DICTION Civil Appeal Nos
3797 3798 of 84 and 3926 of 1986
From the Judgment and Order dated 2121983 of the Allahabad High Court in Writ Petition Nos 2451 and 2155 of 1983
Anil Dev Singh GLSanghi MK Ramamurthi Mrs SDikshit SK Mehta MK Dua Aman Vachhar and SC Birla for the AppellantsPetitioners
SN Kacker and R B Mehrotra for the Respondents
The Judgment of the Court was delivered by RAY J
We allowed the Civil Appeal No 3926 of 1986 and dismissed Civil Appeal No 3797 of 1984 and writ petition No3796 of 1986 filed by Dr MC Bindal and Civil Appeal No 3798 of 1984 filed by the State of Uttar Pradesh by our order dated December 19 1986 and we indicated therein that the reasons for the above order would be given later on
Accordingly we are giving the reasoned judgment hereinbelow
The UP Public Service Commission made an advertisement in various newspapers on September 13 1981 inviting applications for the post of Food  Drug Controller UP The qualifications for this post stated in the said advertisement are set out hereunder Necessary qualifications 1 A degree from any recognised University in Medicine SciencePharmaceutical Chemistry
PG NO 39 2 Experience of 5 years in Drug Standardization and problems relating to controlling of Drug standards or drug manufacturing or drug testing in a renowned institution
Pursuant to the said advertisement Dr MC Bindal Ir
SK Majumdar Shri Ram Chander Singh and others filed applications
The appellant Dr Bindal stated in his application that he has seven years  experience as per the advertisement
He also stated that he had three and a half years  specific experience ie experience in the field of drug testing and four years other experience namely experience in the field of teaching Pharma analysis including testing of transfusion fluids in the hospitals pharmacy manufacturing units attached to LLRM Medical College Meerut
It has also been stated that in the four years of teaching experience in addition to his teaching responsibility he also conducted the laboratories in which drug testing was carried out
Of the applicants Dr SK Majumdar was not called for interview
The UP Public Service Commission after holding interview of the candidates recommended the following candidates for appointment to the post of Food  Drug Controller UP a In the main list 
Shri RC Singh b In the Reserve List 
Dr MC Bindal Prov The Commission also recommended for relaxation of age of Shri RC Singh
The Commission also made it clear that the word Provisional  denoted that the recommendation was sub ject to the petitioner meeting the necessary qualification experience of 5 years for the appointment to the office of the Drug Controller On December 5 l982 the State of Uttar Pradesh intimated the Commission that the candidate Shri RC Singh did not appear to be suitable in view of the fact that there had been a vigilance enquiry against him
It was also pointed out in the said letter that the appointment of Shri RC Singh as Food  Drug Controller would not be in public interest
The State further pointed out that Dr Bindal had the requisite experience of 5 years and he had al60 excellent academic and other qualifications
In reply to the said letter sent by the Secretary Medical and Health UP Government
the UP Public Service Commission by its letter dated February 23 1983 intimated to the State of UP that the right to appoint or not to PG NO 40 appoint a candidate vested with the State of UP and it was for the State Government to take a decision accordingly
On eceipt on this letter the State Government appointed Dr MC Bindal as Food  Drug Controller UP by its letter dated April 6 1983
Thereafter two writ petitions were filed in the High Court at Allahabad Lucknow Bench one by Shri RC Singh and another by Dr SK Majumdar challenging the appointment of Dr MC Bindal on the ground that he had not the requisite experience as required for the said post of Food  Drug Controller UP
These writ petitions are writ petition No 2451 of 1983 and writ petition No 2155 of 1983These were heard together and were allowed in part by a common judgment on December 22 1983
The relevant portions of the findings are set out herein To sum up  I The order appointing Dr Bindal to the post finally was premature 2 Before final decisions taken in the matter the State Government has to take a decision on a whether to allow or reject Shri RC Singh s representation against the censure entry based on vigilance report and then to consider the question of his suitability for appointment
b Whether to relax the age limit for Shri RC Singh c If Shri RC Singh was not to be considered suitable then to consider in consultation with the Public Service Commission the question whether Dr Bindal fulfilled the requisite qualification relating to practical experience in accordance with law d If Dr Bindal is found not to fulfil the qualification then to consider whether the qualification relating to practical experience has to be modified or not e As Dr Bindal is not perse unsuitable or disqualified for the post he will continue to hold the post provisionally till a decision is taken as above
The final decision should however be taken at an early date say within a period of three months from today
Accordingly the petitioners succeed in part
The matter will have to be considered afresh by the State Government in some respects as set out above in consultation with the Commission
Dr Bindal s appointment cannot however be held to be illegal because it is not in violation of any statutory provision
Indeed ii an IAS Officer could hold the post for such a long time Dr Bindal being certainly better qualified can also hold the post
PG NO 41 However his appointment shall be treated as only provisional and will be subject to the final decision of the State Government as indicated herein above
The writ petitions are accordingly allowed in part to the extent indicated above
No order is made as to costs
 Aggrieved by the said judgment Dr Bindal who was one of the respondents in the said writ petitions filed a special leave petition being SLP C No 10330 of 1984 which was numbered as Civil Appeal NO
3797 of 1984 after the grant of special leave
The State of Uttar Pradesh also filed SLP C NO908484 and this was numbered subsequently as Civil Appeal NO3798 of 1984 after grant of special leave
The UP Public Service Commission however in the meantime on March 15 1984 directed one of its officers ie Deputy Secretary to verify whether Dr Bindal fulfilled the qualifications relating to practical experience in drugs standardization or drug manufacturing or drug testing in a renowned institution
The Deputy Secretary after enquiry sent a report to the UP Public Service Commission stating that the total period of experience of Dr Bindal on the date of submission of his application was only 3 years 4 months and 9 days whereas the essential qualification required was experience should be for 5 years from any repute concern
The UP Public Service Commission took a decision on April 17 1984 to the effect that the Commission withdraws and cancels the provisional recommendation and the candidature because Shri Bindal does not possess the requisite qualifications and the same was sent to the Government on April 23 1984
Dr Bindal moved a writ petition being writ petition No 756 of 1986 against this impugned order made by the Public Service Commission withdrawing the candidature of Dr Bindal and cancelling its recommendation of the petitioner for the post of Food and Drug Controller U 
It is necessary to mention in this connection that on September 21 1984 this Court while granting special leave made an order of stay of operation of the High Court judgment pending hearing of the appeal
But subsequently on March 18 1986 after hearing the learned counsels the interim order of stay was recalled in consideration of the fact that UP Public Service Commission had already cancelled the candidature of the appellant and withdrawn the recommendation made in his favour for the reason inter alia that he lacked in five years experience in Drug testing
This Court also directed the State Government to appoint a member or one Indian Administrative Service to function as the Food  Drug Controller UP PG NO 42 It has been urged on behalf of the appellant Dr Bindal that the order of the Public Service Commission in cancelling the candidature of the appellant and withdrawing the recommendation made in his favour is wholly illegal and bad in as much as the Government has considered the certificates produced by the appellant and found that the appellant had the requisite experience of five years in Drug testing and as such he was appointed by the Government as Food and Drug Controller UP
The UP Public Service Commission was wrong and patently in error in withdrawing the candidature of the appellant and in cancelling its recommendation without properly considering the opinion of the Government to the effect that the appellant had the requisite experience of five years in drug testing
It has been further contended in this connection that the Provision of Article 320 of the Constitution of India providing for consultation with the Union Public Service Commission or providing for consultation with the State Public Service Commission is not mandatory and as such the recommendation of the Commission was not binding on the State Government
It has been submitted that the recommendation of the Commission is in the nature of advisory function and it is for the State to take the ultimate decision
Some decisions of this Court have been cited at the bar on this score
In the instant case the advertisement for the post was made at the instance of the UP Public Service Commission and the requisite qualification for the post had been specified in the advertisement
It is therefore essential that a candidate in order to be considered for appointment for the said post must have to comply with the requisite qualification namely the educational qualification as well as the experience in drug testing etc
for a period of five years
If any of these essential qualifications is lacking then the candidate cannot claim to be appointed in the said post
Undoubtedly it is the Public Service Commission who has to receive the applications of the candidates and has to scrutinise them and then to decide which of the applicants have got the requisite qualifications and so be called for interview
It is the duty of the Commission with the help of experts in the particular subject to hold interview and to find out and select the candidates having the requisite qualifications and experience fit to be recommended to the Government for appointment to the said post of Food  Drug Controller
Therefore under Article 3203a and b it is the duty of Public Service Commission to consider and to get itself satisfied as to which of the candidates has fulfilled the requisite qualifications specified in the advertisement
The Commission in this particular case has duly got verified the certificate of the Dr Bindal in regard to his experience of five years in drug testing by a Deputy Secretary of the Commission and after considering his PG NO 43 report as well as the certificates came to the conclusion that the appellant though fulfilled educational qualifications lacked in the requisite experience of five years in drug testing
The Commission therefore revised its earlier decision and withdrew the candidature of the appellant and also cancelled its recommendation earlier given in favour of the appellant
This decision of the Public Service Commission in our considered opinion cannot be faulted
It is the constitutional requirement envisaged in Article 320 that the Commission will have to perform the duty of recommending the candidate fulfilling all the requisite qualifications for the post to the Government for being considered for appointment to the post concerned
It is of course a well settled legal position that the duty to consult the Commission in the matter of appointment to civil posts by the Government is not mandatory but directory and as such the absence of consultation with the State Public Service Commission does not render any appointment made by the Government in Civil posts invalid or illegal
It cannot also be contended that since the duty to consult the Public Service Commission in the matter of making appointments to Civil Services of the State is directory and not mandatory the appointment of Dr Bindal as Food  Drug Controller UP by the Government of Uttar Pradesh cannot be questioned or interfered in by the Court in as much as the candidature of the appellant Dr Bindal for the post in question has already been withdrawn by the Public Service Commission and as such the question of validity or invalidity of the appointment of the appellant
Dr Bindal to the said post is no longer open to be considered by the Court
In such circumstances the only course open for the Government is to re advertise the post
If such advertisement is made the appellant
Dr Bindal will be free to apply for the same
It has been brought to our notice by a subsequent affidavit sworn by Dr SK Majumdar that the said post with a changed name as Drug Controller was advertised and Dr Bindal s name was recommended for the said post by the UP Public Service Commission and the deponant was not called for interview
We do not think it proper to take notice of the subsequent fact and we refrain from expressing any opinion in this respect
It is open to the parties to take appropriate steps in accordance with law
For the reasons aforesaid the Civil Appeal No 3926 of 1986 is allowed and Civil Appeal No 3797 of 1984
Writ Petition No 756 of 1986 filed by Dr MC Bindal and Civil Appeal No 3798 of 1984 filed by the State of Uttar Pradesh are dismissed with costs


Summary:
The appellant was registered under the Bombay Sales Tax Act 1946
He maintained double sets of account books and knowingly furnished for the period September 30 1950 to March 31 1951 false returns to the Sales Tax Officer and thereby committed an offence under section 241b of the Act
Under the Act sanction of the Collector was necessary before cognizance of the offence could be taken by a Court
The I946 Act was repealed by the Bombay Sales Tax Act 1952 but the 1952 Act was declared ultra vires by the Bombay High Court
Thereupon the Bombay Sales Tax Ordinance 11 Of 1952 was promulgated which provided that the 1946 Act was to be deemed to have been in existence up to November 1 1952
This was followed by Ordinance 111 of 1952 which further extended the life of the 1946 Act
Thereafter the Bombay Sales Tax Act 1953 was passed which repealed both the 1946 Act and Ordinance III of 1952
The 1953 Act made provision for an offence similar to that covered by section 241b of the Act prescribed a similar procedure for prosecuting persons committing the said offence and saved liabilities incurred under the 1946 Act
During the period when Ordinance III of 1952 was in force the State Government issued a notification appointing the Additional Collector to be a Collector under the Ordinance and the Additional Collector granted sanction for the prosecution of the appellant
The appellant was tried by the Presidency Magistrate before whom he pleaded guilty
The Magistrate accepted the plea convicted him under section 241b of the 1946 Act and sentenced him to a fine of Rs 200 in default to suffer one month s rigorous imprisonment
The State preferred a revision to the High Court for enhancement of the sentence
The appellant contended that by the repeal of the 1946 Act the offence was effaced and that the prosecution was defective inasmuch as sanction was given by the Additional Collector and not by the Collector as required by the 1946 Act
The High Court repelled both these contentions and enhanced the sentence to rigorous imprisonment for one month in addition to the fine already imposed 251 Held that the offence under section 241b of the 1946 Act was covered by the saving clause in section 48 of 953 Act and the appellant could be convicted of that offence
The saving by section 48 of the 1953 Act of  any liability incurred  under the 1946 Act saved both civil and criminal liability
Held that the sanction given by the Additional Collector was a valid sanction for the prosecution of the appellant
The notification issued under Ordinance III of 1952 appointing the Additional Collector as Collector must be deemed to have been made in exercise of the relevant power in respect of the offence saved by the Ordinance
Further the notification must be deemed to have continued in force under the 1953 Act by reason of section 492 of that Act
Sanction pertains to the domain of procedure and the procedure prescribed under the new 1953 Act must be followed even in respect of offences committed under the repealed 1946 Act
Held further that in the circumstances of the case the High Court was justified in enhancing the sentence
The sentence should depend upon the gravity of the offence and not upon the fact that the accused pleaded guilty or attempted to defend the case
As the appellant had kept double sets of account books it was eminently a case in which a substantive sentence ought to have been imposed and the Magistrate improperly exercised his discretion in awarding a sentence of fine only
But the High Court was wrong in awarding rigorous imprisonment as section 241b provided only for simple imprisonment