tition Nos
17165 86 of 1984  1240 185 Under Article 32 of the Constitution of India K Rajendra Choudhary and K Shivraj Choudhary for the 20 Petitioners in WP No 17165 86 of 1984
MK Ramamurthy Subodh Markandeya and Mrs Chitra Markandeya for the Petitioners in WP No 12401 of 1985
KG Bhagat TVSN Chari Y Prabhakar Rao and Ms Vrinda Grover for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
The group of writ petitions under Article 32 of the Constitution is at the instance of several directly recruited Assistant Engineers now designated as Deputy Executive Engineers in the Engineering Service of the Roads and Buildings division of Andhra Pradesh Government
Writ Petition No 12401 of 1985 is by 13 Assistant Engineers of the same service who were also directly recruited
The challenge in the batch of writ petitions is mainly to an order of the Chief Engineer respondent No 2 therein by asking for quashing of his order dated 8th of June 1984 by which he regularised temporary service of promotees in the years 1972 73 1973 74 and 1974 75 to the cadre of Assistant Engineers Deputy Executive Engineers
According to the petitioners the retrospective regularisation made by the Chief Engineer of the promotees to the posts of Assistant Engineers is without authority and is in gross violation of the prescription of the Rules
They have asked for a direction to the State Government and its authorities in Writ Petition No 12401 of 1985 to consider the claim of direct recruits for promotion as Executive Engineers and consequential reliefs
In the batch of writ petitions as also in the other writ application some promotee engineers have been impleaded as representatives of promotees and transferees in the division
There are two sets of rules operating side by side in the State of Andhra Pradesh which are relevant
The first is known as the Andhra Pradesh State and Subordinate Services Rules promulgated with effect from March 7 1962 under the proviso to Article 309
These have been referred to as General Rules  and for convenience we maintain the same term in our judgment
On June 27 1967 another set of rules known as Andhra Pradesh Roads and Buildings Engineering Service Rules with retrospective effect from April l 1965 were promulgated
These have been referred to as Special Rules  by the Administrative Tribunal and in our judgment those will also be referred to that way
Under Rule 31 of the Special Rules the method of recruitment to the 21 category of Assistant Engineers has been provided and the methods are i By direct recruitment or ii By promotion of Junior Engineers or iii By recruitment by transfer from Supervisor or Draughtsman Special Grade or Draughtsman Special Grade I of the Andhra Pradesh RB Engineering Subordinate Service
Sub rule 3a of Rule 3 prescribes that of the substantive vacancies in the category of Assistant Engineers 37 12 shall be filled up by direct recruitment and the remaining 62 12  by transfer of Supervisors and Draughtsmen and by promotion of Junior Engineers
The main complaint of the direct recruits has been that notwithstanding this prescription in the rules there has been under recruitment of Assistant Engineers by direct recruitment and the recruits through the other two modes have come into the cadre far in excess of the limit provided by the rule and regularisation of such recruitment has been made by exercising powers under Rule 23 of the General Rules
In the writ petition it has been pleaded that though five year qualifying service was necessary in the lower service for entitlement to consideration for promotion as Assistant Engineer the period has been reduced to three years to enable larger recruitment from the alternate sources to the prejudice of direct recruits
Reference has been made in the writ petition to the decision of the Andhra Pradesh Administrative Tribunal and it has been contended that inspite of such decision and in the teeth of the rules Government have failed to make direct recruitment and have prejudiced their claim to seniority
The respondents have controverted these allegations
By a separate judgment delivered today we have dismissed Civil Appeal No 1995 of 1977 which was by two direct recruits to the post of Assistant Engineer
The conclusion has been on the basis of the facts stated therein
A reference to the Tribunal s decision against which the two connected appeals have been filed would show that the matter was examined by a Full Bench of the Tribunal and the Tribunal did point out that the direct recruits were placed at a disadvantageous position and the seniority rule should not be allowed to over ride the recruit 22 ment rules
The Tribunal found that the Full Bench decision had not been annulled by the State Government or set aside by this Court and was therefore binding on the State of Andhra Pradesh
In the impugned decision the Tribunal therefore held  
I would not like to issue directions straightaway to prepare the seniority list on the basis of the decision rendered in the Full Bench decision but while allowing the revision petition direct the Government to prepare the seniority keeping in mind the principle laid down in the Full Bench decision
The petitioners if feel aggrieved against the decision are given the liberty to approach this Tribunal for redressal of their grievance
The scheme contained in the sub rule as indicated above is that 37 12  of the substantive vacancies are to be filled up by direct recruitment
There is no justification at all for the State Government not to work out this provision of the rule
The direct recruits have been agitating over their rights arising out of this rule and Government have turned their deaf ear
At least from 1982 the dispute has been systematically raised and by the impugned decisions the Tribunal has called upon the State to work out the said rule properly
Reopening the question of inter se seniority on the basis of non enforcement of the rules from the very beginning may create hardship and that would be difficult to mitigate but we see no justification as to why the benefit of the scheme under the rules should not be made available to direct recruits at least from 1982
When the State Government by rules duly framed prescribed the method of recruitment and put the scheme into operation it had the obligation to comply with it
The explanation offered by the State Government for non compliance of the requirements of the rules does not at all impress us
We therefore direct that as on 31121982 the State Government must ascertain the exact substantive vacancies in the category of Assistant Engineers in the service
On the basis that 37 12 of such vacancies were to be filled up by direct recruitment the position should be worked out
Promotees should be confined to 62 12 o f the substantive vacancies and in regard to 37 12 of the vacancies the shortfall should be filled up by direct recruitment
General Rules shall not be applied to the posts within the limits of 37 12 of the substantive vacancies and even if promotees are placed in those posts no seniority shall be counted
The State Government shall take steps to make recruitment of the shortfall in the direct recruitment vacancies within the 23 limit of 37 12 of the total substantive vacancies up to 31121987 within four months from today by following the normal method of recruitment for direct recruits
The seniority list in the cadre of Assistant Engineers shall be redrawn up as directed by the Tribunal by the end of September 1988 keeping the directions referred to above in view
There shall be a direction issued to the State of Andhra Pradesh to make recruitment to the category of Assistant Engineers by strict compliance of Special Rules hence forth
In view of what we have stated above and following the principle indicated in the connected Civil Appeal which we have seperately disposed of today we are of the view that the regularisation made in respect of the promotees of the years 1972 to 1975 should not at this point of time be disturbed particularly when the regularisation has been subsequent to the actual commencement of continuous service in the post of Assistant Engineer
We would however reiterate that the directions given in Writ Petition No 12401 of 1985 is equally applicable to the petitioners in the group and the State Government is directed to give effect to the judgment with meticulous care
There would be no other direction in the batch of writ petitions nor would there be any direction for costs therein but Writ Petition No 12401 of 1985 is allowed to the extent indicated above
Hearing fees therein is assessed at Rs3000 to be paid by the State of Andhra Pradesh
GN Petitions disposed of


Summary:
 This appeal was directed against the judgment of the High Court whereby the High Court had dismissed the writ petition of the appellant challenging the validity of his detention under the Conservation of Foreign Exchange  Prevention of Smuggling Activities Act 1974  The Act 
The Directorate of Revenue Intelligence DRI had information that the appellant was engaged in receipt storage and disposal of smuggled goods on a large scale
On a specific information received on March 11 1987 that large quantity of gold had been received by the appellant and stored at his instance in various premises the DRI mounted a discreet surveillance in the vicinity of the appellant s residence and seized 100 foreign marked gold biscuits from Uttam Chand a milk vendor
Uttam Chand disclosed that the said gold had been given to him by the appellant
He also disclosed that the appellant had given him 300 gold biscuits and the remaining 200 gold biscuits had been taken away from him by Raj Kumar alias Chhotu the servant of the appellant
Raj Kumar alias Chootu disclosed that he had delivered the said 200 gold biscuits to one Bhuramal Jain
A search of Bhuramal Jain s residence resulted in the recovery of the said 200 gold biscuits
Thus 300 smuggled gold biscuits were seized by the DRI officers on March 11 1987
A provisional order of detention of the appellant dated April 1
1987 was passed by the respondent No2 the detaining authority under section 31 of the Act and duly communicated to the appellant along with the grounds of detention dated April 1 1987 by the detaining authority
The case of the appellant was referred to the Advisory Board constituted under sub clause a of clause 4 of Article 22 of the Con 43 stitution of India for its opinion whereupon the Board submitted its report dated May 13 1987 and the Central Govt
by its order dated June 24 1987 in exercise of its powers under section 8f of the Act confirmed the detention of the appellant etc
At this stage it might be mentioned that before the order of detention was passed by the detaining authority the appellant had been arrested on a charge under section 135 of the 
The appellant challenged the order of detention as confirmed by the Central Government by a writ petition before the High Court which dismissed the same
Similar detention orders having been passed in respect of the said Uttam Chand Bhuramal Jain and Raj Kumar alias Chhotu they had also challenged their detentions by writ petitions before the High Court and the High Court had by the same judgment under appeal allowed their writ petitions and quashed the orders of detention
The appellant then appealed to this court for relief by special leave 
Dismissing the appeal the Court  HELD Per Murari Mohon Dutt J It was not correct to say as contended by counsel for the appellant that the detaining authority was not aware of the fact that the appellant was already in detention on a charge under section 135 of the 
The detaining authority was fully aware of the fact of the arrest of the appellant as was evident from paragraph 13 of the grounds of detention
It is not necessary that in the order of detention such awareness of the detaining authority has to be indicated
It is enough if it appears from the grounds of detention that the detaining authority is aware of the fact that the detenu is already in detention
5lC E It was true that in Uttam Chand s case the detaining authority had proceeded on the basis that the offence for which he had been arrested and detained was a bailable offence
But the question whether or not a particular offence for which a detenu has been detained is a bailable or non bailable offence does not have any bearing on the question of passing an order of detention
Even though an offence is a non bailable one an accused may be enlarged on bail
Again an offence for which a detenu has been put under detention may be a bailable offence
5lE F 44 On a conspectus of a number of decisions of this Court
the Court was of the view that when a detenu is already under detention for an offence whether bailable or non bailable the detaining authority will take into consideration the fact of detention of the detenu and as laid down by this Court in Smt
Sashi Aggarwal
vs State of UP Writ Petition Crl No 735 of 1987 disposed of on 1111988 there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on the charge of a criminal offence
There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu
In other words two facts must appear from the grounds of detention namely i awareness of the detaining authority of the fact that the detenu is already in detention and 2 there must be compelling reasons justifying such detention despite the fact that the detenu is already under detention
52F H 53A In this case the Court was unable to accept the contention of the appellant that there had been non application of mind by the detaining authority to the relevant facts
The detaining authority besides being aware of the fact that the appellant was already in detention had taken into consideration the relevant facts before passing the impugned order of detention under the Act which was apparent from the grounds of detention
In the circumstances the contention that the impugned order of detention should be struck down on the ground of non application of mind by the detaining authority was rejected
53C D It appeared from the observation made by the High Court that the appellant without making any prayer before the Advisory Body for the examination of his witnesses or for giving him assistance of his friend started arguing his own case which in all probability had given an impression to the members of the Advisory Board that the appellant would not examine any witness
The appellant should have made a specific prayer before the Advisory Board that he would examine witnesses who were standing outside
The appellant had not made any such request to the Advisory Board
There was no reason for not accepting the statement of the detaining authority that the appellant had been permitted by the Advisory Board to have the assistance of an advocate or a friend at the time of hearing but the appellant had not availed himself of the same
In the circumstances the court did not think that there was any substance in the contention of the appellant that the Advisory Board had acted illegally and in violation of the principles of natural justice in not examining the witnesses produced by the appellant at the meeting of the Advisory Board and in not 45 giving permission to the appellant to have the assistance of his friend
54H 55A C The appellant contended that both the Government and the detaining authority made unreasonable delay in disposing of the representations made by his wife and by himself and that the representations were not considered independently inasmuch as the same were disposed of after the Advisory Board submitted its report and in view of the above facts the order of detention was illegal and invalid
55D E In regard to the representation of the appellant s wife dated 1141987 it appeared from paragraph 2 of the additional affidavit of Mr SK Choudhary Under Secretary Ministry of Finance Department of Revenue New Delhi that comments from the DRI were received by the senior Technical officer on 2841987
He could not take action on 2841987 as hearing of the appellant s case before the Advisory Board was fixed on that date
He placed the matter with his note before the detaining authority on 30487
It was apparent that the Senior Technical officer dealt with the matter immediately on getting the comments from the DRI and there was delay in putting up the matter before the detaining authority or the Government as the case might be
55F H 56D E It was submitted on behalf of the appellant that the detaining authority had no jurisdiction to reject the representation when it was meant for the Government
Mr Kuldip Singh Additional Solicitor General pointed out on a reference to record that the detaining authority had not rejected the representation but only commented merits rejection
The Court could not accept the contention of the appellant that the said comment of the detaining authority had influenced the mind of the Minister who had considered the representation on behalf of the Government and that there was no necessity for getting a comment from the detaining authority
Unless the comments of the relevant authorities are placed before the Minister it will be difficult for him to properly consider the representation
There was no substance in the contention that any comment from the detaining authority would influence the mind of the Government
Such assumption was without foundation
The contention was rejected
56H 57A D As regards the representation dated 234
1987 of the appellant to the detaining authority it was rejected as stated in the said additional affidavit by the detaining authority on 4587 and the Additional 46 solicitor General pointed out with reference to the records that file had not been forwarded to the Minister after the rejection of the representation by the detaining authority
In the Court s opinion nothing turned on the fact that after the representation had been rejected the relevant file had been sent to the Minister for his consideration
The Court was also told by the Additional Solicitor General that the report of the Advisory Board was dated May 13 1987 and both the representations had been disposed of by the detaining authority and the Government on May 6 1987 that is much before the report of the Advisory Board
It was apparent that as the report of the Advisory Board was dated May 13 1987 there was no foundation for the contention of the appellant that the consideration of the representations had been influenced by the report of the Advisory Board
57D H 58A B As regards the appellant s grievance that he was not supplied with the copies of the documents relied upon by the detaining authority along with the grounds of detention there was no factual foundation in the complaint made by the appellant that he had not been supplied with the relevant documents along with the grounds of detention
58D The contention of the appellant that the Government had not applied its mind while confirming his detention for the maximum period of one year as prescribed in section 10 of the Act was in the Court s opinion devoid of any merit
Section 10 does not provide that in imposing the maximum period of detention any reason has to be given
In confirming the order of detention it may be reasonably presumed that the Government has applied its mind to all the relevant facts and if it imposes the maximum period of detention it cannot be said that the Government has not applied its mind to the period of detention
Under section lt of the Act a detention order may at any time be revoked or modified by the Government
The court did not think in the circumstances that the detenu was in the least prejudiced or that there had been non application of mind by the Government to the question of period of detention of the detenu
58E H 59A The judgment of the High Court was affirmed
59B Per K Jagannatha Shetty J concurring The first question was as to the legality of an order of detention of a person who was already in custody
The Law Report contains several decisions on this point and they furnish an instructive lesson for both l l sides
In all the cases there is however one uniform principle stated 47 and reiterated
It is this the detaining authority must have awareness of the fact that the detenu is already in custody and yet for compelling reason his preventive detention is found necessary
59C D The question now raised was what should be the compelling reason justifying the preventive detention if the person was already in jail and where one should find it Is it from the grounds of detention or apart from the grounds of detention 59D E It was urged that apart from the grounds of detention there must be some other material disclosed to the detaining authority that if the detenu was released on bail he would again carry on the prejudicial activity
His Lordship did not think that the contention was sound
There cannot be any other material which can enter into the satisfaction of the detaining authority apart from the grounds of detention and connected facts therein
The satisfaction of the detaining authority can not be reached on extraneous matters
The need to put a person under preventive detention depends only upon the grounds of detention
The activities of the detenu may not be isolated or casual
They may be continuous or part of a transaction or racket prejudicial to the conservation or augmentation of foreign exchange
Then there may be need to put the person under preventive detention notwithstanding the fact that he is under custody in connection with a case
There could not however be any uniform principle to be applied in this regard
Each case had to be judged on its own facts and grounds of detention
If the grounds are germane it would be perfectly legitimate exercise of power to make an order of detention
59E G 60B C In this case having regard to the nature of the grounds furnished to the detenu there was hardly any justification to find fault with the order of detention 60C The next aspect which needed to be clarified was whether it was necessary for the concerned authority to give special reasons for directing the detention for the maximum period prescribed under the Act
It was urged that it was a must for the concerned authority to give special reasons and if no such reasons were given then it amounted to non application of the mind
The Court was unable to subscribe to this view
It was against the purpose and scheme of the COFEPOSA Act
The order made under section 31 is in the nature of an interim order
It is subject to the opinion of the Advisory Board under section 8f of the COFEPOSA Act
If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person the concerned 48 authority may confirm and continue the detention of the person for such period as it thinks fit
The expression as it thinks fit in section 8f of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention
The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under section 10
The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention
Section 11 provides for revocation or modification of the detention order at any time
When the power to revoke the order of detention could be exercised at any time it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act
60D E G H 61E G Rameshwar Shaw vs District Magistrate Burdwan   Ramesh Yadav vs District magistrate Etah  Suraj Pal Sahu vs State of Maharashtra   391 Smt
Sashi Aggarwal vs State of UP writ petition Crl No 735 of 1987 disposed of by this court on 1111988 and Bharat vs District magistrate  referred to