'.

STATE OF MADHYA PRADESH

STATE OF MAHARASHTRA & ORS.

January 5, 1977

[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]

Code of Civil Procedure, Order 2 Rule 2, bar under, when operates- Whether applicable when omission to sue has occurred by lack of knowledge or absence of right to claim.

Limitation Act, s. 2(1), application to claim for salary-Whether effected by supension or dismissal order-Whether salary accrues while such orders remain operative.

Dismissing the appeal, the Court, HELD : ( l) A litigant will be barred under Order 2 Rule 2 of the C.P.C. only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief.

A right which he does not know that he possesses or a right which is not in existence at the time of the first suit is not a "portion of his claim" within the meaning of Order 2 Rule 2 of the C.P .C. The crux of the matter is presence or Jack of awareness of the right at the time of first suit.

[561D-E, 562-B]

Amant Bibi v. Imdad Hussai1' 15 I.A. 106 at 112, applied.

Om Prakash Gupta v. State of Uttar Pradesh [1955] 2 S.C.R. 391, distinguished.

High Commissioner for India v. I. M. Lall 75 I.A. 225; Provim; e of Punjab

The bar under Order 2 Rule 2 of the C P .C. cannot operate when the litigant's cause of action in an earlier suit is totally different from the cause of actio!l in a later suit.

[562-C]

Pawana Reena Saminathan v. Palaniappa 41 I.A. 142, applied.

(2) During the period of suspension the plaintiff was not entitled to salary under Fundamental Rule 53.

The cause of action for his salary for such period did not accrue until he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal. [563C-D]

(3) Under Fundamental Rule 52 the pay and alfowance of , a Government servant who is dismissed or removed from service, cease from the date of his dismissal or removal. Therefore, there would be no question of salary . accruing or accruing due so long as orders of suspension and dismissal stand. [564

B-C] Klzem Chand v. Uriion of India, (1963] Supp. 1 S.C.R. 229, followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1870 of 1968.

(From the Judgment and Decree dated 6-3-1967 of the Bombay High Court (Nagpur Bench) in Appeal No. 101/59.)

I. N. Shroff and H. S. Parihar, for the appellant.

S. B. Wad and M. N. Shroff, for respondent No. 1.

A A. S. Bobde, G. L.'Sanghi, V. K. Sanghi, Miss Rama Gupta and M. S. Gupta, for respondent No. 2. .

The Judgment of the Court was delivered by

RAY, C.J.-This appeal is by certificate from the judgment dated 6 March, 1967 of the High Court of Bombay.

T?e appellant is the State of Madhya Pradesh.

The first respondent 1s the State of Maharashtra. The second respondent is the plaintiff-decree holder.

They will be referred to, for short, as Madhya Pradesh, Maharashtra and the plaintilI.

The trial court passed a decree in favour of the plaintiff. It was declared that the order dated 9 January, 1954 of the suspension of the plaintiff as well as the order of removal of the plaintiff from service passed on 2 February 1956 is illegal, void and inoperative.

The further declaration was thoat the plaintiff shall be deemed to be continuing in service from 16 September, 1943.

A sum of Rs. 64, 588-2-0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to pay the same with interest.

Both Madhya Pradesh and Maharashtra were ordered to pay costs to the plaintiff.

Maharashtra preferred an appeal against the decree.

Madhya Pradesh preferred objections against the order of costs.

The High Court confirmed the decree and the declarations.

The High Court however modified the decree 'alld held Madhya Pradesh liable.

The claim of the plaintiff against Maharashtra was dismissed.

The plaintiff was appointed Assistant Medical Officer in 1938.

In 1939 he was appointed officiating Assistant Surgeon. He was posted at Elichpur (now Achalpur).

Jn 1942 he was transferred to Hoshangabad.

In 1943 he applied for medical leave for four months.

The Civil Surgeon recommended leave for six weeks.

The plaintiff again applied for leave in the month of August, 1943.

The le<tve was sanctioned by the Civil Surgeon.

The plaintiff then requested the Civil Surgeon in anticipation of sanction of leave by the Government for relief because he was not keeping good health.

The Civil Surgeon then reported to the Government that the plaintiff absented himself from duty from 10 August, 1943 without leave.

The Government sanctioned leave for six weeks.

On 28 September, 1943 the pfaintiff was suspended by an order with effect from 16 September, 1943.

The plaintiff was served with a notice dated 30 September, 1943 to show cause why he should not be dismissed from service.

Four charges were levelled against the plaintiff.

First, that he refused to come to duty at the time of epidemic in August, 1943; Second, that he left his station without permission.

Third, that he refused to attend the Departmental enquiry when ordered to do so.

Fourth, that he wilfully and delibei\ltely acted in total disregard of orders and absented himself from duty though he was declared to be fit to resume duty.

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The Enquiry Officer by report dated 22 February, 1945 gave his findings that the first charge was not proved; that the second charge was proved but mitigated and the third and the fourth charges were technically proved.

I On 21 June, 1945 the plaintiff was asked to show cause why he should not be dismissed or reduced in rank.

On 18 August, 1945 the Government of Central Provinces and Berar intimated to the plaintiff that the Government accepted the report of the Enquiry Officer and proposed to remove the plaintiff from service with effect from the date of the passing of the final order.

By order dated 7 ovem ber, 1945 the. Provincial Government passed an order removmg the plaintiff from service with effect from that date.

On 10 May, 1945 the plaintiff filed an appeal to the Governor but it was dismissed.

On 6 January, 1949 the plaintiff filed a suit in the court of the Second Additional District Judge, Nagpur.

By judgment dated . 31 August, 1953 the District Judge held that the suspension order and the order of dismissal were illegal and declared the plaintiff to be deemed to co_ntinue in service.

The plaintiff was thereafter reinstated in service as Assistant Surgeon on 12 December, 1953.

He was posted at Rays Hospital, Nagpur on 15 September, 1953.

On 13 January, 1954 the plaintiff was 'again suspended from service under order dated 9 January, 1954. The plaintiff handed over charge on 13 January, 1954.

On 1 February 1954 the plaintiff was served with a notice dated 29 Janwary, 1954 to show cause why he should not be removed from service.

The former report of the Enquiry Officer dated 22 February, 1945 was also given to the plaintiff.

On 2 February, 1956 the plaintiff was removed from service.

He appealed to the Governor.

The appeal was dismissed.

On 6 October, 1956 the plaintiff filed this suit in the court of the Joint Civil Judge, Nagpur •against Madhya Pradesh and Maharashtra.

The plaintiff asked for a declaration that the order dated 9 January, 1<' 1954 suspending the plaintiff as well as the order dated 2 February, 1956 is illegal.

The plaintiff asked for •a declaration that he is deemed to continue in service. He claimed recovery of Rs. 64,588-2-0 as arrears of salary.

The plaintiff in his suit alleged that both Maharashtra and Madhya Pradesh are "liable to make good the plaintiff's claim the liability for which is not exclusive but joint and several".

The alternative case of the pla'intiff in the suit was that "if it will be held that the State of Maharashtra and not the State of Madhya Pradesh is liable or viceversa the p1'aintiff will claim the decree against such State as would be liable".

The Civil Judge passed the decree on 25 April 1959 declaring thei order dated 9 January, 1954 suspending the plaintiff as well as the order dated 2 February, 1956 removing the plaintiff from service as µlegal, void and inoperative.

The decree further stated that the

plain~ .was deemed to continue in service from 16 September, 1943.

T_he <;1vil Judge passed a decree against the State ofBombay with the drrect10n to pay Rs. 64,588-2-0 with interest at 6 per cent. .. B.oth Maharashtra and Madhya Pradesh went up in appeal.

The D1v1S1on Bench of the Bombay High Court placed the matter before a larger Bench and referred these two questions for the decision of the Larger Bench.

(1) Whether in the events that have happened which of these two States of Maharashtra and Madhya Pradesh can be compelled to take the plaintiff in service. (2) Whether both or only one of the two States can be made liable for the payment of arrears of salary of the pl'aintiff, if so, which State is liable.

The larger Bench of the Bombay High Court said that the State of Madhya Pradesh is constituted after the States Reorganisation Act referred to as the Act came into force on 1 November, 1956 is the principal successor State. of the former State of Madhya Pradesh.

The High Court further said that the State of Maharashtra is the successor State of the former J\'Iadhya Pradesh inasmuch as certain territories, namely, Vidharbha which formed part of the former State of Madhya Pradesh became a part of t'Je new State of Maharashtra.

The High Court then referred to clause

(B) of section 88 of the Act and said that Maharashtra would be liable for the claim of the pl'aintiff only if the cause of action has arisen in its entirety within the territories which formed part of Maharashtra, otherwise initial liability for the plaintiff's claim will be on the principal successor State Madhya Pradesh under section 88(c) of the Act.

The larger Bench therefore referred the matter to the Division Bench to consider the question whether the cause of action for the plaintiff's claim arose in its entirety within the territories which formed part of the Maharashtra.

The High Court held that under section 88(c) of the Act Madhya Pradesh is responsible for the claim of the plaintiff.

The High Court further held that the plaintiff was appointed under conditions of service Prescribed for him and accepted by him, and, therefore, the plaintiff's claim for arrears of salary would be governed by section 87 of the Act and not by section 88 of the Act.

The High Court said that the plaintiff's claim for arrears of salary and allowance was based on contract, either express or implied, on the basis of the terms of appointment and the conditions of service prescribed by the Government and accepted by the plaintiff.

The High Court also said thut at the time of the plaintiff's appointment in 1939 the plaintiff's services were available for the then enfire Province of Central Provinces and Berar and not only for those districts which formed part of Madhya Pradesh.

Therefore; the High Court said that section 87 (b) of the Act would not apply.

Under the residuary clause of section 87(c) of the Act Madhya Pradesh would be liable as the principal successor State because the purpose of the contract were as from the aopointed day not exclusively purposes of any of the two successor States.

Madhya Pradesh raised three contentions.

First, the plaintiff did not claim salary and allowances for the period subsequent to 15 September, 1943 in the suit filed by the plaintiff in 1949 and was

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therefore by reason of the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure precluded from claiming the salary and allowances for the period of 16 September, 1943 to 31 August, 1953 in the second suit which was filed on 6 October, 1956. Second, the

plaintiff's claim in the second suit for salary and allowances prior to 6 October, 1953 would be barred by the reason of Article 102 of the Limitation Act 1908. Third, the liability, if any, would be under section 88 (b) of the Act of Maharashtra which succeeded the State of Madhya Pradesh on 1 November, 1956 in so far as Nagpur District of the then existing State of Madhya Pradesh was concerned. Reference was made to section 8 ( 1) ( c) of the Act for the purpose. Further it is said by -the appellant that on or after 1 November, 1956 the plaintiff could continue the suit only against the State of . Bombay later known as State of Maharashtra and not against the State of Madhya Pradesh as constituted on or after 1 November, 1956.

Maharashtra contended that the liability was of Madhya Pradesh because of the provisions contained in section 88 ( c) of the Act. It was said on behalf of Maharashtra that the plaintiff had been appointed to serv'ice in Central Provinces and Berar which became the principal successor State of Madhya Pradesh. The order of removal was also by the existing State which became the principal successor State of Madhya Pradesh.

In order to appreciate the rival contentions reference is necessary to two sections of the Act.

Section 8 7 speaks of liability in the case of contracts.

Broadly stated, the provisions of section 87 of the Act are that where before the appointed day "1 November, 1956" an existing State has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be deemed to have been made in the exercise of the executive power-(a) if there be only one successor States of the State; and (b) if there be two or more successor States and the purposes of the contract are, as from the appointed day, exclusively purposes of any one of them,-of that State; and (c) if there be two or more successor States and the purposes of the contract are, as from that day, not exclusively purposes of any one of them,-of the principal successor State; and all rights and liabilities which have accrued or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilit; es of the existing State be rights or liabilities of the successor State or the principal successor State.

The proviso to section 87 of the Act is that where the Jiab'li'y attaches under clause (c) the initial allocation of rights and liabilities made by this sub-section shall be subject to such financial adjustment as may be agreed upon between all the successor St>ates concerned, or in default of such agreement, as the Central Government may by order direct. ·

Section 88 of the Act nrovides that where before the apoointed day, an existing State is subject to any l; ab; Iitv in renect of an actionable wrongother than breach of contract. that liability shall (a) if there be only one successor State, be a 'liability of that State; (b) if

-----~:.ll!l A•Fl1119' .~

there be two or more succeissor States and the cause of action arose wholly within the territories which as from that day are the territories of one of them, be a liability of that successor State, and ( c) in any other case, be initially a lrabi!ity of the principal successor State, but subject to such financial adjustment as may be agreed upon between all the successor States concerned, or in default of such agreement, as the Central Government may by order direct.

The claim for declaration tlrat the order of suspension as well as the order of dismis:sal was void is in respect of an actionable wrong other than breach of C\l!ltract.

In order to determine as to which of the two States would be lialfe under section 88 of the 1956 Act it has to be found out whether the cause of action arose wholly within the territories of one of the States or arose partly C in the tenitories of one State and partly in the territories ot

thel other.

The departmental enquiry which was alleged to be illegal was held at Hoshangabad which has all along been a part of the State of Madhya Pradesh only.

The final orders which were challenged in the suit were passed at Nagpur which became part of the St!:ite of Bombqy and later on known as Maharashtra.

The plaintiff's cause of action comprises of every fact which is necessary to be D proved.

The plaintiff based his claim with regard to departmental enquiry which was held at Hoshangabad and also with regard to impugned. order p•assed at Nagpur.

The appellant State is the principal snccessor State of the former State of Madhya Pradesh.

Maharashtra was one .of the successor States, like Madhya Pradesh.

Section 88 (a) of the 1956 Act in the present case has no application because it speaks of only one successor State.

Section 88 (b) of the E 1956 Act refers to the State where the cause of action wholly arose within the territories of either of the two successor States.

In the present case, it cannot be said that the cause of action arose wholly within the successor Sl'ate of Maharashtra.

Therefore, the residuary provision contained in section 88(c) of the 1956 Act applies and the liability is of the principal successor State, namely, Madhya Pradesh.

The High Court was right in arriving at the conclusion that F Madhya Pradesh is liable.

The plaintiff's suit in 1949 was only for setting aside the impugned orders.

The plaintiff did not ask for relief for arrears of salary or the obvious reason that the plaintiff in the l 949 suit asked for settmg aside of the impugned orders and an order that the phintiff was deemed to be continuing in service.

The plaintiff proceeded on the existing law as it stood by reason of the decision in High Commissioner for India v. I. M. Lall(').

The Judicial Committee in that case held that a civil servant was not entitled to sue the State for recovering arrears of salary and pay.

Counsel for Madhya Pradesh rdied .on the decision in Province of Punjab v. Pandit Tara Chand 0 which held that a public servant had a right to bring a suit for arrears of pay.

The decision of the Judica! Comm::tee in Lall's case. (supra~ takes a contrary view to the dec1s1on of the Federal Court m Pandit

(I) 75 T.A. 225.

(2) [1947] F.C.R. 89.

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Tara Clumd's case (supra). lt it true that the decision of the Federal Court in Pandit Tara Chand's case (supra) was not brought to the notice of the Privy Council.

Under section 208 of the Government of India Act 1935 the law declared liy the Judgment of the Privy Council had to be followed by all the Courts includmg the Federal Court.

Therefore, the earlier decision of the Federal Court though not expressly overruled by the Judicial Committee must be deemed to have overruled by implication by the decision of the Judicial Committee in La/l's case (supra).

This Court in State of B:i/iar v. Abdul Majid(') stated that a Government servant could ask for arrears of salary.

Counsel for Madhya Pradesh said that the decision of this Court in Abdul Majid's case (supra) deelared what the existing law has been, and, therefore, the plaintiff could not contend that it was not open to him to ask for arrears of salary in the 1949 suit.

It is in that background that Madhya Pradesh contends that the plaintiff not having asked for relief under Order 2 Rule 2 of the Code of Civil Procedure would not be entitled to claim salary in the 1956 suit.

The contention of Madhya Pradesh cannot be accepted.

The plaintiff will be barred under Order 2 Rule 2 of the Code of Civil Procedure only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief.

It will not be correct to say that while the decision of the Judicial Committee in Lall' s case (supra) was holding the field the plaintiff could be said to know that he was yet entitled to make a claim for arrears of salary.

On the contrary, it will be correct to say that he knew that he was not entitled to make such a claim.

If at the date of the former suit the plaintiff is not a ware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit.

The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit.

A right which a litigant does not know that he possesses or a right which is not in existence at the lime of the first suit can hardly be regarded as a "portion of his claim" within the meaning of Order 2 Rule 2 of the Code of Civil Procedure.

See Amant Bibi v. lmdad Husa'n( 2 ). The crux of the matter is presence or lack of awareness of the right at the time of first suit.

This Court in Om Prakash Gupta v. State of Uttnr Pradesh( 3 ) considered the prayer for refund of court fees on a claim which was abandoned.

The plaintiff in that case asked for a declaration that the order of dismissal was void and also asked for arrears of salary or in the alternative damages for wrongful dismissal.

In view of the decision in Lall's case (supra) the plain' in that case was amended by delet; ng the claim for arrears of salarv anrl Hl<o for 1famHizes.

The plaintiff thereupon oraved for refund of the court fees which had been paid on arrears of salary for damages.

Both the trial Court

(I) [l 955] 1 S.C.R. 286.

(2) 15 I.A. 106, 112.

and the High Court rejected the claim for refund of court fees This Court also upheld the same view.

The reason given by th~ Court was that at the time the suit was instituted the law as it then stood permitted such a claim to be made.

The decision of the Privy Council made it clear that no such claim could be made.

The decision of the Privy Council clarifying the position was held by this Court not to be a ground for refund of court fee which was paid in accordance with law as it then stood.

The appellant Madhya Pradesh is, therefore, not right in contending that the plaintiff is barred by provisions contained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit.

The plaintiff could not have asked for arrears of salary on the law as it then stood.

The plaintiff did not know of . or possess any such right.

The plaintiff, therefore, cannot be said to have omitted to sue for any right.

Another reason why the bar under Order 2 Rule 2 of the Code of Civil Pt'ocednre cannot operate is that the plaintiff's cause of action in the 1956 suit is totally different from the cause of action in the 1949 suit.

See Pavana Reena Saminathan v. Palaniappa(').

This Court in Jai Chand Sawhney v. Union of India (') held that in a suit for setting aside the order of dismissal and for arrears of salary a claim for salary for the period prior to three years of the suit would be barred. The reason given is that when the order of dismissal is set aside the Government servant is deemed to be in Fcrvice throughout the period during which the order of dismissal remains operative.

Once an order of dismissal is declared bad it is held to be bad from the date of dismissal and salary would be due from the date when the dismissal order was bad.

The same view has been taken by this Court in Sakal Dean Sahai Srivastava v. Union of lndia( 3 ). In that case the plaintiff filed a suit on 27 November, 1962 for a declaration that from 1 July, 1949 the date of illegal reversion up to 30 September, 1959 the date of his retirement he was a railway employee.

Relying on the decision of this Court in Jai Chand Sawhney's case and Sakal Deep's case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years' salary.

The present case is not one of setting aside an order of dism; ssal simpliciter.

When the plaintiff filed a suit in 1949 he G could not ask for arrears of salary.

Pursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 12 December, 1953.

Three features are to be borne in mind in appreciating the plaintiff's case from the point of view of limitation. First the plaintiff became entitled to salary for the period 16 September, 1943 up to the date of reinstatement on 12 December, 1953, only when pursuant to the decree dated 30 August, 1953 there was actual reinstatement H of the plaintiff on 12 December, 1953.

Second, the plaintiff was

(1) 41 LA. 142. (2)

[1970] S.C.R. 222.

c) [19741 2 S.C.R 485.

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again suspended on 19 January, 1954 and was dismissed on 23 February 1956.

The Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till bis reinstatement on 12 December, 1953 he was not entitled to salary.

Again on 29 January, 1956 the Madhya Pradesh Government decided under Fundamental Rule 54(iii) that during the period of suspension from 16 September 1943 to 12 December 1953 and again from 19 January 1954 to 23 February 1956 he would not be entitled to any payment of allowances.

On these facts two consequences arise in the present appeal.

First, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was reinstated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953.

Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53.

Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fufidamental Rule 54.

Therefore, the plaintiff's cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953.

The plaintiff's salary accrued only when he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal.

The rulings of this Court in Jai Chand Sawhney's case (supra) and Sakal Deep's case (supra) do not apply to the present appeal because there was no aspect of any suspension order remaining operative until the fact of reinstatement pursuant to the decree.

The plaintiff's cause of action for arrears of salary is this. When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plaintiff became entitled to salary which was sus2ended during the period of suspension._ The plaintiff was again suspended from 19 January, 1954 and he was dismissed from service on 23 February, 1956.

Therefore, when the plaintiff filed the suit on 6 October, 1956 his entire claim for salary is founded first on his reinstatement on 12 December, 1953 pursuant to the decree and second on the order of suspension dated 19 January, 1954 and the order of dismissal on 23 February 1956 which the plaintiff challenged as illegal.

The orinal order of suspension on 16 September, 1943 as well as the original dismissal dated 7 November, 1945 was declared to be illegal by the decree dated 30 August, 1953.

Therefore, when the plaintiff was reinstated on 12 December, 1953 it is then that the plaintiff's claim for salary accrued due.

This salary was again suspended from 19 January, 1954.

Dismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension.

The order of suspension does not put an end to his service.

Suspension merely suspends the claim to salary.

During suspension there is suspension allowance.

See Khem Chand v.

Union of

2-112'.SCJ/77

A India(') where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence llowance which is less than his salary. Under Fundamental Rule 52 the pay and allowance of a Government servant who is dismissed or removed from service, cease from the date of_ his dismissal or removal.

Therefore, there would be no question of salary accruing or accruing B due so long as orders of suspension and dismissal stand.

The High Court was correct in the conclusion that the plaintiff's claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside.

For the foregoing reasons the appeal is dismissed.

There will be costs only to the plaintiff respondent to be paid by the State of C Madhya Pradesh.

M .R.

Appeal dismissed.

(I) [1963] Suppl. 1. S.C.R. 229.

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STATE OF MADHYA PRADESH

STATE OF MAHARASHTRA & ORS

January 5, 1977

A. N. RAY, C.J.

M. H. BEG

JASWANT SINGH, JJ.

Code of Civil Procedure

Order 2 Rule 2

Limitation Act

s. 2(1)

Order 2 Rule 2

C.P.C

Order 2 Rule 2

[1955] 2 S.C.R. 391

Order 2 Rule 2

I. N. Shroff

H. S. Parihar

S. B. Wad

M. N. Shroff

A A. S. Bobde

G. L.'Sanghi

V. K. Sanghi

Rama Gupta

M. S. Gupta

RAY

High Court of Bombay

State of Madhya Pradesh

State of Maharashtra

2 February 1956

16 September, 1943

Bombay

Maharashtra

Madhya Pradesh

Hoshangabad

28 September, 1943

30 September, 1943

22 February, 1945

21 June, 1945

18 August, 1945

6 January, 1949

31 August, 1953

12 December, 1953

Rays Hospital, Nagpur

15 September, 1953

13 January, 1954

29 Janwary, 1954

State of Maharashtra

State of Madhya Pradesh

State ofBombay

Bombay High Court

States Reorganisation Act

1 November, 1956

Vidharbha

section 88

section 88(c)

section 88(c)

section 87

section 88

Central Provinces and Berar

section 87

section 87(c)

Order 2 Rule 2

the Code of Civil Procedure

6 October, 1953

Article 102

Limitation Act 1908

section 88

Nagpur District

section 8

State of . Bombay

section 88

Section 8

section 87

section 87

Central Government

Section 88

section 88

Nagpur

Section 88

Section 88

section 88(c)

Lall

[1947] F.C.R. 89

Tara Clumd

Pandit Tara Chand

section 208

Government of India Act 1935

Abdul Majid

Order 2 Rule 2

Order 2 Rule 2

the Code of Civil Procedure

Order 2 Rule 2

the Code of Civil Procedure

Madhya Pradesh

Order 2 Rule 2

Order 2 Rule 2

27 November, 1962

1 July, 1949

Jai Chand Sawhney

Sakal Deep

30 August, 1953

Madhya Pradesh Government

6 October, 1956

28 January, 1956

19 January, 1954

23 February, 1956

7 November, 1945

State of C Madhya Pradesh


MADRAS REFINERIES LTD.

CHIEF CONTROLLING REYE.NUB AUTHORITY, BOARD OF

REVENUE, MADRAS

January 5, 1977

[A. N. RAY, C.J., M. H. BEG AND P. N. SHINGHAL, JJ.]

Indian Stamp Act, 1899-Loan Agreement and Deed of Trust and Mortgage executed on the same day-Payment of stamp duty on which document to be paid-Tests for deciding.

. The app7llant company executed a Loan and Note Purchase Agreement with a f?re1gn bnk. Under that agreement the appellant was to amhorise C the creation and ISsuanoe of secured notes, Series A and B, and the Notes were to be issued under and secured by a Deed of Trust and Mortgage between the Company and the Bank. The Deed of Trust and Mortgage stated that as the appellant was in the process of constructing a refinery for the refining of crude oil and deemed it necessary to boqow money from time to time to finance such construction and to issue its Notes therefor, and to mortgage and charge its properties to secure the payment of such Notes, it executed the Deed of Trust aud Mortgage as Security in accordance with the terms and conditions of Article 2 of the Deed of Trust and Mortgage to secure the due payment of the principal and the premium, if any, and t!; te interest on D the Notes, and of all other monies for the time being :md from time to time owing on• the security of the indenture and on the Notes and the performance by the Company of all of its obligations thereunder. It was also agreed that the Notes shall be secured and shall have the other terms and conditions provided in the agreement and shall be guaranteed by the President of India pursuant to the terms of the Guarantee Agreement. The Guarantee Agreement states that the President of India, as the guarantor, unconditionally guaranteed as primary obligor and not as surety merely, the due and punctual payment E from time to time of the principal as well as interest stated m the Agreement.

The obligations of the guarantor were absolute and unconditional under any and all circumstances and were not be to any extent or in any way discharged, impaired or otherwise affected, except by performance thereof in accordance with the terms thereof. It was also provided that each and every remedy of the Trustee shall be cumulative and shall be in addition to any other remedy given therein or under the mortgage or any of the other collateral or now or hereafter existing at law or in equity or by statute. The Guarantee Agreement was executed on the same day as the Deed of Trust and Mortgage between the F President of India and the foreign bank as a Trustee.

The High Court decided that stamp duty was chargeable on the Trust and Mortgage Deed under Art. 40 (b) of Schedule I to the Act.

In appeal to this Court it was contended that it was the Guarantee Agreement which was the principal and primary security and that the Deed of Trust and Mortgage was a collateral or auxiliary security and as such stamp duty was G pa ya bl e under Art. 40 ( c) and that the Guarantee Agreement was exempt from duty under s. 3 and debentures under Art. 27. ,

Dismissing the Appeal,

HELD : ( 1) It is the real and true meaning of the deed of.

Tst and Mortgage and the Guarantee Agreement which has to be ascertamed Jrrespective of the description given by the parties. [568 El

(2) The Trust and Mortgage Deed was executed before the execution of the Guarantee Agreement though both of them were executed on the same day. It was the Deed of Trust and Mortgage which was the security for the

A loan though the loan was also guaranteed by the President in terms 0£ the Guarantee Agreement.

[568 G-H]

(3) The. terms and conditions of the Guarantee Agreement cannot detract from the basic fact that the Deed of Trust and Mortgage was executed first in point of time and was the principal or the primary security for the loan.

The Deed of Trust and Mortgage was clearly the principal or the primary security and could not be said to be a collateral agreement. [569-H]

( 4) The Deed of Trust clearly stated that the terms "Collateral A, greements" shall mean the Guarantee Agreement and the Undertaking. [570 A-BJ

(5) The Guarantee Agreement was not an instrument of sale, mortgage or settlement and did not fall within the purview of s. 4 (1) of the Act.

(571 iiiF]

(6) There is no justification for the contention that the debentures were the principal instruments and not the Deed of Trust and Mortgage. Tile secured notes were issued under and secured by the Deed of Trust and Mortgage. The notes were issued in consequence of and on the security of the Deed of Trust and Mortgage.

[571 H, 572 A]

CML APPELLATE JURISDICTION: Civil Appeal No. 709 of 1975.

(Appeal by Special Leave from the Judgment and Order dt. 9-10-74 o~ the Madra5 High Court in Referred Oase No. 4 of 1968)

P. Ram Reddy, C. Ramakrishna and A. V. V. Nair, for the Appellant.

V. P. Raman, A. V. Rangam and Miss A. Subhashini, f()[ the Respondent.

The Judgment of the Court was delivered by

SmNGHAL J .-This appeal by speciru leave arises out of the .decision of the Madras High Court dated October 9, 1974, on a reference by the Chief Controlling Revenue-authority under section 57 of the Indian Stamp Act, 1899, hereinafter referred to as the Act.

The Board of Revenue, Madras, which was the Chief Controlling Revenue-authority, initially stated the C'aSe raising the following questions for decision,-

(a)

(b)

Whether the decision of the Board of Revenue that the

instrument relating to the Deed of Trust and Mortgage would attrac• the levy of a Stamp Duty as laid down in Article 40(b) oi Schedule I of the Indian Stamp Act and that the debentures would be exempted from the levy of stamp duty is correct or not; and

WhetheT the claim of the Respondent herein that the stamp duty is payable on the debenture under Article 27(a) and on the Deed of Trust and Mortgage under Article 40(c) is tenable or not?

The High Court directed the Board oi Revenue to refer three additional questions, but u1timately took the view that the additional questions did not really arise in the case.

It answered the first question in

\ •

'). ..

' ' '¥ADRAS RBFINERIBS v. c. c. REV. AUTH. (Shinghal, !.) 567

favour of the Revenue and the second question against the Madras Refineries Limited, hereinafter referred 1x> as the Company.

Tue Company feels aggrieved and has come up in appeal tQ this Court. It will be enough to state those facts which bear on the 'Controversy before us.

The Company was incorporated under the Indian Companies Act, 1956, as a public limited company. An agreement known as the Loan and Note Purchase Agreement was executed between the Company and the First National City Bank and six others on December 20, 1966, by which the Company agreed to authorise the creation and issuance of $ 14,880,000 (U.S.) principal amount of its 5% secured notes Series 'A', and $ 7,440,300 (U.S.) principal amount of its 5f% secured notes Series 'S', 'alld the sale of, or the borrowing to be evidenced by such Notes in accordance with the terms and provisions of the agreement.

The Notes were to be issued under and secured by a Deed of Trust and Mortgage between the Company and the First National City Bank. It was al1o agreed that the Notes shall be secured oand shall have the other terms and provisions provided in the agryement ancj. 'shall be guaranteed by the President of_ India pursuant to tb.e terms of a "Guarantee Agreement", in the prescribed form.

We shall have occasion to refer to the relevant clauses of the Loan and Note Purchase Agreement, the Deed of Trust and Mortgage and the Guarantee Agreement as and when necessary.

The Deed of Trust and Mortgage and the Guarantee Agreement were executed between the President and the First National City Bank (as Tmstee) on June 15, 1967. In the meantime the Company made an application to the Collector under section 31 of the Act for opinion as to the stamp duty with which the Dee!f of Trust and Mortgage wa~. chargeable, and the Collector referred the matter to the Board of Revenue.

The Board decided on June 28, 1967 that the duty W'as chargeable on the Trust and Mortgage Deed under Article 40(b) of Schedule I to the Act.

The Company paid Rs. 37,66,500/- as stamp duty under protest, stating that it would move the Board for a reference of the controversy to the High Court.

The Trust and Mortgage Deed was registered on_June 30, 1967, and the 'A' series debentures were issued the same day.

The Company applied to the Board of Revnue to state the case to the High Court. 'B' series debentures were issued on June 28, 1968. The case was stated on March 28, 1969 and was declded by the impugned decision of the High Court dated October 9, 1974.

It bas been argued by Mr. Ram Reddy for the appellant Company that the Guarantee Agreement was the principal and primary security, and the Deed of Trust and Mortgage was a collateral or auxiliary security and that the stamp duty on the Deed of Trust and Mortgage was payable in accordance with article 40(c). It has been urged that Guarantee Agreement was exempt from duty under sectiqn 3 of the Stamp Act and the debentures were exempt under article 27.

The controversy centre's round the question whether the Guarantee Agreement could be said to be principal or primary security ?

Mr. Ram Reddy has invited our attention to the following passage in Sergeant on Stamp Dudes and Companies Capital Duty, sixth edition, page 6,-

"Leading and principal object-With refereoce to the stamp duty upon instruments generally, it is a well settled rule of law that an instrument must be stamped for its leading and principal object, and the stamp covers everything accessory to that object.

In Limeer Asphalte Paving Co. v. l. R. C. (') it was stated :-

"In order to determine whether any, and if any, what stamp duty is chargeable upon an instrument the legal rule is that the real and true meaning of the instrument is to be ascertained; that the description of it given in the instrument itself by the parties is immaterial, even although they mey have believed that it_s effect and operation was to create a security mentioned in the Stamp Act, and they so declare."

This appears to be a correct statement of the law.

We have therefore to determine the real and true meaning of the Guarantee Agreement and to decide whether it could be said fo be the principal and primaty security.

The Loan and Note Purchase Agreement was executed on December 20, 1966, between the Company and the' first National City Bank and others.

Under that agreement, the Company was to authorise the creation and issuance of secured notes, series A and B, referred to above, and the notes were to be "issued under and secured by the Deed of Trust and Mortgage between the Company and the first National City Bank".

It was then stated in the Loan and Note Purchase Agreement as follows,-

"The Notes shall be dated, shall mature, shall bear interest, shall be payable, shall be secured and shall have scuh other terms and provisions as provided in the Mortgage and shall be guaranteed by the President of India Pursuant to the terms of a Guarantee Agreement (the "Guarantee Agreement) in the form attached hereto as Exhibit 3."

It would thus appear that it was the Deed of Trust and Monge which was the security for the loan, although the loon was also guaranteed by the President in terms of the Guarantee Agreement.

As has been stated, the Guarantee Agreement was made between the President of India and the first National City Bank. It was clearly stated in that agreement that the Fir'st National City B!_!nk executed it "As Trustee under a Deed of Trust and Mortgage dated as June 15, 1967." The Trust and Mortgage Deed was thus executed before

(1) (1872) l.R. 7 Ex. 21.1.

\ t

MADRAS REFINERIES v. c. c. REV. AUTH. (Shinghal, !.) 569

the execution_ of the Guarantee Agreement, even though both of them were executed on the same day, namely, June 15, 1967.

It is true that it has been stated in the Guarantee Agreement that the President of Jndia, . as the guarantor, unconditionally guaranteed

"as primary obligor and not as surety merely, the due and punctual payment from time to time" of the principal as well as the interest etc. stated in the agreement.

And it was for that purpose that the guarantor agreed to "endorse upon each of the Notes at or before the issue and delivery thereof . by the Company its guaranty of the prompt payment of the principal, interest and premium thereof and of the other indebtedness." It is also true that as stated in paragraph 10 of the Guarantee Agreement, the obligations of the guarantor were "absolute and unconditional under any and all circumst'ances, and shall not be to any extent or in any way discharged, impaired or otherwise affected, except by performance thereof in accordance with the terms thereof." We have also noticed the further stipulation that "Each and every remedy of the Trustee shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or under the Mortgage or any of the other collateral or now or hereafter existing at law or in equity -0r by statute."

Mr. Ram Reddy has relied heavily on these averments in the Guarantee Agreement, but they cannot detract from the basic fact that the Deed of Trust and Mortgage was executed first in point of time and was the principal or primary security for the loan according to the terms and conditions of the agreement between the parties. It was that document which constituted the First National City Bank as the Trustee, and enabled it to enter into the Guamntee Agreement with the President, and the President guaranteed the due performance of the obligations undertaken by the Company tl!ereunder.

The Deed of Trust and Mortgage, which was executed between the Company and the First National City Bank as a national banking 1JSSOciation incorporated and existing under te laws of United States of America, stated that as the Company was in the process of constructing a refinery for the refining of crude oil and deemed it necessary to borrow money from time to time to finance such construction and to issue its notes therefor and to "mortgage and charge its properties hereinafter described to secure the payment of such notes" it executed the Deed of Trust and Mortgage as security in accordance witl1 the terms and conditions of Article 2 of the Deed of Trust and Mortgage to secure the due payment of the principal of and the premium, if any, and the interest on the Notes and of all other moneys for the time being and from time to time owing on the security of that Indenture and on the Notes and the performance by the Company of all of its obligations thereunder.

The Deed of Trust and Mortgage was therefore clearly the principal or the primary security and could not be said to be a "collateral agreement".

The parties in fact clearly

A stated in Article I, section 1.01 of the Deed of Trust and Mortgage "':>. • as follows,-

"Collateral Agreements :

The term "Collateral Agreements:' shall mean the Guarantee Agreement and the Undertaking, hereinfater defined."

It was therefore specifically agreed between the parties that the DeecE of Trust and Mortgage was not a collateral agreement.

In all these fucts and circumstances it is futile to contend that the Deed of Trust and Mortgage was not the principal or pfimary security.

As was stated in Article 9 of that document, that security became enforceable in case of any or more "events of default", and it cannot be said that merely bemuse the Guarantee Agreement contained the stipulation that the President, as the Guarantor, unconditionally guaranteed the due and punctual payment of principal and interest etc. "as primary obligor and not as surety merely" that agreement become the principal or the primary security. It is the real and true meaning of the Deed of Trust and Mortgage and the Guarantee Agreement which has to be ascertained, and this leaves no room for doubt that the view taken by the High Court in this respect is correct and does not call for interference. Mr. Ram Reddy relied on some decisions to support his argnmt<nt that the Guarantee Agreement was the security for the loan and was the principal or the primary document, but those cases were decided on different facts and have no real bearing on the controversy before us.

The Guarantee Agreement was executed for and on behalf of the president by his Authorised Representative, and no stamp duty was chargeable for it by virtue of the proviso to section 3 of the Act. That in fact apperu:s to be the reason why counsel for the appellant strenously argued that we should hold it to be the principal instrument, for he has next argued that the case falls within the purview of section 4(1) of the Act and the "Principal instrument" only would be chargeable with the duty prescribed in Schedule I, and deed of any trust and mortgage would be chargeable with a duty of Rs. 4.50 p, instead of the duty prescribed for it in that Schedule.

We find however that there is no merit in this argument also.

Sub-section (1) of section 4 of the Act reads as follows,-

"4. Several instruments used in single transaction of sale, mortgage or settlement.-( 1) Where, in the case of any sale, mortgage or settlement several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in Schedule I, for the conveyance, mortgage or settlement, and each of the other instruments shall be chargeable with a duty of four rupees fifty naye paise instead of the duty (if iany) prescribed for it in that Schedule."

\ •

MA!l!Vr.S 1.1.BFINBRIES V. C. C. REV. AUTH. (Shinthal, J.) 571

It is nobody's case that the Guarantee Agreement was an instrument _ of sale, for it did not transfer the ownership of anything in exchange for a price paid or promised or part-paid and part-promised. It was also not an instrument of mortgage because it is no boly's case that there was any transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan or an existing or a furture debt or the performance of an engagement which could give rise to a pecuniary liability.

The expression "settlement" has been defined in clause

(~4) of section 2 of the Act as follows:-

"Settlement" means any non-testamentary disposition in writing, of movable or immovable property made-

(a) in cons'ideration of marriage,

(b) for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or

( c) for any religious or charitable purpose;

and includes an agreement in writing to make such a disposition and where any such disposition - has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition)."

The term "disposition" has been defined in Strouds Judicial Dictionary as a devise "intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law" and "includes transfer and charge of property".

As the Guarantee Agreement did . not have any such effect, it did not constitute a "settlement" also.

That document was not therefore an instrument of sale, mortgage or settlement and did not fall within the purview of sub-ses:tion (J) of section 4 of the Act.

It was the Deed of Trust and Mortgage which was a "Mortgage deed" within the meaning of clause ( 17) of section 2 of the Act, and it was therefore clearly chargeable with stamp duty at the rate prescribed in article 40 (b) of Schedule I to the Act.

We have examined the other argument of Mr. Ram Reddy that even if the Guarantee Agreement was not the principal instrument, within the meaning of sub-section (1 )' of section 4 of the Act, we should hold that the debentures which were issued by the Company were the principal and primary security, and that the Deed of Trust and Mortgage was the "other instrument" within the meaning of that

sub-section and was chargeable with a duty of Rs. 4.50 p. instead H of the duty prescribed for it in the Schedule.

This argument is also futile for we find that the secured Notes (Series A and B) were issued undor and were secured by the Deed of Trust and Mortgage. &

such, the Notes were issued in consequence and on the security' of the Deed of Trust and Mortgage and there is no justification for the contention that the debentures were the principal instruments, and not the Deed of Trust and Mortguge.

As the High Court has rightly answered both the questions, we find no force in this appeal and it is dismissed with costs.

P.B.R.

Appeal dismissed.

--·

MADRAS REFINERIES LTD

CHIEF CONTROLLING REVENUE AUTHORITY, BOARD OF REVENUE, MADRAS

January 5, 1977

A. N. RAY, C.J.

M. H. BEG

Indian Stamp Act, 1899

Article 2

India

President of India

Art. 40

Schedule I to the Act

Art. 40

s. 3

Art. 27

Guarantee Agreement

s. 4

Ram Reddy

C. Ramakrishna

A. V. V. Nair

V. P. Raman

A. V. Rangam

A. Subhashini

SmNGHAL

section 57

Indian Stamp Act, 1899

Board of Revenue, Madras

Article 40(b)

Schedule I of the Indian Stamp Act

Article 27(a)

Article 40(c)

Madras Refineries Limited

First National City Bank

December 20, 1966

June 15, 1967

section 31

June 28, 1967

Article 40(b)

Schedule I to the Act

30, 1967

June 28, 1968

March 28, 1969

October 9, 1974

Ram Reddy

article 40(c)

article 27

President of Jndia

United States of America

Article 2

section 1

Article 9

section 3

section 4(1)

Schedule I

section 4

Schedule I

S 1

section 2

section 4

section 2

article 40

Schedule I to the Act

section 4


JAGMAL SINGH YADA V

1'.

M. RAMA YY A AND ORS.

January 6, 1977

[Y. V. CHANDRACHUD, P. K. GOSWAMI AND

S. MURTAZA FAZAL ALI, JJ.]

Service maJter-Central Engineering Service, Class II (Recruitment Rules) 1954--Rule 4(c)-Scope of. No determination of quota between direct recruits and promotees 1nade by Government-Direct recruits confirmed earlier than promotees who were seniors-Confirmation if valid-Departmental Promotion Committee presided over by Member of U.P.S.C.-lf amounts to consultation with UPSC.

Rule 3 of the Central Engineering Service Class II (Recruitment Rules) 1954 provides for the recruitment to the service by four methods; (a) by competitive examination; (b) by direct appointment, otherwise than by competitive examination; ( c) by" promotio.n~ and ( d) by transfer. Rule 4 ( c) provides that the method or methods of recruitment and the number of candidates to be recruited by each meth0d shall be determined by the Governmellt. Rule 24 states that recruitment by promotion shall be made by selection on the basis of merit from among permanent Section Officers employed in the Civil Engineering side of the Central Public Works Department.

The writ petitioners before the High Court, who were initially appointed as Section Officers in the Subordinate Engineering Service Class

III (Non- Gazetted), were subsequently appointed as Assistant Engineers in the Central Engineering Class II (Gazetted) between 1958 and 1963 by way of selection as provided under the rules.

Between the years 1961 and 1967, the Government appointed Assistant Engineers some on the basis of a competitive exanrination held by the Union Public Service Commission and others without the competitive examination On various dates some of the direct recruits were confirmed by the Government before the promotees were confirmed.

In a petition under Art. 226 of the Constitution the writ petitioners claimed that though they were appointed as temporary Assistant Engineers much earlier than the direct recruits, the latter were confirmed earlier than themselves.

The High Court partly allowed their writ petition holding that there was no determination of any quota by the Government, since the direct recruits

obtained preference over the writ petitioners in the matter of confirmation and F sniority it directed the Government to adjust the inter-8'1 seniority of such of the petitioners as might be _confirmed after a consideration of their cases in accordance with law.

ln 1!ppeal to this Court, the appellant, who was one of the direct recruits, contended that the recruitment of the writ petitioners was outside the rules particularly because the recruitment was not made "after consultation with the U.P.S.C." as required by r. 23(1).

Dismissing the appeal,

HELD : ( 1) The writ petitioners are entitled to be considered for confirmation in the service in Class II. Since there was no quota rule on the basis of which confirmation had been made and seniority had been fixed, the High Court was right in holding that the Government should consider the case of the

petitioners for confirmation and seniority in accordance with law.

[577 A-B]

(2) The appointment of the writ petitioners was in accordance with r. 23 read with r. 3 (b) of the Rules. Although rule 23 ( 1) provides recruitment by selection after comultation with the U.P.S.C. the particular Departmental Promotio.ri Committee was presided over by a member from the U.P.S.C. The

-~--~

relevant instructions of the ome Ministry stated that recommendations madct by the Departmental Promotion Committees on which the Commission was

represe_n~Q!, Bhould be treated as . recommedations having the approval of the Cosn and that the convention regarding acceptance of the advice of the Comnuss1on would apply.

(580 B-C, D-E)

(3) There is nothing to show that there had been determination of the quo~ by the Government of India under r. 4(c). The Rules did not prescribe therem any quota for recrmtment through the four methods specified in r. 3.

Unde! r. 4(b) o method other than the one specified in r. 3 is permissible for recrmtment.

W1h regard to the sharing of recruitment through the dift'erent method_s, I?ower 1s reserved to the Government under r. 4 ( c) to make certain. determmations. The determination under r. 4 ( c) must be by the Ministry of Home Affairs at the relevant time and if a decision were taken by that Ministry

uder_ the Rules of Business under Art. 77 (3) of the Constitution, the deterlDlnation would be of the Government of India. In the instant case there has been on adherence to the quota rule; on the contrary there has been a flagrant violation of the nile. [583 E-G, 584 DJ

(4) (a) Even for executive instructions, the condition precedent is an appropriate decision by the competent authority and the High Court has not committed any error of law in holding that there was no determination by the Government under r. 4 ( c) to call for interference under Art. 13 6 of the Constitution. [585 B-C]

(b) The factum of determination of seniority was a live issue between the parties in the High Court and there was no error of jurisdiction on the part of the High Court in examining the whole matter thoroughly and in considering the documents filed by the parties. [584 H, 585 A]

The Court pointed out that persons entering Government service have the right to lffiow where they stand with regard to their conditions of service and foture promotion. Since there is no impediment in the way of the Government to make appropriate rules regarding conditions of service, it is a socry plight to find that officers in the same service fight over the years, in courts, having failed to get redress from the Government. When officers are qualified to hold certain posts after recruitment according to rules. and they have put in a number of years in the service to the satisfaction of the authorities, it is impermissible to invoke a recondite rule and call it in aid to deprive a large section of officers of the benefit of their otherwise satisfactory service. The matter may be different when posts in the service are abolished, appointments to the service are transitory or fortuitous or incumbent are found unsuitable for absorption. The history of this service is that teml?orary posts were first created and then after some years they were converted mto permanet posts.

The Government. therefnr0 r"nnnt merely be an on-looker where 1t could rightly claim to be a legitimate arbiter on its own authority and havini? proper regard to :ill just claims. [585 F-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1260/73

G (From the Judgment and Order dt. 5.11.71 of the Delhi High Court in C.W.P. No. 238 of 1970)

Mrs. Shyamala Pappu and Ashok Kumar Grover for the Appellant

M. C. Bhandare, D. N. Mishra and 0. C. Mathur, for Responents Nos. 3 & 4

G. D. Gupta, for Respondent No. 8.

Gobind Das and Girish Chandra for Rei; pondent No. 13

..... . r

S. T. Desai, Urmila Kapoor and Miss Kamlesh Bansal for Respondents Nos. 55, 64, 75, 80 & 89.

The Judgment of the Court was delivered by

GosWAMI, J.-This appeal by special leave is directed against the judgment of tho Full Bench of the High Court of Delhi whereby the

writ petition of the first twelve respondents was partly allowed.

The B appellant, _who jointed service in the cadre of Assistant Engineers in the Central Engineering Service, Class II (Gazetted), w~ respondent No. 51 in the High Court.

Other respondents in the High Court in similar position as that of the appellant have been impleaded here as respondents (16 to 110) and they are supporting the appellant through their counsel Mr. S. T. Destai.

For the sake of convenience the appellant and the respondents 16 to 110 will be described herein C below as direct recruits in the Class II Service.

The Union of India, Engineer-in-Chief, C.P.W.D., and the Union Public Service Commi~

ssion are respectively respondent Nos. 13, 14 and 15 and are representetl by Mr. Gobind Das.

The respondents 1 to 12 (hereinafter to be referred to as the respondents) preferred an application in the High Court under Article D 226 of the Constitution on 16th February, 1970, praying for certain reliefs which the High Court has summarised under the following four heads

(1) That the confirmation of the direct recruits should be held as illegal.

(2) That the respondents and other persons who are similarly situated like them and who had joined the service earlier should be directed to be confirmed first according to the dates of their joining the service as Assistant Engineers after giving weightage in preference to the direct recruits.

(3) That the appointment of 38 specified direct recruits should be held as illegal.

( 4) That the respondents ( 13 to 15 herein) should be ~

directed to reTise the clasfied list published in 1968.

The High Court has also noted that the respondents did not seek to distrub the appointments of the direct recruits already made and that their main contention was that they were entitled to be confirmed before those of the direct recruits who were appointed subsequent to them.

This appeal was heard by us in two stages.

After the first stage of the hearing the parties were given some time to settle the matter by evolving a reasonable formula to satisfy the legitimacy of their mutual claims.

It, however, appeared that they could not compose their differences and the appeal wa~, therefore, finalJv l:teard and concluded.

We may now briefly give the history of the litigation.

The respondents (who are the twelve writ petitioners in the-High

Cout~ are e!ther. graduates in Civil nginring or possess similar reqms1te quahficat10ns, namely, an Engmeenng Degree or an equivatent thcrof. They were all initially appointed on different dates as .emporary Section Officers in the Central Public Works Department (hereinafter to be referred to as the C.P.W.D.) in the subordinate Engineering Service, Class III (Non-gazetted).

They were subsequently appointed on various dates between 18th October, 1958 and 8th January, 1963, "to offtciate temporarily and until further orders" as Assistant Engineers in the Central Engineering Service, Class II (Gazetted) (briefly the Service).

The appellant and the respondents 16 to 110 are what is described as direct recruits to the Service. Each of the direct recruits possesses a Degree in Engineering or an equivalent thereof.

Fiftyeight of them were directly recruited as temporary Assistant Engineers in the Central Engineering, Service Class II (Gazetted) on different dates between 12th May, 1961 and 13th December, 1967, on the result of a competitive examination held by / the Union Public Service Commission (UPSC).

The remaining thirtyeight also possess a Degree in Engineering or an equivalent thereof and they were directly recruited as temporary Assistant Engineers in the Service on different dates between 2nd November, 1964 and 7th November, 1967, but without any competitive exmination.

By a Notification dated 13th June, 1967, excepting seven direct recruite (namely, respondents 11, 17, 29 and 31 to 34 in the High Court) the remaining respondents (respondents 4 to 37 in the High Court) were confirmed with effect from their respective dates of recruitment.

The said confirmations were also shown in a 'Classified list of Class II Engineering Gazetted Establishment ( CiV'il) of the CPWD' published in 1968.

By another Notification, of 1st May, 1968, direct recruits (being respondents 17, 33, 34, 38, 64 and 74 in the High Court) were also confirmed.

Similarly by a Notification dated, 30th April 1971, other direct recruits (respondents 31, 32, 39, 43, 46, 50, 52 to 57, 60, 61, 63, •68, 69, 75, 76, 79, 82, 92 and 96 in the High Court) were confirmed.

The grievance of the respondents in the High Court was that although they were appointed as temporary Assistant Engineers much earlier than the direct recruits the latter were confirmed ignoring their claims.

Their representations to the Government through theit' association having failed they approached the High Court.

The respondents (13 to 15) denied their claim by means of a counteraffidavit of Shri Kailash Prakash, Director of Administration, C.P.W.D.

One of the direct recruits, Shri Durgadas Kama, also filed a counteraffidavit opposing the claim of the respondents in the High Court.

By consent certain documents were produced by the Government and after inspection relevant extracts from the files were submitted to the Court by respective parties.

Although serveral contentions were urged before the High Court, some of them pertaining to Articles 14 and 16 of the Constitution,

the High' Court accepted the main contention of the writ petitioners A that there was no determination of any quota by the Government since on the basis of the said quota the direct recruits obtained preference in the matter of confirmation and seniority.

The High Court thus partly allowed the application and dire'cted the respondents (respondents 1 to 3 in the High Court) "to consider the petitioners (respondents herein) for confirmation as Assistant Engineers and to adjust the inter se seniority of such of the petitioners as might be confirmed B after consideration by the respondents in accordance with law".

. It is clear that if the High Court is riglilt that there was no determination by the Government under rule 4 ( c) of the Recruitment Rules, to which we will refer presently, apportioning quota amongst the officers recruited through different sources it will not be necessary to go into the other questions raised by Mrs. Pappu for the appellant.

C If we find that the High Court is wrong in its conclusion on this main point, we will have to remand the matter to the High 'Court for decision with regard to the other submissions which ha:d not been dealt with by it.

We will, therefore, take the first point first.

Mrs. Pappu submits as follows :-

First, in the absenc.e of a plea in the writ petition that the Home Ministry's approval is necessary the High Court exceeded its jurisdiction in going behind the determination of the quota made under rule 4(c), particularly in the absence of any special modi;! of determination prescribed under the Rules.

Second, she submits that the High Court failed to notice that it was open to prescribe quota by way of executive instructions in the absence of any rules in this behalf. Third, she submits that even assuming the High Court could enter into such an enquiry there is ample evidence on record to show that a determination has been made under rule 4 ( c). '

The persons with whom we are concerned in this appeal are governed by the Central Engineering Service, Class II, Recruitment Rules (briefly the Rules) which were published on 21st May, 1954.

There are six Parts in these Rules.

Part I (General) provides the definitions.

Part II deals with the' methods of recrnitment.

Rule 3 with which this Part opens provides as follows :-

"3. Recruitment to the Service shall be made by any of the following methods :-

(a) By competitive examination in India in accordance with Part III of these Rules.

(b) By direct appointment in accordance with Part IV of these Rules of persons selected in India otherwise than by competitive examination.

(c) By promotion in accordance with Part V of these Rules.

(d) By transfer in accordance with Part VI of these Rules."

Rules 4 and 5 may also be noted :

"4. (a) All appointments to the Service or to posts borne

/ upon the cadre of the Service shall be made by the Government.

(b) No appointment shall be made to the Service or to any post borne upon the cadre of the Service by any method not specified in Rule 3.

(c) Subject to the provisions of sub-rule (b), the method or methods of recruitment to be employed for the purpose of filling any particular vacancies in the ' Service or such vacancies therein as may be required to the filled during any particular period and the number of candidates to be recruited by each method sh!!ll be determined by the Government.

5. Appointments to the Service made otherwise than by promotion will be subiect to orders issued from time to time by the Ministry of Home Affairs regarding special representation in the Services for specific , D sections of the people."

Part III provides for recruitment by competitive examination which is the method provided in rule 3(a).

We are not concerned with the details in this Part except to note that the examination is conducted by the UPSC and the requisite qualifications and age restrictions and relaxation are provided for in this Part.

We may also note that Rule 21 of this Part provides that the selected candidates shall be appointed as Assistant Engineers on probation for two years and on the completion of the period of probation, ll' considered fit for permanent appointment, they will be confirmed in their appointments. There is a provision for extending the period of probation under rule 21 ( c) .

We need not notice other details in this Part.

Part IV deals with recruitment by selection.

Rule 23 with which this Part opens provides as follows :

"23. (1) Recruitment by selection shall be made from among Temporary Engineers and Temporary Section Officers employed on the Civil, Engineering side of the Central Public Works Department after consultation with t_he Commission :

Provided that it shall not be necessary to consult the Commission, in the case of any person, if the Commission were consulted in connection with his temporary appointment to the Service.

(2) No person shall be eligible for selection under subrule (1) unless he would, but for age, be qualilled for admis'sion to the Service under Part III of these rules, and his age at the time of appointment to the Service is not more than 40 years.

! '

(3) Merit shall be the primary consideration in determining a person's fitness for selection under this rule and no officer shall have any claim to appointment . under this rule as of right."

Part V deals with recruitment by promotion and contains a solitary rule, namely, rule 24, which reads as follows :-

"24. Recruitment by promotion shall be made by selection on the basis of merit from among permanent Section Officers employed in the Civil Engineering side of the Central Public Works Department."

Part VI deals with recruitment by transfer of an officer in Government service and there is a solitary rule, namely, rule 25, which takes care of this type of recruitment by transfer.

We are not concerned with this rule in this appeal. ·

From a perusal of the Rules it is clear that there are four methods of recruitment, namely-

( 1) recruitment by competitive examination (Part III) ; D

(2) by direct appointment otherwise than by competitive examination (Part IV) ;

(3) by promotion (Part V); and

( 4) by transfer (Part VI).

It is also dear under rule 4(b) that no appointment shall be made to this Service or to any post borne on the cadre of this Service by any method other than the above mentioned four methods.

The direct recruits belong to two categories of officers.

Fiftyeight persons were recruited under rule 3 (a) by competitive examination.

The remaining thirtyeight persons were also directly recruited as temporary Assistant Engineers but without any competitive examination and, according to the respondents, "on an ad-hoc basis".

So far as the respondents are concerned they claim to be recruited under

Part IV, namely, recruitment by selection which is one of the four methods provided for under rule 3 (b).

On the other hand according tu Mrs. Pappu the respondents are more temporary promotees to temporary vacancies in Class II Service and they are a class differe11t from the direct recruits who are not similarly situated with them.

We have, therefore, first to consider this submission of Mrs. Pappu.

As stated earlier, there are four methods of recruitment. Recruitment by promotion is provided under Part V and that is made by selection on the basis of merit from amongst permanent Section Officers. The particular recruitment of the respondents, therefore, cannot be under Part V.

It is common ground that the respondents at the material time when they were appointed as temporary Assistant Engineers were only temporary Section Officers in Class III. It is also admitted that

3-112SCI/77

all these. rsponden!§ have. requisite qualifications which are necessary for adm1ss1on to the Service under Part III and they are also within the age limit laid down under rule 23 ( 2).

Besides recruitment when ade is only on merit nder rule 23(3). Being faed with this position, Mrs. Pappu submits that their recruitment is outside the Rules particularly because rule 23 ( 1) provides for recruitment by selection "after consultation with the UPSC".

She submits that they were selected by the Departmental Promotion Committee which is not the same thing as the UPSC mentioned in rule 22(1).

We are., , however, unable to accept this submission.

It is true that rule 23 ( 1) provides for recruitment by selection after consultation with the UPSC.

The particular Departmental Promotion Committee (DPC) was presided over by a member from the UPSC.

There is Home Ministry's O.M.

No. 33/46-Ests(R) dated 17th June, 1947, wherein it has been clearly stated in para 7 as follows :-

"Recommendations made by Departmental Promotion Committees on which the Commission is represented should be treated as recommendations haying the approval of the Commission, and the convention regarding acceptance of the advice of the Commission will apply."

We are, therefore, clearly of opinion that the appointments of the respondents are in accordance with rule 23 in Part IV read with rule 3(b) of Part II of the Rules.

We find that the above conclusion we have reached is supp_orted by the stand taken on behalf of the Goviernment in the Lok Sabha on 7th April, 1969, in answering certain Unstarred question with regard to recruitment to this Service, inter alia, under Part IV.

Since, however, there are no statutory rules for confirmation in service or seniority rules, it is submitted by Mrs. Pappu that under rule 4 ( c) of the Rules it is for the Government to determine the method or methods of recruitment to be applied for the purpose of filling any particular vacancy in the Service or such vacancies therein as may be required to be filled during any particular period and the number of candidates to be recruited by each method.

It is in conformity with rule 4(c), says counsel, that the Government has fixed the proportions for filling vacancies in Class JI Service by different modes of recruitment.

She draws our attention to a letter of the Under Secretary to the Government of India, Ministry of works and Housing, dated 2nd October, 1954, which, as the Subject matter shows, contains the "proposal to prescribe definite quotas for filling the posts of Assistant Engineer (Civil) and Assistant Engjneer (Electrical) in the C.E.S., Class II, and the C.E.E.S. Class II, re:specti".ely bv different modes of recruitment." The proposal sets out in Part A thereof the quota for permanent vacancies as follows:-

'"A-Permanent Vacancies :

(i) 50% by direct recruitment by competitive examina-·

tion under Part HI of the Recruitment Rules for the Class II Service.

l..f ·,,._

(ii) 25% by promotion of permanent Section Officers under Part V of the Recruitment Rules.

•Jiii) 25 % by permanent appointment of temporary Assistant Engineers recruited by ; competitive examination through the Union Public Service Commission, and by transfer under Part VI of the Recruitment Rules."

Part B thereof fixes the quota for temporary vacancies as under-

~B-Temporary Vacancies :

. ,

.(i) 50% by direct recruitment by competitive examination through the Union Public Service Commission and by transfer under Part VI of the Recruitment Rules .

(ii} 50% by departmental promotion from amongst-

(a) permanent Graduate Section Officers,

(b) permanent non-Graduate Section Officers, and

( c) temporary Graduate Section Officers, D

fo accordance with the ratio \Which may be fixed by the Departmental Promotion Committee at the time of making the selection.

Provided that if at any given time, candidates who are successful at the Union Public Service Commissio9 competitive examination are not available in sufficient numbers for E filling 50% of the temporary vacancies that might be available, the residual vacancies may be filled temporarily by departmental promotion, subject to the condition that persons so promoted against such vacancies, shall be reverted later, if necessary, to make room for the candidates who may qualify at subsequent examinations to be held by the Commission, as and when they become available." F

It is pointed out that this proposal received approval of the UPSC as per its Jetter dated 7th September, 1955.

Mrs. Pappu draws Qur particular attention to the following paragraph in that letter :

"For recruitment to the posts in the Cenral Engineering Service, Class II, and the Central Electrical Engineering G Service Class II, the percentage quotas for various modes of recritment suggested by the Ministry vide their letter No .

E-1/5(3) dated the 2nd October, 1954, have been approved by the Commission."

Our attention is particularly drawn by the respondents to a letter -dated 7th November 1975, from the Deputy Secrety (Establish- H ment) to the Secretary UPSC and the subject of the letter is "confirmation in the grades of Assistant Engineers Civil & E!ec. in the C.P.W.D.'' It is stated in tbat letter-

"Since these vacancies have occurred as a result of conver'- sion of posts from temporary to permanent and since the C.P.W.D. has a large number of officiating Assistant Engineers who have been promoted from the grade of Section Officer, it is considered that the officiating Assistant Engineers have a prior claim to these posts.

The Ministry of Home Affairs also share this 'view ........ "

The last paragraph of this letter reads as under :-

"I am to request that the concurrence of the UPSC to the allotment of these vacancies on ad hoc basis to the officiating Assistant Engineers (Civil) & (Elec) and to their confirmation as proposed by the DPC at their meeting on 18.7.1955 may be communicated to this Ministry at an early date."

After this our attention is drawn by the appellant to a document dated 5th March, 1962, on the "subject : preparation of a combined seniority list for direct recruits and departmental promotees in the grade of Assistant Engineers C.P.W.D." It is .stated therein as D follows :-

"It was tentatively agreed that since the ratio of recruitment prescribed for direct recruitment through the UPSC and Departmental Promotion of Section Officers has not been adhered to, the date of confirmation should be the basis of determining the inter se seniority of direct recruits and the Departmental promotees.

When the date of confirmation of direct recruit and a departmental promotee is, however, the same, the \direct recruitment should rank senior to the departmental promotee.

The Chief Engineer, however, indicated certain practical difficulties in following the above principle and it was decided that further discussion should be held before the Ministry of Home Affairs would be able to give their definite views in the matter."

Mrs Poppu then draws our attention to paragraph 2 of this letter f'. which reads as under :-

"The ratio in respect of direct recruitment and departmental promotion was prescribed in September, 1955.

Whenever confirmation thereafter was not made according to the prescribed ratio, approval of the U.P.S.C. was obtained to the relaxation of the quota."

The same paragraph continue1; to throw more light :

"Before giving their final views, the Ministry of Home Affairs desired to have a copy of the communications wherein the UPSC agreed to the relaxation of the quota. As further discussions in the matter will take place in the Ministry of Home Affairs within the next few days the copies of the relevant communications should be sent immediately".

Mrs. Pappu finally draws our attention to the minutes of the meeting held in the Ministry of Home Affairs ion 16th June, 1962, to discuss the question of drawing up a combined seniority list of various categories of Assistant Engineers in the

C.P.W.D.

She points out that the first paragraph in the minutes shows that "according to the orders issued in 1955 recruitment to the grade of Assistant Engineers (Civil & Electrical) in the Central Public Works Department is to be made by the following modes," namely, permanent vacancies and temporary vacancies in such manner as was contained in the proposal dated 2nd October, 1954, which we have already extracted.

She then draws our attention that certain decisions were taken, as will appear from paragraph 4 of the minutes, with regard to the determination of the relevant seniority of direct recruits and departmental promotees: Mrs. Pappu submits that this is \a follow-up action of the proposal which emanated from the Ministry df Works & Housing letter dated 2nd Oclober, 1954, :and which recei'.1ed the concurrence of the UPSC.

She submits that the minutes did mention quota and some decisions were taken about inter se seniority.

She submits that the position emanating from the minutes can only be reconciled on the basis that the quotas already fixed in 1955 had been the rule with regard to this Service.

The short question that arises for consideration is whether there bas been a determination by the Government under rule 4( c).

It is clear that 1954 Rules did not prescribe therein any quota for recruitment through the four methods specified under rule 3.

One thing, however, is clear that under rule 4(b) no other method is permissible for recruitment.

It is also clear that with regard to the sharing of recruitment through the different methods power is reserved

to the Government under rule 4( c) to make certain determination.

It is subniitted by Mr. Gobind Das, appearing on behalf of the Union

of India, that at the relevant time the Department of Personnel was in the Ministry of Home Affairs and it is that Ministry which was entrusted with the matters relating to recruitment and seniority.

He further submitted that the approval or sanction of the Home 'Ministry was mandatory for validity of any rule.

It is, therefore, clear that the determination under rule 4(c) must be by the Ministry of Home Affairs at the relevant time and if a decision were taken by the Home Ministry under the Rules of Business under Article 77 ( 3) of the Constitution the determination would be of the Government of India.

There is nothing to show that there was any dtermination by the Home Ministry under rule 4(c). It is true that there was a proposal from the Ministry of Works & Housing to which concurrence .had been given by the UPSC.

After that there has been no further progress of the matter and Mr. Go bind Das concedes that there is nothing to show from the records at the disposal of the Government that the approval of the Home Ministry 'was given to any determination under rule 4(c).

The Under Secretary in the Ministry of Works & iHousing has filed H .an affidavit dated 16th December, 1976, with an annexure dated 14th

A June, 1954, which shows that with reference to the proposal for quotas the reaction of Home Ministry was in the following terms :

"Prima facie, the proposal seems unobjectionable but this Minfstry would like to see again after the UPSC's views have been received."

It is perhaps because of this that Shri Swaran Singh the then Minister for Works & Housing also endorsed the Secretary's proposal which was in the following terms :

"The proposals are in order and may be approved.

After U.P.S.C. have been consulted and given their concurrence, the case will have to be shown to the Home Ministry again who have asked to see these papers after the views of the U.P.S.C. have been obtained."

The Minister, Shri Swaran Singh's endorsement appears at the foot of this proposal on 24th September, 1954.

So far as the records go the matter rested as above and there has been admittedly no adherence to the quota rule, but on the other hand ther('., has been flgrant violation of the rule.

As a matter of fact, pari passu with the proposal there was even a request for relaxation and every thing appeared to be at that stage and for a number of years in the melting pot.

This was perhaps possible only because the file with the proposal after the concurrence of the UPSC did not move to the Home Ministry for final determination under rule 4 ( c).

It is not possible .to equate the minutes of the meeting of 16th June, 1962, with an appropriate order or determination by the Home Ministry.

There is nothing 'to show that these minutes received the approval of the Minister-in-charge.

We are, therefore, unable to accept the submission of Mrs. Pappu that there has been a determination, in fact, by the Government under rule 4 (c).

We have already held that respondents 1 to 12 were duly appointed under rule 23 ( 1) of Part IV read with rule 3 (b).

They are, there~ fore, entitled to be considered for confirmation in the Service in Class

II.

Since we )lave held that there was no quota rule, as sought to be made out, on the basis of which the confirmations have been made and seniority has been fixed, we agree with the High Court that it will be for the respondents ( 13 to 15) to consider the case of the respondents (1 to 12) for confirmation and seniority in accordance with law.

As the High Court has pointed out, the validity of the Jrecruitment of the thirtyeight direct recruits will, however, not be affected.

We are not impressed by the submission of the appellant that there was no averment in the writ petition regarding absence of determination under rule 4(c) of the Rules.

After a perusal of the pleadings and having regard to the stn~ taken by the partie~ before the High Court, we find that the subm1ss1on has no force.

Smee the factum of determination of seniority was a live issue between the

y "

parties in the High Court, there was no error of jurisdiction on the part of the High Court in examining the whole matter thoroughly and in considering the documents filed by the respective parties after inspection of the files by consent.

It is also necessary to observe that even for executive instructions the condition precedent is an appropriate decision by the competent authority and we are unable to hold that the High Court committed such a gross error of law in holding that there was no determination by the Government under rule 4(c) to call for foterference under Article 13 6 of the Constitution.

We also do not feel justified iin placing exaggerated importance C on the use of the words "specified quota" in some of the correspondences relied upon by Mrs. Pappu and Mr. Desai.

We are of opinion that such a reference to "specified quota" was only a usual way of a compendious expression to facilitate identification of the subject matter of the proposal of the Ministry of Works & Housing in the course of long correspondence between the several authorities.

D , Mrs. Pappu also strenuously submitted that the High Court should have dismissed the writ application on the ground of inordinate delay.

We are not satisfied that the writ application was liable to be dismissed on the ground of inordinate delay in the entire circumstances of the case and in particular when we find that the Government did not prefer any appeal against the judgment of the High Court even though the so-called determination of the Government under rule E 4(c) had been struck down by the High Court.

Before parting with the records we consider it proper to point out that persons entering Government service have the right to know where they stand with regard to their conditions of service and future promotion.

Since there is no impediment in the iway of the Govern- F ment to make appropriate rules regarding conditions of service, even retrospectively, subject to constitutionality, keeping in view justice and fair iplay to all concerned, it is a sorry sight to find that officers in the same Service fight over the yrs in courts having failed to get redress from the Government.

When officers are qualified to hold certain posts after recruitment, according to rules, and they have put in a number of years, without break, in the Service to the G satisfaction of the authorities, it is impermissible to invoke a recondite rule and call it in aid to deprive a large section of officers of the benefit of their otherwise satisfactory service.

The matter may be different when posts in the Service, are abolished, appointments to the Service are transitory or fortuitous or incumbents are fqund unsuitable for absorption.

The history of this Service is that temporary posts are first created and then after some years they are converted into H permanent posts.

The Government, therefore, cannot merely be an on-looker where it could rightly claim to be a legitimate arbiter on its own authority and having proper regard to all just claims.

also cannot help feeling that thinking in the Ministry has not always been uniform, sympathy waning or waxing from time to' time for reasons not always manifest.

As found above, the submissions of the appellant are devoid of force.

In the result the appeal fails and is dismissed.

We will, however, make no order as to costs.

P.B.R.

Appeal dismissed.

JAGMAL SINGH YADA V

M. RAMA YY A AND ORS

January 6, 1977

Y. V. CHANDRACHUD

P. K. GOSWAMI

S. MURTAZA FAZAL ALI, JJ.

UPSC

Union Public Service Commission

Art. 226

U.P.S.C.

Government of India

Ministry of Home Affairs

Art. 77

Art. 13

Shyamala Pappu

Ashok Kumar Grover

M. C. Bhandare

D. N. Mishra

0. C. Mathur

G. D. Gupta

Gobind Das

Girish Chandra

S. T. Desai

Urmila Kapoor

Kamlesh Bansal

GosWAMI

S. T. Destai

Union of India

Union Public Service Commi~

Gobind Das

18th October, 1958

8th January, 1963

2nd November, 1964

7th November, 1967

Kailash Prakash

Durgadas Kama

Articles 14 and 16

Pappu

21st May, 1954

are six Parts in these Rules

Central Public Works Department

17th June, 1947

Part II of the Rules

Goviernment

7th April, 1969

2nd October, 1954

Part HI of the Recruitment Rules

Part VI of the Recruitment Rules

Union Public Service Commissio9

7th September, 1955

C.P.W.D.

5th March, 1962

Poppu

16th June, 1962

Ministry df Works & Housing

2nd Oclober, 1954

Article 77

Ministry of Works & Housing

Go bind Das

14th

A June, 1954

Swaran Singh

24th September, 1954

Article 13

Desai