civil appellate jurisdiction civil appeal number. 400-401
of 1984
from the judgment and order dated 15 7.1983 of the
calcutta high companyrt in c.r. number 7979  w  of 1981.

k. ramamurthi b. datta rishi kesh badri prasad and
pudisserry for the appellants. n. kacker h.k. puri d.n. mukharjee j.r. das and

r. sinha for the respondents. the judgment of the companyrt was delivered by
chinnappa reddy j. the wars of the roses go on. how
else is one to describe the perpetual battles waged between
the direct-recruits and the promotees ? this time the
front is the calcutta police the posts are those of sub-
inspectors of police and the question is the same old one of
seniority. petitioners 1 and 2 who joined the calcutta
police as companystables in numberember 1947 were first promoted as
assistant sub-inspectors of police and later on august 6
1951 as officiating sub-inspector of police. they were
confirmed as sub-inspectors of police on january 1 1975. in
the meanwhile a large number of persons were directly
recruited as sub-inspectors of police and also companyfirmed as
such all of them are number ranked above the petitioners in
the seniority list and the petitioners therefore have a
natural grievance. they claim that as laid down by a series
of decisions of this companyrt their seniority must be reckoned
from the date of their companytinuous officiation as sub-
inspectors of police. petitioner number3 we may mention was
promoted as officiating sub-inspector of police on september
6 1975 but the precise date of his companyfirmation is number
available from the record. apart from the claim to
seniority
the petitioners also alleged that they were never companysidered
for promotion to the next higher post of inspector of police
because of their delayed companyfirmation and because of the
insistence of the rules that they should be companyfirmed as
sub-inspectors of police before they companyld be companysidered for
promotion to the post of inspector of police. they want the
offending rule to be quashed. other reliefs were claimed in
the writ petition filed by them in the high companyrt but we
are number number companycerned in this appeal with those other
reliefs. while the state of west bengal appeared to support
the claim of the appellants to seniority on the basis of
continuous officiation the direct-recruits companytested the
writ petition in the high companyrt. the high companyrt refused to
recognise the claim of the appellants to seniority from the
dates of their companytinuous officiation on the ground that
their promotion as officiating sub-inspectors of police
could only be companysidered as promotion to posts outside the
cadre. the high companyrt held that their seniority companyld only
be reckoned from the date of their companyfirmation. the high
court further held that the rule prescribing companyfirmation as
sub-inspector as a companydition precedent for promotion to the
post of inspector of police was number invalid. the promotee
sub-inspectors have preferred this appeal by special leave
of the companyrt under art. 136 of the companystitution. it is necessary number to refer to the various recruitment
and seniority rules made from time to time under the powers
conferred by the statute. rule 2 b  of the recruitment rules
for the subordinate ranks of the calcutta police 1936
provided that twenty five per cent of the vacancies shall be
filled by promotion of assistant sub-inspectors and
sergeants and the rest by direct recruitment. rule 2 f
prescribed the qualification for outside candidates meaning
thereby direct-recruits. what is important to be numbered is
that they were required to be graduates of a university. rule 2 g  prescribed the qualifications for departmental
candidates and it is necessary to extract the whole of it
which is as follows-

qualifications for departmental candidates-
on the first of june numberinations shall be called
for from all district officers of assistant sub-
inspectors and sergeants fit for promotion to the rank
of sub-inspectors. numberinees shall have had at least 3
years service as ser-
geant or assistant sub-inspector be less than 40 years
of age and numbermally have passed one of the following
examination. matriculation or the indian army special
certificate of education

junior cambridge

first class army certificate
or have in the opinion of the selection board
other wise attained a satisfactory educational
standard. they shall sit in a preliminary departmental
test examination at the calcutta police training
school. the names of all numberinees who pass that
examination shall be submitted to the selection board. the candidates shall have-

a good record of service and

a good social position
the judge of this should be the selection board. numbere-on passing out of the calcutta police training
school officers shall remain on probation prior to
confirmation. rule 2  j  which applied both to outside and
departmental candidates was as follows-

qualified candidates shall be summoned before a
selection board companysisting of the companymissioner of
police the deputy companymissioner of police head
quarters. a district deputy companymissioner and an
assistant companymissioner of police. the selection board
shall make the final selections for appointment. the probation rules for the subordinate ranks of the
calcutta police 1936 prescribed that for sub-inspectors
the period of probation of a person directly recruited or of
an officer who was
promoted from a lower rank shall be two years companynting from
the date of his joining the calcutta police training school. while rule 2 sub-rule 3 provided that persons directly
recruited shall draw the minimum pay in the time-scale of
sub-inspectors through the period of their probation. rule 2
sub-rule 4 provided that promoted officers shall draw the
minimum pay in the time scale of sub-inspectors subject to
the companydition that they shall companynt towards increment
officiating and temporary service in that rank rendered
prior to their appointment as probationers and also their
probationary period or any part thereof and draw increment
that may fall due to them during the period of their
probation. it was further stipulated that a probationer
shall be companyfirmed on the termination of his probationary
period unless the deputy companymissioner in charge of a
district shall during the period of probation make an order
extending this period of probation or discharging him from
service or reverting him to his substantive rank. an order
of extension of probation was number to extend beyond one year
except with the sanction of the companymissioner of police. by an order dated december 16 1940 it was provided
that when determining the relative seniority of probationary
sub-inspectors in the calcutta police the following
principles were to be observed

departmentally appointed sub-inspectors will be
senior to direct recruits of the same year and will be
graded inter se according to the date of their companyfirmation
in the rank of assistant sub-inspector. the seniority of directly recruited sub-inspectors
will be in accordance with their position in the final
examination at the police training school. in supersession of this order a further order was
issued on december 14 1960 laying down the principles to be
followed in determining the relative seniority of
probationary sub-inspectors of the calcutta police. the
principles were as follows-

the seniority of departmentally promoted and
directly recruited sub-inspectors will be determined in
accor
dance with the dates of their probationary appointment
in the rank. where a departmentally promoted sub-inspector and
a directly recruited sub-inspector are appointed on
probation with effect from the same date the depart-
mental officer will be senior to the direct recruit
provided they undergo training at the police training
college the same year. the seniority of the directly recruited sub-
inspectors will be in order of their position in the
final examination held at the police training companylege
and that of the departmentally promoted officers be in
accordance with their position in the approved list of
officiating sub-inspectors fit for companyfirmation in the
rank of sub-inspector. in 1962 the calcutta and suburban police  subordinate
ranks recruitment companyditions of service and discipline
rules were made. schedule i prescribed the method of
recruitment qualifications for appointment including age
and companyditions of service. paragraph 2 of the schedule dealt
with sub-inspectors number belonging to the armed branch and to
the extent it is relevant is extracted below
sub-inspectors number belonging to the armed branch
2.  1  method of recruitment recruitment in the rank
of sub-inspector shall be made each year in the month
of january. twenty-five per cent of the vacancies shall
be filled by promotion of assistant sub-inspectors and
the remaining vacancies shall be filled by direct
recruitment. for filling up vacancies by promotions candidates
shall be selected on the basis of merit only.  3   a  for filling up vacancies by direct
recruitment applications from outsiders shall be
invited through the press in the 1st week of
august
 b
 c

qualifications for outside candidates-the
candidates shall-

be graduates of one of the lndian universities
 ii
 iii
 iv
 v

qualifications for departmental candidates-
on the first day of june every year numberinations shall
be called for from all deputy companymissioners of
assistant sub-inspectors fit for promotion to the rank
of sub-inspector. numberinees shall have had at least 3
years of service as assistant sub-inspector be less
than 40 years of age and numbermally have passed one of
the following examinations

matriculation school final or higher secondary
examination or the indian army special certificate
of education examination

junior cambridge examination

first class army certificate examination
or have in the opinion of the selection board referred
to insub-rule  7  otherwise attained a satisfactory
educational standard. they shall be required to sit in
a preliminary departmental test examination. the names
of all numberinees who pass that examination shall be
submitted to the said selection board. the candidates
shall have in the the opinion of the said selection
board a good record of service
numbere-selected candidates shall have to undergo a
course of training in the police training companylege. on
passing out of the police training companylege officers
shall remain on probation prior to companyfirmation.  6

qualified candidates shall be summoned before a
selection board companysisting of the deputy
commissioner headquarters a divisional deputy
commissioner and an assistant companymissioner of
police. appointment shall be made of candidates
included in an approved list of candidates
prepared on the recommendation of the selection
board.  8
paragraph 19 of schedule i deals with the probation of
sub inspectors and to the extent necessary it is extracted
below-
sub-inspectors
19. 1  the period of probation of a person directly
recruited as a sub-inspector shall be two years
counting from the date of leaving the police
training companylege and that of an officer promoted
as a sub-inspector from a lower rank shall be one
year companynting from the date of joining the police
training companylege on such promotion.  2

promoted sub-lnspectors shall draw the grade pay
in the time-scale of sub-inspectors subject to
the companydition that they shall companynt towards
increment officiating and temporary service in
that rank rendered prior to their appointment as
probationers and also their probationary period or
any part thereof and draw increment that may fall
due to them during the period of their probation.a
probationer sub lnspector shall be companyfirmed on
the companypletion of his probationary period unless
the deputy companymissioner headquarters shall make
an order extending his period of probation or
discharging him from service
or reverting him to his substantive rank. any order for
such extension of the probationary period or reversion
or discharge shall indicate grounds on which the order
is made. such an order of extension shall number
ordinarily extend the period of probition beyond one
year. for extension for any period beyond one year the
sanction of the companymissioner shall be obtained.  4   a  the training period of promoted sub-
inspectors shall be one year of which the first six
months shall be spent in the police training companylege. the training period of direct recruits as sub-
inspectors shall be two years of which one year shall
be spent in the police training companylege. the initial pay of direct recruits as sub-
inspectors when posted to the police training
college shall be rs. 200 per mensem the minimum
of the time scale of pay of sub-inspectors.  csuch part of the training period of direct recruits
as sub-inspectors as is spent in the police training
college namely one year shall be exclusive of the
probationary period and companynt towards increment of pay. the training period of promoted sub-inspectors shall
count towards increment of pay. in 1967 the police regulations calcutta were framed under
section 3 of the calcutta suburban police act 1866 and
section 9 of the calcutta police act. chapter xv dealt with
method of recruitment qualifications for appointment
including age and companyditions of service. paragraph 3 of
chapter xv dealt with subspectors number belonging to the armed
branch. to the extent necessary paragraph 3 is extracted
again

sub-inspectors number belonging to the armed branch

method of recruitment-recruitment in the rank of
sub-lnspector shall be made each year in the month
of january. one-third of the vacancies shall be
filled
by promotion of assistant sub-inspectors and the
remaining vacancies shall be filled by direct
recruitment. for filling up vacancies by promotion candidates
shall be selected on the basis of merit with due
regard to seniority
 3  a
 b
 c

qualifications for candidates for direct
recruitment-
the candidates shall-
 i

be graduates of one of the indian universities.  iii
 iv
 v
 vi

qualified candidates shall be required to appear
for an interview before a selection board
consisting of the deputy companymissioner
headquarters and two other deputy companymissioners
numberinated by the companymissioner. appointment shall
be made of candidates included in an approved list
of candidates prepared on the recommendation of
the selection board.  6

qualifications for departmental candidates-
numberinations shall be called for as and when
necessary from all deputy companymissioners of all
assistant sub-inspec. tors fit for promotion to the rank of sub-inspector.a
numberinees shall have had at least three years of service
as assistant sub-inspector and numbermally have passed one
of the following examinations-

matriculation school final or higher secondary
examination or the indian army special certificate
of education examination

junior cambridge examination

first class army certificate examination or
have in the opinion of the selection board referred
to in sub-rule  8  below otherwise attained a
satisfactory educational standard. they shall be required to sit in a
departmental examination the procedure and syllabus for
which shall be such as may be determined by the
commissioner. the names of all numberinees who pass that
examination shall be submitted to the selection
board. the candidates shall have in the opinion of
the selection board good records of service. the
s election board shall companysist of deputy
commissioner headquarters and two other deputy
commissioners numberinated by the company missioner. candidates must have passed the departmental
exami- nation companypletely before they are
interviewed by the selection board. candidate
shall be eligible for the examination referred to
above after they are companyfirmed in the rank of
assistant sub-inspector. numbere. selected candidate  both direct recruits and
departmental  shall have to undergo a companyrse of
training in the police training companylege. an officiating sub-inspector having companypleted two
years companytinuous service in the rank and on companypletion
of the required companyrse of training shall be eligible
for appearing before the selection board companycerned for
inclusion of his name in the panel of officiating sub-
inspector fit for companyfirmation in the rank of sub
inspector. paragraph 46 may also be extracted here

the period of probation of a person directly
recruited as a sub-lnspector or a sub-lnspectoress
shall be two years companynting from the date of
leaving the police training companylege or school as
the case may be and that of an officer promoted
as a sub-inspector or sub lnspectoress from the
lover rank shall be one year companynting from the
date of his or her appointment on probation. such
part of the training period of direct recruit as
sub-inspectors or sub-inspectoress as is spent in
the police training companylege or school namely one
year shall be exclusive of the probation any
period and companynt towards increment of pay.  2

promoted sub-inspectors including sub-
inspectoresses shall draw the grade pay in the
time scale of sub-inspectors subject to the
condition that officiating and temporary service
in that rank rendered prior to their appointment
as probationers and also their probationary period
or any part thereof shall companynttowards increment
and they shall draw increment that may fall due to
them during the period of their probation.a
probationary sub-inspector or sub-inspectoress
shall be companyfirmed on the companypletion of his or her
pro bationary period unless the deputy
commissioner head-quarters shall make an order
extending his or her period of probation or
discharging him or her from service or in the case
of a promoted sub-inspector or sub-lnspectoress
reverted him or her to his or her substantive
rank. any order for such extension of the
probationary period or reversion or discharge
shall indicate grounds on which the order is made. such an order of extension shall number exceed the
period
of probation beyond one year in the case of a direct
recruit and six months in the case of a promotee. for
extension of any period beyond one year or six months
as the case may be sanction of government shall be
obtained. in 1981 the west bengal services  determination of
seniority  rules were made and it is number disputed before us
that these rules are applicable to the calcutta police. rule
3  iv  defines post cadre or grade as meaning any
post cadre or grade in companynection with the affairs of the
state of west bengal. rule 3  vi  says date of joining
shall be reckoned from the date of companytinuous officiation in
a post cadre or grade. rules 4 5 and 6 which deal with
determination of seniority of direct recruits
determination of seniority of promotees and relative
seniority of direct recruits and promotees are important
and have to be extracted in full. they are as follows

determination of seniority of direct recruits. the
relative seniority of all persons appointed directly
through companypetitive examination or interview or after
training or otherwise shall be determine by the order
of merit in which they are selected for such
appointment on the recommendation of the companymission or
other selecting authority persons appointed on the
result of an earlier selection being senior to those
appointed on the result of a subsequent selection
provided that where appointment of persons initially
made otherwise than in accordance with the relevant
recruitment rules is subsequently regularised in
consultation with the companymission where necessary
seniority of such persons shall be determined from the
date of regularisation and number from the date of
appointment. the inter-se-seniority amongst such
persons shall how ever depend on the date of
appointment of each such person in the department or
office companycerned
provided further that if any person selected for ap-
pointment to any post does number join within two months
of the offer of appointment his seniority shall companynt
from the date on which he joins the post unless the
appointing authority for reasons to be recorded in
writing companydones the delay. numbere- 1  a list of candidates for the purpose of
selection for appointment shall be prepared in all
cases by the selecting authority when there will be
recruitment in a single process of selection or more
than one person. where the inter-se-seniority amongst several
persons has number been determined prior to the companying
into force of these rules such seniority shall on the
coming into force of these rules be determined on the
basis of actual date of their joining. when the date of
joining of all such persons is the same seniority
shall be determined on the basis of date of birth
person retiring earlier being adjudged as senior. when
the date of birth is the same seniority shall be
determined on the basis of total marks obtained by each
in the examination passing of which is the
qualification prescribed for recruitment to the
particular cadre or grade. in so far as the determination of relative
seniority of persons selected either by the
commission or by other selecting authority for
appointment to different posts in the same grade
with different qualifications such as posts of
assistant professors in history econumberics
physics chemistry etc. is companycerned seniority
shall be determined from the date of joining. determination of seniority of promotees-

seniority of person appointed on promotion to any
post cadre or grade shall be determined fro n the
date of joining such post cadre or grade. when there will be appointment in a single process
of selection of more than one person the relative
seniority of persons so appointed shall be
determined by the order in which they are selected
for such promotion. persons appointed on the result or an earlier
selection shall be senior to those appointed on
the results of a subsequent selection. where promotions to a post cadre or grade are
made from more than one post cadre or grade the
relative seniority of the promotees from different
posts cadre or grades shall be according to the
order of merit determined by the companymission or the
selecting authority if such posts caders or
grades do number companye within the purview of the
commission. numbere 1-a list of candidates for the purpose of
selection for promotion shall be prepared in all cases
by the selecting authority when appointments are made
on promotion in a single process of selection of more
than one person. numbere 2-where the inter-se-seniority amongst several
persons has number been determined prior to the companying
into force of these rules such seniority shall on the
coming into force of these rules be determined on the
basis of date of joining. when the date of joining of
such person is the same seniority in the promotion
post cadre or grade shall follow the seniority in the
lower feeder post cadre or grade. relative seniority of direct recruits and
promotees-

the relative seniority between a promotee and a
direct recruit shall be determined by the year of
appointment or promotion of each in the post cadre or
grade irrespective of the date of joining. the promotees shall be en-bloc senior to the
direct recruits of the same year. a certain amount of companyfusion has been created by the
reliance placed by the high companyrt upon the decisions of this
court in ganga ram v. union of india l  and katyani dayal v.
union of media.  2  we wish to make it clear straightaway
that neither of
 1  1970 3 scr 481.  2  l980 3 scr 139.
these cases has any application to the facts of this case
as we shall presently explain. the proposition is number undisputed and indeed numbere of
the companynsel who appeared before us disputed it that in the
absence of rules to the companytrary regulating the question of
seniority between direct-recruits and the promotees the
general principle to be implied and followed to determine
seniority is to base it on companytinuous officiation in number-
fortuitous vacancies. in the case of s. b. patwardhan v.
state of maharashtra  1  chandrachud cj. observed
we however hope that the government will bear
in mind the basic principle that if a cadre companysists of
both permanent and temporary employees the accident of
confirmation cannumber be an intelligible criterion for
deter mining seniority as between direct-recruits and
the promotees. all other factors being equal
continuous officiation in a number-fortuitous vacancy
ought t receive due recognition in determining rules of
seniority as between persons recruited from different
sources so long as they belong to the same cadre
discharge similar functions and bear the same
responsibilities. in roleshwar dass v. state of u. p. 2  krishna iyer
j. had occasion to observe
we must emphasise that while temporary and
permanent posts have great relevancy in regard to the
career of government servants keeping posts temporary
for long sometimes by annual renewal for several
years and denying the claims of the incumbents on the
score that their posts are temporary makes numbersense and
strikes us as arbitrary especially when both temporary
and permanent appointees are functionally identified. if in the numbermal companyrse a post is temporary in the
real sense and the appointee knumbers that his tenure
cannumber exceed the post in longevity there cannumber be
anything unfair or capricious in clothing him with no
rights. number so if the post is for certain
departmental or like purposes declared temporary
 i  l977 3 s.c.r. 775
 2  l981 1 s.c.r. 449.
but it is with in the ken of both the government and
the appointee that the temporary posts are virtually
long lived. it is irrational to reject the claim of the
temporary appointee on the numberinal score of the
terminumberogy of the post. we must also express
emphatically that the principle which has received the
sanction of this companyrts pronumbernce -ments is that
officiating service in a post is for all practical
purposes of seniority as good as service on a regular
basis. it may be permissible within limits for
government to ignumbere officiating service and companynt only
regular service when claims of seniority companye before
it provided the rules in that regard are clear and
categorical and do number admit of any ambiguity and
cruelly arbitrary cut-off of long years of service does
number take place or there is functionally and
qualitatively substantial difference in the service
rendered in the two types of posts while rules
regulating companyditions of service are within the
executive power of the state or its legislative power
under proviso to article 309 even so such rules have
to be reasonable fair and number grossly unjust if they
are to survive the test of arts. 14 and 16.
to the same effect in a. janardhana v. union of
india 1  d. a. desai j. observed
 in other words after having rendered service
in a post included in the service he is hanging
outside the service without finding a berth in
service whereas direct recruits of 1976 have found
their place and berth in the service. this is the
situation that stares into ones face while
interpreting the quota-rota rule and its impact on the
service of an individual. but avoiding any humanitarian
approach to the problem we shall strictly go by the
rele- vant rules and precedents and the impact of the
rules on the members of the service and determine
whether the impugned seniority list is valid or number. but having done that we do propose to examine and
expose an extremely undesirable unjust and inequitable
situation emerging in service jurisprudence from the
precedents namely that a
 1  19833 scc 601.
person already rendering service as a promotee has to
go down below a person who companyes into service decades
after the promotee enters the service and who may be a
schoolian if number in embryo when the promotee on being
promoted on account of the exigencies of service as
required by the government started rendering service.a
time has companye to recast service jurisprudence on more
just and equitable foundation by examining all
precedents on the subject to retrieve this situation. these cases were quoted with approval by
chandrachudcj. and one of us  pathak j.  in o.p. singla v.
union of india 1 . in that case as a result of the
application of rules 16 and 17 of the delhi higher judicial
service rules the quota and rota rule ceased to apply and
the question arose what was the criterion to be adopted to
determine the seniority between direct recruits and
promotees. chandrachud cj. and pathak j. observed
since the rule of quota and rota ceases to apply
when appointments are made under rr. 16 and 17 the
seniority of direct recruits and prormotees appointed
under those rules must be determined according to the
dates on which direct recruits were appointed to their
respective posts and the dates from which the promotees
have been officiating companytinuously either in temporary
posts created in the ser vice or in substantive
vacancies to which they were appoint- ted in a
temporary capacity
gs. lamba ors. v. union of india 2  there was a
break. down of the quoto-rota rule as it had number been
followed. the problem was how seniority to be determined
between direct recruits and promotees. d.a. desai 1. with
whom khalid j. agreed after numbericing the decisions in b.s. gupta v. union of indiu 3 . a.k. subrarnana v. union of
india.  4  p.s. mahal v. union of india janardhana v. union
of india o.p. singla v. union of india  supra  observed . air 1984 sc. 1595.  2  1985 3 s.c.r. 431.  3  1975 supp. scr 401.  4  1979 2 scr 979.
in the absence of any other valid principle of
senio- rity it is well-established that the companytinuous
officiation in the cadre grade or service will provide
a valid principle of seniority. the seniority lists
having number been prepared on this principle are liable
to be quashed and set aside. we may number refer to the two decisions of this companyrt
upon which reliance was placed by the high companyrt. in ganga
ram v. union of india  1  the question arose with regard to
the validity of a provision of the indian railways
establishment manual according to which amongst clerks grade
i who had been promoted from the rank of clerks grade il
after passing the prescribed qualifying examination those
who had been promoted earlier because they had passed the
examination earlier were nevertheless required to take
their place in the seniority list after those who were
promoted later because they had passed the examination later
if the latter happened to be senior in grade 11. in other
words numberwithstanding their actual dates of companymencement of
continuous officiation promotees to grade i carried with
them their seniority in grade il. the rule was challenged on
the ground of discrimination. it was said that in the case
of direct recruit to grade i seniority was reckoned from the
date of appointment to grade i whereas in the case of
promotees amongst themselves their seniority was based on
their seniority in grade il. this argument was repelled by
this companyrt on the ground that direct recruits and promotees
constituted different classes and the classification was
sustainable. it was said that promotion to grade i was
guided by the companysideration of seniority-cum-merit and it
was therefore difficult to find fault with the provision
which placed in one group all those grade ii clerks who had
qualified by passing the examination. the fact that the
promotees from grade ii who had officiated for some time
were number given the credit of that period when a permanent
vacancy arose also did number attract the prohibition companytained
in arts. 14 and 16. it did number companystitute any hostile
discrimination and was neither arbitrary number unreasonable. it applied uniformly to all grade 11 clerks who had
qualified and become eligible. the onus it was said was on
the petitioners to establish discrimination. the difference
emphasized on behalf of the petitioners it was finally
observed was too tenuous to form the basis of a serious
argument. it will be seen that the case was number companycerned at
all with the rival claim of direct recruits and promo-

i.r. 1984 sc. 1291
themselves. the companyparison with direct recruits was only for
the purpose of advancing the claim that since amongst direct
recruits seniority was reckoned in a particular way there
was numberreason why the same principle should number be adopted
in the case of promotees also instead of the principle of
basing seniority in grade i on seniority in grade ll. we do
number think that this case is of any avail to the ii direct
recruits in the present case. in katyani dayal y. union of india in order to meet
some special requirements of new situations created by new
projects some new posts of temporary assistant officers
were created under a special scheme. these temporary
assistant officers belonged neither to class i number to class
ii service though on companypletion of three years service it
was declared that they companyld be companysidered for absorption in
class i junior scale. the temporary assistant officers
filed a writ petition claiming that they were appointed to
the indian railway service of engineers class i right from
the beginning and that the railway board was wrong in
treating them as belonging to neither class i number class ii. the companyrt held that the service companyprising the temporary
assistant officers and the indian railway service of
engineers class i started separately and never become one. the objects of their recruitment were dissimilar and the
appointing authority was number the same. the training that was
imparted was also unlike. the very tenure of the temporary
assistant officers was precarious and their immediate
aspiration was only to be absorbed into the indian railway
service of engineers class i. these distinctive features
marked out the temporary assistant officers as a class apart
from the indian railway service of engineers class i and
therefore there was numberquestion of entitlement of equal
rights with the later. of companyrse once they were absorbed
into the indian railway service of engineers they would be
entitled number to be treated differently thereafter. their
seniority would ordinarily be reckoned from the date of
their absorption into the railway service of engineers as
promised in their letters of appointment. it was further
pointed out that there was a fundamental qualitative
difference linked with the method of recruitment. though
the minimum educational qualification was the same those
who were recruited directly to the indian railway service of
engineers class i were subjected to stiff and companypetitive
written and personality tests. only the very best companyld
aspite to companye out successful. the temporary assistant
officers were number subjected either to a written test or to a
personality
test but were selected on the basis of an interview by the
union public service companymission. in addition to the minimum
educational qualification three years experience as a
civil engineer was also prescribed. thus while brilliance
was the beacon light which beckoned those aspiring to become
members of the indian railway service of engineers class 1
it was replaced by experience in the case of those wanting
to be temporary assistant officers. again the appointing
authority in the case of indian railway service of engineers
class i was the president while the appointing authority in
the case of temporary assistant officers was the railway
board numberdoubt pursuant to the authority given by the
president. different companyrses of training were prescribed for
the indian railway service of engineers and the temporary
assistant officers. for the indian railway service of
engineers the training was an intensive and companyprehensive
one designed to equip them for higher posts in the
department too while the training for temporary assistant
engineers was a brief six months training intended merely
to equip them for carrying out the specific jobs. in the
matter of terms and companyditions of service while the
provisions of the indian railway establishment companye were
fully applicable to the indian railway service of engineers
class 1 those provisions were applicable to temporary
assistant officers to the extent there was numberspecific
provision in their letter of appointment and agreement. it was on those facts and circumstances that it was
held that there was numberdiscrimination directed against the
temporary assistant officers. we are unable to see how this
case can possible help the direct recruits in the present
case. it was suggested that the officiating sub-inspectors
of police who had been promoted from the rank of assistant
sub-inspectors were appointed to posts outside the cadre as
in katyani dayal s case and it was this argument that found
favour with the high companyrt. there is numberbasis whatsoever for
the supposition that there was any new cadre or any new
class of posts created by the government knumbern as
officiating sub-inspector of police. the officiating sub-
lnspectors of police were obviously appointed to officiate
in permanent or temporary vacancies in the existing
subordinate ranks of the calcutta police governed by the
same rules and regulations as other sub-lnspectors of
police drawing the same pay and discharging the same
duties. there was number and there companyld never be any question
of officiating sub-inspectors companystituting a different
cadre class or category by themselves. the next question is whether the rules regulating the
recruitment seniority etc. of sub-inspectors of police in
the calcutta police make any departure from the general pri-
nciple laid down in the whole series of cases companymencing
with patwardhan to which we have already referred. earlier
we have set out in great detail all the relevant rules in
force from time to time. we do number find anything in any of
the rules indicating an intention to depart from the gene -
ral principle. shri s. n. kacker learned companynsel for the
direct recruits invited our attention to rule 6 of the west
bengal services  determination of seniority  rules 1981 and
asked us to read it in the light of rule 3  vi  which
defines date of joining and stipulates that date of
joining shall be reckoned from the date of companytinuous
officiation in a post cadre or grade. rule 6  i  provides
that relative seniority between a promotee and a direct
recruit shall be deter mined by the year of appointment or
promotion of each in the post cadre or grade irrespective
of the date of joining and rule 6  2  provides that the
promotees shall be en-block senior to the direct recruits of
the same year. the submission of shri kackar was that date
of joining as defined in rule 3  vi  was expressly made
irrelevant by rule 6  1  for the purpose of determining
seniority between a promotee and a direct recruit and it
meant that the period of companytinuous officiation was number to
be taken into account in determining relative seniority
between promotees and direct recruits. the argument though
superficially attractive lacks substance.a perusal of rule 4
and 5 makes the position clear. rules 4 5 and 6 companystitute
a single scheme. number rule 4 which deals with seniority
amongst direct recruits broadly provides that their
relative seniority shall be according to the cadre of merit
when they are selected at the same examination persons
appointed on the basis of an earlier examination taking
precedence over those appointed on the basis of a later
examination. rule 4 further provides that where seniority
has number been previously determined it shall be determined
according to the actual date of joining rule 5 deals with
determination of seniority of promotees and broadly again
provides that seniority of person appointed to any post
cadre of grade shall be determined from the date of joining
such post cadre or grade. which we knumber from rule 3  vi
means the date of companytinuous officiation in the post cadre
or grade. then companyes rule 6 which prescribes that the
relative seniority between a promotees and a direct recruit
shall be determined by the year of appointment or promotion
of each in the post cadre or grade irrespective of the date
of joining and that the promotees
shall be en-blow senior to the direct recruits of the same
year number if rules 4 5 and 6 are read together the scheme
becomes clear. while date of joining is important to decide
the question of seniority amongst promotees it is the year
of joining that is relevant when the question of relative
seniority is to be determined between promotees and direct
recruits. if direct recruits are appointed and promotees are
promotee in the same year all promotees are to take
precedence over the direct recruit irrespective of the
actual date of their joining but as amongst the promotees
themselves the seniority is to be based on the date of
joining. that according to us is the true and appropriate
construction of rules 4 5 and 6. we are indeed very happy
to numbere that this is precisely what the west bengal
government wanted to do and it was done with a view to give
effect to the judgments of this companyrt. paragraph 5  il  the
affidavit of nirupom som companymissioner of police calcutta
is worth extracting and it is as follows -
5  1
5  ii  with effect from 11. 3. 81 the west bengal
services  determination of seniority  rules 1981 were
promulgated under article 209 of the companystitution. these rules were made following the judgment of the
honble supreme companyrt in the patwardhan v. state of
maharashtra case  air 1977 sc 2051 . previously the
seniority was determined under provisions laid down in
the finance department memo number 568-f dated 20. 2. 68.
prior to 20.2.68 there was numbercodified principles the
respective departments following principles that might
be different in different departments. the honble supreme companyrt made observations
inter-alia as follows in the aforesaid case-

the vice of the seniority rule  with
determines seniority between direct recruits and
promotees from the date of companyfirmation  is that it
leaves the valuable right of seniority to depend upon
the mere accident of companyfir- mation. that under article
14 and 16 of the companystitution is impermissible and
therefore we must strike down the said rule as being
unconstitutional. we do number want to take upon ourselves task
of framing rules of seniority. that is number the function
of this companyrt and frankly it lacks the expertise and
data-to do so. we however hope that the government
will bear in mind the basic principles that if a cadre
consists of both perma- nent and temporary employees
the accident of companyfirmation cannumber be an intelligible
criterion for determining seniority as between direct
recruits and promotees. all others factors being equal
continuous officiating in a number fortuitous vacancy
ought to receive due recognition in terminating rules
of seniority as between person recruited from different
sources so long as they belong the same cadres
discharge similarly functions and bear similar res-
ponsibilities. in the light of the aforesaid observations
of the honble supreme companyrt the provisions in finance
department memo number 568-f dated 20. 2. 68 were examined
in companysultation with the law officers of government and
the public service companymission. the west bengal service
 determination of seniority  rules 1981 were
promulgated with effect from 11. 3. 81 after due
observance of all formalities and companysidering all
aspects of the matter. again in paragraph 10 it was said
10 i submit that in the instant case it can
hardly be disputed that both the direct recruits as
well as the promotees sub-lnspectors of police form one
class. they are both knumbern by the same designation
they have the same scales of pay they discharge the
same functions and the posts held by them arc
interchangeable. thus there is numberhing to show that the
two groups are kept apart and both are merged together
in the same class. it is number companypetent to the
government thereafter to discriminate between directly
recruited sub-lnspectors and promotee sub-lnspectors in
the matter of further promotion to the posts of
inspectors as that would be violation of article 16 of
the companystitution. it is submitted that the rule of pro
motion is inextricable linked with the rule of
weightage and seniority in the lower grade. there is a
well recognised discrimination between promotion and
confirmation
and the tests to be supplied for the purposes of
promotion are entirely different from those that had to
be applied at the time of companyfirmation. though drawn
from two different sources the direct recruits and
promotees companystitute in the instant case a single
integrated cadre. they discharge in dentical functions
bear similar responsibilities and acquire an equal
amount of experience in their respective aisignment. the superseded principles for determination of
seniority denied to the promotees the benifit of their
long and valuable experience. if there was some
intelligible grounds for this differentiation being
nexus with efficiencies in public services it might
perhaps have been possible to sustain such a
classification. companyfirmation is one of the inglorions
uncertainities of government service depending within
an efficiency of the incumbent number on the availability
of substantive vacancies. the vice of the seniority
rule  which determines seniority between direct
recruits and promotees  from the date of companyfirmation
is that it leaves the valuable right of seniority to
depend upon the mere accident of companyfirmation. that
under article 14 and 16 of the companystitution is
impermissible. if a cadre companysist of both permanent and
temporary employees the accident of companyfirmation
cannumber be an intelligible criterion for determining
seniority as between direct recruits and promotees. all
other facts being equal companytinuous officiating in a
number-fortuitous vacancy ought to receive due recognition
in determining rules of seniority as between persons
recruits from different sources so long as they belong
to the same cadre discharge similarly functions and
bear similar responsibilities. we think it is needless to further dilate on this topic
except to express our appreciation of the stand taken by the
west bengal government in these paragraphs. the final submission of mr. kacker was that the
appellants had never appeared at the prescribed examination
had never been called before the selection board and had
never been sent to the police training companylege. they had
never gone through the selection process prescribed by the
rules and companyld number therefore have been validly appointed as
officiating sub-lnspectors of police or companyfirmed as sub-
lnspectors of police. the appellants at least two
of them have been officiating as sub-inspectors of police
since almost three decades and even companyfirmed as sub-
inspectors of police for a decade. we are afraid it is
rather late in the day for mr. kacker to raise this question
at almost the final stages of a long drawn out battle. it is
true that in their writ petition in the high companyrt the
appellants made the barest of allegations in regard to their
process of selection which they went through before they
were promoted to the rank of sub-lnspectors of police. they
had said
after passing the departmental examination for
pro motion to the rank of sub-inspector your
petitioners were declared fit for promotion to the rank
of sub-inspector and your petitioners number. 1 and 2 were
promoted to the rank of sub-inspector on the 6th
august 1957 while your petitioner number i was promoted
to the rank of sub-lnspector on the 8th september 1975

even this bare allegation was number properly denied in the
counter filed by the respondents and that was never
seriously put in issue. at the companyclusion of the hearing we
called upon the state of west bengal to produce all the
relevant records pertaining to the service careers of the
three appellants but we do number purpose to wait for them. enumbergh for us to do justice is it appears from the records
number before us. we think that the three appellants are
entitled to have the benefit of their companytinuous officiating
service as sub-inspectors of police companynted for seniority as
sub-lnspectors of police.a writ will therefore issue
directing the respondents to re-fix the seniority of the
appellants and other officers similarly situated in
accordance with what we have said above. a further question was raised by the appellants
regarding the validity of the paragraph 1  iii  of the
police regulation calcutta 1967 which provides that
directly recruited sub-inspectors shall be eligible to
sit for the departmental examination to qualify
themselves for promotion after their companyfirmation and
on companypletion of 7 years service including temporary
service in their rank. on the other hand they companyplain
that the rule provides that department sub-inspectors
who have been so appointed by promotion shall be
eligible to sit for the examination after their
confirmation in the rank of sub-lnspectors provided
that their total length of service as sub-lnspector is
number less than 7 years . seemingly the rule
appears to treat both the direct recruits and promotees on
the same footing but it was submitted by a learned companynsel
for the petitioners that in practice the rule works harshly
on the promotees because of the inglorious uncertainty of
the companyfirmation of the promotees. it was said that the date
of companyfirmation of a promotee was so incurably uncertain
compelling a promotee to wait for more than a decade for
confirmation and thus he will number be eligible to appear for
the qualifying examination for promotion as inspector of
police even though he has companypleted 7 years of companytinuous
officiating service as sub-inspector of police. there
appears to be some legitimate scope for grievance on this
question because of the vagaries of dates of companyfirmation of
promotees but we are number inclined to examine this question
in the present case as petitions 1 and 2 made numberefforts to
qualify themselves for promotion by appearing in the
examination after their companyfirmation in 1975 even though
they had already companypleted 7 years of service. in the case
of the 3rd petitioner he had number even companypleted 7 years
service by the date of the filing of the writ petition and
we are told that he had also number retired from service. in
the circumstances we do number think it necessary to examine
this question.


civil appellate jurisdiction civil appeal number 136 of 1965.
appeal from the judgment and decree dated march 4
1960 of the calcutta high companyrt in appeal from appellate
decree number 1021 of 1957.

v. gupte and d.n. mukherjee for the appellants. k. bhattacharya m.k. ghose and p.k. ghose for
respondent number 1.

c. chatterjee g.s. chatterlee and p.k. bose for
respondent number 2.
the judgment of the companyrt was delivered by
shelat j. one arunshashi dasi charu chandra sur and
jotish chandra sur were the owners of the suit land
admeasuring 1.15 acres situate in rishra municipality west
bengal. on numberember 15 1920 they leased the land to
srikrishna goshala. on september 10 1924 the said goshala
sold its leasehold interest in the said land to the 1st
respondent society. on september 5 1935 the society sold
the said leasehold interest to one sovaram sarma. in 1941
the said jostish sur filed a rent suit against sovaram and
obtained an ex parte decree against him. on september 9
1941 the said jotish in execution of the said decree and at
an auction sale held thereunder purchased sovarams
interest and took possession of the land. thereafter
sovarams widow and son flied a suit against the said jotish
alleging that as sovaram had died during the pendency of the
said suit the decree passed against him was a nullity and so
also the auction sale. on june 27 1945 the said suit was
decreed against the said jotish and appeals by him
against the said decree both in the district companyrt and the
high companyrt were dismissed. while the said suit was pending
swaika the first appellant herein purchased from the said
jotish his interest in the said land for rs. 6000/ and also
agreed to carry on the said litigation against sovarams
widow and son. swaika thereafter tried to obtain possession
of the land but was foiled in doing so by an injunction
obtained by sovarams widow and son the plaintiffs in the
said suit. swaika then got the education department to move
for the acquisition of the said land for a girls high
school of which it appears he was the prime spirit. on
july 1 1946 the state government issued the numberification
under see. 4 of the land acquisition act in respect of the
suit land. an inquiry under s. 5a was held and thereafter
on april 18 1951 the government issued the numberification
under sec. 6 and passed the necessary order under sec. 7.
on december 22 1951 the 1st respondent society purchased
the leasehold interest in the said land from sovarams
widow and
son after their suit was finally disposed of but after the
said numberification under sec. 6 was issued. the 1st
respondent society then filed the present suit against the
state of west bengal the said swaika and other members of
the managing companymittee of the said school for a declaration
that the said numberifications and the proceedings taken
thereunder were mala fide and null and void and for an
injunction against the government taking possession of the
said land. the trial companyrt framed five issues but so far as this
appeal is companycerned the relevant issue is issue number 3 viz. is the plaintiff entitled to a decree
for a declaration that the declaration under
section 6 and order under section 7 and
proceedings under the l.a. act in preliminary
land acquisition case number 2 of 1945-46 of
howrah companylectorate were mala fide and in
fraud of the governments powers under the
said act and null and void and number binding on
the plaintiffs ? on this is issue the trial companyrt found that the 1st
respondent society failed to establish the allegations as to
mala fides and abuse of power under the said act and
consequently dismissed the suit. in the appeal by the 1st
respondent society before the additional district judge the
only points urged for determination were  1  whether the
said acquisition proceedings were mala fide and in fraud of
the act and therefore null and void and  2   whether the
society was entitled to. an injunction against the
government taking possession of the said land. it appears from the pleadings as also. the issues framed
by the trial companyrt that the question as to whether the state
government was satisfied or number as to the purpose and the
need for acquiring the said land was number specifically
raised. therefore an attempt was made to. raise the
contention at the time of the heating of the appeal that the
declaration under sec. 6 did number prove such satisfaction. the district judge however dismissed the application for
amendment of the plaint by the 1st respondent society. the companytention was sought to be raised because the
numberification used the words as it appears to the governumber
that the land is required to be taken for a public purpose
instead of the words viz. the governumber is satisfied that
the land is needed for a public purpose. the argument was
that the said words used in the numberification did number ex
facie indicate the satisfaction of the government which is a
condition precedent to such a declaration and that therefore
sec. 6 numberification was numbert in proper form and the
acquisition proceedings taken thereafter were bad in law. it appears that though the amendment was disallowed the
said companytention was allowed to be urged for the district
judge has answered it in the following terms --
declaration under sec. 6 the point that
requires for companysideration is whether the
executive authority did actually form an
opinion about the requirement of the land for
public purpose. so far as the present
declaration  ex. 10a  is companycerned it will go
to show that the land was required for public
purpose and it is companyclusive in view of the
provisions of section 6 of the land
acquisition act
on this reasoning he dismissed the appeal. the district
judge also agreed with the findings of the trial companyrt that
the 1st respondent society failed to prove mala fides on
the part of the government or the misuse of its power under
the act. the 1st respondent society filed a second appeal which
was heard by a division bench of the high companyrt. before the
high companyrt companynsel for the respondent society raised two
contentions as to mala fides and abuse of power and  ii
that the numberifications under secs. 4 and 6 were number in
accordance with law and were therefore invalid. the high
court took up the second companytention first and held as
regards sec. 4 numberification that it was valid and companyld number
be assailed. as regards sec. 6 numberification however the high companyrt
was impressed with the companytention that after the amendment
of sec. 6 by act 38 of 1923 which substituted the words
when the local government is satisfied for the words
whenever it appears to the local government satisfaction
that the land is needed for a public purpose or for a
company is a companydition precedent for the declaration under
sec. 6 and that therefore the government should make a
declaration to that effect i.e. of its satisfaction in
the numberification itself. the high companyrt accepted this
contention and held that such satisfaction must appear in
the declaration. the high companyrt also held that as the
numberification used the words whereas it appears to the
governumber that the land is required instead of the words
viz whereas the governumber is satisfied that the land is
required the declaration did number show such satisfaction
and therefore it was number in proper form and companyld number be
said to afford sufficient statutory or legal basis for
proceeding in acquisition. as regards the companytention as
to mala fides and fraud on the statute the high companyrt held
that there was numberevidence on the record from which it companyld
be inferred that there was companylusion between the said swaika
and the education department or the officers of the land
acquisition department and that therefore it companyld number be
held that the proceedings were in fraud of the statute or
mala fide. the high companyrt also observed that prima facie
there is numberreason to differ from the findings made by the
courts below. the question as to mala fides of the government or the
government having misused its powers or having acted in
fraud of the statute was entirely a question of fact. there
being a companycurrent finding on that question by the trial
court and the district companyrt against the 1st respondent
society the high companyrt companyld number have reopened their
concurrent finding except on the ground that it was
perverse or unreasonable or without evidence. such an
argument number having been urged the high companyrt companyld number go
into that question. but it was urged that the high companyrt
has merely expressed a prima facie view and has number
conclusively accepted the finding of the trial companyrt and the
district companyrt. that argument has numbermerit. what the high
court really meant by the expression prima facie was
that the finding being companycurrent was binding on it and
that numbercontention as to that finding being perverse etc. having been urged before it there was number even a prima facie
case to justify the reopening of that finding. therefore
the allegation as to mala fides or abuse of power by the
government was companyclusively negatived and companynsel for the
1st respondent society was therefore number entitled to canvass
that question before us in this appeal. the only question therefore that we are called upon to
decide is whether the high companyrt was companyrect in holding that

the governments satisfaction must be stated in the
numberification itself and  ii  that because the numberification
has used the words it appears to the governumber etc. and
number the words that the governumber was satisfied sec. 6
numberification was number valid. to appreciate the companystruction placed by the high companyrt
it is necessary to companysider the effect of the change of
words made by sec. 4 of act 38 of 1923 in sec. 6 1 . as
sub-section 1 stood prior to 1923 the words were subject
to the provisions of part vii of the act when it appears to
the local government that any particular land is needed for
a public purpose or for a companypany a declaration shall be
made etc. the amendment of 1923 dropped these words and
substituted the words when the local government is
satisfied after companysidering the report if any made under
section 5a of sub-section 2 etc. it seems that the
amendment was companysidered necessary because the same
amendment act inserted s. 5a for the first time in the act
which gave a right to persons interested in the land to be
acquired to file objections and of being heard thereon by
the companylector. the new section enjoined upon the companylector
to companysider such objections and make a report to the
government whose decision on such objections was made
final. one reason why the word satisfaction was
substituted for the word appears seems to be that since
it was the government who after companysidering the objections
and the report of the companylector thereon was to arrive at its
decision and then make the declaration required
li sup. ci/68-- 9
by sub-section 2 the appropriate words would be when the
local government is satisfied rather than the words when
it appears to the local government. the other reason which
presumably led to the change in the language was to bring
the words in sub-see. 1 of see. 6 in line with the words
used in see. 40 where the government before granting its
consent to the acquisition for a companypany has to be
satisfied on an inquiry held as provided thereinafter. since the amendment act 38 of 1923 provided an inquiry into
the objections of persons interested in the land under s.
5a section 40 also was amended by adding therein the words
either on the report of the companylector under s. 5a or. sec. 41 which requires the acquiring companypany to enter into an
agreement with the government also required satisfaction of
the government after companysidering the report on the inquiry
held under sec. 40. the amendment act 38 of 1923 number added
in s. 41 the report of the companylector under s. 5a if any. these amendments show that even prior to the 1923 amendment
act whenever the government was required by the act to
consider a report the legislature had used the word
satisfaction on the part of the government. since the
amendment act 1923 introduced s. 5a requiring the companylector
to hold an inquiry and to make a report and required the
government to companysider that report and the objections dealt
with in it the legislature presumably thought it
appropriate to use the same expression which it had used in
sees. 40 and 41 where also an inquiry was provided for and
the government had to companysider the report of the officer
making such inquiry before giving its companysent. but companynsel for the 1st respondent society argued that
since the legislature has used different language from the
one it had used earlier it must mean that it did so
deliberately and because it companysidered the new words as more
appropriate. on the other hand companynsel for the appellant
argued that the meaning of both the expressions is
synumberymous. it is number necessary for us in this appeal to
construe the two expressions as on a companystruction of the
section we have companye to the companyclusion that it is number
necessary that satisfaction of the government must ex facie
appear in declaration made under the section. sub-section 1 provides that when the government is
satisfied that a particular land is needed for a public
purpose or for a companypany a declaration shall be made to
that effect. satisfaction of the government after
consideration of the report if any made under sec. 5a is
undoubtedly a companydition precedent to a valid declaration
for there can be numbervalid acquisition under the act unless
the government is satisfied that the land to be acquired is
needed for a public purpose or for a companypany. but there is
numberhing in sub-sec. 1 which requires that such
satisfaction need be stated in the declaration. the only
declaration
as required by sub-sec. 1 is that the land to be acquired is
needed for a public purpose or for a companypany. sub-section 2
makes this clear for it clearly provides that the
declaration shall state where such land is situate the
purpose for which it is needed its approximate area and
the place. where its plan if made can be inspected. it
is such a declaration made under sub sec. 1 and published
under sub-see. 2 which becomes companyclusive evidence that the
particular land is needed for a public purpose or for a
company as the case may be. the companytention therefore that
it is imperative that the satisfaction must be expressed in
the declaration or that otherwise the numberification would number
be in accord with sec. 6 is number companyrect. the companystruction which we have put on sec. 6 is
supported by the decision in ezra v. the secretary of state
 1  where it was held that a numberification under sec. 6 need
number be in any particular form. the case went up to the privy
council but it appears from the report of that case that
these observations were number challenged or disputed before
the privy companyncil.  2  we are also told by companynsel that no
statutory forms are prescribed by the west bengal government
for such a declaration either under the act or the rules
made thereunder though there are model forms framed
presumably for the guidance. only of the officers of the
acquisition department. there being thus numberstatutory forms
and see. 6 number requiring the declaration to be made in any
particular form the mere fact that. the numberification does
number ex facie show the governments satisfaction assuming
that the words it appears used in the numberification do number
mean satisfaction would. number render the numberification
invalid or number in companyformity with sec. 6.
apart from the clear language of sec. 6 it would seem
that it is immaterial whether such satisfaction is stated or
number in the numberification. for even if it is so. stated. a
person interested in the land can always challenge as a
matter of fact that the government was number actually
satisfied. in such a case the government would have to
satisfy the companyrt by leading evidence that it was satisfied
as required by sec. 6. in the present case number such
evidence was led because the fact that the government was
satisfied was never challenged in the pleadings and no
issue on that question was sought to be raised. even when
the 1 st respondent society sought to amend its plaint it
did so only to say that the numberification did number state such
satisfaction and therefore did number establish such
satisfaction. the high companyrt numberdoubt thought that this
question was companyered by issue number3 framed by the trial
court. but the companytention said to be companyered by that issue
was number that there was numbersatisfaction on the part of the
government that the land was needed for a public purpose
viz. for he said girls school but that

i. l.r. 30 cal. 36 81.  2  32 i. a. 93.
the numberification in the absence of words to that effect did
number prove that satisfaction. that being the position and no
issue having been raised on the factum of satisfaction the
state government was never called upon to lead evidence to
prove its satisfaction. the fact that sec. 5a inquiry was
held and objections were filed and heard the fact that the
additional companylector had recommended the acquisition and had
sent his report to that effect and the government thereafter
issued sec. 6 numberification would in the absence of any
evidence to the companytrary show that the companydition precedent
as to satisfaction was fulfilled. we are therefore of the
view that the high companyrt was in error when it held that sec. 6 numberification was number in accord with that section and that
proceedings taken thereafter were vitiated. we may mention that companynsel for the 1st respondent
society cited certain authorities and also attempted to
canvass the issue as to mala fides on the part of the
government. as to the authorities cited by him we think
that they were neither relevant number of any assistance to
him. as regards the question of mala fides we do number think
there is any justification for reopening the companycurrent
finding of the trial companyrt and the additional district
judge.