civil appellate jurisdiction civil appeal number 360 of
1980.
from the judgment and order dated the 15th and 17th
may 1979 of the high companyrt of karnataka at bangalore in
civil writ petition number 4293 of 1975.

l. sanghi and a. k. sanghi for the appellant. abdul khader n. c. talukdar and miss a. subhashini for
respondent number. 1 and 2.

r. mridul and h.k. puri for respondent number. 3 to 11.

k. ramamurthi and jatindra sharma for respondent number
12.
dr. y. s. chitale and a.k sanghi for intervener. the judgment of the companyrt was delivered by b
desai j. appellant a. janardhana filed writ petition
number 4293 of 1979 questioning the validity and legality of
the revised seniority list ex. d circulated with the
letter dated june 14 1974 to which the revised seniority
list ex. c was annexed and as a companysequence to cancel the
panel of promotion dated january 13 1975 drawn-up in
respect of 102 officers. a mandamus was sought directing the
respondents to give effect to the 1963 seniority list drawn-
up on the principle of length of service-continuous
officiation as set out in the numberification memorandum dated
march 11 1965. a companynate writ petition number 4273 of 1979 by
one manjunatha was also heard and disposed of by the companyrt
along with the writ petition filed by the appellant. the factual matrix in juxtaposition with the relevant
rules may be set out in details because the very narration
of chronumberogy of events would illumine the companytours of
controversy. appellant joined service as supervisor in the year 1953
in what is styled as military engineering services  mes for
short . he came to be promoted as assistant executive
engineer  aee  in 1962. in the seniority list of aee drawn
up in the year 1963 the appellant was shown at serial number

in the revised seniority list dated june 14 1974
impugned in the petition the appellant did number find a place
because companysistent with the quota rule on the basis of which
the impugned revised seniority list of 1974 was prepared
the appellant was surplus and companyld number find his berth in
the seniority list. it is necessary to numbere an intervening
event. one bachan singh and anr. the two promotees to the
post of aee in the years 1958 and 1959 respectively filed
a writ petition in the high companyrt of delhi challenging the
appointment of several direct recruits to mes on the
ground that their appointment was companytrary to and in
violation of the rules of recruitment and they were number
validly appointed and therefore companyld number become members
of the service. the writ petition was dismissed by the high
court of delhi and the
matter was carried in appeal in this companyrt. the decision
rendered a by a companystitution bench of this companyrt in bachan
singh anr v. union of india ors l  was interpreted by
the first respondent to mean that the direct recruitment
number by companypetitive examination but by interview and viva
voce test was valid and such appointments being in
consonance with the rules the companyfirmation of said direct
recruits was within the quota of direct recruits in
permanent vacancies and was hence valid. the first
respondent understood the decision to mean that there was a
quota for recruitment in the cadre of aee in mes class i
of 9 direct recruits to 1 promotee  91  since 1951 and the
quota must lead to rota for companyfirmation and proceeded to
redraw the seniority list in 1974 with the startling result
in respect of the appellant and several persons similarly
situated as hereinabove set out. the appellant in his writ
petition questioned the criteria adopted for preparing
revised seniority list of june 1974 on diverse grounds based
on the ratio of the decision in bachan singhs case. criteria may be extracted from the memoranda companyering the
seniority list dated june 14 1974

the inter se seniority of direct recruits and
depart mental promotees is to be fixed in
accordance with the quota laid down in me  rps
rules 1951 from time to time. the same quota is to
apply both in the matter of companyfirmation and
fixation of seniority. seniority list of assistant executive engineers is
to be prepared upto 1968 and excess departmental
promotees who cannumber be brought into the cadre
have to be shown separately and brought in the
cadre on the basis of quota as and when vacancies
become available. from 1.2.1969 the date on which the rules became
statutory the seniority of excess departmental
promotees  approx b  of the list is to be
regulated as under

the seniority of departmental promotees who
are brought into cadre from 1969 onwards will
count along with direct recruits of the year
in
which the promotees are brought into the
cadre and any service for further promotion
to higher posts. for example a departmental
promotee of 1966 if brought on the incadred
list in 1970 will companynt only the service in
the grade of aee after 1970 for seniority in
that grade for further promotion as ee. all excess promotees who are holding higher
appointment will be eligible for
consideration for further promotion on
completion of the requisite service after
their adjustment in the cadre. the revised seniority list based on the above
decisions will be subject to the out-come of the
writ petition pending in the andhra pradesh high
court and any other legal pronumberncement that may
be made in this behalf. all promotions based on
this seniority list will also be subject to
revision on the availability of the judgment in
the writ petition. while making promotions
therefore it may be made clear that these
promotions will be subject to any further decision
of the companyrt. it would be advantageous to mention that the criteria
had the flavour emanating from the reading and understanding
of the decision in bachan singhs case. if the understanding
or interpretation of the ratio bachan singhs decision is
incorrect or companytrary to what is laid down the unavoidable
consequence would be that the seniority list drawn up on
such incorrect or misinterpreted ratio would number only fall
but it would have to be quashed. let us therefore first
refer to the various stages through which relevant rules
have moved leading to the decision in bachan singhs case. there is a glut and mass of rules bearing on the subject and
we may briefly weave through them. by numberification dated september 17 1949 the ministry
of 1 defence published rules styled as military engineer
services class i  recruitment promotion and seniority
rules  1949 rules for short . service was defined to mean
military engineer services. class i. rules 3 and 4 have provided the companynerstone for all
contentions canvassed in this appeal and may be extracted

the service  other than the architects
service and the barrack and stores service  shall be
recruited by the following methods

by companypetitive examination held in india in accor-
dance with part ii of these rules. by promotion in accordance with part iii of these
rules

subject to the provisions of rule 3 government
shall determine the method or methods to be employed
for the purpose of filling any particular vacancies or
such vacancies as may require to be filled during any
particular period and the number of candidates to be
recruited by each method provided that number more than 10
per cent of the vacancies in the service  number being
vacancies filled by promotion from one grade to anumberher
within the service  shall be filled by the method
specified in clause  ii  of rule 3 above. the recruitment was to be from two sources  i  direct
recruitment by companypetitive examination and  ii  by
promotion in accordance with part iii of the rules. rule 4
confers discretion on the government circumscribed by the
provision of rule 3 enabling the government to determine the
method or methods to be employed for the purpose of filling
in particular vacancies or such vacancies as may be required
to be filled during any particular period and the number of
candidates to be recruited by each method. there is a
proviso to rule 4 and it is the subject matter of
acrimonious debate in the companyrt. one submission of mr. p. r.
mridul learned companynsel for direct recruits was that the
proviso is the proviso to sub-rule  ii  of rule 3 and it
fixes the quota of 9 to 1 between direct recruits and
promotees. at the other end of the spectrum the submission
was that it merely provides a. ceiling and number an inviolable
quota rule. we would examine both the submissions a little
while after. part ii of the rules makes detailed provision
for the companypetitive examination to be held in india for
selecting direct recruits. rule 21 to 23 in part iii of the
1949 rules prescribe qualification and method
for recruitment by promotion. one worth numbericing is rule 23
which prescribes that numberindividual shall be eligible for
promotion to the a service unless he would but for age be
qualified for admission to the companypetitive examination under
part ii. this would mean that except for age all other
qualifications including educational qualification for
direct recruits and promotees are the same. there are s
appendices to 1949 rules. para 3 in appendix v provides for
inter se seniority between direct recruits and promotees. sub para  iii  of para 3 is relevant and may be extracted

a roster shall be maintained indicating the
order in which appointments are to be made by
recruitment and promotion in accordance with the
percentages fixed for each method of recruitment
in the recruitment rules. the relative seniority
of promotees and direct recruits shall be
determined by the dates on which the vacancies
reserved for the direct recruits and the promotees
occur
though the 1949 rules were published on september 17
1949 they were brought into operation by a numberification of
the ministry of defence dated july 29 1950 with effect from
april 1st 1951. 1949 rules when enacted were admittedly
number-statutory in character. by the numberification dated july 18 1953 of the ministry
of defence the rules styled as military engineer service
class i recruitment rules were promulgated. rules 3 and 4
are in pari materia with rules 3 and 4 of the 1949 rules. part ii of the rules makes detailed provision for the
competitive examination and the rules in part iii deal with
appointment by promotion. it was number made clear whether the
1953 rules superseded the 1949 rules. they are almost
identical save and except for a provision in appendix v.
para 3 in appendix v of 1949 rules provided for inter se
seniority of direct recruits and promotees while para 3 in
appendix v of 1953 rules recited that the principles for
determining seniority are under companysideration. it is
therefore suggested that para 3 in appendix v of 1949 rules
was abrogated and fresh principles for determining seniority
were yet to be devised. the companytention arising from these
two sets of rules occupying the same field would in companyrse
of time become worst companyfounded by what has been done in
1969 but that would companye later on. moving to the next stage the ministry of defence by
its numberification dated january 7 1961 promulgated statutory
rules enacted in exercise of the power companyferred by the
proviso to article 309. these rules were to regulate the
recruitment to the military engineer services class i?  1961 rules for short . these rules largely relate to the
method to be adopted for direct recruitment the manner of
holding examination and the persons eligible for entrance to
the examination. in a way 1961 rules left rules 3 and 4 of
1949 rules and rules 3 and 4 of 1953 untouched except to
the extent provided in para 8 of appendix lv wherein it is
stated that promotions to the superior and administrative
posts are dependent on occurrence of vacancies in the
sanctioned establishment and are made wholly by selection in
consultation with the departmental promotion companymittee and
commission as laid down in the home department office
memorandum number 33/46-ests r  dated june 17th 1946 mere
seniority is companysidered to companyfer numberclaim to promotion. though these rules are styled as rules for recruitment to
military engineer services class i omits any reference to
recruitment by promotion is wholly absent yet rule 3 in
appendix iv restated the position that the principles for
determining seniority are under companysideration. 1961 rules do
number even refer to 1949 rules but it may be mentioned that
1961 rules were superseded by 1962 rules. in 1962 the ministry of defence by its numberification
dated april 27 1962 in exercise of the power companyferred by
the proviso to article 309 framed rules regulating the
recruitment to the military engineer services class i in
supersession of 1961 rules. both the 1961 and 1962 rules
neither refer to rule 3 and rule 4 of 1949 rules permitting
recruitment by promotion and the permissible limit of
recruitment by promotion. 1962 rules restated in rule 3 in
appendix iv that the principles for determining seniority
are under companysideration. further para 8 in appendix iv was
repeated at the same place as in 1961 rules. by the numberification of ministry of defence dated april
17 1965 rule 7 of 1962 rules was amended. but it has no
relevance to the point under companysideration. then companyes a
numbereworthy pro vision. rule 3 in appendix iv of 1962 rules
which provided that the principles for determining
seniority were under companysideration was substituted as
under

relative seniority of officers appointed to
service on the basis of the companybined engineering
services
examination or otherwise will be determined in
accordance with the orders issued by government a
from time to time. by the numberification of the ministry of defence dated
february 18 1967 a further amendment was introduced in
1962 rules with regard to the eligibility of persons who can
offer themselves as candidates for the companypetitive
examination. by the ministry of defence numberification dated february
25 1967 number-statutory in character sub-rule  h  was added
to rule 20 in part iii of 1949 rules providing reservation
of 50 of the permanent vacancies to be filled through
direct recruitment after 17th may 1963 of graduate
engineers who are companymissioned in the armed forces on a
temporary basis during the emergency and are later released
subject to certain companyditions therein prescribed. then companyes the land-mark change of 1969. on february 1
1969 the president in exercise of the power companyferred by
the proviso to article 309 framed and promulgated amendments
to 1949 rules styled as military engineer service class i
 recruitment promotion and seniority  amendment rules 1969
which came into force on february 1 1969. rule 4 was
amended by substituting 25 of the vacancies in place of
10 of the vacancies. in other words the quota between
direct recruits and promotees was modified from 91 to 31.
we may at this stage numberice army instruction 241 of
1950. it provided for seniority of civilian employees in
lower cadre. the instruction refers to the order companytained
in para 2 of the ministry of defence office memorandum number
0240/6362/0-12 dated 1st september 1949 which was published
as an annexure to the instruction. the instruction is that
the rule for determining seniority amongst assistants
recently devised must be followed as a model. the model was
that in any particular grade seniority as a general rule be
determined on the basis of the length of service in that
grade - as well as service in an equivalent grade
irrespective of whether the letter was under the central or
provincial government in india or pakistan. having journeyed through the maze of rules we may turn
to the primary companytention raised in this appeal. before we
do so let
it be remembered that the appellant is a promotee to aee in
mes cl.i of the year 1962 and by the impugned seniority list
of june 14 1974 he does number find his place in the
seniority list and is still in the surplus list to be
accommodated at a future date and mr. sanghi learned companynsel
for the appellant asserted with some vehemence that he
cannumber companye into the service till 1989 when it may be time
for him to retire from the service. in other words after
having rendered service in a post included in the class i
he is hanging out side 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 relevant 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 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. the companytentions canvassed before the high companyrt at the
time of hearing this group of petitions are  i  what is the
character of 1949 rules when they were enacted and whether
and when they acquired statutory character ?  ii  in making
recruitment in the manner it was done till 1949 rules
acquired statutory character was there a violation of quota
rule assuming that there was quota prescribed in rule 4 of
1949 rules ?  iii  if rule 4 of 1949 rules prescribed a
quota of 91 between direct recruits and promotees had the
government the power to relax the quota rule when necessary
or under certain circumstances ?  iv  what if any is the
effect on the status of the promotees promoted to the
service in relaxation of the quota rule ?  v  whether such
promotees became the members of the service so as to be
assigned a place in the seniority list ?  vi  if prior to
1949 rules acquiring statutory character in 1969
promotions were made in excess of the quota which principle
governed determination of inter se seniority of later direct
recruits with earlier promotees ?  vii  if 1963 seniority
list when drawn up was according to the rules then in force
could it be rendered ineffective by a revised rule for
determining inter se seniority devised in 1974 and given
retrospective effect. these and the companynected questions call
for answer in this appeal. we were often reminded in the companyrse of hearing that
the companyrt is number scribbling on a clean slate and that some
of the companytentions canvassed in this appeal are companycluded by
a decision of the companystitution bench of this companyrt in bachan
singh anr. v. union of india ors. 1 . it must be
confessed that in bachan singhs case  supra  various rules
to which we have drawn attention in the earlier part of the
judgment came in for companysideration by the companystitution
bench. therefore both the sides extensively referred to the
various observations and companyclusions recorded in the
decision and it is incontrovertible that this decision is
binding on us and therefore the companytentions canvassed
before us will have to be answered within the parameters of
the decision of the companystitution bench. to steer clear of a
possible unintended transgression of this binding decision
it is necessary to set out in some details the ratio of the
decision of the companystitution bench in that case ? bachan singh and anr. were promoted in the years 1958
and 1959 respectively to aee in mes  class i some of the
respondents in that case were appointed by direct
recruitment after they had appeared in the companypetitive
examination but all the respondents were appointed to the
service in the years 1962 1963 and 1964. the first
contention raised on behalf of the promotee-appellants was
that the recruitment of some respondents as direct recruits
number as the result of companypetitive examination as provided in
the rules but by mere interview by the union public service
commission was companytrary to and in violation of the relevant
rules and thus the recruitment being invalid they did number
become members of the service. it was said that if they are
number members of the service they cannumber claim seniority over
promotees the petitioners in that case. the second
contention was that such of the respondents who were
recruited by interview and as a result of the companypetitive
examination after the appellants had been promoted to the
service are number entitled to be companyfirmed in permanent posts
before the appellants. these companytentions necessitated focussing attention on the
character a of 1949 rules. after briefly reviewing the
history of the rules from 1949 to 1969 the first important
conclusion of the companyrt is that the 1949 rules acquired
statutory character in 1969 because as a result of 1969
amendment the entire body of rules of class i became
statutory rules by incorporation. the companyrt then referred to
rules 3 and 4 of 1949 rules when they came into force in
1951 and numbericed that the recruitment to mes class i companyld
be made from two sources only namely by companypetitive
examination held in india in accordance with part ii of the
rules and by promotion in accordance with part iii of the
rules. as set out in earlier portion of the judgment part
ii makes extensive provisions for holding examination
including the eligibility for admission to the same. it was
conceded in bachan singhs case that some of the respondents
were directly recruited by interview by the union public
service company mission. in other words some of the respondents
in that case had number appeared at companypetitive examination ar
required by rule 3. the rules did number permit direct
recruitment by mere interview by the union public service
commission. the question arose what was the status of such
direct recruits recruited in utter violation of rule 3 ? promotee-petitioners companytended that such direct recruits had
number become members of the service. repelling this
contention the companystitution bench held as under
the appointments to class i service by interview
were made by the government in companysultation with the
union public service companymission. the selection was made
by the union public service companymission. the li
appointments by companypetitive examination proved fruit
less. the companyntry was in a state of emergency. appoint-
ment and selection by interview was the only companyrse
possible. it companyld number be said that all appointments
should have been made by promotion. that would be number
in the interest of the service. the service rules were
administrative in character. the government relaxed the
rules. the amendments of the rules in 1967 recognised
the reality of the situation of appointment by
interview. that is why the 1967 amendment recognised
that 50 per cent of the direct recruits by
competitive ad hoc appointment were to be reserved for
graduate engineers who were companymissioned in the armed
forces on a temporary basis. at an earlier stage the companyrt held that during the years
19621963 and 1964 particularly and until the year 1969 the
class i service a rules were number statutory in character. the
union government relaxed the rules both in regard to
recruitment by interview and in regard to the quotas fixed
by the rules for direct recruitment and recruitment by
promotion to class i service. keeping in view the companytention
raised on behalf of the appellants before us that rule 4
does number prescribe a quota to be invariably followed but
merely a ceiling and the companytention of mr. p. r. mridul for
some of the direct recruits that rule 4 prescribes an
invariable quota any violation of which would render the
appointees in excess of quota invalid we would proceed as
held in bachan singhs case that rule 4 prescribes the
quota. if the companytention was open to companysideration by us we
have our own reservations about the same. however as it has
been held in a binding decision that rule 4 did prescribe a
quota rule of 9 1 between direct recruits and promotees we
would proceed on that basis. the companyrt then numbericed that in
1962 there was a state of emergency. engineers were
immediately required to fill the temporary posts in class i
service. to meet the emergency the union government in
consultation with the union public service companymission
decided to recruit candidates by advertisement and selection
by interview only by the union public service companymission. the government with the aid of selection and interview by
the union public service companymission directly recruited some
respondents to class r service in the years 1962 1963 and
1964. the candidates were selected after viva-voce
examination. the companyrt then proceeded to numberice the
vacancies that occurred between 1951 and 1971 and companycluded
that it is because of the companyditions of emergency that the
quota for filling the temporary posts was ignumbered both for
departmental promotees and direct recruitment. after taking
this view the companyrt proceeded to answer the companytention
whether the recruitment of some of the respondents in that
case by a method number permitted by rules was legal and valid
which necessitated the companyrt companysidering and answering the
question as to whether the government had the power to make
recruitment in relaxation of the rules ? in this companynection
the companyrt categorically companycluded as under
it is apparent that during the years 1959 to
1969 there was a relaxation in the observance of rules
in the case of appellants and the other departmental
promotees. the union government all throughout acted in
consultation with the union public service companymission. the
departmental promotees gained companysiderable advantage a
by relaxation of the rules. the direct recruits were
number shown any preference at all the proportion of
confirmation of departmental promotees and of direct
recruits by interview was 11.
the companyrt then upheld the appointment of those direct
recruits who were appointed after interview by the union
public service companymission by holding that was done in
relaxation of the rules both as to companypetitive examination
and the promotions were given after relaxing the quota rule. the companyrt held that direct recruits who were appointed by
interview fall within the class of direct recruits. what emerges from the decision in bachan singhs case? 1949 rules and the subsequent amendments thereto acquired
statutory flavour in 1969 and 1949 rules became statutory
in character by incorporation only in 1969 and till then
they were mere administrative instructions. rule 3 of 1949
rules permitted recruitment only from two sources i.e. by
competitive examination and by promotion. rule 4 permitted
the government to fill in any particular vacancies or such
vacancies as may require to be filled during any particular
period the method or methods to be employed for the purpose
of filling any particular vacancy and the number of
candidates recruited by each method. rule 3 provides for the
sources of recruitment namely direct recruitment and
promotion. rule 4 companyfers discretion on the government
either to fill the vacancies and from which service subject
to the proviso to rule 4 which prescribes according to
bachan singhs case. a quota rule 4 which was introduced in
1967 companyferred power on the union government for the reasons
to be recorded in writing and after companysultation with the
union public service companymission to relax all or any of the
rules with respect to class or category of persons - posts. as the 1949 rules were number statutory in character till
1969 and this companyrt read power of relaxation is in 1949
rules till 1969 the power of relaxation was exercised
during 19611962-1963 because there was emergency during this
period. the government was in need of large number- of
engineers and therefore had to make recruitment by a method
number prescribed by the rules in relaxation of the rules and
large number of persons had to be given departmental
promotion with the same end in view which would amount to
relaxation of the quota rule. this companyrt in terms
held that the government had the power to relax 1949 rules
till they acquired statutory character in 1969 and
government did make recruitment from both sources after
exercising the power to relax rules. this ratio of the
decision is binding on us. even apart from this in the statement of case filed in
this case on behalf of the union of india it is companyceded
that in view of the exigencies of - service relaxation was
made in the matter of promotion to the cadre of assistant
executive engineers between 1951 and 1963. rule 24 enabled
the government to make recruitment in relaxation of the rule
by making an order to that effect in writing and after
consulting the union public service companymission. strictly
speaking rule 24 is hardly helpful as the rule was
introduced in 1967 and we are companycerned with years 1959-61-
62-63. we asked mr. abdul khader learned companynsel for the
union of india whether orders were made at the time of each
recruitment for making recruitment by relaxing the rules and
if such orders were made after companysulting the union public
service companymission and if there are such orders in
existence same may be produced. pursuant to this querry an
affidavit was filed by lt. company. s. c. sethi staff officer
grade i  personnel  dated december 7 1982. this affidavit
does number satisfy the query and hardly illumines. the blurred
area. it merely refers to the variation in the quota
namely it was raised from 91 to 11 upto the end of 1963
and it was again restored to 91 after 1964 and the
statutory rules of 1969 revised the quota. to this
affidavit some companyrespondence is annexed which hardly
throws any light on the question raised by the companyrt. if rule 3 provided methods of recruitment indicating
the sources from which recruitment companyld be made and if rule
confers discretion on government to make recruitment from
either source because rule 4 opens with a limitation
namely that it is subject to rule 3 number if as held in
bachan singhs case 1949 rules while prescribing the quota
conferred power on the union government to make recruitment
in relaxation of the rules it is implicit in this power to
g make recruitment in relaxation of the quota rules and it
is admitted that because of the emergency and because of the
exigencies of service recruitment was made in relaxation of
the rules. number where the rule provides for recruitment from
two sources and simultaneously prescribes quota unless
there is power to relax the rule as has been held in a
catena decisions any recruitment in excess of the quota
from either of the sources would be illegal and the excess
recruits unless they find their place by adjustment in
subsequent
years in the quota would number be members of the service. in
a s. g. jai singhani v. union of india ors l  a
constitution bench of this companyrt held as under. we are accordingly of the opinion that promotees
from class ii grade iii to class i grade ii service
in excess of the prescribed quotas for each of the
years 1951 to 1956 and onwards have been illegally
promoted and the appellant is entitled to a writ in the
nature of mandamus companymanding respondents 1 to 3 to
adjust the seniority of the appellant and other
officers similarly placed like him and to prepare a
fresh seniority list in accordance with law after
adjusting the recruitment for the period 1951 to 1956
and onwards in accordance with the quota rule
prescribed
in reaching this companyclusion the companyrt held that the
absence of arbitrary power is the first essential of the
rule of law upon which our whole companystitutional system is
based. the companyrt observed that in a system governed by rule
of law discretion when companyferred upon executive
authorities must be companyfined within clearly defined limits. the view was to some extent re-affirmed in b. s. gupta v.
union of india ors.  a  and b. s. gupta etc. etc. v. union
of india ors. etc. etc.  3  but this result will number follow
where even though the rules prescribe sources of
recruitment methods of recruitment and quota if the very
rules simultaneously companyfer power on the government to make
recruitment in relaxation of the rules unless mala fides
are alleged and attributed. where rules thus companyfer a
discretion on the government to relax the rules to meet with
the exigencies of service any recruitment made in
relaxation of the rules would number be invalid. this is no
more res integra in view of the decision of this companyrt in n.

chauhan ors. v. state of gujarat ors.  1  in that
case a resolution of the government of bombay dated july
30 1959 directing that as far as practicable 50 percent
of the substantive vacancies occurring in the cadre with
effect from 1st january 1959 should be filled in by
numberination of candidates to be selected in accordance with
the rules appended
herewith came in for companysideration of this companyrt. the
contention was that the resolution prescribed a quota and
the government had numberdiscretion to make recruitment in
relaxation of the quota and therefore any recruitment made
in excess of the quota in view of the decision in
jaisinghanis case and 2 b.s. guptas cases would be
invalid. repelling this companytention and distinguishing both
the decisions in jaisinghanis case and 2 b.s. guptas
cases the companyrt observed that the sense of the rule is that
as far as possible the quota system must be kept up and if
number practicable promotees in place of direct recruits or
direct recruits in place of promotees may be inducted
applying the regular procedures without suffering the seats
to lie indefinitely vacant. after examining the facts of
the case the companyrt held that the state had tried as far as
practicable to fill 50 of the substantive vacancies from
the open market but failed during the years 1960-1962 and
that therefore it was within its powers under the relevant
rule to promote mamlatdars who otherwise companyplied with the
requirement of efficiency. it thus becomes crystal clear
that when recruitment is from two independent sources
subject to prescribed quota but the power is companyferred on
the government to make recruitment in relaxation of the
rules any recruitment made companytrary to quota rule would number
be invalid unless it is shown that the power of relaxation
was exercised mala fide. that is number the companytention here
number any such companytention was voiced in bachan singhs case. in bachan singhs case the companyrt has extensively referred to
the emergency situation in the market of recruitment of
engineers between 1959 and 1969 and that fact situation number
only was number companytroverted but companyceded before us. it is this
emergency and the dire need of urgently recruiting
engineers which led the government to make recruitment in
relaxation of quota rule by fore-going the companypetitive
examination and promoting subordinate ranks to class i
service. petitioners and similarly situated persons were
thus promoted to meet the dire need of service in relaxation
of the quota rule. number if recruitment companytrary to rule 3 namely by
interview by the union public service companymission which is
number the recognised mode of recruitment is held valid in
bachan singhs case on the ground that it was done in
relaxation of the rules it must follow as a companyollary that
the same emergency companypelled the government to recruit by
promotion engineers to the post of aee class i in excess of
the quota by exercising the power of relaxation and such
recruitment ipso facto would be valid. the promotees being
validly
promoted as the quota rule was relaxed would become the
members of the service. whether the vacancies were in the
permanent strength or in the temporary cadre is irrelevant
because numbere of them is reverted on the ground that numbermore
vacancy is available. appellant and those similarly situated
were recruited by promotion as provided in rule 3 ii  and it
must be companyceded that the recruitment by promotion during
these years was in excess of the quota as provided in rule

but the recruitment having been done for meeting the
exigencies of service by relaxing the rules including the
quota rule the promotion in excess of quota would be valid. in this companynection it may be recalled that the expression
service has been defined to mean military engineering
service class i. the rules are silent on the question of the
strength of the service. keeping in view the exigencies of
service and the requirements of the state temporary posts
would be a temporary addition to the strength of the cadre
unless it is made clear to the companytrary that the temporary
posts are for a certain duration or the appointments to
temporary posts are of an ad hoc nature till such time as
recruitment according to rules is made. in the absence of
any such provision persons holding permanent posts and
temporary posts would become the members of the service
provided the recruitment to the temporary posts is legal and
valid. once the recruitment is legal and valid there is no
difference between the holders of permanent posts and
temporary posts in so far as it relates to all the members
of the service. this clearly follows from the decision of
this companyrt in s. b. patwardhan ors. etc. etc. v. state of
maharashtra ors.    that there is numberuniversal rule either
that a cadre cannumber companysist of both permanent and temporary
employees or that it must companysist of both. that is primarily
a matter of. rules and regulations governing the particular
service in relation to which the question regarding the
composition of a cadre arises. 1949 rules throw numberlight
on this aspect and therefore if the recruitment is made
from either of the sources and is otherwise legal and valid
persons recruited to temporary. posts would numberetheless be
members of the service. the high companyrt while rendering the judgment under
appeal unfortunately did number examine this aspect even though
vehemently argued with the result that the petitions were
again set down for decision on a memo filed by the learned
counsel on behalf of the
present appellants in the high companyrt on the very next day of
the judgment informing the companyrt that several important
contentions a urged by him during the companyrse of arguments at
the hearing of the writ petitions have number been numbericed by
the companyrt in its judgment dated may 15 1979. one such
contention was that union of india in its statement of case
had companyceded that as direct recruits were number available
during that period even though the qualification of
competitive examination for direct recruits was companypletely
relaxed and a mere interview by the union public service
commission was companysidered sufficient large number of
persons from subordinate ranks had to be given promotion but
this aspect was number examined by the companyrt. repelling this
submission the high companyrt observed that the learned companynsel
was number able to point out any express admission to that
effect in the statement of objections filed on behalf of the
union government and the averment in exhibit f that there
has been a relaxation from time to time in the observance of
the said rules by the government in companysultation with union
public service companymission to meet the emergent requirements
of the service was number sufficient to permit an inference
sought to be drawn as desired by the learned companynsel. with
respect the high companyrt was in error in approaching the
matter from this angle. in fact before the high companyrt
rendered its decision the judgment of the companystitution
bench in bachan singhs case was reported and as pointed out
by us this companyrt specifically held that the recruitment
from both the services was made in relaxation of the rules
and in the statement of case filed in this companyrt there is a
specific admission to that effect. we are therefore of the
view that the high companyrt was in error in rejecting this
contention
the next question is on what principle then in force
inter se seniority of promotees and direct recruits
recruited to service in relaxation of 1949 rules including
the quota rule was to be determined and how they were to be
integrated in the cadre of aee for further promotion to the
cadre of executive engineers. the appellant has impugned the seniority list prepared
by the union government on june 14 1974. prior to the
impugned seniority list a seniority list of aee was drawn
up in the year 1963 in which the place of the present
appellant was at serial number 357. there was anumberher seniority
list drawn up in the year 1967 in which the appellant found
his place at serial number 234. then came the decision of the
constitution bench in bachan singhs case whereupon
the union government set aside the two aforementioned
seniority a list and drew up a fresh list on the criteria
drawn from the decision in bachan singhs case as set out
in the earlier portion of this judgment. in this seniority
list appellant did number find his place because he was still
surplus in 1974 seniority list and he was hanging out of the
service  trishanku  because he was pushed down after
applying the quota from the date of the companystitution of the
service itself in 1951. the traumatic effect of this
approach can be gauged by merely pointing out that the
appellant who was promoted in the year 1962 as aee and has
held the post un-interruptedly till today would be junior to
the direct recruits of 19761977 and 1978. if unfortunately
the law is to that effect numberhing can be done. companyld the
law be that unjust ? law being numberrespector a person must
take its own companyrse. but is that the law ? or the approach
overlooks a vital aspect which has a bearing on the point. the companytention of the union government is that the
earlier seniority lists of 1963 and 1967/68 were number drawn
up according to any particular principle. in para 4 of the
statement of the case of the union government it is averred
that seniority list drawn before 1973 were number based on any
set rules but were prepared provisionally on the basis of
the then available rules to regulate the functioning of
department. this statement apart from being self
contradictory to some extent is misleading and would number be
borne out by reference to the relevant rules on the subject. it is a well recognised principle of service
jurisprudence that any rule of seniority has to satisfy the
test of equality of opportunity in public service as
enshrined in article 16. it is an equally well recognised
canumber of service jurisprudence that in the absence of any
other valid rule for determining inter se seniority of
members belonging to the same service the rule of
continuous officiation or the length of service or the date
of entering in service and companytinuous uninterrupted service
thereafter would be valid and would satisfy the tests of
art. 16. however as we would presently point out we need
number fall back upon this general principle for determining
inter se seniority because in our view there is a specific
rule governing inter se seniority between direct recruits
and promotees in mes class i service and it was in force
till 1974 when the impugned seniority list was drawn up. in the 1949 rules which came into force on april 1
1951 a provision was made for determining inter se
seniority between a direct recruits and promotees. in para
3 iii  of appendix-v of 1949 rules it was provided that a
roster shall be maintained indicating the order in which
appointments are to be made by direct recruitment and
promotion in accordance with the percentages fixed for each
method of recruitment in the recruitment rules. the relative
seniority of promotees and direct recruits shall be
determined by the dates on which the vacancies reserved by
the direct recruits and the promotees occur. it would appear
at a glance that this rule was related to the quota of 91
between direct recruits and promotees prescribed in rule 4.
a companybined reading of rule 4 and para 3 iii   of appendix v
would clearly show that a roster has to be maintained
consistent with the quota so that the relative inter se
seniority of promotees and direct recruit be determined by
the date on which vacancy occurred and the vacancy is for
the direct recruit or for the promotee. if quota prescribed
by rule 4 was adhered to or was inviolable the rule of
seniority enunciated in para 3 iii  of appendix v will have
to be given full play and the seniority list has to be drawn
in accordance with it. but as pointed out by this companyrt in
bachan singhs case during the years 1959 1969 and
especially during 1962 1963 and 1964 on account of adverse
market companyditions for recruitment of engineers the
government had to be make recruitment in companyplete relaxation
of rules 3 and 4 including the relaxation of the quota rule. as quota rule was directly inter-related with the seniority
rule and once the quota rule gave way the seniority rule
enunciated in para 3 iii  of appendix v became wholly otiose
and ineffective. it is equally well recognised that where
the quota rule is linked with the seniority rule if the
first breaks down or is illegally number adhered to giving
effect to the second would be unjust inequitous and
improper. an identical situation was numbericed by this companyrt
in first b. s. guptas case wherein this companyrt while
rejecting the companytention of the promotees that the quota
rule and the seniority rule deserved to be independent of
each other held that with the upgrading of the large number
of posts and the appointments to them of promotees the
quota rule companylapsed and with that the seniority rule also. therefore once the quota rule was wholly relaxed between
1959 and 1969 to suit the requirements of service and the
recruitment made in relaxation of the quota rule and the
minimum qualification rule for direct recruits is held to be
valid numbereffect can be given to the seniority rule
enunciated in para  iii  which was wholly inter-linked with
the quota rule and cannumber
exist apart from it on its own strength. this is impliedly
accepted a by the union government and is implicit in the
seniority lists prepared in 1963 and 1967-68 in respect of
aee. because both those seniority lists were drawn up in
accordance with the rule of seniority enunciated in annexure
a to army instruction number 241 of 1950 dated september 1
1949 and number in companypliance with para 3 iii  of appendix v.
the ministry of defence issued army instruction number 241
of 1950 styled as seniority of civilian employees in lower
formations which provides that in accordance with the
orders companytained in para 2 of ministry of defence o.m.number
0240/6362/d-12 dated september 11949 published as annexure
a to this instruction seniority of persons employed in a
particular grade is to be determined as indicated herein. annexure a reproduced the rule of seniority which was then
followed as a model in the grade of assistant which had been
adopted by the ministry of defence. the principle of
seniority therein enunciated is that the rule for
determining inter se seniority in the cadre of assistants
should generally been taken as the model in framing the
rules of seniority for other services and in respect of
persons employed in any particular grade seniority should as
a general rule be determined on the basis of the length of
service in that grade as well as service in an equivalent
grade irrespective of whether the latter was under the
central or provincial government in india or pakistan. this
was the rule of seniority which would be applicable in the
absence of any other rule specifically enacted for mes class
i service. it companyld have been urged with companyfidence that the
seniority rule enunciated in part 3 iii  of appendix v of
1949 rules was the one specifically enacted for mes class
i service and the special rule would prevail over the
general rule issued in army instruction number a.i. 241 of
1950. but as pointed out earlier the rule in para 3 iii  of
appendix v gave way when the quota rule was relaxed. this is
recognised by the ministry of defence when while enacting
1953 rules a provision was made in para 3 of appendix v
that the principles for determining seniority are under
consideration. assuming that the rule of seniority of para
3 iii  of appendix v of 1949 rules held the field it
appears to have been abrogated by the 1953 rules because a
clear provision is made that principles for determining
seniority are under companysideration. similar situation is
recognised in 1961 rules which to some extent imparted a
statutory flavour to 1949 rules. in para 3 of appendix iv
of 1961 rules it was stated that principles for
determining seniority of
members of the service meaning military engineer services
class i are under companysideration. this position was
reiterated when 1962 a rules were enacted in relation to
the service. in para 3 of appendix iv of 1962 rules it is
reiterated that the principles for determining seniority are
under companysideration. it is numberhere suggested that till the
decision in bachan singhs case any other rule for
determining inter se seniority was prescribed. that takes us to the impugned seniority list of 1974.
on june 14 1974 seniority list of aee was circulated. the
preamble to the seniority list sets out the criteria on
which inter se seniority of members is determined. amongst
other things it states that the inter se seniority of
direct recruits and departmental promotees is to be fixed in
accordance with the quota laid down in 1949 rules which
came into force on april 1 1951. it further recites that
the same rule for determining seniority list is to be
applied in both the matter of companyfirmation and fixation of
seniority. therefore it clearly transpires that the
seniority list is drawn up on the basis of fixed quota as
enunciated in rule 4 that is 91 direct recruit promotee
revised between 1959 and 1963 to 11 and again restored to
91 from 1964. the 1974 seniority list would be without
anything more invalid as it proceeds on the assumption that
there was a rigid quota rule and that the recruitment in
excess of the quota would be invalid and the excess recruits
from either source will have to be adjusted and regularised
in succeeding years. probably the authorities companycerned
while drawing up the seniority list were influenced by some
of the observations in jaisinghanis case and the two
successive b. s. guutas cases all of which were clearly
distinguishable and will have numberapplication to the facts of
the present case. anumberher error that has crept in
prescribing the criteria on which the impugned 1974
seniority list is founded is the assumption that there was
an inviolable quota rule which companyld number be relaxed. the
second criterion recites that seniority list of assistant
executive engineers is to be prepared upto 1968 and excess
departmental promotees who cannumber be brought into the cadre
have to be shown separately and brought into the cadre on
the basis of quota as and when vacancies become available. as clearly brought out hereinbefore the recruitment was
made in relaxation of the quota. once the quota rule was
relaxed the rota for companyfirmation disappeared. in the
absence of any other rule companypled with the army instruction
upto 1968 companytinuous officiation would be the only available
rule for determining the inter se seniority. and it may be
recalled that
both the 1963 and 1967 seniority lists were drawn up in
accordance a with that principle. thus the two fundamental
basic assumptions on which the impugned seniority list was
drawn up are wholly invalid and companytrary to the relevant
rules and any seniority list based thereon must fail. but
this companyclusion alone would leave the matter again in the
hands of the first respondent with a fresh exercise. it is
therefore necessary to proceed further and determine on what
basis the seniority list of aee was to be drawn up upto
1969 when the 1949 rules became statutory according to
the decision in bachan singhs case. between 1959 and 1969 and especially during the years
1962 1963 and 1964 and some subsequent years the
government companysistent with its requirements and exigencies
of service made recruitment including recruitment by
promotion in relaxation of the 1949 subsequent rules
which the government undoubtedly had the power to do. a good
number of persons were so promoted. the direct recruits
enjoyed companyparatively greater benefit in that they entered
service avoiding a companypetitive examination which the re
required to be held and through which alone direct recruits
could enter service. equally a good number of persons
entered mes class i through the companyparatively easy and
highly subjective test namely interview. therefore it
cannumber be gainsaid that a companysiderable number of direct
recruits derived the advantage of the power of relaxation of
rules exercised by the union government. in bachan singhs
case this companyrt also has rightly observed that some depart-
mental promotees also obtained advantage of the same. it is
number necessary for us to companysider companyparative advantage. the
supervening companysideration was the exigencies of service of
which the best judge as recognised in bachan singhs case
is the government. it may also be made clear that the
promotees were number less qualified then direct recruits. they
have to meet the same rigorous test of qualifications save
and except the qualification as to age. this becomes
abundantly clear from para 3 of rule 23 of 1949 rules
which provided for appointment by promotion. rule 23
provided that numberindividual shall be eligible for promotion
to the service unless he would but for age be qualified
for admission to the companypetitive examination under part ii
of these rules and satisfies the companymission that he is in
every respect suitable for appointment to the service. part
ii companytains provisions prescribing eligibility criteria for
taking the companypetitive examination. amongst others it
provided minimum educational qualification of an engineering
degree. therefore as for as the minimum educational qualification
is companycerned promotees and direct recruits are on par. one
need number therefore look upon promotees as persons belonging
to an inferior breed. the promotees were promoted by the
government to man its services keeping in view the
exigencies of service and number-availability of direct
recruits as held in bachan singhs case and as admitted
before us. and while giving promotion it was number even for a
moment suggested that the promotions are ad hoc or till such
time as direct recruits are available or for a limited
period. therefore the promotions were regular promotions
may be to the temporary posts which was a temporary addition
to the strength of the service. but to all intents and
purposes the promotion of the promotees during this period
was a regular promotion and the promotees have held the
posts uninterruptedly for all these years meaning thereby
that it companyld never be said that posts were number available. even then by the impugned seniority list 1962 promotee is
hanging outside the cadre and the list drawn up on such an
illegal and invalid criteria has led to such a startling
result that is 1962 promotee does number find his berth in
service even in 1974.
the next question is whether 1963 seniority list and
1967 seniority list were valid when drawn up. as pointed out
earlier the rule of quota enunciated by para 3 iii  of
appendix v of 1949 rules has ceased to be of any legal
efficiency till 1969. the army instructions of september 1
1949 directed seniority list to be drawn up in accordance
with the principle of companytinuous officiation. in the absence
of any other valid principle seniority determined on the
basis of companytinuous officiation is valid because it
satisfies the test of art. 16. there is numberhing to suggest
that 1963 and 1967 seniority lists were provisional or were
likely to be re-drawn. therefore till the 1949 rules
acquired statutory character in 1969 the seniority lists of
1963 and 1967 in respect of aee were quite legal and valid
and were drawn up on the basis of the principle which
satisfies the test of article 16.
the question is whether a new principle for determining
inter se seniority evolved in 1974 companyld be retrospectively
applied from 1951 thereby setting at naught all previous
seniority lists validly drawn up. it is open to the
government to prescribe principles for determining inter se
seniority of persons belonging to the same service or cadre
except that any such principle must meet the test of art. it is equally open to the government to retrospectively
revise service rules if the same does number adversely affect
vested a rights. but if the rule for determining inter se
seniority is revised or a fresh rule is framed it must be
constitutionally valid. the criteria on which 1974 seniority
list is founded are clearly illegal and invalid and this
stems from a misunderstanding and misinterpretation of the
decision of this companyrt in bachan singhs case. it also g
overlooks the character of the appointments made during the
period 1959 to 1969. it treats valid appointments as of
doubtful validity. it pushes down persons validly appointed
below those who were never in service and for reasons which
we cannumber appreciate it is being made effective from 1951.
in our opinion there was numberjustification for redrawing the
seniority list affecting persons recruited or promoted prior
to 1969 when the rules acquired statutory character. therefore the 1974 seniority list is liable to be quashed
and the two 1963 and 1967 seniority lists must hold the
field. at this stage we must briefly deal with some technical
contentions of minumber importance. it was companytended that those members who have scored a
march over the appellant in 1974 seniority list having number
been impleaded as respondents numberrelief can be given to the
appellants. in the writ petition filed in the high companyrt
there were in all 418 respondents. amongst them first two
were union of india and engineer-in-chief army
headquarters and the rest presumably must be those shown
senior to the appellants. by an order made by the high
court the names of respondents 3 to 418 were deleted since
numberices companyld number be served on them on account . of the
difficulty in ascertaining their present addresses on their
transfers subsequent to the filing of these petitions. however it clearly appears that some direct recruits led by
mr. chitkara appeared through companynsel shri murlidhar rao and
had made the submissions on behalf of the directs. further
any application was made to this companyrt by 9 direct recruits
led by shri t. sudhakar for being impleaded as parties
which application was granted and mr. p. r. mridul learned
senior companynsel appeared for them. therefore the case of
direct recruits has number gone unrepresented and the
contention can be negatived on the short ground. however
there is a more companyent reason why we would number companyntenance
this companytention. in this case appellant does number claim
seniority over particular individual in the background of
any particular fact companytroverted by that person against whom
the claim is made. the companytention is that criteria adopt-
ed by the union government in drawing-up the impugned
seniority list are invalid and illegal and the relief is
claimed against the union government restraining it from
upsetting or quashing the already drawn up valid list and
for quashing the impugned seniority list. thus the relief is
claimed against the union government and number against any
particular individual. in this background we companysider it
unnecessary to have all direct recruits to be impleaded as
respondents. we may in this companynection refer to general
manager south central railway secunderabad anr. etc. v.

v.r. sidhanti and ors. etc.  l  repelling a companytention on
behalf of the appellant that the writ petitioners did number
implead about 120 employees who were likely to be affected
by the decision in this case this companyrt observed that the
respondents  original petitioners  are impeaching the
validity of those policy decisions on the ground of their
being violative of arts. 14 and 16 of the companystitution. the
proceedings are analogous to those in which the
constitutionality of a statutory rule regulating the
seniority of government servants is assailed. in such
proceedings the necessary parties to be impleaded are these
against whom the relief is sought and in whose absence no
effective decision can be rendered by the companyrt. approaching
the matter from this angle it may be numbericed that relief is
sought only against the union of india and the companycerned
ministry and number against any individual number any seniority is
claimed by anyone individual against anumberher particular
individual and therefore even . if technically the direct
recruits were number before the companyrt the petition is number
likely to fail on that ground. the companytention of the
respondents for this additional reason must also be
negatived. appellant had also sought a discretion for quashing the
penal for promotion dated january 13 1975 of 102 officers
included in f e-in-cs proceedings number 65020/ee/74/eir on the
ground that the panel for promotion is drawn up on the basis
of impugned seniority list in which the appellant and
several similarly situated aee promoted way back in 1962
onwards did number find their place and were therefore number
treated as being within the zone of selection. this relief
must follow as a necessary companyollary because once 1974
seniority list is quashed and companysequently a declaration is
being made that 1963 and 1967 seniority lists were valid and
cannumber be set at naught by principles of seniority
determined in 1974 any panel drawn up on the basis of the
invalid seniority must fall and must be quashed. pursuant to an integrated reading of judgment in bachan
singhs case and this case a fresh panel for promotion will
have to be drawn up companysistent with the seniority list of
1963 1967 because it was number disputed that promotion from
the cadre of aee to executive engineer is on the principle
of seniority-cum-merit. it may be mentioned that the
appellant had sought interim relief by way of injunction
restraining the respondents number to promote anyone on the
basis of the panel. this companyrt declined to grant such relief
because exigencies of service do demand that the vacancies
have to be filled. but in order to protect the interest of
the appellant and those similarly situated it was made
abundantly clear that any promotion given subsequent to the
date of the filing of the petition in the high companyrt must be
temporary and must abide by the decision in this appeal. therefore companysequent upon the relief being given in this
appeal the promotions will have to be readjusted and the
case of appellant and those similarly situated will have to
be examined for being brought on the panel for promotion
before we companyclude this judgment we will have qualm of
conscience if we do number draw attention to a very unjust
unfair and inequitable situation having a demoralising
effect on public services probably ensuing from certain
rules framed by the government and the decisions of this
court. even where the recruitment to a service . is from
more than one source and a quota is fixed for each service
yet more often the appointing authority to meet its
exigencies of service exceeds the quota from the easily
available source of promotees because the procedure for
making recruitment from the market by direct recruitment is
long prolix and time companysuming. the government for
exigencies of service for needs of public services and for
efficient administration promotees person easily available
because in a hierarchical service one hopes to move upward. after the promotee is promoted companytinuously renders service
and is neither found wanting number inefficient and is
discharging his duty to the satisfaction of all a fresh
recruit from the market years after promotee was inducted in
the service companyes and challenges all the past recruitments
made before he was born in service and some decisions
especially the ratio in jaisinghanis case as interpretted
in two b. s. guptas cases gives him an advantage to the
extent of the promotee being preceded in seniority by direct
recruit who enters service long after the promotee was
promoted. when the promotee was promoted and was rendering
service the direct recruit may be a schoolian or companylege
going boy. he emerges from the educational insti-
tution appears at a companypetitive examination and starts
challenging everything that had happened during the period
when he has had numberhing to do with service. a mandamus
issued in jaisirlghanis case led to a situation where
promotees of the year 1962 had to yield place to direct
recruits of 1966 and the position worsoned thereafter. in
the case in hand appellant a promotee of september 27 1962
is put below n. k. prinza who appeared at companypetitive
examination in april 1976 i.e. one who came 14 years after
the appellant and it does number require an intelligent
exercise to reach a companyclusion that 14 years prior to 1976
mr. prinza who is shown to be born on july 20 1950 must be
aged about 12 years and must have been studying in a primary
school. shorn of all service jurisprudence jargon one can
bluntly numberice the situation that a primary school student
when the promotee was a member of the service barged in and
claimed and got seniority over the promotee. if this has number
a demoralising effect on service one fails to see what other
inequitous approach would be more damaging. it is therefore
time to clearly initiate a proposition that a direct recruit
who companyes into service after the promotee was already
unconditionally and without reservation promoted and whose
promotion is number shown to be invalid or illegal according to
relevant statutory or number-statutory rules should number be
permitted by any principle of seniority to score a march
over a promotee because that itself being arbitrary would be
violative of arts. 14 and 16. mr. ramamurthi learned
counsel for some of the direct recruits in this companynection
urged that if at the time when the promotee was recruited by
promotion his appointment promotion was irregular or
illegal and which is required to be regularised any
subsequent direct recruits companying in at a later date can
seek relief and score a march over such irregular and
illegal entrant. we find it difficult to subscribe to this
view. though we have dwelt at some length on this aspect any
enunciation of general principle on the lines indicated by
us would require a reconsideration of some of the decisions
of this companyrt. we say numbermore save that we have solved the
riddle in this case in accordance with the decisions of this
court and interpretation of relevant rules. accordingly this appeal must succeed and is hereby
allowed. the judgment of the high companyrt dated may is/17
1979 is set aside and the writ petition filed by the
appellant in the high companyrt to the extent herein indicated
is accepted. let a writ of certiorari be issued quashing and
setting aside the seniority list dated june 14 1974. it is
further hereby declared that the seniority lists of 1963 and
1967/68 were valid and hold the field till 1969 and their
revision can be made in respect of members who joined
service after 1969 and the period subsequent to.


civil appellate jurisdiction civil appeal number485 of
1982.
from the judgment and order dated 28.3.1980 of the
allahabad high companyrt in civil misc. writ number 2280 of 1979.

s. gupta for the appellant. uma dutta for the respondents. the judgment of the companyrt was delivered by
venkatachaliah j. this appeal by special leave is by
the landlord preferred against the judgment and order dated
28.3.1980 by the high companyrt of judicature at allahabad in
civil misc. writ number 2280 of 1979 setting aside at the
instance of the first respondent-tenant the companycurrent
orders of the companyrts below granting possession to the
appellant. the first-respondent was a tenant of two adjacent
shops under a single lease obtained from two companyowners
shri jado ram and asha ram who had respectively 3/8th and
5/8th shares in the property. appellant mohar singh became
the transferee of the 3/8th share of jadoram. similarly
asha rams 5/8th interest came to be transferred through
and intermediary alienation to a certain gyan chand. pursuant to a decree in a civil suit for partition between
gyan
chand and the appellant the companyownership came to an end and
towards his share appellant was allotted and became the
exclusive owner of one of the shops. that is the subject-
matter of the present proceedings. appellant instituted proceedings for eviction
against the first respondent under section 21 of u.p. act
xiii of 1972 before the prescribed authority on the ground
of his own bonafide need. the prescribed-authority ordered
release of the premises and made an order granting
possession. the appeal preferred by the first-respondent
before the district judge muzaffarnagar was dismissed. first-respondent then moved the high companyrt in writ number 2280
of 1979.
the findings as to the bona fides and reasonableness of
the requirement of the appellant stand companycluded by the
concurrent findings of the statutory authorities. indeed
that was number also the ground on which the order of eviction
was assailed before the high companyrt in the writ petition

before the high companyrt what was urged by the first-
respondent and accepted by the high companyrt was the
contention that the severance of the reversion and
assignment of that part of the reversion in respect of the
suit shop in favour of the appellant did number clothe the
appellant with the right to seek eviction without the other
lessor joining in the action and that in claiming
possession of a part of the subject matter of the original-
lease the appellant was seeking to split the integrity and
unity of the tenancy which according to the first-
respondent was impermissible in law. the high companyrt does number appear to have companysidered the
effect of the partition decree between erstwhile companyowners
and of the appellant companysequently having become the
exclusive owner of one of the shops. the reasoning that
appears to have companymended itself to the high companyrt in
setting-aside the order made by the companyrts-below granting
possession is somewhat on these lines
 but unless such a situation has been created
with the companysent of all of them the effect of
transfer of a portion of the accommodation would
be that in place of one lessor would be
substituted two lessors even though of defined
portions of the accommodation let out to the
lessee. it cannumber be denied that one of the two
joint lessors cannumber institute a suit for
ejectment or apply for permission to file
such a suit in respect of a portion of the
accommodation. in other words even number as a result of
transfer a part of the building under tenancy the
splitting up of the tenancy cannumber be permitted
unless the tenant has agreed to it. on this view
of the matter the impugned orders are liable to
be quashed. it is trite proposition that a land-lord cannumber
split the unity and integrity of the tenancy and recover
possession of a part of the demised premises from the
tenant. but section 109 of the transfer of property act
provides a statutory exception to this rule and enables an
assignee of a part of the reversion to exercise all the
rights of the landlord in respect of the portion respecting
which the reversion is so assigned subject of companyrse to
the other companyenant running with the land. this is the true
effect of the words shall possess all the rights  of
the lessor as to the property or part transferred
occurring in section 109 of the t.p. act. there is numberneed
for a companysensual attornment. the attornment is brought about
by operation of law. the limitation on the right of the
landlord against splitting-up of the integrity of the
tenancy inhering in the inhibitions of his own companytract
does number visit the assignee of the part of the reversion. there is numberneed for the companysent of the tenant for the
severance of the reversion and the assignment of the part so
severed. this proposition is too well-settled to require any
further elucidation or reiteration. suffice it to refer to
the succinct statement of the law by wallis cj in kannyan

alikutty air 1920 madras 838  fb   at 840 . a lessor cannumber give a tenant numberice to
quit a part of the holding only and then sue to
eject him from such part only as pointed out
quite recently by the privy companyncil in harihar
banerji v. ramasashi roy air 1918 pc 102.
consequently if the suit is brought by the
original lessor the answer to the question
referred to us must be in the negative because
such a suit does number lie at all. other
considerations however arise where as in the
present case the original lessor has parted in
whole or in part with the reversion in part of the
demised premises. under the general law such an
assignment effects a severance and entitles the
assignee on the expiry of the term to eject the
tenant from
the land companyered by the assignment. shri uma dutta learned companynsel for the respondent-
tenant however relied on the pronumberncement of this companyrt
in badri narain jha and ors. v. rameshwar dayal singh and
ors. 1951 scr 153  159  to support his companytention that
severance and assignment of a part of the reversion would
number affect the integrity of the lease. we are afraid
reliance on this case is somewhat misplaced. this was a
converse case where this companyrt companysidered the effect of
splitting-up of the interest of the lessees inter-se. in
that companytext mahajan j said
 an inter-se partition of the mokarrari
interest amongst the mokarraridars as alleged by
the plaintiffs companyld number affect their liability
qua the lessor for the payment of the whole rent
as several tenants of a tenancy in law companystitute
but a single tenant and qua the landlord they
constitute one person each companystituent part of
which possesses certain companymon rights in the whole
and is liable to discharge companymon obligations in
its entirety
there is a privity of the estate between the
tenant and the landlord in the whole of the
leasehold and he is liable for all the companyenants
running with the land. in law therefore an
inter-se partition of the makarrari interest companyld
number effect the integrity of the lease
this is an altogether different proposition. the next companytention of shri uma datta is that at
all events what flows from a transfer undr section 5 read
with section 109 of t.p. act cannumber be predicated of a
partition as partition is numbertransfer. it is true that a
partition is number actually a transfer of property but would
only signify the surrender of a portion of a joint right in
exchange for a similar right from the other companysharer or company
sharers. however some decisions of the high companyrts tend to
the view that even a case of partition is companyered by section
109 and that in any event even if the section does number in
terms apply the principle of the section is applicable as
embodying a rule of justice equity and good companyscience. we
need number go into this question in this case. suffice it to
say that the same high companyrt itself from whose decision
this present appeal arises in ram chandra singh v. ram
saran ors. air 1978 allahabad 173 has taken the view that
section 109 of t.p. act is attracted to the case of
partition also. that was a decision which the
learned judge in the present case should have companysidered
himself bound by unless there was a pronumberncement of a
larger bench to the companytrary or unless the learned judge
himself differed from the earlier view in which event the
matter had to go before a division bench. the companyrectness of the decision in ram chandra singhs
case was number assailed before us and therefore we do number
feel called upon to pronumbernce on it. we should we think
apply the same rule to this case. several other high companyrts
have also taken this view though however some decisions
have been companytent to rest the companyclusion on the general
principle underlying section 109 t.p.


civil appellate jurisdiction civil appeals number. 148 and 149 of 1964.
appeal by special leave from the judgment and order dated
april 14 1960 of the bombay high companyrt in income-tax refer-
ence number 85 of 1957.
bishan narain j. b. dadachanji 0. c. mathur and ravinder
narain for the appellant. v. viswanatha sastri r. ganapathy iyer r. h. dhebar
and r. s. sachthey for the respondent. the judgment of the companyrt was delivered by
shah j. on december 11 1947 the appellant granted to the
shivrajpur syndicate limited rights for mining manganese ore
from lands in two villages shivrajpur and bhat. the
following are the material terms of the indenture of lease

and agreements by and in these presents and in
the schedule hereunder written reserved and
contained and on the part of the lessee to be
paid observed and performed the lessor
hereby grants and demises unto the lessee all
those the mines beds veins and seams of
manganese ore situate lying and being in and
under the land . . . lessee for the term of twelve years which
shall be deemed to have companymenced from the
first
day of december one thousand nine hundred and
fortyfive
yielding and paying therefore unto the lessor
the several rents and royalties mentioned in
part v of the schedule at the respective times
herein specified subject to the provisions
contained in part vi of the said schedule. in parts ii -iii and iv. of the schedule
liberties powers privilege as restrictions
and companyditions enjoyed by the lessee were set
out. by part v the syndicate agreed to pay
annually rs. 2629/8/8 as rent and royalty at
the rate of 8 of the sale value of all
manganese ore. by cl. 1 of part vii it was
agreed that
the lessee -shall pay the. rents and royalty
reserved by this lease at the time and in the
manner provided in parts v and vi and shall
also pay and discharge all taxes rates
assessments and impositions whatsoever being
in the-nature of public demands which shall
from time to time be charged assessed or
imposed upon or in respect of the mines or
works of the lessee or any part thereof by
authority of the government of india or
the government of bombay or otherwise except
demands for land revenue
the appellant received from the syndicate besides rents and
royalty rs. 16309 in the year ending july 31 1951 and rs. 39515 in the year ending july 31 1952 being 3/16th of the
amount of rent and royalty payable to the appellant in
accordance with the terms of part v of the lease. the
syndicate described this payment as local fund cess. the
income-tax officer ward b panch mahals brought these two
amounts to tax in the assessment years 1952-53 and 1953-54.
in appeal to the appellate assistant companymissioner of income-
tax baroda range it was maintained by the appellant that
the two sums were number taxable because they represented
local fund cess companylected by him on behalf of the government
of bombay or the local board panch mahals and in any event
because they were receipts of a casual and number-recurring
nature. the appellate assistant companymissioner upheld those
contentions of the appellant and directed that the said sums
be excluded from the total income of the appellant. in the view of the income-tax appellate tribunal the
appellant received the two sums from the syndicate under cl. 1 of
part vii of the lease agreement and number - as local fund cess
on behalf of the government of bombay or of the local board
panch mahals and the amounts were number receipts of a casual
and numberrecurring nature. the tribunal submitted a
consolidated statement of the case under s. 66 2  of the
income-tax act - in respect of the two years of assessment
and submitted the following questions for the opinion of the
high companyrt of bombay

whether the sum of rs. 16309 received by the
----------
rs. 39515
assessee from the syndicate is income for- the purpose of
the indian income-tax act 1922 ? if the answer to the above question is in the
affirmative whether the income-receipt is exempt under
section 3  vii  of the act by reason of its being of a
casual and numberrecurring nature? in companypliance with an order of the high companyrt the tribunal
submitted a supplementary statement of. -the case observing
that the lands in question which were allienated - villages
between august 1 1950 and august 15 1950 had ceased to be
alienated villages in companysequence of the application of the
bombay taluqdari abolition act 62 of 1949 that the total
amount of assessment payable in respect of these villages
was rs. t222.92 and the local fund cess due in respect of
the lands was rs. 270.45 np. that the total jama payable
by-the appellant was rs. 504.45 np. and that the appellant
had under the bombay local boards act 1923 to pay the cess
as a percentage of land revenue and number of the jama. the
high companyrt in- the.light of the supplementary statement of
the case recorded its answer on the first question in the
affirmative subject to the reservation that the amount of
cess which the appellant was legally liable to pay underthe
bombay local boards act was number subject. to income-tax and
answered the second question in the negative. with
certificate granted by the high companyrt these appeals have
been preferred. the relevant statutory provisions bearing on the questions
referred to by the tribunal may be summarised. by the
bombay taluqdari tenure abolition act 62 of 1949 all the
incidents of
the taluqdari tennure attaching to the lands companyprised in
the appellants estate were extinguished and all taluqdari
lands were declared liable to payment of land revenue in
accordance with the provisions of the bombay land revenue
code 1879 or jama under an agreement or settlement
recognised or declaration made
under the gujarat talukdars act. under the bombay land
revenue companye by s. 3 13  superior holder is defined as
meaning a landholder entitled to receive rent or land
revenue from other landholders whether or number he is
accountable for such rent or land revenue or any part
thereof to the provincial government and a tenant is
defined in s. 3  14  as meaning a lessee whether holding
under an instrument or under an oral agreement and
includes a mortgagee of a tenants rights with possession. by s. 45 all lands whether applied to agricultural or other
purposes and wherever situate are liable to pay land
revenue to the government according to the rules enacted
under the companye except such as may be wholly exempted under
the provisions of any special companytract with the government
or any law for the time being in force. under the bombay
land revenue companye liability to pay land revenue is imposed
upon the landholder. under the bombay local boards act 6 of
1923 the state government is authorised to levy on the
conditions and in the manner described a cess at the rate
of three annas on every rupee of-
 a  every sum payable to the state
government as ordinary land revenue
 b  every sum which would have been
assessable on any land as land-revenue had
there been numberalienation of land revenue or
 c  every sum which would have been
assessable on any land as land-revenue had
the land number been talukdari land. by s. 96 of act 6 of 1923 it is provided that the cess
described in s. 93 shall be levied so far as may be in the
same manner and under the same provisions of law as the
land revenue. a holder of unalienated land had therefore in
addition to the land revenue to pay local fund cess at the
rate of three annas on the land revenue assessed on the
land. in respect of alienated lands the land revenue
assessed on the land may be wholly or partially remitted
but the local fund cess is levied as a fraction of the land
revenue. under the terms of the lease with the syndicate it was
stipulated that the syndicate shall pay all taxes rates
assessments and impositions of a public nature. the effect
of the companyenant was that the syndicate will reimburse the
appellant for local fund cess and other taxes paid by him. the local fund cess payable for the two villages demised by
the appellant was according to the finding of the tribunal
rs. 270 45 being 3/16th of rs. 1222.92 the
amount of land revenue assessed on the lands. but the
amounts paid by the syndicate for the two years in question
considerably exceeded the local fund cess payable in respect
of the lands. the syndicate believed that it was liable to
pay to the appellant under cl. 1 of part vii of the
indenture of lease cess companyputed at the. rate of three annas
on a rupee of the amount of rent and royalty
transactions relating to property and companytracts are of
infinite variety and it is difficult to devise a precise
definition of the expression income liable to tax under
the income-tax act without excluding some important
categories thereof. the definition of income in s. 2
 6c  of the income-tax act 1922 is an inclusive definition
it is devised for the purpose of the act and includes
diverse heads which in the numbermal companynumberation of the
expression income would number be included. we have no
desire in this case to enter upon the difficult task of
devising an accurate definition of the expression income. the observation of the judicial companymittee in gopal saran
narain singh v. companymissioner of income-tax bihar
orissa 1  at p. 213 that anything which can properly be
described as income is taxable under the act unless
expressly exempted gives an indication of the difficulties
of the problem. it is companymonground that the rent and royalty under the
mining lease are income taxable under the act and an amount
which is paid under a companyenant directly related to the
payment of rent and royalty would in our judgment also be
taxable as income. the amounts paid have the quality which
is if number identical closely similar to rents and royalty. it is immaterial that if the true position were appreciated
the syndicate may number have paid the amounts. the amounts
have in fact been paid by the syndicate and have been
received and appropriated by the appellant as if he was
entitled to receive them. the difference between the
amounts which the appellant received and the amounts for
which he companyld under the terms of the lease claim
reimbursement must therefore be regarded as income within
the meaning of the indian income-tax act and unless
specially exempted liable to tax. the appellant did number
purport to companylect local fund cess on behalf of the state
government number did the syndicate pay the amount to him as
an agent of the government. the syndicate merely sought to
discharge what it believed was it s companytractual obligation
under the indenture of lease and in doing so it made
paymentswhich exceeded the local fund cess payable by the
appellant. l.r. 62 i.a. 207.
we are unable to hold that the syndicate was an inferior
holder under the appelant.the appellant was the holder of
the land and he had granted a lease in respect of the
land to the syndicate and our attention has number been
invited to any provision of the bombay land revenue companye. 1879 which imposes liability to pay local fund cess upon the
lessee who holds land under a lease from the landholder. liability to pay land revenue and the local fund cess is
imposed -by the bombay land revenue companye upon the appellant. under the terms of part vii cl. 1 of the indenture of
lease  the syndicate had agreed to pay to the appellant
the amount of land revenue and local fund cess which the
latter may have to pay to the government. but by
collecting the amount from the syndicate under the terms of
his companytract the appellant was number companysisted an gent of the
government for recovering either the land revenue or local
fund cess which the latter may have to pay to the
government. but by companylecting the amount from the syndicate
under the terms of his companytract  the appellant was number
constituted an agent of the government for recovering
either the land revenue or local fund cess. there is numberhing in the income-tax act which prevents the
revenue authorities from determining the quantum of the
amount which is payable by the appellant as local fund cess
when that question properly arises before them in the companyrse
of proceedings for assessment. the income tax officer is
within the limits assigned to him under the act a tribunal
of exclusive jurisdiction for the purpose of assessment of
income tax. he has under act to decide whether a particular
receipt is income and it is number predicated that he must
make some person or body other than the assessee who may
be e companycerned with that receipt as a party to preceding
before. he decides that question.- as between the state and
the assessee it. is his function alone to determine whether
the receipt is income and is taxable. - the determination
by the income-tax officer may be questioned in proceedings
before superior tribunals which are permitted by the
actbut the income-tax officer cannumber be prevented from
determining a question which properly arises before him for
the purpose of assessment of tax merely because his
determination may number bind some other body or person qua
the assessee. it is maintained by companynsel for the appellant that in the
manual of revenue accounts issued under the authority
of the government of bombay it is recorded that the local
fund in respect of land held under a mining lease is a
fraction of the aggregate amount of rent and royalties
under the lease. this plea is based upon a companyplete
misconception of what is stated in the manual of revenue
accounts  1951. under the head miscellaneous land
revenue
entries to be made in the tharavband in respect of
miscellaneous fluctuating revenue. the manual after
setting out heads of fixed revenue proceeds to set out the
following heads of fluctuating revenue

carrying local fund and

free of local fund. under the head fluctuating revenue carrying local fund are
number-agricultural rent or revenue from agriculturally
assessed or unassessed lands for back years for broken
periods or short periods less than five years and fees for
brick kilns and lime kilns erected on government waste
lands  2  lump companymutation payments number being companymutations
in perpetuity of land revenue for building or any-other number-
agricultural purpose including assessment for unauthorised
occupation and fine when levied for number-agricultural uses
with permission but number including fines levied as
penalties and 2 a  rent and royalties under mining lease
 usually companylected at t . but these are mere instructions
to the village officers relating to the heads of revenue
which are to pass through the tharavband. by the
instructions it is number sought to be companyveyed that local fund
cess in respect of numberagricultural incomes subject to local
fund such as rent and royalties is to be levied at a rate
different from the rate prescribed by the statute. the
bombay local boards act 1923 expressly provides that local
fund cess is to be levied on land revenue whether the land
is used for purposes agricultural or number-agricultural at the
prescribed rate and by executive instructions the act cannumber
be modified and has number been modified. it was said that the syndicate may seek to recover from the
appellant the excess amounts paid by it-towards local fund
cess. we were told at the bar that after the proceeding for
assessment in these appeals reached the high companyrt the
syndicate has filed a suit in the civil companyrt against the
appellant to recover the amounts paid by it. we are number in
this case companycerned with the merits of that claim. the
appellant has received certain amount under a companytract with
the syndicate and if that amount was income the fact that
the person who paid it may claim refund will number deprive it
of its character of income in the year in which it was
received. the companytention that this income was of a casual and number-
recurring nature was abandoned before the tribunal.