C.A.D. Civilian Workers' Union ... vs State Of Maharashtra And Ors.
2006 Latest Caselaw 660 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. By both these Petitions, employees working in the defence Department of Union of India have challenged action of respondent No. 1 State of Maharashtra and respondent No 2 Profession Tax Officer in denying them exemption from payment of profession tax and the petitioners rely upon provisions of Section 27-A(a) of Maharashtra State Tax on Professions, Traders, Callings and Employment Act (16 of 1975), (hereinafter referred to as Profession Tax Act) and its interpretation by Division Bench of this Court in bunch of Petitions i.e. Writ Petition Nos. 303, 511, 1909, 2937 of 1988 and Writ Petition Nos. 1424 and 616 of 1989 decided on 4-12-1990 at Nagpur B.S. Raut and Ors. v. State of Maharashtra and Ors. reported at 1992 Mh.L.J. 360 for this purpose. The petitioners state that they themselves were petitioners in earlier Petition and hence the controversy stands concluded. The respondents have not disputed that the earlier Petitions were filed by these very petitioners and had been decided in their favour by holding that in view of provisions of Section 27A(a) of Profession Tax Act, State Government cannot levy and demand profession tax from them. However, their defence is that State Government has amended said provision granting exemption and petitioners have been excluded from the exempted class. They have also relied upon the Division Bench judgments delivered later in point of time i.e. after the amendment came into force and holding that employees of similar establishments were not exempted from payment of profession tax. These judgments are Pratiraksha Mazdoor Sangha, Jalgaon v. State of Maharashtra and Ors. reported at 2007 (1) Mh.L.J. 407 and Indian Air Force Employees Union v. State of Maharashtra and Ors. reported at 20C3 (4) Mh.L.J. 609 : 2003 (2) CLR 595. Additional challenge raised by petitioners in present Petitions is that if the amendment is held to exclude petitioners from class entitled to exemption, the amendment deserves to be declared unconstitutional as it violates Article 14 of Constitution of India because according to them there is no rationale for classifying Armed Forces into such two categories and there is no intelligible differentia for the same. They further state that such differentia, if any, does not have nexus with the object of provision and Profession Tax Act. In view of this, it is apparent that we need not go to the facts as pleaded in both the Petitions in detail. Both the later judgments directly hold that earlier judgment of Division Bench at Nagpur is not applicable in view of subsequent amendment. Learned Counsel appearing for parties have concentrated their efforts mostly to oppose or to support this conclusion.

2. Writ Petition 1449 of 1991 is filed by Union which is registered under Trade Unions Act along with five individual workers and it is in relation to Central Ammunition Depot at Pulgaon in Wardha District. Writ Petition 1950 of 1991 is filed by an association by name All India Air Force Civilians Association, Nagpur Branch with two individuals and the establishment in relation to which it is filed is a Maintenance Command, (Unit), Air Force, Vayusena Nagar, Nagpur. In both these Petitions there is reference to earlier Writ Petitions and decision therein. The details of duties performed by petitioners or expected from them are also given and thereafter reliance has been placed upon above-mentioned earlier judgment of Nagpur Bench dated 4/12/1990. These facts are not denied by any of the respondents. It is not their defence that nature of duties performed by petitioners has undergone any change after previous adjudication by Nagpur Bench. The only defence is change brought in by amendment in exemption clause of Profession Tax Act. The petitioner No. 1 to 5 in Writ Petition 1449 of 1991 were also petitioners in Writ Petition 2937 of 1988 and first four respondents therein were also respondents in earlier Writ Petition. Union of India has been added as respondent No 5 in present Petition by amendment in 2004. Writ Petition No. 1950 of 1991 is filed by same petitioners against same respondents as in Writ Petition 511 of 1988. As no change in factual background has been pointed out by parties, it would be proper to first refer to Division Bench judgments dated 4-12-1990 on which all petitioners heavily rely to contend that amendment to Section 27A(a) of Profession Tax Act being pressed in service by respondents in defence has not effected any material change so as to render said judgment "no longer good law". The amendment in dispute substituted Clause (a) and has been effected by Maharashtra Act No. 12 of 1991 dated 27-3-1991 with effect from 1-11-1976. The Division Bench at Nagpur considered the situation in which unamended Section 27A was applicable. The Profession Tax Act, initially, did not contain any power to grant exemption in favour of any person from the charging provision (section 3) of the Act. The Legislature later on granted such exemption. Consequently, Section 27A was inserted by Maharashtra Act No. 21 of 1976 with effect from 1st November, 1976 and was amended from time to time. The said provisions, before and after amendment are reproduced below:

Unamended provision considered by Division Bench at Nagpur:

Section 27A - "Nothing contained in Section 3 and other provisions of this Act shall apply to -

(a) the members of the armed forces of the Union, that is to say, to whom the provisions of the Army Act, 1950, the Air Force Act, 1950, or the Navy Act, 1957 apply serving in any part of the State.

Sub-sections (b), (c) and (d) are not relevant hence are not reproduced.

The amended Section 27A of the Act after its substitution by Maharashtra Act No. 12 of 1991 with retrospective effect i.e. with effect from 1st November, 1976 reads:

27A. Exemptions.- Nothing contained in Section 3 and other provisions of this Act shall apply to:

(a) the members of the Forces as defined in the Army Act, 1950 or the Air Force Act, 1950 and the members of Indian Navy as defined in the Navy Act, 1957 serving in any part of the State and drawing pay and allowances as Army or Air Force or Navy, as the case may be, including the members of auxiliary forces or reservists, or reserve and auxiliary services serving in any part of the State and drawing pay and allowances as such auxiliary forces or reservists, or reserve and auxiliary services, as the case may be under the budgetary allocations of the defence Services:

Sub-sections (b) to (g) are not relevant hence are not reproduced. The later 2 Division Benches consider this amended provision.

3. Advocate R. K. Deshpande and Advocate Suddhir Malode for petitioners , AGP Mrs. Wandile for State and Adv. Sundram for Union of India and Employer Units/Organizations have raised various contentions which we are considering in detail below while making reference to respective judgments. The emphasis of petitioners is on the fact that in earlier adjudication after considering their duties, nature of employment and the law applicable a finding has been delivered in case of B. S. Raut and said finding has attained finality and therefore, is still binding. According to them, the facts are not being disputed even today by respondents and hence, declaration of their entitlement to exemption must remain unaltered. The petitioners have been found to be integral part of the Force and there was no such finding in later two judgments of Division Benches, Both advocates for respective group of petitioners have taken us through the legal provisions on the point, all three judgments of Division Benches and also judgments of Hon'ble Apex Court relied therein to substantiate their stand. As against this, the effort of learned AGP as also the learned standing council appearing for Union of India, Pulgaon C.A. Depot and Maintenance Command, Nagpur is to demonstrate that in view of amendment, the eligibility norm for exemption has itself undergone change and a small group from amongst persons subject to Army Act or Air Force Act has now been identified and selected for grant of exemption. According to them Division Bench Judgments subsequent to this amendment have clearly appreciated and accepted this position. According to them, B. S. Raut and various judgments of Hon'ble Apex Court relied upon in it have been delivered in totally different situation and after amendment are rendered inapplicable to the present situation. They also state that classification for eligibility to confer exemption is based upon line of demarcation which already exists and the differentia adopted has got nexus with the object sought to be achieved by amendment and also with the purposes of Profession Tax Act.

4. The judgment of Division Bench delivered on 4-12-1990 interprets the unamended phrase having wording - the members of armed forces to whom provisions of the Army Act, 1950, the Air Force Act 1950, or the Navy Act 1957 apply. In paragraph 5 Division Bench finds that Section 2(1) of Army Act and Air Force Act gives list of persons who shall be subject to those Acts. It has been recorded that it was undisputed position that petitioners do not fall under sub-clauses (a) to (g) of Section 2(1) of Army Act or sub-clauses (a) to (c) of Section 2(1) of Air Force Act. The Division Bench therefore found that crux of matter was whether they fall under last sub-clause of said provision which was held to be pari materia in both Acts. Said sub-clause i.e. Section 2(1)(i) of Army Act has thereafter been reproduced and in paragraph 6 of its judgment, the Bench finds that issue was no more res-integra in view of various decisions of Hon'ble Apex Court. Reference has been made to one such decision in case between Ous Kutilingal Achudan Nair v. Union of India . In paragraph 7, the Bench found that this decision of Hon'ble Apex Court was followed in case of R. Viswan v. Union of India reported at and in paragraph 8 reference is made to judgment of Hon'ble Apex Court in case of Gopal Upadhya v. Union of India . In paragraph 3 of the judgment, the Division Bench found that petitioners before it belonged to different categories like Clerks, Superintendent, Meter Reader, Electrician, Driver, P. A., Stenographers, Librarian, Store keeper, Education Instructor, Gestetner Operator, Painter, Carpenter, Draftsman, Switch Board attendant, Senior mechanic, Pipe Fitter, Mazdoor, Cook, Watchman, Scavenger etc. In paragraph 4, it has been held that petitioners are noncombatant civilian defence personnel whose service conditions are governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and many of them have Army/Air Force Code Nos. It was found that services of petitioners are transferable anywhere in India and when called upon to do so, they are obliged to render field service. In this backdrop, the Division Bench has drawn following conclusions:

9. On behalf of respondent-State it is contended that the ratio of Gopal Upadhyay (supra) must be confined only to the "Camp followers". Now, it is pertinent to notice that the terminology "Camp follower" is not defined and indeed is loosely used as a compendious description of the category of employees involved therein. It is difficult to see as to why the petitioners case would stand on different footing. The list of camp followers is only illustrative and not exhaustive. It would include all those defence personnel (Not otherwise subject to military law) who can be brought under category (i) of Section 2(1) of the Army Act.

10. We have already noticed the undisputed position before us that the petitioners who are civilian defence personnel are obliged to render field service if and when called upon to do so. In this connection, the provisions of the Defence Service (Field Services Liability) Rules, 1957, as amended from time to time are relevant. Avoiding field service by the Civil defence personnel is a misconduct under the Rules.

11. Keeping all these factors in view, the expression "Armed Forces" has been liberally interpreted by the Supreme Court to include even noncombatants who are not otherwise subject to military law but who form part of the Armed Forces, their duty being to accompany the Armed Force on active service wherever called upon to do so. Section 2(1)(i) of the Army Act does not give exhaustive list of persons falling in that category.

12. Under the circumstances, we see no justification to confine the exemptions clause contained in Section 27A of the Professional Tax Act only to the regular Army personnel who are governed by the Army Act in peacetime or wartime and not extend the same to civilian defence personnel who can be ordered to render field service and follow the Army in certain situations mainly wartime.

13. There is one more aspect to the controversy. After all, we are called upon to construe an exemption clause in the taxing statute which must receive liberal construction favouring the tax payer in case of doubt.

5. Petitioners have heavily drawn from this judgment of B. S. Raut (supra) and contend that the later two Division Bench judgments have in fact not approached the issue in its proper perspective. According to them question whether petitioners are governed by Army Act or Air Force Act is to be answered only after interpreting the provisions of these two Central Acts and provisions of Section 27A of Profession Tax Act cannot be permitted to influence said interpretation. According to them issue needs to be answered independent of Section 27A(a) and after answering it, the provisions of exemption clause are to be applied. Hence, amendment to Section 27A(a) by State is totally irrelevant. According to them, in any case said amendment has not made any difference insofar as status of petitioners qua their respective establishments/employers is concerned. It will be convenient to consider these two later Division Bench judgments in the light of these arguments.

6. Pratiraksha Mazdoor Sangha, Jalgaon v. State of Maharashtra and Ors. reported at 2001 (1) MH.L.J. 407 (supra) is the first judgment which considers the above referred Division Bench judgment in case of B.S. Raut and Ors. v. State of Maharashtra and Ors..

A. In Pratiraksha Mazdoor Sangha case, the petitioners represented employees in different Ordnance Factories in Maharashtra State and claimed that they are exempt and cannot be required to pay profession tax in view of Section 27A(a) of Profession Tax Act. They relied upon case of B. S. Raut. In the alternative they also sought declaration that Section 27A as amended by Maharashtra Act 12 of 1992 excluding civilians employed in ordnance factories from exemption was liable to be declared ultra vires in view of Article 14 of Constitution of India. It is necessary to note here that by Maharashtra Act No 9 of 1997, Clause (a-1) was added after existing clause(a) and it read -- "(a-1) persons on the establishment of Defence Ordnance Factories in any part of the State." This amendment was made effective from 1st October, 1996. However, by Maharashtra Act No 28 of 2000, this Clause (a-1) came to be deleted. The Division Bench also considered the argument that even in absence of said Clause (a-1), employees of ordnance factories were entitled to exemption under Section 27A(a). It has considered Section 3(ix) which defines the phrase "the Forces" and Section 3(xxi) which defines "regular Army" of Army Act and dismissed the claim and challenge before it holding that the judgment in case of B. S. Raut no longer governed the situation in view of amendment to Section 27A of Profession Tax Act.

B. Points which arose for determination there are framed in paragraph 9 of said judgment and the same are:

(1) Whether persons on the establishment of Defence Ordnance Factories in any part of the State are exempted from the provisions of the Act?

(2) Whether civil defence personnel working on the establishment of Defence Ordnance Factories of the State are members of Forces as defined in the Army Act, 1950?

(3) Whether the judgment of the Division Bench of this Court in the case of B.S. Raut v. State of Maharashtra 1992 Mh.L.J. 360 continues to hold the field even after amendment to Section 27A of the Act by virtue of Maharashtra Act No. 12 of 1992?

(4) Whether Section 27A of the Act purporting to exclude persons like petitioners is ultra vires to the provision of Article 14 of the Constitution of India ?

Answers to points 3 and 4 are important in present matters. However, point No. 4 will be considered little latter. The Division Bench has considered relevant provisions of Profession Tax Act with amendments and also provisions of Army Act mentioned above and in fact in paragraph 15 unamended Section 27A(a) has been compared with amended Section 27A(a) and after referring to Section 3(xi) and (xxi), finding has been delivered that the petitioners do not fall in any of the part of definition and therefore they are not members of Forces under Section 3(xi) of Army Act, 1950. The following observations in paragraph 16 and 17 of judgment are important:

16. It is an established principle of interpretation that when the amending Act alters the language of the statute, the alteration must be taken to have been made deliberately. When the legislatures substitute certain provisions in the Act for those which existed earlier, it must be taken to have done so with intention and motive. On the dissection of the above various provisions, we are of the confirmed view that the petitioners, who are the employees or persons on the establishment of defence Ordnance Factories in the State cannot be equated with or cannot be grouped with the members of the Forces as referred to under Clause (a) of Section 27A of the Act. The petitioners being the persons on the establishment of Defence Ordnance Factories form class by themselves. They are distinct from that members of the forces. They cannot be included in the class of persons known as "members of Forces" as defined under Section 3(xi) of the Army Act, 1950.

Point No. 3:

17. The substratum of the very basis of the judgment of the Division Bench delivered in the case of B.S. Raut v. State of Maharashtra 1992 Mh.LJ. 360 does not exist as on date, as such, the said judgment is no longer a good law and it cannot be allowed to hold the field in the light of the existing provisions of the Act. A statute after its amendment is to be redd and construed with reference to the new provisions and not with reference to the provisions which originally existed. It is needless to mention that when legislature intended by any particular amendment to make substantial changes in the existing statute, it is impossible to arrive at a conclusion without noticing the change suggested or intended and after taking into account the changes made by the legislature, it is not possible for us to hold that the said judgment still holds the field. In view of the amendment to Section 27A of the Act, the said judgment cannot be applied to the facts of the present case. It is no longer a good law.

C. The above observations are sufficient to reject the arguments about the incorrect approach to the issue because employees of ordnance factories are found to be not members of Forces only by reading the provisions of Army Act, 1950 and amendment of Section 27A(a) of Profession Tax Act, has not been used for that purpose. On the contrary, the observations in paragraphs 16 and 17 reproduced above clearly show that the criterion fixed for exemption under Section 27A(a) has itself been found to have undergone a drastic change. In view of arguments addressed before us, the issue needs to be answered in more details and that is being done after considering the other Division Bench judgment.

7. Indian Air Force Employees Union v. State of Maharashtra and Ors. is the other judgment on which respondents have relied. This judgment also considers judgment in case of B. S. Raut (supra) and also judgment in case of Pratiraksha Mazdoor Sangha (supra). The petitioner/appellant was the registered trade union representing grade C and D (equivalent to class III and IV) civilian employees working in 25 -- Equipment Depot, Air Force Station, South Deolali and consisted of carpenters, Clerks, Motor drivers, Painters, Supervisors, Sweepers, Watchman, Cook etc. They also claimed exemption from payment of profession tax in view of Section 27A(a) of Profession Tax Act. They also relied upon judgment in case of B. S. Raut (supra). This judgment considers the earlier two Division Bench judgments i.e. B. S. Raut and Pratiraksha Mazdoor Sangha as also provisions of Section 27A of Profession Tax Act and having noticed the difference made by Maharashtra Amendment Act 12 of 1991, in paragraph 17 finding has been given that grade C and D Civilian Employees working in 25 Equipment Depot Air Force Station are not covered by definition of "Members of the Forces" as required by Clause (a) of said Section 27A. It has been expressly observed that in view of change in law noticed in Pratiraksha Mazdoor Sangha case, reliance upon earlier judgment in case of B. 5. Raut was misplaced. It is also recorded that decision in Pratiraksha Mazdoor Sangha case is not rendered per incuriam. Again therefore it cannot be said that Division Bench here applied incorrect principles to find out whether grade C and D civilians were entitled to exemption or not. The arguments of petitioners before us in this respect are clearly mistaken.

8. Petitioners have contended that both these latter judgments of Division Benches of this Court are erroneous because the express finding given by Division Bench in case of B. S. Raut which is based upon appreciation of facts and also judgments of Hon'ble Apex Court has not been properly evaluated. The contention is once petitioners are found members of Armed Forces, said finding cannot be affected by any amendment in any other law. Both sides have argued either in favour or against this proposition by making reference to various portions of the latter two judgments of Division Benches. We have already reproduced above the law applied by both these Division Benches but in view of these arguments, we are required to comment upon the difference effected by Maharashtra Amendment Act No. 12 of 1991 vis-a-vis position expounded in B. S. Raut (supra). The relevant portion of Section 27A(a), unamended as also amended, is also reproduced above.

A. Old Clause (a) exempted members of armed forces to whom provisions of Army Act 1950, Air Force Act, 1950 or Navy Act, 1957 applied. This requirement or ingredient has been construed in case of B.S. Raut by Division Bench. The Division Bench was aware that it was interpreting an exemption clause in taxing statute and has found that it deserved liberal interpretation. It also found that in case of doubt, construction favouring the taxpayer was to be adopted. It noticed that the term "members of armed forces of the Union" was not defined anywhere. It is in this background that the Division Bench relied upon case of Ous Kutilingal Achudan Nair v. Union of India reported at . The employees considered by Hon'ble Apex Court were Cooks, Chowkidars, Laskara, Barbers Carpenters, Mechanics, Bookmakers, Tailors etc. All these were unenrolled noncombatants governed by Civil Service Rules. Section 21 of Army Act, 1950 enables Central Government to modify certain fundamental rights in their application to persons subject to Army Act. These employees contended that their right to form union could not be curtailed under Section 21 because they were not members of Armed Forces as contemplated under Article 33 of Constitution of India. The Union of India opposed the stand and while appreciating this controversy, Hon'ble Apex Court found that Section 2(1) of Army Act enumerating persons subject to operation of said Act, vide its Sub-clause (i) also included "persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany in the portion of the regular army." Hon'ble Apex Court found that though employees before it were noncombatants and governed by Civil Service regulations, they were integral to the armed forces and answered description of "members of the Armed Forces" within the contemplation of Article 33. Central Government was therefore found to be competent to make Rules restricting or curtailing their fundamental right under Article 19(1)(c) of Constitution. In , R. Viswan v. Union of India , one of the questions involved was whether Central Government Notifications Nos. SRO 329 and 330 dated 23rd September, 1960 making inter alia Section 21 of the Army Act, 1950 and Chapter IV of the Army Rules 1954, applicable to the General Reserve Engineering Force are ultra vires that Article since the General Reserve Engineering Force is neither an Armed Force nor a Force charged with the maintenance of public order. By placing reliance upon abovereferred case of Ous Kutilingal Achudan Nair (supra), it has been answered in affirmative holding that said Force was integral part of Armed Forces. Again it is obvious that question has been answered in the light of Section 2(1)(i) of Army Act. In Gopal Upadhyay v. Union of India i.e. the question was whether civilian Employees like carpenters, tailors, bookmakers, gardeners, sweepers, cooks, messengers etc. in the Army Medical Corps, Lucknow were entitled to form trade union. Again, the question has been answered in the light of Section 2(1)(i) of Army Act and it has been held that such "Camp followers" fall within Section 2(1)(i) and earlier judgment in case of Ous Kutilingal Achudan Nair (supra) has been relied upon. It may be here conveniently pointed out that provisions of Section 2 of The Air Force Act, 1950 are identical and pari materia with Section 2 of Army Act, 1950. A residuary provision covering persons not otherwise subject to Air Force Law similar to Section 2(1)(i) of Army Act also appears in Air Force Act as Section 2(d). It is therefore obvious that the Division Bench in case of B. S. Raut applied same law to Writ Petition filed before it by present petitioners in W. P. 1950 of 1991.

B. The norm examined in case of B. S. Raut has been replaced by another norm by Maharashtra Act 12 of 1991 by substituting new Sub-clause (a) in Section 27A of Profession Tax Act. The new norm for exemption in fact requires person claiming exemption to be member of the Forces as defined in Army Act, 1950 or Air Force Act, 1950 or of Indian Navy as defined in Navy Act, 1957. The criterion is therefore now more specific and does not leave the scope for any doubt and therefore for any wide or liberal interpretation. Old Sub-clause (a) covered all members to whom these three acts applied and therefore, a provision like Section 2(1)(i) of Army Act or Section 2(d) of Air Force Act could be reached and even camp followers were found to be covered and eligible for exemption. But the amended Sub-clause (a) points out that the requirement stands shifted to a person being member of the Forces. The Force is also a technical term which has been defined in Army Act and Air Force Act. For the purposes of Army Act it is "regular army" or its part . The phrase "regular Army" is again defined in Section 3(xxi) of Army Act. Clause (xi) of Section 3 defines "the Forces ". These provisions are as under:

Section 3(xi) "the Forces" means the regular Army, Navy and Air Force or any part of any one or more of them.

Section 3(xxi) "regular Army" means officers, junior commissioned officers, warrant officers, non-commissioned officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise, are liable to render continuously for a term military service to the Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army when called out on permanent service.

Thus, in amended Sub-clause (a) exemption is available to member of the "regular Army". Section 2(1)(i) which makes persons not otherwise subject to military law also subject to it, itself shows that it maintains distinction between such persons i.e. camp followers and regular Army. Perusal of Section 2(2) of Army Act, 1950 shows that it also maintains this distinction and stipulates that all persons subject to said Act under Clauses (a) to (g) of Sub-section (1) continue to remain so subjected until they are duly retired, discharged, released, removed, dismissed or cashiered from service. Camp followers covered under Section 2(1)(i) are excluded from it. Thus, by amending Sub-clause (a) of Section 27A of Profession Tax Act, State Government has now restricted the exemption only to a portion known as Regular Army. In view of this express change in criterion, it is apparent that an identifiable and specific group is now expressly prescribed by legislature as eligible for exemption and hence, there is no scope now to take recourse to liberal or wide interpretation as has been done in case of B. S. Raut. As has been observed by later Division Bench in case of Pratiraksha Mazdoor Sangha (supra) the very substratum has undergone change and consequently application of mind adopted in case of B. S. Raut can no longer be resorted to. The Air Force Act 1950 also define phrase "the Forces" in its Section 4(xix) in same words as that of Section 3(xi) of Army Act. Section 4(iv) defines "Air Force" and said definition is again pari materia with definition of "regular Army" in Army Act. Section 2(d) of Air Force Act also maintains above distinction between camp followers and Air Force. Its Section 3 is pari materia provision with Section 2(2) of Army Act. It is therefore clear that by substituting Sub-clause (a) in Section 27A of Profession Tax Act, only members of Air Force are now eligible to claim exemption.

New Sub-clause (a) of Section 27A uses the phrase "members of Indian Navy as defined in the Navy Act, 1957". In Section 3(10), "Indian Navy" has been defined to mean the regular naval forces raised and maintained by the Central Government. Section 5 enables Central Government to raise and maintain a regular naval force and also reserve and auxiliaries naval force. Therefore again, by substituting Sub-clause (a) in Section 27A State Legislature has expressed its unequivocal intention to confer benefit of exemption only upon a smaller and specified group. However, no controversy involving any naval unit is before us for consideration in present matter and hence, we find it not proper to dwell more in this respect.

C. The discussion above leads us to conclude that by substituting old Sub-clause (a), State Legislature has now granted exemption only to a particular class from amongst the persons to whom the provisions of Army Act, 1950, the Air Force Act, 1950 or the Navy Act 1957 apply. The said class is ascertainable and hence, there can be no doubt about its intention and interpretation of sub-clause(a). The language employed shows use of letter "f in capital in word "Forces" in new Sub-clause (a) and also an intention to pinpoint a particular class of members by using the words "as defined in". This change in language is striking when it is contradicted with earlier rather loose and wide language employed in old Sub-clause (a) of Section 27A of Profession Tax Act. The earlier exercises undertaken by Division Bench in case of B. S. Raut was in totally different background and hence, in the absence of any indication as to the identity of persons for whom the benefit of exemption was to be extended, the then Division Bench used a wider provision in the interest of taxpayer by adopting liberal approach. However, now definite indicators are available in new Sub-clause (a) of Section 27A of Profession Tax Act and hence there is no question of adopting such liberal interpretation or of looking to a wider provision in the shape of Section 2(1)(i) of Army Act or of Section 2(d) of Air Force Act. It is therefore obvious that in view of amended Sub-clause (a), law as laid down in case of B. S. Raut cannot now govern the situation. It is further apparent that because of change in emphasis mentioned above, the theory of petitioners being integral part of "regular Army" or of "Air Force" is no longer valid. The various judgments of Hon'ble Apex Court (quoted supra) also therefore cannot be looked into because the scrutiny therein is in totally different circumstances and from totally different point of view. We do not see any reason to differ with Pratiraksha Mazdoor Sangha, Jalgaon and Indian Air Force Employees Union (supra). On the contrary, the issue is clinched by these two Division Bench judgments delivered after amendment.

9. The argument about validity of substitution/amendment now needs to be scrutinised. It is the contention of petitioners that all persons subject to provisions of Army Act, 1950 or Air Force Act, 1950 in terms of Section 2 respectively thereof are identically situated and they are exposed to same risks, obligations and suffer same disabilities. It is their contention that therefore State Legislature cannot by substituting Sub-clause (a) in Section 27A of Profession Tax Act classify them between persons eligible for exemption and persons not eligible for exemption. According to them, there is no basis for this classification and such basis, if any, has no connection with the object sought to be achieved. It is to be noted that the Division Bench while deciding Pratiraksha Mazdoor Sangha (supra) case has rejected the contention that exclusion of persons like petitioners from Section 27A was ultra vires Article 14 of Constitution of India. The ground raised by petitioners there is mentioned in paragraph 7 of report and petitioners had contended that amendment created two different classes amongst persons rendering defence services without any intelligible criterion. Point No. 4 was framed by Division Bench in this respect and it is answered in paragraph 18 of judgment. Division Bench found that Article 14 permits reasonable classification and it has to be founded on intelligible differentia which separates persons grouped together from others who are left out and such differentia must have a rational nexus with the object to be achieved. It has also relied upon judgment of Hon'ble Apex Court in case of Malwa Bus Service Private Ltd. v. State of Punjab reported at to find that unless the fiscal statute is manifestly discriminatory, Court cannot strike it down as discriminatory. The said findings in paragraph 18 in case of Pratiraksha Mazdoor Sangha (supra) are complete answer to the arguments of petitioners. It is to be noted that Section 2(2) read with Section 2(1)(i) of Army Act, 1950 itself make distinction between petitioners in Writ Petition 1449/1991 and "regular Army". Similarly Section 3 read with Section 2(d) of Air Force Act, 1950 also makes same distinction between petitioners in Writ Petition 1950/1991 and "Air Force". The State Legislature has utilised this distinction only and has granted benefit of exemption to members of the Forces and has denied said exemption to persons subjected to these Acts because of Section 2(1)(i) of Army Act, 1950 or Section 2(d) of Air Force Act, 1950. The petitioners are not situated identically with "members of Force as defined in Army Act or Air Force Act". The classification for the purposes of grant of exemption is therefore based upon an existing differentia and it also has nexus with the object of Sub-clause (a). Decision to grant exemption is prerogative of State Legislature and to grant it to a particular class is also within its domain so long as it does not violate Article 14. There is nothing wrong with Legislature granting exemption only to members of the Force as specified in amended Section 27A(a) of Profession Tax Act. There is no unreasonable or arbitrary classification violating Article 14 of Constitution of India. The argument is therefore liable to be rejected.

10. We therefore find no merit in these Writ Petitions. The same are accordingly dismissed with no orders to costs. Rule accordingly in both matters.