Subbarama Iyer Vs. Chinnasami Thanjirayar and ors. - Court Judgment

Excerpt:
civil procedure code (act v of 1908), order xxi, rule 69 - execution sale--application by third party for adjournment to effect private sale--adjournment granted on condition of deposit liable to forfeiture if sale was not effected--default--claim for refund of deposit--legality of order--estoppel. - t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the constitution. but it is well settled that if a rule passes the twin tests of (i) being founded on an intelligible differentia, and (ii) such differentia having a nexus with the object sought to be achieved, it cannot be said to be violative of articles 14 and 16 of the constitution. the impugned rule creates a classification of persons, who were not involved in criminal cases and persons, who were involved in criminal cases. the object of creating such a classification is to ensure that only those persons, whose character and antecedents were beyond and shadow of doubt alone, are permitted entry into the police service of the state. the rule is only a reflection of the intention of the government to maintain purity of administration. the rule merely provides a check post or a filter point, to ensure that only those, who had a clean record of personal life, are admitted into the system. that the existing system, has already come under heavy dose of criticism, cannot be swept under the carpet. therefore, as an employer, the government is entitled to prescribe, especially in a disciplined force like the police force, such a restriction at the entry level. there cannot be a dispute about the proposition that an employer has the right to prescribe any qualifications for appointment to a post. if that be so, an employer has a concomitant right even to prescribe disqualifications when it comes appointment to a post. persons who were never involved in criminal cases, need not be treated as equals to or on par with persons who were involved in criminal cases merely because they are acquitted later, especially in the matter of selection to the police service of the state. the classification made between them, is not only reason able but also has a nexus with the object sought to be achieved. the employer does have the right to choose a person untainted with any allegations. the attempt made to assail the impugned rules on the ground of violation of articles 14 and 16 of the constitution is fragile. the impugned rules themselves appear to be a product of the application of the right to equality. a person, who was never involved in any criminal case, cannot be equated to a person, who was involved in a criminal case, merely because he is acquitted later, at least insofar as matters of public employment are concerned. therefore, the challenge to the impugned rule on the ground of infringement of articles. 14 and 16 of the constitution must fail. -- section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); appointment - state police service - disqualification of a person acquitted on benefit of doubt or discharged in a criminal case - validity? held, by virtue of explanation 1 to clause (iv) of rule 14(b) of the t.n. special police subordinate service rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the state and that the same cannot be termed as disqualified for selection to the police service of the state and that the same cannot be termed as illegal or unjustified. the reason as to why cr.p.c. does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tried for a second time for the same offence for which he is tried and convicted or acquitted once. what is provided under section 300(1) of cr.p.c. is only a reassurance of the constitutional right guaranteed under article 20(2). the principle behind this prescription under section 300 of cr.p.c. is to avoid double jeopardy to a person. if the code recognizes such a distinction, it may make inroads into this concept of double jeopardy. but the concept of double jeopardy, to some extent, is allergic to service law. in many cases the supreme court has made it clear - (i) that the imposition of a punishment and the denial of promotion did not amount to double jeopardy, and (ii) that the conviction by a criminal court and the disciplinary proceedings initiated either on the basis of conduct which let to the conviction or on pure questions of misconduct, did not amount to double jeopardy. since the concept of acquittal is an acquittal, is an off shoot of the principle of double jeopardy underlying section 300(1) of the code, it cannot be imported into service law, where the principle of double jeopardy itself is looked down upon. therefore, the explanation 1 to rule 14(b) of the impugned rules, treating a person acquitted on benefit of doubt, as a person involved in a criminal case, is only in tune with well settled principles applicable to service jurisprudence. a person discharged does not even have protection under section 300 of cr.p.c. and hence such a person cannot assail the explanation 1 to the impugned rule 14(b). -- section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); - appointment to state police service - failure of a person to disclose in the application form, either his involvement in a criminal case or pendency of a criminal case against him - effect? - held, the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. his subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. in any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the two explanations under clause (iv) of rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honourable or otherwise. -- t.n. district police act, 1859. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the constitution. but it is well settled that if a rule passes the twin tests of (i) being founded on an intelligible differentia, and (ii) such differentia having a nexus with the object sought to be achieved, it cannot be said to be violative of articles 14 and 16 of the constitution. the impugned rule creates a classification of persons, who were not involved in criminal cases and persons, who were involved in criminal cases. the object of creating such a classification is to ensure that only those persons, whose character and antecedents were beyond and shadow of doubt alone, are permitted entry into the police service of the state. the rule is only a reflection of the intention of the government to maintain purity of administration. the rule merely provides a check post or a filter point, to ensure that only those, who had a clean record of personal life, are admitted into the system. that the existing system, has already come under heavy dose of criticism, cannot be swept under the carpet. therefore, as an employer, the government is entitled to prescribe, especially in a disciplined force like the police force, such a restriction at the entry level. there cannot be a dispute about the proposition that an employer has the right to prescribe any qualifications for appointment to a post. if that be so, an employer has a concomitant right even to prescribe disqualifications when it comes appointment to a post. persons who were never involved in criminal cases, need not be treated as equals to or on par with persons who were involved in criminal cases merely because they are acquitted later, especially in the matter of selection to the police service of the state. the classification made between them, is not only reason able but also has a nexus with the object sought to be achieved. the employer does have the right to choose a person untainted with any allegations. the attempt made to assail the impugned rules on the ground of violation of articles 14 and 16 of the constitution is fragile. the impugned rules themselves appear to be a product of the application of the right to equality. a person, who was never involved in any criminal case, cannot be equated to a person, who was involved in a criminal case, merely because he is acquitted later, at least insofar as matters of public employment are concerned. therefore, the challenge to the impugned rule on the ground of infringement of articles. 14 and 16 of the constitution must fail - section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); appointment - state police service - disqualification of a person acquitted on benefit of doubt or discharged in a criminal case - validity? held, by virtue of explanation 1 to clause (iv) of rule 14(b) of the t.n. special police subordinate service rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the state and that the same cannot be termed as disqualified for selection to the police service of the state and that the same cannot be termed as illegal or unjustified. the reason as to why cr.p.c. does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tried for a second time for the same offence for which he is tried and convicted or acquitted once. what is provided under section 300(1) of cr.p.c. is only a reassurance of the constitutional right guaranteed under article 20(2). the principle behind this prescription under section 300 of cr.p.c. is to avoid double jeopardy to a person. if the code recognizes such a distinction, it may make inroads into this concept of double jeopardy. but the concept of double jeopardy, to some extent, is allergic to service law. in many cases the supreme court has made it clear - (i) that the imposition of a punishment and the denial of promotion did not amount to double jeopardy, and (ii) that the conviction by a criminal court and the disciplinary proceedings initiated either on the basis of conduct which let to the conviction or on pure questions of misconduct, did not amount to double jeopardy. since the concept of acquittal is an acquittal, is an off shoot of the principle of double jeopardy underlying section 300(1) of the code, it cannot be imported into service law, where the principle of double jeopardy itself is looked down upon. therefore, the explanation 1 to rule 14(b) of the impugned rules, treating a person acquitted on benefit of doubt, as a person involved in a criminal case, is only in tune with well settled principles applicable to service jurisprudence. a person discharged does not even have protection under section 300 of cr.p.c. and hence such a person cannot assail the explanation 1 to the impugned rule 14(b). - section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); - appointment to state police service - failure of a person to disclose in the application form, either his involvement in a criminal case or pendency of a criminal case against him - effect? - held, the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. his subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. in any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the two explanations under clause (iv) of rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honourable or otherwise.pakenham walsh, j.1. the petitioner obtained a decree in order 8. no. 20 of 1929 on the file of the east tanjore district court and in execution thereof brought the properties of the judgment-debtor to sale. the sale was fixed for january 9, 1931 and at the request of the judgment-debtor was adjourned to january 30, 1931, to enable him to arrange for a private sale. it was further adjourned on that date at the request of the judgment-debtor to february 6, 1931, on which date a third party who was present, the let respondent, namely, chinnasami thanjirayar, presented an application purporting to be under order xxi, rule 69, civil procedure code, asking for an adjournment on the ground that he was prepared to purchase and an order was passed on this. 'sale to go on from day to day till february 13, 1931 by which time the proposed purchaser chinnaswami thanjirayar will pay into court rs. 2,000 to show his bona fides.' on the february 13, an order was passed that the sale was to go on from day to day till the 17th. on the 17th the following order was passed. 'the sale adjourned to april 24, 1831 to enable the judgment-debtor to effect private sale with a view to satisfy the creditor. if the sale is not completed by then, this amount of rs. 2,000 will be forfeited. the question of distribution will be considered later.' just above this order there is a note by the petition clerk: 'rs. 2,000 deposited to the credit of o.s. no. 20 of 1929.' it may be noticed that by that time there had been some application for rateable distribution put in by some decree-holders. on april 24, 1931 the sale was adjourned for one day more and on the 25th thanjirayar put in another application asking for further adjournment of a month. his petition was rejected. the court sale was proceeded with and the decree-holder bought the properties. subsequently thanjirayar presented e.a. no. 128 of 1931 for the return of rs. 9,000. the decree-holder had put in an application asking that the amount should be paid to himself and there was one other petitioner who asked for rateables. the learned judge who heard the petition was not the judge who had passed the order with respect to this rs. 2,000. nevertheless he held that the order of his predecessor was incompetent and passed an order to refund this rs. 2,000 to the present 1st respondent thanjiaryar. against that order the present civil revision petition has been filed. the first ground taken is that the 1st respondent cannot attack the order and that there was no application for review or revision, and if there was one it, could not be granted. the second ground taken is that having had the benefit of the order he cannot now say that it should be set aside particularly when the parties cannot now be placed in their orginal position.2. unfortunately the 1st respondent is not represented before me either personally or by pleader but the facts have been very fully set forth by the learned advocate for the petitioner and i am of the opinion that the order must be set aside on both the grounds. as regards the first ground, there is no application for review, and if there were one, order xlvii, rule 2 only empowers a judge other than the one who passed the order sought to be reviewed to review it on two grounds, namely, the discovery of such new and important matter on evidence as is referred to in order xlvii, rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree. neither of these forms the ground for the present petition and i therefore hold on the first ground that the learned judge had no power to review the order of his predecessor which had become final. i may, however, note some points in this connection. it is true that order xxi rule 69, does not specifically empower anyone but a party to the proceedings to make an application for adjournment. still i am not clear that it forbids the court to grant an adjournment on such an application. the rule is very general and says the court may in its discretion adjourn any sale hereunder to a specified day and hour, and so far as i can see, there is nothing to prevent the court adjourning it on information which it has from a third party or even at the request of a third party. nor am i satisfied, as the lower court seems to suppose, that the court has no power under rule 69 to impose terms for an adjournment, although the rule does not specifically say so; for instance with regard to rule 69(2) it is a frequent condition where a sale is adjourned for more than 7 days at the request of the judgment-debtor that this should only be done if fresh proclamation is waived. looking to the order xvii rule (1) which governs the adjournment in suits, we also find that it contains no express terms by which conditions can be imposed and yet the power of the court to do so is frequently exercised and is never questioned. the learned judge himself admits that on one reading of the order it would be competent, and that is if it be taken that rs. 2,000 was deposited towards the decree amount. in dealing with this question he has not quoted the last sentence of the order of the february 17, which seems to make the position clear. this order winds up thus 'if the sale is not completed by then, this amount of rs. 2,000 will be forfeited. the question of distribution will be considered later.' this last sentence following immediately on the order granting the application seems to show clearly that the distribution of the rs. 2,000 towards the decree amount is going to be considered. the order by saying that the sale is adjourned to april 24, 1931, to enable the judgment-debtor to effect private sale shows that in fact the application by the 1st respondent for adjournment was treated as an application by the judgment-debtor.3. as regards the alleged illegality of the order, the court had power to deal with the petition for adjournment of the sale, and even if an irregular condition was imposed both the parties submitted to it and it was not challenged. under these circumstances it is clear that the order must stand. vide abdul wahab saheb v. rokia bibi 73 ind. cas. 903 : a.i.r. 1924 mad. 406 ledgard v. bull 9 a. 191 : 13 i.a. 134 : 4 sar. 741 : 10 ind. jur. 471 (p.c.) and tuljaram rao v. gopala aiydr : (1917)32mlj434 4. on the second branch of the argument, i agree that the 1st respondent is estopped by his conduct from seeking to get the order set aside. he took advantage of the stay granted on those conditions and he cannot now be heard to say that the condition was illegal. in this connection the privy council case in sadasiva pillai v. ramalinga pillai 2 i.a. 219 : 15 b.l.r. 383 : 24 w.r. 193 : 3 sar. 319 : 3 suther 190 (p.c.) kodoth ambu nair kelu nair and somasundaram chetty v. subramaniam chetty 99 ind. cas. 742 : 25 l.w. 163 : (1926) m.w.n. 832 : a.i.r. 1926 p.c. 136 : 4 o.w.n. 1 (p.c.) may be referred to. i am satisfied therefore that this part of the learned judge's order must be set aside and the petition allowed with costs.5. with regard to the distribution of rateables, the learned district judge only deals with it in the last paragraph. 'i may add that i think it clear that if the rs. 2,000 could be held by the court, it would be an asset coming under section 73 and liable to rateable distribution.' there are not, however, sufficient materials on the record in its present condition' for me to pass final orders as regards distribution.6. in the result c.r.p. no. 1655 is allowed and e.a. no. 128 of 1931 is dismissed with costs throughout. c.r.p. no. 1654 is allowed with costs except vakil's fee and e.a. no. 127 of 1931 is remanded to the lower court for disposal according to law. vakil's fee-one set. costs in c.r.p. nos. 1654 and 1655 to be paid by the 1st respondent.