Sec.376 r/w 511 of I.P.C. - Vs- Sec.354 of I.P.C. and sec.4 of Probation of offenders Act - Outraging modesty of a minor girl - no benefit under Probation of Offenders Act available to the accused - on shouting accused fled away before committing any attempt to rape - Trial court found an offence under Sec.354 I.P.C. - Delay in lodging F.I.R. - no eye witness - Prosecutrix deposed that the accused did bad things - alleged eye witness stated that on his shout accused fled away - No Doctor Report - Trial court acquitted him under Sec.4 of Probation of Offenders act - High court rejected the appeal - Apex court held that accused is not a minor, rather he has committed an offence against a minor girl who is helpless. - Further, it is clear from the evidence on record that he ran away only when the prosecutrix screamed and PW3 came to the place of incident, which goes on to show that the accused could have had worse intentions. The offence is heinous in nature and there is no reason for granting benefit of probation in this case. The Trial Court has not given any special consideration to the character of the accused apart from the fact that this was the first conviction of the accused. We find this is far from sufficient to grant probation in an offence like outraging the modesty of a woman. - 2015 S.C.MSKLAWREPORTS

No  one
      was there in the house and Sri Chand took his daughter the prosecutrix
      inside the room, closed the door from inside, forcibly  undressed  her
      and made her to lie on the ground and started raping her forcibly. The
      prosecutrix cried upon which Sri Chand put some cloth  in  her  mouth.
      Hearing her cries, Bihari Saini, who was passing nearby, reached there
      and he witnessed the  whole  incident.  Saroj  wife  of  Prahlad  also
      reached at the site. Out of fear, accused Sri Chand fled away from the
      place of incident.

the  Trial  Court  acquitted  the
      accused respondent by granting him probation

The State  of  Rajasthan
      preferred an appeal before the High  Court,  for  grant  of  leave  to
      appeal against the order of acquittal, which was  rejected.
The Court of Additional  District  and  Sessions  Judge,  Fast  Track,
      Laxmangarh, noticed in his judgment that though  there  is  a  serious
      charge  of  attempt  to  rape  against  the  accused  but  the   First
      Information Report has been lodged with a delay of about 28 hours  for
      which neither any explanation has been given in  the  Report  nor  the
      complainant has mentioned anything in his  statement  about  the  said
      delay, which makes the prosecution case doubtful.
The learned Sessions
      judge further found that the statement of PW3 Biharilal  Saini  cannot
      be doubted as it corroborates the statement  of  PW5  the  prosecutrix
      herself.
However, PW3 had stated that when he reached the house of Sri
      Chand he saw Sri Chand fleeing away while prosecutrix was  inside  and
      her clothes were disturbed.
The learned Sessions Judge noted that  non
      production  of  Saroj,  an  alleged  eye  witness,  is  an   important
      circumstance;  however,  the  testimony  of  prosecutrix   cannot   be
      discarded on  this  ground.
The  prosecutrix  in  her  statement  has
      corroborated the story in FIR, as recorded  above.  However  she  only
      says that the accused did bad work with her.
 On  repeated  questioning
      about what bad work was done, she remained quiet with head bowed down.
     
The learned Sessions judge found that there is consistent statement of
      the prosecutrix and PW3 that accused Sri Chand undressed her  as  well
      as himself.

Therefore, the learned Sessions Judge  found  the  offence
      under Section 354 of IPC as proved. Thereupon,  the  learned  Sessions
      Judge went on to grant the accused benefit of Probation  of  Offenders
      Act in view of his clear record and no prior conviction.

 FIR was recorded under Section 376 read with Section
      511 of IPC i.e. attempt to rape and not rape per se. There is  no  eye
      witness on record apart from the prosecutrix herself as PW3  Biharilal
      only saw the accused fleeing away and Saroj, the alleged eye  witness,
      was never produced before the Court nor  her  statement  was  recorded
      under  Section  161  Cr.P.C.  Also,  no  medical  examination  of  the
      prosecutrix has been conducted. 
The prosecutrix has in  her  statement
      stated that the accused Sri Chand took her inside  her  house,  closed
      it, undressed her and undressed himself. Thereafter,  she  states,  he
      got on to her and did bad work. On being  repeatedly  asked  what  bad
      work was done, she kept quiet and bowed  her  head,  in  embarrassment
      understandably.  
One  must  not  lose  sight  of  the  fact  that  the
      prosecutrix was a minor child at the time of the incident. The  father
      (PW6) of the prosecutrix has categorically stated that bad work  meant
      rape. However, we find difficulty in veracity of his  statement  since
      he was not an eye witness and was not even told about the incident  by
      the prosecutrix. 
He was told details  of  the  incident  by  Biharilal
      (PW3) who is not an eye witness to the  incident.  However,  Biharilal
      was  the  first  person  to  have  learnt  of  the  offence  from  the
      prosecutrix and he has completely corroborated her  version. 
By  this
      consistent evidence what is proved  beyond  reasonable  doubt  is  the
      offence under Section 354 of IPC.

  Aman Kumar and Anr. Vs. State of Haryana,
      (2004) 4 SCC  379,  and  Tarkeshwar  Sahu  Vs.  State  of  Bihar  (now
      Jharkhand), (2006) 8 SCC 560.
In both the cited judgments it  is  held
      that for the act to constitute offence of  rape  penetration  is  pre-
      requisite (this is the pre 2013 Criminal Amendment  position  of  law)
      and therefore for the offence of attempt to rape the accused must have
      so advanced in his actions that it would have resulted into  rape  had
     some extraneous factors not intervened

 In the present case the accused  fled  away
      on when the PW3 came to the place of incident due to shouting  of  the
      prosecutrix. This shows he wasn’t determined to have sexual connection
      with the prosecutrix despite all resistance and odds. Also it would be
      relevant to note that there are inconsistencies in  the  statement  of
      the prosecutrix wherein she states that she had suffered  injuries  on
      her breast but same is not corroborated by the medical evidence. Also,
      Saroj, who is an important eye witness, is not produced as a  witness.
      In this view of the matter, we find it difficult to hold that  offence
      of attempt to rape is proved to a sufficient measure.

 In State of Himachal Pradesh Vs. Dharam Pal, (2004) 9  SCC  681, 
this
      Court was dealing with probation of offenders in case  of  offence  of
      attempt to commit rape.

The finding of this Court in the said judgment
      is relevant for all the  offences  against  the  women,  which  is  as
      follows:

 “ According to us, the offence of an attempt to commit rape  is  a
       serious offence, as ultimately if translated into the act  leads  to
       an  assault  on  the  most  valuable  possession  of  a  woman  i.e.
       character, reputation, dignity and  honour.  In  a  traditional  and
       conservative  country  like  India,  any  attempt  to  misbehave  or
       sexually assault a woman is one of the most depraved acts.
 The  Act
       (Probation of Offenders Act, 1958) is intended to reform the persons
       who can be reformed and would cease to be a nuisance in the society.
       But the discretion to exercise the jurisdiction under Section 4  (of
       the Probation of Offenders Act, 1958) is  hedged  with  a  condition
       about the nature of the offence and the character of the offender.”

In above case although this Court did not  interfere  with  the  benefit  of
probation granted by the High Court  due  to  peculiar  facts  of  the  case
however it did not approve the reasoning given by the High Court.

In the present case the  accused  is  not  a  minor,  rather  he  has
      committed an offence against a minor girl who is helpless. Further, it
      is clear from the evidence on record that he ran away  only  when  the
      prosecutrix screamed and PW3 came to the place of incident, which goes
      on to show that the accused  could  have  had  worse  intentions.  The
      offence is heinous in nature and  there  is  no  reason  for  granting
      benefit of probation in this case. The Trial Court has not  given  any
      special consideration to the character of the accused apart  from  the
      fact that this was the first conviction of the accused. We  find  this
      is far from sufficient to grant probation in an offence like outraging
      the modesty of a woman.

   In view of the discussion in the foregoing paragraphs, we  allow  this
      appeal to the limited  extent  that  the  accused  respondent  is  not
      granted the benefit of Probation  of  Offenders  Act,  1958,  but  his
      conviction is maintained under Section 354 I.P.C.  only.
The  accused
      respondent is hereby sentenced to rigorous imprisonment for two years.
      The respondent is directed to surrender within a period of  two  weeks
      to serve out the sentence, failing which the Additional  District  and
      Sessions Judge, Laxmangarh, shall take necessary  steps  to  take  him
      into custody to serve out the sentence.
Let a copy of this judgment be
      sent to the Additional District and Sessions  Judge,  Laxmangarh,  for
      information and necessary action. - 2015 S.C. MSKLAWREPORTS

promotion of Constables and Head Constables to the rank of Sub-Inspectors in the State of Uttar Pradesh.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.6549 OF 2014
HC Pradeep Kumar Rai and Ors.                     ...Appellant(s)
                                  :Versus:
Dinesh Kumar Pandey and Ors.                      ...Respondent(s)
                                    WITH
CIVIL APPEAL NOS.6550, 6551, 6552,  6553,  6554,  6555,  6556-6561  OF  2014

                                     AND

           CIVIL APPEAL NOS.4327, 4328, 4329, 4330, 4331 and 4332
                                          OF 2015
[@ SLP(C) Nos.29275, 29267, 34936, 35196, 34882 of 2014 and SLP(C) No.2623
of 2015]
                                     AND

                   WRIT PETITION (CIVIL) NO.1057 OF  2014



                               J U D G M E N T
Pinaki Chandra Ghose, J:
Leave granted in  the  special  leave  petitions.  I.A.  No.52  of  2015  is
allowed.

This batch of appeals raises a common controversy relating to the  promotion
of Constables and Head Constables to  the  rank  of  Sub-Inspectors  in  the
State of Uttar Pradesh. The process of promotion started way  back  in  1999
and has since embroiled in litigation. Basically, the  candidates  appearing
for promotion from the rank of Constable or Head Constable to  the  rank  of
Sub-Inspector  have  challenged  the  selection  and  promotion  process  at
various stages of the promotion process.

The facts necessary for disposal of this case are  that  the  Government  of
Uttar Pradesh took a decision on 23.01.1999 for recruitment of  departmental
candidates to the posts of Sub-inspectors  in  the  State,  both  by  direct
recruitment  and  by  promotion  of  Constables  and  head  Constables.   In
continuation of the order dated 23.01.1999,  another  Government  Order  was
issued on 3.02.1999, according to which all the vacancies of  Sub-inspectors
till 31.12.1999 were to be filled  up.  On  27.02.1999,  the  Government  of
Uttar Pradesh issued another Order which superseded the earlier Order  dated
23.01.1999.  The  27.02.1999  order  provided  a  complete  pattern  of  the
examination and process of selection and promotion. As per the  new  pattern
the  promotion  process  was  to  be  conducted  in  three  steps:  (1)  The
preliminary written examination and infantry test/physical  test;  (2)  Main
written  Examination;  and  (3)  Interview.  Candidates  who  qualified  the
preliminary examination and IT/PT  were  eligible  to  appear  in  the  main
written examination.


As per the existing rules in 1999, 50% of total vacancies were to be  filled
up by promotion of persons serving as Constables  and  Head  Constables  and
the remaining 50% vacancies were to be filled up by direct  recruitment.  It
appears that at the time  the  selection  process  began,  there  were  2956
vacancies of the rank of Sub-inspectors  in  the  State.  So  initially  the
number of vacancies for promotees quota were 1478. However, It appears  that
vide order dated 10.01.2000, another 86 posts were added  to  the  promotees
quota to be filled up by the departmental examination in  pursuance  of  the
direction made by State Backward Classes Commission, to maintain  the  ratio
of promotees and direct recruits at the rate of 50%.  Thus,  the  number  of
vacancies for promotees quota became 1564. It is to be noted  that  pursuant
to the Division Bench judgment of the High Court  of  Allahabad  in  Special
Appeal No.1372 of 1999:  State  of  Uttar  Pradesh  Vs.  Ranbir  Singh,  the
Government of  Uttar  Pradesh  created  another  class  of  promotees  which
consisted of 385 Head Constables who were to be promoted directly by  virtue
of the length of their service without  undergoing  the  selection  process.
The creation of this class is not contended before us and  that  controversy
is settled by prior litigation.  Thus,  eventually  it  appears  that  total
vacancies for people who were to be promoted  after  the  selection  process
was 1176.

The preliminary test was held on 05.09.1999 and the result was announced  on
05.11.1999 and those who qualified the preliminary test  were  permitted  to
appear in IT/PT which was held in December 1999. The result  of  IT/PT  test
was declared on 11.02.2000, which was challenged before the  High  Court  of
Allahabad in Writ Petition No.9694/2000: Triloki Nath Pandey and others  Vs.
State of  Uttar  Pradesh,  and  the  entire  process  was  stayed  till  the
conclusion of litigation. Thus, at the end of that round of  litigation  the
State of  Uttar  Pradesh  was  directed  to  go  ahead  with  the  selection
procedure. Government Notification for  the  main  written  examination  was
issued on 9.12.2004 and  the  main  written  examination  was  conducted  on
25.12.2005. Result of the main written test was declared on  24.01.2006  and
pursuant thereto, 9671 candidates were called for interview. The  interviews
were held at four centres between 15.05.2006 to 20.07.2006. The  results  of
the interviews were made available on 11.11.2006.

It was after the declaration of the result of  interview  that  the  present
round of litigation began, whereby the  unsuccessful  candidates  challenged
the interview process on several grounds. Initially the  writ  petition  was
filed before the Allahabad High Court,  Lucknow  Bench,  which  allowed  the
petition and directed the State to conduct  fresh  interview  for  the  1176
vacancies  of  the  rank  of  Sub-Inspectors.  The  Division  Bench  of  the
Allahabad High Court allowed the  appeal  filed  by  the  State  Government,
thus, reversing the judgment of  the  learned  Single  Judge.  The  Division
Bench directed the State to appoint the candidates who were  selected  after
the interview already held, for the rank of Sub-Inspectors.

The learned Single Judge decision weighed on the following points:
There was substantial departure from the Police Regulations as amended  upto
1977 in the entire process of selection and promotion.
The number of candidates called for  interview  was  much  higher  than  the
required four times the number of vacancies available.  The  four  time  the
vacancies  rule  is  found  in  paragraph  445  of  Uttar   Pradesh   Police
Regulations, 1976.
The sealed cover procedure was not followed for the candidates against  whom
any disciplinary or criminal proceedings are  pending.  The  names  of  such
persons were also displayed on the tentative list of selected candidates.
The members of the Interview committee who conducted the interviews did  not
give separate marks individually but a single collective  marking  for  each
candidate was done by the committee.
The names of the persons who are already dead or are under training in  some
other Wing of  Police  Department  like  PAC,  were  also  included  in  the
tentative list of selected candidates after the interview.

The Division Bench found that the learned Single Judge had made findings  on
three basic points. The Division Bench upturned  those  three  findings  and
reversed the judgment on following grounds:
The Division Bench found that the rule of number of candidates being  called
for interview be not more than four times the number of vacancies was  found
in 1977 UP Police Regulations and same  was  superseded  by  the  Government
Order of 27.02.1999. The  27.02.1999  order  provided  that  all  candidates
securing 50% marks in main written exam shall be called for the interview.
It further held that once the candidates had participated in the process  of
selection  without  raising  objections;  they  could  not  be  allowed   to
challenge the process at a later stage.
With respect to sealed cover procedure, the Division Bench noted  that  this
procedure was a requirement under the order dated 23.01.1999 but  not  under
order dated 27.02.1999. Since the latter specifically superseded the  former
order, the sealed cover procedure was not requirement as such.
The Division Bench, with respect to  composite  marking  in  the  interview,
found that it is for the examining body to decide as to how  marking  should
be done. Separate  marking  or  consolidated  marking  are  two  methods  of
assessment and it is for the examining body to decide, not the Court,  which
method is preferable.
Division Bench further  refused  to  accept  the  argument  that  the  later
government  order  of  27.02.1999  was  not  to  govern  the  selection  for
vacancies which were announced by order dated 23.01.1999 and 03.02.1999.  It
found that this was a mischievous argument and very  clearly  the  procedure
set out under order dated 27.02.1999 was followed throughout  the  selection
process.

We have heard the learned counsels appearing for the parties. We  find  that
the Division Bench of the High Court was  very  lucid  and  correct  in  its
findings and conclusion reached thereupon.  Nevertheless,  we  will  discuss
all the points raised before us and give our findings.

Regulation 445 of the said Regulations of UP  Government  (as  amended  upto
31.08.1977) provides for qualifications and  procedure  for  promotion  from
rank of Constable and Head  Constables  to  Sub  Inspectors.  The  procedure
therein consists of  Notice,  pre-examination  (essay  type  written  exam),
examination  of  character  roll,  main  written  examination  and   finally
interview. The Regulation provides that the number of candidates called  for
interview, on the basis of the merit of the main written examination,  shall
be four times the number of vacancies. In the interview, 40%  marks  are  to
be allocated to the service record. It has been submitted and  clarified  to
us that these regulations are actually a compilation  of  Government  Orders
issued from time to time. Therefore, we find that the Regulations are not  a
superior law as compared to the Government Orders and it  may  be  amiss  to
suggest that Regulations would prevail over the Government Orders by  virtue
of being called Regulations. Having said that,  we  go  on  to  examine  the
Government Orders issued by the UP Government in 1999.

Government Order dated 23.01.1999 is worded as “His Excellency the  Governor
hereby  orders  to  adopt  the  following  procedures   for   selection   of
departmental candidates as Sub Inspectors, Civil Police of UP  Police.”  The
said Order provides  for  preliminary  examination  (objective  type),  main
written  examination  and  the  personality  test  (or  the  interview).  It
provided that the panelists conducting personality test must give  marks  to
each candidate separately  and  the  head  of  the  Recruitment  Board  must
aggregate the marks given by all panelist and thereafter  the  final  result
would be declared. The Order also provided for character  roll  and  service
record shall also be assessed. The Order was  addressed  to  the  Secretary,
Police/P.A.C. Recruitment Board,  Headquarters,  Director  General  of  U.P.
Police and directed the Secretary to  make  arrangements  in  terms  of  the
procedure set out in the said Order.

Then  comes  the  Government  Letter  dated  03.02.1999,  addressed  to  the
Secretary, Police/P.A.C. Recruitment Board, Headquarters,  Director  General
of U.P. Police. This Order directed the Secretary of  Recruitment  Board  to
begin the Selection procedure for  the  1478  seats  of  the  rank  of  Sub-
Inspectors in Civil Police. We have already mentioned  that  the  number  of
seats was later reduced to 1176 (for reasons already  discussed)  and  there
is no controversy on that.

Then comes the Government Order dated 27.02.1999,  again  addressed  to  the
Secretary, Police/P.A.C. Recruitment Board, Headquarters,  Director  General
of U.P. Police. This order very categorically provided that the Order  dated
23.01.1999 is superseded by this Order and it set out a  new  procedure  for
selection of the departmental candidates. The  procedure  provided  by  this
order included a Preliminary Written Examination (objective type),  Physical
Test and Infantry Test for those who qualify  the  preliminary  examination,
main written examination and then the interview. It provided that all  those
who secured 40% marks separately in each subject and 50%  aggregate  in  the
main written examination would be called  for  the  interview.  Further  the
Order provided that  for  the  purpose  of  interview/Personality  Test  and
assessment of character roll/service record,  a  selection  panel  shall  be
constituted as per the requirement  and  its  members  shall  be  determined
keeping in mind the reservation policy of the Government. It  may  be  noted
that the Order did not say that the interview panel was  to  be  constituted
or was to function as per the Regulation  445  discussed  above.  The  order
also did not mention that the  members  of  selection  panel  were  to  give
separate marks for each candidate.

Now analysing all these government orders and regulations, we find that  the
procedure for selection of departmental candidates for the promotion to  the
rank of Sub-inspectors was changed  and  was  amended  by  every  Government
Order. Learned counsel appearing for the appellants cited the case of  State
of Rajasthan and Ors. Vs. Basant Agrotech (India) Limited, (2013) 15 SCC  1,
contending the scope of delegated legislation vis-à-vis parent  legislation.
However, in the present case, as already mentioned, the  regulations  cannot
be said to prevail  over  the  Government  orders.  Thus,  the  above  cited
judgment is not relevant for our purpose,  because  Regulations  are  merely
compilation of previous G.Os. Herein, the argument  of  implied  repeal  has
been forwarded. It is contended by the learned counsel for  the  State  that
the prior Government  Order  was  impliedly  repealed  every  time  the  new
procedure was laid down. To examine this argument, it will be  expedient  to
set out the relevant clauses from Regulation 445 and  the  Government  Order
dated 27.02.1999. Regulation 445(B)(4)  reads  as  follows:  “About  4  time
candidates to the number of vacancies, in the marker cadet should be  called
for  interview  according  to  the  merit  from  the  aforesaid  list.”  The
‘aforesaid list’ mentioned in Regulation 445(B)(4) refers to the merit  list
of the main written examination. Clause 8  in  the  Government  Order  dated
27.02.1999 reads: “The candidates securing  40%  marks  separately  in  each
subject and an aggregate 50% in all subjects  of  main  written  examination
shall be called for  interview.”  On  a  plain  reading  of  the  above  two
provisions  the  conflict  is  apparent.  Both  these   provisions   provide
different requirement for being called for  the  interview.  It  was  argued
that Clause 8 of Government order did  not  provide  the  qualification  but
only eligibility for a candidate to come in the list of interview.  However,
this contention cannot hold  good  since  the  word  used  in  Clause  8  is
“shall”. The rule makes it mandatory to call all those who secure 40%  marks
separately  in  each  subject  and  50%  marks  aggregate  in  the   written
examination to be called for the interview. If both the above  quoted  rules
were to exist, it would create  a  contradictory  situation.  Therefore,  we
find that Regulation 445 cannot be said to prevail  over  or  co-exist  with
the  Government  Order  dated  27.02.1999,  in  respect  of  the  number  of
candidates to be called for interview.

Furthermore, we find that there is no rule of law as to the ratio of  number
of vacancies to the number of candidates for  being  called  for  interview;
although it may be a rule of prudence. This  Court  has  found  in  Mohinder
Sain Garg Vs. State of Punjab and Ors., (1991) 1 SCC 662, as also  in  Ashok
Kumar Yadav Vs. State of Haryana, (1985) 4 SCC 417, that although it may  be
improper  for  the  Selection  Committee  to  call  such  large  number   of
candidates for interview, but selection cannot be vitiated  merely  on  this
ground if such an action is not tainted by mala fide or oblique  motive.  In
Mohinder Sain Garg (supra), this Court gave one more reason  not  to  accept
this argument which squarely applies to this case as well; this Court  found
that the Respondents stood no  chance  of  being  called  for  interview  if
candidates upto three times the number of posts were called  for  interview.
In the case on hand, on this score, learned counsel for the State  of  Uttar
Pradesh has made a similar contention. Even the appellants herein  have  not
presented a case that had they been called for interview,  being  only  four
times the number of vacancies, they would have been  short  listed  in  that
list. Thus, we find this argument as a misplaced one.

Moreover, we would concur with the Division Bench on  one  more  point  that
the appellants  had  participated  in  the  process  of  interview  and  not
challenged it till the results were declared. There  was  a  gap  of  almost
four months between the interview and declaration of  result.  However,  the
appellants did not challenge it at that time. Thus,  it  appears  that  only
when the appellants found themselves to  be  unsuccessful,  they  challenged
the interview. This cannot be allowed. The candidates cannot  approbate  and
reprobate  at  the  same  time.  Either  the  candidates  should  not   have
participated in the interview and challenged the procedure  or  they  should
have challenged  immediately  after  the  interviews  were  conducted.  (See
Vijendra Kumar Verma Vs. Public Service Commission,  Uttarakhand  and  Ors.,
(2011) 1 SCC 150, and K.H. Siraz Vs. High Court of Kerala and Ors. (2006)  6
SCC 395)

Further, in our view, the Division Bench has correctly dealt with the  issue
of sealed cover  procedure.  The  process  of  sealed  cover  procedure  was
devised to prevent any prejudice being caused to the  persons  against  whom
the disciplinary or criminal proceedings are pending. In the  present  case,
it is nobody's case  that  such  persons  are  prejudiced.  Therefore,  this
contention does not hold any merit in the present case.

Now, so far as the question  of  awarding  consolidated  marks  by  all  the
panelists in the interview is  concerned,  we  are  in  agreement  with  the
finding of the learned Single  Judge.  The  purpose  of  constituting  multi
member  interview  panel  is  to  remove  the   arbitrariness   and   ensure
objectivity. It is required by each member of the interview panel  to  apply
his/her own mind in giving marks to the candidates.  The  best  evidence  of
independent application of mind  by  each  panelist  is  that  they  awarded
separate marks. However, if only  consolidated  marks  are  awarded  at  the
interview, it becomes questionable,  though  not  conclusive,  whether  each
panelist applied his/her own mind independently. Having said that,  we  note
that this Court cautioned in Lila Dhar Vs.  State  of  Rajasthan  and  Ors.,
(1981) 4 SCC 159, that  it  is  not  for  the  Courts  to  re-determine  the
appropriate method of selection unless obvious oblique  motives  are  proved
in a particular case. Even in  Lila  Dhar's  case  (supra),  the  issue  was
regarding the marks awarded by the Selection Committee as  one  consolidated
marks; the Court refused to interfere with the appointment process  on  this
ground. Only because the panelists on the interview committee did not  award
separate marks, cannot be a ground to quash the entire process.  Also,  with
respect to the legal argument that the  Government  Order  dated  03.02.1999
provided that the marks must be separately awarded by  interview  panelists,
we hold that the Government Order dated 3.02.1999  was  in  continuation  of
the Government Order dated 23.01.1999, which  was  superseded  expressly  by
Government Order dated 27.02.1999. The  Government  Order  dated  27.02.1999
did not provide any condition that the marks were to be  separately  awarded
by each interview panelist. Thus, it cannot be argued  that  the  Government
did not follow the rules framed by itself.

Further, it is a settled law that in cases like the present  one,  where  an
Executive action of the State is challenged, Court must tread  with  caution
and not overstep its limits. The interference by  Court  is  warranted  only
when there are oblique motives or there is miscarriage of  justice.  In  the
present case, there is no oblique  motive  or  any  miscarriage  of  justice
warranting interference by this Court.  Hence,  the  appeals  and  the  writ
petition are dismissed.


….....…..…………………..J
(Ranjan Gogoi)





….....…..……………………J
(Pinaki Chandra  Ghose)
New Delhi;
May 11, 2015.

Will could not be executed with respect to undivided share of the joint family property. -2015 S.C.(1964) MSKLAWREPORTS

Will could not be executed with respect to undivided share of the joint family property.

-2015 S.C.(1964) MSKLAWREPORTS

''When the trial Court and the first appellate Court fail to consider the relevant document in proper perspective and effect of those documents on the rights of the parties, this Court is entitled to reconsider the evidence by drawing inferences from the admitted documents.'' - 2015 S.C.(1996) MSKLAWREPORTS

The trial Court had wrongly proceeded on the premise of burden of proof on the plaintiff which was corrected by the appellate Court. However, the appellate Court committed another error of not considering the documentary evidence in proper perspective of the respective claims of the parties. 

The appellate Court had not considered these documents in proper perspective and the effect of those documents on the rights of the parties. Accordingly, the learned Judge reluctantly had reconsidered the evidence and, in our view, quite rightly since it is not a mere appreciation of evidence but drawing inferences from the admitted documents. Since proper construction of the documents and inferences have not legally been drawn by the appellate Court, the High Court has gone in detail and recorded the findings - 2015 S.C.(1996) MSKLAWREPORTS

application of Section 6 of the Hindu Succession Act & notional partition ,how to be effected - 2015 S.C.(1978)MSKLAWREPORTS

ACT:
Hindu Succession Act (Act 30 of 1956), Section 6 Explanation
1-Interpretation  of-Widow's  share must be  ascertained  by
adding the  share to which she is entitled  at  a  notional
portion  during  her husband's life time and the  share  she
would get in her husband's interest upon his death.-

HELD  : 1. (a) What Section 6 of the Hindu  Succession Act.
1956  deals with is the devolution of the interest  which  a
male  Hindu has in a Mitakshara property at the time of  his
death.  The  proviso to Section 6 contains a  formula,  for
fixing the  share  of the  claimants  while  Explanation  I
contains  a formula for deducing the share of the  deceased.
[765 H, 766 A-B]
(b)  Explanation   I   which  contains  the   formula  for
determining  the share of the deceased creates a fiction  by
providing that the interest of a Hindu Mitakshara coparcener
shall be deemed to be, the share in the property that  would
have been allotted to him if a partition of the property had
taken  place  immediately  before  his death.  Whether   a
partition  had actually taken place between  the  plaintiffs
husband and his sons is beside the point for the purposes of
Explanation 1. That Explanation compels the assumption of  a
fiction that in fact "a partition of the property had  taken
place",  the  point of time of the partition being  the  one
immediately before the death of the person in whose property
the heirs claim a share.  The fiction created by Explanation
I has to be given its due and full effect.

2.   (a)  In  order to ascertain the share of heirs  in  the
property  of  a deceased coparcener it is necessary  in  the
very  nature  of  things, and as they  Very  first  step  to
ascertain  the share  of the deceased in  the  coparcenary
property  , by dong that alone can one determine the  extent
of the claimant's share.  Explanation 1 to section 6 resorts
to the simple expedient, undoubtedly factional, that.
the  interest  of a Hindu Mitakshara  coparcener  "shall  be
deemed to be the share in the property that would have been
allotted  to him if a partition of that property  had  taken
place  immediately  before  his death.  What  is  therefore
required to be assumed is that a partition had in fact taken
place  between the deemed and his  coparceners  immediately
before  his   death. That  assumption,  once   made,   is
irrevocable.   In  other words, the assumption having been
made  once for the purpose of ascertaining the share of  the
deceased in the coparcenary property, one cannot go back  on
that assumption and ascertain the share of the heirs without
reference, to it.  The assumption which the statute requires
to  be made that a partition had in fact taken  place must
permeate the entire process of ascertainment of the ultimate
share  of  the heirs, through all its stages.  To  make  the
assumption  at the initial stage for the limited purpose  of
ascertaining the share of the deceased and then to ignore it
for  calculating  the quantum of the share of the  heirs  is
truly  to  permit  one's imagination  to  boggle.   All  the
consequences  which  flow from a real partition have  to  be
logically  worked  out, which means that the  share  of  the
heirs  must  be  ascertained  on the  basis  that  they  had
separated  from one another and had received a share in  the
partition which had taken place during the life time of  the
deceased.   The allotment of this share is not a  processual
step  devised  merely for the purpose of  working  out some
other  conclusion.  it has to be treated and accepted  as  a
concrete reality, something that cannot be recalled just  as
a  share  allotted to a coparcener in  an  actual  partition
cannot generally be recalled. The inevitable corollary  of
this position is that the heir will get his or her share  in
the  interest  which  the deceased had in  the  coparcenary
property at the time of his death, in addition to the  share
which he or she received or must be deemed to have  received
in the notional partition. 

(b)  Ibis interpretation furthers the legislative intent  in
regard to  the enlargement of the share  of  female  heirs,
qualitatively  and  quantatively.  Even  assuming  that  two
interpretations  of Explanation 1 are  reasonably  possible,
Courts must prefer that interpretation which  will  further
the  intention of the legislature and remedy  the  injustice
from which the Hindu women have suffered over the years.  By
restricting the operation of the fiction created by Explana-
tion  I  in the manner suggested by the  appellant,  Courts,
shall  be taking a retrograde step, putting back as it were
the clock of social reform which has enabled the Hindu women
to  acquire  an equal status with males in matters  of pro-
perty. 

3.   In the instant case,
(a)  There is no justification for limiting the  plaintiff's
share to 1/24th by ignoring the 1/4th share which she  would
have  obtained had  there  been  a  partition during  her
husband's  life  time between him and his two  sons.   In  a
partition between Khandappa and his two sons, there would be
four  sharers in the coparcenary property, the fourth  being
Khandappa's  wife,  the  plaintiff.   Khandappa  would have
therefore  got a 1/4th share in the coparcenary property  on
the hypothesis of a partition between himself and his sons.

(b)  By  the  application of the normal rule  prescribed  by
Section  6 of the Hindu Succession: Act,  1956,  Khandappa's
interest  in  the  coparcenary property  would  devolve  by
survivorship  upon the surviving members of the  coparcenary
and not in accordance with the provisions of the Act. But,
since  the  widow  and daughter  are  amongst the   female
relatives  specified in class I of the Schedule to  the  Act
and Khandappa died leaving behind a widow and daughters, ,he
proviso to section 6 comes into play and the normal rule  is
excluded.  Khandappa's interest in the coparcenary  property
would  therefore  devolve,  according to  the  proviso, by
intestate succession under the Act and not by  survivorship.
Testamentary  succession is out of question as the  deceased
had  not made a testamentary disposition though,  under  the
explanation to section 30  of the Act, the interest of a male Hindu  

in  Mitakshara
coparcenary.  property is capable of being disposed of by  a
will or other testamentary disposition. 
(c)  The plaintiff's share as determined by the  application
of  the rules of intestate succession contained in  Sections
8,  9  and 10 of the Hindu Succession . Act will  be  1/6th.
The  deceased  Khandappa died leaving behind him  two  sons,
three  daughters and a widow.  The son, daughter. and  widow
are  mentioned as  heirs in class I  of  the  Schedule  and
therefore, by reason of the provisions of section 8(a) read
with  the 1st clause of section 9, they take  simultaneously
and  to the exclusion of other heirs.  As between  them  the
two  son's,  the  three daughters and the  widow  will take
equally.  each having one share in the deceased's  property
under  section 10 read with Rules 1 and 2 of  that  section.

-2015 S.C.(1978)MSKLAWREPORTS