vil Appeal Nos
4008 09 of 1985
From the Judgment and Order dated 2691983 of the Patna High Court in CWJC No 1634 of 1977
WITH CMP Nos
5513 14 and 19577 78 of 1988
375 Shanti Bhushan and PD Sharma for the Appellants
Tapesh Chandra Ray DP Mukherjee RP Singh and SN Jha for the Respondents
MP Jha for the Intervener  The Judgment of the Court was delivered by KULDIP SINGH J
The question for our consideration in these appeals is whether by an executive order the Bihar State Government can merge the cadre of District Engineers which is a part of Rural Engineering Organisation with the cadre of Executive Engineers governed by statutory rules called the Bihar Engineering Service Rules 1939 hereinaf ter called the 1939 Rules
Necessary facts to determine the above question are as under The cadre of District Engineers was created by the erstwhile District Boards in the State of Bihar
The re cruitment and conditions of service of the said cadre were governed by the Government District Engineers Service Rules 1957 hereinafter called the 1957 Rules which were framed under the Bihar and Orissa Local Self Government Act 1885 hereinafter called the Act
Apart from the District Engi neers a Rural Engineering Cell of the Public Works Depart ment was also functioning in the rural areas
Bihar Govern ment by an order dated February 9 1965 integrated the two into one organisation called Rural Engineering Organisa tion hereinafter called REO
The REO was an entirely new department headed by a Chief Engineer with the powers of Inspector of Local Works under the Act
Two posts of Superintendent Engineers 19 posts of District Engineers and number of other subordinate posts were created under the Chief Engineer
In the new set up the cadre of District Engineers created under the 1957 Rules became almost extinct and assumed a new shape under the REO
On the other hand the cadre of Executive Engineers in Bihar Public Works Department was governed by the 1939 Rules
Rule thereof is as under 4
Sources of recruitment Recruitment to the service shall be made 376 i by direct recruitment and ii by promotion from the Bihar Engineering Service Class II    The Bihar Government by a Memorandum dated February 18 1977 decided to merge the cadre of District Engineers belonging to the REO with the cadre of Executive Engineers of the Public Works Department
The operative part of the order is as under Therefore in the public interest the Government has decided that the cadre of the District Engineers be merged with the equivalentparallel cadre of Executive Engineers of Public Works Department
 Vinay Kumar Verma and others who were working as As sistant Engineers in the Bihar Engineering Service Class II challenged the above mentioned merger order before the Patna High Court on the following grounds i Under the 1939 Rules Assistant Engineers are eligible for promotion to the posts of Executive Engineers
By merg ing the cadres the chances of promotion of the Assistant Engineers are likely to be adversely affected and as such merger order is arbitrary and is liable to be quashed
ii That the District Engineers  service was constituted under the 1957 Rules flamed by the State Government in exercise of the powers under Sections 36a to 36f of the Act
The cadre of Executive Engineers in the Public Works Department was created by the 1939 Rules
The two cadres having been created under their respective statutory rules the same cannot be merged by an executive order
The compo sition of cadres created by the statutory rules cannot be changed by an executive order
iii Under Rule 4i and 4ii of the 1939 Rules recruit ment to the cadre of Executive Engineers can only be by direct recruitment and by way of promotion
The merger of the District Engineers cadre with the Executive Engineers is thus contrary to the 1939 Rules and as such cannot be sus tained
The High Court found that the chances of promotion of the 377 Assistant Engineers were in no way adversely affected by the merger as the District Engineers came to the cadre of Execu tive Engineers along with their posts
The High Court fur ther held that the Assistant Engineers who were in the lower cadre could not challenge the merger specially when the same did not affect their rights in any manner
On the other two points the High Court relied on Rule 56 of the Bihar Service Code 1952 which is in the following terms 56a The State Government may transfer a Government serv ant from one post to another    The High Court held that the Government has the power under the above quoted rule to transfer a Government servant from one cadre to another
According to High Court even though the merger is not explicitly under rule 56a but since the power is there the District Engineers be deemed to have been transferred to the Public Works Department in terms of the said Rule
The High Court dismissed the writ petitions of the Assistant Engineers
This is how these two appeals by way of special leave are before us
Mr Shanti Bhushan learned Senior Advocate appearing for the appellants has reiterated the above mentioned three points in his arguments before us
We agree with the High Court that the appellants who were Assistant Engineers in Bihar Engineering Service Class 11 were not affected adversely by the impugned order in any manner
The District Engineers were merged in the cadre of the Executive Engineers along with the permanent posts which they were holding on the date of merger
The cadre of the Executive Engineers was thus enlarged with the result that more vacancies would become available in future to be filled by way of promotion from the cadre of Assistant Engineers
The merger would thus operate to their advantage rather than disadvantage
The second point as projected by Mr Shanti Bhushan does not arise in the facts and circumstances of the present case
It is no doubt correct that initially the cadre of the District Engineers was constituted by the 1957 Rules which were framed under the 1885 Act but by the time the impugned order was issued in the year 1977 it was operating 378 as an entirely different cadre created in the year 1965 as a part of REO
The REO which was new department consisted of a Chief Engineer two Superintending Engineers 19 posts of District Engineers number of Assistant Engineers and Over seers
The District Engineers were no longer a provincia lised cadre under the District Boards as created by the 1957 Rules but was a new cadre operating under the REO
We are therefore of the view that the cadre of District Engineers under the REO was created by the State Government by an executive order and as such the State Government could further merge the same with any other cadre by an executive fiat
The third limb of the argument based on Rule 4i and 4ii of the 1939 Rules may now be examined
It is not disputed that the District Engineers were equivalent in rank to the Executive Engineers
The pay scales were also identi cal
The two equivalent and parallel cadres were operating in two different fields
To achieve administrative efficien cy the State Government wanted to merge these cadres
The Executive Engineers were governed by the 1939 Rules which are statutory whereas the District Engineers created by Government order dated February 9 1965 did not have any statutory flame work
The statutory cadre of Executive Engineers has not been interfered with
It is operating under the 1939 Rules
The District Engineers are being merged with Executive Engineers and not the vice versa
Rule 4i and 4ii of the 1939 Rules do not come into picture at all
It is not a question of appointment of an individual to the service
A group of persons similarly situated is sought to be brought into the service
The State Government can always increase the number of posts in the cadre of Execu tive Engineers
What is being done by the impugned order is that the incumbents of the posts are also being brought into the cadre along with the posts
The conditions of service of the existing members of service are not being altered or affected to their prejudice in any manner
In fact none of the Executive Engineers has challenged the impugned order
After merger the District Engineers would also be governed by the 1939 Rules
The impugned order being a policy deci sion is in a way supplemental to the Rules and does not go contrary to any of the provisions of the Rules
We therefore see no force in the arguments of Shri Shanti Bhushan
The view which we have taken to uphold the impugned order we 379 do not wish to express any opinion on the applicability and interpretation of Rule 56 of the Bihar Service Code 1952 on which the High Court has relied
The appeals fail and are dismissed with no order as to costs
The Civil Miscellaneous Petition Nos
55 13 14 of 1988 and 19577 78 of 1988 are also dismissed as having become infructuous
PSS Appeals dismissed


Summary:
The assessee was teaching his disciples Vedanta philosophy without any motive or intention of making a profit out of such activity
One of his disciples made gifts of money to him on several occasions
It was contended by the assessee that he was not liable to tax on the amounts received as he was not carrying on any vocation and as the receipts were not profits or gains
Held that in teaching Vedanta the assessee was carrying on a vocation
It is not necessary for an activity to be a vocation 134 that it should be an organised activity or that it should be practiced with a motive for making profit
Commissioner of Inland Revenue vs Incorporated Council of Law Reporting  113 followed
Held further that the payments made by the disciple were income received by the assessee from his vocation
In the case of a voluntary payment no tax can be levied on it if it had been made for reasons purely personal to the donee and unconnected with his office or vocation but it will be taxable if it was made because of the office or the vocation of the donee
The question is not what the donor thought he was doing but why the donee received it
In the present case it is plain that it was because of the teaching that the gift had been made