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Divisional Personnel Officer, Southern Railway Vs. S. Raghavendrachar - Court Judgment

LegalCrystal Citation
CourtSupreme Court of India
Decided On
Reported inAIR1966SC1529; [1968(16)FLR74]; (1967)ILLJ401SC; [1966]3SCR106
ActsGovernment of India Act, 1935 - Sections 240(3); Service Rules; Discipline and Appeal Rules - Rule 5; Indian Railway Establishment Code; Constitution of India - Article 311 and 311(2)
AppellantDivisional Personnel Officer, Southern Railway
RespondentS. Raghavendrachar
Cases ReferredCalcutta v. Amal Kumar Roy
Books referredOxford English Dictionary.
service - reversion - service rules, rule 5 of discipline and appeal rules, indian railway establishment code and articles 311 and 311 (2) of constitution of india - respondent was employed in lower scale as train examiner and promoted provisionally to higher post - respondent was reverted by another order - respondent made representations to appellant - appellant answered that any officiating employee in higher post may be reverted to original post - respondent appealed to divisional superintendent and then to general manager - respondent reminded several times and then told that reversion is not punishment and he will be considered for promotion if vacancy occurred - aggrieved respondent appealed before high court and order of reversion quashed by division bench - appellant will be considered in the normal course according to yourseniority and suitability to hold the post in scale rs. 150-225.' 6. the respondent made a further appeal to the divisional superintendent,mysore, on july 2, 1960 and sent him two reminders. not having got anyresponse, he filed an appeal on january 31, 1961, to the general manager,southern railway. the respondent sent a reminder to the latter on march 31,1961. in reply, the divisional personnel officer wrote to the respondent asfollows by letter dated april 30, 1961 : 'your reversion from anofficiating post on scale rs. 150-225 (ps) was not a penalty as presumed byyou, in your above representations. the vacancy thus released by you in scalers. 150-225 (ps) and the vacancies which existed on the date of your reversionwere filled.....

Satyanarayana Raju, J.

1. This appeal, by special leave, raises a somewhat important question ofall, which is whether the reversion of a Government servant from an officiatingpost to his substantive post, while his junior is officiating in the higherpost, does not, by itself, constitute a reduction in rank within the meaning ofart. 311(2) of the Constitution.

2. For the purpose of deciding the point raised in the appeal, it would benecessary to state the material facts. The Southern Railway has two grades ofTrain Examiners, one in the scale of Rs. 100-5-125-6-185 and the other in thescale of Rs. 150-225. The respondent was employed in the lower scale as a TrainExaminer. By an order dated April 7, 1959, the respondent was promoted toofficiate in the higher scale with a starting salary of Rs. 150 per month. Thatorder read as follows :

'2 Sri S. Raghavendrachar,TXR-YPR in scale Rs. 100-185 is promoted to officiate as TXR in scale Rs.150-225 on Rs. 150 per month and retained YPR as TXR-IC.

3. Sir James Blazey TXR-MYS inscale Rs. 100-185 is promoted to officiate as TXR in scale Rs. 150-225 on Rs.150 per month and transferred to SBC-BG vide item I above.

Sanction endorsed by D.S. forpromotion of items 2 and 3.'

3. There is a note appended to the order which is important :

'Note : 1. The promotion of items 2 and 3 arepurely provisional subject to revision when Divisional Seniority lists aredrawn up.'

4. By an order dated November 27, 1959, the respondent was reverted. Thatorder was as follows :

'Sri S. Raghavendrachar, TXR/YPR (officiating) inscale Rs. 150-225 is reverted to scale Rs. 100-185 on Rs. 130 per month andtransferred to SBC/MG.'

5. On receipt of this order, the respondent made representations to theappellant. The appellant sent to the respondent communication dated May 25,1960 :

'As per the existinginstructions an officiating employee with less than 18 months of service in thehigher grade may be reverted to lower scale without assigning any reason forsuch reversion by a competent authority. Since the period of your officiatingin scale Rs. 150-225 was less than 18 months and since your reversion fromscale Rs. 150-225 to Rs. 100-185 has been ordered by a competent authority, noreasons need be assigned as requested in your representation dated 8th/9thDecember 1959.

As regards the confirmation ofTXRs in scale Rs. 150-225, who were your juniors while you were officiating inscale Rs. 150-225, I have to advise you that consequent on your reversion toscale Rs. 100-185, all your juniors, in scale Rs. 150-225, have become seniorsand their confirmations in preference to you are in order.

Regarding your re-promotion toscale Rs. 150-225, it will be considered in the normal course according to yourseniority and suitability to hold the post in scale Rs. 150-225.'

6. The respondent made a further appeal to the Divisional Superintendent,Mysore, on July 2, 1960 and sent him two reminders. Not having got anyresponse, he filed an appeal on January 31, 1961, to the General Manager,Southern Railway. The respondent sent a reminder to the latter on March 31,1961. In reply, the Divisional Personnel Officer wrote to the respondent asfollows by letter dated April 30, 1961 :

'Your reversion from anofficiating post on scale Rs. 150-225 (PS) was not a penalty as presumed byyou, in your above representations. The vacancy thus released by you in scaleRs. 150-225 (PS) and the vacancies which existed on the date of your reversionwere filled up on 14th February 1960. You are therefore eligible to beconsidered for promotion against a vacancy which occurred after the date ofyour reversion and not against the vacancies which existed on the date of yourreversion and also vacancy caused by your reversion. No regular vacancy (otherthan short term leave vacancy) in scale Rs. 150-225 has occurred from the dateof your reversion till date. You will therefore be considered for promotionagainst the next vacancy, subject to the condition of seniority-cum-suitability,on the basis of which only promotions to non-selection posts are to be ordered.

2. As regards seniority, allthose hitherto promoted to scale Rs. 150-225 (PS) will automatically rankseniors to you and your seniority if promoted will be reckoned only from thedate of your promotion in future vacancy.

3. Your contention that, when youwere promoted to officiate for 2 months against the leave vacancy of ShriVenkataraman, as per this office order No. M. 542/PI of 14th November 1960, youshould have been continued even after the expiry of the leave vacancy, and thatShri Varghese should have been reverted, is not correct, for the reasons statedin paragraph 2 above.

4. Your representation of 30thJanuary 1961 to GM(P) Madras is therefore withheld.'

7. Aggrieved by the order dated November 27, 1959, the respondent moved theMysore High Court, on the failure of his representations to the hierarchy ofDepartmental Heads, for a writ of certiorari to quash the impugned order madeby the appellant. By judgment dated December 12, 1962, a Division Bench of theHigh Court quashed the order of reversion. The High Court observed that it wasnot necessary to express any opinion on the question whether the reversion ofthe respondent on the ground that his work was unsatisfactory amounted to areduction in rank within the meaning of that expression occurring in art.311(2) of the Constitution. But the High Court held that the reversion of therespondent amounted to a reduction in rank because he was reverted from thehigher post to the lower post notwithstanding the fact that his juniors werestill retained in the higher posts. In reaching this conclusion the High Courtpurported to follow the decision of this Court in Madhav Laxman Vaikunthe v.State of Mysore : [1962]1SCR886 .

8. The Divisional Personnel Officer, Southern Railway, Mysore, obtainedspecial leave from this Court against the order of the High Court.

9. It is contended by Mr. Bishan Narain, learned counsel for the appellant,that the High Court misunderstood the ratio of the judgment of this Court inVaikunthe's case : [1962]1SCR886 , that there is no right in a Governmentservant to promotion as of right, that the mere reversion of a Governmentservant from an officiating post to his substantive post, notwithstanding thathis juniors are retained in the higher posts, does not amount to a reduction inrank and the provisions of art. 311(2) are not attracted. On the other hand, itis contended by Mr. S. K. Venkataranga Iyengar, learned counsel for therespondent, that the circumstances of the case clearly indicated that the reversionof the respondent amounted to a reduction in rank and since the procedureprescribed by art. 311(2) was not complied with, the order of reversion was badin law.

10. It may be taken to be settled by the decisions of this Court that sinceart. 311 makes no distinction between permanent and temporary posts, itsprotection must be held to extend to all government servants holding permanentor temporary posts or officiating in any of them, but that protection islimited to the imposition of three major penalties contemplated by the ServiceRules, viz., dismissal, or removal or reduction in rank.

11. The first of the cases which may be considered is the decision inParshotam Lal Dhingra Union of India : (1958)ILLJ544SC , commonly known asDhingra's case. In this case, Das C. J., who spoke for the majority, consideredcomprehensively the scope and effect of the relevant constitutional provisions,service rules and their impact on the question as to whether reversion ofDhingra offended against the provisions of art. 311(2). Dhingra was appointedas a Signaller in 1924 and promoted to the post of Chief Controller in 1950.Both these posts were in Class III Service. In 1951, he was appointed toofficiate in Class II Service as Assistant Superintendent, Railway Telegraphs.On certain adverse remarks having been made against him, he was reverted as asubordinate till he made good his short comings. Then, Dhingra made arepresentation. Subsequently, the General Manager gave him notice reverting himto Class III appointment. It was this order which was challenged by Dhingra bya writ petition, in the High Court and, eventually, in this Court. The questionfor decision was whether the order of the General Manager amounted to reductionin rank within the meaning of art. 311(2) of the Constitution, and Dhingra wasentitled to a reasonable opportunity to show cause against the order. ThisCourt held that the reversion of an officiating officer to his substantive postdid not attract the provisions of art. 311(2) and that Dhingra was not entitledto the protection of that article.

12. It is however true that even an officiating government servant may bereverted to his original rank by way of punishment. It was therefore observedin Dhingra's case : (1958)ILLJ544SC :

'Thus if the order entails or provides for theforfeiture of his pay or allowances or the loss of his seniority in hissubstantive rank or the stoppage or postponement of his future chances ofpromotion, then that circumstance may indicate that although in form theGovernment had purported to exercise its right to terminate the employment orto reduce the servant to a lower rank under the terms of the contract ofemployment or under the rules, in truth and reality the Government hasterminated the employment as and by way of penalty.'

13. One test for determining whether the termination of service was by wayof punishment or otherwise is to ascertain whether under the Service Rules, butfor such termination, the servant has the right to hold the post. It was heldin Dhingra's case : (1958)ILLJ544SC that he was holding an officiating postand had no right under the rules of the Railway Code to continue in it, thatunder the general law such appointment was terminable at any time on reasonablenotice and the reduction could not operate as a forfeiture of any right, thatthe order of the General Manager visited him with no evil consequences and thatthe order therefore did not amount to a reduction in rank.

14. Vaikunthe's case : [1962]1SCR886 was relied upon by the HighCourt in support of its conclusion that the reversion of the respondentamounted to a reduction in rank. It is therefore necessary to scrutinize thefacts of that case.

15. The appellant Vaikunthe, who held the rank of a Mamlatdar in the firstgrade, and was officiating as District Deputy Collector, was alleged to havewrongly charged travelling allowance for 59 miles instead of 51 and was, as theresult of a Departmental enquiry, reverted to his substantive rank for threeyears and directed to refund the excess he had charged. He made arepresentation to the Government which was of no avail although the AccountantGeneral was of the opinion that the appellant had not over-charged andcommitted no fraud. Ultimately, the appellant was promoted to the SelectionGrade but the order of reversion remained effective and affected his positionin the Selection Grade. After retirement he brought a suit for a declarationthat the order of reversion was void and for recovery of a certain sum asarrears of salary and allowances. The trial Court held that there was nocompliance with the provisions of s. 240(3) of the Government of India Act,1935, granted the declaration but refused the arrears claimed. Vaikunthe filedan appeal and the State a cross-objection. The High Court dismissed the appealand allowed the cross-objection, holding that the order of reversion was not apunishment within the meaning of s. 240(3) of the 1935 Act.

16. This Court held that the matter was covered by the observations inDhingra's case : (1958)ILLJ544SC and the tests of punishment laid down bythis Court viz., (1) whether the servant had a right to the rank or (2) whetherhe had been visited with evil consequences of the kind specified therein, andthat the second test certainly applied. This Court concluded that Vaikunthemight or might not have the right to hold the higher post, but there could beno doubt that he was visited with evil consequences as a result of the order ofreversion. It was there held :

'Mere deprivation of higher emoluments, however, inconsequence of an order of reversion could not by itself satisfy that testwhich must include such other consequences as forfeiture of substantive pay andloss of seniority.'

17. Since the requirement of s. 240(3) of the 1935 Act, which corresponds toart. 311(2) of the Constitution, had not been found to have been fully compliedwith, the order of reversion was held to be void.

18. There was an important aspect of this decision which was lost sight ofby the High Court. The impugned order there ran as follows :

'After careful consideration Government havedecided to revert you to Mamlatdar for a period of three years ..........'

19. It was pointed out in Dhingra's case : (1958)ILLJ544SC that if theorder of reversion entailed or provided for the forfeiture of the pay orallowances of the Government servant or loss of his seniority in hissubstantive rank or the stoppage or postponement of his future chances ofpromotion, then that circumstance might indicate that although in form theGovernment had purported to exercise its right to terminate the employment orto reduce the servant to a lower rank under the terms of the contract ofemployment or under the rules, in truth and reality the Government hadterminated the employment as and by way of penalty. At p. 891, Sinha, C.J., whospoke for the Court, pointed out :

'.... he would have continued as a Deputy Collectorbut for the Order of the Government, dated August 11, 1948, impugned in thiscase, as a result of the enquiry held against him, and that his reversion wasnot as a matter of course or for administrative convenience. The Order, interms, held him back for three years. (Italics ours). Thus his emoluments,present as well as future, were adversely affected by the Order aforesaid ofthe Government. In the ordinary course, he would have continued as a DeputyCollector with all the emoluments of the post and would have been entitled tofurther promotion but for the set back in his service as a result of theadverse finding against him, which finding was ultimately declared by theAccountant General to have been under a misapprehension of the true facts. Itis true that he was promoted as a result of the Government Order dated March26, 1951, with effect from August 1, 1950. But that promotion did not entirelycover the ground lost by him as a result of the Government Order impugned inthis case.'

20. Again, at p. 893, the learned Chief Justice pointed out :

'If the loss of the emoluments attaching to thehigher rank in which he was officiating was the only consequence of hisreversion as a result of the enquiry against him, the appellant would have nocause of action. But it is clear that as a result of the Order dated August 11,1948 (Ex. 35), the appellant lost his seniority as Mamlatdar, which was hissubstantive post. That being so, it was not a simple case of reversion with noevil consequences; it had such consequences as would come within the test ofpunishment as laid down in Dhingra's case.'

21. Finally, it was pointed out :

'If the reversion had not been for a period ofthree years, it could not be said that the appellant had been punished withinthe meaning of the rule laid down in Dhingra's Case. It cannot be asserted thathis reversion to a substantive post for a period of three years was not by wayof punishment. From the facts of this case it is clear that the appellant wason the upward move in the cadre of his service and but for this aberration inhis progress to a higher post, he would have, in ordinary course, been promotedas he actually was some time later when the authorities realised perhaps thathe had not been justly treated....'

22. The real ground on which Vaikunthe's reversion to his original post ofMamlatdar was held to be a violation of his Constitutional guarantee was thathis chances of promotion were irrevocably barred for a period of three years.If this aspect of Vaikunthe's case : [1962]1SCR886 is borne in mind, itwill be found that there is no basic inconsistency between the decisions whichhave a bearing on the question as to in what cases reversion would amount to areduction in rank.

23. Even so, it is contended by learned counsel for the respondent that thereal reason which operated on the mind of the appellant was that therespondent's work in his officiating capacity was unsatisfactory. Assuming thatto be so, the question is whether his reversion to his original post, becausehe was found unsuitable for the higher rank to which he had been given theofficiating chance, is valid.

24. In State of Bombay v. F. A. Abraham (1962) Supp. 2 S.C.R. 92 therespondent held the substantive post of Inspector of Police and had beenofficiating as Deputy Superintendent of Police. He was reverted to his originalrank without being given an opportunity of being heard in respect of thereversion. His request to furnish him with reasons for his reversion wasrefused. Later, a departmental enquiry was held behind his back in regard tocertain allegations of misconduct made against him in a confidentialcommunication from the District Superintendent of Police to the DeputyInspector-General of Police, but these allegation were not proved at theenquiry. The Inspector-General of Police, however, thereafter wrote to theGovernment that the respondent's previous record was not satisfactory and thathe had been promoted to officiate as Deputy Superintendent of Police in theexpectation that he would turn a new leaf. The High Court held, following itsearlier decision in M. A. Waheed v. State of Madhya Pradesh (1954) Nag. L.J.305. that if a person officiating in a higher post is reverted to his originalpost in the normal course, that is, on account of cessation of the vacancy orhis failure to acquire the required qualification, the reversion did not amountto a reduction in rank but if he is reverted for unsatisfactory work, then thereversion would amount to a reduction in rank. This Court did not agree withthe observations in Waheed's case (1954) Nag. L.J. 305 that when a personofficiating in a post is reverted for unsatisfactory work, that reversion wouldamount to a reduction in rank. This Court took the view that the Government hada right to consider the suitability of the respondent to hold the position towhich he had been appointed to officiate and that it was entitled for thatpurpose to make inquiries about his suitability and that was all what theGovernment had done in that case.

25. Two more cases cited at the Bar now require to be considered. In TheHigh Court, Calcutta v. Amal Kumar Roy : [1963]1SCR437 this Court heldthat the word 'rank' in art. 311(2) referred to classification and not to aparticular place in the same cadre in the hierarchy of service. The facts ofthe case were as follows. The respondent was a Munsif in the West Bengal CivilService (Judicial). When the cases of several Munsifs came up for considerationbefore the High Court for inclusion in the panel of officers to officiate asSubordinate Judges, the respondent's name was excluded. On a representation madeby him, the respondent was told by the Registrar of the High Court that theCourt had decided to consider his case after a year. As a result of suchexclusion, the respondent, who was then the seniormost in the list of Munsifs,lost eight places in the cadre of Subordinate Judges before he was actuallyappointed to act as an Additional Subordinate Judge. His case mainly was thatthis exclusion by the High Court amounted in law to the penalty of 'withholdingof promotion' without giving him an opportunity to show cause. He prayed that adeclaration might be made that he occupied the same position in respect ofseniority in the cadre of Subordinate Judges as he would have done if nosupersession had taken place and claimed arrears of salary, in a suit filed byhim. The trial Court decreed the suit. On behalf of the appellants apreliminary objection was taken in this Court that the controversy raised wasnot justiciable. This Court held that there was no cause of action for the suitand the appeal must succeed.

26. It was there contended on behalf of the respondent that even thoughthere might not have been any disciplinary proceedings taken against him, theeffect of the High Court's order was that he was reduced by eight places in thelist of Subordinate Judges and that in law amounted to a reduction in rankwithin the meaning of art. 311(2) of the Constitution. At p. 453 it was pointedout as follows :

'In our opinion, there is no substance in thiscontention because losing places in the same cadre, namely, of SubordinateJudges does not amount to a reduction in rank within the meaning of art.311(2). The plaintiff sought to argue that 'rank', in accordance withdictionary meaning, signifies 'relative position or status or place,' accordingto Oxford English Dictionary. The word 'rank' can be and has been used indifferent senses in different contexts. The expression ' rank' in art. 311(2)has reference to a person's classification and not his particular place in thesame cadre in the hierarchy of the service to which he belongs. Hence, in thecontext of the Judicial Service of West Bengal, 'reduction in rank' would implythat a person who is already holding the post of a Subordinate Judge has beenreduced to the position of a Munsif, the rank of a Subordinate Judge beinghigher than that of a Munsif. But Subordinate Judges in the same cadre hold thesame rank though they have to be listed in order of seniority in the CivilList. Therefore, losing some places in the seniority list is not tantamount toreduction in rank. Hence, it must be held that the provisions of art. 311(2) ofthe Constitution are not attracted to this case.'

27. This decision therefore is authority for the position that losing someplaces in the seniority list is not tantamount to reduction in rank.

28. The respondent relied upon the decision of this Court in P. C. Wadhwa v.Union of India : (1964)ILLJ395SC . There, the appellant, a member of theIndian Police Service and holding the substantive rank of AssistantSuperintendent of Police (a post in the junior time scale of pay) in the Stateof Punjab, was promoted to officiate as Superintendent of Police, which was apost carrying a higher salary in the senior time-scale, and posted asAdditional Superintendent of Police. After he had earned one increment in thatpost, he was served with a charge-sheet and before the enquiry, which had beenordered, had started, he was reverted to his substantive rank of AssistantSuperintendent of Police, the ground suggested for reversion being unsatisfactoryconduct. No details of the unsatisfactory conduct were specified and theappellant was not asked for any explanation. At the time when the appellant wasreverted, officers junior to him in the I.P.S. Cadre of the State wereofficiating in the senior scale. The order entailed loss of pay as well as lossof seniority and postponement of future chances of promotion.

29. It was held that the order of reversion made against the appellant wasin effect a 'reduction in rank' within the meaning of art. 311(2) of theConstitution and inasmuch as he was given no opportunity of showing causeagainst the said order of reversion, there was violation of art. 311. On aconsideration of the circumstances of the case, this Court reached theconclusion that the action of the Government reverting the appellant was malafide. But that was not the sole ground on which the order of reversion was heldto be bad.

30. After an examination of the legal position from the large body of rulesto which reference was made, it was held that in so far as the Indian PoliceService is concerned there was only one cadre, that appointment to posts borneon that cadre were to be made by direct recruitment except to the extent of 25per cent. of the senior posts which may be filled by promotion from the StatePolice Service. A special feature of the All India Services like the IndianPolice Service and the Indian Civil Service is that promotion is a matter ofright. It was for this reason that this Court, by a majority pointed out at p.622 that in the case of those services there was no rule which, specificallyprovided that an officer had to be freshly appointed to a post carrying asalary in the senior scale of pay.

31. At p. 627 it was said :

'In our opinion, the whole scheme of the rulesindicates that a person borne on the junior scale of pay has a right to hold apost on the senior scale of pay depending upon the availability of a post andhis seniority in the junior scale of pay..... If a person holding a post in thesenior scale, though in an officiating capacity, is found to be unfit to holdthat post, action will have to be taken against him as required by r. 5 ofDiscipline and Appeal Rules because his reversion to a post in the lower scalewould amount to reduction in rank within the meaning of art. 311(2) of theConstitution.'

32. On a consideration of the circumstances of that case, it is clear thatthe decision itself proceeded on the basic fact that for members of All IndiaServices like the Indian Police Service, promotion was a matter of right andspecial considerations would have to be applied to them.

33. Now, in the light of the principles established by the above decisions,we may consider the respondent's case. The Southern Railway has two grades ofTrain Examiners. The respondent and one James Blazey were promoted from thelower grade to officiate in the higher grade. The respondent was shown at itemno. 2 and James Blazey at item no. 3 in the promotion list. A note was appendedto the order that the promotion of the respondent and Blazey were 'purelyprovisional subject to revision when seniority lists drawn up for theDivision.' By reason of the order dated November 27, 1959, the respondent wasreverted to the lower grade while Blazey was retained in the higher grade. Thecase of the respondent is that Blazey was junior to him and that since he wasreverted while Blazey was not, it would amount to a reduction in rank so far ashe was concerned. It is plain that what he complains of is that he lost hisseniority by reason of the retention of Blazey in the officiating higher post.

34. The respondent's rank in the substantive post i.e., in the lower grade,was in no way affected by this. In the substantive grade, the respondentretained his rank. It may also be added that he was visited with no penalconsequences. It is no doubt true that it is not the form but the substancethat matters, but once it is accepted that the respondent has no right to thepost to which he was provisionally promoted, there can be no doubt that hisreversion does not amount to a reduction in rank. None of the decisionsconsidered above lends support to the contention for the respondent.

35. It was finally argued that the procedure prescribed by Rules 1609 to 1619of the rules contained in the Indian Railway Establishment Code, Vol. I., werecontravened. Rule 1609 reads :

'As a general rule, in no circumstances, should agazetted railway servant be kept in ignorance for any length of time that hissuperiors, after sufficient experience of his work, are dissatisfied with him;where a warning might eradicate a particular fault, the advantages of promptcommunication are obvious. On the other hand, the communication of any adverseremarks removed from their context is likely to give a misleading impression tothe gazetted railway servant concerned. The procedure detailed in rule 1610should therefore be followed.'

36. Rules 1609 to 1618 apply only to gazetted railway servants. Therespondent is not a gazetted railway servant and there is no question of hisclaiming that he is entitled to the right given under the above rules.

37. Rule 1619 refers to non-gazetted railway servants. That rule providesthat in general conformity with the principles laid down in the preceding rulesapplicable to Gazetted Railway Servants, a General Manager may frame detailedrules for the preparation, submission and disposal of confidential reports onnon-gazetted railway servants. Learned counsel for the respondent could notplace before us those rules, if any.

38. The contentions raised by the respondent having been negatived, thisappeal must succeed, and it is accordingly allowed, but, in the circumstancesof the case, there will be no order as to costs.

39. Appeal allowed.

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