ivil Appeal No 2653 of 1980
From the Judgment and Order dated 2471980 of the Delhi High Court in LPA No 113 of 1980
VM Tarkunde AB Lal and VN Ganpule for the Appellant
TSK Iyer and Ms A Subhashini for the Respondents
The Judgment of the Court was delivered by AHMADI J
The appellant Ajit Singh was appointed as Grade II Stenographer on February 2 1953 and was promoted to the post of Senior Personal Assistant wef
April 1 1970
On January 4 1974 he was further promoted to the post of Private Secretary to the Deputy Election Commissioner in which capacity he worked till July 26 1977 when the Deputy Election Commissioner under whom he was working relinquished charge of office
The first respondent is the Chief Election Commissioner
One Tilak Raj was the Private Secretary to the first re spondent
On the said Tilak Raj being promoted as Under Secretary the post of Private Secretary to the Chief Elec tion Commissioner fell vacant and it was not filled in forthwith
However by an order dated October 23 1979 respondent No 2 ML Sarad was appointed to the same post wef September 1 1979
On learning about the appointment of respondent No 2 to the said post the appellant com plained that the said appointment was contrary to the Elec tion Commission Recruitment of Staff Rules 1974 herein after called the 1974 Rules 
The appellant s representa tion was rejected on the ground that he was not eligible for appointment to the post in question
The appellant then filed a Civil Writ Petition No 1583 of 1979 in the High Court of Delhi challenging the notifica tion dated October 23 1979 appointing ML Sarad to offici ate as Private Secretary to the Chief Election Commissioner wef September 1 1979 as well as the Memorandum dated October 26 1979 informing him that he was 252 eligible for appointment to the said post
During the pend ency of this writ petition it was disclosed to the Court that the Commission proposed to make suitable changes in the 1974 Rules insofar as appointment to the post of Private Secretary to the Chief Election Commissioner was concerned
The leave of the Court was sought to amend the 1974 Rules
It was also disclosed that the Commission proposed to with draw the order of October 23 1979 appointing ML Sarad as Private Secretary to the Chief Election Commissioner
The Court granted leave to the Commission to amend the 1974 Rules
By the notification dated December 3 1979 earlier notification of October 23 1979 appointing ML Sarad as officiating Private Secretary to the Chief Election Commis sioner was withdrawn
The 1974 Rules were amended by notifi cation dated December 10 1979 by the President in exercise of the power conferred by the proviso to Article 309 of the Constitution of India
By the said amendment entry at serial No 9 relating to the post of the Private Secretary to Chief Election Commissioner and the entries relating thereto came to be omitted
The respondent No 1 brought these two changes to the Court s notice by an application dated Decem ber 21 1979
Thereupon the appellant sought leave to amend the memo of his writ petition
The Commission also informed the appellant by its communication dated January 17 1980 that it had withdrawn its earlier memorandum of October 26 1979 whereby it was stated that the appellant was not eligi ble for appointment to the said post
The Court took notice of these facts but thought that the writ petition survived since the appellant was not considered for appointment to the post in question wef September 1 1979
Besides the appellant also challenged the Election Commission Recruit ment of Staff Amendment Rules 1979 hereinafter called the 1979 Rules  by which entry at serial No 9 came to be omitted
The contention of the appellant was that the entire exercise culminating in the amendment of 1974 Rues was mala fide and was undertaken with the sole purpose of depriving him of appointment to the said post
It may here be men tioned that after the 1979 Rules came into force respondent No 2 was re appointed to the same post by notification dated February 27 1980 wef the previous day
It was contended that the 1979 Rules had the effect of conferring an absolute discretion on the Chief Election Commissioner to appoint any person of his choice to the post in question
To put it differently the appellant contended that the amend ment conferred arbitrary and unfettered power on the Chief Election Commissioner to appoint any person he deemed fit as his Private Secretary regardless of his qualification
It was further contended before us by the learned counsel for the appellant that if the appellant had been appointed to the post in question on September 1 253 1979 the subsequent amendment of the Rules would not have operated retrospectively to his detriment and he would have continued as Private Secretary even after the amendment
A learned Single Judge of the High Court came to the conclusion that the 1979 Rules were not mala fide nor were they arbitrary as alleged by the appellant
The High Court also came to the conclusion that since the memorandum of October 26 1979 was withdrawn the appellant was entitled to be considered for appointment to the post of Private Secre tary wef September 1 1979
The High Court therefore directed Class II Departmental Promotion Committee to con sider the case of the appellant for appointment to the post of Private Secretary to the Chief Election Commissioner wef September 1 1979
It ordered that if the appellant is selected for appointment by promotion to the said post his appointment will be deemed to have been made on ad hoc basis from September 1 1979 to December 14 1979 after which the 1979 Rules came into force
Monetary benefits due to the appellant on such appointment were ordered to be calculated and paid
The appellant feeling aggrieved by this order preferred an appeal LPA No 113 of 1980 before a Division Bench of the same High Court
This Letters Patent Appeal was summarily dismissed on July 24 1980
Feeling aggrieved by the said order the petitioner approached this Court and secured special leave under Article 136 of the Constitution
Mr Tarkunde the learned counsel for the appellant reiterated the same contentions which were convassed before the learned Single Judge of the High Court and added that if the appellant was appointed wef September 1 1979 the subsequent amendment of the Rules would not have stood in his way and he would have continued as Private Secretary to the Chief Election Commissioner even after the amendment of the said Rules
He therefore contended that the High Court was not right in limiting the relief in regard to the appel lant s appointment upto December 14 1979 ie till the 1979 Rules came into force
It may at this stage be pointed out that pursuant to the order of the High Court directing the Class II Departmental Promotion Committee to consider the case of the appellant for appointment to the post of Private Secretary wef September 1 1979 the said Committee met on May 9 1980 and considered the case of all eligible persons for appointment to the post in question wef September 1 1979
The Departmental Promotion Committee did not find anyone suitable for appointment tO the said post
Intimation in that behalf was given to the appellant by the memorandum of May 14 1980
This decision of the 254 Departmental Promotion Committee sets at rest the argument that the appellant would have continued as Private Secretary had he been appointed to the said post wef September 1 1979
Mr Tarkunde the learned counsel for the appellant rightly did not seriously contend before us that the 1979 Rules were mala fide and were made solely with a view to deny appointment to the appellant as Private Secretary to the Chief Election Commissioner
It must be realised that in reply to the proposal to amend the extent rules the Ministry of Law Justice and Company Affairs in consultation with the Department of Personnel and Administrative Reforms wrote to the Commission on December 5 1974 as under The post of Private Secretary to the Chief Election Commissioner is borne on the personal staff of the Chief Election Commissioner and appointment thereto is outside the purview of the UPSC vide entry 5 of Schedule to the Union Public Service Commission Exemption from consultation Regulations 1958
The appointment of a person thereto may be made by the Chief Election Commissioner at his discre tion without the consultation of the Union Public Service Commission
The appointment to the post of Private Secretary to the Chief Election Commissioner is also co terminus with the appointment of Chief Election Commission er
In view of this position the Department of Personnel and Administrative Reforms have advised that the Recruitment Rules for the post of Private Secretary to the Chief Elec tion Commissioner need not be made
The Rules for the post as proposed by the Commission have therefore not been notified After the amendment of the 1974 Rules the Commission issued an office order dated February 18 1980 stating that ap pointment to the post of Private Secretary shall be made in the absolute discretion of the Chief Election Commissioner  from amongst persons of suitable class or category serving in the Commission or from outside as he may deem fit
The words in the absolute discretion of the Chief Election Commissioner  were construed by counsel to mean that arbi trary and unfettered power was conferred to the Chief Elec tion Commissioner in the matter of choice of his Private Secretary
The office order further stated that the appoint ment of the incumbent to the said post shall be co terminus with the incumbency in the post of the Chief Election Com missioner 
This order shows that after the amendment of the 255 1974 Rules the matter in regard to the choice of personnel for the post of Private Secretary to the Chief Election Commissioner was left to the sole discretion of the Chief Election Commissioner
It will appear from the above developments that the proposal for the amendment of the relevant recruitment Rules was moved way back in July 1970
The advice given by the Law Ministry by their communication of December 5 1974 was ultimately accepted by the Commission
By the letter of March 19 1975 the Law Ministry however informed the Commission that the Commission s proposal would be consid ered at the time if change in the incumbency in the post of the Chief Election Commissioner
That was why the process of amendment of the 1974 Rules was delayed until December 1979
The incumbent to the post of Chief Election Commissioner at all material times had therefore nothing to do with the proposal to amend the recruitment rules
It was therefore impossible to contend that respondent No 1 s action was mala fide and was actuated with the sole desire to deny promotion to the appellant to the post of Private Secretary to the Chief Election Commissioner
Coming to the next limb of attack it must be realised that in a democratic republic like ours the office of the Chief Election Commissioner is of vital importance
Article 324 confers the power of superintendence direction and control of elections in the Chief Election Commissioner
Free and fair elections are the basic postulates of any democratic order
A duty is cast on the Chief Election Commissioner to ensure free and fair elections
This makes the post of the Chief Election Commissioner a sensitive one
The Chief Election Commissioner has to deal with several matters which are brought before him by political parties as well as the Government
His office is called upon to handle correspondence which require a high degree of secrecy and confidentiality
He would naturally require the services of his Private Secretary for handling such highly secret and confidential files and correspondence
It is therefore imperative that the person working as Private Secretary to the Chief Election Commissioner must be one in whom implicit faith and confidence can be placed
He must be a man of impeccable character and integrity besides being competent in secretarial work
Integrity honesty and competence are the basic hallmarks for the post
In addition he must be a person in whom the Chief Election Commissioner has absolute trust and faith
It is for this reason that the tenure of the post is made co terminus with the tenure of the Chief Election Commissioner
That is for the obvious reason that a man chosen by the predecessor may not be enjoying the 256 same degree of confidence of his successor
He may like to have his own man of confidence to attend of his secretarial work
It is therefore not without reason that the choice of personnel to the post of Private Secretary is left to the Chief Election Commissioner himself
This is nothing new
Similar provision is made for certain other functionaries as can be seen from the Home Department s Notification dated 1st September 1958 as amended from time to time
We are therefore of the opinion that having regard to the special needs of the post it was imperative to leave the matter of choice of personnel in the absolute discretion of the Chief Election Commissioner
We therefore do not think that the office order of February 18 1980 can be struck down
The High Court was therefore right in limiting the relief upto December 14 1979 ie till the 1974 Rules became effective
Since consultation with the UPSC was not necessary after the amendment introduced by the 1979 Rules the Chief Elec tion Commissioner was entitled to choose the man of his confidence as Private Secretary
The choice of respondent No 2 to the post cannot therefore be questioned
In view of the above we do not see any merit in the contentions urged before us by the learned counsel for the appellant
We therefore dismiss this appeal but in the facts and circumstances of the case leave the parties to bear their own costs
Y Lal Appeal dismissed


Summary:
The appellant is a company having its registered office at Ahmednagar in Maharashtra
It carries on business as manufacturers of Ayurvedic preparations including Asvas and Aristhas
At the material time the appellant was manufacturing and selling an Ayurvedic product Ashvagand harist which is a medicinal preparation containing self generated alcohol but not capable of being consumed as ordinary alcoholic beverages
came into force on 141957
The schedule to the said Act contained two items specifying medicinal and toilet preparations containing alcohol which are prepared by distillation or to which alcohol has been added and which are capable of being consumed as ordinary alcoholic bever age and medicinal and toilet preparations not otherwise specified containing alcohol as the commodities excisable under the provisions of the Act
The said Ashvagandharist was treated and accepted by the Excise Authorities as being exempt from the payment of excise duty upon the basis and footing that the same was an Ayurvedic preparation contain ing self generated alcohol which was not capable of being consumed as ordinary alcoholic beverage and which fell under item 2i of the schedule in respect of which the rate of excise duty prescribed in the schedule was Nil
130 The Act was amended by Amendment Act 19 of 1961 whereby concept of patent and proprietary medicine was introduced in the schedule
The Amendment Act by an Explanation intro duced in the schedule the definition of patent and proprie tary medicine contained in the Drugs Act 1940
Despite the said amendment in the schedule the appellants  product continued to be treated as exempt from the liability to pay excise duty on the ground that it was covered under item 2i of the schedule which item was re numbered as item 3i of the schedule
Thereafter by section 18 of the Finance Act 1962 the Act was further amended by substitution of Expla nation I to the schedule of the Act
By the said explana tion a patent and proprietary medicine was defined as a medicinal preparation of the description and the type speci fied in the Explanation
The said Explanation was given retrospective effect from April 23 1962
In pursuance of the said Explanation I brought by the Finance Act Director of Prohibition and Central Excise Govt
of Maharashtra Bombay issued a circular dated May 31 1962 which inter alia directed that the medicinal preparations containing self generated alcohol but not capable of being consumed as alcoholic beverage were to be treated as products falling under Item No I and not Item 3 of the schedule
As a result of that circular the Respondents levied excise duty on the appellants  product amounting to Rs2 1828216p
and realized the same from the appellant
The appellant paid the amount under protest
With a view to recover the aforesaid amount which according to the appellant was illegally recovered by the Respondents the appellant filed a suit being special suit No 23 of 1965 in the Court of Civil Judge Sr Division Ahmednagar
The Civil Judge by his order dated 27369 decreed the appellantplaintiff s suit with interest at 6 per annum from the date of the suit till realisation
The Respondents appealed to the High Court against the Order of the Civil Judge and the High Court allowed the appeal reversed the Judgment and decree passed by the Civil Judge and dismissed the appellant s suit
Hence this appeal by the plaintiff appellant by special leave
Allowing the appeal this Court HELD From Explanation I of the Schedule of the Act as substituted by Act 5 of 1964 it is clear that patent or proprietary medicine 131 means any medicinal preparation which is not specified in a monograph in a Pharmacopoeia Formulary or other publica tions notified in this behalf by the Central Government in the Official Gazette
144C To be a patent medicine one would be required to have a patent
A patented article means an article in respect of which a patent is in force 144D A patent medicine will therefore mean medicine in respect of which a patent is in force
144E Patent means a grant of some privilege property or authority made by the Government or sovereign of a country to one or more individuals
A proprietor is one who has the legal right or exclusive title to anything
It is synonymous with owner
A person entitled to a trade mark or a design under the Acts for the registration or patenting of trade mark or design is called a proprietor of the trade mark or design
144E F A Schedule in an Act of Parliament is a mere question of drafting
It is the legislative intent that is material
An Explanation to the Schedule amounts to an Explanation in the Act itself
147F The Schedule may be used in construing provisions in the body of the Act
It is as much an Act of the Legislature as the Act itself and it must be read together with the Act for all purposes of construction
Expressions in the Schedule cannot control or prevail against express enactment and in case of any inconsistency between the schedule and the enactment the enactment is to prevail and if any part of the schedule cannot be made to correspond it must yield to the Act
147H 148A B An explanation is different in nature form a proviso for a proviso excepts excludes or restricts while an expla nation explains or clarifies
Such explanation or clarifica tion may be in respect of matters whose meaning is implicit and not explicit in the main section itself
149F Bihta Marketing Union vs Bank of Bihar    State of Bombay vs United Motors   Collector of Customs vs G Dass  Co AIR 1966 SC 1577 Burmah Shell Oil Ltd vs Commercial Tax Officer AIR 1961 SC 315  Dattatraya Govind Mahajan vs State of Maharashtra  928  and Hiralal 132 Ratanlal vs State of U P  Ex praecedentibus et consequentibus optima fit interpre tatio
The best interpretation is made from the context
Injustum est nisi tota lege inspecta de una aliqua ejus particula proposita judicare Vel respondere
It is unjust to decide or respond as to any particular part of a law without examining the whole of the law
Interpretare et concordare leges ligibus est optimus interpretendi modus
To interpret and in such a way as to harmonize laws with laws is the best mode of interpretation
151G H Jura eodem modo distituentur quo constitutuntur
Laws are abrogated by the same means authority by which they are made
152A Every word in a Statute is to be given a meaning
A construction which would leave without effect any part of the language of a statute will normally be rejected
Every clause of a statute is to be construed with reference to the context and other clauses of the Act so as to make as far as possible a consistent enactment of the whole statute
152B A specific provision to include Ayurvedic preparations containing self generated alcohol which are not capable of being consumed as ordinary alcoholic beverages was neces sary
That having not been done by the Explanation itself it was not permissible to include it by the Circular
The Explanation I could not have been in conflict with the provisions of the Act and the Circular could not have been in conflict with the Explanation the Schedule the Rules and the Act
152E F The Court set aside the order of the High Court and restored that of the Civil Judge decreeing the suit
152G Inland Revenue Commissioners vs Gittus 1920 I KB 563 Baidyanath Ayurved Bhawan Pvt Ltd vs The Excise Commis sioner UP   Mohanlal Maganlal Bhavsar vs Union of India  Commissioner of Sales Tax vs The Modi Sugar Mills Ltd  and Cape Brandy Syndicate vs Commissioners of Inland Revenue  referred to