Appeals Nos 668 669 670 and 672 of 1957
Appeal by special leave from the judgment and order dated August 6 1957 of the Assam High Court in Civil Rule No 65 of 1957
A V Viswanatha Sastri and Dipak Datta Choudhury for the appellants in C As
Nos 668 and 669 of 1957 and respondent No 2 in CA No 670 of 1957
section M Lahiri Advocate General for the State of Assam and Naunit Lai for the appellants in CA No 670 of 1957 and respondent No 2 in CA No 669 of 1957
February 7
The following Judgment of the Court was delivered by 1342 SINHA J
These appeals by special leave are directed against the judgments and orders of the Assam High Court exercising its powers under articles 226 and 227 of the Constitution in respect of orders passed by the Revenue Authorities under the provisions of the Eastern Bengal and Assam Excise Act 1910 E B and Assam Act I of 1910 hereinafter referred to as the Act
They raise certain common questions of constitutional law and have therefore been heard together and will be disposed of by this Judgment
Though there are certain common features in the pattern of the proceedings relating to the settlement of certain country spirit shops when they passed through the hierarchy of the authorities under the Act the facts of each case are different and have to be stated separately in so far as it is necessary to state them
1 Civil Appeal No 668 of 1957
The two appellants Nagendra Nath Bora and Ridananda Dutt are partners the partnership having been formed in view of the Government notification dated November 30 1956 amending rule 232 of the Assam Excise Rules to the effect that the settlement of the country spirit shops which may be declared by the Government to be big shops  shall be made with two or more partners who shall not belong to the same family nor should be related to one another vide correction slip at p 106 of the Assam Excise Manual 1946
In accordance with the rules framed under the Act tenders were invited by the Deputy Commissioner of Sibsagar for the settlement of Jorhat country spirit shop for the financial year 1957 58 in December 1956
The appellants as members of the partnership aforesaid submitted a tender in the prescribed form
Respondents 3 and 4 Dharmeshwar Kalita and Someswar Neog respectively also were amongst the tenderors
The Commissioner of Hills Division and Appeals Assam and the Commissioner of Excise Assam are the first and the second respondents in this case It is necessary to state at this stage that in respect of the financial year 1956 57 the shop in 1243 question was ordered by the first respondent as the Excise Appellate Authority to be settled with the first appellant Nagendra Nath as an individual setting aside the orders of the Deputy Commissioner and the Excise Commissioner
The other competitors for the settlement of the said shop being dissatisfied with the orders of the first respondent moved the Assam High Court and challenged the validity of the settlement made in the first appellant s favour
Similar writ cases challenging orders of settlement by the first respondent as the Excise Appellate Authority had been instituted in the High Court
All those cases were heard together and the High Court by its judgment dated May 22 1956 quashed the orders passed by the first respondent chiefly on the ground that the Appellate Authority had been illegally constituted
The matter was brought by way of special leave to this Court and was heard by the Constitution Bench which by its judgment dated January 31 1957 decided that the constitution of the Commissioner of Hills Division and Appeals as the ultimate appellate Authority under the Act was not unconstitutional
The judgment of this Court is reported in the case of The State of Assam vs A N Kidwai 1
It will be necessary in the course of this judgment to make several references to that decision which for the sake of brevity we shall call the ruling of this Court 
The result of the ruling of this Court was that the determination by the Assam High Court that the orders passed by the first respondent were void was set aside and the settlement made by that Authority consequently stood restored
But in the meantime as the orders of the first respondent stood quashed as a result of the judgment of the High Court the direction of the Excise Commissioner that the shop in question be resettled was carried out and the settlement was made with the third respondent aforesaid as an individual
He continued in possession of the shop until February 26 1957 on which date the first appellant was put in possession as a result of the ruling 1 1957 SCR 295
158 1244 of this Court
Even so the first appellant could exercise his rights as a lessee of the shop only for a few months during the financial year ending March 31 1957
For the financial year 1957 58 the Deputy Commissioner in consultation with the local Advisory Committee settled the shop in question with the third and the fourth respondents aforesaid
The tender submitted by the appellants was not considered by the licensing authority on the erroneous ground that the orders passed by the first respondent as the ultimate Revenue Authority in the matter of settlement of excise shops had been rendered null and void as a result of the decision of the High Court referred to above
The appellants as also others who were competitors for the settlement aforesaid preferred appeals to the Excise Commissioner who set aside the settlement made in favour of the respondents 3 and 4 and ordered settlement of the shop with the appellants
The Excise Commissioner took into consideration the fact that the order of the High Court nullifying the proceedings before the first respondent had been set aside by the ruling of this Court
The consequence of the order of this Court was as the Commissioner of Excise pointed out that a supposed disqualification of the appellants as competent tenderers stood vacated as a result of the first respondent s order
The third and the fourth respondents as also other dissatisfied tenderers preferred appeals to the first respondent against the order of the second respondent the Excise Commissioner
The first respondent dismissed those appeals and confirmed the order settling the shop with the appellants by his order dated June 10 1957
The respondents 3 and 4 then moved the High Court under articles 226 and 227 of the Constitution for an appropriate writ for quashing the order passed by the first respondent
The High Court by its order dated August 6 1957 quashed the aforesaid order of settlement in favour of the appellants by the first respondent
The High Court further directed that all the tenders be reconsidered in the light of the observation made by it
The main ground of decision in the 1245 High Court was that the Excise Appellate Authority had acted in excess of its jurisdiction and that its order was vitiated by errors apparent on the face of the record
The prayer for a certificate that the case was a fit one for appeal to this Court having been refused by the High Court the appellants obtained special leave to appeal
11 Civil Appeal No 669 of 1957
This appeal relates to the settlement of the Murmuria country spirit shop in the district of Sibsagar for the financial year 1957 58
The appellant Lakhiram Kalita and the first respondent Bhanurani Pegu amongst others had submitted their tenders for the settlement of the shop
The Deputy Commissioner after consulting the Advisory Committee settled the shop with the first respondent aforesaid
The appeals filed by the appellant and other disappointed tenderers were dismissed by the Excise Commissioner by his order dated March 25 1957
Against the said order the appellant and another party filed further appeals to the Commissioner of Hills Division and Appeals who by his order dated May 30 1957 set aside the settlement in favour of the first respondent and ordered settlement with the appellant
In pursuance of that order the appellant took possession of the shop with effect from June 5 1957
The first respondent s application for review of the order aforesaid stood dismissed on June 11 1957
Against the aforesaid orders of the Commissioner of Hills Division and Appeals the first respondent moved the High Court under articles 226 and 227 of the Constitution for a proper writ for quashing them
On June 17 1957 the writ petition was heard ex parte and the High Court issued a rule to show cause why a writ as prayed for should not be issued
The rule was made returnable within three weeks
The High Court also made the further order in these terms Meanwhile the status quo ante will be maintained
 This last order was misinterpreted by the first respondent and his advisers as entitling them to be put in 1246 possession of the shop and it is stated that the first respondent threatened the appellant to oust him from the shop on the basis of the order of the High Court quoted above
The appellant moved the High Court for a clarification of its order aforesaid
The High Court naturally observed that by I maintaining status quo ante  the High Court meant that whoever was in possession of the shop on June 17 1957 will continue to be in possession during the pendency of the case in the High Court
But curiously enough the Deputy Commissioner by an ex parte order on June 21 1957 directed that the first respondent be put in charge of the shop forthwith and the order was carried out
When the Deputy Commissioner was approached by the appellant to restore him to possession in view of the observation of the High Court he asked the appellant to obtain further order from the High Court
Thereafter the appellant again moved the High Court on June 28 1957 stating all the facts leading to his wrongful dispossession and seeking relief in the High Court
No order was passed on that petition
Ultimatey the High Court by its order dated July 31 1957 set aside the order of the Commissioner of Hills Division and Appeals
The appellant s prayer for a certificate that the case was a fit one for appeal to this Court having been refused by the High Court he moved this Court and obtained special leave to appeal
III Civil Appeal No 670 of 1957
This appeal is on behalf of the Commissioner of Hills Division and Appeals Assam against the judgment and order of the High Court relating to the Murmuria shop which is the subject matter of Civil Appeal No 669 referred to in the previous paragraph
The first respondent to this appeal is Bhanuram Pegu who is also the first respondent in Civil Appeal No 669 of 1957
The second respondent is Lakhiram Kalita who is the appellant in Civil Appeal No 669 of 1957
Both these respondents as already indicated are the competing tenderers for the shop in question
The facts of this case have already been stated in relation 1247 to Civil Appeal No 669 of 1957
This appeal has been brought with a view to getting the legal position clarified in view of the frequent appeals made to the appellant in the matter of settlement of excise shops
IV Civil Appeal No 672 of 1957
This appeal relates to the Tinsukia country spirit shop in the district of Lakhimpur
The appellants Rafiulla Khan and Mahibuddin Ahmad are partners and as such are interested in the settlement of the shop for the financial year 1957 58
This shop had been jointly settled with the first appellant and his father for a number of years
For the year 1956 57 also the lease had been granted to them by the Deputy Commissioner after consultation with the Advisory Committee
A number of unsuccessful tenderers filed appeals before the Commissioner of Excise questining the settlement with the first appellant and his father in respect of the year 1956 57
The Excise Commissioner set aside the settlement and ordered a resettlement
The first appellant and his father filed an appeal before the Excise Appellate Authority against the order of the Commissioner of Excise
The Appellate Authority allowed the appeal and set aside the orders of the Commissioner and the Deputy Commissioner
One Rafiqul Hussain one of the competitors for the shop filed a writ petition before the High Court under articles 226 and 227 of the Constitution
This writ application along with other similar applications was heard and decided by the High Court as afore
said by its judgment dated May 23 1956
Against the judgment of the High Court the first appellant and his father appealed to this Court by special leave with the result indicated above
During the pendency of the appeal in this Court in the absence of a stay order the direction of the Commissioner for a resettlement was carried out
The Deputy Commissioner with the unanimous advice of the Advisory Committee settled the shop with the first appellant on July 25 1956
The first respondent and some others preferred appeals before the Commissioner of Excise against the order aforesaid of the Deputy Commissioner
As the 1248 special leave appeals to this Court were pending at that time the Excise Commissioner under a misapprehension of the effect of this Court s order refusing interim stay set aside the Deputy Commissioner s order and directed the settlement to be made with the first respondent
As there was no Excise Appellate Authority functioning at the time as a result of the decision aforesaid of the High Court declaring the constitution of such an Authority to be void the first appellant moved the High Court under articles 226 and 227 of the Constitution on the ground that the order of the Excise Commissioner was vitiated by an error apparent on the face of the record in so far as he had misunderstood the order of the Supreme Court passed on the stay petition
The High Court admitted the application but rejected the prayer for maintenance of status quo in the sense that the first appellant s possession be maintained
On the stay petition being rejected by the High Court the first respondent took possession of the shop from the first appellant as a result of the Excise Commissioner s order in his favour
The High Court ultimately dismissed the writ application by its order dated December 6 1956
The appeal filed by the appellant and his father already pending in this Court was heard and determined as aforesaid in January 1957
This Court reversed the decision of the High Court and restored the status of the Excise Appellate Authority
As a result of the ruling of this Court the Excise Appellate Authority by its order dated February 25 1957 directed delivery of possession back to the first appellant and his father holding that the order of resettlement and the resettlement itself in pursuance of that order were all wiped out
Against the said order the first respondent moved the High Court under articles 226 and 227 of the Constitution for quashing the order for delivery of possession on the ground of want of jurisdiction and for ad interim stay
The High Court issued a rule and passed an order for interim stay on February 26 1957
The High Court made the rule absolute by its order dated March 26 1957 taking the view that the attention of this Court had not been drawn to the interim 1249 settlement of the shop in the absence of an order of stay
It appears further that during the pendency of the appeal in this Court fresh settlement for the financial year 1957 58 took place towards the end of 1956 and the beginning of 1957
The Tinsukia shop was settled with respondents I and 2 though the appellants also had jointly submitted a tender for the same
The appellants and other parties preferred appeals against the said order of settlement made by the Deputy Commissioner
The Excise Commissioner set aside the settlement by the Deputy Commissioner and directed settlement in favour of the appellants by his order dated April 16 1957
Against that order respondents I and 2 and others preferred appeals before the Excise Appellate Authority who by an order dated June 3 1957 dismissed the appeals
Accordingly the appellants were given possession of the shop on June 7 1957
The respondents I and 2 again moved the High Court for quashing the order of the Excise Appellate Authority affirming that of the Excise Commissioner and also prayed for the status quo being maintained
The High Court admitted the petition and ordered  meanwhile status quo ante be maintained
 This took place on June 10 1957
In pursuance of the aforesaid order of the High Court the appellants were dispossessed of the shop even though they had been put in possession only three days earlier
This was done on a complete misapprehension of the true effect of the order of the High Court maintaining status quo ante
If the High Court had passed its order in a less sophisticated and more easily understood language in that part of the country perhaps the party in possession would not have been dispossessed of the shop settled with it
The appellants moved the High Court against the Commissioner s order directing possession to be given to the respondents 1 and 2
The High Court issued a rule but refused to grant stay of the operation of the order directing possession to be given
During the final hearing of the rule before the High Court the appellants again moved a petition on July 5 1957 for vacating the 1250 order of possession which was based on a misapprehension of the order of the High Court maintaining status quo ante but apparently no order was passed because possession had already been given to the respondents I and 2
During the hearing of the rule by the High Court an unfortunate incident occurred for which the appellants cannot altogether be absolved of some responsibility as a result of which one of the learned judges constituting the Bench namely Deka J expressed his unwillingness to proceed with the hearing of the case
The hearing had therefore to be adjourned on July 15 1957 until a new Bench could be constituted
The appellants renewed their application already made on July 5 as aforesaid for undoing the unintended effect of the order of the High Court that the status quo ante was to continue
But on July 30 the Chief Justice directed that the matter be placed before a Division Bench
As there was no third judge at the time the disposal of the case naturally had to stand over until the third judge was available
The matter of delivery of possession was again mentioned before the Division Bench of the Chief Justice and Deka J
The High Court rejected the application on grounds which cannot bear a close scrutiny
The petitioners also approached the Excise Appellate Authority but it refused to reconsider the matter as the case was then pending before the High Court
Again on August 14 1957 a fresh application was made to the High Court along with a copy of the orders passed by the Excise Appellate Authority and the Deputy Commissioner Lakhimpur giving delivery of possession to respondents 1 and 2
But this time Deka J refused to hear the matter and naturally the Chief Justice directed the matter to be placed before him sitting singly
on August 19 1957 the matter was placed before the Chief Justice sitting singly and he directed a rule to issue on the opposite party cited before that Court to show cause
Apparently the learned Chief Justice treated the matter as a new case and not as an off shoot of the case already pending before the High Court
The High Court closed for the long vacation on September 2 and was to reopen on 1251 November 3 1957
The vacancy of the third judge had not been filled till then and as the appellants felt that they had been wrongfully deprived of their right to hold their shop as a result of an erroneous interpretation of the order of the High Court passed on June 10 as aforesaid and as there was no prospect of the case being disposed of quickly the appellants moved this Court and obtained special leave to appeal
As is evident from the statement of facts in connection with each one of the appeals set out above these cases have followed a common pattern
They come from the non prohibited areas in the State of Assam where sale of country spirit  is regulated by licences issued by the authorities under the provisions of the Act
Settlement of shops for the sale of such liquor is made for one year April I to March 31
According to the present practice contained in Executive lnstructions intending candidates for licences have to submit tenders to the Deputy Commissioner for the Sadar Division and to Sub Divisional officers for Sub Divisions in accordance with the terms of notices published for the purpose
Such tenders are treated as strictly confidential
Settlement is made by the Deputy Commissioner or the Sub Divisional Officer concerned as the case may be in consultation with an Advisory Committee consisting of 5 local members or less
The selection of a particular tenderer is more or less a matter of administrative discretion with the officer making the settlement
Under the Act an appeal from an order of settlement made by a Deputy Commissioner or Sub Divisional officer lies to the Commissioner of Excise and from an order of the Commissioner of Excise to the Excise Appellate Authority whose decision becomes final
Section 9 of the Act dealing with appeal and revision has undergone a series of amendments and the section as it has emerged out of the latest amendment by the Amending Act The Assam Act 23 of 1955 which received the assent of the Governor of Assam on December 22 1955 and was published in the Assam Gazette dated 159 1252 December 28 1955 is in these terms 9
1 Orders passed under this Act or under any rule made hereunder shall be appealable as follows in the manner prescribed by such rules as the State Government may make in this behalf a to the Excise Commissioner any order passed by the District Collector or a Collector other than the District Collector b to the Appellate Authority appointed by the State Government for the purpose any order passed by the Excise Commissioner
2 In cases not provided for by clauses a and b of sub section 1 orders passed under this Act or under any rules made hereunder shall be appealable to such authorities as the State Government may prescribe
3 The Appellate Authority the Excise Commissioner or the District Collector may call for the proceedings held by any officer or person subordinate to it or him or subject to its or his control and pass such orders thereon as it or he may think fit
 Rules 339 340 341 and 345 of the Assam Excise Manual have thus become obsolete and have been deleted as a result of the latest amendment aforesaid
The power of hearing appeals and revisions under the Act has been vested successively in the Board the Assam Revenue Tribunal the Commissioner for Hills Division and Appeals and ultimately under the amended section in the Appellate Authority
The history of the legislation relating to the highest Revenue Authority under the Act has been traced in the judgment of this Court in the State of Assam vs AN Kidwai supra and need not be repeated here
It is convenient first to deal with the general questions of public importance raised on behalf of the appellant in Civil Appeal No 670 of 1957
At the forefront of the arguments advanced on behalf of the Appellate Authority was the plea that the several authorities already indicated concerned with the settlement of excise shops like those in question in these appeals are merely administrative bodies and 1253 therefore their orders whether passed in the first instance or on appeal should not be amenable to the writ jurisdiction or supervisory jurisdiction of the High Court under articles 226 and 227 of the Constitution
If the matter had rested only with the provisions of the Act apart from the rules made under section 36 of the Act much could have been said in support  of this contention
As observed by this Court in the case of Cooverjee B Bharucha vs The Excise Commissioner and the Chief Commissioner Ajmer and others1 there is no inherent right in a citizen to sell liquor
It has further been observed by this Court in the recent case of the State of Assam vs A N Kidwai supra at page 301 as follows  A perusal of the Act and rules will make it clear that DO person has any absolute right to sell liquor and that the purpose of the Act and the rules is to control and restrict the consumption of intoxicating liquors such control and restriction being obviously necessary for the preservation of public health and morals and to raise revenue
 It is true that no one has an inherent right to settlement of liquor shops but when the State by public notice invites candidates for settlement to make their tenders and in pursuance of such a notice a number of persons make such tenders each one makes a claim for himself in opposition to the claims of the others and the public authorities concerned with the settlement have to choose from amongst them
If the choice had rested in the hands of only one authority like the District Collector on his subjective satisfaction as to the fitness of a particular candidate without his orders being amenable to an appeal or appeals or revision the position may have been different
But section 9 of the Act has laid down a regular hierarchy of authorities one above the other with the right of hearing appeals or revisions
Though the Act and the rules do not in express terms require reasoned orders to be recorded yet in the context of the subject matter of the rules it becomes necessary for the I   880
1254 several authorities to pass what are called I speaking orders 
Where there is a right vested in an authority created by statute be it administrative or quasijudicial to hear appeals and revisions it becomes its duty to hear judicially that is to say in an objective manner impartially and after giving reasonable opportunity to the parties concerned in the dispute to place their respective cases before it
In this connection the observations of Lord Haldane at p 132 and of Lord Moulton at p 150 in Local Government Board vs Arlidge 1 to the following effect are very apposite appeal is imposed those whose duty it is to decide it must act judicially
They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made
The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice
But it does not follow that the procedure of every such tribunal must be the same Lord Moulton  In the present case however the Legislature has provided an appeal but it is an appeal to an administrative department of State and not to a judicial body
It is said truthfully that on such an appeal the Local Government Board must act judicially but this in my opinion only means that it must preserve a judicial temper and perform its duties conscientiously with a proper feeling of responsibility in view of the fact that its acts affect the property and rights of individuals
Parliament has wisely laid down certain rules to be observed in the performance of its functions in these matters and those rules must be observed because they are imposed by statute and for no other reason and whether they give much or little opportunity for what I may call quasi litigious procedure depends solely on what Parliament has thought right
These rules are beyond the criticism of the Courts and it is not their business to add to or 1 1255 take away from them or even to discuss whether in the opinion of the individual members of the Court they are adequate or not
 The legal position has been very succinctly put in Halsbury s Laws of England1 as follows Moreover an administrative body whose decision is actuated in whole or in part by questions of policy may be under a duty to act judicially in the course of arriving at that decision
Thus if in order to arrive at the decision the body concerned had to consider proposals and objections and consider evidence if at some stage of the proceedings leading up to the decision there was something in the nature of a lis before it then in the course of such consideration and at that stage the body would be under a duty to act judicially
If on the other hand an administrative body in arriving at its decision has before it at no stage any form of lis and throughout has to consider the question from the point of view of policy and expediency it cannot be said that it is under a duty at any time to act judicially
Even where the body is at some stage of the proceedings leading up to the decision under a duty to act judicially the supervisory jurisdiction of the Court does not extend to considering the sufficiency of the grounds for or otherwise challenging the decision itself
 The provisions of the Act are intended to safeguard the interest of the State on the one band by stopping or at any rate checking illicit distillation and on the other band by raising the maximum revenue consistently with the observance of the rules of temperance
The authorities under the Act with Sub divisional Officers at the bottom and the Appellate Authority at the apex of the hierarchy are charged with those duties
The rules under the Act and the executive instructions which have no statutory force but which are meant for the guidance of the officers concerned enjoin upon those officers the duty of seeing to it that shops are settled with persons of character and experience in the line subject to certain reservations in 1 Vol
3rd Edn PP
56 57
1256 favour of tribal population
Except those general con siderations there are no specific rules governing the grant of leases or licences in respect of liquor shops and in a certain contingency even drawing of lots is provided for vide Executive Instructions 110 at p 174 of the Manual
The words of sub section
3 of section 9 as amended set out above vest complete discretion in the Appellate Authority the Excise Commissioner or the District Collector to pass such orders thereon as it or he may think fit  The sections of the Act do not make any reference to the recording of evidence or hearing of parties or even recording reasons for orders passed by the authorities aforesaid
But we have been informed at the bar that as a matter of practice the authorities under the Act hear counsel for the parties and give reasoned judgments so as to enable the higher authorities to know why a particular choice has been made
That is also apparent from the several orders passed by them in course of these few cases that are before us
But when we come to the rules relating to appeals and revisions we find that the widest scope for going up in appeal or revision has been given to persons interested because r 344 only lays down that no appeal shall lie against the orders of composition thus leaving all other kinds of orders open to appeal or revision
Rule 343 provides that every memorandum of appeal shall be presented within one month from the date of the order appealed against subject to the requisite time for obtaining a certified copy of the order being excluded
Rule 344 requires the memorandum of appeal to be accompanied by a certified copy of the order appealed against
The memorandum of appeal has to be stamped with a requisite court fee stamp
Rule 343 was further amended by the Notification dated March 14 1957 by adding the following proviso and explanations to that rule  Provided further that the competent Appellate Authority shall have the power to admit the appeal after the prescribed period of limitation when the appellant satisfies the Appellate Authority that he had sufficient cause for not preferring the appeal 1257 within such period
Explanation 1
The fact that the appellant was misled by any order practice or judgment of any Appellate Authority in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this Rule
Explanation 2
The fact that the Appellate Authority was unable to function for any period by reason of any judicial pronouncement shall be sufficient cause within the meaning of this Rule
The amendment shall be deemed to have been made on 23rd May 1956 and shall have retrospective effect since that date
 These rules read along with the recent amendments set out above approximate the procedure to be followed by the Appellate Authorities to the regular procedure observed by courts of justice in entertaining appeals
As would appear from the ruling of this Court at p 304 where the provisions and effect of the Assam Revenue Tribunal Transfer of Powers Act 1948 Assam IV of 1948 have been set out the ultimate jurisdiction to hear appeals and revisions was divided between the Assam High Court and the Authority referred to in section 33 of that Act
Appeals and revisions arising out of cases covered by the provisions of the enactments specified in Schedule A  to that Act were to lie in and to be heard by the Assam High Court and the jurisdiction to entertain appeals and revisions in matters arising under the provisions of the enactments specified in Schedule B  to that Act was vested in the Authority to be set up under section 33 that is to say for the purposes of the present appeals before us the Excise Appellate Authority
Thus the Excise Appellate Authority for the purposes of cases arising under the Act was vested with the power of the highest appellate Tribunal even as the High Court was in respect of the other group of cases
That does not necessarily mean that the Excise Appellate Authority was a Tribunal of co ordinate jurisdiction with the High Court or that that Authority was not amenable to the supervisory jurisdiction of the 1258 High Court under articles 226 and 227 of the Constitution
But the juxtaposition of the two parallel highest Tribunals one in respect of predominantly civil cases and the other in respect of predominantly revenue cases without attempting any clear cut line of demarcation would show that the Excise Appellate Authority was not altogether an administrative body which had no judicial or quasi judicial functions
Neither the Act nor the rules made thereunder indicate the grounds on which the first Appellate Authority namely the Excise Commissioner or the second Appellate Authority the Excise Appellate Authority has to exercise his or its appellate or revisional powers
There is no indication that they make any distinction between the grounds of interference on appeal and in revision
That being so the powers of the Appellate Authorities in the matter of settle ment would be co extensive with the powers of the primary authority namely the District Collector or the Sub Divisional Officer
See in this connection the observations of the Federal Court in Lachmeshwar Prasad Shukul and others vs Keshwar Lal Chaudhuri and others 1 and of this Court in Ebrahim Aboobakar and another vs Custodian General of Evacuee Property2
In the latter case this Court dealing with the powers of the Tribunal Custodian General of the Evacuee Property under section 24 of Ordinance No 27 of 1949 observed  Like all courts of appeal exercising general jurisdiction in civil cases the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts
Thus on a review of the provisions of the Act and the rules framed thereunder it cannot be said that the authorities mentioned in section 9 of the Act pass purely administrative orders which are beyond the ambit of the High Court s power of supervision and control
Whether or not an administrative body or 1  102
2   704
1259 authority functions as a purely administrative one or in a quasi judicial capacity must be determined in each case on an examination of the relevant statute and the rule framed thereunder
The first contention raised on behalf of the appellant must therefore be overruled
Now turning to the merits of the High Court s order it was contended on behalf of the appellant that the High Court had misdirected itself in holding that the Appellate Authority had exceeded its jurisdiction in passing the order it did
There is no doubt that if the Appellate Authority whose duty it is to determine questions affecting the right to settlement of a liquor shop in a judicial or quasi judicial manner acts in excess of its authority vested by law that is to say the Act and the rules thereunder its order is subject to the controlling authority of the High Court
The question therefore is whether the High Court was right in holding that the Appellate Authority had exceeded its legal power
In this connection it is best to reproduce in the words of the High Court itself what it conceived to be the limits of the appellate jurisdiction In other words it is not for the Appellate Authority to make the choice since the choice has already been made by the officers below and it is not only where the choice is perverse or illegal and not in accordance with the Rules that the Appellate Authority can interfere with the order and make its own selected sic out of the persons offering tenders
If the Appellate bodies chose to act differently and consider themselves free to make their own choice of the person to be offered settlement irrespective of the recommendations of the Deputy Commissioner or the Officer conducting the settlement the Appellate bodies will be obviously exceeding the jurisdiction which they possess under the law or going beyond the scope of their authority as contemplated by the Rules
 In our opinion in so circumscribing the powers of the Appellate Authority the High Court has erred
See in this connection the decision of this Court in Raman 160 1260 and Raman Ltd vs The State of Madras1
In that case this Court dealt with the powers of the State Government which had been vested with the final authority in the matter of grant of stage carriage permits
This Court held that as the State Government had been constituted the final authority under the Motor Vehicles Act to decide as between the rival claimants for permits its decision could not be interfered with under article 226 of the Constitution merely because the Government s view may have been erro neous
In the instant cases the Appellate Authority is contemplated by section 9 of the Act to be the highest authority for deciding questions of settlement of liquor shops as between rival claimants
The appeal or revision being undefined and unlimited in its scope the highest authority under the Act could not be deprived of the plenitude of its powers by introducing considerations which are not within the Act or the rules
It is true that the Appellate Authority should not lightly set aside the selection made by the primary Authority that is to say a selection made by a Subdivisions Officer or by a District Collector should be given due weight in view of the fact that they have much greater opportunity to know local conditions and local business people than the Appellate Authority even as the appeal courts are enjoined not to interfere lightly with findings of fact recorded by the original courts which had the opportunity of seeing witnesses depose in court and their demeanour while deposing in court
But it is not correct to hold that because the Appellate Authority in the opinion of the High Court has not observed that caution the choice made by it is in excess of its power or without jurisdiction
The next ground of attack against the order of the High Court under appeal was that the High Court had erred in coming to the conclusion that there had been a failure of natural justice
In this connection the High Court has made reference to the several affidavits filed on either side and the order in which they 1  1261 had been filed and the use made of those affidavits or counter affidavits
As already indicated the rules make no provisions for the reception of evidence oral or documentary or the hearing of oral arguments or even for the issue of notice of the hearing to the parties concerned
The entire proceedings are marked by a complete lack of formality
The several authorities have been left to their own resources to make the best selection
In this connection reference may be made to the observations of this Court in the case of New Prakash Transport Co Ltd vs New Suwarna Transport Co Ltd 1
In that case this Court has laid down that the rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the Act under which they function  and the question whether or not any rules of natural justice had been contravened should be decided not under any pre conceived notions but in the light of the statutory rules and provisions
In the instant case no such rules have been brought to our notice which could be said to have been contravened by the Appellate Authority
Simply because it viewed a case in a particular light which may not be acceptable to another independent tribunal is no ground for interference either under article 226 or article 227 of the Constitution
It remains to consider the last contention raised on behalf of the appellants in these cases namely whether there has been any error apparent on the face of the record in the order of the Appellate Authority which would attract the supervisory jurisdiction of the High Court
In this connection the following observations of the High Court are relevant  But the most glaring error on face of the order of the Appellate Authority is that it does not even refer to the report of the Deputy Commissioner on which the Excise Commissioner had so strongly relied
In my opinion it was under the Rules obligatory on the Appellate Authority to consider that report before disposing of the appeal and in failing to do so the officer 1 1262 acted arbitrarily and in excess of his powers as an Appellate Authority
 It may be that durinly the prolonged hearing of these cases before the High Court where counsel for the different parties placed their respective view points after making copious references to the documents the  High Court was greatly impressed that the order of settlement in one case Murmuria shop made by the Deputy Commissioner as confirmed by the Excise Commissioner was the right one and that the choice made by the Appellate Authority did not commend itself to the High Court
It may further be that the conclusions of fact of the High Court were more in consonance with the entire record of the proceedings and that the choice made by the ultimate Revenue Authority was wrong
But under the law as it stands the High Court exceeded its powers in pronouncing upon the merits of a controversy which the Legislature has left to the discretion of the Appellate Authority
But is that a mistake apparent on the face of the record as understood in the context of article 226 of the Constitution  That leads us to a consideration of the nature of the error which can be said to be an error apparent on the face of the record which would be one of the grounds to attract the supervisory jurisdiction of the High Court under article 226 of the Constitution
The ancient writ of certiorari which now in England is known as the order of certiorari could be issued on very limited grounds
These grounds have been discussed by this Court in the cases of Parry  Co vs Commercial Employee s Association Madras 1 Veerappa Pillai vs Raman and Raman Ltd and others 2 Ibrahim Aboobaker vs Custodian General of Evacuee Property 3 T C Basappa vs T Nagappa All these cases have been considered by this Court in 1  2  3  4  1263 the case of Hari Vishnu Kamath vs Syed Ahmad Ishaque and others 1
Venkatarama Ayyar J speaking for the full Court laid down four propositions bearing on the character and scope of the writ of certiorari as established upon the authorities
The third proposition out of those four may be stated in the words of that learned Judge as follows  The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction
One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous
 While considering the fourth proposition whether the writ can be issued in the case of a decision which was erroneous in law after considering the recent Authorities the same learned Judge in the course of his judgment at p 1123 has observed as follows  It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law
But it is essential that it should be something more than a mere error it must be one which must be manifest on the face of the record
 The High Court appears to have been under the impression that the expression error apparent on the face of the record may also be in respect of findings of fact
For example in Civil Appeal No 668 of 1957 relating to Jorhat shop the High Court has observed as follows  The Appellate Authority further reinforced its suspicion by mentioning that Dharmeswar his father and brother are summoned in connection with some complaint but that was a matter purely extraneous to speak the least and it could have found that the complaint was filed after the settlement
The complaint had no reference to any offence of smuggling or the like as has been conceded
These were errors ap
parent on the face of the record
 Later in the course of the same judgment it has been observed as follows  This is another instance where I find that the Excise Appellate Authority has misconceived its 1   1121
1264 powers as such and purported to decide the appeal either on errors of record speculations or on irrelevant considerations irrespective of all that happened in the earlier stages of the matter
It starts with an apparent error of record when it says that in the judgment of the Excise Commissioner it finds a clear admission that Shri Garela Kalita father of Shri Dharmeswar Kalita is a suspected smuggler  In fact there was no such admission
It was held by the Commissioner on the contrary that the learned Deputy Commissioner and members of the Advisory Committee thought that the major son who bears an excellent character should not be punished for the alleged sin of his father 
 These excerpts from the judgment of the High Court are not exhaustive but only illustrative of the observation that the High Court appears to have treated an error of fact on the same footing as an error of law apparent on the face of the record
The question naturally arises whether an error of fact can be invoked in aid of the power of the High Court to quash an order of a subordinate court or Tribunal
The High Court would appear to have approximated it to an error apparent on the face of the record  as used in r 1 of 0
47 of the Civil Procedure Code as one of the grounds for review of a judgment or order but that is clearly not the correct position
Ordinarily a mistake of law in a judgment or an order of a court would not be a ground for review
It is a mistake or an error of fact apparent on the face of the record which may attract the power of review as contemplated by r I of 0
But is the power of a High Court under article 226 of the Constitution to interfere on certiorari attracted by such a mistake and not the reverse of it in the sense that it is only an error of law apparent on the face of the record which can attract the supervisory jurisdiction of a High Court  This question so far as we know has not been raised in this form in this Court in any one of the previous decisions bearing on the scope and character of the writ of certiorari
It is therefore necessary to examine this question directly raised in this batch of appeals 1265 because in each case the High Court has been invited to exercise its powers under article 226 to issue a writ of certiorari on the specific ground that the orders impugned before it had been vitiated by errors apparent on the face of the record errors not of law but of fact
The ancient case of the Queen vs James Bolton1 is treated as a landmark on the question of the power to issue a writ or order of certiorari
That was a case in which an order of justices for delivering up a house to parish officers under a statute was called up on certiorari
Lord Denman C J while discharging the rule made the following observations in the course of his judgment which have been treated as authoritative and good law even now  The first of these is a point of much importance because of very general application  but the principle upon which it turns is very simple the difficulty is always found in applying it
The case to be supposed is one like the present in which the Legislature has trusted the original it may be as here the final jurisdiction on the merits to the magistrates below in which this Court has no jurisdiction as to the merits either originally or on appeal
All that we can then do when their decision is complained of is to see that the case was one within their jurisdiction and that their proceedings on the face of them are regular and according to law
Even if their decision should upon the merits be unwise or unjust on these grounds we cannot reverse it
 While dealing with the argument at the Bar complaining of the unsoundness of the conclusions reached by the magistrates and the hardships to be caused by their erroneous order the Court made the following observations which are very apposite to the facts and circumstances disclosed in the instant appeals and which all courts entrusted with the duty of administering law should bear in mind so that they may not be deflected from the straight path of enforcing the law by considerations based on hardship or on vague 1 1841 I Queen s Bench p 66 72 76 113 English Reports I05410571058
1266 ideas of what is sometimes described as justice of the cause  Beyond this we cannot go
The affidavits being before us were used OD the argument and much was said of the unreasonableness of the conclusion drawn by the magistrates and of the hardship on the defendant if we would not review it there being no appeal to the sessions
We forbear to express any opinion on that which is not before us the propriety of the conclusion drawn from the evidence by the magistrates they and they alone were the competent authority to draw it and we must not constitute ourselves into a Court of Appeal where the statute does not make us such because it has constituted no other
It is of much more importance to hold the rule of law straight than from a feeling of the supposed hardship of any particular decision to interpose relief at the expense of introducing a precedent full of inconvenience and uncertainty in the decision of future cases The case of Reg vs Bolton supra was approved and followed by the Privy Council in the case of the King vs Nat B 11 Liqutors Limited 1
In that case their Lordships of the Judicial Committee held that a conviction by a magistrate for a non indictable offence cannot be quashed on certiorari on the ground that the record showed that there was no evidence to support the conviction or that the magistrate had misdirected himself in considering the evidence
It was further laid down that the absence of evidence did not affect the jurisdiction of the magistrate to try the charge
In the course of their judgment their Lord
ships further observed that the law laid down in Reg vs Bolton supra has never been seriously questioned in England and that the same rules were Applicable to other parts of the Commonwealth except in so far as they may have been modified by statute
They also observed that the decision in Reg vs Bolton supra undoubtedly is a landmark in the history of certiorari for it summarises in an impeccable form the principles of its application 
But latterly the rule 1 1267 laid down in Bolton s case appears to have been slurred over in some decided cases in England which purported to lay down that a writ or order of certiorari could be obtained only if the order impugned disclosed an error of jurisdiction that is to say complete lack of jurisdiction or excess of jurisdiction or the refusal to exercise jurisdiction and not to correct an error of law even though apparent on the face of the record
The question was brought to a head in the case of Rex vs Northumberland Compensation Appeal Tribunal 1
It arose out of an application for an order of certiorari for quashing a decision reached by the respondent Northumberland Compensation Appeal Tribunal
Lord Goddard C J began his judgment by observing that the point involved in the case was  of the very greatest importance  which had  necessitated the examination of a large number of cases and consideration of the principles which apply to the doctrine of certiorari 
He further observed that certiorari is a remedy of a very special character
He then discussed the object and scope of the writ of certiorari and the history of the jurisdiction as exercised in the English courts
He then dealt with the contention directly raised for the determination of the court that an order of certiorari can issue only to remove a defect of jurisdiction and that it does not extend to removing an order out of the way of the parties on account of a mistake of law apparent on the face of the record
The court then considered the relevant authorities and came to the conclusion that it was wrong to hold that the ground of interference on certiorari was only an error or excess of jurisdiction and that it did not extend to correction of an error of law apparent on the face of the record
The Lord Chief Justice then pointed out that the examination of the authorities bearing on the exercise of the power of certiorari yielded the result that it was open to the High Court to examine the record and to see whether or not there was an error of law apparent on the face of the record
The Lord Chief Justice concluded his observations with these remarks 1 161 1268  The tribunal have told us what they have taken into account what they have disregarded and the contentions which they accepted
They have told us their view of the law and we are of opinion that the construction which they placed on this very complicated set of regulations was wrong
 This decision was challenged and on appeal the Court of Appeal dealt with this point in Rex vs Northumberland Compensation Appeal Tribunal1
The Court of Appeal affirmed the proposition laid down by the High Court that an order for certiorari can be granted and the decision of an inferior court such as a statutory tribunal quashed on the ground of an error of law apparent on the face of the record
Singleton L J in the course of his judgment observed that an error on the face of the proceedings which in that case was an error of law has always been re cognized as one of the grounds for the issue of an order of certiorari
Denning L J also in the course of his judgment examined the question whether the High Court could intervene to correct the decision of a statutory tribunal which is erroneous in point of law
On an examination of the authorities from ancient times the Lord Justice made the following observations  Of recent years the scope of certiorari seems to have been somewhat forgotten
It has been supposed to be confined to the correction of excess of jurisdiction and not to extend to the correction of errors of law  and several judges have said as much
But the Lord Chief Justice has in the present case restored certiorari to its rightful position and shown that it can be used to correct errors of law which appear on the face of the record even though they do not go to jurisdiction
I have looked into the history of the matter and find that the old cases fully support all that the Lord Chief Justice said
Until about 100 years ago certiorari was regularly used to correct errors of law on the face of the record
It is only within the last century that it has fallen into disuse and that is only because there has until recently been little occasion for its exercise
I  1269 Now with the advent of many new tribunals and the plain need for supervision over them recourse must once again be had to this well tried means of control
 The other Lord Justice who took part in the hearing of the appeal Morris L J also examined that question and concluded as follows  It is plain that certiorari will not issue as the cloak of an appeal in disguise
It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings
It exists to correct error of law where revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction where shown
 I It is clear from an examination of the authorities of this Court as also of the courts in England that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked is an error of law apparent on the face of the record and not every error either of law or fact which can be corrected by a superior court in exercise of its statutory powers as a court of appeal or revision
So far as we know it has never been contended be
fore this Court that an error of fact even though apparent on the face of the record could be a ground for interference by the court exercising its writ jurisdiction
No ruling was brought to our notice in support of the proposition that the court exercising its powers under article 226 of the Constitution could quash an order of an inferior tribunal on the ground of a mistake of fact apparent on the face of the record
But the question still remains as to what is the legal import of the expression error of law apparent on the face of the record  Is it every error of law that can attract the supervisory jurisdiction of the High Court to quash the order impugned  This court as observed above has settled the law in this respect by laying down that in order to attract such jurisdiction it is essential that the error should be something more than a mere error of law that it must be one which is manifest on the face of the record
In this respect the law in India and the law in England are therefore the same
It is also clear on an examination of all 1270 the authorities of this Court and of those in England referred to above as also those considered in the several judgments of this Court that the Common Law writ now called order of certiorari which was also adopted by our Constitution is not meant to take the place of an appeal where the statute does not confer a right of appeal
Its purpose is only to determine on an examination of the record whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer
Mere formal or technical errors even though of law will not be sufficient to attract this extraordinary jurisdiction
The principle underlying the jurisdiction to issue a writ or order of certiorari is no more in doubt but the real difficulty arises as it often does in applying the principle to the particular facts of a given case
In the judgments and orders impugned in these appeals the High Court has exercised its supervisory jurisdic note in respect of errors which cannot be said to be errors of law apparent on the face of the record
If at all they are errors they are errors in appreciation of documentary evidence or affidavits errors in drawing inferences or omission to draw inferences
In other words those are errors which a court sitting as a court of appeal only could have examined and if necessary corrected
As already indicated the Appellate Authority had unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction
Section 93 of the Act gives it the power to pass such orders as it thought fit
These are words of very great amplitude
The jurisdiction of the Appellate Authority to entertain the appeals has never been in doubt or dispute
Only the manner of the exercise of its appellate jurisdiction was in controversy It has not been shown that in exercising its powers the Appellate Authority disregarded any mandatory provisions of the law
The utmost that has been suggested is that it has not carried out certain Executive Instructions
For example it has been said that the Appellate Authority did not observe the 1271 instructions that tribal people have to be given certain preferences or that persons on the debarred list like smugglers should be kept out see p 175 of the Manual
But all these are only Executive Instructions which have no statutory force
Hence even assuming though it is by no means clear that those instructions have been disregarded the non observance of those instructions cannot affect the power of the Appellate Authority to make its own selection or affect the validity of the order passed by it
The High Court in its several judgments and orders has scrutinized in great detail the orders passed by the Excise Authorities under the Act
We have not thought it fit to examine the record or the orders below in any detail because in our opinion it is not the function of the High Court or of this Court to do so
The jurisdiction under article 226 of the Constitution is limited to seeing that the judicial or quasi judicial tribunals or administrative bodies exercising quasijudicial powers do not exercise their powers in excess of their statutory jurisdiction but correctly administer the law within the ambit of the statute creating them or entrusting those functions to them
The Act has created its own hierarchy of officers and Appellate authorities as indicated above to administer the law
So long as those Authorities function within the letter and spirit of the law the High Court has no concern with the manner in which those powers have been exercised
In the instant cases the High Court appears to have gone beyond the limits of its powers under articles 226 and 227 of the Constitution
In one of the cases the High Court has observed that though it could have interfered by issuing a writ under article 226 of the Constitution they would be content to utilize their powers of judicial superintendence under article 227 of the Constitution vide its judgment dated July 31 1957 in appeals relating to Murmuria shop Civil Appeals Nos 669 and 670 of 1957
In exercise of that power the High Court set aside the order of the Appellate Authority and directed it to re hear the appeal according to law in the light of the principles indicated in this judgment 
1272 A Constitution Bench of this Court examined the scope of article 227 of the Constitution in the case of Waryam Singh and another vs Amarnath a rid another 1
This Court in the course of its judgment made the following observations at p 571   This power of superintendence conferred by article 227 is as pointed out by Harries C J in Dalmia Jain Airways Ltd vs Sukumar Mukherjee 2 to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors
 It is thus clear that the powers of judicial interference under article 227 of the Constitution with orders of judicial or quasi judicial nature are not greater than the powers under article 226 of the Constitution
Under article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record
But under article 227 of the Constitution the power of interference is limited to seeing that the tribunal functions within the limits of its authority
Hence interference by the High Court in these cases either under article 226 or 227 of the Constitution was not justified
After having dealt with the common arguments more or less applicable to all the cases it remains to consider the special points raised on behalf of the respondents in Civil Appeal No 672 of 1957 relating to the Tinsukia country spirit shop
It was strenuously argued that the appeal was incompetent in view of the fact that the rule issued by the High Court was still pending and that this Court does not ordinarily entertain an appeal against an interlocutory order
It is true that this Court does not interfere in cases which have not been decided by the High Court but this case has some extraordinary features which attracted the notice of this Court when special leave to appeal was granted
As already stated the shop in question was settled with the appellants by the Excise Commissioner and his order was upheld by the Appellate Authority
Accordingly the appellants 1  2 AI R 195i Cal
1273 had been put in possession of the shop on June 7 1957
The High Court while issuing the rule passed an order on the stay application which as already indicated had been misunderstood by the District Excise authorities and the appellants were dispossessed and the respondents I and 2 put back in possession without any authority of law
This was a flagrant interference with the appellants  rights arising out of the settlement made in their favour by the highest revenue authorities
The High Court had not and could not have authorized the dispossession of the persons rightfully in possession of the shop
The appellants brought this flagrant abuse of power to the notice of the High Court several times but the High Court felt unduly constrained to permit the wrong to continue
We heard the learned counsel for the respondents at great length as to whether he could justify the continuance of this undesirable and unfortunate state of affairs
It has to be remembered that the appellants as a result of fortuitous circumstances had been deprived of the possession of the shop during the best part of the financial year 1956 57 The appellants had been deprived of the fruits of their hard won victory in the revenue courts without any authority of law and the High Court failed to right the wrong in time though moved several times
In these circumstances we found it necessary to hear both the parties on the merits of the orders passed by the Commissioner of Excise and the Appellate Authority in favour of the appellants against which the respondents had obtained a rule
After having heard both sides we have come to the conclusion that no grounds have been made out for interference by the High Court under its powers under articles 226 and 227 of the Constitution
This case shares the common fate of the other cases before us of having run through the entire gamut of the hierarchy created under the Act read along with the amending Act and the rules thereunder
We do not find any grounds in the orders of the Excise Authorities which could attract the supervisory jurisdiction of the High Court there being no error of law apparent on the face of the record 1274 or a defect of jurisdiction in the Authorities whose orders have been impugned in the High Court
We would however like to make it clear that we are interfering with the interlocutory order passed by the High Court in this case because of its unusual and exceptional features
It is clear that our decision on the main points urged in the other appeals necessarily leads to the inference that even if all the allegations made by the respondents in their petition before the Assam High Court are accepted as true there would be no case whatever for issuing a rule
Indeed the respondent found it difficult to resist the appellant s argument that if the other appeals were allowed on the general contentions raised by the appellants the dismissal of his petition before the Assam High Court would be a foregone conclusion
It is because of these special circumstances that we have decided to interfere with the interlocutory order in this case in the interests of justice
As a result of these considerations the appeals must be allowed and the orders passed by the High Court in the several cases set aside
On the question of costs we direct that the appellants in each case should get their costs here and in the High Court except the appellant in Civil Appeal No 670 who has failed on the main point raised on his behalf and who therefore must bear his own costs
Appeals allowed


Summary:
 These appeals and the special leave petitions were directed against the judgment and order of the Andhra Pradesh Administrative Tribunal quashing the panel of names prepared by the State Government under r 8 of the Andhra Pradesh Medical  Health Service Special Rules 1982 to fill up the promotional post of Professor of Cardiology as on 1st July 1983 reckoning the teaching experience of all the Assistant Professors in that super speciality in order of seniority holding that the Assistant Professors of Cardiology in different medical colleges in the State who had the requisite five years  teaching experience under r 5 of the Rules having the alternate qualification in cl
b of Annexure II to the Rules were eligible for promotion as such and directing the State Government to draw up a fresh panel after considering the claims of all such Assistant Professors of Cardiology treating them as possessing the requisite teaching experience in terms of r 5 for the promotional post of Professor of Cardiology as on 1st July 1983
There were four vacancies in the post of Professor of Cardiology
On 1st July 1983 the State Government prepared a panel of all Assistant Professors of Cardiology in Government Medical Colleges in the State having the requisite teaching experience under r 5 after obtaining the post graduate qualification as specified in the Annexure II and included in the panel the names of Dr G Subramanayam Dr A Rajagopala Raju and Dr Soghra Begum Assistant Professors of Cardiology who had on the crucial date 1st July 1983 five years  teaching experience after obtaining their post graduation degree in DM Cardiology as enjoined by r 5 read with the first proviso thereto and by order dated the 17th August 1983 promoted them to the post of Professor of Cardiology
174 The respondents Dr R Murali Babu Rao and Dr G Sai Gopal then moved the Andhra Pradesh Administrative Tribunal assailing the impugned order of promotion characterising the action of the State Government in the matter of computation of five years  teaching experience after post graduation degree in DM Cardiology as being wholly arbitrary and irrational
The appellant CH Umesh Chandra came up in appeal as the view expressed by the Tribunal prejudicially affected him
He had obtained his post graduate degree in MD in Medicine in December 1975 and his second post graduate degree in DM Cardiology in April 1980
In view of the fact that he had obtained his second post graduate degree in DM Cardiology in April 1980 he sought to support the stand of the Government as he had a better chance of promotion to the post of Professor of Cardiology
After these matters were heard and the judgment was reserved by this Court a similar question came up before the Court in State of Orissa vs Dr Sivsanker Lal Bajoria  Anr
 Civil Appeal No 4456 of 1986 by Special Leave granted to the State Government of Orissa against the judgment and order of the High Court evolving a rule of substantial compliance and therefore these matters were re listed
In the Civil Appeal No 4456 of 1986 the Court issued notice to the Medical Council of India to clarify its stand as to the eligibility of Assistant ProfessorsReaders in Cardiology to the promotional post of Associate ProfessorProfessor in Cardiology and in particular to the import of the term two years special training  within the meaning of Regulation 52b of the Indian Medical Council Regulations 1970 framed under section 33 of the 
The Court desired the Indian Medical Council to specify the particular institution where such training was imparted
An affidavit sworn to by Assistant Secretary on behalf of the Medical Council of India was filed placing its point of view
Dismissing the appeals and the special leave petitions the Court  HELD The issue involved was of far reaching importance to the entire medical profession as similar problem was faced by the State Governments in promoting Readers  Associate Professors in a speciality to the post of Professor in that speciality in the medical colleges
179E F In these cases the entire controversy was due to the failure of the 175 State Government to give the benefit of the teaching experience gained by the Assistant Professors after they had obtained their post graduate degree in MDMRCP in Medicine under cl b of Column 5 in serial No 17 of Annexure II
187G Rule 4 of the Rules in terms speaks of the eligibility of such class of Assistant Professors of Cardiology for promotion to the post of Cardiology who possess five years  teaching experience
The expression teaching experience  as defined in r 5 speaks of teaching experience in the speciality concerned in a medical college or an institute recognised by the Medical Council of India after obtaining post graduate qualification as specified in Annexure II 
The words used are after obtaining post graduate qualification  it does not speak of the second postgraduate qualification
Rule 5 therefore takes in both the qualifications specified in clauses a and b of Column 5 in serial No 17 of annexure II namely a DM Cardiology and b MDMRCP in Medicine with two years  training in Cardiology
On the crucial date 1st July 1983 cl
b was very much there and the Government was bound to consider the claims of the aforesaid respondents like other officers belonging to that class before drawing up a panel under r 8
There was no warrant for the submission that since under r 92 an Assistant Professor with the requisite five years  teaching experience after obtaining his second post graduate degree in DM Cardiology would have preferential claim over those having the qualification mentioned in cl
b ie MDMRCP in Medicine with two years  training in Cardiology the State Government was entitled to ignore the claims of the latter class altogether
On its plain construction r 92 is a rule of preference and has therefore to be applied at the stage of making appointments to the post of Professor of Cardiology and not while drawing up a panel under r 8
The Government was obviously misled by the wrongful assumption i that since alternate qualification in cl
b of Column 5 in serial No 17 of Annexure II had been deleted by GOMS No 789 dated 12th December 1983 it was not necessary for it to consider the claims of the aforesaid respondents and others similarly situate in drawing up a list of eligible Assistant Professors of Cardiology and ii that such officers were rendered ineligible by reason of r 92 and therefore their claims needed not to be considered
The Tribunal was therefore justified in quashing the impugned panel prepared by the State Government under r 8 of the Rules and in directing the Government to prepare a panel afresh after considering the claims of all the Assistant Professors of Cardiology with five years  teaching experience after their post graduation in MDMRCP in Medicine with 2 years  training in Cardiology
189C H 190A B 176 There was no substance whatever in the contention that the alternate qualification in cl
b being in conflict with the recommendation of the Medical Council of India must be deemed to have been replaced by implication and was non est wef 31st May 1977
The Government had no doubt the recommendations of the Council conveyed by the letter of the Secretary dated 26th April 1978 that after 31st May 1977 for all teaching posts higher than Tutor in higher specialities ie CardiologyNeurologyGastro EnterologyThoracic Surgery Neuro SurgeryPlastic Surgery Paediatric Surgery Urology the candidates must possess the post graduate qualification in the speciality concerned ie DMMCh
after MDMS or other equivalent qualification as might be approved by the Council from time to time
The letter also went on to say that the existing qualification MDMS or an equivalent qualification with two years  special training in a recognised training centre in the speciality concerned would cease to be sufficient qualification for appointment to the aforesaid teaching posts from that date
Nevertheless the Government failed to appreciate that the recommendation of the Council was only recommendatory and could not override a rule framed under the proyiso to article 309 of the Constitution
The panel had to be drawn up by the State Government strictly in conformity with the rules of recruitment made under the proviso to article 309 and not on the basis of the recommendation of the Council
190C F As was manifest from the affidavit filed by the Indian Medical Council the Council is only a recommendatory body
Constituted under section 3 of the Act the Indian Medical Council is an expert body intended and meant to control the minimum standards of medical education and to regulate their observance
A fortiori the recommendations made by the Council or the Regulations framed by it are only recommendatory and not mandatory
It is not for the Council to prescribe qualifications for recruitment to posts of Professors
Readers and Lecturers it can only lay down broad guidelines therefor
Such qualifications have necessarily to be prescribed by the framing of Rules under the proviso to article 309
The right to be considered for promotion is a condition of service and it can only be regulated by a rule framed under the proviso to article 309
The Medical Council in its affidavit accepted that there were no special guidelines laid down for Cardiology and asserted that some UniversitiesInstitutions might have prescribed the syllabus
The contention of the State Government and the other appellants that the recommendations of the Medical Council as conveyed by the letter of the Secretary dt
26th April 1975 rendering Assistant Professors of Cardiology having the alternate qualification of 177 post graduate degree in MDMRCP in Medicine ineligible for promotion to the post of Professor of Cardiology even though they had the requisite five years  teaching experience appeared to be wholly misconceived and unwarranted
190G H 191E H 192A The present case was concerned with the meaning of the expression teaching experience  occurring in r 5 of the Rules and with the class of officers who after their appointment as Assistant Professors of Cardiology on having obtained post graduate degree in MDMRCP had been teaching the subject Cardiology for years together
Indeed the alternate qualification specified in cl
b of column 5 in serial No 17 of Annexure II takes in this class of officers and makes them eligible under r 5
On the crucial date 1st July 1983 cl
b was still there and the Government was bound to consider the claims of such officers before drawing up a panel under r 8
193C E Emphasis was laid by counsel for the State Government and other appellants on the words with two years training in Cardiology  with the submission that none of the respondents had the requisite training
The expression special training  is defined in r 7 as the work done by an Assistant Professor in the concerned recognised unit and exclusively devoted to the speciality
The question then arises for the applicability of r 7 there are two conditions to be fulfilled firstly there must be an institution set up either by the Medical Council of India or by the Government or Universities exclusively devoted to imparting teaching in the different courses of Cardiology and secondly such an institution should have been recognised by the Government
There was no material on record to establish that there was any such recognised unit either in the State of Andhra Pradesh or elsewhere
That apart it could not be appreciated why the Associate Professors Readers Assistant Professors of Cardiology teaching Cardiology in the medical colleges for years together should not be regarded as having special training in Cardiology within the meaning of cl
b of column 5 in the serial No 17 of Annexure II
Any other view would lead to a very anomalous situation
It would be a travesty of justice if the officers belonging to the class like the respondents representationists Dr R Murali Babu Rao and Dr G Sai Gopal Assistant Professors of Cardiology with five years  teaching experience after their post graduation in MDMRCP in Medicine as on the 1st July 1983 were not empanelled by the State Govt
under r 8 to fill up vacancies in the post of Professor of Cardiology even though they possessed the requisite qualifications under r 5 of the Rules
It must be remembered that the alternate qualification in cl
b namely MDMRCP in Medicine with two years  training in 178 Cardiology was still there and it was not open to the Government to ignore the same merely because it was in conflict with the recommendation of the Medical Council of India as conveyed in the letter of the Secretary dated 26th April 1976
193F H 194A E There were many distinguished Assistant ProfessorsReaders Associate Professors of Medicines in the medical colleges in the different States teaching Cardiology as a subject who had gained sufficient expertise and knowledge in the different branches of Cardiology and it would be unfortunate if such Assistant ProfessorsReadersAssociate Professors of Medicine were merely because they were MDMRCP in Medicine considered ineligible for appointment to the post of Professor of Cardiology even though they had the requisite teaching experience in the many branches of Cardiology for the last 15 to 20 years in the medical colleges
In view of this the expression five years  teaching experience  occurring in r 5 of the Rules as well as the phrase with two years  training in Cardiology  in cl
b of column 5 in serial No 17 of Annexure II of the Rules must receive a liberal construction
The experience gained by them while teaching in different branches of Cardiology should be treated as sufficient to meet the requirements of r 5 of the Rules as well as of cl
The Court expressed the hope that the Medical Council of India the Union Government and the State Governments as also the State Medical Councils would give a second thought to the problem and try to evolve a solution to the problem by which the right of such persons to be considered for promotion to the post of Professor of Cardiology could be kept preserved without allowing any fall in the standards of further education
196H 197A D State of Madhya Pradesh vs Km
Nivedita Jain  and Union of India  Ors
vs SB Kohli  Anr  referred to