M/s Gujarat Ambuja Cements Ltd = the incentive provided under the Incentive Rules would not include PLEC and the respondents – writ 21 petitioners would not be entitled to reimbursement towards the PLEC paid for availing power supply by way of special dispensation in force. = we hold that the respondents – writ petitioners are not entitled to reimbursement towards PLEC paid by it during the period of four years commencing from the date of commercial production i.e. 26th September, 1995. We order accordingly and direct that in the event any reimbursement had been 22 made the same be returned forthwith by the respondents – writ petitioners to the appellants with interest thereon at the rate of 6% per annum.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2652 OF 2006
THE STATE OF HIMACHAL
PRADESH & ORS. ...APPELLANTS
VERSUS
M/S GUJARAT AMBUJA CEMENTS
LTD. & ORS. ...RESPONDENTS
JUDGMENT
RANJAN GOGOI, J.
1. The State of Himachal Pradesh is in
appeal before this court challenging an
order of the High Court of Himachal
Pradesh dated 5th September, 2003 allowing
the writ petition filed by the respondents
– M/s Gujarat Ambuja Cements Ltd. and
holding that the respondents - writ
petitioners’ entitlement to the benefit
of power tariff freeze, would include the
right to reimbursement of all the amounts
2
paid by it on account of Peak Load
Exemption Charge (hereinafter referred to
as “PLEC”).
2. The core facts that will be necessary
to be noticed are as follows:
The respondent – writ petitioner no.1
– M/s Gujarat Ambuja Cements Ltd. set up
an industrial unit for manufacture of
portland cement in Darlaghat, District
Solan, Himachal Pradesh. The approval of
the State Government for establishment of
the said unit was accorded on 23rd January,
1990. The cement manufacturing unit of
the respondents – writ petitioners was
accorded the “prestigious status” to avail
of incentives in accordance with the
Revised Rules Regarding Grant of Incentive
to Industrial Units in Himachal Pradesh,
1991 (hereinafter referred to as
“Incentive Rules”), as amended from time
to time. To be entitled to the incentives
3
under the aforesaid Incentive Rules the
respondents – writ petitioners had to and
infact had satisfied the stipulated
requirement of capital investment at least
of Rs. 50 crores and guaranteed employment
of minimum of 200 persons on
permanent/regular basis who are bona fide
residents of Himachal Pradesh. The cement
manufacturing unit of the respondents –
writ petitioners commenced commercial
production on 26th September, 1995. At that
point of time, under the Incentive Rules,
the respondents – writ petitioners were
entitled, inter alia, to a 'power tariff
freeze' for a period of four years from
the date of commencement of commercial
production. Specifically, the tariff
freeze was to be worked out by granting to
the respondents – writ petitioners
reimbursement of any increase in
industrial power tariff after the date of
commencement of commercial production for
4
a period of four years. The formula for
calculating the increase in power tariff
to be reimbursed was the rate of
electricity per unit billed minus the rate
of electricity as on date of commercial
production.
3. On 28th January, 1994 (before
commencement of commercial production) the
respondent – writ petitioner was informed
by the Chief Engineer (Commercial) of the
Himachal Pradesh State Electricity Board
(hereinafter referred to as “the Board”)
that the power required by its cement unit
(i.e. 21000 KW) can be made available
subject to certain terms and conditions
mentioned in the aforesaid letter (dated
28th January, 1994). By the said letter
the respondent – writ petitioner was
informed that Peak Load hours restrictions
will be imposed between 6 p.m. to 9 p.m.
for the summer months (April to October)
5
and 5 p.m. to 9 p.m. for the winter months
(November to March). Thereafter, it
appears that in exercise of powers under
Sections 49 and 59 of the Electricity
(Supply) Act, 1948, the Board brought into
force a schedule of electricity tariff
known as “Himachal Pradesh State
Electricity Board Schedule of Electricity
Tariff, 1994 w.e.f. 31st May, 1994. Clause
(m) of the said Schedule which deals with
“Peak Load Hour Supply” is as follows:
“m) PEAK LOAD HOUR SUPLY
Supplies under Schedule
Agriculture pumping (A.P.),
Small Industrial Power (S.P),
Medium Industrial Power Supply
(Schedule M.S.), Large
Industrial Power Supply for Mini
Steel Mills etc. and for others
(Schedule L.S.-1 and L.S.-2) and
Water and Irrigation pumping
(Schedule W.I.P.) shall not be
available during the peak load
hours as may be notified by the
Board from time to time.
However, in the case of
continuous process industries,
or where a particular industrial
consumer wants to run his
industry during the peak load
hours for any special reasons, a
6
separate agreement shall have to
be entered into with the Board.”
4. On 23rd August,1995, the Chief Engineer
(Commercial) of the Board issued an Office
Order according sanction in favour of the
respondent – writ petitioner for running
of its cement manufacturing unit during
the evening peak load hours subject to the
conditions enumerated in the said Office
Order (dated 23rd August, 1995)
5. After the respondent – writ
petitioner's unit went into commercial
production, on 30th October, 1995 the Board
issued another Notification in exercise of
power under Sections 49 and 59 of the
Electricity (Supply) Act, 1948 publishing
another schedule of tariff and general
conditions for supply of electricity to
various categories of consumers in
Himachal Pradesh with effect from 1st
November, 1995. The aforesaid Notification
7
(dated 30th October, 1995) dealing with the
“Peak Load Hour Supply” which is relevant
to the present case is as follows:
“1) PEAK LOAD HOUR SUPLY
Supplies under Schedule
Agriculture pumping (A.P.), Small
Industrial Power (S.P), Medium
Industrial Power Supply (Schedule
M.S.), Large Industrial Power
Supply for Mini Steel Mills etc.
and for others (Schedule L.S.-1
and L.S.-2) and Water and
Irrigation pumping (Schedule
W.I.P.) shall not be available
during the peak load hours. The
duration of peak load hours in
summer and winter shall be as
under:
i) Summer
(April to Oct) 6 PM to 9 PM
ii) Winter
(Nov. to March) 5.30PM TO 8.30PM
However, in the case of
continuous process industries,
or where a particular industrial
consumer wants to run his
industry during the peak load
hours for any special reasons, a
separate agreement shall have to
be entered into with the Board.
Such consumers shall be billed
for additional charge as
specified in the relevant
schedules of tariff”
In part II of the aforesaid
8
Notification (dated 30th October, 1995)
under the “Schedule of Tariffs” the
provision with regard to “Peak Load
Exemption Charge (PLEC)” were stated in
the following terms:
“5. Peak Load Exemption
Charge (PLEC)
The consumers availing special
dispensation or exemption during
evening peak load hours
stipulated under Part-I General
of this notification shall be
billed at extra charges of Rs.1/-
per unit over and above the
normal tariff. For this purpose,
time of the day (T.O.D.) meters
shall be provided. Till such
time, these meters are provided,
the monthly peak load exemption
charges shall be Rs.70/- per KVA
of exemption/relaxation sought.”
6. After the commencement of the
commercial production by the cement
manufacturing unit of the respondent –
writ petitioner, in the year 1996, the
Incentive Rules were revised and the
incentive of power tariff freeze, though
continued, underwent certain
9
modifications. While the said notification
may not be strictly relevant for the
present what was clearly provided in the
revised Incentive Rules is that the power
tariff to be reimbursed will not include
any other charge/surcharge/peak load
charge/fuel adjustment charge etc. as may
be levied by the competent authority. It
may be noticed, at this stage, that the
aforesaid revised Incentive Rules were
made applicable to new industrial units
which fact is borne out from clause 1.2(a)
of the Revised Incentive Rules (which came
into force with effect from 1st October,
1996) dealing with eligibility which is in
the following terms.
“1.2 Eligibility
(a) New Industrial units as
defined in these rules, shall be
eligible for grant of incentives
as provided for under these
rules. Units which have
commenced commercial production
before the appointed day will
continue to be governed for
grant of all incentives under
10
the Revised Rules regarding
Grant of Incentives to
Industrial Units in HP-1991 as
amended from time to time,
unless otherwise provided in
these rules. Such industrial
units will be eligible for
incentives, concessions and
facilities only if they meet the
minimum employment criteria as
laid down under these rules.”
The definition of 'New Industrial
Unit” contained in clause 2(s) of the
aforesaid Revised Incentive Rules (of
1996) may also be extracted below for
convenience.
“2(s) “New industrial unit”
means a registered SSSBE, tiny,
small, ancillary, medium or
large scale industrial unit as
defined in clauses 2(x) and
2(za) of these rules, located
within the State of Himachal
Pradesh which commences
commercial production on or
after the appointed day and
includes any existing unit which
is eligible to get fresh
registration as per the
guidelines provided by the
Development Commissioner, Small
Scale Industries, Govt. of
India, from time to time.”
The “appointed day” was notified as 1st
11
day of October, 1996.
7. It is in the above backdrop of the
core facts that the issue arising in the
case, namely, the entitlement of the
respondent – writ petitioner to
reimbursement of the PLEC will have to be
decided.
8. The argument advanced by Shri Anoop
George Chaudhari, learned Senior Counsel
appearing for the appellant State of
Himachal Pradesh centres around two
principal issues. The first is that on
the date when the cement unit was set up
and had commenced its commercial
production i.e. 26th September, 1995 the
PLEC had not come into force. The promise
of reimbursement of increased power tariff
did not and, in fact, could not have,
therefore, cover/covered reimbursement of
PLEC. Additionally, it has been contended
12
that even before the cement manufacturing
unit had commenced commercial production
the respondent – writ petitioner was
informed by letter dated 28th January, 1994
that there will be restrictions on
availability of power during the peak load
hours which hours also were specifically
mentioned in the said letter (dated 28th
January, 1994). It has been contended on
behalf of the State that in the
Notification dated 30th October, 1995 it is
clearly and categorically reiterated that
electricity supply during the peak load
hours would not be available except as a
matter of special dispensation to a
industry that needed a continuous supply
of power. In the said Notification (dated
30th October, 1995) it was also mentioned
that supply of power during the peak load
hours would entail an additional charge of
Rs.1/- per unit over and above the normal
tariff and further that a separate meter
13
for reading of electricity consumed during
the peak load hours would be installed.
All these facts, according to the learned
Senior counsel, would go to show that PLEC
is a special/additional charge over and
above the normal tariff in cases where the
power is made available during the peak
load hours as a special dispensation. In
this regard, Shri Chaudhari has also drawn
the attention of the Court to the
affidavit filed before this Court by the
Board wherein it has been, inter alia,
stated that the power for supply during
peak load hours had to be procured by the
Board from other sources. Therefore, it is
contended that PLEC is not a part of the
normal/regular tariff in respect of which
alone there is a promise of reimbursement
by way of an incentive in the event of
increase of such tariff during the
eligibility period i.e. four years from
the date of commencement of commercial
14
production. According to the learned
Senior Counsel, in the present case there
is no dispute with regard to the issue of
reimbursement of charges on account of
hike/increase of normal tariff.
9. In reply, Shri Arvind P. Datar,
learned Senior Counsel appearing for the
respondents – writ petitioners has
submitted that tariff is not a defined
expression either under the Electricity
(Supply) Act, 1948 which would govern the
parties or even in the succeeding statute
i.e. the Electricity Act, 2003. The
dictionary meaning of tariff is not very
helpful either; tariff has been conveyed
to mean a charge or list of charges either
for services or on goods entering a
country. Shri Datar has pointed out that
the object and effect test must, therefore
be applied to hold that PLEC is included
within the meaning of electricity tariff.
15
Exclusion of such charges from an
understanding of the expression “tariff”
would be counter-productive in a situation
where incentive has been offered under the
industrial policy of the State to attract
investments. Shri Datar has submitted that
any exclusion of PLEC from the meaning of
the expression 'tariff' in the present
context would be to permit the appellant
to destroy the very purpose of the
incentive scheme. Such an interpretation
would enable the appellant to load the
normal tariff with various other
additional charges and surcharges by
giving such additions different
nomenclatures with a view to distinguish
the same from the expression 'tariff'.
Shri Datar has also pointed out to the
very language of the Notification dated
30th October, 1995 and the provisions of
Sections 49 and 59 of the Electricity
(Supply) Act, 1948 to contend that PLEC is
16
nothing but tariff inasmuch as it is by
revision of the schedule of tariff made by
the said Notification that PLEC had been
introduced. Shri Datar has further
submitted that even under the Notification
of 1992 granting the incentive of “tariff
freeze” the method of calculation
prescribed is a simple one, namely,
difference between the amount actually
billed and the amount that would have been
billed as per the tariff in force on the
date of commercial production. The said
formula, if applied, would definitely
include reimbursement of PLEC within the
ambit of the incentive granted. Lastly,
Shri Datar has submitted that the Revised
Rules of 1996 which specifically excludes
PLEC from the power tariff to be
reimbursed makes the position amply clear
that PLEC had always been and is a part of
the tariff.
17
10. We have considered the submissions
advanced on behalf of the rival parties.
The sequence of facts recited in the
preceding paragraphs makes it abundantly
clear that what was provided for by way of
an incentive under the Incentive Rules
framed under the Industrial Policy of the
State is 'power tariff freeze' for a
period of four years from the date of
commercial production by reimbursement of
the amount of increase in tariff during
the aforesaid period of four years. It
cannot be lost sight of that even before
the cement manufacturing unit had gone
into the commercial production, by letter
dated 28th January, 1994 the respondents –
writ petitioners were clearly informed
that the State is going through a phase of
acute shortage of power affecting peak
load hour supply. The schedule of tariff
published by the Board by Notification
dated 31st May, 1994 made an unequivocal
18
reiteration on the part of the Board that
power supply during peak load hours, as
may be notified by the Board from time to
time, shall not be available and in case
of continuous process and like industries
electricity supply during peak load hours
would be provided only for special reasons
and by means of a separate agreement to
be entered into with the Board. In fact,
an Office order dated 23rd August, 1995 was
passed by the Chief Engineer (Commercial)
of the Board according sanction for supply
of electricity during peak load hours to
the respondents – writ petitioners’ unit
subject to the terms and conditions
mentioned therein. Finally by notification
dated 30th October, 1995 another schedule
of tariff was published levying peak load
exemption charge (PLEC) at the rate of
Rs.1/- per unit over and above the normal
tariff. Power during peak hours was to be
provided as a special dispensation for
19
industries which could not afford to
remain without continuous
power/electricity. The mode of making
available the power was also different
inasmuch as the Notification dated 30th
October, 1995 contemplated installation of
separate meters for the said purpose. As
already noticed, in the counter affidavit
filed by the Board before this Court it
has been stated that power, to make
electricity supply available during the
peak load hours, was obtained from other
sources. The normal supply of electricity
for which there was a normal tariff was
infact discontinued during the peak hours.
Normal supply of electricity therefore has
to be distinguished from the supply of
electricity during peak load hours which
was an act of special dispensation and
upon payment of PLEC which change, in the
facts noted, would assume the character of
a surcharge. The question is not one
20
whether PLEC is a part of the tariff
having regard to the dictionary and the
natural meaning of the word 'tariff'. The
question is how the word/expression
'tariff' is to be understood in the
context in which such meaning is required
to be determined. The meaning that has to
be assigned must, naturally, be contextual
having regard to what was promised i.e.
tariff freeze. The nature of the charge
imposed i.e. PLEC has to be understood
keeping in mind that supply of power
during the peak load hours was an
exception; a special dispensation
involving a special arrangement i.e.
procurement from other sources.
11. If the matter is to be viewed from the
aforesaid perspective we have to arrive at
the conclusion that the incentive provided
under the Incentive Rules would not
include PLEC and the respondents – writ
21
petitioners would not be entitled to
reimbursement towards the PLEC paid for
availing power supply by way of special
dispensation in force. The fact that in
the revised Incentive Rules of 1996 PLEC
has been specifically excluded from the
scope of reimbursement made on account of
power tariff will not fundamentally alter
the situation. The said declaration can be
reasonably understood to be clarificatory
and intended to clear all doubts, queries
and issues raised on the aforesaid score.
12. For the aforesaid reasons, we hold
that the respondents – writ petitioners
are not entitled to reimbursement towards
PLEC paid by it during the period of four
years commencing from the date of
commercial production i.e. 26th September,
1995. We order accordingly and direct that
in the event any reimbursement had been
22
made the same be returned forthwith by the
respondents – writ petitioners to the
appellants with interest thereon at the
rate of 6% per annum.
13. Consequently and in the light of the
above, the order of the High Court is set
aside and the appeal is allowed in the
above terms.
...................,J.
(RANJAN GOGOI)
....................,J.
(NAVIN SINHA)
NEW DELHI
OCTOBER 4, 2017
23

As a result, the order issued by the Additional Chief Secretary, Government of Kerala, Home (A) Department, dated 20th November, 2004 is revived and restored and all subsequent consequential orders/notifications issued in relation to the subject matter concerning the promotion and seniority of respondent No.1 will stand effaced as non-est. As a consequence, the concerned authorities must re-visit the case of respondent No.1 and allot him the date of promotion and seniority to the post of Deputy Superintendent of Police w.e.f. 14th January, 2005 and thereafter to re-allocate fresh notional date of promotion to the next higher selection posts, namely, Superintendent of Police (Non-IPS & IPS), as the case may be, if and upon respondent No.1 fulfilling the eligibility and qualifying service period therefor. We direct the concerned authorities of the State Government to complete the necessary formalities in furtherance of this order within three months from today and issue appropriate notification(s) as may be required in that regard.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10262 - 10263 OF 2017
(Arising out of SLP (Civil) Nos.7494-7495 of 2014)
Mohammed Faizal K.A. ….Appellant
:Versus:
D. Sali and Ors. ....Respondents
J U D G M E N T
A.M. KHANWILKAR, J.
1. These appeals emanate from the common judgment and
order dated 31st January, 2014 passed by the High Court of
Kerala at Ernakulam in Writ Appeal Nos.953 of 2013 and 1019 of
2013 filed by the appellant. Writ Appeal No.953 of 2013 was filed
against the judgment and order dated 23rd June, 2004 passed by
the learned Single Judge in OP No.35398 of 2002, whereas Writ
Appeal No.1019 of 2013 was filed against the judgment and order
2
dated 8th April, 2010 passed by the learned Single Judge in Writ
Petition (C) No.7801 of 2005.
2. The former writ petition (No.35398/2002) was filed by
respondent No.1 challenging the government order dated 4th
October, 2002, bearing No. G.O. (Rt) No.1972/2002/Home
Thiruvananthapuram, issued under the signature of the
Principal Secretary to Government of Kerala, Home (A)
Department. The said order was passed in compliance of the
direction given by the High Court in the earlier writ petition filed
by respondent No.1 being OP No.6684 of 2001, challenging his
non-inclusion in the select list for promotion to the post of
Deputy Superintendent of Police for the years 2000 and 2001
prepared by the Departmental Promotion Committee (Higher) (for
short, ‘DPC’), in its meeting dated 12th February, 2001 and 7th
May, 2001. The High Court vide its judgment dated 13th March,
2002 had directed the Competent Authority to consider the
representation of respondent No.1 and pass appropriate order in
accordance with law. Accordingly, the government order
impugned in OP No.35398/2002 was passed on 4th October,
2002, which reads thus:-
3
“ANNEXURE P-3
GOVERNMENT OF KERALA
Abstract
Police Department-Establishment OP NO.6684/2001 filed
by Shri D. Sali Circle Inspector of Police –
Judgment-Implementation orders issued.
=============================================
=
HOME (A) DEPARTMENT
G.O.(Rt) No.1972/2002/Home Dated Thiruvananthapuram 04.10.2002
=============================================
=
Read: 1 Judgment dated 13.03.2002 in OP
No.6684/2001 filed by Shri D. Sali Circle
Inspector of Police.
2. Representation dated 06.04.2002 from
Shri D. Sali Circle Inspector of Police
addressed to the Convener Departmental
Promotion Committee (Higher)
O R D E R
The Hon’ble High Court I the judgment read as 1st paper
above has ordered as follows:
“The petitioner has not an efficacious remedy of filing a
representation before the Convener of Departmental
Promotion Committee against his supersession under
Rule 28(b) (i) (8) (a) of the General Rules of the KS & SSR.
If the petitioner files a representation before the Convener
of the Departmental Promotion Committee, the second
respondent herein, within one month from today, the said
respondent shall consider the same and pass
appropriate orders thereon threating that the same has
been passed within the prescribed time limit. The second
respondent shall pass orders as directed above within
three months from the date of receipt of a copy of this
judgment”
In obedience to the above judgment, the
representation from Shri D. Sali Circle Inspector of Police
4
read as 2nd paper above was placed before an Ad-hoc
Departmental Promotion Committee (Higher) on 30.04.02
for consideration. The committee considered the case in
detail with relevant records.
By virtue of seniority in the cadre of CI of police
Shri D. Sali CI of Police was considered for inclusion I the
select list of CIs of Police fit for promotion as Deputy
Supdt of Police for the year 2001 (both main and
supplementary). He was superseded from the above
select lists in view of the following:
(i) Punishments of increment for 2 years with
cumulative effect vide PHQ Order No.
G5/73089/93 dated 06.11.97
(ii) Two vigilance enquiries pending
(iii) An oral Enquiry pending
The oral Enquiry has ended up in his exoneration vide
G1/95453/99 dated 20.05.2001. The Departmental
Promotion Committee (Higher) which met on 09.04.2002
considered his case and decided to include him in the
select list of CIs of Police fit for promotion as Deputy
Supdt of Police for the year 2002 conditionally subject to
exoneration in the 2 vigilance enquiries pending. One of
the above vigilance enquiries has ended in his
exoneration. But the vigilance enquiry of allegation of
acceptance of bribe and assessment of wealth is still
pending.
The select list prepared by the Departmental
Promotion Committee (Higher which met on
12.02.2001 and 07.05.2001 were for filling up the
vacancies in 2001. As per Rule 28(b) (i) (4) of KS & SSr
the select list have to be prepared during the Calendar
year for the vacancies anticipated in the next Calendar
year. Hence the Departmental Promotion Committee
(Higher) ought to have been convened in 2000. Hence the
check period under consideration is 1997, 1998 and
1999. Hence for assessing the suitability of an officer the
punishment/disciplinary action, vigilance
cases/enquiries and ACR for the above period are taken
into consideration. Since, D. Sali CI of Police was
awarded punishment of increment bar for 2 years
5
with cumulative effect during the check period, the
committee found that the request of Shri D. Sali CI
of Police deserves no consideration.
The request is hereby rejected.
By order of the convener
N. Ramakrishnan
Principal Secretary to Govt.”
(emphasis supplied)
3. The State of Kerala resisted the said writ petition (No.
35398/2002) and justified the Government order dated 4th
October, 2002. However, the arguments put-forth by the State
did not find favour with the learned Single Judge who by his
judgment dated 23rd June, 2004 held that the punishment
awarded to respondent No.1 in the year 1997 of stoppage of two
increments, could not form the basis for considering respondent
No.1 for promotion in the year 2001. For, the relevant years for
considering the entitlement for promotion to be made in the year
2001 would be 1998, 1999, and 2000. Accordingly, the learned
Single Judge was pleased to quash the Government order dated
4
th October, 2002 and allowed the writ petition in the following
terms:-
“6. In the above view of the matter, Ext. P3 order is liable to
be quashed. I do so. There shall be a direction to the third
respondent to convene an ad hoc D.P.C. for the purpose of
considering the case of the petitioner for the year 2001.
6
The merit of the petitioner vis-a-vis others who were
eligible to be considered for the year 2001 shall be
assessed on the basis of the confidential records of
the petitioner for the years 1998, 1999 and 2000 and
any other relevant material pertaining to the select
list for 2001. If the petitioner is found entitled for
inclusion on the basis of such assessment of merit his
name shall be included in the select list for the year
2001 in the appropriate place among officers who
were included in the year 2001. This shall be done
within four months from the date of receipt of a copy of the
judgment. If the petitioner finds a place in the select list for
2001 his claim for promotion on that basis shall be
considered in accordance with law.
Original Petition is disposed of accordingly.”
(emphasis supplied)
4. Pursuant to the aforesaid direction issued by the High
Court, the case of respondent No.1 was re-examined by the
Department. After considering all aspects of the matter, the
Department issued order dated 20th November, 2004, bearing
G.O. (Rt) No. 2527/04/Home, under the signature of Additional
Chief Secretary and Principal Secretary to Government, Home (A)
Department, which reads thus:-
“ANNEXURE P-6
GOVERNMENT OF KERALA
Abrstract
Home Department – Establishment OP No.35398/02 filed
by Shri D. Sali, Circle Inspector of Police-Judgment
implementation Orders issued.
--------------------------------------------------------------------------------------
HOME (A) DEPARTMENT
G.O. (Rt) No 2527/04/Home dated Thiruvananthapuram, 20.11.2004
7
--------------------------------------------------------------------------------------
Read: 1) Judgment dated 23.06.2004 in O.P.
No.35398/02
2) Representation dated 24.07.2001 submitted by Shri D.
Sali
O R D E R
Shri D. Sali, Circle Inspector of Police was superseded
from the select list of Circle Inspector fit for promotion as
Dy.Sps for the year 2000 and 2001 (i.e. for the vacancies in
2000 & 2001) by the Departmental Promotion Committee
(Higher) held on 12.07.2001 in view of the penalty for
Increment Bar for 2 years with cumulative effect awarded
to him vide PHQ Order No.G5/73080/93 dated 05.11.97
and a Vigilance Case, Vigilance Enquiry and an Oral
Enquiry pending against him during the check period. He
was subsequently included in the select lists for the years
2002 & 2003 conditionally subject to exoneration in the 2
Vigilance Enquiry and an non Oral Enquiry pending against
him. Though he was awarded a penalty of Increment Bar of
3 months without cumulative effect on 02.07.2001
considering the nature and gravity of the charges against
him the committee included him in the select list
conditionally. One of the Vigilance Enquiries has been
dropped by Government. But he was not cleared the
promotion since a Vigilance Tribunal enquiry has been
ordered against him vide GO(MS) No.4/04/Vig dated
25.02.04 based on the other Vigilance Enquiry.
2. Based on the directions contained in the judgment
dated 13.03.2002 in OP No.6684/01 filed by him the ad-hoc
Departmental Promotion Committee (Higher) filed on
30.04.02 examined his case and rejected his request for
inclusion in the select list. A reply in the matter was given to
him vide GO (Rt) No. 1972/Home dated 01.10.02.
3. In the judgment dated 23.06.04 in OP No.35398/02
filed by him the Hon’ble High Court have quashed the above
Government order rejecting his request for inclusion in the
select list and directed the Convener, Departmental
Promotion Committee (Higher) to convene an Ad-hoc
Departmental Promotion Committee (Higher) for the purpose
8
of considering the case of the petitioner for year 2001. In the
judgment it is also ordered that the merit of the petitioner
vis-à-vis others who were eligible to be considered for the
year 2001 shall be assessed on the basis of the
Confidential Reports of the petitioner for the years 1998,
1999 & 2000 and any other relevant material pertaining to
the select list for 2001. If the petitioner is found entitled for
inclusion on the basis of such assessment of merit his name
shall be included in the select list for the year 2001 in the
appropriate place among officers who were included in the
year 2001.
4. In the light of the above facts, the Adhoch
Departmental Promotion Committee held on 24.09.2001
examined his case in detail with all the relevant records. As
per Rule 28(b) (i)4(a) of KS & SSRs select list has to be
prepared during a calendar year for the vacancies
anticipated in the next calendar year. Accordingly, select list
for the vacancies in 2001 has to be prepared in 2000 (i.e.
during September/October 2000) for which the check period
will be 1999, 1998 & 1997. But while preparing the select
list the year was wrongly mentioned as 2001 instead of
2000. But the Departmental Promotional Committee had
taken the check period as 1997, 1998 & 1999 in respect of
all the officers included in the filed of choice. The
punishments awarded, adverse entries in Confidential
Report and the disciplinary proceedings etc during the years
from 1997 were taken into account while assessing
suitability of the officers for inclusion in the select list for the
year 2000 (for the vacancies in 2001).
5. The committee found that the petitioner was
awarded a major punishment (i.e. increment bar for 2
years with cumulative effect vide PHQ order
No.G5/73080/93 dated 05.11.97) during the check
period which is still pending. The review petition
against the above punishment was rejected by
Government vide GO(Rt) No.3220/01/Home dated
18.09.2001. The Committee therefore found that the
petitioner is not entitled for inclusion in the select list
of Circle Inspector list for promotion as Dy.SPs for the
year 2000 i.e. for the vacancies in 2001.
The Departmental Promotion Committee (Higher) which held on
24.09.2004 examined his case and decided to include him in
9
the select list for the year 2003 and the select list was issued
accordingly as per notification No. 44663/A2/04/Home dated
28.10.2004.
In the circumstances stated above the request
contained in the representation read as 11 paper above is
hereby rejected.
(By Order of the Governor)
N. Ramakrishnan
Additional Chief Secretary and
Principal Secretary to Government.”
(emphasis supplied)
5. The respondent No.1 assailed the aforementioned order by
filing another writ petition, bearing Writ Petition (C) No.7801 of
2005. The State resisted the said writ petition and justified its
decision considering the fact that the punishment awarded to
respondent No.1 on 5th November, 1997 of stoppage of increment
for two years with cumulative effect, was in force during the
check period. For which reason, the DPC decided to include the
name of respondent No.1 in the select list for the year 2003 and
the list was issued accordingly as per notification
No.44663/A2/04 dated 28th October, 2004. The learned Single
Judge of the High Court, however, opined that in view of the
direction issued by the Court vide order dated 23rd June, 2004 in
OP No.35398 of 2002, it was not open to the Competent
10
Authority to consider the punishment imposed on respondent
No.1 in the year 1997 to deny his inclusion in the select list for
the year 2001. The relevant portion of the judgment of the High
Court dated 8th April, 2010, reads thus:-
“5. I am of opinion that Ext. P4 judgment, which has
become final, concludes the issue squarely in favour of
the petitioner. In Ext. P4 judgment, this Court has
considered all aspects of the matter and decided that, for
the purpose of considering the petitioner for inclusion in
the select list for the year 2001, his confidential records
for the years 2000, 1999 and 1998 only could have been
considered. But in Ext. P5, the very same punishment
imposed in 1997 relied upon earlier to deny him inclusion
in the select list, has been relied upon, which was found
to be unsustainable in Ext. P4 judgment. Therefore, I
have no hesitation to hold that Ext. P5 order is in total
disregard to Ext. P4 judgment of this Court. In the above
circumstances, Ext. P5, to the extent the petitioner has
been excluded from the select list for 2001 is quashed. In
so far as despite Ext. P4 judgment from this Court, the
respondents have not chosen to consider the matter in
the right perspective as directed therein, I am not inclined
to leave it again to the respondents to pass fresh orders.
The respondents have no case that without relying on the
punishment of 1997, the petitioner can be validly denied
inclusion in the select list for the year 2001. In fact he
was included in the select list for the year 2003 and
promoted also.
Therefore, there would be a direction to the respondents
to include the petitioner in the select list for the year 2001
in the appropriate place in accordance with his seniority.
All promotions for the year 2001 shall be reviewed on the
basis of such inclusion of the petitioner in the select list
for the year 2001 and fresh dates of promotion as Dy.
Superintendent of Police shall be assigned to him
accordingly. The petitioner would consequently be
entitled to all service benefits and seniority arising there
from including monetary benefits thereof. Orders in this
regard shall be passed and monetary benefits disbursed
to the petitioner as expeditiously as possible, at any rate,
11
within two months from the date of receipt of a certified
copy of this judgment.
The writ petition is allowed as above.”
6. The concerned authorities acting upon the said decision
issued order on 27th June, 2012 and placed respondent No.1 in
the select list as per notification dated 12th February, 2001 at
Serial No.6(a) and gave him notional promotion to the post of
Deputy Superintendent of Police with effect from 19th March,
2001. The said order reads thus:-
“ANNEXURE P-11
GOVERNMENT OF KERALA
Abstract
Home Department-Police Establishment –Sri D. Sali,
Deputy Superintendent of Police – Notional Promotion to
the cadre of Deputy Superintendent of Police, granted _
Orders issued
=============================================
=
HOME (A) DEPARTMENT
G.O.(Rt) No.1934//2002/Home Dated Thiruvananthapuram 27.06.2012
=============================================
=
Read: (1) Notification No. 44702/A2/2001/Home dated
22.02.2001
(2) Notification No. 85137/A2/2010/Home dated
09.02.2001
(3) G.O. (Rt) No. 825/2001/Home dated
03.03.2001
(4) Letter No. A2-70300/10 dated 04.05.2011
from the State Police Chief, Kerala,
thiruvananthapuram
O R D E R
12
Sri D. Sali, Deputy Superintendent of Police was
superseded from the select list of Circle Inspectors of
Police fit for promotion as Deputy Superintendent of
Police for the year 2001 vide Notification read as 1st
paper above. The Ad-hoc Departmental Promotion
Committee (Higher) held on 12.02.2001 decided to
include him as shown below in the above select list as
per the Notification read as 2nd paper above.
Sl. No.6 Sri D. Madhu
Sl. No.6(a) Sri. D. Sali
Sl. No. 7 Sri K. Manoharan Kumar
The State Police Chie, in his letter read as 4th paper
above, has reported that Sri K. Manohara Kumar, who is
the immediate junior to Sri D. Sali as per the notification
read as 1st paper above, was promoted to the cadre of
Deputy Superintendent of Police as per the Government
Order read as 3rd paper above and he took charge of the
post of Deputy Superintendent of Police on 19.03.2001
FN. Hence the State Police Chief has requested to
sanction notional promotion to Sri D. Sali, Deputy
Superintendent of Police in the cadre of Deputy
Superintendent of Police with effect from the FN of
19.03.2001.
(3) Government have examined the matter in detail and
they are pleased to order that Sri. D.Sali is notionally
promoted to the cadre of Deputy Superintendent of Police
with effect from the FN 19.03.2001, i.e., the date of
assumption of charges by Sri K. Manoharan Kumar,
Deputy Superintendent of Police, who is the immediate
junior to Sri D. Sali, subject to the condition that he will
not be eligible for back arrears of pay and allowance.
By order of the Governor
N.B. BALAKRISHNAN
Under Secretary to Government”
7. Not only that, the Department considered the respondent
No.1 for further promotion to the post of Superintendent of Police
13
(non-IPS) but also, later on, for IPS cadre in 2010. The appellant
then assailed the decisions of the High Court dated 23rd June,
2004 and 8th April, 2010 by filing two separate writ appeals
before the Division Bench of the High Court. For the present, it
may not be necessary to advert to the events that unfolded after
the decision of the learned Single Judge of the High Court in the
third writ petition dated 8th April 2010. Inasmuch as, the matter
in issue in the writ appeals is in respect of the correctness of
two decisions dated 23rd June, 2004 and 8th April 2010,
respectively.
8. The writ appeals were opposed by respondent No.1, inter
alia, on the ground that the same were barred by limitation and
suffered from laches. Further, the appellant has no locus to
challenge the inclusion of respondent No.1, in the select list for
2001 because the appellant became eligible for inclusion in the
select list for promotion to the post of Deputy Superintendent of
Police only in 2002. Even on merits, it was contended by
respondent No.1 that the Competent Authority committed no
error in including him in the select list of 2001 and to consider
him for promotion to the post of Deputy Superintendent of Police
against the vacancies of 2001. Since, his claim for promotion
14
was being considered against the vacancies of 2001, the check
period would necessarily be 1998, 1999 and 2000 and for which
reason punishment awarded to him in the year 1997 cannot be
reckoned or used against him to deny him promotion in the year
2001.
9. The Division Bench after considering the rival submissions
held that no error was committed by the learned Single Judge
in the interpretation or the application of Rule 28 of the Kerala
State and Subordinate Service Rules. The Division Bench also
upheld the opinion of the learned Single Judge that the
punishment awarded to respondent No.1 in the year 1997 could
not be reckoned for considering his claim for promotion against
vacancies of 2001. Further, the Division Bench noted that the
appellant was not entitled to be considered nor was eligible to be
included in the select list of 2001 and that the direction given by
the learned Single Judge was in relation to considering the
eligibility and entitlement of respondent No.1, for promotion to
the post of Deputy Superintendent of Police against the vacancies
of 2001. The Division Bench held that the directions issued by
the learned Single Judge were not to interdict the seniority list or
adjudicate the inter-se seniority dispute which may have
15
necessitated the presence of other officers who were likely to be
affected by such adjudication. Therefore, the appellant was
neither a necessary nor proper party to the writ petition. Thus,
the Division Bench rejected the challenge to the impugned
decisions of the learned Single Judge because of
non-impleadment of the appellant in the writ petitions. The
Division Bench also held that the appeals have been filed
belatedly and without challenging the promotion of the first
respondent or the re-assigned seniority position to him, which
inevitably resulted in pushing down the appellant and making
him junior to respondent No.1. The Division Bench was of the
view that the consequential orders issued by the Competent
Authorities were relatable to two judgments and there was no
infirmity in those judgments. Resultantly, both the writ appeals
came to be dismissed by the common impugned judgment and
order dated 31st January, 2014.
10. Aggrieved, the appellant has taken recourse to the present
appeals. The arguments, as were canvassed before the Division
Bench of the High Court have been reiterated by both the sides.
16
11. We have heard Mr. Jaideep Gupta, learned senior counsel
appearing for the appellant and Mr. Dileep Pillai and Mr. C.K.
Sasi, learned counsel appearing for the respondents.
12. The moot question is: whether the appellant had locus to
challenge the decisions of the learned Single Judge dated 23rd
June, 2004 and 8th April, 2010, respectively? Indeed, from the
indisputable facts emerging from the record, the appellant was
appointed as Sub Inspector of Police on 12th October, 1981 in the
13th batch after the respondent No.1 was already appointed on
that post on 22nd June, 1981, in the 12th batch. It is also noticed
that the appellant was promoted to the post of Circle Inspector
on 1st June, 1994 after respondent No.1 was already promoted on
the said post in January, 1992. Since, respondent No.1 was
promoted in earlier point of time, he became eligible for being
considered for promotion to the post of Deputy Superintendent of
Police in February, 2001 at which point of time the appellant was
not eligible in that regard. The appellant became eligible to be
considered for such promotion only in 2002.
13. In the backdrop of these events we will examine the
challenge that we must address in the present appeals. The lis
commenced at the behest of respondent No.1 because of his
17
non-inclusion in the select list for the years 2000-2001 prepared
by the DPC in February 2001. We will analyse the reasons for
such non-inclusion and the justness thereof a little later.
14. Be that as it may, the appellant, as aforementioned, was not
eligible to be included in the said list. So understood, it must
follow that the appellant cannot be an aggrieved party if any
order was to be passed in favour of respondent No.1. However,
the appellant asserts that he is aggrieved because of the illegality
in the decision to promote respondent No.1 against the vacancy
in 2001 on two counts. Firstly, because the appellant was
already selected and promoted to the post of Deputy
Superintendent of Police on 13th September, 2002 and, thus,
became senior to respondent No.1 in that cadre which was a
selection post. Secondly, because of the wrongful inclusion and
moreso, promotion of respondent No.1 to the post of Deputy
Superintendent of Police and also re-assigning notional seniority
position as 19th March, 2001 in furtherance of the impugned
decision rendered by the learned Single Judge, dated 8th April,
2010, inevitably, it has resulted in making the appellant junior to
respondent No. 1 in the cadre of Deputy Superintendent of Police
and also affected his prospects of further promotion and
18
seniority. That has given rise to the cause of action for the
appellant to challenge the decisions of the High Court but for
which the respondent No. 1 could not have entered the stated
cadre before 14th January, 2005. We find force in this
submission. It is true that the appellant may not be eligible to be
included in the select list for the year 2001, but it is open to him
to point out that respondent No.1 could never have been
legitimately included in the select list until 2003 and before
which date the appellant was already promoted to the post of
Deputy Superintendent of Police and had been assigned seniority
on that basis. The respondent No1, however, was promoted to
the post of Deputy Superintendent of Police and joined that
cadre later only on 14th January, 2005. As these just reasons
have been glossed over or discarded as a result of the decision of
the learned Single Judge, in particular dated 8th April, 2010, the
appellant is directly affected by the outcome of such decision in
the matter of his seniority. Hence, he can be said to be an
aggrieved person to challenge the High Court decision; and if that
challenge succeeds, all the consequential steps taken by the
Competent Authority on the basis of such decision must stand
effaced as non-est. In that, the appellant had already been
19
selected and prompted to the post of Deputy Superintendent of
Police on 13th September, 2002. It is because of the decision of
the High Court dated 8th April, 2010 the Competent Authorities
gave notional date of promotion to respondent No.1 in that cadre
as 19th March, 2001 and re-assigned the seniority to him making
the appellant junior to respondent No.1, even though selected
and promoted in earlier point of time.
15. Indeed, the Division Bench has rightly distinguished the
decisions of this Court in the case of State of Uttaranchal and
Anr. Vs. Madan Mohan Joshi and Ors.1
; KM. Rashmi Mishra
Vs. M.P. Public Service Commission and Ors.2
; and Suresh
Vs. Yeotmal District Central Cooperative Bank Limited and
Anr.3
; having held that the lis before the learned Single Judge
was not in relation to adjudication of inter-se seniority position
of the parties but was for determination of eligibility and
entitlement of respondent No.1 to consider him for promotion to
the post of Deputy Superintendent of Police.
16. Be that as it may, the appellant could still challenge the
decision of the learned Single Judge dated 8th April, 2010, for the
1 (2008) 6 SCC 797
2 (2006) 12 SCC 724
3 (2008) 12 SCC 558
20
reasons indicated hitherto. The appellant, however, will have to
point out the manifest illegality or error committed in the matter
of giving promotion to respondent No.1 against the vacancy of
2001 and succeed in that behalf.
17. We may, therefore, without dilating on any other
contention, straightaway advert to the background in which the
two decisions were passed by the learned Single Judge of the
High Court. The first impugned decision was rendered by the
learned Single Judge on 23rd June, 2004. The relevant portion of
this decision has been extracted in paragraph 6, above. The crux
of the direction issued by the Court was to consider the claim of
respondent No.1 for promotion against the vacancy of 2001 on
the basis of his Confidential Records for the years 1998, 1999
and 2001 “in accordance with law”. We find no infirmity in the
direction so issued by the High Court. For, the nature of
direction given by the learned Single Judge vide judgment dated
23rd June, 2004, provided full play to the DPC to select or not to
select respondent No.1 against the vacancies of 2001 after
considering the Confidential Records of respondent No.1 for three
preceding years, i.e. 1998, 1999 and 2000 “in accordance with
law”. This is how the DPC as well as the Competent Authority of
21
the State understood the direction and after due deliberations
issued an order on 20th November, 2004. As a result, the
Competent Authority while considering the claim referred to the
fact that major punishment (i.e. increment bar for two years with
cumulative effect vide PHQ Order No.G5/73080 dated 5th
November, 1997) was still operating against respondent No.1.
That punishment was to operate for two years with cumulative
effect from 1997.
18. The question is: whether consideration of punishment
awarded in 1997, for promotion of respondent No.1 against the
vacancy of 2001 was permissible? True it is that the check
period for selection against vacancies of 2001, would be 1998,
1999 & 2000. However, as the punishment awarded in 1997,
transcended beyond 1997, as it was to operate for a period of
two years, the argument of respondent No.1 that the punishment
given in 1997 could not be reckoned is untenable. The learned
Single Judge whilst considering the third writ petition of
respondent No.1 decided on 8th April, 2010, however, observed
that taking that punishment into account was against the spirit
of the decision dated 23rd June, 2004 [rendered in the second
writ petition (No.35398/2002) filed by respondent No.1]. In our
22
opinion, the learned Single Judge as well as the Division Bench
of the High Court committed palpable error and misread the
previous decision dated 23rd June, 2004 rendered in the second
writ petition. As aforementioned, on a plain reading of the said
judgment dated 23rd June, 2004, it is crystal clear that the
Competent Authorities were directed to reconsider the claim of
respondent No.1 by taking into account the check period as
1998, 1999 & 2000 “in accordance with law”, for promotion to
the post of Deputy Superintendent of Police against the vacancies
in the year 2001. From the entire judgment dated 23rd June,
2004, we are unable to discern any opinion recorded by the
learned Single Judge that the punishment even if it were to
operate beyond 1997 and during the check period, cannot be
taken into account by the DPC for determining the merit and
ability of the candidate concerned. The legal position on this
issue is no more res integra. In the case of Union of India and
Ors. Vs. K.V. Jankiraman and Ors.4
, in paragraph 29 the
Court observed thus:
“29. According to us, the Tribunal has erred in holding
that when an officer is found guilty in the discharge of
his duties, an imposition of penalty is all that is
necessary to improve his conduct and to enforce
discipline and ensure purity in the administration. In the
4 (1991) 4 SCC 109
23
first instance, the penalty short of dismissal will vary
from reduction in rank to censure. We are sure that the
Tribunal has not intended that the promotion should be
given to the officer from the original date even when the
penalty imparted is of reduction in rank. On principle, for
the same reasons, the officer cannot be rewarded by
promotion as a matter of course even if the penalty is
other than that of the reduction in rank. An employee has
no right to promotion. He has only a right to be
considered for promotion. The promotion to a post and
more so, to a selection post, depends upon several
circumstances. To qualify for promotion, the least that is
expected of an employee is to have an unblemished
record. That is the minimum expected to ensure a clean
and efficient administration and to protect the public
interests. An employee found guilty of a misconduct
cannot be placed on par with the other employees and
his case has to be treated differently. There is, therefore,
no discrimination when in the matter of promotion, he is
treated differently. The least that is expected of any
administration is that it does not reward an employee
with promotion retrospectively from a date when for his
conduct before that date he is penalised in presentii.
When an employee is held guilty and penalised and
is, therefore, not promoted at least till the date on
which he is penalised, he cannot be said to have
been subjected to a further penalty on that
account. A denial of promotion in such
circumstances is not a penalty but a necessary
consequence of his conduct. In fact, while
considering an employee for promotion his whole
record has to be taken into consideration and if a
promotion committee takes the penalties imposed
upon the employee into consideration and denies
him the promotion, such denial is not illegal and
unjustified. If, further, the promoting authority can take
into consideration the penalty or penalties awarded to an
employee in the past while considering his promotion and
deny him promotion on that ground, it will be irrational to
hold that it cannot take the penalty into consideration
when it is imposed at a later date because of the
pendency of the proceedings, although it is for conduct
prior to the date the authority considers the promotion.
For these reasons, we are of the view that the Tribunal is
not right in striking down the said portion of the second
24
subparagraph after clause iii) of paragraph 3 of the said
Memorandum. We, therefore, set aside the said findings
of the Tribunal.”
(emphasis supplied)
19. This decision has been followed in the case of State of T.N.
Vs. Thiru K.S. Murugesan and Ors.,
5
which is directly on the
point. Although this decision was brought to the notice of the
Division Bench, to say the least, the same has not been analysed
by it in proper perspective, as is clear from paragraph 21 of the
impugned judgment dated 8th April, 2010. There is yet another
decision which has taken the same view in the case of L.
Rajaiah Vs. Inspector General of Registration & Stamps,
Hyderabad and Ors.6
The Court has unambiguously noted that
if the incumbent is undergoing punishment during the relevant
check period he will not be eligible for promotion for the relevant
period. Similar view is taken in the case of Collector of
Thanjavur Disitt. and Ors. Vs. S. Rajagopalan and Ors.
7
.
20. In the present case, it is indisputable that the punishment
awarded to respondent No.1, vide order dated 5th November,
1997, is to withhold increments for two years with cumulative
effect. That obviously was to operate beyond two years from
5 (1995) 3 SCC 273
6 (1996) 8 SCC 246
7 (2000) 9 SCC 145
25
1997. As mentioned in the counter affidavit filed by the
Additional Secretary of the State before the High Court dated
19th January, 2004 in O.P. No.35398 of 2002, that aspect was
duly considered by the DPC and the Competent Authority whilst
passing the order dated 20th November, 2004. It is for that
reason, the DPC held on 24th September, 2004 examined the
case of respondent No.1 and decided to include him in the select
list only for year 2003 as per Notification dated 28th October,
2004.
21. Indeed, the said order dated 20th November, 2004, was
assailed by respondent No.1 by way of Writ Petition (Civil)
No.7801 of 2005. But, unfortunately, the learned Single Judge of
the High Court did not examine these crucial aspects though
specifically raised by the Department to oppose the writ petition.
The Court instead was swayed away by the fact that
consideration of punishment awarded in 1997 to respondent
No.1, would be against the spirit of the earlier decision dated
23rd June, 2004 of the High Court and was impermissible.
Having so held, the learned Single Judge proceeded to issue
direction to the Competent Authorities on which the Competent
Authorities acted upon without any demur. Whereas, it is amply
26
clear that the learned Single Judge whilst deciding writ petition
OP No.35398/2002 nor the subsequent writ petition
No.7801/2005 adjudicated, much less answered, the issue of
permissibility or otherwise of taking note of the effect of
punishment awarded to respondent No.1 operating for two years
beyond 1997 and overlapping with the check period for vacancy
of 2001.
22. The fact that the Competent Authorities were ill-advised not
to challenge such untenable direction of the learned Single
Judge, would not preclude the aggrieved person from challenging
the same. As noticed earlier, the consequence of allowing the
second impugned decision of the learned Single Judge (dated 8th
April, 2010) to remain in the field entailed in allocation of
notional date of promotion and seniority to respondent No.1 as
19th March, 2001. As, the seniority position of respondent No.1
was re-assigned on that basis, it directly affected the appellant
who was already promoted to the post of Deputy Superintendent
of Police in earlier point of time on 13th September, 2002. If the
notional date of promotion allocated to respondent No.1 as 14th
January, 2005 in terms of the order dated 20th November, 2004,
was to remain in force, the respondent No.1 would remain junior
27
to the appellant at serial No.285 as against the seniority position
of appellant at serial No.208 as per the provisional seniority list
published in 2012. The respondent No.1 was upgraded in the
Seniority List in terms of government orders dated 27th June,
2012, bearing No. G.O. (Rt) No.1934/2012/Home and dated 7th
January, 2013 bearing No.G.O. (Rt) No.43/2013/Home,
respectively. As a consequence of these orders, the appellant was
shown as junior to respondent No.1 in the cadre of Deputy
Superintendent of Police and Superintendent of Police (non-IPS),
respectively.
23. Thus, the appellant was justified in challenging the
impugned decision of the learned Single Judge dated 8th April,
2010 by way of subject writ appeals, because of the
consequential orders passed by the Competent Authorities
allocating notional date of promotion and assignment of seniority
to respondent No.1. The delay in filing writ appeals, in our view,
has been duly explained by the appellant. Further, the orders
passed by the Competent Authorities are the product of direction
given by the learned Single Judge. That will have to be effaced
as non-est consequent to setting aside of the untenable decision
of the learned Single Judge dated 8th April, 2010.
28
24. The fact that the subsequent decisions of the Competent
Authorities have not been specifically challenged by way of
substantive proceedings by the appellant, would not come in the
way of the appellant having succeeded in getting the order
dated 20th November, 2004 issued under the signature of
Additional Chief Secretary/Principal Secretary to Government of
Kerala, revived and restored. The authorities may have to re-visit
the case of respondent No.1 to allot him date of promotion in
terms of order dated 20th November, 2004 and restore his
seniority position in the cadre of Deputy Superintendent of Police
as 14th January, 2005 and correspondingly re-allocate the
notional date of promotion for the next promotion to the post of
Superintendent of Police (Non-IPS/IPS Cadres) respectively, if
respondent No.1 has completed the qualifying service period for
being considered for promotion thereto. We have no hesitation in
holding that merely because other officers similarly placed as
appellant have not questioned the impugned decision, will also
be no impediment in reviving and restoring the government order
dated 20th November, 2014 – as no prejudice will be caused to
them in so directing.
29
25. Having said this, it may not be necessary for us to dilate on
other issues raised by the appellant, including about the
interpretation of Rule 28 by the learned Single Judge and
upheld by the Division Bench of the High Court - that it is
mandatory to prepare a select list on year-to-year basis, as
expounded in the case of Union of India and Ors. Vs. Vipin
Chandra Hiralal Shah.8
We leave that and all other
contentions raised before the High Court or this Court, not
specifically answered in this judgment open. For, it is not
necessary for us to dwell upon the same and also to obviate
prolixity of the judgment.
26. Accordingly, we hold that the Division Bench has
completely glossed over the aforementioned legal position
regarding the efficacy of the punishment awarded to respondent
No.1 in 1997, which transcended to subsequent years,
overlapping with the check period of 1998, 1999 & 2000.
27. A priori, these appeals must succeed. The impugned
common judgment and order of the Division Bench of the High
Court of Kerala dated 31st January, 2014 in Writ Appeal Nos.953
and 1019 of 2013, and the judgment and order of the learned
Single Judge dated 8th April, 2010 in Writ Petition (C) No.7801 of
8 (1996) 6 SCC 721
30
2005 are set aside. As regards the impugned order dated 23rd
June, 2004, in our view, it gives a benign direction to the State
Authorities to consider the case of respondent No.1 in
accordance with law and nothing more. As a result, the order
issued by the Additional Chief Secretary, Government of Kerala,
Home (A) Department, dated 20th November, 2004 is revived and
restored and all subsequent consequential orders/notifications
issued in relation to the subject matter concerning the promotion
and seniority of respondent No.1 will stand effaced as non-est.
As a consequence, the concerned authorities must re-visit the
case of respondent No.1 and allot him the date of promotion and
seniority to the post of Deputy Superintendent of Police w.e.f.
14th January, 2005 and thereafter to re-allocate fresh notional
date of promotion to the next higher selection posts, namely,
Superintendent of Police (Non-IPS & IPS), as the case may be, if
and upon respondent No.1 fulfilling the eligibility and qualifying
service period therefor.
28. We direct the concerned authorities of the State
Government to complete the necessary formalities in furtherance
of this order within three months from today and issue
appropriate notification(s) as may be required in that regard.
31
29. The appeals are allowed in the above terms. No order as to
costs.
……………………………….CJI.
(Dipak Misra)
………………………………….J.
(A.M. Khanwilkar)
New Delhi;
October 04, 2017.

Delhi Tax Compliance Achievement Scheme, 2013 -“the Amnesty Scheme” = this Court has approached the issue arising in Grindlays Bank Ltd. (supra) we are of the view that Clause 8(3) of the Amnesty Scheme will have no application to the present case where the initial show cause notice was issued within time and its legitimacy was not contested by the respondent-Assessee. Had such legitimacy been questioned at the stage of reply or even in the course of the adjudication proceedings, there would still have been room/ time for the revenue to correct the error that had occurred. A rectified Notice could even have been issued after the order of adjudication was passed on 11th February, 2015. The close proximity of time between the reply submitted by the assessee to the Show 27 Cause Notice (27.01.2015) and the proceedings in adjudication Revenue on the one hand and the date of filing of the Writ Petition (4.3.2015) would permit us to infer that the conduct of the assessee in raising the issue in the writ petitions and not earlier was not entirely bonafide. The respondent-Assessee, therefore, cannot be allowed to take advantage of its own wrong. The courts exercising extraordinary jurisdiction cannot be understood to be helpless but concede to the assessee an undeserved victory over the Revenue.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).15605-15606 OF 2017
[Arising out of Special Leave Petition
(Civil) No.9631-9632 of 2017]
COMMISSIONER OF TRADE AND
TAXES AND ORS. ...APPELLANTS
VERSUS
M/S AHLUWALIA CONTRACTS
(INDIA) LTD. ...RESPONDENT
WITH
CIVIL APPEAL NO(S). 15608 OF 2017
[Arising out of Special Leave Petition
(Civil) No.10485 of 2017]
CIVIL APPEAL NO(S). 15607 OF 2017
[Arising out of Special Leave Petition
(Civil) No.9633 of 2017]
JUDGMENT
RANJAN GOGOI, J.
1. Leave granted.
2. A recital of the facts of the
Civil Appeals arising out of Special Leave
Petition (Civil) Nos.9631-9632 of 2017
alone are being made as the facts in the
other connected proceedings [i.e. Civil
Appeals arising out of Special Leave
2
Petition (Civil) Nos.10485/2017 and
9633/2017] are largely similar.
3. The challenge by the Revenue is to
an order of the High Court of Delhi by
which the High Court has allowed the writ
petitions filed by the respondents –
Assessees challenging the orders issued by
the Designated Authority i.e. Additional
Commissioner of Income Tax rejecting the
applications filed by the Respondent writ
petitioners under the Delhi Tax Compliance
Achievement Scheme, 2013 (hereinafter
referred to as “the Amnesty Scheme”),
details of which are noted below.
4. Under Section 107 of the Delhi
Value Added Tax Act, 2004 (hereinafter
referred to as “the DVAT Act”), the
Government of National Capital Territory
of Delhi (“GNCTD” for short) is empowered
to notify amnesty scheme(s) covering
payment of tax, interest, penalty or any
3
other dues under the DVAT Act relating to
any period ending before 1st April, 2013.
5. In exercise of powers under
Section 107 of the DVAT Act, an Amnesty
Scheme was notified by the GNCDT on 20th
September, 2013. Clause 2(c) of the
Amnesty Scheme which defines the
'designated authority'; clause 4 which
delineates the procedure for making
declaration and payment of tax dues;
clause 5 which deals with immunity from
interest, penalty and other proceedings;
and the provisions of clause 8 which deals
with the failure to make true declarations
would require a consideration of the
Court. The same are, therefore, reproduced
below for convenience:
“2(c) “designated authority”
means officer(s) not below the
rank of Joint Commisioner as
notified by the Commissioner,
Value Added Tax for the purposes
of this Scheme;
4
*** *** ***
4. Procedure for making
declaration and payment of tax
dues – (1) Subject to the other
provisions of this Scheme, a
person may make a declaration of
the tax dues to the designated
authority on or before the 31st
day of January 2014 in Form DSC-1
appended to this notification.
(2) The designated authority
shall acknowledge the receipt of
declaration in Form DSC-2
appended to this notification,
within a period of fifteen
working days from the date of
receipt of the declaration.
(3) The declarant shall pay not
less than fifty per cent of the
tax dues declared under
sub-clause (1) along with the
declaration and submit proof of
such payment to the designated
authority.
(4) The remaining amount of tax
dues or part thereof remaining to
be paid after adjusting the
payment made under sub-clause (3)
shall be paid by the declarant on
or before the 21st day of March,
2014.
(5) Notwithstanding anything
contained in sub-clause (3) and
sub-clause (4), any tax which
becomes due or payable by the
declarant for the tax period(s)
beginning from 1 day of April,
2013 and thereafter shall be paid
by him in accordance with the
provisions of the Act:
5
Provided that where an
unregistered dealer has made
declaration referred to in
sub-clause (1) of this clause,
such dealer shall obtain
registration and pay net tax for
the period from 1 day of April,
2013 to the date of regisration
and furnish return in Form
DVAT-16 for that period along
with proof of payment in Form
DVAT-20 to the designated
authority at the time of
furnishing of declaration under
this Scheme. Such a dealer shall
be eligible for immunity under
clause 5 ofteh Scheme for late
payment of such tax and
non-filing of return under the
Act.
(6) The declarant shall furnish
to the designated authority,
details of payment made from
time to time under this Scheme
along with a copy of
acknowledgement issued to him
under sub-clause (2).
(7) On furnishing the details
of full payment of declared tax
dues payable under sub-clause
(4), the designated authority
shall issue an acknowledgement of
discharge of such dues within
fifteen days to the declarant in
Form DSC-3 appended to this
notification.
(8) A dealer who has not taken
registration shall obtain
registration prior to filing of
declaration as referred in
6
sub-clause (1) of clause 4.
Likewise, a person who is
responsible for making deduction
of tax under section 36A of the
Act, shall obtain a Tax Deduction
Account Number (TAN), if not
already obtained.
*** *** ***
5. Immunity from interest,
penalty and other
proceedings.-(1) Notwithstanding
anything contained in any
provision of the Scheme, the
declarant, upon payment of the
tax dues declared by him under
sub-clause (1) of clause 4, shall
get immunity from penalty or
penalties, interest other than
interest payable in terms of
sub-clauses (2) and (4) of clause
3, prosecution or any other
proceedings under the Act or, as
the case may be, under the
Central Sales Tax Act, 1956 or
the erstwhile Delhi Sales Tax
Act, 1975 (43 of 1975) or the
Delhi Sales Tax on Works Contract
Act, 1999 (Delhi Act 9 of 1999)
or the Delhi Sales Tax on Right
to Use Goods Act, 2002 (Delhi Act
13 of 2002) or the Delhi Tax on
Entry of Motor Vehicles into
Local areas Act, 1994 (Delhi Act
4 of 1995), in relation to the
tax dues declared by the
declarant; and from penalty and
prosecution for non-registration
and non-furnishing of returns in
time.
Explanation.- For the purpose of
this sub-clause, the term
7
“declarant” shall include-
(i) in relation to the declarant
being a contractee, who has
awarded the works contract under
section 36A(1) of the Act, his
immediate contractor to whom he
has awarded the works contract,
to the extent of amount declared
by the contractee; and
(ii) in relation to the declarant
being a contractor, his immediate
contractee who has awarded the
works contract under section
36A(1) of the Act.
Explanation -For removal of
doubts, it is hereby declared
that, to avoid double taxation,
if the contractee has declared
tax dues, his immediate
contractor will also get immunity
to that extent, and vice-versa.
(2) Subject to the provisions of
clause 8, a declaration made
under sub-clause (1) of clause 4
shall become conclusive upon
issuance of acknowledgement of
discharge under sub-clause (7) of
clause 4 and no matter shall be
reopened/ reassessed/ reviewed
thereafter in any proceedings
under this Scheme or under the
Act before any authority or court
relating to the period covered by
such declaration to the extent of
tax dues declared by the
declarant.
(3) All statutory appeals/
revisions pending before
8
quasi-judcial forums upto the
stage of Tribunal shall be deemed
to have been withdrawn once the
Scheme is opted for. Further, all
matters pending in the High Court
and Supreme Court shall be
withdrawn by the declarant and he
will need to submit the
application filed for withdrawl
with the declaration. for the
case to be withdrawn before the
court.
(4) No proceeding shall be
instituted within 48 hours of
securing a registration,
provided, the registrant declares
his intent of opting under the
Scheme at the time of applying
for TIN/ TAN.
(5) The information gathered vide
a declaration under the scheme
shall be kept confidential and
shall not be used except under
the Scheme and the same shall not
be shared with any other person/
government department/agency.
*** *** ***
8. Failure to make true
declaration.- (1) Notwithstanding
anything contained in clause 5
of the Scheme, where the
Commissioner has, for a period
beginning from 1st April, 2009,
reasons to believe that the
declaration was false in material
particulars, he may, for reasons
to be recorded in writing, serve
notice on the declarant in
respect of such declaration
requiring him to show cause as to
why he should not be required to
9
pay the tax dues unpaid or
short-paid as per the provisions
of the Scheme.
(2) If the Commissioner is
satisfied, for reasons to be
recorded in writing, that the
declaration made by the dealer
was substantially false,
(i) he shall within three
months of service of notice under
sub-clause (1) make assessment of
tax and penalty under section 32
and 33 of the Act, as if that
dealer had never made declaration
under this Scheme. However, the
dealer shall be entitled to the
credit of tax paid by him under
this Scheme; and
(ii) such dealer may be
proceeded under sub-section (2)
of section 89 of the Act for
furnishing of false declaration.
(3) No notice shall be issued
under sub-clause (1) of this
clause after the expiry of one
year from the date of
declaration.”
6. There is no dispute between the
parties that on the basis of the
declaration filed by the respondent –
Assessee, the Designated Authority had
issued the “acknowledgement of discharge”
in favour of the respondent- Assessee.
10
However, on 16th January, 2015 a show cause
notice in exercise of powers under clause
8 of the Amnesty Scheme was issued by the
Additional Commissioner (Spl. Zone),
Department of Trade and Taxes, New Delhi
to which the respondent – Assessee
submitted its reply on 27th January, 2015.
In the reply so submitted, the respondent
– Assessee did not raise any question with
regard to the jurisdiction of the
Additional Commissioner to issue the show
cause notice under clause 8. The
adjudication was finalized by order dated
11th February, 2015 which was served to the
Assessee. The Assessee then filed the
writ petitions in question before the High
Court contending, inter alia, that the
show cause dated 16th January, 2015 was
unauthorized and without jurisdiction
inasmuch as the power to issue such notice
under clause 8 is vested with the
Commissioner and the same had not been
delegated to the Designated Authority i.e.
11
the concerned Additional Commissioner.
The said contention found favour with the
High Court. Accordingly, the writ
petitions filed by the respondents –
Assessees were allowed and the impugned
consequential proceedings were interfered
with. The High Court also took the view
that as under clause 8(3) of the Amnesty
Scheme show cause notice has to be issued
within one year of the date of declaration
which in the present case was made on 18th
February, 2014 and 28th February, 2014,
respectively, issuance of any
further/fresh show cause notice was time
barred. Aggrieved the Revenue is in
appeal before this Court.
7. Shri Maninder Singh, learned
Additional Solicitor General appearing for
the Revenue has vehemently contended that
the Government Order dated 30th April, 2014
contains a clear delegation of the power
under clause 8 of the Amnesty Scheme by
12
the Commissioner to the Designated
Authority. The power of disposal of the
application received under the Scheme,
according to the learned ASG, must
necessarily include the power to finalize
the matter after issuing the show cause
notice under clause 8 in an appropriate
case. Learned ASG has further urged that
under clause 4 the declarations are
required to be considered by the
Designated Authority i.e. the Additional
Commissioner. It is natural that the
power to reopen the cases concluded on
mistaken/suppressed facts must be
understood to have been available to the
Designated Authority at all times.
8. The above contentions are
contested by Shri S. Ganesh, learned
Senior Counsel appearing for the
respondents – Assessees who has urged that
keeping in mind the necessity of finality
of decisions under the Amnesty Scheme, the
13
power of reopening the concluded cases by
issuing show cause notices has been
conferred on a higher authority i.e. the
Commissioner. The said power has to be
distinguished from the power to decide an
application filed, which is vested in the
designated authority under Clause 4. It is
urged that in the present case the power
vested in the Commissioner under clause 8
has not been delegated to any other
authority, in the absence whereof, it was
not open for the Additional Commissioner
to issue the impugned show cause notice
dated 16th January, 2015. The fact that the
Assessee did not raise the issue of
jurisdiction before the Adjudicating
Authority would not clothe the Additional
Commissioner with the jurisdiction to
issue the show cause notice. As the said
issue is primarily a question of law which
goes to the root of the matter the
question could always have been raised
before the High Court. The same having
14
been so raised and answered by the High
Court, the answer provided needs to be
dealt with by this Court on merits and
ought not to be foreclosed merely on the
ground that the respondents – Assessees
had not raised the same in the course of
the adjudication of the show cause notice.
Learned Senior Counsel has referred to the
provisions of clause 8(3) of the Amnesty
Scheme to contend that the show cause
notice under clause 8 has to be issued
within one year of the date of
declaration/declarations and there is no
enabling provision to condone any delay
that has occurred or extend the time
stipulated by clause 8(3). As the period
of one year from the date of declaration
is long over, in the event this Court is
to hold that the impugned show cause
notice was issued by the Authority which
did not have the power and jurisdiction to
so act the question of issuance of any
fresh/revised notice does not arise.
15
9. On the rival contentions, two issues
arise for consideration in the present
appeal.
10. The first relates to the power and
jurisdiction of the Designated Authority
to issue the notice under clause 8 of the
Amnesty Scheme. Related, is whether, in
the present case, there has been any
delegation of the said power which is
vested in the Commissioner under the
aforesaid clause 8.
11. The second issue arising would depend
on an answer to the first, namely, if it
is to be held that the Designated
Authority is not empowered to act under
clause 8, whether a fresh notice under the
aforesaid clause of the scheme can still
be issued by the competent authority i.e.
the Commissioner or the delegatee of the
Commissioner.
16
12. What category of officers would come
within the expression “designated
authority” is contemplated by the
definition contained in clause 2 (c) of
the Amnesty Scheme. An Officer not below
the rank of Joint Commissioner as may be
notified by the Commissioner would be a
designated authority under the Scheme.
13. Clause 4 of the Scheme requires a
declaration of the tax due to be made to
the designated authority and, thereafter,
following the procedure prescribed by the
various sub-clauses of clause 4, the
Designated Authority is empowered to issue
the acknowledgment of discharge of dues
under clause 4 (7) of the Scheme.
14. Under clause 8 of the aforesaid
scheme, the Commissioner is vested with
the power, to be exercised for reasons
recorded in writing, to issue notice to
17
the assessee requiring him to show cause
as to why he should not pay the tax/ dues
unpaid or short paid as per the provisions
of the scheme. The power to issue the
notice under clause 8 is undoubtedly
vested with the Commissioner and not in
the Designated Authority. What is vested
in the Designated Authority is the power
under clause 4 of the Scheme which is the
power to hear and decide applications and
issue acknowledgments of discharge on due
satisfaction. The said power to hear and
decide applications, by no means, would
include the power to reopen a decided
matter which is what clause 8 specifically
contemplates. The Government order dated
30th April, 2014 relied upon by the Revenue
as a delegation of the power under clause
8, on a plain reading thereof, is only an
empowerment of a particular Additional
Commissioner of a particular Zone (a Zone
may have several Additional Commissioners)
to hear and decide applications filed
18
under the Scheme. The said G.O dated 30th
April, 2014 cannot be construed to be an
exercise of delegation of powers vested in
the Commissioner under Clause 8 to
Designated Authority. The plain language
contained in the said G.O is capable of
sustaining the above conclusion. We will,
therefore, have to hold that the
Additional Commissioner who had issued the
show cause notice under clause 8 in the
present case was not competent to do so
and on that basis we affirm the conclusion
of the High Court on the said question.
15. This will bring us to a consideration
of the second issue arising in the case
details of which have already been
mentioned in preceding paragraphs of the
present order.
16. The declarations in the present case
were issued to the assessee on 18th
19
February, 2014 and 28th February, 2014
respectively. The show cause notice under
Clause 8 was issued on 16th January, 2015.
The reply was submitted by the
respondent-assessee on 27th January, 2015.
The adjudication was completed by the
Order dated 11th February, 2015 against
which the respondent-Assessee filed a writ
petition before the High Court on 4th
March, 2015. In the reply filed by the
respondent-Assessee to the show cause
notice or in the proceedings pursuant
thereto, as already mentioned, no
objection was taken by the assessee to the
power and jurisdiction of the Additional
Commissioner to issue the notice in
question. The adjudication order,
therefore, did not deal with the said
issue. It is only after the period of one
year from the date of declaration was over
that the writ petition was filed wherein
the question of jurisdiction of the
Additional Commissioner was raised for the
20
first time. It is in these facts that the
High Court took the view that as the
period of limitation prescribed by Clause
8(3) was over, fresh proceedings stood
barred by time.
17. While it is correct that the failure
to raise the issue of jurisdiction by the
assessee will not necessarily clothe the
Additional Commissioner with the
jurisdiction if the same is not
contemplated by law, there are certain
aspects of the case which need to be
considered. Had the assessee raised the
question of jurisdiction in its reply or
in the course of the adjudication
proceedings there would have been still
time for the Commissioner to cure the
defect and issue a valid notice. Cases
under Amnesty Scheme would fall outside
the arena of ordinary and routine matters
and, therefore, it is possible to
attribute a genuine mistake on the part of
21
the Additional Commissioner in invoking
jurisdiction under Clause 8 of the Amnesty
Scheme. The question that looms large
before the Court is that whether in such a
situation the assessee should be allowed
to raise the question of limitation and
defeat the claim of the revenue to proceed
afresh in the matter on that basis.
18. Dealing with a somewhat similar
situation that arose before this Court in
Grindlays Bank Ltd. vs. Income Tax
Officer, Calcutta and Ors.1 it was observed
as follows in Para 7 of the report in the
following manner.
“7. The next point is whether the
High Court possessed any power to
make the order directing a fresh
assessment. The principal relief
sought in the writ petition was
the quashing of the notice under
Section 142(1) of the Income Tax
Act, and inasmuch as the assessment
order dated March 31, 1977
was made during the pendency of
the proceeding consequent upon a
purported non-compliance with that
notice, it became necessary to ob-
1 (1980) 2 SCC 191
22
tain the quashing of the assessment
order also. The character of
an assessment proceeding, of which
the impugned notice and the assessment
order formed part, being
quasi-judicial, the “certiorari”
jurisdiction of the High Court under
Article 226 was attracted. Ordinarily,
where the High Court exercises
such jurisdiction it
merely quashes the offending order
and the consequential legal effect
is that but for the offending order
the remaining part of the proceeding
stands automatically revived
before the inferior court or
tribunal with the need for fresh
consideration and disposal by a
fresh order. Ordinarily, the High
Court does not substitute its own
order for the order quashed by it.
It is, of course, a different case
where the adjudication by the High
Court establishes a complete want
of jurisdiction in the inferior
court or tribunal to entertain or
to take the proceeding at all. In
that event on the quashing of the
proceeding by the High Court there
is no revival at all. But although
in the former kind of case the
High Court, after quashing the offending
order, does not substitute
its own order it has power nonetheless
to pass such further orders
as the justice of the case
requires. When passing such orders
the High Court draws on its inherent
power to make all such orders
as are necessary for doing complete
justice between the parties.
The interests of justice require
that any undeserved or unfair advantage
gained by a party invoking
the jurisdiction of the court, by
23
the mere circumstance that it has
initiated a proceeding in the
court, must be neutralised. The
simple fact of the institution of
litigation by itself should not be
permitted to confer an advantage
on the party responsible for it.
The present case goes further. The
appellant would not have enjoyed
the advantage of the bar of limitation
if. notwithstanding his immediate
grievance against the notice
under Section 142(1) of the
Income Tax Act, he had permitted
the assessment proceeding to go on
after registering his protest before
the Income Tax Officer, and
allowed an assessment order to be
made in the normal course. In an
application under Section 146
against the assessment order, it
would have been open to him to
urge that the notice was unreasonable
and invalid and he was prevented
by sufficient cause from
complying with it and therefore
the assessment order should be
cancelled. In that event, the
fresh assessment made under Section
146 would not be fettered by
the bar of limitation. Section
153(3)(i) removes the bar. But the
appellant preferred the constitutional
jurisdiction of the High
Court under Article 226. If no order
was made by the High Court directing
a fresh assessment, he
could contend as is the contention
now before us, that a fresh assessment
proceeding is barred by
limitation. That is an advantage
which the appellant seeks to derive
by the mere circumstance of
his filing a writ petition. It
will be noted that the defect com-
24
plained of by the appellant in the
notice was a procedural lapse at
best and one that could be readily
corrected by serving an appropriate
notice. It was not a defect
affecting the fundamental jurisdiction
of the Income Tax Officer
to make the assessment. In our
opinion, the High Court was
plainly right in making the direction
which it did. The observations
of this Court in Director of
Inspection of Income Tax (Investigation)
New Delhi v. Pooran Mall &
Sons2 are relevant. It said:
The Court in exercising
its powers under Article
226 has to mould the remedy
to suit the facts of a
case. If in a particular
case a court takes the view
that the Income Tax Officer
while passing an order under
Section 132(5) did not
give an adequate opportunity
to the party concerned
it should not be left with
the only option of quashing
it and putting the party at
an advantage even though it
may be satisfied that on
the material before him the
conclusion arrived at by
the Income Tax Officer was
correct or dismissing the
petition because otherwise
the party would get an unfair
advantage. The power
to quash an order under Article
226 can be exercised
not merely when the order
sought to be quashed is one
made without jurisdiction
2 (1975) 4 SCC 568
25
in which case there can be
no room for the same authority
to be directed to
deal with it. But in the
circumstances of a case the
court might take the view
that another authority has
the jurisdiction to deal
with the matter and may direct
that authority to deal
with it or where the order
of the authority which has
the jurisdiction is vitiated
by circumstances like
failure to observe the
principles of natural justice
the court may quash
the order and direct the
authority to dispose of the
matter afresh after giving
the aggrieved party a reasonable
opportunity of
putting forward its case.
Otherwise, it would mean
that where a court quashes
an order because the principles
of natural justice
have not been complied
with, it should not while
passing that order permit
the tribunal or the authority
to deal with it again
irrespective of the merits
of the case.
The point was considered by the
Calcutta High Court in Cachar Plywood
Ltd. v. ITO3 and the High
Court, after considering the provisions
of Section 153 of the Income
Tax Act, considered it appropriate.
while deposing of the writ
petition, to issue a direction to
3 (1978) 114 ITR 379 (Cal)
26
the Income Tax Officer to complete
the assessment which, but for the
direction of the High Court, would
have been barred by limitation.”
19. Having considered the matter and the
manner in which this Court has approached
the issue arising in Grindlays Bank Ltd.
(supra) we are of the view that Clause
8(3) of the Amnesty Scheme will have no
application to the present case where the
initial show cause notice was issued
within time and its legitimacy was not
contested by the respondent-Assessee. Had
such legitimacy been questioned at the
stage of reply or even in the course of
the adjudication proceedings, there would
still have been room/ time for the revenue
to correct the error that had occurred. A
rectified Notice could even have been
issued after the order of adjudication was
passed on 11th February, 2015. The close
proximity of time between the reply
submitted by the assessee to the Show
27
Cause Notice (27.01.2015) and the
proceedings in adjudication Revenue on the
one hand and the date of filing of the
Writ Petition (4.3.2015) would permit us
to infer that the conduct of the assessee
in raising the issue in the writ petitions
and not earlier was not entirely bonafide.
The respondent-Assessee, therefore, cannot
be allowed to take advantage of its own
wrong. The courts exercising extraordinary
jurisdiction cannot be understood to be
helpless but concede to the assessee an
undeserved victory over the Revenue. The
power of the High Court under Article 226
of the Constitution, wide and pervasive as
it is, should have enabled the High Court
to appropriately deal with the situation
and issue consequential directions
permitting initiation of fresh
proceedings, if the Revenue was so
inclined. The High Court having failed to
so act, we now correct the error and issue
directions to enable the Revenue to issue
28
a fresh notice to the assessee under
clause 8 of the Amnesty Scheme, if it so
desires and is so advised.
20. In the light of the foregoing, we
allow these appeals in terms of the
directions as above and set aside the
order of the High Court impugned in the
appeals.
....................,J.
(RANJAN GOGOI)
....................,J.
(NAVIN SINHA)
NEW DELHI
OCTOBER 4, 2017

Section 7 of the Essential Commodities Act, 1955 and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.500/- each and in case of default, they were directed to undergo a further imprisonment for a period of 15 days= we are of the view that the appellants should have been dealt with under Section 360 Cr.P.C. The ends of justice would be met by granting the benefit of Probation of Offenders Act, 1958 to the appellants. We order accordingly.

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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURSIDCITON
CRIMINAL APPEAL NO. 1760 OF 2009
DHURUKUMAR S/O RADHAKISHAN
PITTI & ANR. … APPELLANTS
VERSUS
THE STATE OF MAHARASHTRA …RESPONDENT
J U D G M E N T
S.ABDUL NAZEER, J.
1. The appellants were convicted by the trial court under
Section 7 of the Essential Commodities Act, 1955 and sentenced
to undergo rigorous imprisonment for three months and to pay a
fine of Rs.500/- each and in case of default, they were directed to
undergo a further imprisonment for a period of 15 days. The
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High Court upheld the conviction and sentence of fine. The
appellants have challenged the legality and correctness of the
said judgment in this appeal.
2. Having heard learned counsel for the parties, we do not find
any ground to interfere with the judgment of the High Court. At
this stage, learned counsel for the appellants submitted that the
appellants are the first offenders. Therefore, the appellants may
be dealt with under Section 360 of the Code of Criminal
Procedure, 1908. It is true that the appellants do not have
antecedents of offender. Both of them are the first offenders.
Having regard to the facts and circumstances of the case, we are
of the view that the appellants should have been dealt with under
Section 360 Cr.P.C. The ends of justice would be met by granting
the benefit of Probation of Offenders Act, 1958 to the appellants.
We order accordingly. Hence, the appeal is allowed in part and
while upholding the conviction and sentence of fine awarded to
the appellants, sentence of imprisonment awarded against them
is set aside and the trial court is directed to deal with them under
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the provisions of Section 360 of the Code of Criminal Procedure,
1908.
………………………………J.
(R.K. AGRAWAL)
………………………………J.
(S. ABDUL NAZEER)
New Delhi;
October 4, 2017.