corporate laws - income tax "Prasar Bharati Doordarshan Kendra".- failed to deduct the "tax at source" = the provisions of Section 194H are applicable to the payments made by the appellant to the Agencies during the period in question because the payments made were in the nature of “commission” paid to the Agencies as defined in Explanation appended to Section 194H of the Act and since the appellant failed to deduct the “tax at source” while making these payments to the Agencies in terms of the agreement in question, they committed default of non-compliance of Section 194H resulting in attracting the provisions of Section 201 of the Act. = In our opinion, the Allahabad High Court very rightly noticed the distinction between the facts in the case of Jagaran Prakashan Ltd. (supra) and the case with which we are concerned in these appeals and held that it depends upon the facts of each case to decide as to what is the nature of payment made by the party concerned. Their Lordships rightly noticed that the case before them (Jagaran Prakashan Ltd.) did not have any agreement like the one in this case wherein in terms of the agreement, it is unmistakably proved that the payment was being made by the appellant (assessee) to the agencies by way of “commission”. In our view, therefore, the decision of the Allahabad High Court is of no help to the case of the appellant for taking a different view.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 3496-3497 OF 2018
(Arising out of S.L.P.(C) Nos.3320-3321 of 2011)
The Director, Prasar Bharati ….Appellant(s)
VERSUS
Commissioner of Income Tax,
Thiruvananthapuram …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Delay condoned.
2. Leave granted.
3. These appeals are directed against the final
judgment and order dated 20.11.2009 passed by
the High Court of Kerala at Ernakulam in Income
Tax Appeal No.27 of 2009 and Income Tax Appeal
No.62 of 2009 whereby the High Court allowed the
appeals preferred by the respondent herein and
1
reversed the order dated 28.03.2007 passed by the
Income Tax Appellate Tribunal, Cochin Bench in
Income Tax Appeal Nos. 926 & 927/COCH/2005 for
the Assessment Years 2002-2003 and 2003-2004
and restored the order dated 04.03.2005 passed by
the Commissioner of Income Tax(Appeals)-II,
Thiruvananthapuram and the order dated
22.09.2003 passed by the Assessing Officer.
4. In order to appreciate the issue involved in
these appeals, it is necessary to set out the facts
hereinbelow.
5. The appellant is known as "Prasar Bharati
Doordarshan Kendra". It functions under the
Ministry of Information and Broadcasting,
Government of India. The dispute in this case
relates to the appellant's Regional Branch at
Trivandrum.
6. The appellant, in the course of their business
activities, which include the running of the TV
channel called "Doordarshan", has been regularly
2
telecasting advertisements of several consumer
companies.
7. With a view to have a better regulation of the
practice of advertising and to secure the best
advertising services for the advertisers, the
appellant entered into an agreement with several
advertising agencies (Annexure-P-12).
8. In terms of the agreement, the advertising
agency (hereinafter referred to as "the Agency") was
required to make an application to the appellant to
get the "accredited status" for their Agency so as to
enable them to do business with the appellant of
telecasting the advertisements of several consumer
products manufactured by several companies on
the appellant's Doordarshan TV Channel.
9. The agreement, inter alia, provided that the
appellant would pay 15% by way of commission to
the Agency. The Agency was to retain the
commission/remuneration earned and not to part
the same either directly or indirectly with any other
3
person, advertiser or representative of any
advertiser for whom it may be acting or has acted as
an advertising agency. The agreement also provided
the manner, mode and the time within which the
payment was to be made by the Agency to the
appellant. The failure to make the payment was to
result in losing the accredited status by the Agency.
The Agency was to give minimum annual business
of Rs.6 Lakhs to the appellant in a financial year
failing which their accredited status was liable to be
withdrawn. The Agency was to furnish a bank
guarantee for a sum of Rs.3 Lakhs. There are other
clauses also in the agreement but they are not
relevant for the purpose of disposal of these
appeals.
10. The appellant is an assessee under the Income
Tax Act (hereinafter referred to as “the Act”). In the
assessment year 2002-2003(01.06.2001 to
31.03.2002) and 2003-2004 (01.04.2002 to
31.03.2003), the appellant paid a sum of
4
Rs.2,56,75,165/- and Rs.2,29,65,922/- to various
accredited Agencies, with whom they had entered
into the aforementioned agreement for telecasting
the advertisements given by these Agencies relating
to products manufactured by several consumer
companies. The amount was paid by the appellant
to the Agencies towards the commission in terms of
the agreement.
11. The question arose before the Assessing Officer
(AO) in the assessment proceedings as to whether
the provisions of Section 194H of the Act, which
came into force with effect from 01.06.2001, are
applicable to the payments in question made by the
appellant to the Agencies and, if so, whether the
appellant deducted "tax at source" as provided
under Section 194H of the Act from the amount
paid by the appellant to the Agencies.
12. The AO made the assessment vide its order
dated 22.09.2003. Insofar as the aforementioned
question was concerned, the AO was of the view
5
that the provisions of Section 194H of the Act are
applicable to the payments made by the appellant to
the Agencies because the payments were made in
the nature of “commission” as defined in
Explanation appended to Section 194H of the Act.
The AO held that the appellant, therefore,
committed default thereby attracting the rigor of
Section 201(1) of the Act because they failed to
deduct the "tax at source" from the amount paid to
various advertising agencies during the Assessment
Years in question as provided under Section 194A of
the Act.
13. On quantification, the AO found that during
the Assessment Year 2002-2003, the appellant had
paid a sum of Rs.2,56,75,165/- towards the
commission to the Agencies and on this sum, they
were required to deduct tax amount to
Rs.16,34,283/- and a sum of Rs.3,80,611/- towards
interest for delayed payment under Section 201(1-A)
of the Act and during the Assessment Year
6
2003-2004, the appellant had paid a sum of
Rs.2,29,65,922/- towards the commission to the
Agencies and on this sum, they were required to
deduct tax amounting to Rs.11,15,944/- and a
sum of Rs.1,54,050/- towards interest for delayed
payment under Section 201(1-A) of the Act.
14. The appellant felt aggrieved and filed appeals
before the Commissioner of Income Tax (Appeals)-II,
Thiruvanathapuram. By order dated 04.03.2005,
the Commissioner concurred with the reasoning
and conclusion arrived at by AO and accordingly
dismissed the appeals.
15. The appellant felt aggrieved and filed appeals
before the Tribunal. By order dated 28.03.2007, the
Tribunal following its earlier order allowed the
appeals and set aside the orders passed by AO and
CIT (Appeals).
16. The Revenue (Income Tax Department), felt
aggrieved by the order passed by the Tribunal, filed
appeals under Section 260-A of the Act in the High
7
Court. By impugned judgment, the High Court
allowed the appeals and while setting aside the
Tribunal's order restored the order of CIT (Appeals)
and AO.
17. The High Court was of the opinion that the
provisions of Section 194H are applicable to the
payments made by the appellant to the Agencies
during the period in question because the payments
made were in the nature of “commission” paid to the
Agencies as defined in Explanation appended to
Section 194H of the Act and since the appellant
failed to deduct the “tax at source” while making
these payments to the Agencies in terms of the
agreement in question, they committed default of
non-compliance of Section 194H resulting in
attracting the provisions of Section 201 of the Act.
18. The appellant (assessee) felt aggrieved and filed
these appeals by way of special leave in this Court.
8
19. Heard Mr. Rajeev Sharma, learned counsel for
the appellant and Mr. Rupesh Kumar, learned
counsel for the respondent.
20. Submissions of learned counsel for the
appellant (assesse) were two-fold. In the first place,
he argued that the payments made by the appellant
to the accredited agencies during the assessment
years in question were not in the nature of
commission. According to learned counsel, the
relationship between the appellant and the
accredited Agencies was not that of principal and
the agent but it was in the nature of
principal-to-principal. In other words, the
submission was that the accredited agencies were
not working as agent of the appellant and nor the
appellant was paying them any amount by way of
commission.
21. Referring to the terms of the agreement,
learned counsel tried to point out that the Agencies,
in terms of the agreement, purchased the air time
9
from the appellant and then sold it in the market for
advertisement to their customer after retaining 15%
commission given to them by the appellant. It was,
therefore, his submission that such transaction
cannot be regarded as being between the principal
and agent and nor the payment can be regarded as
having been made by way of commission so as to
attract the rigor of Section 194H and Section 201 of
the Act.
22. Learned counsel also submitted that by
mistake some other format of the agreement was
placed by the appellant before the High Court and,
therefore, the appellant suffered adverse order in
question (see averments made in Paras 4 and 5 of
the application seeking permission to file additional
documents at page 134/135). Learned counsel then
took us to the relevant provisions of the proper
agreement filed in this Court as Annexure P-12 and
contended that having regard to the nature of the
10
agreement and its terms, the submission urged
deserves acceptance.
23. In reply, learned counsel for the respondent
(Revenue) supported the impugned judgment and
contended that the order passed by the AO, CIT
(Appeals) and the impugned judgment deserve to be
upheld as all the three orders are based on proper
reasoning calling no interference.
24. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in these appeals.
25. Section 194H, which is relevant for the
disposal of these appeals reads as under:
“194H. Commission or brokerage-Any person
not being an individual or a Hindu undivided
family, who is responsible for paying, on or
after the 1st day of June, 2001, to a resident,
any income by way of commission (not being
insurance commission referred to in section
194D) or brokerage, shall, at the time of
credit of such income to the account of the
payee or at the time of payment of such
income in cash or by the issue of a cheque or
draft or by any other mode, whichever is
earlier, deduct income-tax thereon at the rate
of five per cent.
11
Provided that no deduction shall be
made under this section in a case where the
amount of such income or, as the case may
be, the aggregate of the amounts of such
income credited or paid or likely to be
credited or paid during the financial year to
the account of, or to, the payee, does not
exceed fifteen thousand rupees.
Provided further that an individual or a
Hindu undivided family, whose total sales,
gross receipts or turnover from the business
or profession carried on by him exceed the
monetary limits specified under clause (a) or
clause (b) of section 44AB during the
financial year immediately preceding the
financial year in which such commission or
brokerage is credited or paid, shall be liable
to deduct income-tax under this section.
Provided also that no deduction shall be
made under this section on any commission
or brokerage payable by Bharat Sanchar
Nigam Limited or Mahanagar Telephone
Nigam Limited to their public all office
franchisees.
Explanation- For the purposes of this
section,-
(i) “commission or brokerage” includes
any payment received or receivable, directly
or indirectly, by a person acting on behalf of
another person for services rendered (not
being professional services) or for any
services in the course of buying or selling of
goods or in relation to any transaction
relating to any asset, valuable article or
thing, not being securities;
(ii) the expression “professional services”
means services rendered by a person in the
course of carrying on a legal, medical,
engineering or architectural profession or the
profession of accountancy or technical
consultancy or interior decoration or such
12
other profession as is notified by the Board
for the purposes of section 44AA;
(iii) the expression “securities” shall have
the meaning assigned to it in clause (h) of
section 2 of the Securities Contracts
(Regulation) Act, 1956 (42 of 1956);
(iv) where any income is credited to any
account, whether called “suspense account’
or by any other name, in the books of
account of the person liable to pay such
income, such crediting shall be deemed to be
credit of such income to the account of the
payee and the provisions of this section shall
apply accordingly.”
26. The aforementioned Section was inserted in
the Act with effect from 01.06.2001 by replacing the
earlier Section 194H. This Section deals with the
payment of "commission or brokerage".
27. It provides that any person other than
individual or HUF, responsible for paying any
income by way of “commission” (not being insurance
commission as specified in Section 194D) or
"brokerage" to any person shall at the time of credit
of such income to the account of payee or at the
time of payment of such income in cash or by
cheque or draft or any other mode will deduct
13
income tax thereon at the rate of five percent. The
first proviso specifies the limit. The second proviso
makes the individual or HUF liable to deduct the
income tax, if they exceed the limit specified therein.
The third proviso exempts payment of commission
or brokerage when made to BSNL and MTNL to their
public call office franchisees.
28. The Explanation appended to Section 194H
defines the expression "commission or brokerage". It
is an inclusive definition and includes therein any
payment received or receivable, directly or indirectly
by a person acting on behalf of another person for
services rendered (not being professional services) or
for any services in the course of buying or selling of
goods or in relation to any transaction relating to
assets, valuable article or thing not being securities.
Clause (ii) defines professional services; clause (iii)
defines securities; and clause (iv) provides a
deeming fiction for treating any income so as to
14
attract the rigor of the Section for ensuring its
compliance.
29. Keeping in mind the requirements of Section
194H when we examine the transaction in question,
we are of the considered view that the reasoning
and the conclusion arrived at by the AO, CIT
(Appeals) and the High Court appears to be just and
proper and does not call for any interference.
30. In other words, in our considered view, the
High Court was right in holding that the provisions
of Section 194H are applicable to the appellant
because the payments made by the appellant
pursuant to the agreement in question were in the
nature of payment made by way of "commission"
and, therefore, the appellant was under statutory
obligation to deduct the income tax at the time of
credit or/and payment to the payee.
31. The aforementioned conclusion of the High
Court is clear from the undisputed facts emerging
from the record of the case because we notice that
15
the agreement itself has used the expression
"commission" in all relevant clauses; Second, there
is no ambiguity in any clause and no complaint was
made to this effect by the appellant; Third, the
terms of the agreement indicate that both the
parties intended that the amount paid by the
appellant to the agencies should be paid by way of
“commission” and it was for this reason, the parties
used the expression "commission" in the
agreement; Fourth, keeping in view the tenure and
the nature of transaction, it is clear that the
appellant was paying 15% to the agencies by way of
“commission” but not under any other head; Fifth,
the transaction in question did not show that the
relationship between the appellant and the
accredited agencies was principal to principal rather
it was principal and Agent; Sixth, it was also clear
that payment of 15% was being made by the
appellant to the agencies after collecting money
from them and it was for securing more
16
advertisements for them and to earn more business
from the advertisement agencies; Seventh, there
was a clause in the agreement that the tax shall be
deducted at source on payment of trade discount;
and lastly, the definition of expression "commission"
in the Explanation appended to Section 194H being
an inclusive definition giving wide meaning to the
expression “commission", the transaction in
question did fall under the definition of expression
“commission” for the purpose of attracting rigor of
Section 194H of the Act.
32. For all these reasons, we find no difficulty in
holding that the payment in question was in the
nature of "commission" paid by the appellant to the
advertisement agencies to secure more business for
the appellant.
33. Once it is held that the provisions of Section
194H apply to the transactions in question, it is
obligatory upon the appellant to have deducted the
income tax while making payment to the
17
advertisement agencies. The non-compliance of
Section 194H by the assessee attracts the rigor of
Section 201 which provides for consequences of
failure to deduct or pay the tax as provided under
Section 194H of the Act.
34. In our view, the provisions of Section 201 were,
therefore, rightly invoked in this case against the
appellant by the assessing authority once having
held that the appellant failed to comply with the
provisions of Section 194H of the Act.
35. Learned counsel for the appellant (assessee)
placed reliance on the decision of the Allahabad
High Court in Jagran Prakashan Ltd vs. Deputy
Commissioner of Income Tax(TDS), (2012)345 ITR
288 in support of his submission.
36. On perusal of the said judgment, we find that
the law laid down by the Allahabad High Court is
not applicable to the facts of the case at hand and
the learned Judges rightly distinguished the case at
hand with the facts involved in the Allahabad case.
18
The learned Judges of the Allahabad High Court in
Paras 61 and 62 of the judgment dealt with the
impugned judgment with which we are concerned in
these appeals and distinguished it in the following
words:
“61. Now we come to the judgment of the
Kerala High Court in the case of CIT vs.
Director, Prasar Bharti reported in (2010) 325
ITR 205(ker.) on which much reliance has
been placed by the assessing authority. The
Prasar Bharati is fully owned Government of
India undertaking engaged in telecast of
news, various sports, entertainments,
cinemas and other programmes. The
advertisements were canvassed through
agents under the agreement with them. The
advertising agencies and the Director, Prasar
Bharati were principal and agent as per the
agreement and the Doordarshan provided
15% discount on the basis of which it was
contended that no deduction at source was
required. The Tribunal held that there was no
liability for deduction of tax at source under
Section 194H which judgment was reversed
by the Kerala High Court. From the facts of
the aforesaid case, it is clear that
Doordarshan had appointed agents i.e.
advertising agencies and there was
agreement entered between them. In the
aforesaid circumstances, 15% advertisement
charges collected and remitted was held to be
in the form of commission payable to the
agent by Doordarshan. There was explicit
agreement between the agency and the
Doordarshan where both understood that
payment made to the agency was liable to tax
deduction. It is useful to quote the following
observations of the judgment of Kerala High
Court:-
19
………………………………………………………………
………………………………………………………………
From the above, it is very clear that parties
have understood their relationship as
Principal and Agent and what is paid to the
agent by Doordarshan is 15% of
advertisement charges collected and remitted
to it by the agent which is in the form of
commission payable to the Agent by
Doordarshan. Counsel for the respondent
referred to one of the agreements where the
commission is referred to as standard
discount and contended that the
arrangement between respondent and
advertising agency is not agency but is a
Principal to Principal arrangement of sharing
advertisement charges. We are unable to
accept this contention because
advertisement contract entered into between
the customer and the agency is for
telecasting advertisement in Doordarshan
channels. The agent canvasses advertisement
on behalf of Doordarshan under agreement
between them and the advertisement charges
recovered from the customers are also in
accordance with tariff prescribed by
Doordarshan which is incorporated in the
agreement. Further it is specifically stated in
the agreement that advertisement material
should also conform to the discipline
introduced by Doordarshan which is nothing
but a Government agency which cannot
telecast all what is desired to be telecast by
advertising agencies. In fact, Doordarshan is
bound by advertisement contract canvassed
by advertising agencies and it is their duty
under the agreement between them and the
advertising agencies to telecast
advertisement material in terms of the
contract which the agency signs with the
customer. In our view, the transaction is a
pure agency arrangement between the
respondent and the advertising agencies
because one acts for the other and the act of
the agent binds the respondent in their
20
capacity as Principal of the agent. It is
pertinent to note that commission or
brokerage defined under explanation (i) to
Section 194H has a wide meaning and it
covers any payment received or receivable
directly or indirectly by a person acting on
behalf of another person for services
rendered. In this case, no one can doubt that
15% commission paid to advertising agencies
by the Doordarshan is for canvassing
advertisements on behalf of the respondent.
So much so, the payment of 15%, by
whatever name called, whether discount or
commission, falls within the definition of
"commission" as defined under Explanation
(i) to Section 194H of the Act.
………………………………………………………………
………………………………………………………………
It is very clear from the above provision
that the advertising agency clearly
understood the agreement as an agency
arrangement and the commission payable by
the respondent to such agency is subject to
tax deduction at source under the Income
Tax Act and so much so the provision in the
agreement was for the agent after retaining
15% to give cheque or demand draft for TDS
amount which was originally 5% until it was
enhanced to 10% by Finance Act 2007 with
effect from 1.6.2007.
62. In the aforesaid case, the relationship of
principal and agent was fully established
since the advertising agency was appointed
as agent by written agreement and there was
specific clause that tax shall be deductible at
source on payment of trade discount. In the
said circumstances, the Kerala High Court
held that Section 194H of the Income Tax
Act was applicable. In the present case, there
is no agreement between the petitioner and
the advertising agency and the advertising
agency has never been appointed as agent of
the petitioner. Thus the above case of the
Kerala High Court is clearly inapplicable and
21
the reliance on the said judgment for
fastening the liability of tax and interest on
the petitioner is wholly untenable. The
judgment of the Kerala High Court thus does
not help the respondents in the present
case.”
37. In our opinion, the Allahabad High Court very
rightly noticed the distinction between the facts in
the case of Jagaran Prakashan Ltd. (supra) and the
case with which we are concerned in these appeals
and held that it depends upon the facts of each case
to decide as to what is the nature of payment made
by the party concerned. Their Lordships rightly
noticed that the case before them (Jagaran
Prakashan Ltd.) did not have any agreement like
the one in this case wherein in terms of the
agreement, it is unmistakably proved that the
payment was being made by the appellant
(assessee) to the agencies by way of “commission”.
In our view, therefore, the decision of the Allahabad
High Court is of no help to the case of the appellant
for taking a different view.
22
38. In the light of the foregoing discussion, we
concur with the reasoning and the conclusion
arrived at by the High Court and find no merit in
these appeals. The appeals thus fail and are
accordingly dismissed.

………...................................J.
[R.K. AGRAWAL]
 ...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
April 03, 2018
23

Use of videography of the scene of crime - guidelines = wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence was held to be admissible subject to safeguards adopted by the Court about the authenticity of the same. In the case of tape-recording it was observed that voice of the speaker must be duly identified, accuracy of the statement was required to be proved by the maker of the record, possibility of tampering 5 was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL)NO. 2302 OF 2017
SHAFHI MOHAMMAD …Petitioner
Versus
THE STATE OF HIMACHAL PRADESH …Respondent
WITH
SPECIAL LEAVE PETITION (CRIMINAL)NO. 9431 OF 2011
(Ravinder Singh @ Kaku versus The State of Punjab)
AND
SPECIAL LEAVE PETITION (CRIMINAL)NOS.9631-9634 OF 2012
(The State of Punjab versus Ravinder Singh @ Kaku and Anr.)
O R D E R
SLP(Crl.)No.2302 of 2017
1. Use of videography of the scene of crime is the subject
matter of consideration herein. We may note the proceedings in
the case on earlier hearings. In order dated 25th April, 2017, it
was observed:
1
“Mr. A.N.S. Nadkarni, Additional Solicitor General,
has accordingly put in appearance and made his
submissions. He has also submitted a note to the
effect that such videograph will indeed help the
investigation and such concept is being used in
some other advanced countries. The National
Institute of Justice which is an agency of U.S.
Department of Justice in its report has noted the
perceived benefits for using the “Body-Worn
Cameras” and also the precautions needed in
doing so. The British Transport Police has also
found body worn cameras as deterrent against
anti-social behaviour and tool to collect
evidence. He also referred to judgment of this
Court in Karnail Singh Vs. State of Haryana,
(2009) 8 SCC 539 wherein reference to use of
technology during search and seizure under
Narcotic Drugs and Psychotropic Substances Act,
1985 has been made. Reference has also been
made to Information Technology Act
(Amendment) 2006, particularly, Section 79A. In
(1976) 2 SCC 17, Ziyauddin Burhanuddin Bukhari
Vs. Brijmohan Ramdass Mehra & Ors., this Court
noted that new techniques and devices are the
order of the day. Audio and video tape
technology has emerged as a powerful medium
through which a first hand information can be
gathered and can be crucial evidence.
Learned Additional Solicitor General has also
drawn our attention to the Field Officers'
Handbook issued by the Narcotics Control
Bureau, Ministry of Home Affairs, Government of
India, inter-alia, suggesting that logistic support
be provided to the search teams. It further
suggests that all recovery and concealment
methods should be videographed
simultaneously. The said handbook 3 also
suggests that permission should be taken under
Section 52A of the Narcotic Drugs and
Psychotropic Substances Act, 1985 for pretrial
disposal of the contraband. Further, reference
2
has been made to the Narcotic Drugs and
Psychotropic Substances (Amendment) Bill, 2016
moved by a private member in the Lok Sabha.
He submits that in his view such Bill will advance
the interests of justice and he will advice the
Government of India to consider and oversee
adoption for these measures in the Country by
investigating agencies.
Mr. A.I. Cheema, learned Amicus points out that
Second Proviso to Section 54A of the Cr.P.C.
provides for videography of identification
process in circumstances specified in the said
provision. He also stated that there should be
videography of confessional statement under
Section 164 Cr.P.C. He states that such measures
can also be adopted for recording dying
declarations, identification processes and the
post-mortem.
Since, we find that at the ground level these
measures have not been fully adopted, we direct
the Home Secretary, Government of India to
ascertain from different Investigating Agencies
to how far such measures can be adopted and
what further steps be taken to make use of
above technology for effective investigation and
crime prevention.”
2. Thereafter, in the order dated 12th October, 2017
consideration of the matter was as follows:
“Mr. A.N.S. Nadkarni, learned Additional Solicitor
General, has filed a note stating that the matter
was discussed by the Union Home Secretary with
the Chief Secretaries of the States. A decision
was taken to constitute a Committee of Experts
(COE) to facilitate and prepare a report to
formulate a road-map for use of videography in
crime investigation and to propose a Standard
3
Operating Procedure (SOP). The Committee has
held its meetings. The response of the States is
in support of use of videography. The Central
Investigation Agencies have also supported the
said concept. However, certain reservations have
been expressed in the implementation such as
funding, securing the data and storage of the
same. It has also been submitted that the
production and admissibility of evidence are also
issues which may need to be addressed.
We had requested Mr. Jayant Bhushan, learned
senior counsel, to assist the court who has also
submitted a note to the effect that videography
will be a beneficial step for effective prosecution
subject to the issue of admissibility being
resolved to make the use of videography
compatible and useful. He also submitted that
the direction ought to be issued for use of
videography in investigation and such use be
made mandatory.
We have also requested Mr. Arun Mohan, learned
senior counsel, present in the Court, to assist the
Court on the subject as amicus. He submitted
that equipments which may be useful for
scientific investigation have been suggested in
certain publications on the subject. A copy each
of the said 3 publications has been furnished to
Mr. Nadkarni so that the same can be considered
by the Committee of Experts. He submitted that
still photography may be more useful as it
enables much higher resolution for forensic
analysis. Digital camera can be placed on a
mount on a tripod which may enable rotation
and tilting. Secured portals may be established
to which Investigation Officer can e-mail
photographs taken at the crime scene. To give
authenticity and prevent manipulation, digital
images can be retained on State’s server as
permanent record. The State server can re-mail
the digital files back to the police station for
4
further use. Special cameras may be selected by
the BPR&D. Till this is done, smart-phones can
also be used. BPR&D may prepare a guidance
manual for the Investigation Officers for crime
scene photography and video recording of
statements of witnesses. He stated that a further
note on the subject may be submitted by him.”
3. In order dated 30th January, 2018 it was observed:
“(3) We have been taken through certain decisions
which may be referred to. In Ram Singh and Others
v. Col. Ram Singh, 1985 (Supp) SCC 611, a ThreeJudge
Bench considered the said issue. English
Judgments in R. v. Maqsud Ali, (1965) 2 All ER 464,
and R. v. Robson, (1972) 2 ALL ER 699, and American
Law as noted in American Jurisprudence 2d (Vol.29)
page 494, were cited with approval to the effect that
it will be wrong to deny to the law of evidence
advantages to be gained by new techniques and new
devices, provided the accuracy of the recording can
be proved. Such evidence should always be regarded
with some caution and assessed in the light of all the
circumstances of each case. Electronic evidence was
held to be admissible subject to safeguards adopted
by the Court about the authenticity of the same. In
the case of tape-recording it was observed that voice
of the speaker must be duly identified, accuracy of
the statement was required to be proved by the
maker of the record, possibility of tampering 5 was
required to be ruled out. Reliability of the piece of
evidence is certainly a matter to be determined in
the facts and circumstances of a fact situation.
However, threshold admissibility of an electronic
evidence cannot be ruled out on any technicality if
the same was relevant.
(4) In Tukaram S. Dighole v. Manikrao Shivaji Kokate,
(2010) 4 SCC 329, the same principle was reiterated.
This Court observed that new techniques and
devices are order of the day. Though such devices
are susceptible to tampering, no exhaustive rule
could be laid down by which the admission of such
evidence may be judged. Standard of proof of its
5
authenticity and accuracy has to be more stringent
than other documentary evidence.
 (5) In Tomaso Bruno and Anr. v. State of Uttar
Pradesh, (2015) 7 SCC 178, a Three-Judge Bench
observed that advancement of information
technology and scientific temper must pervade the
method of investigation. Electronic evidence was
relevant to establish facts. Scientific and electronic
evidence can be a great help to an investigating
agency. Reference was made to the decisions of this
Court in Mohd. Ajmal Amir Kasab v. State of
Maharashtra, (2012) 9 SCC 1 and State (NCT of
Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.”
4. On the issue of interpretation of Section 65B(4) of the
Evidence Act with regard to the admissibility of the electronic
evidence it was observed :
“12. Accordingly, we clarify the legal position on
the subject on the admissibility of the electronic
evidence, especially by a party who is not in
possession of device from which the document is
produced. Such party cannot be required to
produce certificate under Section 65B(4) of the
Evidence Act. The applicability of requirement of
certificate being procedural can be relaxed by
Court wherever interest of justice so justifies.
13. To consider the remaining aspects,
including finalization of the road-map for use of
the videography in the crime scene and the
Standard Operating Procedure (SOP), we adjourn
the matter to 13
th
 February, 2018.”
5. We have now taken up the issue for further consideration.
An affidavit dated 21st March, 2018 has been filed by the Director,
6
Ministry of Home Affairs (MHA) annexing thereto Report of the
Committee constituted by the MHA about use of videography in
police investigation dated 22nd November, 2017. The Committee
considered various issues including the present infrastructure and
usage, concerns/problems raised by various States for use of
videography during investigations, admissibility of electronic
evidence in absence of a certificate under Section 65B(4) of the
Evidence Act, operational difficulties, lack of training, funding,
forensic facilities. The Committee observed that though crime
scene videography was a “desirable and acceptable best
practice”, the mandatory videography required major issues
being addressed. Videography may be done on “Best Effort”
basis. The timeline should be different for different States and
the Central Investigating Agencies. The Committee suggested
two alternative timelines. The second option i.e. Option-B
suggested by the Committee is as follows:
“7.3 Option-B: Centrally Driven Plan of Action:
The second approach suggested is for
implementation of the directions in a phased
manner with milestone based review
mechanism.
7
a. Phase-I: Three Months: Concept,
Circulation and Preparation.
* The concept for videography of the
recommended categories of tasks,
preparations for pilot project launch in
i)Cities of 50 lakhs population or
more; and, ii)at least one district of
every remaining State/Union Territory;
within three months of the orders of
the Hon’ble Supreme Court. In the
selected district(s), at least five police
stations may be identified for
implementation of the scheme on
best effort basis as a pilot project
* Capacity Building by organizing
training programme for personnel in
the police station on the Videography
Techniques for them to be qualified as
the Trained Police Videographer by
the end of three months. Each
selected Police Station should identify
personnel for Trained Police
Videographer qualification, at the rate
of two (2) Trained Police Videographer
for every 25 heinous/grave crime
cases reported in that police station
in a year.
* Selected Districts be
enabled/provided finances to procure
the equipment required for use by the
Trained Police Videographer.
* A representative of the FSL trained in
handling digital evidences should be
identified by each of the states to
mentor and hand hold the Pilot
Project implementation district
Trained Police Videographers. Where
8
FSL has no resources to offer, the
SP/DCP of the concerned district
should be authorized to hire a private
technical person proficient in digital
imaging and back-up technologies to
handhold/mentor the Trained Police
Videographers.
* Preparation of Trainer Police
Videographer Training Modules and
Training of Trainers courses by
BPR&D/CDTS/State Police Academies.
b. Phase-II: Six Months: Pilot Project
Implementation
* After the three months of Concept,
Circulation and Preparation stage, the
pilot project should be launched in the
selected police stations of the
shortlisted Districts of the States.
* The concerned District
Superintendent of Police / Deputy
Commissioner of Police, shall
designate an officer of the rank of
Deputy Superintendent of
Police/Assistant Commissioner of
Police, to supervise the
implementation of the Pilot Project
and to chronicle the Pilot
implementation. Any implementation
issues shall immediately be flagged
and brought to the notice of the SP /
DCP concerned. The officer
designated will be responsible for the
uninterrupted implementation of the
Pilot.
* Launch of Trained Police Videographer
Training Programmes/ Training of
9
Trainer Course by BPR&D/CDTS/ State
Police Academies.
c. Phase-III: Three Months: Pilot
Implementation Review
* The Phase –II Pilot implementation
should be reviewed by an
independent consultant and,
suggestions for seamless
implementation on a wider scale
should be prepared.
* The report of the independent
consultant to be considered by MHA
and select group of officers regarding
Pilot implementation and review
report preparation.
* The review and findings by MHA to be
placed before the Hon’ble Supreme
Court for incorporating necessary
changes as required regarding the
Videography during Investigation and
obtain necessary instructions.
* During this phase, each state should
prepare detailed plans for the launch
of the next phase of Videography in
Investigations project extending it to
i) all cities with a population of 10
lakhs and more; b) in all districts with
a population of 20 lakhs and more,
during Phase-IV.
* A representative of the FSL trained in
handling digital evidences should be
identified for each of the new unit to
mentor and hand hold the district
Trained Police Videographers, where
roll out is proposed in Phase-IV.
Where FSL has no resources to offer,
10
the SP/DCP of the concerned district
should be authorized to hire a private
technical person proficient in digital
imaging and back-up technologies to
handhold/mentor the Trained Police
Videographers.
* Each state to submit plans for
strengthening the Forensic Sciences
Laboratories for handling increased
Cyber Forensics/Digital Media analysis
units. MHA to consider the
requirements for this purpose under
the MPF scheme.
* During Phase-III, the Pilot
implementation districts/cities will
continue with the Videography in
Investigations project and extend
them to all their Police Stations.
d. Phase-IV: One Year: Coverage
extension from Pilot Implementation
* Implementation of the Videography in
Investigations project to Cities of 10+
lakhs population/Districts of 20+
lakhs population identified during
Phase-III.
* During this phase, each state should
prepare detailed plans for the launch
of the Videography in Investigations
project in all remaining districts/cities,
which were not covered during Pilot
Phase (Phase-II) and Phase-III.
* A representative of the FSL trained in
handling digital evidences should be
identified for each of the remaining
units to mentor and hand hold the
11
district Trained Police Videographers,
where roll out is proposed in Phase-V.
Where FSL has no resources to offer,
the SP/DCP of the concerned district
should be authorized to hire a private
technical person proficient in digital
imaging and back-up technologies to
handhold/mentor the Trained Police
Videographers.
* MHA to work on extending the
financial support for implementation
of the project for remaining cities and
districts during Phase-V.
e. Phase-V: One Year: Coverage
extension to remaining Cities and Districts
* Implementation of the Videography in
Investigations project in all remaining
districts and cities.
* Review of Phase-IV implementation
learning based on independent
consultant’s report by MHA and
submission of status report to the
Supreme Court for
modifications/suggestions for
improvement of the Videography in
Investigations project.”
6. Apart from above, the Committee suggested that a group of
experts may be set up at the level of Government of India
comprising:
(i) One head of Central Investigation agencies (CBI,
NIA, NCB) as Chairperson;
12
(ii) One head of State Police;
(iii) One head of CFSL or Senior Forensic Scientist with
expertise in the area;
(iv) A Senior Legal Professional (LA of CBI or NIA or
comparable from Ministry of Law); and
(v) A senior representative from MHA as members.
7. The group should have the freedom to co-opt members and
private experts. The group could periodically issue
guidelines/advisories. It is further suggested that each State
Police and the Central Investigating Agency may create a Steering
Committee under HOPF/Head of CPO within the organization to
spearhead this drive. Each State Police/Central Investigating
Agency may also designate a senior officer in the rank of IG/ADG
as Nodal Officer for spearheading the massive expansion of
photography and videography in investigation. Such an officer
should be given authority/responsibility to review the progress at
periodic intervals and take/propose necessary measures.
13
8. After considering the report of the Committee, the MHA
prepared an action plan on the use of videography in the police
investigation stipulating capacity building in terms of training,
equipment, forensic facilities, a scheme for requisite funds,
preparation of Standard Operating Procedure (SOP). For this
purpose, the timeline suggested is as follows:
“All Central Agencies will be asked to
prepare and submit Annual Action Plan on
“photography and videography in
Investigation for 2018 within three months.
The Ministry will scrutinize the plans and
prepare a consolidated requirement and
send a formal proposal/scheme to the
Ministry of Finance for concurrence and
obtaining budget within two months from
the finalization/approval of the
consolidated action plan, insofar as Central
Agencies are concerned.
Efforts will be made to obtain the budget
from Ministry of Finance within the financial
year 2018-19.
Similar action will have to be taken by
States/UTs with respect to their forces.”
9. We are in agreement with the Report of the Committee of
Experts that videography of crime scene during investigation is of
immense value in improving administration of criminal justice. A
14
Constitution Bench of this Court in Karnail Singh versus State
of Haryana (2009) 8 SCC 539 noted that technology is an
important part in the system of police administration1
. It has also
been noted in the decisions quoted in the earlier part of this order
that new techniques and devices have evidentiary advantages,
subject to the safeguards to be adopted. Such techniques and
devices are the order of the day. Technology is a great tool in
investigation2
. By the videography, crucial evidence can be
captured and presented in a credible manner.
10. Thus, we are of the considered view that notwithstanding the
fact that as of now investigating agencies in India are not fully
equipped and prepared for the use of videography, the time is
ripe that steps are taken to introduce videography in
investigation, particularly for crime scene as desirable and
acceptable best practice as suggested by the Committee of the
MHA to strengthen the Rule of Law. We approve the Centrally
Driven Plan of Action prepared by the Committee and the timeline
1 Para 34 – (2009) 8 SCC 539
2 Ram Singh and Ors. vs. Col. Ram Singh 1985(Supp) SCC 611, R. vs. Maqsud Ali
(1965) 2 All ER 464, R vs. Robson (1972) 2 All ER 699, Tukaram S. Dighole vs.
Manikrao Shivaji Kokate (2010) 4 SCC 329, Tomaso Bruno and anr. vs. State of
Uttar Pradesh (2015) 7 SCC 178, Mohd. Ajmal Amir Kasab vs. State of Maharashtra
(2012) 9 SCC 1 and State (NCT of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600.
15
as mentioned above. Let the consequential steps for
implementation thereof be taken at the earliest.
11. We direct that with a view to implement the Plan of Action
prepared by the Committee, a Central Oversight Body (COB) be
set up by the MHA forthwith. The COB may issue directions from
time to time. Suggestions of the Committee in its report may
also be kept in mind. The COB will be responsible for further
planning and implementation of use of videography. We direct
the Central Government to give full support to the COB and place
necessary funds at its disposal. We also direct that the COB may
issue appropriate directions so as to ensure that use of
videography becomes a reality in a phased manner and in first
phase of implementation by 15th July, 2018 crime scene
videography must be introduced at least at some places as per
viability and priority determined by the COB.
12. We place on record the suggestion of the learned amicus
that funding for this project may be initially by the Centre to the
extent possible and a central server may be set up. These
16
suggestions may be considered by the COB. We also note that
law and order is a State subject.
13. We may also refer to a connected issue already dealt with by
this Court in D.K. Basu versus State of West Bengal and
ors. (2015) 8 SCC 744. This Court directed that with a view to
check human rights abuse CCTV cameras be installed in all police
stations as well as in prisons. There is need for a further
direction that in every State an oversight mechanism be created
whereby an independent committee can study the CCTV camera
footages and periodically publish report of its observations. Let
the COB issue appropriate instructions in this regard at the
earliest. The COB may also compile information as to compliance
of such instructions in the next three months and give a report to
this Court.
14. Compliance of above directions may be ensured by the
Secretary, Ministry of Home Affairs in the Central Government as
well as Home Secretaries of all the State Governments.
15. An affidavit of progress achieved may be filed by the
Oversight Body on or before 31st July, 2018.
17
 Put up the matter for further consideration on 1st August,
2018.
…………………………………..J.
[Adarsh Kumar Goel]
…………………………………..J.
[Rohinton Fali Nariman]
New Delhi;
3
rd April, 2018.
18

whether the four bullets were fired as alleged and whether the Kapur Commission Report should be reopened after the period of 46 years. =We are, however, not satisfied that new research into a long concluded matter justifies a re-initiation of criminal investigation or that anything that might be stated should be allowed to reopen a case such as this. Criminal cases which result in conviction and even execution of death sentences and the demise of those who have served life sentences ought not to be reviewed, neither is there a provision in law for review.= The Learned Amicus Curiae submitted that this finding was rendered after the demise of Shri Savarkar and no opportunity was given to Shri Savarkar or any of his representatives. He submitted that the finding is unfair since Shri Savarkar had been acquitted at the trial. 2 Kapur Commission Report, Page 303 of Volume II 3 There is no doubt that this finding does not in any way interfere with the acquittal and is a general observation probably made since Godse and others were found to have been associated with Shri Savarkar. It cannot have the effect of overturning of the finding of the criminal court which acquitted Shri Savarkar. Constitution bench of this Court in Ram Kishan Dalmia v. Justice S.R.Tendolkar3 considered the effect of the findings of a Commission as follows:-“The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore.” Further, the Constitution bench declined to act on the findings in the report of Commission of Inquiry; “But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore and the statement made by any person before the Commission of Inquiry is, under s.6 of the act, wholly inadmissible in evidence in any future proceedings, civil or criminal, there can be no point in the Commission of Inquiry making recommendations for taking action “as and by way of securing redress or punishment” which, in agreement with the High Court, we think, refers, in the context, to wrongs already done or committed, for redress or punishment for such wrongs, if any, has to be imposed by a court of law properly constituted exercising its own discretion on the facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high powered it may be.” The submission of the petitioner that Shri Savarkar has been held guilty for the murder of Gandhiji is misplaced. We are, therefore, not prepared to accept the fourth bullet theory propounded by the petitioner. Learned Amicus Curiae categorically submitted that perusal of original photograph at the museum leads to no such inference. We consider the petitioner’s attempt to reopen this controversy as an exercise in futility. Since the person who took the photograph cannot be examined and any statement about the photograph made by any expert would not be admissible at this stage. 10. The court is beholden to Shri Amrendra Sharan, Ld. Amicus Curiae who has painstakingly examined the entire record of the case & even exhibits of the national museum for the assistance of the court.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL)8293 OF 2018
[Arising out of D. No. 15103/2017]
 Dr. Pankaj Kumudchandra Phadnis …. Petitioner
Vs.
Union of India Ministry of Law and Justice ….Respondents
O R D E R
S.A.BOBDE & L.NAGESWARA RAO, JJ.
1. Mahatma Gandhi was assassinated on 30.1.1948; about 70 years ago. 9 accused were
tried for the conspiracy and murder of Gandhiji. After trial the judgment was delivered by
Learned Special Judge, Delhi on 10.02.1949 convicting seven accused and acquitting one.
Accused Nathuram Godse and Narayan Apte were given death sentence, four of the accused
were given life sentence and remaining one was given a sentence of seven years of
Imprisonment. The conviction was challenged in Punjab High Court in Appeal, High Court
vide judgment dated 21.06.1949 upheld the conviction for five of the accused persons and
acquitted two of the accused persons. None of the accused are alive today.
2. The petitioner who describes himself “An Engineer, Management Graduate, Ph.D
and a Researcher with passion” approached the High Court by filing a Writ Petition1
 in the
year 2016. The High Court declined to entertain the petition and go into two questions raised
i.e. whether the four bullets were fired as alleged and whether the Kapur Commission Report
should be reopened after the period of 46 years.
1 PIL No.32 of 2016
1
3. The delay with which the petitioner has raised this issue is gross. According to the
petitioner, he moved the court after doing some research about the circumstances in which
Gandhiji’s assassination took place and got convinced about the involvement of an unseen
hand in the assassination. We are, however, not satisfied that new research into a long
concluded matter justifies a re-initiation of criminal investigation or that anything that might
be stated should be allowed to reopen a case such as this. Criminal cases which result in
conviction and even execution of death sentences and the demise of those who have served
life sentences ought not to be reviewed, neither is there a provision in law for review. But it
was argued before us that the assassination of Gandhiji was an event of far reaching
consequences in the world and the nation has the right to know the truth. While undoubtedly
the nation has right to know the truth, such a right cannot be invoked where the truth is
already well known merely because some academic research raises a different perspective in
law. This would amount to reopening issues based on hearsay.
4. We are constrained to make this observation because Nathuram Godse was convicted
on the basis of the evidence of eye-witnesses who were present at the prayer meeting. The
meeting itself was attended by innumerable people. Each one of the
eye-witnesses described how Godse moved forward and shot Gandhiji. All the evidence
reveals that three shots entered the body. It further revealed that:
(i) The weapon of assault was semi-automatic Berreta Pistol with a magazine that could
carry seven cartridges at a time. The pistol was recovered with four live cartridges by
PW-31.
(ii) Two empty cartridge cases were found at the place of occurrence; the third was found in
the shawl when the last ritual bath was given to the body of Gandhiji.
(iii) The death report mentions three bullet wounds:
(a) One injury on the right side of the chest near nipple.
(b) One injury below the chest on the right side.
(c) One injury on the right side of the abdomen.
2
There were two exit wounds, one bullet did not exit the body. Thus, only two spent
bullet were found at the place of occurrence. No fourth spent bullet or empty cartridge was
found at the place of occurrence.
5. The FIR registered at 5.45 pm mentions firing of three shots. The inquest report
prepared by Lt. Col. Taneja showed that Gandhiji had suffered bullet injuries from three
bullets only. There were six eye witnesses; PW-31 (Amar Nath), PW-32 (Nandlal Mehta),
PW-34 (Ratan Singh), PW-37 (Dharam Singh), PW-76 (Raghunath Naik), PW-82 (Sardar
Gurbachan Singh). Each one of them mentions that three shots were fired by the sole assailant
Nathuram Godse. No one from either side i.e. the prosecution or defence suggested that four
bullets were fired or that there was a second assailant. The report submitted by Learned
Amicus Curiae Shri Amrendra Sharan, Senior Advocate contains a detailed reference to all the
relevant evidence in this regard.
6. Another submission made by the petitioner is that this Court should review the Kapur
Commission findings. G.V. Ketkar, grandson of Lokmanya Balgangadhar Tilak, made a
statement that he had knowledge about the conspiracy to assassinate Mahatma Gandhi prior to
the incident. This raised a political storm and the Kapur Commission was set up inter alia to
inquire into the conspiracy to assassinate Mahatma Gandhi. The commission headed by
former Judge of this Court Shri Jivanlal Kapur submitted its report in 1969. According to the
petitioner, the following finding of Kapur Commission in its report is unfair since it hurts the
sentiments of the followers of Shri Savarkar:-
“All these facts taken together were destructive of any theory
other than the conspiracy to murder by Savarkar and his
group”2
He, therefore, prayed for a review of this finding or setting up of a new commission.
7. The Learned Amicus Curiae submitted that this finding was rendered after the demise
of Shri Savarkar and no opportunity was given to Shri Savarkar or any of his representatives.
He submitted that the finding is unfair since Shri Savarkar had been acquitted at the trial.
2 Kapur Commission Report, Page 303 of Volume II
3
There is no doubt that this finding does not in any way interfere with the acquittal and is a
general observation probably made since Godse and others were found to have been
associated with Shri Savarkar. It cannot have the effect of overturning of the finding of the
criminal court which acquitted Shri Savarkar. Constitution bench of this Court in Ram Kishan
Dalmia v. Justice S.R.Tendolkar3
 considered the effect of the findings of a Commission as
follows:-
“The Commission has no power of adjudication in the sense of
passing an order which can be enforced proprio vigore.”
Further, the Constitution bench declined to act on the findings in the report of
Commission of Inquiry;
“But seeing that the Commission of Inquiry has no judicial
powers and its report will purely be recommendatory and not
effective proprio vigore and the statement made by any person
before the Commission of Inquiry is, under s.6 of the act,
wholly inadmissible in evidence in any future proceedings,
civil or criminal, there can be no point in the Commission of
Inquiry making recommendations for taking action “as and by
way of securing redress or punishment” which, in agreement
with the High Court, we think, refers, in the context, to wrongs
already done or committed, for redress or punishment for such
wrongs, if any, has to be imposed by a court of law properly
constituted exercising its own discretion on the facts and
circumstances of the case and without being in any way
influenced by the view of any person or body, howsoever
august or high powered it may be.”
The submission of the petitioner that Shri Savarkar has been held guilty for the
murder of Gandhiji is misplaced.
8. We are, however, not inclined to enter into the correctness or fairness of the findings
in this report. That would be another exercise in futility and would none the less pan new fires
of controversy. This Court must at all cost be vary of such contentious issues and must not
allow its jurisdiction to be invoked for such purposes.
9. We are, therefore, not prepared to accept the fourth bullet theory propounded by the
petitioner. Learned Amicus Curiae categorically submitted that perusal of original photograph
at the museum leads to no such inference. We consider the petitioner’s attempt to reopen this
3
1959 SCR 279 : AIR 1958 SC 538
4
controversy as an exercise in futility. Since the person who took the photograph cannot be
examined and any statement about the photograph made by any expert would not be
admissible at this stage.
10. The court is beholden to Shri Amrendra Sharan, Ld. Amicus Curiae who has
painstakingly examined the entire record of the case & even exhibits of the national museum
for the assistance of the court.
11. We see no merit in this SLP and hereby dismiss the same.
….………………………………..J.
[S.A. BOBDE]
….………………………………..J.
[L. NAGESWARA RAO]
NEW DELHI
MARCH 28, 2018
5

validity of determination of seniority of promotee and direct recruit Higher Judicial Service (HJS) officers in the State of Uttar Pradesh. Dispute mainly relates to the principle to be applied for determining seniority for direct recruits and promotees of the years 2007 and 2009 in the context of Rules 22 and 26 of the Uttar Pradesh 2 Higher Judicial Service Rules, 1975 (the Rules) and the judgment of this Court in All India Judges Association versus Union of India1= No promotion could be given in absence of suitability test. The rule provided for seniority of the promotees to be fixed from the date of availability of vacancy but such seniority could also not be given in the present fact situation. If rota rule is applied, it will work serious prejudice to the promotees. Thus, the Rules will have to be given pragmatic interpretation. As laid down by this Court in Direct Recruit Class-II Engineering Officers’ Association versus State of Maharashtra if it becomes impractical to act upon rule fixing quota from two sources, it is no use insisting that the authority must give effect to such a rule. Every effort has to be made to respect a rule but if it is not feasible to enforce it, the rule has to 9 (1990) 2 SCC 715, para 23 29 be given a practical interpretation. Thus, interference by the High Court with the seniority given to the promotees above the direct recruits without following the rotation principle cannot be sustained.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE / ORIGINAL JURISDICTION
 CIVIL APPEAL NO. 3356 OF 2018
(Arising out of Special Leave Petition (Civil)No. 26993 of 2017)
Hon’ble High Court of Judicature
at Allahabad – through Registrar General …Appellant
Versus
The State of Uttar Pradesh & Ors. …Respondent
WITH
 CIVIL APPEAL NO. 3355 OF 2018
Special Leave Petition (Civil)No. 8312 of 2018)
(Arising out of Special Leave Petition (Civil)D.No. 39750 of 2017
 Hon’ble High Court of Judicature at Allahabad
through Registrar …Appellant
versus
 The State of Uttar Pradesh & Ors. …Respondent
WITH
Special Leave Petition (Civil)No. 27284 of 2017
Dr. Ajay Krishn Vishvesha & Ors. …Petitioner
Versus
Rajat Singh Jain & Ors. ...Respondent
WITH
 Special Leave Petition (Civil)No. 27876 of 2017
 Saroj Yadav & Ors. …Petitioner
versus
The High Court of Judicature at Allahabad & Ors. …Respondent
1
WITH
Special Leave Petition (Civil)No. 8334 of 2018)
(Arising out of Special Leave Petition (Civil)D.No. 31887 of 2017
 Lal Bahadur-II & Ors. …Petitioner
versus
 High Court of Allahabad & Ors. …Respndent
AND
TRANSFER PETITION (CIVIL)NO. 81 OF 2018
Sanjay Shankar Pandey & ORS. …Petitioner
 versus
The State of Uttar Pradesh & ORS. …Respondent
J U D G M E N T
ADARSH KUMAR GOEL, J.
1.Leave granted in Special Leave Petition (Civil) No.26993 of 2017
and SLP (Civil) D. No.39750 of 2017. The question for consideration
is the validity of determination of seniority of promotee and direct
recruit Higher Judicial Service (HJS) officers in the State of Uttar
Pradesh. Dispute mainly relates to the principle to be applied for
determining seniority for direct recruits and promotees of the years
2007 and 2009 in the context of Rules 22 and 26 of the Uttar Pradesh
2
Higher Judicial Service Rules, 1975 (the Rules) and the judgment of
this Court in All India Judges Association versus Union of
India1
.
2. Before giving brief facts we may note that the Rules and the
issue of seniority of the HJS officers were subject matter of
consideration, inter alia, in P.K. Dixit versus State of U.P.2
, O.P.
Garg versus State of U.P.3
, Sri Kant Tripathi versus State of
U.P.4
, Ashok Pal Singh versus U.P. Judicial Services
Association5
, V.K. Srivastava versus Govt. of U.P.6
 and Het
Singh Yadav versus State of U.P.7
3. In P.K. Dixit (supra), there was challenge to the seniority list
on the ground that vacancies had not been properly calculated as
per the Rules. This Court directed that matter should be examined
afresh with reference to appointments on posts available before
the Rules came into force.
1 (2002) 4 SCC 247
2 (1987) 4 SCC 621
3 (1991) Supp. (2) SCC 51
4 (2001) 10 SCC 237
5 (2010) 12 SCC 665
6 (2008) 9 SCC 77
7 Civil Appeal No.5270 of 2012 decided on 15.9.2016
3
4. In O.P. Garg (supra), challenge to seniority list of 1988 was
considered. This Court held that benefit of continuous length of
service for a promote officer for a promote officer has to be with
reference to availability of a vacancy and not independent
thereof. Second and third proviso to Rule 8(2) and part of Rules 22
and 26 were declared ultra vires.
5. In Sri Kant Tripathi (supra) question was about correctness
of calculation for working out ratio between direct recruits and
promotees. The issue had arisen with reference to recruitments
for the years 1988 to 1994. This Court directed that for 1988
recruitment, the High Court should determine number of
vacancies available in the relevant year of recruitment and then
allocate the vacancies to different sources of recruitment. It was
also directed that vacancies should be filled up in the year when
vacancies become available. If a post is available in the quota of
promotees, selection is made but promotion is not given,
promotion must take effect from the date the promotee could
have been appointed.
4
6. In Ashok Pal Singh (supra) one of the issues was whether
procedure of carrying forward of vacancies adopted by the High
Court was erroneous. This Court held that no direct recruit at a
subsequent recruitment can claim that his seniority should be
reckoned from the date earlier to the date of his joining. The
seniority of the promotee had to commence from the date he
should have been appointed against an available vacancy for
which he had already been selected.
7. In V.K. Srivastava (supra), challenge was to the
amendment of the Rules as notified on 9th January, 2007 on the
ground that giving of retrospective effect prejudiced the vested
right of the candidate eligible for vacancies prior to the
amendment. This Court dismissed the writ petition with the
observation that the Rules had been duly complied with for the
year 2008 selection.
8. In Het Singh Yadav (supra) question for consideration was
the validity of seniority list of promotees with regard to vacancies
existing prior to 15th March, 1996. The High Court quashed the
seniority list dated 24th August, 2007. Correctness of the view
5
taken before the High Court was subject matter of consideration
before this Court. This Court noted that after the judgment of the
High Court dated 16th December, 2010, seniority list had been
finalized on 14th April, 2016 consistent with the directions in
Ashok Pal Singh (supra) against which matter was pending
consideration before the High Court. This Court set aside the
judgment of the High Court leaving the merits of the matter to be
gone into by the High Court in the matter pending before it.
9. In All India Judges case (supra), it was directed that
recruitment to HJS at the relevant time had to be as follows :
“(a) 50 per cent by promotion from amongst Civil
Judges (Senior Division) on the principle of
merit-cum-seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of
merit through a limited competitive departmental
examination on Civil Judges (Senior Division)
having not less than five years qualifying service,
and;
(c) 25 per cent of the posts shall be filled directly from
amongst the eligible advocates on the basis of
written and viva voce test conducted by the
respective High Courts.”
6
10. It was observed that to avoid litigation, seniority rules should
provide for roster system as laid down in R.K. Sabharwal
versus State of Punjab8
 . Direction of this Court is as follows :
“29. Experience has shown that there has been a
constant discontentment amongst the members of the
Higher Judicial Service in regard to their seniority in
service. For over three decades a large number of cases
have been instituted in order to decide the relative
seniority from the officers recruited from the two
different sources, namely, promotees and direct recruits.
As a result of the decision today, there will, in a way, be
three ways of recruitment to the Higher Judicial Service.
The quota for promotion which we have prescribed is 50
per cent by following the principle "merit-cum seniority",
25 per cent strictly on merit by limited departmental
competitive examination and 25 per cent by direct
recruitment. Experience has also shown that the least
amount of litigation in the country, where quota system
in recruitment exists, insofar as seniority is concerned, is
where a roster system is followed. For example, there is,
as per the rules of the Central Government, a 40-point
roster which has been prescribed which deals with the
quotas for Scheduled Castes and Scheduled Tribes.
Hardly, if ever, there has been a litigation amongst the
members of the service after their recruitment as per the
quotas, the seniority is fixed by the roster points and
irrespective of the fact as to when a person is recruited.
When roster system is followed, there is no question of
any dispute arising. The 40-point roster has been
considered and approved by this Court in R.K. Sabharwal
v. State of Punjab (supra) One of the methods of avoiding
any litigation and bringing about certainty in this regard
is by specifying quotas in relation to posts and not in
relation to the vacancies. This is the basic principle on
the basis of which the 40-point roster works. We direct
the High Courts to suitably amend and promulgate
seniority rules on the basis of the roster principle
as approved by this Court in R.K. Sabharwal case
(supra) as early as possible. We hope that as a
result thereof there would be no further dispute in
8 (1995) 2 SCC 745
7
the fixation of seniority. It is obvious that this
system can only apply prospectively except where
under the relevant rules seniority is to be
determined on the basis of quota and rotational
system. The existing relative seniority of the
members of the Higher Judicial Service has to be
protected but the roster has to be evolved for the
future.”
(emphasis added)
11. The Rules as originally framed envisaged three sources of
recruitment – direct recruitment from the bar, promotion from
members of Uttar Pradesh Nyayik Sewa (UPNS) and officers out of
cadre of judicial magistrates. There was also a provision for quota
for the different sources. Number of appointments to be made is
required to be identified. Seniority is to be determined as per
Rule 26.
12. As a result of observations in the above judgments, there
was amendment in the Rules. It may not be necessary to refer all
the amendments but reference to some of the amendments may
be necessary.
13. Accordingly, Rule 6 was amended to give effect to the
judgment of this Court in All India Judges’ case (supra) vide U.P.
Higher Judicial Service (Sixth Amendment) Rules, 2006 notified on
8
January 09, 2007. By the said amendment, the criteria for
recruitment by promotion was changed. Requirement of passing
a suitability test was incorporated. There was also modification
about the percentage of quota. The suitability test in pursuance
of the said amended rules was held for the first time in the year
2008. The introduction of the roster was introduced by U.P.
Higher Judicial Service (Seventh Amendment) Rules, 2009 which
was notified on 8th August, 2009.
14. Reference may now be made to the relevant Rules.
Rule 5
U.P. Higher Judicial Service Rules,
1975
(Prior to the Sixth Amendment in 2006)
Uttar Pradesh Higher Judicial Service
(Sixth Amendment) Rules, 2006
(come into force w.e.f 21st March, 2002)
Rule 5. Sources of recruitment.-The
recruitment to the Service shall be made--
(a) by direct recruitment of pleaders and
advocates of not less than seven years'
standing on the first day of January next
following year in which the notice inviting
applications is published;
(b) by promotion of confirmed members of
the Uttar Pradesh Nyayik Sewa (hereinafter
referred to as the Nyayik Sewa), who have
put in not less than seven years service to
be computed on the first day of January
next following the year in which the notice
inviting application is published:
Provided that so far long as suitable
officers are available from out of the dying
cadre of the Judicial Magistrates confirmed
officers who have put in not less than
Rule 5 was substituted as under:-
Sources of recruitment--The recruitment
to the service shall be made(a)
By promotion from amongst the Civil
Judges (Senior Division) on the basis of
Principle of merit-cum-seniority and passing
a suitability test.
(b) By promotion strictly on the basis of merit
through limited competitive examination of
Civil Judges (Senior Division) having not less
than five years qualifying service;
(c) By direct recruitment from amongst the
Advocates of not less than seven years
standing on the first day of January next
following the year in which the notice inviting
applications is published.
9
seven years service to be computed as
aforesaid shall be eligible for appointment
as Additional Sessions Judges in the
Service.
Explanation.--When a person has been both
a pleader and an advocate his total
standing in both the capacities shall be
taken into account in computing the period
of seven years under clause (a)."
Rule 6
U.P. Higher Judicial
Service Rules, 1975
(Prior to the Sixth
Amendment in 2006)
Uttar Pradesh Higher
Judicial Service (Sixth
Amendment) Rules, 2006
(come into force w.e.f 21st
March, 2002)
Uttar Pradesh Higher
Judicial Service (Ninth
Amendment) Rules,
2014
Rule 6. Quota.- Subject to
the provisions of Rule 8, the
quota for various sources of
recruitment shall beProvided
that where the
number of vacancies to be
filled in by any of these
sources in accordance with
the quota is in fraction, less
than half shall be ignored
and the fraction of half or
more shall ordinarily be
counted as one:
(i) Direct recruits from
the Bar 15% of the
vacancies
(ii) Uttar Pradesh Nyayik
Sewa 70%
(iii) Uttar Pradesh
Judicial Officers service
(Judicial Magistrate) 15%
Provided further that when
the strength in the cadre of
the Judicial Magistrates
gradually gets depleted or is
completely exhausted and
suitable candidates are not
available in requisite
numbers or no candidate
remains available at all, the
shortfall in the number of
Rule 6 was substituted as
under:-
6. Quota-Subject to the
provisions of rule 8, the quota
for various sources of
recruitment shall be(i)
Uttar Pradesh Nyayik Sewa:
 (a) from amongst the Civil
Judges (Senior Division)
on the basis of
merit-cum-seniority
and passing a
suitability test. - 50%
 (b) on the basis of merit
through limited
competitive
examination of Civil
Judges (Senior Division)
having not less than
five years qualifying
service. - 10%
 Provided that in case of
there being any
shortfall in the
vacancies to be filled
up on the basis of in
cadre competitive
examination, the
shortfall of 25%
reserved for such
promotion will be made
good by corresponding
increase in the quota
Rule 6 was substituted
as under:-
Quota-6. Subject to the
provisions of rule 8, the
quota for various sources
of recruitment shall be(i)
Uttar Pradesh Nyayik
Sewa:
 (a) from amongst the
Civil Judges
(Senior Division)
on the basis of
merit-cum-seniori
ty and passing a
suitability test. -
65%
 (b) on the basis of
merit through
limited
competitive
examination of
civil Judges
(Senior Division)
having not less
than five years
service. -10%
 Provided that in
case of there
being any
shortfall in the
vacancies to be
filled up on the
10
vacancies required to be
filled from amongst Judicial
Magistrates and in the long
run all the vacancies, shall
be filled by promotion from
amongst the members of the
Nyayik Sewa and their quota
shall, in due course, become
85 per cent.
reserved for promotion
of Civil Judge (Senior
Division) referred to in
Clause (i)(a).
(ii) direct recruitment from Bar
- 25%
 Provided that where the
number of vacancies to
be filled in by any of
these sources in
accordance with the
quota is in fraction, less
than half shall be
ignored and the
fraction of half or more
shall ordinarily be
counted as one:"
basis of in cadre
competitive
examination, the
shortfall of 10%
reserved for such
promotion will be
made good by
corresponding
increase in the
quota reserved
for promotion of
Civil Judge
(Senior Division)
referred to in
clause (i)(a).
(ii) Direct recruitment from
Bar-25%
 Provided that
where the
number of
vacancies to be
filled in by any of
the sources in
accordance with
the quota is in
fraction, less than
half shall be
ignored and the
fraction of half or
more shall
ordinarily be
counted as one:
Rule 8
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Uttar Pradesh Higher Judicial Service
(Sixth Amendment) Rules, 2006
(come into force w.e.f 21st March, 2002)
Rule 8. Number of appointments to be
made.---(1) The Court shall, from time to
time, but not later than three years from the
last recruitment, fix the number of officers
to be taken at the recruitment keeping in
view the vacancies then existing and likely
to occur in the next two years.
Note---The limitation of three years
mentioned in this sub-rule shall not apply to
the first recruitment held after the
enforcement of these rules.
In Rule 8 the existing sub rule (2) was
substituted as under:-
"8.(2) If at any selection the number of
selected direct recruits available for
"8.(2) If at any selection the number of
selected direct recruits available for
appointment is less than the number of
recruits decided by the Court to be taken
from that source, the Court may increase
correspondingly the number of recruits to be
taken by promotion from the Nyayik Sewa;
11
(2) If at any selection the number of
selected direct recruits available for
appointment is less than the number of
recruits decided by the Court to be taken
from that source, the Court may increase
correspondingly the number of recruits to
be taken by promotion from the Nyayik
Sewa;
Provided that the number of
vacancies filled in as aforesaid under
this sub rule shall be taken into
consideration while fixing the
number of vacancies to be allotted to
the quota of direct recruits at the
next recruitment, and the quota for
direct recruits may be raised
accordingly; so, however, that the
percentage of direct recruits in the
Service does not in any case exceed
15 per cent of strength of the
service.
Provided further that all the
permanent vacancies existing on
May 10, 1974 plus 31 temporary
posts existing on that date, if any
when they are converted into
permanent posts, shall be filled by
promotion from amongst the
members of the Nyayik Sewa; and
only the remaining vacancies shall
be shared between the three sources
under these rules;
Provided also that the number of
vacancies equal to 15 per cent of the
vacancies referred to in the last
preceding proviso shall be worked
out for being allocated in future to
the Judicial Magistrates in addition to
their quota of 15 per cent prescribed
in Rule 6, and thereupon, future
recruitment (after the promotion
from amongst the members of the
Nyayik Sewa against vacancies
referred to in the last preceding
proviso) shall be so arranged that for
so long as the additional 15 per cent
vacancies worked out as above have
not been filled up from out of the
Judicial Magistrates, the allocation of
vacancies shall as follows---
Provided that the number of
vacancies filled in as aforesaid under
this sub rule shall be taken into
consideration while fixing the number
of vacancies to be allotted to the
quota of direct recruits at the next
recruitment, and the quota for direct
recruits may be raised accordingly so,
however, that the percentage of
direct recruits in the service does not
in any case exceed 25% of strength of
the service.
12
(i) 15 per cent by direct
recruitment.
(ii) 30 per cent from out of the
Judicial Magistrate;
(iii) 55 per cent from out of the
members of the Nyayik Sewa.
13
Rule 18
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Rule 18. (1) The Selection Committee referred to in Rule 16 shall scrutinize the applications
received and may thereafter hold such examination, as it may considered necessary for
judging the suitability of the candidates. The committee may call for interview such of the
applicants who in its opinion have qualified for interview after scrutiny and examination.
(2) In assessing the merits of a candidate the Selection Committee shall have due regard to
his professional ability,character, personality and health.
(3)The Selection Committee shall make a preliminary selection and submit the record of all
candidates to the Chief Justice and recommend the names of the candidates in order of merit
who, in its opinion, are suitable for appointment to the service.
(4) The Court shall examine the recommendations of the Selection Committee and having
regard to the number of direct recruits to be taken, prepare a list of selected candidates in
order of merit and forward the same to the Governor.
Rule 20
U.P. Higher Judicial
Service Rules, 1975
(Prior to the Sixth
Amendment in 2006)
Uttar Pradesh Higher
Judicial Service (Sixth
Amendment) Rules,
2006
(come into force w.e.f. 21st
March, 2002)
Uttar Pradesh Higher
Judicial Service (Ninth
Amendment) Rules,
2014
Rule 20. Promotion of
Members of Nyayik
Sewa-(1) Recruitment by
promotion of the members of
the Nyayik Sewa shall be
made by selection on the
principle of
seniority-cum-merit.
(2) The field of eligibility for
recruitment by promotion
shall be confined to four times
the number of vacancies to
be filled by promotion. The
Selection Committee shall
prepare a list in order of
seniority of the officers
eligible under Rule 5(b) of
these rules.
(3)The Selection Committee
shall, after examining the
record of the officers included
In Rule 20- for the existing
sub-rules (1) and (2), the
following sub-rules were
substituted:-
(1) Recruitment by
promotion of the
members of the
Nyayik Sewa shall be
made by selection on
the principle of
merit-cum-seniority
and on passing such a
suitability test, as
prescribed in Appendix
"G(1)"
(2) The field of
eligibility for
recruitment by
promotion shall be
confined to four times
the number of
The existing sub-rule (3)
of rule 20 was substituted
as under:-
20.(3) The Selection
Committee shall, after
examining the record of the
officers included in the list
prepared under sub-rule (2) of
this rule make a preliminary
selection of the officers who
in its opinion are fit to be
appointed on the basis of
merit-cum-seniority. In
assessing the merit of a
candidate, the Selection
Committee have due regard
to his service record, ability,
character and seniority. The
list shall contain the names of
officers twice the number of
vacancies required to be filled
by promotion of the members
14
in the list prepared under
sub-rule (2) of this Rule make
a preliminary selection of the
officers who in its opinion are
fit to be appointed on the
basis of seniority-cum-merit.
In assessing the merits of a
candidate, the Selection
Committee have due regard
to his service record, ability,
character and seniority. The
list shall contain the name of
officers twice the number of
vacancies required to be filled
by promotion of the members
of the Nyayik Sewa.
(4) The Selection Committee
shall forward the list of the
candidates chosen at the
preliminary selection to the
Chief Justice along with the
names of the officers who, if
any, in the opinion of the
Committee have been passed
over for promotion to the
service.
(5) The Court shall examine
the recommendations of the
Selection and make a final
selection for promotion and
prepare a list in order of
seniority of the candidates
who are considered fit for
promotion and forward the
same to the Governor. The list
shall remain operative only till
the next recruitment.
vacancies to be filled
by promotion. The
selection Committee
shall prepare a list in
order of seniority of
the officers eligible
under Rule 5(a) of
these rules.
of the Nyayik Sewa.
Rule 21
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Uttar Pradesh Higher Judicial Service
(Sixth Amendment) Rules, 2006
(come into force w.e.f 21st March, 2002)
Rule 21. Temporary provisions for the
cadre of the Judicial Magistrate.- (1) For
so long as suitable officers are available from
out of the dying cadre of the Uttar Pradesh
Judicial Officers Service, confirmed officers
who have put in not less than seven years'
service shall be eligible for appointment as
The existing Rule 21 was substituted as
under:-:
(1) Recruitment by promotion of the members
of Nyayik Sewa as referred to in Rule 5(b)
shall be made by selection strictly on the
basis of merit through a limited competitive
examination as prescribed in Appendix 'H'.
15
Additional Sessions Judges in the service, as
provided in Rules 4, 5, 6 and 8. Such officers
may also be appointed as Additional Sessions
Judge in officiating and temporary capacity
upto the extent of 15 per cent of the
vacancies in the cadre occurring during any
one period of Selection.
(2) The field of eligibility for appointment from
out of the Judicial Magistrate shall be confined
to four times the number of vacancies to be
filled from this source. The Selection
Committee shall prepare a list in order of
seniority of the eligible officers.
(3) Criterion for selection shall be
seniority-cum-merit. In assessing the merits
of a candidate the Selection Committee shall
have due regard to his service record ability,
character and seniority. The preliminary
selection shall be made by the Selection
Committee referred to in Rule 6 and the list of
the selected candidates shall be forwarded to
the Chief Justice along with the names of the
officers who, if any, in the opinion of the
Committee are unfit for appointment to the
Service.
(4) The Court shall examine the
recommendations of the Selection Committee
and make a final selection and prepare a list
of candidates
considered fit for appointment in order of
seniority and forward the names of the
officers. The list shall remain operative only
till the next recruitment.
(5)..........
(6)..........
(7) The Court shall examine the
recommendations of the Selection Committee
and make a final selection for appointment in
HJS cadre and prepare a list in order of merit
and forward the same to the Governor. The
list shall remain operative only till the next
recruitment.
(2)Application for recruitment to the service
from such sources shall be
invited by the Court through District Judges.
(3) the District Judge shall forward to the
Court all applications received by him
alongwith his own estimate of each
candidate's character and fitness for
appointment to the service.
(4) The Selection Committee referred to in
Rule 16 shall scrutinize the
applications received and shall hold a limited
competitive examination, as
prescribed in Appendix 'H'.
(5) The Selection Committee shall prepare a
select list on the basis of the
merit of the successful candidates.
(6) The committee shall make a preliminary
selection and submit the record of all
candidates to the Chief Justice and
recommend the names of the candidates in
order of merit who, in its opinion are suitable
for appointment to the service.
(7) The Court shall examine the
recommendations of the Selection Committee
and make a final selection for appointment in
HJS cadre and prepare a list in order of merit
and forward the same to the Governor. The
list shall remain operative only till the next
recruitment.
Rule 22
16
U.P. Higher Judicial Service
Rules, 1975
(Prior to the Sixth Amendment
in 2006)
Uttar Pradesh Higher
Judicial Service (Seventh
Amendment) Rules, 2009
Uttar Pradesh Higher
Judicial Service (Ninth
Amendment) Rules, 2014
Rule 22. Appointment(1)
Subject to the provisions of
sub-rules (2) and (3), the
Governor shall on receipt from
the Court of the lists
mentioned in Rule 18, 20 and
21 make appointments to the
service on the occurrence of
substantive vacancies by
taking candidates from the
lists in the order in which they
stand in the respective lists.
(2) Appointments to the
service shall be made on the
rotational system, the first
vacancy shall be filled from
the list of officers of the Nyayik
Sewa. The second vacancy
shall be filled from the list of
direct recruits (and so on), the
remaining vacancies, shall
therefore be filled by
promotion from the list of the
officers of the Nyayik Sewa.
Provided that for so
long as suitable officers
are available from the
cadre of the Judicial
Magistrates,
appointments to the
Service shall be made
in such a way that the
second fifth and eighth
(and so on), vacancy
shall be filled from the
list of judicial
Magistrates.
(3) In the eventuality of delay
in making appointment under
sub-rule (1) and further if
exigency of service so
requires, the Governor may, in
consultation with the Court,
make short term appointment
as a stop gap arrangement
from amongst the members of
Rule 22 . Appointment.--
(1) Subject to the provisions
of sub-rule (2) the Governor
shall, on receipt from the
Court of the list mentioned in
Rules 18, 20 and 21 make
appointments to the service
on the occurrence of
substantive vacancies by
taking candidates from the
list in the order in which they
stand in the respective lists in
accordance with the roster.
(2) Appointments to service
shall be made on the basis of
roster system, the
first and second post shall be
filled from the list of
promotes, the third post shall
be filled up by direct recruit
and the fourth post shall be
filled up by the candidate
selected strictly on merit
through LDCE (and so on)
according to the roster as
prescribed in Appendix 'I',
which will cease to become
operative
on the date the respective
three streams achieve their
full allotted vacancies.
Thereafter on account of
arising any vacancy in quota
of respective stream the
same could be filled-up from
the same stream of which
vacancy arises:
Provided that
while following the
roster at no point
of time the
percentage of
posts filled from
direct recruit and
LDCE shall exceed
25% each of the
vacancies
In Rule 22, the existing
sub-rule (2) was
substituted as under:-
22.(2) Appointments to the
service shall be made on
the basis of roster system,
the first post shall be filled
from the list of promotees,
the second post shall be
filled up by direct recruit,
the third and fourth posts
shall be
filled up from the list of
promotees and fifth post
shall be filled up by the
candidate selected strictly
on merit through LDCE (and
so on) according to
the roster as prescribed in
Appendix '1', which will
cease to become operative
on the date the respective
three streams achieve their
full allotted vacancies.
Thereafter on account of
arising any vacancy in quota
of respective stream the
same could be filled-up from
the same stream of which
vacancy arises;
Provided that while
following the roster
at no point of time
the respective
percentage of posts
filled from direct
recruit and LDCE
shall exceed 25%
and 10% of the
strength of service.
In case the
percentage is
exceeding the
allotted quota, in
such eventuality the
promotee shall
occupy the vacancy
which would have
17
Nyayik Sewa in the vacancy in
these services within the
quota fixed by the Court till
the appointment are made
under subrules (1) and (2):
Provided that the
period of service spent
by a member of Nyayik
Sewa on short term
appointment to the
service as a stop-gap
arrangement shall not
be computed from
seniority under Rule 26.
(4) The appointments shall be
made on rotational system,
the first vacancy shall be filled
from the list of officers of the
Nyayik Sewa, the second
vacancy shall be filled from
the list of Judicial Magistrates
(and so on).
available at the
time of selection.
In case the
percentage is
exceeding the
allotted quota, in
such eventuality
the promotee shall
occupy the
vacancy which
would have gone
to the direct
recruit or LDCE,
had not the same
been an excess of
25% of either of
the two.
(3) In the eventuality of delay
in making appointment under
sub-rule (1) and further if
exigency of service so
requires the Governor may, in
constitution with the Court,
make short term appointment
as a stop-gap arrangement
from amongst the promotees,
in the vacancy in these
services fill the appointment
are made under sub-rules (1)
and (2):
Provided that the
period of service spent
by the promotees on a
short term
appointment to the
service as stop-gap
arrangement shall not
be computed under
Rule 26.
gone to direct recruit
or LDCE, had not the
same been in excess
of 25% and 10%
respectively of either
of the two.
18
Rule 26
U.P. Higher Judicial Service Rules, 1975
(Prior to the Sixth Amendment in 2006)
Rule 26. Seniority.--(1) Seniority of the officers appointed in the Service shall be determined
in accordance with the order of ppointment in the Service under
sub-rules (1) and (2) of Rule 22 of these rules.
(2)Seniority of members of the service who have been confirmed in the service prior to the
commencement of these rules shall be as has been determined by the order of the
Government as amended from time to time.
15. We may now note the necessary facts. It is clear from
resume of judgments of this Court that there is long history of
seniority dispute of the members of HJS. In the process, there
was complex and long drawn effort in determination and
redetermination of vacancies. Though, in pursuance of judgment
of this Court in All India Judges’ case (supra), amendment in the
Rules was carried out and notified on 9th January, 2007 and
principle of suitability test and roaster system were introduced, in
absence of determination of vacancies for the period from 2002
till 2007, neither the promotees could be given appointments in
spite of availability of vacancies and eligibility nor direct
recruitments could be made. Thus, recruitment for the relevant
period was initiated belatedly in the year 2007. In the absence of
suitability test, which was conducted only in the year 2008, the
19
promotees could not be given promotion. In the circumstances,
the direct recruits selected after 2007 could not be given seniority
prior to their joining. Seniority for direct recruits by following the
rota system would have operated unfairly for the promotees.
16. In this background, vacancies as on 31st December, 2006
and expected vacancies upto 31st December, 2008 were
determined for the direct recruits and promotees on 15th February,
2007.
17. After the rules were amended in the year 2007, vacancies
were worked out and advertisement was issued on 31st March,
2007. Suitability test for purposes of promotion was held on 10th
February, 2008. Final list of selected direct recruits was approved
by the Full Court on 12th July, 2008.
18. Vide order dated 11th August, 2008, appointments to the
UPHJS by way of promotion were made. Direct recruited officers
to the UPHJS were appointed between 11th September, 2008 and
24th November, 2008. Though, process for appointment was
20
conducted simultaneously, the select lists were also forwarded to
the Court simultaneously, due to observance of certain
formalities, letters of appointment for direct recruits were given
later to the promotion being affected.
19. For the recruitment year 2009, calculation of vacancies was
finalized on 24th March, 2009. The same was approved by the Full
Court on 10th April, 2009. Suitability test for promotees was held
on 29th November, 2009. Select list was approved by the Full
Court on 9th January, 2010. Appointments were notified on 7th
September, 2010. Direct recruits for the year 2009 were
appointed between 24th December, 2010 to 20th April, 2011. After
the appointments, the dispute of seniority cropped up. The direct
recruits claimed that they were entitled to be given seniority as
per rota system laid down under the Rules and that they had been
wrongly placed junior to the promotees. The promotees claimed
that their seniority should commence from the date of accrual of
vacancy, date of their eligibility and officiation and not from the
date of actual appointment.
21
20. The High Court appointed a Committee to go into the matter.
The Committee took up determination of vacancy and fixation of
seniority for the HJS officers appointed upto 1998-2000 which was
finalized on 1st August, 2011. Thereafter, determination of
vacancies and fixation of seniority of 2007 and 2009 recruitments
was considered by the committee vide its report dated 23rd
September, 2015 and 6th April, 2016. The same was approved by
the Full Court on 14th June, 2016.
21. The report of the Committee dated 23rd September, 2015
was in continuation of its earlier reports finalizing seniority lists
dated 6th May, 1995 and 13th July, 2011, with reference to officers
recruited prior to 2007. The Committee determined vacancies
vide its report dated 7th February, 2012 on the basis of which
tentative seniority lists dated 25th July, 2013 and 18th December,
2014 were published. Objections to the said tentative seniority
lists were considered in the said report.
22. The question considered by the Committee was whether
long officiation by officers of UPNS should be given due credit so
that they may not suffer on account of delay in holding suitability
22
test. Suitability test was not held due to non amendment of the
Rules upto 9th January, 2007 inspite of judgment of this Court
dated 21st March, 2002. Thus, from 21st March, 2002 to 2008
since a different regime of
Rules was stipulated under the judgment of this Court in All India
Judges case (supra) and the Rules were amended by the High
Court only on 9th January, 2007, in spite of availability of
vacancies in promotion quota, the promotee officers who were
eligible and were officiating against the said vacancies, could not
be recruited. They were recruited only after the suitability test
was held for the first time in the year 2008. The Committee thus
held that they were entitled to en bloc seniority without
rota system. The direct recruits could not be given seniority for
the period prior to their appointment. Same was the position
with regard to 2009 recruitments. The view of the Committee
was that rota system will create imbalance and injustice.
23. The direct recruits as well as the promotees were aggrieved
by the determination of their seniority and challenged the same
by filing Writ Petitions. In Writ Petition (SB) No.1880 of 2017 filed
23
by the direct recruits, respondents 134 to 173, along with others
before the High Court, prayer was for quashing the final seniority
Report dated 23rd September, 2015 (of Committee of High Court
Judges), supplementary report dated 6th April, 2016(also of a
Committee of High Court Judges) and for a direction to
redetermine seniority of the writ petitioners who were the direct
recruits on the basis of rotational system proportionate to their
quota, apart from other incidental prayers. It was submitted that
since Rule 22(2) provides for rotational basis for seniority, their
date of appointment was not conclusive for the purpose of
seniority. Accordingly, the writ petitioners sought determination
of seniority by applying roster system. The High Court and the
affected officers defended the report of the Committee as
approved by the Full Court.
24. In Writ Petition (SB) No.16569 of 2016 filed by the
promotees, challenge was to the validity of the Amendment
Rules, 2006 in so far as the Rules were retrospective. Challenge
was also to the reports of the Committees and decision of the Full
Court in so far as objections to seniority list were rejected. The
24
petitioners in the said writ petition were promoted against
vacancies of the years 2002 onwards but the said vacancies were
actually determined later. According to the said writ petitioners,
they were entitled to seniority from the date of their eligibility,
without their passing of the suitability test which was
retrospectively prescribed for the first time on 9th January, 2007.
25. The High Court examined two questions : -
(i) Whether promotees were entitled to
seniority prior to their appointment on the
ground that requirement of suitability test was
introduced for the first time in the year 2007 and
they had a vested right to be promoted against
the earlier vacancies without the suitability test.
(ii) Whether direct recruits were entitled to
the benefit of rotation in determination of
seniority. The High Court held that the
promotees could not be given seniority prior to
their selection. The retrospectivity of the Rules
prescribed suitability test was valid particularly
25
in view of judgment of this Court in V.K.
Srivastava (supra).
26. It was held that no determination of vacancies had taken
place on account of pendency of litigation which was finalized on
25th August, 2004. No direct recruitment was made after
1998-2000 upto 2005. Only after 25th August, 2004 determination
of vacancies took place. Promotions and direct recruitments were
made in respect of the said selection in the year 2005.
Promotions and direct recruitments which are subject matter of
the present case were made in 2008/2009. Thus, Writ Petition
(SB) No.16569 of 2016 was dismissed and objection of the
promotees to their seniority was rejected.
27. As regards claim of the direct recruits based on Quota-Rota
rule and post based roster system, it was observed that the same
was mandatory. It was accordingly, held that seniority was
required to be re-determined by applying the Quota-Rota.
28. The conclusions of the High Court are as follows :
26
“In view of the above, we sum up our conclusions
as under :
(1) The challenge to the vires of the 6th
amendment Rules, 2006 already having been
repelled by the Supreme Court in V.K.
Srivastava's case, is not open to
reconsideration by us.
(2) There is no factual and legal basis for the
petitioners claim to promotion from date of
occurrence of vacancies and seniority
accordingly in Writ Petition No. 16569(SB) of
2016.
(3) The determination of vacancies by the
Committee does not require any interference
but determination of seniority is not
sustainable.
(4) Considering the facts of the present case
there is no error in the appointment of direct
recruits in December, 2011 and January,
2012 w.e.f. 04.01.2007 when the last of the
selectees of the same selection had joined
following the dictum in Dr. A.K. Sirkar and in
view of Balwant Singh Narwal's case (supra).
(5) There has been a complete
non-adherence to the Quota-Rota Rule and
the determination of seniority in accordance
thereof in terms of Rule 22 and 26 of the
Rule, 1975. The judgment rendered in All
India Judges' Cases has not been followed as
was mandatorily required.
(6) The determination of seniority is patently
erroneous and contrary to Rule 26 of the
Rules, 1975 which envisages such
27
determination in accordance with the order
of appointment in the service under
Sub-Rules (1) and (2) of the Rule 22 which
necessarily means the order of
rotational/cyclical placement of appointees
from different sources of recruitment without
disturbing their inter-se placement within the
same stream/quota and not en bloc
placement on the basis of date of
appointment as has been done.”
29. We have heard learned counsel for the parties. The first
issue raised is whether the promotees recruited in the year
2008/2009 are entitled to seniority prior to their selection on the
ground that no suitability test was required prior to 9th January,
2007 and retrospective effect to such requirement was illegal. We
are in agreement with the view taken by the High Court that
suitability test was required in terms of judgment of this Court in
All India Judges’ case (supra) and under the amended Rules
applicable retrospectively which was duly upheld by this Court in
V.K. Srivastava (supra). Thus, the promotees could not be given
promotion without suitability test nor could they claim seniority
without the same. They have been rightly given seniority from
their appointments.
28
30. With regard to the Quota-Rota rule, there is no doubt that
this is a mandatory requirement of the Rules. The said
requirement has however to be seen in the peculiar fact situation.
The issue of determination of vacancies was embroiled in
continuous litigation. The Quota-Rota rule could not be applied in
the absence of determination of vacancies. The suitability test
though validly laid down could not be held till 2008 for reasons
already noted. No promotion could be given in absence of
suitability test. The rule provided for seniority of the promotees
to be fixed from the date of availability of vacancy but such
seniority could also not be given in the present fact situation. If
rota rule is applied, it will work serious prejudice to the
promotees. Thus, the Rules will have to be given pragmatic
interpretation. As laid down by this Court in Direct Recruit
Class-II Engineering Officers’ Association versus State of
Maharashtra9
, if it becomes impractical to act upon rule fixing
quota from two sources, it is no use insisting that the authority
must give effect to such a rule. Every effort has to be made to
respect a rule but if it is not feasible to enforce it, the rule has to
9 (1990) 2 SCC 715, para 23
29
be given a practical interpretation. Thus, interference by the High
Court with the seniority given to the promotees above the direct
recruits without following the rotation principle cannot be
sustained.
31. Accordingly, we allow the appeal arising out of Special Leave
Petition (Civil) No.26993 of 2017 and dismiss the Writ Petition (SB)
No.1880 of 2017 on the file of the High Court filed by the direct
recruits. We uphold the judgment of the High Court with regard to
dismissal of Writ Petition (SB) No.16569 of 2016 filed by the
promotees and dismiss the appeal arising out of Special Leave
Petition (civil) D.No.39750 of 2017.
In view of the above, all other matters will stand disposed of
accordingly.
……………………………….J.
(Adarsh Kumar Goel)
……………………………….J.
(Rohinton Fali Nariman)
New Delhi;
March 28, 2018.
30