
Having regard to the novelty of the question raised in this case the parties are directed to bear their own costs throughout.
N.V.K. Appeals allowed.

Output:
After the Legislative Assembly of the State was dissolved by the President elections were held and after the results were declared the Election Commission issued a notification containing the names of the members elected for the constituencies on June 9, 1980.
The elected members were notified that they could take the oath as required by article 188 of the Constitution at the session of the Legislative Assembly which had been summoned to meet on June 27, 1980 and on subsequent days.
In the meanwhile, on June 17, 1980 the Election Commission issued a notification calling upon the elected members of the state Legislative Assembly to elect a person for the purpose of filling a vacancy in the Rajya Sabha.
For conducting the election the Secretary and Joint Secretary of the State Legislative Assembly were appointed respectively as the Returning Officer and the Assistant Returning officer.
The appellant and respondent No. 1 in Civil Appeal No. 1775 of 1981 were nominated as the candidates at that election.
At the time of scrutiny, respondent No. 1 filed objections to the nomination of the appellant raising two grounds: (1) that the appellant was disqualified as he was a Government 940 servant, and (2) that the proposer though an elected member of the Assembly, was not qualified to propose the appellant 's candidature as he had not yet taken the oath under Article 188 of the Constitution.
The appellant contended that as he had retired voluntarily from Government service he was not disqualified for being chosen as a member of the Rajya Sabha and that the proposer being an elected member of the Legislative Assembly was competent to propose even though he had not taken the oath as provided in article 188.
Overruling the objections the nomination papers of the candidates were accepted.
In the election the appellant was declared elected as a member of the Rajya Sabha.
Respondent No. 1 therefore filed an election petition.
The High Court set aside the appellant 's election on the grounds : (1) that as the Secretary of the Legislative Assembly was neither an officer of the Government nor of a local authority, he could not be appointed as the Returning Officer under s.21, and (2) that the proposer of the nomination paper had not made or subscribed the oath or affirmation as required by Article 188 of the Constitution on the date of nomination and consequently there was improper acceptance of the nomination of the appellant.
The appellant, the Election Commission of India, and the State preferred Appeals to this Court.
Allowing the Appeals, ^ HELD : 1 (i) The word `Government ' in Article 102 (1)(a) and in Article 191 (1)(a) of the Constitution and the word `Government ' in the expression an officer of Government in section 21 of the Representation of the People Act, 1951 should be interpreted liberally so as to include within its scope the Legislature, the Executive and the Judiciary.
[951 G H] (ii) The finding of the High Court that the Secretary of the State Legislature could not be appointed as the Returning officer for the election to the Rajya Sabha is unsustainable.
[952 A] (iii) The expressions `Government ' and an officer of Government ' are not defined in the Constitution or in the Representation of the People Act 1951.
Article 367 of the Constitution provides that unless the context otherwise requires, the , shall subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation for the Constitution.
Section 3 (23) of the gives an inclusive definition of `Government ' and suggests that there may be other organs of State which may be included within the meaning of expression `Government ', The expressions `Central Government ' and `State Government ' are defined in section 3 (8) and section 3 (60).
A general review of the constitutional provisions shows various expressions used in it to describe the several organs of the State.
In the expressions `the Union '`the States ' and `the Union Territories ' are used.
In Article 12 the expressions `Government and 941 Parliament of India ' and 'Government and the Legislature of each of the States ' are found suggesting that Government is different from the Union Legislature or the Legislatures of the States.
This is for purposes of In Article 102 (1) (a) and Article 191 (1) (a) the expression 'the Government of India ' and 'Government of any state ' are used and they provide that a person holding an office of profit under the Government of India or a State Government is disqualified for being chosen as a member of Parliament or of a State Legislature respectively.
Article 98 and Article 187 provide for appointment of separate secretariat staff of each House of Parliament and of the State Legislatures respectively.
[947 C H; 948 A] (iv) After the commencement of the Constitution, the Secretaries of the State Legislatures almost as a matter of rule were being appointed as Returning Officers for election to the Rajya Sabha and for election to the Legislative Councils of States, and Parliament had not thought it fit to amend suitably, section 21 expressly including the officers of the State Legislatures amongst the persons qualified to be appointed as Returning officers even though it had been amended once by specifically including officers of local authorities.
Parliament all along had treated the Secretaries of the State Legislatures as officers of Government for purposes of section 21, and had found it convenient to do so [951 C E] (v) Even though Article 98 and Article 187 contemplate the establishment of a separate secretariat staff for each House of Parliament and the State Legislature respectively, the salaries and allowances of the members of that staff are paid out of the Consolidated Fund of India or of the State, as the case may be after they are voted by the House or Houses concerned.
Their appointment and other conditions of service are regulated by Rules made by the President or the Governor, as the case may be, until an appropriate law is made by Parliament or the State Legislature.
[951 F G] (vi) In our Constitution, which has a federal structure there are both at the level of the Union and at the level of the State detailed provisions pertaining to the Legislature, the Executive and the Judiciary.
All the three organs are concerned with the governance of the country the first makes the laws, second enforces them and the third interprets them.
Sometimes their functions may be overlapping.
All the three organs together constitute the Government at their respective level.
[950 B C] (vii) The President is a part of the Parliament under Article 79 of the Constitution.
The executive power of the Union is vested in him under Article 53(1).
At the level of the State the position is analogous.
The Governor is a part of the Legislature of the State under Article 168 (1).
The Executive power of the State is vested in him under Article 154 (1) and he is consulted in the appointments of the judges of the High Court.
While under Article 235 the High Court is vested with the control over the subordinate Judiciary of the State, in the case of dismissal or removal of a judicial officer in the Subordinate Judiciary, the Governor has to issue the order though on the recommendation made by the High Court.
A study of these provisions shows that there is no water tight compartment between the three major organs of the State.
The Comptroller and Auditor General of India though he is assigned an independent status is an officer under the Union Government.
The Judges of the Supreme Court and of 942 a High Court are not servants of Government but hold a constitutional office.
But the Comptroller and Auditor General of India and the Judges of the Supreme Court and of a High Court are not eligible to contest elections to Parliament and the State Legislatures in view of Article 102 (1) (a) and Article 191 (1) (a) because they are serving in connection with the affairs of the Union and are therefore, holding offices of profit under the Central Government.
[950 C H; 591 A B] Pradyat Kumar Bose vs The Hon 'ble the Chief Justice of Calcutta High Court ; ; Gurugobinda Basu vs Sankari Prasad Ghosal & Ors. ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr [1978] I. section C. R. 423; & Hargovind Pant vs Dr.
Raghukul Tilak & Ors. ; referred to.
(viii) The position of a person who works as an officer of the Legislature of a State is also the same.
Even though he belongs under Article 187 to the staff of the State Legislature, he is still an officer of Government in the broad sense in which the expression 'Government is used in Article 102 (1) (a) and Article 191 (1)(a).
If the expression 'Government used is construed as meaning the Executive Government only, then it would defeat the very purpose of these provisions.
Similarly he has to be treated as an officer of Government for purposes of section 21 of the Act also qualified for being appointed as the Returning officer for an election held under the Act.
[951 A C] 2(1) This is not a case where general elections to the Legislative Assembly had been held before the normal tenure of the existing Legislative Assembly was over.
The previous Legislative Assembly having been dissolved in February 1980, on the publication of the notification containing the names of the elected members of the Legislative Assembly on June 9,1980 under Section 73, the Assembly was deemed to be duly constituted.
[953 D; 954 D] (ii) An elected member who has not taken 'oath ' but whose name appears in the notification published under section 73 of the Act can take part in all non legislative activities of an elected member.
The right of voting at an election to the Rajya Sabha can also be exercised by him.
[957 G] In the instant case the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under sec.
73 of the Act and in the electoral roll maintained under section 152.
There is therefore no infirmity in the nomination.
[957 H; 958 A] (iii) The words 'sitting and voting ' in Article 193 of the Constitution imply the summoning of the house under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting.
An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House.
Invariably there is an interval of time between the constitution of a house after a general election, and the summoning of the first meeting of the House.
During that 943 interval an elected member of the Assembly whose name appears in the notification issued under section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha.
[955 B D] (iv) The election for filling a seat in the Rajya Sabha does not from a part of the Legislative proceedings of the House carried on at its meeting.
Nor the vote cast at such an election is a vote given in the House on any issue arising before the House.
The speaker has no control over the election.
The election is held by the Returning Officer appointed for the purpose.
All the steps taken in the course of the election fall outside the proceedings that take place at a meeting of the House.
[955 E F; 956 B] Bhupendra Nath Basu vs Ranjit Singh, I. L. R. 41 Cal.
384, approved.


Input:
Civil Appeal No. 5047 (NT) of 1985.
From the Judgment and Order dated 17.7.
1985 of the Allahabad High Court in Sales Tax Revision No. of 1985.
Madan Lokur for the Appellant.
Ashok K. Srivastava for the Respondent.
M/s. D.H. Brothers Pvt. Ltd., a registered dealer under the U.P. Sales Tax Act, is engaged in the sale of machinery including sugarcane crushers.
After coming into force of the Uttar Pradesh Sales Tax Act, 1948 (hereinafter called 'the Act ') the State Government issued a notification dated June 7, 1948 exempting agricultural implements from the levy of sales tax.
Thereafter fresh notifications were issued from the time to time.
The relevant notification dated November 14,1980 enumerated the "Agricultural implements" as under: "Agricultural implements" worked by human or animal power, including Khurpi, Dibbler, Spade, Hansla (Sickle) Garden Knife, Axe, Gandasa, Chaff Cutters, Shears, Seca teurs, Rake, Shovel, Ploughs, Water lifting leather buckets (Pur and Mhot), Rahat and persian whell, Chain Pump, Harrows, Hoes, Cultivators, Seed Drills, Threshers, Shellers, Winnowing fans, Paddy weeders, Gardenfork, Lopper), Belcha, Bill Hook (Double edge), Kudali,Fork, garden Hatchet, Bill Hook (Single edge), Hay Bailer, Bund formers, Scrappers, Levellers or Levelling Karahas, Yokes, crop yield Judginghoops, Hand sprayers Hand dust ers, Animal driven vehicles including carts having pneumatic tyre wheels, crow bars, sugarcane Planters and accessories, attach ments and spare parts of these agricultural implements".
The assessee invoked the jurisdiction of Commissioner, Sales Tax, Uttar Pradesh under Section 35 of the Act claim ing that the Kohlu meant for extracting juice from sugarcane was an agricultural implement within the above quoted noti fication and as such was exempt from levy of Sales Tax.
The Commissioner by his order dated December 31, 1983 decided the question against the assessee.
The assessee filed appeal against the said order before the Sales Tax Tribunal.
Luc know Bench, under Section 10 of the Act.
The Tribunal upheld the findings of the Commissioner and dismissed the appeal.
Thereafter the assessee preferred a revision petition under Section 11 of the Act before the Allahabad.
High Court.
The High Court relying on its earlier decision in Bharat Engi neering and Foundry Works vs 426 The U.P. Government, [1963] 14 S.T.C. 262 dismissed the revision petition.
In that case the question for considera tion before the High Court was "whether cane crushers are agricultural implements within the meaning of the words 'agricultural implements ' as mentioned in the Government Notification. . and hence exempt from U.P. sales tax.
" The question was answered in the negative on the following reasoning: "Cane crushers and boiling pans are used only in the manufacture of gur from sugarcane.
Sugarcane is an agricultural produce and the process which results in the production of sugarcane is undoubtedly agriculture, but the production of gur from sugarcane is a manufac turing process and not an agricultural proc ess.
The agricultural process comes to an end with the production of sugarcane and when gur is subsequently being prepared it is manufac turing process that commences.
Merely because sugarcane is an agricultural produce anything that is done to it after it is product is not necessarily a continuation of the agricultural process.
It cannot be doubted that agricultur al produce can the subjected to a manufactur ing process; merely because gut is produced out of sugarcane which is an agricultural produce, the process of preparing gut does not become an agricultural process. .
An agricultural implement is an implement that is used in agriculture; any implement that is used after the agricultural process comes to an end and a manufacturing process commences, is not an agricultural implement.
" The High Court in Bharat Engineering case relied upon the following observations of this Court in Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy, "Agriculture is the basic idea underlying the expressions 'agricultural purposes ' and 'agricultural operations ' and it is pertinent therefore to enquire what is the connotation of the term 'agriculture '.
As we have noted above, the primary sense in which the term agriculture is understood is agar field and cultracultivation, i.e., the cultivation of the field, and if the term is understood only in that sense agriculture would be restricted only to cultivation of the 427 land in the strict sense of the term meaning thereby, tilling of the land, sowing of the seeds, planting and similar operations on the land.
They would be the basic operations and would require the expenditure of human skill and labour upon the land itself.
There are however other operations which have got to be resorted to by the agriculturist and which are absolutely necessary for the purpose of effec tively raising the produce from the land.
They are operations to be performed after the produce sprouts from the land, e.g., weeding, digging the soil around the growth, removal of undesirable undergrowths and all operations which foster the growth and preserve the same not only from insects and pests but also from depradation from outside, tending, pruning, cutting, harvesting, and rendering the produce fit for the market.
The latter would all be agricultural operations when taken in conjunc tion with the basic operations above de scribed, and it would be futile to urge that they are not agricultural operations at all. . " It is clear from the above quoted observations of this Court that the agricultural process comes to an end when the crop is harvested and is brought home for marketing or for further processing.
In the present case the agricultural process finishes when sugarcane is harvested.
Preparation of gur from sugarcane is not the continuation of the agricul tural process.
While giving meaning to an item in a taxing statute the Courts should give it a meaning as intended by the framers of the statute by looking at the various items mentioned in a particular group.
The items in one group should be consid ered in a genderic sense.
The notification dated November 14, 1980 includes various items under the head "agricultural implements".
It is no doubt correct that the said definition cannot be confined to the various implements specifically mentioned therein.
The definition being inclusive it has a wider import and any other implement which answers the description of an agricultural implement can be included in the definition.
A bare reading of the notification, however, shows that all the implements mentioned by name after the word "including. . "are by and large those which are used for cultivation of land and other operations which foster the growth and preserve the agricultural produce.
None of these implements can be worked after the agricultur al process in respect of a crop comes to an end.
Therefore the intention of the framers of the 428 notification could only be to limit the general words in the notification to the implements of the same kind as are specified therein.
We are, therefore, of the view that on the plain reading of the notification the sugarcane crushers do not come within the definition of agricultural imple ments.
It has been brought to our notice that from 1985 onwards the State Government has specifically exempted sugarcane crushers from the levy of sales tax.
We dismiss the appeal with no order as to costs.
G.N. Appeal dis missed.

Output:
The appellant, a registered dealer under U.P. Sales Tax Act, 1948 has been selling machinery including sugarcane crusher.
The State Government was issuing Notifications from time to time exempting agricultural implements from the levy of sales tax.
The State Government by its Notification dated 14.11.1980 amended the list and enumerated agricultural implements.
Since sugarcane crusher (Kohlu) was not included therein, the appellant claimed before the Sales tax Commis sioner that the Kohlu meant for extracting juice from sugar cane was an agricultural implement and as such was exempt from levy of sales tax.
Since the Commissioner negatived his claim, the appellant preferred an appeal before the Sales Tax Tribunal.
The Tribunal having upheld the findings of the Commis sioner, the appellant filed a revision petition before the High Court.
Relying on its earlier decision, the High Court dismissed the revision petition.
Aggrieved by the High Court 's decision, the appellant has preferred the present appeal.
Dismissing the appeal, this Court, HELD: 1.
The agricultural process comes to an end when the crop is harvested and is brought home for marketing or for further processing.
Preparation of gur from Sugarcane is not the continuation of the agricultural process.
[427D E] 424 Bharat Engineering and Foundry Works vs The U.P. Govern ment, [1963] 14 S.T.C. 262 and Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy, , relied on.
While giving meaning to an item in a taxing statue the Courts should give it a meaning as intended by the framers of the statute by looking at the various items mentioned in a particular group.
The items in one group should be considered in a generic sense.
[427F] 3.
In the instant case the notification dated November 14, 1980 includes various items under the head "agricultural implements".
The said definition cannot be confined to the various implements specifically mentioned therein.
The definition being inclusive it has a wider import and any other implement which answers the description of an agricul tural implement can be included in the definition.
A bare reading of the notification shows that all the implements mentioned by the name after the word "including. . "are by and large those which are used for cultivation of land and other operations which foster the growth and preserve the agricultural produce.
None of these implements can be worked after the agricultural process in respect of a crop comes to an end.
Therefore the intention of the framers of the notification could only be to limit the general words in the notification to the implements of the same kind as are specified therein.
As such sugarcane crushers do not come within the definition of agricultural implements.
[427F H; 428A B]


Input:
minal Appeal No 159 of 1967.
491 Appeal by special leave from the judgment and order dated April 28, 1967 of the Allahabad High Court in Criminal Appeal No. 2195 of 1964.
Anil Kumar Gupta, R. A. Gupta and Uma Datta, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, C.J.
The appellants are five in number who were prosecuted originally with.
11 others under diverse sections of the Indian Penal Code which included sections 147 and 148 of the Indian Penal Code and sections 333 and 353 read with section 149 of the Indian Penal Code.
of the original 16 accused in the case, 11 were acquitted in the Court cf Session.
The High Court, on appeal, confirmed their convictions with some modifications and reduced the sentences passed on them.
As a result of the High Court 's judgment, one of the appellants Gopi stands convicted under section 326 of the Indian Penal Code with a sentence of six months ' rigorous imprisonment and under section 148 of the Indian Penal Code with a like sentence, the two sentences of imprisonment to run concurrently.
Others are convicted only under s.147 of the Indian Penal Code and have been sentenced to imprisonment already undergone by them which we are told was in the neighbourhood of two weeks.
They now appeal by special leave against their conviction and sentences.
The facts of the case are as follows.
In November 1963 a she buffalo belonging to one Rajbir of village Chhainsa, police station Chhainsa in the district of Gurgaon (then a part of Punjab and now a part of Haryana) was stolen.
Rajbir 's suspicion was that the appellants Gopi and Munshi had stolen the buffalo and that they were keeping it in village Gunpara, police station Dankaur in Bulandshahr district in Uttar Pradesh.
There are certain allegations that Gopi and Munshi demanded a sum of Rs. 200 for the return of the buffalo, that the amount was paid but the buffalo was not returned.
We are not concerned with the truth of this statement.
A report of theft of buffalo was lodged at police station Chhainsa on November 26, 1963.
The report was sent to Sub Inspector Kesar Singh (P.W. 1) who was then at another village and he proceeded in the company of three constables and some other villagers to Gunpara.
From the village he took with him two other persons Rajey and Chander.
The police party was armed with rifles.
a revolver and lathis.
They reached the house of Gopi and Munshi at about 11 30 p.m. and found them sleeping in front of their house.
Gopi and Munshi were woken up by the police and were informed that the police party had come to search 492 for the buffalo.
The prosecution case is that Gopi and Munshi thereupon raised a hue and cry that the police party had arrived and on that the appellants and some other persons violently attacked the police party causing simple injuries to Kesar Singh, Mohan Singh and Sri Ram of the police force and grievous injury to Jodhra Ram.
The injury to Jodhra Ram was caused with a farsa on the head and had fractured his skull.
Later, the police party, when it was withdrawing, was again waylaid and the allegation is that Kesar Singh was wrongfully confined at Naurangpur.
He was then rescued 'by Mulaim Singh, a constable of police station Dankaur and Kesar Singh then went to Gunpa a where he made a report to the police station officer Dankaur who had by that time returned.
It may be mentioned that on behalf of the appellants a report was also lodged at police station Dankaur at 4 a.m. on the night of the occurrence, complaining that a dacoity was attempted to be committed at the house of Gopi and Munshi by some persons who were dressed in police uniform.
Investigation then followed and the appellants with 11 others who have since been acquitted were prosecuted.
The High Court considered whether the action of Kesar Singh in conducting the search outside the limits of his police station house was bona fide or under colour of office.
It gave a finding that it was ,not bona fide because Kesar Singh could have easily asked the police station house officer of Dankaur to conduct the search under section 166(1) of the Code of Criminal Procedure.
His explanation that the police at Dankaur were mixed up with the appellants ' party was considered a lame excuse.
However, the High Court felt that the action of the appellants was criminal because they knew that it was a police party.
In this appeal, the appellants had earlier undertaken to this Court that they would argue a pure point of law and that the record therefore need not be printed.
As a result, there is no evidence before us.
All that we have is the copy of the judgment of the High Court and the special leave petition with the grounds on which this appeal is to be argued.
The only question of law argued on behalf of the appellants is that the search was illegal and therefore the appellants had every right to resist it and further that they resisted the search party in the exercise of the right of private defence, thinking that the raiding party were decoits dressed in police uniforms.
As to the knowledge of the appellants about the identity of the raiding party, we have had the evidence of the witnesses read to us.
It is quite clear from that evidence that the sub inspector Kesar Singh had communicated to Gopi and Munshi that this was a raid by a police party who were out to search the premises for 493 the missing buffalo.
Therefore, the statement of the appellants that they took the raiding party to be dacoits is not true and we do not, therefore, believe it.
The argument, however, was raised that under section 165, the powers of search of station house officer are limited to the limits of his police station and he cannot make a search within the jurisdiction of another police station house officer.
Reliance was placed upon the provisions of section 165 to establish this.
There is no doubt that that is the normal and ordinary provision of the Code but then there is section 166 also to be read.
Under sub section 1 of that section a police officer may invoke the assistance of a police station house officer of another jurisdiction and ask him to conduct the search.
It is submitted that this is what the, sub inspector Kesar Singh ought to have done.
The powers of the police station house officer, however, are not confined to this only because sub section
3 of the same section gives the right and authority to the police station house officer to conduct search in the jurisdiction of another police station house officer if he has reason to believe that delay would be occasioned by requiring the officer in charge of the other police station to cause the search to be made and as a result evidence of the commission of the offence would be concealed or destroyed.
This is what the sub inspector Kesar Singh seems to have done.
His explanation was that the police of Dankaur were mixed up with the accused who had stolen the buffalo and therefore he took it upon himself to conduct the search and recover the buffalo.
The explanation in our opinion is believable because no police officer would ordinarily go into another jurisdiction unless there, are compelling reasons to do so.
A buffalo had been stolen a few weeks before and nothing had been done to recover it.
In these circumstances the sub inspector Kesar Singh might well have believed that unless he took some instant action, the buffalo would never be found.
Therefore his action was with due care and attention and cannot be said to be mala fide.
It was argued however that the sub section is limited to avoidance of delay and there was no case made out here that there was likelihood of delay it the police station house officer of Dankaur had been invited to conduct the search.
In our opinion in the case of stolen cattle, time is of the essence, because once the animal is removed and mixed up with others, it is very difficult to spot it in the big herds common in these places.
Therefore if the police officer had reason to believe that the police officers at Dankaur would take their own time because they were mixed up with the accused party, he had full jurisdiction in taking recourse to sub section
(3) of section 166 and to carry out the search himself.
It was contended before us that he ought to have recorded his reasons in writing as required by section 165 and also by section no question appears to have been put to the sub inspector to elicit from him whether the reasons were recorded or not.
Regard being had to the regularity of official acts, we are entitled to presume that the sub inspector must have taken the precaution to record his reasons.
In any event, we cannot hold this against the prosecution, because there is no material on which we can proceed.
We are therefore satisfied that the search in this case was bona fide and was conducted legally by Kesar Singh in another jurisdiction, because be had reason to believe that evidence, namely, the buffalo was likely to be lost if he did not take prompt action.
The accused were informed by him that it was the police party which had come and they had no reason to attack the police party either as dacoits or in self defence in any other form.
The offence of the appellants is therefore amply brought home to them.
We see no reason to interfere.
The appeal fails and will be dismissed.
G.C. Appeal dismissed.

Output:
On the basis of a First Information Report regarding loss of a buffalo lodged at police station, Chhainsa, the Sub Inspector of that police station sought to search the house of the appellants situated in the jurisdiction of police station, Dankaur.
The appellants and several others resisted the search and caused injuries to the police party, for which they were prosecuted under various sections of the Indian Penal Code.
The appellants along with certain others were convicted by the trial court and their appeals were disallowed by the High Court.
By special leave they appealed to this Court, contending : (i) that the officer of a police station cannot carry out a search in the jurisdiction of another police station without the permission of the Station House Officer of that station; in the present case the reason given by the Sub Inspector for not taking such permission, namely, that the local police was in league with the appellants did not satisfy the terms of section 166(3) of the Code of Criminal Procedure; (ii) that the search was also illegal for the reason that the Sub Inspector before attempting the search did not record his reasons as required by sections 165 & 166 of the Code; (iii) that being illegal the search was not bona fide. (iv) that the appellants were entitled to the right of private defence since they thought that the raiding party were decoits dressed as policemen.
HELD : (i) In the case of stolen cattle, time is of the essence, because once the animal is removed and mixed up with others, it is very difficult to spot it in the big herds common in these places.
Therefore if the police officer had reason to believe that the police officers at Dankaur would take their own time because they were mixed up with the accused party, he had full jurisdiction in taking recourse to sub section
(3) of section 166 and to carry out the search himself.
[493 G H] (ii) No questions were put to the Sub Inspector to elicit from him whether the reasons for the search were recorded or not.
Regard being had to the regularity of official acts it must be presumed that the Sub Inspector must have taken the precaution to ',record his reasons.
[494A] (iii) In the circumstances of the case the search was legal and bonafide.
[494 B] (iv) The accused were informed by the Sub Inspector that it was the police party which had come and they had no 'reason to attack the police party either as dacoits or in self defence in any other form.
[494 C]


Input:
N: Criminal Appeal No. 646 of 1992.
From the Judgment and Order dated 3.4.92 of the Gujarat High Court in Crl.
A. No. 161 of 1992.
T.U.Mehta, N.N. Keshwani, Ashok D. Shah, R.N. Keshwani and S.K. Gupta for the Appellant.
Anip Sachthey and Badri Nath for the Respondent.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
On 4th September, 1992 this Court had directed issue of notice on the Special Leave Petition as well as on application for bail returnable in four weeks and it was indicated that the matter will be heard and finally decided on that date.
However, there is no appearance on behalf of the State today.
Leave granted.
The matter is being disposed of.
This is an appeal by Special Leave against the judgment of the Division Bench of the Gujarat High Court dated 3rd April, 1992.
Four accused persons were tried by Special Judge, Ahmedabad.
Out of the said four accused only one of the accused person, namely accused No. 2, a Food Inspector has been convicted of offences punishable under Section 161 of the Indian Penal Code and Sections 5(1) (d) and 5(2) of the Prevention of Corruption Act, 1947.
The three other accused were acquitted by the learned Special Judge.
The State tiled the appeal against the acquittal of the three acquitted accused whereas accused No. 2 filed an appeal against his conviction and sentence.
The High Court dismissed the appeal of the State against the acquittal of accused No.1, 3 and 4 and at the same time dismissed the appeal of accused No. 2.
Accused No. 2 has come up to this Court by way of a Special Leave Petition against the aforesaid decision of the Division Bench.
The prosecution case is that the complainant Mohanlal Chhatramal Samnani is running a shop and inter alia dealing in Kimam opposite Maninagar Railway Station, Ahmedabad.
On 7th January, 1984, the Chief Inspector in the Health Department (accused No.1) and accused No. 2 (appellant herein) and accused No. 4, who were working under him as Food Inspectors, had approached the complainant at his shop and stated that they had been inspecting the food articles for adulteration and took a bottle of Kimam and opened it for sample and the complainant told them that it may be taken in sealed condition but they refused to do so and stated that the sample would not be passed and the complainant would be put to difficulties.
This was stated by accused No. 1 who further stated that the complainant should be practical.
The complainant enquired as to what was meant by being practical and the accused No. 2 (appellant) replied that "being practical" means "money".
The complainant then enquired as to the amount and he was told Rs. 5,000.00.
The complainant was not willing to make such payment.
However, he was pressurised.
The complainant stated that he did not have that much money and, therefore, he was asked to pay whatever the amount he could pay immediately and the complainant opened his `galla ' and gave Rs. 600.00 to accused No. 1.
The next day, on 8th January, 1984, accused No. 4 had come to his shop and enquired whether the money had been arranged but the complainant replied that it could not be done.
However, under pressure he gave Rs. 500.00 to accused No. 4 and asked for more time for making arrangement for more amount.
Thereafter, after about 15 days accused Nos. 2 & 4 had come to his shop demanding illegal gratification and the complainant requested for four days time.
After four days again the accused Nos. 2 & 4 came to his shop and the complainant again stated that the money could not be arranged and he may be given two days time.
After great difficulties, on complainant making a promise that he would pay the amount with 100% certainty, and on this final promise, accused Nos. 2 & 4 asked the complainant to keep the money ready on 30th January, 1984 at 3.00 p.m.
On 30th January, 1984 the complainant approached the office of the Anti Corruption Bureau and gave his complainant.
Two Panchas were called by the A.C.B.
In the presence of those two Panchas, the numbers of 40 currency notes of Rs. 100.00 each were noted done in two batchs of 20 each.
Each of these currency notes was treated with anthracene powder and a demonstration was made and shown to thc complainant and the Panchas.
One bundle of Rs. 2000.00 was to be given to accused No. I and another bundle was to be given to accused Nos. 2 & 4.
Panch No. 1 was to remain with the complainant and Panch No. 2 was to remain with the raiding party.
After making this preliminary panchnama raided party went to Maninagar and the complainant and Panch No. 1 went to the shop at about 6.30 p.m. and the others waited outside a little away.
After about an hour accused No. 2 came to the shop and the complainant asked accused No. 2 to come and sit but the accused No. 2 replied that he was in a hurry and asked the complainant to come with him where another Inspector was waiting near the Post Office.
Therefore, the complainant went with accused No. 2 and Panch No. 1 followed them.
Accused No. 3 and Jinto (absconding accused) were waiting and accused No. 2 introduced them to the complainant and asked the complainant as to what he had done about the money which was earlier talked about.
The complainant replied that he had brought the money.
The accused No. 2 demanded the same and the complainant took out the bundle of currency notes from one of his pockets and gave it to accused No. 2 who accepted it by his right hand and asked the complainant as to how much it was and the complainant replied that it was Rs. 2,000.00 and accused No. 2 asked as to for how many persons it was and the complainant replied that it was for three persons.
The accused No. 2 asked accused No. 3 to count the same and while Modi, accused No.3, was counting the same, the complainant gave the signal and the raiding party which had followed them immediately came there alongwith Panch No. 2.
All of them wont to the shop of the complainant where Modi was asked to give currency notes to the Panchas and exercise of ultra violet Iamp was undertaken and in the ordinary light, hands of each of the three Food Inspectors did not indicate any light change.
Thereafter, under ultra violet light, hands of all were seen and the hands of Panch No. 2 and the members of the raiding party did not show any change on their hands.
The hands of accused No.2 (appellant) were seen in the ultra violet light and the four fingers and thumb of the right hand showed the light blue colour and white sparkle.
So also was the position with regard to the right hand fingers and thumb of Jinto and his clothes, namely the right hand pocket of the pant, so also the fingers and thumb of both the hands of accused No.3, Modi, and the left hand pocket and the woollen cap of Modi showed white sparkle and the light blue colour.
The numbers of currency notes were compared with the numbers which were recorded in the preliminary panchnama and they were found to tally.
The currency notes also showed the anthracene powder in the ultra violet light.
The complainant 's hands were also seen and they also showed the anthracene powder in ultra violet light so also both his inside pockets of the coat.
Thereafter, the complainant and the Panchas went to the residence of accused No.1.
The complainant alongwith Panch No.1 went to the first floor of the flat of accused No.1.
Accused No.1 opened the door and asked these people to come inside and made them sit.
The complainant offered money to accused No.1.
He, however, refused to accept the same and, therefore, they came Out and no raid was made.
As stated earlier all the accused were tried by the learned Special Judge and accused Nos. 1, 3, & 4 were acquitted and ultimately the appeal of the State against their acquittal was dismissed by the High Court.
The High Court dismissed the appeal of accused No.2 also after noticing (i) that the Panchas did not recognize any of the accused persons; (ii) that there is no corroboration to what had happened in the meetings preceding the raid on 30th January, 1984; (iii) that the evidence of the complainant was disinterested and did not require any corroboration; and (iv) that the hands of accused No.2 were seen in ultra violet light and four fingers and thumb of the right hand showed the light blue colour and white sparkle.
The High Court had acquitted accused Nos. 3 & 4 in spite of the fact that their fingers have also showed light blue colour and white sparkle in ultra violet light but the High Court was not prepared to rely on that circumstance alone with the uncorroborated testimony of the complainant.
Since according to the High Court no demand had been made by accused Nos. 3 and 4 from the complainant for any bribe.
It will be noticed that not only the two Panchas could not recognize any of the accused persons but there is no corroboration to the various statements of the complainant vis a vis accused Nos. 1 to 4 by the police officials who constituted the raiding party either.
The raiding party including the police officials reached the spot at a time when they could neither hear the talk, if any, between the accused No. 2 and the complainant nor could see the alleged acceptance of money by accused No.2 and passing it on to accused No.3.
We are thus left with the sole testimony of the complainant and the test of seeing anthracene powder on the hands and fingers of accused No.2.
The High Court had acquitted accused No.3 and did not find it safe to convict him on the sole testimony of the complainant supported by the test of seeing anthracene powder on the hands and fingers of accused No.3.
in ultra violet light.
But on the same evidence the High Court upheld the conviction of accused No.2 relying on the same evidence which was rejected vis a vis accused No.3.
The High Court felt that the complainant was totally dis interested in the success of the raid and could not be called interested person and thus felt no need for corroboration of his statement.
The fact remains that the High Court totally ignored the statement of the complainant made during cross examination on behalf of accused No.2.
In his cross examination the complainant stated; "It is true that accused No.2 used to carry out raids on and often on Pan gallas.
It is true that I had felt that he is harassing businessmen selling Pan and Masalas.
It is true that is why we thought of teaching him a lesson.
It is true that in my statement before police, I have not stated that when accused No.1 asked as to why have you come, then I told that I am Kimamwala of Maninagar and according to talk with Shantilal, I have come to give money.
" It is clear that it is not a case merely of a complainant from whom bribe was demanded and he was forced to pay the same but the complainant had thought of teaching a lesson to accused No.2 for harassing the businessmen selling Pan Masalas and, therefore, it could not be said that the complainant was not interested in success or otherwise of the raid.
In fact the High Court acquitted accused No.3, though the evidence against him was the same as it was against accused No.2.
When the High Court could not find it safe to rely on the uncorroborated statement of the complainant while upholding the acquittal of accused No.3 we also find it unsafe to rely on the pise dixit of the complainant which is unsupported by both the Panch witnesses and the police officials who formed the raiding party for upholding the conviction of accused No.2, appellant before us.
The result is that the appeal succeeds, the conviction and sentence of the appellant is set aside and the appellant is acquitted.
N.V.K. Appeal allowed.

Output:
The prosecution case was that the complainant was running a shop and dealing in Kimam and that on 7th January, 1984, the Chief Inspector in the Health Department (accused No.1) and accused No. 2 (appellant in the appeal), accused No. 3 and accused No. 4 who were working as Food Inspectors had approached the complainant at his shop and stated that a they had been inspecting food articles for adulteration, and took a bottle of Kimam and opened it for sample and when the complainant told them that it may be taken in sealed condition, they refused to do so and stated that the sample would not be passed and the complainant would be put to difficulties, unless he paid Rs. 5,000.
The complainant was not wiling to make such payment but he was pressurised.
On the next day, 8th January, 1984 accused No. 4 came to the shop to enquire whether the money had been arranged.
He was given Rs. 500 and the balance was promised to be given on 30th January, 1984.
On 30th January, 1984 the complainant approaehed the office of the Anti Corruption Bureau and gave his complaint.
Two Panchas were called by the A.C.B., the number of 40 currency notes of Rs. 100 each were noted done in two batches of 20 each, the currency notes were treated with anthracene powder, a demonstration was made and shown to the complainant and the Panchas.
Panch No.1 was to remain with the complainant and Panch No. 2 was to remain with the raiding party.
The complainant and Panch No.1 went to the stop at about 6.00 p.m. and when accused No. 2 demanded the money, the complainant gave it to him, when he was apprehended by the raiding party.
The hands of accused No. 2 (appellant) were seen in the ultra violet light and the four fingers and thumb of the right hand showed the light blue colour and white sparkle.
The currency notes also showed the anthracene powder in the ultra violet light.
Thereafter, the complainant and Panchas went to the residence of accused No. 1.
The complainant offered money to accused No. 1.
He, however, refused to accept the same, and, therefore no raid was made.
All the four accused were tried by the Special Judge for offences under section 161 of the Indian Penal Code read with Sections 5(1) (d) and 5(2) of the Prevention of Corruption Act.
Accused Nos. 1, 3 and 4 were acquitted while accused No. 2 was convicted and sentenced by the Special Judge.
The State filed an appeal against the acquittal of the three accused whereas accused No. 2 filed an appeal against his conviction and sentence.
The High Court dismissed both the appeals.
It noticed that: the Panchas did not recognise any of the accused persons; there is no corroboration as to what had happened in the meetings preceding the raid on 30th January, 1984; the evidence of the complainant was disinterested and did not require any corroboration; and the hands of accused No. 2 when seen in ultra violet light the four fingers and thumb of the right hand showed the light blue colour and white sparkle.
Allowing the appeal, and setting aside the conviction and sentence, this Court, HELD: 1.
The High Court had acquitted the accused No. 3 and did not find it safe to convict him on the sole testimony of the complainant supported by the test of seeing anthracene powder on the hands and fingers of accused No. 3 in ultra violet light, but on the same evidence upheld the conviction of accused No. 2 relying on the same evidence which was rejected vis a vis accused No. 3.
[272 G] 2.
When the High Court could not find it safe to rely on the uncorroborated statement of the complainant while upholding the acquittal of accused No.3 it is unsafe to rely on the ipse dixit of the complainant which is unsupported by both the Panch witnesses and the police officials who formed the raiding party for upholding the conviction of accused No. 2, appellant.
[273 E] 3.
Not only the two Panchas could not recognise any of the accused persons but there is no corroboration to the various statements of the complainant vis a vis accused Nos.
1 to 4 by the police officials who constituted the raiding party either.
The raiding party including the police officials reached the spot at a time when they could neither hear the talk, if any, between the accused No. 2 and the complainant nor could see the alleged acceptance of money by accused No. 2 and passing it on to accused No. 3.
[272 E] 4.
The High Court totally ignored the statement of the 2complainant made during cross examination on behalf of accused No. 2, that he had thought of teaching accused No. 2 a lesson for harassing businessmen selling Pan and Masalas.
[273 A] 5.
It is clear that this is not a case merely of a complainant from whom bribe was demanded and he was forced to pay the same but the complainant had thought of teaching a lesson to accused No. 2 for harassing the businessmen selling Pan Masalas and therefore, it could not be said that the complainant was not interested in success or otherwise of the raid.
[273 D]


Input:
Civil Appeal Nos. 4799 4800 of 1992.
From the Judgments dated 4.3.1992 and 8.4.1992 in Madras High Court in W.P. No. 246/92 and W.A. No. 349 of 1992.
G. Ramaswamy Attorney General, K. Sankaran, A. Rangananthan and A.V. Rangam for the Appellants.
M.K. Ramamurthi, M.A. Krishnmoorthy, M.A. Chinnaswamy, H. Subramaniam and Ms. C. Ramamurthi for the Respondents.
Rajendra Sachhar, Ambrish Kumar and M.D. Pandey for the Inter vener.
The Order of the Court was delivered: Intervention application is allowed.
Leave granted.
Civil Appeal No. 4799 of 1992.
The controversy in this case is in a narrow compass.
The appellant Bank issued Staff Circular No. 42 containing an understanding reached with the Bank staff union laying down the policy for promotion of clerks to the post of Head Clerks.
Clause 1(d) of the said circular states as follows: Employees who decline to accept Head Clerk 's post at a Branch Office outside their place of service, i.e., outside their city, will again be offered the appointment only when a vacancy arises at any one of the offices within that city, provided that at the material time there is no other senior employees at that office who had earlier declined a posting outside his Branch, as a Head Clerk in which case the senior most employee will first be offered the appointment.
Also, if an employee declines to accept the post of a Head Clerk at an office within the same city, his case for appointment as Head Clerk will be considered only when a vacancy arises at his office, in the order of his seniority.
His case cannot be considered for a vacancy at any of the other offices in the city.
It will be apparent from the above provision of the said clause that those employees who decline to accept the Head Clerk 's post at a branch office which is outside the city in which they work will have a further option.
Such employees would be offered the post of Head Clerk again but only when a vacancy arises at any one of the Bank 's offices within that city.
This is of course subject to the condition that at the material time, there is no other senior employee who had similarly declined the post outside his branch office, in which case, the senior most would have the first choice.
The further provision of this rule and with which we are concerned in the present case is as follows.
If an employee declines to accept the post of Head Clerk at an office within the same city his case for appointment as Head Clerk would be considered only when a vacancy arises at his office.
This is also subject to the condition that there is no senior employee similarly situated at the material time.
If the third and the final offer for the post of Head Clerk is declined, there is a permanent debarment of the promotion.
One more thing necessary to be stated before we come to the facts of the present case is that the appellant Bank has a local Head Office at Madras.
In 1972, it was split into two the local Head Office and Madras Main Branch.
In 1976 77, there was a further splitting up of the local Head Office and the Main Branch and ultimately in 1979, the Madras Local Head Office was divided into following six offices as part of the same Head Office: "(i) Local Head Office (ii) Madras Main Branch (iii) Overseas Branch (iv) Regional Office, which is called Zonal Office (v) The Commercial Branch (vi) Siruthozhil Branch" 4.
There is no dispute that as far as the Clerks and the Head Clerks in all the six parts of the same local Head Office are concerned, a common seniority list is maintained.
The effect of the aforesaid arrangements for the purposes of the clause 1(d) is that "the employees" in the said clause means the employees in all the said six parts of the local Head Office.
In other words, if a vacancy for a Head Clerk occurred at any of the said six offices, it was considered to be a vacancy in one office, viz.
,the local Head Office of which the other five offices were only parts.
It appears that respondent Parthasarathy was working as a clerk in the Madras Regional Office (now called Zonal Office) which is, as will be clear from above, a part of the Local Head Office itself.
On 21st August, 1973, he was offered the post of Head Clerk at Deva Kottain which is outside Madras city.
This offer was declined by him.
On 1st July, 1980, he was offered the post of Head Clerk in the Sowkarpet branch office in the same city which was less than 2 kms, from his Regional office where he was working.
He declined the said offer too.
He was then entitled to be considered for posting as Head Clerk only in his office which meant in any of the six parts of the local Head Office, that being the third and the final offer that could be made to him.
The third offer was made to him for the post of Head Clerk at the Overseas branch, and that being part of the same local Head Office, he was bound to accept it.
However, he declined the third and the final offer also, and issued a lawyer 's notice to the Bank contending that the Overseas branch was different from the Regional office where he was working and, therefore, the offer given to him was contrary to the said clause 1(d).
The allegations made in the notice were of course denied by the bank.
On 6th September, 1983, one A. Nizamuddin who was working as Head Clerk in the Regional office passed away and that post became vacant.
On 24th September, 1983, the respondent filed a writ petition before the High Court for quashing the third and the final offer made to him on 4th August 1983, and for a direction for posting him in the Regional office where the vacancy had occurred.
The High Court took the view that the third offer made was not for the post of the Head Clerk in the same office where the respondent was working and, therefore, his refusal to accept the post did not exhaust the third option and he was entitled to the vacancy created by Nizamuddin 's death in the Regional office where the respondent was working.
We are afraid this interpretation is incorrect in view of the position explained above with regard to the local Head Office which was split into six different offices which together constituted one unit.
The respondent, when he was offered the third option in the Overseas branch, was offered the post in the same office where he was working, the Regional office being as much a part of the Head Office as the Overseas branch.
By refusing to accept the said third and the final offer, the respondent had clearly exhausted all his three options and had become permanently debarred from seeking promotion to the post of Head Clerk.
We, however, do not interfere with the appointment of the respondent to the post of Head Clerk in the Regional office in the facts and circumstances of the case which show that a fortuitous appointment had arisen within almost a month of his refusal to accept the offer.
This, however, will not be treated as a precedent nor does it affect the interpretation that we have placed on the clause 1(d) as above.
Civil Appeal No. 4800 of 1992 In this case also, the respondent Sampath was working as a Clerk in Madras Regional Office.
The first offer of the post of Head Clerk was made to him on 6th August, 1973 at Mudukulathur branch which is in Madras city.
This was declined by him.
On 12th May, 1980, he was given the second offer for the post of Head Clerk at Air Force Station branch, Tambaram which was in Madras city.
The third and final offer was made to him on 4th August, 1983 to the post of Head Clerk in the Stationery department of the Madras Local Head Office.
There is no dispute that Stationery department of the Local Head Offfice and the Regional Office form part of one unit, viz., Madras Local Head Office.
The respondent declined this offer as well, and on 23rd January, 1984 filed a writ petition in the High Court for quashing the third offer and for posting him in his office, viz., Regional Office as the Head Clerk.
The learned Single Judge of the High Court quashed the order making the third offer and allowed the petition following the earlier decision in Parthasarathy 's case with which we have dealt with earlier.
The Division Bench of the High Court also confirmed the order.
For the reasons we have given in C.A.No. 4799 of 1992, we are unable to accept the interpretation given by the High Court on clause 1(d) of Staff Circular No. 42.
However, if in the present case, the respondent has already been accommodated in the post of Head Clerk in the Regional Office itself, we do not intend to interfere with the same.
It is nonetheless made clear that it is the interpretation that we have placed on the said clause that will prevail and not the interpretation placed by the High Court.
With these observations, the appeals are allowed only to the extent that the interpretation placed by the appellant Bank on clause l(d) of the Staff Circular No. 42 is correct and the decision of the High Court on the point is incorrect.
There will be no order as to costs.

Output:
The appellant Bank issued Circular No. 42 containing an understanding reached with the Staff union laying down the policy for promotion of clerks to the post of Head Clerks.
As per clause 1(d) of the Circular the employees who decline to accept Head Clerk s post at a branch office outside the city in which they work, will have a further option when a vacancy arises at any one of the Bank 's offices within that city.
However, this was subject to the condition that at the material time there was no other senior employee who had similarly declined the post outside his branch office, in which case the senior most would have the first choice.
It was further provided that if an employee declines to accept the post of Head Clerk at an office within the same city, his case would be considered only when a vacancy arises at his office.
This was also subject to the condition that there was no senior employee similarly situated at the material time.
If the third and final offer is declined, there would be a permanent debarment of promotion.
Since there were six offices at the Madras Local Head Office, a common seniority was maintained and all the six offices were considered as one office, viz. local Head Office of which the other five offices were only parts.
The Respondents declined their first, second and final offers, though indisputably the final offer was made to them for being posted in an office forming part of the local Head Office.
Both the Respondents moved the High Court by way of Writ Petitions and the High Court took the view that the final offer made was not in the same office and so they were entitled to be posted as Head Clerks in the same office.
Being aggrieved by the said two decisions of the High Court, the appellant Bank preferred the present appeals.
On the question of interpretation of clause 1(d) of the circular in question: Allowing the appeals, this Court, HELD :1.
The High Court 's interpretation of cl. 1(d) of the Circular that the third offer made was not in the office where the Respondents were working and therefore their refusal to accept the post did not exhaust the third option and they were entitled to be posted as Head Clerks in the Office where they were working is incorrect in view of the fact that the local Head Office was split into six different offices which together constituted one unit.
By refusing to accept the third and final offer, the Respondents had clearly exhausted all the three options and had become permanently debarred from seeking promotion to the post of Head Clerk.
[366 E G] 2.
This Court does not intend to interfere with the appointment of the respondents to the post of Head Clerk in the Regional Office in the facts and circumstances of these matters which show that in one case a fortuitous appointment had arisen due to death of an employee within almost a month of the Respondent 's refusal to accept the offer, and in the other case, the Respondent has already been accommodated in the post of Head Clerk in the Regional Office itself.
However, this would not be treated as a precedent and this would not affect the interpretation of clause 1(d) of the Circular, placed by this Court.
[366 H; 367 A]