PETITIONER: ANAND PARKASH SAKSENA Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 14/12/1967 BENCH: <NAME>, R.S. BENCH: <NAME>, R.S. WANCHOO, <NAME>, J.M. MITTER, G.K. VAIDYIALINGAM, C.A. CITATION: 1968 AIR 754 1968 SCR (2) 311 CITATOR INFO : R 1976 SC2345 (16) RF 1980 SC1275 (24) ACT: Indian Administrative Service-I.A.S. Extension to <ORG>s Scheme-Officer in the junior scale of pay if has a right to a post in the senior scale-All India Services (Discipline and Appeal) Rules 1955, r. 3-Filling of posts by non-<ORG> officers, if penalty-I.A.S. Recruitment Rules, 1954, r. 4(3), if bad for excessive delegation-Regulation of Seniority Rules, 1954, r. 3(3)(b), Seniority of Special Recruits Regulation, 1960, regulation 3(3), if violative of Constitution of India, Arts. 14, 16. HEADNOTE: <ORG> of <ORG> was constituted in 1951 under the I.A.S. Extension to <ORG>s Scheme. The <ORG> included all senior posts. A number of junior and training posts were provided to be held by officers recruited to the cadre before they acquired the experience and seniority necessary to hold senior posts. The primary source for the initial constitution of the <ORG> was the existing incumbents of <ORG>. They were selected and included in three Lists. Officers in List I, were immediately appointed to the service Officers in List 11 were to be taken in the service only when found suitable and those in List III were not to be absorbed in the service. List 11 and III officers were counted against' senior posts but these posts held by them were excluded from the <ORG> for the period they were held by those officers. The <ORG> was to be maintained on a permanent basis by direct recruitment by competitive examination and promotion of <ORG> Civil Service Officers and twenty-five per cent of the senior posts were reserved for the latter. The <ORG> continued Co be governed by the Scheme until 1954 when the I.A.S. Recruitment, Seniority <ORG> and Pay Rules were made. Rule 9(1) of the <ORG> Rules provides for appointment of non-cadre officers to cadre posts, i.e. senior posts, if suitable cadre officers are not available and the proviso to the rule preserved the arrangement under the Extension to <ORG>s Scheme for the holding of cadre posts by non-<ORG> officers. Under Rule 9(1) of the Recruitment Rules twenty- five per cent of the senior posts are reserved for persons recruited under rule 8, i.e. by promotion of substantive members of <ORG> and by selection of those who hold gazetted posts in connection, with the affairs of a <ORG>. The Special Recruitment Regulations, 1956, made under rule 4 of the Recruitment of Rules, provides for recruitment by promotion to the Service by selection of persons serving in connection with the affairs of a <ORG>. In the matter of seniority, the Regulation of seniority Rules, gives a promote from <ORG> Civil Service the year of allotment of the junior-most direct recruit officiating continuously in a senior post earlier than the date of commencement of such officiation by the promotee. The seniority of Special Recruits Regulation,, 1960, adopts the formula applicable to promotees for fixing the seniority of those recruited by promotion under the Special Recruitment Regulations. The petitioner, a direct recruit by competitive examination,, was appointed to a junior post in the Service on April 2, 1952. He was originally allotted to <ORG> <ORG>, which along with the former <ORG> and Madhya Pradesh <ORG>s merged in the present L2 Sup CI/68-9 612 Madhya Pradesh <ORG> constituted on November 1, 1956. He was not found suitable to hold a senior post till November 17, 1956, when. he was appointed to officiate in a senior post. At the time his appointment to the service there were no vacancies in the senior posts. Vacancies arose before he was appointed to officiate in the senior post and after. Some of the respondents who were officers of <ORG> and the former Madhya Pradesh <ORG> Civil Services were promoted before the integration of the cadres on November 1, 1956 to fill the vacancies against the twenty- five per cent quota and several non-<ORG> officers were appointed under r. 9(1) of the <ORG> Rules. Vacancies were also filled in by promotion under the Special Recruitment Regulations. In the gradation List published on January 1, 1966 all the respondents were shown as senior to the petitioner. In a writ petition, under Art. 32 the petitioner contended that (i) he had a right to hold a post in the senior scale of pay from April 2. 1952 to November 17, 1956, under the Rules and in tile light of this Court's decision in <CITATION> and the filling of the vacancies by non-<ORG> officers amounted to withholding of promotion and penalty within the meaning of r. 3 of the All India Service (Discipline and Appeal) Rules. 1955; (ii) under the rules seventy-five per cent of the total number of senior posts was exclusively reserved for direct recruits and that in computing the twenty-five per cent quota officers in Lists 11 and III and special recruits had to be included; (iii) r. 4(3) of the Recruitment Rules which authorised <ORG> to make regulation for special recruitment was bad on the ground of excessive deletation; (iv) r. 3 (3) (b) of the Regulation of Seniority Rules, 1954, made unjust discrimination between a promotee and a direct recruit in the matter of seniority by arbitrarily allotting a lower year of allotment to a promotee and therefore violated Arts. 14 and 16 of the Constitution; and (v) regulation 3(3) of the Seniority of Special Recruits, Regulation 1960, offended Arts. 14 and 16 inasmuch as the relevant rules and regulations set up an arbitrary double standard for a special recruit enlisted by promotion. HELD : Dismissing the petition. (i) The filling of a vacancy by a non-<ORG> officer under r. 9 of the <ORG> Rules does not infringe any right of the <ORG> officer nor does it amount to withholding of Promotion or a Penalty within the meaning of r. 3 of All India Service (Discipline and Appeal) Rules, 1955. A <ORG> Officer in the junior scale of pay cannot claim 'a right to fill a vacancy in the senior scale if he is not 'suitable and no <ORG> officer junior to him is Promoted to fill the vacancy. The decision in <NAME>'s case is distinguishable. That case only decided that the reversion of a <ORG>, office, while <ORG> officers junior to him continued in the senior scale amounted not only to reduction in rank but also to withholding of promotion. Rule 6 A(2) of the Recruitment Rules introduced in 1965 after the decision in <NAME>'s case now makes explicit what was always implicit in r. 9(i) of the <ORG> Rules. In the instant case no <ORG> Officer junior to the Petitioner was promoted to the <ORG> post be-fore his Promotion on November 17, 1956 and after Promotion he was neither reverted nor reduced in rank nor was his promotion withheld. [619 F-H: 620 E-F] P. C. <NAME> v. Union of India,  4 S.C.R. 598. distinguished. 613 (ii) Seventy-five per cent of the senior posts may be filled by recruits other than those recruited by promotion or selection under r. 8 of the Recruitment Rules. Special recruits are appointed against the seventy-five per cent quota and rule 9(3)(b)(iv) added in 1965 makes explicit what was always implicit in r. 9(1) of the Recruitment Rules. Under the Extension. to <ORG> Scheme officers in Lists II and III were not counted against the twenty-five per cent quota. Rule 9(3)(b)(iii) of the Recruitment Rules make it clear that in computing the twenty-five per cent quota the appointments of officers in List 11 will be excluded. [620 G, H] (iii) Assuming that the doctrine of excessive delegation of Legislative power applies to rules, r. 4(3) does not suffer from the vice of excessive delegation. in making .'he regulations under the rule <ORG> is to be guided by the exigencies of the service and the advice of the <ORG> Governments 'and (,he <ORG>. There authorities are the best judges of the appropriate regulations to be made in the matter [622 A-C] (iv) Rule 3(3)(b) of the Regulation of Seniority Rules is not violative of Arts. 14 or 16 of the Constitution. The object of the rule is to fix the seniority of the promotees who obtained promotion after long service in <ORG>, in relation to direct recruits. The 'rule attempts to strike a just balance between the- conflicting claims of the promotees and direct recruits. [622 F-G] (v) Regulation 3(3) of the Special Recruits Seniority Regulations is not violative of Arts. 14 and 16. Special recruits 'are neither direct recruits nor promotees. They form a distinct class. The regulation, properly adopts the formula applicable to promotees for fixing the seniority of special recruits enlisted by promotion so that in the matter of seniority all officers recruited from <ORG>s 'are placed on the same footing. [623 A-C] JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition No. 58 of 1967. Petition under Article 32 of the Constitution of India for the enforcement of the Fundamental Rights. <NAME>, <NAME>, <NAME> and <NAME>, for the petitioner.

<NAME>, Solicitor-General, <NAME> and <NAME> for <NAME>, for respondent No. 1. <NAME> and <NAME>, for respondents Nos. 2 to 18,, The Judgment of the Court was delivered by <NAME>, J. The petitioner is a member of <ORG> having been appointed to a junior post therein on April 2, 1952 on the basis of a competitive examination held by <ORG> in the year 1951. He completed his probation on October 2, 1953. He was originally allotted to <ORG> of <ORG> which along with the former Vindhya Pradesh and Madhya Pradesh cadres, merged in the present Madhya Pradesh cadre of <ORG> constituted on November 1, 1956.

He was appointed to officiate in a senior post on November 17, 1956. In the gradation list published on January 1, 1966, hi,; number is 70. In this writ petition under Art. 32 of the Constitution he claims that (a) he had the right to hold a post in the senior scale of pay from April 2, 1952 up to November 17, 1956 under the relevant rules read in the light of the decision in <CITATION> (1) and that (b) he is entitled to a higher place in the gradation list. He asks for the issue of appropriate writs declaring his rights and giving him consequential reliefs. The <ORG> cadre of <ORG>: was constituted on June 1, 1951 under <ORG> Extension to States Scheme. The cadre included all senior posts. A number of junior and training posts were provided, to be held by officers recruited to the cadre before the) acquired the experience and seniority necessary for holding senior posts. The initial constitution of the cadre was made from (1) the existing incumbents and (2) emergency recruits. The existing incumbents were considered to be the first and primary source of recruitment. They were selected by <ORG> and divided in three lists. Officers in List I were considered fit for immediate appointment to the <ORG>. Officers in List II were to continue to hold their present posts, their work was to be watched for 5 years and were to be absorbed in the <ORG> as and when they were found fit. Officers in List III were to hold their present posts or posts of equivalent rank until they retired but they were not to be absorbed in the <ORG>. The posts held by officers in Lists 11 and III were excluded from the cadre for the period during which they were held by those officers. The cadre was to be maintained on a permanent basis by (a) direct recruitment on the result of the competitive examination and (b) promotion from amongst officers of the State Civil <ORG>. As in the case of the Provincial cadres, 25 per cent of the senior posts were earmarked for promotion of officers of the State Civil <ORG>.

On June 1, 195 1, the number of senior posts in the <ORG> cadre was 25. On selection by <ORG>, 6 officers were placed in List I and were appointed to the Service from January 1, 1951. Four officers were placed in List II and 11 officers were placed in List III and they continued to hold their posts under the Extension to States Scheme.. The remaining 4 senior posts were held by 4 emergency recruits. On April 2, 1952, there was thus no available vacancy for the petitioner in the senior posts. As a matter of fact, 2 direct recruits senior to the petitioner were in the junior scale of pay. (1) [1964] 4 S.C.R. 598.

In September 1954, <ORG> framed the <ORG> Cadre Rules, 1954, <ORG> Recruitment Rules, 1954, <ORG> Pay Rules, 1954 and <ORG> Regulation of Seniority Rules, 1954 in exercise of its powers under s. 3(1) of the All India Services Act, 1951. These rules were amended from time to time. Under r. 2 (a) of the Cadre Rules, a cadre officer means a member of <ORG>. Under r. 2(b), a cadre post means a senior cadre post under <ORG>. Under r. 3, an <ORG> cadre is constituted for each State or group of <ORG>. Under r. 4, the strength and composition of each cadre is determined by regulations made by <ORG>. Rule 8 provides that "Save as otherwise provided in these rules, every cadre post shall 'be filled by a cadre officer." Rule 9(1) provides that "A cadre post in a State may be filled by a person who is not a cadre officer if <ORG> is satisfied (a) that the vacancy is not likely to last for more than three months; or (b) that there is no suitable cadre officer available for filling the vacancy." If a person other than a cadre officer is appointed to a cadre post for a period exceeding three months, the fact shall be reported to <ORG> who may, on receipt of the report, direct <ORG> to terminate his appointment and if he is likely to fill a cadre post for a period exceeding six months, <ORG> must seek the advice of <ORG> and in the light of its advice, give suitable directions to <ORG>. It was provided that r. 9 would not affect the existing arrangements made by <ORG> in connection with the Governments of Part B <ORG> and the State of Vindhya Pradesh at the time of the initial constitution of the cadre for certain cadre posts to be filled by non-cadre officers.

Rule 3 of the I.A.S. Recruitment Rules, 1954 gives the cons- titution of the service. Rule 4 specifies the methods of recruitment. Sub-rule (1) of r. 4, as amended, provides that "Recruitment to the Service, after the commencement of these rules, shall be by the following methods, namely: (a) by a competitive examination; (aa) by selection of persons from among released Emergency <ORG>ed Officers and Short Service <ORG>ed Officers, commissioned in <ORG> after the 1st November, 1962; (b) by promotion of substantive members of a <ORG> Civil Service; (c) by selection, in special cases from among persons, who hold in a substantive capacity gazetted posts in connection with the affairs of a <ORG> and who are not members of a <ORG> Civil Service." Sub-rule (3) of r. 4 provides that "Notwithstanding anything contained in sub- rule (1), if in the opinion of <ORG> the exigencies of the service so require, <ORG> may, after consultation with the <ORG> Governments and the <ORG>, adopt such methods of recruitment to the Service other than those specified in the said sub-rules as it may by regulations made in this behalf prescribe." Rule 6 provides that no appointment to the Service shall be made except after recruitment by one of the methods specified by r. 4 Rules 6A(2) introduced with effect from September 24, 1966 after the decision in <NAME> case(1) provides that "A direct recruit in the junior time-scale of pay shall be appointed to a post in the senior time-scale of pay if, having regard to his length of service, experience, and performance in the junior time-scale of pay, the <ORG> Government is satisfied that he is suitable for appointment to a post in the senior time-scale of pay." Rules 7. 7A, 8(1) and 8(2) deal with the four methods of recruitment specified in r. 4 and empowers <ORG> to make appropriate regulations. Rule 8(1) deals with recruitment by promotion of substantive members of the <ORG> Civil Service. Rule 8(2) deals with recruitment by selection in special cases from amongst persons who hold, in a substantive capacity, gazetted posts in connection with the affairs of the <ORG> and who are not members of the <ORG> Civil Service. Rule 9(1), as amended, provides inter alia that "the number of persons recruited under rule 8 in any <ORG> or group of <ORG>s shall not, at any time, exceed 25 per cent of the number of" senior posts in relation to that <ORG> or group of <ORG>s. Rule 9(3)(b) provides that "for the purpose of determining the percentage specified in sub-rule (1)(b) the following category of officers shall 'be excluded namely :- (i) officers of a <ORG> Civil Service appointed to the Service under the Emergency Recruitment Scheme otherwise than against the 25 per -cent quota; (iii) officers of a <ORG> Civil Service appointed to the Service from List II, prepared by <ORG> under the Indian Administrative Service (Extension to <ORG>s) Schemes; (iv) officers of a <ORG> Civil Service appointed to the Service under the Indian Administrative Service (Special Recruitment) Regulations, 1956." Rule 9 (3)

(b) (iv) was added oil October 15, 1965.

The I.A.S. (Special Recruitment) Regulations, 1956 were made under r. 4(3) of the Recruitment Rules. Regulation 3 pro- vides that special recruitment will be made (a) by direct recruitment by selection and (b) by promotion to the Service by selection of persons serving in connection with the affairs of the <ORG>. Regulations 8 and 9 adopt for the purposes of special recruitment the regulations for appointment by competitive examination, promotion and selection made under rules 7, 8(1) and 8(2) of the Recruitment Rules with appropriate modifications. Rule 3 of I.A.S. (Pay) Rules, 1954 prescribes the scales of pay admissible to the members of the Service. The _junior scale is (1)[1964] 4 S.C.R. 598.

scale is Rs. 900 (6th year or under)-50-1000-60-1600-50-1800 (22 years). The selection grade is Rs. 1800-100-2000. Rule 4(1) provides that the initial pay of a direct recruit shall be fixed at the minimum of the junior time-scale. Rule 4(2) provides that the pay of a member of the Service in the junior time-scale shall on appointment to a post on the senior time-scale, be fixed at the corresponding stage of the senior time-scale as shown in Sch. 1. The two scales of pay are given in Sch. 1 in parallel columns against the years of service. The increments, withholding of increments and grant of advance increments are regulated by rules 5, 6 and 7.

Rule 3(1) of I.A.S. (Regulation of Seniority) Rules, 1954 provides that every officer shall be assigned a year of allotment. Rule 3 (3) (a) provides inter alia that the year of allotment of an officer appointed to the Service after the commencement of these rules, shall be-where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held." Rule 3 (3) (b) provides that the year of allotment of an officer shall be "where the officer is appointed to the Service by promotion in accordance with subrule (1) of rule 8 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with rule 7 of those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former." The proviso to r. 3 (3) (b) lays down that "the year of allotment of an officer appointed to the Service in accordance with sub-rule (1) of rule 8 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than 'the date on which any of the officer recruited to the Service in accordance with rule 7 of those Rules so started officiating shall be determined ad hoc by <ORG> in consultation with the State Government concerned." Rule 5A authorises the making of regulations for fixing the seniority of special recruits. Rule 6 provides for preparation of a gradation list of all officers borne on the cadre arranged in order of seniority. Regulation 3 of the I.A.S. (Seniority of Special Recruits) Regulation, 1960 made under r. 5A of the Regulation of Seniority Rules fixes the seniority of special recruits. Rule 3(3) provides that "In the case of officers recruited by promotion from <ORG> under clause (b) of regulation 3 read with regulation 9 of the Indian Administrative Service (Special Recruitment) Regulations, 1956, the year of allotment shall be fixed in accordance with the provisions of clause (b) of sub-rule (3) of rule 3 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954."

The relevant provisions of the parallel Cadre, Recruitment, Pay and Regulation of Seniority Rules of <ORG> were considered by this Court in <CITATION> (1). There, the appellant was a member of <ORG>. He joined the Service in 1952 and was confirmed in 1953. In 1958 he was promoted to officiate in the senior time-scale as Additional Superintendent of Police at Ferozepore in place of the permanent incumbent who was on leave. In July 1964, he was served with a charge- sheet and he submitted a reply. Before the enquiry started he was reverted to his substantive rank of Assistant Superintendent of Police. The reversion was not due to the return of the permanent incumbent from leave or deputation or for any administrative reason. Other officers junior to him continued to officiate in the senior scale while he was reverted. His personal file revealed a note by the Senior Superintendent of Police to the effect that a regular en- quiry into his conduct would take a long time and it was advisable to revert him. He was not given any opportunity of showing cause against the action taken against him. He filed a writ petition in <ORG> asking for the issue of a writ quashing the order of reversion. <ORG> dismissed the petition. On appeal, this Court set aside the order of <ORG> and allowed the petition. This Court held that the reversion was made in contravention of Art. 311 of the Constitution. The majority held that the reversion was by way of punishment and amounted to reduction in rank and withholding of promotion on grounds which may be summarised thus : There is only one cadre in <ORG>. A person in the junior time-scale of the Service is as much a cadre officer as one holding a post in the senior time-scale or a post above the time-scale. The transition of a member of the Service from one scale to another does not depend upon selection or the consideration of the comparative merits of the officers in the junior scale inter se but only upon a consideration of his seniority. <NAME>, J. said that "the whole scheme of the rules indicates that a person borne on the junior scale of pay has a right to hold a post on the senior scale of pay depending upon the availability of a post and his seniority in the junior scale of pay." The learned Judge added : "Despite the fact that he holds a certain rank in the gradation list persons who also belong to <ORG> and who were recruited to it subsequent to him have continued to hold or have been appointed to hold posts carrying salary in the senior scale. This would itself indicate that the action taken against him was by way of penalty or punishment. For, he has not only been reduced in rank but his promotion to the senior scale has also been withheld."

(1) [1964] 4 S.C.R. 598.

In this background, the petitioner says that he was deprived of his right to hold a senior post during the period from April 2, 1952 up to November 17, 1956. We have found already that on April 2, 1952 there was no available vacancy in the senior post to which he should be appointed. <ORG> continued to be governed by the Extension to States Scheme until September 1954 when the Cadre, Recruitment, Pay and Regulation of Seniority Rules were made. The proviso to r. 9 of the Cadre Rules preserved the existing arrangements under the I.A.S. Extension to States Scheme for the holding of certain cadre posts by non- cadre, officers. On June 24, 1955, the strength of the <ORG> cadre was revised and increased to 46. Respondents Nos. 14, 15 and 16 belonged to the <ORG> State Service. Respondent No. 14 was appointed on June 24, 1955 and respondents Nos. 15 and 16 were appointed on April 25, 1956 to senior posts against vacancies in the 25 per cent quota. Several non-cadre officers were appointed to fill vacancies in the senior posts under r. 9 of the Cadre Rules. The petitioner was not found suitable to fill a vacancy in a senior post until November 17, 1956. The petitioner contends that (1) he had the absolute right to be appointed to a vacancy in the senior posts on and after April 2, 1952, (2) the filling of the vacancies by non-cadre officers on the ground that he was not suitable was an infringement of his right and amounted to withholding of promotion and a penalty within the meaning of r. 3 of the All India Services (Discipline and Appeal) Rules, 1955, (3) 75 per cent of the total number of senior posts was reserved exclusively for direct recruits and (4) in computing the 25 per cent quota under r. 9(1) of the Recruitment Rules officers in Lists 11 and III and special recruits should be included. These contentions must be rejected. Vis a vis another cadre officer junior to him, a cadre officer in the junior scale of pay has the right of promotion to a post in the senior scale on the ground of seniority. This right is infringed if the junior cadre officer is promoted to fill a vacancy in the senior scale, while he continues to hold a post in the junior scale of pay. But he cannot claim the right to fill the, vacancy if he is not suitable and no cadre officer junior to him is promoted to fill the vacancy. An officer in the junior scale of pay has no right to a senior post as soon as he joins the Service. He may be appointed to a senior post only when he is found suitable having regard to his length of service, experience and performance in the junior scale of pay. Rule 6A(2) of the Recruitment Rules now makes explicit what was always implicit in r. 9 of the Cadre Rules.

Under r. 9(1) of the Cadre Rules, a senior cadre post may be filled by a non-cadre officer if there is no suitable officer available for filling the vacancy. Similar provision is to be found in paragraph 3 of the memorandum regarding constitution of <ORG> and paragraph 5 of the Indian Civil Administrative Cadre Rules, 1950. The appointment of a non-cadre officer to a cadre post under r. 9(1) of the Cadre Rules is a temporary arrangement which may be terminated at any time when the Government finds a cadre officer suitable for filling the vacancy. Until the cadre officer is found suitable, a non- cadre officer may be appointed to fill the vacancy in a" post in the senior scale of pay. The cadre officer has no right to fill the vacancy if he is not suitable. The filling of the vacancy by a non-cadre ,officer under r. 9 does not infringe any right of the cadre officer nor does- it amount to a withholding of promotion or a penalty within the meaning of r. 3 of the All India Services (Discipline and Appeal) Rules, 1955.

The decision in <NAME> case(1) is distinguishable. There, a cadre officer in the junior scale of pay was promoted to officiate in a post in the senior scale of pay and was thereafter reverted to his substantive post while other cadre officers junior to him continued to officiate in posts in the senior scale of pay. As against cadre officers junior to him,,he had the right to hold :the post in the senior scale of pay. The reversion while cadre officers junior to him continued in the senior scale amounted to not only reduction in rank but also withholding of promotion. This is all that <NAME> case(1) decided. The fact in the present case are entirely different. The petitioner was not suitable to fill the vacancies in the senior posts and non-cadre officers were appointed to fill the vacancies under r. 9 of the Cadre Rules. No cadre officer junior to the petitioner was promoted to the cadre post before his promotion on November 17, 1956. Nor was he reverted after his promotion, while officers junior to him continued to hold senior posts. The petitioner was not reduced in rank nor was his promotion withheld. He had no right to fill a vacancy in the senior posts or to draw salary in the senior scale between April 2, 1952 and November 17, 1956. There is no merit in the contention that 75 per cent of the total number of senior posts is reserved exclusively for direct recruits. Under r. 9(1) of the Recruitment Rules, the number of persons recruited to senior posts under r. 8 of the Recruitment Rules by promotion or by selection cannot exceed 25 per cent of the total number of senior posts. The remaining 75 per cent of the senior posts may be filled by other recruits. Special recruits under r. 4 of the Recruitment Rules are appointed against the 75 per cent quota. Their appointments are not counted against the 25 per cent quota reserved for persons recruitment under r.8. (1) [1964] 4 S.C.R. 598.

Rule 9(3)(b)(iv) now expressly provides what was already implicit in r. 9(1).

Paragraph 4(iv) of the I.A.S. !Extension to States Scheme provided that the posts held by officers included in Lists 11 and III would be excluded from the cadre for the period they were held by those officers and would revert to the cadre as and when they ceased to be required for that purpose. The posts held by the officers in List III were excluded from the cadre until they retired and were not counted against the 25 per cent quota. The posts held by the officers in List 11 pending absorption in the service were excluded from the cadre. They were absorbed in the service as and when they were found fit. Rule 9 (3) (b)

(iii) provides that in computing the 25 per cent quota the appointments of officers from List 11 will be excluded. There were vacancies in the 25 per cent quota which were filled up by promotion of respondents Nos. 14, 15 and 16 from <ORG>. Respondents Nos. 4, 6, 11, 12, 13, 17 and 18 were from the former <ORG>. Some of them were promoted to <ORG> against the 25 per cent quota in the <ORG> cadres before the integration of the cadres on November 1, 1956. No appointments were made between November 1, 1956 and November 17, 1956 when the petitioner was appointed to officiate in a senior post Other respondents were appointed after November 17, 1956. None of the appointments is open to any challenge. It is surprising that the petitioner seeks to challenge the appointments after a long lapse of time. He has not given any adequate explanation as to the delay in filing the writ petition. The petitioner next challenges the seniority assigned to the respondents. In the gradation list, all the respondents are shown as senior to him Respondents Nos. 10, 11, 12 and 13 are special recruits and their seniority has been fixed under Regulation 3(3) of the I.A.S. (Seniority of Special Recruits) Regulation, 1960 read with r. 3 ( 3 ) (b) of the Regulation of Seniority Rules, 1 9 5 4. The other respondents are promotees and their seniority has been fixed under r. 3 (3) (b) of the Regulation of Seniority Rules and the proviso thereto.

The petitioner challenges the vires of r. 4(3) of the Recruitment Rules under which <ORG> framed the Special Recruitment Regulations. The Recruitment Rules were made under s. 3 of the All India Services Act, 1951. <CITATION> (1), this Court held that s. 3 was not bad on the ground of excessive delegation of legislative power. The petitioner submits that r. 4(3) of the (1)  Sup, 1 S.C.R. 72 Recruitment Rules is bad on the ground of excessive delegation, of legislative power. Assuming that the doctrine of excessive delegation of legislative power applies to rules, we think that r. 4(3) does not suffer from the vice of excessive delegation. Rule 4(3) .authorities <ORG> to make regulations for special recruitment. In making the regulations, <ORG> is to be guided by the exigencies of the service and the advice of the State Governments and <ORG>. These authorities are the best judges of the appropriate regulations to be made in the matter. In the light of their expert knowledge they can adapt for this purpose the existing regulations for other methods of recruitment with suitable modifications or make other appropriate regulations having regard to the exigencies of the service. As a matter, of fact, the Special Recruitment Regulations 1960 framed under r. 4(3) have adapted for the purposes of special recriutment the regulations for recruitment by competitive examination, promotion and selection with appropriate modifications, The petitioner next contends that r. 3 (3) (b) of the Regulation of Seniority Rules makes unjust discrimination between a promotee and a direct recruit in the matter of seniority by arbitrarily assigning a lower year of allotment to a promotee and is violative of Arts. 14 and 16 of the constitution. This contention is devoid of merit. The seniority of direct recruits inter se and promotees inter se is fixed by r. 4. The object of r. 3 (3) (b) is to fix the seniority of the promotees in relation to direct -recruits. The promotees obtain promotion after long service in <ORG>. From the point of view of the promotee, his seniority should be counted from the date of his joining <ORG>. From the point of view of the direct recruit the seniority of the promotee should be counted from the date of his appointment to <ORG>. Rule, 3 (3) (b) attempts to strike a just balance between the conflicting claims. It gives the promotee the year of allotment of the junior-most direct recruit officiating continuously in a senior post earlier than the date of commencement of such officiation by the promotee. If no direct recruit was officiating continuously in a senior post on an earlier date. the seniority of the promotee is determined ad hoc. In our opinion, the rule is not arbitrary or discriminatory and is not violative of Arts. 14 and 16 of the Constitution.

The petitioner next challenges the validity of ]Regulation 3(3) of the Special Recruitment Seniority Regulations, 1960 on the ground that it offends Arts. 14 and 16 of the Constitution. According to the petitioner, the relevant rules and regulations have set up an arbitrary double standard for a special recruit enlisted by promotion because Regulation 3(3) of the Special Recruit-

ment Seniority Regulations read with r. 3 (3) (b) of the Regulation of Seniority Rules treats him as a promotee for the purpose of seniority while r. 9 (3) (b) (iv) of the Recruitment Rules treats him as a direct recruit for the purpose of recruitment. There is no substance in this contention. Special recruits form a distinct class. They are neither direct recruits nor promotees. Rule 9 of the Recruitment Rules does not treat them as direct recruits. Regulation 3 (3) of the Special Recruits Seniority Regulations properly adopts the formula applicable to promotees for fixing the seniority of special recruits enlisted by promotion. so that in the matter of seniority all officers recruited from <ORG> are placed on the same footing. The regulation is not arbitrary nor violative of Arts. 14 and 16 of the Constitution. The seniority of the respondents was fixed in accordance with Regulation 3 (3) of the Special Recruitment Seniority Regulations, r. 3 (3) (b) of the Regulation of Seniority Rules and the proviso thereto, and is not open to any challenge.

The writ petition is dismissed. There will be no order as to costs.

Y.P. Petition dismissed.


<NAME>, J.

1. The first defendant in these suits is the present <NAME> of <ORG>, an impartible estate. The 1st plaintiff in O.S. No. 9 of 1910 and the sole plaintiff in O.S. No. 17 of 1910 are brothers of the 1st defendant. The 2nd plaintiff in O.S. No. 9 of 1910, is the minor adopted son of the 1st plaintiff. They brought these suits for a declaration of their rights to maintenance at the rate of Rs. 650 per mensem and for recovery of the same with arrears and interest as a charge upon the estate. They also claimed priority over the mortgage rights of certain mortgagees who were made parties to the suit and thus raised questions which need not now be considered as they are not pressed in these appeals. The 1st defendant acknowledged that the plaintiffs were entitled to be maintained out of the estate but pleaded that the financial condition of the estate was such that he could not afford to give his brothers more than Rs. 400 per mensem which was in fact the amount that they were receiving during the period when the estate was under the management of <ORG>. The lower Court gave the plaintiffs a decree for Rs. 400 per mensem during their joint and several lives for the maintenance of their branches of the family and directed that the sums due on account of past and future maintenance at this rate should be recoverable as a charge upon the estate. From this. plaintiffs' appeal on the ground that the amount awarded should not have been less than Rs. 650.

2. The position taken for the appellants is this. The present 1st defendant brought a suit O.S. No. 12 of 1890 for partition against the then <NAME> to which all the brothers were made parties. It ended in a compromise in which the estate was declared to be impartible and the succession to it was declared to be governed by rules of primogeniture, simultaneously it was agreed that the Zemin dar's brothers, mcluding the present plaintiffs and the 1st defendant and their male descendants should be entitled to a maintenance allowance from the income of the estate of Rs. 600 per mensem for the first ten years and of Rs. 700 per mensem thereafter. <ORG> passed a decree in terms of the compromise but on appeal <ORG> held in <CITATION> (1894) I.L.R. 18 M. 410 that the stipulations which were outside the scope of the suit should not have been embodied in the decree and these included the stipulations as to allowances, so they were excluded.

3. After the death of <NAME>, <NAME> succeeded to the <NAME>, and during his time two of the brothers of <NAME> viz., the present 4th defendant and the father of the 6th defendant brought suits against <NAME> in respect of their maintenance allowances and obtained consent decrees for Rs. 650 per mensem.: The other brothers, viz., the 1st plaintiff in O.S. No. 9 of 1910 and the plaintiff in O.S. No. 17 of 1910 and the present <NAME> got registered agreements executed (Exhibits A.C. and I) with <NAME> in similar terms of, Rs. 650 per mensem. On the death of <NAME> the 1st defendant became <NAME>.

4. Now it is urged that the appellants have by virtue of exhibits A and C become creditors of the Estate and not mere maintenance holders, that the agreements are binding on all the successors of the <NAME> who executed them and that there- fore no less sum than what was agreed upon therein can now be given as maintenance. Further it is argued that the compromise having been entered into as a settlement of certain claims to portions of the estate is binding on all who took part in it and their representatives, and creates vested rights in favour of those whose rights are declared in it.

5. Lastly it is contended on the evidence that the amount claimed was not excessive and that the estate could well afford it. On the last point I agree with the Subordinate Judge's opinion that nothing more than Rs. 400 is proper and reasonable for the reasons given in paragraph 10 of his judgment.

6. As for the other points now taken in the appeals it is noticeable that Exhibit A, though purporting to have been executed in pursuance of the razinamah in O.S. No. 12 of 1890, contains terms very different from the- compromise petition (Exhibit D). Not only is the amount of maintenance different in the two documents as I have already stated, but the periodical instalments in which payments are to be made are different, and Exhibit D states the source to be the income of the Zamindari whereas Exhibits A. and C. provide for recovery of the allowance from the estate as well as its incomes. Exhibits A. and C. are three years later than Exhibit D.

7. It is thus impossible to treat Exhibits A. and C. as having the same force and binding character as a decree in a suit terminating litigation and compromising a bona fide claim to property. Nor can the appellants rely on those terms of the compromise (Exhibit P) which have not passed into a decree or order of <ORG> so far as they affect the immoveable property comprised in the document, as the agreement of compromise was not registered. <CITATION> (1911) I.L.R 36 M. 46. Exhibits A. and C are registered and purport to be agreements relating to the payment of maintenance allowances, as is distinctly stated in the first clause of the document.

8. An amount provided as maintenance for a member of a family does not lose its character as a maintenance allowance by being embodied in an instrument or decree, the character, I mean of being liable to be increased or decreased under a cha'nge of circumstances, (Vide Gopikabai v. <NAME> (1900) I.L.R. 24 B. 386. <CITATION> (1904) 14 M.L.J. 339 and <NAME> v. <NAME> (1835) W.R. 598 (P.C.). For these reasons alone I consider that the Subordinate Judge had power to direct the 1st defendant to pay maintenance, at a lower rate than Rs. 650. But as reliance is placed on the binding character of the registered documents under which it is claimed that plaintiffs and their male heirs have acquired a right to an hereditary annuity for all time, I may observe that in so far as Exhibit A. and C. provide that <NAME> and <NAME> and their male descendants have a vested right to recover the fixed allowances through the present <NAME> and after him through the rightful owners of the <NAME>i or their heirs, assignees, executors, administrators, trustees, etc.; from the estate and its incomes by declaring a recurring charge on the Kalahasti estate, these documents create a future interest' in" immoveable property in favour of persons unborn, and thus impose a restraint upon alienation which is contrary to the principles of Hindu Law. In excluding females and collaterals they provide for a line of succession not according to law, and they are therefore invalid' (<NAME> Law of Perpetuities in British India, pp. 123 to 128 and the <ORG> decision in <NAME> v. Sidhesswari Debt (1888) I.L.R. 16 C. 71. .

9. I would therefore dismiss these appeals with costs.

10. The 3rd Respondent in Appeal 216 who got a consent" decree in O.S. No. 33 of 1895 (Exhibit E) on 22nd April 1896 for maintenance allowance of Rs. 650 per mensem has filed a memorandum of objections claiming priority over the appellant's right on the ground of his decree being prior in point of time to Exhibit C which is dated 17th November 1896.

11. In these suits it is unnecessary to determine questions of priority between the various maintenance holders inter se seeing that their right to receive maintenance rests in the first instance not on their decrees or agreements but on their relationship to the owner of the Zamindari.

12. The objection memorandum in App. 216 of 1911 is for this reason dismissed with costs. That in Appeal 217 is out of time and is also dismissed with costs.

<NAME>, J.

13. I agree.

14. I think that considering the income of the Zamindari Rs. 400 is a fair rate of maintenance.

15. The terms of the compromise in O.S. No. 12 of 1890 relating to maintenance were not embodied in the decree. It is not those terms that are now sought to be enforced. The subsequent registered agreement of 1896 is so far as the rate is concerned only binding on the Zamindar who executed it. It is not shown that it was executed under circumstances which would make it binding on the succeeding Zamindars who take the property in their own right.

16. It was not contended, nor could it be successfully contended, that the maintenance formed such a charge on the Zamindari as would preclude the Zamindar for the time being from alienating portions of it for necessary purposes. It would be unreasonable to hold in the circumstances that the maintenance is a fixed unvarying amount.


JUDGMENT <NAME>, J.

1. These two tax revision cases give rise to a common question of law for our consideration and hence they are disposed of by a common order.

2. The State of Andhra Pradesh is the revision-petitioner in both the cases. The respondents are dealers in iron and hardware goods. While assessing the dealers to sales tax, the Commercial Tax Officer exempted the sales of (i) galvanised plain or corrugated sheets and (ii) B. P. sheets, in both the cases and of wire-nails in the first case on the ground that those commodities fell within the ambit of entry No. 2 in the Third Schedule to the Andhra Pradesh General Sales Tax Act (hereinafter called "the Act"), namely, "iron and steel" and those sales were not the first sales, but second sales.

3. In the exercise of his revisional powers Under Section 20(2) of the Act, the Deputy Commissioner of Sales Tax, suo motu, revised the assessments by withdrawing the exemption that was granted by the Commercial Tax Officer as, in his opinion, the view taken by the Commercial Tax Officer that the corrugated and B.P. sheets and wire-nails fell under the entry "iron and steel", was erroneous in law.

4. On appeals filed by the dealers, <ORG> held that galvanised plain or corrugated sheets and B.P. sheets fell within "iron and steel", entry No. 2 in the Third Schedule to the Act and as the sales effected by the dealers were not the first sales, those sales were exempted from payment of sales tax. The <ORG>, however, upheld the view of the Deputy Commissioner of Sales Tax that the commodity of wire-nails did not fall within the entry "iron and steel". In other words, <ORG> disagreed with the Deputy Commissioner's view in respect of the sales of the first two commodities and exempted the sales of those commodities from tax, but, with regard to the sales of wire-nails, <ORG> upheld the view of the Deputy Commissioner of Sales Tax that they were exigible to sales tax.

5. Aggrieved by the orders of <ORG>, the State of Andhra Pradesh has filed these tax revision cases, raising four questions of law for our consideration. These four questions can be reframed into one question and that question is:

Whether the commodities of galvanised plain or corrugated sheets and B.P. sheets fall within the ambit of 'iron and steel', i. e., entry No. 2 in the Third Schedule to the Andhra Pradesh General Sales Tax Act ?

6. Commodities mentioned in the Third Schedule to the Act are declared goods in respect of which a single point tax only is leviable Entry No. 2 in that schedule is "iron and steel". The sales of iron and steel are made taxable at the point of first sale at 0.3 paise in a rupee. The said entry defines "iron and steel" thus :

Iron and steel, that is to say,

(a) pig iron and iron scrap ;

(b) iron plates sold in the same form in which they are directly produced by the rolling mills;

(c) steel scraps, steel ingots, steel billets, steel bars and rods ;

(d)(i) steel plates,

(ii) steel sheets,

(iii) steel bars and tin bars,

(iv) rolled steel Sections and

(v) tool alloy steel, sold in the same form in which they are directly produced by the rolling mills.

7. The learned Advocate appearing for the <ORG> contended that the real test that has to be applied for determining whether galvanised plain or corrugated sheets or B.P. sheets fall within "iron and steel" within the meaning of entry No. 2 in the Third Schedule to the Act is the test of possibility of substitution of the one for the other, so far as the consumers are concerned. If there is no such possibility, it would be a different commodity, but if there is such a possibility, it would be the same commodity. For that purpose, the entries in the schedule to the Act must be construed or understood not in a technical sense but in a sense as understood in common parlance by persons who are conversant with the subject-matter with which the statute is dealing.

8. Corrugated and B.P. sheets in the commercial field are understood by business people, in ordinary parlance, as commodities different from iron and steel. The use for which the corrugated sheets and B.P. sheets are put by the consumers is something different from the use to which iron and steel are put. The trade names under which corrugated sheets and B.P. sheets and the iron and steel are sold, are different from one another. Hence it was urged by the learned counsel appearing for the <ORG> that <ORG> erred in holding that the galvanised plain and corrugated sheets and B.P. sheets fall within the entry "iron and steel". In support of this argument, the learned counsel relied upon the decisions in <CITATION>  23 S.T.C. 288, <CITATION> .  12 S.T.C. 286 (S.C.) and the <CITATION> .) Ltd.  20 S.T.C. 409.

9. The learned counsel <NAME>, appearing for the dealers, on the other hand, submitted that iron and steel are not sold as such, but are sold in acceptable forms and shapes and merely because iron and steel are put to some process for bringing them into acceptable forms and shapes for their sales, i. e., into galvanised or B. P. sheets, they do not cease to be iron and steel. In support of his argument, the learned counsel relied upon the following decisions :

(i) <CITATION>  19 S.T.C. 24 (S.C) in which <ORG> held that patasa, hard a and alchidana fall within the definition of "sugar";

(ii) <CITATION> A.I.R. 1966 S.C. 1546, in which <ORG> held that bars, flats and plates fall within the definition of "iron and steel";

(iii) <CITATION>  26 S.T.C. 416 in which <ORG> held that though mild steel rounds, flats and angles manufactured from "iron and steel" scraps maybe commercially different from iron and steel scraps, still they do not cease to be "iron and steel"; and

(iv) <CITATION>  11 S.T.C. 827 (S.C.) in which <ORG> held that hydrogenated groundnut oil called "vanaspati" is "groundnut oil" within the meaning of Rule 18(2) of the Madras General Sales Tax Rules.

10. In order to decide the question referred to us, we must know the exact nature of the commodities known as galvanised plain or corrugated sheets and B.P. sheets.

11. Corrugated sheets are iron sheets with parallel ridges and furrows so that the cross-section is a continuous waved line. "Flat sheet metal", according to <ORG>, 1958 Edition, Volume 8, at page 21, "tends to buckle and get out of shape with every change in temperature. The corrugations, made in one direction, give it greatly increased stiffness and adapt it to numerous purposes for which it would otherwise be less suitable. The sheet metal is corrugated by passing between ridged rollers.... It comes out in the commercial form,and is frequently subjected to a process of coating with zinc to protect from oxidation and is then known as galvanised corrugated iron. It is used widely for roofing and walling barns, sheds, warehouses and other buildings...."

12. Encyclopaedia Britannica, Fourteenth Edition, Volume 6, at page 471, points out that corrugating process enables much lighter gauges of sheets to be used because it makes them very rigid and portable.

13. Corrugated iron sheets are thus nothing but iron sheets-sheets of iron-corrugated, that is, wrinkled for the purpose of making them more rigid and giving them increased stiffness so that they become more suitable for roofing and walling than they would otherwise be as flat iron sheets. They are merely iron sheets with their shapes altered to make them more adaptable and useful for being used as iron sheets for roofing and walling.

14. On a difference of opinion expressed by two learned Judges, the learned Chief Justice of <ORG> in <CITATION>  23 S.T.C. 288 agreed with the view expressed by one of the differing Judges, Mr. <NAME>, that galvanised plain or corrugated sheets fall within the entry "iron and steel" under the Bombay Sales Tax Act. The definition of "iron and steel" given by the Bombay Sales Tax Act is exactly identical with its definition given in the Andhra Pradesh General Sales Tax Act.

15. The test, of substitution of the one for the other, applied by <NAME>, J., was not accepted by the learned Chief Justice. The learned Chief Justice observed that:

...It is no doubt true that iron sheets when corrugated cease to be raw materials for manufacture or fabrication of goods and they can be used only as corrugated iron sheets for roofing and walling but on that account they do not cease to be iron sheets having the essential character of iron. It may be that by reason of alteration of shape, iron sheets may cease to be usable for any purpose other than roofing or walling but they still remain iron sheets and do not lose the essential character of iron which they possessed as flat iron sheets before corrugation. The process of corrugation is one of Alteration of shape and it does not make iron sheets a different or product of iron....

16. The question as to when a commodity would lose its essential character of the raw material and becomes a different or a product of the raw material, is one of degree and where precisely to draw the dividing line is a pretty difficult task. However, the test of substitution or the user of the one for the other is not the sole criterion for holding the view that the galvanised corrugated or plain sheets are a commodity different from "iron and steel" as defined in entry No. 2 in the Third Schedule of the Andhra Pradesh General Sales Tax Act.

17. Entry No. 2 in the Third Schedule to the Andhra Pradesh General Sales Tax Act begins with the words "iron and steel, that is to say...." Those words are of considerable importance. They are explanatory of what iron and steel is. All s enumerated under that head, either in their crude form or in their manufactured stage or in any of the forms listed under the sub-headings (a), (b), (c) and (d), are treated as various forms of iron and steel.

18. The scope and meaning of the words "that is to say" following "land" in entry No. 21 of List II of the Seventh Schedule to the Government of India Act, 1935, has been expressed by <ORG> in <CITATION> A.I.R. 1917 P.C. 72 as introducing the most general concept "rights in or over land".

19. By a parity of reasoning, the words "that is to say" occurring immediately after "iron and steel" in entry No. 2 show that the <ORG> intended to adopt the most general concept of iron and steel and wanted all forms of iron and steel to be brought within that entry.

20. <CITATION> .  12 S.T.C. 286 (S.C.) the dealer claimed exemption from payment of sales tax on betel leaves, contending that betel leaves fell under the entry "vegetables" which was an exempted item. <ORG> rejected the contention holding that :

this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning 'that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it'

21. A Division Bench of this Court in the <CITATION> .) Ltd.  20 S.T.C. 409 held that:

'manganese' does not include 'manganese ore' in the popular sense of the term, though from the scientist's point of view manganese ore may contain manganese

22. The learned Judges observed that:

in interpreting items in statutes like the Sales Tax Act ,resort should be had not to the scientific or technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their ordinary sense.

23. <CITATION>  11 S.T.C. 827 (S.C.), <ORG> had to consider whether the hydrogenated groundnut oil (commonly called "vanaspati") was "groundnut oil" within the meaning of the Rule 18(2) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939.

24. Before <ORG>, the decision of which was the subject-matter of the appeal before <ORG>, the dealer had claimed deduction of the purchase price of the groundnuts from the proceeds of the sale of all oils by the company-raw, refined and hydrogenated. Both the <ORG> as well as the learned Judges of <ORG> upheld the dealer's contention in regard to the sale of refined oil, but rejected it in so far as it related to the sale of hydrogenated oil.

25. The <ORG> as well as <ORG> held that the hydrogenated oil ceased to be groundnut oil by reason of the chemical changes which took place and which resulted in the acquisition of new properties including the loss of its fluidity. In other words, <ORG> held that hydrogenated oil was not groundnut oil but a product of groundnut manufactured out of groundnut oil and, therefore, was not entitled to the benefit of deduction under Rule 18(2). Before <ORG>, the question that was raised for their decision was, whether, if beyond the process of refinement of the oil, the oil was hardened again by the use of chemical processes, it was rendered any-the-less groundnut oil ? In regard to that question, the Advocate-General, late <NAME>, laid stress on two facts: (i) while normally oil was a viscous liquid, the hydrogenated oil was semi-solid and that this change in its physical state was itself indicative of a substantial modification of the identity of the substance; and (ii) in the course of hydrogenation the oil absorbed two atoms of hydrogen and there was an inter-molecular change in the content of the substance. <NAME>, J., speaking for <ORG>, rejected the first submission and in regard to the second submission, stated that it was not decisive of the matter.

26. The learned Judge observed that:

To be groundnut oil, two conditions have to be satisfied. The oil in question must be from groundnuts and, secondly, the commodity must be 'oil' The addition of the hydrogen atoms was effected in order tosaturate a portion of the oleic and linoleic constituents of the oil and render the oil more stable thus improving its quality and utility. But neither mere absorption of other matter, nor inter-molecular changes necessarily affect the identity of a substance as ordinarily understood The change here is both additive and inter-molecular, but yet it could hardly be said that rancid groundnut oil is not groundnut oil. It would undoubtedly be very bad groundnut oil but still it would be groundnut oil and if so it does not seem to accord with logic that when the quality of the oil is improved in that its resistance to the natural processes of deterioration through oxidation is increased, it should be held not to be oil There is no use to which the groundnut oil can be put for which the hydrogenated oil could not be used, nor is there any use to which the hydrogenated oil could be put for which the raw oil could not be used

27. In the end, the learned Judge held that the hydrogenated oil will continue to be groundnut oil notwithstanding the processing which was merely for the purpose of rendering the oil more stable thus improving its keeping qualities for those who desire to consume groundnut oil.

28. <CITATION>  19 S.T.C. 24 (S.C.), the question that arose for the decision of <ORG> was whether patasa, harda and alchidana could be regarded as "sugar", which was defined as meaning "any form of sugar containing more than 90 per cent of sucrose".

29. A small portion of hydrogen sulphide is passed through the sugar solution for bleaching purposes, after which patasas are prepared by splashing the solution on a piece of wood which converts the sugar into amorphous sugar; the hard as are prepared by pouring the solution into moulds which is then allowed to cool and the alchidanas are prepared by rapidly passing the solution of appropriate thickness through a sieve so as to convert it into granulated lumps of sugar.

30. It was contended on behalf of the <ORG> that patasa, harda and alchidana bore a distinct and different name from sugar and were not commercially purchased or sold as sugar and, therefore, they were commodities different from "sugar". This argument was rejected. It was held that they fell within the definition of "sugar".

31. In <NAME> v. <NAME> [1954] 5 S.T.C. 365, a question arose before <ORG>, whether chira and muri could be said to be covered by the words "all cereals and pulses including all forms of rice".

32. Chira is parched beaten rice. It involves the process of boiling paddy, its dehydration, frying and flattening. Muri involves the process of soaking, boiling and dehydration of paddy and the removal of husks. As a result of these processes, the rice became edible and could be taken as food without any more cooking.

33. Although the , when so transformed, bore a different name and could not be commonly recognised as "rice", <NAME>, C.J., observed that it seemed to him that those commodities could be regarded more as forms of rice than products thereof and were, therefore, exempt from the payment of tax under the Assam Sales Tax Act, 1947.

34. <CITATION>  19 S.T.C. 469 (S.C.) in considering whether charcoal was included in the word "coal" specified in entry 1 of Part III of Schedule II to the Madhya Pradesh General Sales Tax Act, 1958, <ORG> observed that :

while construing the word 'coal' in entry 1 of Part III of Schedule II to the Act, the test that would be applicable is, what is the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A sales tax statute, being one levying a tax on goods, must, in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as 'coal' according to the meaning ascribed to it in common parlance. Viewed from that angle, both the merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'....

35. <ORG> also observed that:

...While interpreting items in statutes like the Sales Tax Act s,resort should be had not to the scientific or technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense....

36. <CITATION> A.I.R. 1966 S.C. 1546 Subba Rao, J. (as he then was), speaking for <ORG>, observed that:

...So long as iron and steel continued to be raw materials, they enjoyed the exemption. Scrap iron purchased was merely re-rolled into bars, flats and plates. They were processed for convenience of sale. The raw materials were only re-rolled to give them attractive and acceptable forms. They did not in the process lose their character as iron and steel. The dealer sold 'iron and steel' in the shape of bars, flats and plates and the customer purchased 'iron and steel' in that shape....

37. <ORG> held that bars, flats and plates sold by the assessee were "iron and steel" which were exempted under the notification.

38. <CITATION>  26 S.T.C. 416, a Division Bench of <ORG> held that:

...Even though mild steel rounds, flats and angles manufactured from iron and steel scraps may be commercially different from iron and steel scraps, they do not cease to be 'iron and steel' and tax can be levied only at a single point in the series of sales from the stage of raw material till it is sold in the same form in which it has been produced by the rolling mills, that is, till the manufactured s have been converted into any other form of fabricated material....

39. From the aforesaid discussion it emerges that a taxing statute like the Sales Tax Act must, in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term according to the meaning ascribed to it in common parlance. In interpreting items contained in those entries, resort should be had not to the scientific, geological or botanical sense, but to their popular meaning, or the meaning that is attributed to them by those who are dealing in those commodities and the meaning in which their consumers or buyers understand them.

40. The test of possibility of substitution of the one for the other, so far as the consumers or purchasers are concerned, cannot be said to be a decisive or the only test for determining whether the sold was the same or different from the s specified in the entry in the schedule to the Sales Tax Act .

41. If the raw material is subjected to a processing by the application of chemical methods, either for the removal of impurities or for improving its quality or utility, the resulting does not lose its essential character as the raw material.

42. Neither mere absorption of other matter, nor any inter-molecular changes effected in processing the raw material, necessarily affect the identity of the as ordinarily understood by the dealers or consumers.Mere change of physical form or shape of the raw material by the application of some process or the other, so as to prevent it from oxidation or to increase its utility, the resulting from that process, although called by a different trade name in the commercial world, does not lose its essential character of the raw material. The different uses to which the raw material and the resulting from it by reason of some process or the other, are put to, would not be decisive of the fact that the resulting is different from the raw material that was processed.

43. It is in this background of decided cases and by applying the tests laid down by those cases, that we will now have to decide whether or not galvanised plain of corrugated sheets and B.P. sheets are different from "iron and steel" specified in entry No. 2 in the Third Schedule to the Andhra Pradesh General Sales Tax Act.

44. Galvanisation is nothing but coating the iron sheet with zinc by an electrical process, or some other processes, to prevent it from oxidation. The galvanisation improves the utility of the raw material of iron. Corrugation is merely wrinkling of the sheets in one direction for the purpose of making the sheets more rigid and for giving increased stiffness so as to be more suitable for roofing and walling. Corrugation results merely in the alteration of the shape of the raw material, "iron and steel". Both corrugation and galvanisation improve the utility of the raw material. By the process of galvanisation and corrugation, the iron and steel do not lose their essential character as "iron and steel" when the resulting s are sold as galvanised plain or corrugated sheets. The purposes for which the iron is used may be different from the purposes for which the galvanised plain or corrugated sheets are used, but for that mere reason it is difficult to hold that the essential character of iron has been lost. Nor is the fact that the raw material and the s resulting on processing that are sold under different and distinct names in the commercial market, would be decisive of the fact that the galvanised plain or corrugated sheets are different from iron, the raw material which still exists in them. B.P. sheets are mere sheets of steel and hence a fortiori they are forms of "iron and steel".

44. Hence we agree with the <ORG> that galvanised plain or corrugated sheets and B.P. sheets fall within entry No. 2 in the Third Schedule to the Andhra Pradesh General Sales Tax Act. Since the sales of those s are not the first sales effected by the dealers but are the second sales, the dealers are not liable to pay the sales tax thereon.

45. The references are accordingly answered. The <ORG> shall pay the costs of these references to the dealers. The tax revision cases are dismissed.