PETITIONER: <NAME> & ORS. Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 22/08/2000 BENCH: D.P.Mohapatro, <NAME>, <NAME> JUDGMENT:

PATTANAIK,J.

These writ petitions filed under Article 32 of the Constitution by the officers of <ORG>, some by the promotees and others by direct recruits, in-fact, raise the question as to whether in determining inter-se seniority between the promotees and the direct recruits, the guidelines and directions given by this <ORG> in the case of <ORG> vs. <ORG>, reported in 1985(1) SCR 351, have been duly followed or not? It is rather unfortunate that on an erroneous impression that the judgment in <NAME> case is under consideration before <ORG>, these writ petitions were directed to be placed before <ORG>, resulting thereby inordinate delay in disposal of the matters, which in turn, must have adversely affected the career of several persons. At the beginning of the hearing of these writ petitions, on being asked, the counsel appearing for all the parties, could not indicate any decision where the correctness of judgment of this <ORG> in <NAME> case was under consideration, though in one of these writ petitions filed by a direct recruit, namely Writ Petition No. 1252/90, Mr. <NAME>, the learned senior counsel for the petitioner, challenged the correctness of decision of this <ORG> in <NAME> case to which, we will advert at the appropriate time. Suffice it to say for the present that <NAME>, who was also a promotee to the <ORG>, filed the writ petition, claiming that since they have been working as Additional District and Session Judges, against temporary posts created by <ORG> in the cadre of Additional District & Sessions Judge, they should be treated as Members of <ORG> and the seniority should be decided on the basis of continuous length of service. The three Judge Bench, which heard the case delivered two judgments, Chief Justice <NAME> as he then was, speaking for himself & on behalf of Justice <NAME> and Justice <NAME>, giving a separate judgment. Chief Justice <NAME> in the majority judgment also indicated that the conclusion which the majority has arrived at, is not different from the one, reached by Justice <NAME>, but because of the general importance of the case and because of disagreement on the interpretation of one of the provisions of the Recruitment Rules, it was thought fit that the separate judgment should be written. The disagreement between the two judgments was on the question as to whether the Recruitment Rules, provided for any quota in the <ORG> and whether the principle of quota and rota was required to be followed for determining the inter-se seniority. Interpreting the proviso to Rule 7 of the Rules, Jusitce <NAME> came to the conclusion that Rule 7 only provides for ceiling of direct recruits by providing that in case, there were recruitment from the <ORG> as well as by promotion, in such a case, <ORG> recruits would not be more than one third of the substantive posts in the service and there is no quota as such. Justice <NAME> was of the view that Rule 8(2) proceeds on the mis-conception that there is quota fixed for direct recruits, which Rule 7 does not and Rule 8(2) cannot on plain literal meaning also be construed or interpreted to mean that it was deemed by the legislature and the rule-making body to engraft any quota. Chief Justice <NAME>, on the other hand, speaking for himself as well as on behalf of Justice <NAME>, on a construction of Rule 7 and Rule 8(2), came to hold that the proviso to Rule 7 has to be read along with Rule 8(2), since the two provisions are inter- related and their combined reading yields but one result, that the proviso prescribes a quota of one third for direct recruits. It was also held that Rule 8(2) cannot be held to be unconstitutional, merely because it reserves one third of the vacancies in the service for direct recruits and provides that the first available vacancy in the service will be filled in by a direct recruit, the next two by promotees and so on. In the majority judgment, Their Lordships also came to the conclusion that though the proviso to Rule 7 prescribes a quota of one third for direct recruits and provides for rotation of vacancies between them and the promotees, who are appointed to the service, that rule must inevitably break down when appointments to promotees are made to the Service under Rules 16 and 17. Having interpreted the provisions of Rules 7 & 8 of the Recruitment Rules, as aforesaid, their Lordships examined the different provisions of the Recruitment Rules and recorded their findings, which would be appropriate for us to enumerate for resolving the controversy in these writ petitions. On going through the detailed charts, which were filed by the promotees in <NAME> case, the <ORG> came to the conclusion:

These charts show, indisputably, that promotees who have been functioning as temporary Additional District and Sessions Judges for an unbroken period between 8 to 12 years are regarded as juniors to the direct recruits who have been appointed as Additional District and Sessions Judges much later.

The <ORG> further held:

The process of reading the Rules as parts of a connected whole does not end with Rules 7 and 8. Rules 16 and 17 are also relevant for the present purpose and have, indeed, an important bearing on the question of reservation of vacancies for direct recruits to the extent of one-third of the substantive posts in the Service.

Adverting to Rules 16 and 17 it was held:

The position which emerges from the provisions contained in Rules 16 and 17 is that it is permissible to create temporary posts in the Service and, even substantive vacancies in the Service can be filled by making temporary appointments.

Interpreting Rules 2(b) and 2(d), it was held that according to the scheme of the Rules in this case, <ORG> is a narrower body than the cadre. In interpreting Rules 2(b) and 2(d), Their Lordships held that by the definition contained in Rule 2(d), membership of the <ORG> is limited to persons, who are appointed in a substantive capacity to the <ORG>, but by reading the second part of Rule 2(b) in an extended sense, every temporary post which carries the same designation as that of any of the posts specified in the Schedule is a Cadre Post, whether such post is comprised in the <ORG> or not. Such posts and the posts specified in the Schedule will together constitute the Cadre under Rule 2(b), if an extended meaning is given to the second part of the rule. Having given such meaning to the provisions of Rules 2(b), 2(d), 7, 8, 16 and 17, the <ORG> proceeds to determine the question of seniority between direct recruits and promotees. It was then observed:

Care has, therefore, to be taken to apply the provisions of Rule 8(2) in such a manner as not to lead to the violation of the guarantee of equality and equal opportunity contained in Articles 14 and 16 of the Constitution. For that purpose, it is necessary to ascertain as to which of the promotees can be regarded as belonging to the same class as the direct recruits.

In its pursuit to ascertain as to which of the promotees can be regarded as belonging to the same class as direct recruits, the <ORG> observed: that in the matter of seniority, it is difficult to appreciate, how any distinction can be made between direct recruits who are appointed to substantive vacancies in the <ORG> on the recommendation of the High <ORG> under Rule 5(2) and the promotees, who are appointed in consultation with the High <ORG> to posts in the <ORG> under Rules 16 and 17.

While coming to the aforesaid conclusion, it was also indicated that the persons belonging to <ORG>, who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement, constitute a class which is separate and distinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment. The <ORG>, then noted a representative order of appointment under Rule 16 and held that such appointments were neither ad hoc, nor fortuitous, nor in the nature of a stop-gap arrangement and persons promoted under such orders have been factually officiating continuously without a break as Additional District and Sessions Judges for a long number of years. Their Lordships noticed the difficulties in evolving a rule, which will cause no hardship of any kind to any member of the Service and yet attempted to minimise the same as far as possible, so that inequities and disparities which are inherent in a system which provides for recruitment to the Service from more than one source. It would be appropriate to extract the following observations made by Their Lordships in the majority judgment:

It may bear emphasis that promotees appointed under Rules 16 and 17 to <ORG> can rank for seniority along with direct recruits only if they are appointed in consultation with <ORG> as required by those Rules and if they satisfy the requirement laid down in Rule 7(a) that they must have completed not less than ten years of service in <ORG>."

The best solution to the situation that confronted the <ORG> in <NAME> case was to adopt the rule enunciated in <NAME> vs. State of Maharashtra, 1977 (3) SCR 775, to have continuous officiation in a non- fortuitous vacancy ought to receive due recognition in fixing seniority between persons who are recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities. It was also held that since rule of quota and rota ceases to apply when appointments are made under Rules 16 and 17, the seniority of direct recruits and promotees appointed under those Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts created in the Service or in substantive vacancies to which they were appointed in a temporary capacity. Justice <NAME> in the separate judgment also came to the same conclusion for determining the inter-se seniority between the promotees and direct recruits. It may be noticed that the <ORG> ultimately quashed the seniority list which had been prepared by the High <ORG> and observed that a new seniority list be prepared on the basis of the view taken in the judgment and the said new seniority list would include the direct recruits and promotees appointed under Rules 16 and

17. While quashing the seniority list, the seniority of Shri <NAME> was protected, since he had been appointed as Additional and Sessions Judge in a vacancy reserved for the members of Scheduled Caste.

Subsequent to the judgment of this Court in Singla, <ORG> redrew up a seniority list on 26th of March, 1985 and in drawing up the said list, the principle that was evolved is the subject matter of challenge in the writ petitions filed by the promotees. It may be stated that a fresh look was also given to the earlier seniority list that had been prepared on 26th of March, 1985 and <ORG> submitted the report on 5th of March, 1986, which was approved by <ORG> in its Meeting on 25th of October, 1986 and the final seniority list thus emanated on 11th of November, 1986. According to the promotee officers, while preparing the final seniority list, <ORG> has not followed the directions given by this Court in <NAME> case and erroneously did not take into consideration the continuous appointment of the officers as Additional District and Sessions Judge, notwithstanding the fact that the appointments had been made after due consultation with <ORG> and the appointees fulfilled the requirements of Rule 7(1) of the Recruitment Rules, on an erroneous conclusion that the appointment was ad hoc or fortuitous or stop-gap. A representation appears to have been filed by the promotees in 1987 and then the present writ petition was filed which was registered as Writ Petition No. 490/87.

At the outset, it may be stated that the Delhi Higher Judicial Service Rules 1970 were amended in the year 1987 by Notification dated 17th of March, 1987, subsequent to and pursuant to the observations made by this <ORG> in <NAME> case and by virtue of explanation added to Rules 16 and 17, Rules 5 and 7 to 11 became applicable to such appointments also. We are not concerned in this batch of cases with the effect of such amended provisions or the inter-se seniority to be determined subsequent to the year 1987, though we are told that a fresh seniority list has been prepared in March, 1995 and the Full <ORG> of Delhi High <ORG> has taken a decision thereof in the year 1998. For the present, we are only concerned with the question whether in preparing the seniority list of the officers recruited to <ORG> from both the sources viz. as direct recruits as well as by promotion, prior to the amendment of 1987, the directions and conclusions of this <ORG> in <NAME> case has been duly given effect to.

Mr. <NAME>, the learned senior counsel, appearing for the petitioners in Writ Petition No. 490/87, who are the promotees, contended that even though the recruitment to <ORG> of these petitioners have been made either under Rule 16 or under Rule 17 of the Recruitment Rules after due consultation and / or approval of <ORG> and the incumbents were duly qualified for being promoted under Rule 7 of the Recruitment Rules and had continuously held the posts of Additional <ORG>, yet <ORG> erroneously was of the opinion that they are ad hoc or fortuitous or stop- gap appointees and, therefore they were made junior to the direct recruits and the continuous length of service was not taken into account for the purpose of determination of the inter-se seniority. According to Mr. <NAME>, there was no ambiguity in the judgment of this <ORG> in <NAME> case, but since the <ORG> had not indicated as to when an appointment can be said to be ad hoc or fortuitous or stop-gap arrangement, <ORG> went on examining the number of posts that were available on 22.4.1980, the date on which Smt. <NAME> was directly appointed and then after giving her the 30th position in the seniority list, the promotees seniority were adjusted and all other promotees who even though have been recruited under Rules 16 or 17 after due consultation with <ORG> and also satisfied the qualification required under Rule 7 and had continuously held the post of Additional <ORG>, much prior to Smt. <NAME>, yet such appointments of the promotees was held to be ad hoc or fortuitous and by adopting such procedure, <ORG> acted contrary to the judgment and directions of this <ORG> in <NAME> case. According to Mr. <NAME>, it is only when an appointment is made to <ORG> of a person, belonging to <ORG> without due consultation or approval of <ORG> or when such appointee did not have the prescribed qualification under Rule 7 for being promoted or any short term appointment is made in exigency of any particular situation, requiring immediate recruitment or an appointment is made purely by way of stop-gap arrangement, which can obviously be for a very short period, then only the appointment can be held to be on ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement and in such a contingency, the Services rendered by an appointee cannot be counted for the purpose of seniority in <ORG>. But when the appointment is made by the Administrator either under Rule 16 or Rule 17, after due consultation with or getting the approval of <ORG> and the appointee satisfies the qualification required under Rule 7 and continuously holds the post of Additional <ORG> for a fairly long period, as in the case in hand, it is difficult to import the concept of ad hoc or fortuitous or stop-gap, which is well known in the Service Jurisprudence to such appointments. In this view of the matter, <ORG> committed serious error in coming to the conclusion that the appointment of the petitioners was ad hoc/fortuitous/stop-gap and consequently, the seniority list thus prepared is contrary to the directions given by this <ORG> in <NAME> case. The second <ORG>, which examined the objections filed to the provisional list, approved by the Full <ORG> of Delhi High <ORG> in its Meeting held on 15th of May, 1985 also committed the same mistake as the earlier <ORG> and went on examining the question of lien under the fundamental rules, and as to how many of the incumbents of <ORG> were on deputation to different posts for the purpose of finding out as to whether the appointments made in that chain would be ad hoc or fortuitous or stop-gap. According to Mr. <NAME>, the second <ORG>, even went to the extent of holding that if a quota post meant for direct recruit according to the quota, remains unfilled, then the promotee occupying the last post must be taken to be holding the post on ad hoc basis or for fortuitous reasons or by way of stop-gap arrangement and the promotee holding the last post must be made to surrender it, and applying this theory one Shri <NAME>, who had worked for about four years as Additional District & Sessions Judge was made junior to Smt. <NAME> but according to the <ORG> that was the best solution, and, therefore, the provisional seniority list already approved by the Full <ORG> was recommended to be accepted as the final list. From the final seniority list, it transpires that Shri <NAME> had been appointed as Additional <ORG> on 27.7.76, whereas Smt. <NAME> was appointed as Additional <ORG> as a direct recruit on 22.4.1980, but yet she was shown senior to <NAME>. Mr. <NAME> also pointed out that even the officers who had been appointed in December, 1980 and had been continuing as Additional District & Sessions Judge, yet their appointments were held to be fortuitous as three posts for direct recruitment had been advertised. According to Mr. <NAME>, <ORG> of Delhi had failed to implement the positive mandate of this <ORG> in <NAME> case and the spirit of the same in drawing up the seniority list and gross injustice has been meted out to the promotee officers. The learned counsel points out that Shri <NAME>, Shri <NAME>, Shri O.P.Dwivedi, Shri R.C.Jain and Shri J.D.Kapoor though had been duly appointed in the year 1980 under Rules 16 and 17 and had continuously held the post of Additional <ORG>, they were shown junior to Shri B.S.Chaudhary, a direct recruit, who was appointed on 10.11.1982. Similarly, Shri B.N.Chaturvedi and Shri <NAME>, though had been appointed as Additional <ORG> in August, 1984 under Rule 16, after due consultation with <ORG> of Delhi and also were duly qualified under Rule 7 and continuously held the post of Additional <ORG>, yet they were made junior to the direct recruits of the year 1985 namely Ms. <NAME>, <NAME> and <NAME>. This determination of inter-se seniority, according to Mr. <NAME> is in contravention of the principles evolved by this <ORG> in <NAME> case and, therefore, such seniority list cannot be sustained. Mr. <NAME> also pointed out that even though, this <ORG> in O.P.<NAME> case categorically held that the controversy regarding the fixation of the seniority list between the promotees and direct recruits cannot be resolved following the earlier decision in the case of <NAME>, yet <ORG> while drawing up the seniority list, followed the principle of <NAME>. According to Mr. <NAME>, there cannot be a more blatant contravention of the directions given by this <ORG> in <NAME> case than the one committed by <ORG> in the case in hand.

Mr. <NAME>, the learned senior counsel, appearing for the petitioners in Writ Petition No. 1252/90, on the other hand contended with force that since there cannot be any appointment more than the number of posts available in the <ORG> and this Court having indicated that stop-gap/fortuitous/ad hoc appointments will not enure to the benefit of such appointees for the purpose of their seniority, it was incumbent on <ORG> to identify the posts available in the <ORG> for being regularly filled up and any appointments made in excess of the posts available must be held to be either stop-gap or fortuitous or ad hoc and, consequently, the High court did not commit any illegality in drawing up the seniority list. Mr. <NAME> also contended that the Member of the <ORG> having been defined in Rule 2(d) to mean a person, appointed in a substantive capacity to the <ORG> under the provisions of the Rules, and Rule 16 having provided for creation of temporary posts in the <ORG> by the Administrator and filling up of the same, such appointments cannot be held to be appointments in the <ORG> in substantive capacity and such appointees cannot be held to be Members of the <ORG> within the meaning of Rule 2(d) and on this ground, the Judgment in <NAME>' case requires re- consideration.

Mr. <NAME>, the learned senior counsel, appearing for the direct recruits, seriously contended that the judgment of this <ORG> in <ORG>'s case is contrary to the law laid down by this <ORG> in <CITATION> <ORG> & Ors. , 1970(2) S.C.R., 666 , and, therefore, the said judgment must be reconsidered. He also contended that the statutory rules having provided for a quota for the direct recruits, as apparent from a combined reading of Rules 7 and 8, if no such quota is fixed for the direct recruits in case of appointments made under Rules 16 and 17, then the rule will be grossly discriminatory and would be liable to be struck down and, therefore, until such quota is provided in respect of appointments made under Rules 16 and 17, it would only be meet and proper to hold that the seniority must be determined in accordance with Rule 8(2), which would necessarily mean that the appointees under Rules 16 and 17 cannot claim parity with regular appointees under Rule 7 and, therefore, cannot claim seniority in the Cadre. The learned counsel also contended that the decision in <NAME> case being one, in relation to the very Service, the principles evolved therein must be made applicable and, High <ORG>, therefore, rightly relied upon the same in determining the inter-se seniority. According to Mr. <NAME>, only the genuine appointees under Rules 16 and 17 may, at best, get the benefit of the decision of this <ORG> in <ORG>s case and appointment made against temporary post, because the temporary appointee has gone elsewhere, cannot be held to be an appointment under Rule 16, even though, he might have been nomenclatured as such.

Mr. <NAME>, the learned senior counsel, appearing for the respondents in Writ Petition No. 490/87, fairly stated that this Court having not indicated the true import and meaning of the expression stop- gap/fortuitous/ad hoc , <ORG> had to give meaning to the same and in so doing, <ORG> has taken into account the number of posts available in the Service and has tried to implement the directions given by this Court in <NAME> case. According to Mr. <NAME>, this Court should now indicate or clarify the meaning of the expression stop-gap/fortuitous/ad hoc in which event, there will not be any further controversy in implementing the directions of this Court for drawing up the seniority list.

Mr. <NAME> also appearing for respondent No. 8 in Writ Petition No. 490/87, who happens to be a direct recruit, contended that in <NAME> case, this <ORG> has tried to work out the equity and for working out equity, it will not be appropriate to take into account the Services rendered by an appointee against a temporary post when the original appointee against the said temporary post is on deputation to some other Service. According to Mr. <NAME>, by not following the quota, meant for direct recruits, gross inequity has already been met out to such direct recruits and over and above that, if the continuous service of such an appointee under Rule 16, as stated above is taken into account for determination of their seniority, then the aspiration with which a Member of the <ORG> joins the post in <ORG> will be marred and it will work out gross inequity, so far as the direct recruit is concerned.

<NAME>, respondent no. 9 in Writ Petition No. 490/87, who is also a direct recruit, argued in- person and reiterated the stand taken by Mr. <NAME>, appearing for some of the direct recruits and Mr. <NAME>, appearing for <ORG>. Mr. <NAME>, a promotee, also appeared in-person and adopted the stand taken by Mr. <NAME>.

Mr. <NAME>, the learned senior counsel, appearing for <ORG>, on the other hand contended that prior to the judgment in <NAME> case, the <ORG> understanding of the rule was that appointments made under Rules 16 and 17 will not count for the purpose of seniority and inter-se seniority has to be determined only between direct recruits and promotees made under Rule 7, following the principle engrafted in Rule 8(2). But after the judgment in <NAME> case, when the Court was confronted with a situation that there has been more number of appointments than the posts available and even in <NAME> case, this Court had indicated that the fortuitous, ad hoc and stop-gap appointees, cannot claim their seniority, <ORG> took the decision that all appointments made beyond the number of posts available, must assume the character of fortuitous, ad hoc or stop-gap, and, therefore, cannot claim seniority in the Cadre. According to Mr. <NAME>, though in <NAME> case, the Court has not indicated the meaning of the expression ad hoc, fortuitous or stop-gap but those expressions have been given due meaning in <CITATION> , 1958 SCR, 828, and, therefore, those meanings should be imported and given effect to. According to Mr. <NAME>, even though, the appointment letters might have indicated the appointments to be one under Rules 16 or 17, but that by itself will not create any right in favour of the appointees on the basis of the <NAME> judgment inasmuch as a wrong leveling will not create a right as such. In support of this contention Mr. <NAME>, relied upon decisions of this Court in the case of <CITATION> , 1964(4) SCR 991 , and <NAME>, Assistant Collector of <ORG> Bombay & Ors. Vs. <ORG>., 1971(3) SCR, 506. Mr <NAME> with reference to the seniority list, which had been drawn up, contended that when the appointments have been shown to be out of turn such appointment must be held to be fortuitous within the meaning of the said expression used in <ORG>'s case and, therefore, such appointees cannot claim a parity or equality with the regular appointees under Rule 7 and, therefore, cannot claim their seniority on the basis of mere continuous length of Service, as contended by Mr. <NAME>, appearing for the promotees.

Having examined the rival submissions at the <ORG> and having scrutinized the two seniority lists drawn up by <ORG>, the provisional as well as the final, the provisional made on 26th of March, 1985 and the final list which was approved by <ORG> on 25th of October, 1986, we find sufficient force in the contentions made by Mr. <NAME>, appearing for the promotees. We are also of the considered opinion that <ORG>, in drawing up the seniority list, though proceeded to allocate seniority according to the length of continuous officiation, regardless of whether an appointee held a temporary post or a permanent post or whether he was a promotee or a direct recruit, as directed by this <ORG> in <NAME> case, but committed error by excluding the persons, on the ground that they held posts on ad hoc basis or for fortuitous reasons or by way of stop-gap arrangement, even though appointments had been made under Rules 16 and 17 after due consultation with and or approval of the High <ORG> and the appointees satisfied the qualification required under Rule 7 of the Rules. It is on this score, the ultimate seniority list, drawn up, stands vitiated. When the report of the first <ORG>, on the basis of which ultimately provisional seniority list was drawn up is examined, it would appear that the <ORG> went on examining the question of a lien against a post and then, recorded a finding that anyone who comes to hold one of those posts, which is subject to a lien, must be held to be holding as an ad hoc arrangement or for fortuitous reasons or as a stop-gap arrangement. The <ORG> also recorded a further finding that if the position of the person, whose seniority is under consideration is beyond the total number of posts in the <ORG>, then also his appointment must necessarily fall within the description of ad hoc/fortuitous/stop-gap and having said so, the <ORG> assigned Ms. <NAME>, the 30th post and then adjusted the seniority accordingly. The conclusion of the <ORG> that a person, promoted to the Higher Judicial <ORG> under Rules 16 or 17 of the Rules to a post against which some other person has a lien, would ipso facto make such appointment ad hoc/fortuitous/stop-gap, is contrary to the conclusion of this <ORG> in <NAME> case. Then again, this <ORG> having categorically directed in <NAME> case, that appointments made under Rule16 or 17, after due consultation and/or approval of the High <ORG>, and the appointee did qualify to hold the promotional post, as required under Rule 7 of the Recruitment Rules, then such appointment of the appointee will not be ignored for the purpose of determining the inter-se seniority in the cadre and on the other hand, continuous length of <ORG> should be the basis, though Rule 8(2) of the Rules provides otherwise. Yet the High <ORG> took shelter under the expression ad hoc/fortuitous/stop- gap and ignored the continuous length of <ORG> of such appointees, while determining the inter-se seniority. In fact, in <NAME> case, the <ORG> on being confronted with a peculiar situation, had given the direction as to in what way, it will be equitable for all concerned to determine the inter-se seniority, but notwithstanding the same, the High <ORG> appears to have stuck to the idea of the principles engrafted in Rule 8(2) of the Rules and then decided the question of seniority on the basis of number of posts, available in the <ORG>. While doing so, the High <ORG> obviously missed the findings of this <ORG> that under the scheme of the Rules, <ORG> is a narrower body than the cadre and every temporary post, which carries the same designation as that of any of the posts in the schedule is a cadre post, whether such post is comprised in the <ORG> or not. It is also apparent from the report that the High <ORG> followed <NAME> case in drawing up the seniority, on the ground that the judgment (in <NAME> case) does not indicate whether the earlier decision of the High <ORG> in <NAME> case is still to be followed in preparing the seniority list or not, but obviously, the High <ORG> has failed to appreciate, what was stated in the concurrent judgment of <NAME>, in <NAME> case, wherein in no uncertain terms, it was stated that so far as, controversy regarding the fixation of the seniority list between the promotees and direct recruits, the same will not be guided by <NAME> case inasmuch as in <NAME> case, the <ORG> construed the Delhi Judicial <ORG> Rules, 1970 in the context of seniority and confirmation and not in the context of inter-se seniority between the promotees and direct recruits. The entire reasoning given by the High <ORG> in the first report, on the basis of which, provisional seniority list has been drawn up, cannot, but be held to be contrary to the directions given by this <ORG> in <NAME> case, and accordingly, must be held to be erroneous. The reasoning of the High <ORG>, in fact, nullifies the ratio in <NAME>'s case, wherein <NAME>, had observed, after noticing a representative order of appointment under Rule 16:-

The appointments were neither ad hoc, nor fortuitous, nor in the nature of a stop-gap arrangement. Indeed, no further orders have ever been passed recalling the four promotees and, others similarly situated, to their original posts in the subordinate <ORG>. Promotees who were under Rule 16 have been officiating continuously, without a break, as Additional District and Sessions Judges for a long number of years. It is both unrealistic and unjust to treat them as aliens to the <ORG> merely because the authorities did not take up to the necessity of converting the temporary posts into permanent ones, even after some of the promotees had worked in those posts from five to twelve years."

Yet, <ORG> in drawing up the seniority list, have treated such promotees, who are appointed under Rule 16 as aliens to the Service and thus, <ORG> was wholly in error in preparing the provisional seniority list, as already stated. If we examine the second <ORG> report, which had considered the objections filed by the promotees and ultimately, on the basis of which the final seniority list was approved by <ORG> in its Meeting on 25th of October, 1986 and the list was prepared on 11th of November, 1986, we also find, <ORG> committed similar error in accepting the provisional seniority list as final. In the second Report, the <ORG>, again was of the view that if a post meant for a direct recruit, according to the quota, remains unfilled, then the promotee occupying the last post, must be taken to be holding that post on ad hoc basis or for fortuitous reasons or by way of a stop-gap arrangement. This indicates that the <ORG> was still obsessed with the provisions of Rule 8(2) of the Recruitment Rules, even though in <NAME> case, it has been categorically held by this Court that quota principle has broken down and as such, seniority cannot be determined by taking recourse to the quota and rota provided under Rule 8(2) but on the basis of continuous length of Service, provided the promotees have been promoted after due consultation with and/or approval of <ORG> under Rule 16 or 17 and they did possess the requisite qualification for promotion, as provided under Rule 7. At this stage, it would be appropriate to notice the letter of appointment of Shri <NAME>, Shri <NAME>, Shri <NAME> and Shri <NAME> by the order of the Administrator dated 19th of December, 1980, which is identical with the representative order, this Court had taken note of, in <NAME> case. It is not the case of <ORG> or any of the direct recruits-respondents that these promotees, on being promoted on 19th of December, 1980, have at any point of time, reverted to their substantive post before <NAME> was appointed as a direct recruit on 10.11.1982. In this view of the matter, these promotees, who are appointed under Rule 16(2) of the Recruitment Rules on 19.12.1980, and continuously held the said post and further, such appointments have been made in consultation with <ORG> of Delhi and they had the requisite qualifications under Rule 7 of the Recruitment Rules, their appointments cannot be held to be either ad hoc or fortuitous or stop-gap, and necessarily, therefore, they must be held to be senior to <NAME>, a direct recruit of the year 1982, on the basis of continuous length of Service, in accordance with the directions given by this Court in <NAME> case. Similarly, the two other promotees namely <NAME> and Shri <NAME>, who had been appointed since August, 1984 and also continuously held the post of Additional District and Sessions Judge for all these years, must be held to be senior to the direct recruits namely Ms. <NAME>, who was directly recruited on 07.6.1985 and Shri <NAME> and <NAME>, who were directly recruited on 26.11.1985.

It would be worthwhile to notice that the promotee officers, in their rejoinder affidavit, have indicated that in course of arguments in <NAME> case, <ORG> had directed <ORG> to submit a chart, indicating under which rule, the promotees had been appointed and pursuant to the said directions, <ORG> had submitted a chart and all the petitioners(the promotees) were shown to have been appointed either under Rule 16 or Rule 17. A chart, also purported to have been filed in the earlier case, has been enclosed to the rejoinder affidavit, which clearly indicates the factual matrix, which were there before this <ORG> in <NAME> case. Even, <ORG> in its counter affidavit in the present proceedings, has submitted that all the petitioners herein were appointed under Rule 16 or 17 of the Rules and the respective dates of appointments are matters of record.

So far as the argument of Mr. <NAME>, the learned senior counsel, appearing for the direct recruits, to the effect that in view of the definition of Service in Rule 2(d), the appointees under Rule 16 cannot be held to be Members of the Service, it may be stated that the said question was duly considered in <NAME> case and on an analysis of the scheme of the Rules, this Court came to the conclusion that the Rule is peculiar in nature and <ORG> is a larger concept than Service under the Recruitment Rules. The Court recorded a finding that all persons recruited under Rule 17 to the posts having the same designation, as per the post in the schedule, must be held to be Members of the <ORG> and, therefore, while determining the inter se seniority in the '<ORG>', they cannot be ignored from consideration nor can they be held to be alien to the <ORG>. The said contention of Mr. <NAME>, accordingly, cannot be sustained.

So far as the contention of Mr. <NAME>, the learned senior counsel, appearing for the direct recruits, is concerned, in praying for re- consideration of the judgment of this <ORG> in <NAME> case, the same also cannot be sustained inasmuch as the <ORG> in <NAME> case did consider the earlier decision of this <ORG> in <NAME> case, and recorded a finding that in that case, it was only a matter of adjustment of seniority between the promotees inter-se and not between the promotees and direct recruits and, therefore, the ratio therein is of no application. Further, Justice <NAME>, in his concurring judgment did consider <NAME> naths case and held that the principle evolved therein cannot be applied to the case in hand, where inter-se seniority between the promotees and direct recruits are going to be decided on equitable consideration. We are also unable to accept the contention of Mr. <NAME> that until the principle of quota provided in Rule 8 is made applicable to appointments under Rules 16 and 17, such appointees, under Rules 16 and 17 cannot claim continuous length of service for their seniority. Such a contention appears to have been considered and negatived in <NAME> case. The Judgment of this <ORG> in <NAME> case is obviously intended to evolve some equitable principle for determination of inter-se seniority of a group of officers, when the rule of seniority contained in Rule 8(2) has been held to be not operative because of breaking down of quota and rota rule. To meet the peculiar situation, the <ORG> evolved the principle that continuous length of service should be the criteria for inter-se seniority between the direct recruits and the promotees, provided, the promotees did possess the required qualification as per Rule 7 and the appointments had been made under Rules 16 and 17, after due consultation and/or approval of the High <ORG>, which in our view also is the most appropriate basis, evolved in the fact situation. This being the position, we see no justification for re-considering the decision of this <ORG> in <NAME> case. That apart, the Recruitment Rules have been amended in the year 1987 and the aforesaid principle, which had been evolved in <NAME> case, would apply for determining the inter-se seniority between the promotees and direct recruits, all of whom had been appointed to <ORG>, prior to the amendment of the Rules in question, which was made in the year 1987. We have also considered the arguments advanced by Mr. <NAME>, the learned senior counsel, appearing for Delhi High <ORG> and we are unable to persuade ourselves to accept the same inasmuch as it is not a mere question of leveling, as urged by Mr. <NAME>, but, it is a question which was directly considered by this <ORG> in <NAME> case and, after examining the representative order, the <ORG> positively recorded a conclusion that the appointments made under Rule 16 or 17 cannot be held to be alien to the Cadre. In fact the <ORG> was persuaded to come to the aforesaid conclusion, as it was found that the persons appointed under Rules 16 and 17 having all the necessary qualifications and having been appointed after due consultation with the High <ORG>, though they had served for more than five to seven years, but yet have been shown junior to the direct recruits, who had come to the Service much later than them. It is, therefore, not possible for us to accept Mr. <NAME>s contention and permit any further scrutiny into such appointments made either under Rule 16 or under Rule 17 of the Recruitment Rules. It is in fact, interesting to notice that the schedule to the Recruitment Rules, which came into existence in 1971, was amended for the first time only in the year 1991, 20 years, after and if a strict construction to the different provisions of the Rules would be given, then all the temporary appointees under Rule 16, who might have rendered 5 to 10 years of Service would be denied of their right for the purpose of seniority. It is this impasse, created on account of inaction of the authorities and on account of non- adherence to the provisions of the Rules strictly, which persuaded the <ORG> in <NAME> case to evolve the principles for working out equities and that principle has to be followed by the High <ORG> in drawing up the seniority list. It is not necessary to deal with the contention, raised by Mr. <NAME>, appearing for the direct recruits and <NAME>, appearing in person, who is a direct recruit also, as well as Mr. <NAME>, appearing in person, who is a promotee, as essentially, they adopted the arguments of either Mr. <NAME> or Mr. <NAME> and Mr. <NAME>.

So far as the terminology used in <NAME> case, namely ad hoc, fortuitous and stop-gap, the same is quite familiar in the Service Jurisprudence. Mr. <NAME>, appearing for <ORG>, however contended before us that the said terminology should be given the same meaning, as was given in <CITATION> , 1958 S.C.R. Page 828. In <NAME> case, the <ORG> was examining whether removal of an employee can be held to be a penal and whether Article 311(2) of the Constitution can at all be attracted and the <ORG> also observed that certain amount of confusion arises because of the indiscriminate use of the words provisional, officiating and on probation. We do not think that the concept or meaning given to those terminology in <NAME> case will have any application to the case in hand, where the <ORG> is trying to work- out an equitable remedy in a manner which will not disentitle an appointee, the benefit of his fairly long period of Service for the purpose of seniority, even though he possesses the requisite qualification and even though his appointment has been made after due consultation and/or approval of the High <ORG>.

The three terms ad hoc, stop gap and fortuitous are in frequent use in service jurisprudence. In the absence of definition of these terms in the rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression fortuitous in Strouds Judicial Dictionary is accident or fortuitous casualty. This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with <ORG> and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to fortuitous. In <ORG> dictionary, the expression fortuitous means occurring by chance, a fortuitous event may be highly unfortunate. It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression ad hoc in <ORG> Dictionary, means something which is formed for a particular purpose. The expression stop-gap as per <ORG>, means a temporary way of dealing with a problem or satisfying a need.

In Oxford Dictionary, the word ad hoc means for a particular purpose; specially. In the same Dictionary, the word fortuitous means happening by accident or chance rather than design.

In <ORG> (2nd Edition) the word ad hoc is described as for particular purpose, Made, established, acting or concerned with a particular and or purpose. The meaning of word fortuitous event is given as an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God.

The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter-se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as ad hoc or stop-gap. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as fortuitous in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a stop-gap arrangement and appointment in the post as ad hoc appointment. It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre.

In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be stop-gap or fortuitous or purely ad hoc. In this view of the matter, the reasoning and basis on which, the appointment of the promotees in <ORG> in the case in hand was held by <ORG> to be fortuitous/ad hoc/stop-gap are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.

In view of our conclusions, as aforesaid, we quash the seniority list both provisional and final, so far as, it relates to the appointees either by direct recruitment or by promotion in <ORG>, prior to the amendment of the Recruitment Rules in the year 1987, and their inter-se seniority must be re- determined on the basis of continuous length of service in the <ORG>, as indicated in <NAME> case and explained by us in this judgment. Since the future of these officers to a great extent depends upon seniority and many of these officers may be on the verge of superannuation, <ORG> would do well in finalising the seniority within a period of six weeks from the date of receipt of this judgment.

Writ Petition No. 490/87 is accordingly allowed. Writ Petition Nos. 1252/90 and 14114/84 are accordingly dismissed. Writ Petition Nos. 707/88, 856/88 and 764/88 stand disposed of in terms of the directions given herein-above. Application for impleadment filed by Mr. <NAME> in Writ Petition(Civil) No.490/87 is allowed. Application for impleadment filed by one Ms.<NAME> in Writ Petition(Civil) No.1252 of 1990, stands rejected, since in this batch of cases, we are concerned with the inter-se seniority between the direct recruits and the promotees, who are appointed prior to the amendment of the Rules in 1987 and the applicant Ms. <NAME> was appointed in January, 1988.

The application for impleadment by Shri <NAME> in Writ Petition(Civil) No. 14114 of 1984 stands allowed.

...............................................J. (G.B. PATTANAIK) ...............................................J. (S. RAJENDRA BABU)


JUDGMENT <NAME>, J.

1. This appeal arises out of a suit on a mortgage-bond executed by the guardian of defendants Nos. t and 2 in favour of plaintiffs. Before its institution, the mortgaged property had been brought to sale by fifth defendant in execution of decree obtained by him against defendants Nos. 1 and 2 (Original Suit No. 69 of 1914 on the file of <ORG> of Tirupati) and purchased by defendants Nos. 3 and 4. Toe latter opposed the suit alleging (1) that the suit mortgage was only a fictitious document without consideration, and (2) that the suit was otherwise not mainatainable. The first, defence, though successful in the Court of first instance, was found against by the Subordinate Judge in appeal; and we are not now concerned with it. The Subordinate Judge, however, in giving a decree for plaintiffs omitted to consider the objections to the maintainability of the suit; and it is with these, which have been pressed on us by Mr. <NAME> on behalf of third defendant, the present appellant, that we have to deal.

2. The main objection is based on Order XXI, Rule 63, Civil Procedure Code, and was considered and rejected by the District Munsif on issue No. 2.

3. The facts are these. Prior to Original Suit No. 69 of 1914, fifth defendant had instituted another suit against defendants Nos. 1 and 2, Original Suit No. 872 of 1913, and bad effected an attachment before judgment of the suit property under Order XXXVIII, Rule 6. Plaintiffs preferred a claim based on their mortgage. This was dismissed, Thereupon, plaintiffs filed a suit, Original Suit No. 919 of 1914, for a declaration of their mortgage-rights' and for a declaration that these would not be affected by the attachment.

4. This suit (Original Suit No. 919 of 1914) was eventually dismissed. The plaintiffs were first granted leave to withdraw it conditionally on payment of the costs of defendants; but, as they filled to do this within the time allowed, the suit stood dismissed.

5. Appellants contend that on the dismissal of this suit, the order on the claim petition became conclusive under Order XXI, Rule 63; and that the result is to preclude plaintiffs from enforcing their mortgage against he suit, property under any circumstance whatever.

6. It has been held by a Full Bench of this Court in <CITATION> 47 Ind. Cas. 1000 : 41 M. 819 : 24 M.L.T. 134 : 35 M.L.J. 831, 8 L.W. 197 : (1918) M.W.N. 699 that Order XXI, Rule 63, applies to orders on the claims preferred to property attached before judgment, and if appellant had purchased the property in execution of the decree in Original Suit No. 872 of 1913, there could be no room for doubt.

7. This is, of course, a suit to enforce the mortgage, not to contest the order on the claim petition under Order XXI, Rule 63. But that makes no difference, If plaintiffs are concluded from setting up their mortgage in connection with any proceedings taken against the property in pursuance of Original Suit No. 872 of 1913 and this effect, at least, must be given to the word conclusive in Rule 63 then it would be rediculous to contend that they might, nevertheless, enforce it against a purchaser of the property in execution of the decree <NAME>, J., in <CITATION> 56 Ind. Cas. 481 : 33 M.L.J. 397 : 11 L.W. 343 : 27 M.L.T. 312. Mr. <NAME>, however, for plaintiffs, seems to distinguish the case on the ground that appellant purchased in execution of another decree altogether, and that the order on the claim-petition is only conclusive as regards the parties to the same and for the purpose of the suit or execution in connection with which the claim was preferred. The correctness of this argument, of course, depends on the meaning to be attached to the word conclusive' in Rule 63 of Order XXI.

8. On behalf of the respondents we are referred to <CITATION> 8 C. 279 : 10 C.L.R. 201 : 4 Ind. Dec. (N.S.) 178, <CITATION> 13 B. 72 : 7 Ind. Dec. (N.S.) 49 and <NAME> v. <NAME> 21 C. 265 : 10 Ind. Dec. (N.S.) 809. The first of these certainly appears to be authority in respondent's favour. The learned Judges say "the finding of the <ORG> in the execution department that the sale was invalid, only meant that the sale was invalid as against the judgment-creditor, and as against any purchaser who might purchase at a sale held in execution following that attachment." The other two cases have no direct bearing on the point. In <NAME> v. <NAME> 21 C. 265 : 10 Ind. Dec. (N.S.) 809 the learned Judges only consider Sections 13 and 373 of to old Civil Procedure Code. Not Section 283 which corresponds to Order XX1, Rule 63. In the Bombay case the decision turned o the necessity of bringing a suit to costs a, claim-order on an attachment which was raised. So also in a case of this. <ORG> Gottanjpalli Subbayya v. <NAME> 42. Ind. Cas. 683 : (1917) M.W.N. 851 : 22 M.L.T. 496. In both these cases the learned Judges may be said to discuss the matter as if the effect of the claim order did no go beyond the proceedings in connection with which it was passed, but the dominating factor of their decision is the release or withdrawal of the attachment.

9. On the other hand, we are referred to decision of this Court <NAME> v Aligiri Chetti 27 Ind. Cas. 800, which is just as strong an expression of opinion as <CITATION> 8 C. 279 : 10 C.L.R. 201 : 4 Ind. Dec. (N.S.) 178, but the other way. The learned Judges say:

The statutory suit under Order XXI, Rule 63, is to establish the right which the attaching plaintiff claims in the property in dispute. This, in our opinion, is the right to attach the property in question as the property of the defendant whenever it may be his interest to do so and the effect of not suing would be to debar him from claiming to attach such property at any future time.

10. As far as the cases go, we have, therefore, practically a decision of our own <ORG> against one of the Calcutta High <ORG>; and we should by preference follow the former. I think, moreover, that a consideration of the rule with reference to the facts of the present case leads to the same conclusion, The right in litigation in the claim petition and in Original Suit No. 919 of 1914 was the right of fifth defendant to treat this suit-property as the property of defendants Nos. 1 and 2 in opposition to the mortgage-right therein set up by plaintiffs. The dismissal of plaintiffs' claim-petition, followed by the dismissal of their suit, Original Suit No. 919 of 1914, had the effect of conclusively settling the question as between plaintiffs and 5th defendant. It seams to me unreasonable to suggest that the result was only conclusive as regards the particular suit (Original Suit No. 872 of 1913) out of which the decision arose, and that it was open to the plaintiffs, in spite of this decision, again to contest the same person's right of proceeding against the same property in another suit. If they could not do so, then neither could they seek to enforce their mortgage against an auction-purchaser in the second suit. For, as <NAME>, J., has so clearly pointed out in the care already quoted <CITATION> 56 Ind. Cas. 481 : 33 M.L.J. 397 : 11 L.W. 343 : 27 M.L.T. 312, the one is a necessary consequence of the other. "The conclusive establishment of the decree-holder's right to bring the property to sale free from the claimant's alleged encumbrance involves the right of the purchaser at the sale to get a title to the properly free from such encumbrance".

11. I would, therefore, hold that the order on plaintiffs' claim-petition is conclusive and that the suit-mortgage is not enforceable against the items of property dealt with therein. The decree of the lower <ORG> should be modified accordingly. Plaintiffs should pay the costs of defendants Nos. 3, 4 and 5 throughout.

<NAME>, J.

12. The facts are fully set out in the judgment of my learned brother, and I agree that Mr. <NAME>'s contention that the rights of the plaintiffs are now gone, must prevail by the terms of Order XXJ, Rule 63, Civil Procedure Code. The effect of this rule, combined with the fact that the Suit No. 9.9 of 1914 was dismissed as the plaintiffs did not pay the costs, will, in my opinion, debar the plaintiffs from re-agitating their rights again even though the proceeding be, as here, a regular suit on the mortgage. In other words, once the order became conclusive in the words of the rule, a suit on the mortgage is barred at any time. It is, however, strenuously contended by Mr. <NAME> for the plaintiffs that the order is not conclusive against the auction purchaser in another proceeding, and he relies en <CITATION> 8 C. 279 : 10 C.L.R. 201 : 4 Ind. Dec. (N.S.) 178. There a claim was rejected in attachment in execution of a decree for rent; the judgment-debtor paid off the decree and no sale was held. The effect of this was that the attachment ceased and any rights of the claimant became valid and she had no need to bring a suit to establish there. The learned Judges based their decision on the fact that the decree was paid off and in fact differed on that ground from the lower Court. Were it otherwise, the case may be said, to be conclusive only as to the proceedings to which it relates. Reference may here be made to the passage in the judgment of <NAME>, J., in <CITATION> 56 Ind. Cas. 481 : 33 M.L.J. 397 : 11 L.W. 343 : 27 M.L.T. 312. He says, at page 402 Page of 38 M.L.J.--[Ed.]: "The auction-purchaser is entitled to take advantage of the order against the claimant in such a case (if it is not set aside by a suit within one year) not because the purchaser is the representative of the decree holder but because the order which established the right of the decree holder to bring the property to sale against the claim of the claimant cannot be given effect to otherwise and was clearly intended by the <ORG> to have the effect of precluding the claimant from putting forward his claim in opposition to the auction-purchaser at the sale held in pursuance of the order against the claimant." In the case reported as <NAME> v. <NAME> 27 Ind. Cas. 800 it is clearly laid down by <NAME>, <NAME> and <NAME> J., that the effect of omitting to bring a suit is to bar the remedy. That was a case of attachment before judgment and the learned Judges say: "The statutory suit under Order XXI, Rule 63, is to establish the right which the attaching plaintiff claims in the property in dispute. This, in our opinion, is the right to attach the property in question as the property of the defendant, whenever it may be his interest to do so, and the effect of not suing would be to debar him from claiming to attach such property at any future time. The fact that the attachment effected by him would, if it had not been raised previously, have come to an end by the dismissal of the suit does not affect his right to sue under Order XXI, Rule 63." I agree with mis-learned brother in preferring to follow the Madras decision, especially having regard to the grounds on which, in my opinion, the Calcutta decision was based. It is not necessary to discuss the point taken as to limitation and I, therefore, agree with the older proposed.


CASE NO.: Appeal (civil) 1266 of 1979 PETITIONER: PT. <NAME> AND ANR. ETC. RESPONDENT: SMT. SALMA BEGUM ETC. ETC. DATE OF JUDGMENT: 02/05/1995 BENCH: K. RAMASWAMY & N. VENKATACHALA & S. SAGHIR AHMED JUDGMENT:

JUDGMENT 1995 (3) SCR 1062 The Judgment of the Court was delivered by <NAME>, J. <NAME> granted in SLP NOS. 3554, 5453, 6054, 2815/79, 3182/87, 4150/92, 12520/86 and 5791/95.

These appeals by Certificate under Article 133 arise from the judgment of <ORG> of <ORG> in Smt. <NAME> v. <NAME>,  Allahabad Law Journal 401. The respondents laid the suits in <ORG> for recovery of arrears of rent or for rent and possession from the appellants. On their committing default in payment of rent in pending suit, their defence was struck off under Order 15 Rule 5 of <ORG> as amended by U.P. Civil Laws (Reforms and Amendment) Act , 1976, U.P. Civil Laws (Amendment) Act 37/1972 and U.P. Civil Laws (Amendment) President's Act 19/73. They challenged the vires of Order 15 Rule 5. On reference, <ORG> held that it is not inconsistent with the <ORG> Central (Amendment) Act 104/76 (for short, 'the Central Act ') and is not void under Article 254(1) of the Constitution.

By U.P. Act 37/72, s.4 of the Provincial Small Causes Court Act was amended empowering <ORG> to decree suit for possession of immovable property and for recovery of arrears of rent or interest in such property. By U.P. Act 37/72, brought on statute, Rule 5 of Order 15, stating thus:-

"5. Striking off defence on failure to deposit admitted rent, etc. - (I) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendants shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making, the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the court may subject to the provisions of sub-rule (2), strike off his defence.

Explanation 1. - The expression 'first hearing' means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned.

Explanation 2. - The expression 'entire amount admitted by him to be due' means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any deposited in any court under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act , 1972. Explanation

3. - The expression 'monthly amount due' means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deductions except the taxes, if any, paid to a local authority in respect of the building on lessor's account.

(2) Before making an order for striking off defence, the court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days, of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be.

(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff:

Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited:

Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the court may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same."

Consequentially Order L Rule l(b) of <ORG> was suitable amended by President's Act 19/1973 so that Rule 5 of Order 15 would consistently be applicable to the suits for recovery of possession and arrears of rent or recovery of rent simplicitor, as the case may be. After the Central Act was enacted on September 1976 and received the assent of the President on the same day, i.e. September 9, 1976, it was published in <ORG> on December 10, 1976, <ORG> swung into action and enacted U.P. Civil Laws (Reforms and Amendment) Act 57/76 on December 13, 1976 reserved for consideration and received the assent of the President on December 30, 1976. It was published in the <ORG> on December 31, 1976 brought into force with effect from January 1, 1977. The Central Act became operative with effect from February 1, 1977. In U.P. Act 57/76 "by s.7 thereof, three Explanations to Sub-rule (1) to Rule 5 of Order 15 were added as referred to hereinbefore.

When these appeals came up for final disposal, on July 14, 1987 a Bench consisting of <NAME> and <NAME>, <NAME> (as they then were) referred the appeals for consideration by a Bench of three Judges. Thus these appeals have come up before us. <NAME>, learned counsel, after thorough preparation, placing strong reliance on <CITATION> . District Judge, (1986) 1 SCR 151, argued with commitment and conviction, that the object of the Central Act was that <ORG> intended that <ORG> should be uniform throughout India. The U.P. Act came into force prior to the Central Act was brought into force on February 1, 1976. The <ORG> Act or a provision made by <ORG> to the order previously made by consistent with the provisions of the Code as amended by the Central Act which alone remain valid. All the pre-existing amendments made by the appropriate <ORG> legislature or <ORG> stand repealed. Order 15 Rule 5 is one such prior amendment made by the <ORG> Legislature which is consistent with the Central Act from the date of its commencement. By operation of clause (1) of Article 254 , the <ORG> Act became void. The striking of the defence, therefore, is contrary to law. <NAME> contended that the <ORG> amendment violates Article 14. An honest litigant who admits of arrears is made to suffer the onslaught' of Order 15 Rule 5, while dishonest tenant who denies rent is permitted to defend the suit by adduction of evidence. The striking off valid defence raised by an honest litigant, for his failure to pay the arrears is made to pay the penalty of his defence being struck off creating unjust and unfair procedure violating Article 14.

<ORG> certified two questions of law for decision by this Court as under:

"1. Whether Rule 5 inserted in Order XV C.P.C. by the U.P. Civil Laws (Amendment) Act, 1972 and substituted by new Rule 5 of the U.P. Civil Laws (Reforms and Amendment) act, 1976 is consistent with the provisions of the Principal Act as amended by the Central Civil Procedure Code (Amendment) Act , 1976 and stands repealed?

2. Whether Section 97(1) and (3) and of the Central Civil Procedure Code (Amendment) Act , 1976 are retrospective and the orders passed before 1.2.1977 striking off the defence for non- compliance of Rule 5 are to be set aside?"

It would appear that consequent upon Rent Act s made by the State legislature to protect unreasonable eviction of the tenants by the landlord's torrent racket and when tenants taking aid of accrued statutory tenancy, commit default in the payment of rent and drive the landlords to recover the same by filing civil suits, undue delay in disposal of the suits cause considerable hardship to the landlords. To remedy the situation of occupation of the building without paying arrears or accumulated arrears of rent, with a view to restoring the equilibrium between the competing interests of the tenants and landlords and to relieve the latter from hardship, the State legislature stepped in and introduced Rule 5 to Order 15 so as to enable the landlord to make an application to the <ORG> for direction to pay the admitted rent and on an order passed in that behalf and on failure to comply therewith, the <ORG> is empowered to strike off the defence of the tenant so as to enable the landlord to have the suit decreed and to recover possession and arrears of rent.

The Central Act was enacted pursuant to the recommendation made by <ORG>. The Central Act is an Amending Act as its title itself unmistakably indicates. In Order 15, the Central Act amended only Rule 2 but Rules 3 and 4 remain unamended. The U.P. Act , added Rule 5 to get over the inequilibrium created by recalcitrant tenants, giving an opportunity to the defaulting tenants to pay the admitted rent pending suit at the pain of striking down the defence.

The question, therefore, is whether Rule 5 of Order 15 is inconsistent with the Central Act and thereby became void under Article 254(1) of the Constitution? Entry 13 of the Concurrent List of the 7th Schedule to the Court, namely, Civil Procedure, including all matters included in the Code of Civil Procedure, empowers the <ORG> and the legislature of the State to make or amend the law in that behalf. <ORG> State has power to amend Sections as well as Schedules to the Code while <ORG> is empowered to amend the orders on the Schedules. The Central Act being an Amending Act to the Code of the Civil Procedure Act 5/1908 existing at the commencement of the Constitution appropriate amendments are permissible. Article 254(1) envisages that "if any provision or law made by the <ORG> of a State is repugnant to any provision of law made by <ORG> which <ORG> is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by the <ORG> whether passed before or after the law made by the <ORG> of such State, or, as the case may be, the existing law shall prevail and the law made by the <ORG> of the State shall, to the extent of repugnancy, be void". Clause (2) of Article 254 is an exception to clause (1) which adumbrates that where a law made by the <ORG> of a State with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provision of an earlier law made by <ORG> or an existing law with respect to that matter, then, the law so made by the <ORG> of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State, provided that nothing in this clause shall prevent <ORG> from enacting at any time any law with respect to the same matter including a law adding or, amending, varying or repealing the law so made by the <ORG> of the State. (Emphasis supplied).

<CITATION> ,  SCR 799 at 809, <ORG> of this Court considered whether s.7 of the Essential Supplies (Temporary Powers) Act, 1946 as amended in 1948 and 1949 repealed by implication, the Bombay Act (XXXVI of 1947) being inconsistent with Article 245(1) of the Constitution. At page 809, <ORG> held that "Whether an Act of <ORG> prevails against a law of the State, no question of repeal arises but the principle on which the rule implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will equally applicable to a question under article 254(2) whether the further legislation by <ORG> is in respect of the same matter as that of the State law." It was held that Bombay Act cannot prevail against the Central Act .

This Court in <CITATION> .,  SCR 393, another Constitution Bench was to consider whether the U.P. Sugarcane Act, 1953 was inconsistent with the Essential Commodities Act , 1955. Having adverted to the three principles laid by <NAME> in his <ORG>, 2nd Ed. p.303 approved them as those applicable to test inconsistency or repugnancy, namely (1) there may be inconsistency in the actual terms between competing statutes, (2) though there may be no direct conflict, a <ORG> law may be inoperative because the <ORG> law or the award of the <ORG> Court, is intended to be complete exhaustive code, and (3) even in the absence of intention, a conflict may arise when both <ORG> and <ORG> seek to exercise their powers for the same subject matter. It was, therefore, held that there was no conflict between the <ORG> Act and the Central Act and both do co-exist.

<CITATION> ,  Supp. 2 SCR 8 at 43. <NAME>, J. speaking for majority held that the repugnancy between two statutes may thus be ascertained on the basis of the following three principles :

"(1) Whether there is direct conflict between the two provisions;

(2) Whether <ORG> intended to lay down an exhaustive code in respect of the subject matter replacing the Act of <ORG> ; and (3) Whether the law made by <ORG> and the law made by <ORG> occupy the same field."

Examining the provisions of the U.P. Transport Service Development Act 9/1955 and the Motor Transport (Amendment) Act , 1956, held that the State Law did not, on the passing of the Central Act , become wholly void under Article 254(1) of the Constitution and continued to be valid and subsisting law supporting the scheme already framed under the U.P. Act .

Entire case law was reviewed by yet another Constitution Bench in <CITATION> ,  3 SCR 254, and held that the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 was not repugnant to the Code of Criminal Procedure or the Prevention of Corruption Act or Criminal Law (Amendment) Act , 1952. In that behalf, this Court emphasised that in deciding the question of repugnancy, it must be shown that the two enactments contain inconsistent and irreconcilable provisions so that they cannot stand together or operate in the same field. There could be no repeal by implication unless the inconsistency appears on the face of the two statutes. Both statutes, if operate in the same field without coming in collision with each other there would be no repugnancy. If the statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both statute continue to operate in the same field. In <ORG>, Vijayawada, v. <NAME>, AIR (1987) SC 1960, following the Maxwell's Interpretation of Statutes, held that when the latter Act is capable and reasonably applicable without extending it to the subjects specially dealt with by the earlier legislation, it cannot be held that earlier special legislation indirectly repealed, altered or derogated merely by force of such general words without any indication of a particular intention to do so. Mere general rule is not enough even though by its term, it is stated widely that it would, taken by itself, cover special cases of that kind referred to earlier.

<CITATION> .,  1 SCC 92, the question was whether the Land Acquisition (Amendment) Act 68/84 repealed the U.P. Avas and Vikas Parishad Adhiniyam, 1965, one of us (<NAME> J.) considered the case law whether Central Act would be applicable by reference or by incorporation and held that certain provisions of the Central Act were by incorporation and not by reference. On incompatibility under Article 254 of the Constitution, considered the cases starting from Zaverbhai's upto <CITATION> ,  1 SCR 905, held that the <ORG> law was not repugnant to the Central Act and both would operate consistently and they did not occupy the same field. <ORG> law was not fully inconsistent with the Central Act . Equally, it is not absolutely irreconcilable. Both the <ORG> and the Central Act s do co-exist in relation to the procedure prescribed under the respective Acts. Both the Act s co-exist independently without, in any way, colliding with each other. Therefore, s.55 of the Adhiniyam and the Schedule did not become void.

Clause (2) of Article 254 is an exception to Clause (1). If law made by <ORG> is reserved for consideration and received assent of the President though the State law is inconsistent with the Central Act , the law made by <ORG> prevails over the Central Law and operates in that State as valid law. If the <ORG> amends the law, after the amendment made by <ORG> has received the assent of the President, the earlier amendment made by the State legislature, if found inconsistent with the Central amended Law, both Central law and the State Law cannot co-exist without colliding with each other. Repugnancy thereby arises and to the extent of the repugnancy the State Law becomes void under Article 254(1) unless <ORG> again makes law reserved for the consideration of the President and received the assent of the President. Full Bench of <ORG> held that since U.P. Act 57/76 received the assent of the President on December 30, 1976, while the Central Act was assented on September 9, 1976, the U.P. Act made by <ORG>, later in point of time it is a valid law.

<NAME> contented that the repugnancy arises not with the making the law as envisaged in Clause (1) of Article 254 but when Act was brought into operation since <ORG> Act came into force with effect from January 1, 1977 while the Central Act became operative from February 1, 1977, the U.P. Act is an earlier enactment to the Central Act . The <ORG> evinced intention to bring about an exhaustive amendment to the <ORG> and is applicable to all <ORG>s. The <ORG> amendments, being inconsistent with the Central Act , became void. We find no force in the contention.

Section 97(1) , with a marginal note "repeal and savings" , envisages that any amendment made or any provision incorporated in the Principal Act by a state legislature or <ORG> before the commencement of the Central Act shall, except in so far as amendment or provision is consistent with the provisions of the Principal Act as amended by the Central Act , stands repealed. The emphasis as rightly stressed by <NAME> is "any amendment to <ORG> made by the state legislature or a provision by <ORG>" before the "commencement" of this Act stood repealed. It is to be noted here that the Central Act is an amending Act, not a repealing and consolidating statute to supplant the Principal Act, namely, Act 5 of 1908. Since <ORG> is a concurrent subject, the <ORG> and the <ORG> or <ORG> in respect of orders in the Schedule are competent to enact or amend <ORG> respectively. In fact several local amendments made to <ORG> before the commencement of the Central Act do exist. Pursuant to the recommendation made by the Law. Commission of India to shorten the litigation, the <ORG> made the Central Act to streamline the procedure. It is true that inconsistency in the operation of the Central and the State Law would generally arise only after the respective Acts commenced their operation. <CITATION> of the General Clauses Act defines "commencement" to mean the day on which the Act or Regulation comes into force. The founding fathers were cognizant to the distinction between making the law and commencement of the operation of the Act or Regulation. Article 254 , clauses (1) and (2) and in a way s.97 of the Central Act are also alive to the distinction between making the law and commencement of the law. In Collins English Dictionary at p.889 "make" is defined to mean, to "cause to exist", "to bring about" or "to produce". Black's Law Dictionary, 6th Edn. at p.955 making is defined to cause to exist.....to do in form of law; to perform with due formalities; to execute in legal form;.... The verb 'made' in Art. 254 brings out the constitutional emanation that it is the making of the law by the respective constituent legislatures, namely, the <ORG> and <ORG> as decisive factor. Commencement of the Act is distinct from making the law. As soon as assent is given by the President to the law passed by the <ORG> it becomes law. Commencement of the Act may be expressed in the Act itself, namely, from the moment the assent was given by the President and published in the <ORG>, it becomes operative. The operation may be postponed giving power to the executive or delegated legislation to bring the Act into force at a particular time unless otherwise provided. The Central Act came into operation on the date it received the assent of the president and shall be published in the <ORG> and immediately on the expiration of the day preceding its commencement it became operative. Therefore, from the mid- night on the day on which the Central Act was published in the <ORG> of India, it became the law. Admittedly, the Central Act was assented to by the President on September 9, 1976 and was published in the <ORG> of India on September 10, 1976. This would be clear when we see the legislative procedure envisaged in Arts. 107 to 109 and assent of the President under Art. 111 which says that when a Bill has been passed by <ORG>, it shall be presented to the President and the President shall either give his assent to the Bill or withhold his assent therefrom. The proviso is not material for the purpose of this case. Once the President gives assent it becomes law and becomes effective when it is published in the <ORG>. The making of the law is thus complete unless it is amended in accordance with the procedure prescribed in Arts. 107 to 109 of the Constitution. Equally is the procedure of <ORG>. Inconsistency or incompatibility in the law on concurrent subject, by operation of Art. 254 , clauses (1) and (2) does not depend upon the commencement of the respective Acts made by the <ORG> and the State legislature. Therefore, the emphasis on commencement of the Act and inconsistency in the operation thereafter does not become relevant when its voidness is required to be decided on the anvil of Art. 254(1). Moreover the legislative business of making law entailing with valuable public time and enormous expenditure would not be made to depend on the volition of the executive to notify the commencement of the Act. In compatibility or repugnancy would be apparent when the effect of the operation is visualised by comparative study.

It is true that CPC, the principal Act No. 5 of 1908 as amended by the Central Act and the pre-existing <ORG> amendment or a provision made by <ORG> was intended to be consistent so that the procedure would uniformly be efficacious and expeditious in adjudicating the substantive civil rights of the parties. It, thereby manifested its intention that there should be amendment to the Principal Act by the Central Act to a particular Section or a Rule or sub-rule or a provision in an Order in the Schedule. If the Principal Act, as so amended, and the pre-existing <ORG> amendment or a provision made by <ORG> is found to be inconsistent with the amendment brought under the Central Act , then to the extent of inconsistent pre-existing amendments made by <ORG> Legislature or a provision made by <ORG> becomes void by operation of clause (1) of Art. 256. By operation of sub-s. (1) of s.97 of the Central Act , it stands repealed unless <ORG> Act is passed, reserved for consideration and received the assent of the President under clause (2) of Article 254.  Section 1(2) of the Central Act visualises that <ORG> may bring into operation different provisions in the Central Act at different dates by a notification published in a Gazette. As a matter of fact, three different notifications were published in the official gazette bringing diverse provisions of the Amendment Act into operation form three different dates. All the provisions except amended ss.28, 34 and 148A were brought into force on February 1, 1977. Sections 28 and 148A were brought into force with effect from February 1, 1977 and s.34 was brought into force with effect from July 1, 1977. The legislative business done by the appropriate <ORG> Legislature cannot be reduced to redundance by the executive inaction or choice by <ORG> by issuing different dates for the commencement of different provisions of the Central Act . The Constitution, therefore, made a clear demarcation between malting the law and commencement of the law which, therefore, bears relevance for giving effect to Article 254.

In this view the expression "that provision" in s.97(l) of the Amendment Act must be understood in juxtaposition to Art.254 of the Constitution and not in derogation thereof. If the contention of the counsel that the commencement of the provision is a condition precedent to bring about inconsistency by statutory interpretation, the word "made" be substituted with the word "commencement" in Article 254 (1) and (2) of the Constitution which is impermissible by interpretative process and amounts to judicial legislation.

The contention of the learned counsel proceeded on the assertion that the Central Act is a consolidation Act intended to repeal Act 5/1908 and re- enact Act 104/76 to be a complete code is misconceived. The title of the Act itself manifests the intention of the <ORG> that it is an ' Amending Act " to various provisions of the <ORG> by only 96 Sections to the main Code. It is also true that s.97(l) of the Central Act says that any amendment, made, or any provision inserted to the principal Act by a State legislature or <ORG> before the commencement of the Central Act shall, except in so far as amendment or provision is consistent with the provisions of the principal Act as amended by the Central Act , stood repealed. The contention advanced by the learned counsel for the appellants is that all pre-existing amendments stood obliterated unless fresh amendment, by <ORG> or <ORG>, is made after February 1, 1977 reserved for consideration and received the assent of the President. In support thereof they placed reliance on the ratio in <NAME> case. It may be mentioned at once that Justice <NAME> (as he then was) who rendered the judgment in <NAME> case, on behalf of a Bench of two judges, himself referred the cases for consideration by a three Judge Bench. In that case, some observations made would lend support to the contention of the appellant. It was observed thus:

"(i) The object of Section 97 of the Amending Act appears to be that on and after February 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject to course to any future local amendment that may be made either by <ORG> or by <ORG>, as the case may be in accordance with law. Until such amendment is made the Code as amended by the Amending Act along should govern the procedure in civil courts which are governed by the Code . We are emphasising this in view of the decision of <ORG> which is now under appeal before us."

(ii) " Section 97(1) of the Amending Act takes note of the several local amendments made by a State <ORG> and by <ORG> before the commencement of the Amending Act and states that any such amendment shall except insofar as such amendment or provision is consistent with the provisions of the Code as amended by the Amending Act stands repealed. It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act would cease to be operatives on the commencement of the Amending Act , i.e. on February 1, 1977."

(iii) The repealing provision in section 97(1) is not confined in its operation to provisions of the Code including the Orders and Rules in the First Schedule which are actually amended by the Amending Act ".

The ratio therein must be understood in the light of the facts therein. Rule 72 of Order 21 CPC was amended by the <ORG> legislature, equally the Central Act repealed the existing rule and re-enacted the rule so as to be self-operative and complete code consistent with the development of the law. Therefore, the Bench held that <ORG> amendment since was not consistent with the Central Act , the <ORG> amendment was declared repugnant to the Central Act . Therefore, it became void unless it was re-enacted by the <ORG> Legislature, reserved for consideration and received the assent of the President. The ratio on the facts in that case is unexceptionable but observations which we have noted above, gave rise to a construction advanced by the counsel. The wide construction put up by the Bench with due respect does not appeal to be sound. It is seen that Order 15 of the Central Act , as it stood before to the Amendment Act , consists of only Rules 1 to 4. Since the special need arose in Uttar Pradesh to maintain equilibrium between the rights of the tenants of their fixity of tenures subject to compliance with the provisions of the Rent Act and of the landlord to receive rent from the tenant, even pending proceedings, enacted Rule 5 and received the assent of the President and became a statute. Three Explanations were made by U.P. Act 57/76 to remove ambiguities and doubts. As stated earlier, the Central Act being an Amending Act and not a repealing Act and only Rule 2 of Order 15 was amended by the Central Act and the <ORG> Act made no amendment to Order 15 Rule 2. Rule 5 as was pre- existing was not dealt with in the Central Act . On the other hand, Section 35-B of the Code empowers the <ORG> to strike down the defence if costs are not paid as directed by the <ORG>. Equally, Order 6 Rule 16 empowers the <ORG> to strike down the pleading on conditions mentioned in the said Rule. Order 11 Rule 21 empowers the <ORG> to strike down the defence in case the party fails to comply with any order to answer interrogatories for discovery or inspection of the documents. The Code, thus, by itself envisages striking of the defence in the stated circumstances. Similar provision made by the <ORG> Legislature is also consistent with the policy and principles of the Act 5 of 1908 as amended by the Central Act . In other words, there is no repugnancy in that behalf.

The condition precedent to bring about repugnancy should be that there must be an amendment made to the Principal Act under the Central Act and the previous amendment made by a State legislature or a provision made by <ORG> must occupy the same field and operate in a collision course. Since the State Act as incorporated by Act 37/72 and the Explanations to Rule 5 by the Act 57/76, Rule 5 was not occupied by the Central Act in relation to the State of U.P., they remain to be a valid law. We may clarify at once that if the Central Law and the State Law or a provision made by <ORG> occupy the same field and operate in collision course, the State Act or the provision made in the Order by <ORG> being inconsistent with or in other words being incompatible with the Central Act , it becomes void unless it is re-enacted, reserved for consideration and receives the assent of the President after the Central Act was made by the <ORG> i.e. September 10, 1970.

It is true that inconsistency or incompatibility of the operation of the Central Act and the State Act would also arise after the respective Acts are brought into force and such State Act must be prior in point of time to the Central Act . We have already found that the point of time is with reference to making the law as envisaged in Article 254 and not when the Central Act had come into force. Accordingly we hold that there is no inconsistency in the operation of Rule 5 of Order 15 since the same is not occupied by the Central Act or Act 5 of 1908 and that, therefore, it did not become void.

The contention that s.20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act , 1972, provides procedure for payment of the arrears "on the first date of hearing of the suit" and if the tenant deposited the arrears, the <ORG> has been given power to relieve the tenant against the liability for eviction on that ground and Order 15 Rule 5 provides discriminatory procedure offending Article 14 needs no close scrutiny. The two procedures are distinct and separate. The former gives opportunity to a tenant to make amends to his conduct of default and to availed the benefit of avoiding decree for eviction under the Rent Control Act. The jurisdiction of the <ORG> <ORG> in that behalf was expressly taken out. The further contention that Order 15 Rule 5 makes arbitrary discrimination between two classes of tenants, namely, one making a bona fide mistake in not depositing the rent prior to the date of the first hearing and the other a dishonest tenant who takes a plea disputing the rent itself and permitted the latter to contest the suit by an adjudication and the former is negated by striking down the defence which violates Article 14 also is untenable. As stated earlier the bonafide mistake on the part of the tenant in depositing the rent was given benefit of the discretionary relief may be granted by the <ORG> considering from the previous conduct of the tenant and the mitigating circumstances, if any. Therefore, they are treated as a class. The dispute of tenancy and right to adjudication thereon also stands as a class. The tenant in default at a suit in the court of <ORG> is given right to contest the suit subject to his paying the admitted rent. It is a condition precedent. All those tenants are treated as a class. There is no invidious discrimination in that class. All are treated alike. There exists discernible differantia between two classes. The only class of tenants who commit default in payment of admitted rent after an order has been passed by the court, alone are disabled to contest the suit by striking of defence due to his recalcitrant attitude in committing further default in payment of the rent. The nexus in pregnant with legislative wisdom to protect the landlord from hardship. Order 15 Rule 5 gives a right to the plaintiff to make an application to this <ORG>. The <ORG> after considering the respective contentions and circumstances would pass an order directing the tenant to continue to pay the admitted rent as a condition to contest the suit. On his committing default, the defence will be struck off. The classification is based on intelligible differantia. The procedure, therefore, is consistent with the just and fair procedure to mitigate the hardship to the landlord and to prevent unfair advantage of delaying the disposal of the suit by the tenant. The procedure, therefore, is neither discriminatory nor arbitrary nor capricious but one which is judicious.

The next question is whether the Central Act is retrospective in operation? The majority of <ORG> held that it is retrospective and one Judge held it to be prospective and, therefore, U.P. (Amendment) Act would not be applied to the pending proceedings. Section 97 (3) itself has taken care of the situation and envisaged thus:

"97(3) Save as otherwise provided in sub-Section (2), the provisions of the principal Act, as amended in this Act, shall apply to every suit, proceeding, appeal or application pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding appeal or application is instituted or filed, had been acquired or had accrued before such commencement."

Note This reference relates to amendments made to rules in Order 39.

However, a plain reading clearly indicates the legislative intention that the provision of the principal Act as amended in the Central Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amendment Act or filed thereafter, notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commencement. Thereby it would be applicable to the pending proceedings even though a right had accrued or proceedings were instituted prior to the Central Act and the State Act have come into force.

Accordingly, we hold that s.97(3) itself has affected the vested right and given retrospective operation to the pending proceedings, apart from applicability of the law from that date. It may be of interest to notice that after the judgment in <NAME> case, the matter was again refereed to another Full Bench to reconsider the affect of the ratio in <NAME> case, the subject matter of the appeals. The Full Bench in <CITATION> , AIR (1989) All. Page 1, considered the affect of the <NAME> ratio and held that the ratio in <NAME> case was not weakened. The ratio of the Full Bench was held to be still good law.

In the above perspective, we are of the view that Order 5 Rule 15 is still a valid law, retrospectively operates and applies to the pending proceedings instituted prior to the State Act 57/76 and the Central Act have come into force.

The appeals are accordingly dismissed but in the circumstances without costs.

Appeal dismissed.