A 444 .

DR B.L. ASA WA

STATE OF RAJASTHAN & ORS.

March 5, 1982

[A.O. KOSHAL, V. BALAKRISHNA ERADI AND

R.B. MISRA, JJ.]

Educational qualificationS-Postgraduate qualification in medicine granted by a University established under a statutt-Qua/ification recognised by the Medical Council-Recognition or declaration of equivalence by every University in the country-Whether necessary. ·

The qualificationS prescribed for the post of lecturer in Forensic Medicine • under the Rajas than Medical Service were (i) , a basic university degree. or equivalent qualification entered in the schedules to the Ir.dian Medical Council Act 1956; (ii) Registration under tbe State Central Medical Registration Act;

(iii) Post-Graduate qualification in the concerned subject" and '(iv) two years experience of medico.legal work.

The appellant was the bolder of a !M.B.B.S. degree from the Rajastban University which was a _qualification ._entered the first schedule to the Indian

Medical Council Act. He was regist'ered under the Medical Registration Act.

He possessed a postgraciuate degree in Forensic Medicine from .the UniversitY of Bibar.

The respondent's application for thC post of lecturer in Forensic Medicine was rejected by the State Public Service Commission on the ground that the post .. graduate degree in Forensic Medicine possessed by him was not one awarded by the University of Rajasthan and that the degree which he possessed had also nOt been recognised by the University of Rajasthan.

A single Judge of the High Court allowed the appeUant's writ petition impugning the order of the State Public ServiCe Commission.j

On appeal by the State a Division Bench of the High Court held 0.tbat the post-graduate degree in Forensic Medicine which !.the appellant possessed could not be treated as a valid qualification for recruitment to the post of lecturer because, firstly, it was not a degree .from the university of Rajasthan and secondly, neither had the Uoiveristy of Rajastban recognised it nor bad the University declared it as a qualification equivalent to the post-Sraduate degree in Forensic Medicine.

• Allowing the appeal,

' -

ii.L. ASAWA v. RAiA5rl!AN (81/akrishna Eradi, J.) 445

HELD : I. A posi-graouate medical degree granted by a university duly established by statute in this country and which bad been recognised by tho Indian Medical Council by inclusion in the schedule of the . Medical Council Act bas ipso facto to be regarded, accepted and treated as valid throughout the country. In the absence of any express provision to the contrary, sJJch a degree does not require to be specifically recognised by other universities in India before it can be accepted as a valid qualification (or appointment in a-ny post in a State. [ 450 F-G I

In the instant case the University of Bihar was duly established by statute.

It is fully competent to lconduct examination and award degrees_ the degree of DoctOr of Medicine (Forensic Medicine) of the University of Bihar is included in '°' the schedule to the Indian Medical Council Act, 1956 as a degree recognised by the Medical Indian Council, the peramount professional body set up by statute with authority to recognise m

1edical qualifications granted by any university or medical institution in India. [450 D-E]

2. There can be declaration of equivalence only as between a degree etc. awarded by the concerned university and a qualification obtained from a body different from the concerned university. When tlie University of Rajasthan does not conduct any examination for the award of the degree of Doctor of Medicine (Forensic Medicine) there cannot be any question of declaration of 'equivalence• in respect of such a degree awarded by any university. [451 B-C]

3. In the case of a postgraduate degree in the concerned subject awarded by a statutory Indian University no recognition or declaration of equiValence by any other university is called for. This is all the more so in the case of a medica1 degree awarded bf a statutory Indian University and which has been speciically recognised by the Indian Medical Council. [451 D-E)

~ CIVIL APPELLATE JURISDICfION: Civil Appeal No. 303 of 1976.

Appeal by special leave from the Judgment and order dated th• 30th October, 1974 of the Rajasthan High Court in Q.B. Civil

Special Appeal No. 247 of 1974.

Y.S. Chi/ale, Mrs. Sadha11a Ramachandran & Parveen Kumar for the Appellant. ·

Badri Das Sharma for the Respondents Nos. I & 2.

. The Judgment of the Court was delivered by

BALA.KRISHNA BRAD!, J. This appeal by special leave afises out of a writ petition filed by the appellant herein in the High Court ofRajasthan, challenging the legality of the action of the.Rajasthan Public Service Commission in issuing of the appellant the Communication_._Annexure IV-:dat~ July 21, 1973, statin& that the

446 SUPREME coulit REPORTS [!981j 3 s.C.I<

appellant was not eligible for being considered for recruitment to the post of Lecturer in Forensic Medicine in the Government Medical Colleges in the state since he lacked the necessary academic qualifications specified in the advertisement and that consequently, the application of the appellant stood rejected.

There were also . other incidental prayers in the writ petition for the issuance of an appropriate writ or direction to the Public Service Commission to refrain from finalising the selection without considering the case of ,_. the appellant, and for a direction being issued to the State Government of Rajathan not to accept the recommendations of the Public Service Commission in making appointments to the post of Lecturer

,,,. ,.,--A..._ in Forensic Medicine to Medical Colleges in Rajasthan in case the appellant was not called for interview along with the other

candidates.

A learned Single Judge of the High Court allowed the Writ petition holding that the Public Service Commission had acted illegally in treating the appellant as not possessing the requisite academic qualifications and in rejecting his candidature for the post of Lecturer in Forensic Medicine on the said ground. The State of Rajasthan and the Rajasthan Public Service Commission carried the matter in appeal before a Division Bench of the High Court.

That appeal was allowed by a Division Bench by its judgment dated October 30, 1974, whereby the order passed by the learned Single Judge was set aside and the writ petition filed by the appellant was dismissed.

Aggrieved by the said decision, the appellant has pre- . ferred this appeal after obtaining special leave from this Court.

The appellant secured the M.B.B.S. Degree from the University of Rajasthan in the year 1954 and after undergoing housemanship for one year, he was substantively appointed as Civil Assistant Surgeon in the Rajasthan State Medical Service with effect from May 26, 1956. In 1962, the Rajasthan Medical Service was bifurcated into two branches, namely, (I) The Rajasthan Medical Service and (2) The Rajasthan Medical Service (Collegiate Branch). Separate service rules known as the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (hereinafter called the Rules) were framed for the Collegiate branch and all appointments of teaching staff in the Government Medical Calleges in Rajas(han were thereafter governed by the said Rules. Under the provisions of the Rules, the post of Lecturer is to be filled up only by direct recruitment.

It is laid down in Chapter IV of the Rules which prescribes the procedure or direct recruitment that the. appointments are to be

• B.L. ASAWA v. RAJASTHAN (Balakrishna Eradi, J.) 447

made on the basis of selection by the State Public Service Commission. Rule 12 lays down that "the candidate for direct recruitment to the post specified in Parts A, B and C of the Schedule shall possess such academic and technical qualifications and experience as is laid down, from time to time, by the Rajasthan University for the teaching staff in Medical Colleges". The post of Lecturers is included in Part C of the schedule to the Rules. Hence, for ascertaining the qualifications required for the post of Lecturer under the Rules one has to refer to the Rules relating to technical qualifications and experience laid down by the Rajasthan University for the teaching staff in Medical Colleges. ·

Clause (vii) of Ordinance No. 65 occurring in Chapter XX of the Handbook of the University of Rajasthan, Part II, Vol. I, is the relevant provision wherein the University of Rajasthan has prescribed the academic and technical qualifications and experience required for r.ligibility for appointment as teachers in Medical Colleges.

That clause is in the following terms :

"!. All teachers must possess a basic University or equivalent qualification entered in Schedules to the Indian Medical Council Act 1956, except in the non-clinical departments of Antomy, Physiology, Biochemistry, Pharmacology, Microbiology where non-medical teachers, to the extent of 30% of the total posts of the department may be appointed to posts other than that of the Director or Head of the Department, who must necessarily hold a recognised medical qualification.

2. Medical men must be registered under the State Central Medical Registration Act and non-medical persons must be recognised as teachers with the University before appointments are made permanent.

All the teachers in Medical Colleges except Registrars and Demonstrators must possess the requisite post- G graduate qualification in tl\eir respective subjects.

4. 50% of the time spent in recognised research under the Indian Council of Medical Research or a University or a Medical College, after obtaining the requisite Pot-gradu ate qualification be counted towards teaching experience for the post of Lecturer in the s11me or in !lllid subject

ff.

SUPREME COURT REPORTS. [I 9821 3 s.c.tt.

provided that 50% of the. teaching experience fhall be the regular teaching experience.

 5. Equivalent qualification referred to above and in the recommendations below shall be determined by the University of Rajasthan.

6. In case of specialities under Medicine and Surgery the qualifications and experience s~ ould also be as scheduled below but in case the post has been advertised and . suitable candidates are not available the qualifications can be reladed."

This is followed by a tabular statement headed 'Requirements of Special Academic Qualifications and Teaching Experience'. Column 1 of this table deals with the posts, Column 2 lays down the academic qualifications and Column 3 is about Teaching Experience. The table has a number of sub-headings according to the various specialities. The speciality of Forensic Medicine is given at page 168 of the Handbook (1971 Edition). The relevant provision regarding "Lecturer in Forensic Medicine" is as follows:

"(d) Assistant

Professor/ Lecturer

M.D. (Path.), M.D. (Forensic Medicine), Speciality Board of Pathology (USA),

M.D./M.R.C.P./ F.R.C.P. (with Diploma D.F.M.), . M.R.C.P. (with Forensic Medicine as Special Subject) or equivalent qualification or Post-graduate

Two years of Medico- Legal work,

degree or equivalent qualification in.

Medicine or Surgery.''

On March 3, 1972, the Rajastban Public Service Commission (for short, the commission) issued a1lvertisements invitins appli-

'-·"-- •

' )

11.t. ASAWA v. RAJASTHAN (Ba/akrishna Eradi, J.) 44~

cations for the recruitment of two Lecturers in : Forensic Medicine for Medical Colleges, Medical & Public Health Department in accordance with the Rules.

The appellant had, by then, obtained the M.D. Degree in Forensic Medicine from the University of Bihar, Muzaffarpur in 1970 and had been functioning as Lecturer in Forensic Medicine in one of the Government Medical Colleges in Rajasthan on a temporary and ad hoc basis fro(n December 31, 1970 on wards. "

In response to the aforesaid advertisement published by the Commission, the appellant applied for appointment to one of the two posts.

However, by the impugned letter (Annexure IV) dated July 21, 1973, issued by the Secretary of the Commission, the appellant was informed that his application for the post of Lecturer in Forensic Medicine was rejected since he did not possess the necessary academic qualification. A representation made by the appellant to tbe Public Service Commission for reconsideration of the matter did not meet with any favourable response and hence the appellant approached the High Court by filing the writ petition under Article 226 of the Constitution out of which this appeal has arisen. During the pendency of the writ petition, the Commission conducted the interview of the remaining candidates and selected respondents Nos. 3 and 4 for appointment to the two posts and on the basis of the said selection the State Government appointed respondents 3 and 4 as lecturers. The appellant thereupon amended the writ petition by incorporating a further prayer that the High Court should issue an appropriate writ or direction cancelling the interview and selection conducted by the Commission as well as the consequential appointments given by the State Government to respondents 3 and 4 as Lecturers in Forensic Medicine.

The short point to be considered is whether the Commission was right in law in excluding the appellant from consideration on the ground that he did not possess the academic qualification prescribed by clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances for the post of Lecturer in Forensic Medicine.

The qualifications prescribed for the said post by clause (vii) of Ordinance No. 65 are :

(!) A basic University (Degree?) or equivalent qualification entered in Sc!idµles to the Indian Medical Council Act, !95().

SUPRBME COURT REPORTS

I 1982] 2 8.C.R.

(2) Registration under the State/Central Medical Registration Act.

(3) Post-graduate qualification in the concerned subject.

(4) Two Years' experience of Medico-legal work.

The appellant is admittedly the holder of the basic Degree of M.B.B.S.Jrom the N.ajasthan University, which is a qualification entered in the First Schedule to the Indian Medical Council Act. It is also not in dispute that he is duly registered under the Medical Registration Act. The sole ground on which the aapellant was treated by the Commission as ineligible for consideration was that the Post-graduate' degree in Forensic Medicine possessed by the appellant is not one awarded by the University of Rajasthan and the.said Degree has also not been recognised by the University of Rajasthan as an equivalent qualification.

The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degrees.

The Degree of Doctor of Medicine (Forensic Medicine)-M.D. (Forensic Medicine)-of the University of Bihar is included in the Schedule to the Indian Medical Council Act, 1956 as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India. A Post-graduate Medical Degree granted by a University duly established by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, acepted and treated as valid throughout our country. In the absence of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to any post in such a State. The Division Bench of the High Court was, in our opinion, manifestly in error in thinking that since the Post-graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be treated as a valid qualication for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the said degree or declaring it as an equivalent qualification. It is

ommon ground before us that the University of Rajasthan d9es not

' {

il.i.. ASAWA v. ilAJASTHAN (Baiakrishna Eradi, J.) 451

conduct Post-graduate examinations in the subject of Forensic Medicine and it does not award the degree of M.L. (Forensic Medicine). In order that there should be scope for declaration o.f 'equivalence' of a qualification obtained from another body, there should be a corresponding qualification that can be earned by viriue of passing an examination or test conducted by the concerned,"University. There can be declaration of equivalence only as between a degree etc. awarded by the concerned University and one obtained from a body different from the concerned Universily.

When the _..., - - ., University of Rajasthan does not conduct any examination for the award of the degree of M.L. (Forensic Medicine), there cannot be any question of declaration of 'equivalence' in respect of s.ucb a degree awarded by any University.

Unfortunately, the tate Public Service Commission as well as the Division Bench of the .High Court failed lo notice this crucial aspect. We may also point out that the declaration of 'equivalence' referred to in Section 23A of the Rajasthan University Act as well as in clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances can only be in respect of qualifications other than basic or Post-graduate degrees awarded by other statutory Indian Universities in the concerned subjects. In the case of a Post-graduate degree in the concerned subject awarded by a statutory Indian University, no recognition or declaration of equivalence by any other University is called for.

This is all the more so in the case of a medical degree-basic as well as Post-graduate-that is awarded by a statutory Indian University and which has been specifically recognised by the Indian Medical Council.

,-'-

Though a contention was taken by the respondents in the High Court as well as before us that the appellant did not also satisfy the requirement regarding "two years of Medico-legal work", we do not find any force in the said plea. The certificates from the Principal and Heaas of Departmenfs of Forensic Medicine in the concerned Medical Colleges produced by the appellant in the High Court as annexures in his affidavit dated July 27, 1973 which are at pages 31 and 33 of the printed Paper Book, establish beyond doubt that the appellant had put in more than two years of Medicolegal work in Dr. S. N. Medical College and in the Dharbhanga Medical College, prior to the last date fixed by the Commission for receipt of the applications.

The conclusion that emerges from the aforesaid discussion is that the appellant was fully qualified for being considered for

SUPltBME robitr it~Poi\TS (!982] 3 s.c.k ..

appointment to the two posts of Lecturer.s in Forensic Medicine advertised by the Commission on November 16, 1972, and that the Commission acted illegally in treating the appellant as not being possessed of the requisite academic qualification and excluding him from consideration on the said ground.

Accordingly, we allow this appeal, set aside the judgment of the Division Bench of the High Court and restore the judgment of the learned Single Judge, subject to the moditlcaiion that in carrying out the directions contaiued in the judgment of the learned Single Judge, the Commission should treat the appellant as a fully qualified candidate in the light of the finding recorded by us that at the relevant time the appellant possessed not merely the prescribed academic qualification but also the requisite experience of two years' Medico-legal work.

The appellant will get his costs throughout from respondents I and 2 in equal shares.

P.B.R.

Appeal allowed.

WA

STATE OF RAJASTHAN & ORS

March 5, 1982

A.O. KOSHAL

V. BALAKRISHNA ERADI

R.B. MISRA, JJ.

Medical Council Act 1956

Registration Act

University of Rajasthan

Uoiveristy of Rajastban

Medical Council Act

India

University of Bihar

Indian Medical Council Act, 1956

Medical Indian Council

Indian Medical Council

Y.S. Chi

Sadha11a Ramachandran

Parveen Kumar

Badri Das Sharma

BALA.KRISHNA BRAD

Rajasthan Public Service Commission

Rajasthan Public Service Commission in issuing of the appellant the Communication.

Rajasthan

State of Rajasthan

30, 1974

Rajasthan State Medical Service

May 26, 1956

Rajasthan Medical Service

Rajas(han

Balakrishna Eradi

State Public Service Commission

Rajasthan University

Indian Medical Council Act

Indian Council of Medical Research

Rajastban Public Service Commission

July 21, 1973

Article 226

Indian Medical Council Act

Central Medical Registration Act

First Schedule

Indian Medical Council Act

Registration Act

University of Bihar at Muzaffarpur

Section 23A

July 27, 1973

S. N. Medical College

Dharbhanga Medical College


WING COMMANDER J. KUMAR

UNION OF INDIA AND OTHERS

March 5, 1982

[A.O. KosHAL, V. BAL>.KRJSHNA ERADI AND

R.B. MISRA, JJ.]

453 A

Defence Restarch and Development Organisati•n Giid Government of India 0.M. dated November 23, 1919, Rule 16-"Senlority after permanent second- C ment"-R & D Cadre-Intake of service officers-Seniority after 'permanent secontlment'-Based upon seniority of substantive rank held by the officer in the grade of major or equivalent rank-Such principle for determination whether valid.l

"Secondment" of an officer-Whether constitutes a tra_nsfer.

Constitution of India 1950, Art, 309 proviso-Statutory rule covering seniority-Rule to take effect from date of promulgation-Whether element of retroactivity involved in operation of rule.

Administrative Law-Prineip/~ of natural justice-Applicability of-In promu/gati'on of statutory rule governing seniority.

The Defence Research and Development Organisation (R & D) was set up under th! Ministry of Defence for carrying out scientific and technological research and development work on projects or vital importance to the defence forces. Its personnel consist or large number of civilian scientists as well as a smaller number of service officers drawn Crom the three wings of the Armed Forces who have operational experience of weapon systems.

The policy followed in regard to the intake of service officers was that they were initially taken on , a tenure basis and subsequently absorbed in the organisation on a permanent basis in the event of being found suitable and willing. Since the Office.rs from the three services came to the R & D cadre with different lengths of service and at different-levels, it became imperative to evolve a reasonable principle for the determination or their interse seniority arter their secondment to the _organisation.

In November 197P in supersession of an previous Rules and Orders on the subject, rules were mado under the proviso to Art. 309 laying down the pro ccdure for the intake of service officers in the R & D organisation and the terms and conditions of service of those permanently retained therein. Rule 16 dealt

with "Seniority after permanent secondment" and provided that "seniority or H all service Officers permanently seconded to DRDO will continue to be based upon thir s~0iorit~ of substantive ran~ of Major/Sn. Ldr./Lt. Cdr ... , .. , ad th~

SUPREME COURT REPORTS [1982} 3 s.c.R.

A seniority or officers with substantive ranks higher than Major/Sqn. Ldr./Lt. Cdr. will after their permanent secondment, alo reckon visa-vis other officers in the R & D Cadre, for future promotioa/confirmation, from the date of their subs tantive rank or Major/Sqn. Ldr./Lt. Cdr ........ ".

The appellant who was commissioned in the Air Force was seconded to the service. In hiS writ petition -he contended that the principle for determina tion of seniority laid down in Rule 16 was arbitrary and violative of Articles 14 and 16 of the Constitution, and as he had been permanently seconded to the R & D Organisation in 1971 long prior to the proclamation of the rule his rights regarding seniority and promotion could not be affected by the provisions of this rule. By taking the date of substantive appointment to -the rank or Major/ equivalent as the basis for reckoning seniority, officers who had obtained substantive promotions to higher ranks in the oarent service earlier than some of their seniors who were onl)' subsquently. promoted to such higher ranks, suffer - 11erious prejudice because the latter gain over the earlier promotees and supersede them in the matterof 1en'iority in. the R & D -Organisation, and that subsequent inductees in the R & D Organisation cannot be legally assigned seniority above those already borne on the cadre, irrespective or the substantive rank held by them at the time or their intake Into the R & D.

D The Single Judge rejected all the contentions and declined to grant relief.

The.R & DOrganiS11tion was however directed to issue .the tentative seniority list drawn up in accordance with Rule 16. The Letters Patent Appeal filed by the appe1lant was dismissed in limlne.

Dismissing the appeal to this Court,

HELD : l. Since officers from different sources are taken into the R & D Organi<sltion for meeting the disciplinewise requirements arising therein from time to time and they are brought into a common pool on such permanent secondment, a reasonable principle had to be evolved for fixation of inter se seniority within the R & D cadre. The principle adopted under Rule 4 of reckonins: seniority with reference to the date of attainment of the rank of subs .. tantive Majorjequivalent strikes areasonable mean as it ensures to all: the service officers in the R & D the fixation of seniority in the integrated cadre giving full credit to the length of service put in by them in their respective parent services. [466 C; 466 H; 467 A]

2. It is settled law that the urvice conditions pertaining to seniority are Hable to alteration by subsequent changes that may be introduced in the rules and except to the extent of protecting promotion\ that have already been earned under the previous rules, the revised rules will operate to govern seniority and future promotion prospects. There is, therefore, no substance in the argument advanced by the appellant that it was not open to the Government of India to introduce a new principle or seniority by promulgation of Rule 16 so as to affect his rights for future promotion. [463 DE]

3. A statement contained in the statute or statutory rule or the factual background leading up to the enactment has ordinarily to be accepted and acted upon by the court as wholly correct, [ 463 A]

---""'-.... -

'I. KUMAR V, UNION OF INDIA 455

4. Rule 16 contains a categorica1 declaration that in the past also the seniority of service officers permanently seconded to.the R & b Organisation was b'eing reckoned on the basis of their dates of attainment of substantive rank of Major/Sqn. Ldr./Lt. Cdr. subject to any 'penalty/loss of seniority that an officer might suffer subsequently. It is therefore not possible to accept 'the contention

<>f the appellant that prior to the coining ihto f<>roe of the rule he had acquired a vested right to have his seniority in the R & D reckoned with reference to the date of his permanent esecondment and to have aJ1 Officers joining the organisation on subsequent dates ranked only below him. (462 G-H; 463 B-C)

The, tructure and composition of the Organisation have necessarily to undergo rapid, qualitative and quantitative changes in the ligPt of the fast developments that take place in science, technology and international relations.

The intake of service Officers is not on the basis of any general seletion from service cadres. As and when the Organisation finds it necessary to obtain the service of officers with operational experience in any particular weapon system or other scientific discipline the parent service is requested to spare for deputation suitable hands in the particular branch or speciality and initially they are taken on a tenure basis. There is a selection only in a very limited sense that the suitability of the concerned officer is adjudged before hC is taken but the claims or merits of others are not considerl"d. The secondment of such officers to the R & D Organisation is not therefore, effected on the basis or a general selection.

Officers who are senior in the parent service in relation to the person who is seconded and who may possess greater eXperience and superior attainment might not have been considered for secondment when their juniors 'in the service were seconded to the R & D Organisation, because the parent service might not have been in the position at the relevant point of time to spate the services of the former. (463 G-H; 464 AEJ

6. Where persons from different sources _are drafted to serve in a new service a just and wholesome principle comtnonl, f applied is that the pre existing length of service in the parent department should be respected and prese1ved by taking the same into account in determining their ranking in the new service cadre. Such a provision does not involve any discrimination violative of Article 16 of the Constitution. [470 E]

R.S. Makashi & Ors. v. l.M. Mellon & Ors., [1982] l S.C.C. 379, referred to.

7. The secondment of ail ofliCer from bisparer'lt service to the R & D is not a transfer to Centril Service from a subordinate service or from another department. [469 G]

8. Rule 16 being statutory in origin, its validity cannot be affected by C: re3.son of any inconsistency With the provision of a pi'ior executive order issued by the Central Government i.e. Office Memorandum dated July 22, 1972.

[469 HJ

9. When a statutory rule governing seniority is issued in respect of a service) the said rule would govern the personnel in the ervice with e'ffect from the date of its promulgation and in so giving effect to 'the role in future, no

element of retroactivity is involved, (470 G-H)

SUPREME COURT REPORTS [ 1982] 3 s.c.R.

10. The promulgation of a statutory rule governing seniority is not a

quasi-judicial fLinction. It is the exercise of a legislative power and in respect thereof the principlea of natural justice have no application at all. (472 BJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1742 of 1980.

Appeal by special leave from the judgment and order dated the I Ith day of April, 1980 of the Delhi High Court in L.P.A. No. 53 of 1980. •

WITH

Civil Misc. Petitions Nos. 69 and 5698 of 1981.

Wing Commander J. Kumar Appellant in Person. I

P.A. Francis, Narayan Nettar and Miss A. Subhashlni, for the Respondent.

The Judgment of the Court was delivered by

BALAltRISHNA ERADI, J.

This appeal by special leave is directed against the judgment of a Division Bench of the Delhi High Court dismissing in limine a Letters Patent Appeal filed by the present appellant against the jHdgment of a learned Single Judge of that Court whereby the contentions raised by the appellant in Civil Writ Petition No. 1423 of 1979 were rejected and the said writ petition was dismissed.

The appellant-Wing Commander J. Kumar-was commis 1ioned in the ln; lian Air Force on September 3, 1956 with ante dated seniority from December IO, 1955.

He was permanently 'seconded to the Defence Research Development and Inspection Organisation (for short, the LR D &1 Organisation) of the Ministry of Defence on October 14, 1971. On the bifurcation of the LRL & I Organisation effected in July 1976 by the separation of the Inspection Wing, the appellant was retained in the Defence Research and Development Organisation, which will hereinafter be referred to as the R & D Organisation. The Director-General of Defence Research and Development, who is also the Secretary to Government of India, Defence Research, is the controlling authority of the R & D cadre.

The said cadre has service officers drawn from all the three Wings of the Armed Forces, namely, the Army, the Navr and the Air

i. KUMAR v. tJNION OF INDIA (!Jaiakrishna Eradi, J.) 457

Force, and in addition thereto a large number of civilian employees are also borne on it.

In November 1979, in supersession of all previous Rules and Orders on the subject, the President of India promulgated under the proviso to Article 309 of the Constitution rules laying down the procedure for the intake of service officers in the R & D Organisation and the terms and conditions of service of those permanently retained therein.

Those rules were issued by the Ministry of Defence of the Government of India in Office Memorandum No. Persjl8601/RD.

Sel. Bd//7971/D (R&D) dated November 23, 1979, The provisions of the said Memorandum will hereinafter be referred to as the rules.

Rule 16 deals with the subject of "Seniority after permanent secondment". That rule js in the following terms :

"As hithertofore seniority of all service officers rermanently seconded to D RDO will continue to be based upon their seniority of substantive rank of Major/Sqn.

Ldr./Lt. Cdr., subject to any penalty /loss of seniority that an• officer might suffer subsequently and tbe seniority of officers with substantive ranks higher than Major/Sqn.

Ldr./Lt. Cdr. will after their permanent secondment, also reckon vis-a-vis other officers in the R&D Cadre, fer future promotion/confirmation, from the date of their substantive rank of Major/Sqn. Ldr./Lt. C.dr., subject to any penalty/ loss of seniority that an officer might have suffered in his parent Arm/Service."

The principal contention advanced by the appellant before us is that the principle for determination of seniority laid down inthe above rule is arbitrary and violative of Articles 14 and 16 of the Constitution. Alternatively, it is contended by the appellant that since he had been permanently seconded to the R&D Organisation in 1971, long prior to the promulgation of the impugned rules, his rights regarding seniority and promotions cannot, in any way, be effected by the provisions of the new rule. According to the appel- lant, he continues to be governed by the principles that had been originally laid down in Government of India (Ministry of Defence) Memorandum dated March 18, 1967, which were the rules in force at the time of his secondment to the R&D Organisation. It is the further case of the appellant that the R&D being an independent

Organisation, the seniority of the personnel absorbed therein has to be reckoned only with reference to the dates on which they were

sUPREMB cOtJkt REPoRTs (19Si) 3 ~.C.R.

selected and appointed in the said Organisation and subsequent entrants into the R&D in any particular category or rank should, therefore, be placed only below all those who had already joined the Organisation by virtue of permanent secondment. The appellant also contends that by taking the date of substantive appointment to the rank of Major/equivalent as the basis for reckoning seniority, officers who had obtained substantive promotions to higher ranks in the parent service earlier than some of their seniors who were only subsequently promoted to such higher ranks, will suffer very serious prejudice because the latter will gain a march over the earlier promotees and supersede them in the matter of seniority in the R&D Organisation. Elaborating this plea, it was urged on behalf of the appellant that the result of the impugned rle would be to bring about the anomalous situation where a penon permanently seconded to the R&D and holding substantively the rank of Lt.Col./equivalent can be superseded in seniority in the said Organisation by a Major/equivalent of old vintage who had been overlooked for promotion in his parent service and may have thereupon come over to the R&D Organisation. Another objection strongly put forward by the appellant was against the lateral induction of officers at levels higher than that of substantive Major/equivalent. It was urged by the appellant that such subsequent inductees into the R&D Organisation cannot be legally assigned seniority above . those a.lready borne on the cadre, irrespective of the substantive rank held by them at the time of their intake into the R&D. The appellant has rested this contention on the premise that the intake of officers into the R&D is by a selection based on merit and hence those selected earlier must necessarily rank higher in the seniority list of the Organisation in relation to those who are selected and appointed in the Organisation only on later dates.

The appellant has urged a further point before us that the seniority of officers of the Navy, Army and - Air Force holding equivalent ranks who served in the Organisation is governed by the principle laid down in, Regulation No. 251 of the "Naval Ceramonials, Conditions of Service and Miscellaneous Regulations, 1964", and the impugned rule in so far as it is contrary to the principle laid down in the said Regulation has to be declared as invalid and inoperative. Some other incidental pleas and grievances were also put forward by the appellant before the High Court as well as before us and we shall be dealing with them later on at the appropriate stage.

The learned Single Judge of the High Court rejected all the aforesaid contentions advanced by the appellant and declined to

~\

J. KUMAR v. UNION OF INDIA (Balakrishna Eradi, J.) . 459

grant any relief to him, except to the extent of directing the R&D Organisation to issue the tentative seniority list drawn up in accordance with the impugned rule within three months from the date of the judgment and to record the Annual Confidential Reports on the appellant from April 1, 1976 to March 3.1, 1979 within the same . . period. The Letters Patent Appeal filed by the appeJJant against the said judgment having been dismissed in Ii mine b;· a Division • Bench of the High Court, the appellant has preferred this appeal after obtaining special leave from this Court.

The Defence Research and Development Organisation (R&D) has been set up under the Ministry of Defence for carrying on scientific and technological research and development work on projects of vital importance to the defence forces of this country. The head of the said Organisation is a civilian, namely, the Scientific Adviser to the Defence Ministry and its personnel consist of a large number of civilian scientists and a much smaller number of service officers drawn from the three defence services. The service officers "are initially taken on short tenure and are later permanently seconded to the R&D Organisation if found suitable and willing.

Those service officers who were permanently seconded and absorbed in the R&D cadre are thereafter governed by the terms and conditions of service applicable to the officers of the said cadre.

Originally, the Defence Research and Development Organisation (R&D) and the Director-General of Inspection (DGI) had a combined cadre-Research Development and Inspection-and the terms and conditions of service of the personnel borne o0 the said cadre were governed by the provisions contained in Government of India (Ministry of.Defence) Memorandum No. 11/(5)/58/D-(R&D) dated March 18, 1967.

But, those rules which had also been issued by the President of India under the proviso to Article 309 of the Constitution did not contain any provision laying down the principles for determination of the seniority of the officers functioning in the DRD&I Organisation. Those rules were in force at the time when the appellant was permanently seconded to the DRD&I Organisation in 1971.

Jn the writ petition filed in the High Court, the appellant had impleaded 8 officers of the R&D Organisation, r.amely, respondents . nos. 7 and 11 to 17 contending that they have been assigned seniority and granted promotions in supersession of the appellants's legitimate claims and ill viol11tio11 of the l'll!e•: n \h~ appeal before,

460 SUPllBMB COURT llBPOllrS (!982) 3 S.C.ll.

this Court, the appellant had added several more service officers of the R&D as additional respondents. the appellant argued his case in person and so did some of the respondents whose promotions ind seniority etc., have been challenged by the appellant.

Arguments advanced by the parties appearing in person were heard by us at considerable length and S'lri P.A Francis, Senior Advocate, appearing on behalf of Respondents Nos. I and 2, namely, the Union of India and the Director-General, R&D Organisation, also addressed arguments before us covering all the aspects.

As already noticed, the main contentions put forward by the aupellant are two-fold, namely, that the principles laid down in rule 16 of the rules for determination of the seniority of officers permanently seconded to the R&D are arbitrary and illegal, and that lateral induction of officers holding r_anks above substantive Major/ equivalent and assigning of seniority to such subsequent inductees by applying the provisions of rule 16 amounts to deprivation of the vested rights of persons-like the appellant-who had joined the '" Organisation earlier and it is, therefore, illegal and unwarranted.

After aiving our best consideration to the arguments advanced on both sides, we do not see any substance in either of the aforesaid contentions advanced by te appellant.

The Defence Research Development and Inspection Organi sation is a Specialised Technological Organisation set up under the - Ministry of Defence for carrying out research and development work in weapons like guns, electronics, missiles, tanks etc. Its personnel consist of a large number of civilian scientists (about 3,600) and about 430 service officers drawn from all the three Wings of the Armed Forces with operational experience of such weapon system to work with the scientists in the research and development programme. The policy followed in regard to the intake of service officers appears to have been to take them initially on a tenure basis and subsequently to absorb them in the Organisation on a permanent basis in the event of their being found suitable and willing. It is seen from the affidavits and documents filed on behalf of the respondents that the secondment of service officers depended upon the exigencies and the special type of need of the Organisation at each relevant point of time so much so that officers who could fill the bill by virtue of their qualification, experience, aptitude and suital>ility in that particular lm1m;4 of defe~W science for which the neecl

:,,·

1. KUMAR v. UNION OF INDIA (Balakrishna Eradi, J.) 46!

for personnel had arisen and whose services could be spared by their parent service were taken into the R&D Organisation from time to time. Since the officers from the three services came to the R&D cadre with different lengths of service a11d at different levels, it became imperative to evolve a reasonable principle for determination of their inter se seniority after their secondment to the R&D Organisation.

The case of the respondents is th.at right. from the beginning, the policy and practice followed by DRD&I Organisation as well as - -.....__ '-- . by the bifurcated R&D Organisation was to assign seniority with reference to the date on which the officers attained their rank of substantive Major/equivalent. This was, however, strongly refuted by the appellant who asserts that no such principle had been formulated or followed by the Organisation prior to the promulgation of the impugned rules. The respondents produced for our perusal various files pertaining to the determination of seniority and grant of promotions in the Organisation during the period , prior to the issuance of the impugned rules. The appel!l(tlt pointed out with reference to those very files that there were quite a few instances where promotions had been effected on a basis. totally at variance with the principle propounded by the respondents.

From a scrutiny of the files of the Ministry of Defence-R&D E -

Organisation-produced before us by the learned counsel appearing on behalf of the Go:vernrrient of India, it has clearly emerged that, excepting for a few stray instances, the practice followed in the R&D Organisation was to reckon the seniority of the permanently seconded officers wjth reference to the date of their attaining substantive rank of Major/equivalent. The principle underlying the said practice was later formally incorporated in the Minutes of the DRD&l Selection Board as a decision taken by the Board at its meeting held in February 1974. The relevant paragraph of the Minutes runs thus :

"Officers with substantive ranks higher than Maj/Sqn Ldr/Lt Cdr who are offered permanent secondment will reckon their substantive seniority in the R&D/Inspection Organisation for future promotion/confirmation from the date they got their substantive ranks as Maj/Sqn Ldr and subject to any penalties as regards loss of seniority that they might have suffered in thir Arm/Service thereafter. The

SUPREME COURT REPORTS ·

(1982] 3 !.C.R.

position as above should be clarified to the officers concerned and their acceptance obtained before issuing the orders of permanent secondment in such cases. These decisions will apply to cases of permanent secondment approved by the RD&I Selection Board from 2(74) meeting onwards."

It is also seen from the files pertaining to the period subsequent to February 1974 that the aforesaid principle was thereafter consistently followed as a binding rule and when it was found that a departure from the said principle had been erroneously made by placing three Air Force officers in their substantive rank of Wing Commander, the authorities concerned rectified the said mistake ' after clearly noting in the file that the aforesaid principle went unnoticed by oversight during the processing of those cases by HQ, R&D and the ranking of those officers \\'as revised so as to bring it into conformity with the aforesaid rule.

The relevant file leading up to the issuance of the impugned rules was also carefully perused by us. This file contains the Minutes of the Chief of Staff Committee recommending to the Government of India that the draft rules may be finally accepted and issued expeditiously and the noting therein also contains a clear statement that the principle incorporated in the decision taken at the combined meeting of' the DRD&I Selection Board held in February 1974 w11s merely to incorporate "a rule which was unwritten earlier but actually applied in practice". Thus, there is sufficient material available on record to substantiate the plea put forward by the repondents that the policy and practice followed in the DR&DI Organisation an<l later in the R&D Organisation was to fix the seniority of permanently seconded officers with reference to the date of attainment of the rank of substantive Major/ equivalent.

Further, the impugned rules are statutory in origin as they have been promulgated by the President of India under the proviso to Article 309 of the Constitution. Rule 16 co0tains a categorial declaration that in the past also the seniority of service officers permanently seconded to the R&D Organisation was being reckoned on the basis of their dates of attainment of substantive rankM of Major/Sqn Ldr/Lt Cdr. subject to any penalty/loss of seniority that an officer might suffer subsequently. The said declaration is clearly implied in the openin!! words "As hithertofore" occurring in rule 16

i. KUMAR v. UNION OF INDIA (iJaiakrishna Eradi, J.) 463

of the impugned rules.

A statement contained in a statute or statutory rule of the factual background leading up to the enactment has ordinarily to be accepted and acted upon by the court as wholly correct; nothing clinching has been brought to our notice by the appellant to justify any departure from the said principle. We do not, therefore, find it possible to accept the contention of the appellant that prior to the corning into force of the impugned rule, he had acquired a vested right to have his seniority in the R&D reckoned with reference to the date of his permanent secondment and to have all officers joining the Organisation on subsequent dates ranked only below him. The plea advanced by the appellant that the impugned rules . have illegally purported to divest hfm of his vested rights of seniority and promotion in the R&D must, therefore, be rejected as devoid of merit.

Apart from what is stated above, it is settled law that the service conditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in the rules and except to the extent ofprotecting promotions that have already been earned under the previous rules, the revised rules will operate to govern the seniority and future promotion prospects of all the persons in the concerned service.

There is, therefore, no substance in the argument advanced by the appellant that it was not open to the Government of India to introduce. a new principle of seniority by promulgation of the impugned rules so as to affect his ri&hts for future promotion.

The next question to be considered is whether the principle enunciated in rule 16 can be said to be unreasonable or arbitrary, as contended by the appellant. It is in this context that the specialised character of the R&D OrganlSation assumes importance. Its personnel consist of civilian scientists and service officers of high technological at•ainments in diffrent disciplines who have been drawn to the Organisation from time to time according to its exigencies and needs.

The structure and composition of the Organisation have necessarily to undergo rapid qualitative and quantitative changes in the light of the fast developments that take place ia the field of science and technology as well as in international relations. The research and development work is carried on by the R&D in different systems of weapons and equipments and a variety of disciplines like electronics, missiles, tanks, telecommunication, rocketry, radars ' .

SUPBEME COURT REPORTS ' [1982] 3 s.c.R.

etc. In addition to about 3,600 civilian scientists, the Organisation . bas about 160 permanently seconded service officers and about 430 service officers taken on a tenure basis. The intake of service officers is not on the basis of any general selection from service cadres. As and when the Organisation finds it necessary to obtain .the services of officers with operational experience in any particular weapon system cir other scientific discipline, suitable hands wit' aptitude skill and experience in that particular branch or speciality whom their parent service is willing to spare for deputation are initially taken on a tenure basis. Thus, there is a . selection only in a very limited sense that the suitability of the concerned officer is adjudged before he is taken.

Bnt what is important to note is that in the intake of officers into R&D Organisation there is n~ comparative evaluation of the merits of the other personnel occupying the same rank oi possessing like experience in the Defence Services. There is no process of select.ion. in whih their claims or merits are considered. Thus, it is clear that the secondment of officers to the R&D Organisation is not effected on the basis of a general selection.

There is, therefore, no substance in the contention advanced by the appellant that the service officers who are seconded to the R & D on a later date must take rank only below all those who had joined the Organisation earlier by virtue of their prior "selection". Officers who are senior in the parent service.in relation to the person who is seconded and who may possesfl greater experience and superior attainments might not have been considered for secondment when their juniors in the service were seconded to the R &D Organisation, because the parent service might not have been in the position at the relevant point of time to. spare the s.ervices of the former.

Further, the disciplinewise reqnirementin the R & D at any particular tiine will depend upon the nature of the project then taken on hand and posting of a service officer to the R & D Organisation will be on the consideration of his experience and apptitude for that particular type of specialised work and not seniority in the parent service. It may well happen that a junior officer who has experier ce and expertise in that special discipline alone may be considered for secondment at that particular , time. Thus, the entry of a service officer into the R & D is to a large extent dependant on fortuitious circumstances related to the exigencies and needs that arise in the Organisation from time to time. It is certainly not based on the result of any comparative evaluation of his merit, ability or suitability as against_those of his compeers m the concerned parent service. . Such being the factual situation, we are of t.Jie view that

i. ituMAR v. uNiON oF INDIA (1Jalakrishna Eradi, J.) 46~

it will not be reasonable, just or fair to determine the seniority of A the permanently seconded service personnel merely on the basis ofthe date of their secondment to the Organisation.

The next question to be considered is whether the principle for determination of seniority laid down in the impugned rule 16 is just, fair and reasonable or whether it is arbitrary and violative of Articles 14 and 16 of the Consitution, as contended by the appellant.

The R & D Organisation has in its cadre service officers who were taken initially on tenure basis from the Army, the Air Force and the Navy and were later on permanently seconded into the DRD & I/ R & D cadre on their being found suitable and willing.

The contention of the appellant is that on such permanent secondment into the R & D, the interse seniority of the officers should be reckoned only with reference to the dates of their selection for such permanent secondment. It is the further plea of the appellant that since at the time of permanent secondment the oflker concerned has to certify in writing that he is relinguishing all his claims of seniority etc., in his parent service, no weightage can thereafter be given to the rank or seniority which the person inducted had earned in his parent service prior to the date of his permanent secondment.

We do not find it possible to accept this contention. Officers from the three Services holding different ranks are inducted into R & D Organisation from time to time depending upon the needs of the Organisation, and if the appellant's contention is to be accepted, it would lead to serious anomalies and manifest injustice by upsetting the norms of seniority and rank structure which is the basic fabric on which the Armd

Forces of the country are built.

The unreasonable -consequences that will flow from the acceptance of the appellant's arguments will be clearly seen from the following simple illustration :

Suppose, in the year 1974, on a particular date, when two officers are working in the Air Force-:-one as a Wing Commander and the other in the higher rank of Group Captain-the Wing Commander is permanently seconded to the R & D Organisation and, later, the Group Captain is also permanently seconded to the R & D in 1975. If the principle advocated by the appellant is to be accepted, the Group Captain will become junior to the Wing Commander by virtue of the latter's earlier induction into the R & D despite the fact that he had not been even considered for secondment to the R & D at the time when the Wing Commander was taken. . -

SUPREME COURT RHPORTS (1928] 3 s.c.ll.

In view of our having already found that the appellant's contention that the secondment to the R & D is based on a "selection" is incorrect, the basic premise' on which the appellant has founded his plea that the date of secondment should be the determinative factor for reckoning seniority in !be R & D cadre, falls to the ground.

Since officers from different sources are taken into the R & D for meeting the disciplinewise requirements arising in the Organisation from time to time and they are brought into a common pool on such permanent secondment, it is inevitable that a reasonable principle has to be evolved for fixation of their inter se seniority within the R & D cadre. The fixation of the seniority on the basis of the ranks held by them in the different branches of the Armed Forces would not be reasonable or fair, because substantive ranks above Major/equivalent in the three Wings of the Armed Forces are conferred by different Selection Boards at different times and under varying circumstances and conditions depending upon the vacancies arising at the different levels in the distinct services from time to time. It is pointed out in the counter-affidavit filed on behalf on the Union of India (Respondent No. I) that the promotional chances of officers belonging to the three distinct Wings of the Armed Forces to posts above the rank of Major/equivalent vary widely and dependant upon fortuitious circumstances which may obtain ., in relation to the distinct services at any relevant point of time. We find there is force in this submission. In all the three Services, the promotions up to and inclusive of the rank of Major/equivalent are time-scale promotions based only on fixed len&th of service. In the Air Force and the Army, the ranks of Major and Sqn. Leader, respectively, are attained on an officer puttingin 13 years' service. In the Navy, the time-scale period for promotion to the equivalent rank of Lt.

Commander is said to vary between about 10 and 13 years.

But, what is important to notice is that 'the promotion to the rank of Major/equivalent is based only on length of service and not on any "selection". For posts higher. than that of Major/equivalent, promotions in all the three Services would depend upon. the occurrence of vacaacies in the particular branch or group in the concerned Service, the schemes of expansion that may be taken up from time to time in the particular Service or branch and also the. extent of stagnation that may be caused to officers at lower levels by reason of the officers who are young in age occupying posts in the immediate higher levels, etc. When due regard is had to all the aspects and circumstances, narrated above, it will be seen that the

. '

• ~.

j, itUMAR v. UNION OF INDIA (/Jafakrishna Eradi, J.) 467

principle adopted under the impugned rule of reckoning seniority with reference to a date of attainment of the rank of substantive Major/equivalent strikes a reasonable mean as it ensures to .all the service officers in the R & D the fixation o(seniority in the integrated cadre giving full credit to the length of service put in by them in their respective parent services.

A similar seniority rule fol'!llulated by the State of Maharashtra in a somewhat like situation, when an integrated cadre consisting of personnel drawn from different sources was.formed in the State of Maharashtra for, administering the Rationing Scheme, was recently upheld by this Court in R.S. Makashi & Ors. v. J.M. Menon &

Ors.(')

The following observations contained in that judgment are apposite in the present .context :

"When personnel drawn from different sources are being absorbed and integrated in a new department, . it is D primarily for the Government or the executive authority concerned to decide as a matter of policy how the equation of posts should be effected. The courts will not interfere with such a decision unless it is shown to be arbitrary, unreasonable or unfair, and if no manifest unfairness or unreasonableness is made out, the court will not sit in E appeal and examine the propriety or wisdom of the principle of equation of post9 .adopted by the Governments."

In enunciating the principle incorporated in the impugned rule, the rule-making authority has adopted as the base for reckoning seniority the highest common factC>r applicable in respect of time scale promotions in the three services, namely the rank of Major/ equivalent and thereby ensured to the service officers seconded to the R & D Organisation a just and equitable treatment. The rule provides for the reckoning of the seniority of the seconded officers by taking into account the length of their service in the parent service, for which the date of attainment of the rank of substantive Major/equivalent would furnish a safe index. In our opinion, the said principle cannot be said to be arbitrary, unjust or unreasonable and the contention to contrary put forward by the appellant will, therefore, stand rejected.

(I) [1982) I s.c.c. 379.

.ff

468 SUPREME COURT RilPORtS [ i 9s2j 3 s.c.it.

It is no doubt true that in the Navy, promotions te the rank of Lt. Commander which• is equivalent to that of Major in the Army may be -attained by an officer within a slightly shorter period of service, namely, between IO and 13 years whereas, in the Army and the Air Force, the promotion to the rank of Major/equivalent is given only on completion of 13 years of service. The slight disparity in the promotion prospects between the Navy and the other two Serviceswill not, however, affect the reasonableness of the impugned rule because it is impossible to achieve perfect arithmetical precision in such matters where officers. drawn from different sources are to be integrated into one common cadre and a rule for fixing their inter se seniority is formulated.

Further, it is seen from the counter-affidavits of Respondents I to 3 that out of about 160 permanently seconded officers of the R & D Organisation, the large majority are from the Army, a considerable section of the balance is from the Air Foree and only less than 10 officers have come from the Navy.

It is also relevant to notice in this context that it is specifically provided in rule 4 oftbe impugned rule that t_he intake of service officers to fill appointments in the R & D Organisation will ordi narily be at Major/equivalent level. Under rule 5, officers in higher ranks should be considered for permanent secondment only in exceptional cases and when such a course is adopted, it will be subject to the condition that their seniority in the R & D cadre will be fixed as stipulated in rule 16. The incorporation of the afore' said provisions which operate as a safeguard against large scale induction of officers above the substantive rank of Major/equivalent further fortifies the conclusion arrived at by us that the adoption of the date of substantive Major/equivalent as the criterion for fixing inter se seniority in the R & D cadre was logically fair, just and reasonable.

The appellant sought to rely strongly on Regulation 251 of the Naval Ceremonials, Conditions of Service and Miscellaneous Regulations, 1954 and on the provisions contained in the Order A0102/73.

Regulation 251 provides that "the relative seniority of officers of the Army, Navy and Air Force, holding equivalent ranks, who ·

serve together in an Inter-service Organisation will be regulated as follows." The latter Order is in the following terms : ·

"(a) Officers holding equivalent substantive rank (no acting rank) will rank .according to their seniority in the substantive rank ; and

-"-· .•

), K{/MAR v. tJNiON oF INDIA (Ba/akrishna Eradi, J.) 469

(b) Officers holding acting rank will rank after officers A holding corresponding substantive rank and in relation to each other, they will rank according io their seniority in the substantive rank."

In our opinion, neither the Regulation aforementioned nor the Order, extracted above, has any application to the present situa-

. B tion. The R & D Organisation is not an lnter-servic, ll Organisation within the meaning of the expression as used in the aforementioned Regulation and Order.. It is predominantly a civil organisation headed by a civilian Director-General and having a total strength of about 24,000 employees. The large majority of the personnel working in the R & D Organisation are civilian scientists who are more than 3,000 in number, there are also about 160 service officers permanently seconded to the R & D cadre and about 240 service officers taken on tenure basis. But, merely because the R & D Organisation has on its staff serving officers from the Army, Air Force and Navy, it cannot be Said to be an "Inter-service Organisation" governed by the provisions of the aforesaid Regulation and Order. The topic°dealt with in the aforesaid Regulation and Order

is only "seniority" for purposes of command, precedence, discipline etc., for working purposes to be allied in situations where officers from more than one service operate together in one group as in times of war for carrying out any particular mission or task. ·

Another argument advanced by the appellant was that the impugned rule cannot be upheld as valid inasmuch as it is in conflict with paragraph 7 of the Government of India Offioe Memorandum No. 9372Estt(D), Cabinet Secretariat, Department of Personnel, dated July 22, 1972, which is in the following terms :

"7. Transferees :-(I) The relative seniority of persons appointed by transfer to Central Services from the subordinate offices of the Central Government or other department shall be determined in accordance with the order of their selection for such transfer."

We see no substance in this contention. The secondment of an officer from his parent service to the R&D is not a transfer to Central Service from a subordinate service or from another department.

Further, the impugned' rule being statutory in origin, its validity cannot be affected by reason of any inconsistency with the provisions of a prior executive order issued by the Central Government.

470 SUPREME COURT REPoRTS [19.82j 3 s.c.R.

An allegation has been put forward by the appellant that "the letter dated November 23, 1979 was a fraud on rules and the Consti'tution, played by respondent no. 5 who got the same issued to obtain personal gain by misusing his official position, leading to colourable exercise of power by the authority who actually issued that letter". To put it mildly, we find that this is a reckless alle gation devoid of any factual basis.

We h'ave gone through the files leading up to the issuance of the impugned rules and it is seen therefrom that the matter has been processed by different authorities at different stages and before the draft rules were ultimately submitted to the Government of India for approval, they had been considered and approved at a joint meeting of the Chiefs of Staff also.

Equally untenable is the further plea advanced by the appellant that since the R&D is an integrated cadre, there cannot be any further classification of the officers comprised therein on the basis of the length of service put in by them in their respective parent D services prior to their permanent secondment in the R&D. As pointed out by this Court in the decision in R. S. Makashi v !. M.

Menon (supra), ir is a just and wholes?me principle commonly applied in such situations where persons from different sources are drafted to serve in a new service that their preexisting length of service in the parent department should be respected and preserved E by taking.the same into account in determining their ranking in the new service cadre. Such a provision does not involve any discrimination violative of Article 16 of the Constitution.

Yet, another argument advanced by the appellant is that the Impugned rule not having been specifically declared to be retrospective in operation, its provisions cannot be applied to the appellant inasmuch as he had been inducted into the R&D cadre on October 14, 1971 long prior to the promulgation of the new rules. We have already found that, as a matter of fact, the practice generally followed in the R&D Organisation, even prior to the promulgation of the impugned rules, was to reckon seniority with reference to the date of attainment of the rank of substantive Major/equivalent.

Even otherwise, when a statutory rule governing seniority is issued in respect of a service, the said rule would govern the personnel in the service with effect from the date of its promulgation and in so giving effect to the rule in future, there is no element of retroactivity involved.

Of course, the rules will not operate to deprive any person of promotions already earned in the past, but, for purposes

J, KUMAR v. UNION OF INDIA !Balakrishna Eradi, J.) 471

Of future promotions and seniority in the department, the principles A laid down in the impugned rule will necessarily govern all the personnel alike. This contention of the appellant has also to fail.

 It was very strongly contended by the appellant that the lateral induction of senior service officers holding ranks above the subs tantive Major/equivalent level operates to deprive the existing R&D personnel of their vested rights to promotions within. the cadre and hence, such inductions must be held to be illegal and void. This contention ignores the fact that rule 5 specifically provides that in exceptional cases, officers above the rank of Major/equivalent may be drafted into the R&D. The contention of the appellant appears to us to be based on a fallacious assumption that the R&D cadre exists for the sake of the personnel working therein and not for effectuating the purpose underlying its constitution which is of such vital importance to the Nation's safety. The Organisation has been formed with a view to have a highly specialised cadre of techno logical and scientific experts to design and develop military hardware etc., for the Armed Forces of the country keeping abreast of the latest developments and advances in the field of defence science .• To effectuate this purpose, such an Organisation by its very nature cannot remain static or stagnant, but has to be constantly expanding qualitatively and quantitatively. The personnel requir•ments of the Organisation are, therefore, bound to change from time to time and to meet such changing needs, the services of qualified experts with specialised knowledge, skill and experience will have to be enlisted from time to time. A particular service officer in the Army, Air Force or Navy may be the best person suited for being placed in charge of a specialised job newly taken on band, and in such a situation the Organisation must have the freedom to indent for the services of the officer concerned irrespective of the rank that he may be holding in his parent service. We do not find it possible to recognise any right in the officers already working in the R&D to obiect to the lateral induction of senior officers under such circumstances.

The contention put forward by the appellant that lateral inductions into the R&D cadre constitute an illegal deprivation of the vested rights of persons already working therein and are consequently illegal and void, cannot, therefore, be accepted.

The next point urged by the appellant is that since the im pugned rules disturb the previously fixed seniority, it is guasi judicial in nature and they ought to h11ve been issued only aftef

SUPREME COURT REPORTS

[1982) 3 S.C.R,

giving notice to all the affected persons. We have already found th• t no alteration in the pre existing policy relating to determination of seniority in the R&D has been brought about by the impugned rules. Quite apart from that, the promulgation of a statutory rule governing seniority is not a quasi-judicial function. It is the exercise of a legislative power and in respect thereof the principles of natural justice have no application at all.

Detailed facts pertaining to the history of service of the various officers impleaded in the appeal as respondents were referred to by the appellant during the course of bis arguments, and such of the respondents who appeared in person countered those submissions by placing before us, what, according to them, are the correct facts relating to their service history. The challenge made by the appellant against the ranking and seniority of the officers impleaded as reipondents is based solely on his contention tha.t the seniority principle enundated in rule 16 is arbitrary, illegal anc! ultra vires and that, in any event, the said principle cannot be applied to him. The said contention has been found by us to be untenable. Hence, it is not necessary for us to refer to the details regarding the service history of •.he appellant vis-a-vis those of the service officers who have been impleaded as respondents in the appeal.

In the light of our foregoing discussion, it follows that the High Court was perfectly. right in upholding the validity of the impugned rule and in rejecting the challenge raised by the petitionerappellant against the selections, inductions and , promotions made in the R&D Organisation on the basis of the said rule.

In the course of his submissions befere this Court, the appellant put forward a grievance that, notwithstanding the directions issued by the High Court in its judgment under appeal, he has not been given any posting or assign men!.

Counsel appeario g on behalf of the Union of India and the Scientific Adviser to the Defence Minister made available for our perusal the files relating . to the appellant's posting to the D R&D Laboratory at Hyderabad and the allotment of specific assignments therein to the appellant from time to time. Having gone through the files, we have come to the conclusion that there is no factual foundation for the grievance put forward by the appellant, and hence no directions from this Court are calledfor in regard to the said matter. We are purposefully refraining from dwelling in greater detail on this aspect lest any observations that we may make should prejudicially affect the future

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J. KUMAR v. UNION OF INDIA (Ba/akrishna Eradi, J.) 473

service prospects of the appellant. We, however, consider it necessary to observe that the appellant would do well to rid himself of the obseession that all his official superiors are put to harass or persecute him and open up a new chapter of devoting his high talents and skills for advancing the effectiveness of the R&D Organisation.

The charges put forward by the appellant in the Contempt Application (C.M.P. No. 5698 of 1981) and in C.M.P. No. 69 of 1981 filed by the appellant under Section 340(1), Code of Criminal Procedure are bereft of merit and those applications will accordingly stand dismissed.

In the result, we dismiss this appeal but direct the parties to bear their respective costs.

N.V.K .

Appeal dismissed.

WING COMMANDER J. KUMAR

UNION OF INDIA AND OTHERS

A.O. KosHAL

V. BAL>.KRJSHNA ERADI

R.B. MISRA, JJ.

Constitution of India

Art. 309

Articles 14 and 16

Government of India

Article 16

J. Kumar

I

P.A. Francis

Narayan Nettar

A. Subhashlni

BALAltRISHNA ERADI

September 3, 1956

Ministry of Defence

October 14, 1971

Article 309

November 23, 1979

Articles 14 and 16

March 18, 1967

April 1, 1976

March 3.1, 1979

Defence Ministry

India

Article 309

P.A Francis

Union of India

Balakrishna Eradi

Ministry of Defence-R&D

DR&DI Organisation

Article 309

iJaiakrishna Eradi

Articles 14 and 16

SUPREME COURT RHPORTS (1928] 3 s.c.ll.

Union of India

/Jafakrishna Eradi

State of Maharashtra

akrishna Eradi

The latter Order is in the following terms : ·

"(a) Officers holding equivalent substantive rank (no acting rank) will rank .according to their seniority in the substantive rank ; and
"-· .•

), K{/MAR v. tJNiON oF INDIA (Ba/akrishna Eradi, J.) 469

(b) Officers holding acting rank will rank after officers A holding corresponding substantive rank and in relation to each other, they will rank according io their seniority in the substantive rank."

R & D Organisation

July 22, 1972

Central Government

Article 16

Hyderabad

Section 340(1)

Code of Criminal Procedure


A 474

THAKUR NARAIN SINGH

STATE OF RAJASTHAN

March 5, 1982

[A.D. KOSHAL, V. BALAKRISHNA BRAD! AND

R.B. MISRA, JJ.]

Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, Jtction 6(3)

(a) (i) read with the definition of"settled village" in section 2(n)-Scope of.

Thakur Sangram Singh, the father of the appellant was a jagirdar of Thikana Diggi in the erstwhile State of Jaipur. Hisjagir was resumed on 1st of July, 1954 under section 21 of the Rajasthan Land Reforms and Resumption of D Jagirs Act, 1952 entitling him to compensation on the date of resump.tion of his jagir under section 26 of the Jagirs Act. The compensation was to be determined according to the principles laid down in the Second Schedule attached to the Act. If the jagir was a ett1ed one the compensation would be assessed on the basis of the rent rates as settled in settlement operation which were prevalent on the date of resumption and <:S entered in the Revenue records of the village within the meaning of section 6(3) (a)(i) read with the definition of "settled village"' con- E tained in section 2(n). If on the other hand, the jagir was an unsettled one the compensation would have to be assessed on the actual income from the rents during the three agricultural years: 1949-50, 1950-51 and 1951-52 as provided in section 7 of the Act.

Prior to the date of resumption settlement operation were going on under the Jaipur State Grants Land Tenures Act, 1947 in respect of the jagir. The rent rates proposed by the Settlement Officer were published in the Rajasthan Gazette dated 23rd of August, 1952. The rent rates fixed were made applicable with effect from 1st of July 1953 and, therefore, on the date of resumption, namely, on Ist July, 1955, rent rates assessed by the Settlement Officer and approved by the Government were in force, for the purpose of payment of compensation under the Jagirs Act.

Sangram Singh challenged the validity of the rent rates fixed under the settlement operation by means of a writ petition No. 308 of 1953. The High Court quashed the order settling the rent rates being. in -flagrant violations of sec. 82 (!)(a) and (b) of the Jaipur State Grants Land Tenures Act, 1947 with a direction to settle fresh rent rates in accordance with the said provision. Pursuant to the order of the High Court fresh rent rates were settled by the Settlement Officer on 6th of June, 1955 with retrospective operation from !st July, 1953.

According to the new settlement the total rental income from the jagir wa:& reduced from Rs. 1,31,657.48 to Rs. 82,501.50.

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THAKUR NARAIN SINGH V. RAJASTHAN 475

The Jagir Commissioner by his order dated 25th November, 19fi0 granted compensation on the basis of the rent rates assessed in 1955. The Jagirdar unsuccessfully preferred an appeal before the Board of Revenue. Sangram Singh died in the mean time so his' son the appellant challenged the order of the Board of Revenue on two grounds: (1) that the co1npensation should have been assessed on the basis of rent rates determined in 1953 as it stood on the date of resumption. (2) or in the absence-of a valid settlement on the basis of actual income from rents during the three agricultural years. Treating the Jagir as unsettled, the High Court rejected both the grounds. Hence the appeal by certificate under Article 133 (1) (a) of the Constitution.

Allowing the qppeal and remanding the case, the Court

HELD: I. As a result of the quashing of the order of Settlement of rent rates of 1953 by the High Court, the jagir would be taken as an unsettled one on the date of resumption. The quashing of the order of Settlement only means tabula rasa (dean slate) as if there was no determination of rent rates in 1953.

[479 E-F]

2. The criterion to determine whether a particular jagir is a settled one or not is to see whether the rent rates determined in settlement operations have been made applicable. It is only from the date of effectuation of a valid settlement of rent rates in respect of a particular jagir which makes the jagir a settled one. [480 C-D]

3, Section 86 of the JaiPur State Grants Land Tenures Act, 1947 clearly indicates that the rent fixed by the SettlemeLt Officer shall normally be payable from the first of July next foliowing the date of such order and.further authorises the Settlement Offier to make the same shall be payable from some earlier date.

The realisation of rent from a retrospective date will not make the jagir in ques- -tion a settled one as from that date. The settlement of rent rates is one thing and the realisation of rent on the basis of the settlement is quite another. In the case of a settled village the compensation would be determined on the basis of the rent rates settled during the settlement operation recorded in the Revenue Papers on the date of resumption. Thus it is the effectuation of the rent rates determined during the settlement mape prior to the date of resumption which would make the village a settled village as on that date. [480 F-HJ

In the instant case, the jagirdar became entitled to compensation on the date of resumption. If the village was an unsettled village on the date of resumption he would be entitled to con1pensation on the basis of the village being un

settled. The right of compensation vested in the jagirdar on the date of resumption and he could not be deprived of bis right by a subsequent amendment unless

the amendment in law specifically or by necessary implication provided for depriving the jagirdar of his vested right. There is nothing in the definition of tho term "settled" under sec. 2 (n) of the Act or in sec. 86 of the Jaipur State Grants Land Tenures Act to indicate that the Legislature intended to affect the vested right. [481 AD] '

CIVIL APPEL~ATE JURISDICTION : Civil Appeal No. 1825 of 1970.

From the Judgment an order dated the 28th August, 1969 of the Rajasthan High Court in D. B. Civil Writ No. 365 of ~- 1962.

S.N. Kacker, K. K. Jain, P. Dayal & S. K. Gupta for the Appellant.

Badri Das Sharma for the Respondent.

The Judgment of the Court was delivered by

MISRA, J.

The present appeal by certificate granted under Article 133 (I) (a) of the Constitution is directed against the judgment of the High Court of Rajasthan dated 28th of August, 1969 dismissing writ petition No. 365 of 1962.

Thakur Sangram Singh~ the father of the appellant was a jagirdar of Thikana Diggi in the erstwhile State of Jaipur.

His jagir was resumed on 1st of July, 1954 under section 21 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, hereinafter referred to as 'the Jagirs Act, 1952'. The Jagirdar became entitled to compensation on the date of resumption of his jagir under section 26 of the Jagirs Act.

The compensation was to be determined according to the principles laid down in the second schedule attached to that Act.

He filed his claim for compensation in August, 1954.

He claimed compensation on the basis of rent rates which were in force on the date of resumption.

It appears that settlement operations were going on under the Jaipur State Grants Land Tenures Act, 1947.

The rent rates Pf•iposed by the Settlement Officer were published in the Rajasthan Gazette dated 23rd of August, 1952. The final proposals of the Settlement Officer were sanctioned by the Government on 25th of November, 1953.

The rent rates fixed were made applicable with effect from 1st of July, 1953.

Obviously, therefore, on the date of resumption, namely, 1st of July, 1954, rent rates assessed by the Settlement Officer and approved by the Government on 25th November, 1953 were in force.

Sangram Singh, however, challenged the validity of the rent rates fixed under the settlement by means of writ petition No. 308 of

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1953, which was allowed by the High Court qn 23rd of November, 1954, quashing the rent rates as they were in flagrant violation of section 82 (I) (a) and (b) of the Jaipur State Grants Land Tenures Act, 1947.

The High Court gave a direction for fresh rates to be proposed in accordance with the said provisions. Pursuant to the order of the High Court dated 23rd November, 1954 the rent rates were revised and fresh rent rates were fixed by the Settlement Officer on 6th of June, 1955 and they were applied retrospectively from !st of July, 1953. The revised rent rates were subs•antially lower than the rent rates assessed in 1953.

According to the rent rates of 1953 the total rental income from the jagir was Rs.131,657.48 while accor

ding to the revised rent rates the rental income was reduced to Rs. 82,501.50.

The jagirder again filed a writ petition No. 135 of 1955 for a direction to the State Government not to apply the rent rates assessed in 1955 retrospectively with effect from 1st of July, 1953. The High Court, however, held that it was open to the Settlement Officer to apply rent rates retrospectively under section 86 of the Jaipur Stale Grants Land Tenures Act, 1947.

But the High Court specifically left open the question whether or not the rent rates asses sed in 1955 and applied retrospectively from !St July, 1953 could form the basis for determining compensation payable to the jagirdar under the Act.

When the jagirdar filed his claim for compensation in August, 1954 his writ petition challenging the rent rates enforced by the Government. order dated 25th of November, 1953 was pending. The jagirdar, therefore, based his claim for compensation alternatively under sections 6 and 7 respectively of the Jagirs Act. As pointed out earlier, on the basis of the settlement of 1953 the rental income from the jagir came to Rs. 1,31,657.48. If on the other hand the jagir was taken to be unsettled, he was entitled to compensation on the basis of actual rental income for three years which came to about Rs. 3 lakhs. The Jagir Commissioner by his order dated 25th of November, 1960 granted compensation on the basis of rent rates assessed in 1955.

The jagirdar preferred an appeal before the Board of Revenue but the same was dismissed.

Sangram Singh died 'in December 1961 and the order of the H Board of Revenue was challenged by his son the petitioner appellant in the High Court of Rajasthan. Two alternative contentions were

raised before the High Coun on behalf of the petitioner : (I) that the compensation should have been assessed on the basis of rent rates determined in 1953 as they were the rent rates assessed on the jagir lands as entered in the revenue records of the village within the meaning of section 6 (3) (a) (i) read with the definition of 'settled village' contained in section 2 (n) as it stood on the date of resump tion; (2) that in the absence of a valid settlement on the date of resumption the jagir should be treated as. not being a 'settled village' and compensation . should be assessed on the actual income from rents during the three agricultural years; 1949-50, 1950-51 and 1951-52, as provided in section 7 of the Act.

The High Court declined to accept either of the contentions.

The first contention was rejected by the High Court on the ground that the petitioner was estopped from taking up the position by his own conduct inasmuch as his father had challenged the rent rates assessed in 1953 by means of a writ petition which was allowed and the rent rates assessed in 195 3 were quashed,. and secondly because the rent rates assessed in 1953 were a nullity and in the eyes of law there were no valid rent rates assessed and entered in the revenue records on the basis of which compensation could have been determined. The second contention was also negatived on the ground that fresh rent rates in accordance with the directions of the High Court were assessed in 1955 and were applied retrospectively with effect from 1st July, 1953 and, therefore, the jagir could not be taken to be an unsettled village. The petitioner has now come to challenge the order of the High Court by the present appeal.

It may be pointed out that if the jagir was a settled one the compensation would be assessed on the basis of the rent rates as settled in settlement operations, which were prevalent on the date of resumption. and as entered in the revenue records of the village within the meaning of section 6 (3} (a) (i} read with the definition of 'settled village' contained in section 2 (n). If on the other hand, the jagir was an unsettled one the compensation would have to be assessed on the actual income from the rents during the three agricultural years: 1949-50, 1950-51 and 1951-52 as provided in section 7 of the Act.

Shri S.N. Kacker has contended on behalf of the appellant that the rent rates settleil in 1953 having been quashed by the High

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• ...

(°'-- y

Court, the jagir would be deemed to be an unsettled village and, therefore, the compensation should be determined in accordance with the provisions of section 7 of the Act and not in accordance with the rent rates determined in 1953. From the observations made by the High Court itself it is evident that the rent rates notified in 1953 were quashed as invalid.

After the quashing of rent rates determined in 1953 it can by no stretch of imagination be said that the settlement made in . 1953 still stood for the purpose of deterninming the compensation for the jagir in question.

Shri Badri Das Sharma appearing for the State on the other hand has contended that it is true that the determination of rent rates in 19 53 had been quashed, but the High Court had directed re-determination of the rent rates in accordance with the provisions of section 82 and, therefore, the direction of the High Court was for rectifying the mistake that bad cropped in the determination of the rent rates of 1953 and if this be so, the rent rates determined in 1953 were still there and the compensation could be determined on that basis.

Having given our anxiou~ consideration to the contentions raised on behalf of the parties we are of the positive view that after the quashing of the settlement made in 1953 it cannot be said that the settlement of the jagir still existed. It is to be noted at this stage that the settlement of 1953 was quashed by the High Court on the ground that the procedure laid down in the statute had not ben followed.

The quashing of such an order only means tabula rasa (clean slate) as if there was no determination of rent rates in 1953. In this view of the _matter the jagir would be taken to be an nsettled village on the date of resumption .

Shri Badri Das Sharma, however, contended that pursuant to the direction of the High Court in Writ No. 308 of 1953 fresh rent rates were assessed in 1955 which were made applicable with retrospective effect from !st of July, 1953 and that, therefore, the rent rates assessed in 1955 will be taken to be the rent rates prevalent on the date of resumption and as such the Board of Revenue as well as the High Court were fully justified in taking the view that compensation was to be determined on the basis of the rent rates assessed in 1955. _In sµpport of bis contention Sbri Sharma referred to the definition of the 'settled village' in section 2 (n), which reads:

"(n) 'Settled' when used with reference to a village or any other area, means the village or other area to which the rent rates determined during settlement operations have been made applicable whether prospectively or retrospectively, and the whole of such village or other area shall be deemed, for the purposes of this Act and the rules and orders made thereunder, to be so settled if such rittes have been made so applicable to not less than three fourths of such village or other area."

On the strength of this definition it is sought to be contended that the jagir in question would be deemed to be a settled village as it is open to the authorities to apply the settlement either prospectively or retrospectively, and it was made applicable by the Settlement Officer retrospectively.

We are afraid, the argument cannot be accepted. The criterion to determine whether a particular jagir is a settled one or not is to see whether the rent rates determined in settlement operations have been made applicable. It is only from D the date of effectuation of a valid settlement of rent rates in respect of a particular jagir which makes the jagir a settled one.

Reliance was also placed on se.ction 86 of the Jaipur State Grants Land Tenures Act, 1947, which runs thus:

"86. Any rent fixed by order of the Settlement Officer under this Act shall be payable from th~ first day of July next following the date of such order, unless the Settlement Officer thinks fit, for any reasori to direct that it shall be payable from some earlier date."

A plain reading of this section indicates that the rent fixed by the Settlement Officer shall normally be payable from l st of July next following the date of such order. The section, however, further authorises the Settlement Officer to direct that the same shall be payable from some earlier date. The realisation of rent from a retrospective date will not make the jagir in question a settled one as from that date.

The settlement of rent rates is one thing and the realisation of rent on the basis of the settlement is quite another.

In case of a settled village the compensation would be determined on the basis of the rent rates settled during a settlement operation recorded in the revenue papers on the date of resumption. " Thus, it is the applicability of the rent rates determined during a settlement made prior to the date of resumption which would make the village a settled village as on that date.

, ..

• • _)

• "

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_,,.

• I "

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THAKUR NARAIN SINGH •• RA1ASTHAN (Misra,].) 481

There fs yet another aspect from which the matter can be looked into. The jagirdar became entitled to compensation on the date of resumption and, therefore, we have to examine the position as it stood on the date of resumption. If the village was an unsettled village on the date of resumption he would be entitled to compensation on the basis of the village being unsettled. The right of compensation vested in the jagirdar on the date of resumption and he could not be deprived of his right by •a' subsequent amendment unless the amendment in law specifically or by necessary implication provided or depriving the jagirdar of his vested right.

We do not find anything in the definition of the term 'settled' under section 2 (n) of the Act or in section 86 of the Jaipur State Grants Land Tenures Act to indicate that the legislature intended to affect the vested right.

In this view of the legal position, the jagir Commissioner was not justified in assessing the compensation on the basis of the assessment of rent rates in 1955. The only correct basis will be io treat the jagir in question as an unsettled one and determine the compensation in accordance with section 7 of the Act.

In the result the appeal is allowed with costs. The orders of the High Cou.rt, the Board of Revenue and tha{ of the Jagir Commissioner are set aside and the case is sent back to the Jagir Commissioner to determine the compensation afresh treating the jagir in question ro be unsettled one and in accordance with the provisions of section 7 of the Act. The appellant will also be entitled to interest at the rate of ten per cent per annum on the amount of compensation so determined, from the date of resumption till the date of payment of the compensation .

S.R. 'Appeal allowed.

474

THAKUR NARAIN SINGH

STATE OF RAJASTHAN

March 5, 1982

A.D. KOSHAL

R.B. MISRA, JJ.

section 2(n)

Thakur Sangram Singh

1st of July, 1954

section 21

section 26

Second Schedule

section 6(3)

section 2(n)

section 7

23rd of August, 1952

1st of July 1953

Ist July, 1955

Sangram Singh

sec. 82

6th of June, 1955

st July, 1953

THAKUR NARAIN SINGH V. RAJASTHAN

1
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THAKUR NARAIN SINGH V. RAJASTHAN 475

The Jagir Commissioner by his order dated 25th November, 19fi0 granted compensation on the basis of the rent rates assessed in 1955.

Jagir Commissioner

25th November, 19fi0

Article 133

Section 86

sec. 2

sec. 86

S.N. Kacker

K. K. Jain

P. Dayal

S. K. Gupta

Badri Das Sharma

MISRA

Article 133

28th of August, 1969

Thakur Sangram Singh~

section 21

Jagirs Act, 1952

section 26

1st of July, 1953

25th November, 1953

section 82

23rd November, 1954

st of July, 1953

section 86

25th of November, 1953

sections 6 and 7

25th of November, 1960

High Court of Rajasthan

section 6

section 2

section 7

1st July, 1953

section 6

section 2

section 7

section 7

Das Sharma

section 82

Badri Das Sharma

Sbri Sharma

section 2

THAKUR NARAIN SINGH

• I "

• -
...

THAKUR NARAIN SINGH •• RA1ASTHAN (Misra,].)

section 2

section 86

section 7

section 7