Criminal Appeal No 205 of 1989
From the judgment and Order dated 2421987 of the Bombay High Court in Crl
WPNo 67 of 1986
AM Khanwilkar for the Appellant
Syed Ali Ahmad Tanweer Ahmad Mohan Pandey and Ms J Ahmed for the Respondent
The Judgment of the Court was delivered by SHARMA J
1
Special leave granted
The respondent was served with an externment order passed under Section 56 of the Bombay Police Act hereinaf ter referred to as the Act directing him to leave the districts of Aurangabad and Jalna for a period of two years
The order stated that from 1151980 the respondent was found to be frequently engaged in illegal business of nar cotics and since he was involved in several cases of riot and criminal intimidation causing physical hurts to the residents of the locality on account of his suspicion that they were supplying information to the police about his illegal activities witnesses were not willing to come forward and depose against him
He filed an appeal under Section 60 of the Act and while the appeal was pending he moved the Bombay High Court with a writ application under Article 226 of the Constitution
During the pendency of the writ application the State Government dismissed the re spondent s appeal by a short order
The writ petitioner thereafter challenged the appellate order also in the pend ing writ case
At the time of the final hearing of the writ case before the High Court four points were raised on behalf of the petitioner
As the 972 first point it was urged that since the State Government omitted to give reasons in support of the order of dismissal of the appeal the same was vitiated in law
The High Court agreed with the petitioner and allowed the writ application quashing the appellate order as well as the initial extern ment order on this ground alone without going to the other questions
The State Government has challenged the High Court judgment in the present appeal
On behalf of the appellant reliance has been placed on the decision of this Court in Pandarinath Sridhar Rangne kar vs Deputy Commissioner of Police where in a similar plea was taken by the appellant before this Court
It was contended that the failure on the part of the State Government indicated non application of mind
The appellant had also urged that the allegations contained in the show cause notice were too vague in absence of details to afford him reasonable opportunity to defend himself
Rejecting the argument this Court held that a full and complete disclosure of particulars as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding
There is a brand of lawless elements in society which it is impossible to bring to book by estab lished methods of judicial trial because in such trials there can be no conviction without legal evidence
And legal evidence is impossible to obtain because out of fear of reprisal witnesses are unwilling to depose in public
While dealing with the contention that the State Government was under a duty to give reasons in support of its order dis missing the appeal the point was rejected in the following terms Precisely for the reason for which the pro posed externee is only entitled to be informed of the general nature of the material allega tions neither the externing authority nor the State Government in appeal can be asked to write a reasoned order in the nature of a judgment
 As observed if the authorities were to discuss the evidence in the case it would be easy to fix the identity of the witnesses who were unwilling to depose in public against the proposed externee
A reasoned order containing a discussion would probably spark off another round of harassment
We are therefore of the view that the High Court was in error in quashing the order as confirmed by the state Government in appeal
The externment order was made several years back and the learned counsel for the appellant rightly stated that although the 973 impugned order need not be revived now it was necessary to correct the error in the High Court s judgment as it is likely to prejudice  other similar cases
Accordingly in the circumstances we set aside the impugned judgment but make it clear that the externment order shall not be enforced against the respondent any further the appeal is according ly allowed to this extent
RSS Appeal al lowed


Summary:
Respondents 1 to 8 are Assistant SecretariesSection Officers Superintendents who are working in different departments of the State of Maharashtra
Under the Rules governing their Service conditions the Govt had prescribed Departmental Examination for promotion to the cadre of Superintendents the passing of the examination was a condi tion precedent for the officials for being promoted as superintendents
The Examination in question was required to be conducted every year and the officials were required to pass the same within the stipulated period and the offi cials who were not able to pass the said examination within the prescribed period were to lose their Seniority but they were permitted to take the examination in any number of chances after the expiry of the stipulated period and they were to be promoted only when they qualify themselves
The Govt
as required under the Rules could not hold the exami nation every year particularly in the years 1968 1969  1970
The Govt
neither extended the period within which the officials were required to pass the examination nor promoted the seniors in the cadre of Superintendents subject to their passing the examination and instead thereof the juniors in the cadre who had qualified in the examination were promoted to the cadre of Superintendents
The seniors in the cadre were promoted only when they qualified the examination ie later in point of time
The Govt issued a revised Seniority List relating to the cadre of Superintendents
In the said List the Respond ents herein were shown juniors to those persons who had not only qualified the Dept Examination later in point of time but also promoted after them
Being aggrieved the Respond ents herein challenged the validity of the revi 948 sion of the Seniority List as also the validity of the Rules being violative of article 14  16 of the Constitution by filing a Writ Petition in the Bombay High Court
The High Court allowed the Writ Petn
and issued the following two directives to the State Govt
1 To recast the RevisedFinal Seniority List dated 20121982 vis a vis the persons shown in the Category of Late Passing after considering the objections of the Writ Petitioners and Ors
and assign them seniority strictly in accordance with Rule 2 and the other Government Orders referred to in paragraph 96 of the Judgment and 2 The Seniority in the Superintendent s Cadre so fixed should also be considered as seniority for further promo tions
Being dissatisfied with the said order of the High Court the State of Maharashtra filed appeals in this Court after obtaining Special Leave
Allowing the appeals this Court HELD Under the 1951 Rules the candidate could appear for the examination after two years of his entering into the cadre
He had three chances and he must pass within six years of his joining Service
Under the 1962 Rules a candi date was allowed to take the examination only after complet ing five years service in the cadre
He had three chances for taking the examination and that must be availed of within four years
That means he must pass the examination within 9 years  service
Under both the Rules the Govt was required to hold the examination every year but no examina tion was held in 1968 1969 and 1970
953F G Those recruited in 1961 are deprived of two chances in 1968 three chances in 1968 1969  1970 and those of the year 1963 have lost two chances in 1969  1970
The last batch to lose one chance in 1970 is of the year 1964
953H 954A Under the 1955 Rules the Government preserved power to dispense with or relax the requirements of any rule regulat ing the conditions of service of Government servants or of any class thereof
954B 949 There is no restriction as to the exercise of the power or discretion954C The Circular dated January 15 1962 is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to article 309 of the Constitution
The Government could not have restricted the operation of the Statutory Rules by issuing the executive instruction
The executive instruction may supplement but cannot supplant the statutory rules
954D E Rule 2 of the 1962 Rules no doubt states that a candi date who does not pass the examination at the end of 9 years service will lose his seniority
But this rule cannot be read in isolation
955D If examination is not held every year
The rule cannot operate to the prejudice of a person who has not exhausted all his chances
The person who has not exhausted the avail able chances to appear in the examination cannot he denied of his seniority
It would be unjust unreasonable and arbitrary to penalise a person for the default of the Gov ernment to hold the examination every year
That does not also appear to be the intent or purpose of the 1962 Rules
955E F The Govt
instead of promoting such persons in their turn made them to wait till they passed the examination
They are the persons failing into the category of Late Passing
To remove the hardship caused to them the Govt
wisely restored their legitimate seniority in the promotion al cadre
There is nothing improper or illegal in this action and indeed it is in harmony with the object of 1962 Rules
955G H The Court need not have to reflect upon the Rules of interpretation since they are well settled
They are now like the habits of driving which have become ingrained
They come for assistance by instinct
The different rules have to be used meticulously to give effect to the scheme as the clutch brake and accelerator are used for smooth driving