{"id":71709,"date":"1996-05-09T00:00:00","date_gmt":"1996-05-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mamad-hassam-bhagad-and-others-vs-state-of-gujarat-and-others-on-9-may-1996"},"modified":"2015-11-28T11:32:29","modified_gmt":"2015-11-28T06:02:29","slug":"mamad-hassam-bhagad-and-others-vs-state-of-gujarat-and-others-on-9-may-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mamad-hassam-bhagad-and-others-vs-state-of-gujarat-and-others-on-9-may-1996","title":{"rendered":"Mamad Hassam Bhagad And Others vs State Of Gujarat And Others on 9 May, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mamad Hassam Bhagad And Others vs State Of Gujarat And Others on 9 May, 1996<\/div>\n
Equivalent citations: 1996 AIR 2057, \t\t JT 1996 (5)\t327<\/div>\n
Author: V K.<\/div>\n
Bench: Venkataswami K. (J)<\/div>\n
           PETITIONER:\nMAMAD HASSAM BHAGAD AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT AND OTHERS\n\nDATE OF JUDGMENT:\t09\/05\/1996\n\nBENCH:\nVENKATASWAMI K. (J)\nBENCH:\nVENKATASWAMI K. (J)\nANAND, A.S. (J)\n\nCITATION:\n 1996 AIR 2057\t\t  JT 1996 (5)\t327\n 1996 SCALE  (4)313\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nK. VENKATASWAMI,J.\n<\/p>\n
     This appeal preferred under section 19 of the Terrorist
\nand   Disruptive    Activities\t (Prevention)\t Act.\t1987
\n(hereinafter referred  to as “TADA”) challenges the judgment
\nand order  of the  learned Designated Judge (TADA), Jamnagar
\ndated July 1, 1994.\n<\/p>\n
     The learned  Designated Judge  confirmed  an  order  of
\nattachment of  seven vessels\/ships  under Section 7A of TADA
\npending further investigation in the matter.\n<\/p>\n
     At the outset we would like to make it clear that we do
\nnot propose  to deal  with the matter either in detail or to
\ngive a\tfinal decision\tin this\t matter in  view of the fact
\nthat when  the judgment under appeal was made the matter was
\nunder the  investigation stage only. In our view any opinion
\nexpressed at  this stage  might cause  prejudice  to  either
\nparty and  that is  the reason for not going into the matter
\nin detail  or giving  any final decision. Briefly stated the
\nfacts are as under :\n<\/p>\n
     In the Kalyanpur Police Station Crime Register No.62\/93
\nrelated to  a case  booked for the offences punishable under
\nsections 121, 121A, 122, 34 IPC and 25(1)(A)(D),25(1)(A)(2),
\n25(1)AA, 25(A)(B),  25 (A)(F) of the Arms Act, Section 20 of
\nWireless Telegraph  Act and  Sections 3,4  and 5 of TADA and
\nSection 135(l)\tof the\tBombay Police  Act. In the course of
\ninvestigation one  diary of  Hamir Sajan  was found  and  it
\ncontained certain  financial transactions  relating  to\t one
\nHaji Ismail  for  purchasing  the  ships  in  question.\t The
\nDistrict  Superintendent  of  Police  attached\tthose  ships
\ninvoking  powers   under  Section   7A\tof  TADA.  A  report
\napplication No.1993  was filed before the learned Designated
\nJudge seeking confirmation of attachment.\n<\/p>\n
     The appellants  claiming to  be the owners of the ships
\nin question objected to the attachment and sought revocation
\nof such attachment before the learned Designated Judge.\n<\/p>\n
     It was  argued before the learned Designated Judge that
\nsection 7A of TADA came into force on and from 22.5.1993 and
\nthe purchases  of all  the ships  having  taken\t place\twell
\nbefore that  date, the provisions of TADA cannot be invoked.
\nIt was\talso contended\tthat none  of the  persons objecting
\n(claiming to  be the  owners) the  attachment had  ever been
\narrested   provisions of Customs Act or under TADA and hence
\nprima facie  Section 7A\t of TADA  has no application. It was
\nfurther contended  that to  invoke Section  7A of TADA there
\nshould be  knowledge or\t reasons to  believe that properties
\nattached are  involved\tin  terrorist  activities  and\tthat
\nrequirement was not satisfied on the facts of the case.\n<\/p>\n
     Before the\t learned Designated  Judge,  the  Designated
\nPublic Prosecutor  after narrating the facts relating to the
\npurchase of  the seven\tships in  question contended that on
\nprima facie  case being\t made out and entertaining reason to
\nbelieve that  the property  in\tquestion  falls\t within\t the
\nmischief of  Section 7A\t attachment in question was made and
\nthat  further\tinquiry\/investigation  was  still  going  on
\nregarding all  the seven  ships to  conclusively find  as to
\nwhether they  were involved  in smuggling activities or not.
\nIt  was\t admitted  that\t since\tsome  of  the  persons\twere
\nabsconding  and\t  some\tof  others  had\t left  the  district
\ntherefore, at  that stage,  attachment could  not be revoked
\nand he\tprayed for  confirmation of the order of attachment.\n<\/p>\n
     The learned  Designated Judge  bearing in mind that the
\ninvestigation was  still going\ton has\tgiven only  a  prima
\nfacie finding  and on  being satisfied\twith the prima facie
\ncase confirmed by the judgment under appeal.\n<\/p>\n
     The  learned  Designated  Judge  found  that  the\tmain
\naccused was  one Haji  Haji Ismail  and\t he  was  doing\t the
\nlanding activities  of gold  and silver\t articles which\t are
\nsmuggled  goods\t  and  in   order  to  see  that  Government
\nauthorities do\tnot cause any hurdles to him in carrying out
\nsuch activities\t he was possessing automatic rifles, foreign
\nmade Pistols  and  other  latest  and  scientific  means  of
\ncommunications and  they were  already\tattached  and  Hamir
\nSajan and  other three\tpersons were  arrested. Though\tthey
\nwere released  on bail,\t in the first instance on the ground
\nthat TADA  does not  apply to them, on appeal to this Court,
\nthe order  granting bail  to then  was cancelled and all the
\naccused were  taken into  custody.  The\t learned  Designated
\nJudge also  found, prima facie, that there was no mention at
\nall in\tSection 7A that the property to be investigated must
\nbe the\tproperty of  an offender  against whom\tthe  offence
\nunder Section,\t7A is  to be  registered. According  to\t the
\nlearned Judge  what was\t required to be established was that
\nthe property in relation to which the investigation was made
\nmust be\t having sources\t of  purchase  from  the  amount  or
\nproceeds of  terrorism or  by way of commission of terrorist
\nactivity. Therefore, the learned Judge found that it was not
\nnecessary or  incumbent upon  the Investigating\t Officer  to
\nattach only  properties of  the persons who were involved in
\nthe offence  under TADA\t Act and that on the other hand, any
\nproperty can  be attached  if it is reasonably believed that
\nit was derived from the commission of any terrorist activity
\nor was\tacquired by the proceeds of ‘terrorism’. The learned
\nJudge also  found that\t‘the  aforesaid\t party\t(namely\t the
\nappellants herein)  are related\t to the\t main smuggler\tHaji
\nHaji Ismail’  who is  absconding  and  by  using  the  funds
\nprovided by  him the ships in question were purchased and so
\nit can be said that
\n     “prima   facie,   doing   smuggling
\n     activity of  keeping and possessing
\n     latest and modern foreign made arms
\n     and ammunitions  in order\tto cause
\n     terrorism\tamong  the  Customs  and
\n     Police Officers  would mean that by
\n     keeping  the   authority  such   as
\n     Custom Officers or Police Personnel
\n     in\t constant   fear  due\tto   his
\n     terrorist activities, the amount is
\n     derived  from   that  activity,  it
\n     would mean that the fund is created
\n     by way  of terrorist  act, as  Haji
\n     Haji Ismail  has  managed\tfor  the
\n     money to  purchase seven  ships  to
\n     the opposite party members who have
\n     purchased the  ships in their names
\n     only as  a show  and ostentation so
\n     that they\tcan be\tsafe from  penal
\n     action\tand\t such\t   other
\n     consequences.”\n<\/p>\n
     Finally the  learned Judge observed
\n     that :\n<\/p>\n
     “Therefore, at this juncture, it is
\n     established prima\tfacie that ships
\n     mentioned\tin   report  Application
\n     No.1\/1993 are liable to be attached
\n     and they  are attached  rightly  as
\n     stated by\tthe authorities and they
\n     deserve to be confirmed.”\n<\/p>\n
     Mr. Mehta,\t learned Senior\t Counsel reiterated the same
\narguments which were addressed before the learned Designated
\nJudge. As  we have  observed at\t the outset  it would not be
\nadvisable to  give any\tdefinite opinion  with regard to the
\n‘involvement’ of  the attached\tships at  this stage  except
\nobserving that from the materials on record we are satisfied
\nthat the  Investigating Officer\t prima facie  had reason  to
\nbelieve that there is basis for invoking Section 7A of TADA.
\nWe may\talso add in fairness to Senior Counsel that he cited
\ncertain judgments to support his arguments, but for the very
\nsame reasons  as given above we do not think it is necessary
\nto quote and elaborate those citations.”\n<\/p>\n
     After carefully  going through  all the relevant papers
\nand  the   prima  facie\t  views\t expressed  by\tthe  learned
\nDesignated Judge,  we are  of the opinion that at this stage
\nwe need\t not interfere with those conclusions reached by the
\nlearned Designated  Judge. However,  on the  facts  of\tthis
\ncase, the  ship bearing\t the name “Nabi Mahar”, Registration
\nNo.B.D.I.430 purchased on 10.12.1965, as per the case of the
\nprosecution itself,  cannot be\tkept under  attachment,\t the
\nreason being  that this\t ship was  purchased long before the
\npassing of TADA. Therefore, the said ship has to be released
\nfrom attachment.  We make  an order  accordingly. Except for
\nthis modification,  for obvious\t reason. we  do not find any
\nground to  interfere with  the judgment\t and  order  of\t the
\nlearned Designated  Judge in  any other\t respect. Subject to
\nthe modification as above, the appeal stands disposed of.\n<\/p>\n
C.A.NOS.\t    S.L.P.NOS.\t\tCC NOS.\n--------\t    ----------\t\t-------\n8652\/96\t\t    11870\/96\t\t19260\/93\n8919-20\/96\t    4250-51\/93\n8729\/96\t\t    7406\/93\n8725\/96\t\t    11911\/96\t\t20225\/93\n2570\/93\t\t    8090\/93\t\t20528\/93\n8703\/96\t\t    16410\/93\n8364-66\/96\t    2533-35\/94\t\t20030\/93\n8905\/96\t\t    2993\/94\n2359-60\/94\n5305\/93\n8699\/96\t\t    11178\/94\n8702\/96\t\t    15438\/54\n8697\/96\t\t    17640\/94\n8863\/96\t\t    13168\/94\n8726\/96\t\t    14415\/95\n8655\/96\t\t    17196\/95\n8698\/95\t\t    18159\/95\nUnion of India & Anr, etc. etc.\nV.\nM. Bhaskar & Qrs. etc. etc.\n<\/pre>\n
[With CC 19260\/93 in C.A. Nos…….of 1996 (arising out SLP
\n(C) Nos.  4250-51\/93,  7406\/93,\t CC  20225\/93  in  C.A.\t No.
\n2570\/93,  C.A.\tNo…….of  1996  (arising  our  of  SLP(C)
\nNo.16410\/93), CC  20030\/93, (arising out of SLP(C) Nos.2533-
\n35\/94,\t2993\/94),   C.A.   Nos.2359-60\/94,   5305\/93,\tC.A.
\nNos….of 1996\t(arising  out  of  SLP\t(C)  Nos.  11178\/94,
\n15438\/94, 17640\/94, 13168\/94, 14415\/95, 17196\/95, 18159\/95]
\nUnion of India & Anr. etc.etc.\n<\/p>\n
V.\n<\/p>\n
M. Bhaskar & Ors. etc.etc.\n<\/p>\n
\t\t      J U D G M E N T
\nHANSARIA.J.\n<\/p>\n
     This  batch  of  appeals  requires\t us  to\t decide\t two
\nquestions both\tof whom are relatable to the Railway Board’s
\nmemorandum dated  15.5.1987 on the subject of recruitment of
\nTraffic\/Commercial Apprentices.\t The two  questions are: (1)
\nthe purport  of the memorandum: and  (2) the validity of the
\nsame.\n<\/p>\n
2.   There has\tbeen a cleavage of opinion among the various
\nCentral Administrative Tribunals (CATs) of the country. Most
\nof the\tTribunals have\trejected the  understanding  of\t the
\nUnion of  India – the main appellant-relating to the meaning
\nand scope  of the  memorandum. The  Ernakulam Bench  of\t the
\nTribunal has even regarded the memorandum as invalid.\n<\/p>\n
3.   The broad\tcontents of  the memorandum may be noted. It
\nbrought\t about\t some  changes\t in   the   recruitment\t  of
\nTraffic\/Commercial Apprentices\t– one  of the  changes being
\nthat  on   and\tfrom  15.5.1987\t the  recruitment  of  these
\nApprentices would  be made  in the pay scale of Rs.1600-2660
\n(this scale  earlier was  Rs.1400-2300) and,  instead of all
\nthe posts  being filled up by promotions, ratio of promotees
\nwas made 75%, and of the remaining 25%, 10% were required to
\ncome through Railway Recruitment Boards and 15% on the basis
\nof Limited  Department competitive Examination. The pre-1987
\nApprentices laid  their claim for the higher scale of pay an
\nthe basis of 1987 memorandum; and it is this claim which has
\ncome to be allowed by the majority of the CATs.\n<\/p>\n
4.   The appellant has challenged the legality of this view.
\nIt has\talso been  contended  that  the\t memorandum  is\t not
\ninvalid for  the reason given by the Ernakulam Bench or, for
\nthat matter, any other reason. The learned counsel appearing
\nfor the\t respondents have  supported the  view taken  by the
\nmajority of  the CATs  insofar as  the benefit of higher pay
\nscale is concerned. According to them the memorandum is also
\ninvalid\t  because   of\t its   discriminatory\tnature\t and
\nintroduction of arbitrary cut-off date.\n<\/p>\n
5. To  decide the  controversy,\t it  would  be\tapposite  to
\napprise\t ourselves   as\t to   what  was\t  the  procedure  of
\nrecruitment before  the memorandum in question; and what was
\nreally meant  by the  word ‘Apprentices’.  We have  put this
\naspect at  the forefront  because the  Tribunals.  who\thave
\ngranted the  benefit of higher pay scale, have done so, with
\nrespect,  without   applying  their  mind  to  the  relevant
\nprovisions  of\tthe  Indian  Railway  Establishment  Manual,
\nhereinafter the\t Manual, dealing with the recruitment of (1)
\nTraffic Apprentices;  and (2)  Commercial Apprentices.\tRole
\n123 of\t1968 Edition of the Manual deals with recruitment of
\nTraffic\t  Apprentices\tand   Rule   127   with\t  Commercial
\nApprentices. It\t is apparent from this Manual that the posts
\nto be  held by\tTraffic Apprentices before the 1987 were of:
\n(1) Assistant  Station Masters;\t (2) Assistant Yard Masters;
\n(3) Traffic  Inspectors; and  (4) Section Controller (in the
\nscale of  Rs.1400-2600). Insofar  as Commercial\t Apprentices
\nare concerned  these posts  were of:  (1)  Assistant  Claims
\ninspectors\/Supervisors; (2) Assistant Commercial Inspectors;
\n(3) Assistant Rates Inspectors (Goods and Coaching); and (4)
\nOther Inspectors  for outdoor  duties. This apart, the pre –
\n1987  position\twas  that  in  the  Traffic  and  Commercial
\nDepartments, posts  in the  pay scale  of Rs.1400-2300\twere
\nbeing filled  up to the extent of 25% by direct recruits, of
\nwhich 15%  were\t from  open  market  and  10%  from  Limited
\nDepartmental Competitive Examination; and the balance 75% by
\npromotion from\tlower grade. Further, the term ‘Apprentices’
\nwas being  actually used  to  cover  ‘direct  recruits’,  as
\ndistinct from  ‘promotees’. Another thing to be noted, which
\nagain missed the Tribunals in question, is that when the pay
\nscale of  Rs.1400-2300 was  being paid to Traffic\/Commercial
\nApprentices, the  higher pay scale of Rs.1600-2660 was being
\npaid to those who were in a higher grade.\n<\/p>\n
6. Though  the\tabove  is  disputed  by\t Mrs.  Sharda  Devi,
\nappearing for some of the respondents, we entertain no doubt
\non this\t score, because\t from what has been stated in para 6
\nof the\tAffidavit filed\t by T.P.V.S. Sekar Rao, Deputy Chief
\nPersonnel  Officer,   South  Central   Railway\tHeadquarters
\nOffice, Secunderabad,  it appears  that\t the  Pay  scale  of
\nRs.1400-2300 was  being made  available to Traffic Inspector
\nGrade III,  whereas scale  of  Rs.1600-2660  was  meant\t for
\nTraffic\t  Inspectors   Grade   II.   Similarly,\t  Commercial
\nInspector, Grade  III, was getting the scale of Rs.1400-2300
\nand Commercial\tInspector, Grade  II, the  scale of Rs.1600-
\n2660. Mrs. Sharda Devi has referred to us in this connection
\nto the\tTable of  “Avenue of Promotion for SS\/TIs..” finding
\nplace at  page 82  of this counter, to being home her point.
\nThis chart itself shows that there are promotional posts and
\nthe old\t state\tof  Rs.455-700\t(which\ton  revision  became
\nRs.1400-2300) was meant for some Traffic Apprentices and not
\nall. We\t may refer  in this  context to\t what finds place in
\nSection B  of Chapter  II of  the Manual. This Section deals
\nwith Rules  governing the  promotion of\t Group ‘C’ and shows
\nthat  some   promotional  posts\t have  been  categorised  as
\nselection posts\t and some non-selection. The aforesaid chart
\nrelating to  the ‘avenue  of promotion’ has itself mentioned
\nwhich are  the non-selection  posts and\t which are selection
\nposts.\n<\/p>\n
7.   From the  aforesaid, it is clear that the memorandum of
\n1987  was   really  not\t one  of  revision  of\tpay  of\t the
\nTraffic\/Commercial Apprentices,\t as has\t been understood  by
\nthose Tribunals\t who have conceded the higher pay scale. The
\nhigher pay scale was really meant for the Traffic\/Commercial
\nInspectors of  higher grade.  Mrs. Sharda  Devi’s effort  to
\nsatisfy us  that the  higher pay scale was really a revision
\non the\tbasis of  what finds place in para 2(ii) of the 1987
\nmemorandum  is\t founded  on  misapprehension  inasmuch\t the
\nmention in  that sub-para that “Traffic Apprentices absorbed
\nin the\tcadre of  Section Controllers  in scale\t of  Rs.470-
\n750\/1400-2600 (RP)  will be fixed at starting pay of Rs.1600
\non absorption”, does not mean that these Section Controllers
\nwere given  the pay  scale of  Rs.1600-2660, as urged by the
\nlearned counsel. All that was conveyed by this statement was
\nthat  the  Section  Controllers,  even\tthough\tgetting\t the
\nrevised scale  of Rs.1400-2600,\t their starting pay would be
\nRs.1600. This  was so  required according  to Shri  Malhotra
\nappearing for the appellant. because the Trained Apprentices
\ncould become  eligible for  the post  of Section  Controller
\nonly after  having two\tyears Yard’s experience in the grade
\nof Rs.455-700.\tIt is  this pay\t scale which  had become  on
\nrevision Rs.1400-2300:\tthe unrevised  pay scale  of Section
\nController was Rs.470-750, which on revision become Rs.1400-
\n2600. So,  what has  been stated  in  para  2(ii)  does\t not
\nsupport the  case of  the respondents that the memorandum of
\n1987 really  dealt with\t the revision  of  pay\tof  all\t the
\nTraffic\/Commercial Apprentices.\n<\/p>\n
8.  We, therefore, hold that the Tribunals which allowed the
\nbenefit\t of   pay  scale   of  Rs.1600-2660   to   all\t the
\nTraffic\/Commercial Apprentices\tirrespective of the grade of
\nthe  posts   held  by\tthem,  not  only  misunderstood\t the
\nmemorandum of 1987, but misconceived the provisions relating
\nto the\trecruitment and\t promotion of  these Apprentices  as
\nfinding place  in the  Establishment Manual. Indeed, somehow
\nor other  they were oblivious of what has found place in the
\nManual in this regard.\n<\/p>\n
9. This leaves for consideration the question of validity of
\nthe  memorandum.   The\tErnakulam   Bench,  which  held\t the
\nmemorandum invalid,  did so  for the reason that the Railway
\nBoard, which  had issued  the  memorandum,  could  not\thave
\nchanged the  provisions finding\t place in  the establishment
\nManual.\t which\t are  statutory\t  in  nature,\twhereas\t the
\nmemorandum was\tcategorized as\tadministrative\tinstruction.
\nNow, there  is no  dispute in  law that\t statutory provision
\ncannot be  changed by  administrative instruction. Now then,
\nthe Tribunal,  despite having  noted Rule  1-A of the Indian
\nRailway Establishment  Code (Volume-I)\tas published on 21st
\nMarch, 1951 reading:\n<\/p>\n
     “Normally recruitment  will  be  to
\n     the  lowest  grade\t of  the  lowest
\n     class  but\t direct\t recruitment  on
\n     limited   scale   to   intermediate
\n     grades will  be made  in accordance
\n     with instructions\tlaid down by the
\n     Railway Board from time to time”\n<\/p><\/blockquote>\n
ultimately failed  to bear  in mind the aforesaid provision.
\nRule 1-A  which had  come to  be made  pursuant to the power
\nconferred by  the proviso  to Article  309 and having stated
\nthat the  recruitment in  the lowest  grade will  be made in
\naccordance with\t the instructions  laid down  by the Railway
\nBoard from  time to  time, the\trule  itself  permitted\t the
\nRailway Board  to  issue  necessary  instructions,  and\t the
\nmemorandum of  1987 having  been issued by the Railway Board
\nin exercise  of this  power, we\t hold that  Board had  valid
\nauthority to issue the memorandum.\n<\/p>\n
10.  Another  submission   made\t by   Mrs.  Sharda  Devi  in
\nassailing the  validity of  memorandum was that though pre –
\n15.5.1987 Apprentices  would get  the scale of Rs.1400-2300,
\nthe post 15.5.1987 Apprentices were made available the scale
\nof Rs.1600-2660,  for no good reason, and so, the memorandum
\nwas arbitrary.\tThis is\t more so, as earlier the apprentices
\nwere to undergo training for 3 years, which was reduced to 2
\nyears by  the memorandum. Shri Malhotra’s contention in this
\nconnection was\tthat there  was a  change of  policy in\t the
\nsense that Apprentices recruited after 15.5.1987 were to man
\nthe posts,  not of Assistant Station Masters, Assistant Yard
\nMasters etc.  as before,  but of  Station Masters  and\tYard
\nMasters. It  is because\t of this  that higher  pay scale was
\nmade available\tto them.  It was  also brought to our notice
\nthat  the   memorandum\tprovided   that\t the   standard\t  of
\nexamination  for  the  Apprentices  to\tbe  recruited  after
\n15.5.1987 was  required to  be higher  than that  which\t was
\nprevailing, and\t if because  of this, the period of training
\nwas made  2 years  in place  of 3,  the same cannot make the
\npolicy unreasonable,  as a  2 year period for training is of
\nsufficiently long duration to equip persons selected after a
\nmore rigorous  test, with  the knowledge required to man the
\nposts in  question.  We\t agree\tand  state  that  if  direct
\nrecruits passing  examination  of  higher  standard  to\t man
\nhigher posts  were required  to be  given higher pay scales,
\nthe same  cannot be regarded in any way as discriminatory or
\neven arbitrary.\t Such a\t policy decision is not unreasonable
\nalso.\n<\/p>\n
11.  The final\tsubmission in  this regard was that the cut-
\noff date  “15.5.1987 is\t arbitrary. This also is not correct
\nbecause the  memorandum had come to be issued following many
\ndeliberations and discussions with different unions of which
\nmention has  been in  detail in\t one  of  the  documents  on
\nrecord. So,  it cannot\tbe said that the date (15.5.1987) is
\none ‘picked  out from  a hat’,\tin which case a cut-off date
\nwould be arbitrary, as stated by this Court recently in para
\n4 of  Union of\tIndia v.  Sudhir Kumar\tJaiswal<\/a> (1994) 4 SCC\n<\/p>\n
212. We are rather satisfied that the date has relevance and
\nthe memorandum has come to be issued following the aforesaid
\ndiscussion. So, we uphold the validity of the memorandum.
\nAppeals @ SLP (C) Nos.2533-35 of 1994\n<\/p>\n
12.  In these  appeals, it  was contended  by  Shri  Das  on
\nbehalf of  respondent Nos.2  to 4  that the  cases of  these
\nrespondents  stand   on\t  different   footing\tfrom   other
\nrespondents. because,  though they  had come to be recruited
\npursuant to  an advertisement  of January  1987,  they\twere
\ncalled for  training programme\tcommencing from\t August 1989
\nand so, they should be taken as post – 1987 Apprentices, for
\nwhich reason  they would  be entitled  to the benefit of the
\nmemorandum. This contention has been advanced because of the
\nlanguage of  sub-para (xii)  of para  2 of  the\t memorandum,
\naccording to which the revised pay scale of Rs.1400-2300 was
\nmeant for “apprentices already under training”. It was urged
\nthat the  aforesaid respondents were not “under training” on
\n15.5.1987 as  they had been called for training which was to
\ncommence from  August 1989,  Our attention was also drawn by
\nShri Das  to a document at page 130 of the paper book, which
\nis a  communication of the Principal, Sonal Training School,
\naddressed  to\tthe  Chief   Optg.  Supdt.   by\t which\t the
\nrepresentation\t of   30   Traffic   Apprentices   for\t the
\nabsorption\/posting in  the pay\tscale of  Rs.1600-2660\t was
\nforwarded for consideration.\n<\/p>\n
13. As\tto the\tlast document, we would say that the same is
\ninconsequential inasmuch as the Principal had only forwarded
\nthe  representation.   Though  it   is\tcorrect\t  that\t the
\nrespondents were  called for training from 1989, that is not
\nenough to  distinguish their  case  from  other\t respondents
\ninasmuch as  they had  come to\tbe recruited  pursuant to an
\nadvertisement of  January 1985;\t and so,  they\thave  to  be
\ntreated as  pre-1987 Apprentices.  What has  been stated  in
\nsub-para (xii)\tcannot be taken in isolation; that has to be
\nunderstood along  with other  provisions  contained  in\t the
\nmemorandum. If\tthis were  to be so done, we do not think if
\nwe  would   be\tjustified   in\ttreating  these\t respondents
\ndifferently from  other pre-1987  Apprentices  because\tthey
\nwere called  for training  in 1989.  We have taken this view
\nbecause it  is known that at times there are no vacancies in
\ntraining schools  and so training programme has to be spread
\nout. We, therefore, reject the contenting advanced on behalf
\nof these respondents by Shri Das.\n<\/p>\n
Appeal @ SLP (C) No. 15438 of 1994\n<\/p>\n
14.  In this  appeal, a\t separate argument  was advanced  on
\nbehalf of  respondent No.1,  Prakash Chandra  Ojha, who\t had
\napproached the\tPatna Bench  of the  CAT with  the grievance
\nthat he\t was unjustly  and  illegally  denied  promotion  to
\nGrade- I  Commercial Inspector\tin 1990,  despite his having
\nbeen promoted  as Commercial  Inspector Grade-II by an order
\ndated 21.9.1989,  which was  made effective from 11.10.1988,
\nbecause of  which he  had become  eligible for\tpromotion to
\nGrade-I on  11.10.1990, as  the\t eligibility  condition\t was
\ncompletion of  2 years\tof experience in Grade-II. The Patna
\nBench held  that the  exclusion of  this respondent from the
\nlist of eligible candidates for the selection meant for 1990
\nwas wrong.\n<\/p>\n
15. The\t aforesaid decision  has  been\tchallenged  in\tthis
\nappeal by  the Union  of India\tby contending  that 2 years’
\nperiod\tof   experience\t has   to  be\treckoned,  not\tfrom
\n11.10.1988, but from 21.9.1989. There is no dispute that the
\neligibility condition  is 2  years experience  in  Grade-II.
\nNow, this respondent having really started working in Grade-
\nII pursuant  to the  order of  21.9.1989, he  could not have
\ngained experience  prior to  the date he had joined pursuant
\nto this\t order. The mere fact that his promotion in Grade-II
\nwas notionally\tmade effective\tfrom  11.10.1988  cannot  be
\ntaken to  mean that  he started gaining experience from that
\nday, because  to gain  experience one  has to work. Notional
\npromotions are\tgiven to  take care of some injustice, inter
\nalia, because  some junior  has come to be promoted earlier.
\nBut we entertain no doubt that the person promoted to higher
\ngrade cannot  gain experience  from the date of the notional
\npromotion; it  has  to\tbe  from  the  date  of\t the  actual
\npromotion.\n<\/p>\n
16. We,\t therefore, hold  that the  view taken\tby the Patna
\nBench qua this respondent is not sustainable.\n<\/p>\n
\t\t      Conclusion\n<\/p>\n
17. All the appeals, therefore, stand disposed of by setting
\naside the  judgments of those Tribunals which have held that
\nthe  pre-1987\tTraffic\/Commercial  Apprentices\t had  become
\nentitled to  the higher\t pay scale  of Rs.1600-2660  by\t the
\nforce of  memorandum of\t 15.5.1987. Contrary  view taken  is
\naffirmed. We  also set\taside the  judgment of the Ernakulam
\nBench which  declared the  memorandum as  invalid; so too of
\nthe Patna  Bench in  appeal @  SLP(C) No.15438\tof 1994\t qua
\nrespondent No.1.  We also  state that cases of respondents 2
\nto 4 in appeals @ SLP(C) Nos.2533-34 of 1994 do not stand on
\ndifferent footing.\n<\/p>\n
18. Despite  the aforesaid conclusion of ours, we are of the
\nview that the recovery of the amount already paid because of
\nthe  aforesaid\t judgments  of\tthe  Tribunals\twould  cause
\nhardship  to   the  concerned\trespondents\/appellants\tand,
\ntherefore, direct the Union of India and its officers not to
\nrecover the  amount already  paid. This\t part of  our  order
\nshall apply (1) to the respondents\/appellants who are before
\nthis Court:  and (2)  to that  pre-1987 Apprentice  in whose
\nfavour judgment\t had been delivered by any CAT and which had
\nbecome final  either because  no appeal\t was carried to this
\nCourt or,  if carried,\tthe same was dismissed. This benefit
\nwould be available to no other.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mamad Hassam Bhagad And Others vs State Of Gujarat And Others on 9 May, 1996 Equivalent citations: 1996 AIR 2057, JT 1996 (5) 327 Author: V K. Bench: Venkataswami K. (J) PETITIONER: MAMAD HASSAM BHAGAD AND OTHERS Vs. RESPONDENT: STATE OF GUJARAT AND OTHERS DATE OF JUDGMENT: 09\/05\/1996 BENCH: VENKATASWAMI K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-71709","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMamad Hassam Bhagad And Others vs State Of Gujarat And Others on 9 May, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mamad-hassam-bhagad-and-others-vs-state-of-gujarat-and-others-on-9-may-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mamad Hassam Bhagad And Others vs State Of Gujarat And Others on 9 May, 1996 - 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