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PETITIONER: MAMAD HASSAM BHAGAD AND OTHERS

       Vs.

RESPONDENT: STATE OF GUJARAT AND OTHERS

DATE OF JUDGMENT:       09/05/1996

BENCH: VENKATASWAMI K. (J) BENCH: VENKATASWAMI K. (J) ANAND, A.S. (J)

CITATION:  1996 AIR 2057            JT 1996 (5)   327  1996 SCALE  (4)313

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. VENKATASWAMI,J.      This appeal preferred under section 19 of the Terrorist and   Disruptive    Activities   (Prevention)    Act.   1987 (hereinafter referred  to as "TADA") challenges the judgment and order  of the  learned Designated Judge (TADA), Jamnagar dated July 1, 1994.      The learned  Designated Judge  confirmed  an  order  of attachment of  seven vessels/ships  under Section 7A of TADA pending further investigation in the matter.      At the outset we would like to make it clear that we do not propose  to deal  with the matter either in detail or to give a  final decision  in this  matter in  view of the fact that when  the judgment under appeal was made the matter was under the  investigation stage only. In our view any opinion expressed at  this stage  might cause  prejudice  to  either party and  that is  the reason for not going into the matter in detail  or giving  any final decision. Briefly stated the facts are as under :      In the Kalyanpur Police Station Crime Register No.62/93 related to  a case  booked for the offences punishable under sections 121, 121A, 122, 34 IPC and 25(1)(A)(D),25(1)(A)(2), 25(1)AA, 25(A)(B),  25 (A)(F) of the Arms Act, Section 20 of Wireless Telegraph  Act and  Sections 3,4  and 5 of TADA and Section 135(l)  of the  Bombay Police  Act. In the course of investigation one  diary of  Hamir Sajan  was found  and  it contained certain  financial transactions  relating  to  one Haji Ismail  for  purchasing  the  ships  in  question.  The District  Superintendent  of  Police  attached  those  ships invoking  powers   under  Section   7A  of  TADA.  A  report application No.1993  was filed before the learned Designated Judge seeking confirmation of attachment.      The appellants  claiming to  be the owners of the ships in question objected to the attachment and sought revocation of such attachment before the learned Designated Judge.

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    It was  argued before the learned Designated Judge that section 7A of TADA came into force on and from 22.5.1993 and the purchases  of all  the ships  having  taken  place  well before that  date, the provisions of TADA cannot be invoked. It was  also contended  that none  of the  persons objecting (claiming to  be the  owners) the  attachment had  ever been arrested   provisions of Customs Act or under TADA and hence prima facie  Section 7A  of TADA  has no application. It was further contended  that to  invoke Section  7A of TADA there should be  knowledge or  reasons to  believe that properties attached are  involved  in  terrorist  activities  and  that requirement was not satisfied on the facts of the case.      Before the  learned Designated  Judge,  the  Designated Public Prosecutor  after narrating the facts relating to the purchase of  the seven  ships in  question contended that on prima facie  case being  made out and entertaining reason to believe that  the property  in  question  falls  within  the mischief of  Section 7A  attachment in question was made and that  further   inquiry/investigation  was  still  going  on regarding all  the seven  ships to  conclusively find  as to whether they  were involved  in smuggling activities or not. It  was  admitted  that  since  some  of  the  persons  were absconding  and   some  of  others  had  left  the  district therefore, at  that stage,  attachment could  not be revoked and he  prayed for  confirmation of the order of attachment.      The learned  Designated Judge  bearing in mind that the investigation was  still going  on has  given only  a  prima facie finding  and on  being satisfied  with the prima facie case confirmed by the judgment under appeal.      The  learned  Designated  Judge  found  that  the  main accused was  one Haji  Haji Ismail  and  he  was  doing  the landing activities  of gold  and silver  articles which  are smuggled  goods   and  in   order  to  see  that  Government authorities do  not cause any hurdles to him in carrying out such activities  he was possessing automatic rifles, foreign made Pistols  and  other  latest  and  scientific  means  of communications and  they were  already  attached  and  Hamir Sajan and  other three  persons were  arrested. Though  they were released  on bail,  in the first instance on the ground that TADA  does not  apply to them, on appeal to this Court, the order  granting bail  to then  was cancelled and all the accused were  taken into  custody.  The  learned  Designated Judge also  found, prima facie, that there was no mention at all in  Section 7A that the property to be investigated must be the  property of  an offender  against whom  the  offence under Section,  7A is  to be  registered. According  to  the learned Judge  what was  required to be established was that the property in relation to which the investigation was made must be  having sources  of  purchase  from  the  amount  or proceeds of  terrorism or  by way of commission of terrorist activity. Therefore, the learned Judge found that it was not necessary or  incumbent upon  the Investigating  Officer  to attach only  properties of  the persons who were involved in the offence  under TADA  Act and that on the other hand, any property can  be attached  if it is reasonably believed that it was derived from the commission of any terrorist activity or was  acquired by the proceeds of ’terrorism’. The learned Judge also  found that  ’the  aforesaid  party  (namely  the appellants herein)  are related  to the  main smuggler  Haji Haji Ismail’  who is  absconding  and  by  using  the  funds provided by  him the ships in question were purchased and so it can be said that      "prima   facie,   doing   smuggling      activity of  keeping and possessing      latest and modern foreign made arms

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    and ammunitions  in order  to cause      terrorism  among  the  Customs  and      Police Officers  would mean that by      keeping  the   authority  such   as      Custom Officers or Police Personnel      in  constant   fear  due   to   his      terrorist activities, the amount is      derived  from   that  activity,  it      would mean that the fund is created      by way  of terrorist  act, as  Haji      Haji Ismail  has  managed  for  the      money to  purchase seven  ships  to      the opposite party members who have      purchased the  ships in their names      only as  a show  and ostentation so      that they  can be  safe from  penal      action     and      such      other      consequences."      Finally the  learned Judge observed      that :      "Therefore, at this juncture, it is      established prima  facie that ships      mentioned  in   report  Application      No.1/1993 are liable to be attached      and they  are attached  rightly  as      stated by  the authorities and they      deserve to be confirmed."      Mr. Mehta,  learned Senior  Counsel reiterated the same arguments which were addressed before the learned Designated Judge. As  we have  observed at  the outset  it would not be advisable to  give any  definite opinion  with regard to the ’involvement’ of  the attached  ships at  this stage  except observing that from the materials on record we are satisfied that the  Investigating Officer  prima facie  had reason  to believe that there is basis for invoking Section 7A of TADA. We may  also add in fairness to Senior Counsel that he cited certain judgments to support his arguments, but for the very same reasons  as given above we do not think it is necessary to quote and elaborate those citations."      After carefully  going through  all the relevant papers and  the   prima  facie   views  expressed  by  the  learned Designated Judge,  we are  of the opinion that at this stage we need  not interfere with those conclusions reached by the learned Designated  Judge. However,  on the  facts  of  this case, the  ship bearing  the name "Nabi Mahar", Registration No.B.D.I.430 purchased on 10.12.1965, as per the case of the prosecution itself,  cannot be  kept under  attachment,  the reason being  that this  ship was  purchased long before the passing of TADA. Therefore, the said ship has to be released from attachment.  We make  an order  accordingly. Except for this modification,  for obvious  reason. we  do not find any ground to  interfere with  the judgment  and  order  of  the learned Designated  Judge in  any other  respect. Subject to the modification as above, the appeal stands disposed of. C.A.NOS.            S.L.P.NOS.          CC NOS. --------            ----------          ------- 8652/96             11870/96            19260/93 8919-20/96          4250-51/93 8729/96             7406/93 8725/96             11911/96            20225/93 2570/93             8090/93             20528/93 8703/96             16410/93 8364-66/96          2533-35/94          20030/93 8905/96             2993/94 2359-60/94

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5305/93 8699/96             11178/94 8702/96             15438/54 8697/96             17640/94 8863/96             13168/94 8726/96             14415/95 8655/96             17196/95 8698/95             18159/95 Union of India & Anr, etc. etc. V. M. Bhaskar & Qrs. etc. etc. [With CC 19260/93 in C.A. Nos.......of 1996 (arising out SLP (C) Nos.  4250-51/93,  7406/93,  CC  20225/93  in  C.A.  No. 2570/93,  C.A.  No.......of  1996  (arising  our  of  SLP(C) No.16410/93), CC  20030/93, (arising out of SLP(C) Nos.2533- 35/94,  2993/94),   C.A.   Nos.2359-60/94,   5305/93,   C.A. Nos....of 1996  (arising  out  of  SLP  (C)  Nos.  11178/94, 15438/94, 17640/94, 13168/94, 14415/95, 17196/95, 18159/95] Union of India & Anr. etc.etc. V. M. Bhaskar & Ors. etc.etc.                       J U D G M E N T HANSARIA.J.      This  batch  of  appeals  requires  us  to  decide  two questions both  of whom are relatable to the Railway Board’s memorandum dated  15.5.1987 on the subject of recruitment of Traffic/Commercial Apprentices.  The two  questions are: (1) the purport  of the memorandum: and  (2) the validity of the same. 2.   There has  been a cleavage of opinion among the various Central Administrative Tribunals (CATs) of the country. Most of the  Tribunals have  rejected the  understanding  of  the Union of  India - the main appellant-relating to the meaning and scope  of the  memorandum. The  Ernakulam Bench  of  the Tribunal has even regarded the memorandum as invalid. 3.   The broad  contents of  the memorandum may be noted. It brought  about   some  changes   in   the   recruitment   of Traffic/Commercial Apprentices  - one  of the  changes being that  on   and  from  15.5.1987  the  recruitment  of  these Apprentices would  be made  in the pay scale of Rs.1600-2660 (this scale  earlier was  Rs.1400-2300) and,  instead of all the posts  being filled up by promotions, ratio of promotees was made 75%, and of the remaining 25%, 10% were required to come through Railway Recruitment Boards and 15% on the basis of Limited  Department competitive Examination. The pre-1987 Apprentices laid  their claim for the higher scale of pay an the basis of 1987 memorandum; and it is this claim which has come to be allowed by the majority of the CATs. 4.   The appellant has challenged the legality of this view. It has  also been  contended  that  the  memorandum  is  not invalid for  the reason given by the Ernakulam Bench or, for that matter, any other reason. The learned counsel appearing for the  respondents have  supported the  view taken  by the majority of  the CATs  insofar as  the benefit of higher pay scale is concerned. According to them the memorandum is also invalid   because   of   its   discriminatory   nature   and introduction of arbitrary cut-off date. 5. To  decide the  controversy,  it  would  be  apposite  to apprise  ourselves   as  to   what  was   the  procedure  of recruitment before  the memorandum in question; and what was really meant  by the  word ’Apprentices’.  We have  put this aspect at  the forefront  because the  Tribunals.  who  have granted the  benefit of higher pay scale, have done so, with respect,  without   applying  their  mind  to  the  relevant provisions  of  the  Indian  Railway  Establishment  Manual,

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hereinafter the  Manual, dealing with the recruitment of (1) Traffic Apprentices;  and (2)  Commercial Apprentices.  Role 123 of  1968 Edition of the Manual deals with recruitment of Traffic   Apprentices   and   Rule   127   with   Commercial Apprentices. It  is apparent from this Manual that the posts to be  held by  Traffic Apprentices before the 1987 were of: (1) Assistant  Station Masters;  (2) Assistant Yard Masters; (3) Traffic  Inspectors; and  (4) Section Controller (in the scale of  Rs.1400-2600). Insofar  as Commercial  Apprentices are concerned  these posts  were of:  (1)  Assistant  Claims inspectors/Supervisors; (2) Assistant Commercial Inspectors; (3) Assistant Rates Inspectors (Goods and Coaching); and (4) Other Inspectors  for outdoor  duties. This apart, the pre - 1987  position  was  that  in  the  Traffic  and  Commercial Departments, posts  in the  pay scale  of Rs.1400-2300  were being filled  up to the extent of 25% by direct recruits, of which 15%  were  from  open  market  and  10%  from  Limited Departmental Competitive Examination; and the balance 75% by promotion from  lower grade. Further, the term ’Apprentices’ was being  actually used  to  cover  ’direct  recruits’,  as distinct from  ’promotees’. Another thing to be noted, which again missed the Tribunals in question, is that when the pay scale of  Rs.1400-2300 was  being paid to Traffic/Commercial Apprentices, the  higher pay scale of Rs.1600-2660 was being paid to those who were in a higher grade. 6. Though  the  above  is  disputed  by  Mrs.  Sharda  Devi, appearing for some of the respondents, we entertain no doubt on this  score, because  from what has been stated in para 6 of the  Affidavit filed  by T.P.V.S. Sekar Rao, Deputy Chief Personnel  Officer,   South  Central   Railway  Headquarters Office, Secunderabad,  it appears  that  the  Pay  scale  of Rs.1400-2300 was  being made  available to Traffic Inspector Grade III,  whereas scale  of  Rs.1600-2660  was  meant  for Traffic   Inspectors   Grade   II.   Similarly,   Commercial Inspector, Grade  III, was getting the scale of Rs.1400-2300 and Commercial  Inspector, Grade  II, the  scale of Rs.1600- 2660. Mrs. Sharda Devi has referred to us in this connection to the  Table of  "Avenue of Promotion for SS/TIs.." finding place at  page 82  of this counter, to being home her point. This chart itself shows that there are promotional posts and the old  state  of  Rs.455-700  (which  on  revision  became Rs.1400-2300) was meant for some Traffic Apprentices and not all. We  may refer  in this  context to  what finds place in Section B  of Chapter  II of  the Manual. This Section deals with Rules  governing the  promotion of  Group ’C’ and shows that  some   promotional  posts  have  been  categorised  as selection posts  and some non-selection. The aforesaid chart relating to  the ’avenue  of promotion’ has itself mentioned which are  the non-selection  posts and  which are selection posts. 7.   From the  aforesaid, it is clear that the memorandum of 1987  was   really  not  one  of  revision  of  pay  of  the Traffic/Commercial Apprentices,  as has  been understood  by those Tribunals  who have conceded the higher pay scale. The higher pay scale was really meant for the Traffic/Commercial Inspectors of  higher grade.  Mrs. Sharda  Devi’s effort  to satisfy us  that the  higher pay scale was really a revision on the  basis of  what finds place in para 2(ii) of the 1987 memorandum  is   founded  on  misapprehension  inasmuch  the mention in  that sub-para that "Traffic Apprentices absorbed in the  cadre of  Section Controllers  in scale  of  Rs.470- 750/1400-2600 (RP)  will be fixed at starting pay of Rs.1600 on absorption", does not mean that these Section Controllers were given  the pay  scale of  Rs.1600-2660, as urged by the learned counsel. All that was conveyed by this statement was

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that  the  Section  Controllers,  even  though  getting  the revised scale  of Rs.1400-2600,  their starting pay would be Rs.1600. This  was so  required according  to Shri  Malhotra appearing for the appellant. because the Trained Apprentices could become  eligible for  the post  of Section  Controller only after  having two  years Yard’s experience in the grade of Rs.455-700.  It is  this pay  scale which  had become  on revision Rs.1400-2300:  the unrevised  pay scale  of Section Controller was Rs.470-750, which on revision become Rs.1400- 2600. So,  what has  been stated  in  para  2(ii)  does  not support the  case of  the respondents that the memorandum of 1987 really  dealt with  the revision  of  pay  of  all  the Traffic/Commercial Apprentices. 8.  We, therefore, hold that the Tribunals which allowed the benefit  of   pay  scale   of  Rs.1600-2660   to   all   the Traffic/Commercial Apprentices  irrespective of the grade of the  posts   held  by   them,  not  only  misunderstood  the memorandum of 1987, but misconceived the provisions relating to the  recruitment and  promotion of  these Apprentices  as finding place  in the  Establishment Manual. Indeed, somehow or other  they were oblivious of what has found place in the Manual in this regard. 9. This leaves for consideration the question of validity of the  memorandum.   The  Ernakulam   Bench,  which  held  the memorandum invalid,  did so  for the reason that the Railway Board, which  had issued  the  memorandum,  could  not  have changed the  provisions finding  place in  the establishment Manual.  which   are  statutory   in  nature,   whereas  the memorandum was  categorized as  administrative  instruction. Now, there  is no  dispute in  law that  statutory provision cannot be  changed by  administrative instruction. Now then, the Tribunal,  despite having  noted Rule  1-A of the Indian Railway Establishment  Code (Volume-I)  as published on 21st March, 1951 reading:      "Normally recruitment  will  be  to      the  lowest  grade  of  the  lowest      class  but  direct  recruitment  on      limited   scale   to   intermediate      grades will  be made  in accordance      with instructions  laid down by the      Railway Board from time to time" ultimately failed  to bear  in mind the aforesaid provision. Rule 1-A  which had  come to  be made  pursuant to the power conferred by  the proviso  to Article  309 and having stated that the  recruitment in  the lowest  grade will  be made in accordance with  the instructions  laid down  by the Railway Board from  time to  time, the  rule  itself  permitted  the Railway Board  to  issue  necessary  instructions,  and  the memorandum of  1987 having  been issued by the Railway Board in exercise  of this  power, we  hold that  Board had  valid authority to issue the memorandum. 10.  Another  submission   made  by   Mrs.  Sharda  Devi  in assailing the  validity of  memorandum was that though pre - 15.5.1987 Apprentices  would get  the scale of Rs.1400-2300, the post 15.5.1987 Apprentices were made available the scale of Rs.1600-2660,  for no good reason, and so, the memorandum was arbitrary.  This is  more so, as earlier the apprentices were to undergo training for 3 years, which was reduced to 2 years by  the memorandum. Shri Malhotra’s contention in this connection was  that there  was a  change of  policy in  the sense that Apprentices recruited after 15.5.1987 were to man the posts,  not of Assistant Station Masters, Assistant Yard Masters etc.  as before,  but of  Station Masters  and  Yard Masters. It  is because  of this  that higher  pay scale was made available  to them.  It was  also brought to our notice

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that  the   memorandum  provided   that  the   standard   of examination  for  the  Apprentices  to  be  recruited  after 15.5.1987 was  required to  be higher  than that  which  was prevailing, and  if because  of this, the period of training was made  2 years  in place  of 3,  the same cannot make the policy unreasonable,  as a  2 year period for training is of sufficiently long duration to equip persons selected after a more rigorous  test, with  the knowledge required to man the posts in  question.  We  agree  and  state  that  if  direct recruits passing  examination  of  higher  standard  to  man higher posts  were required  to be  given higher pay scales, the same  cannot be regarded in any way as discriminatory or even arbitrary.  Such a  policy decision is not unreasonable also. 11.  The final  submission in  this regard was that the cut- off date  "15.5.1987 is  arbitrary. This also is not correct because the  memorandum had come to be issued following many deliberations and discussions with different unions of which mention has  been in  detail in  one  of  the  documents  on record. So,  it cannot  be said that the date (15.5.1987) is one ’picked  out from  a hat’,  in which case a cut-off date would be arbitrary, as stated by this Court recently in para 4 of  Union of  India v.  Sudhir Kumar  Jaiswal (1994) 4 SCC 212. We are rather satisfied that the date has relevance and the memorandum has come to be issued following the aforesaid discussion. So, we uphold the validity of the memorandum. Appeals @ SLP (C) Nos.2533-35 of 1994 12.  In these  appeals, it  was contended  by  Shri  Das  on behalf of  respondent Nos.2  to 4  that the  cases of  these respondents  stand   on   different   footing   from   other respondents. because,  though they  had come to be recruited pursuant to  an advertisement  of January  1987,  they  were called for  training programme  commencing from  August 1989 and so, they should be taken as post - 1987 Apprentices, for which reason  they would  be entitled  to the benefit of the memorandum. This contention has been advanced because of the language of  sub-para (xii)  of para  2 of  the  memorandum, according to which the revised pay scale of Rs.1400-2300 was meant for "apprentices already under training". It was urged that the  aforesaid respondents were not "under training" on 15.5.1987 as  they had been called for training which was to commence from  August 1989,  Our attention was also drawn by Shri Das  to a document at page 130 of the paper book, which is a  communication of the Principal, Sonal Training School, addressed  to   the  Chief   Optg.  Supdt.   by  which   the representation   of   30   Traffic   Apprentices   for   the absorption/posting in  the pay  scale of  Rs.1600-2660   was forwarded for consideration. 13. As  to the  last document, we would say that the same is inconsequential inasmuch as the Principal had only forwarded the  representation.   Though  it   is  correct   that   the respondents were  called for training from 1989, that is not enough to  distinguish their  case  from  other  respondents inasmuch as  they had  come to  be recruited  pursuant to an advertisement of  January 1985;  and so,  they  have  to  be treated as  pre-1987 Apprentices.  What has  been stated  in sub-para (xii)  cannot be taken in isolation; that has to be understood along  with other  provisions  contained  in  the memorandum. If  this were  to be so done, we do not think if we  would   be  justified   in  treating  these  respondents differently from  other pre-1987  Apprentices  because  they were called  for training  in 1989.  We have taken this view because it  is known that at times there are no vacancies in training schools  and so training programme has to be spread out. We, therefore, reject the contenting advanced on behalf

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of these respondents by Shri Das. Appeal @ SLP (C) No. 15438 of 1994 14.  In this  appeal, a  separate argument  was advanced  on behalf of  respondent No.1,  Prakash Chandra  Ojha, who  had approached the  Patna Bench  of the  CAT with  the grievance that he  was unjustly  and  illegally  denied  promotion  to Grade- I  Commercial Inspector  in 1990,  despite his having been promoted  as Commercial  Inspector Grade-II by an order dated 21.9.1989,  which was  made effective from 11.10.1988, because of  which he  had become  eligible for  promotion to Grade-I on  11.10.1990, as  the  eligibility  condition  was completion of  2 years  of experience in Grade-II. The Patna Bench held  that the  exclusion of  this respondent from the list of eligible candidates for the selection meant for 1990 was wrong. 15. The  aforesaid decision  has  been  challenged  in  this appeal by  the Union  of India  by contending  that 2 years’ period  of   experience  has   to  be   reckoned,  not  from 11.10.1988, but from 21.9.1989. There is no dispute that the eligibility condition  is 2  years experience  in  Grade-II. Now, this respondent having really started working in Grade- II pursuant  to the  order of  21.9.1989, he  could not have gained experience  prior to  the date he had joined pursuant to this  order. The mere fact that his promotion in Grade-II was notionally  made effective  from  11.10.1988  cannot  be taken to  mean that  he started gaining experience from that day, because  to gain  experience one  has to work. Notional promotions are  given to  take care of some injustice, inter alia, because  some junior  has come to be promoted earlier. But we entertain no doubt that the person promoted to higher grade cannot  gain experience  from the date of the notional promotion; it  has  to  be  from  the  date  of  the  actual promotion. 16. We,  therefore, hold  that the  view taken  by the Patna Bench qua this respondent is not sustainable.                       Conclusion 17. All the appeals, therefore, stand disposed of by setting aside the  judgments of those Tribunals which have held that the  pre-1987   Traffic/Commercial  Apprentices  had  become entitled to  the higher  pay scale  of Rs.1600-2660  by  the force of  memorandum of  15.5.1987. Contrary  view taken  is affirmed. We  also set  aside the  judgment of the Ernakulam Bench which  declared the  memorandum as  invalid; so too of the Patna  Bench in  appeal @  SLP(C) No.15438  of 1994  qua respondent No.1.  We also  state that cases of respondents 2 to 4 in appeals @ SLP(C) Nos.2533-34 of 1994 do not stand on different footing. 18. Despite  the aforesaid conclusion of ours, we are of the view that the recovery of the amount already paid because of the  aforesaid   judgments  of  the  Tribunals  would  cause hardship  to   the  concerned   respondents/appellants  and, therefore, direct the Union of India and its officers not to recover the  amount already  paid. This  part of  our  order shall apply (1) to the respondents/appellants who are before this Court:  and (2)  to that  pre-1987 Apprentice  in whose favour judgment  had been delivered by any CAT and which had become final  either because  no appeal  was carried to this Court or,  if carried,  the same was dismissed. This benefit would be available to no other.