vil Appeal No 10 N of 1981
From the Judgment and Order dated 22nd March 1978 of the Karnataka High Court in Writ Appeal No 520 of 1975
RB Datar KR Nagaraja and RS Hegde for the Appellant
M Veerappa for the Respondent
The Judgment of the Court was delivered by RAY J
This appeal by special leave is against the judgment and order dated 22nd March 1978 made in Writ Appeal No 520 of 1975 dismissing the appeal and confirming the judgment and order made in Writ Petition No 3073 of 1974 on 1871985
The appellant who was a chartered accountant was ap pointed as a non official member of the Sales Tax Appellate Tribunal in the State of Karnataka by an order No RD 80 SXE 1958 dated 16th July 1958 for a period of two years from 17th July 1958 under subsection 2 of Section 4 of the Mysore Sales Tax Act 1957 Mysore Act No 25 of 1957
By an order No RD 17 SXT 58 dated 12th December 1958 issued by the Government it has been mentioned that the appellant as member of Sales Tax Tribunal shall be eligible for Tra vells Allowance under the Mysore Civil Service Classifica tion Control and Appeals Rules 1958 as a government serv ant in respect of tours undertaken by him in connection with his official duty on the basis of his salary Rs 1000 per month
Thereafter the appointment was continued from time to time the last of the period during which the appointment was continued was by a notification No FD dated 8th November 1971 by which his period of service was extend ed for a period of two months with effect from 9121971
This notification was issued in exercise of powers conferred by clause b of sub rule 1 of Rule 64 of the Mysore Sales Tax Rule 1957
The respondent by a letter dated 821972 intimated him that he had been granted 52 days earned leave as terminal leave from 9th February 1972
The appellant made representations to the respondent that he was entitled to superannuation pension and same be granted to him
The Government turned down his request on the ground that he was not eligible for such pension
The appellant then moved a writ petition No 3073 210 of 1974 before the High Court Karnataka stating that he was granted leave on several occasions in accordance with the Mysore Civil Service Rules and the Accountant General had treated him as a gazetted officer in the service of the State Government and as such as a Government servant he may be granted superannuation pension under the Mysore Civil Service Rules
The learned Single Judge held that Rule 64 of the Karnataka Sales Tax Rules 1957 was applicable to this case and under the said Rules he was not eligible to claim superannuation pension
It was further held that even under the Mysore Civil Service Rules he would not be entitled to claim such a pension
The writ petition was dismissed
The learned Judge of course held that the appellant would be entitled to gratuity in terms of Rule 64 and so directed the Government to examine the case of the appellant for grant of gratuity under the rule and pass appropriate orders in that regard expeditiously
The appellant feeling aggrieved preferred Writ Appeal No 520 of 1975 which was dismissed by the High Court and the judgment pronounced in the writ petition was upheld
It is against this judgment and order this appeal on special leave has been filed
The main plank of the argument of the counsel for the appellant is that the appellant as a member of the Sales Tax Tribunal was a government servant and as such like other government servants he is entitled to the grant of superan nuation pension in accordance with Mysore Civil Service Rules
Several Rules have been referred to in support of his submission that he was retired from service after reaching the age of superannuation
He further submitted that the appointment of appellant was not a contract appointment and so the Mysore Civil Service Rules are applicable to the appellant for payment of superannuation pension
It is not disputed that the appellant was appointed as a nonofficial member of the Karnataka Sales Tax Appellate Tribunal under sub section 2 of Section 4 of the Mysore Sales  Tax Act 1957
This is evident from the notification dated 1671958 issued by the Government appointing the appellant as a member of Sales Tax Tribunal as well as from Order No RD 17 SXT 58 dated 12th December 1958
The ap pointment was continued from time to time and the last extension was given by Order No FD dated 8th November 1971 made under clause b of sub rule 1 of Rule 64 of the Mysore Sales Tax 211 Rules 1957
It is relevant to notice in this connection that Rules 63 and 64 were introduced by a notification No FD dated 1013th January 1964
Sub rule 6 of Rule 64 is quoted below The non official member shall not be eligible for any pension gratuity or other remuneration
 By further notification No FD 614 dated 7th April 1971 a new Sub rule 6 was substituted which was to the following effect 6 The non official member shall be eligible for gratuity equivalent to one month s pay for each completed year of service including interruption or interruptions if any the total duration of which does not exceed 180 days but shall not be eligible for any pension or other remuneration 
 Thus the appellant was appointed as a non official member in the Karnataka Sales Tax Appellate Tribunal under sub section 2 of Section 4 of Karnataka Sales Tax Act 1957 and the last extension of the period of his service was given by Government under clause b of sub rule 1 of Rule 64 of the Mysore Sales Tax Rules 1957
The terms and condi tions of his service will be governed by the Mysore Sales Tax Rules and not by the provisions of Mysore Civil Services Rules and it cannot be contended by the appellant that Rule 646 ofthe said Mysore Sales Tax Rule 1957 was not ap plicable to him
So the appellant is not eligible for super annuation pension after his relinquishment of the post of non official member of Sales Tax Tribunal on expiry of the period of his service
It has been further urged that Rule 646 of Mysore Sales Tax Rules was inserted in 1964 and sub rule 6 of Rule 64 was substituted on 7th April 1971
This rule not being in existence at the time the appellant was appointed as a member of the said Tribunal the same cannot be made applicable to the appellant and thereby he could not be deprived of the benefit of superannuation pension as provid ed in Mysore Civil Service Rules
This contention is per se without any substance in as much as before the retirement of the appellant from service due to expiry of his period of service the said provisions of sub rule 6 of rule 64 of Mysore Sales Tax Rules was substituted in place of original sub rule 6 of Rule 64 and as such this rule applies to the appellant and he is not entitled to get any superannuation pension
The High Court has tightly held that according to Rule 646 the appellant could not claim pensionary benefit
212 The appellant next submitted that he became a Government servant on being appointed as a non official member of the Sales Tax Appellate Tribunal and he was paid traveling allowance according to Mysore Civil Service Rules 1957 and so he is entitled to pension as provided in the said Rules
As stated hereinbefore that the appellant was appointed as a Member of the said Tribunal by the respondent State under Section 42 of the Sales Tax Act and though initially appointed for a period of two years in 1958 his service was extended periodically till February 1972 under clause b of sub rule 1 of Rule 64 of the Mysore Sales Tax Rules 1957 by the Government of Mysore
Therefore the foremost question is whether in such circumstances the Mysore Civil Service Rules apply to him
It is apropos to refer in this connection sub rule 2 of Rule 2 of Mysore Civil Service Rules which specially provided that the said Rules shall not apply to persons for whose appointment and other mat ters special provisions are made by or under any law for the time being in force or in any contract in regard to the matters covered by such law or such contract
This Rule clearly says that in cases where special provisions have been made by or under any law for the time being in force the Mysore Service Rules will not apply
In the instant case Rule 646 of the Mysore Sales Tax Rules 1957 clearly says that the non official member of the Sales Tax Tribunal will become ineligible for any pension and as such provi sions relating to pension as provided in Mysore Civil Serv ice Rules 1957 will not apply
Furthermore Rule 283 of the said Rues states that a superannuation pension is granted to a Government Servant who is compelled by Rule to retire at a particular age
Rule 95 provides that the date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years
It further provides that the Government servant may be retained upto 60 years of age with the sanction of Government
He must not be retained after the age of 60 years
There is no rule under which a non official member is to retire on attaining a particular age
The appellant was appointed as a member of the Tribunal for a period of two years initially and thereafter his tenure was extended periodically and he left the service as non official member of the Tribunal after he crossed the age of 61 years
There was no specific order that the appellant was due to retire at the age of 55 years
There is no rule for a non official member to retire at a particular age
Moreover by order No FD dated January 28 1970 the Govern ment sanctioned certain terms and conditions of his appoint ment
the condition Nos 2 and 5 are as hereunder 2 The terms of appointment shall be one year with effect from 9th December 1969
213      5 He is permitted to take up the audit of accounts of any person institution firm or body of persons without preju dice to his official duties as a Member of the Tribunal and the person institution firm or body of persons concerned is not and is not likely to be liable to Sales Tax Agricul tural Income Tax or Entertainment Tax
 The appointment of the appellant is periodical and not upto a maximum age nor it is a whole time service but a part time one and the appellant was permitted to take up audit of any person firm institution etc
on certain restrictions
A Government servant has to render whole time service
Therefore considering all these aspects it has been found by the High Court that the Mysore Civil Service Rules 1957 do not apply to the appellant and as such he is not eligible for superannuation pension
We do not find any infirmity in the judgment of the High Court which is unex ceptionable We therefore uphold the judgment of the High Court dismiss the appeal without any order as to costs
NPV Appeal dismissed


Summary:
The respondents organised two music programmes by formu lating an ostensible savings scheme under which the entry to the programme was open to persons on becoming members of the scheme by paying an admission fee of Rs2 non refundable and membership subscription of Rs I0 refundable after 10 years
The entry to the programme was strictly on the pro duction of invitation card as well as membership card
Many persons paid the admission fee and the membership subscrip tion
At the time of giving entry to the programme the respondents collected the membership forms and money re ceipts from the persons concerned as a result of which they were left neither with membership form nor with the money receipts
Although the promise was that such programmes would be repeated for 10 years yet no such performances were arranged
The result was that members of the public were defrauded of their money and the State Government of its tax revenue
The Entertainment Tax Collector checked the receipts of the respondent on both the dates of performances and accord ingly issued notices to them demanding the tax and the duty surcharge thereon under the Madhya Pradesh Entertain ments Duty and Advertisement Tax Act 1936
The respondents challenged the validity of the notices by filing a writ petition in the High Court which allowed the petition and quashed the notices by holding that the assessment of tax was arbitrary because i there was no allegation that the invitation cards were sold and ii 1001 membership subscription of Rs I0 was not divided by 10 since the entertainment tax could be collected only on Re 1 per year for the next 10 years
Hence this appeal by the State
Allowing the appeal and setting aside the decision of the High Court
this Court
HELD The Scheme was not meant for promoting music
It was a pure business preposition meant to collect money and earn profits
and it was to be used as a device to evade the entertainment duty
The receipts and the invitation cards were nothing but tickets for the show and only for one show and were collected at the door
Therefore
whatever be the description given to the receipts or cards they were liable to the entertainment duty
The impugned notices were proper ly issued by the appellants
Since the High Court completely missed the crucial point and therefore mis directed it self it is not possible to accept its reasoning that Rs 10 collected by the respondents were the membership subscrip tion or that tile duty could not have been collected at a time on Rs 10
1005E F 1003D