ivil Appeal No 2992 of 1986
From the Judgement and Order dated 2271986 of the Madras High Court in WP No 815 of 1985
TS Krishnamurthy Iyer Miss Purnima Bhat Atul Sharma AV Pillai and EC Agrawala for the Appellant
P Chidambaram R Ayyam Perumal KC Dua V Krishnamurthy and R Mohan for the Respondents
The Judgement of the Court was delivered by SC AGRAWAL J
This appeal and the connected petitions for special leave to appeal are directed against the common judgment of the Division Bench of the Madras High Court dated July 22 1986 whereby the judgement of the learned Single Judge has been set aside and the writ petitions filed by the appellant as well as the petitioners in the special leave petitions referred to as the petitioners  for the sake of convenience have been dismissed
The petitioners joined the Indian Army as Emergency Commissioned Officers ECOs in 1963 after the Chinese aggression
They were discharged from the Army during the years 1967 to 1970
After their discharge from the Army they joined the Commercial Tax Service of the State of Tamil Nadu on being selected by the Tamil Nadu Public Service Commission through a competitive examination
For rehabilitation of ECOsShort Service Regular Commissioned Officers SSRCOs on their release from the Armed Forces the Government of Tamil Nadu had by GO ms No 84 dated January 1 1967 reserved 25 of the vacancies to be filled by direct recruitment during the four years 1967 1970 in respect of certain categories of posts in the State services
By Order GO Ms No 686 dated March 24 1970 the Government of Tamil Nadu in modification of the said order reserved 25 of the vacancies in non technical posts under various groups both Gazetted and non Gazetted to be filled by direct recruitment during five years commencing from 1969 for rehabilitation of ECOsSSRCOs on their release from the Armed Forces
The said order made provision for relaxation of age in case of such officers for 849 the purpose of recruitment to be reserved vacancies
As regards seniority provision was made in paragraph 8 of the said order which prescribed as under Inter se seniority among the candidates selected for the reserved vacancies will be determined by the Commission
So far as the seniority in the department is concerned the officers will take their seniority with reference to the order of preference indicated by the Commission and not with reference to the service with the Armed Forces
It appears that in respect of doctors who had joined the defence forces in connection with the emergency declared in 1962 and who were subsequently appointed in the cadre of Assistant Surgeons in the State of Tamil Nadu the Government had issued an Order GO Ms No 2020 dated September 23 1965 whereby seniority of such an incumbent was to be fixed by allotting them the year in which he would have been appointed to the post at his first possible attempt after the date of joining military servicetraining
The Tamil Nadu Public Service Commission in their letter dated February 6 1973 addressed to the Chief Secretary to the Government of Tamil Nadu made a reference to GO Ms No 2020 Health dated September 23 1965 with regard to fixation of seniority of candidates appointed to the post of Assistant Surgeon against vacancies reserved for ECOsSSRCOs and expressed the view that allowing one of released persons like Doctors to enjoy the concession of their seniority being reckoned with reference to their date of appointment in the Army and at the same time denying such a concession to ECOsSSRCOs selected to a non technical post will not be fair and such differential treatment will not also be in the interests of rehabilitating released Army personnel
The Public Service Commission therefore commended that the principle followed in the matter of determining seniority in respect of released Army Doctor with reference to the date of their joining duty in the Armed Forces be extended to all services as recruitment to all the sevices are made on the basis of the competitive examinations comprising either of a written test or an oral test or a combination of both
In the said letter it was requested that orders in paragraph 8 of GOMs 686 may be suitably modified
Keeping in view the aforesaid view expressed by the State Public Service Commission the Government of Tamil Nadu passed an order GOMs No 25 dated November 16 1976 whereby in supersession of the earlier procedure prescribed for determining the seniority of the ECOsSRRCOs recruited for non technical posts both Gazetted and non Gazetted against reserved 850 vacancies in GOMs No 686 dated March 24 1970 the following procedure was prescribed i the seniority of the Emergency CommissionedShort Service Regular Commissioned Officers recruited to the State Civil Services both Ghazetted and Non Gazetted between 2431970 to 41073 against reserved vacancies shall be fixed treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military servicetraining After the issuance of the aforesaid order dated November 16 1976 it was represented to the State Government that the concession granted to the ECOsSSRCOs recruited to the Civil Services of the State instead of confirming it only to those recruited between 1970 and 1973
The State Government decided to accede to that request and issued a fresh GOms No 734 dated June 15 1977 whereby the orders in para 1i of the Order dated November 16 1976 were thus modified 1
i The seniority of Emergency Commissioned OfficersShort Service Regular Commissioned Officers recruited to the non technical posts against reserved vacancies shall be fixed treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military duty
In the case of candidates who joined Military service on or before 30th June of a year the year of allotment would be the same while in the case of those who joined the Military services on or after Ist July of a year the year of allotment would be the next year
 By the said order it was also directed that the appointing authority should take steps to refix the seniority of the ECOsSSRCOs recruited to the Civil Services with reference to instructions after issuing notices to all affected parties
In accordance with the aforesaid directions notices were issued to the other officers whose seniority was likely to be disturbed in view of the concession extended to ECOsSRRCOs under Order dated June 15 1977
After taking into consideration the representations received in pursuance of the said notice 851 the State Government issued an Order GOMs
No 233 dated March 3 1980 whereby the orders dated November 16 1976 and June 15 1977 were cancelled
In the said order it was stated that The Government have carefully examined the above representations with reference to the legal position
They consider that the vested seniority rights already accused to individuals by virtue of the rules in force cannot be divested by issuing fresh rules and giving retrospective effect to them
The Government have therefore decided not to implement those orders by amending the special Rules governing these non technical posts
 The petitioners as well as some other ECOsSSRCOs filed writ petitions in the Madras High Court challenging the validity of the said order dated March 3 1980
The writ petitions were heard by a learned Single Judge of the High Court who allowed the same by his judgement dated December 4 1984
The learned Single Judge was of the view that under orders dated November 16 1976 and June 15 1977 which were passed on the recommendations of the Tamil Nadu public Service Commission the petitioners had acquired certain rights in the matter of seniority and promotion and since the impugned Government order takes away the said rights of the petitioners the petitioners should have been afforded an opportunity of a hearing before passing the impugned order which had not been done in this case
Appeals were filed by the State Government as well as by private respondents against the said decision of the learned Single Judge
The said appeals were decided by a Division Bench of the High Court by its judgment dated July 22 1976 whereby it was held that the provision with regard to fixation of seniority in the cadre of Commercial Tax Officer CTOs in which the petitioners were appointed in governed by Rule 35 of the General Rules which are contained in Part II of the Tamil Nadu State and Subordinate Service Rules made under proviso to Article 309 of the Constitution and under the said rule seniority is to be fixed on the basis of date of appointment to the service
the learned Judges found that the said Rules had not been amended and in the absence of an amendment in rule 35 the orders with regard to fixation of seniority of ECOsSSRCOs contained in Orders dated November 16 1976 and June 15 1977 were invalid and no rights could accure to the petitioners on the basis of the said orders which may require affording an opportunity to them
With regard to Doctors and Engineers the learned Judges have pointed out that suitable amendments had been made in the relevant statutory rules relating to both 852 the services
The learned Judges therefore while setting aside the order of the learned Single Judge dismissed the Writ Petitions of the petitioners but observed that the judgment would not prevent the State Government from amending the Rules made under Article 309 of the Constitution and if and when rules are made and if any persons are affected they are entitled to challenge the said Rules
Feeling aggrieved by the said decision of the division Bench of the High Court the petitioners have approached this Court
The first contention that has been urged by the learned counsel for the petitioners is that the concessions contained in the orders dated November 16 1976 and June 15 1977 were not invalid inasmuch as it was permissible for the State Government to issue administrative instructions with regard to determination of the seniority of the ECOsSSRCOs and by the said orders which were issued on the recommendations of the State Public Service Commission the lacuna which was found in the existing rules was sought to be removed and that it w as permissible for the State Government to issue administrative instructions to remove such a lacuna
In support of the said submission reliance has been placed on the decisions of this Court in Sant Ram Sharma vs State of Rajasthan  Anr   Union of India vs HR Patankar 7 Ors 1985 1 SCR 400 and State of Gujarat vs Akhilesh C Bhargav  Ors  In the above mentioned decisions it has been laid down that although the Government cannot amend the statutory rules by administrative instructions but if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed
in the instant case it cannot be said that on the date of issue of orders dated November 16 1976 and June 15 1977 the rules were silent on the matter of fixation of seniority of persons recruited to the Tamil Nadu Commercial Tax Service
Appointment to the said service was governed by General Rules contained in Part Ii of the Tamil Nadu State and Subordinate Rules
Clauses a and aa of rule 35 of the said General Rules provide as under a The seniority of a person in a service class or category or grade shall unless he has been reduced to lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other appointing authority as the case may be subject to the rule of reservation 853 where it applies
The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority
aa The seniority of a person in a service class or category or grade shall where the normal method or recruitment to that service class category or grade is by more than one method of recruitment unless the individual has been reduced to a lower rank as a punishment be determined with reference to the date on which he is appointed to the service class category or grade
This shows that thee was an express provision in the statutory rules providing that seniority shall be fixed on the basis of the date of appointment
By orders dated November 16 1976 and June 15 1977 the said principle for fixation of seniority contained in rule 35 was sought to be altered in respect of ECOsSSRCOs and the seniority was sought to be fixed on the basis of a different criterion namely by treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military duty
This was inconsistent with the principle for fixing the seniority contained in rule 35 of the General Rules and this could onlybe done by suitably amending the said rules and it could not be done by issuing administrative instructions
The High Court has in our opinion rightly held that the directions contained in orders dated November 16 1976 and June 151977 were invalid being contrary to the provisions contained in rule 35 of the General Rules
Since the said orders were invalid the petioners could not claim any right on the basis of the said orders and there was therefore no question of affording them an opportunity of a hearing before passing the order dated March 3 1980
In so far as appointments to medical and engineering services are concerned the High Court has pointed out that suitable amendments were made in the relevant Services Rules relating to those services whereby the benefit of the Army Service was given in the matter of fixation of seniority of ECOsSSRCOs
who had joined the medical and engineering services
No similar amendment has been made in the rules governing the non technical services eg Commercial Tax Service to which the petitioners were appointed
The learned counsel for the petitioners have next contended that the petitioners have been subjected to arbitrary discrimination i n the matter of fixation of their seniority inasmuch as ECOsSSRCOs who have joined the medical and engineering service of the Government of 854 Tamil Nadu have been given the benefit of their service in the Army in the matter of fixation of seniority whereas similar benefit has been denied to the petitioners even though the petitioners as well as other ECOsSSRCOs who have joined medical and engineering service were all similarly situate
In this connection reliance has been placed on the decision of this Court in Union of India  Ors
vs Dr section Krishna Murthy  Ors etc 1989 Supp
1 SR 275
This contention in our view is misconceived
ECOsSSRCOs who have joined medical and engineering services of the State of Tamil Nadu were technically qualified in their fields and they had worked in the Army in the same field in which they are now employed in the State service
The benefit of the experience gained by them during the period of their service in the Army on the posts viz medicalengineering held by them was available to the State they joined the medicalengineering services of the State of Tamil Nadu
The same cannot be said for the petitioners because the nature of the duties discharged by them in the Army were different from the duties they are now required to perform at CTOs in the State service
It cannot therefore be said that the ECOsSSRCOs who have joined the medical and engineering services of the State of Tamil Nadu and the petitioners who have joined the Commercial Tax Department of the State are persons similarly situate in the matter of determination of seniority and for counting the earlier Army service for that purpose
In Union of India vs Dr section Krishna Murthy case supra the ECOsSSRCOs on discharge from the Army had joined the Indian Forest Service and the Indian Police Service and provision was made in the Regulation of Seniority Rules governing these Services whereby it w as provided that year of allotment of an officer appointed to the said Service shall be deemed to be the year in which he would have been so appointed at his first or second attempt after the date of joining pre commission training or the date of their commission where there was only post commission training
The validity of the said rules was challenged by other direct recruits to those Services on the ground that the ECOsSSRCOs could not be classified into a separate category
The said contention was rejected by this Court and it was held that ECOsSSRCOs formed a definite class distinct from other officers of the Indian Forest Service and Indian Police Service and that the said classification was founded on an intelligible differentia which distinguishes them from other officers and that the classification has rational relation to the objects sought to be achieved by the Rules inasmuch as it has been made for the purpose of compensating the ECOsSSRCOs for the lost opportunity because of their joining the Army service
855 The said decision may have a bearing in the event of rules being framed making provision for giving the benefit of Army service in the matter of fixation of seniority of the petitioners and other persons who have joined the Commercial Tax Service of the State of Tamil Nadu
Since there is no such rule the petitioners cannot derive any assistance from this decision
In the circumstances we find no ground to interfere with the decision of the High Court
The appeal as well as the special leave petitions are therefore dismissed but with no orders as to costs


Summary:
In the 1989 elections to the Lok Sabha respondent No 2 was declared elected from the Bombay South Central Constituency
One of the defeated candidates respondent No 1 filed an election petition challenging the validity of the election of respondent No 2 inter alia on the ground of corrupt practices under sub section 23 and 3A of section 123 of the Representation of the People Act 1951
The High Court having reached the stage in the trial when it was prima facie of the opinion that the charges alleged in the petition of corrupt practices falling under sections 1233 and 123A had been proved to have been committed it proceeded under section 99 to name the collaborators in such corrupt practices
The High Court accordingly directed issuance of notices to three persons
Aggrieved by this order two of the person named therein approached his Court by way of two separate appeals
Before this Court it was contended on behalf of the appellants that i the consequences of naming a person on his being found guilty pursuant to such notices were grave ii the proviso to sub section1 of section 99 of the Act enjoined upon the Court to state precisely the charges and the evidence which the person summoned was called upon to meet and iii the notices to the appellants to answer allegations of corrupt practices allegedly committed by them were vague
Allowing the appeals and directing the High Court to issue proper notices to the appellants in the light of law this Court HELD 1 It is clear from the provisions of sub clauses i and ii of clause a of sub section 1 of section 99 that at the time of deciding 760 the election petition the Court has to record a finding that a corrup practices is proved to have been committed and that it has been committed by a particular person
The Court has not only to name the person but also the nature of the corrupt practice committed by him766F G 2 If the person is a party to the petition it is not necessary to hear him separately before recording such finding
However when he is not a party to the petition before such serious finding is recorded against him he must have the same opportunity as the party to the petition to meet the allegations against him
In that respect he stands on the same footing as the party to the petition against whom such a finding is to be recorded
He cannot be discriminated against and made to suffer any disadvantage because he is not a party to the petition
766H 767 3 Where a corrupt practice is alleged the trial of an election petition on such charges is of a quasi criminal nature and a heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge
This is as it should be since the naming of a person as having committed a corrupt practice has a serious consequence of disqualifying him from being chosen as or from being member of any House of Parliament or of the Legislative Assembly or Council of a State for a period upto 6 years
769B C DP Mishra vs Kamal Narain Sharma  Ors 1971 3 SCR 257 and Rashim Khan vs Khurshid Ahmed  Ors 1975 ISCR 643 referred to
4 When the legislature requires that the election petition shall contain full particulars of each and every alleged corrupt practice including as fuller a statement as possible of the names of the parties and the date and place of commission of such practice it would be contrary to the object of the said provisions to hold that when a notice is issued under Section 99 against a person who is not a party to the election petition for holding him guilty of any corrupt practice the notice should not appraise him of the precise charge against him and give him the full particulars thereof769D E 5 The impugned order directing the issuance of notice is extremely vague and defective to the point of being contrary to the provisions of law
The notice is of an omnibus character
Section 1233 does not refer to one corrupt practice but a variety of them
Yet the notice does not specify which particular corrupt practice is sought to be 761 brought home to each of the appellants and does not state which of the portions of the petition etc
is being relied upon to sustain which of the charges and against which of the appellants
769F G 770B Order dated December 1 1988 in Special Leave petition No 13163 of 1988 and the later non speaking order of January 23 1989 in the matter overruled 771D