PROMOTION = Seniority was only to be taken into consideration where merit and ability of two eligible candidates was found to be approximately equal. This would lead us to yet another relevant inference on the issue in hand. In the above view of the matter, every claim for onward promotion from the post of Motor Vehicles Inspector (Grade II) was liable to be considered on the basis of merit. Therefore, an individual with superior merit would steal a march over those less meritorious. Thus viewed, if respondent no.5, K.V. Karthalingan, was actually possessed of outstanding and exceptional merit, as is sought to be suggested, he would have stolen a march over his seniors even under the existing Special Rules. Thus viewed, even by the manner/method of onward progression postulated in the Special Rules, a person with conspicuous merit and ability (as postulated under Rule 36(b)(ii) of the General Rules), would overtake others without having to invoke Rule 36(b)(ii) of the General Rules. This does not seem to have happened in case of respondent no. 5, K.V. Karthalingan. On his consideration, after he had acquired eligibility for promotion to the post of Motor Vehicles Inspector (Grade I), he was promoted as such only on 10.5.2000. The merit and ability possessed by respondent no. 5, K.V. Karthalingan, is not shown to have resulted in his having superseded other members of the cadre senior to them. For the instant reason also, reliance placed by respondent no. 5, K.V. Karthalingan, for out of turn/accelerated promotion under Rule 36(b)(ii) of the General Rules deserves outright rejection. We find it difficult to appreciate the approach of the Administrative Tribunal, as also, the High Court. The simple reason depicted in the State Government’s order dated 8.12.1998 was, that the instances of extraordinary service relied upon by respondent no. 5, K.V. Karthalingan, to claim out of turn/accelerated promotion, could not be treated as exceptional or unprecedented, as such instances were common in the Transport Department. Even though respondent no. 5, K.V. Karthalingan, had not disputed the aforesaid factual position, it is difficult to understand how the Administrative Tribunal, as also, the High Court had accepted the claim of respondent no. 5, K.V. Karthalingan, by concluding that he had actually rendered extraordinary and exemplary service. Since the factual assertion made by the State Government in its order dated 8.12.1998, had remained unrebutted, we are of the view, that the Administrative Tribunal, as also, the High Court, were wholly unjustified in recording such a conclusion. For the instant reason also, the impugned orders dated 10.7.2002 (passed by the Administrative Tribunal) and 13.10.2004 (passed by the High Court) deserve to be set aside. 30. For the reasons recorded hereinabove, we find merit in the various contentions advanced by the learned counsel for the appellants. The order passed by the Administrative Tribunal on 10.7.2002 (while disposing of Original Application no. 429 of 2002) and the order passed by the High Court on 13.10.2004 (while disposing of Writ Petition (Civil) no. 21562 of 2003) directing the promotion of respondent no. 5, K.V. Karthalingan, to the post of Regional Transport Officer, are clearly unsustainable. They are accordingly hereby set aside. 31. Allowed in the aforesaid terms.

PUBLISHED IN http://judis.nic.in/supremecourt/filename=40460
Page 1
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4832 OF 2013
(Arising out of SLP (C) No. 3464 of 2012)
P. Dharni & Ors. … Appellants
Versus
Govt. of Tamil Nadu & Ors. … Respondents
J U D G M E N T
Jagdish Singh Khehar, J.
1. Leave granted.
2. The controversy raised in the instant appeal revolves around the
genuineness of the claim of respondent no. 5, K.V. Karthalingan, for
promotion from the post of Motor Vehicles Inspector (Grade II) to the post
of Regional Transport Officer. In order to understand the veracity of the
aforesaid claim it would be relevant to mention, that the post of Motor
Vehicles Inspector (Grade II) is the lower most entry level post. The post
of Motor Vehicles Inspector (Grade II), is filled up only by way of direct
recruitment. Onward promotion therefrom is to the post of Motor VehiclesPage 2
Inspector (Grade I). It is not a matter of dispute, that Special Rules framed
under Section 42 of the Tamil Nadu Transport Subordinate Service
exclusively prescribe the conditions of eligibility and the manner/method of
promotion from the post of Motor Vehicles Inspector (Grade II) to the post of
Motor Vehicles Inspector (Grade I). The aforesaid rules came into force with
effect from 19.8.1981. The said rules have been made available to us from the
Tamil Nadu Service Manual, Volume III. For purposes of the present
controversy, a relevant extract of rules 2, 5 and 9 of the said Special Rules is
being reproduced hereunder:-
“2. Appointment – (a) Appointment to the category mentioned in
column (1) of the table below shall be made by the methods
specified in the corresponding entries in column (2) thereof:-
TABLE
Category
(1)
Method of Recruitment
(2)
1. Motor Vehicle
Inspector Grade-I
Promotion from Motor Vehicles
Inspector, Grade – II
2. Motor Vehicles
Inspectors Grade - II
Direct Recruitments:
(b) Promotion to category – 1 shall be made on grounds of merit
and ability, seniority being considered only where merit and
ability are approximately equal.
xxx xxx xxx
5. Qualifications – (a) Age—(i) No per shall be eligible for
appointment to category-2 by direct recruitment, unless he
possesses the qualifications specified below, namely :-
(1) Must have completed 21 years of age;
2Page 3
(2) Must not have completed 32 years of age :
Provided that a person belonging to the Scheduled
Caste/Scheduled Tribes shall be eligible for appointment by
direct recruitment to category-2 if he has not completed 37
years of age.
Provided further that the minimum age limit of 21 years
prescribed above shall apply also to the candidate belonging
to Scheduled Caste/Scheduled Tribes and Backward Classes.
(ii) The age limit prescribed in this rule shall be reckoned
so far as direct recruits are concerned with reference to the
first day of July of the year in which the selection for
appointment is made.
(b) Other Qualifications.—No person shall be eligible for
appointment to the category specified in column (1) by the
method specified in column (2) of the table below unless he
possess the qualifications specified in the corresponding
entries in the column (3) thereof :-
TABLE
Sl.No.
(1)
Category
(2)
Method
(3)
Qualification
(4)
1. Motor
Vehicles
Inspectors,
Grade-I
Promotion i) Must have served as
Motor Vehicles
Inspector, Grade-II for a
period of not less than 5
years and must be an
approved probationer in
that category.
2. Motor
Vehicles
Inspectors
Direct
Recruitment xxx xxx xxx
xxx xxx xxx
9. Preparation of Annual List of approved candidates – For the
purpose of preparation of the annual list of approved
candidates for appointment by promotion, the crucial date on
3Page 4
which the candidates shall be qualified shall be the 15th March
of every year.”
A perusal of the rules extracted hereinabove reveals, that the post of Motor
Vehicles Inspector is to be filled up exclusively by promotion (Rule 2(a)).
The above rules postulate, that merit and ability would be the criterion for
such promotion (Rule 2(b)). It is also clarified that seniority would be taken
into consideration, only when merit and ability of the competing candidates
is found to be almost the same. The above Special Rules lay down, that
Motor Vehicles Inspectors (Grade II) would be considered for promotion to
the post of Motor Vehicles Inspector (Grade I) only after rendering five
years’ service (Rule 5(b)). Eligibility, on the basis of the qualifications
prescribed for promotion to the posts of Motor Vehicles Inspectors (Grade
I) is to be determined annually. For the said exercise the cut off date is
15th of March of every year (Rule 9).
3. It is also relevant to mention, that Special Rules have been framed
under Section 28 of the Tamil Nadu Transport Service for regulating the
conditions of eligibility and the manner/method of appointment, inter alia to
the post of Regional Transport Officer. Under the above rules, the post of
Regional Transport Officer can be filled up only by way of transfer. The
above Special Rules came into force with effect from 15.9.1974. The
same have been made available to us, from the Tamil Nadu Service
Manual, Volume II. Relevant extracts of Rules 2, 3 and 6 of the above
4Page 5
Special Rules, which have a bearing on the present controversy, and are
being reproduced hereunder:-
“2. Appointment.—(a) Appointment to these categories shall be
as follows :
Category
(1)
Method of Appointment
(2)
Category–1: Deputy Transport
Commissioner
1) By promotion from category-2; or
2) For special reasons by recruitment by
transfer from any other service on tenure
basis.
Category-2: (1) Regional
Transport Officer
and Additional
Transport Officer
(2) Assistant
Secretary State
Transport
Authority
1) By recruitment by transfer from
among—
(i) Motor Vehicles Inspectors,
Grade-I in the Tamil Nadu Transport
Subordinate Service; or
(ii) Superintendents, Selection
Grade and Personal Assistant to
Regional Transport Officers, in the
Tamil Nadu Ministerial Service;
(or)
(2) For special reasons by recruitment by
transfer from any other service on tenure
basis;
(3) Appointment of an Officer on tenure
basis from any State Transport
Undertakings.
(b) Promotion to Category-I shall be made on grounds of merit
and ability, seniority being considered only where merit and
ability of competing candidates are approximately equal.
(c) The posts in category 2 other than those filled up by
recruitment by transfer from any other service on a tenure
5Page 6
basis shall be filled up by rotation, the first, second, fourth and
fifth vacancies being filled up by recruitment by transfer from
among Motor Vehicles Inspectors, Grade I, and the third
vacancy being filled up by recruitment by transfer from
Superintendents in the Selection Grade and Personal
Assistants to Regional Transport Officers in the Ministerial
Service :
Provided that this rotation shall be followed in respect of
appointments made on and from the 26th June 1978 :
Provided further that the temporary appointments to Category-
2 made on and from the 15th September 1974 to the 25th June
1978 shall be regulated in the proportion of 1 : 1 between
Motor Vehicles Inspectors, Grading – I, and Superintendents,
Selection Grade, including Personal Assistants to Regional
Transport Officers in the Ministerial Service.
3. Qualification:- No persons holding the post specified in
Column (2) of the Table below, shall be eligible for
appointment to the category specified in column (1) unless he
posses the qualifications specified in column (3) thereof :
TABLE
CATEGORY
(1)
POST
(2)
QUALIFICATION
(3)
Category – 1
Deputy
Transport
Commissioner
1. Regional
Transport Officer
and Additional
Regional Transport
Officer
2. Assistant
Secretary, State
Transport Authority
xxx xxx xxx
Category-2
(1) Regional
Transport
Officer and
Additional
Regional
Transport
Motor Vehicles
Inspector, Grade-I
Must have served for a total
period of not less than five
years as Motor Vehicles
Inspector, Grade-I out of
which not less than two years
must be in a field office
6Page 7
Officer.
(2) Assistant
Secretary State
Transport
Authority
Superintendents,
Selection Grade
and Personal
Assistants to the
Regional Transport
Officers
Must have served for a total
period of not less than five
years as Superintendent or a
Personal Assistant to the
Regional Transport Officer of
which not less than two years
shall be as a Personal
Assistant to Regional
Transport Officer.
Provided that this rule shall not be applicable to appointments
prior to the date of 1st July 1978.
6. Preparation of Annual List of Approved Candidates – A list of
approved candidates for appointment by promotion to
Category 1 and recruitment by transfer to category 2 shall be
prepared every year. The crucial date for inclusion in the
panel of all eligible officers for such appointment shall be the
1
st July of the year in which the selection for appointment is
made.”
A perusal of the rules extracted above reveal, that appointment to the post
of Regional Transport Officer is to be made only by way of transfer,
interalia, from amongst Motor Vehicles Inspectors (Grade I) (Rule 2(a)).
Appointment by way of transfer to the post of Regional Transport Officer
from other services, (including the post of Motor Vehicles Inspectors
(Grade-I) is to be only on tenure basis (Rule 2(c)). It is significant to notice,
that to be eligible for appointment to the post of Regional Transport Officer
(from amongst Motor Vehicle Inspectors (Grade I)), the incumbent in
question must have served for a total period of not less than five years as
Motor Vehicles Inspector (Grade I), out of which not less than two years
must be in a field office (Rule 3). Eligibility, on the basis of the
7Page 8
qualifications prescribed for transfer to the post of Regional Transport
Officer, is to be determined annually. For the said exercise, the cut off
date stipulated under the Special Rules is 1st July of every year (Rule 6).
4. The career of respondent no. 5, K.V. Karthalingan, in the Transport
Department of the State Government commenced on his appointment by
direct recruitment as Motor Vehicles Inspector (Grade II), on 9.2.1995.
While serving as Motor Vehicles Inspector (Grade II), he claimed that he
had detected on a single date 14 cases of passenger vans being used as
public careers. He asserted, that he had seized the concerned vehicles,
whose owners were evading payment of tax (to the Transport Department).
He also asserted, that he had detected irregularities being committed by
certain dealers, for evading revenue (payable to the Transport
Department). He also claimed to have detected various instances where
dealers were found meddling with chassis numbers of vehicles. By a
process of tempering, chassis numbers were being altered, by the dealers.
According to respondent no. 5, his actions had resulted in bringing to book,
numerous persons evading payment of tax to the Transport Department.
According to respondent no. 5, K.V. Karthalingan, the above actions were
taken by him despite grave personal risks. In this behalf, it was his
assertion, that he had received a number of threatening letters, for having
revealed the aforesaid irregularities. In the above letters he was
8Page 9
threatened, that he would be eliminated. Despite receipt of such letters,
respondent no. 5 claims to have continued to discharge his duties with
dedication and devotion.
5. In appreciation of the above alleged exemplary devotion of duty
displayed by respondent no. 5, the Managing Director of the Tamil Nadu
State Transport Corporation, Kumbakonam Division-1, as well as, the
Managing Director of Cholan Roadways Corporation, recommended the
name of respondent no. 5, K.V. Karthalingan, for accelerated/out of turn
promotion as Regional Transport Officer. On 26.9.1997, having
considered the recommendations made by the Managing Directors
(referred to above), the Regional Transport Officer by citing Rule 36(b)(ii)
of the Tamil Nadu State and Subordinate Services Rules, also
recommended the claim of respondent no. 5 for out of turn/accelerated
promotion. The Deputy Transport Commissioner, Trichy, on 10.7.1998,
having considered the above recommendations, endorsed the claim of
respondent no. 5, K.V. Karthalingan, for accelerated/out of turn promotion,
to the Commissioner of Transport, Chennai. In order to appreciate the
recommendation made on 26.9.1997 by the Regional Transport Officer, it
is essential to extract hereunder Rules 36 and 36A of the Tamil Nadu State
and Subordinate Services Rules, which came into force with effect from
1.1.1955. It was pointed out, that the above rules were framed in exercise
9Page 10
of powers conferred by the proviso under Article 309 of the Constitution of
India. The said rules are reproduced below :-
“36. (a) Promotion — No member of a service or class of a
service shall be eligible for promotion from the category in
which he was appointed to the service unless he has
satisfactorily completed his probation in that category:
Provided that a member of a service or class of a
service who, having satisfactorily completed his probation in
the category in which he was appointed to the service, has
been promoted to the next higher category shall,
notwithstanding that he has not been declared to have
satisfactorily completed his probation in such higher category
be eligible for promotion from such higher category:
Provided further that if scales of pay of posts in the
feeder categories are different, the persons holding post
carrying a higher scale of pay in the feeder category shall be
considered first and that, if no qualified and suitable persons
holding post in that feeder category are available, the persons
holding post carrying the next higher scale of pay in
descending order in other feeder categories shall be
considered.
(b) (i) Promotions to selection category or grade.—
Promotions in a service or class to a selection category
or to a selection grade shall be made on grounds of
merit and ability, seniority, being considered only where
merit and ability are approximately equal. The inter-seseniority among the persons found suitable for such
promotion shall be with reference to the inter-seseniority of such persons in the lower post.
(ii) Promotion according to seniority—All other
promotions shall, be made in accordance with seniority
unless-
(1) the promotion of a Member has been
withheld as a penalty, or
(2) a Member is given special promotion for
conspicuous merit and ability.
10Page 11
(c) Appointment of a member to higher category not to be
considered if he had been on leave for three or four years or
more continuously.—Notwithstanding anything contained in
sub-rules (a) and (b), a member of a service who had been on
leave for a period of three years continuously for any reason
except higher studies or for a period of four years continuously
for higher studies, shall not be considered for appointment as
a higher category either by promotion or by recruitment by
transfer unless he has completed service for a period of one
year from the date on which he joins duty on return from
leave.
36A. Appointment by Recruitment by Transfer.—Appointments by
recruitment by transfer to a class or category in a State Service from
among the holders of posts in a Subordinate Service, shall be made
on grounds of merit and ability, seniority being considered only
where merit and ability are approximately equal.”
6. Whilst it is the claim of respondent no. 5, that he had a genuine
claim for out of turn/accelerated promotion under Rule 36(b)(ii), it is the
vehement contention of the learned counsel for the appellants before us,
that the aforesaid rule could neither be invoked for promotion to the post of
Motor Vehicles Inspector (Grade I) nor for appointment by way of transfer
to the post of Regional Transport Officer.
7. Before examining the merits of the controversy, it will be essential for
us to narrate the sequence of events leading to the direction by the High
Court of Judicature at Madras (hereinafter referred to as the ‘High Court’),
for promoting respondent no.5, K.V. Karthalingan, to the post of Regional
Transport Officer. Insofar as the instant aspect of the matter is concerned,
it would be relevant to mention, that respondent no. 5 addressed a
11Page 12
representation dated 30.6.1998 seeking out of turn/accelerated promotion.
For his instant prayer, he sought consideration of his sincere, efficient and
unblemished record of service, detailed above. On receipt of the aforesaid
representation, relying on the recommendation made by the Managing
Director of the Tamil Nadu State Transport Corporation, Kumbakonam
Division-1 and Managing Director of Cholan Roadways Corporation, on
26.9.1997 the Regional Transport Officer, also recommended the claim of
respondent no. 5. Thereupon, the Deputy Transport Commissioner,
Trichy, on 10.7.1998, further recommended respondent no. 5, K.V.
Karthalingan, for accelerated promotion, to the Commissioner of Transport,
Chennai.
8. Despite the above recommendations, no action was taken by the
authorities. It is, therefore, that respondent no. 5, K.V. Karthalingan,
approached the Tamil Nadu Administrative Tribunal, at Chennai
(hereinafter referred to as, the Administrative Tribunal), by filing Original
Application no. 5918 of 1998. The aforesaid Original Application was
disposed of by an order dated 6.11.1998, without issuing notice to the
respondents. A perusal of the order dated 6.11.1998 reveals, that the
Transport Secretary of the State Government, was directed to pass orders
on the recommendations made by the Deputy Transport Commissioner,
Trichy dated 10.7.1998.
12Page 13
9. Consequent upon the issuance of the above directions, the State
Government passed an order dated 8.12.1998. By the instant order, the
claim of the respondent no. 5 K.V. Karthalingan, for out of turn/accelerated
promotion came to be rejected. While rejecting the prayer of respondent
no. 5, the State Government recorded, interalia, the following reasons:-
“2. The government have examined the representation of Mr. V.
Kathalingam, taking into consideration of the direction the Hon’ble
(Tribunal). (The) Tamil Nadu Transport Subordinate Service do not
provide for out of turn or accelerated promotion. Besides, there is no
merit in the claim of the petitioner. Instances of extraordinary
services quoted by him are common in Transport Department as
well as in Civil Service.
3. Accordingly, the Government rejects the request of Mr.
Kathalingam, Motor Vehicles Inspector, Grade-II for accelerated
Promotion.”
A perusal of the order passed by the State Government reveals, that the
rules regulating the conditions of service of respondent no. 5 do not
provide for an avenue for out of turn/accelerated promotion. The State
Government also arrived at the conclusion, that the instances of
extraordinary service relied upon by respondent no. 5 (to claim out of
turn/accelerated promotion), could not be treated as exceptional or
unprecedented, because such instances were common in the Transport
Department.
10. Dissatisfied with the order of the State Government dated 8.12.1998,
respondent no. 5 preferred Original Application no. 429 of 2002 before the
13Page 14
Administrative Tribunal. The aforesaid Original Application was allowed by
the Administrative Tribunal vide an order dated 10.7.2002. In the instant
matter, the Administrative Tribunal had issued notice to the respondents
(i.e, different functionaries of the State Government). The respondents
were duly served. But the matter was disposed of without waiting for a
reply from them. While allowing the aforesaid application, even though the
State Government while rejecting the claim of respondent no. 5 vide order
dated 8.12.1998 had recorded that the instances indicated by him for out of
turn/accelerated promotion, could not be treated as exceptional or
extraordinary, the Administrative Tribunal held that the same constituted
conspicuous merit and ability, and were sufficient to earn respondent no.5,
K.V. Karthalingan, out of turn/accelerated promotion as Regional Transport
Officer. In its aforesaid determination, the Administrative Tribunal recorded
the following observations:-
“5. The rejection order is found in G.O.Ms. No.2535 Home
(Transport II) Department, dated 8.12.1998. There is no dispute
about the extraordinary performance of the petitioner. In one of the
leading English Journals circulated in Tamil Nadu, the publication is
to the following effect :
“Parambalur October 31 Instance of dealers in two-wheelers
illegally altering the chassis and registration numbers of
vehicles to distribute vehicles with numbers as desired by the
clients have come to light during inspections here.
On July 18, a two-wheeler with the chassis number A 606 F
376242 was brought to the office of motor vehicle Inspector
here. During the Inspection the digit ‘6’ in the chassis number
14Page 15
was found repunched. Following this the inspector verified the
papers relating to the vehicle issued by a local dealer. It came
to light that as per the invoice issued by the manufacturers of
June 8, 1996, the chassis number was A 606 F 3708242 and
the vehicle has been registered from June 10. The Inspector
found that the digit ‘6’ had been repunched in lieu of ‘0’.
Consequently, the Inspector has reportedly written to the
manufacturers and the Regional Transport Officer
recommending cancellation of the grade licence issued to the
dealer.
Instance of meddling with the chasis number were also found
in the vehicle brought for registration on earlier occasions.
The digits ‘0’ ‘3’ and ‘1’ were found tampered to read as ‘6’, ‘8’
and ‘7’.
The Inspector has sent letters to the individual owners calling
for explanation. The replied were similar. We parted with a
bribe of Rs.2300 to avoid registration numbers totaling to ‘8’
but the Vehicles allotted to us carried numbers totaling to ‘8’
only. We returned the vehicles and after a few days got
vehicles with fresh registration numbers.
It is said though it is three months since the irregularity was
detected, no action has been taken so far. On the contrary
the Inspector who detected the irregularity has reportedly
received threat letters from a number of sources.”
6. There is already a direction from this Tribunal in O.A. No.5918
of 1998 to consider the case of the petitioner and pass orders.
Accordingly the government has passed orders rejected the claim of
the petitioner stating that special rules for Tamil Nadu Transport
Subordinate Service do not provide for out of turn for accelerated
promotion.
7. Mr. P. Jayaraman, Senior Counsel relied upon General Rule
36(b)(2). It reads as follows :-
“Promotion according to seniority:-
All the other promotion shall be made in accordance with
seniority unless :
15Page 16
(i) The promotion of a member shall be withheld as a
penalty or
(ii) A member is given special promotion for conspicuous
merit and ability.
By this Sub-rule (ii), there is an implication for grant of special
promotion for conspicuous merit and ability. In this case, it is not
disputed that the petitioners has rendered meritorious service.
Therefore, rejecting the claim of the petitioner on the ground that
there are no rules is not proper. Hence the rejection order is set
aside. The petitioner shall be given promotion as Regional
Transport Officer. The orders shall be passed within a period of six
months from today.”
A perusal of the determination rendered by the Administrative Tribunal
reveals, that a clear and categorical finding was recorded by it, that there
was no dispute about the extraordinary performance of respondent no. 5,
K.V. Karthalingan. Reliance was also placed on Rule 36(b)(ii) of the Tamil
Nadu State and Subordinate Service Rules to conclude, that the claim of
respondent no. 5 for out of turn/accelerated promotion could have validly
been considered under Rule 36(b)(ii) of the General Rules. Having
recorded the aforesaid factual finding, as also having concluded that there
was a statutory provision whereunder the claim of respondent no. 5 for out
of turn/accelerated promotion could be granted, the Administrative Tribunal
directed the respondents, to issue an order promoting the respondent no. 5
as Regional Transport Officer, within a period of six months (from the date
of the order dated 10.7.2002).
16Page 17
11. Now that respondent no. 5 had succeeded before the Administrative
Tribunal, the State Government filed Writ Petition (Civil) no. 21562 of 2003
before the High Court, to assail the order passed by the Administrative
Tribunal dated 10.7.2002 (whereby respondent no. 5 was directed to be
promoted to the post of Regional Transport Officer). The instant challenge
raised by the State Government did not achieve the desired purpose,
inasmuch as, the aforesaid writ petition came to be dismissed by an order
dated 13.10.2004. In paragraph 2 of the order passed by a Division Bench
of the High Court, on a consideration of the instances relied upon by
respondent no. 5, as also, the recommendations made by the Managing
Directors of Tamil Nadu Transport Corporation, Kumbakonam Division-1
and Cholan Roadways Corporation, and the recommendation made by the
Deputy Transport Commissioner, Trichy, dated 10.7.1998, it came to be
concluded, that respondent no. 5, K.V. Karthalingan, was entitled to out of
turn/accelerated promotion. The High Court also took into consideration
Rule 36(b)(ii) of the Tamil Nadu State and Subordinate Service Rules, and
on the basis thereof held, that the statutory rules regulating the conditions
of service of respondent no. 5, provided for out of turn/accelerated
promotion, based on meritorious/outstanding service. Having so
concluded, the High Court also expressed the view, that there was nothing
in the Special Rules (the rules framed under Section 42 of the Tamil Nadu
Transport Subordinate Service, and/or Section 28 of the Tamil Nadu
17Page 18
Transport Service), that was repugnant to the General Rules (the Tamil
Nadu State and Subordinate Service Rules) providing for accelerated
promotion. Accordingly, the High Court upheld the order passed by the
Administrative Tribunal. The High Court while disposing of Writ Petition
(Civil) no. 21562 of 2003, directed the State Government (i.e. the
petitioners before the High Court) to implement the order passed by the
Administrative Tribunal, within four months from the date of receipt of a
copy of the High Court order.
12. Aggrieved with the decision rendered by the High Court in Writ
Petition no. 21562 of 2003 (decided on 13.10.2004), the State Government
filed Petition for Special Leave to Appeal (Civil) bearing no. 11538 of 2005.
Besides the above petition filed by the State Government before this Court,
one P. Mani also approached this Court by filing Petition for Special Leave
to Appeal (Civil) bearing no. 11542 of 2005, for assailing the order of the
High Court dated 13.10.2004. Both the above mentioned petitions were
withdrawn by the State Government, as also, by the said P. Mani, on
7.7.2006. As a result of the withdrawal of the aforesaid petitions, the order
passed by the High Court on 13.10.2004 directing the State Government to
promote respondent no. 5 to the post of Regional Transport Officer,
attained finality.
18Page 19
13. Despite the above legal position, namely, that the order of the High
Court dated 13.10.2004 had attained finality, the State Government did not
implement the order passed on 10.7.2002 (in O.A. no. 429 of 2002) by the
Administrative Tribunal, or the order passed by the High Court dated
13.10.2004 (in Writ Petition No.21562 of 2003). It is in the aforesaid
background, that respondent no. 5, K.V. Karthalingan, filed Contempt
Petition no. 5188 of 2006 before the High Court. The High Court having
taken notice of the entire factual position upto the date of withdrawal of the
petitions for special leave to appeal preferred before this Court, recorded
the following observations:-
“6. After dismissal of the SLPs as withdrawn, the Special
Commissioner and Transport Commissioner has sent a proposal to
the Government on 19.7.2006, recommending the name of the
petitioner for the post of Joint Transport Commissioner also after
implementing the orders of the Tribunal and this Court, since the
petitioner would reach that position if the orders are implemented
properly. But, pending remarks from the Transport Commissioner,
the Government issued G.O.2(D) No.111, Home (Trpt-II)
Department dated 21.2.2007, temporarily promoting the petitioner as
Regional Transport Officer and posted him at the office of the
Regional Transport Officer, Chennai (West). According to the
petitioner, the Special Commissioner and Transport Commissioner,
by his considered remarks dated 10.05.2007, sent a proposal that
his name has to be included in the list of panel of Regional Transport
Officers for the year 1996, next to Mr. A.A. Khader Moideen, who
was lastly promoted on 2.4.1996, vide G.O.Rt. No.831, Home (Tr-II)
Department. According to the petitioner, while the above process
was on, on some complaints by a dealer, whose irregularities were
found out by him, certain charges were framed against the petitioner
by the authorities and on enquiry, final orders were passed in favour
of the petitioner. The petitioner would further contend that the
properties purchase through the business income of his wife and her
brothers were shown as his disproportionate assets, charges were
19Page 20
framed against him, but on enquiry, they dropped on 15.12.2008, in
consultation with TNPSC, and the former Principal Secretary and
Transport Commissioner. In his letter dated 29.4.2010 addressed to
the Director of vigilance and Anti-corruption denied permission to
prosecute the petitioner. But, however, on the very same
allegations, the succeeding Transport Commissioner, took a contrary
view and accorded sanction for prosecution on 24.11.2010. But,
again on 4.2.2011, the very same Transport Commissioner sent
remarks, by referring the pleading that a person once convicted or
acquitted shall not be tried for the same offence again, and sent his
remarks to the Government stating that the Government is the
competent authority to withdraw the case referred to Tribunal for
Disciplinary Proceedings, Trichy at any stage, as per Rule 8(b) of the
TNSC (D&A) Rules. A reminder was also sent by the said authority
on 20.6.2011 and the petitioner has also sent a representation dated
14.7.2011, but no orders have been passed till date by the
Government.
7. A perusal of the entire materials placed on record, prima facie,
would establish the fact that in order to deprive the petitioner from
getting his accelerated promotion as ordered by the Tribunal and by
this Court, the respondents have adopted various dilatory tactics and
are trying to water down the order of the Tribunal and this Court.
When this Court has ordered to grant the petitioner accelerated
promotion as Regional Transport Officer, the respondents have
issued orders temporarily promoting him to that cadre. Today,
during the course of arguments, it has been submitted on behalf of
the respondents that there is a criminal case pending against the
petitioner for possessing assets disproportionate to his known
sources of income.”
14. The appellants before us filed Petition for Special Leave to Appeal
(Civil) no. 3464 of 2012 on having realised, that the claim raised by
respondent no. 5, for promotion to the post of Regional Transport Officer,
had now fructified into a reality. The reason for approaching this Court
directly was, that it would be an exercise in futility for the appellants to
approach the High Court, as a Division Bench of the High Court had
20Page 21
already adjudicated the controversy, and while doing so, examined the
factual, as well as, the legal propositions involved. And furthermore, a
challenge raised to the order passed by the Division Bench of the High
Court, before this Court had been withdrawn. It was also their contention,
that the petitioners (now the appellants before this Court) were never
arrayed as party respondents in the litigation preferred by respondent no.
5, K.V. Karthalingan, even though their rights were liable to be prejudicially
affected by the promotion of respondent no. 5, K.V. Karthalingan, to a
higher post in the service. Since respondent no. 5 was junior to all of
them, it was their submission, that they ought to have been arrayed as
party respondents. Insofar as the instant aspect of the matter is
concerned, it was pointed out, that whilst respondent no. 5, K.V.
Karthalingan, was appointed against the post of Motor Vehicles Inspector
(Grade II) on 9.2.1995, appellant no.1 P. Dharni was appointed as such on
18.1.1988, i.e., more than seven years before the appointment of
respondent no.5. It was further pointed out, that even though respondent
no. 5 was promoted as Motor Vehicle Inspector (Grade I) on 10.5.2000,
appellant no. 1 P. Dharni was promoted as such, on 5.9.1994 i.e., almost
six years before the promotion of respondent no. 5 K.V. Karthalingan as
Motor Vehicles Inspector (Grade I). It was sought to be pointed out, that in
the seniority list of the cadre of Motor Vehicles Inspector (Grade I), whilst
the name of P. Dharni (appellant no. 1 herein) figured at serial no. 81, that
21Page 22
of respondent no. 5, K.V. Karthalingan was placed at serial no. 141. In the
above view of the matter it was submitted, that despite respondent no. 5
being 60 steps below the appellant P. Dharni, he was being promoted
unjustifiably above him, and many other similarly situated persons, senior
to respondent no. 5, K.V. Karthalingan. It was submitted, that even the
other appellants were likewise superiorly placed vis–a-vis respondent no.
5, K.V. Karthalingan.
15. Based on the above pleas, this Court entertained the petition for
special leave to appeal preferred by the appellants on 21.12.2011. While
issuing notice in the matter, this Court also directed the parties to maintain
status quo. After being served, all the respondents have filed counter
affidavits. The appellants have also filed a rejoinder affidavit, to the
counter affidavit filed by respondent no.5, K.V. Karthalingan. Pleadings
are, therefore, complete.
16. Having heard learned counsel for the rival parties we realised, that
Original Application no.5918 of 1998 filed by respondent no.5 was
disposed of (on 6.11.1998), without issuing notice to the State or the
affected parties. Insofar as Original Application no.429 of 2002 is
concerned, the same was disposed of (on 10.7.2002) without seeking a
reply from the State, even though it had been duly served. In fact, in
neither of the said Original Application, persons senior to respondent no.5
22Page 23
K.V. Karthalingan were impleaded as respondents, despite his claim for
promotion before them. After the dismissal of Writ Petition no. 21562 of
2003 by the High Court, the Petitions for Special Leave to Appeal filed by
the State Government, as also by a private individual, were withdrawn.
There was therefore no adjudication on merits, by this Court. These
factors persuade us to feel, that the questions raised had far reaching
consequences, and therefore, needed to be examined on merits.
Remanding the matter back to the Administrative Tribunal or the High
Court, for re-determination of the issue, by affording an opportunity of
hearing to the appellants before us, as also to those senior to respondent
no. 5, K. Karthalingan, was one available option. Having heard learned
counsel for the rival parties at great length, even on merits, we felt that it
would be best for us to adjudicate upon the matter ourselves. It was
possible for us to do so, because the rival parties had an opportunity for
the first time before us, to raise their claims and counterclaims, through
detailed pleadings and submissions.
17. During the course of hearing, submissions advanced at the behest of
the appellants were based on the peculiar facts of the case, as also, purely
on the basis of the rules regulating the conditions of service of the
appellants, as well as, respondent no. 5, K.V. Karthalingan. Even though
the chronological order in which the submissions were advanced during
23Page 24
the course of hearing were different, we have chosen to deal with the same
in a different sequence so as to bring out the true effect of the statutory
rules, on the basis whereof rival claims were projected.
18. We shall first deal with the legal aspects in the matter. Principally
the contention advanced at the hands of the appellants before us was, that
Rule 36(b)(ii) of the Tamil Nadu State and Subordinate Services Rules
relied upon by respondent no. 5, K.V. Karthalingan, as also the authorities
which had recommended his claim for out of turn/accelerated promotion, is
a part of the General Rules, as it figures in Part II of the Tamil Nadu State
and Subordinate Services Rules. It was submitted, that the Special Rules
override the General Rules. Based on the Special Rules framed under
Section 42 of the Tamil Nadu Transport Subordinate Service, and under
Section 28 of the Tamil Nadu Transport Service, it was sought to be
contended, that Rule 36(b)(ii) of the General Rules relied upon by
respondent no. 5, K.V. Karthalingan, could not have been taken into
consideration, for granting him out of turn/accelerated promotion, as the
same is in conflict with the Special Rules.
19. To substantiate the contention noticed in the foregoing paragraph,
learned counsel for the appellants invited our attention to the Tamil Nadu
State and Subordinate Services Rules. The aforesaid rules are divided
into two parts. Part I bears the heading – “Preliminary”, whereas Part II
24Page 25
bears the heading “General Rules”. Rule 36(b)(ii) relied upon by
respondent no. 5, K.V. Karthalingan, falls in Part II – “General Rules”. For
all intents and purposes Rule 36(b)(ii) should therefore be perceived as a
General Rule. In fact, for the instant inference, there was no dispute
amongst the rival parties. Having substantiated that Rule 36(b)(ii) is a
General Rule, learned counsel for the appellants, invited our attention to
Rules 9 and 19 of Part I – “Preliminary”, of the Tamil Nadu State and
Subordinate Services Rules. The same are being extracted hereunder:-
“9. “General Rules” shall mean the rules in Part II of these
rules;
xxx xxx xxx
19. “Special Rules” shall mean the rules in Part III
applicable to each service or class of service;”
Rules 9 and 19 extracted above, define “General Rules” and “Special
Rules” respectively. It was reiterated, that it was further clear from the
above definition of “General Rules” recorded in Rule 9 extracted above,
that Rule 36(b)(ii) is a General Rule, because it is a rule in Part II of the
Tamil Nadu State and Subordinate Services Rules.
20. Thereupon, it was submitted, that the rules referred to in the earlier
part of this order, framed under Section 42 of the Tamil Nadu Transport
Subordinate Service, and under Section 28 of the Tamil Nadu Transport
Service, would fall in the category of Special Rules. For the said inference,
25Page 26
reliance was placed on Rule 19 contained in Part I – Preliminary, of the
Tamil Nadu State and Subordinate Services Rules. The above inference
was drawn on the assertion that the said rules were framed specially to
cater to posts in different cadres of the Transport Department. Again, for
the instant inference, there was no dispute amongst the rival parties. We
find merit in this contention as well, for the reasons expressed by the
learned counsel for the appellants. Therefore, for all intents and purposes,
the rules framed under the above provisions must be deemed to be
Special Rule.
21. For demonstrating the superiority of one set of rules, over the other,
learned counsel for the appellants brought to our attention, Rule 2 from
Part II – “General Rules”, of the Tamil Nadu State and Subordinate
Services Rules, which reads as under:-
“2. Relation to the special rules – If any provision in the
general rules contained in this part is repugnant to a
provision in the special rules applicable to any particular
service, contained in Part III, the latter shall, in respect
of that service, prevail over the provision in the General
Rules in this part.”
A perusal of Rule 2 extracted above, leaves no room for any doubt, that in
case of repugnancy between the Special Rules and the General Rules, the
Special Rules will prevail over the General Rules. We acknowledge and
affirm the aforesaid inference. We may now summarise our conclusions.
Firstly, that Rule 36(b)(ii) of the Tamil Nadu State and Subordinate
26Page 27
Services Rules, falls in Part II – General Rules, is clearly a General Rule.
Secondly, the rules prescribing the conditions of eligibility and the
manner/method of appointment by promotion from the post of Motor
Vehicles Inspector (Grade II) to the post of Motor Vehicles Inspector
(Grade I), framed under Section 42 of the Tamil Nadu Transport
Subordinate Service, are Special Rules. Thirdly, the rules prescribing the
conditions of eligibility and the manner/method of appointment by transfer
to the post of Regional Transport Officer, interalia out of Motor Vehicles
Inspectors (Grade I), framed under Section 28 of the Tamil Nadu Transport
Service, are Special Rules. And fourthly, in case of a conflict between the
Special Rules and the General Rules, the Special Rules will have an
overriding effect over the General Rules.
22. The first contention advanced at the hands of the learned counsel for
the appellants in order to demonstrate that Rule 36(b)(ii) of the Tamil Nadu
State and Subordinate Services Rules, contained in Part II – “General
Rules”, is in conflict with the Special Rules, was sought to be substantiated
by placing reliance on the Special Rules framed under Section 42 of the
Tamil Nadu Transport Subordinate Service, which exclusively prescribe the
conditions of eligibility and the manner/method of appointment by
promotion from the post of Motor Vehicles Inspector (Grade II) to the post
of Motor Vehicles Inspector (Grade I). Referring to Rule 2 of the Special
27Page 28
Rules it was asserted, that the only avenue of promotion from the post of
Motor Vehicles Inspector (Grade II) is to the post of Motor Vehicles
Inspector (Grade I), and as such, on the subject of out of turn/accelerated
promotion, the claim of respondent no. 5, K.V. Karthalingan, could only
have been considered for promotion to the post of Motor Vehicles
Inspector (Grade I). Relying on Rule 5(b) of the above Special Rules it
was submitted, that for promotion to the post of Motor Vehicles Inspector
(Grade I) the concerned incumbent must have served as Motor Vehicles
Inspector (Grade II) for a period of not less than five years. Referring to
Rule 9 of the said Special Rules it was asserted, that a Motor Vehicles
Inspector (Grade II) would acquire eligibility after fulfilling the aforesaid
eligibility criteria with reference to 15th of March of the year in which he
completes the prescribed conditions of eligibility. Taking into consideration
the fact, that respondent no. 5, K.V. Karthalingan, was appointed as Motor
Vehicles Inspector (Grade II) in 1995, it was submitted, that he would
acquire eligibility for promotion to the post of Motor Vehicles Inspector
(Grade I) only on 15th of March, 2000. It was accordingly contended, that
when respondent no. 5, K.V. Karthalingan, made his representation dated
30.6.1998, seeking out of turn/accelerated promotion, he was not even
eligible for promotion to the post of Motor Vehicles Inspector (Grade I). In
the above view of the matter, it was the contention of the learned counsel
for the appellants, that granting promotion to respondent no. 5, K.V.
28Page 29
Karthalingan, prior to his having acquired the eligibility even for
appointment to the post of Motor Vehicles Inspector (Grade I), would
violate Rules 5 and 9 of the Special Rules.
23. Having given our thoughtful consideration to the contention
advanced at the hands of the learned counsel for the appellants, we are
constrained to uphold the first contention raised at the hands of the learned
counsel for the appellants. It is not as if we are oblivious of the fact that
the question to be considered is whether respondent no. 5, K.V.
Karthalingan, has rightfully been granted out of turn/accelerated promotion
to the post of Regional Transport Officer, whereas, the instant first
contention advanced at the hands of the learned counsel for the appellants
is with reference to promotion to the post of Motor Vehicles Inspector
(Grade I). The reasons for accepting the instant contention will flow from
the conclusions drawn by us with reference to the next two legal
submissions advanced at the hands of the appellants. All the same, we
are satisfied, that even if the claim of respondent no. 5, K.V. Karthalingan,
was considered for out of turn/accelerated promotion to the post of Motor
Vehicles Inspector (Grade I), such a claim could not have been accepted
without his having acquired eligibility under Rules 6 and 9 of the Special
Rules. Allowing him out of turn promotion even to the post of Motor
Vehicles Inspector (Grade I) by relying no Rule 36(b)(ii), would have
29Page 30
violated the mandate of the Special Rules. Rule 2 contained in Part II –
“General Rules” of the Tamil Nadu State and Subordinate Service Rules,
itself specifically mandates, that in case of a conflict between the Special
Rules and the General Rules, the Special Rules will prevail. Rules 6 and 9
being Special Rules must therefore, be satisfied, before an individual can
make a claim for out of turn/accelerated promotion under Rule 36(b)(ii),
which is a General Rule. For the reasons recorded hereinabove, we have
no hesitation in holding, that even if promotion had been granted to
respondent no. 5, K.V. Karthalingan against the post of Motor Vehicles
Inspector (Grade I), on out of turn/accelerated basis by relying on Rule
36(b)(ii) of the General Rules, the same would have been unacceptable in
law, and as such, would have been liable to be set aside.
24. The second contention advanced at the hands of the learned
counsel for the appellants was, that for the same reasons and on same
logic as has been indicated above, for demonstrating that promotion of
respondent no. 5, K.V. Karthalingan, to the post of Motor Vehicles
Inspector (Grade I) could not have been treated as valid under Rule 36(b)
(ii), so also, the promotion of respondent no. 5, K.V. Karthalingan, to the
post of Regional Transport Officer cannot be accepted as valid. Insofar as
the post of Regional Transport Officer is concerned, learned counsel for
the appellant placed reliance on Rules 3 and 6 of the Special Rules framed
30Page 31
under Section 28 of the Tamil Nadu Transport Service. To be eligible for
appointment as Regional Transport Officer, a Motor Vehicles Inspector
must have served for a total period of not less than five years as Motor
Vehicles Inspector (Grade I), out of which not less than two years must be
in a field office. It is also clear, that the aforesaid eligibility would be
determined with reference to the 1st of July every year. Even if it is
assumed, that respondent no. 5, K.V. Karthalingan, came to be promoted
as Motor Vehicles Inspector (Grade I) immediately on completion of five
years’ service as Motor Vehicles Inspector (Grade II), he would still need
another five years’ service before he could be appointed as Regional
Transport Officer. Out of the said service, two years ought to have been in
a field office. In the above view of the matter it was submitted, that a
minimum of 10 years of service must mandatorily be rendered by a Motor
Vehicles Inspector (Grade II), before he can contemplate appointment to
the post of Regional Transport Officer. In view of the fact that respondent
no. 5, K.V. Karthalingan was appointed as Motor Vehicles Inspector
(Grade II) on 9.2.1995, he would acquire eligibility for the same only on
1.7.2005. It was submitted, that if respondent no. 5, K.V. Karthalingan,
was promoted as Regional Transport Officer, before fulfilling the aforesaid
ten years of service, his promotion would be in violation of Rules 3 and 6 of
the Special Rules referred to above.
31Page 32
25. We have given our thoughtful consideration to the second legal
proposition canvassed at the hands of the learned counsel for the
appellants. We find merit therein as well. The question to be considered
is, whether the Special Rule prescribing the minimum period of eligibility for
appointment to the post of Regional Transport Officer, can be overlooked
while allowing out of turn/accelerated appointment to respondent no. 5, to
the post of Regional Transport Officer. We are satisfied in answering the
aforesaid query in the negative. We are of the view, that if promotion is
granted to respondent no. 5, K.V. Karthalingan, under Rule 36(b)(ii) of the
General Rules, prior to his having rendered five years’ service as Motor
Vehicles Inspector (Grade I), out of which two years must be in a field
office, the same would violate the Special Rules. Since the Special Rules
override the General Rules, the claim made by respondent no. 5, for out of
turn promotion under Rule 36(b)(ii) of the General Rules, would be valid
only if respondent no.5, had satisfied the conditions of eligibility stipulated
in the Special Rules for appointment to the post of Regional Transport
Officer. Insofar as the present controversy is concerned, even though
respondent no. 5, K.V. Karthalingan, was appointed as Motor Vehicles
Inspector (Grade II) on 9.2.1995, he made a representation on 30.6.1998
claiming out of turn/accelerated promotion. By that time, he had rendered
just over three years of service as Motor Vehicles Inspector (Grade II). At
that stage, there was no question of his being considered for appointment
32Page 33
against the post of Regional Transport Officer, as he had by then, not
rendered even a single days service as Motor Vehicles Inspector Grade-I
(as against the prescribed five years’ service). The instant issue can be
examined from another angle as well. It would be legitimate to accept, that
in the hierarchy of posts in the Transport Department, the post of Motor
Vehicles (Grade I) must be treated as a post higher in stature, as
compared to the post of Motor Vehicles (Grade II). At the juncture, when
respondent no.5 had made his representation claiming out of
turn/accelerated promotion he was not even eligible for promotion to the
post of Motor Vehicles Inspector (Grade-I), as a minimum of five years’
service as Motor Vehicles Inspector Grade-II is required before such
promotion. Since a minimum of five years’ service as Motor Vehicles
Inspector (Grade I) is required before an individual can be appointed to the
post of Regional Transport Officer, it is essential to further conclude, that
respondent no. 5 ought to have fulfilled the prescribed condition, before
claiming appointment as Regional Transport Officer. Having already
concluded, that respondent no.5 could not have legitimately been
promoted to the post of Motor Vehicles Inspector (Grade-I), it is out of the
question to accept or assume, that he could have nonetheless been
promoted to the post of Regional Transport Officer, which required a
further five years’ service. Besides the above, we are of the view, that the
Special Rules laying down the conditions of eligibility and the
33Page 34
manner/method of promotion to the post of Regional Transport Officer,
would stand violated if the claim of respondent no. 5, K.V. Karthalingan, for
out of turn/accelerated promotion, was to be acceded to on the basis of his
representation dated 30.6.1998. It needs to be kept in mind that
respondent no. 5 had first approached the Administrative Tribunal for
claiming out of turn/accelerated promotion in 1998 (having filed Original
Application no. 5918 of 1998). He again approached the Administrative
Tribunal in 2002 (having filed Original Application no. 429 of 2002) when
his claim for out of turn/accelerated promotion was rejected by the State
Government. In the instant latter case, his claim for out of turn/accelerated
promotion to the post of Regional Transport Officer was accepted by the
Administrative Tribunal (on 10.7.2002). At the cost of repetition, it may be
noted, that a minimum of ten years service after appointment as Motor
Vehicles Inspector (Grade-II) is required under the Special Rules, before
an individual can be appointed as Regional Transport Officer (five years’
service for promotion as Motor Vehicles Inspector (Grade-I), and another
five years’ service as Motor Vehicles Inspector (Grade-I) before
appointment as Regional Transport Officer). Respondent No.5, K.V.
Karthalingan, did not fulfill the prescribed minimum service for promotion,
when the courts below directed his promotion to the post of Regional
Transport Officer. It would not be out of place to mention, that he had
neither fulfilled the conditions of eligibility of appointment to the post of
34Page 35
Regional Transport Officer at the time of filing of the Original Applications,
nor when his claim was allowed. We are, therefore of the view, that the
order passed by the Administrative Tribunal, as also, by the High Court by
relying on Rule 36(b)(ii) of the General Rules, was in clear derogation of
the Special Rules referred to above. We may now summarize the
conclusions drawn in the instant paragraph. Firstly, respondent no. 5, K.V.
Karthalingan, could not have been appointed as Regional Transport Officer
because he did not satisfy the conditions of eligibility expressed therefor in
the Special Rules. Secondly, because respondent no. 5, K.V.
Karthalingan, was not even eligible to be appointed to the lower post of
Motor Vehicles Inspector (Grade I), it was out of the question to accept that
he was nonetheless eligible to be appointed to the post of Regional
Transport Officer, which required a further five years’ experience. And
thirdly, it needed a minimum of ten years’ service to become eligible for
being appointed as Regional Transport Officer. Since respondent no. 5,
K.V. Karthalingan, had not even rendered such minimum service, his
appointment to the post of Regional Transport Officer cannot be
considered as valid. For all the above reasons, we are satisfied, that the
order passed by the Administrative Tribunal, as also, the High Court
directing the promotion of respondent no. 5, K.V. Karthalingan, to the post
of Regional Transport Officer is liable to be set aside.
35Page 36
26. The validity of the claim of appointment of respondent no. 5, K.V.
Karthalingan, against the post of Regional Transport Officer can be
examined from another perspective. Rule 36(b)(ii) contained in Part II –
“General Rules”, of the Tamil Nadu State and Subordinate Services Rules,
clearly envisage, that an employee can be given special promotion for
conspicuous merit and ability. But then, the Special Rules framed under
Section 28 of the Tamil Nadu Transport Service, laying down the
conditions of eligibility and the manner/method of appointment to the post
of Regional Transport Officer, do not postulate appointment to the post of
Regional Transport Officer by way of promotion. Rule 2 of the Special
Rules clearly envisage, that appointment against the post of Regional
Transport Officer, would be made only by way of transfer, interalia from
amongst Motor Vehicles Inspectors (Grade I). Rule 36(b)(ii) of the General
Rules does not postulate out of turn/accelerated appointment by way of
transfer. In the above view of the matter we are satisfied, that Rule 36(b)
(ii) of the General Rules, would clearly be inapplicable for considering the
claim of respondent no. 5, K.V. Karthalingan, for appointment to the post of
Regional Transport Officer. For the instant reason as well, the direction
issued by the Administrative Tribunal, as also, the High Court requiring the
State Government to appoint respondent no. 5, K.V. Karthalingan by way
of promotion to the post of Regional Transport Officer, is not acceptable in
law.
36Page 37
27. There is another legal parameter on the basis of which the validity of
the claim of respondent no. 5, K.V. Karthalingan, for out of turn/accelerated
promotion under Rule 36(b)(ii) of the General Rules, cannot be accepted.
Insofar as the instant parameter is concerned, it requires a close
examination of Rule 36(b) of the General Rules. Rule 36(b) of the General
Rules has two clauses, clause (i) thereof deals with promotions by way of
selection, whereas clause (ii) thereof deals with promotions on the basis of
seniority alone. Respondent no. 5, K.V. Karthalingan, as also, the various
recommending authorities have referred to clause (ii) of Rule 36(b) of the
General Rules, while recommending the claim of respondent no. 5, K.V.
Karthalingan, for out of turn/accelerated promotion. We are of the
considered view, that the aforesaid clause (ii) of Rule 36(b) of the General
Rules, could have been invoked only in matters where promotions are to
be made solely on the basis of seniority. Rule 2(b) of the Special Rules
laying down the manner/method for promotion to the post of Motor
Vehicles Inspector (Grade I) clearly mandates, that promotion to the said
post, would be made on grounds of merit and ability, seniority being
considered only where merit and ability are approximately equal. It is,
therefore apparent, that the post of Motor Vehicles Inspector (Grade I) is a
selection post. That being the undisputed position, it would not have been
possible for the authorities to invoke Rule 36(b)(ii) of the General Rules,
even for promoting respondent no. 5, K.V. Karthalingan to the post of
37Page 38
Motor Vehicles Inspector (Grade I).
 Insofar as the post of Regional
Transport Officer is concerned, we have already expressed above that the
same could be filled up only by way of transfer from amongst Motor
Vehicles Inspectors (Grade I), and not by promotion. Even though the
Special Rules do not lay down the method or manner of making
appointments by way of transfer, Rule 36A (introduced with effect from
30.1.1996) contained in Part II – ‘General Rules’, of the Tamil Nadu State
and Subordinate Services (extracted in paragraph 5 above), postulates,
that appointment by transfer shall be made on grounds of merit and ability,
seniority being considered only where merit and ability are approximately
equal. In the aforesaid view of the matter, it is imperative to conclude, that
even for appointments by way of transfer, the appointing authority must
sieve the eligible candidates by adopting a process of selection. Since the
post of Regional Transport Officer, is to be filled up by way of transfer, i.e.,
by way of selection amongst eligible candidates, Rule 36(b)(ii) of the
General Rules would be inapplicable. Stated in other words, the General
Rules contemplate out of turn/accelerated promotion, only in cases where
seniority is the sole criterion for promotion, whereas, the post of Regional
Transport Officer is not to be filled up on the basis of seniority. For the
instant reason also, it is not possible for us to accept, that Rule 36(b)(ii) of
the General Rules could have been invoked for granting out of
38Page 39
turn/accelerated promotion to respondent no. 5, K.V. Karthalingan, against
the post of Regional Transport Officer.
28. From the conclusions recorded by us, while considering the issue of
out of turn/accelerated promotion, with reference to respondent no. 5, K.V.
Karthalingan, we have repeatedly arrived at a firm determination, that for
onward promotions (from the post of Motor Vehicles Inspector (Grade II)
held by respondent no. 5, K.V. Karthalingan), the criterion to be adopted
was that of selection.
Seniority was only to be taken into consideration
where merit and ability of two eligible candidates was found to be
approximately equal. This would lead us to yet another relevant inference
on the issue in hand. In the above view of the matter, every claim for
onward promotion from the post of Motor Vehicles Inspector (Grade II) was
liable to be considered on the basis of merit. Therefore, an individual with
superior merit would steal a march over those less meritorious. Thus
viewed, if respondent no.5, K.V. Karthalingan, was actually possessed of
outstanding and exceptional merit, as is sought to be suggested, he would
have stolen a march over his seniors even under the existing Special
Rules. Thus viewed, even by the manner/method of onward progression
postulated in the Special Rules, a person with conspicuous merit and
ability (as postulated under Rule 36(b)(ii) of the General Rules), would
overtake others without having to invoke Rule 36(b)(ii) of the General
39Page 40
Rules. This does not seem to have happened in case of respondent no. 5,
K.V. Karthalingan. On his consideration, after he had acquired eligibility for
promotion to the post of Motor Vehicles Inspector (Grade I), he was
promoted as such only on 10.5.2000. The merit and ability possessed by
respondent no. 5, K.V. Karthalingan, is not shown to have resulted in his
having superseded other members of the cadre senior to them. For the
instant reason also, reliance placed by respondent no. 5, K.V.
Karthalingan, for out of turn/accelerated promotion under Rule 36(b)(ii) of
the General Rules deserves outright rejection.
29. We shall now deal with the factual aspect of the matter. It is clear
from the factual narration recorded above, that the claim of respondent no.
5, K.V. Karthalingan, for out of turn/accelerated promotion was based on
his alleged conspicuous merit and ability. The aforestated exemplary and
outstanding merit was based on actions allegedly taken by respondent no.
5, K.V. Karthalingan, while working as Motor Vehicles Inspector (Grade II).
The very facts relied upon by respondent no. 5, K.V. Karthalingan,
constituted the basis of the recommendations of various authorities
supervising his work and conduct. Having examined the recommendations
made in favour of respondent no. 5, K.V. Karthalingan (by the various
authorities adverted to above), the State Government vide its order dated
8.12.1998 concluded, that the factual basis relied upon by respondent no.
40Page 41
5, K.V. Karthalingan, would not entitle him to out of turn/accelerated
promotion, as the instances of extraordinary service relied upon by him,
were common in the Transport Department. Despite the aforesaid
assertion of the State Government in its order dated 8.12.1998, the
Administrative Tribunal adjudicated upon the said disputed question of fact.
It reversed the factual finding recorded by the State Government. While
doing so, the Administrative Tribunal did not await a response by the State
Government. The matter came to be disposed of without any reply having
been filed by the State Government. Even though the State Government
while seeking recourse to the writ jurisdiction of the High Court, brought out
other related facts showing that respondent no. 5, K.V. Karthalingan, could
not be treated as an employee entitled to out of turn/accelerated
promotion, the High Court rejected all those submissions and reversed the
factual finding recorded by the State Government (in its order dated
8.12.1998).
We find it difficult to appreciate the approach of the
Administrative Tribunal, as also, the High Court. 
The simple reason
depicted in the State Government’s order dated 8.12.1998 was, that the
instances of extraordinary service relied upon by respondent no. 5, K.V.
Karthalingan, to claim out of turn/accelerated promotion, could not be
treated as exceptional or unprecedented, as such instances were common
in the Transport Department. Even though respondent no. 5, K.V.
Karthalingan, had not disputed the aforesaid factual position, it is difficult to
41Page 42
understand how the Administrative Tribunal, as also, the High Court had
accepted the claim of respondent no. 5, K.V. Karthalingan, by concluding
that he had actually rendered extraordinary and exemplary service. 
Since
the factual assertion made by the State Government in its order dated
8.12.1998, had remained unrebutted, we are of the view, that the
Administrative Tribunal, as also, the High Court, were wholly unjustified in
recording such a conclusion. For the instant reason also, the impugned
orders dated 10.7.2002 (passed by the Administrative Tribunal) and
13.10.2004 (passed by the High Court) deserve to be set aside.
30. For the reasons recorded hereinabove, we find merit in the various
contentions advanced by the learned counsel for the appellants. The order
passed by the Administrative Tribunal on 10.7.2002 (while disposing of
Original Application no. 429 of 2002) and the order passed by the High
Court on 13.10.2004 (while disposing of Writ Petition (Civil) no. 21562 of
2003) directing the promotion of respondent no. 5, K.V. Karthalingan, to
the post of Regional Transport Officer, are clearly unsustainable. They are
accordingly hereby set aside.
31. Allowed in the aforesaid terms.
…..…………………………….J.
 (P. Sathasivam)
…..…………………………….J.
42Page 43
(Jagdish Singh Khehar)
New Delhi;
July 1, 2013
43

eloped out of free will - has no place = On the aforestated aspect of the matter, she was not subjected to cross-examination at the behest of the accused. Only a suggestion was put to her, that she had persuaded the accused-appellant Jarnail Singh to take her away, in order to perform marriage with her, and for the said purpose had taken away cash, clothes and jewellery from her own residence. The aforestated suggestion was denied by the prosecutrix VW - PW6. It may still have been understandable, if the case had been, that she had consensual sex with the accused-appellant alone. But consensual sex with four boys at the same time, is just not comprehensible. Since the fact, that the accused-appellate Jarnail Singh and the prosecutrix VW – PW6 had eloped together is not disputed. And furthermore, since the accused-appellant having had sexual intercourse with the prosecutrix is also the disputed. It is just not possible to accept the proposition canvassed on behalf of the accused appellant. We, therefore, find no merit in the instant submission. It is not as if the prosecution version is entirely based on the statement of the prosecutrix VW - PW6. It would be relevant to mention, that her recovery from the custody of the accused-appellant Jarnail Singh from the house of Shashi Bhan, at Raipur, is sought to be established from the statement of Moti Ram-PW3. There can therefore be no room for any doubt, that after she was found missing from her father’s residence on 25.3.1993, and after her father Jagdish Chandra-PW8 had made a complaint to the police on 27.3.1993, she was recovered from the custody of the accusedappellant Jarnail Singh. - Additionally, in her statement under Section 164 of the Code of Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the first instance, after having caught hold of her, the accused had made her inhale something from a cloth which had made her unconscious. Thereafter, when the accused-appellant Jarnail Singh attempted to commit intercourse with her, she had slapped him. He had then put a cloth in her mouth, to stop her from raising an alarm. Thereafter, each one of the accomplices had committed forcible intercourse with her in turns. The factum of commission of forcible intercourse by the accusedappellant, as also, his accomplices was reiterated by her during her testimony before the Trial Court as PW6. Besides the aforesaid, there is a statement of her own father, Jagdish Chandra (PW8) who also in material particulars had corroborated the testimony of the prosecutrix VW - PW6. The prosecutrix VW – PW6, was not subjected to crossexamination on any of these issues. Nor was the prosecutrix confronted with either the statements made by her under Section 161 or Section 164 of the Code of Criminal Prosecution, so as to enable her to explain discrepancies, if any.

published in http://judis.nic.in/supremecourt/filename=40458
Page 1
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1209 OF 2010
Jarnail Singh ... Appellant
Versus
State of Haryana ... Respondent
J U D G M E N T
Jagdish Singh Khehar, J.
1. The factual position on which the prosecution version is founded,
commences with the passing of information by Savitri Devi (the mother
of the prosecutrix VW - PW6), to her husband Jagdish Chander-PW8,
on 26.3.1993, at about 6 am. She informed her husband, that the
prosecutrix VW - PW6 was missing from their residence. In this behalf
it would be pertinent to mention, that on 25.3.1993 at about 10 pm,
Jagdish Chander went to sleep in the “baithak” (drawing room) of their
residence. Savitri Devi, the mother of the prosecutrix VW - PW6, along
with the prosecutrix VW - PW6, and the other children (comprising of
three sons, the prosecutrix VW – PW6 and one other daughter), went to
sleep in the other rooms of the house. Savitri Devi, told her husband,
that she suspected the accused-appellant Jarnail Singh, may be
responsible for having taken away their daughter.
2. Jagdish Chander-PW8, commenced to search for his daughter.
During the course of the aforesaid search, the accused-appellant Jarnail
1Page 2
Singh, who had his residence in the neighbourhood (of Jagdish
Chander-PW8), was also found missing from his residence. The search
for the prosecutrix VW - PW6 by her father, proved futile. It is therefore,
that Jagdish Chander-PW8, made a complaint Exhibit PO on 27.3.1993
to the Sub-Inspector Incharge, Police Post, Jathlana. In his complaint,
he described VW - PW6, as the elder of his two daughters. He gave out
her age as about 16 years. He also alleged, that his daughter VW -
PW6 had gone missing from their residence in the night intervening 25th
and 26th March, 1993. He also alleged, that an amount of Rs.3,000/-
was missing from his house, which he assumed may have been taken
away by his daughter VW - PW6, while leaving the house. In the
complaint Exhibit PO, the needle of suspicion was pointed at the
accused-appellant Jarnail Singh.
3. After the registration of the complaint of Jagdish Chander-PW8,
the prosecutrix VW - PW6 was recovered on 29.3.1983, from the
custody of the accused-appellant Jarnail Singh, from the house of
Shashi Bhan at Raipur in district Haridwar. The accused-appellant
simultaneously came to be arrested, on 29.3.1993.
4. The statement of the prosecutrix VW - PW6 was got recorded
under Section 164 of the Code of Criminal Procedure before O.P.
Verma, Judicial Magistrate First Class, Jagadhri on 6.4.1993.
It is
necessary in the facts and circumstances of this case to extract herein
her short statement recorded under Section 164 of the Code of Criminal
Procedure, which is being reproduced hereunder:
2Page 3
“Stated that on the night of 25.3.1993 at around 11 pm, I went to a
street near my house to answer nature’s call. Accused Jarnail
Singh and his three accomplices were hiding there. When I got
up after answering nature’s call, then they caught hold of me and
inhaled me something by cloth, due to which, I got unconscious.
They took me to some unknown place in U.P. by putting me in
some vehicle. There they took me to a room.
Jarnail Singh, forcibly committed wrong (intercourse) with me. I
slapped on his face, then he put cloth in my mouth. Therefore, I
could not raise noise. Thereafter, everyone committed forcible
intercourse with me, turn by turn. Huge blood came out of my
vagina, and I felt a lot of pain. Thereafter, police caught us and
handed over me to my parents.”
5. On completion of investigation, a challan was presented under
Sections 366, 376 and 120 of the Indian Penal Code. The matter was
committed to the Court of Sessions, Jagadhri, whereupon, it was
marked to the Additional Sessions Judge, Jagadhri. The Additional
Sessions Judge, Jagadhri framed charges on 20.12.1993. The
accused-appellant pleaded not guilty, and claimed trial.
6. In order to bring home the charges levelled against the accusedappellant, the prosecution examined 9 witnesses. Thereafter, the
prosecution evidence was closed.
The statement of the accusedappellant Jarnail Singh, was then recorded under Section 313 of the
Code of Criminal Procedure. He denied the allegations levelled against
him, and pleaded false implication. Despite opportunity having been
afforded to him, the accused-appellant did not lead any evidence, in his
defence.
7. It is necessary to record, that on the culmination of the trial, the
Additional Sessions Judge, Jagadhri arrived at the conclusion, that the
prosecution had been able to bring home the guilt of the accused-
3Page 4
appellant beyond any shadow of reasonable doubt, under Sections 366,
376(g) and 120-B of the Indian Penal Code. The accused-appellant
Jarnail Singh was accordingly held guilty of the charges levelled against
him. The Additional Sessions Judge, Jagadhri gave an opportunity of
hearing to the accused-appellant Jarnail Singh on the question of
sentence. Thereupon, for the offence under Section 376(g) of the Indian
Penal Code the accused-appellant was awarded rigorous imprisonment
for 10 years, he was also required to pay a fine of Rs.200/- (in case of
default in payment of fine, the accused-appellant was to undergo further
rigorous imprisonment for 3 months). For the offence under Section 366
of the Indian Penal Code, the accused-appellant was awarded rigorous
imprisonment for 7 years, and was required to pay a fine of Rs.150/- (in
case of default in payment of fine, the accused-appellant was to undergo
further rigorous imprisonment for 3 months). And for the offence under
Section 120-B of the Indian Penal Code, the accused-appellant was
awarded rigorous imprisonment for 7 years, and was required to pay a
fine of Rs.150/- (in case of default in payment of fine, the accused appellant was to undergo further rigorous imprisonment for 3 months).
The aforesaid sentences were ordered to run concurrently.
8. Dissatisfied with the judgment dated 14.3.1995, rendered by the
trial Court, the accused-appellant Jarnail Singh preferred Criminal
Appeal no. 247-SB of 1995 before the Punjab & Haryana High Court at
Chandigarh (hereinafter referred to as, the High Court). The High Court
dismissed the appeal preferred by the accused-appellant on 4.11.2008.
The judgment of conviction dated 14.3.1995 and the order of sentence
4Page 5
dated 15.3.1995 (rendered by the trial Court i.e., the Additional Sessions
Judge, Jagadhri) were upheld.
9. Dissatisfied with the judgment of the trial Court dated 14.3.1995
and that of the appellate Court dated 4.11.2008, the accused-appellant
Jarnail Singh approached this Court. On 7.7.2010, this Court granted
leave, in the Petition for Special Leave to Appeal (Crl.) no. 7836 of
2009, filed by the accused-appellant. Having traversed the aforesaid
course, the instant criminal appeal has finally been placed before us, for
adjudication.
10. Before dealing with the issues canvassed at the hands of the
learned counsel for the accused-appellant Jarnail Singh, it is considered
expedient to have a bird’s eye view of the relevant prosecution
witnesses. It is, therefore, that we shall endeavour to deal with the
testimony of some of the prosecution witnesses hereunder:
(i) Dr. Kanta Dhankar was produced by the prosecution as
PW1. She had medico-legally examined the prosecutrix
VW - PW6 on 29.3.1993 at 3 pm. According to her
testimony, no blood or seminal stain was visible to the
naked eye, during the course of examination of the
prosecutrix VW - PW6. Pubic hairs were present. There
was no visible injury on the external genitalia or vagina.
The hymen of the prosecutrix VW - PW6 was found
ruptured. Her vagina admitted 2/3 fingers easily. The
clothes of the prosecutrix VW - PW6, a swab taken from
her vagina and her pubic hair, were sent to the forensic
5Page 6
science laboratory for examination, so as to determine
whether there was any semen or blood thereon. Along with
the testimony of Dr. Kanta Dhankar- PW1, it is necessary to
record, that as per the report of the forensic science
laboratory (Exhibit PL), human semen was detected on the
prosecutrix’s “salwar” (female trouser), her underwear, as
also, on her pubic hair. The report of the serologist (Exhibit
PL/1) further revealed medium and small sized blood stains
on the “salwar”. The report of the serologist also disclosed,
that the stains on the “salwar” were of human blood.
(ii) Dr. Satnam Singh-PW2, was the second witness to be
examined by the prosecution. He had medico-legally
examined the accused-appellant Jarnail Singh. Dr. Satnam
Singh-PW2, while deposing before the trial Court affirmed,
that the accused-appellant was capable of sexual
intercourse.
(iii) The prosecution then examined Moti Ram as PW3. Moti
Ram testified, that he was present when the prosecutrix VW
- PW6, was recovered whilst in custody of the accusedappellant, from the house of Shashi Bhan at Raipur, in
district Haridwar. Moti Ram also affirmed the presence of
Om Prakash, Jagmal and Sumer Chand, along with the
police party, at the time of recovery of the prosecutrix VW -
PW6, on 29.3.1993. Moti Ram had identified the
prosecutrix VW - PW6, at the time of her said recovery.
6Page 7
(iv) Satpal was produced by the prosecution as its fourth
witness. Satpal-PW4 was the Headmaster of the
Government High School, Jathlana, i.e. the school which
the prosecutrix VW - PW6, had first attended. Satpal-PW4
proved the certificate Exhibit PG, as having been prepared
on the basis of the school records. As per the certificate,
Exhibit P4, the prosecutrix VW - PW6 was born on
15.5.1977.
(v) The prosecutrix appeared as PW6 before the trial Court.
She affirmed the factual position expressed by her father
Jagdish Chander-PW8 in his complaint dated 27.3.1993
(Exhibit PO). She also reiterated the factual position
expressed by her, in her statement, recorded under Section
164 of the Code of Criminal Procedure, on 6.4.1993. In
sum and substance she asserted, that she had studied upto
class 3 at the Government High School, Jathlana,
whereafter, she started to do household work at home. On
25.3.1993 at about 11 pm, she had gone out of her house to
urinate in the street. The accused-appellant Jarnail Singh
and three other persons had caught hold of her, and had
taken her in a tanker towards Raipur side in Uttar Pradesh.
The accused-appellant Jarnail Singh and his three
accomplices, had then raped her in a small room. She also
testified, that she had been recovered by the police from
Raipur, and at the time of her recovery, Moti Ram-PW3 and
7Page 8
her uncle Omilal (Om Prakash) and Jagmal were present
with the police party. Thereafter, she claims to have been
brought to police post Jathlana, and was got medico-legally
examined by a lady doctor at Civil Hospital, Radaur. Since
the prosecutrix VW - PW6, was not disclosing the entire
factual position, and seemed to be changing the version of
her statement recorded under Section 164 of the Code of
Criminal Procedure, the Public Prosecutor sought
permission to cross-examine her. Consequent upon being
permitted to cross-examine the prosecutrix VW - PW6, she
affirmed, that the accused-appellant had been alluring her
for marriage, with the promise of giving her ornaments and
clothes, and a further commitment to move her to the city,
after their marriage. During these allurements, the
accused-appellant Jarnail Singh used to also impress upon
her, that her parents were poor and would marry her to
some poor person, who would never be able to provide her
such facilities. During her cross-examination, she expressly
denied the suggestion, that she herself had allured the
accused-appellant Jarnail Singh, to take her away, in order
to marry him.
(vi) O.P. Verma, Judicial Magistrate First Class, Jagadhri,
appeared as PW7. He proved the statement, recorded
before him under Section 164 of the Code of Criminal
Procedure, by the prosecutrix VW - PW6, on 6.4.1993.
8Page 9
(vii) Jagdish Chander-PW8, the father of the prosecutrix VW -
PW6 during the course of his deposition, affirmed the
factual position depicted in his complaint dated 27.3.1993
(Exhibit PO). He also corroborated the testimony of his
daughter (i.e., the prosecutrix VW - PW6) in all material
particulars.
The conviction of the accused-appellant at the hands of the trial Court
(on 14.3.1995) and by the High Court (on 4.11.2008) was primarily
based on the statements of the prosecution witnesses summarised
above.
11. We shall now endeavour to deal with the submissions advanced
at the hands of the learned counsel for the accused-appellant.
12. The first and foremost contention advanced at the hands of the
learned counsel for the accused-appellant was, that the prosecutrix VW
- PW6, had voluntarily and with her free consent, accompanied the
accused-appellant Jarnail Singh. It was contended, that in actuality, it
was the prosecutrix VW - PW6 who had allured the accused-appellant
to marry her, and had persuaded him to take her away during the night
intervening 25th and 26th March, 1993. In order to substantiate the
instant submission, it was pointed out that the prosecutrix VW - PW6
has remained with the accused Jarnail Singh for four days without any
protestation. During the course of the aforesaid four days in the
company of the accused-appellant Jarnail Singh, they had travelled from
one place to another, and had finally reached the house of Shashi Bhan
at Raipur (from where the police recovered her on 29.3.1993). It was
9Page 10
submitted, that there was ample opportunity with her, to raise an alarm
during the aforestated four days. The fact that she did not raise any
alarm shows, that she had voluntarily remained with the accusedappellant Jarnail Singh. Therefore, sexual intercourse with the accusedappellant Jarnail Singh, according to learned counsel, was also
consensual. Thus viewed, it was asserted, that the accused-appellant
Jarnail Singh could not be accused of either having kidnapped her,
and/or having committed rape on her.
13. On the same issue, learned counsel for the accused-appellant
also invited our attention to the fact, that in the complaint lodged by
Jagdish Chandra (PW8), dated 27.3.1993, he had expressly mentioned
that the prosecutrix had taken away a sum of Rs.3,000/-. In this behalf it
was submitted that the instant act of the prosecutrix exhibits that she
had taken money from her father’s house to make good her escape in
the company of the accused-appellant Jarnail Singh. It is sought to be
inferred from the above, that the prosecutrix VW - PW6 had gone with
the accused-appellant Jarnail Singh, of her own free will. And, that she
had sexual intercourse with him consensually. For the reasons
indicated hereinabove, it was the vehement contention of the learned
counsel for the accused-appellant Jarnail Singh, that the courts below
had seriously erred in recording the appellant’s conviction under
Sections 366, 376 and 120-B of the Indian Penal Code.
14. We have given our thoughtful consideration to the first contention
advanced at the hands of the learned counsel for the accused-appellant.
We shall venture to determine the factual aspects taken into
10Page 11
consideration by the learned counsel for the appellant, to substantiate
the alleged free will and consent of the prosecutrix VW - PW6
individually ,so as to effectively determine the veracity of the
submissions noticed above.
15. In so far as the issue of having gone with the accused-appellant
Jarnail Singh of her own free will, and of having had sexual intercourse
with him consensually, it is necessary only to examine the uncontested
deposition of the prosecutrix VW - PW6. In this behalf, it may be
pointed out, that in her statement recorded under Section 164 of the
Code of Criminal Procedure before the Judicial Magistrate, First Class,
Jagadhari on 6.4.1993, the prosecutrix VW – PW6 had expressly
asserted, that she was forcibly taken away on 25.3.1993, when she had
gone out of her house to urinate in the street, by Jarnail Singh and his
three accomplices. She had clearly and categorically testified, that all
the four had caught hold of her. They had made her inhale something,
which rendered her unconscious. She had further stated, that the
accused-appellant Jarnail Singh and his accomplices, had then taken
her to some unknown place in Uttar Pradesh in a vehicle where Jarnail
Singh forcibly attempted to commit intercourse with her. At that
juncture, she had slapped Jarnail Singh on his face, but in order to
subjugate her, he had put a cloth in her mouth to prevent her from
raising an alarm. Thereafter, the accused-appellant Jarnail Singh and
his accomplices had committed forcible intercourse with her, one after
the other. In her statement before the Trial Court, where she appeared
as PW6, she had reiterated clearly the position of having been taken
11Page 12
away by the accused-appellant Jarnail Singh, and his three
accomplices. She affirmed, that she was taken away in a tanker to Uttar
Pradesh and then all the accused had committed rape on her in a small
room. On the aforestated aspect of the matter, she was not subjected t
cross-examination at the behest of the accused. Only a suggestion was
put to her, that she had persuaded the accused-appellant Jarnail Singh
to take her away, in order to perform marriage with her, and for the said
purpose had taken away cash, clothes and jewellery from her own
residence. The aforestated suggestion was denied by the prosecutrix
VW - PW6. Keeping in view the statement of the prosecutrix VW - PW6
under Section 164 of the code of Criminal procedure before the Judicial
Magistrate, First Class, Jagadhri, as also, the statement made by her
while appearing before the trial court, and the manner in which she was
subjected to cross-examination, there is no room for any doubt, that the
prosecutrix was forcefully taken away, and that, she was subjected to
rape at the hands of the accused-appellant Jarnail Singh and his three
accomplices. It may still have been understandable, if the case had
been, that she had consensual sex with the accused-appellant alone.
But consensual sex with four boys at the same time, is just not
comprehensible. 
Since the fact, that the accused-appellate Jarnail
Singh and the prosecutrix VW – PW6 had eloped together is not
disputed. And furthermore, since the accused-appellant having had
sexual intercourse with the prosecutrix is also the disputed. It is just not
possible to accept the proposition canvassed on behalf of the accused appellant. We, therefore, find no merit in the instant submission.
12Page 13
16. The contention advanced at the hands of the learned counsel for
the accused-appellant Jarnail Singh, that while leaving her house on
25.3.1993, the prosecutrix VW – PW6, had taken away a sum of
Rs.3,000/-, needs a holistic examination. Whilst it is true that in the
complaint, Jagdish Chandra (PW8), the father of the prosecutrix VW -
PW6, had categorically mentioned that a sum of Rs.3,000/- was missing
from his residence, and the said fact was duly mentioned in his
complaint to the police dated 27.3.1993, yet he had not accuse the
prosecutrix VW - PW6 for having taken it away. The instant aspect, in
our considered view pales into insignificance, on account of the
statement made by Jagdish Chandra (PW8) before the Trial Court.
During the course of his deposition before the Trial Court, he had
asserted, that he had mentioned that a sum of Rs.3,000/- was missing
from his residence, but his wife Savitri Devi had found the aforesaid
money from the residence itself, a few days later. Accordingly, the
assertion made by the learned counsel representing the accusedappellant to the effect that the prosecutrix VW - PW6 had taken away a
sum of Rs.3,000/-, when she left the house of her father on 25.3.1993,
cannot be stated to have been duly proved. Besides the aforesaid, it is
apparent from the cross-examination of the prosecutrix VW - PW6, that
a suggestion was put to her that besides cash, she had taken away
clothes and jewellery at the time of leaving her father’s house on
25.3.1993. The prosecutrix VW - PW6 expressly denied the suggestion.
There is no material on the record of the case to substantiate the said
allegation. Therefore, it is not possible for us to accept the accusation
13Page 14
levelled by the accused-appellant Jarnail Singh against the prosecutrix
VW - PW6, either on the issue of having taken away a sum of
Rs.3,000/- while leaving her house, or that she left her house on
25.3.1993 along with clothes and jewellery. Accordingly, the inference
drawn by assuming the said factual position as true, simply does not
arise.
17. The first contention advanced at the hands of the learned counsel
for the appellant can be conveniently determined from another
perspective. The High Court in the impugned order arrived at the
conclusion that the prosecutrix VW - PW6 was a minor at the time of
occurrence on 25.3.1993, and had concluded, that even if she had
accompanied the accused-appellant Jarnail Singh on 25.3.1993 of her
own free consent, and even if she had had sexual intercourse with the
accused consensually, the same would be immaterial. For, consent of a
minor is inconsequential.
18. During the course of hearing of the present appeal, learned
counsel for the appellant vehemently contested the determination of the
High Court in the impugned judgment, wherein it had concluded, that the
prosecutrix VW - PW6 was a minor. Insofar as the instant aspect of the
matter is concerned, it was pointed out, that the sexual organs of the
prosecutrix VW - PW6 were found to be fully developed by Dr. Kanta
Dhankar- PW1. Her hymen was found to be ruptured. It was also seen
during the medico-legal examination of the prosecutrix VW - PW6, that
the vagina admitted two/three fingers easily. Learned counsel for the
appellant-accused Jarnail Singh, also invited our attention to the cross-
14Page 15
examination of Dr. Kanta Dhankar-(PW1), wherein she acknowledged
having mentioned the age of the prosecutrix VW - PW6 as 15 years, on
the basis of the statement made by the prosecutrix to her. Dr. Kanta
Dhankar-PW1 had also acknowledged, that she had not got the
ossification test conducted on the prosecutrix VW - PW6 to scientifically
determine the age of the prosecutrix. Based on the aforesaid, it was
averred that there was no concrete material on the record of the case,
on the basis of which it could have been concluded by the High Court,
that the prosecutrix was a minor on the date of occurrence.
19. In order to support his contention, that the prosecutrix was not a
minor at the time of occurrence, learned counsel for the appellant placed
reliance on the judgment rendered in Sunil vs. State of Haryana, AIR
2010 SC 392. Ordinarily, we would have extracted the observations on
which reliance was placed, but for reasons that would emerge from our
conclusion, we consider it inappropriate to do so.
20. On the issue of determination of age of a minor, one only needs to
make a reference to Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (hereinafter referred to as the 2007
Rules). The aforestated 2007 Rules have been framed under Section
68(1) of the Juvenile Justice (Care and Protection of Children) Act,
2000. Rule 12 referred to hereinabove reads as under :
“12. Procedure to be followed in determination of Age.― (1) In
every case concerning a child or a juvenile in conflict with law, the
court or the Board or as the case may be the Committee referred
to in rule 19 of these rules shall determine the age of such
juvenile or child or a juvenile in conflict with law within a period of
15Page 16
thirty days from the date of making of the application for that
purpose.
(2) The court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the child
or as the case may be the juvenile in conflict with law, prima
facie on the basis of physical appearance or documents, if
available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law,
the age determination inquiry shall be conducted by the court or
the Board or, as the case may be, the Committee by seeking
evidence by obtaining –
(a) (i) the
matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of
birth certificate from the school (other than a play
school) first attended; and in the absence
whereof;
(iii) the birth
certificate given by a corporation or a municipal
authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause
(a) above, the medical opinion will be sought from a duly
constituted Medical Board, which will declare the age of
the juvenile or child. In case exact assessment of the age
cannot be done, the Court or the Board or, as the case may
be, the Committee, for the reasons to be recorded by them,
may, if considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side within the
margin of one year.
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his
age and either of the evidence specified in any of the clauses (a)
(i), (ii), (iii) or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the juvenile
in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with
law is found to be below 18 years on the date of offence, on the
basis of any of the conclusive proof specified in sub-rule (3), the
court or the Board or as the case may be the Committee shall in
writing pass an order stating the age and declaring the status of
juvenility or otherwise, for the purpose of the Act and these rules
16Page 17
and a copy of the order shall be given to such juvenile or the
person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of section 7A, section 64 of the Act
and these rules, no further inquiry shall be conducted by the court
or the Board after examining and obtaining the certificate or any
other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those
disposed off cases, where the status of juvenility has not been
determined in accordance with the provisions contained in subrule(3) and the Act, requiring dispensation of the sentence under
the Act for passing appropriate order in the interest of the
juvenile in conflict with law.”
Even though Rule 12 is strictly applicable only to determine the age of a
child in conflict with law, we are of the view that the aforesaid statutory
provision should be the basis for determining age, even for a child who
is a victim of crime. For, in our view, there is hardly any difference in so
far as the issue of minority is concerned, between a child in conflict with
law, and a child who is a victim of crime. Therefore, in our considered
opinion, it would be just and appropriate to apply Rule 12 of the 2007
Rules, to determine the age of the prosecutrix VW-PW6. The manner of
determining age conclusively, has been expressed in sub-rule (3) of
Rule 12 extracted above. Under the aforesaid provision, the age of a
child is ascertained, by adopting the first available basis, out of a
number of options postulated in Rule 12(3). If, in the scheme of options
under Rule 12(3), an option is expressed in a preceding clause, it has
overriding effect over an option expressed in a subsequent clause. The
highest rated option available, would conclusively determine the age of
a minor. In the scheme of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the highest rated option. In case,
the said certificate is available, no other evidence can be relied upon.
17Page 18
Only in the absence of the said certificate, Rule 12(3), envisages
consideration of the date of birth entered, in the school first attended by
the child. In case such an entry of date of birth is available, the date of
birth depicted therein is liable to be treated as final and conclusive, and
no other material is to be relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a birth certificate issued by a
corporation or a municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever is to be taken
into consideration, for determining the age of the child concerned, as the
said certificate would conclusively determine the age of the child. It is
only in the absence of any of the aforesaid, that Rule 12(3) postulates
the determination of age of the concerned child, on the basis of medical
opinion.
21. Following the scheme of Rule 12 of the 2007 Rules, it is apparent
that the age of the prosecutrix VW - PW6 could not be determined on
the basis of the matriculation (or equivalent) certificate as she had
herself deposed, that she had studied upto class 3 only, and thereafter,
had left her school and had started to do household work. The
prosecution in the facts and circumstances of this case, had
endeavoured to establish the age of the prosecutrix VW-PW6, on the
next available basis, in the sequence of options expressed in Rule 12(3)
of the 2007 Rules. The prosecution produced Satpal (PW4), to prove
the age of the prosecutrix VW – PW6. Satpal (PW4) was the Head
Master of the Government High School, Jathlana, where the prosecutrix
VW - PW6 had studied upto class 3. Satpal (PW4) had proved the
18Page 19
certificate Exhibit-PG, as having been made on the basis of the school
records indicating, that the prosecutrix VW - PW6, was born on
15.5.1977. In the scheme contemplated under Rule 12(3) of the 2007
Rules, it is not permissible to determine age in any other manner, and
certainly not on the basis of an option mentioned in a subsequent
clause. We are therefore of the view, that the High Court was fully
justified in relying on the aforesaid basis for establishing the age of the
prosecutrix VW – PW6. It would also be relevant to mention, that under
the scheme of Rule 12 of the 2007 Rules, it would have been improper
for the High Court to rely on any other material including the ossification
test, for determining the age of the prosecutrix VW-PW6. The
deposition of Satpal-PW4 has not been contested. Therefore, the date
of birth of the prosecutrix VW - PW6 (indicated in Exhibit P.G., as
15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix
VW-PW6, was less than 15 years old on the date of occurrence, i.e., on
25.3.1993. In the said view of the matter, there is no room for any doubt
that the prosecutrix VW - PW6 was a minor on the date of occurrence.
Accordingly, we hereby endorse the conclusions recorded by the High
Court, that even if the prosecutrix VW-PW6 had accompanied the
accused-appellant Jarnail Singh of her own free will, and had had
consensual sex with him, the same would have been clearly
inconsequential, as she was a minor.
22. Since the judgment relied upon by the learned counsel for the
appellant is distinguishable on facts. And since the judgment relied
upon, had not made any reference to the 2007 Rules, we are of the view
19Page 20
that the same would not be relevant for the purposes of determining the
age of the prosecutrix VW - PW6, specially in the background of the
evidence led by the prosecution through Satpal (PW4) to establish.
23. The next contention advanced at the hands of the learned counsel
for the accused-appellant Jarnail Singh was, that the oral testimony of
the prosecutrix VW - PW6 ought not to be accepted as sufficient to
return a finding of guilt against the accused-appellant Jarnail Singh.
Insofar as the testimony of the prosecutrix VW - PW6 is concerned, it is
pointed that there were a number of discrepancies and contradictions
therein. It was submitted, that such discrepancies can be seen on a
comparison of her deposition before the trial Court, with the statement of
the prosecutrix recorded under Section 164 of the Code of Criminal
Procedure on 6.4.1993, as also, the statement of the prosecutrix
recorded by the Investigating Officer under Section 161 of the Code of
Criminal Procedure on 29.3.1993.
24. We have given our thoughtful consideration to the above noted
submission, advanced at the hands of the learned counsel for the
appellant. We, however, find no merit therein. It is not as if the
prosecution version is entirely based on the statement of the prosecutrix
VW - PW6. It would be relevant to mention, that her recovery from the
custody of the accused-appellant Jarnail Singh from the house of Shashi
Bhan, at Raipur, is sought to be established from the statement of Moti
Ram-PW3. There can therefore be no room for any doubt, that after she
was found missing from her father’s residence on 25.3.1993, and after
her father Jagdish Chandra-PW8 had made a complaint to the police on
20Page 21
27.3.1993, she was recovered from the custody of the accusedappellant Jarnail Singh. 
Thereafter, the prosecutrix VW - PW6 was
subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on
29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her
independent testimony, affirmed that she had been subjected to sexual
intercourse, inasmuch as her hymen was found ruptured. Even though
the visual examination of the prosecutrix VW – PW6, during the course
of her medico-legal examination did not reveal the presence of semen or
blood, yet the report of the forensic science laboratory (Exhibit PL) and
of the Serologist (Exhibit PL/1) clearly establish the presence of semen
on her salwar, underwear and pubic hair. The serologist’s report also
disclose, medium and small blood stains on her “salwar”. In her own
deposition, she had mentioned that, when she was raped by the
accused-appellant Jarnail Singh and his accomplices, bleeding had
taken place and she had felt pain, and her clothes were stained with
blood. Her deposition stands scientifically substantiated by Exhibits PL
and PL/1. The suggestion put to the prosecutrix VW – PW6 at the
behest of the accused-appellant Jarnail Singh, during the course of her
cross-examination, that she had accompanied the accused-appellant
Jarnail Singh, of her own free will and had had sexual intercourse with
him consensually, leaves no room for any doubt, that she was in his
company, and that, he had had sexual intercourse with her. The
assertion that the prosecutrix VW – PW6 had accompanied the
accused-appellant Jarnail Singh, and had had sexual intercourse with
him consensually is completely ruled out, because as per the
21Page 22
substantiated prosecution version, the prosecutrix VW - PW6 was not
taken away by the accused-appellant Jarnail Singh alone, but also, by
his three accomplices. All the four of them had similarly violated her
person. 
Additionally, in her statement under Section 164 of the Code of
Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the
first instance, after having caught hold of her, the accused had made her
inhale something from a cloth which had made her unconscious.
Thereafter, when the accused-appellant Jarnail Singh attempted to
commit intercourse with her, she had slapped him. He had then put a
cloth in her mouth, to stop her from raising an alarm. Thereafter, each
one of the accomplices had committed forcible intercourse with her in
turns.
 The factum of commission of forcible intercourse by the accusedappellant, as also, his accomplices was reiterated by her during her
testimony before the Trial Court as PW6. Besides the aforesaid, there
is a statement of her own father, Jagdish Chandra (PW8) who also in
material particulars had corroborated the testimony of the prosecutrix
VW - PW6. 
The prosecutrix VW – PW6, was not subjected to crossexamination on any of these issues. 
Nor was the prosecutrix confronted
with either the statements made by her under Section 161 or Section
164 of the Code of Criminal Prosecution, so as to enable her to explain
discrepancies, if any. Therefore, we find no merit at all, in the
submission advanced by the learned counsel. In the above view of the
matter, we are satisfied that there was substantial material corroborating
the statement of the prosecutrix VW - PW6, for an unequivocal
determination of the guilt of the accused-appellant Jarnail Singh.
22Page 23
25. No other submission besides those dealt with hereinabove, was
advanced at the hands of the learned counsel for the appellant. For the
reasons recorded above, we find no merit in the instant appeal and the
same is accordingly dismissed.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
July 1, 2013.
23

motive is not a very strong one= The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.”

PUBLISHED IN http://judis.nic.in/supremecourt/filename=40455

Page 1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1130 of 2010
Birendra Das & Anr. ... Appellants
Versus
State of Assam ...Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal is directed against the judgment of
conviction and order of sentence dated 30.8.2007 passed in
Criminal Appeal No. 106 of 2005 by the Gauhati High Court
affirming the verdict of conviction of the learned Sessions
Judge, Karimganj in Sessions Case No. 135 of 2004 whereby the
learned trial Judge had convicted the appellants under Section
302 in aid of Section 34 of the Indian Penal Code (for short
“IPC”) along with another and sentenced each of them to
undergo rigorous imprisonment for life and to pay a fine of
1Page 2
Rs.5000/- each, in default to pay the fine, to suffer further
imprisonment for one year.
2. The case related to the murder of a forty year old man
by the name of Matilal Das in the morning of 29.9.2003
by hacking him at various parts of the body in a brutal
manner with deadly weapons and the injuries sustained
by him were quite serious in nature. On the date of
occurrence, about 8.30 a.m., deceased Matilal Das was
proceeding towards his home from his shop and at that
time, the accused persons, namely, Rajan Das, Sadhan
Das, Madan Das, Birendra Das, Jara Das, Bapan Das,
Lakshmi Rani alias Latashi Rani and Smt. Jyotsna Das,
all being armed with deadly weapons like bhojali, dao,
etc. accosted him in front of the house of Birendra and
immediately Rajan Das dealt a blow on the head of
Matilal from behind by bhojali. After the assault, the
deceased raised alarm and fell down on the road.
Thereafter, all the accused persons hacked him as a
result of which he sustained number of injuries and
breathed his last on the spot. Hearing the scream of
Matilal, Nripendra Das and Sanjan Das came to the spot
2Page 3
and, at that juncture, Sadhan Das tried to attack Sanjan
Das, but he managed to flee away from the spot.
However, he inflicted a dao blow on Nripendra Das
which caused an injury on the finger of his left hand.
Thereafter, accused Birendra and others dragged the
dead body of Matilal to Birendra’s courtyard and there
they continued to hack the body resulting in severing of
certain limbs. Sanjan Das, son of the deceased Matilal,
lodged an FIR with the Officer-in-Charge of Kaliganj
Watch Post which was entered vide G.D. Entry No. 424
dated 29.9.2003 about 10.00 a.m. It was forwarded to
the Officer-in-Charge, Karimganj Police Station to
register a case and, accordingly, case No. 314/2003 was
registered for the offences punishable under Sections
147, 148, 149, 341, 324, 307 and 302 IPC. After the
criminal law was set in motion, the Investigating Officer
conducted the inquest of the dead body of the
deceased Matilal and sent it for post mortem, seized the
bhojali which was about 15 inch in length and a dao of 2
feet in length, both stained with blood, in the presence
of the witnesses vide Exts. 4 and 6. The injured
3Page 4
Nripendra Das was sent to Karimganj Hospital for
examination of injuries and treatment. After recording
the statements of the witnesses under Section 161 of
the Code of Criminal Procedure (Cr.PC), a charge-sheet
was placed against the accused persons and the said
charge-sheet showed Sadhan Das, Jara Das and Jyotsna
Rani as absconders. The learned Chief Judicial
Magistrate, Karimganj committed the case to the Court
of Session except that of accused Rajan Das, Madan
Das and Bapan Das who were found to be juvenile on
the basis of medical report and, accordingly, were sent
to the juvenile court at Silcher. After committal, the
learned Sessions Judge, considering the matter in
entirety, framed charges against Birendra Das, Latasil
Das and Jara Das under Section 302 read with 34 IPC.
3. The accused persons pleaded innocence and false
implication and claimed to be tried.
4. At the trial, the Prosecution, in order to bring home the
charge, examined 11 witnesses, namely, Sanjan Das,
PW-1, son of the deceased Matilal, Nripendra Das, PW-2,
a relation of the deceased, Dr. Rabindra Nath Das, PW-
4Page 5
3, who conducted the autopsy on the dead body of the
deceased, Dr. Pradip Dey, PW-4, who examined PW-2,
Namita Rani Das, PW-5, sister of the deceased, Samiran
Das, PW-6, neighbour of the deceased, Gita Das, PW-7,
a co-villager, Bibhash Bardhan, PW-8, a formal witness,
Rinku Rani, PW-9 and Haren Ghosh, PW-10, who had
seen part of the incident, and Prabhat Saikia, PW-11,
the Investigating Officer. Apart from adducing oral
evidence, the prosecution placed reliance on a large
number of documents. The accused persons chose not
to adduce any evidence.
5. On consideration of the evidence on record, the learned
Sessions Judge found that the accused-appellants
therein were guilty and imposed the sentence. On
appeal being preferred by two of the convicts, the High
Court gave the stamp of approval to the conviction and
the sentence as has been stated hereinbefore.
6. In support of the appeal, Ms. Kiran Bhardwaj, learned
counsel for the appellant, has submitted that the High
Court has faulted in accepting the evidence of the
principal witnesses cited by the prosecution as eye-
5Page 6
witnesses though they arrived at the spot after some
length of time. It is urged by her that the appellate
court has been swayed away by the emotion because of
the brutality involved in the murder and hence, the
approach as requisite under the criminal law has been
flawed and the result is unwarranted affirmation of
conviction. It is her further submission that Section 34
IPC is in no way attracted inasmuch as no overt act has
been attributed to the present appellants and there is
nothing on record to show that they had shared any
common intention. It is argued by her that though the
prosecution has alleged commission of such a ghastly
crime by the accused persons, yet remotely no motive
has been indicated or even endeavoured to be traced
and that shows that there has been spinning of
allegations on some kind of suspicion or conjectures.
7. Ms. Vartika S. Walia, learned counsel appearing for the
State, in oppugnation, has contended that description of
murder as brutal cannot be construed to be a predetermined judicial mind because the learned trial
Judge as well as the High Court has analysed the
6Page 7
evidence in a microscopic manner and found that the
accused-appellants are guilty of the offence. The
learned counsel would contend that carrying of
weapons to the place of occurrence and the other
activities which have been brought in the evidence
against the appellants have clearly established the
factum of common intention as envisaged under
Section 34 of the Penal Code. The specious stand that
no motive has been established by the prosecution is
absolutely irrelevant and deserves rejection as there is
ample direct evidence to show the commission of the
crime by the accused-appellants.
8. Before we proceed to deal with the contentions
canvassed at the Bar, it is imperative to state that there
is no dispute that the death of the deceased Matilal Das
was homicidal in nature. The doctor, who conducted
the post mortem on the dead body of Matilal Das, had
found the following injuries: -
“1) Right foot completely severed from the leg.
2) Right index finger is completely separated from
the hand. Other fingers are partially separated.
7Page 8
3) Fracture right wrist joint. Lacerated injury over
the right wrist joint about 4” x 3” bone deep.
4) Fracture of the right femur.
5) A sharp cut injury over the forehead extending
whole circumference of the head about 1” x ½”
x ½” just above the ear.
6) Sharp cut injury over the left thigh upper part
about 3” x 1.5” x 1”.”
9. The said witness has opined that the death was due to
shock and haemorrhage resulting from the injuries
sustained by the deceased and all the injuries were
ante mortem in nature.
10. Keeping in view the injuries sustained by the deceased,
it is to be seen how the prosecution has established the
complicity of the accused-appellants in the crime. PW-
1, the son of the deceased, has categorically stated
about his father getting the blow and falling down. He
has mentioned the names of the appellants herein to be
present there. It has come out in his testimony that
when he tried to go near his father, they tried to attack
him and out of fear he ran away and informed his
paternal uncle Nripendra, PW-2. It is in his evidence
8Page 9
that the dead body of his father was brought to the
courtyard of Birendra. In the cross-examination, he has
stood embedded in his version and the suggestion that
he had not seen the occurrence has been strongly
denied.
11. PW-2 has deposed that he saw Sadhan, Madan and
Rajan assaulting the deceased and when he tried to
intercept, he was assaulted and sustained an injury on
his finger. His injury on the finger has been
corroborated by Dr. Pradip Dey, PW-4. He has also
deposed that the deceased was bleeding profusely and
was dragged inside the courtyard of Birendra.
12. PW-5, Namita Rani Das, has testified that Sadhan,
Madan, Rajan and Bapan were hacking the deceased
Matilal and Birendra, Latani, Jyotsna and Jara were
dragging the dead body to the side of the fence. It has
come out in her evidence that the appellants were
armed with deadly weapons. In the cross-examination,
certain suggestions have been given as regards the
existence of animosity between her husband and Matilal
Das on one side and Birendra on the other over some
9Page 10
Panchayat road. Though the said aspect has been
accepted by her, yet the same cannot be treated as a
ground to discredit her testimony which has remained
absolutely unshaken. Similar is the evidence of other
prosecution witnesses.
13. Considering these aspects along with the factum that
the dead body was seized from the courtyard of
Birendra, it is difficult to accept the submission urged
by the learned counsel for the appellants that the eyewitnesses who have been cited as such are really not
eye-witnesses and they have been planted and,
accordingly, we reject the same.
14. The next limb of argument is that there has been no
allegation of any overt act against the present
appellants and their mere presence would not establish
their complicity. Learned counsel for the appellant has
invited our attention to the evidence of PW-1, son of the
deceased, who has stated that the present appellants
were present at the scene of occurrence. But that is not
the only evidence against them. It is also seen in the
evidence of others which we have already dealt with
10Page 11
hereinabove that the appellants were armed with
weapons and dragged the dead body of the deceased
to the courtyard of Birendra. From the aforesaid, the
question arises whether the common intention can be
derived or not. What is really proponed by Ms.
Bhardwaj is that the appellants had not inflicted any
blow on the deceased. The aforesaid contention,
needless to say, is totally without any substratum. Both
the accused persons were charged for the substantive
offence under Section 302 IPC in aid of Section 34 of the
Penal Code. The conditions precedent which are
requisite to be satisfied to attract Section 34 of the
Penal Code are that the act must have been done by
more than one person and the said persons must have
shared a common intention either by omission or
commission in effectuating the crime. A separate act
by each of the accused is not necessary. The
Constitution Bench in Mohan Singh v. State of
Punjab1
, while adverting to the concept of Section 34
IPC, has ruled thus: -
1
 AIR 1963 SC 174
11Page 12
“Like Section 149, Section 34 also deals with
cases of constructive criminal liability. It
provides that where a criminal act is done by
several persons in furtherance of the common
intention of all, each of such persons is liable for
that act in the same manner as if it were done
by him alone. The essential constituent of the
vicarious criminal liability prescribed by Section
34 is the existence of common intention. If the
common intention in question animates the
accused persons and if the said common
intention leads to the commission of the
criminal offence charged, each of the persons
sharing the common intention is constructively
liable for the criminal act done by one of them.
Just as the combination of persons sharing the
same common object is one of the features of
an unlawful assembly, so the existence of a
combination of persons sharing the same
common intention is one of the features of
Section 34.”
15. In Lallan Rai and others v. State of Bihar2
, relying
upon the dictum laid down in Barendra Kumar Ghosh
v. King Emperor3
 and Mohan Singh (supra), it has
been ruled that the essence of Section 34 is
simultaneous consensus of the mind of persons
participating in the criminal action to achieve a
particular result.
2
 (2003) 1 SCC 268
3
 AIR 1925 PC 1
12Page 13
16. Recently, in Goudappa and others v. State of
Karnataka4
, the Court reiterated the principle stating
that Section 34 of the Penal Code lays down a principle
of joint liability in doing a criminal act and the essence
of that liability is to be found in the existence of
common intention, animating the accused leading to
the doing of a criminal act in furtherance of such
intention. It has been further stated therein that the
principle inherent in Section 34 of the Penal Code is only
a rule of evidence, but does not create a substantive
offence and, therefore, if the act is the result of a
common intention, then every person would get the
criminal act shared, and the common intention would
make him liable for the offence committed irrespective
of the role which he had in its perpetration. Posing the
question how to gather the common intention, the
Court opined that the conduct of the accused soon
before and after the occurrence, the determination and
concern with which the crime was committed, the
weapon carried by the accused and the nature of the
4
 (2013) 3 SCC 675
13Page 14
injury caused by one or some of them are relevant.
Emphasis has also been laid on the totality of the
circumstances from which the common intention can be
gathered.
17. In the case at hand, as has been indicated earlier, the
appellants were not onlookers as the submission seems
to be. Their intention is clearly reflectible from their
presence with weapons at the place of occurrence till
the commission of the crime and thereafter dragging
the dead body to the courtyard of Birendra. Thus, in
our considered opinion, the submission that Section 34
of IPC is not attracted is extremely specious and does
not deserve acceptance.
18. The last ground of attack on the sustainability of the
conviction is that the prosecution has not been able to
prove any motive. The learned counsel would submit
that when the animosity between some of the
witnesses and the deceased has been admitted, there
can be a ground for false implication. We have already
analysed the evidence brought on record and there is
nothing to discard the same. In Balram Singh and
14Page 15
another v. State of Punjab5
, it has been clearly
stated that if the incident in question as projected by
the prosecution is to be accepted, then the presence or
absence of a motive or strength of the said motive by
itself would not make the prosecution case weak.
19. In this context, we may sit in a time machine and refer
to few lines from Atley v. State of U.P.6
 wherein it has
been expressed thus: -
“This is true, and where there is clear proof of motive
for the crime, that lends additional support to the
finding of the court that the accused was guilty, but
absence of clear proof of motive does not necessarily
lead to the contrary conclusion.”
20. In State of Uttar Pradesh v. Kishanpal and others7
,
while dealing with the presence of motive, a two-Judge
Bench had to say thus: -
“39. The motive may be considered as a
circumstance which is relevant for assessing the
evidence but if the evidence is clear and
unambiguous and the circumstances prove the guilt
of the accused, the same is not weakened even if the
5
 AIR 2003 SC 2213
6
 AIR 1955 SC 807
7
 (2008) 16 SCC 73
15Page 16
motive is not a very strong one. It is also settled law
that the motive loses all its importance in a case
where direct evidence of eyewitnesses is available,
because even if there may be a very strong motive
for the accused persons to commit a particular crime,
they cannot be convicted if the evidence of
eyewitnesses is not convincing. In the same way,
even if there may not be an apparent motive but if
the evidence of the eyewitnesses is clear and
reliable, the absence or inadequacy of motive cannot
stand in the way of conviction.”
21. Thus, acceptation of the direct evidence on record on
proper scrutiny and analysis of proof of existence of
motive or strength of motive does not affect the
prosecution case. That apart, it is always to be borne in
mind that different motives may come into operation in
the minds of different persons, for human nature has
the potentiality to hide many things and that is the
realistic diversity of human nature and it would be well
nigh impossible for the prosecution to prove the motive
behind every criminal act. Therefore, when the
appellants armed with lethal weapons were present and
witnessed the occurrence and participated in dragging
the deceased to the courtyard of Birendra,
establishment of any motive is absolutely
inconsequential.
16Page 17
22. Consequently, the appeal, being devoid of merit, stands
dismissed.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
July 01, 2013.
17