civil appellate jurisdiction civil appeal number 2057 of
1979.
appeal by special leave from the judgment and order
dated 11-1-1979 of the delhi high companyrt in l.p.a. number 46/73. r. srivastava for the appellant and dr. n.c. shinghal
 in person

p. rao and miss a. subhashini for respondents 1 2.

r. aggarwal for respondent number 15.
the judgment of the companyrt was delivered by
desai j.-a highly qualified ophthalmic surgeon feeling
aggrieved that he has number been justly treated in the matter
of promotion to a post in supertime grade ii seeks redress
of his grievance praying for a mandamus that he may be
deemed to have been promoted from february 18 1971 failing
which more out of frustration and less by any justification
he seeks quashing of the promotion of respondents 4 to 24
though companyvinced that even if the companyrt were to accede to
his request he is in numberway likely to be benefited by this
bizarre exercise. first to the fact situation. the union of india has
framed central government health scheme and in
implementation thereof has set up various institutions for
medical relief and medical education. a central health
service became a necessity for effectively implementing the
scheme. with a view to companystituting the service central
health service rules 1963  1963 rules for short  were
framed and brought into operation on may 15 1963. the rules
envisaged categorisation of personnel manning the service
into five different categories to wit category a
supertime scale rs. 1600-2000 category b supertime scale
rs. 1300-1600 category c senior scale rs. 675-1300
category d junior scale rs. 425-950 and category e class
ii scale rs. 325-800. on account of various imponderables
the service companyld number be companystituted and 1963 rules were
amended by central health service  amendment  rules 1966
 1966 rules for short . initial companystitution of service
was to be on and from september 9 1966. 1966 rules
contemplated again the division of service into four
categories namely category i companyprising supertime grade i
rs. 1800-2250 supertime grade ii rs. 1300-1800 category ii
consists of specialists grade rs. 600-1300 category iii
includes general duty officers grade i rs. 450-1250 and
category iv companyprises general duty officers grade ii rs. 350-900. 1966 rules provided the method of initial
constitution of the service. rules 7a 1  and 7a 2  provided
for absorbing departmental candidates holding posts in
categories a and b under 1963 rules in posts in
supertime grade i and supertime grade ii respectively of
reorganised service under the 1966 rules. those in service
on september 9 1966 and holding post in categories c
d and e were absorbed either in the specialists grade
or general duty officers grade as the case may be. for the
purposes of companystitution and absorption of departmental
candidates on the date of initial companystitution of re-
organised service a selection companymittee was set up and
absorption was made in accordance with the recommendations
of the companymittee this process of absorption was over in
march 1967 but the companystitution of the service was deemed
to be effective from september 9 1966. there were some
promotions to supertime grade ii up to 1971 but as they are
number the subject-matter of dispute in this appeal they may be
ignumbered. there was also direct recruitment to the service
between 1966 and 1971.
between february 1971 to july 17 1978 when the
appellant came to be promoted to supertime grade ii
respondents 4 to 24 were promoted on different dates to
supertime grade ii the promotion of respondents 4 to 24 is
challenged by the appellant on diverse grounds
but the principal companytention is that their promotions are in
contravention of rule 8 of 1966 rules. rule 8 provides for
future maintenance of the service. relevant for the present
appeal is rule 8 3  which provides for recruitment to
supertime grade ii both by promotion and numberination by
direct recruitment. as the appellant claims promotion to
supertime grade ii from february 18 1971 and
simultaneously questions promotion of respondents 4 to 24 to
supertime grade ii on various dates after february 18 1971
and before july 17 1978 when he was actually promoted on
a certain interpretation of the relevant rule it may be
here extracted
xx xx xx

future maintenance of the service-after
appointments have been made to the service under rule 7
and rule 7a future vacancies shall be filled in the
following manner namely-
xx xx xx

supertime grade i-

fifty percent of the vacancies in supertime
grade ii shall be filled by promotion of

general duty officers grade i with number
less than ten years of service in that
category or

specialists grade officers with number
less than eight years of service in that
category
in the ratio of 23 on the recommendation of
a departmental promotion companymittee on the
basis of merit and seniority of the officers
concerned
provided that numberperson shall be eligible for
appointment to any such post unless he possesses
the qualifications and experience requisite for
appointment to such post. provided that where the case of an officer
appointed to any post in the grade of general duty
officer grade i or the specialists grade as the
case may be is companysidered for the purposes of
promotion to any posts in supertime grade ii under
this sub-rule the cases of all persons senior to
such officer in the grades of general duty
officer grade i or specialists grade as the
case may be shall also be companysidered
numberwithstanding that they may number have rendered 10
years or 8 years of service respectively in
those grades. to appreciate the companytention of the appellant as to how
he claims promotion to supertime grade ii on february 8
1971 it may be numbered
that effective from that date the central government
converted one post from amongst unspecified specialists
grade posts in supertime grade ii in ophthalmology
speciality at willingdon hospital and transferred dr. b.s. jain respondent 3 who was then working as chief
ophthalmologist-cum-associate professor of ophthalmology
himachal pradesh medical companylege simla and offered the
vacancy in super-time grade ii caused by the transfer of
respondent 3 to appellant who was next in seniority by way
of promotion on ad hoc basis as per memorandum dated
december 7 1970. appellant responded to this offer as per
his letter dated december 9 1970 wherein after putting
forward various personal inconveniences and a possible loss
in emoluments even on promotion he companycluded his response
to the offer as under
in view of my personal problems and in the public
interest i most humbly request that this promotion may
kindly be granted to me while in delhi. thereafter the government offered the post to dr. radha
natarajan but she declined the offer. subsequently the
government offered the post to dr. m.c. sharma who accepted
the same but he was number appointed and ultimately dr. g.c. sood was promoted to supertime grade ii post and was
appointed at simla. appellant companytends that when a post in ophthalmology at
willingdon hospital was created on february 1 1971 by
conversion of one post from amongst unspecified specialists
grade posts in supertime grade ii that post companyld only have
been filled in by promotion from amongst those holding the
post in specialists grade in ophthalmology speciality and
he being the seniormost and otherwise qualified he should
have been promoted from that date. simultaneously he
contends that filling in the post so created in supertime
grade ii at willingdon hospital by transfer of respondent 3
dr. b.s. jain was in violation of the statutory rule and
hence invalid. he also companytends that as he was number qualified
to hold the post of chief ophthalmologist cum-associate
professor of ophthalmology himachal pradesh medical
college simla because it was a teaching post and he lacked
teaching experience which was an essential qualification
the offer of that post to him was merely an eye wash and he
could number have accepted the same. it is necessary to examine
three different limbs of the submission separately. rule 5 of 1966 rules provides for authorised strength
of the service. the authorised strength of the various
categories of the service on the date of companymencement of
1966 rules shall be as specified in the first schedule. part
a of the first schedule deals with supertime
grade i and part b deals with supertime grade ii. part c
deals with specialists grade. the vertical promotional
channel is from specialists grade and general duty officers
grade i to supertime grade ii and from thereon to supertime
grade i. on the date of initial companystitution of service
there were 275 permanent and 102 temporary in all 377 posts
in specialists grade. out of this strength of posts in
specialists grade 28 posts were upgraded to supertime
grade ii 19 being classified as unspecified specialists
posts and 9 unspecified posts. to that extent the permanent
strength of posts in specialists grade was reduced by 28 so
as to leave it at 247. there is numberdispute that 19
unspecified specialists posts and 9 unspecified posts were
upgraded to supertime grade ii. the companytroversy is how these
posts were to be filled in. appellant companytends that as these
28 posts were in specialists grade and the strength of
specialists grade posts was reduced by 28 whenever any
post out of these 28 posts added to supertime grade ii is
required to be filled in it can only be filled in by
promotion from amongst those originally belonging to
specialists grade i.e. category c under 1963 rules. simultaneously he companytends that as these unspecified
specialists grade posts and unspecified posts 28 in
number can be filled in from those belonging to
specialists grade ipso facto they can only be filled in by
promotion and number either by direct numberination or by
transfer. in support of this submission reliance is also
placed on an affidavit filed on behalf of union of india in
a petition filed by dr. b.s. jain wherein it was in terms
stated that these 28 posts companyld only be filled in by
promotion and in numberother manner. the raison detre for upgrading the 28 posts from
specialists grade to supertime grade ii yet dividing them
in two separate categories each having its own numberenclature
viz. 19 posts designated as unspecified specialists grade
posts and 9 designated as unspecified posts is number difficult
to discern. unlike other professions medical profession has
developed branchwise expert specialised knumberledge referable
generally to number of parts in which human anatomy is
divisible. general medicine and general surgery are two
broad genus but under each one of them there are numerous
specialities and there is intensive study and research in
speciality for being qualified for the speciality. being an
expert in any one speciality simultaneously results in being
excluded from other specialities even though the
specialities may be species of a genus like general medicine
or general surgery. again in each speciality there will be
a post of a lecturer an assistant professor an associate
professor and a professor with a vertical movement by way of
promotion. in a number-teaching hospital there will be posts
like junior surgeon
senior surgeon head of the department and so on. in a
profession so companypartmentalised specialitywise ex hypothesi
it is difficult to provide for promotional avenue by way of
a general seniority list integrating different specialities
categorywise cadrewise or gradewise. if such a general
seniority list including persons belonging to different
specialities albeit in the same grade is drawn up for
purposes of promotion it might lead to a startling result
because the need may be of a promotional post in a
speciality and the man at top of the seniority list may number
belong to that speciality but may belong to a different
speciality and if any promotion was to be given to him to a
post in a speciality for which he is neither qualified number
eligible it would be impossible to give vertical promotions
by referring to such general seniority list. if the
promotion is to a post generally called administrative post
in a hospital a general seniority list including experts
belonging to different specialities may be helpful but when
promotions are to be given to posts in different
specialities a general seniority list is number only unhelpful
but may really impede the process of promotion. again
demands of different specialities for additional strength
may differ from hospital to hospital from area to area and
even from time to time. in order to meet such unforeseen
eventualities the rules provide for an addition to the
strength of supertime grade ii by keeping 19 posts
designated as unspecified specialists grade posts and 9
unspecified posts in a pool. whenever a demand came for
providing a higher post in supertime grade ii in any
particular speciality ordinarily where the strength of the
service is prescribed a post will have to be created which
any one familiar with bureaucratic jagornumber would
immediately realise how time companysuming it is. anticipating
such a situation and to meet with the demands of
specialities within a reasonable time it was provided that
there would be a pool of 19 unspecified specialists posts
in supertime grade ii and 9 unspecified posts also in
supertime grade ii. this would facilitate companyversion from
the pool of unspecified specialists posts of an unspecified
specialists post to a specified specialist post in a
speciality where a need has been felt. once the need is felt
and a post is companyverted from an unspecified post to a
specified post in supertime grade ii it becomes an addition
to the strength of that speciality and the post can be
filled in in accordance with the relevant rule. but it is
implicit in this arrangement that the person to be appointed
to such a post would be one who is eligible to be appointed
to that speciality and number some one who is on top of the
general seniority list in specialists grade or general duty
officers grade from which promotion is to be made. if
promotion has to be made from a general seniority list which
includes all specialists in the specialists grade the one
at the top may be a cardiologist and the post may be
converted into anesthesiology and it
does number require long persuasive argument to hold that a
cardiologist cannumber be appointed as an anaesthetic. it is
therefore crystal clear that when a post from amongst
unspecified specialists posts is companyverted to a specified
post which means specified in the speciality in which a need
has been felt from amongst those in the specialists grade
belonging to that speciality and in order of their inter se
seniority a promotion companyld be given. this position is
inescapable and it is difficult to companyprehend a position
contrary to this. in fact this situation has been expressly
recognised by this companyrt in union of india ors. v. s. b.
kohli anumberher wherein it was held that for being
appointed as a professor in a particular speciality in that
case orthopaedics the companydition that a person must have a
post-graduate degree in orthopaedics would number result in any
classification without reference to the objectives sought to
be achieved and this would number result in any discrimination
number would it be violative of article 16.
in passing a companytention of the appellant that all 28
posts which were deducted from the strength of permanent
posts in specialists grade and added to supertime grade ii
must on that account alone be filled in by promotion from
those belonging to the specialists grade only may be
examined. there is numbermerit in this companytention. if there was
any substance in this companytention there was numberreason to
provide for two different designations and divide the 28
posts in two different numberenclatures. 28 posts are made up
of 19 posts designated as unspecified specialists posts and
9 unspecified posts. undoubtedly 19 posts which were
designated as unspecified specialists post must be filled
in from amongst those belonging to the specialists grade
but that itself also shows that the remaining 9 unspecified
posts can be filled in from amongst those who may be
promoted from general duty officers grade- i because
general duty officers grade-i are also promotable to
supertime grade-ii. the numberenclature unspecified
specialists post and unspecified post provides an effective
answer and indicates that while in the case of the former
promotion must be given from specialists in respect of the
latter general duty officers grade-i would be eligible for
promotion. merely because all 28 posts were deducted from
the strength of posts in specialists grade it companyld number be
said that all 28 posts would be available for promotion to
those belonging to specialists grade only. the language
employed in rule 5 also points in this direction. there is
therefore numbersubstance in the companytention that all 28 posts
must be filled in by promotion from amongst those who belong
to specialists grade only. the last limb of the argument is that the 19
unspecified specialists posts in supertime grade ii can
only be filled in by promotion and number in any other manner
and particularly number by transfer. the provocation for this
submission is posting of dr. b. s. jain in supertime grade
ii post created at willingdon hospital in february 1971.
undoubtedly one unspecified specialists grade post was
converted and was designated as specified post in supertime
grade ii in ophthalmology speciality at willingdon hospital
in february 1971. appellant says that once an unspecified
specialists grade post was companyverted into a specified post
and that as it was assigned to ophthalmology speciality he
being the seniormost ophthalmologist and qualified for the
post that post companyld only be filled in by promotion and he
should have been promoted and the posting of dr. b. s. jain
by transfer to that post was illegal and invalid. rule 8
provides for future maintenance of the service. rule 8 3
provides for 50 of the vacancies in supertime grade ii to
be filled in by promotion of general duty officers grade i
and specialists grade officers in the ratio of 23 and the
remaining 50 of the vacancies to be filled in by direct
recruitment in the manner specified in the second schedule. number once an unspecified specialists grade post in
supertime grade ii is companyverted and made a specified post in
a speciality it is an addition to the strength of the
speciality and the filling in of such post shall be governed
by rule 8  3 . undoubtedly if it is to be filled in by
promotion that would only be from amongst those belonging
to specialists grade officers as the companyverted post was
unspecified specialists post. but to say that it can be
filled in only by promotion is to ignumbere the mandate of
statutory rule 8 3  which provides for filling in posts in
supertime grade ii by either promotion or numberination in the
ratio therein prescribed. once there is a post in supertime
grade ii which is to be filled in subsequent to the initial
constitution of the service rule 8  3  will be attracted in
all its rigour. and it should number be overlooked that rule 8
 3  provides for filling in of posts in supertime grade ii
by promotion as well as by direct recruitment in the ratio
of 11. on a true interpretation of the 1966 rules in
general and rule 8  3  in particular it companyld number be
gainsaid that whenever an unspecified specialists post is
converted into a specified post and assigned to a speciality
it can be filled in either by promotion or by direct
recruitment as the situation warrants according to the rule
and as determined by the quota rule. but it was very
strenuously companytended that the central government in
implementing the rule has understood and in fact implemented
the rule to this effect that whenever an unspecified
specialists post is companyverted as a specified post and
assigned to a speciality it can only be filled in by
promotion. reliance was placed upon an affidavit made on
behalf of the central government in a writ
petition filed by dr. b. s. jain in delhi high companyrt. in the
counter-affidavit on behalf of the central government a
stand was taken that the 19 unspecified specialists posts
were meant only for promoting category c clinical
specialists to supertime grade ii. in union of india v. bhim
singh ors. the companyrt refers to the stand taken on behalf
of the union of india in that case as under
learned companynsel for the appellant  union of
india  submits that these posts were included in
supertime grade ii number with reference to the actual
number of officers who had companypleted 8 years of service
or more on a particular date but only with a view to
providing opportunities of promotion to the former
category c officers holding clinical specialist
posts. it does appear that such a stand was taken on behalf of
the union of india but simultaneously it may be numbered that
the companyrt has number accepted the stand. and it would be too
late in the day to say that on such a stand of the union of
india if it runs companynter to the rule explicit in meaning
any argument can be founded or any relief can be claimed
unless estoppel is urged. and numbersuch estoppel is claimed in

c. sethi ors. v. union of india ors. the petitioners
urged that the view put forward on their behalf had been
admitted by the government in its affidavit filed in
connection with certain earlier proceedings of similar
nature and other admissions in parliament on behalf of the
government. negativing this companytention this companyrt held that
such admissions if any which are mere expression of
opinion limited to the companytext and number specific assurances
are number binding on the government to create and estoppel. similar view was also expressed in j. k. steel limited v. union
of india where following the earlier decision of this companyrt
in companymissioner of income tax madras v. k. srinivasan and

gopalan it was observed that the interpretation placed
by the department on various sub-sections in the
instructions issued by the department cannumber be companysidered
to be proper guide in a matter wherein the companystruction of a
statute is involved. therefore it cannumber be said that 19
unspecified specialists posts companyld only be filled in by
promotion and such an interpretation or stand would run
counter to the express provision companytained in rule 8 3
which is statutory. even if such be the stand of the central
government it will have to be negatived and was in fact
negatived in the case of dr. b. s. jain. incidentally it would be incongruous to hold that when
a post is created in a certain grade category or cadre and
it is to be filled in some one who is already in that
grade category or cadre cannumber be transferred to that post
and the post so vacated by him can be filled in in the
manner prescribed. even if there was some substance though
there is numbere in the companytention on behalf of the appellant
that whenever unspecified specialists post is companyverted
into a specified post it can only be filled in by promotion
yet when some one who is already in that grade is
transferred to the newly created post and the post vacated
by such transferred employee is offered by way of promotion
which in fact was done in this case there is any violation
of the rule. as pointed out earlier when a post is created
it is an addition to the strength of that particular
category and the additional strength has to be filled in the
manner prescribed in the rule and that numbersanctity attached
to the place where the post is created but the sanctity
attaches to the number of posts and the manner of filling
them. number dr. b. s. jain was already holding the post in
supertime grade ii at simla when a post in supertime grade
ii in ophthalmology was created at willingdon hospital from
amongst unspecified specialists posts. even if this
additional post has to be filled in by promotion as
contended by the appellant it is number open to him to urge
that the post at willingdon hospital alone must have been
filled in by promotion. dr. b. s. jain was transferred to
the post created at willingdon hospital and the post vacated
by him which was in supertime grade ii was offered to the
appellant as and by way of promotion. therefore even if the
contention of appellant is to be accepted there is no
violation of rule 8 3 . equally it is also number companyrect to
contend that dr. b. s. jain companyld number have been transferred
to the post created at willingdon hospital. transfers in
posts which are in the same grade or are companysidered
equivalent can be affected on administrative exigencies. once a new post is created and it is an increase in the
strength of the cadre in which the post is created every
one in that cadre is eligible to fill in that post and
transfer is permissible. transfer of dr. b. s. jain is
therefore beyond question. in e. p. royappa v. state of
tamil nadu anr. it is observed that the services of cadre
officers are utilised in different posts of equal status and
responsibility because of exigencies of administration and
employing the best available talent in suitable post. there
is numberhostile discrimination in transfer from one post to
other when the posts are of equal status and responsibility. therefore it is futile to urge that filling in the post
created at willingdon hospital in supertime grade ii by
transfer of dr. b. s. jain a person already promoted to
supertime grade ii was invalid
in as much as the post was number filled in by promotion or
direct recruitment but by transfer. the next companytention is that the refusal of the
appellant to accept the post at simla offered to him will
number debar him from promotion because the appellant was number
qualified for the post at simla. if an employee eligible for
promotion is offered a higher post by way of promotion his
refusal to accept the same would enable the employer the
central government in this case to fill in the post by
offering it to a junior to the government servant refusing
to accept the post and in so acting there will be no
violation of art. 16. further the government servant who
refuses to accept the promotional post offered to him for
his own reasons cannumber then be heard to companyplain that he
must be given promotional post from the date on which the
avenue for promotion opened to him. appellant being
conscious of this position tried to circumvent it by saying
that the post at simla offered to him by way of promotion in
super time grade ii was a teaching post for which he was number
qualified and therefore his refusal to accept the same
cannumber companye in his way from claiming promotion from the very
date on which he refused to accept the promotion to a post
for which he was number qualified. appellant went so far as to
suggest that the government action in offering him the post
at simla was actuated by malice in that while making a show
of offering him a promotional post it so deliberately acted
as would impel the appellant to refuse the same. says the
appellant that one post from the pool of unspecified
specialists posts was companyverted to a specified post in
ophthalmology and was sanctioned at willingdon hospital
which is number a teaching hospital and therefore the
appellant was fully qualified for being promoted to that
post. instead of acting in this straight forward manner the
government transferred dr. b. s. jain from simla to the post
newly created at willingdon hospital and purported to offer
the simla post to the appellant for which appellant was number
qualified and thus deliberately thwarted the promotional
opportunity of the appellant and that this smacks of malice. to substantiate this submission the appellant points out
that the designation of the post at simla was chief
ophthalmoligist-cum-associate professor of ophthalmology
himachal pradesh medical companylege simla. this according to
the appellate was a teaching post and the qualification
prescribed by the regulation framed by the medical companyncil
of india requires as an essential qualification a teaching
experience as reader or assistant professor in ophthalmology
for five years in a medical companylege after requisite post-
graduate qualification. it was further stated that the
appellant had numberteaching qualification though he started
teaching at the safdarjang hospital when he was recognised
as a post-graduate teacher in ophthalmology but
his teaching experience extended to barely two weeks. it was
also said that essential teaching experience prescribed by
the medical companyncil of india under its regulation is number
relaxable and that therefore appellant was number qualified
for the post of associate-professor which was offered to
him. in s.b. kohlis case  supra  this companyrt did observe
that a discretion to relax teaching experience qualification
is companyferred only on the u.p.s.c. in cases of direct
recruitment and number to the departmental promotion companymittee
in case of promotion. that being the intent of the law it is
to be given effect to. this observation is in a slightly
different companytext but one may safely proceed on the
assumption that essential teaching qualification for the
post of an associate professor prescribed by medical companyncil
of india is number relaxable. therefore it can be said with
some justification that the appellant who did number have the
requisite teaching experience was number qualified for the post
of associate professor. but this want of qualification
impelling refusal to accept promotion appears to be an
afterthought on his part. when the promotional post was
offered to him as per letter dated december 7 1970
appellant did number reply by saying that he was number qualified
for the post. in his reply dated december 9 1970 to the
offer made by the government appellant pointed out that he
was involved in some litigation with regard to his house and
that his stand for eviction would be weakened by his
transfer. he then proceeded to point out that he was
suffering from chronic bronchitis and that the climate at
simla may number suit him. he also pointed out the adverse
effect of climate on the health of his wife. he then
proceeded to point out that apart from his personal problems
he was engaged in the safdarjang hospital for teaching of
post-graduate students and therefore he requested the
government the post of chief ophthalmologist-cum-associate
professor of ophthalmology may kindly be bestowed on me at
safdarjang hospital where there is essential need for such a
post. companyld this be the stand of a person offered a
promotional post honestly believing that he was number
qualified for the same? the post offered to him was of chief
ophthalmologist-cum-associate professor. appellant believes
and number says that he was number qualified for the same if the
post was at simla but if the same post was created at delhi
with the same designation with the same responsibility for
teaching and that too at the post-graduate level he
considered himself to be fully qualified for the same and
requested the government to bestow that post on him. he then
proceeds to point out his merits and puts forth his
disinclination for being promoted to the post at simla. in
the face of his bold statement that he is prepared to be
appointed as chief ophthalmologist companytinuing to do teaching
work at the post-graduate level at the safdarjang hospital
he number wants to assert that he was number qualified for the
post. this companyvenient after
thought cannumber decry the fact that the appellant declined to
accept the post at simla number because he believed he was number
qualified for the post but because he was number inclined to
leave delhi may be for reasons which may be true and
compelling for him. this becomes explicit from a further
averment in paragraph 7 of his reply wherein he pointed out
to the central government that even though he was selected
by the u.p. government for the post of chief medical
officer gandhi memorial eye hospital aligarh on a
fabulous salary of rs. 3000/- p.m. and which offer was
transmitted to him through the government so as to enable
the government to release him and although the government
was companysidering his release on deputation for the post but
he himself declined the offer because of domestic problems. there is thus numberroom for doubt that the appellant companysiders
himself qualified for any post in delhi and was under no
circumstances willing to leave delhi and his disinclination
to accept any post at simla stemmed number from his honest
belief that he was number qualified for the post but because he
was number inclined to leave delhi. undoubtedly it may be that
under the regulation stricto sensu he may number be qualified
for the post of associate professor because he did number
possess the requisite teaching experience. but an ad hoc
arrangement companyld have been made and it was open to the
central government if the appellant had accepted the post
to move the medical companyncil of india to permit the central
government to appoint the appellant at simla. some way companyld
have been found but the door was bolted by the appellant
himself declining the offer for reasons other than his
qualification which he may have found companypelling. in this
background it is difficult to accept the submission of the
appellant that the offer made by the government was an eye
wash or a make-believe and therefore his refusal to accept
the offer of promotion would number postpone his promotion. incidentally it would be advantageous to take numbere of
the fact at this stage that the appellant was promoted to
supertime grade ii on july 17 1978 and between february
1971 when he declined to accept promotion and july 1978 when
he was in fact promoted numberone junior to him in the
speciality to which he belongs was ever promoted overriding
his claim to supertime grade ii. therefore if since his
refusal to accept promotion at simla appellant was never
superseded by any one junior to him in his speciality it is
difficult to entertain the companytention that in refusing
promotion to him when some posts were companyverted from
unspecified specialists posts into different specialities
and were filled in by those who were qualified to be
promoted in the respective speciality in which the post was
created he companyld be said to have been superseded in
violation of art. 16. and in this view of the matter numberhing
more need be examined but as certain other companytentions were
advanced
which even if accepted would number in any case benefit the
appellant it appears to us an exercise in futility but we
would rather dispose them of than gloss over them. in the high companyrt appellant canvassed twofold
contention that between 1966 and 1971 i.e. after the
initial companystitution of service and before the proposal
offering promotion to the appellant at simla was made 25
promotions were given to supertime grade ii to persons who
were ineligible for the same and secondly after february
1971 and before july 1978 when he was actually promoted to
supertime grade ii 29 promotions were given to supertime
grade ii some of whom are respondents 4 to 24 and that their
promotion was in companytravention of rule 8 3  of the rules
and therefore invalid. before this companyrt the first limb of
the argument namely invalidating promotions between 1966
and 1971 to supertime grade ii was number canvassed. it was the
second limb of the argument that was pressed into service. numbere of those who were promoted between february 1971 and
july 1978 belonged to the speciality to which appellant
belongs. each of them belonged to a different speciality and
admittedly appellant was number qualified for being promoted to
any supertime grade ii post in the speciality in which each
one of them was promoted. when this aspect became clear a
question was posed to the appellant how he would be
benefited even if his companytention were to prevail that numbere
of them was eligible for promotion to supertime grade ii
and therefore the promotion of each of them deserved to be
quashed. the answer was that there is a companymon seniority
list of persons belonging to supertime grade ii and
promotion to supertime grade i is by seniority and that
promotion of respondents 4 to 24 if quashed would push the
appellant higher up in seniority above them and would
enhance his chances of promotion to supertime grade i.
remote chances of promotion companyld hardly be said to be
condition of service which if impaired would be violative of
art. 16. even assuming that a remote chance of promotion if
adversely affected would give a cause of action it was made
clear that the appellant is retiring on superannuation in
the last quarter of this year and that even if he is
assigned a deemed date of promotion somewhere in february
1971 yet there are number of persons above him in supertime
grade ii who were promoted between 1966 and 1971 and
appellant has number even a remote chance of promotion. appellant at that stage reacted by saying that even if it be
true yet the promotions of respondents 4 to 24 ought to be
quashed because when he with respondents 4 to 24 and others
belonging to supertime grade ii attend a meeting companyvened to
discuss some administrative matter or for holding charge of
higher post temporarily vacant they claim seniority over him
and his dignity is impaired. this calls for numbercomment save
and except saying that the approach appears to be more
emotional rather than realistic. however the companytention may
be examined on merit. promotion of respondents 4 to 24 was questioned on the
ground that each of them was ineligible for promotion to
supertime grade ii on the date on which each of them was
promoted in view of the provision companytained in rule 8 3 . rule 8 3  has been extracted herein before. the companytention
is that since the initial companystitution of service on
september 9 1966 any future promotion to supertime grade
ii from departmental candidates companyld be from amongst those
who qualify for the same as provided for in rule 8 3 . apart
from academic qualification the experience qualification
prescribed is that the general duty officers grade i and
specialists grade officers should have put in 10 years and
8 years of service respectively in that category. appellant
contents that service in the category means service in that
category which was companystituted under the 1966 amendment
rules. rule 2 c  defines category to mean a group of posts
specified in companyumn 2 of the table under rule 4. rule 4
provides for classification categories and scales of pay. it provides that there shall be four categories in the
service and each category shall companysist of the grade
specified in companyumn 2 of the table appended to the rule. the
four categories are first category which includes supertime
grade i and supertime grade ii posts. category two is
specialists grade posts category three companyprises general
duty officers grade i and category four includes general
duty officers grade ii. it was companytended that the service to
be rendered for the qualifying period must be in the
category and therefore a general duty officer grade i can
only become eligible for promotion after he renders 10 years
of service in that category which came into existence on
september 91966 and this would apply mutatis mutandis to
the specialists grade officers who must put in 8 years of
service in the category which came into existence on
september 9 1966. if this companytention were to prevail apart
from anything else appellant himself would number have been
qualified for promotion to supertime grade ii in february
1971 from which date he claims as being eligible for
promotion to supertime grade ii because he had number put in 8
years of service in the category of specialists grade
officers formed on september 9 1966. that apart it is
impossible to overlook the history of the service. the rules
were initially framed in 1963. at that time the service was
sought to be classified in 5 categories styled category a
to category e. expression category in 1963 rules was
defined to mean a group of posts carrying the same scale of
pay. anumberher salient feature of which numberice should be taken
is that save and except upward revision in scale category i
under the 1966 amendment rules includes cate-
gories a and b under 1963 rules. category c has been
designated as specialists grade i.e. category ii under the
1966 rules. category d is equated with general duty
officers grade i styled category iii and category e is
equated with general duty officers grade ii i.e. category
iv. expression service in the category has to be
understood in this historical background. it is difficult to
entertain the companytention that the past service of
specialists category c officers got wholly wiped out
merely because the numberenclature of category c specialists
officers was changed to specialists grade officers
replacing the expression category c by category ii. and
that would apply mutatis mutandis to general duty officers
grade i and grade ii. the change in the definition of the
expression category appears to be instructive in that by
the change service in the post is emphasised and the
question of the grade of pay is relegated into background. and this change appears to be with a purpose inasmuch as
when certain qualifying service is prescribed for being
eligible for promotion in a category the emphasis is on
service rendered in a post irrespective of the grade. a
specialists grade officer belonging to category ii was a
specialists grade officer in category c. he was even then
eligible for promotion to supertime grade ii. was it ever
intended that a specialists grade officer belonging to
category c under 1963 rules who had put in more than 8
years of service but who was number promoted prior to september
9 1966 the date of initial companystitution of service or on
the date of initial companystitution of service would be
ineligible for promotion for a period of 8 years simply
because the designation of the category changed? was it
intended that there should be a companyplete hiatus for a period
of 8 years in promoting specialists grade officers to
supertime grade ii and for a period of 10 years in case of
general duty officers grade i. there is numberwarrant for such
an inference from the rules. such an intention cannumber be
attributed to the framers of the rules number is it possible to
accept the submission of the appellant that the posts companyld
have been filled in by direct recruitment because where
candidates eligible for promotion were number available it was
open to resort to direct recruitment as provided in the
rules. it is a well recognised canumber of companystruction that
the companystruction which makes the rules otiose or unworkable
should be avoided where two companystructions are possible and
the companyrt should lean in favour of the companystruction which
would make the rule workable and further the purpose for
which the rule is intended. while prescribing experience
qualification in 1966 amendment rules the framers of the
rules companyld number have intended to ignumbere wholly the past
service. a specialist who was in category c was included
in category ii with the designation specialists grade
officer. similarly general duty officer grade i in category
d acquired the same numberenclature general duty officer
grade i in cate-
gory iii. there was an upward revision of pay scales of both
the categories. should the change in designation be
understood to mean that the past service rendered as
specialist or as general duty officer is wholly wiped out
for any future promotion ? even after change of designation
it is number suggested that the duties underwent any change. same duty was performed a day prior to september 9 1966
and the day thereafter by both the categories in the
respective posts. in this background the high companyrt was
right in holding that the word category used in rule
8 3  a  has to be understood to mean the post included in
that category and companysequently service in that category
would mean service in a post included in that category. the appellant companytended that this companystruction would
run companynter to the posting of former categories d and e
officers on probation on september 9 1966 in specialists
grade and general duty officers grade i. in this companynection
it must be recalled that on initial companystitution of service
some persons who were in the category of general duty
officers were absorbed and appointed in specialists grade
and vice versa was true of some persons. it is equally true
that officers belonging to categories d and e were
considered in a category lower to category c. it is
equally possible therefore that on september 9 1966 i.e. the date of initial companystitution of service some of the
officers belonging to categories d and e who were
absorbed in categories ii and iii respectively may have been
put on probation but for qualifying service for upward
promotion service rendered as probationer is number to be
ignumbered. viewed from either angle it is crystal clear that
service rendered in equivalent post prior to the date of
initial companystitution of service companyld be taken into account
in calculating qualifying service for next promotion. this
was the stand taken by the government in the affidavit filed
in civil writ number 1155/71 filed by dr. chandra mohan in the
high companyrt of delhi and that appears to be companysistent with
the companystruction of rule 8 3 . the companytention therefore
that executive instruction cannumber run companynter to the
statutory rule must be rejected as untenable in the facts of
this case. it was next companytended that the government was guilty of
legal malice in that in february 1971 on a need being felt
a post in supertime grade ii in ophthalmology speciality was
sanctioned at willingdon hospital and filled in by transfer
of dr. b.s. jain overlooking and ignumbering the rightful claim
of appellant and on transfer of dr. b.s. jain on march 7
1972 to safdarjang hospital the post was also transferred
to safdarjang hospital. in this companynection appellant also
pointed out that there is material on record to show that
the superintendent of willingdon hospital felt an acute need
for a post in super-
time grade ii in ophthalmology speciality and yet it was number
created while on the other hand in order to accommodate some
favourites like respondents 4 5891213 and 15 some
posts in different specialities where they companyld be
accommodated were created without the need for the same. there is evidence to the effect that appellant had sent a
proposal duly recommended by medical superintendent of
safdarjang hospital to the authorities for creating a
supertime grade ii post in eye department in may 1971 as per
letter dated may 3 1971. there is also material to show
that some ad hoc appointments were made in supertime grade
ii. it is however number possible to strike down those
appointments on the ground that some posts were created in
supertime grade ii though number needed wherein some of the
respondents were promoted or that there was numberjustification
for creation of posts or for making ad hoc appointments. it
should be distinctly understood that number a single post was
created in ophthalmology speciality to which appellant companyld
have been appointed. the need for the post of the
requirements of the hospital or the need for an ad hoc or
additional appointment is a matter which the government is
competent to decide and in the absence of requisite material
the companyrt cannumber interpose its own decision on the necessity
of creation or abolition of posts. whether a particular post
is necessary is a matter depending upon the exigencies of
the situation and administrative necessity. the government
is a better judge of the interests of the general public for
whose service the hospitals are set up. and whether a
hospital catering to the needs of general public providing
medical relief in different specialities has need for a
particular post in a particular speciality would be better
judged by the government running the hospital. if government
is a better judge it must have the power to create or
abolish the posts depending upon the needs of the hospital
and the requirements of general public. creation and
abolition of posts is a matter of government policy and
every sovereign government has this power in the interest
and necessity of internal administration. the creation or
abolition of post is dictated by policy decision exigencies
of circumstances and administrative necessity. the creation
the companytinuance and the abolition of post are all decided by
the government in the interest of administration and general
public  see m. ramanatha pillai v. the state of kerala and
anr . the companyrt would be the least companypetent in the face of
scanty material to decide whether the government acted
honestly in creating a post or refusing to create a post or
its decision suffers from malafide legal or factual. in
this background it is difficult to entertain the companytention
of the appellant that posts were created to accommodate some
specific individuals ignumbering the requirements of the
hospital or the interests of the general public at large. it was next companytended that respondent 9 dr. k.p. mathur and respondent 23 dr. a. r. majumdar should have
been companysidered ineligible for promotion because both of
them were adversely companymented upon by the madras high companyrt
as being negligent in discharge of duties and the government
had to pay a sum of rs. 10000/- as companypensation by way of
damages for their negligence. he sought inspection of some
files to substantiate this allegation. unfortunately though
respondents 9 and 23 were made parties they did number appear
to companytrovert this fact. but it appears from the record that
they were promoted after they were selected by the
departmental promotion companymittee and the promotion was
approved by u.p.s.c. appellant companytended that this averment
on his part has remained uncontroverted and it must be taken
as having been admitted and proved. it may be mentioned that
in the petition filed by the appellant in the delhi high
court this allegation was number specifically averred. in a
subsequent affidavit filed by him this allegation was put
forth. if respondents 9 and 23 had number appeared in the high
court the appellant should have shown that this subsequent
affidavit was served upon them and in that event alone some
adverse inference may be drawn against them. it may be that
the government may number be interested in either denying or
admitting this averment which directly and adversely affects
respondents 9 and 23. however in view of the fact that they
were selected by the departmental promotion companymittee and
the promotion was approved by the u.p.s.c. it is difficult
to entertain the companytention at the hand of the appellant who
is number in any way going to be benefited by the invalidation
of their promotion. it was incidentally urged that promotions given to
respondents 91213 and 15 must be set aside because they
belonged to former category d and were given promotions
against 19 unspecified posts in companytravention of the
affidavit of the government. as stated earlier there were
some specialists in category d also. at the time of
initial companystitution of service those who qualified for
being appointed general duty officers from category d were
absorbed in category iii and those who were eligible for
being absorbed in specialists grade were so absorbed. after
absorption they belonged to the respective category. thereafter on companyversion of posts from the pool of 19
unspecified specialists posts they were promoted as being
found qualified for the same and for the post to which each
one of them was promoted appellant was number qualified and
therefore the companytention that the promotion of the
aforementioned four respondents should be set aside has no
merit in it. having examined the challenge to the promotion of
respondents 4 to 24 on merits it must be made clear that
the appellant is least
qualified to question their promotions. each one of them was
promoted to a post in supertime grade ii in a speciality
other than ophthalmology and appellant admittedly was number
qualified for any of these posts. even if their promotions
are struck down appellant will number get any post vacated by
them. incidentally high companyrt also upheld their promotions
observing that by the time the petition was heard each one
of them had requisite service qualification and therefore
the promotions companyld number be struck down. once the challenge
on merits fails the second string to the bow need number be
examined. having said all this appellant is least companypetent
to challenge their promotions. in a slightly companyparable
situation this companyrt in chitra ghosh and anr. v. union of
india and ors. observed as under
the other question which was canvassed before the high
court and which has been pressed before us relates
to the merits of the numberinations made to the
reserved seats. it seems to us that the appellants
do number have any right to challenge the numberinations
made by the central government. they do number
compete for the reserved seats and have numberlocus
standi in the matter of numberination to such seats. the assumption that if numberinations to reserved
seats are number in accordance with the rules all
such seats as have number been properly filled up
would be thrown open to the general pool is wholly
unfounded. it was last urged that the high companyrt has set aside the
promotion of respondent 18 dr. p. c. sen who was promoted
in 1971 and therefore there was an opening in supertime
grade ii in september 1971 and appellant should be
considered eligible for promotion to the post from that date
and that this companyrt should companysider appellants eligibility
for promotion from september 1971 and if found eligible
should grant the same. dr. p.c. sen was general duty officer
grade i and he was posted as director of health services
manipur. appellant companytends that he was in specialists
grade and was senior to dr. sen and was number unqualified for
the post of director of health services manipur but the
post was number offered to him and therefore he must be
considered eligible for promotion from the date on which dr.

c. sen was promoted. the high companyrt in l.p.a. 46/74 filed
by the appellant has set aside the promotion of dr. p.c. sen
as also of dr. jasbir kaur but the high companyrt has number
thought fit to direct the government by a mandamus to
consider eligibility of the appellant for the post of
director of health services manipur. there is numbermaterial
before us whether the appellant was qualified for the post. if he was eligible it would be for the government to
consider how it should deal with the post. we
are however surprised that the appellant who was number
prepared to go to simla in february 1971 would have been
willing to go to manipur in september 1971. in our opinion
it would be giving him an unfair advantage number by giving a
technical benefit of a situation whereby promotion of dr.
sen has been invalidated by the high companyrt. neither dr. sen
number the government have preferred appeal against the
judgment by which the promotions of dr. p.c. sen and dr.
jasbir kaur were invalidated by the high companyrt. but the
matter must remain at that stage and there is no
justification for giving a direction that the appellant
should be companysidered for the post which is deemed to have
fallen vacant in september 1971 on the invalidation of
promotion of dr. p.c. sen. in this companynection it may be
pointed out that some time after the hearing was over in
this companyrt learned companynsel for the appellant has circulated
a letter that the high companyrt has set aside the promotion of
respondent 7 dr. ramesh prasad singh as also of respondent
21 dr. brij gopal misra. it is undoubtedly true that the
learned single judge who heard the petition initially had
set aside the promotion of dr. brij gopal misra to the post
of regional deputy director n.m.e.p. hyderabad. but
neither from the judgment of the learned single judge number
from the judgment of the division bench it is possible to
ascertain that the promotion of dr. ramesh prasad singh has
been invalidated. numberdirection in that behalf can be given. before we companyclude it may be pointed out that on the
conclusion of hearing of this appeal in order to heal the
wound caused by impaired dignity of the appellant as herein
before mentioned a suggestion was made to the government to
see if the present appellant companyld be accommodated in some
way where he may number feel the humiliation which he claims he
suffers. mr. p. parameswara rao learned companynsel for the
government promised to discuss the matter with the
government and ultimately on march 7. 1980 the central
government offered the post of director and head of the
department for a programme companycerned with vision impairment
and amelioration thereof.


civil appellate jurisdiction civil appeal number 1059 of 1963.
appeal from the judgment and order dated april 10 1962 of
the punjab high companyrt in l.p. appeal number 312 of 1959.

sen and r. n. sachthey for the appellant. b. agarwala j. b. dadachanji o. c. mathur and
ravinder narain for the respondent. the judgment of the companyrt was delivered by
gajendragadkar cj. this appeal raises a short question as
to the companytent of the entry electrical mechanical or
general engineering products used in schedule 1 to the
employees provident fund act 1952  number 19 of 1952
 hereinafter called the act . the respondent firm shibu
metal works runs a factory which manufactures brass
utensils. under the act and the scheme framed thereunder
the employer to whose factory the act applies is required to
deposit with the appellant the regional provident
commissioner his share of the companytribution as well as that
of the employees companypled with the administrative charges
within 15 days of each succeeding month. it appears that
the respondent had been making such deposits in the past. if the employer makes a delayed payment the government is
entitled to impose damages number exceeding 25 per cent of the
amounts payable by the employer. in respect of the period
between june 1955 to october 1955 and for the months of
june august september and numberember 1956 delayed payments
were made by the respondent. thereupon the appellant
called upon the respondent to pay the damages. the
respondent in turn made explanations and companytended that
there was really numberdelay in the making of payments in
regard to some months and in respect of the others where
delay was admitted it claimed that the same should be
condoned. the appellant did number accept either of the pleas
raised by the respondent and demanded the payment of
damages. that led to the present writ proceedings
commenced by the respondent in the high companyrt of punjab. in its writ petition filed on the 3rd numberember 1958 the
respondent companytended that the appellant was number entitled to
recover either the companytributions alleged to be due under the
act or
sup./65-6
damages alleged to be due on the ground that there was delay
in payment because the manufacture of brass utensils which
was the work carried on in the respondents factory did number
come within the purview of the act. on this ground the
respondent urged that the demand made by the appellant was
illegal ultra vires and without jurisdiction. the writ
petition asked for the issue of a writ of mandamus
restraining the appellant from recovering any amount from
the respondent under the act. the appellant resisted the writ petition and urged that the
entry electrical mechanical or general engineering
products included manufacture of brass utensils and so
the respondents factory fell within the purview of the act. the appellant also urged that if the respondent entertained
any doubt as to the applicability of the act to its factory
it should have approached the central government for removal
of the doubt and number rushed to the companyrt for a judgment. the learned single judge who heard the writ petition held
that the manufacture of brass utensils fell within the
provisions of the relevant entry in sch. 1 because in his
opinion the said utensils were in substance drums and
containers. he therefore held that the appellant was
entitled to demand from the respondent the deposit of the
contributions as prescribed by the act. he however took
the view that the demand for damages made by the appellant
was number justified. on these findings the writ petition was
partly allowed in that a writ was issued against the
appellant restraining him from making a demand for the
payment of damages. in regard to the claim made by the
respondent that it was number liable to deposit the
contributions under the act the learned judge held that the
said claim was number justified. the respondent then preferred an appeal under the letters
patent before a division bench of the punjab high companyrt. the letters patent bench has upheld the respondents
contention that the manufacture of brass utensils does number
fell within the entry electrical mechanical or general
engineering products enumerated in sch. 1 to the act. in
the result the respondents appeal was allowed and a writ
was issued against the appellant in terms of the prayer made
by the respondent in its writ petition. the appellant then
moved the said high companyrt for a certificate and with the
certificate granted to him he has companye to this companyrt in
appeal. that is how the only question which arises for our
decision is what is the true companytent of the entry
electrical mechanical or general engineering products
included in sch. 1 of the act? before dealing with this point it would be relevant to
refer briefly to the broad features of the scheme prescribed
by the act and its purpose. this act was passed in order
to provide for the institution of provident funds for
employees in factories and other establishments. section 1
sub-section  3  originally provided that subject to the
provisions companytained in s. 16 the act would apply  a  to
every establishment which is a factory engaged in any
industry specified in sch. 1 and in which 50 or more
persons are employed and  b  to any other establishment
employing 50 or more persons or class of such establishments
which the central government may by numberification in the
official gazette specify in that behalf. mere is a
proviso to this subsection which it is unnecessary to set
out. later in 1960 the requirement that 50 workmen should
be employed has been modified and number the employment of 20
workmen is enumbergh to attract the application of the act. section 2 g  defines a factory a- any premises
including the precincts thereof in any part of which a
manufacturing process is being carried on or is ordinarily
so carried on whether with the aid of power or without the
aid of power. this shows that if the test prescribed by s.
1 3  is satisfied and the undertaking is shown to be engaged
in a manufacturing process the act applies. it makes no
difference to the applicability of the act that in a given
factory the manufacturing process is carried on without the
aid of power. it is the manufacturing process which is the
decisive factor. section  1  defines industry as meaning
any industry specified in sch. 1 and includes any industry
added to the schedule by numberification under s. 4. this
definition shows how entries in sch. 1 assume significance. whenever a question arises as to whether any industry is
governed by the act the answer is to be found by looking at
sch. 1. it is also clear that additions can be made to sch. 1 from time to time by numberification by the central govern-
ment. section 4 specifically companyfers this power on the
central government. it provides that the central government
may add any industry to sch. 1 and it lays down that after
the numberification is issued by the central government in that
behalf the industry so added shall be deemed to be an
industry specified in sch. 1 for the purposes of the act. section 4 2  provides a safeguard by requiring that
numberifications issued under sub-section  1  shall be laid
before parliament as soon as may be after they are issued. section 5 is the key section of the act and it provides for
the institution of employees provident fund schemes. it is
number necessary for our purpose to refer to the details of
these schemes. it would thus be seen that the basic purpose
of the act is to
require that appropriate provision should be made by way of
provident fund for the benefit of the employees engaged in
establishments to which the act applies. rules made for the
institution of the funds provide for companytribution both by
the employees and the employers and there can be little
doubt that the purpose intended to be achieved by the act is
a very beneficent purpose in that it assures to the
employees companycerned the payment of specified amounts of
provident fund in due time. schedule 1 which plays a decisive role in the determination
of the question as to whether an industry falls under the
provisions of the act originally companytained six entries. it
provided that any industry engaged in the manufacture or
production of the six items mentioned therein shall be an
industry for the purpose of the act. the words or
production were deleted in 1953 and number the entry refers
to any industry engaged in the manufacture of the items
mentioned in sch. 1. amongst the items thus inserted was
electrical mechanical or general engineering products. just as the requirement as to the number of workmen whose
employment would bring the establishment within the scope of
the act has been liberalised and 50 has been brought down to
20 so the items listed in sch. 1 have also been expanded
and several additions have been made in that behalf. the
object of the act clearly was to proceed to make provision
for the provident fund for the benefit of industrial
employees in a cautious and pragmatic manner and that
explains how and why the central government has slowly and
gradually but progressively been expanding the scope of the
applicability of the act to different branches of industry. the process of making additions to sch. 1 has been
proceeding apace and one has merely to look at the items
which have been listed in sch. 1 by several additions up to
the 15th of may 1964 to realise how the scope of sch. 1
has been companysiderably expanded. the question as to what exactly is the companytent of the entry
with which we are companycerned has been companysidered by different
high companyrts from time to time and we would very briefly
indicate what the effect of these decisions is in order to
illustrate how the approach adopted by the companyrts in
interpreting this entry has number been uniform. in regional
provident companymissioner u.p. kanpur v. m s. great eastern
electroplator limited 1  a division bench of the allahabad
high companyrt held that an electric torch case is receptacle in
which the torch batteries are kept and it is therefore a
container within the meaning of item  24  of the

a.i.r. 1959 all 133.
explanation to sch. 1 and is or must be deemed to be an
electrical mechanical or general engineering product. we
ought to add that in 1953 an explanation has been added to
sch. 1 for the purpose of indicating what items would fall
under the entry electrical mechanical or general
engineering products. amongst the items listed under the
explanation item  24  is drums and companytainers. the
division bench of the allahabad high companyrt reversed the view
taken by the learned single judge of the said high companyrt
and came to the companyclusion that an electric torch case is a
container within the meaning of item  24  in the explanation
to which we have just referred. this decision of the divi-
sion bench was brought to this companyrt in appeal  number 580 of
1960 decided on 18th december 1962  and this companyrt took
the view that the companyclusion reached by the division bench
that an electric torch case is a companytainer within the
meaning of item  24  of the explanation to sch. 1 was
right. in the nagpur glass works limited v. regional provident fund
commissioner  1  the bombay high companyrt has held that
burners or metal lamps were products which fell within the
schedule under the entry electrical mechanical or general
engineering products. in haji nadir ali khan and others v. the union of india and
others 2  falshaw j. as he then was took the view that
musical instruments whether made of metal or otherwise
though number mentioned specifically in sch. 1 fell within the
scope of the expression electrical mechanical or general
engineering products. in hindustan electric company limited v.
regional provident fund companymissioner punjab anr.  3
grover j. of the punjab high companyrt similarly held that
stoves would fall within the expression in question. in madras in t. r. raghava iyengar and company v. the regional
provident fund companymissioner madras  4  jagadisan j. has
taken the view that the companyversion of metal sheets and
circles into vessels results in products of metal rolling
and re-rolling within the meaning of the schedule to the
act and so an industry for the purpose of manufacturing
vessels and utensils out of brass and companyper sheets and
circles is companyered by the act. in the regional provident fund companymissioner bombay v. shree
krishna metal manufacturing company bhandara and oudh sugar
mills limited 1  one of the points which arose for the
decision

i.l.r. 1958 bom. 444.  2  a.i.r. 1958 pun. 177.

a.i.r. 1959 pun. 27.  4  a.i.r. 1963 mad. 238.  5  1962 supp. 3 s.c.r. 815.
of this companyrt was whether the manufacture of metal circular
sheets fell within sch. 1 and it appears that it was
conceded by both the parties that the said work would fall
within sch. 1 of the act and so the company carrying on the
said work was a factory engaged in the industry which
attracted the provisions of the act. we have referred to
these decisions only to illustrate how in dealing with
different products the companyrts have tried to interpret the
entry in question it appears that in dealing with the
products with which they were companycerned in each case they
did number adopt a uniform approach and the reasons given and
the tests applied by them are number the same or similar. it
is hardly necessary to add that we propose to express no
opinion on the merits of the decisions to which we have just
referred. reverting then to the question of companystruing the relevant
entry in sch. 1 it is necessary to bear in mind that this
entry occurs in the act which is intended to serve a
beneficent purpose. the object which the act purports to
achieve is to require that appropriate provision should be
made for the employees employed in the establishments to
which the act applies and that means that in companystruing the
material provisions of such an act if two views are
reasonably possible the companyrts should prefer the view which
helps the achievement of the object. if the words used in
the entry are capable of a narrow or broad companystruction
each companystruction being reasonably possible and it appears
that the broad companystruction would help the furtherance of
the object then it would be necessary to prefer the said
construction. this rule postulates that there is a
competition between the two companystructions each one of which
is reasonably possible. this rule does number justify the
straining of the words or putting an unnatural or
unreasonable meaning on them just for the purpose of
introducing a broader companystruction. the other circumstance which has to be borne in mind in
interpreting the entry is that the interpretation should number
concentrate on the word products used in it. if this word
had been used say for instance in the material provisions
of the sales-tax act the decision as to whether a
particular product is liable to pay the tax would depend
upon the companysideration whether the pro-duct in question
falls within the scope of the said act or number and in that
context interpretation would naturally companycentrate on the
character and nature of the product in question. in the
-present case the entry takes us back to the first clause
of sch. 1 which refers to any industry engaged in the
manufacture of any of the products enumerated by the
different entries in sch. t. so in
construing the relevant entry what we have to ask ourselves
is is the industry of the respondent engaged in the
manufacture of any of the products mentioned in the entry ? it is the character of the industrial activity carried on by
the respondents undertaking that falls to be determined
and the question is number so much as to what is the product
produced as what is the nature of the activity of the
respondents undertaking is the respondents undertaking
engaged in the manufacture of the products in question ? this companysideration is relevant for the purpose of
determining the companytent of the entry. there is numberdoubt that the establishment of the respondent
is a factory within the meaning of s. 2  g  and it would be
an industry within the meaning of sch. 1 if its
manufacturing activity is found to be an activity companynected
with the products enumerated in the entry. the entry refers
to engineering products. it is therefore necessary to
clear the ground by referring to the word engineering
which qualifies the word products. to engineer according
to the dictionary meaning is to act as an engineer or to
employ the art of the engineer upon to companystruct or manage
as an engineer. engineering according to the
encyclopedia britannica vol. 8 in its early uses referred
specially to the operations of those who companystructed engines
of war and executed works intended to serve military
purposes. such military engineer- were long the only ones
to whom the title was applied. but about the middle of 18th
century a new class of engineers arose who companycerned
themselves with works which though they might be in some
cases of the same character as those undertaken by military
engineers as in the making of roads were neither exclu-
sively military in purpose number executed by soldiers and
those men by way of distinction came to be knumbern as civil
engineers. thus civil engineering came to be knumbern as the
art of directing the great sources of power in nature for
the use and companyvenience of man as the means of production
and of traffic in states both for external and internal
trade as applied in the companystruction of roads bridges
aqueducts canals river navigation and docks for internal
intercourse and exchange and in the companystruction of ports
harbours moles breakwaters and lighthouses and in the art
of navigation by artificial power for the purposes of
commerce and in the companystruction and adaptation of
machinery and in the drainage of cities and towns.  p.
444 . gradually however specialisation set in. the first branch
of engineering which received recognition as a separate
branch was mechanical engineering. this branch is
concerned with
steam engines machine tools millwork and moving machinery
in general and it was soon followed by mining engineering
which deals with the location and working of companyl ore and
other minerals. subsequently numerous other more or less
strictly defined groups and sub-divisions came into
existence they are civil mining and metallurgical
mechanical electrical chemical aeronautical and
industrial. there are other less clearly defined branches
of engineering such as sanitary structural drainage
hydraulic highway railway electric power electrical
communications steam power internal companybustion marine
welding production petroleum production fire protection
safety architectural nuclear and management or
administrative engineering  p. 448 . it would thus appear that the area companyered by engineering
which was originally occupied only by military engineering
is number split up into several sub-areas which are companyered by
special branches of engineering knumbern by special names. the
entry in question refers to electrical and mechanical
engineering and it is easy enumbergh to determine what the
denumberation of these two expressions is. in the companytext
general engineering which is also mentioned in the entry
must number be companystrued in a general companyprehensive sense which
the words may prima facie suggest because if that was the
scope of the said words there was hardly any point in
referring to electrical and mechanical engineering
separately. therefore we are inclined to hold that the
expression general engineering does number include electrical
or mechanical engineering which are specifically mentioned
in the entry and it also does number include other branches of
engineering which are knumbern by specific or special titles. these specific branches of engineering have already been
indicated by us by reference to the encyclopaedia
britannica. after the first six entries had been included in sch. 1 in
1952 an explanation was added to it in 1953 which purports
to indicate what items are intended to be included in the
entry electrical mechanical or general engineering
products. this explanation companysists of four clauses cl.  a  enumerates the items falling under the entry with which
we are companycerned in the present appeal whereas clauses  b
 c  and  d  afford similar explanation in regard to entries
relating to iron and steel paper and textiles
respectively. a glance at the items included in cl.  a  of
the explanation as well as the items included in clauses
 b   c   d  clearly shows that the object of the
legislature in enacting the explanation was to clarify the
content of the respective entries
in sch. 1 to illustrate them by adding specific items and
to enlarge their scope in some material particulars. the
fact that an explanation has been added with this purpose in
1953 must also be taken into account in companystruing the
entry in question. mr. agarwala for the respondent has companytended that the
learned single judge was in error in holding that the
respondents industry was engaged in the manufacture of
drums and companytainers specified as item  24  introduced in
cl.  a  of the explanation. he argues that the companye of the
entry is engineering products and while companystruing the
entry the significance of this companye should number be
overlooked. according to him the entry really takes in
engineering products like machinery and equipment for
generation of electrical energy. he suggests that in
determining the companytent of this entry we should ask
ourselves what would this entry mean to an ordinary citizen
in a companymercial sense ? it would mean that the products to
which the entry refers are products which are useful in or
meant for electrical engineering mechanical engineering or
general engineering. this entry may also take in machines
or their parts which are similarly useful in or meant for
electrical mechanical or general engineering. if this
narrow companystruction is accepted then of companyrse production
of brass utensils would be plainly outside the entry. there are however several companysiderations which suggest
that this narrow companystruction cannumber be accepted. as we
have already indicated a glance at the items mentioned in
cl.  a  of the explanation and the extended meaning
attributed to the respective entries companyered by clauses  b
 c  and  d  of the explanation clearly indicates that numbere
of the said entries can be reasonably mad in that restricted
manner. if this restricted interpretation is accepted then
several items included in cl.  a  of the explanation would
be so companypletely foreign to the original companytent of the
entry that their inclusion would appear to be unjustified. take for instance item  15  in cl.  a  of the explanation
which is bicycles item  17  which is sewing and knitting
machines item  22  which is safes vaults and furniture
made of iron or steel or steel alloys or item  23  which is
cutlery and surgical instruments. clause  a  of the
explanation provides that these items should be included in
the entry in question without prejudice to the ordinary
meaning of the expressions used therein. if the narrow
construction for which mr. agarwala companytends is accepted it
would look unreasonable that the legislature should have
introduced these items under cl.  a  of the explanation. besides
this companystruction lays undue emphasis on the companycept of
products and erroneously treats engineering products as the
core of the expression. what the entry really means is
electrical engineering products mechanical engineering
products or general engineering products and in determining
the companytent of the entry we have to hark back to the
relevant companysideration that this entry is intended to
describe an industry as falling within the scope of the act
if the said industry is engaged in the manufacture of the
products in question. number if we take the other entries
which were initially included in sch. 1 the companystruction
for which mr. agarwala companytends cannumber obviously be applied
in respect of them and so we think it would number be
possible to adopt the narrow companystruction which mr. agarwala
has suggested for our acceptance. on the other hand mr. sen for the appellant suggested that
the proper way to companystrue this entry would be to hold that
this entry would take in every industry which is engaged in
the manufacture of products which are manufactured by
electrical mechanical or general engineering process. this
construction treats the process of production as the crux of
the entry and if this companystruction were accepted the scope
of the companytent of the entry would be very wide indeed. if
every product whose production can be referred to one or the
other of the processes mentioned in the entry is companystrued
to fall within its companytent then several other entries in
the schedule would prima facie appear to be redundant
because this entry itself would be companyprehensive enumbergh to
take them in. in that case explanation  a  which has been
added in 1953 would itself appear to be without any purpose
because most if number all of the items introduced by the
said clause would be included within the original entry
itself. in our opinion such a wide companystruction would number
be justified because we are inclined to hold that it is number
the process which is important in companystruing the entry as
the character of the activity with which the industry is
concerned. that is why we are number prepared to accent the
very broad companystruction of the entry suggested by mr. sen.
the proper way to determine the companytent of this entry
appears to us to be to hold that all products which are
generally knumbern as electrical engineering products or
mechanical engineering products or general engineering
products are intended to be companyered by the entry and the
object of sch. 1 is to include within the scope of the act
every industry which is engaged in the manufacture of
electrical engineering products mechanical engineering
products or general engineering products. it is the
character of the products that helps to determine the
content of the entry can. the product in question be
reasonably described as an electrical engineering product
or a mechanical engineering product or a general
engineering product ? that is the question to ask in every
case and as we have already indicated in companysidering the
question as to whether the product falls under the category
of general engineering product general engineering should
be companystrued in the limited sense which we have already
shown. it may be that in a large majority of cases the
products included within the entry may be produced by
electrical or mechanical or general engineering process but
that is number the essence of the matter. the industrial
activity which manufactures the three categories of products
already enumerated by us brings the industry within the
scope of sch. 1 and therefore attracts the application of
the act. if we bear in mind the three broad categories of products
the manufacture of which brings the industry within the
scope of sch. 1 it would be easy to appreciate the items
enumerated in cl.  a  of the explanation. broadly stated
items 1 to 6 can be said to be electrical engineering
products 7 to 10 may be said to be mechanical engineering
products and the rest general engineering products. we are
free to companyfess that the inclusion of each one of these
items in cl.  a  of the explanation cannumber be easily
explained but on the whole it appears to us that the
object of the explanation was to clarify illustrate and
expand the companytent of the entry in question in order that
there should be numberdoubt as to the classes and categories of
industry which were intended to be brought within the
purview of the act. thus companysidered we think that the
manufacture of brass utensils can easily be regarded as an
activity the object of which is the manufacture of general
engineering products. this interpretation is number as narrow
as that suggested by mr. agarwala number as broad as that
suggested to mr. sen and on the whole it seems to fit in
with the scheme of sch. 1 companysidered in the light of the
object intended to be achieved by the insertion of the
explanation in 1953 and the subsequent additions made to
sch.


civil appellate jurisdiction civil appeal number 1210 of
1984.
from the judgment and order dated 28.8.1980 of the
madras high companyrt in appeal number 213 of 1978.

ram kumar for the appellant. mohan t. raja and r. nedumaran for the respondent. the following order of the companyrt was delivered
ten acres of land belonging to the appellant had been
acquired under the land acquisition act. the land
acquisition officer awarded companypensation at the rate of one
rupee one paise per sq. ft. on a reference under section 18
of the act the companyrt enhanced the rate of companypensation to
rs. 2.25 per sq. ft. on appeal by the state the high companyrt
by the impugned judgment reduced the companypensation to rs. 2.00 per sq. ft.
the reason stated by the high companyrt for so reducing the
rate of companypensation was that the acquired area was a
compact plot of 10 acres which was laid out as building
sites with fully formed roads and drainage. the high companyrt
held that since the roads and drainage occupied a part of
the area acquired proportionate deduction in companypensation
ought to be made. companynsel for the appellant submits that what was
acquired was a companypact area of 10 acres. the fact that roads
and drainage had been laid out does number reduce the value of
the land acquired. in fact the appellant had incurred
expenditure in preparing the land as building sites and the
high companyrt ought to have accepted his companytention that he was
entitled to higher companypensation. we see numberreason why the high companyrt should have reduced
the companypensation awarded by the reference companyrt on the
ground that roads and drainage had been laid out. the fact
that these improvements had been made on the land shows that
what was acquired was more valuable than what it would have
been without the improvements. the reason given by the high
court for reducing the companypensation awarded by the reference
court was wrong in principle.