JUDGMENT <NAME>, J.

1. This appeal is directed against a judgment, dated December 2, 1978, of <ORG>, maintaining the conviction of <NAME>, appellant under Section 302, Penal Code , with a sentence of life imprisonment.

2. Appellant's father, <NAME>, is the eldest of four brothers, others being <NAME>, deceased, <NAME> and <NAME>. <NAME> and <NAME> were residing in the ground floor of House No. 2934 in Gali No. 5, Sarai Khalil, Sadar Bazar, Delhi; while the appellant, his father <NAME>, his mother and brothers and sisters were residing in the first floor of the same House No. 2934. Opposite House No. 2934, is House No. 2931 in which <NAME> deceased along with his wife's brother, <NAME>, and <NAME> used 1o reside. <NAME> was unmarried,

3. On April 8, 1974, <NAME> deceased and <NAME> gave a beating and caused injuries to <NAME>, mother of appellant and his sisters, <NAME> and <NAME>. At that time, no men-folk were present at home.

4. The occurrence in question took place on April 16,1974 in the forenoon at about 11.00 a.m. It was preceded by a sharp quarrel between <NAME> and <NAME> in the bazar.<NAME> deceased accompanied by <NAME> and his wife went to <NAME>'s house and assaulted <NAME>, wife of <NAME> and further caused a knife injury on her six month old child. Thereafter, at a short distance from the house, <NAME> deceased armed with an iron bar and <NAME>, carrying a knife scuffled with the appellant's father, <NAME>, <NAME>, and caused him injuries. The appellant came to his father's rescue and a scuffle ensued between <NAME> deceased and the appellant, in the cause of which, both received injuries. After stabbing the deceased with a knife the appellant, boiled away <NAME> was removed from the spot to <ORG>. <NAME>. Rashid went to the Sadar Police Station and lodged the F.I.R. about this occurrence at 2 40 p.m. Another information is stated to have been recorded at 3.45 p.m.

5. In the hospital, Dr. <NAME> examined <NAME> and found six wounds on his person. Injury No. 1 was a Stab wound on the upper part of the posterior triangle on the left side of the neck. Injury No. 8 was a Y shaped wound on the left pectoral region. Injury No. 3 was located on the left elbow on the posterior surface. Injury No. 4 was situated in the supra public region, while injury No.5 was a wound on the right fore-arm.

6. The learned trial Judge found that <NAME>, father of the appellant, was first man-handled and assaulted by <NAME> when he was proceeding to the Police Station to lodge a report. He, however, head that since the stab wound to <NAME> was caused on the thigh, there was no intention on the part of <NAME> and <NAME> to cause any further injury to <NAME> when the appellant intervened and assaulted the deceased. On this premise, he held that the appellant had not caused the injuries to the deceased in the exercise of his right of private defence.

7. <ORG> held that the injuries inflicted by <NAME> appellant to <NAME> make it a case of retaliation or retribution and not one of the exercise of his right of private defence. Nevertheless, <ORG> conceded ; "It appears to us that <NAME> was first attacked and injured. <NAME> naturally lost his temper and went for the persons attacking his father If he had inflicted one injury perhaps it could be claimed that it was either in the heat of the movement or in the exercise of the right of private defence. According to <ORG>, since the appellant had caused more than one stab wound to the deceased his case "was not within the realm of exercising the right of private defence."

8. Before us, the argument of the learned Counsel for the appellant is two fold. Firstly, it is urged that the circumstances brought on the record are sufficient to show with a balance of probability, that the appellant caused the injuries to the deceased in the exercise of his right of private defence of his father and of himself and, as such, his case was covered by Section 96 ; Penal Code . Secondly, it is submitted that in any case, the circumstances and material brought on the record in cross-examination of the prosecution witnesses, or otherwise establish such a preponderance of possibility, virgin on probability, in favour of the plea of private defence, that by its inexorable impact it creates a strong doubt with regard to the truth of the prosecution story viz that the appellant stabbed the deceased after <NAME> had been released and got aside to nurse bis injury.

9. We sent for the original record and examined it to ascertain whether the <ORG> below had appreciated the evidence in the context of the plea of private defence taken by the appellant correctly.

10. <ORG> had found that <NAME> who had lodged the First Information Report and claimed to be an eye witness of the occurrence, was not a reliable witness. Besides being the brother of the deceased, he had the audacity to tell patent lies on material points. In this case, it may be noted that both sides had received injuries. <NAME>, the acquitted co-accused, the father of <NAME> appellant, had received four injuries, including a stab wound. This stab wound, according to the defence, as it appears from the material on record, was inflicted by <NAME>. Initially, in F.I.R. <NAME> have a very funny account of this injury on <NAME>. He stated that this injury was inflicted his son, <NAME> (appellant) when the blow attempted by the latter on <NAME> accidently landed on <NAME>. At the trial, he did not give any explanation what ever, as to how <NAME> received the injuries, although in cross-examination he admitted that in the course of the occurrence <NAME> was also injured. In cross-examination, he dined the defence suggestion, that <NAME> was assaulted by the witness with a knife and by <NAME> deceased with an iron bar (Saria). He also denied the suggestion that the blood-stained knife (Ex. P-3) found from the torn shirt piece at the spot, was the one that he had used at the time of occurrence. In examination-in-chief, improving upon his version in the F.I.R. he said that <NAME> had clenched the deceased in his arms from the back side, while his son. <NAME>, appellant, repeatedly stabbed him (<NAME>). This story was contradicted in material particulars by the other two eye-witnesses, namely, <NAME> (P.W. 5) and <NAME> (P.W. 6). <NAME> (P.W. 5), stated he was sitting at his shop situated in the vicinity of the scene of occurrence, when he saw three persons, namely, <NAME>, <NAME> and <NAME> quarrelling and beating each other at some distance from his shop. The witness then beared and saw <NAME> appellant shouting that he would teach a lesson to the deceased for defaming his sister, and saying so, he stabbed <NAME> with a Chhuri. In cross-examination, the witness initially stated that he did not care to note whether <NAME> had also received any injury, but on further cross-examination, he did not categorically deny the defence suggestion that it was <NAME> who first opened the assault on <NAME> with knife. He tried to evade this question by saying that he could not see <NAME> bleeding from any injury because this stabbing took place 10 or 12 feet away from his shop and he was then busy weighing and selling articles to some children who were standing at his shop. Cross-examined further, the witness conceded that after the first quarrel, <NAME> attempted to go to the Police Station, but <NAME> caught hold of him and prevented him <NAME>, however,, got himself released and tried to run towards the Police Station. It was at this juncture that <NAME> came and stabbed <NAME>. <NAME> also intervened and caught hold of <NAME>'s hand. The witness denied having seen any injury being caused to <NAME>.

11. Although <NAME> demolished <NAME> story that <NAME> had gripped the deceased from behind while the appellant stabbed him, yet from the general tenor of his statement, it appears that he was not desirous of telling the whole truth. He tried to favour <NAME> and keep him out of picture. However, after a good deal of equivocation and prevarication, towards the end of the cross-examination, the witness conceded : It is correct that <NAME> and <NAME> attacked <NAME> when <NAME> came there to help his father.

12. <NAME> (P.W, 6) also falsified <NAME> story that <NAME> was holding the deceased from behind while <NAME> was inflicting the knife blows on the deceased. P.W. 6 candidly stated that <NAME> did not do any such thing but he was simply present there and was already injured. Thus, he admitted that <NAME> stabbed <NAME> only after <NAME> had been injured. In sross-examination, the witness further disclosed that he had seen <NAME> stabbing <NAME> on the leg with the knife (Ex, P-3). He did not categorically deny the defence suggestion that after <NAME> had been injured, <NAME> rushed to save his father, but <NAME> and <NAME> intercepted him, but simply stated that he did not see. On further, cross-examination, the witness admitted : <NAME> was armed with a Saria, At first injury was caused to <NAME>. Thereafter, <NAME> felt enraged and quarrel ensued between <NAME> and <NAME>...

13. In his examination under Section 313 Cr. P.C., <NAME>, <NAME>, inter alia, stated:

The correct facts are that on April 16. 1974 at about 11.00 a.m. I was present in my house along with my son <NAME> when <NAME> and <NAME> came there. They first injured <NAME> and her child and thereafter started beating me. I started going to Police Station whereupon <NAME> and <NAME> caught hold of me and also tore my shirt. While I was going (starting for the Police Station) <NAME> gave a stab wound on my thigh that <NAME> was holding a Saria in his hand and they wanted to further attack me when my son <NAME> came to my rescue. They also beat <NAME> and both <NAME> and <NAME> grappled with each other.

14. Similarly, the appellant, during his examination at the trial stated:

I was present at my house along with my father <NAME>. <NAME> and <NAME> came there. <NAME> stabbed <NAME> with the knife. He also cut off the nose of a child aged about 1 year of <NAME> Chaottey Khan was armed with a Saria and <NAME> was armed with a knife and they started beating my father. Thereupon my father <NAME>, stated going to the Police Station, and thereupon <NAME> along with <NAME> caught hold of my father <NAME> in the process the shirt of my father was torn <NAME> then stabbed my father <NAME>, and <NAME> at that time was armed with a Saria and they tried to hit my father with the Saria. Then I came in between to save my father. I and <NAME> grappled with each other and I was also injured.

15. It may be noticed that <NAME> <NAME> was examined on April 16, 1974 by Dr. <NAME> at the written request of <NAME>, Sub-Inspector of Police who had investigated the case. Ex. PW 15/A shows that in the 'Statement of injuries" prepared by the Investigating Officer, he had noted three bleeding injuries on the left eye, head and left buttock of <NAME> <NAME>. apart from a swelling on the right side of the mouth. Dr. <NAME>, vide Ex. PW. 15/A found four injuries on <NAME> <NAME>.

(1) Abrasion 1/4" x 1/10' left side of scalp parlelal region Reddish in colour.

(2) Lacerated wound 1/4" x 1/10" x 1/10' left upper bital (occipital) region.

(3) Incised wound 1" x 1/10" x 1/10" thing upper back with clean-cut margins and electrical in shape.

(4) Complains of loosening of upper left inciser(sic). (Slight loosening seen, referred to Dental Surgeon for expert opinion).

According to the Doctor, all the injuries except No. (4) were simple and all the injuries (except No. (3) which was caused with a sharp-edged weapon), were caused with a blunt object. The duration of all the injuries at the time of medical examination was 12 to 13 hours.

16. From this medico-legal report, it is clear that at least three of the injuries on <NAME>, could possibly be caused with the iron bar carried by the deceased. <NAME>, <NAME> does not seem to have been examined as a witness at the trial. It was the duty of the prosecution to produce Dr. <NAME> as a witness, particularly when he had examined <NAME>, at the instance of the Investigating Officer. The prosecution could not be allowed to take advantage of their own default and object that the medico-legal report, which had been exhibited in evidence as Ex. PW. 15/A, was not formally proved. The inference that can reasonably be drawn from this medico legal report (Ex.P.W. 15/A) is that at least three of the injuries on <NAME> could possibly be caused with the iron bar carried by the deceased. In this connection it may further be noted that according to the report of the Serologist, human blood of Group'O' was found on the shirt (Ex P 7), <NAME> (Ex. P 8) and <NAME> (Ex. P-9). <NAME> admitted that these clothes belonged to him, but added that this blood on them had been "planted" by the Investigation Officer. The blood of the deceased which was collected from the spot, according to the Chemical Examiner, was also of Group 'O'

17. The Courts below have rejected the prosecution story propounded by its star witness <NAME> inasmuch as he stated that <NAME> was holding the deceased from behind when <NAME> stabbed <NAME>. As a necessary corollary from that finding it follows that the blood of Group 'O' found on the clothes of <NAME> was a fabrication. But in spite of this implication which had necessarily cost a doubt in regard to the core of the prosecution case, the Courts below did not extend its benefit to the appellant.

18. Dr. <NAME> had examined <NAME> appellant under the order of the Magistrate on April 19, 1974 at 5 p.m. and prepared the medico-legal report (Ex. P.W. 15/DY) wherein <NAME> has noted these injuries.

(1) Infected abrasion wound over the right index finger palmer aspect distal part about 1/2, (2) Infected abrasion wound about 1/2" over the right middle finger palmer aspect distal part.

(3) Infected abrasion wound over middle of the right ring finger palmer aspect.

In the opinion of the Doctor, the duration of these injuries was three to four days and they had been caused with blunt hard, pointed object. Dr. <NAME> was not examined as a witness in the case. However, the medico-legal report was let in evidence without any objection. The prosecution cannot profit by their failure to examine the DoctOrs. This medico-legal report (Ex. P.W. I5/ DY) was provided by <NAME> (P.W. 15), Record-Keeper of Police Hospital, who was acquainted with the hand-writing and signature of Dr. <NAME> and identified Dr. <NAME>'s signature on Ex. P.W. 15/DY, The medico-legal report shows that the possibility of <NAME> appellant having received these injuries on his hands with an iron bar, cannot be ruled out,

19. It is trite that the onus which rests on an accused person under Section 105 , Evidence Act , to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence which the accused is charged, beyond reasonable doubt. It is further well-established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in "golden scales" the precise force needed to repel the danger. Even if he at the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind the law makes due allowance for it. Viewed in the light of these principles, the defence, in the instant case had succeeded in establishing with a balance, of probability, that the deceased and <NAME> armed with a Saria and knife respectively, first assaulted <NAME> and thereupon the appellant assaulted the deceased, to save his father and himself from further injuries, Even if it be assumed for the sake of argument that the material on record fell short of discharging the nature of onus oh the appellant under Section 105 , Evidence Act , on account of the non-production of the Doctor who examined <NAME> and the appellant, and prepared the medico-legal reports Ex. P.W, 15/A and Ex P.W, 15DY, then also, the benefit of that efficiency and the doubt arising therefrom, could not be given to the prosecution. The prosecution case as propounded by its star witness <NAME>, was that both the father (<NAME>) and the son (appellant) actually participated in the assault on the deceased. To support that story, the prosecution went to the length of 'planting the deceased's blood on the clothes of <NAME>. When this substratum of the story viz. <NAME> holding the deceased at the time of the fatal assault, was found to be false and no satisfactory explanation was coming forth from the prosecution about the injuries of <NAME> and the appellant, the only crudent course in the ultimate analysis, for the <ORG> was to hold that the prosecution had failed to discharge its burden of bringing home the guilt to the appellant beyond reasonable doubt.

20. For reasons aforesaid, we had per our order dated 13-9-79 allowed this appeal and acquitted the appellant.


JUDGMENT <NAME> and <NAME>, <NAME>

1. In our opinion this appeal must be dismissed. A question of principle has been raised apparently for the first time in this Court, namely as to whether an unpaid call, due from a share-holder of a company, which has become statute-barred under Article 112 of the Limitation Act , and has therefore ceased to be a recoverable debt by the company, may yet be recovered if at any date subsequent to its having become time-barred the company is wound-up. That question really depends upon the nature of the liability of a contributory and the provisions of the Indian Companies Act relating to winding-up. We entirely agree with the contention put forward by the appellant's counsel that so far as the recovery of the original debt based upon calls made by the company which has become time-barred is concerned, the liquidator has no higher right than the company. The company could not sue for these calls, no more can the liquidator. But the proceeding before us, as has been pointed out by the learned Counsel for the respondent, is not a suit at all. What has happened is that in the performance of his duty the liquidator has put the appellant on the list of contributories. Once a member of the company is upon the list of contributories,--unless he succeeds in showing as against the liquidator that he should not have been put on the list of contributories,--he is liable for all those matters in respect of which he may be charged in the event of a company being wound up, that is to say, to the extent of his original share held in the company which remains unpaid, he is liable to contribute to the assets of the company for payment of the debts due to creditors and the expenses of the winding up under Section 61 of the Indian Companies Act, No. VI of 1882. Now it is necessary to refer to Section 125 of that Act in order to ascertain the nature of that liability. Section 125 provides as follows: "The liability of any person to contribute to the assets of a company under this Act, in the event of the same being wound up, shall be deemed to create a debt accruing due from such person at the time when his liability commenced, but payable at the time or respective times when calls are made, as hereinafter mentioned, for enforcing such liability." Now it is quite clear that the contribution dealt with under Section 61 , which is in itself a sort of correlative duty to the right which a share-holder has to have his liability, for any debt or expense of the winding up which the company may have incurred, limited to the amount of his original subscription, is not in itself a debt. But the Act says that for the purpose of recovery the amount shall be deemed to be a debt payable at the time or respective times when calls are made, and Section 151 gives a court, power to make calls from persons on the list of contributories for the amount for which they are shown as liable in the list prepared by the liquidator; so that really it is not even the right of a company which is being enforced by a liquidator. It is a statutory right of the creditors of a company to enforce against the contributories of an insolvent company through the court the obligation which the share-holders took upon themselves when they originally subscribed in the event of insolvency subsequently overtaking the company. In our opinion the two decisions in <NAME> v. Ishwardas Jugjiwandas Store (1895) I.L.R. 20 Bom. 651 and in <NAME> v. <NAME> (1907) I.L.R. 31 Mad. 66, referred to in the Judgment appealed against were right, and were in accordance with the principles on which this question has always been considered under the English law and ought to be followed by us. We dismiss this appeal with costs.


JUDGMENT <NAME>, C.J.

1. This Appeal against the Judgment of <NAME>, J., in C.M.S.A. No. 130 of 1954 arises in the following circumstances. One <NAME> filed O.S. No. 675 of 1952 in <ORG>, Tiruchirapalli, against <NAME>, the respondent herein, for recovery of possession of the property in dispute and for past and future rents. In that suit the parties entered into a compromise and based on that compromise the Court passed a decree directing the respondent herein to deliver possession of the property by 15th March, 1954 and also to pay past and future rents. As the respondent failed to deliver possession by the prescribed date, the plaintiff-decree-holder filed E.P. No. 240 of 1954 on 18th March, 1954, for delivery of possession. An order for delivery was passed on 12th April, 1954, directing delivery by 10th Jnne, 1954. On 15th April, 1954, the respondent filed an appeal to <ORG>, Tiruchirapalli, against the order for delivery (A.S. No. 177 of 1954). In that appeal he obtained on ex parte order of stay on 15th April, 1954, itself. On 27th May, 1954, the original decree-holder <NAME> died. On 8th July, 1954, <ORG> dismissed A.S. No. 177 of 1954 on the ground that the order of delivery was right. The learned Judge inter alia observed as follows:

The right given to a tenant by Section 7 of the Act is a substantive right and there is nothing in the Act to indicate that it is retrospective in the application. Therefore, there can be no question of applying the provisions of the Act, so as to hold that the order of delivery passed against the appellant is wrong. It is urged that Section 7 not merely vests a right in the appellant but prohibits the <ORG> from evicting him. If that is so, it is for the appellant to ask the <ORG> which is threatening to evict him to stay his hands (whether it is bound to do so or not is not a matter on which I am expressing any opinion); not to come in appeal against an order which is perfectly proper and legal.

2. Apparently the view taken by the learned District Judge was that Section 7 of the Madras Buildings (Lease and Rent Control) Act would not make the original order for possession ipso facto invalid, but it might be that the judgment-debtor could object to actual eviction in pursuance of the order. After the dismissal of his appeal the respondent filed an application, E.A. No. 845 of 1954 on 12th July, 1954, for Stay of execution. Meanwhile the son of <NAME>, the present appellant before us, filed an application on the same day that he may be added as legal representative of the decree-holder praying for a decree directing delivery of possession of the suit property to him. The ground taken by the respondent was that the Rent Control Act had been extended to the village in which the property was situated on and from 16th June, 1954 and therefore the decree-holder's legal representative could not evict him. The learned District Munsif of Tiruchirapalli overruled the respondent's objection and brought the appellant before us as the legal representative of the deceased decree-holder and passed again another order for delivery of possession to the legal representative. Against this order of the District Munsif the respondent filed an appeal, A.S. No. 261 of 1954 which was heard and disposed of by the learned Subordinate Judge of Tiruchirapalli. He dismissed the appeal on the ground that Section 7 of the Act would not apply to pending execution proceedings, that is to say, to the prior execution petition wherein an order for eviction had already been passed. From this order the respondent preferred an appeal to this Court, C.M.S.A. No. 130 of 1954 which came up for decision before <NAME>, J. The only question argued before him was whether the Rent Control Act whose application had been extended to the village in which the property was situated only on 16th June, 1954, would prevent the eviction of <NAME> except in accordance with Section 7 of that Act. The learned Judge after an elaborate discussion of the several decisions cited before him held that Section 7 of the Act does apply and is a complete answer to the claim of the decree-holder's legal representative to evict the respondent. The learned Judge therefore allowed the appeal and dismissed the execution petition filed by the decree-holder's legal representative but granted leave to file a Letters Patent Appeal.

3. Mr. <NAME>, learned Counsel for the appellant, contended, relying upon the well-known rule against implying retrospective operation of statutes, that Section 7 of the Act would only apply to decree passed in suits filed after the passing of the Act. In this case admittedly the decree was passed long before the Act, and even an execution petition had been filed before the Act came into force. We cannot agree with this contention of learned Counsel for the appellant. Na authority has been cited to us for this extreme position that Section 7 would not apply except to decrees passed in suits filed after the passing of the Act. On the other hand <ORG> of this Court held in <CITATION> (1949) 1 M.L.J. 376 : A.I.R. 1949 Mad. 809, that a provision similar to Section 7 of the Act of 1949 might bar the eviction of a tenant in execution of a decree passed in a suit filed before the concerned statute. In that case the suit was filed in 1943 for eviction of the tenant. On 11th July, 1944, Clause 8 of the Madras Non-Residential Buildings Rent Control Order, 1942, was amended and when so amended the clause ran as follows:

A tenant in possession of a non-residential building shall not be evicted therefrom, whether in execution of a decree or otherwise...except in accordance with the provisions of this clause.

4. It was contended before <ORG> that the moment a person files a suit he obtains thereby a vested right to have applied not only to the suit, but to all execution proceedings also, the law relating to execution as it existed at the time of filing the suit. The learned Judges had no difficulty in rejecting this contention as they were not aware of any such principle. They found no reason to think that if a new law is introduced restricting the right to execute, execution proceedings can nevertheless be instituted if such a right existed on the date of the filing of the suit. The observations of <NAME>, J., in The United Provinces w. Mt. Atica Begaun (1941) 1 M.L.J. Sup. F.C. 65, were relied on behafore <ORG> but the learned Judges did not agree that the observations in any way affected their decision. Actually in that case the decree was passed after Clause 8 of the Non-Residential Buildings Rent Control Order had been amended in the manner aforesaid. The execution petition was filed subsequently. The decision of the learned Judge was that Clause 8 prohibited the decree-holder from filing an execution petition, his only way of evicting the tenant being to file an application before the Rent Controller. No doubt there is a reference to pending proceedings in one part of the judgment but it was not necessary to deal with the point because they held that during the interval between the passing of the decree and the filing of the execution petition there was no pending proceeding. The basis of the decision is certainly against the view that Clause 8 would not affect pending proceedings. Mr. <NAME> relied upon the decision of <ORG>, in <NAME> v. <NAME> (1945) 1 M.L.J. 441. In that case the Chief Judge of <ORG> dismissed an application for ejectment. That application was filed on 18th March, 1944. There was a sub-letting of a portion in June, 1943. Possession was to be given on 14th April. On 14th April the plaintiff when he sought to obtain possession was obstructed by the respondent. Thereupon an application was made to <ORG> and that Court dismissed the application. The learned Judge adverted to the difference in the language between the old Section 7-A, Madras House Rent Control Order and the new Section 7-A. The learned Judge took the view that <ORG> had no jurisdiction to invoke the new provision and construe it to operate retrospectively. He allowed therefore the revision petition before him and set aside the order of <ORG>. In the concluding portion of his judgment there are certain observations which really are pertinent for the disposal of this case, namely:

If and when an application for possession comes before the Controller, the Controller should apply his mind to the circumstances actually and presently before him to enable him to make or refuse an order, and it would be for one side or the other to point out that the application for ejectment had lost its force owing to the fact that since the application has been made, difficulties which were then not in existence had arisen or difficulties that were in existence had disappeared.

5. We must confess we are not able to fully appreciate the scope of these observations. The Division Bench in <CITATION> (1949) 1 M.L.J. 376 : A.I.R. 1949 Mad. 809, understood this passage thus:

It is seen from this passage that the learned Judge, far from thinking that the landlord had, by the institution of his application for possession in the Sub-Court, acquired an absolute right to physical possession, contemplated proceedings before the rent controller in which it would be contended by the tenant that in view of the new legislation, actual possession could not be given.

<CITATION> (1949) 1 M.L.J. 452, it was pointed out by a Division Bench to which one of us was party that the jurisdiction of a Civil Court to entertain and pass a decree in a suit for eviction by a landlord against his tenant is not expressly or impliedly taken away and that Clause 8 of the Madras Non-residential Buildings Rent Control Order, which corresponds to Section 7 of the Madras Buildings (Lease and Rent Control) Act, 1949, prevents the tenant from being thrown out. One of the methods of eviction is by the process of execution of a decree for possession and it was held that this method was prohibited and eviction could only be in accordance with the provisions of the Rent Control Order.

6. In our opinion this appeal can be disposed of on a very short point. This appeal arises out of an execution petition filed on 12th July, 1954, (E.P. 240 of 1954) by the legal representative of <NAME>. There was no doubt a prior execution petition filed by <NAME> himself and an order for eviction but admittedly the respondent had not been evicted in pursuance of that order. That is why after the death of <NAME> his legal representative, the appellant before us, was compelled to file another execution petition praying for delivery of possession. That admittedly was filed after the Rent Control Act had come into operation in the village in which the property was situated. We fail to see how the principle against retrospective operation is offended in this case. It is not as if during the pendency of E.P. No. 240 of 1954, out of which this appeal arises, that the Rent Control Act came to be extended to the suit village. By the date of the filing of the present execution petition the Act had come into force. The executing Court which was bound to apply the provisions in the statute had come into force even before the date of the execution petition which it was called upon to dispose of. In our opinion there is no substance in the contention of learned Counsel for the appellant.

7. It was argued but without the support of any authority that Section 7 would not apply to compromise decrees. Once a decree is passed, we can see no difference on principle between a decree passed on a compromise and a decree passed after contest.

8. Mr. <NAME> sought to raise a new point which was not raised by him in the Courts below and not even in the memorandum of appeal, namely, that as the respondent had obtained a stay of the order for delivery passed by the learned District Munsif of Tiruchirapalli on 15th April, 1954, on the misrepresentation that the Rent Control Act had been extended to the suit village, he was disentitled to any relief based on the provisions of the Act. We do not have the order of stay passed by the learned District Judge nor a copy of the affidavit filed by the respondent in support of his application. We do not know what prompted the learned District Judge to pass the ex parte order. In the absence of even a specific ground in the Letters-Patent Appeal, we do not think the appellant should be allowed to raise a new point at this late stage. The appeal fails and is dismissed with costs.


PETITIONER: A. K. SUBRAMAN & ORS. ETC. Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT11/12/1974 BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. REDDY, P. JAGANMOHAN BHAGWATI, P.N. CITATION: 1975 AIR 483 1975 SCR (2) 979 1975 SCC (1) 319 CITATOR INFO : R 1977 SC 251 (33,39) RF 1977 SC2051 (38) D 1979 SC1073 (15) RF 1980 SC1561 (27) RF 1980 SC2056 (73) R 1981 SC 357 (4) RF 1981 SC 561 (69,72) R 1983 SC 881 (43) E 1984 SC1291 (7,9,13,15,19,21,23,28,32,36) R 1984 SC1595 (24) F 1985 SC1019 (18,19) D 1985 SC1558 (24,28) RF 1985 SC1605 (16) D 1985 SC1681 (5) RF 1987 SC2359 (9) D 1988 SC 268 (27) D 1990 SC1607 (19,21,25) RF 1991 SC1202 (30) RF 1991 SC1244 (7,10) ACT: Civil Service-Seniority, whether to follow length of service or confirmation Quota rule whether implies rotational formula-Whether vacancies means vacancies in permanent posts only or it includes vacancies in temporary posts also.- Memorandum of Home Ministry dated 22-6-1949 and 22-12-1959- Memorandum of <ORG>. Housing and Supply dated 8-12-1960. Distinction between promotion and confirmation. For recruitment through two sources whether quota is interdependent or independent-Constitution Article 77(3)- Effect of Memorandum issued by Ministry other than one empowered under Allocation of Business Rules. HEADNOTE: The petitioners who were Assistant Engineers (Class II) were promoted to officiate as Executive Engineers in Class I Central Engineering Service by a properly constituted <ORG>. Respondents 4 to 66 we initially recruited as Assistant Executive Engineers Class I and were promoted to the grade of Executive Engineer. The vacancies in the grade of Executive Engineer can only be filled by promotion from the aforesaid two grades in the ratio of 75 % and 25%. The relevant rule reads as under :- "75 per cent of the vacancies in the grade of Executive Engineer, Class 1, shall be filled by promotion of Assistant Executive Engineers Clause I., the rest of the vacancies being filled by promotion and or by transfer in accordance with parts 4 and 5 of the rules respectively". There are no statutory seniority rules. The petitioners ware shown as junior to respondents No. 4 to 66 and they were not considered for promotion to the higher post of Superintending Engineer, although they have been Executive Engineers for longer period by following the quota rule at the stage of confirmation. The petitioners contended that their seniority should be determined in accordance with <ORG> Memorandum dated 22-6-1949. i.e., the length of service put in by them in the grade of Executive Engineer. It was contended on behalf of the respondents. (1) In the quota rule there is an implied rotational system by which only at the time of confirmation of the petitioners as Executive Engineers the seniority may be fixed in- accordance with the quota. (2) Reliance was also placed on the Office Memorandum dated 8-12-1960 issued by the <ORG>, Housing and Supply according to which confirmation was to be made by applying rotational method in working out the quota rule. (3) Vacancies in quota rule means only vacancies in permanent posts. (4) Quota rule applies at the stage of confirmation and the seniority would be relatable to confirmation. (5) One third quota cannot be filled in until and unless two third quota is available and filled in. (6) Since the petitioners had their lien in Class II posts they cannot be expected to belong to 2 grades at the same time. (7) Memorandum dated 22-6-1949 has no application since it was issued is order to safeguard the interests of the displaced government servants. 980 HELD: (1) When recruitment is from two or several sources there is so inherent invalidity in introduction of quota system and to work it out by a rule of rotation. The existence of a quota and rotational rule by itself will not violate Article 14 or Article 16 of the Constitution. [993 E] <NAME> and <NAME> cases referred to. It is the unreasonable implementation of the same which may in a given came attract the frown of the equality clause. [993 E-F] (2) The Memorandum dated 8-12-1960 issued by the <ORG>, Housing and Supply has not emanated from <ORG> which is the appropriate department for issuing instructions n ,service matters under Allocation of Business Rules of the Central Government framed under Article 77(3) of the Constitution. The said Memorandum also refers to a notification dated 22-11-1960 of <ORG> which ha- , not been produced. The said Memorandum, therefore. cannot be availed of. <ORG> wrongly relied upon the Memorandum dated 8-12-1960. [987 B-D] (3) Words "vacancies in the grade of Executive Engineer" include both vacancies in the permanent posts as well as in temporary posts since the cadre consists of both permanent and temporary posts. The quota rule will be enforced with refer ence to vacancies in all posts, whether permanent or temporary, included in the sanctioned strength of the cadre (except such vacancies as are purely of a fortuitous or adventitious nature). [991 H-992 A; 994 C-D] (4) The quota rule will be enforced at the time of initial recruitment in officiating capacity to the grade of Executive Engineer and not at the time of confirmation. [994 B-C] (5) The argument that one third quota cannot be filled in unless two third quota was exhausted was negatived as the argument if accepted would introduce sterility in the quota rule so far as the promotees are concerned. Their hopes and aspirations cannot be related to the availability of the direct recruits to fill two third quota. Each quota will have to be worked independently on its own force. The word "rest' in the quota rule cannot be pressed into service to defect the object of the rule coming in aid of advancement of prospects of promotees. [991 A-B] The case of <NAME> applied. (6) There is a well-recognised distinction between promotion and confirmation. The tests to be applied for the purposes of promotion and confirmation are entirely different. [989 F-G] (7) Memorandum dated 22-6-1949 will clearly apply and Memorandum dated 22-12-1959 is not applicable in this particular case. [985 <CITATION> , etc.,  2 S.C.R. 992, followed (8) In view of the judgment in the Writ Petition the Judgment of the full Bench of Delhi High Court was set aside. [994 H] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 489 of 1972. Petition Under Article 32 of the Constitution of India AND C.A. Nos. 1745 to 1747 of 1974 Appeal by Special Leave from the Judgment & Order dated the 20th May, 1971 of <ORG> in C.W. No. 716/69, 553/70 and 574 of 1970.

<NAME>, <NAME> and <NAME>, for the Petitioner (In WP No. 489/72) and Appellants (In CA. No. 1745/74).

<NAME>, Solicitor General of India, <NAME> and <NAME>, for Respondents Nos. 1-3 (In WP. No. 489/72).

<NAME>, <NAME> and <NAME> of <ORG>, for Respondents Nos. 5, 23, 27, 31', 53, 59 & 65 (In WP. No. 489/72).

<NAME>, for Respondents Nos. 71, 73, 83, 87, 93, 94, 96, 98, 103, 107, 109 & 111-113 (In WP. No. 489/72). <NAME>, for Intervener Nos. 1-8 (In WP. No. 489/72). <NAME> and <NAME>, for Intervener No. 8 (In WP. No. 489/72).

<NAME>, for the Appellants (In CAS Nos. 1746-1747/1974). <NAME> and <NAME>, for Respondent No. 3 (In All the Appeals).

The Judgment of the Court was delivered by <ORG> The petitioners in Writ Petition No. 489 of 1972 are confirred Assistant Engineers in <ORG> (Class 11). They were promoted to officiate as Executive Engineers in Class I between December 27, 1956 and September 8, 1959, by a properly constituted <ORG> and have been working as Executive Engineers in <ORG> of <ORG> of the Government of India. Except one petitioner (namely, <NAME>) all the petitioners were promoted to the grade of Executive Engineer prior to their confirmation as Assistant Engineers. The respondents 4 to 66 were initially recruited as Assistant Executive Engineers in Class I and were promoted to the grade of Executive Engineer between the period March 11, 1957 and February 23, 1966.

The appellants in Civil Appeals Nos. 1745 of 1974 and 1746 and 1747 of 1974, who were recruited directly to Class 11 as a result of competitive examination in which they had failed to secure requisite marks for being selected for Class 1, are also confirmed Assistant Engineers in Grade II and have been officiating as Executive Engineers in Grade I. They have obtained special leave against the <ORG> judgment of <ORG> in their writ petitions under Article 226 of the Constitution decided by a common judgment of 20th May, 1971. Since a common question of law is involved in all these matters, this judgment will govern all the above matters. We will, therefore, include the appellants also in describing them as petitioners in this judgment. The Service with which we are concerned is <ORG>, Class I. According to <ORG>, Class 1, Recruitment Rules (briefly the Rules) framed in the year 1954 by S.R.O. 1841 dated May 21, 1964, which are admittedly similar to those of 1949 Recruitment Rules, officers in the grade of Assistant Executive Engineer (Class I) and certain Assistant Engineers (Class II) are eligible for promotion to the grade of Executive Engineer (Class 1). The vacancies in the grade of Executive Engineer can only be filled by promotion from the aforesaid two grades in the ratio of 75% and 25%. The aforesaid quota was retrospectively altered with effect from September 7, 1955, to 66-2/3% and 33-113 %.

Part I of the Rules contains the definitions. By Rule 2(b) thereof, "The <ORG>" means the Union Public <ORG>, <ORG>. Rule 2(c) defines "The <ORG>" as <ORG>, Class I. The <ORG> includes various grades of posts.

Rules 3, 4 and 5 relevant for our purpose are as under "3. Recruitment to the service shall be made by any of the following methods:-

(a) By competitive examination in India in accordance with Part III of these rules.

(b) By promotion in accordance with Part IV of these Rules.

(c) By transfer in accordance with Part V of these Rules.

4. (1)All appointments to the service or to posts borne upon the cadre of the Service shall be made by Government.

(2) Subject to the provisions of rule 3 Government shall determine the method or methods of requirement (sic) (recruitment?) to be employed for the purpose of filling any particular vacancies in the Service or such vacancies therein as may be required to be filled during any particular period and the number of candidates to be recruited by each method.

Provided that all recruitments by competitive examination (vide Part HI of the rules) shall be to the grade of Assistant Executive Engineer, Class I only.

Seventy-five per cent of the vacancies in the grade of Executive Engineer, Class 1, shall be filled by promotion of Assistant Executive Engineers, Class 1, the rest of the vacancies being filled by promotion and/ or by transfer in accordance with Parts IV and V of the Rules respectively.

5. Appointments to the Service made otherwise than by promotion will be subject to orders issued from time to time by <ORG> regarding special representation in the <ORG> for specific, sections of the people.

As noted earlier the quota for promotion between the directly recruited Assistant Executive Engineers and promotees from <ORG>, which was initially in the ratio of 75% and 25%, was later altered to 66-2/3% and 33-1/3% in 1956 and with effect from April 1, 1972, the percentage has come to be 50:50 for a period of seven years.

According to the petitioners prior to their promotion as Excise Engineers the petitioners and respondents 4 to 66 were holding interchangeable posts, the nature of work, responsibilities, powers and duties discharged by all of them being the same and subsequent to their promotion all these and the pay scales were identical in every respect. Prior to the promotion, however, the pay scale of the petitioners was different from that of the Assistant Executive Engineers who were already in Grade 1. The Assistant Executive Engineers are directly recruited to Grade I by competitive examination and sometimes Assistant Engineers (Class 11) are also recruited by the same competitive examination to Class 11 when they cannot quality with the requisite marks to obtain entry in Class I Services. Besides, Class III Officers are also promoted to Class 11. In order, therefore, to give incentive of promotion to employees in Class II, who have already gathered experience in the service, a certain percentage of quota is reserved for their promotion to the grade of Executive Engineer in the recruitment rules. The Principal grievance of the petitioners is against the seniority list as on 1-7-1971 (Annexure 'J') where the petitioners have bets shown as Junior to the respondents 4 to 66 (in Writ Petition No. 489 of 1972) and to the respondents in the other two appeals. According to them notwithstanding the fact that they were recruited by promotion to officiate in the grade of Executive Engineer regularly as a result of selection by <ORG> and they bay been working in that capacity for nearly 13 years or over their cases were not considered for the purpose of promotion to the still higher grades in Class I and Assistant Executive Engineers recruited several years after their recruitment have been held to be, senior to them and some of them have been promoted to the next higher grades ignoring their claim. It is admitted that there are no statutory seniority rules as such and both sides depend upon certain memorandum issued by <ORG> in <ORG> to establish their respective claims.

According to the respondents it is manifest in the quota rule that there is ail implied rotational system by which only at the time of confirmation of the petitioners as Executive Engineers the seniority may be fixed in accordance with the quota. According to the learned Solicitor General appearing on behalf of <ORG> the petitioners, who were confirmed in Class II, have a lien in that grade and they cannot be expected to belong to two grades at the same time. It is, therefore, only at the lime of confirmation against permanent vacancies that for the first time the petitioners may be held to have been recruited to class I of the <ORG>. Since according to him the recruitment is from two sources it is essential that recruitment can only be understood within the meaning of these rules to have taken place at the time of confirmation of the petitioners in the superior grade, namely, Class 1. Necessarily, therefore, says the learned Solicitor General, the quota rule applies at the stage, of confirmation and seniority would be relateable to confirmation in Grade I of the <ORG>.

It will be necessary also to refer to rule 23 in Part IV referred to in rule 4(2) providing for promotion:

"23(1) No Assistant Engineer, Class II shall be promoted as Assistant Executive Engineer, Class 1.

(2) Recruitment by promotion to the Grade of Executive Engineer, Class I shall be made by selection from among permanent Assistant Engineers in <ORG>, Class 11, after consultation with the <ORG>. No officer shall have any claim to such promotion as of right.

(3) No Assistant Engineer shall be eligible for promotion to the Service, unless he-

(a) would, but for age, be qualified for admission to the competitive examination under Part III of these Rules.

(b) has rendered at least three years' services in a permanent or temporary capacity as an Assistant Engineer and subordinate under <ORG>; and

(c) satisfies the <ORG> that he is in every respect suitable for appointment to the <ORG>.

4. It shall not be necessary to consult the <ORG>, under this rule, in the case of any person, if the <ORG> had been consulted in connection with his temporary promotion to the <ORG>.

The learned Solicitor General draw& our particular attention to rule 23 (2) which provides that recruitment to the grade of Executive Engineer (Class 1) has to be made by selection from amongst permanent Assistant Engineers in Class H. He submits that the word 'permanent' in sub-rule (2) is very significant. Since recruitment by promotion can be made only from amongst permanent Assistant Engineers, there can be no recruitment earlier when an Assistant Engineer is holding his post in an officiating or temporary capacity. According to him the petitioners could not be said to be recruited to Class I when they were not permanent Assistant Engineers. Again according to him the petitioners could be considered as permanent Assistant Engineers only when they were confirmed in their posts in Class 11. According to the respondents, confirmation and not officiating appointment in the grade of Executive Engineer is sine qua non of recruitment to Clauses.

As stated earlier there are no statutory seniority rules as such. The whole question will turn on the construction of rule 4 read with rule 23 and also any other appropriate administrative instructions, issued by <ORG> with regard to the principles for determining seniority. We have already quoted the said rules. We have now to consider the Memorandum of <ORG> dated June 22, 1949 (Annexure G-1) and another similar Memorandum dated December 22, 1959 (Annexure G-11). The latter Memorandum givesan annexure containing the general principles for determination of seniority in <ORG>. Mr. <NAME> followed by Mr. <NAME> relies upon the Memorandumof June 22, 1949 and agrees with the learned Solicitor General that the Memorandum of December 22, 1959, is not relevant: But the learned Solicitor General goes further to submit that the Memorandum of June 22, 1949, is also not relevant as it deals with seniority of displaced Government servants who have been absorbed temporarily in <ORG> and the petitioners do not fall in that category.On the other hand, the petitioners submit that from the Memorandum of December 22, 1959, it is clear that although the instructions contained in the Memorandum dated June 22, 1949, were issued in order to safeguard the interests of the displaced Government servants, later on as the specific objects underlying the instructions cited above have been achieved, there is no longer any reason to apply those instructions in preference to the normal principles for determination of seniority. The Memorandum proceeds "it has, therefore, been decided in consultation with <ORG> that hereafter the seniority of all persons appointed to the various <ORG> after the date of these instructions should be determined in accordance with the General Principles annexed hereto". "The instructions contained in the various office Memorandum cited in paragraph I (including that of June 22, 1949) above are hereby cancelled, except in, regard to determination of seniority of persons appointed to the various <ORG> prior to the date of this Office Memorandum. The revised General Principles embodied in the Annexure will not apply with retrospective effect, but will come into force with effect from the date of issue of these orders, unless a different date in respect of any particular service/grade from (sic (for?) which revised principles are to be adopted for purpose of determining seniority has already been or is hereafter agreed to by this Ministry".

It is, therefore, clear that so far as the petitioners are concernedthe Memorandum of December 22, 1959, is not attracted. On the other hand the Memorandum of June 22, 1949, will clearly apply ( <CITATION> , etc.(1). Para 2 of that Memorandum may now be quoted "2. The question of seniority of Assistants in the Secretariat was recently examined very carefully in consultation with all the Ministries and <ORG> and the decisions reached are incorporated in para 8 of the instructions for the initial constitution of the grade of Assistants, an extract of which is attached. It has been decided that this rule should generally be taken as the model in framing the rules of seniority for other services and in respect of persons employed in any particular grade seniority should, as a general rule, be determined on the basis of the (1)  2 S..C.R. 992.

16--346SupCI-75 length of service in that grade as well as service in an equivalent grade irrespective of whether the latter was under <ORG> in India or Pakistan". Paragraph 8 to which a reference is made in the above Memorandum reads as follows :-

"8. Seniority of Assistants in Grade IV as newly constituted. The names of all existing permanent Assistant who are included in the permanent strength of the service and who were confirmed in their' posts prior Lo the 22nd October, 1943, will be arranged in the first instance Ministry-wise in accordance with the rules in force at present. Such permanent Assistance will be considered senior to all others conferment in pursuance of these instructions in vacancies arising upto the 22nd October, 1950. The order of seniority of the latter group of Assistants, namely, those confirmed after the 22nd October, 1943, which will be arranged in a single list for all Ministries, will be determined inter se on the basis of their length of continuous service, temporary or permanent in the grade of Assistant or in an equivalent grade, provided that any period of service during which the pay actually drawn exceeds Rs. 160/- per month should be deemed to be service in a grade equivalent to that of an Assistant".

It is submitted on behalf of the respondents that the question of seniority arises between Assistant Executive Engineers and Assistant Engineers only when the latter are members of ' the same class grade which happens only after the Assistant Engineers are confirmed as Executive Engineers. It is emphasised that as between members of different classes the question of relative Seniority cannot arise. It is further submitted that having regard to the nature of the scheme the rules provide that the grade of Assistant Executive Engineer will consists exclusively of young men of merit proved by competitive examination who will quickly after the necessary training have promotion to the posts of Executive Engineer and above. In the context of that scheme rule 4 (2) requires 66-2/3 % vacancies to be filled by the Assistart', Executive Engineers and "the rest" by promotion of the Assistant Engineers or by transfer. We are not concerned with transfer from other service in this case. It is also contended that the rule clearly gives preference to the extent of 66-2/3% to the Assistant Executive Engineers. It is only after their appointment to the extent of 66-2/3% that "the rest" comes into existence. The argument proceeds that it is only on confirmation and absorption of Assistant Engineers in Class I that the question of relative seniority between them and Assistant Executive Ercincers promoted as Executive Engineers can arise. It is strenuously contended that an Assistant Engineer officiating as Executive Engineer cannot be senior to an Assistant Executive Engineer while officiating as Executive Engineer. Particular vacancies as and when they go on arising must be finally filled to give effect to 66- 2/3% to Assistant Engineers and thereafter only the residue to Assistant Engineers or transferred officers. It is stressed by the respondents that appointment by rotation is involved in the mandate rule 4(2) itself.

Mr. <NAME> and Mr. <NAME> while adopting the argu- ments of the learned Solicitor General reply upon an Office Memorandum of December 8, 1960, of <ORG>, <ORG>, on the subject of principles for seniority in the Central Engineering Service and <ORG> (Class 1) in <ORG>. The learned Solicitor General did not address us on this Office Memorandum as he rightly found considerable difficulty in doing so. It will appear from the recital in this Memorandum that it has not emanated from <ORG> which is the appropriate Department for issuing instructions in service matters under the Allocation of Business Rules of the Central Government under Article 77(3) of the Constitution. Besides, this Office Memorandum refers to and relies upon a Notification of November 22, 1960, of <ORG>, namely, U.0. No. 9/38/60-Estt(D) for issuing these instructions. The said Notification of <ORG> could not be traced and was not produced before us and in its absence we are unable to take into consideration the Memorandum of December 8, 1960. The learned Solicitor General is, therefore, correct in not referring to the same but submitted his arguments mainly on the construction of the Recruitment Rules. He, however, did submit that what was recited in para 4 of the Memorandum of December 8, 1960, actually followed from rule 4(2) read with rule 23 and it was not, therefore, necessary at all to make any reference to this Memorandum. It will be appropriate at this stage to refer to the judgment of <ORG> under appeal where <ORG> relied upon the said Notification of December 8, 1960 and also accepted the arguments on the line made before us by the learned Solicitor General. <ORG> relied upon the Circular of December 8, 1960 and paragraph 7 of the annexure to the Office Memorandum of December 22, 1959, of <ORG> with regard to the relative seniority of direct recruits and promotees and observed as-follows "The rotational sysstem is, therefore, firstly justified by rule 4 (2) itself. Even if it is assumed for the sake of argument that rule, 4(2) is silent about the rotational system, then the administrative instructions make it clear that the quota system in rule 4(2) has to be worked out only by the rotational system and not in any other manner".

<ORG> further held as follows "The case of <NAME> (appellant in Civil Appeal NO. 1745 of 1974) is that because he was officiating as an Executive Engineer Class started officiating <NAME> was entitled to but against the other respondents also. This stand is contrary to the last part of rule 4(2) which compels the <ORG> to fill the vacancies in the grade of Executive Engineers Class 'I strictly by rotation system implementing the quota rule. Our conclusion on question No. 1, therefore, is that the earlier confirmation and the higher seniority given to the respondents are legal both according to the statutory rule 4(2) and according to the administrative instructions".

The administrative instruction which is referred to in the above extract is to be found in the aforementioned paragraph 6 of the Circular of December 22, 1959, regarding relative seniority of direct recruits and promotees. We have already made it clear that the Memorandum of December 22, 1959, is not applicable in this particular case. We have, therefore, to examine whether it is correct to hold that it is implicit in rule 4(2) read with rule 23 that the rotational system is necessarily implied to the extent of denying seniority to the petitioners if appointed regularly earlier within their quota at the time of recruit- ment. We have also to examine the correctness of the submission as to whether the Assistant Engineers after they are confirmed as such and continue to hold the appointments of Executive Engineer in regular course of selection through <ORG>, presided over by a member of <ORG> are entitled to claim seniority vis-a-vis the Assistant Executive Engineers when promoted subsequent to their appointments. Now the question which arises for consideration is what is the meaning of the words "vacancies in the grade of Executive Engineer" as used in the aforesaid paragraph of rule 4(2). When does a vacancy in the grade of. Executive Engineer arise? To answer this question it is necessary to ascertain what are the posts which the grade of Executive Engineer consists of, for the vacancies can only be in the posts in the grade 'of Executive Engineer. The word "grade" has various shades of meaning in the service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre. Here it is obviously ,used in the sense of cadre. A cadre may consists only of permanent posts or sometimes, as is quite common these days, also of temporary posts. To give one example, the cadre of Income Tax Officers, Class 1, Grade II, as pointed out by this Court in <CITATION> (1) in para 18 of the report, consisted of It permanent and temporary posts". Here in the present case it has been stated on oath by <NAME>, Under. Secretary to <ORG>, in paragraph 7 of his Affidavit-inreply at page 252 of the Paper Book that "there are permanent and temporary posts sanctioned from time to time in the grade of Executive Engineer, Class 1. Promotions from the grade of Assistant Executive Engineers and/or Assistant Engineers are initially made in an officiating capacity against the available vacancies,. . . . the avail able vacancies obviously being in the permanent and temporary posts in the grade of Executive Engineer. Paragraph 23 of the same Affidavit-in- reply at page 257 of the record is also to the same effect "I say that there are permanent and temporary posts sanctioned in the-grade of Executive Engineer". It is, therefore, clear that the cadre of Executive Engineer consists both of permanent posts and tempo-

1. [1973] 3 S.C.C. 1.

98 9 rary posts. Even from the statement of sanctioned strength of Engineering Officer Class 1, Central P.W.D., from 1960 to 1972 filed by the Solicitor General in the course of argument it is apparent that the cadre includes both permanent and temporary posts. Whenever therefore, a vacancy arises in a permanent post or in a temporary post it would be a vacancy in the grade of Executive Engineer and the quota rule for promotion would apply. The above conclusion at which we have reached is reinforced also by a reference to rule 2 of section 6 in Chapter V at page 31 of the C.P.W.D. Manual, Volume 1 (1970 edition) (hereinafter referred to as the Manual) wherein "every officer appointed against a permanent or temporary post" is specifically adverted to. Again at page 35, rule 19(b), there is a reference to Class I Direct Recruits (temporary). Indeed we find an admission in paragraph 67 of the Affidavit-in-reply filed by <NAME> at page 271 of the record: "I submit that the quota rule is to be applied as and when vacancies in the grade of Executive Engineer are required to be filled but as already stated earlier it has not been possible to apply this quota rigidly at the time of officiating promotions as promotions from the grade of Assistant Engineer have been far in excess of their quota". It may also be noted that it is at the stage of promotion to the grade of Executive Engineer that the quota rule is to be applied. Now there is a well-recognised distinction between "promotion" and "confirmation" and that is apparent from the Manual, Chapter VI, Section 6 at pages 46-47. Rule 6, at page 47 says that promotions by <ORG> on the basis of assessment of merit from a field of choice which may extend upto 5-6 times the number of ex- pected vacancies, while rule 4 provides that the confirmation is subject to satisfactory performance and clearance from the vigilance angle and the confidential dossier of the official concerned is required to be reviewed to see that the individual has been reported satisfactorily during the 'period of last three years as may be fixed by <ORG> for the purpose and if the reports are unfavourable or below average, the incumbent shall 'have to wait for a further period till he gains satisfactory reports. The tests , to be applied for the purpose of "promotion" and "confirmation" are entirely different. When promotion is made by selection, as it is, from amongst Assistant Engineers, it is based on the assessment of relative merit from a field choice consisting of the senior most persons in the lower cadre upto about 5 or 6 times the number of expected vacancies, while for confirmation the only aspect considered is whether the performance of the incumbent is satisfactory and there is nothing objectionable from the violence angle. Then again section 7 of Chapter V of the Manual deals with the subject of promotion while section 8 of the same chapter deals with the subject of confirmation clearly recognising the distinc- tion between promotion and confirmation. Rule 4 of section 7 at page 48 also makes a clear distinction between promotion and confirmation. Rule 9 of the same section at page 50 lays down the procedure for promotion to the selection posts and this procedure has clearly no application in cases of confirmation. It was this procedure which was apparently followed when the petitioners and respondents 67 to 118 9 90 were promoted as officiating Executive Engineers from the grade of Assistant Engineer. Then rule 12 of section 7 at page 52 lays down that in order to be eligible for promotion as Superintending Engineer an Executive Engineer promoted from Class I Service would have to, put in "7 years' service in the grade of Executive Engineer". Similarly an Executive Engineer promoted from Class II service also has to put in "7 years' service in the grade of Executive Engineer'. Thus once an Assistant Engineer is regularly promoted to officiate in the grade of Executive Engineer, there is no further restriction under the rules in his next jump to the grade of Superintending Engineer. Now it cannot be disputed that for the purpose of promotion to the- grade of Superintending Engineer 7 years service in the grade of Executive Engineer would count by taking into account not only service rendered after confirmation in the permanent post of Executive Engineer but also service rendered in an officiating capacity in a permanent or temporary post as Executive Engineer. This can be explained only on the hypothesis that the grade of Executive Engineer consists both of permanent and temporary posts and service in an officiating capacity, here, is service in the grade of Executive Engineer. When an Assistant Executive, Engineer or Assistant Engineer is promoted to officiate as Executive Engineer he is regarded as promoted to and serving in the grade of Executive Engineer. Again rule 11 of section 8 at page 57 of the Manual enunciates a very important principle which clearly brings out the distinction between promotion and confirmation. It says inter alia that the list of eligibility, is to be finalised "after keeping in view the seniority of the persons concerned in the post in which he is to be confirmed". Seniority "in the post in which he, is to be confirmed" is to be reckoned. That means that those who are to be confirmed as Executive Engineers have a seniority in the grade of Executive Engineer though they are only officiating Executive Engineers and their confirmation would follow according to their seniority as officiating Executive Engineers which would depend on when they were promoted as officiating Executive Engineers in a regular manner within their quota. It would, therefore, be seen that so far as this service is concerned promotion has always been recognised as distinct from confirmation. During the course of hearing instances have been shown where Assistant Engineers before confirmation in Class It have been regularly promoted to officiate as Executive Engineers. So also Executive Engineers prior to their confirmation as such have been promoted to officiate as Superintending Engineers. The process of selection by <ORG>, according to rule 9 of section 7 at page 50 of the Manual is applied at the stage of promotion of Assistant Engineers as officiating Executive Engineers and not at the stage of their confirmation which is required to be made according to rule 4 of section 6 at page 46 and rule 1 1. of section 7 at page 57 of the Manual. The quota rule which on the plain language of the last paragraph of rule 4(2) is to be applied at the stage of promotion must, therefore, be given effect to at the point of time when Assistant Engineers and Assistant Executive Engineers are promoted as officiating Executive Engineers and not at the stage of their confirmation.

It is submitted by the respondents that one-third quota cannot be filled unless the two-third quota was exhausted. This, in our view, will introduce sterility in the quota rule so far as the promotees are concerned. Their hopes and aspirations cannot be related to the availability or non-availability of the direct recruits to fill the two third quota. Each quota will have to be worked independently on its own force. The word "rest" in the quota rule cannot be pressed into service to defeat the object of the rule coming in aid of advancement of prospects of promotees in the hierapchy by of the Service.

It may be pointed out that even in the case of recruitment to the cadre of Income Tax Officer, Grade II, Class 1, the, letter of <ORG> dated September 29, 1944, which fixed the quota between direct recruits and promotees pursuant to rule 4 was substantially in the same terms as the last paragraph of the present rule 4(2). It is stated that the recruitment to Grade 11 of Class I will be made partly by promotion and partly by direct recruitment and that "80% of the vacancies arising in the grade will be filled by direct recruitment and the remaining 20% vacancies will be filled on the basis of the promotion by selection provided suitable number of men are available for promotion". This quota of 80% and 20% was subsequently altered by <ORG>-to 66-2/3% and 33-1/3% by their letter dated October 18, 1951. This Court held in <NAME> case (supra) interpreting the quota rule of 1944 and 1951 in para 18 thereof as follows "It is feebly contended on behalf of the direct recruits that the quota rule should relate to only vacancies in permanent posts and not temporary posts. This contention is not accepted either by the promotees or the department. There is nothing in the ' Rules of 1945 or the quota rule of 1951 which says that the vacancies must be vacancies in perma- nent posts. Indeed the vacancies must be permanent vacancies that is to say vacancies which are not for a few days, or for a few months or are otherwise adventitious. The whole cadre has consisted of permanent and temporary Posts for years. Permanent vacancies are, therefore, likely to take place both in the permanent posts and in the temporary posts. In fact Mr. <NAME>, in his affidavit filed in <NAME>'s case (supra), had clearly alleged in paras 25 and 26 of the affidavit that all the: direct recruits from 1948 onwards were initially appointed against temporary posts and even at the time of the filing of the affidavit, i.e. on January 31, 1967, direct recruits were being appointed against temporary posts. We, therefore, find no sufficient warrant for the contention that the vacancies referred to in the quota rule are vacancies only in the permanent posts". This reasoning applies equally in the present case and it must be held that the vacancies referred to in the quota rule in the last paragraph of rule 4(2) are vacancies not only in the permanent posts but also in the temporary posts in the grade of Executive Engineer and the quota rule applies at the stage when Assistant Engineers and Assistant Executive Engineers are promoted even if it be in an offi-

ciating capacity to fill vacancies in the grade of Executive Engineer irrespective of whether the vacancies are in permanent posts or temporary posts.

But then the question may arise as to how the quota rule is to be applied. Here again we find that guidance is afforded by the decision of this Court in <NAME> case (supra). Paragraph 14 of the judgment in that case deals with this very question vis-a-vis recruitment to the cadre of Income Tax Officers, Grade 11, Class I "On the other hand, the contention on behalf of the direct recruits is that the real intention of the rule was to secure that at any given moment the service must consist of direct recruits and promotees in the proportion of 2:1. If, for example, in any year 50 direct recruits were appointed, than not more than 25 promotees could be appointed in that year. If also no direct recruit was appointed in a year there could be no appointment of promotees. This line of argument has been accepted by <ORG> and it was substantially on that ground that the seniority list prepared on July 15, 1968, has been set aside and directions given for preparing a fresh one. What was, however, over-looked is that the rule, dated October 18, 1951, was not concerned With the constitution of the cadre but was concerned as to how permanent vacancies were to be filled. Rule 4 of the Income-tax Class 1, Grade 11 Service Recruitment Rules also refers to recruitment of-candidates to vacancies in the service. The vacancies for any particular year being ascertained, not more than one third of the same were to go to the promotees and the rest to the direct recruits. The ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. We are, therefore, unable to accept the con construction put on the quota rule by <ORG>. In our opinion, the promotees were entitled to one-third of the vacancies in any particular year whether or not there was direct recruitment by competitive examination in that year".

It would, therefore, be seen that the Assistant Executive Engineers were entitled initially to three-fourth and subsequently to two-third of the vacancies in the grade of Executive Engineers arising in any particular year, while Assistant Engineers were entitled initially to ,one-fourth and subsequently to one-third of such vacancies and the ratio was not dependent on whether any persons from one class or the other were, promoted or not. If there were three vacancies in a year, two would go to the Assistant Executive Engineers while- one would go to the Assistant Engineers and even if there were no eligible Assistant Executive Engineers, who could be promoted to fill in-two vacancies belonging to their quota, one vacancy will have to be filled by promotion of an Assistant Engineer. If having regard to the exigencies of the situation, the two vacancies belonging to the quota of Assistant Executive Engineers had to be filled in by Assistant Engineers for want of availability of eligible Assistant Executive Engineers, the appointment of the Assistant Engineers to fill in such two vacancies would be irregular, because that would be outside their quota and in that event they would have to be pushed down to later years when their appointment can be, regularised as a result of absorption in their lawful quota for those years. This is what was directed to be done by this Court for the purpose of fixing inter se seniority amongst direct recruits and promotees in the grade of <ORG> Officers Grade 11, Class 1, in <NAME> case (supra). This Court pointed out in that case as follows at page 8 "If there were promotions in any year in excess of the quota those promotions were merely invalid for that year but they were not invalid for all time. They can be regularised by being absorbed in the quota for the later years. That is the reason why this Court advisedly used the expression "and onwards" just to enable the Government to push down ex- cess promotions to later years so that these promotions can be absorbed in the lawful quota for those years".

The same procedure will have to be followed in the present case. Whenever it is found that Assistant Engineers were promoted as officiating Executive Engineers in excess of their quota they would have to be pushed down to later years in order that their promotion may be regularised by being absorbed in their quota for later years.

When recruitment is from two or several' sources it should be observed that there is no inherent invalidity in introduction of quota system and to Work it out by a rule of rotation. The existence of a quota and rotational rule, by itself, will not violate article 14 or article 16 of the Constitution (See <NAME> & Ors. v. Collector of Customs, Bombay & Ors.,(1) and <CITATION> .) .(2) It is the unreasonable implementation of the same which may, in a given case, attract ,he frown of the equality clause. If the seniority list is now properly prepared in the manner indicated in this judgment, +,here may be no objection on the score of article 14 or article 16 of the Constitution. In this view of the matter, it is not necessary to pursue the arguments addressed regarding violation of articles 14 and 16 of the Constitution.

To summarise the conclusions-

(1) When Assistant Engineers (Class 11) are initially appointed in a regular manner in accordance with the rules to, officiate as Executive Engineers, their seniority in service in Grade I will count from the date of their initial officiating appointment in Class I provided their initial officiating appointment as Executive Engineers was within their quota.

(2) Their seniority will not be reckoned from the date of their future confirmation in Class 1.

(1) [1966] 3 S.C.R. 600.(2) [1967] 2 S.C.R.

29. 9 94 The above principle is, however, suspect to one reservation, namely, if an Assistant Engineer before his confirmation in Class 11 were appointed to officiate in Class I in the grade of Executive Engineer, although within his quota, his seniority will count only from the date of his confirmation in Class 11 as permanent Assistant Engineer notwithstanding his earlier officiating appointment as Executive Engineer.

(3) The quota rule will be enforced at the time of initial recruitment, in an officiating capacity, to the grade of Executive Engineer and not at the time of confirmation. (4) The quota rule will be enforced with reference to vacancies in all posts, whether permanent or temporary, included in the sanctioned strength of the cadre (except such vacancies as are purely of a fortuitous or adventitious nature) and the operation of the quota rule will not depend upon the availability or non-availability of Assistant Executive Engineers for appointment as Executive Engineers. The non-availability of Assistant Executive Engineers for recruitment to the grade of Executive Engineer will not postpone the regular recruitment of the Assistant Executive Engineers as Executive Engineers within their quota. (5) Once the Assistant Engineers are regularly appointed to officiate as Executive Engineers within their quota they will be entitled to consideration in their own rights as Class I Officers to further promotions. Their "birth marks" in their earlier service will be of no relevance once they are regularly officiating in the grade of Executive Engineer within their quota. (6) If Assistant Engineers are recruited as Executive Engineers in excess of their quota in a Particular year they will be pushed down to later years for absorption when due within their quota.

In the result the Writ Petition and the <ORG> are allowed. The judgment of <ORG> is set aside. The respondents 1 to 3 in Writ Petition No. 489 of 1972 (respondent No. 1 being common in the other two Appeals) are directed to amend and revise the seniority list of 1971 (Annexure 'J') in the light of the directions in this judgment and to give effect thereafter to the revised seniority list so prepared. The revision of the seniority list shall not, however,. affect those employees who are not impleaded in the proceedings before this Court and who have already been promoted and confirmed in higher grades in the <ORG>. Respondents 1 to 3 will pay the costs of the petitioners in Writ Petition No. 489 of 1972 and respondent No. 1 will pay to the appellants in the <ORG> costs through-out.

C.M.P. No. 1889 of 1974 regarding delay in filling of the counter-affidavit on behalf of respondents 1 to 3 in the Writ Petition is. allowed.

We may observe in the end that it maybe desirable that the time-, of this <ORG> may not be consumed in resolving these complex tangles in conditions of service breeding human discontent and the solution thereof is better left to a fair and proper formulation of precise and' unequivocal statutory rules after examination of the problems with a,. broad humane approach.

P.H.P. Petitions and Appeals allowed,