ivil Appeal No 1837 of 1990
From the Judgment and Order dated 1711989 of the Patna High Court in CWJC No 4276 of 1988 A Sharan for the Appellants
Pankaj Kalra and Pramod Swarup for the Respondents
The Judgment of the Court was delivered by AHMADI J
Delay condoned
Special leave granted
This appeal arises out of the decision of the Patna High Court 470 whereby it struck down the selection made for appointments in the junior teaching posts in medical colleges in the State and directed a fresh selection list to be prepared after shifting the last date for receipt of applications to 30th June 1988
The facts giving rise to this appeal briefly stated are as under
The State of Bihar published an advertisement inviting applications for appointment to the posts of i Assistant Professor clinical subject ii Registrar iii Assist ant Clinical Pathologist iv Anesthetist v Resident Medical Officer and vi Demonstrator Tutor in non clini cal subject for different Medical Colleges and Medical College Hospitals in the State of Bihar
For the post of Assistant Professor only such officers who had worked as Resident or Registrar in Medical Hospital recognised for imparting MBBS studies by the Medical Council of India and having three years experience of such post were consid ered eligible
The last date for receipt of the application was fixed as 31st January 1988
Pursuant to the said adver tisement applications were received from eligible candidates and the select list or panel was prepared for appointments to the respective posts
The respondents and some interven ors who held appointments as junior teachers in one or the other Medical Colleges in the State questioned the validity of the State s action of inviting applications for prepara tion of a list for appointments to the advertised posts mainly on the ground that the last date for receipt of applications fixed as 31st January 1988 hereinafter called the cut off date  deprived them of the opportunity to compete for the posts as they did not complete the requisite experience criterion of three years by that time
It was contended that this cut off date was arbitrarily fixed and was therefore violative of Article 14 of the Constitution
The High Court took the view that the State Government had deviated from its usual practice of fixing the cut off date as 30th of June of the relevant year
This is clear from the following observation made by the High Court    advertisement in the past including one in the year 1983 Annexure 1 always fixed 31st June as the date   Emphasis supplied The use of the word always  indicates that the High Court was under the impression that in the past the cut off date was always fixed as 31st June it should be 30th June for the preparation of the panel for appointments to the posts in question
Elsewhere also in the judgment there are obser vations which disclose that the High Court laboured 471 under the belief that the cut off date was always fixed as 30th of June of the relevant year
This becomes obvious from the following criticism also If the State is determined to achieve such a goal and is ready to make its activity predictable it is a welcome sign but such desired predictability can equally be achieved by adhering to the schedule of the past and maintaining 30th June of the years as the last date for the application
If they had not followed any rule in the past and they propose to follow a rule in this regard in future they can do so without causing any violation to any legal right of any incumbent by at least showing adherence to the reckoning date which until now had been the last date of the month of June of the year Emphasis supplied On this line of reasoning the High Court came to the conclu sion that the State Govermnent had acted arbitrarily in fixing the last date fox receipt of applications as 31st January 1988 under the advertisement published on 29th December 1987
The High Court while upholding the conten tion based on Article 14 further observed we would have ignored the arbitrariness in taking 31st January of the year as the reckoning date had we not taken notice of recalci trance of the respondents in taking no step in the years intervening the selection in the year 1983 and the present selection
The High Court therefore felt satisfied that there was no rationale in departing from the past practice and selecting 31st January 1988 as the last date
It is felt that in all fairness 30th of June of the year would be the preferable date  for reckoning the eligibility of the candidates
The State Government was therefore directed to shift the last date for receipt of the applications from 3 1st January 1988 to 30th June 1988 and to prepare a fresh panel thereafter and make appointments to the posts in question therefrom
The State of Bihar feeling aggrieved by this order has approached this Court by special leave
The learned counsel for the State submitted that the decision of the High Court was based on an erroneous premise that the cut off date for eligibility purposes was always  fixed as 30th of June of the relevant year in the past
In order to dispel this assumption made by the High Court without examining the past advertisements the State Government has placed before us the advertisements issued from 1974 to 1980 which shows that different cut off dates were fixed under these different advertisements and at no time in the past between 1974 and 1980 was 30th of June fixed as the 472 relevant date
It is true that the High Court did not have the benefit of the earlier advertisements but it is equally true that there was no material on the record of the High Court for concluding that in the past the cut off date was always  fixed as 30th of June of the relevant year
From the copies of the advertisements from 1974 to 1980 it tran spires that generally the cut off date was fixed between one to one and a half months after the date of issuance of the advertisement
In the year 1983 for the first time the cut off date was fixed as 30th June 1983
On some occasions in the past the cut off date was extended depending on the facts and circumstances obtaining at the relevant point of time
It therefore becomes obvious from this documentary evidence that the factual premise on which the High Court has based its judgment is clearly erroneous
The High Court was in error in thinking that in the past the cut off date was always fixed as 30th of June of the relevant year
In fact except for a solitary occasion in 1983 when the cut off date was fixed as 30th June 1983 at no other time in the past was that date fixed as the last date for receipt of the applications
No advertisements were admittedly issued after 1983 and before the advertisement in question
The present advertisement was published on 29th December 1987 and the last date for receipt of applications was fixed thereunder as 3 ist January 1988 leaving a time gap of a little over a month
As pointed out earlier on a perusal of the adver tisements issued from 1974 to 1980 it becomes obvious that normally the cut off date was fixed one or one and a half months after the date of advertisement
It was therefore not the uniform practice of the State Government to fix the cut off date for eligibility purposes as 30th of June of the relevant year as was assumed by the High Court
Once it is found that the High Court has based its decision on an erroneous assumption of fact the decision cannot be allowed to stand
It was however argued by the learned counsel for the respondents that the State Government should not be permit ted to introduce new facts in the form of advertisements issued from 1974 to 1980
We do not think that such a tech nical approach would be justified for the simple reason that the assumption of fact made by the High Court is not borne out from record
No material was placed before the High Court to justify the conclusion that 30th of June of the relevant year was always  fixed as the cut off date in the past
The High Court s assumption of fact is therefore based on no evidence at all
We have therefore thought it fit to permit the State Government to place material on record to justify its contention that the High Court had committed a grave error in assuming that in the past the cut off date was always fixed as 30th of June of the rele vant year
473 It was next contended that this Court should not inter fere in exercise of its extra ordinary Jurisdiction under Article 136 of the Constitution
In support of this conten tion reliance was placed on the observations of this Court in Municipal Board
Pratabgarh  Anr
vs Mahendra Singh Chawla  Ors wherein this Court while correcting an error of law refused to interfere with the decision of the High Court directing reinstatement of the workman on the finding that the termination order was in valid
That was however a case where the Court came to the conclusion that the employee was a capable hand and his services were actually needed by the appellant Municipal Board
It was in those special circumstances that this Court while correcting the error refused to interfere with the order of reinstatement
The decision therefore turned on the special facts of that case
The appellant invited our attention to two decisions of this Court namely Union of India  Anr
vs Ms Pararnes waran Match Works  Ors 19751 SCC 305 and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitikaran Abhiyan Samiti Varanasi vs State of UP  Ors
in sup port of its contention that the High Court was in error in holding that the State had acted arbitrarily in fixing the cut off date
In the first mentioned case by Notification No 162 dated 21st July 1967 which superseded the earlier notifications provision was made that if a manufacturer gave a declaration that the total clearance from the factory will not exceed 75 million matches during a financial year he would be entitled to a concessional rate of duty
This Notification was amended by Notification No205 dated 4th September 1967 clause b whereof confined the concession inter alia to factories whose total clearance of matches during the financial year 1967 68 as per declaration made by the manufacturer before 4th September 1967 was not estimated to exceed 75 million matches
Thus the conces sional rate of duty could be availed of only by those who made the declaration before 4th September 1967
The re spondent was not a manufacturer before 4th September 1967 as he had sought for a licence on 5th September 1967 and was therefore in no position to made the declaration before 4th September 1967
The respondent therefore challenged the cut off date of 4th September 1967 as arbitrary
Deal ing with the contention this Court observed as under In the matter of granting concession or exemption from tax the Government has a wide latitude of discretion
1t need not give exemption or concession to everyone in order 474 that it may grant the same to some
As we said the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated if by adopting the device of fragmentation the larger units could become the ultimate beneficiaries of the bounty
 While pointing out that a classification could be rounded on a particular date and yet be reasonable this Court observed that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless the circum stances show it to be capricious or whimsical
When it is necessary for the legislature or the authorities to fix a line or a date and there is no mathematical or logical way of fixing it precisely the decision of the legislature or authority must be accepted unless it is shown to be capri cious or whimsical or wide off the reasonable mark
In the second mentioned case this Court while upholding the con stitutional validity of section 31 B of the UPHigher Educational Service Commission Act 1980 answered two contentions namely 1 adoption of the cut off date in the said section as 3rd January 1984 for the purposes of regu larisation of the services of ad hoc teachers appointed by the management of the affiliated colleges was arbitrary and irrational and violative of Article 14 inasmuch as equals were treated as unequals and ii the Legislature could not arbitrarily adopt 3rd January 1984 as the cut off date for regularisation of the services of ad hoc teachers merely because that was the date on which the 1983 order expired
Agreeing with the High Court that the fixation of the date for the purposes of regularisation was not arbitrary or irrational this Court observed that the object of section 3 I B was to regularise the services of ad hoc teachers ap pointed under the 1983 order till 3rd January 1984Ad hoc teachers who had been appointed prior to that date had legal sanction and therefore they constituted a distinct class
This Court therefore felt that the legislature could not have adopted any other basis for purposes of regularisation and refused to interfere with the High Court s order
In the present case as pointed out earlier the past practice was to fix the last date for receipt of applica tions a month or one and a half months after the date of actual publication of the advertisement
Following the past practice the State Government fixed the last date for re ceipt of applications as 31st January 1988
Those who had  the required experience of three years by that date were therefore eligible to apply for the posts in question
The respondents and some 475 of the intervenors who were not completing the required experience by that date therefore challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution
It is obvious that in fixing the last date as 31st January 1988 the State Government had only followed the past practice and if the High Court s attention had been invited to this fact it would perhaps have refused to inter fere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the rele vant year as the last date for receipt of applications
Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date
As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark
The choice of the date for advertising the posts had to depend on several factors eg the number of vacancies in different disciplines the need to fill up the posts the availability of candidates etc
It is not the case of any one that experienced candi dates were not available in sufficient numbers on the cut off date
Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January 1988 to 30th June 1988 is no reason for dubbing the earlier date as arbitrary or irrational
We are therefore of the opinion that the High Court was clearly in error in striking down the Government s action of fixing the last date for receipt of applications as 31st January 1988 as arbitrary
It was lastly contended that the State Government had given an undertaking to the High Court that no appointment shall be made from any previous panel and that as decided by this Court if the panel which is likely to be prepared pursuant to the advertisement in question is allowed appointments shall be made from the same panel or if that panel is not allowed and a new panel is required to be prepared as directed by this Court appointments shall be made from the same panel 
This undertaking in our opinion cannot preclude the State from challenging the decision of the High Court
In the result this appeal succeeds
The impugned deci sion of the High Court is set aside and the Writ Petition which has given rise to this appeal will stand dismissed with no order as to costs throughout
Y Lal Appeal allowed


Summary:
The assessee a private limited company in Saurashtra was assessed for the assessment year 1952 53 on a total income of Rs 26385
It was assessable at the rate of four annas per rupee but in view of the provisions of the Part B States Taxation Concession Order 1950 it was actually assessed at the rate of sixteen pies per rupee
The assessee had declared dividend of Rs 30000 out of which Rs 15159 was found to be excess dividend
On this excess dividend the assessee was liable to pay additional income tax and the dispute was regarding the rate at which tax was to be computed
Clause ii of the proviso to para
B of Part
I of the First Schedule to the Finance Act 1951 which applied to the case provided that the additional income tax was to be equal to the sum by which the aggregate amount of income tax actually borne by the excess amount fell short of the amount Calculated at the rate of five annas per rupee on the excess dividend
Sub clause b of cl
ii to the second explanation to proviso to para
B provided that the aggregate amount of income tax actually borne by the excess dividend was to be determined at the rate applicable to the total income of the company
The assessee contended that the words at the rate applicable to the total income of the company  meant the rate prescribed by para
8 of the Act ie four annas per rupee and not the rate as reduced by the Order at which the income tax had actually and in fact been levied and that consequently it was liable to pay additional income tax on the excess dividend at the rate of one anna per rupee only
Held that the expression rate applicable to the total income of the company  meant the rate actually applied and that the assessee was rightly charged at the rate of forty four pies per rupee being the rate by which the rate at which the assessee was actually assessed fell short of the rate of five annas per rupee
The clause referred to the specific or definite rate which was determined to be applicable to the taxable income of the company for that specific year and not to the rate prescribed by the Act for the relevant year generally in reference to incomes of companies
143 Elphinstone Spinning and Weaving Mills Co Ltd vs Commis sioner of Income tax Bombay City  con sidered