Suit for declaration in alternative partition in respect of A and B properties - Claimed A schedule are self acquired properties - Regarding B schedule properties claimed joint right as some of the properties stands in the name of defendants - Trial court partly decreed the suit in respect of A schedule properties as the Defendants failed to prove that the A schedule properties are purchased out of joint income and out of the income of ancestral properties - and dismissed the suit in respect of B schedule due to non-joinder of his mother as one the party - Appeal was also confirmed - Their Lordships of High court also confirmed the lower court order and judgement and dismissed the second appeal = 2014 ( Feb.Part) judis.nic.in/judis_chennai/filename=45052

Suit for declaration in alternative partition in respect of A and B properties - Claimed A schedule are self acquired properties - Regarding B schedule properties claimed joint right as some of the properties stands in the name of defendants - Trial court partly decreed the suit in respect of A schedule properties as the Defendants failed to prove that the A schedule properties are purchased out of joint income and out of the income of ancestral properties - and dismissed the suit in respect of B schedule due to non-joinder of his mother as one the party - Appeal was also confirmed - Their Lordships of High court also confirmed the lower court order and judgement and dismissed the second appeal =

The respondent/plaintiff filed the suit 
(a) for possession in respect of 5 items of "A" Schedule properties 
(b) for the amount of Rs.4,000/- as past profit 
(c) for alternative relief of preliminary decree for partition and separate possession of the plaintiff's 1/3rd share in 5 items in "A" schedule and 6 items in "B" Schedule properties 
(d) To direct the defendants 1 and 2 or all the defendants to render accounts for the income of the suit properties for the past three years prior to the suit 
(e) for final decree 
(f) for cost 
(g) other reliefs.=

The respondent's father or the family members have not owned any property much less income yielding property. The family do not possess any ancestral or joint family property. 

Since he was in the Military service, he was eligible to enjoy Government Poromboke land and he occupied item 1 of the suit "A" Schedule property which was used as 'Kalam' by some persons in the year 1958-1959.  At that time, the first appellant was minor and the 2nd appellant was an young boy aged about 4 or 5 years. Only out of the respondent's money, the said first item was made fit for cultivation.  Initially, "B" memos were issued to the respondent and later assigned to the respondent on the basis of his application and on account of his Military service.  The above said first item given by the State Government to the appellant as a grant and the respondent out of his own income erected a borewell and brought electricity connection. The respondent out of his own income purchased item Nos.2 and 3 including 3A of 'A' Schedule properties for his benefit.  Further, the respondent has also purchased house site in his mother's name and subsequently got it transferred in his name and put up the building in item 4 of the 'A' Schedule with his own fund and also by raising loan from the building society.  Since the respondent was in service elsewhere he allowed his father, mother and others to live in the newly constructed house in item 4 of the "A" Schedule and kept all the documents in an alamirah in that house.  Thus the entire "A" schedule properties are self-acquired properties of the respondent.  Neither the appellants 1 and 2 nor the family contributed any amount for the purchase of properties. The respondent used to come to the village during cultivation time and cultivating "A" schedule properties out of his own earnings. The appellants 1 and 2 used to help the respondent only in cultivation of the lands. The respondent settled the village permanently after his retirement in June 1992.  Since the respondent was living in the newly constructed house, the appellants were allowed to live in item No.5 of "B" Schedule house. The appellants began to disturb the respondent's possession and hence the respondent filed a suit in OS.No.1034 of 1993 in respect of items 1 to 3 of the suit "A" Schedule properties. The appellants 1 and 2 for the first time in November 1993, claimed as  both "A" & "B" Schedule properties are the joint family properties. 
The appellants are in illegal possession in the plaint "A" schedule properties and hence the respondent entitled to recover possession and future profits. To avoid multiplicity of proceedings, the respondent filed comprehensive suit for partition of 1/3rd share in A and B schedule properties. Since some of the properties in 'B' schedule stands in the name of appellants 3 and 4 they are impleaded as necessary parties. Hence, this suit.
The trial court has discussed about the oral and documentary evidence adduced on either side and finally held that all the items of A-schedule properties are separate properties of the respondent/plaintiff and not ancestral properties. Therefore, the respondent/plaintiff is entitled to the relief of declaration, recovery of possession and also the relief of mesne profits. The trial court also  directed to take separate proceedings regarding mesne profits. In view of the above said findings, the trial court has dismissed the relief of partition in respect of all items in A-schedule properties. With regard to items 1 to 5 in B-schedule properties, the trial court has held that the plaintiff has not impleaded the necessary parties particularly the mother of the plaintiff and therefore, the suit for partition regarding items 1 to 5 is not maintainable and hence rejected the claim of the respondent.  The trial court has discussed about the 6th item of B-schedule and finally held that it is self-acquired property of third appellant / third defendant and it is not joint family property and therefore, rejected the relief of partition in respect of 6th item.  Finally the trial court has decreed the suit and granted declaration, recovery of possession and mesne profits only in respect of A-schedule properties.
The respondent/plaintiff has not preferred any appeal as against the findings regarding B-schedule properties. 
Defendants filed appeal - appeal was dismissed and now the second appeal .
The first appellate court also confirmed the findings of the trial court.  No appeal has been preferred in respect of six items of B-schedule properties. Therefore, in this appeal, only to be decided whether five items of A-schedule properties are self-acquired properties, as contended by the learned counsel for the respondent or joint family properties as contended by the learned counsel for the appellants.
Admittedly, the first item of A-schedule was originally a Government poromboke land and the above said property was assigned by the Government to the respondent, since he was in Military service. The Government has also granted patta in the name of respondent as per Ex.A9 order of Tahsildar dated 24.01.1976 and the patta number is 666.  The appellants have not denied the fact that the patta was granted in the name of respondent, while he was in Air-Force. It is not the specific case of the appellants that the patta was granted only on the basis of possession. Admittedly, at the time of issuing patta in the name of respondent, the father of the respondent, who was kartha of the family alive.  Therefore, the appellants have not stated any reason why the above said property was assigned in the name of respondent, if the patta was granted only on the basis of possession of the appellants family. At the time of oral evidence, 1st appellant deposed as DW1 as admitted that the patta has been granted in the name of respondent only on the ground that he was in Air-Force service. But, he expressed ignorance about the patta was granted only on the ground that he was in Air-Force. Further, appellants have not claimed right on the basis of possessary title over the 1st item of A-schedule property. Therefore, both the courts below have given clear findings after discussing both sides oral and documentary evidence and finally held that the 1st item of A-schedule is a self-acquired property of the respondent and not joint family property as pleaded by the appellants. Therefore, the above said finding is not perverse finding and hence no need to interfere with the above said findings.

On careful reading of entire oral and documentary evidence adduced on either side revealed that the appellants have miserably failed to prove the income from ancestral property and also not proved the loan obtained by the appellants for purchase of the properties and discharged only out of income from joint family property.

It is not in dispute that the deceased Rangasamy Padayachi was only a gangman and he retired from service in the year 1967.  As rightly discussed by the courts below, the appellants never placed any reliable documentary evidence to prove the above said Rangasamy Padayachi was a permanent employee and received a sum of Rs.50,000/-, at the time of retirement. Therefore, except certain receipts for discharge of loan, no reliable evidence to prove that the appellants family having joint family properties and sufficient income from the properties to purchase the above said properties and the loan obtained for purchase of the properties and discharged only out of the excess income from joint family properties and therefore, the above said findings of both the courts below regarding suit items 2 and 3 including 3A also not perverse finding
Further, the appellants have not examined the mother of the appellants 1 and 2 to prove that the family having sufficient fund to purchase the properties and also to prove that the mother having jewels and obtained loan and from the above said fund, the properties were purchased in the name of respondent or in the name of mother. No reason has been assigned by the appellants for non-examination of material witness as discussed by the courts below.  Absolutely no pleadings and evidence to prove that the appellants family having sufficient means and the mother of the appellants 1 and 2 doing milk vending business and earned money and out of the above said fund, the properties were purchased. On the  side of the appellants not produced any documents to prove that the father of the appellants 1 and 2 or the family members taken lease and out of income from the lands, the properties were purchased. Therefore, absolutely no reliable oral and documentary evidence to prove the contention of the learned counsel for the appellants as rightly discussed by both the courts below.  Therefore, the findings of both the courts below are not perverse finding or illegal as pleaded by the learned counsel for the appellants. Both the courts below correctly discussed about the oral and documentary evidence particularly the alleged letters written by the respondents and finally held that the appellants have failed to prove that the A-schedule properties are joint family properties and therefore, all the substantial questions of law answered as against the appellants.

24. In view of the above said discussions, the findings of both the courts below are to be confirmed and the second appeal is liable to be dismissed. 

2014 ( Feb.Part) judis.nic.in/judis_chennai/filename=45052

Sec.302 read with Section 149 of the IPC. - verses -Section 304 Part II of the IPC - no specific role of each witness who gave which blow - doctor not stated which injury is fatal - non use of sharp edged weapons - not proved there is a common object to kill the victim and executed their plan in causing death- tribals - innocent back ground - in jail for 14 years - Apex court held that they are convicted for culpable homicide not amounting to murder and the sentence already undergone by them is directed to be treated as sentence imposed on them under Section 304 Part II of the IPC. The impugned order is modified to the above extent and directed them to release if not required in any other offences = BADAL MURMU AND ORS. …APPELLANTS Versus STATE OF WEST BENGAL …RESPONDENT = 2014 (March . Part) judis.nic.in/supremecourt/filename=41286

 Sec.302 read with Section 149 of the IPC. - verses -Section 304 Part II  of  the
IPC - no specific role of each witness who gave which blow - doctor not stated which injury is fatal - non use of sharp edged weapons - not proved there is a common object to kill the victim and executed their plan in causing death- tribals - innocent back ground - in jail for 14 years -  Apex court held that they  are  convicted  for  culpable  homicide  not
amounting to murder and the sentence already undergone by them  is  directed
to be treated as sentence imposed on them under Section 304 Part II  of  the
IPC.  The impugned order is modified to the above  extent and directed them to release if not required in any other offences =
There  are  eleven  appellants.  All  of  them  were  tried  by  the
Additional Sessions Judge, Burdwan for  offences  punishable  under  Section
148 and Section 302 read with Section 149 of the IPC.  They  were  convicted
for offences punishable under Section 148 and Section 302 read with  Section
149 of the IPC and sentenced to undergo imprisonment for  life  for  causing
death of one Jhore Soren (“deceased-Jhore Soren”).  The  appellants’  appeal
was dismissed by the High Court. Hence, the present appeal.=

As earlier noted by us, in this case none of the  eye  witnesses  have
given specific role to any of the appellants.  They have  not  stated  which
appellants gave which blow and on which part of the deceased’s  body.   They
have not stated which injury was caused by which accused.   The  doctor  has
not stated which injury was fatal.  Undoubtedly, the deceased  had  suffered
two fractures and haemotoma under the scalp, but nobody has  said  that  any
particular appellant caused these injuries.  It bears  repetition  to  state
that  though  sharp  cutting  weapons  i.e.  tangies  were  available,   the
appellants  did  not  use  them.   In  the  peculiar  facts  of  this  case,
therefore, it is not possible to hold  that  the  appellants  shared  common
object to murder the deceased and in prosecution of that common object  they
caused his death.  It would not be possible to sustain their conviction  for
offence punishable under Section 302 read with Section 149 of the  IPC.   It
would be just and proper to resort to Section 304 Part II  of  the  IPC  and
treat the sentence already undergone  by  them  as  sentence  for  the  said
offence.

11.   Before parting we must note certain special  features  of  this  case,
which distinguish it from other cases.   It  is  an  unusual  case  where  a
trivial incident led to a murder.  The appellants as well  as  the  material
witnesses belong to Santhal community.  They are tribals.  They come from  a
very poor strata of the society and appear to be untouched by the effect  of
urbanization.  They live in their own world.  They are economically so  weak
that possession of a hen is very  important  to  them.   The  deceased-Jhore
Soren stole a hen, killed it and made a feast out of it.  This  angered  the
community and the village panchayat penalized deceased- Jhore Soren. He  was
ordered to give a hen to appellant Bhagbat and, in addition, he had to  give
two handies of liquor.   Though, there  can  be  no  justification  for  the
appellants’ actions, their anger and reaction to the theft of  hen  must  be
viewed  against  the  background  of  their  economic  and  social   status.
Moreover, we are informed that the appellants are  in  jail  for  almost  14
years.  Apart from the legal angle, this, in  our  view,  is  a  case  where
justice must be tempered with mercy.  In the peculiar circumstances  of  the
case, in our opinion, convicting the appellants for  culpable  homicide  not
amounting to murder and sentencing them for the period already undergone  by
them by resorting to Section 304 Part II of the IPC will meet  the  ends  of
justice.

12.   In the circumstances, the conviction of the  appellants  for  offences
punishable under Section 302 read with Section 149 of  the  IPC  is  quashed
and set aside.  Instead,  they  are  convicted  for  culpable  homicide  not
amounting to murder and the sentence already undergone by them  is  directed
to be treated as sentence imposed on them under Section 304 Part II  of  the
IPC.  The impugned order is modified to the above  extent.   The  appellants
are in jail.  They are directed to be released  forthwith  unless  they  are
otherwise required in any other case.    The appeal is disposed of.

2014 (March . Part) judis.nic.in/supremecourt/filename=41286

RANJANA PRAKASH DESAI, MADAN B. LOKUR
                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1502 OF 2004


BADAL MURMU AND ORS.                    …APPELLANTS

                                   Versus

STATE OF WEST BENGAL                    …RESPONDENT


                                  JUDGMENT


(SMT.) RANJANA PRAKASH DESAI, J.

1.      There  are  eleven  appellants.  All  of  them  were  tried  by  the
Additional Sessions Judge, Burdwan for  offences  punishable  under  Section
148 and Section 302 read with Section 149 of the IPC.  They  were  convicted
for offences punishable under Section 148 and Section 302 read with  Section
149 of the IPC and sentenced to undergo imprisonment for  life  for  causing
death of one Jhore Soren (“deceased-Jhore Soren”).  The  appellants’  appeal
was dismissed by the High Court. Hence, the present appeal.

2.    The prosecution story could be shortly stated:
      The  appellants  and  the  prosecution  witnesses  belong  to  Santhal
Community of village  Mobarakpur.   In  March,  1989,  deceased-Jhore  Soren
killed the hen of one Bhagbat.  This created a furore in Santhal  community.
 A Salish was called and the deceased was asked to  give  one  hen  and  two
handies of country  liquor  to  Bhagbat  as  a  penalty  by  the  Salishman.
Deceased-Jhore Soren complied with Salishman’s order.   On  14/4/1989,  when
deceased-Jhore Soren and PW-7  Kanka  were  discussing  the  same  incident,
appellant-Bhagbat overheard it and showed his  displeasure  to  PW-7  Kanka.
When PW-7 Kanka protested, the appellants Bhagbat, Ragai and  Sambhu  caused
bleeding injuries to him.  PW-7 Kanka went  to  a  doctor  and  got  himself
examined.  On the next day, in the morning, deceased-Jhore  Soren  and  PW-7
Kanka were called to the courtyard of one Saheb Hasda on the pretext that  a
meeting was to be held over the previous  day’s  incident.   When  deceased-
Jhore Soren and PW-7 Kanka came to the courtyard of Saheb Hasda,  they  were
tied with a rope against one bamboo pole and one Kul  tree  respectively  by
the appellants.  The appellants  were  armed  with  lathis,  tangies  (sharp
cutting weapons) etc.  They started assaulting deceased-Jhore Soren and  PW-
7 Kanka  with  lathis.   PW-7  Kanka  managed  to  escape.   The  appellants
continued to beat deceased Jhore Soren.  He was beaten to death.  Two  wives
of deceased-Jhore Soren, who had followed him  to  the  courtyard  of  Saheb
Hasda, saw the incident.  The women who had assembled there  also  assaulted
the wives, mother and sister of  deceased-Jhore  Soren.  PW-1  Nilmoni,  the
first wife of deceased-Jhore Soren rushed to Memari Police Station and  gave
her statement.  In her statement, she named all the appellants  as  persons,
who assaulted her husband – deceased-Jhore Soren with lathis.  On the  basis
of her statement, investigation was  started  and  upon  completion  of  the
investigation, the appellants came to be charged as aforesaid.

3.    The  prosecution  examined  10  witnesses.   The  accused  denied  the
prosecution case.  Prosecution case found favour with the trial court  which
convicted and sentenced the appellants as aforesaid.  Their  conviction  and
sentence was confirmed by the High Court.

4.    Ms. Makhija, learned amicus, who on our request is appearing  for  the
appellants, submitted that the prosecution has  failed  to  prove  its  case
beyond reasonable  doubt  and,  therefore,  the  appellants  deserve  to  be
acquitted.  She submitted that, in any  case,  if  this  Court  comes  to  a
conclusion that the appellants are guilty, then it should hold  them  guilty
of culpable homicide not amounting to murder because there was no  intention
to  kill  the  deceased.   Counsel  submitted  that  the   appellants   have
admittedly used lathis and, therefore, Section 304 Part II  of  the  IPC  is
clearly attracted to this case.   In  this  connection,  counsel  relied  on
Kirti Mahto & Ors.  v.  State  of  Bihar[1].   Counsel  submitted  that  the
injuries are not on the  vital  part  of  the  deceased’s  body.   They  are
superficial in nature.  This also indicates that there was no  intention  to
kill the deceased.  In this connection, counsel relied on  Molu  &  Ors.  v.
State of  Haryana[2].   Counsel  submitted  that  the  appellants  are  poor
tribals; they are in jail for a considerably long time and, hence, they  may
be sentenced to the period already undergone by  resorting  to  Section  304
Part II of the IPC.

5.    Mr. Anip Sachthey, learned counsel for the State, on the  other  hand,
submitted  that  the  ocular  evidence  establishes  the  prosecution  case.
Counsel submitted that it is true that the appellants used lathis  but  even
if the common object was  to  inflict  injuries,  the  appellants  who  were
members of the unlawful assembly knew that  the  murder  was  likely  to  be
committed in prosecution of common object and since death was caused,  every
member of the unlawful assembly must be held guilty of murder.   In  support
of this submissions, counsel relied on Munivel  v.  State of  Tamil  Nadu[3]
and  Alister  Anthony  Pareira   v.   State  of   Maharashtra[4].    Counsel
submitted that the appellants persistently  assaulted  deceased-Jhore  Soren
and caused grievous injuries to  him  which  resulted  in  his  death.   The
intention to commit murder is clear and, hence, they are guilty  of  murder.
In this connection,  he  relied  on  Kashmiri  Lal  &  Ors.   v.   State  of
Punjab[5].  Counsel submitted that the appeal be dismissed.

6.    PW-1 Nilmoni, the first wife  of  deceased-Jhore  Soren  narrated  the
entire incident after describing the previous incident  about  the  stealing
of the hen by her husband and the penalty imposed  by  the  Salishman.   She
stated how PW-7 Kanka was tied to a Kull tree and beaten up; how PW-7  Kanka
fled away and how deceased-Jhore Soren was beaten to death by  using  lathis
by the appellants after tying him to a bamboo pole.  She did  not,  however,
describe the exact role of each of the appellants.  She did  not  state  who
assaulted where.  PW-3 Rabi Soren is the  sister  of  deceased-Jhore  Soren.
Her evidence is on similar lines.  PW-6  Sumi  Soren,  the  second  wife  of
deceased-Jhore Soren also corroborated PW-1 Nilmoni so far  as  the  assault
on deceased-Jhore Soren is  concerned.   PW-7  Kanka,  the  injured  witness
described the events that preceded  the  incident  and  stated  how  he  and
deceased-Jhore Soren were tied to trees; how  appellants  –  Badal,  Sambhu,
Ragai, Bhagbat and Phangu assaulted deceased-Jhore Soren  with  lathis;  how
appellant Sombha was guarding the place with  a  tangi  and  how  the  other
appellants encouraged them.  He stated that he  somehow  managed  to  escape
and got himself examined by the doctor.  His evidence indicates that out  of
fear he ran away and did not inform anyone about  the  incident.   PW-9  Dr.
Prodip Kumar, who did the post-mortem of deceased-Jhore  Soren  stated  that
the death was caused due to the injuries  described  by  him  and  that  the
injuries could be caused by a blunt object like lathi.  The evidence of  PW-
1 Nilmoni, PW-3 Rabi Soren, PW-6 Sumi Soren and PW-7 Kanka is  truthful  and
has rightly been relied upon.  They are rustic witnesses and  have  candidly
stated all that they had seen.  Pertinently, PW-7 Kanka did not hesitate  to
name his brother as one of the assailants.  No doubt,  these  witnesses  are
related to deceased-Jhore Soren, but the tenor of  their  evidence  is  such
that it is  not  possible  to  say  that  they  have  falsely  involved  the
appellants.  Their evidence has a  ring  of  truth.   The  prosecution  has,
therefore, proved that the appellants assaulted  deceased-Jhore  Soren  with
lathis which resulted in his death.


7.    Now the question is which offence was  committed  by  the  appellants.
The cause of this entire episode is very trivial.   Appellant-Bhagbat’s  hen
was stolen by deceased-Jhore Soren.  This dispute was settled.  Penalty  was
paid.  Yet, the appellants called  deceased-Jhore  Soren  to  Saheb  Hasda’s
courtyard.  Deceased-Jhore Soren went there  with  PW-7  Kanka.   They  were
tied to the trees and beaten up.  It is argued that these  facts  show  that
the appellants shared common object to  kill  deceased-Jhore  Soren  and  in
prosecution of the common object, they killed deceased-Jhore Soren.  In  our
opinion, the attendant circumstances do not  indicate  that  the  appellants
shared any common object to kill  deceased-Jhore  Soren.   It  appears  that
they were not happy with the penalty imposed by the  Salishman.   Therefore,
they called him to Saheb Hasda’s courtyard and beat  him  with  lathis.   If
they wanted to kill him, they would have used some  sharp  cutting  weapons.
In fact, the evidence on record  shows  that  some  of  the  appellants  had
tangies in their hand.  PW-1 Nilmoni stated that some of  them  had  tangies
but they did not use  them.   Really,  if  the  appellants  wanted  to  kill
deceased-Jhore Soren, the easiest way to achieve  their  object  would  have
been to use the tangies and  assault  him.   It  appears  to  us  that  what
started as an exercise to teach a lesson to deceased-Jhore Soren by  beating
him with lathis, took an ugly turn.  In a  frenzy  lathi  blows  were  dealt
with force.  It is true that the doctor noticed  fourteen  injuries  on  the
deceased.  Most of them were bruises and abrasions.  It is true  that  there
were also two rib fractures and haemotoma under the scalp.  But  the  doctor
has stated that all the injuries led to the death of  deceased-Jhore  Soren.
It is not, therefore, known as to which is the fatal injury. Moreover,  none
of the eye-witnesses have stated who caused  which  injury.   No  individual
role is ascribed to any of the appellants.  The eye-witnesses have  made  an
omnibus statement that the appellants assaulted the deceased with lathis.

8.    In this connection, we may usefully refer  to  the  judgment  of  this
Court in  Sukhdev  Singh   v.   State  of  Punjab[6].   In  that  case,  the
appellant therein was convicted under Section 302 of the IPC  and  sentenced
to life imprisonment.  The question arose as to what was the nature  of  the
offence committed  by  him.    He  had  given  one  blow  to  the  deceased.
Thereafter, the deceased had fallen  down.   That  blow,  according  to  the
prosecution, was sufficient  to  cause  death  in  the  ordinary  course  of
nature.  This Court accepted the testimony of PW-3, PW-4 and PW-5 as to  the
participation of the appellant therein  in  the  crime.   But,  it  rejected
their evidence giving specific overt act to  each  of  the  accused  because
according to the prosecution, the victim was  surrounded  by  all  the  four
accused, each one was armed with weapons  and  they  attacked  the  deceased
simultaneously.  This Court observed that it was therefore difficult to  say
that fatal injury was caused by the appellant therein.  This Court  observed
that the evidence of the witnesses on that aspect has to be considered  with
a pinch of salt.  Under the circumstances, the  sentence  of  the  appellant
under Section 302 of the IPC was  set  aside  and  he  was  sentenced  under
Section 304 Part II of the IPC.  In this  case  also  all  the  accused  are
stated to have assaulted the deceased simultaneously.   No  individual  role
is ascribed to anyone.  The doctor has not stated which  injury  was  fatal.
It is difficult therefore to say that  all  the  appellants  are  guilty  of
murder.


9.    In  Sarman  &  Ors.   v.   State  of  Madhya  Pradesh[7],  there  were
seventeen injuries on the deceased.  The appellants therein were armed  with
lathis.  They were charged for offences punishable under  Sections  147  and
302 of the IPC.  Some injuries were described  as  incised  wounds.   Injury
No.15 had resulted in a  depressed  fracture  of  parietal  bone.  Like  the
present case, the doctor in a general way, stated that the  cause  of  death
was  “multiple  injuries”.   He  specifically  stated  that   injury   No.15
individually was sufficient to cause death of  the  deceased.   It  must  be
noted that no such assertion is made  by  the  doctor  in  this  case.   The
prosecution case, in general, was that all of them were found  with  lathis.
Nobody had stated which of them had caused injury No.15 which  unfortunately
resulted in the death of the deceased.  This Court observed  that  in  these
circumstances the question that arises was  whether  all  the  accused  were
responsible for the death of the deceased. This Court noted that  if  anyone
of the appellants had exceeded the common object and acted on  his  own,  it
would be his individual act but, unfortunately, no witness had come  forward
to say which of the accused had caused which injury.  This Court noted  that
in those circumstances, it was difficult to award punishment  under  Section
302 read with Section 149 of the IPC.  This Court noticed that although  the
post-mortem report stated that all the injuries might have caused the  death
of the deceased inasmuch as the accused inflicted injuries with  lathis  and
particularly when they were simple, and on non-vital  parts,  it  cannot  be
said that their object was to kill  the  deceased.   They  may  merely  have
knowledge that the blows given were likely to cause death.  This  Court,  in
those circumstances, set aside the conviction  of  the  appellants  for  the
offences punishable under section 302 read with Section 149 of the  IPC  and
instead convicted them for offence punishable  under  Section  304  Part  II
read with Section 149 of the IPC.

10.   As earlier noted by us, in this case none of the  eye  witnesses  have
given specific role to any of the appellants.  They have  not  stated  which
appellants gave which blow and on which part of the deceased’s  body.   They
have not stated which injury was caused by which accused.   The  doctor  has
not stated which injury was fatal.  Undoubtedly, the deceased  had  suffered
two fractures and haemotoma under the scalp, but nobody has  said  that  any
particular appellant caused these injuries.  It bears  repetition  to  state
that  though  sharp  cutting  weapons  i.e.  tangies  were  available,   the
appellants  did  not  use  them.   In  the  peculiar  facts  of  this  case,
therefore, it is not possible to hold  that  the  appellants  shared  common
object to murder the deceased and in prosecution of that common object  they
caused his death.  It would not be possible to sustain their conviction  for
offence punishable under Section 302 read with Section 149 of the  IPC.   It
would be just and proper to resort to Section 304 Part II  of  the  IPC  and
treat the sentence already undergone  by  them  as  sentence  for  the  said
offence.

11.   Before parting we must note certain special  features  of  this  case,
which distinguish it from other cases.   It  is  an  unusual  case  where  a
trivial incident led to a murder.  The appellants as well  as  the  material
witnesses belong to Santhal community.  They are tribals.  They come from  a
very poor strata of the society and appear to be untouched by the effect  of
urbanization.  They live in their own world.  They are economically so  weak
that possession of a hen is very  important  to  them.   The  deceased-Jhore
Soren stole a hen, killed it and made a feast out of it.  This  angered  the
community and the village panchayat penalized deceased- Jhore Soren. He  was
ordered to give a hen to appellant Bhagbat and, in addition, he had to  give
two handies of liquor.   Though, there  can  be  no  justification  for  the
appellants’ actions, their anger and reaction to the theft of  hen  must  be
viewed  against  the  background  of  their  economic  and  social   status.
Moreover, we are informed that the appellants are  in  jail  for  almost  14
years.  Apart from the legal angle, this, in  our  view,  is  a  case  where
justice must be tempered with mercy.  In the peculiar circumstances  of  the
case, in our opinion, convicting the appellants for  culpable  homicide  not
amounting to murder and sentencing them for the period already undergone  by
them by resorting to Section 304 Part II of the IPC will meet  the  ends  of
justice.

12.   In the circumstances, the conviction of the  appellants  for  offences
punishable under Section 302 read with Section 149 of  the  IPC  is  quashed
and set aside.  Instead,  they  are  convicted  for  culpable  homicide  not
amounting to murder and the sentence already undergone by them  is  directed
to be treated as sentence imposed on them under Section 304 Part II  of  the
IPC.  The impugned order is modified to the above  extent.   The  appellants
are in jail.  They are directed to be released  forthwith  unless  they  are
otherwise required in any other case.    The appeal is disposed of.


                               .…………………………..J.
                           (Ranjana Prakash Desai)


                               .…………………………..J.
                              (Madan B. Lokur)
New Delhi;
February 5, 2014.

-----------------------
[1]    1994 Supp. (2) SCC 569
[2]    AIR 1976 SC 2499
[3]    (2006) 9 SCC 394
[4]    (2012) 2 SCC 648
[5]    AIR 1997 SC 393.
[6]    AIR 1992 SC 755
[7]    1993 Supp. (2) SCC 356

-----------------------
14

Quashing of complaint made under Food Adulteration Act - Samples taken at Jail - found Rice and Haldi took samples and send it for test - found substandard - Magistrate took cognizance - High court declined to involve - Apex court held that storing in Jail is not for sale and is only consumption and as such food adulteration Act not applies and quashed the complaint = RUPAK KUMAR …APPELLANT VERSUS STATE OF BIHAR & ANR. …RESPONDENTS =2014 (March . Part) judis.nic.in/supremecourt/filename=41285

Quashing of complaint made under Food Adulteration Act - Samples taken at Jail - found Rice and Haldi took samples and send it for test - found substandard - Magistrate took cognizance - High court declined to involve - Apex court held that storing in Jail is not for sale and is only consumption and as such food adulteration Act not applies and quashed the complaint =

The petitioner is aggrieved  by  the  order  whereby  his  prayer  for
quashing  the  order  taking  cognizance  under  Section  16(1)(a)  of   the
Prevention of Food Adulteration Act and issuing process has been declined.

 the Food Inspector visited the  jail  premises  and  collected

samples of various materials including Haldi and Rice.  Those articles  were
stored for consumption of the prisoners.   The  samples  so  collected  were
sent for examination and analysis  and,  according  to  the  report  of  the
Public Analyst, Haldi and  Rice  were  not  found  in  conformity  with  the
prescribed standard and, therefore, held to  be  adulterated.   Accordingly,
two separate prosecution reports were submitted alleging  commission  of  an
offence under Section 16 of the Prevention of Food  Adulteration  Act,  1954
(hereinafter  referred  to  as  ‘the  Act’).   The  learned  Chief  Judicial
Magistrate took cognizance of the offence under  Section  16(1)(a)  of   the
Act and  by  order dated 18th  of  March,  2006  directed  for  issuance  of

process in both the cases.  =

In the present case, according to the prosecution,  the  appellant,  a
Superintendent of Jail, had stored Rice and Haldi and,  therefore,  his  act
comes within the mischief of Section 7 and 16 of the Act.  In  view  of  the
aforesaid, what needs to be decided is as to whether the expression  ‘store’
as used in  Section  7  and  Section  16  of  the  Act  would  mean  storage
simplicitor or storage for sale.  We have  referred  to  the  provisions  of
Section 7, Section 10 and Section 16 of the  Act  and  from  their  conjoint
reading, it will appear that the Act is intended to  prohibit  and  penalise
the sale of any adulterated article of  food.   In  our  opinion,  the  term
‘store’ shall take colour from the context and the collocation in  which  it
occurs in Section 7 and 16 of the Act.  Applying  the  aforesaid  principle,
we are of the opinion, that ‘storage’ of  an  adulterated  article  of  food
other than for sale does not come within the mischief of Section 16  of  the
Act.  In view of the authoritative pronouncement of this Court in  the  case
of Municipal Corporation of Delhi v. Laxmi Narain Tandon, (1976) 1 SCC  546,
this submission does not need further elaboration.  In the said case it  has
been held as follows:


            “14. From a conjoint reading of the above referred  provisions,
            it will be clear that  the  broad  scheme  of  the  Act  is  to
            prohibit and penalise the sale, or import, manufacture, storage
            or distribution for sale of any adulterated  article  of  food.
            The terms “store” and “distribute” take their colour  from  the
            context and the collocation of words in  which  they  occur  in
            Sections  7  and  16.  “Storage”  or   “distribution”   of   an
            adulterated article of food for a purpose other than  for  sale
            does not fall within the mischief of this section…………………”




      In the case in hand, it is not the allegation that the  appellant  had
stored Haldi and Rice for sale.  Therefore, in our opinion, the  allegations
made do not constitute any  offence  and,  hence,  the  prosecution  of  the
appellant for an offence under Section 16(1)(a)  of  the  Act  shall  be  an
abuse of the process of the Court.








      In the result we allow these appeals, set aside  the  impugned  orders
and quash the appellant’s prosecution in both the cases.

2014 (March . Part) judis.nic.in/supremecourt/filename=41285
CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE
                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS. 541-542 OF 2014
        (@ SPECIAL LEAVE PETITION (CRIMINAL) NOS. 4797-4798 OF 2011)


RUPAK KUMAR                               …APPELLANT

                                   VERSUS

STATE OF BIHAR & ANR.                    …RESPONDENTS



                                  JUDGMENT


CHANDRAMAULI KR. PRASAD,J.


      The petitioner is aggrieved  by  the  order  whereby  his  prayer  for
quashing  the  order  taking  cognizance  under  Section  16(1)(a)  of   the
Prevention of Food Adulteration Act and issuing process has been declined.




      Short facts giving rise to the present  special  leave  petitions  are
that when the petitioner was posted as the Superintendent of District  Jail,
Bihar Sharif, the Food Inspector visited the  jail  premises  and  collected
samples of various materials including Haldi and Rice.  Those articles  were
stored for consumption of the prisoners.   The  samples  so  collected  were
sent for examination and analysis  and,  according  to  the  report  of  the
Public Analyst, Haldi and  Rice  were  not  found  in  conformity  with  the
prescribed standard and, therefore, held to  be  adulterated.   Accordingly,
two separate prosecution reports were submitted alleging  commission  of  an
offence under Section 16 of the Prevention of Food  Adulteration  Act,  1954
(hereinafter  referred  to  as  ‘the  Act’).   The  learned  Chief  Judicial
Magistrate took cognizance of the offence under  Section  16(1)(a)  of   the
Act and  by  order dated 18th  of  March,  2006  directed  for  issuance  of
process in both the cases.  The  petitioner  assailed  both  the  orders  in
separate revision applications filed before the  Sessions  Judge;  but  both
were  dismissed.   Thereafter,  the  petitioner   preferred   two   separate
applications, being Criminal Miscellaneous No. 15527 of  2010  and  Criminal
Miscellaneous No. 15471 of 2010 under Section 482 of the  Code  of  Criminal
Procedure before the High Court.  The High Court, by the orders impugned  in
the present  special  leave  petitions,  has  dismissed  both  the  criminal
miscellaneous applications.  It is in  these  circumstances  the  petitioner
has filed the present special leave petitions.

      Leave granted.




      Mr.  Nagendra  Rai,  senior  counsel  appearing  on  behalf  of    the
appellant  raises  a  very  short point.  He submits that the  appellant  at
the relevant time was the Superintendent of Jail and food items  which  have
been found to be adulterated were not stored for sale  but  were  meant  for
consumption of the inmates.  He submits that according  to  the  prosecution
report, these food items were  not  stored  for  sale  and,  therefore,  the
allegations made do not come within the mischief of Section 16(1)(a) of  the
Act.


      We have bestowed our consideration to the submission advanced  and  we
find substance in the same.  Section 7 of the  Act,  inter  alia,  prohibits
manufacture and sale  of  certain  articles  of  food,  the  same  reads  as
follows:



      1 “Section 7. Prohibitions  of  manufacture,  sale,  etc.  of  certain
            articles of food. – No person shall himself or by any person on
            his behalf manufacture for sale, or store, sell or distribute-

            (i)  any adulterated food;
            (ii) any misbranded food;
            (iii)any article of food for the   sale of which a  licence  is
                   prescribed, except in accordance with the  conditions  of
                   the licence;
            (iv) any article of food the sale of  which  is  for  the  time
                   being prohibited by the Food (Health)  Authority  in  the
                   interest of public health;
            (v) any article of food in contravention of any other provision
                   of this Act or of any rule made thereunder; or
            (vi) any adulterant.
            Explanation-For the purposes of this section, a person shall be
            deemed to store any adulterated food or misbranded food or  any
            article of food referred to in clause (iii) or clause  (iv)  or
            clause (v) if he stores such food for the manufacture therefrom
            of any article of food for sale.”


      From a plain reading of the aforesaid provision, it  is  evident  that
Section 7 prohibits a person to ‘manufacture for sale’ or ‘store’ or  ‘sell’
or  ‘distribute’,  inter  alia,  any  adulterated  food.   Contravention  of
Section 7 by any person is punishable under Section 16 of the Act.   Section
10 of the Act talks about  the  power  of  Food  Inspector  and  under  this
Section, he is empowered to take sample of any  article  of  food  from  any
person selling such article.  It is  apt  to  reproduce  Section  10(1)  and
10(2), which read as follows:
            “Section 10. Powers of food inspectors. - (1) A Food  Inspector
            shall have power-
                 (a) to take samples of any article of food from-
                       (i) any person selling such article;
                       (ii) any person who is in the  course  of  conveying,
                       delivering or preparing to deliver such article to  a
                       purchaser or consignee;
                       (iii) a consignee after delivery of any such  article
                       to him; and
                 (b) to send such sample for analysis to the public  analyst
                 for the local area within which such sample has been taken;
                 (c) with  the  previous  approval  of  the  Local  (Health)
                 Authority having jurisdiction in the local area  concerned,
                 or  with  the  previous  approval  of  the  Food   (Health)
                 Authority, to prohibit the sale of any article of  food  in
                 the interest of public health.
            Explanation-For the purposes of sub-clause (iii) of clause (a),
            “consignee” does not include a person who purchases or receives
            any article of food for his own consumption.
            (2) Any food inspector may enter and inspect  any  place  where
            any article of food is manufactured, or  stored  for  sale,  or
            stored for the manufacture of any other  article  of  food  for
            sale, or exposed or exhibited for sale or where any  adulterant
            is manufactured or kept, and take samples of  such  article  of
            food or adulterant for analysis:
            Provided that no sample of any article of food,  being  primary
            food, shall be taken  under  this  sub-section  if  it  is  not
            intended for sale as such food.”


      A conjoint reading of the aforesaid provisions makes it clear that the
Food Inspector has the power to take sample of any article of food from  any
person selling such article under sub-section (1)  whereas  sub-section  (2)
confers on him the power to enter and inspect any place  where  any  article
of food is manufactured, stored or exposed for  sale  and  take  samples  of
such articles of food for analysis.   Section  16  provides  for  penalties.
Section 16(1)(a)(i) and 16(1)(a)(ii), which are  relevant  for  the  purpose
read as follows:
            “Section 16. Penalties. -(1) Subject to the provisions of  sub-
            section (IA) if any person-
            (a) whether by himself or by any other person  on  his  behalf,
            imports into India or manufactures for sale or stores, sells or
            distributes any article of food—
            (i) which is adulterated within the meaning of  sub-clause  (m)
                   of clause (ia) of section  2  or  misbranded  within  the
                   meaning of clause (ix) of that section  or  the  sale  of
                   which is prohibited under any provision of  this  Act  or
                   any rule made thereunder or  by  an  order  of  the  Food
                   (Health) Authority;
            (ii) other than an article of food referred  to  in  sub-clause
                   (i), in contravention of any of the  provisions  of  this
                   Act or of any rule made thereunder ; or
                 xxx              xxx              xxx”


      According to this section any person, who by himself or by  any  other
person on  his  behalf,  manufactures  for  sale  or  stores  or  sells  any
adulterated article is liable to be punished.


      In the present case, according to the prosecution,  the  appellant,  a
Superintendent of Jail, had stored Rice and Haldi and,  therefore,  his  act
comes within the mischief of Section 7 and 16 of the Act.  In  view  of  the
aforesaid, what needs to be decided is as to whether the expression  ‘store’
as used in  Section  7  and  Section  16  of  the  Act  would  mean  storage
simplicitor or storage for sale.  We have  referred  to  the  provisions  of
Section 7, Section 10 and Section 16 of the  Act  and  from  their  conjoint
reading, it will appear that the Act is intended to  prohibit  and  penalise
the sale of any adulterated article of  food.   In  our  opinion,  the  term
‘store’ shall take colour from the context and the collocation in  which  it
occurs in Section 7 and 16 of the Act.  Applying  the  aforesaid  principle,
we are of the opinion, that ‘storage’ of  an  adulterated  article  of  food
other than for sale does not come within the mischief of Section 16  of  the
Act.  In view of the authoritative pronouncement of this Court in  the  case
of Municipal Corporation of Delhi v. Laxmi Narain Tandon, (1976) 1 SCC  546,
this submission does not need further elaboration.  In the said case it  has
been held as follows:


            “14. From a conjoint reading of the above referred  provisions,
            it will be clear that  the  broad  scheme  of  the  Act  is  to
            prohibit and penalise the sale, or import, manufacture, storage
            or distribution for sale of any adulterated  article  of  food.
            The terms “store” and “distribute” take their colour  from  the
            context and the collocation of words in  which  they  occur  in
            Sections  7  and  16.  “Storage”  or   “distribution”   of   an
            adulterated article of food for a purpose other than  for  sale
            does not fall within the mischief of this section…………………”




      In the case in hand, it is not the allegation that the  appellant  had
stored Haldi and Rice for sale.  Therefore, in our opinion, the  allegations
made do not constitute any  offence  and,  hence,  the  prosecution  of  the
appellant for an offence under Section 16(1)(a)  of  the  Act  shall  be  an
abuse of the process of the Court.








      In the result we allow these appeals, set aside  the  impugned  orders
and quash the appellant’s prosecution in both the cases.




                                                   ………………………………………………………………J
                                                   (CHANDRAMAULI KR. PRASAD)




                                                   ………………………………………………………………J
                                        (PINAKI CHANDRA GHOSE)



NEW DELHI,
MARCH 04, 2014.





      -----------------------
7

Service matter - Promotion - Merger bars promotion permanently - Graduate Engineer appointed as junior engineer on 23.09.1986 in the Rural Electricity Cooperative Society, Rewa - Merged in Madhya Pradesh State Electricity Board (hereinafter referred to as ‘MPSEB’) - his promotion for Asst. Engineer was denied due to non- existence of Society by merging - High court dismissed the writ and D.B. held that there is no permanent promotion - Apex court held that due merge the rules and regulations of Madhya Pradesh State Electricity Board (hereinafter referred to as ‘MPSEB’) applies - at the time of absorption their category was fixed as junior to junior engineers from the that stage , they are entitled for promotion as per the rules and regulations , otherwise it is unconstitutional Apex court allowed the appeal = Panchraj Tiwari … Appellant (s) Versus M. P. State Electricity Board and others … Respondent (s) = 2014 (March . Part) judis.nic.in/supremecourt/filename=41284

Service matter - Promotion - Merger bars promotion permanently - Graduate Engineer appointed as junior engineer on  23.09.1986 in the Rural Electricity  Cooperative  Society,  Rewa -  Merged in Madhya  Pradesh  State Electricity Board (hereinafter referred to as ‘MPSEB’) - his promotion for Asst. Engineer was denied due to non- existence of Society by merging - High court dismissed the writ and D.B. held that there is no permanent promotion - Apex court held that due merge the rules and regulations of Madhya  Pradesh  State Electricity Board (hereinafter referred to as ‘MPSEB’) applies - at the time of absorption their category was fixed as junior to junior engineers from the that stage , they are entitled for promotion as per the rules and regulations , otherwise it is unconstitutional Apex court allowed the appeal =

Whether on integration/merger/amalgamation, is  it  permissible  to  have
   complete denial of promotion forever in the integrated  service,  is  the
   short question arising for consideration in this case. 

Appellant a graduate started his career as junior engineer on  23.09.1986
   in the Rural Electricity  Cooperative  Society,  Rewa.  During  1995,  it
   appears a policy decision was taken by the State Government  to  dissolve
   all  such  societies  and  merge  the  same  with  Madhya  Pradesh  State
   Electricity Board (hereinafter referred to as ‘MPSEB’). Accordingly,  the
   Managing Committee of the Rural Electricity Cooperative Society, Rewa was
   superseded in May, 1995 and a Superintending Engineer of  the  MPSEB  was
   appointed as Officer            In-charge. However, it took a  few  years
   to complete the formalities of the merger. Finally the Rural  Electricity
   Cooperative Society, Rewa was completely merged  with  the  MPSEB  w.e.f.
   15.03.2002.=

Instant is a case where there is complete denial  of  promotion  forever
   which cannot be comprehended under the constitutional scheme of  Articles
   14 and 16 of the Constitution of India. In this context, we  shall  refer
   to a beautiful discussion on this aspect in S. S. Bola  case  (supra)  at
   paragraph 153. The relevant portion reads as follows:


           “153.        xxx        xxx                xxx               xxx






       AB. A distinction between right to be considered for promotion and an
      interest to be considered for promotion has  always  been  maintained.
      Seniority is a facet of interest. The rules prescribe  the  method  of
      recruitment/selection. Seniority is governed by the rules existing  as
      on the date of consideration for promotion. Seniority is  required  to
      be worked out according to the existing rules. No  one  has  a  vested
      right to promotion or seniority. But an officer  has  an  interest  to
      seniority acquired by working out the rules. The seniority  should  be
      taken away only by operation of valid law. Right to be considered  for
      promotion is a rule prescribed by conditions of service. A rule  which
      affects chances of promotion of a  person  relates  to  conditions  of
      service. The rule/provision in an Act merely affecting the chances  of
      promotion would not be regarded as varying the conditions of  service.
      The chances of promotion are not conditions of service. A  rule  which
      merely affects the chances of promotion does not amount to  change  in
      the conditions of service. However, once a declaration of law, on  the
      basis of existing rules, is made  by  a  constitutional  court  and  a
      mandamus is issued or direction given for its enforcement by preparing
      the seniority list, operation  of  the  declaration  of  law  and  the
      mandamus and directions issued by the  Court  is  the  result  of  the
      declaration of law but not the operation of the rules per se.”
                                                         (Emphasis supplied)



19. In the above circumstances, we set aside the  judgment  in  appeal.  The
   absorbed employees of the Rural Electricity Cooperative Societies, having
   due regard to their date of appointment/promotion in each category in the
   respective societies, 
shall be  placed  with  effect  from  the  date  of
   absorption, viz., 15.03.2002 as juniors to the  junior-most  employee  of
   the Electricity Board in the respective category. 
Thereafter, they  shall
   be considered for further promotions as per the rules/regulations of  the
   MPSEB. 
All other principles/conditions  of  absorption  shall  remain  as
   such. 
However,  it  is  made  clear  that  on  such  promotions,  in  the
   exigencies of service, the employee concerned would also be liable to  be
   transferred out of the circle, if so required.



20. The appellant accordingly shall be entitled to retrospective  promotions
   at par with and with effect from  the  dates  on  which  the  junior-most
   graduate engineer in  the  parent  service  on  the  date  of  absorption
   obtained such promotions. However, we make it clear  that  benefits  till
   date need to be worked out only notionally.

21. The appeal is allowed as above. There is no order as to costs.

2014 (March . Part) judis.nic.in/supremecourt/filename=41284
H.L. GOKHALE, KURIAN JOSEPH
                        IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION


                        CIVIL APPEAL NO. 4371 OF 2008


Panchraj Tiwari                                    … Appellant (s)

                                   Versus

M. P. State Electricity Board  and  others               … Respondent (s)



                               J U D G M E N T

KURIAN, J.:





1. Whether on integration/merger/amalgamation, is  it  permissible  to  have
   complete denial of promotion forever in the integrated  service,  is  the
   short question arising for consideration in this case.

2. Appellant a graduate started his career as junior engineer on  23.09.1986
   in the Rural Electricity  Cooperative  Society,  Rewa.  During  1995,  it
   appears a policy decision was taken by the State Government  to  dissolve
   all  such  societies  and  merge  the  same  with  Madhya  Pradesh  State
   Electricity Board (hereinafter referred to as ‘MPSEB’). Accordingly,  the
   Managing Committee of the Rural Electricity Cooperative Society, Rewa was
   superseded in May, 1995 and a Superintending Engineer of  the  MPSEB  was
   appointed as Officer            In-charge. However, it took a  few  years
   to complete the formalities of the merger. Finally the Rural  Electricity
   Cooperative Society, Rewa was completely merged  with  the  MPSEB  w.e.f.
   15.03.2002.

3. The principles of merger were clarified  by  the  MPSEB  after  prolonged
   correspondence as per Annexure P-12 dated 15.06.2004. For the purpose  of
   ready reference, we shall extract the contents:

           “Please refer to this office order cited under reference. It  is
      requested to issue necessary orders for absorption of employees of REC
      societies falling under your area of jurisdiction on the same terms  &
      conditions of the societies. The terms & conditions of  the  societies
      may be obtained from DE (STC), Jabalpur.

            Further other terms &  conditions  of  which  employees  can  be
      absorbed:-

      1.    The regular employees of the above societies shall be taken over
           on the same terms & conditions as existing in the Society except
           that no deputation allowance shall be paid.

      2.    Their pay scale will be the same which they were getting  before
           the absorption.

      3.    The above employees may not be transferred  out  of  the  circle
           concerned, so that no anomaly arises.

      4.    Their age of superannuation will be the same  as  applicable  in
           the societies.

      5.    Pension/gratuity will be payable to the  employees  absorbed  in
           the Board as per the rules/regulation of the concerned society.

      6.    Their designation will be maintained as it was in the society.”

                                                         (Emphasis supplied)

4. The principles of absorption as extracted above would clearly  show  that
   the employees of the society have been taken over  and  absorbed  in  the
   MPSEB. However, their pay-scale on the date of absorption was  protected,
   their designation was maintained as it was in the society at the time  of
   absorption and the age of superannuation, pension and  gratuity  of  such
   employees were  to  be  governed  by  the  rules/bylaws  of  the  society
   concerned.

5. Though it may appear that there are some conditions  which  are  normally
   not found in the principles of integration, the  fact  remains  that  the
   employees of the erstwhile society which merged with the MPSEB, have been
   absorbed in the service of MPSEB.

6. Integration/merger of services means creation of a homogenous service  by
   the merger of service personnel belonging to different  services.  Though
   it is difficult to have a perfect coalescence of  the  services  on  such
   merger, the principle of equivalence is to be  followed  while  absorbing
   the employees, to the extent possible.

7. Though integration of services thus postulates equation of posts,  it  is
   not invariably necessary to prepare the seniority list on  the  basis  of
   the pay drawn by the incumbent in the equated category. It is always open
   to the authority concerned to adopt a just and the equitable principle on
   fixation of seniority.

8. Once a service is merged with another service, the  merged  service  gets
   its birth in the integrated service  and  loses  its  original  identity.
   There cannot be a situation,  where  even  after  merger,  absorption  or
   integration, such services which were merged or  absorbed,  still  retain
   their original status. If so, it  is  not  an  absorption  or  merger  or
   integration, it will only be a working arrangement without any functional
   integration.

9. In the instant case, the undisputed factual and legal  position  is  that
   there is absorption of the employees of the Rural Electricity Cooperative
   Society, Rewa with the MPSEB. The Society has been deregistered, there is
   only one service thereafter and thus there is functional integration.  On
   the basis of  the  protection  of  the  designation  and  pay-scale,  the
   employees have to be posted in the equivalent category. Since it  is  not
   specifically provided as  to  the  position  of  such  employees  in  the
   integrated service,  it  is  a  settled  equitable  principle  that  such
   employees are placed as junior to the junior-most officer of the category
   concerned in the MPSEB on the date of absorption, viz., 15.03.2002.

10. It is provided in  the  conditions  of  service  of  the  MPSEB  as  per
   Circular  dated  15.11.1990  that  a  graduate  Junior  Engineer   having
   satisfactory service of four years of regular service can  be  considered
   for promotion  to  the  post  of  Assistant  Engineer  after  appropriate
   training. The appellant started his career as a graduate engineer in  the
   Rural Electricity Cooperative Society, Rewa  in  1986.  He  also  claimed
   promotion on the basis of such circular. The Board of  Directors  of  the
   appellant’s society passed a Resolution on 27.12.1994 for  his  promotion
   as Assistant Engineer. By that time the steps for dissolution of society,
   it appears had already started. The Board of Directors was  dissolved  in
   May, 1995 and a Superintending Engineer of the  MPSEB  was  appointed  as
   Officer In-charge of the society. The said officer forwarded the proposal
   of promotion of the appellant as an Assistant Engineer to the MPSEB.

11. It appears, the Registrar of the Cooperative Societies as well as  MPSEB
   have taken the stand that the appellant had not been  duly  selected  for
   promotion as Assistant Engineer in terms of Rule 18 of the  Society.  The
   Rule reads as follows:

      “18. SELECTION AND APPOINTMENT

      The selection of suitable candidate  for  filling-up  a  post  in  the
      society as well as for making  selection  for  promotion  of  eligible
      candidates shall be made by a selection committee to be constituted by
      the Board, consisting of the Chairman, a member of  the  Board  to  be
      elected by the  Board,  divisional  Deputy  Registrar  of  Cooperative
      Society, Divisional Engineer, M.P. Electricity Board and the  Managing
      Director of the Society.




      Dearness allowances to employees borne on regular establishment  shall
      be admissible as applicable to the employees of M.P.E.B. from time  to
      time with previous approved of  the  Registrar  Cooperative  societies
      M.P.




      Dearness allowances to employees  borne  on  regular  estt.  shall  be
      admissible as sanctioned by the M.P.E.B. to the similar categories  of
      employees.”

                                                         (Emphasis supplied)




12. It is the case of the appellant that since the Board  of  Governors  had
   already been dissolved and since  it  had  been  decided  to  absorb  the
   employees of the society in the Board, there was no  point  in  following
   the process of selection in terms of  the  regulations  of  the  society.
   Thus, the rejection was challenged before the High Court.

13. Learned Single Judge dismissed the writ  petition  on  the  ground  that
   writ against a cooperative society  was  not  maintainable.  However,  in
   appeal, it was admitted by the Board that the society had already  merged
   with the Electricity Board and, hence, case was heard  on  merits  before
   the Division Bench. It is the stand of the High Court in appeal that  the
   principles of integration, as extracted above, cast no obligation on  the
   Electricity Board to give promotion to the appellant. The obligation  was
   only to absorb the appellant by protecting the designation and  pay-scale
   and continue as such. In other words, since the appellant was absorbed as
   a Junior Engineer, he should continue forever as Junior Engineer till his
   retirement.  We are afraid that the stand cannot be justified.

14. As held by this Court in R.S. Makashi and others  v.  I.  M.  Menon  and
   others[1], the courts will not interfere with the decision and principles
   of integration unless it is shown that they are  arbitrary,  unreasonable
   or unfair. No doubt, there is no vested right for an employee to  have  a
   particular position in the integrated or  merged  service.  On  equitable
   considerations, it is always open to the  authorities  concerned  to  lay
   down the principles with regard to the fixation of seniority as  held  by
   this Court in S. S. Bola and others v. B.D.  Sardana  and  others[2]  and
   Prafulla Kumar Das and others v. State of Orissa and others[3].  However,
   in the instant case, equivalence has been decided since  designation  and
   pay-scale was protected. What remains is only the seniority.

15. It is open to the authority concerned to lay down  equitable  principles
   with regard to fixation of seniority in the merged cadre. Once a  service
   gets merged with another service, the employee concerned has a  right  to
   get positioned appropriately in the merged service.  That  is  the  plain
   meaning of ‘absorption’. The MPSEB, having  absorbed  the  appellant  and
   other employees, cannot maintain a stand that even after absorption  they
   will retain  a  distinct  identity  in  the  equated  cadre  without  any
   promotion as enjoyed by their compeers in the parent service. That  is  a
   plain infraction of the equity clause guaranteed under Articles 14 and 16
   of the Constitution of India.



16. Chances of promotion are not conditions  of  service,  but  negation  of
   even the chance of  promotion  certainly  amounts  to  variation  in  the
   conditions of service attracting infraction of Articles 14 and 16 of  the
   Constitution of India. No employee has a right to particular position  in
   the seniority list but all employees have a right to seniority since  the
   same forms the basis of promotion.

17. An employee has always an interest  to  seniority  and  a  right  to  be
   considered for promotion. If  after  integration,  only  the  chances  of
   promotion are affected, it would have been only a case of heartburn of an
   individual or a few individuals which is only to be ignored, as  held  by
   this Court in Tamil Nadu Education  Department  Ministerial  and  General
   Subordinate Services Association and others v. State of  Tamil  Nadu  and
   others[4].

18. Instant is a case where there is complete denial  of  promotion  forever
   which cannot be comprehended under the constitutional scheme of  Articles
   14 and 16 of the Constitution of India. In this context, we  shall  refer
   to a beautiful discussion on this aspect in S. S. Bola  case  (supra)  at
   paragraph 153. The relevant portion reads as follows:


           “153.        xxx        xxx                xxx               xxx






       AB. A distinction between right to be considered for promotion and an
      interest to be considered for promotion has  always  been  maintained.
      Seniority is a facet of interest. The rules prescribe  the  method  of
      recruitment/selection. Seniority is governed by the rules existing  as
      on the date of consideration for promotion. Seniority is  required  to
      be worked out according to the existing rules. No  one  has  a  vested
      right to promotion or seniority. But an officer  has  an  interest  to
      seniority acquired by working out the rules. The seniority  should  be
      taken away only by operation of valid law. Right to be considered  for
      promotion is a rule prescribed by conditions of service. A rule  which
      affects chances of promotion of a  person  relates  to  conditions  of
      service. The rule/provision in an Act merely affecting the chances  of
      promotion would not be regarded as varying the conditions of  service.
      The chances of promotion are not conditions of service. A  rule  which
      merely affects the chances of promotion does not amount to  change  in
      the conditions of service. However, once a declaration of law, on  the
      basis of existing rules, is made  by  a  constitutional  court  and  a
      mandamus is issued or direction given for its enforcement by preparing
      the seniority list, operation  of  the  declaration  of  law  and  the
      mandamus and directions issued by the  Court  is  the  result  of  the
      declaration of law but not the operation of the rules per se.”
                                                         (Emphasis supplied)



19. In the above circumstances, we set aside the  judgment  in  appeal.  The
   absorbed employees of the Rural Electricity Cooperative Societies, having
   due regard to their date of appointment/promotion in each category in the
   respective societies, shall be  placed  with  effect  from  the  date  of
   absorption, viz., 15.03.2002 as juniors to the  junior-most  employee  of
   the Electricity Board in the respective category. Thereafter, they  shall
   be considered for further promotions as per the rules/regulations of  the
   MPSEB. All other principles/conditions  of  absorption  shall  remain  as
   such. However,  it  is  made  clear  that  on  such  promotions,  in  the
   exigencies of service, the employee concerned would also be liable to  be
   transferred out of the circle, if so required.



20. The appellant accordingly shall be entitled to retrospective  promotions
   at par with and with effect from  the  dates  on  which  the  junior-most
   graduate engineer in  the  parent  service  on  the  date  of  absorption
   obtained such promotions. However, we make it clear  that  benefits  till
   date need to be worked out only notionally.

21. The appeal is allowed as above. There is no order as to costs.


                                                              ..…….…..…………J.
                                                       (H. L. GOKHALE)



                                                                ..……………………J.
                                                       (KURIAN JOSEPH)
New Delhi;
March 4, 2014.




                           -----------------------
[1]    (1982) 1 SCC 379
[2]     (1997) 8 SCC 522
[3]    (2003) 11 SCC 614
[4]    (1980) 3 SCC 97

-----------------------
                                                                  REPORTABLE


-----------------------
10