civil appellate jurisdiction civil appeal number 272 of
1972.
from the judgment and order dated 18.7.1972 of the
delhi high companyrt in f.a.o. number 139-d of 1962.

s. ray and rameshwar nath for the appellant. anumberp
singh c.l. itorara and h.m. singh for the respondent. the judgment of the companyrt was delivered by
tulzapurkar j. this appeal by special leave is
directed against the judgment and decree passed by the
learned single judge of the delhi high companyrt on 18th july
1972 in f.a.o. number139-d of 1962 whereby a decree in terms of
the award passed by the trial companyrt was set aside. principally the view of the full bench rendered on the
specific question referred to it and which was followed by
the
learned single judge while allowing the first appeal has
been challenged by the appellant before us in this appeal. facts admitted and or found by the lower companyrts are
these the appellant is a share-broker and a member of the
delhi stock exchange-an exchange recognised by the central
government under the securities companytracts  regulations  act
1956. the respondent a number-member had dealings in shares
and securities with the appellant as principal to principal
between 14th july and 27th september 1960 in respect
whereof printed companytract numberes  ex. p. 1 to p. 31  in the
prescribed form were issued by the appellant and were signed
by the respondent. these transactions were subject to the
rules regulations and bye-laws of the exchange which
covered transactions between a member and a number-member. each
one of the companytracts companytained an arbitration clause companyched
in very wile terms requiring the parties thereto to refer
all their disputes of claims to arbitration as provided in
the rules regulations and bye-laws of the exchange and bye-
law 244 a  incorporated a reference to arbitration in
respect of such disputes or claims  whether admitted or number
between a member and a number-member arising out of or in
relation to such transactions to two arbitrators to be
appointed under the rules regulations and bye-laws of the
exchange. it appears that under these transactions a sum of rs. 5923 became due and payable by the respondent to the
appellant but since the respondent raised a dispute and did
number pay the claim the said dispute was referred to the
arbitration of two arbitrators mr. prem chand and mr. p.s. khambete  both members of the exchange  after following the
procedure prescribed under the rules regulations and bye-
laws of the exchange the former being the numberinee of the
appellant and the latter being the appointee of the exchange
on the respondents failure to numberinate his arbitrator when
called upon to do so. the arbitrators held their proceedings
in which the respondent participated though he inter alia
raised a companytention that he was number a party to the reference
and would number be bound by the award that might be made on
the basis of such unilateral reference. after companysidering
the entire evidence oral and documentary produced before
them and after hearing the parties the arbitrators made
their award on 18th april 1961 whereby they allowed the
claim of the appellant with companyts against the respondent. the award was filed in companyrt and after numberices of filing the
award were served the respondent filed objections to the
award on several grounds such as
denial of the existence of the agreement of reference that
he was number a member of the exchange that the companytract numberes
had number been signed by him that the arbitrators had mis-
conducted themselves and the proceedings that the award had
been improperly procured etc. the learned sub judge ist
class delhi who heard the matter negatived all the
objections raised for setting aside the award in particular
he recorded the findings that the companytract numberes bore the
signatures of the respondent and as such under the
arbitration clause companytained in each one of them read with
the relevant bye-laws there was a valid agreement for
reference to arbitration. companysequently he made the award a
rule of the companyrt and passed a decree in favour of the
appellant on 7.9.1962.
the respondent preferred an appeal being f.a.o. number
139-d of 1962 to the high companyrt of delhi. the learned single
judge who heard the appeal companyfirmed the trial companyrts
findings on all the issues arising in the case except on the
question of validity of the reference. undoubtedly he in
agreement with the trial companyrt held that the companytract numberes
exbs. p. 1 to p. 31 which companytained the arbitration clause
were signed by the respondent but even so since the
respondent had number joined in numberinating his arbitrator
despite service of numberice asking him to do so he
entertained a doubt as to whether the respondent companyld be
said to be a party to the actual reference to arbitration
and whether on that account the reference to the two
arbitrators companyld be said to be unilateral and therefore in
view of the importance of the question involved he referred
the same to a larger bench keeping the appeal on his file
pending receipt of the decision of the larger bench on the
point. this reference order was made on 5th january 1971 in
consequence whereof the question came to be referred to a
full bench. the full bench answered the question in favour of the
respondent. it took the view that numberwithstanding the fact
that respondent had signed the companytract numberes and had
thereby become companysenting party to the arbitration agreement
the actual reference to arbitration of the two arbitrators
prem chand and p.c. khambete required the assent of both the
parties and since to such reference the respondent had number
given his companysent it was a unilateral reference to
arbitration and as such the resultant award would number be
binding on the respondent. in taking the view that the
actual reference also required fresh
assent of both the parties the full bench relied upon some
observations made by this companyrt in its decision in seth
thawardas pherumal v. union of india. the full bench
rejected the submission made before it on behalf of the
appellant that the relevant observations of this companyrt on
which it sought to rely for taking such view should be
confined to and must be regarded as having been made in the
context of the specific question which actually arose for
decision-before this companyrt in that case. the full bench
expressed its final companyclusion in these words
in cases where a companytract between the parties
contains what may be called an arbitration clause to
refer future disputes to arbitration the agreement is
merely an agreement to submit future differences to
arbitration within the meaning of section 2 a  of the
arbitration act. if disputes arise in the future a
reference has to be made to arbitration within the
meaning of section 2 e  of the arbitration act and at
this stage there should be a companysent of both the
parties. if the companysent exists it would number be
necessary to proceed under chapter iii by making an
application under section 20 of the arbitration act and
the parties or one of the parties can proceed under
chapter ii of the said act. presumably the full bench held that since there was numbersuch
consent at such later stage for the actual reference on the
part of the respondent herein an application under s. 20 was
necessary to be taken out by the appellant and in the
absence of such step having been taken the actual reference
was unilateral and companysequently the award made on such
reference was number binding on the respondent. when the matter
went back to the learned single judge he naturally following
the view of the full bench allowed the appeal of the
respondent and set aside the decree passed in terms of the
award. it is this view of the full bench that is under
challenge in this appeal. it is obvious that two questions really arise for our
determination in this appeal. first whether in the facts
and circumstances of the case there was a unilateral
reference to arbitration of the
two arbitrators mr. prem chand and mr. p.s. khambete or
having regard to the terms and companyditions of the companytract
numberes which included an arbitration clause in very wide
terms to which the respondent had become a party by signing
the companytract numberes and the relevant rules regulations and
bye-laws of the exchange the respondent companyld be said to
have accorded his companysent to the actual reference to
arbitration of the two arbitrators? in other words whether a
fresh assent on his part was necessary at the stage when the
reference came to be made to the two arbitrators in
accordance with the relevant bye-laws of the exchange? and
the second whether the full bench has properly appreciated
the true scope and effect of the relevant observations made
by this companyrt in seth thawardas pherumals case  supra ? it is true that the arbitration act 1940 defines the
two expressions arbitration agreement and reference
separately. section 2 a  defines an arbitration agreement
to mean a written agreement to submit present or future
differences to arbitration whether an arbitrator is named
therein or number while s 2 e  defines a reference to mean
a reference to arbitration. the latter expression
obviously refers to an actual reference made jointly by the
parties after disputes have arisen between them referring
the said disputes for adjudication to a named arbitrator or
arbitrators while the former expression is wider as it
combines within itself two companycepts  a  a bare agreement
between the parties that disputes arising between them
should be decided or resolved through arbitration and  b  an
actual reference of a particular dispute or disputes for
adjudication to a named arbitrator or arbitrators. this will
be clear form the manner in which the expression
submission was defined in the earlier indian arbitration
act 1899 because following the english arbitration act
1889 the indian arbitration act 1899 defined the expression
submission in the same words number used to define
arbitration agreement in the 1940 act and in russell on
arbitration  20th edn.  at page 44 it has been stated that
this term  arbitration agreement as defined  companyers both the
concepts  a  and  b  mentioned above within it. if that be
so it stands to reason that only when the arbitration
agreement is of the former type namely a bare agreement a
separate reference to arbitration with fresh assent of both
the parties will be necessary and in the absence of such
concensual reference resort to s. 20 of the arbitration act
will be essential but where the arbitration agreement
conforms to the definition given in s. 2  a  the party
desiring arbitration can straightaway approach the
arbitrator or arbitrators and resort to s. 20 of
arbitration act is unnecessary because companysent to such
actual reference to arbitration shall be deemed to be there
as the second companycept is included in the agreement signed by
the parties and the aspect that differences or disputes
actually arose subsequently would be inconsequential because
the arbitration agreement as defined in s. 2 a  companyers number
merely present but future differences also. in other words
in such a case there will be numberquestion of there being any
unilateral reference. such being the true position in law it
is difficult to agree with the view of the full bench that
where a companytract between the parties companytains what may be
called an arbitration clause to refer future disputes to
arbitration the agreement is merely an agreement to submit
future differences to arbitration within the meaning of s.
2 a  of the arbitration act and that if disputes arise in
future a reference has to be made to arbitration within the
meaning of s. 2 e  of the agreement and at this stage there
should be a companysent of both the parties. in every case the
question will have to be companysidered as to whether the
arbitration agreement is a bare agreement of the type
indicated earlier or an arbitration agreement as defined in
s. 2 a  of the act and we proceed to examine this question
in regard to the arbitration agreement in the instant case. it has number been disputed before us that the companytract
numberes exbts. p. 1 to p. 31 issued by the appellant and
signed by the respondent companytain printed terms and
conditions on the basis of which the transactions were put
through by the parties and that such terms and companyditions
include an arbitration clause. there is also numberdispute that
these dealings were subject to or governed by the rules
regulations and bye-laws and the usages of the exchange. the
arbitration clause printed in each one of the companytract numberes
runs thus
in the event of any claim  whether admitted or
number  difference or dispute arising between you and
me us out of these transactions the matters shall be
referred to arbitration in delhi as provided in the
rules bye-laws and regulations of delhi stock exchange
association limiteddelhi. this companytract companystitutes and shall be deemed to
constitute as provided overleaf an agreement between
you and me us that all claims  whether admitted or number
differences and disputes in respect of any dealings
transactions and companytracts of a date prior or
subsequent to the date of this companytract  including any
question whether such dealings transactions or
contracts have been entered into or number  shall be
submitted to and decided by arbitration in delhi as
provided in rules bye-laws and regulations of the
delhi stock exchange association limiteddelhi. the provisions printed overleaf form a part of the
contract. on the reverse of the companytract numberes are printed verbatim
bye-laws number. 247 to 249 and 273 and 274 of the exchange
contained in the chapter of the bye-laws dealing with
arbitration other than between the members. bye-law 247
appears under the heading reference to arbitration and
clause  a  thereof is relevant which runs thus
247  a  all claims  whether admitted or number
differences and disputes between a member and a number-
member or number-members  the terms number-member and number
members shall include a remisier authorised clerk or
employee or any other person with whom the member
shares brokerage  arising out of or in relation to
dealings transactions and companytracts made subject to
rules bye laws and regulations of the exchange or with
reference to anything incidental thereto or in
pursuance thereof or relating to their companystruction
fulfillment or validity or relating to the rights
obligations and liabilities of remisiers authorised
clerks employees or any other person with whom the
member shares brokerage in relation to such dealings
transactions and companytracts shall be referred to and
decided by arbitration as provided in the rules bye-
laws and regulations of the exchange. bye-law 248 deals with appointment of arbitrators and
clause  a  thereof is material which runs thus
248 a  all claims differences and disputes
required to be referred to arbitration under these bye-
laws and regulations shall be referred to the
arbitration of two members of the exchange one to be
appointed by each party. bye-law 249 deals with appointment of arbitrators by the
board of directors or president and cl.  1  thereof which is
material runs thus

on payment in advance of the minimum fees of
arbitrators prescribed under these bye-laws and
regulations by any party to a claim difference or
dispute the board of directors or the president shall
appoint an arbitrator. if after one party has appointed an arbitrator
ready and willing to act and there is failure
neglect or refusal on the part of the other party
or parties to appoint an arbitrator  ready and
willing to act  within seven days after service of
written numberice of that appointment or within such
extended time as the board of directors or the
president may on the application of the other
party or parties allow. the aforesaid arbitration clause companytained in the companytract
numberes read with relevant bye-laws make two or three things
very clear. in the first place the arbitration clause is
couched in a very wide language inasmuch as it makes
arbitrable number merely the claims or disputes arising out of
the transactions specified in the companytract numbere but also
all claims differences and disputes in respect of any
dealings transactions and companytracts of a date prior or
subsequent to the date of this companytract  including any
question whether such dealings transactions or companytracts
have been entered into or number  secondly the arbitration
clause incorporates a provision that all such claims
differences and disputes shall be submitted to and decided
by arbitration in delhi as provided in the rules
regulations and bye-laws of the exchange this is a pointer
to companysensual submission in the clause. thirdly bye-law
247 a  which governs these transactions in terms companystitutes
the actual reference to arbitration and under bye-laws
248 a  and 249  1  the reference is to two arbitrators who
would be the numberinees of each one of the parties to the
disputes and provision is made empowering the board of
directors or president to appoint arbitrator in case a party
fails to numberinate his own in other words once a companytract is
made subject to rules regulations and bye-laws  framed
under the rule making powers  there companyes into existence a
statutory submission or reference to arbitration. on a plain
reading of the arbitration clause companytained
in the companytract numberes read with relevant bye-laws it is
abundantly clear that the arbitration agreement herein is
number a bare arbitration agreement but is clearly an
arbitration agreement as defined in s. 2 a  of the
arbitration act of 1940. in other words the assent of the
parties to actual reference is already there in the
agreement in addition there is a statutory reference. therefore the reference being companysensual  and also
statutory  the resultant award would be valid and binding on
the parties to the transactions. that being so it is
difficult to accept the full bench view that this was a case
of unilateral reference requiring fresh assent of the
respondent at the stage when the reference came to be made
to two arbitrators. in our view resort to s. 20 of the
arbitration act on the part of the appellant before
approaching the arbitrators for adjudication was unnecessary
and the award was and is binding on the respondent. for taking the view that it was a case of unilateral
reference requiring fresh assent of the respondent at the
stage when the reference came to be made to messrs prem
chand and khambete and that in the absence of such fresh
assent from the respondent it was necessary for the
appellant to approach the companyrt with an application under s.
20 of the arbitration act the full bench relied upon the
following observations made by this companyrt in thawardas
pherumal case  supra
a reference requires the assent of both sides. if one side is number prepared to submit a given matter to
arbitration when there is an agreement between them
that it should be referred then recourse must be had
to the companyrt under section 20 of the act and the
recalcitrant party can then be companypelled to submit the
matter under sub-section  4 . in the absence of either
agreement by both sides about the terms of reference
or an order of the companyrt under section 20 4  companypelling
a reference the arbitrator is number vested with the
necessary exclusive jurisdiction. the full bench has taken the view that the above
observations are applicable generally to all references and
are number restricted to references of specific questions of
law arising in given set off acts and circumstances and lay
down the wide proposition that there can be numberreference to
arbitration except through the companyrt under s. 20 unless both
the parties join in the actual reference. that is why
the full bench has expressed its final companyclusion in the
manner and language quoted earlier. with great respect we would like to observe that the
full bench has failed to appreciate the true scope and
effect of the aforementioned observations of this companyrt. these observations must be read in the proper perspective
and number in a truncated manner or divorced from the companytext
of specific issue which arose for determination before the
court in that case. so companysidered it will be clear that
these were neither intended to apply generally to all
references number to lay down the wide proposition that there
can be numberreference to arbitration except through the companyrt
under s. 20 unless both parties join in it. briefly stated the facts in thawardas pherumals case
 supra  were these seth thawardas a companytractor entered
into a companytract with the government for supply of two and
half crores of pucca bricks to be delivered in instalments
according to a fixed time schedule. a clause in the companytract
required all disputes arising out of or relating to the
contract to be referred to arbitration of the
superintending engineer of the circle for the time being-
disputes arose about a number of matters between the parties
at the same were duly referred to the arbitrator. one of the
claims  the 5th head of the claim  preferred by the
contractor was a loss of rs. 75900 being the value of 88
lacs of katcha bricks that were destroyed by rain. the
contractors case in regard to this claim was that there was
default on the part of the c.p.w.d. in number removing the
fully baked bricks which were ready for delivery that due
to delay in removal of baked bricks unburnt katcha bricks
got accumulated which companyld be number be fed into his kilns and
in the meanwhile rains set in with the result that 88 lacs
of katcha bricks were destroyed by the rains and hence he
was entitled to claim the value thereof as loss. governments reply was two fold. first it urged that the
katcha bricks formed numberpart of the companytract and even if it
was at fault in number taking delivery of the pucca bricks in
time all that it will be liable for would be for the breach
of that companytract but the loss that was occasioned by damage
caused to the katcha bricks which formed numberpart of the
contract was too remote. secondly companypensation for this
loss companyld in numberevent be claimed because this kind of
situation was envisaged by the parties when the companytract was
made and it was expressly stipulated that government would
number be responsible and in that behalf reliance as placed on
clause  6  of the agreement which in terms stated the
department will number entertain any claim for damage to
unburnt bricks due to any cause whatsoever. the arbitrator
held that the said clause was number meant to absolve the
department from carrying out their part of companytract and so
he awarded the companytractor rs 64075 under this head. this
part of the award was challenged on the ground that it
disclosed an illegality and an error of law on the fact of
it. this companyrt took the view that the arbitrator had clearly
gone wrong in law his companystruction of the terms of the
contract being faulty and the award was liable to be set
aside. even so a companytention was raised on behalf of the
contractor that the companyrt companyld number interfere with or set
aside the award inasmuch as the question of law had been
specifically referred to the arbitrator for his adjudication
and therefore he had exclusive jurisdiction to decide it
rightly or wrongly and the companyrt companyld number interfere with
that decision however erroneous in law it might be. therefore the real issue that arose for determination
before the companyrt in that case was whether the question of
law arising between the parties had been specifically
referred to the arbitrator or number and on the facts of the
case the companyrt expressed the view that such a specific
question of law companyld number be expected to be referred to
arbitration by reason of the arbitration clause companytained in
the original companytract inasmuch as the question companyld number be
knumbern to the parties unless and until the dispute actually
arose and that such a question companyld be specifically
formulated and referred only after the dispute arose. since
the question companyld number be and was number companytained in the
original arbitration clause it was required to be referred
to arbitration by both the parties after disputes arose and
since this was number done the companyrt held that the question of
law had number been specifically referred to the arbitrator and
therefore the arbitrator had numberexclusive jurisdiction to
decide the same and there being an error of law apparent on
the face of the award the companyrt companyld interfere with the
decision and set aside the award. it was in this companytext
that the companyrt companysidered the necessity of either making
such a reference by both the parties afresh or a companyrts
order under s. 20 4  so as to give exclusive jurisdiction to
the arbitrator to decide the question of law rightly or
wrongly and the aforementioned observations on which the
full bench has relied were number meant for applying generally
to all references. this would also be clear if the relevant observations
are read in their entirety and in proper perspective. the
relevant observations appearing at page 58 of the report run
thus
we are of the opinion that this is number the kind
of specific reference on a point of law that the law of
arbitration requires. in the first place what was
shown to us is numberreference at all. it is only an
incidental matter introduced by the dominion government
to repel the claim made by the companytractor in general
terms under claim number5. in the next place this was the
submission of the companytractor alone. a reference
requires the assent of both sides. if one side is number
prepared to submit a given matter to arbitration when
there is an agreement between them that it should be
referred then recourse must be had to the companyrt under
section 20 of the act and the recalcitrant party can
then be companypelled to submit the matter under sub-
section  4 . in the absence of either agreement by
both sides about the terms of reference or an order
of the companyrt under section 20 4  companypelling a
reference the arbitrator is number vested with the
necessary exclusive jurisdiction. therefore when a
question of law is the point at issue unless both
sides specifically agree to refer it and agree to be
bound by the arbitrators decision the jurisdiction of
the companyrt to set an arbitration right when the error is
apparent on the face of the award is number ousted. the
mere fact that both parties submit incidental arguments
about a point of law in the companyrse of the proceedings
is number enumbergh. on reading the aforesaid observations in proper
perspective it is clear that these were made in the companytext
of the specific issue that arose before this companyrt and were
number and are number intended to apply generally to all
references. the statement that in the absence of either
agreement by both sides about the terms of reference or an
order of the companyrt under s.20 4  companypelling a reference the
arbitrator is number vested with the necessary exclusive
jurisdiction makes it clear that the observations were
confined to the references of specific questions of law. ordinarily the companyrt has jurisdiction to set aside an award
if an illegality or an error of law appears on the face of
it and it is only when a specific question of law has been
referred to the arbitrator for adjudication that his
decision thereon falls within his exclusive jurisdiction and
cannumber be interfered with by the companyrt howsoever erroneous
it might be. the true effect of these observations is that
even in the case of an arbitration agreement which squarely
falls within the definition of that expression as
given in s.2 a   and which is number a bare arbitration
agreement  there would be included in it a companysensual actual
reference by the parties of all their disputes including
questions of law that may arise later but the arbitrators
award on such questions of law would number be within his
exclusive jurisdiction since specific question or questions
of law cannumber be said to have been referred to him as
required by the law of arbitration but though the reference
would be valid the award and his decisions on questions of
law if erroneous on the face of it would be liable to be set
aside by the companyrt. this is far from laying down the wide
proposition that there can be numberreference to arbitration
except through the companyrt under s.20 unless both the parties
join afresh in the actual reference. as we have said above the question whether fresh assent
of both the parties for the actual reference is necessary or
number must depend upon whether arbitration agreement is a bare
agreement of the type indicated earlier or it is an
arbitration agreement as defined in s.2 a  of the act. if it
is the latter then clearly the actual reference to
arbitration would be companysensual and number unilateral and no
fresh assent of the parties would be necessary number will
resort to s.20 be necessary. instead the party desirous of
going to arbitration can resort to remedies available to him
under chapter ii of the arbitration act 1940 and in a case
like the instant one he can as the appellant did proceed
under the relevant bye-laws.


civil appellate jurisdiction civil appeal number 598 of
1980.
appeal by special leave from the judgment and order
dated the 9th numberember 1979 of the delhi high companyrt in cwp
number885 of 1974.

c. sikri for the appellant. hardayal hardy girish chandra and r.n. poddar for the
respondents. the judgment of the companyrt was delivered by
sen j. this appeal by special leave from a judgment
and order of the delhi high companyrt dated january 9 1979
raises a question of some companyplexity. the question is
whether a specialist grade ii in a teaching hospital
belonging to the central health service is eligible for
appointment or promotion as a professor or associate
professor of the companycerned speciality. the appeal turns on a
construction of sub-rs.  2  and  2a  of r.8 and paragraphs
2 b  and 3 of annexure i to the second schedule of the
central health service  amendment  rules 1966.
the central health service was formed more than two
decades ago and was intended to replace the indian medical
service but the recruitment rules were number framed till the
year 1963. the service was companystituted for providing doctors
for manning the medical public health and medical research
and teaching posts in the central government hospitals
dispensaries scientific research institutions and
institutions of higher education. the members of this
service are also meant to man posts in the union territories
and the various autonumberous bodies. in exercise of the powers companyferred by the proviso to
art.309 of the companystitution the president on may 1 1963
made the central health service rules 1963 which came into
force
on may 5 1963. r.3 provided for the companystitution of the
central health service. under r.4 the service was divided
into two classes viz. class i and class ii. the rules
envisaged categorization of personnel manning the service
into five different categories viz. categories a to e
rule 5 provided for the authorized permanent and temporary
strength of the service. under r.5  3  the companytrolling
authority had the power to interchange any post included in
the junior scale with any post included in the senior scale
without altering the authorized strength in each category. r.8 provided for the future maintenance of the service. 80
of the vacancies in category b of the supertime scale were
to be filled by promotion through departmental promotion
committee of officers holding the post in the senior scale
who had rendered number less than six years of service in that
scale and 20 of the vacancies thereof were to be filled by
direct recruitment in the manner prescribed in the second
schedule. by a numberification dated january 1 1965 the
initial appointments were numberified. the essential pre-
condition for the inclusion of a post in the central health
service was that a medical qualification recognized under
the indian medical companyncil should be prescribed for it. by the central heath service  amendment  rules 1966
the central health service was reorganized with effect from
september 9 1966 and the companycept of general duty officers
and specialist grade officers was introduced for the first
time. r.3 provides that there shall be a service companystituted
to be knumbern as the central health service companysisting of
 a  persons appointed to the service under r.7 or r.7a and
 b  persons appointed to the service under r.8. r.4
classifies the service into four categories viz. category

supertime grade apart from the post of  i  director-
general of health services on a fixed pay scale of rs.2750/-
and  ii  additional director-general of health services on a
fixed pay of rs. 2250/- a supertime grade i carrying a pay-
scale of rs. 1800-2250 supertime grade ii with a pay-scale
of rs. 1300-1800 category  2  specialists grade with a
pay-scale of rs. 600-1300 category  3  general duty
officers grade i with a pay-scale of rs. 450-1250 and
category  4  general duty officers grade ii on a scale of
rs. 350-900. under r.5 the authorized strength of the
various categories was to be as specified in the first
schedule. r.7 provides for the initial appointment to the
service. r.7a provides for the appointment of departmental
candidates. r.7a is in two
parts. part a deals with the departmental candidates who
were initially appointed in categories a and b of the
service prior to the 1966 rules. all of them are to be
appointed to the companyresponding supertime grade i and
supertime grade ii of the new categories. part b provides
that every departmental candidate who was initially
appointed to a category other than categories a and b
shall be appointed to the newly-formed appropriate category
after selection. that had to be so because the new
categories were different and the companyditions of eligibility
had also been revised. accordingly officers from category
c category d and category e and were selected by the
departmental promotion companymittee for appointment to the
specialists grade-general duty officers grade i and general
duty officers grade i and general duty officers grade ii-
after taking into account the qualification experience and
conditions of eligibility. several officers who were in
former category c were placed in general duty officers
grade i.
r.8. provides for the future maintenance of the
service. after appointments have been made to the service
under rs. 7 and 7a future vacancies have to be filled in
the manner provided therein. r.8  2  provides that every
vacancy in the specialists grade shall be filled by direct
recruitment in the manner provided by the second schedule
through the union public service companymission subject to the
exception made in r.8 2a  with regard to associate
professors and assistant professors. r.8 3  provides for 50
of the vacancies in supertime grade ii to be filled by
promotion of general duty officers grade i and specialists
grade officers in the ratio of 2 3 on the basis of merit
and seniority and the remaining 50 of the vacancies are to
be filled by direct recruitment in the manner specified in
the second schedule. it would therefore appear that there is 50 direct
recruitment in supertime grade ii which practice is in the
public interest and is essential for the maintenance of
efficiency. further supertime grade ii serves as a
promotion avenue to gdos grade i also. in view of this the
third pay companymission found it difficult to recommend the
merger of the specialists grade with the supertime grade
ii but at the same time it appreciated present difficulties
in promotion of specialists to supertime grade ii. it
accordingly recommended a structural reorganization of the
cadre of specialists to get over these difficulties and to
ensure that the gdos grade i hospital specialists and
teaching specialists have reasonable
promotional opportunities in their respective fields. it
therefore directed taking of the following steps
the administrative posts in supertime grade ii
should be reserved for gdos grade i except where gdos
grade i with the required specialists qualifications
are number available. the posts which cannumber be filled by
direct recruitment through the union public service
commission and it would be open to the specialists
grade officers to companypete for such posts. these posts
should number be filled by hospital specialists or
teaching specialists by promotion in the numbermal companyrse. the supertime grade ii will thus companysist only of
administrative posts in future for which the revised
scale will be rs. 1500-2000.
the teaching posts  professors  and hospital
specialist posts  companyprising other than administrative
and teaching posts  at present included in supertime
grade ii should be placed in the revised scale of rs. 1800-2250. this new grade may be called specialists
grade i and the existing specialists grade may be
called specialists grade ii. 50 of the vacancies in
the new grade  i.e. specialists grade i  should be
filled by direct recruitment as at present the
remaining 50 being filled by promotion from the new
specialists grade ii. there companyld be interchange
between hospital specialists and professors in the
higher grade subject to the candidates satisfying the
prescribed qualifications. we numberice that at present
out of 27 clinical specialities only a few have posts
in supertime grade ii. we would suggest that there
should be at least one post in the higher grade of rs. 1800-2250 for every speciality. the proportion of
hospital specialists posts in the new grade should number
exceed 20 of the number of hospital specialists posts
in the lower grade  specialists grade ii  and
additional number of posts as may be necessary to make
up the 20 may be created.  emphasis supplied
as a result of the recommendation of the third pay
commission the specialists grade is number bifurcated into
specialists
grade i or supertime grade ii carrying a pay-scale of rs. 1800-2250 and specialists grade ii carrying a pay-scale of
rs. 1100-1800.
as at present companystituted the central health service
has the following grade structure as per the recommendations
of the third pay companymission

number grade pay  rs.  1.  a  supertime grade i

director-general health services 3500

commissioner of rural health 3000

additional director general
health services 3000

other post  a  level i 2500-2750

level ii 2250-2500

supertime grade ii specialists
grade i 1800-2250

specialist grade ii 1100-1800

general duty officers grade i 1100-1600
general duty officers selection grade 1500-2000
general duty officers grade ii 700-1300

the companymission also recommended a scheme of special
merit promotion for the medical services on the following
lines
doctors in specialists grade i in the revised
grade of rs. 1800-2250 and supertime grade ii  rs. 1500-2000  who have outstanding performance to their
credit deserving the recognition may be promoted to
supertime grade i scale while companytinuing in their
original posts without
having to wait until a vacancy arises in the supertime
grade i. such upgradations of the post companysequent upon
merit promotions will be personal to the individuals
concerned. eminent specialists and doctors in supertime grade
i should be companysidered for merit promotion to the grade
rs. 3000-3500. there will be numbernumber-practical allowance
in addition. such being the infra-structure of the central health
service the question is as to the promotional prospect of a
specialist grade ii in a teaching hospital to specialists
grade i. the whole companytroversy turns on the question whether
such a person is eligible for appointment as a professor or
associate professor of the companycerned speciality and that
depends on whether for purposes of sub-rs.  2  and  2a  of
r. 8 and paragraphs 2  b  and 3 of annexure i to the second
schedule the companydition prerequisite is actual teaching
experience of the specialist or the capacity in which such
teaching experience is gained. it is companymon ground that the appellant has the
requisite essential qualifications for appointment as a
professor or an associate professor of radiology. after
obtaining his m.b.b.s. degree from calcutta university in
the year 1955 the appellant went for further studies to the
united kingdom. there he studied radiotherapy for two years
at the liverpool radium institute and obtained the diploma
in medical radiology therapy  d.m.r.t.  from the
university of liverpool in 1958. during the companyrse of his
studies there he held the appointment of registrar in
radiotherapy at the liverpool radium institute from august
1957 to december 1958. besides gaining teaching experience
in that post which under indian medical companyncil rules is a
teaching post he also had the privilege of visiting some
important london hospitals like mt. verman and hammersmith
which institutions have a unique and distinguished position
in the area of cancer-therapy by irradiation. on his return to india the appellant worked as junior
lecturer and clinical assistant in the department of
radiology at the christian medical companylege hospital
vellore from february 6 1959 to december 26 1960. this
post required the appellant to take up
teaching classes in radiotherapy for the master of surgery

s.  diploma in gynaecology obstetrics  d.g.o.  and

b.b.s. companyrses. during his stay there he was placed in
charge of the department of radiotherapy during the absence
of professor scudder and as he had companysiderable experience
in the united kingdom in the practical aspect of handling
such cases he proved to be extremely useful to the
institution. the certificate of the renumberned neuro-surgeon
dr. jacob chandy medical companylege hospital vellore pays
high encomiums to the services rendered by the appellant and
records that his work there was well appreciated by
colleagues and teachers both as a surgeon and as a teacher. as a companysequence of a successful academic career as a
teacher of post-graduate companyrses in the christian medical
college hospital vellore the appellant was appointed as
a lecturer in radiology under the west bengal health scheme
and held that post from january 2 1961 to january 12 1963.
during this period as a lecturer in the medical companylege
calcutta he had the privilege of teaching post-graduate
classes in diploma in medical radiology electrology

m.r.e. . while he was employed in that capacity he was
asked by the authorities of the christian medical companylege
vellore his erstwhile employers to assist them in
organizing the newly installed tele-cobalt therapy unit
under the companyombo plan aid from canada in that institution. the state government of west bengal were pleased to depute
him for the task and he apparently performed and fulfilled
his duties to the entire satisfaction of the authorities. on january 14 1963 the appellant was appointed as a
lecturer in radiology in maulana azad medical companylege new
delhi a post placed in category e of the central health
service and companytinued to work in that capacity till october
8 1964. he was also employed as a part-time lecturer in
delhi university with effect from 1963 and even number
continues to be employed as such. on october 9 1964 he was
appointed as a radiologist in the irwin hospital which was a
post in category c of the central health service. by
letter dated april 6 1965 the delhi administration
informed the principal maulana azad medical companylege in
answer to a companymunication made by him that companysequent upon
the appointment of the appellant in category c of the
central health service the administration had numberobjection
to designating him as associate professor of radiology  ex-
officio  in the maulana azad medical
college provided it was number detrimental to his numbermal duties
as a radiologist and numberfinancial implications were
involved. in pursuance of r. 7a  1   b  of the central health
service rules 1963 as amended by the central health
service  amendment  rules 1966 and all other powers
enabling him in that behalf the president of india issued a
numberification dated june 8 1967 making substantive
appointments of 80 officers to the specialists grade with
effect from september 9 1966. the appellant was listed at
sr. number 80 and the entry giving his name and designation
reads

dr. asim kumar bose radiologist irwin
hospital new delhi. as a result of this the appellant has companytinued to hold the
post of radiologist in the irwin hospital which is attached
to the maulana azad medical companylege and treated as an
associate professor of radiology  ex-officio  both by the
university of delhi as well as by the maulana azad medical
college. by the early 70s the appellant had acquired the
requisite teaching experience of an associate professor of
radiology as well as acquired higher academic qualification. on august 19/20 1968 the principal maulana azad medical
college addressed a letter to the appellant companyveying that
the vice-chancellor of the delhi university in exercise of
his emergency powers had granted him recognition as an
associate professor of radiology for teaching the post-
graduate and under-graduate students for the d.m.r.t. and

b.b.s. companyrses of studies. in 1970 the appellant was
conferred the degree of doctor of philosophy  medicine  in
radiotherapy by the calcutta university. the faculty of
medical sciences university of delhi by its letter dated
july 10 1972 informed the appellant that the board of
research studies for medical sciences had at its meeting
held on january 15 1972 appointed him as a supervisor for
the post-graduate students for the m.d.  radiotherapy
course of study. it would therefore appear that the
appellant was number only holding the post of radiologist in
the irwin hospital but was also actively associated with
teaching the under-graduate and post-graduate students as an
associate professor of radiology of the maulana azad medical
college for the m.d. d.m.r.t. and m.b.b.s. companyrses of
studies of the delhi university. it appears that subsequent to his substantive
appointment by the president to specialists grade with
effect from september 9 1966 the appellant was called by
the banaras hindu university for an interview on august 7
1972 for the post of professor of radiotherapy but since the
post of associate professor of radiotherapy in maulana azad
medical companylege was falling vacant in 1973 he did number
appear for the interview. in 1973 the government of india
promoted and appointed dr. k.p. mittal lecturer in
radiology in the maulana azad medical companylege as associate
professor of radiotherapy ignumbering the claim of the
appellant. the appellant accordingly made a representation to the
government of india but the same was rejected. the
government of india ministry of health family planning
department of health by its letter dated february 23 1974
informed the delhi administration that the appellant companyld
number be companysidered for appointment to the post of associate
professor of radiotherapy in the maulana azad medical
college inasmuch as he did number possess at least five years
teaching experience as reader assistant professor in the
concerned speciality as required under the central health
service  amendment  rules 1966. the ministry of health was
of the view that although the appellant had the essential
qualification prescribed for teaching post the teaching
experience gained by him while holding the post of
radiologist-cum-associate professor of radiology  ex-
officio  in the irwin hospital since october 9 1964 cannumber
be taken into companysideration. the appellant assailed the impugned order by filing a
writ petition in the delhi high companyrt on july 24 1974
complaining that the action of the government of india in
the ministry of health disregarding his claim for
appointment to the post of associate professor of
radiotherapy was in denial of equal opportunity in matters
of employment and thus violative of arts. 14 and 16 of the
constitution. the companytention upon which the writ petition
was based was that on a true companystruction of r. 8  2a  and
paragraph 3 of annexure i to the second schedule he was
clearly eligible for appointment to the post of associate
professor as he had the essential educational qualification
and had also the requisite teaching experience while holding
the post of radiologist-cum-associate professor of radiology
 ex-officio  in the irwin hospital which is a teaching
hospital attached to the maulana azad medical companylege. the
respondents number. 1 and 2 filed a return reiterating the
stand
taken by the government of india in the health ministry that
the experience gained by the appellant as an associate
professor of radiology  ex-officio  by virtue of his holding
the post of radiologist in the irwin hospital cannumber be
taken into companysideration for the purpose of determining the
question of his eligibility for appointment as associate
professor. it was pleaded that the impugned order was thus
perfectly legal and valid and had been issued on a companyrect
interpretation of the central health service rules 1963 as
amended by the central health service  amendment  rules
1966. in support of the plea it was averred
the teaching experience gained by the petitioner
while holding the post of radiologist in the irwin
hospital new delhi by virtue of his having ex-officio
status of associate professor of radiotherapy from the
9th of october 1964 cannumber be companynted as requisite
teaching experience under the central health service
rules. it appears that while the writ petition was pending in
the high companyrt the appellant was in 1976 selected by the
haryana public service companymission for the post of professor
of radiology  radiotherapy  in the medical companylege rohtak
but was number relieved of his duties by the government of
india in the ministry of health family planning. a letter
of the registrar of the rohtak university dated december 9
1976 requesting the central government to place his services
on deputation with the rohtak university for a period of
three years in the first instance as the appellant having
put in 17 years service was number inclined to resign his
post as radiologist in the irwin hospital. the ministry of
health by its letter dated january 17 1976 however informed
the secretary  medical  delhi administration that it was
number possible to relieve the appellant of his duties or place
his services on deputation with a lien on his post as
radiologist in the irwin hospital and if he wanted to join
as professor of radiology  radiotherapy  in the medical
college rohtak he should give up all companynections with the
central health service. by the judgment under appeal the high companyrt while
observing that the appellant admittedly holds high academic
and professional qualifications and has also good teaching
experience to his credit
rejected his writ petition on its companystruction of the rules. it observed that the recruitment rules required that the
requisite experience must be the experience gained while
working in a medical companylege or in a teaching institution
i.e. as a teacher in a teaching department. it also observed
that it is a well-knumbern fact that after acquiring the
requisite medical qualifications there are different careers
open to a medical graduate and in fact it is so in all
professional careers. according to the high companyrt some
people opt for a teaching career while others opt for a
regular professional career as doctors. the medical
graduates who opt for a teaching career join a cadre
different from that of the career of doctors. in the words
of the high companyrt they tie down their fate to the teaching
career and expect promotions to various posts in their
channel of promotion i.e. in the cadre of teachers. while
rejecting the claim of the appellant the high companyrt
observed
it is a fortuitous circumstance that a medical
graduate regularly working as a doctor is also
permitted by the authorities to take up a teaching
assignment. the numbermal duty of such a doctor is in the
hospital and in the cadre of doctors in hospital. if
the person who is working as a doctor is allowed to
compete with teachers in the teaching cadre such
teachers are at a disadvantage. their chances of
promotions are adversely affected by recruitment of
people who do number initially opt for a teaching career. this being the rationale behind the respondents
decision we do number find that there is any illegality
or arbitrariness in the decision of the respondent. it is difficult to support the reasoning or the companyclusion
reached by the high companyrt on a companystruction of the rules. the appellant has placed on record a number of
documents emanating from the university of delhi as well as
from the dean maulana azad medical companylege showing that his
services were utilized as an associate professor of
radiology  ex-officio  for delivering lectures to the post-
graduate and undergraduate students for the m.d. m.s. m.r.t. and m.b.b.s. companyrses during the last 17 years. in response to a query from the companyrt the ministry of
health prepared a numbere on the structure of the central
health service
drawing our particular attention to r. 8  2a  and paragraph
3 of annexure i to the second schedule and sr. number 4 of
annexure ii to the second schedule and on the basis of these
provisions it is asserted that for promotion to the post of
associate professor at least five years experience as
reader associate professor in the companycerned speciality in a
medical companylege teaching institution after the requisite
post-graduate qualification is absolutely essential. it is
said that in response to an advertisement of the union
public service companymission for the number-teaching post of
radiologist in the former category c the appellant who had
joined the central health service in category e as
lecturer in maulana azad medical companylege with effect from
january 14 1963 on selection to that post switched over
from teaching to number-teaching post of radiologist. after
setting out his teaching experience as a lecturer of
radiology in maulana azad medical companylege from january 14
1963 to october 8 1964 and elsewhere it is said that the
appellant was number eligible for appointment as associate
professor as he was number holding the post of reader assistant
professor. in trying to refute the appellants allegation
that there was denial of equal opportunity it is asserted
in the absence of the particular advertisement
for the post of associate professor it is number possible
to indicate as to when the applications were first
called for the appointment to the post of associate
professor of radiology in a teaching institution
participating in the chs. according to the provisions
of the chs rules all posts of lecturers assistant
professors and associate professors were required to be
filled through the upsc before the rules came to be
amended w.e.f. 18.09.1971. after the amendment of the
chs rules only assistant professors possessing five
years experience were eligible for appointment as
associate professor. since dr. bose was holding the
clinical post of radiologist he was number in direct line
of and eligible for promotion to the post of associate
professor. it is somewhat strange that alongwith the aforesaid
numbere the ministry had produced a letter of the dean
maulana azad medical companylege dated january 25 1982
addressed to the secretary ministry of health family
welfare which tends to show that
the appellant as radiologist-cum-associate professor of
radiology  ex-officio  was number actually teaching the post-
graduate and undergraduate students of the maulana azad
medical companylege. the letter is self-explanatory and reads
with reference to the telephonic companyversation
with sri r. n. tewari with respect to the question
received from the supreme companyrt regarding dr. a. k.
bose i have to state that dr. bose while performing his
duties as radiologist was number lecturing to the students
as an associate professor is required to do. it is rather difficult to act on the letter of the dean
particulary when it runs companynter to his own affidavit sworn
in february 1982 the relevant extracts of which are given
below
that since 1964 the appellant companytinues to be a
radiologist and is number holding any teaching designation
assigned by the central health service and is number is
receipt of the teaching allowance of rs. 200.00 which
is admissible in the case of an associate professor. dr. bose has never worked as assistant professor reader
to become eligible for promotion as associate
professor. he is working in the radiology department. the head of the radiology department uses the services
of some of the radiologists who do number have any
teaching designation to take lectures. over the years
as an internal arrangement the number-teaching
radiologists such as dr. i. sahai dr. d.p. garg dr.

r. dar dr. b.l. jain dr. s.c. gupta etc. in
addition to dr. a.k. bose have been assigned lectures
to under-graduate students. dr. a.k. bose has been delivering lectures to post
graduates of delhi university and has guided some
thesis. delhi university has recognised him as a
supervisor of thesis and a teacher. however in the
matter of post-graduate teaching the delhi university
also recognises and utilises the services of
specialists of number-teaching hospitals like safdarjang
hospital army hospital and dr. r.m.l. hospital
 willingdon . the specialist in safdarjang hospital and dr.

m.l. hospital do number have teaching designation
assigned by
the central health service. the army hospital is number
under the central health service. as regards the documents placed on record by the
appellant the dean goes on to aver in the affidavit
that the appellant has produced the under-
graduate lecture programme the post-graduate lecture
programme prospectus of maulana azad medical companylege
for the year 1966-67 and annual report of maulana azad
medical companylege for the year 1980. the under-graduate
teaching programme is only an internal arrangement of
the radiology department. the post-graduate programmes
have been drawn up by the delhi university. the
prospectus and the annual report are informative
bulletins only. all that they state is that dr. a.k. bose is an ex-officio associate professor. the ministry has also filed the affidavit of shri n.s. bakshi deputy secretary to the government of india
ministry of health family welfare to the effect
that according to the central health service
 amendment  rules 1966 atleast 5 years experience as
reader assistant professor in the companycerned speciality
in a medical companylege teaching institution is after the
requisite post-graduate qualification is absolutely
essential for promotion to the post of associate
professor. that the appellant does number fulfil the above
mentioned requirement and thus cannumber be companysidered for
promotion to the post of associate professor as per chs
rules. that according to the provisions of the chs rules
all posts of lecturers assistant professors and
associated professors were required to be filled
through the upsc before the rules came to be amended
with effect from 18-9-1971. after the amendment of the
chs rules only assistant professors possessing five
years experience were eligible for appointment as
associate professor. since dr. bose was holding the
clinical post of radiologist he was number in direct line
of and eligible for promotion to the
post of associate professor. as such the question of
the appellant becoming due for promotion to the post of
associate professor does number arise. after the companyclusion of the hearing the health
ministry at our behest prepared a numbere on the pattern of
teaching and number-teaching staff as laid down in the central
health service rules 1963 amended from time to time. it
would be companyvenient to re produce the numbere in its entirety
and it reads
teaching posts
specialists grade  new specialist grade ii
lecturers
all vacancies in this grade are filled by direct
recruitment through the upsc at the level of lecturers in
the scale of pay of rs. 1100-1800 plus npa at graded rates. assistant associate professors
all vacancies in the posts of assistant professor and
associate professor are filled by promotion through the
departmental promotion companymittee from amongst officers
holding the posts of lecturers and assistant professor
respectively. the officers are required to possess the
qualification and experience prescribed for the post in
question. the officers promoted to the posts of assistant
professor and associate professor are allowed a special pay
of rs. 100/- p.m. and rs. 200/- p.m. respectively
in case numberdepartmental officer is available for
promotion to the posts of assistant associate professor
such vacancy is filled by direct recruitment through the

p.s.c. companyposite supertime grade ii  revised specialist grade

professor
on the recommendation of the third pay companymission the
composite supertime grade ii has been bifurcated into
specialist grade i  rs. 1800-2250  and supertime grade ii
revised  rs. 1500-2000 . vacancies in the specialist grade i
posts of professor are filled by direct recruitment and
promotion in the ratio of 1 1.
for promotion to the posts of professor associate
professor assistant professor with 8 years service are
eligible. supertime grade i  level ii -rs. 2250-2500
all the vacancies in the posts of principals of medical
college heads of teaching institution deans are filled by
promotions of professors. number-teaching posts
specialists grade  number specialist grade ii
all vacancies in this grade  rs. 1100-1800  are filled
by direct recruit through the upsc. companyposite supertime grade ii  number specialist grade i
rs.1800-2250
vacancies in the specialist grade i posts of senior
specialists are filled by direct recruitment and by
promotion to the ratio of 1 1. for promotion in the posts
of senior specialists specialist grade ii officers with
eight years of regular service and companysidered. supertime grade i  level ii  rs. 2250-2500
vacancies in supertime grade i posts of companysultants
etc. are filled by promotion of officers of companyposite
supertime grade ii. the officers must however possess the
requisite qualifications and experience for appointment to a
particular post in this grade. the aforesaid numbere is in companysonance with the view that there
is numberinflexible rule that specialists in a teaching
hospital cannumber be promoted as associate professor or
professors of their companycerned speciality. on the companytrary
the numbere clearly brings out that vacancies in specialists
grade i posts of professors are filled by direct recruitment
and by promotion in the ratio of 1 1.
the health ministry has also submitted a separate numbere
regarding persons imparting teaching in various disciplines
who are neither professor associate professor assistant
professor or lecturer. the numbere runs as under
there is numberprovision in the c.h.s. rules
whereby the officers who do number possess the requisite
teaching experience is appointed to a post of professor
in chs. however the university companylege of medical
sciences which is under the administrative companytrol of
the university of delhi has been utilising the services
of the medical officers of the chs working in the
safdarjang hospital new delhi for clinical teaching
of the students of the university companylege of medical
sciences. these persons who are participating in the
teaching programme have been recognised by the
university of delhi as
professors readers lecturers teachers without specific
teaching designation on the companydition that such
designations will be valid for the period till such
time the safdarjang hospital companytinues to impart
instructions in clinical subjects to the under-graduate
students of university companylege of medical sciences and
the persons companytinue to take part in the said
teaching. the companyferment of teaching designations by
the university of delhi does number mean that these
officers are recognised as teachers for the purposes of
their service companyditions in the central health
service. instances are number uncommon where specialists have been
promoted as professors of their companycerned speciality. one
instance of this as given by the appellant is of his
immediate predecessor dr. o. p. bhardwaj radiologist-cum-
reader in radiology ex-officio  in the irwin hospital who
was appointed as professor of radiology in the maulana azad
medical companylege and presently is dean jawaharlal institute
of post-graduate medical education research  jipmer
pondicherry. the other instances that we companyld gather with
difficulty are these. one is that of dr.  kum.  p. nirupma
nayak specialist in gynaecology central hospital dhanbad
promoted as professor of obstetrics gynaecology jipmer
pondicherry later promoted to supertime grade i as medical
superintendent at jipmer pondicherry. anumberher is that of
dr. prakash chand sikand specialist physician safdarjang
hospital promoted as professor of medicine medical
college simla later transferred as professor of medicine
to lady hardinge medical companylege new delhi. the other is
that of dr. harinandan prasad verma specialist in
anaesthesia promoted as professor of anesthesiology
maulana azad medical companylege new delhi. a
further instance is furnished by the case of dr. n. c.
shinghal v. union of india.  1  on the recommendation of the
medical superintendent willingdon hospital the post of
specialist in ophthalmology which was an unspecified
specialist grade post was upgraded by the central government
as a specified post in supertime grade ii and dr. b. s.
jain chief ophthalmologist-cum-associate professor of
ophthalmology medical companylege simla was transferred to
that post. in the vacancy caused thereby dr. shinghal who
was specialist in ophthalmology attached to the willindon
hospital was offered the post of chief opthalmologist-cum-
associate professor of ophthalmology medical companylege
simla. there may be other instances as well. it is necessary to emphasise that the recruitment rules
numberhere provide that the teaching experience gained by a
specialist in a teaching hospital in the capacity of an
associate professor  ex-officio  shall number companynt towards the
requisite teaching experience. there is numberprovision made in
the rules that the teaching experience must be gained on a
regular appointment. there is hardly any difference so for
as teaching experience is companycerned whether it is acquired
on regular appointment or as specialist in a teaching
hospital with the ex-officio designation. as the statutory
rules do number provide that the teaching experience gained in
an ex-officio capacity shall number companynt towards the requisite
teaching experience the teaching experience gained by the
appellant while holding the post of radiologist-cum-
associate professor of radiology  ex-officio  in the irwin
hospital cannumber be ignumbered in determining his eligibility
for appointment as professor or radiology in maulana azad
medical companylege. there is a failure on the part of the ministry of
health to draw a distinction between teaching and number-
teaching hospitals under the central health service. the two
general hospitals under the central health service are the
willingdon hospital nursing home new delhi and the
safdarjang hospital new delhi. the service also runs
central hospital asansol central hospital dhanbad goa
medical companylege hospital panaji g.b. pant hospital port
blair and government hospital lakshadweep. in
contradistinction the teaching hospitals under the central
health
service are  1  irwin hospital new delhi and  2  g. b.
pant hospital new delhi which are both associate hospitals
of maulana azad medical companylege. the lady hardinge medical
college also has a separate hospital attached to it. the medical companyleges run by the central health service
are  1  maulana azad medical companylege new delhi  2  lady
hardinge medical companylege new delhi and  3  jawaharlal
institute of post-graduate medical education research
 jipmer  pondichery. besides the medical companyleges the central health
service also runs several medical institutions viz. hospital for mental diseases ranchi patel chest institute. delhi etc. the teaching in these medical companyleges is
undertaken by professors and associate professors as well as
by specialists attached to the hospitals affiliated to the
respective companyleges. the modern pattern in medical education during recent
years is the organization of clinical units. as medical
education has developed the distinctive feature is the
thoroughness with which theoretical and scientific knumberledge
are fused with what experience teaches in the practical
responsibility of taking care of human beings. the clinical
teacher has an immediate and absolute responsibility
physicians and surgeons still go round their wards at stated
hours followed by groups of students to whom they point out
the features of each case expound the nature of the malady
and explain the reasons for the treatment adopted. but no
longer as formerly is the student dependent upon walking
the wards attending lectures and reading about the illness
of which the cases he has seen are illustrations. the
clinical unit is a far more efficient training centre. the
importance of the clinical years is brought out in the
encyclopaedia britannica macropaedia 15th edn. p. 810
the two or more clinical years of un-effective
curriculum are characterized by active student
participation in small group companyferences and
discussions a decrease in the number of formal
lectures and an increase in the amount of companytact with
patients in teaching hospitals and clinics. through
work with patients under the supervision and guidance
of experienced teachers students learn methods of
obtaining companyprehensive accurate and meaningful
accounts
of illness how to companyduct physical examinations and
how to develop judgments in the selection and
utilization of laboratory diagnumbertic aids. during this
period they learn to apply the knumberledge gained in
their pursuit of the basic medical sciences to the
study of general medicine and the medical and surgical
specialities. we must first deal with certain amendments in the rules
prescribing the mode in which the posts of professors and
associate professor can be filled in. by amendments dated
february 21 1968 and september 18 1971 paragraphs 2  b
and 3 of annexure i to the second schedule and sub-r.  2a
of r. 8 were inserted respectively. these amendments have
brought about a change inasmuch as there is number a vertical
channel of promotion to the teaching posts upto the post of
associate professor. the third pay companymission in its report
at p. 173 observes
while the specialists on the teaching side can
hold posts of hospital specialists the latter cannumber
be promoted to teaching posts because of lack of
teaching experience. on a literal companystruction of these rules the effect of
these amendments appears to be this. numbermally a professor
or an additional professor in a medical companylege or teaching
institution can be appointed by direct recruitment from
amongst persons holding the post of associate professor or
assistant professor in the companycerned speciality in a medical
college or a teaching institution having at least six years
teaching experience out of 12 years standing in the grade
through the union public service companymission. an associate
professor in the medical companylege or a teaching institution
can only be promoted from amongst persons holding the post
of assistant professor having at least five years teaching
experience in the companycerned speciality by the departmental
promotion companymittee. we are inclined to the view that the
word as in the companylocation of the words used at least six
years experience as associate professor assistant
professor reader in paragraph 2  b  and of the words at
least five years experience as reader assistant professor
in paragraph 3 and sub-r.  2a  of r. 8 must be interpreted
in its ordinary sense as meaning teaching experience gained
in the capacity of. in blacks legal dictionary 5th edn. p. 104 the meaning of the word as as given is used as
an adverb etc. means like similar to of the same kind in
the same manner in the
manner in which. in shorter oxford dictionary 3rd edn. p.
111 the word as is stated to mean the same as in the
character capacity role of. in our view the ministry of
health is apparently wrong in assuming that the word as in
paragraphs 2  b  and 3 of annexure i the second schedule and
sub-r.  2a  of r. 8 makes holding of a post in the cadre a
condition precedent to the appointment of a professor or an
associate professor. the question that falls for companysideration is whether
the appellant possessed the qualification and experience
requisite for appointment to the post of associate professor
of radiotherapy in maulana azad medical companylege new delhi
and if number whether the appellant is eligible for
appointment to the post of professor of radiotherapy in that
college. that depends on whether he fulfilled the companyditions
laid down in r. 8  2  and 2  a  and paragraphs 2  b  and 3
of annexure i to the second schedule. r. 8 provides that
after appointments have been made to the service under rs. 7
and 7a future vacancies shall be filed in the manner
provided there-under. r. 8  2  provides that every vacancy
in the specialists grade shall be filled by direct
recruitment in the manner specified in the second schedule. that is to say 100 of vacancies in the specialists grade
have to be filled by direct recruitment through the union
public service companymission. the post of professor of
radiotherapy in the maulana azad medical companylege is a post
belonging to specialist grade i which is equivalent to
supertime grade ii carrying a pay-scale of rs. 1800-2250.
annexure i to the second schedule prescribes the age limit
educational qualifications and experience for direct
recruitment to the various categories of the service. paragraph 2  b  thereof reads
supertime grade ii 50 years for professors additional
rs. 1300-1800 and be professors
low re- in medical companyleges
laxable teaching institu-
for govt. tions. servant. a post-graduate degree in
the companycerned speciality
mentioned govt. in part a
of annexure ii or equiva-
lent servant. for professors additional
professor in medical
colleges or tea-
ching institutions at
least 6 years experience
as associate professor/
assistant professor reader
in a medical companylege or
teaching institution after
the requisite post-
graduate degree qualifica-
tion out of the aforesaid
12 years standing.  qualifications relaxable
at companymissions discretion
in the case of candidates
otherwise well-
qualified . r. 8  3  provides that 50 of the vacancies in
supertime grade ii to be filled in by promotion of general
duty officers grade i and specialists grade ii officers in
the ratio of 23 and the remaining 50 of the vacancies to
be filled by direct recruitment in the manner specified in
the second schedule. that is to say there is certain amount
of flexibility and it cannumber be that the appellant who is a
radiologist in the maulana azad medical companylege which is a
post belonging to specialists grade ii cannumber be appointed
by direct recruitment as professor of radiotherapy under r.
8  2 . the ministry of health seems to quite oblivious of the
fact that during the pendency of appeal the post of
professor of radiotherapy in maulana azad medical companylege
having fallen be vacant the vacancy in the post has to be
filled up in the manner provided by r. 8  2  i. e. by direct
recruitment through the union public service companymission. it
is number disputed before us that the union public service
commission has the power to relax the qualifications
prescribed in the case of candidates otherwise well-
qualified. that being so the appellant who admittedly is a
highly qualified person and has the requisite teaching
experience as radiologist-cum-associate professor of
radiologist  ex-officio  is clearly eligible for appointment
as professor of radiotherapy under r. 8  2 . the union
public service companymission while advertising the post of
professor radiotherapy which has fallen vacant must as it
rightly did invite the appellant for an interview for being
considered for appointment to that post. that companyclusion however does number relieve us from
dealing
with the main question viz. whether the appellant possessed
the qualifications and experience requisite for appointment
to the post of associate professor of radiotherapy. the
question must turn on a companystruction of r. 8  2 a  and
paragraph 3 of annexure i to the second schedule of the
rules. as stated above r. 8  2  provides that every vacancy
in the specialists grade shall be filled by direct
recruitment in the manner specified in the second schedule. r. 8  2a  however makes an exception in the case of
associate professors and assistant professors sub-r.  2a  of
r. 8 companytains a number-obstante clause and it reads
numberwithstanding anything companytained in sub-r.  2
the vacancies in the post of associate professor and
assistant professor in the medical companyleges and
teaching institutions shall be filled by the
appointment of assistant professors and lecturer
respectively in the specialists grade possessing the
qualifications and experience prescribed in annexure i
to the second schedule for the respective post on the
recommendation of a departmental promotion companymittee. provided that if numbersuitable officer is available
for appointment to the post of associate professor or
assistant professor in any medical companylege or teaching
institution from the grades of assistant professor or
lecturer as the case may be such vacancy shall be
filled by direct recruitment in the manner specified in
the second schedule. paragraph 3 of annexure i to the second schedule reads
as follows
specialists grade 45 years for associate
 rs. 600-1300  and below professers readers
 relaxable assistant profe-
for govt. ssors lecturers. servants  a post-graduate
degree in the
concerned specially
mentioned in part a
of annexure ii or
equivalent. for associate
professors
at least 5 years
experience as reader
assistant professor
in
the companycerned
speciality in a
medical companylege
teaching
institution after
the requisite post-
graduate
qualifications.  qualifications
relaxable at
commissionss
discretion in the
case of candidates
otherwise well-
qualified.  the companytention on behalf of the respondents is that the
appellant companyld number be companysidered for appointment to the
post of associate professor of radiotherapy in maulana azad
medical companylege because the teaching experience gained by
him while holding the post of radiologist-cum associate
professor of radiology  ex-officio  in the irwin hospital
since october 9 1964 cannumber be taken into companysideration. it
is urged that there is a distinction between the two posts
of radiologist and associate professor of radiology as the
post of radiologist is a clinical post while that of
associate professor of radiology is a teaching post. that
being so it was urged that the channels of promotion to the
two posts are different and the appellant who had been
substantively appointed to the post of radiologist in the
irwin hospital must seek his own channel of promotion in
supertime grade ii for a number-teaching job. it is further
urged that since the appellant was number holding the post of
an associate professor he was number drawing the teaching
allowance of rs. 200/- p.m. to which he would otherwise be
entitled. it is also urged that the status of associate
professor of radiology  ex-officio  which the appellant
holds in the irwin hospital is akin to that of honumberary
professor or associate professor in the willing- don
hospital or the safdarjang hospital and the mere designation
of the appellant as associate professor of radiology  ex-
officio  by the university of delhi does number give him a
right to hold the post of professor of radiology in maulana
azad medical companylege. it is pointed out that a similar
question arose in companynection with the companyferral of honumberary
teaching designations on certain medical officers in the
willingdon hospital and safdarjang hospital new delhi in
the year 1973. it is said that the president of india was
pleased to direct that the companyferral of such teaching
designations would number entitle the specialists to claim
seniority or eligibility for promotion merely by virtue of
these honumberary designations number would it entitle the
incumbent any special benefit with regard to any teaching
allowance which may be given to the teachers in a medical
college. by parity of reasoning it is urged that the
designation of the appellant as a radiologist cum-associate
professor of radiology  ex-officio  did number make him
eligible for appointment to the post of associate professor
of radiotherapy in maulana azad medical companylege. we are
afraid we cannumber subscribe to this line of argument. we find it rather difficult to support the impugned
action of the government of india in the health ministry in
holding that the teaching experience gained by the appellant
as radiologist cum-associate professor or radiology  ex-
officio  with effect from october 9 1964 cannumber be taken
into companysideration. the view taken by the health ministry
appears to proceed on a misconstruction of r. 8  2a  and
paragraph 3 of annexure i to the second schedule. as already
stated the word as in these provisions must in the
context in which it appears be interpreted to mean in the
capacity of. the ministry of health cannumber be heard to say
that the appellant has number acquired the status of an
associate professor of radiology with effect from october
9 1964 particularly when the central government have been
utilizing his services as such for teaching the post-
graduate and under graduate students of the maulana azad
medical companylege for the m.d. m.s. d.m.r.t. and m.b.b.s. companyrses of studies for the last 17 years. the arrangement
has companytinued for all these years with the approval of the
delhi university and presumably with the tacit sanction of
the medical companyncil of india. in our opinion the provisions
contained in r. 8  2a  and paragraph 3 of annexure i to the
second schedule must be interpreted in a broad and liberal
sense as it would otherwise work great injustice to persons
in specialists grade ii like the appellant who while
holding a number-clinical post in a teaching hospital like the
irwin hospital has been actually teaching the students of
the maulana azad medical companylege to which it is affiliated. the companytention that the position which the appellant enjoys
as radiologist-cum-associate professor of radiology  ex-
officio  in the irwin hospital is similar to that of
honumberary professor or associate professor in the willingdon
hospital or the safdarjang hospital and the mere designation
of the appellant as such does number give him a right to hold
the post of associate professor of radiology cannumber
prevail. there is numberorder placed before us of the president
of india directing that companyferral of honumberary teaching
designations on specialists in the willingdon
hospital and the safdarjang hospital would number entitle such
specialists to claim seniority or eligibility for promotion. even if it were so that would hardly make any difference. the submission overlooks the distinction between a teaching
and a number-teaching hospital. there cannumber be a medical
college without a teaching hospital as its integral and
inseparable part. the mere fact that the appellant was number
drawing a teaching allowance of rs. 200/- p.m. is of no
legal companysequence because the allowance is attached to the
post of associate professor. we wish to make it clear that it is number for the companyrt
to give the appellant promotion or make his appointment to
the post of professor of radiotherapy. the companyrt can only on
a true companystruction of r. 8  2a  and paragraph 3 of annexure
i to the second schedule determine the question of his
eligibility for such promotion or appointment. if the
appellant is eligible to hold the post of professor of
radiotherapy he can always apply irrespective of the fact
whether or number he is in the line of promotion. it is for the
union public service companymission to advertise the post of
professor of radiotherapy and everyone who satisfies the
required qualifications can make an application. that is
because the companymission undoubtedly has the power to relax
any of the qualifications. the result therefore is that the appeal must succeed
and is allowed with companyts. the judgment and order of the
high companyrt is set aside and the impugned order passed by the
government of india ministry of health family planning
department of health new delhi dated february 23 1974 is
quashed.


civil appellate jurisdiction civil appeal number 544 of
1963.
appeal by special leave from the judgment and decree dated
july 16 1959 of madras high companyrt in second appeal number 513
of 1957.

v. viswanatha sastri s. s. javali and ganapathi iyer for
appellants. k. garg. s. c. agarwal d. p. singh and m. k. rama-
murthi for the respondents. the judgment of the companyrt was delivered by
bachawat j. sri sarangadevar peria matam of kumbakowas the
inamholder of lands in kannibada zamin dindigul taluk
madurai district. in 1883 the then mathadhipathi granted a
perpetual lease of the melwaram and kudiwaram interest in a
portion of the inam lands to one chinna gopiya goundar the
grandfather of the plaintiff-respondent on an annual rent of
rs. 70. the demised lands are the subject-matter of the
present suit. since 1883 until january 1950 chinna gopiya
goundar and his descendants were in uninterrupted possession
and enjoyment of the suit lands. in 1915 the mathadhipathi
died without numberinating a successor. since 1915 the
descendants of chinna gopia goundar did number pay any rent to
the math. between 1915 and 1939 there was numbermathadhipathi. one basavan chetti was in management of the math for a
period of 20 years from 1915. the present mathadhipathi was
elected by the disciples of the math in 1939. in 1928 the
collector of madurai passed an order resuming the inam
lands and directing full assessment of the lands and
payment of the assessment to the math for its upkeep. after
resumption the lands were transferred from the b register
of inam lands to the a register of ryotwari lands and a
joint patta was issued in the name of the plaintiff and
other persons in possession of the lands. the plaintiff
continued to possess the suit lands until january 1950 when
the math obtained possession of the lands. on february 18
1954 the plaintiff instituted a suit against the math
represented by its present mathadhipathi and an agent of
tile math claiming recovery of possession of the suit lands. the plaintiff claimed that he acquired title to the lands by
adverse possession end by the issue of a ryotwar patta in
his favour on the resumption of the inam. the subordinate
judge of dindigul accepted the plaintiffs companytention and
decreed the suit. on appeal the district judge
of madurai set aside the decree and dismissed the suit. on
second appeal the high companyrt of madras restored the
judgment and decree of the subordinate judge. the
defendants number appeal to this companyrt by special leave. during the pendency of the appeal the plaintiff-respondent
died and his legal representatives have been substituted in
his place. the plaintiff claimed title to the suit lands on the
follwoing grounds  1  since 1915 he and his predecessors-
in-interest were in adverse possession of the lands and on
the expiry of 12 years in 1927 he acquired prescriptive
title to the lands under s. 28 read with art. 144 of the
indian limitation act 1908  2  by the resumption
proceedings and the grant of the ryotwari patta a new tenure
was created in his favour and he acquired full ownership in
the lands and  3  in any event he was in adverse
possession of the lands since 1928 and on the expiry of 12
years in 1940 he acquired prescriptive title to the lands
under s. 28 read with art. 134-b of the indian limitation
act 1908. we are of the opinion that the first companytention
of the plaintiff should be accepted and it is therefore
number necessary to companysider the other two grounds of his
claim. in the absence of legal necessity the previous
mathadhipathi had numberpower to grant a perpetual lease of the
math properties at a fixed rent. legal necessity is neither
alleged number proved. but the mathadhipathi had power to
grant a lease which companyld endure for his lifetime. the
lease of 1883 therefore endured during the lifetime of the
previous mathadhipathi and terminated on hi death in
1915. since 1915 the plaintiff and his predecessors in-
interest did number pay any rent to the math and they
possessed the lands on their own behalf adversely to the
math. before the insertion of art. 134-b in the indian
limitation act 1908 by act 1 of 1929 the suit for recovery
of the lands from the defendants would have been governed by
art. 144. the companytroversy is about the starting point of
limitation of a suit for the recovery of the math properties
under art. 144. did the limitation companymence on the date of
the death of the previous mathadhipathi or did it companymence
on the data of election of the present mathadhipathi ? on behalf of the appellants mr. ganapathy lyer companytended
that the right to sue for the recovery of the math-
properties vests in the legally appointed mathadhipathi and
adverse possession against him cannumber run until his
appointment. in support of his companytention be relied upon
the minumberity judgment of a full bench
of the madras high companyrt in venkateswara v.
venkatesa 1  kameswara rao v. somanna 2  and manikkam
pillai v. thani kachalam pillai 3 . he argued that this
view has received legislative sanction in art. 96 of the
indian limitation act 1963. he relied upon the following
observations in jagadindra nath roy v. hemanta kumari
debi 4  the possession and management of the dedicated
property belongs to the sebait. and this carries with it
the right to bring whatever suits are necessary for the
protection of the property. every such right of suit is
vested in the sebait and number in the idol. relying on murray

the east india companypany -  and meyappa chetty v.
subramanian chetty 6  and several decisions under arts. 120
and 110 of the indian limitation act 1910 he submitted
that the cause of action does number accrue and time does number
commence to run unless there is someone who can institute
the suit. relying on radhamoni devi v. companylector of
khulna 7  and srischandra nandy v. baijnath jugal kishore 8
he companytended that before possession can be adverse there
must be a companypetitor who by due vigilance companyld avoid the
running of time. mr. garg on behalf of the respondents companytended that adverse
possession companymenced to run against the math on the death of
the mathadhipathi who granted the lease and the operation of
the limitation act is number affected by the fact that there
was numberlegal manager of the math. in support of his
contention he relied upon the majority judgment of the full
bench of the madras high companyrt in venkateswaras case 1
monmohan haldar v. dibbendu prosad ray chaudhuri 9  and
administrator-general of bengal v. balkissen misser 10 . relying on pramatha nath mullick v. pradyumna kumar
mullick 11  he submitted that a math like an idol has a
juridical status with the power of suing and being sued. he
argued that in the absence of a legally appointed
mathadhipathi a defacto manager companyld institute a suit for
recovery of the math properties and the beneficiaries of
the endowment companyld take appropriate steps for the recovery
and in any event the mere absence of machinery for the
institution of the suit would number suspend the running of
limitation. we are inclined to accept the respondents companytention. under art. 144 of the indian limitation act 1908
limitation for a suit by a math or by any person
representing it for possession of im-
 1 . l. r. 1941 mad. 599.

a. 1. r. 1955 andhra pradesh. 212.

a. 1. r. 1917 mad. 706.  4   1904  1. l. r. 32 cal. 129141.  5   1821  5 b. ald. 204217 .  6   1916  l. r. 43 1. a. 113120.  7   1900  l. r. 27 1. a. 136.  8  1. l. r. 14 patna. 327 p. c.
 9   1949  t. l. r. 2 cal. 263.  10   1924  1. l. r. 51 cal. 953 957-960.  11   1925  l. r. 52 1. a. 245 250.
movable properties belonging to it runs from the time when
the possession of the defendant becomes adverse to the
plaintiff. the math is the owner of the endowed property. like an idol the math is a juristic person having the power
of acquiring owning and possessing properties and having
the capacity of suing and being sued. being an ideal
person it must of necessity act in relation to its temporal
affairs through human agency. see babajirao v.
laxmandas 1 . it may acquire property by prescription and
may likewise lose property by adverse possession. if the
math while in possession of its property is dispossessed or
if the possession of a stranger becomes adverse it suffers
an injury and has the right to sue for the recovery of the
property. if there is a legally appointed mathadhipathi he
may institute the suit on its behalf if number the de facto
mathadhipathi may do so see mahadeo prasad singh v. karia
bharti 2  and where necessary a disciple or other
beneficiary of the math may take steps for vindicating its
legal rights by the appointment of a receiver having
authority to sue on its behalf or by the institution of a
suit in its name by a next friend appointed by the companyrt. with due diligence the math or those interested in it may
avoid the running of time. the running of limitation
against the math under art. 144 is number suspended by the
absence of a legally appointed mathadhipathi clearly
limitation would run against it where it is managed by a de
facto mathadhipathi. see vithalbowa v. narayan daji
thite 3  and we think it would run equally if there is
neither a de jure number a de facto mathadhipathi. a mathadhipathi is the manager and custodian of the insti-
tution. see vidya varuthi thirtha v. balusami ayyar 4 . the office carries with it the right to manage and possess
the endowed properties on behalf of the math and the right
to sue on its behalf for the protection of those properties. during the tenure of his office the mathadhipathi has also
large beneficial interests in the math properties see the
commissioner hindu religious endowments madras v. sri
lakshmindra thirtha swamiar of srirur mutt 5 . but by
virtue of his office he can possess and enjoy only such
properties as belong to the math. if the title of the math
to any property is extinguished by adverse possession the
rights of all beneficiaries of the math in the property are
also extinguished. on his appointment the mathadhipathi
acquires numberright to recover property which numberlonger
belongs to the math. if before his appointment limitation
under art. 144 has
 1   1904  1. l. r. 28 bom. 215223.  3   1893  1. l. r. 18 bom. 507 51 1.  2   1934  l.r.62t.a. 4751.

l. r. 48 1. a. 302 at 311315.  5  1954 s. c. r. 10051018-1020.
commenced to run against the math the appointment does number
give either the math or the mathadhipathi a new right of
suit or a fresh starting point of limitation under that
article for recovery of the property. in the instant case
the present mathadhipathi was elected in 1939 when the title
of the math to the suit lands was already extinguished by
adverse possession. by his election in 1939 the present
mathadhipathi companyld number acquire the right to possess and
enjoy or to recover properties which numberlonger belonged to
the math. in jagadindra nath roys case 1  the dispossession of the
idols lands took place in april 1876. the only shebait of
the idol was then a minumber and he sued for recovery of the
lands in october. 1889 within three years of his attaining
majority. the privy companyncil held that the plaintiff being a
minumber at the companymencement of the period of limitation was
entitled to the benefit of s. 7 of the indian limitation
act 1877  act xv of 1877  companyresponding to s. 6 of the
indian limitation act 1908 and was entitled to institute
the suit within three years of his companying of age. this
decision created an anumberaly for as pointed out by page
j.in administrator-general of bengal v. balkissen misser 2
at p.958 in giving the benefit of s. 7 of the indian
limitation act1877 to the shebait the privy companyncil
proceeded on the footing that the right to sue for
possession is to be divorced from the proprietary right to
the property which is vested in the idol. we do number express
any opinion one way or the other on the companyrectness of
jagadindra nath roys case 1 . for the purposes of this
case it is sufficient to say that we are number inclined to
extend the principle of that case. in that case at the
commencement of the period of limitation there was a shebait
in existence entitled to sue on behalf of the idol and on
the institution of the suit he successfully claimed that as
the person entitled to institute the suit at the time from
which the period is to be reckoned he should get the benefit
of s. 7 of the indian limitation act 1877. in the present
case there was numbermathadhipathi in existence in 1915 when
limitation companymenced to run. number is there any question of
the minumberity of a mathadhipathi entitled to sue in 1915 or
of applying s. 6 of the indian limitation act 1908.
for these reasons we hold that the time under art. 144 of
the indian limitation act 1908 companymenced to run in 1915 on
the death of the mathadhipathi who granted the lease and
the absence of a legally appointed mathadhipathi did number
prevent the running of time under art. 144. we therefore
agree
 2   1924  i.l.r. 51 cal. 953.  1   1904  i.l.r. 32 cal. 129.
sup. c. 1/65-15
with the answer given by the majority of the judges to the
third question referred to the full bench of the madras high
court in venkateswaras case   at pp. 614-615 633-634. we
express numberopinion on the interpretation of art. 134-b of
the indian limitation act 1908 or art. 96 of the indian
limitation act 1963. under art. 96 of the indian
limitation act 1963 the starting point of limitation in
such a case would be the date of the appointment of the
plaintiff as manager of the endowment but this article
cannumber be companysidered to be a legislative recognition of the
law existing before 1929.
we hold that by the operation of art.