Input:
Appeal No. 118 of 1955.
Appeal from the judgment and order dated May 26, 1954, of the P.E.P.S.U. High Court in Misc.
Case No. 31 of 1953.
G. N. Joshi and R. H. Dhebar, for the appellant.
The respondent did not appear.
May 17.
The Judgment of the Court was delivered by 149 1162 KAPUR J.
This is an appeal under certificate of the Pepsu High Court and the question for decision relates to the applicability of the Indian Incometax Act, 1922, to the erstwhile Pepsu area in the years of assessment 1948 49 and 1949 50.
The assessee company (the respondent before us), was incorporated in the Patiala State and had its registered office at Surajpur in Pepsu.
For the year of assessment 1948 49 the company failed to deduct from out of the remuneration paid to its managing agents, who were non residents, the income tax and the supertax which, it, under the law, was required to do.
It also paid to its auditors auditing fees and from out of this sum also it did not deduct the income tax and super tax under the provisions of the Patiala Incometax Act.
The two sums in dispute were Rs. 59,787 1 0 and Rs. 581, 40 respectively.
For the assessment year 1949 50 also the assessee company failed to make the deduction from the remuneration paid to its managing agents and the income tax deductible was Rs. 52,484 14 0 and super tax Rs. 21,611 6 0.
The Income tax Officer took action against the assessee company under sections 18(3A) and 18(7) of the Patiala Income tax Act and consequently issued two demand notices for the amounts above mentioned.
Against this order of the Income tax Officer the assessee company took an appeal to the Appellate Assistant Commissioner who reduced the amount demanded but did not decide the question whether the assessee company was bound to make the deductions or not.
The assessee company then appealed to the Income tax Appellate Tribunal and it held that under section 18(7) of the Patiala Incometax Act no order was required to be passed by the Income tax Officer and that no appeal lay to the Appellate Assistant Commissioner against the order under section 18(3A) as there was no provision for it under the Patiala Income tax Act.
Before the Tribunal it was contended that at the time when the appeals were decided by the Appellate Assistant Commissioner, the Patiala Income tax Act had ceased to be in force and therefore the appeals were sustainable under the provisions of the Indian Income tax Act which had been 1163 extended to all Part B States by section 13 of the Indian Finance Act of 1950 (XXV of 1950) but this contention was repelled and the Tribunal held that the only remedy for the assessee company was to take a revision under section 33 of the Patiala Income tax Act to the Commissioner.
The Tribunal at the request of the assessee company referred the following three questions for the opinion of the High Court: (1)Whether the appeals before the Appellate Assistant Commissioner fell to be decided in accordance with the provisions of the Patiala Income tax Act or the Indian Income tax Act ? (2)Whether the appeals before the Appellate Tribunal fell to be decided in accordance with the provisions of the Patiala Income tax Act or the Indian ]Income tax Act ? (3)Whether, on the assumption that the assessee company was not bound to deduct tax, its appeals before the Appellate Assistant Commissioner were competent in law ? The High Court decided that in regard to the assessment year 1948 49, the law applicable was the Patiala Income tax Act and therefore no appeal Jay to the Appellate Assistant Commissioner but in regard to the assessment year 1949 50 the Indian law became applicable and therefore the order of the Income tax Officer was appealable.
The Revenue have come up in appeal under a certificate of the High Court and the submission is that to the assessment year 1949 50 also the Patiala Income tax Act applied and not the Indian Income tax Act and therefore the order of the Incometax Officer was not appealable.
In order to resolve the controversy, reference may be made to certain provisions of the Indian Income tax Act, 1922, and the Finance Act of 1950.
Section 13 of the Finance Act provides: section 13 " If immediately before the Ist day of April, 1950, there is in force in any Part B State other than Jammu and Kashmir or in Manipura, Tripura or Vindya Pradesh or in the merged territory of Cooch Behar any law relating to income tax or super tax or tax on profits of business, that law shall cease to have effect except 1164 for the purpose of the levy, assessment and collection of income tax and super tax in respect of any period not included in the previous year for the purpose of assessment under the Indian Income tax Act, 1922, for the year ending on the 31st day of March, 1951, or.
for any subsequent year or, as the case maybe, the levy, assessment and collection of tax on profits of business for any chargeable accounting period ending on or before the 31st day of March, 1949 ; " Section 13 of the Finance Act of 1950 shows that the Indian Income tax Act became applicable to the assessees residing, in any Part B State as from the assessment years 1950 51 or the accounting year 1949 50.
The provisions of section 2(14A) of the Indian Income tax Act, 1922, show that the Act became applicable to Part B States as from April 1, 1950.
The relevant provisions of this section are: S.2(14A) " taxable territories " means (d) as respects any period after the 31st day of March, 1950, and before the 13th day of April, 1950, the territory of India excluding the State of Jammu and Kashmir and the Patiala and East Punjab States Union.
Provided that the " taxable territories " shall be deemed to include (b) the whole of the territory of India excluding the State of Jammu and Kashmir (i). . . . . . . (ii) as respects any period after the 31st day of March, 1950,for any of the purposes of this Act and (iii) as respects any period included in the previous year for the purpose of making any assessment of the year ending on the 31st day of March, 1951, or for any subsequent year; It will be noticed that the language used in section 2(14A) proviso (b) (iii) is the same as the language under section 13 of the Finance Act of 1950.
The effect of the Finance.
Act of 1950 is that as regards assessment for the year ending March 31, 1951, the Indian Income tax Act 1165 would be applicable accounting year being the year ending March 31, 1950, and for any assessment year previous to that the Patiala Income tax Act would be applicable.
The effect of section 2(14A) proviso (b) (ii) & (iii) is that taxable territories would comprise the whole of India excluding the State of Jammu and Kashmir as respects any period included in the previous year for the purpose of making an assessment for the year ending March 31, 1951, i.e., for the assessment year 1950 51 or the accounting year 1949 50.
The application of the Indian Income tax Act as a result of section 13 of the Finance Act of 1950 was decided in The Union of India V. Madan Gopal Kabra (1) which was a case from Rajasthan where there was no income tax in the previous year but the assessee was sought to be assessed for the year 1950 51 under the Indian Income tax Act.
It was held 'that under sub cl.
(1) of cl.
(b) of the proviso to section 2(14A) the whole of the territory of India including Rajasthan would be deemed " taxable territory " for the purpose of section 4A of the Indian Income tax Act " as respects any period " meaning any period before or after March 31, 1950, and the assessee was therefore ' liable to income tax.
Patanjali Sastri, C.J., who delivered the judgment of the court said: " A close reading of that provision will show that it saves the operation of the State law only in respect of 1948 49 or any earlier period which is the period not included in the previous year (1949 50) for the purposes of assessment for the year 1950 51.
In other words, there remained no State law of income tax in operation, in any Part B State in the year 1949 50." This passage from the judgment supports the contention of the appellant that as regards income of the accounting year 1949 50 or the year of assessment 1950 51 no State law of income tax was operative in any Part B State.
It appears that the error which has crept in the judgment of the High Court has been due to misreading the year 1949 50 as being assessment year and not accounting year.
In another case D. B. Madhavakri shnaiah vs The Income Tax Officer (1) (1) ; , 552.
(2) ; 150 1166 section 13 of the Finance Act of 1950 was similarly interpreted.
Therefore both for the assessment years 1948 49 and 1949 50 the law applicable would be the Patiala Income tax law and not the Indian Income tax Act and consequently no appeal against the order of the ' Income tax Officer was competent.
The answers to the questions would be as follows:Questions Nos. 1 & 2: The Patiala Income tax Act was in operation and no appeals lay.
Question No. 3 In the negative.
The appeal is, therefore, allowed but as the respondent I company has not appeared and contested the appeal, there will be no order as to costs, in this court.
Appeal allowed.
APPENDIX Reference to the memory of Shri N. Chandrasekhara Aiyar, Ex Judge of the Supreme Court of India, by the Judges and members of the Bar of the Supreme Court of India, assembled at a meeting on April 1, 1957.
Shri section R. DAS, Chief Justice of India.
Solicitor General, it is with a heavy heart that I mention to you and the members of the Bar the passing away of Nagapudi Chandrasekhara Aiyar, who was an esteemed colleague and a very dear friend.
The melancholy news reached me yesterday evening.
Nagapudi Chandrasekhara Aiyar was born on January 25, 1888.
He was educated at Conjeevaram, Tirupati and Madras and was a student of the Christian College and the Madras Law College.
During his college days he was a keen sportsman, interested chiefly in Cricket.
This interest in sport he kept up even after he became a District Judge.
After a brilliant academic career, he was enrolled as a vakil of the Madras High Court in 1910.
He worked in the chambers of Dr. C. P. Ramaswami Aiyar whom he used to refer to as his master and for whom he had very high regard.
He picked up an extensive practice on the Original Side of the Madras High Court.
In July 1927 he became the City Civil Judge and in December of the same year he was appointed as a District and Sessions Judge.
He was raised to the Madras High Court Bench in July 1941 and worked there as a Judge until January 25, 1948.
The State utilised his mature experience in different spheres.
He was appointed as a member of the All India Industrial Tribunal (Bank Disputes).
He was later appointed as a member of the Indo Pakistan Boundary Disputes Tribunal.
Shortly thereafter he was appointed a Judge of this Court and was sworn in on September 23, 1950.
Immediately after his retirement from this Court on January 24, 1953, he was chosen as the Chairman of the Delimitation Commission.
Towards the end of his term in this Court he fell ill very 151 1168 seriously.
He responded to medical treatment and the devoted nursing of his good wife brought him round.
That illness, however, had undermined his otherwise robust health and had left him weak.
But undaunted by his physical ailments and in a true spirit of service he moved about from place to place all over India and successfully completed the work of the Commission.
Just at that time Chief Justice Mukherjea fell ill and on his advice Nagapudi Chandrasekhara Aiyar was called upon by the President to assist this Court as an ad hoe Judge.
This burden he cheerfully accepted and efficiently discharged to the satisfaction of all concerned.
Even after this he had to undertake, as Chairman, further work of delimitation consequent upon the re organisation of the States.
Nagapudi Chandrasekhara Aiyar was well grounded in legal principles.
To his legal acumen he added his deep insight into human nature and psychology and a robust common sense.
On all intricate legal problems presented before the Court he brought to bear a mental freshness, which often contributed to their solution.
The judgments written and delivered by him, which will be found reported in the Law Reports, will bear testimony to his legal learning and human sympathies.
In his behaviour towards the members of the Bar he was always kind and considerate.
Towards his colleagues he was systematically courteous.
Nagapudi Chandrasekhara Aiyar 's interest in life was not confined to law or within the cloistered compound of a court of law.
While he was a sound lawyer and a learned Judge, he was also a man of great erudition in Sanskrit and English literature.
He was, on the one hand, the editor of the latest edition of Mayne 's Hindu Law, he was, on the other hand, the author of " Anjaneya " which he had dedicated to his master and of Valmiki Ramayana.
For those of us, who came into close contact with him, his ready quotations from our ancient scriptures and literary works of our classical poets were indeed a matter of joy.
The Convocation addresses delivered by him were thoughtful and incisive, 1169 Nagapudi Chandrasekhara Aiyar above all was a warm hearted man, a man of genial temperament and a very friendly person.
His bubbling cheerfulness and refreshing sense of humor inevitably dispelled dullness and he had the kindly knack of putting everybody at ease.
He was a lively conversationalist, full of sparkling humor, and cheerful bon homie.
Those of us, who had the privilege of coming close to him, will always miss the glow and the warmth of his kind friendliness.
The passing away of an erstwhile esteemed colleague and a friend certainly brings to one 's mind a sense of loss and sadness.
We remember with gratitude the consideration, courtesy and kindness that we always received from him.
We request you to convey to his companion in life our sense of admiration for the constant care and devoted attention which she daily bestowed on him and our heartfelt sympathy for her in her dark and dismal day of sorrow.
We pray with her for the peace of his soul.
Shri C. K. DAPHTARY, Solicitor General of India.
My Lord, the news of the passing away of Shri Chandra.
sekhara Aiyar has come to most of us as an unexpected shock.
After his miraculous and seemingly complete recovery from illness a few years ago, it was hoped that he would be spared for many years to come, to continue his distinguished services to the State.
When he came to the Supreme Court Bench, he had behind him a record of work in the High Court and in other fields of public life and had won that admiration which is the just due of one who reaches the highest rung of the judicial hierarchy.
When he left he had won also respect and confidence by his forthright and robust dealing with problems uncluttered by oversubtlety.
He won too, affection by his hearty good fellowship and kindliness which embraced all alike, senior, junior and beginner.
By his death, the law has lost a notable personality and the state a citizen of outstanding quality, who laboured in its service, and had death not snatched him away would have continued to render valuable service.
1170 One behalf of the Bar and myself, I associate myself with the expression of regret and the tribute to Shri Chandrasekhara Aiyar 's memory which your Lordship the Chief Justice has so feelingly expressed.
Reference to the memory of late Justice ' Shri P. Govinda Menon, Judge of the Supreme Court of India by the Judges and members of the Bar of the Supreme Court of India, assembled at a meeting on October 17, 1957.
Shri section R. DAS, Chief Justice of India.
Additional Solicitor General and Mr. Vice President of the Supreme Court Bar Association, we have met here again under the shadow of death.
All of you must have read in the papers of the sudden demise of Mr. Justice P. Govinda Menon.
When I was with him yesterday afternoon, I never thought that his end was so near.
P. Govinda Menon was born in September 1896.
He received his early education in Ganpat High School, then in the Zamorin 's College, Kozhikode, and then in the Presidency College and the Law College in Madras.
He was enrolled as an Advocate in September 1920 and joined the Madras Bar and practised before the High Court.
In December 1940 he was appointed Crown Prosecutor.
He proceeded to Japan in April 1946 as the Indian representative before the International Military Tribunal for the Far East at Tokyo.
He acted as the Chief Indian Prosecutor from April to September 1946.
He ' was elevated to the Bench of the Madras High Court in 1947 and was there just over nine years before he was elevated to this Court in August 1956.
As a practitioner at the Bar, as Crown Prosecutor and as a Judge P. Govinda Menon acquitted himself with remarkable success.
His suavity of manners and his sweet and amiable disposition endeared him to the members of the Bar and to the Judges.
He had a wide circle of friends both at the Bar and outside the Bar.
As a Judge of the Madras High Court he presided over almost all the divisions of the Court and had to deal with various typos of cases, civil and 1171 criminal.
His work as Crown Prosecutor brought him valuable experience and insight into human nature and helped him to acquire a firm grasp of the principles of criminal law and jurisprudence.
While upholding the dignity and the majesty of the law, he had the capacity and courage of tempering justice with mercy.
He did not permit mere technicalities or senseless formalities to stand in the way of dispensing justice.
He also heard and disposed of heavy civil appeals and revisions.
He had a deep knowledge of Hindu Law and in particular, the Marumakattayam and Aliyasantana branches of it.
Indeed, the chapters on those subjects in the latest edition of Mayne 's Hindu Law were written by him.
He was generally helpful to the members of the Bar and in particular, to the junior section of it, who always would appear before him and make their submissions without fear or nervousness.
He was a man of studious habits and took interest in literary and cultural subjects.
When he came to this Court, he brought with him his mature judicial experience and learning and his sense of justice and fairplay.
My colleagues and I, who sat with him in Court, had his assistance and advice in dealing with matters coming up for decision before us. 'He was uniformly courteous lo the members of the Bar as well as to his colleagues on the Bench.
He was a conscientious worker, which is exemplified by the fact that although he felt definitely out of sorts for about a week before his death, he did not take rest lest the work in Court should be dis located and his colleagues and the members of the Bar engaged in the part heard cases should be inconvenienced.
Although I assured him that all arrangements had been made for carrying on the Court work, he kept on worrying for he did not feel at ease in his mind.
It was certainly a strain which, I am afraid, told upon his health.
My colleagues and 1, therefore, mourn the passing away of a sound lawyer, a good Judge, a loyal friend and a conscientious worker ' We shall be grateful if you will convey through his son, who fortunately was at his bedside at the time of his 1172 death, our sincerest condolences to the members of the bereaved family.
Shri H. N. SANYAL, Additional Solicitor General of India.
My Lords, the Indian Bar most respectfully associates itself with what has fallen from Your Lordship.
It expresses profound sympathy for the members of the family of Mr. Justice Menon.
It expresses its deepest sorrow and grief at the sudden death of Mr. Justice Menon.
In 1920, he became an Advocate of the Bar at Madras and within a short time he became one of its leading members.
In 1940, he was appointed Crown Prosecutor in Madras.
His name is remembered and will always be remembered that he acted with utmost fairness in conducting cases.
In 1946, he went to Tokyo on behalf of India.
There he discharged his duties with great ability.
He became a Judge in 1947 and within a short time he made himself very popular and won the respect and admiration of the profession.
Thereafter he came here as a Judge of the Supreme Court.
He had been here only for a short time but in this short time he had made a tremendous impression on the members of the Indian Bar by his unfailing courtesy and his keen desire of doing justice.
My Lords, Mr. Justice Menon was equipped with all the qualities which are essential for the discharge of the great judicial duties of the highest Tribunal in India.
In these days, when criticisms are so often made I feel it is my duty to point out that here was a Judge who died in harness and never spared himself in spite of illness for one day and up to the last moment when it was physically impossible for him to discharge the heavy duties of his office, he attended the Court and gave his very best for the sacred cause, that is to say, the administration of justice.
On behalf of the Indian Bar, I am offering our condolence and heart felt sym pathy to the members of his family, to his friends and to everyone near and dear to him.
Shri N. C. CHATTERJEE, Vice President, Supreme Court Bar Association.
My Lords, on behalf of the members of the Supreme Court Bar Association, it is my duty to voice the sentiments and feelings of the 1173 members of the Supreme Court Bar on this solemn occasion.
The unexpected and sudden demise of a great and good Judge is a great loss to this Court.
It ' is also a great loss to the State and to the Nation.
The Country has been deprived by the cruel hand of death of the services of an eminent and upright Judge, who maintained a very high reputation as a Judge of one of the most important High Courts of India and also a Judge of this august Tribunal.
As members of the legal profession we look upon an independent Judiciary as a symbol of sovereignty.
If there is one bulwark that guards the freedom of the average citizen, it is the Courts of Justice.
We are pledged to a strict adherence of the Rule of Law and in these days, when the work of the Judiciary is not properly appreciated, it gives us some comfort to remember that there are men like Mr. Justice Govinda Menon in India who sacrificed his health and life and fell a victim to the sacred cause of Law and Justice.
Those of us who had the privilege of enjoying his friendship should remember with gratitude that he was much greater as a man.
Unostentatious, gentle and kind hearted he won the affection of all who came into contact with him.
I am happy to bear testimony to his kindness, sympathy and consideration for myself and for many of my colleagues of the Bar.
A few years back when I had the privilege of associating myself with an important Bar function in South India, I discovered that Mr. Justice Menon 's courtesy, sweet temper and amiable disposition had endeared himself not only to his colleagues on the Bench but also to the members of the Bar.
I am happy to say that he maintained the same reputation as a Judge.
of this Court.
The Law Reports of Madras bear eloquent testimony to his erudition, his clear mind and his keen sense of justice.
Those of us, who had the privilege to appear in his Court, would bear testimony to his grasp of principles and the quiet and courteous attention he has bestowed on the cases argued before him.
His 1174 judgments were not mere collections of precedents but he dealt with principles with clarity and precision.
The highest tribute that I would like to pay to his memory to day is that the juniormost member of the Bar never felt uneasy for a single moment before him.
On behalf of the Supreme Court Bar we offer our sincere condolences to the members of the bereaved family.
We mourn his death and we pay our homage and tribute of appreciation and affection to the memory of this great Judge and this great gentleman.
May his soul rest in peace.

Output:
The respondent was a company incorporated in the former Patiala State with its registered office in the territory of Pepsu, a Part B State.
For the assessment years 1948 49 and 1949 50 in respect of the amounts of income tax and super tax which it failed to deduct from out of the remuneration paid to its managing agents, the Income tax Officer took action under the provisions of section 18 of the Patiala Income tax Act.
The Act did not provide for an appeal against the orders of the Income tax Officer under that section and the question for determination was whether an appeal lay under the provisions of the Indian Income tax Act, 1922, which was extended to all Part B States with effect from April 1, 1950, by section 13 of the Finance Act, 1950, and section 2(14A) of the Indian Income tax Act, 1922: Held, that the result of the extension of the Indian Income tax Act, 1922, to Part B States was that that Act was applicable to the assessment years 1950 51 and subsequent years and that for the assessment years 1948 49 and 1949 50 the law applicable was the Patiala Income tax Act.
Accordingly, an appeal against the order of the Income tax Officer in question was not competent.
The Union of India vs Madan Gopal Kabra, ; and D. R. Madhavakyishnaiah vs The Income Tax Officer, ; , followed.


Input:
ition No. 57 of 1979.
K. Hingorani for the Petitioners.
U. P. Singh for the Respondent.
534 The Order of the Court was delivered by BHAGWATI, J.
This writ petition again comes up for hearing before us pursuant to the directions given by us on 26th February, 1979(1) and today three additional counter affidavits have been filed on behalf of the respondents: one by Mrinmaya Choudhri, Assistant Inspector General of Prisons: the other by Bageshwari Prasad Pande, Superintendent of the Patna Central Jail and the third by Pradip Kumar Ganguly, Superintendent of the Muzafferpur Central Jail.
Mrinmaya Choudhri has in his affidavit given particulars of the under trial prisoners in 48 jails in the State of Bihar in addition to the particulars of the undertrial prisoners in 17 jails already submitted on 26th February, 1979.
We directed the State of Bihar by our order dated 26th February, 1979 to file a revised chart showing a year wise break up of the under trial prisoners after making a division into two broad categories viz. minor offences and major offences but this direction has not yet been carried out by the State of Bihar.
Mrinmaya Choudhri has, however, assured us in his affidavit that several steps regarding the different directions given by the Court are being promptly implemented but due to shortage of time it has not been possible complete the same by 3rd March, 1979.
We direct that the State of Bihar will file within three weeks from to day a revised chart in regard to the under trial prisoners in all the 65 jails in a manner which would clearly show year wise as to what is the date from which each of them is in jail after making a broad division into two categories of minor offences and major offences.
We are glad to note that so far as women under 'protective custody ' are concerned, the State has assured us in the affidavit of Mrinmaya Choudhri that necessary steps for transferring women under "protective custody ' in jails to the institutions run by the welfare department have been taken and directions to that effect are issued by the Government.
We hope and trust that this direction given by us in our earlier order dated 26th February, 1979 will be carried out by Government and compliance report submitted to us within the prescribed time.
Though we directed the State of Bihar by our order dated 26th February, 1979 to intimate to the court by a proper affidavit to be filed on or before 3rd March, 1979 whether the under trial prisoners whose particulars were given in the counter affidavit filed on 26th February, 1979 were periodically produced before the Magistrates in compliance with the proviso to section 167(2), we find that the only averment made by Bageshwari Prasad Pande in his affidavit in response to this direction is that petitioners Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 17 confined in the Patna Central Jail prior to their release were 535 regularly produced before the courts "as and when required by the courts".
This averment does not at all constitute compliance with the direction given by us.
We would like to know from the State of Bihar in a proper affidavit to be filed within two weeks from today whether the under trial prisoners who were directed to be released by us on their personal bond were periodically produced before the Magistrates in compliance with requirement of the proviso to section 167(2).
We would suggest that the State should furnish to this Court the dates on which these under trial prisoners were remanded to judicial custody from time to time by the Magistrates, so that we can satisfy ourselves that the requirement of the proviso was complied with.
We also find an averment in the affidavit of Pradeep Kumar Ganguly that Petitioners Nos.
10, 11, 12, 13, 15, 16 and 18 who were previously confined in the Muzaffarpur Central Jail prior to their release were regularly produced before the Court "as and when required by the courts".
This averment, as we have pointed out, is wholly unsatisfactory and it does not inform the Court as to what were the dates on which these under trial prisoners were remanded from time to time by the Magistrates.
It is only if these particulas are furnished to us that we can satisfy ourselves in regard to compliance with the requirement of the proviso to section 167(2) and we would, therefore, direct the State of Bihar to furnish these particulars to us in an affidavit to be filed within two weeks from today.
We should also like to have the particulars in regard to the dates on which remand orders were made from time to time by the Magistrates in regard to under trial prisoners at items Nos. 4, 5, 6, 7, 8, 13, 21, 22, 24, 28, 29, 30, 43, 56, 69, 71, 72, 79, 85, 92, 96, 97, 101, 129, 133, 136 to 142, 165 to 167, 170 to 174, 177, 191, 199, 210, and 236 in the list of under trial prisoners in Ranchi Central Jail submitted on behalf of the respondents.
These under trial prisoners have been in jail for a period of over six to seven years and we would like to satisfy ourselves that the requirement of the proviso to section 167(2) was complied with in their case.
The affidavit giving these particulars should be filed by the State Government within three weeks from today.
There are quite a larg number of under trial prisoners who are languishing in jail for long periods of time and it is not possible for us to examine the individual cases of these under trial prisoners for the purpose of satisfying ourselves in regard to compliance with the proviso to section 167(2), but we woudl request the High Court of Patna to pick out a few names from the lists of under trial prisoners which have been filed before us by the State of Bihar on 26th February, 1979 and 5th March, 1979 and satisfy itself 536 whether these under trial prisoners have been periodically remanded from time to time by the Magistrates as required by the proviso to section 167(2).
We would direct the State of Bihar to furnish copies of these lists of under trial prisoners to the Chief Justice of the Patna High Court within ten days from today.
We find from the lists of under trial prisoners filed before us on behalf of the State of Bihar that the under trial prisoners whose names are set out in the chart filed by Mrs. Hingorani to day have been in jail for periods longer than the maximum term for which they could have been sentenced; if convicted.
This discloses a shocking state of affairs and betrays complete lack of concern for human values.
It exposes the callousness of our legal and judical system which can remain unmoved by such enormous misery and suffering resulting from totally unjustified deprivation of personal liberty.
It is indeed difficult for us to understand how the State Government could possibly remain oblivious to the continued incarceration of these under trial prisoners for years without even their trial having commenced.
The judiciary in the State of Bihar also cannot escape its share of blame because it could not have been unware of the fact that thousands of under trial prisoners are languishing in jail awaiting trial which never seems to commence.
We fail to see how the continued detention of these under trial prisoners mentioned in the list of Mrs. Hingorani can be justified when we find that they have already been in jai for a period longer than what they would have been sentenced to suffer, if convicted.
They have in fact some jail term to their credit.
We, therefore, direct that these under trial prisoners whose names and particulars are given in the list filed by Mrs. Hingorani should be released forthwith as continuance of their detention is clearly illegal and in violation of their fundametal right under Article 21 of the Constitution.
Then there are several under trial prisoners who are charged with offences which are bailable but who are still in jail presumably because no application for bail has been made on their behalf or being too poor they are unable to furnish bail.
It is not uncommon to find that under trial prisoners who are produced before the Magistrates are unaware of their right to obtain release on bail and on account of their poverty, they are unable to engage a lawyer who would apprise them of their right to apply for bail and help them to secure release on bail by making a proper application to the Magistrate in that behalf.
Sometimes the Magistrates also refuse to release the undertrial prisoners produced before them on their personal bond but insist on monetary bail with sureties, which by reason of their poverty 537 the under trial prisoners are unable to furnish and which, therefore, effectively shuts out for them any possibility of release from pretrial detention.
This unfortunate situation cries aloud for introduction of an adequate and comprehensive legal service programme, but so far, these cries do not seem to have evoked any response.
We do not think it is possible to reach the benefits of the legal process to the poor, to protect them against injustice and to secure to them their constitutional and statutory rights unless there is a nation wide legal service programme to provide free legal services to them.
It is now well settled, as a result of the decision of this Court in Maneka Gandhi vs Union of India(1) that when Article 21 provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law, it is not enough that there should be some semblance of procedure provided by law, but the procedure unnder which a person may be deprived of his life or liberty should be 'reasonable, fair and just '.
Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as 'reasonable fair and just.
It is an essential indegredient of reasonable, fair and just procedure to a prisonel who is to seek his liberation through the court 's process that he should have legal services available to him.
This Court pointed out in M. H. Hoskot vs State of Maharashtra (2).:"Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supporteve skill is absent for one side.
Our judicature, moulded by Anglo American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer power for steering the wheels of equal justice under the law".
Free legal services to the poor and the needy is an essential element of any 'reasonable, fair and just ' procedure.
It is not necessary to quote authorative pronouncements by judges and jurists in support of the view that without the service of a lawyer an accused person would be denied 'reasonable, fair and just ' procedure.
Black, J., observed in Gidian vs Wainwright(3): "Not only those precedents but also reason and reffection require us to recognise that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.
This seems to us to be an obvious 538 truth.
Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime.
Lawyers to prosecute are every where deemed essential to protect the public 's interest in an orderly society.
Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences.
That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessties, not luxuries.
The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours.
From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.
This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him.
" The philosophy of free legal service as an essential element of fair procedure is also to be found in the following passage from the judgment of Douglas, J. in Jon Richard Argersinger vs Raymond Hamlin(1) "The right to be heard would be, in many cases of little avail if it did not comprehend the right to be heard by counsel.
Even the intelligent and educated layman has small and sometimes no skill in the science of law, if charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad.
He is unfamiliar with the rules of evidence.
Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.
He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one.
He requires the guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
If that be true of men of intelligence, 539 how much more true is it of the ignorant and illiterate or those of feeble intellect.
The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours.
From the very beginning our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.
This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
Both Powell and Gideon involved felonies.
But their rationale has relevance to any criminal trial, where an accused is deprived of his liberty.
x x x x x x The court should consider the probable sentence that will follow if a conviction is obtained.
The more serious the likely consequences, the greater is the probability that a lawyer should be appointed. .
The court should consider the individual factors peculiar to each case.
These, of course would be the most difficult to anticipate.
One relevant factor would be the competency of the individual defendent to present his own case.
(emphasis added)" We may also refer to Article 39A the fundamental constitutional directive which reads as follows: "39A. Equal justice and free legal aid: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
(emphasis added)" This Article also emphasises that free legal service is an inalienable element of 'reasonable, fair and just ' procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice.
The right to free legal services is, therefore, clearly an essential ingredient of 'reasonable, fair and just, procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21.
This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the 540 needs of justice so required, provided of course the accused person does not object to the provision of such lawyer.
We would, therefore, direct that on the next remand dates, when the under trial prisoners, charged with bailable offences, are produced before the Magistrates, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail, provided that no objection is raised to such lawyer on behalf of such under trial prisoners and if any application for bail is made, the Magistrates should dispose of the same in accordance with the broad outlines set out by us in our judgment dated 12th February, 1979.
The State Government will report to the High Court of Patna its compliance with this direction within a period of six weeks from today.
There are also various under trial prisoners who have been in jail for periods exceeding one half of the maximum punishment that could be awarded to them, if convicted, for the offences with which they are charged.
To take an example, Budhu Mahli, who is at item No. 1 in the list of undertrial prisoners in Ranchi Central Jail has been in jail since 21st November, 1972 for offences under Section 395 of the Indian Penal Code and Section 25 of the Indian Arms Act.
The maximum punishment for the offence under Section 395 of the Indian Penal Code is 10 years while that for the offence under Section 25 of the Indian Arms Act is much less.
Yet Budhu Mahli has been in jail as an under trial prisoner for over six years.
So also Jairam Manjhi, Somra Manjhi, Jugal Munda and Gulam Munda at Item Nos.
2 to 7 in the list of under trial prisoners confined in Ranchi Central Jail have been in jail as under trial prisoners from 21st February, 1974 that is, for a period of over five years for the offence under Section 395 of the Indian Penal Code which is punishable with a maximum term of imprisonment of ten years.
There are numerous other instances which can easily be gleaned from the lists of under trial prisoners filed on behalf of the State of Bihar, where the under trial prisoners have been in jail for more than half the maximum term of imprisonment for which they could be sentenced, if convicted.
There is no reason why these undetrial prisoners should be allowed to continue to languish in jail, merely because the State is not in a position to try them within a reasonable period of time.
It is possible that some of them, on trial may be acquitted of the offences charged against them and in that event, they would have spent several years in jail for offences which they are ultimately found not to have committed.
What faith would these people have in our system of administration of justice ? Would they not carry a sense of frustration and bitterness against a society which keeps them in jail for so many years for offences which they did not commit ? It is, therefore, absolutely essential that persons accused of offences 541 should be speedily tried, so that in cases where bail, in proper exercise of discretion, is refused, the accused persons have not to remain in jail longer than is absolutely necessary.
Since there are several undertrial prisoners who have been in jail for periods longer than half the maximum term of imprisonment for which they could if convicted, be sentenced, we would direct that on the next remand dates when they are produced before the Magistrates or the Sessions Courts, the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail and opposing remand provided that no objection is raised to such lawyer on their behalf and if any application for bail is made, the Magistrates or the Sessions Courts, as the case may be should dispose of the same in accordance with the broad guidelines indicated by us in our judgment dated 12th February, 1979.
The State Government will comply with this direction as far as possible within a period of six weeks from today and submit report of compliance to the High Court of Patna.
We may also take this opportunity of impressing upon the Government of India as also the State Governments, the urgent necessity of introducing a dynamic and comprehensive legal service programme with a view to reaching justice to the common man.
Today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to bring about changes in their life conditions and to deliver justice to them.
The poor in their contract with the legal system have always been on the wrong side of the law.
They have always come across "law for the poor" rather than "law of the poor".
The law is regarded by them as something mysterious and forbidding always taking something away from them and not as a positive and constructive social device for changing the socio economic order and improving their life conditions by conferring rights and benefits on them.
The result is that the legal system has lost its credibility for the weaker sections of the community.
It is, therefore, necessary that we should inject equal justice into legality and that can be done only by dynamic and activist scheme of legal services.
We may remind the Government of the famous words of Mr. Justice Brennan "Nothing rankles more in the human heart than a brooding sense of injustice.
Illness we can put up with.
But injustice makes us want to pull things down.
When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because 542 democracy 's very life depends upon making the machinery of justice so effective that every citizen shall believe in an benefit by its impartiality and fairness." And also recall what was said by Leeman Abbot years ago in relation to affluent America.
"If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury, when the poor who need it most cannot have it, when only a golden key will unlock the door to the courtroom, the seeds of revolution will be sown, the fire brand of revolution will be lighted and put into the hands of men and they will almost be justified in the revolution which will follow.
" We would strongly recommend to the Government of India and the State Governments that it is high time that a comprehensive legal service programme is introduced in the country.
That is not only a mandate of equal justice implicit in Article 14 and right to life and liberty conferred by Article 21, but also the compulsion of the constitutional directive embodied in Article 39A.
We find from the counter affidavit filed on behalf of the respondents that no reasons have been given by the State Goverment as to why there has been such enormous delay in bringing the under trial prisoners to trial.
Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of 'reasonable, fair and just ' procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused.
The State cannot be permitted to deny the constitutional right of speedy trial to the accused on he ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial.
The State may have its financial constraints and its priorities in expenditure, but, as pointed out by the Court in Rhem vs Malclm(1): "The law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty".
It is also interesting to notice what Justice, then Judge, Blackmum said in Jackson vs Bishop(2): "Humane considerations and constitutional requirements are not, in this day, to be measured by dollar considerations. " 543 So also in Holt vs Sarver(1), affirmed in 442 F. Supp. 362, the Court, dealing with the obligation of the State to maintain a Penitentiary System which did not violate the Eighth Amendment aptly and eloquently said "Let there be no mistake in the matter; the obligation of the Respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed upon what Respondents may actually be able to accomplish.
If Arkansas is going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States.
" The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inabiltiy.
The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State.
It is also the constitutional obligation of this Court as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial.
We find that in fact the courts in the United States have adopted this dynamic and consructive role so far as the prison reform is concerned by utilising the activist magnitude of the Eighth Amendment.
The courts have ordered substantial improvements to be made in a variety of archaic prisons and jails through decisions such as Hot vs Sarver (supra), Jones vs Wittenberg(2), Newman vs Alabama(3) and Gates vs Collier(4).
The Court in the last mentioned case asserted that it "has the duty of fashioning a decree that will require defendants to eliminate the conditions and practices at Parchman here in above found to be violative of the United State 's constitution" and in discharge of this duty gave various directions for improvement of the conditions of those confined in the State Penitentiary.
The powers of this Court in protection of the Constitutional rights are of the widest amplitude and we do not see why this 544 Court should not adopt a similar activist approach and issue to the State directions which may involve taking of positive action with a view to securing enforcement of the fundamental right to speedy trial.
But in order to enable the Court to discharge this constitutional obligation, it is necessary that the Court should have the requisite information bearing on the problem.
We, therefore, direct the State of Bihar to furnish to us within three weeks from today particulars as to the location of the courts of magistrates and courts of sessions in the State of Bihar together with the total number of cases pending in each of these courts as on 31st December, 1978 giving yearwise breakup of such pending cases and also explaining why it has not been possible to dispose of such of those cases as have been pending for more than six months.
We would appreciate if the High Court of Patna also furnishes the above particulars to us within three weeks from today since the High Court on its administrative side must be having records from which these particulars can be easily gathered.
We also direct the State of Bihar to furnish to us within three weeks from today particulars as to the number of cases where first information report have been lodged and the cases are pending investigation by the police in each sub division of the State as on 31st December, 1978 and where such cases have been pending investigation for more than six months, the State of Bihar will furnish broadly the reasons why there has been such delay in the investigative process.
The writ petition will now come up for hearing and final disposal on 4th April, 1979.
We have already issued notice to the Supreme Court Bar Association to appear and make its submissions on the issue arising in the writ petition since they are of great importance.
We hope and trust that the Supreme Court Bar Association will respond to the notice and appear to assist the Court at the hearing of the writ petition.

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At the resumed hearing of the petition for release of under trials in the State of Bihar.
^ HELD: (1) The procedure under which a person may be deprived of his life or liberty should be 'reasonable fair and just. ' Free legal services to the poor and the needy is an essential element of any 'reasonable fair and just 'procedure.
A prisoner who is to seek his liberation through the court 's process should have legal services available to him.
[537 C, D] Meneka Gandhi vs Union of India, [1978] 1 SCC 248; M.H. Hoskot vs State of Maharashtra, ; ; Gideon vs Wainwright; , ; 9 L. ed.
at 799; John Richard Argersinger vs Raymond Hamlin, ; 35 L. ed.
2d 530 at 535 36; referred to (2) Article 39A also emphasises that free legal service is an inalienable element of 'reasonable, fair and just 'procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice.
The right to free legal service is therefore, clearly an essential ingredient of 'reasonable, fair and just ' procedure for a person accused of, an offence and it must be held implicit in the guarantee of article 21.
This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services, on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.
[539 F 540 A] (3) The poor in their contact with the legal system have always been on the wrong side of the law.
They have always come across "law for the poor" rather than "law of the poor".
The law is regarded by them as something mysterious and forbidding always taking something away from them and not as a positive and constructive social device for changing the socio economic order and improving their life conditions by conferring rights and benefits on them.
The result is that the legal system has lost its credibility for the weaker sections of the community.
It is, therefore, necessary to inject equal justice into legality and that can be done only by a dynamic and activist scheme of legal services.
[541 E F] 533 4.
The urgent necessity of introducing a dpnamic and comprehensive legal services programme impressed upon the Government of India as also the State Governments.
That is not only a mandate of equal justice implicit in article 14 and right to life and liberty conferred by article 21 but also the compulsion of the constitutional directive embodies in article 39A. [542 D] 5.
The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability.
The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State.
It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, appointment of additional judges and other measures calculated to ensure speedy trial.
[543 D E] (6) The courts in the United States have adopted a dynamic and constructive role in regard to prison reform by utilising the activist magnitude of the Eighth Amendment.
The courts have ordered substantial improvements to be made in a variety of archaic prisons and jails through its decisions.
[543 F] Rhem vs Malclm, , Jackson vs Bishop, 571, Holl vs Sarver, ; ; Jones vs Wittenberg, ; Newman vs Alabama, ; Gates vs Collier, 349 F. Suppl. 881; referred to.
(7) The powers of this Court in protection of the Constitutional rights are of the widest amplitude and this Court should adopt an activist approach and issue to the State, directions which may involve taking of positive action with a view to securing enforcement of the fundamental right to speedy trial.
But in order to enable the court to discharge this constitutional obligation, it is necessary that the court should have the requisite information bearing on the problem.
[543 H 544 A] Directed that: (a) On the next remand dates when the under trials are produced before the Magistrates or the Sessions Courts the State Government should provide them a lawyer at its own cost for the purpose of making an application for bail and opposing remand provided that no objection is raised to such a lawyer on their behalf.
[540 B] (b) The State Government and High Court to furnish particulars as to the location of the courts of magistrates and courts of sessions in the State of Bihar together with the total number of cases pending in each of these courts as on 31st December, 1978 giving year wise break up of such pending cases and also explaining why it has not been possible to dispose of such of those cases as have been pending for more than six months.
[544 D]


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rsity/Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made.
[197D] 189 (v) The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are not available.
[197E F] & CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) No. 6324 of 1992.
From the Judgment and Order dated 20.11.1991 of the Rajasthan High Court in D.B. Civil Spl.
Appeal No. 226 of 1991.
S.K. Jain for the Petitioner.
Manoj Swarup, Ms. Lallta Kohli (For M/s Manoj Swarup & Co.) and S.K. Bhattacharya for the Respondents.
The following Order of the Court was delivered: By this petition, the petitioner has challenged the appointment of six respondents from General Category as Assistant Professors (Lecturers) in the Department of History in the University of Rajasthan.
The University invited applications by its advertisement dated 12.10.1983 for appointment to 10 posts of Assistant Professors (Lecturers).
The last date for submitting applications was 14.11.1983.
Out of 112 ap plications received, the Scrutiny Committee of the University on 25.4.1984 recommended 106 candidates for being interviewed, the remaining six being found ineligible for the posts.
Out of the 106 candidates so recommended, only 65 candidates appeared for interview, out of which the Scrutiny Committee selected 8 candidates who are respondents 5 to 12 before us.
Out of the 8, two were earmarked for the reserved posts.
We are not concerned with the selection of the said two candidates under the reserved category.
The Scrutiny Committee also placed five other candidates including the present petitioner on the waiting list.
The minimum qualifications for appointment to the post of Assistant Professor (Lecturer) as laid down by Ordinance 149 B of the Handbook of the University of Rajasthan, Part II, Volume I are as follows: 190 "141 B The following shall be the minimum qualifications for University teachers in the Faculties of articles Fine Arts, Social Sciences, Commerce and Science : A. Minimum qualifications for Lecturers/Research Associates in the Faculties of Arts, Social Sciences, Science and Commerce : [Except in the subjects of English, Modern European Languages, Physical Education, Health Education & Sports Journalism and Home Science]; a. A Doctorate degree or research work of an equally high standard; and b. Good academic record with at least a second class (C in the seven point scale) Master 's degree in a relevant subject from an Indian University or an equivalent degree from a foreign University having regard to the need for developing interdisciplinary programmes, the degree in (a) and (b) above may be in relevant subjects.
Provided that if the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in (b) above: Provided further that if a candidate possessing a Doctorate degree or equivalent research work is not available or is not considered suitable, a person possessing a good academic record (weightage being given to M.Phil. or equivalent degree or research work of quality) may be appointed provided he has done research work for at least two years or has practical experience in a research laboratory/organisation on the condition that he will have to obtain a Doctorate degree or give evidence of research of high standard within eight years of his appointment, failing which he will not be able to earn future increments until he fulfills these requirements.
" Although these were the qualifications required by the University Ordinance, the advertisement inviting applications stated the following 191 qualifications as necessary for being eligible to the posts : "ASSISTANT PROFESSORS (LECTURERS): (Except in the subject of Drawing & Painting and Dramatics, Education, Management studies and English).
(a) A Doctorate 's degree or research work of an equally high standard and (b) Good academic record with at least second class (C in the seven point scale) Master 's degree in a relevant subject from an Indian University or/equivalent degree from a foreign University.
Having regard to the need for developing interdisciplinary programmes, the degrees in (a) and (b) above, may be in relevant subjects: Provided that if the selection committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of very high standard, it may relax any of qualifications prescribed in (b) above. ' Provided further that if a candidate possessing a Doctor 's degree of equivalent research work is not available or is not considered suitable, a person possessing a good academic record, (weightage being given to M.Phil. or equivalent degree or research work of quality) may be appointed provided he has done research work for at least two years or has practical experience in a research laboratory/organisation on the condition that he will have to obtain a Doctor 's degree or give evidence of research of high standard within eight years of his appointment failing which he will not be able to earn future increment until he fulfils these requirements.
EXPLANATION For determining 'good academic record ' the following criteria shall be adopted : (i) A candidate, holding a Ph.D. degree should possess at least 192 a second class Master 's degree; or (ii) A candidate without a Ph.D. degree should possess a high second class Master 's degree and second class in the Bachelor 's degree; or (iii)a candidate not.
possessing Ph. D. degree but possessing second class Master 's degree should have obtained first class in the Bachelor 's degree.
Persons having secured marks more than the mid point of the prescribed minimum marks for passing an examination in the second division and the prescribed minimum marks for passing an examination in the first division by a university shall be deemed to have passed that examination in the high second class '.
It will be apparent that there was a divergence in the qualifications as per the University Ordinance (as quoted in the written submissions on behalf of respondent No. 5) and the qualifications as per the advertisement as stated in the rejoinder of the petitioner since in particular the Explana tion does not find place in the Ordinance.
The University itself has produced before us neither the Ordinance nor the advertisement issued.
In the absence of a copy of the relevant Ordinance, however, it is not possible to say as to whether the qualifications mentioned in the advertisement were at variance with those mentioned in the advertisement.
Be that as it may.
It will thus be obvious from the requirement of the aforesaid qualifications, that on the last date for submitting the applications, a candidate applying for the said posts should have had (a) doctorate Degree (in the relevant subject), or research work of an equally high standard (in the relevant subject), and (b) good academic record with at least a second class Master 's Degree (in the relevant subject).
However, if the Selection Committee was of the view that the research work of a candidate as evident either from his thesis or from his published work was of a very.
high standard, the Scrutiny Committee could relax the qualification that the candidate should have had at least a doctorate Degree or research work of an equally high standard and good academic record with at least a second class Master 's Degree.
Secondly, if the candidate possessing a doctorate degree or 193 equivalent research work was not available or even if available, was not suitable, the candidate possessing a good academic record (preferably M.Phil or equivalent Degree or research work of quality) could also be appointed provied he had done research work for at least two years or had practical experience in a research Laboratory/Organisation.
However, this relaxation could be given on the condition that the candidate would obtain a doctorate Degree or give evidence of research of high standard within eight years of his appointment.
If he did not satisfy the second requirement, all that he could be visited with was a handicap that he would not be able to earn future increments until he fulfilled the said requirement.
It is, therefore, obvious that a doctorate Degree was not a must and the lack of doctorate Degree could be made up by either of the qualifications laid down above.
None of the candidates except respondent No.10 who had applied and appeared for interview (including the petitioner) possessed the doctorate Degree by the last date of submitting the applications for the posts.
The six candidates from the general category whose appointment is challenged before us and who are respondents 5, 6, 7, 8, 10 and 11 before us had on the relevant date the following qualifications according to the Scrutiny Committee: S.I Name Respon Doctorate Published Good Good 2year No. dent No. Degree works of Record Record research high No. No. Standard 1.
Dr.(Miss) 11 No. No. Yes Yes No. santosh Sharma (Awarded on 4.1.85) 2.Shri Krishna 6 No. No. Yes Yes No. Gopal Sharma 3.
Dr.(Mrs.
) 10 Yes No. Yes Yes Yes Vibha Updhyaya 4.(Miss)Saroj 7 No. No. Yes Yes No. Sharma 5.Dr.
Shyam 5 No.
Yes Yes No. Yes Singh (Awarded Ratnawat on 14.12.84) 6.(Miss) 8 No. No. Yes Yes No. Pramila (Passed Sharma M.A in 1982) 194 It is apparent that respondent No. 5 had no doctorate Degree.
He had good academic record in M.A. but did not have good record in B.A.
He had published work of high standard and also two years ' research work to his credit.
Respondent No.6 had no doctorate Degree.
He had, however, good academic record both in M.A. and B.A.; but had neither any published work of high standard nor two years research experience, to his credit.
Respondent No.7 had no doctorate Degree.
She had, however, good academic record both in M.A. and R.A. She had not published work of high standard nor had she two years ' research work to her credit.
Respondent No. 8 had no doctorate Degree.
She had, however, good academic record both in MA.
and B.A. though she did not have to her credit published work of high standard nor two research work.
Respondent No.10 had doctorate Degree and also a good academic record both in M.A. and BA.
She had also experience of two years research work though there was no published work of high standard to her credit.
Respondent No.11 had no doctorate Degree.
She had, however, good academic record both in M.A. and B.A. She had no published work of high standard or two years ' research work to her credit.
It is on record that respondent Nos. 5 and 11 were awarded doctorate Degree on 14.12.1984 and 4.1.1985 respectively which is of course irrelevant since the qualifications had to be judged with reference to the last date for submitting the applications for the posts.
Thus except in the case of respondent No.10, the qualifications of the other selected candidates had to be relaxed by the scrutiny Committee.
However, there is no record of the minutes of the meetings of the Scrutiny Committee to show whether and in what manner the Scrutiny Committee had applied its mind and relaxed their qualifications.
The affidavit filed on behalf of the University shows that the minutes, if kept, were destroyed.
It was sought to be argued by Shri Manoj Swarup on behalf of the University that since at the time of the selection, respondent Nos. 5 and 11 had obtained their doctorate Degrees they could be said to have fulfilled the qualifications.
He also argued that since respondent Nos. 6 and 7 were registered for Ph.D. on 22.1.1982 and 26.5.1982 respectively, by the time of the selection they had put in research work connected with their thesis and in February 1985, viz., the date of selection, they had about 3 years ' experience in research work.
As regards respondent No. 8, she had good 195 acadamic record both in M.A. and BA.
and the Scrutiny Committee could under the Ordinance relax the qualifications as admittedly sufficient number of candidates with the doctorate Degree were not available.
He also urged in this connection that even the petitioner did not have the doctorate Degree.
He further submitted that it was open to the Scrutiny Committee to weigh the over all qualifications of the candidates and relax the required qualifications in favour of the deserving and suitable candidates which the Scrutiny Committee did or should be deemed to have done.
The Scrutiny Committee was a high power Committee and after interviewing 65 candidates, it had selected only 8 candidates and had placed them in the order of merit.
The Court should not, therefore, interfere with the said selection.
He further pointed out that the candidates had already been appointed in February 1985 and they have been working eversince till date.
Some of them are also due for promotion to the higher posts in the near future.
Their record of teaching so far has been excellent and unblemished.
Whatever may be the defects in the selections, this Court may not interfere with the said process of selection at this late stage.
5.The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected.
The date of selection is invariably uncertain.
In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications.
Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts.
The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications.
But a still worse consequence may follow, in that it may leave open a scope for malpractices.
The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily.
Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications.
We have, 196 therefore, no hesitation in holding that when the selection Committee in the present case, as argued by Shri Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed.
Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad & Anr.
vs B. Sarat Chandra & Ors., and The District Collector & Chairman, Vizianagaram (Social Welfare Residential School Society) Vidanagaran & Anr.
vs M. Tripura Sundari Devi, (1990) 4 SLR 237.
6.However, for the reasons which follow, we are not inclined to set aside the selections in spite of the said illegality.
The selected candidates have been working in the respective posts since February 1985.
We are now in January 1993.
Almost eight years have elapsed.
There is also no record before us to show as to how the Selection Committee had proceeded to weigh the respective merits of the candidates and to relax the minimum qualifications in favour of some in exercise of the discretionary powers vested in it under the University Ordinance.
If the considerations which weighed with the Committee in relaxing the requisite qualifications were valid, 'it would result in injustice to those who have been selected.
We, however, feel it necessary to emphasise and bring to the notice of the University that the illegal practices in the selection of candidates which have come to light and which seem to be followed usually at its end must stop forthwith.
it is for this purpose that we lay down the following guidelines for the future selection process: A. The University must note that the qualifications it advertises for the posts should not be at variance with those prescribed by its ordinance/Statutes.
B. The candidates selected must be qualified as on the last date for making applications for the posts in question, or on the date to be specifically mentioned in the advertisement/notification for the purpose.
The qualifications acquired by the candidates after the said date should not be taken into consideration, as that would be arbitrary and result in discrimination.
It must be remembered that when the advertisement/notification represents that the candidates must have the qualifications in ques 197 tion, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do not have such qualifications do not apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date.
In the circumstances, many who would otherwise be entitled to be considered and may even be better then those who apply, can have a legitimate grievance since they are left out of consideration.
When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement/notification both that the qualifications will be relaxed and also the conditions on which they will be relaxed, the relaxation will be illegal.
D. The University/Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made.
The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of.
An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are not available.
7.Although, therefore, for reasons stated above, we deem it inadvisable to interfere in the selections made in the present case, we direct that the University and its Selection Committee should observe the above norms in all future selections.
The Special Leave Petition is dismissed subject to the above directions.
G.N. Petition dismissed.

Output:
The Respondent University invited applications for appointment to 10 posts of Assistant Professors.
Out of 112 applications received, the Screening Committee recommended 106 candidates for being Interviewed and found the remaining 6 applicants ineligible.
However, only 65 candidates appeared for the interview.
6 candidates were selected from the general category , and 2 from the Reserved Category.
5 candidates Including the petitioner were placed on the waiting list.
As per the advertisement, a candidate should have a doctorate degree or research work of equally high standard, and good academic record with atleast a Second Class Master 's Degree.
The lack of doctorate degree could be made up by either research work of equally high standard or M.Phil with two years research work.
Except in the case of Respondent No.10, who had a doctorate degree as on the last date for submission of applications, the qualifications of other selected candidates had to be relaxed by the Scrutiny Committee.
The petitioner challenged the appointment of the six selected candidates from the general category, before the High Court, but was not successful.
Being aggrieved by the High Court 's judgment, the petitioner preferred the present Special Leave Petition.
On behalf of the Respondent University it was contended that since at the time of selection Respondent Nos. 5 and 4 had obtained their doctorate degrees they could be said to have fulfilled the qualifications; 187 that since respondent Nos. 6 and 7 were registered for Ph. D. in 1982, by the time of the selection they had put in research work connected with their thesis and on the date of selection, they had about 3 years ' experience in research work; that respondent No.8 had good academic record both in MA and B.A. and the Scrutiny Committee could under the Ordinance relax the qualifications as admittedly sufficient number of candidates with doctorate degrees were not available; and that even the petitioner did not have the doctorate degree; that the candidates had already been appointed in February 1985 and they have been working since then and some of them were also due for promotion to the higher posts in the near future; and that their record of teaching so far has been excellent and unblemished and so their selection need not be interfered with at this late stage.
Dismissing the Special Leave Petition and laying down the guidelines for future selection process, this Court, HELD : 1.
In the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications.
Therefore, when the Selection Committee took into consideration the requisite qualifications as on the date of selection rather than on the last date for preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed.
However, the selected candidates have been working in the respective posts since February 1985.
Almost eight years have elapsed. 'Mere is also no record to show as to how the Selection Committee had proceeded to weigh the respective merits of the candidates and to relax the minimum qualifications in favour of some candidates in exercise of the discretionary powers vested in it under the University Ordinance.
If the considerations which weighed with the Committee in relaxing the requisite qualifications were valid, it would result in injustice to those who have been selected.
For these reasons, this Court is not inclined to set aside the selections made by the Screening Committee.
[195H, 196A E] A.P. Public Service Commission, Hyderabad & Anr.
vs B. Sarat Chandra & Ors., and The District Collector Society) Vizianagaram & Anr.
vs M. Tripura Sundari Devi, (1990) 4 SLR 237, relied on.
188 2.
It is necessary to emphasise and bring to the notice of the Respondent University that the illegal practices in the selection of candidates which have come to light and which seem to be followed usually at its end must stop forthwith.
For this purpose the following guidelines are laid down for the future selection process: (i) The University must note that the qualifications it advertises for the posts should not be at variance with those prescribed by its Ordinance/Statutes.
[196F] (ii) The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement/notification for the purpose.
The qualifications acquired by the candidates after the said date should not be taken into consideration, as that would be arbitrary and result in discrimination.
It must be remembered that when the advertisement/notification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do not have such qualifications do not apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date.
In the circumstances, many who would otherwise be entitled to be considered and may even be better than those who apply, can have a legitimate grievance since they are left our of consideration.
[196G,H, 197A B] (iii) When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement/notification both that the qualifications will be relaxed and also the conditions on which they will be relaxed, the relaxation will be illegal.