No 17238 of 1988
IN Writ Petition Nos
630 632 of 1984
Under Article 32 of the Constitution of India
Shanti Bhushan and PD Sharma for the Petitioner
GL Sanghi Mahabir Singh Rana Ranjit Singh Srinivas Choudhary SK Mehta and GK Bansal for the Respondents
The Judgment of the Court was delivered by NATARAJAN J
This Civil Miscellaneous Petition has been filed with a prayer for appropriate directions being issued to the State of Haryana as under a Issue appropriate directions to the respondents No 1 and 2 1082 to implement the judgment and order dated 171286 and carry out the directions issued by way of writ of mandamus as prayed to this Hon ble Court in its full spirit giving effect to the promotion orders dated 301287 from back dates deemed dates or the dates when their juniors were promoted
b Further issue suitable directions to the Respond ents No 1 and 2 to allow other consequential benefits viz fixation of pay from deemed dates payment of arrears pension and gratuity benefits to all officers figuring in list dated 271085 irrespective of their retirement prior to the order of promotions dated 301287 pronouncement
c Give effective relief to the petitioner Shri Mohinder Singh Kundu in full irrespective of his retire ment
d Any other suitable orders or directions as this Hon ble Court may deem fit and proper in the facts and circumstances set out in the present petition
To understand the grievance of the petitioners it is necessary to set out the back ground material and the pro nouncements made in TR Kapoor vs State of Haryana  and Ashok Gulati vs BS Jain  in favour of the petitioners
The petitioners who are Diploma holders initially joined the Class III Engineering Service of the Punjab State in the early fifties and were promoted to Class II service as officiating SDOs in the middle sixties and in the case of some of them the said temporary promotion was even earli er
By a Notification dated 27101985 the petitioners and other similarly situated persons were regularly constituted as Class II service officers with effect from 25121970
Further avenues of promotion to them were barred because the State Government construed the Service Rules to mean that without a degree in Engineering a Class II officer cannot be promoted to Class I service
The said interpretation of the Service Rules was disapproved by this Court in AS Parmar vs State of Haryana 1984 2 SCR 476
By reason of that judgment it followed that a degree in Engineering was not an essential pre requisite for a member of Class II service being promoted to the Class I service
1083 After the judgment in AS Parmar s case supra was rendered the petitioners filed Writ Petitions under Article 32 of the Constitution seeking writs of mandamus to the State Government to consider the case of the petitioners and the like of them for promotion to the posts of Executive Engineers in Class I service
On 2421984 an undertaking was given to the Court that the State would consider the claims of all the eligible persons including the petitioners for regular appointment to Class I service and that the exercise would be completed within four months time
Howev er two days before the expiry of the said period of four months the State Government brought an amendment to the Rules with retrospective effect from 10764 so as to make a degree in Engineering an indispensable qualification for an officer in Class II service being promoted to Class I serv ice
Dismayed by the action of the State Government the petitioners amended their writ petitions suitably and chal lenged the validity of the amendment to the Rules
After considering the matter in detail this Court delivered judgment on 17121986 striking down the impugned amendment to the rules as ultra vires the State Government and in a connected appeal CA No 149 of 1981 Ashok Gulati supra this Court directed the State Government to consider the cases of all eligible members of Class II service for promo tion to the post of Executive Engineer in Class I service in accordance with law and to complete the process of appoint ment within six months  time
As the State Government failed to give effect to the said directions within the allotted time of six months the petitioners filed a contempt petition CMP No 15430 of 1988 against the State
In reply to the contempt petition the State Government stated that the delay in the implemen tation of the Court s order was due to the stupendous nature of the work involved in the fixation of seniority of more than four hundred officers their promotions reversion claims and counter claims and their deemed promotions etc
After taking note of the said explanation this Court di rected the State to expedite the matter and to complete the process of promotion of Class II officers to class I service within a period of two months and ordered the contempt petitions to be listed in the first week of January 1988
When the contempt petition came up before Court on 411988 it was represented on behalf of the State Government that the Court s directions have been complied with and orders of promotion have been issued to the petitioners on 301287 itself
Acting on 1084 the said representation this Court passed the following order and discharged the notice in the contempt petition in view of this Court s order dated 17th December 1986 and the order dated 12th Octo ber 1987 the officers concerned have been promoted by an order dated 30th December 1987 and we presume that they will now be posted in consequence of that promotion
We hope and trust that the State of Haryana will pass posting orders expeditiously
The Civil Mis cellaneous Petition is disposed of according ly
It is thereafter the petitioners have come forward with this application for directions
The contention of the petitioners is that since their placement in Class II serv ice had been made effective with effect from 25121970 though the order therefore was issued on 27101985 they were entitled to be considered for promotion to Class I service as and when they attained eligibility after 25121970 especially in view of the judgment in AS Par mar s case supra which held that a degree in Engineering was not an essential pre requisite for members of Class II service being promoted to posts in Class I service
It is therefore stated by the petitioners that in all fairness they must be placed in their rightful position by being given promotion from back dates or deemed dates or in any case the dates when persons junior to them were promoted According to the petitioners their juniors were given promo tions in the years 1963 1969 1970 1971 1973 1976 and 1978
The petitioners blame the State Government for their non promotion because of the delay in preparing the seniori ty list of Class II officers till 1985 and for closing the doors of promotion to them by wrong interpretation of the Rules and thereafter by making a wrongful amendment to the rules till judgments were rendered in TR Kapoor s case supra and Ashok Gulati s case supra on 17121986
The petitioners would therefore contend that the promotions given to them belatedly on 30121987 do not render full justice to them and the said order is also not fully in compliance with the directions given by this Court in the judgments rendered in the two cases on 171286
Yet another grievance put forth is that the Government has not given relief to those Class II officers who have retired from service prior to 30121987
The petitioners therefore seek further directions being issued to the State Government to give them and other similarly placed officers besides those who have already retired from service the benefit of promo tion with effect from back dates or deemed dates as per theft entitlement or atleast from the dates when persons junior to 1085 them were promoted together with all the consequential benefits arising therefrom
In reply to the petition for directions three counter affidavits have been filed on behalf of the State of Har yana one by Shri HD Bansal Financial Commissioner and Secretary to Government Irrigation  Power Department and the second by Shri HK Khosla Engineer in Chief Irriga tion Department
In both the counter affidavits it has been stated that the State has fully complied with the direc tions of the Court by giving promotion to all the petition ers by order dated 301287 and that the Court in approval of the action of the Government as proper compliance to the directions given on 17121986 dropped further proceedings in the contempt petition and as such there is no basis for the petitioners to seek further directions from the Court
The third counter affidavit dated 141088 has been filed by Shri Raj Rup Fuliya Deputy Secretary to Government of Haryana Irrigation and Power Department
Therein the stand taken is that since the petitioners had acquiesced in the interpretation of the Service Rules by the Government till they filed the writ petitions the petitioners are not entitled to claim promotional benefits with reference to their service in Class II posts from 1970
It is further stated that in the judgments rendered in TR Kapoor vs State of Haryana supra and Ashok Gulati vs BS Jain supra this Court had not directed that promotions should be given to the petitioners from back dates or deemed dates or from the dates their juniors were promoted to Class I Service
Likewise it is stated that the Court had not directed the State to give the benefit of promotion to per sons who have already retired from service
The petitioners have controverted the averments in the counter affidavits by means of a rejoinder and have reiter ated their claim for promotion from anterior dates
In turn Shri Raj Rup Fuliya Deputy Secretary to the Government has filed a supplemental counter affidavit to the rejoinder filed by the petitioners
In the light of the conflicting stands taken by the parties it falls for consideration whether the petitioners are entitled to the benefit of promotion from anterior dates ie from deemed dates of promotion or from the dates their juniors were promoted as claimed by them or whether the promotions given to them on 301287 by the Government amounts to grant of full relief to the petitioners as per this Court s judgments dated 171286
1086 Taking up for consideration the contention of the peti tioners that by reason of their being constituted Class II Officers with effect from 251270 they were entitled to promotion as and when they attained seniority but the State Government had unjustly deprived them the benefit of promo tion due to wrong interpretation of the Rules we are unable to accept the plea for more than one reason
In the first place the petitioners had acquiesced in the interpretation of the Rules by the State Government all along and it was only after the decision in AS Parmar s case they chose to move this Court under article 32 of the Constitution to seek promotional benefits
Having remained complacent for a long number of years the petitioners cannot now turn round and say that notwithstanding their inaction they should be granted promotion from deemed dates on the basis of seniori ty
Secondly in the long interval of time that had elapsed before the petitioners chose to file the writ petitions several oher Class II Officers holding engineering degrees have been promoted to Class I Service
The benefits which had accrued to those persons by reason of their promotions cannot now be disturbed or interfered with by giving the petitioners promotions from deemed dates of eligibility for promotion
In other words a settled state of affairs among the Class I Promotees cannot be unsettled now
As already stated during the pendency of the writ petitions the State Government gave an undertaking on 2421984 that they would consider the claims of the peti tioners for promotion to Class I service and pass orders in four months  time
Subsequently the State Government went back on its representation and brought about an amendment with retrospective effect to the Rules so as to make a degree in engineering an essential qualification for promo tion to Class I service
This amendment was struck down by this Court in TR Kapoor s case and it was observed as follows Presumably the State Government adopted this unfortunate course of action taking cue of the observations made by this Court in the con cluding part of the judgment in AS Parmar s case saying that if the Government wish to appoint only persons having a degree in Engi neering to Class I service it was free to do so by promulgating appropriate rules and that the power to frame such a rule was beyond question
But the Court never laid down that such a rule may be framed under article 309 of the Constitution with retrospective effect so as to render ineligible Class II officers like the petitioners who were Diploma holders 1087 for further promotion as Executive Engineers in Class I service
In view of the clear formulation of law interpreting r 6b of the Class I Rules holding that a degree in Engi neering was not an essential qualification for promotion of Class II Officers to the cadre of Executive Engineers in Class I service there was no occasion for the State Government to issue the impugned notification unless it was with the object of nullifying the decision of this Court in AS Parmar s case
After thus disapproving the Government s action this Court gave directions to the State Government in the connected appeal Ashok Gulati vs BS Jain supra to consider the claims of all the eligible Class II officers for promotion to Class I service without reference to their possessing a degree in Engineering
It is bearing in mind these factors the question whether the promotions granted to the petition ers with effect from 30121987 amounts to sufficient com pliance of the directions of the Court dated 17121986 has got to be examined
Inasmuch as the petitioners had not asked for mandamus being issued for promotion them to Class I posts from ante rior dates on deemed basis or with reference to the promo tions given to junior persons and since even if such a prayer had been made the relief would not have been given for the reasons set out above this Court appropriately called upon the Government to consider the case of all eligible members of Class II service for promotion to the post of Executive Engineer in Class I service in accordance with law and to complete the process of appointment within six months time
The direction therefore enjoined the Gov ernment to give promotion to all Class II officers who were eligible for promotion to Class I service after Rule was issued in the writ petitions
Even before the direction was issued the Government had conceded the position and that was why the Government had asked for four months time through its counsel to consider the case of all eligible Class II officers and give them promotion
The combined effect of the striking down of the amend ment to the Rules by the Government and the direction issued to the Government in Ashok Gulati s case supra to consider for promotion the names of all the eligible Class II offi cers would entitle the petitioners to seek the benefit of promotion from 2461984 when the time limit of four months sought for by the State Government to make the promotions came to expire
But for the unsustainable amendment made to 1088 the Rules the Government could not have postponed the promotion of the petitioners and other Class II officers similar to them beyond the time limit of four months which expired 2461984
It would therefore follow that the order of promotion made by the State Government on 3012
1987 will not amount to due compliance of the Court s directions dated 17121986
The Government cannot take advantage of its own error in making an illegal amendment to the Rules with retrospective effect and postpone the benefit of promo tion to Class II officers
The Government cannot also take umbrage for its action in giving promotion to the petitioners and other eligible Class II officers with effect from 30121987 either because the directions given on 17121986 did not set out the date from when promotions should be given or because the Court passed orders on 411989 dropping further proceedings in the contempt petition
As regards the directions issued on 17121986 to the State Government to give promotions to the Class II officers in accordance with law they must be construed with reference to the observations made in TR Kapoor s case supra that the amendment to the Rule with retrospective effect by the Government was with the object of nullifying the decision of this Court in AS Parmar s case
Viewed thus the Government s action in giving promo tions to the petitioners and others belatedly on 30121987 cannot be construed as due compliance of the Court s direc tions
Once that conclusion is reached the question would then be as to from which date the Government should have given promotions to the petitioners and others in accordance with the directions of the Court
The latest point of time in which the Government could not and should have given promotions would be the date on which the four months  time prayed for by the Government on 2421984 to give promotions to the eligible Class II officers came to an end
The said period on 2461984 and the Government cannot escape its obligation to give promotions to the officers in question with effect from that date
In so far as the order passed in the contempt applica tion on 41
1988 is concerned it is needless to say that this Court did not go into the question on that day as to whether the order of promotion passed on 30121987 was in full compliance or only in partial compliance of the Court s order dated 17121986
In fact it is the grievance of the petitioners that the State Government did not communicate to them the orders passed on 30121987 and therefore they had no opportunity to state before Court on 411988 that the Government had acted mala fide in granting them promotion only with effect from 30121987 and that the said order had been passed only to escape 1089 the consequences of the contempt petition and not for ful filling the directions given by the Court on 17121986 to promote all eligible persons in accordance with law
We therefore direct the State Government to give promotion to all eligible Class II officers with effect from 2461984 and to give them all the consequential benefits arising therefrom
The benefits of promotion and consequen tial benefits should also be given to all those officers who were eligible for promotion on 2461984 but who have re tired since then
The Government shall complete the exercise in two months  time from today
To this extent the petition for directions will stand or dered
No costs


Summary:
The appellant is a foreign national
At Colva on seeing a police party on patrol he accelerated the speed of his motor cycle ignoring the signal given by Assistant Sub Inspector of Police PW 7 and in that process lost con trol over the vehicle and fell down
Thereafter he immedi ately stood up and removed a paper wrapping from his pant pocket and threw it away which on verification was found to contain a small quantity of brown sugar
The appellant was taken to the nearby police post along with the motor cycle
A hand bag attached to the motor cycle was opened and exam ined in the presence of two pancha witnesses and it was found that there was brown sugar hidden in the Camera case Ganja oil in the steel container and opium in the shaving cream tube torch light and shoe
All the substances were weighed and seized under a panchnama and sample of these contrabands divided into three categories were sent to Chemical Analyst PW 6 who found that one sample contained 168 ww of Morphine an alkaloid extracted from opium and the other sample contained a dark brown 1026 sticky substance having odour similar to that of extract of cannabis
The quantity of the substance namely a dark brown soft mass having characteristic colour of opium found in the third sample was not sufficient to carry out further analy sis
The appellant was consequently prosecuted for possession of prohibited drugs under the Narcotic Drugs and Psychotrop ic Substances Act 1985
The Sessions Judge convicted him under Sections 21 20bii and 18 of the Act and imposed a sentence of 10 years rigorous imprisonment and a fine of Rs 100000 and in default to undergo rigorous imprisonment for one year
The High Court dismissed the appeal of the appel lant and confirmed the sentence passed by the Trial Court but modified the default sentence from one year to six months
In this appeal challenging the correctness of the con viction it was contended on behalf of the appellant that i in the absence of any injury on the person of the appel lant the case of the prosecution that the appellant fell down from his vehicle is hardly acceptable ii the pancha witnesses were not the respectable inhabitants of the local ity therefore the seizure of the contrabands was in viola tion of the provisions relating to search and seizure iii the omission to send sufficient representative quantity of the contrabands for analysis affected the veracity of the prosecution case iv the omission to include the owner of the motor cycle PW 5 as an accused and the non examination of the person at whose instance the vehicle was lent to the appellant affected the prosecution case and v since the appellant was in possession of these drugs or substances in a small quantity for his personal consumption he was liable to be punished only under section 27a of the Act
Dismissing the appeal HELD 1
If a person is thrown off or fails from a speeding vehicle he may sustain injuries either serious or simple or escape sometimes unhurt but it depends on the speed of the vehicle the manner of fall the nature of the soft and the surface of the earth etc
In the instant case the evidence and other connected facts lead to the inference that the appellant had fallen down immediately after he attempted to speed up the vehicle and was caught hold of by the police
Therefore it is right that the appellant was caught by the police under the circumstances as put forth by the prosecution and the appellant however escaped unhurt
1031H 1032A D 2
If pancha witnesses are not respectables of the same locality 1027 but from another locality it may amount only to an irregu larity not affecting the legality of the proceedings and that it is a matter for Courts of fact to consider and the Supreme Court would not ordinarily go behind the finding of facts concurrently arrived at by the Courts below
1032G H 1033A B Sunder Singh vs State of UP  Tej Bahadur vs State of UP and State of Punjab vs Wasson Singh and Ors
   ap plied
21 In the instant case the appellant was secured in the midnight near the Police Out Post
It is indisputably shown that the pancha witnesses are not outsiders but are residents of the same area where the Police Out Post is situated
The fact that these two witnesses are not residing in the vicinity of the seizure does not disturb the accept ance of the evidence relating to the seizure of the contra bands and other articles
Except making some bare sugges tions that both the witnesses were regular and professional witnesses nothing tangible has been brought out in the cross examination to discredit the testimony
1033C E 3
In the instant case the omission to send sufficient quantity of samples of contrabands for analysis does not affect the intrinsic veracity of the prosecution case
The testimony of the Chemical Analyst and her opinion recorded in the unimpeachable document lend assurance to the case of the prosecution that the contrabands seized from the posses sion of the appellant were prohibited drugs and substances
1033F H 4
The Medical Officer is not expected to know the differences in the legal parlance as defined in section 2xiv and xxii and specified under Schedules I to III of the Narcotic Drugs and Psychotropic Substances Rules 1985 made under the Act
Therefore the admission of the Chemical Analyst that she does not know the difference between the narcotic drugs and psychotropic substances by itself is no ground for ruling out her evidence
1034A B 5
There is absolutely no material to hold that the owner of the motor cycle was in any way connected with the seizure of the contrabands or he has committed any indict able offence though the vehicle belonged to him
The non examination of the person at whose instance the owner lent his motor cycle to the appellant does not in any way affect the prosecution case
1034C D 1028 6
Section 27a of the Act provides punishment for illegal possession in small quantity for personal consump tion of any narcotic drug or psychotropic substance
The expression small quantity  occuring in that section is explained under Explanation I there of as such quantity as may be specified by the Central Government by Notification in the Official Gazette
1035A B In the instant case the penal provisions of section 27a has no role to play as the prohibited drugs and sub stances possessed by the appellant were far in excess of the quantity mentioned in Column 3 of the table under the rele vant Notification
1036D Even if a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic sub stance the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution lies on such person as per Explanation 2 of Section 27 of the Act
1036E The very fact that the appellant in the instant case had kept these drugs and substances in many ingeniously devised places of concealment in the camera shaving tube torch and shoes would indicate that the appellant was having full knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law
Therefore the sentence of 10 years rigorous imprisonment and the fine of Rs1O0000 with the default clause as modified by the High Court does not call for interference
1036F 1037D