PETITIONER: <ORG>. Vs. RESPONDENT: <NAME> AND CO. DATE OF JUDGMENT: 22/01/1957 BENCH: <NAME>, T.L. VENKATARAMA BENCH: <NAME>, T.L. VENKATARAMA BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P. DAS, S.K. CITATION: 1957 AIR 357 1957 SCR 438 ACT: Amendment of plaint-Addition of alternative ground for claim --Necessary allegations Present in Plaint-Fresh suit on amended claim barred by limitation -Whether amendment should be allowed-Action in trover-when maintainable. HEADNOTE: The appellants filed a suit for damages for conversion against the respondents on the allegations that the respondents were the agents of the appellants, that the- appellants had placed orders for certain goods with the respondents, and that the respondents had actually imported the goods but refused to deliver them to the appellants. The suit was dismissed on the findings that the parties stood in the relationship of seller and purchaser, and not agent and principal and that the title in the goods could only pass to the appellants when the respondents appropriated them to the appellants' contracts. In appeal before <ORG>, the appellants applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for nondelivery of the goods. All the allegations necessary for sustaining a claim for damages for breach of contract were already present in the plaint and the only allegation lacking was that the appellants were, in the alternative, entitled to claim damages for breach of contract by the non-delivery of the goods. But a fresh suit on the amended claim was barred by limitation on the date of the application. Held, that this was a fit case in which the amendment should be allowed. The fact that a fresh suit on the amended claim was (1) A.I.R. [1954] Raj. 211. 439 barred by limitation is a factor to be taken into consideration in the exercise of the discretion as to whether the amendment should be ordered or not, -and does not affect the power of the court to order it, if that is required in the interests of justice. <CITATION> . 47 I.A. 225 and <NAME> v. <NAME>, (1909) I.L.R. 33 Bombay 644, followed. To maintain an action in trover the plaintiffs must establish that they had title to the goods in question and that further they were entitled to possession thereof when they called upon the defendants to deliver them. If the parties stood in the relation of sellers and purchasers with reference to the transactions, then the plaintiffs must show that the property in the goods, which initially was with the defendants had passed to them in accordance with the- provisions of the Sale of Goods Act . If, however, the defendants imported the goods as agents of the plaintiffs, then the title to them would undoubtedly be with the latter, and the only question then would be whether the former were entitled to retain possession, as they would be if they had paid the price on behalf of the principals, and had not been reimbursed that amount. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 219 of 1953.

Appeal from the judgment and decree dated June 26, 1952, of <ORG> in Appeal No. 20 of 1952 arising out of the judgment and decree dated December 17, 1951, of the

-said <ORG> in its ordinary Original Civil Jurisdiction in Suit No. 1623 of 1948.

<NAME>, Solicitor-General of India, <NAME> and <NAME>, for the appellants. <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the respondents. 1957. January 22. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-This appeal arises out of a suit instituted by the appellants in <ORG> for damages for conversion estimated at Rs. 4,71,670-15-0. The suit was decreed by <NAME> sitting on the Original Side, but his judgment was reversed on appeal. by <NAME> and <NAME> Against this judgment, the plaintiffs have  preferred the present appeal on a certificate under Art. 133(1)(a) of the Constitution.

Messrs. <ORG> is an American Company engaged in the manufacture and sale of lubricants. It carried on business in India with its head office at Calcutta and a branch office at Bombay. The second plaintiff, <NAME>, was employed during the years 1933 to 1935 in the Bombay branch of the said Company. Subsequent thereto, the Company closed its Bombay branch, and eventually wound up its Calcutta office as well, and thereafter its business was taken over firstly by <ORG> and then by the defendants. After he left the service of <ORG>, Mr. <NAME> started business as seller of lubricants on his own account and was importing them through the defendants. On June 6, 1941, they entered into an agreement, Ex. A, under which Mr. <NAME> was given an exclusive right to sell lubricants of the make of <ORG>, within the limits of Bombay Presidency, Central Provinces, Rajputana and such parts of Central India and Hyderabad as might be determined by the defendants. The agreement was to continue for a period of five years "unless sooner determined in the manner hereunder - provided. " Clause 14 of the agreement runs as follows:

"Notwithstanding anything hereinbefore contained this agreement shall be terminable by either of the parties hereto upon giving to the other three calendar months previous notice in writing expiring at any time but without prejudice to the rights and liabilities of the parties respectively which shall have accrued prior to such termination. "

Clause 16 provides that the agreement was personal to the selling agent, and that he was not to assign or attempt to assign his rights thereunder without the consent of the defendants in writing first obtained. It is common ground that the dealings between the parties continued on the basis of this agreement during the relevant period.

On March 18, 1944, the first plaintiff, which is <ORG>, was incorporated -under the provisions of the Indian Companies Act , and on March 30, 1944, the second plaintiff assigned his business to it. On June 13, 1945, the defendants wrote to the second plaintiff that they were cancelling the agency constituted under the agreement dated June 6, 1941, as he had assigned the same to the first plaintiff without obtaining their consent in writing as provided therein. Before that date, however, the defendants had placed orders for import from America of certain goods which the plaintiffs had required, but these goods were actually received by them after the cancellation of the contract. The plaintiffs called upon them to deliver those goods to them, but they refused to do so. Thereupon, the plaintiffs instituted the present suit for damages for conversion alleging that the goods in question were due to them under Government quotas comprised in Nos. P.L. 1004 to 1007, and that the defendants who had ordered them on their behalf had themselves no title to them. The plaintiffs also averred that in importing those goods the defendants were acting as their agents. The defendants repudiated this claim. They contended that far from they being the agents of the plaintiffs, it was the second plaintiff who was their agent, and that the property in the goods was with the defendants and that the action for damages for conversion was not maintainable.

The suit was tried by <NAME> who held that the plaintiffs were not the agents of the defendants, that the goods in question had been imported by the latter on behalf of the former, and that in refusing to deliver the same to them, the defendants were guilty of conversion. He accordingly passed a decree referring the suit to the Commissioner for ascertaining the damages. On appeal, <NAME> and <NAME> held that on the terms of the agreement dated June 6, 1941, on which the suit was based, the title to the goods imported by the defendants vested in them, and that it would pass to the plaintiffs only when the defendants endorsed the shipping documents in their favour, and that as that had not been done, the claim for damages on the basis of conversion was misconceived. They accordingly allowed the appeal, and dismissed the suit.

Now, the contention of the appellants before us is that on the facts proved, they were entitled to damages on the basis of conversion.

There is no dispute as to the position in law. Before the plaintiffs can maintain an action in trover, they must establish that they had title to the goods in question and that further they were entitled to possession thereof when they called upon the defendants to deliver them. If the parties stood in the relation of sellers and purchasers with reference to the transactions, then the plaintiffs must show that the property in the goods, which initially was with the defendants, passed to them in accordance with the provisions of the Sale of Goods Act . If, however, the defendants imported the goods as agents of the plaintiffs, then the title to them could undoubtedly be with the latter, and the only question then would be whether the former were entitled to retain possession, as they would be if they had paid the price of the goods on behalf of the principal, and had not been reimbursed that amount. This question, however, would not arise on the facts of this case, as the defendants denied the title of the plaintiffs to the goods, and there was no refusal by the latter to pay the price. The main question that arises for determination, therefore, is as to the relationship in which the parties stood with reference to the suit transactions.

It is conceded that to start with, it is the agreement, Ex. A, that governs the rights of the parties. It is therefore necessary to examine its terms to ascertain the true relationship of the parties thereunder. It has been already mentioned that under this agreement Mr. <NAME> was constituted the selling agent of the defendants in certain areas specified therein. Under Ex. A, the second plaintiff was not to sell the goods below a certain price, and they were also to be sold with the mark, <ORG> The course of business was that the second plaintiff used to intimate to the defendants his requirements. They would then import those goods in their own names from America under c.i.f. contracts. After importing them, they would fix their own price for those goods and endorse the shipping documents in favour of the second plaintiff, who would be entitled to clear them at the harbour on payment of 80 per cent. of the price, the balance of 20 per cent. being payable on the delivery of the goods by him to his purchasers. The sales to be effected by the second plaintiff within the area to his own customers were matters which concerned only him and his purchasers. The defendants had nothing to do with them. Under cl. 6, the second plaintiff had to "keep the value of his stocks at all times fully insured against fire risk." Clause 13 is as follows:

" The relationship between parties hereto shall be that of principal and principal only and the selling agent shall have no authority whatsoever except such as may be conferred upon him in writing by the firm to transact any business in the name of the firm or to bind the firm by any contract, agreement or undertaking with or to any third party." In contrast with these terms, there is cl. 4, which provides that the defendants would themselves supply to <ORG> all their requirements of lubricants within the territory allotted to the second plaintiff, who was to act as their agent in clearing the goods and delivering them to the authorities. And for this, the second plaintiff was to be paid a commission. It is clear that the agreement read as a whole is a composite one consisting of two distinct matters. So far as cl. 4 is concerned, the second plaintiff was merely an agent of the defendants. As regards the other clauses, the true relationship is, as stated in cl. 13, that the second plaintiff was purchaser of the goods from the defendants, and the conditions relating to the minimum price at which they could be sold and the marking of the goods with the name of <ORG> were only intended to protect their trade interests but that once the shipping document were endorsed by the defendants to the second plaintiff, he became the owner of those goods. The object of the insurance clause was obviously to safeguard the interests of the defendants with reference to the balance price payable by the second plaintiff. In this case, we are not concerned with any goods consigned by the defendants for supply to the <ORG> under cl. 4 but with goods which were imported by them for meeting the requirements of the plaintiffs. The relationship of the parties with reference to those goods, if it is governed by this agreement, is undoubtedly that neither party is agent of the other, and that the defendants are the sellers and the plaintiffs are the purchasers. If so, the title to the goods would pass to the plaintiffs only when the defendants appropriated them to the contract, as for example, by endorsing the shipping documents, and as that had not been done, the claim for damages on the ground of conversion would be misconceived.

The learned Solicitor-General who appeared for the appellants, did not dispute that this was the position under Ex. A. But he contended that the relationship of seller and purchaser created by the agreement became modified when the Government introduced the licence system. That was introduced in August ,September, 1941, while the war was on, with a view to regulate and control imports. The system adopted was that every importer was required to give a statement as to they extent of his import business during the preceding years, and on the basis of that statement, a licence was given to him to import up to a limit. On September 26, 1941, the second plaintiff applied to the Controller for a licence to import lubricants stating that he had been doing that business for seven years and giving particulars as to the volume of his business. Sometime in November, a licence was granted to him by the Government. The defendants also applied for a licence to import lubricants based on the volume of their business and obtained it. That licence did not -include the quantity which they sold to the second plaintiff, and thus the two licences were mutually exclusive. Mr. <NAME> would have been himself entitled under the licence to import goods directly from America, but he chose to import them through the defendants as before, because under the terms of the agreement, Ex. A, he would have to pay only 80 per cent. of the price when clearing the goods. There was, however, this change in the character of the transaction, that whereas before the licence system the defendants were the purchasers from American Companies under c.i.f. contracts and they then sold the goods to the second plaintiff on a price fixed by them, under the licence system the price payable to them was only what they themselves had to pay to the American sellers with an addition by way of commission on the transaction.

Now, the argument of the appellants is that as they were the persons entitled to import the goods under the licence granted to them, in importing them on their requisition the defendants must be held -to have acted for them, and that the relationship between them was no longer one of seller and purchaser under Ex. A but of agent and principal. To this, the answer of Mr. <NAME>, learned counsel for the respondents, was twofold. He contended firstly that in applying for and obtaining the licence in his own name, the second plaintiff was merely acting as the agent of the defendants, and secondly that the present contention was not raised in the plaint and was, therefore, not open to the appellants. On the first contention he referred us to the correspondence which passed between the parties at the relevant period. On September 5, 1941, the defendants wrote to the second plaintiff to send particulars of certain shipments consigned to him so that they could include them in their application for licence, and on September 11, 1941, they further wrote to him that those goods were not to be included in hi,, application for licence. But the second plaintiff was obviously not agreeable to it, and actually included those very shipments in his application for licence dated September 26, 1941. The defendants did not pursue the matter further, and wrote to the second plaintiff or December 10, 1941, to intimate to them the number and date of his import licence and continued to import goods for him on the basis of that licence. Counsel for respondents relied on a letter dated December 11, 1941 in which the defendants advised the second plaintiff to join a group of oil merchants, which was to be formed at Bombay, but that was obviously by way of adviced to him as a customer. This evidence is too inconclusive and too slender to support the contention that the second plaintiff obtained the licence as the agent of the defendants. On the other hand, if the true position of the second plaintiff under Ex. A was that he was a. purchaser of goods, then the sales by him of those goods were as owner and the licence issued to him on the basis of those sales must have been given to him in his own right and not as agent of the defendants. This wag the finding of <NAME> and that has not been reversed on appeal, and we are in agreement with it.

It is next contended that the entire plaint is framed on the footing that the rights of the parties are governed by <ORG>, that there is no averment therein that that agreement had been cancelled or modified, and that a new agreement had been substituted after the licence system was introduced, that the evidence of Mr. <NAME> in the box was also that <ORG> was in force throughout the period, and that therefore it was not open to the appellants now to contend that the rela- tionship of seller and purchaser under <ORG> had been altered into one of agent and principal. It is true that the plaint proceeds on the basis that <ORG> is in force, and there is no allegation that it had been modified. But <ORG> had not been wholly abandoned. It was still in force governing the relationship of the parties in respect of various matters such as delivery of goods on payment of 80 per cent. of the price. The plaint does refer to the introduction of the licence system, and the defendants clearly knew as much of the true position thereunder as the plaintiffs, and there could be no question's surprise. Under the circumstances, if the rights of the parties had to be determined on the basis of the licence system, we would have hesitated to non-suit the appellants merely on the ground that the effect of that system had not been expressly stated in the plaint.

But then, the licence system itself came to an end in March- April, 1942, and was replaced by what is known as " Lease and Lend " scheme. It was under this scheme that the goods which form the subjectmatter of this litigation were imported, and we have therefore to examine what the rights of the parties are with reference to the incidents of that scheme taken along with Ex. A, which is admitted by the appellants to have been in force. This scheme was introduced by <ORG> as a war measure to facilitate the import of certain essential goods and to conserve them for the effective prosecution of the war. Oil and lubricants were among the goods which were controlled under this scheme. Under it, the <ORG> prohibited the direct import of oil and lubricants from America through private agencies, whether individuals, firms or companies and took upon itself to import the required quantity. An association of importers and dealers in Calcutta called <ORG> (C.L.A.C.) was formed, and importers were to write to the <ORG> what quantity they required to be imported on their behalf. This <ORG> was a private body, and served as a liaison between the importers and the <ORG>. A similar <ORG> was formed at Bombay called the Bombay Lubricants Advisory <ORG> (B.L.A.C.). The procedure adopted in the import of goods was this: the importers were to state their requirements to the <ORG> which sent the same to the <ORG>. Then on intimation given by the <ORG> authorities, the dealers would have to make deposits on account of the price to be paid for the goods. The <ORG> had a purchasing agent in America and he would be required by them to purchase the requisite goods and to arrange to get them transhipped to the destinations in India mentioned by the several dealers. The shipping documents would be taken in the name of the <ORG> and on payment of the bills endorsed over to the importer for clearance at the harbour. The features of the system to be noticed are that it was the <ORG> who was the importer of the goods and the dealers became entitled to the goods only on the shipping documents being endorsed to them by the <ORG>. Now, so far as the plaintiffs are concerned, the facts are that they made no deposits with the <ORG>,  and their names were not in the list of traders for whom the <ORG> imported the goods. They had direct dealings only with the defendants and sent their requirements to them. The defendants would in their application to the <ORG> include what the plaintiffs required as well as what they themselves required and make the necessary deposits for all the goods. But all that would stand only in their name. Though it would be possible to ascertain by reference to the correspondence between the parties which of the orders placed by the defendants with the <ORG> related to the requirements of the plaintiffs, so far as the <ORG> itself was concerned it knew only of the defendants as importers, and it was in their name that. it would endorse the shipping documents, and it was only when the defendants in their turn endorsed the same to them that the plaintiffs would get title to the goods, and the evidence of Mr. <NAME> makes it clear that this had not been done, as regards the shipments with which the suit is con- cerned. This is what he says in his deposition. " The goods were shipped all to the order of <ORG> Separate documents were drawn up in respect of the consignments which were to be supplied to each of the trader according to his requirement submitted to <ORG>. The traders who submitted their requirements cleared the goods by paying the amount of the bills.... The <ORG> did not make any allocation to me. I depended on the defendants for obtaining my requirements from the <ORG>. I did not make any cash deposit as required of the dealer. 1 made no deposit with the <ORG> in respect of the quantity which I wanted. The entire deposit was made with the <ORG> by the defendants even in respect of my requirements... The defendants endorsed over the documents in my favour for goods which were meant for me... Excepting for the admitted portions the documents for remaining part of PL. 1004 to 1007 were not handed over to me or endorsed in my favour, except to the extent to which the goods were delivered,"

<NAME>

The evidence of Sir <NAME> for the defendants was "the shipping documents were received in the name of the defendants ". It is thus clearly established that with reference to the goods comprised in P.L. 1004 to 1007, which formed the subject-matter of the suit, the shipping documents had not been made out in the name of the plaintiffs, nor had the defendants in whose names they were taken, endorsed the same to them. That being so, unless the plaintiffs established that the defendants were importing the goods as their agents, they would not have title to them, and the claim for damages on the basis of conversion must fail.

We should mention that the appellants relied on some of the letters written by the defendants as showing that they recognised the plaintiffs as having the title to the goods. Thus, on August 12, 1944, the defendants wrote to the plaintiffs " We confirm that the consignment is for you ", and on March 24, 1945, they wrote, " We enclose herewith a statement showing quantities and grades that have been ordered by Government on your account against order P.L. 1006/10" But these statements are quite consistent with the position of the defendants as sellers who had ordered the goods on the requisition of the plaintiffs, and do not import that title thereto had passed to them, which could be only after the goods came into existence and were appropriated. That did not happen in this case, and the shipping documents continued in the name of the defendants. We therefore agree with the learned Judges that on the pleadings and on the evidence the claim for damages on the footing of conversion must fail.

That would entail the dismissal of this appeal, but the plaintiffs have applied to this <ORG> for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non- delivery of the goods. The respondents resist the application. They contend that the amendment introduces anew cause of action, that a suit on that cause of action could now be barred by limitation, that the plaintiffs had ample opportunity to amend their plaint but that they failed to do so, and that owing to lapse of time the defendants would be seriously prejudiced if this new claim were allowed to be raised. There is considerable force in the objections. But after giving due weight to them, we are of opinion that this is a fit case in which the amendment ought to be allowed. The plaintiffs do not claim any damages for wrongful termination of the agreement, Ex. A, by the notice dated June 13, 1945. What they claim is only damages for non-delivery of goods in respect of orders placed by them and accepted by the defendants prior to the termination of the agreement by that notice. Clause 14 of the agreement expressly reserves that right to the plaintiffs. The suit being founded on Ex. A, a claim based on Cl. 14 thereof cannot be said to be foreign to the scope of the suit. Schedule E to the plaint mentions the several indents in respect of which the defendants had committed default by refusing to deliver the goods, and the damages claimed are also stated therein. The plaintiffs seek by their amendment only to claim damages in respect of those consignments. The prayer in the plaint is itself general and merely claims damages. Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods.

It is no doubt, true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice. <CITATION> (1) <ORG> observed:

" That there was full power to make the amendment cannot be disputed, and though such a power (1) [1920] 47 I.A. 255.

should not as a, rule be exercised where the effect is to take away from a defendants, legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case.

Vide also <NAME> v. <NAME> In the present case, apart from the contents of the plaint already set out, there is the fact that the defendants cancelled the contract without strictly complying with the terms of cl. 14. The ground on which they repudiated the contract was that the second plaintiff had assigned his interests to the first plaintiff ; but the record shows that subsequent to the assignment the defendants had business transactions with both the plaintiffs and therefore the ground for cancellation appears to have been a mere device to deprive the plaintiffs of the benefits of the orders which they had placed. We are of opinion that the justice of the case requires that the amendment should be granted. The plaintiffs will accordingly be allowed to amend the plaint as follows:

" 12(a) In the alternative and without prejudice to the claim on the footing of conversion, the plaintiffs say that by reason of the facts aforesaid, there was a contract between the parties whereby the defendants undertook to supply and deliver to the plaintiffs (or either of them) the goods ordered out by <ORG> on-their (the plaintiffs') account and included in the quotas PL. 1004-PL. 1007. The said goods arrived in Bombay, but the defendants failed and neglected to deliver the same though demanded, and in fact repudiated their obligation to deliver. The plaintiffs say that they were always ready and willing to pay for and take delivery of the same.

The defendants at all material times well knew that the plaintiffs had purchased the same for resale and for fulfilment of contracts of sale and supply. The plaintiffs claim damages as per particulars. "

This appeal must accordingly be allowed, the decree under appeal set aside, and the suit remanded for (1) [1909] I.L.R. 33 Bombay 644.

rehearing to the trial court. The defendants will file their written statement to the amended claim and the suit will be tried and disposed of in accordance with law. There remains the question of costs. As the plaintiffs are getting an indulgence, they must pay the costs of the defendants both in the suit and in the appeal to <ORG>. So far as costs of this appeal are concerned, as the defendants persisted in their contention that the plaintiffs were only acting as their agents, a contention which, if upheld, would have furnished a conclusive answer to the amended claim as well, we direct the parties to bear their own costs in this Court.

Appeal allowed.

Case remanded.


JUDGMENT

1. The subject-matter of the litigation which has culminated in this appeal is an image of <NAME> established in the town of Naraingunj in the District of Dacca and the properties movable and immovable appertaining to the endowment of that diety. The plaintiffs-respondents claim to be the representatives of the founder and they commenced this action for recovery of possession upon the allegation that the line of mohunts came to an end and that the defendants were trespassers in unlawful occupation of the endowed properties. The first two defendants who alone substantially resisted the claim denied the title of the plaintiffs as representatives of the founder and alleged that they were themselves the lawfully appointed mohunts of the endowment. One of these defendants has died during the pendency of the present litigation and we are now concerned only with the case of the first defendant who is the appellant before this Court. The other defendants were brought on the record upon the allegation that they had improperly interfered with the management of the endowment and had set up the mohunts defendants for that purpose. No relief, however, was claimed against them and we are not concerned at this stage with the question of their liability, if any. In order to appreciate accurately the position of the respective parties it is convenient to refer to the following geneological tables one of which gives the line of the founder and the other sets out the line of mohunts.

CHAITAN DASS (1) (Mohunt) BHIKAN LAL SARMA (Founder). | | Dayaram (2) (Mohunt) Narayan Das | | ------------------------------------ Gopal Prasad | | | | (3) Janki Das (4) Lachman Das Arjun Das | | died October 1854 -------------------- (5) <NAME> | | | <NAME> ---------------------- or | | | Raja Baboo ------------------------------ (6) <NAME> (9) (died before 1870) | | | | | died 30th May 1868 widow Prosanna Prannath Gopi Janaki Joy Kumari --------------- Rani Dasi Baishnabi Kumari (died 14th died married married married | | died 12th December 1886) 16th <NAME> (7) <NAME> (8) Prolhad August | Krishna Krishna December 1899 1895 <NAME> | | | plaintiff (2) Guru | <NAME> (10) Prasad | defendant (2) plaintiff (3) | | | <NAME> (11) | defendant (1). ------------------ | | <NAME> plaintiff (4) plaintiff (5).

From these tables it will appear that <NAME> was the founder of the endowment and that the first <ORG> to whom he entrusted the management of the endowed properties was <NAME>. The plaintiffs claim to be the representatives of the founder and so far as the first of them is concerned, there can be no room for controversy that he is one, if not the sole, representative of the founder. The defendants, however, deny that the other plaintiffs can in any manner claim to be the representatives of the founder inasmuch as they are the sons of the daughters of the daughter of the grandson of the founder. So far as the defendants are concerned <NAME> claims to be the rightfully appointed chela of <NAME> and <NAME> asserts that he is the duly initiated chela of <NAME> and has been appointed as <ORG> by consent of the members of the sect to which he belongs. The substantial point in controversy between the parties is, whether <NAME> is the lawfully appointed <ORG> of the endowment. If this question is answered in the affirmative, the plaintiffs or any of them as representing the line of the founder would not prima facie be entitled to possession of the endowed properties. If the question is answered in the negative, the point necessarily arises for examination, whether the plaintiffs or any of them are entitled to recover possession of the properties and to hold them as shebaits. The solution of this question may, it has been suggested, depend upon the answer to another question, namely, whether the endowment is of a private or public nature. A third question may also require consideration, namely whether in the events which have happened and which will be presently narrated the title of the defendants to the office of <ORG> may not have been extinguished by limitation. In the Court below the Subordinate Judge has found, upon the first question, that the first defendant <NAME> is not the lawfully appointed mohnnt inasmuch as his spiritual preceptor <NAME> had not at any time attained the status of the initiated chela of <ORG>, much less that of the duly installed <ORG>s of the endowment. So far as the second question which relates to the true character of the endowment is concerned, the Subordinate Judge has not come to any distinct finding, but he has held upon the evidence that the worship of the diety is maintained to a large extent by public subscriptions and charities and that the properties of the endowment have from time to time received substantial benefits and accretions from charitable gifts by members of the public. He has held, however, that whatever the character of the endowment may be, as the line of <ORG>s has come to an end, the plaintiffs as representatives of the founder are entitled to recover possession of the image and of the dedicated properties and to hold them as shebaits. Upon the question of limitation, he has held that the suit is not barred by limitation, but he has not discussed the position whether in the events which have happened, the title of the defendants, to hold as <ORG>, may not have been barred by adverse possession on the part of the plaintiff. In this view of the matters the Subordinate Judge has made a decree in favour of the plaintiff as shebaits, but has excluded some of the properties included in the plaint. The first defendant has now appealed to this Court, and on his behalf the decision of the Subordinate Judge has been challenged substantially on three grounds, namely, first, that the first defendant is the lawfully appointed <ORG>; secondly, that as the endowment is of a public nature, the representatives of the founder have no special statuts and, thirdly, that the plaintiffs have been awarded a decree on a case not set out in the plaint nor made out in the evidence. On behalf of the plaintiffs-respondents, all those positions have been controverted, and, it has further been argued that as from 1872 to 1899 they have managed the endowment as shebaits the title of the defendants, if any, to the office of <ORG> has been extinguished by adverse possession. Before we deal with the questions in controversy, it is necessary to examine for a moment the history of the origin and management of the endowment.

2. The endowment appears to have been created by <NAME> towards the latter end of the 18th Century. He established an image of the diety Lakshmi Narain Jew in the town of Dacca and dedicated his own estate for its worship and maintenance. Subsequently, he appears to have established this image in suit in the town of <ORG> and at one stage of the proceedings a question appears to have been suggested, whether the institution at <ORG> was a branch of the parent institution at Dacca. This question, however, has not been investigated and an enquiry into this matter is not absolutely necessary for the decision of the points raised before us; but so far as we can gather from the record, the <ORG> endowment was in its inception a private endowment, subordinate to <ORG>, though in course of time, the former may be said to have acquired a more or less public character by reason of the influx of pilgrims and devotees who have made gifts of property from time to time. We may, however, proceed on the assumption that <ORG> is. independent of the one at Dacca. There are no materials on the record which would enable us to determine with any approach to certainty the terms on which the foundation was created. We do not know what power, if any, either of management or of nomination to the office of mohunt, was reserved in himself by the founder. The defendant has in his possession documents which might perhaps have thrown some light upon this question. He admits that he has a deed of gift written in Persian but he has not filed it. We start, therefore, with this information only that more than a Century ago, <NAME> established this endowment and placed it in charge of <NAME> a mohunt of the Ramayat sect. The next item of information we get is that after the death of the founder as also of the first mohunt, in the time of <NAME>, when <NAME> became the mohunt, he got a sanad of release from <NAME>. This was apparently in the form of a debutter-grant made on the 27th April 1813. This we gather from the recitals in a judgment delivered on the 17th August 1855 in a possessory dispute which led to Criminal proceedings under Section 3 of Act IV of 1840. This would tend to indicate that a recognition of the title of the mohunt by the representatives of the founder was deemed to be necessary when by succession a new mohunt come to hold the office in 1813. This deed also, if it is still in existence, must be in the custody of the defendant and for some unexplained reason has been withheld. About 40 years later, upon the death of <NAME>, disputes arose again as to the possession of the endowed properties. When <NAME> died, apparently the only persons then alive in the line of mohunts were the grand chelas of his spiritual brother <NAME>. <NAME> set up <NAME> as the mohunt in whose favour ho executed a deed of gift. This led to disputes and criminal proceedings were commenced as already mentioned. The result of the proceedings was that <NAME> and <NAME> were maintained in possession, and they appear to have continued in occupation of the endowed properties from 1855 to 1868. Shortly before the death of <NAME> which took place on the 30th May 1868, <NAME> executed a deed in favour of his wife <NAME> and his nephew <NAME> by which ho authorised them to manage the endowment as shebaits. This induced <NAME> to present an application, apparently to the Collector, on the 30th July 1867. In this he admitted that the founder <NAME> and the first mohunt <NAME> had performed the service and worship of the idols with the income of the debutter property according to the terms of the sanad, that after their death, <NAME> had become the shebait and performed the service and worship, and after his death <NAME> had been appointed shebait to perform the service and worship of the idol in Dacca. He complained, however, that <NAME> being incapable of doing the work of shebait had renounced his shebaitship and had made an application for substitution of <NAME> and <NAME> as shebaits in his place. <NAME> urged that this was not right and that if <NAME> renounced the shebait-ship, he was entitled to be the shebait of the idol established in the house at Dacca. He, therefore, claimed that he might be recognised as the shebait of the idol in Dacca as he was also the shebait of the idol of Naraingnnj. What happened to this application, is not known, but it is admitted that in the records of Collector, <NAME> and <NAME> have been registered for many years past as shebaits. <NAME>, as we have already said, died shortly after in 1868. At that time, <NAME>, now alleged to be his chela was not in the temple, and possession was taken by his Baishnavi Mistress <NAME> who set up a will alleged to have been executed by him. Meanwhile <NAME> and <NAME> applied for a certificate under Act XXVII of 1850 for authority to perform the services not only in Dacca but also in <ORG> and to collect the debts due. The certificate appears to have been subsequently granted to them in 1871. In the interval <NAME> had had commenced an action on the basis of the alleged will of <NAME>, which was dismissed on the 26th May 1872. The <NAME> held that as she was an unchaste woman and belonged to a different caste, it was not likely that she could have been appointed shebait by <NAME> and that the evidence adduced to prove the genuineness of the will was altogether worthless. Immediately after, there was a compromise between <NAME>. on the one hand and <NAME> and <NAME> on the other and on the 20th November 1872 both the parties filed applications before the District Judge in the appeal preferred against the decree of dismissal of the suit of <NAME>. The effect of this compromise was to declare that <NAME> and <NAME> were the shebaits of the debulter estate and that <NAME> was to be appointed to manage the endowment. The result of this settlement was that <NAME> continued to hold possession of the endowed properties under <NAME> and <NAME> from 1872 till her death on the 12th December 1899. Shortly after her death, disputes broke out again and the plaintiffs alleged that the first two defendants who falsely claim to be mohunts, with the assistance of the other defendants, two of whom are members of the legal profession and the third is an influential landlord of the locality, managed to obtain possession of the properties The plaintiffs, therefore, commenced this action on the 26th November 1908 for declaration of their title to and recovery of possession of the endowed properties as shebaits.

3. The first point which requires consideration is whether the first defendant is the lawfully appointed mohunt of the endowment. The Subordinate Judge has come to the conclusion upon the evidence that he is not the shebait or mohunt. The evidence upon this part of the case was criticised in considerable detail before us and has been subsequently subjected by ourselves to minute examination. The result is that the view taken by the Subordinate Judge proves to be manifestly well-founded. It is obvious that <NAME> up to the time of his death in 1868 was the lawful shebait and mohunt of the endowment. <NAME>, who is now alleged to have been his chela and entitled to the office of mohunt upon his death, was not present in the temple of the time of his death. His Baishnabi Mistress <NAME> upon his death set up a false will and was defeated in the litigation which she commenced for possession of the temple and its properties. Subsequently, as we have already stated, she abundoned her claim and was placed in possession as manager under <NAME> and <NAME> as shebaits. So far as we can gather from the evidence, <NAME> came to the temple about 1875, that is, seven or eight years after the death of <NAME>. It is also fairly clear that this was the first time that he came to the temple. He could not, therefore, have been the initiated chela of <NAME> Das. On the other hand there is evidence to show that he became the chela of <NAME> which would not, of course, confer on him any legal status. His subsequent conduct during many years is entirely inconsistent with the theory now put forward that he was the chela of <NAME> Das and as such entitled to succeed to the office of mohunt. During the time of his stay in the temple from his first arrival in 1875 to the death of <NAME> in 1899, his position was that of the manager of the endowment under <NAME>. It is most natural, therefore, that, as indicated in the evidence, he should be, somewhat loosely in common parlance, spoken of as the mohunt. If <NAME> had been the duly initiated chela of <NAME> Das and as such entitled to succeed to the office of mohunt, it is inconceivable that he should have omitted to assert his right during a period of 25 years. On the other hand he uniformly contented himself with a subordinate position wholly inconsistent with that of the spiritual head of the endowment. Thus, for instance, from a deposition given by him on the 4th September 1904, though he called himself the spiritual son of <NAME> Dass, it is clear that he was nothing better than the manager on behalf of the defendant in that case. Again, it appears from the evidence of <NAME> a pleader at Naraingunj, that litigations in respect of the endowed property were conducted in the name of <NAME> while <NAME> merely acted as her manager. Apart from this, however, the oral evidence of the initiation of <NAME> by <NAME> is wholly unreliable. No doubt some of the witnesses for the defence speak of <NAME> as the chela of <NAME> Das. But the evidence is not uniform and <NAME>, a zamindar of some respectability, examined on behalf of the plaintiff, says in cross-examination that <NAME> Das had no chela of his own. It is clear also that witnesses who are alleged to have been present at the time of the initiation and who might easily have been called were not examined. Whether, therefore, we consider the direct evidence of initiation or the evidence of conduct of <NAME>, the conclusion is irresistible that he was not the duly appointed chela of <NAME> Das. The part which he played in the various litigations relating to the endowment, and the position which he occupied for many years in the temple are inconsistent with the theory that he was entitled to the spiritual headship of the endowment. We must, therefore, affirm the finding of the Subordinate Judge that <NAME> was not the chela of <NAME> Das and that the first defendant <NAME>, as the chela of <NAME>, has no title to the office of mohunt.

4. The second point which requires consideration is, whether, under these circumstances when it is established that the last mohunt <NAME> has not left any chela entitled to the office of mohunt, the representatives of the founder can legitimately claim to take possession of the properties as shebaits. Upon this branch of the case , the learned Counsel for the appellant, endeavoured to make a distinction between private and public endowments. He argued that whatever might be the case, with a private or family endowment, the representatives of the founder have no special rights when the line of mohunt becomes extinct in the case of a public temple. In our opinion, the distinction suggested is not supported by the authorities and is not defensible on principle. It is now well-settled that the devolution of the trust upon the death or default of each trustee depends upon the terms upon which it was created or the usage of each particular institution where no express trust-deed exists. In support of this proposition, it is sufficient to refer to the decisions of <ORG> in the cases of <NAME> v. <NAME> 11 M.I.A. 405 : 8 W.R. (P.C.) 25; Muttu Ramalinga v. Perianayagum 1 I.A. 209 <CITATION> 10 I.A. 32 :13 C.L.R. 30 : 9 C. 766 and <NAME> v. Chhatar Puri 13 I.A. 100 : 9 A. 1. We have further the recognised principle that when the worship of an idol is founded, the office of shebait is held to be vested in the heirs of the founder in default of evidence to show that he has disposed it of otherwise. <NAME> v. <NAME> 17 G. 3 : 16 T.A. 137. From these two propositions, it necessarily follows that where a shebait appointed by the founder fails to nominate a successor in accordance with the conditions or usages of the endowment, the management reverts to the representatives of the founder. This proposition is supported by the cases of <NAME> v. <NAME> 5 B.L.R. 181 : 13 W.R. 396; <NAME> v. <NAME> 17 G. 3 : 16 T.A. 137; <CITATION> 12 C. 375 and <NAME> v. <NAME> 25 C. 354. The same view has been repeatedly taken by the learned Judges of <ORG> see <CITATION> 18 A. 227; <NAME> v. <NAME> 28 A. 689 : A.W.N. (1906) 173 and <NAME> v. <NAME> 29 A. 663 : A.W.N. (1907) 210 : 4 A.L.J. 565. In the case last mentioned, the endowment was for the promotion of the Nanakshahi religion and was undoubtedly of a public character and yet it was ruled that when a Religious Endowment has been founded, the right to appoint a manager or superintendent remains in the founder and his descendants, unless there is evidence to show that the founder or his descendants have made any inconsistent disposition. Substantially to the same effect is the decision of <ORG> in <NAME> v. <NAME> 15 M.44 in which it was ruled that in the; absence of a deed of endowment the obligations of the head of a math to the representatives of the founder can only be deduced from the usage of the <ORG>.' See also <CITATION> 14 M.I. If this test is applied to the case before us, the defendant has no answer to the suit. The representatives of the founder have, from 1813, exercised control, direct or indirect, over the management of the endowment, and it is difficult to appreciate how it can be seriously contended that they have no right to intervene when it is found that the succession to the office of Trustee-has wholly failed and the properties have passed in. the hands of a trespasser who sets up a fictitious claim to the office of mohunt. In fact, this recognition of the right of the founder or his representatives to intervene where the succession to the office of Trustee has wholly failed may be regarded as, in some respects, analogous to the well-established right of visitation of the founder and his representatives in the case of <ORG> in England. It is impossible, in our opinion, to support the view that the founder who furnishes the original endowment has no concern when he finds that by reason of the failure of the succession to the office of Trustee, the whole object of the endowment is jeopardised; and, in our opinion, his representatives are entitled to claim the same right of management as he himself, if alive, would be entitled to claim in such a contingency. We must, consequently, hold that the plaintiffs or that some amongst them who are the representatives of the founder are entitled to the relief claimed in this suit. There is, however, in our opinion, another ground upon which the plaintiff would be entitled to succeed. As we have already pointed out, the plaintiffs were in possession of the endowment as shebaits from 1872 to 1899. If the case for the defendant is true, <NAME> had no status at all in relation to the endowment, and, upon the death of <NAME> in 1868, <NAME> ought to have come into the occupation as the mohunt. What then is the legal effect of the long and continuous possession of the plaintiffs as shebaits of the temple? Clearly the right of any other person who might be imagined to be lawfully entitled to the office of shebait has been extinguished by adverse possession. This view is amply supported by the cases of <CITATION> 21 M. 278; <CITATION> 27 M. 192 : 29 M. 283 (P.C.) 10 C.W.N. 825 : 8 Bom. L.R. 498 : 16 M.L.J. 265 : 4 C.L.J. 189 : 3 A.L.J. 707; <NAME> v. <NAME> 6 C.L.J. 621; <NAME> v. <NAME> 14 M. 153 and by the decisions of <ORG> in <NAME> v. <NAME> 101. A. 90 : 6 A. 1 and <NAME> v. <NAME> 17 G. 3 : 16 T.A. 137. It is manifest, therefore, that as for 27 years from 1872 to 1899, the plaintiffs have been in possession of the office of shebait through their manager <NAME>, they have acquired a statutory right to the office of shebait. In this view also the plaintiffs would be clearly entitled to succeed.

5. The third point which requires consideration is, whether the plaintiffs are entitled to any relief in the suit as framed. The learned Counsel for the appellant has strenuously contended that the plaintiffs ought not to be allowed to succeed upon a case, neither made in the plaint nor developed in the evidence. He has laid stress upon the circumstance that the plaintiffs asked for declaration of their maliki and shebaiti rights in the disputed properties and has argued that the two cases were wholly inconsistent. It may be conceded that the language of the plaint is open to criticism but the plaintiffs have never pressed for relief on the ground that they are absolute owners and not shebaits of the disputed property. In the <ORG> below as well as in this <ORG>, they have sought relief solely on the ground that upon failure of the line of mohunts they are entitled as representatives of the founder to recover possession of the endowed properties as shebaits and this is the decree which has been made in their favour. No doubt as has been repeatedly held a plaintiff is not entitled to succeed on a case not to be found in the pleadings nor involved in or consistent with the case thereby made. <CITATION> 11 M.I.A. 7 at p. 20 : 2 Ind. Jur. N.S. 87 : 6 W.R. (P.C.) 57; <NAME> v. <NAME> 11 M.I.A. 468 at p. 473 : 9 W.R. (P.C.) 9 and <NAME> v. <NAME> 12 M.I.A. 470 at p. 475 : 2 B.L.R. 64 (P.C.) On the other hand, it has been frequently laid down that even if the plaintiff should mistake the relief to which he is entitled in his special prayer, the <ORG> yet may afford him the relief to which he has a right under the prayer for general relief, provided it is such a relief as is conformable to the case made in the plaint. <NAME> v. <NAME> 6 B.L.R. 273 : 14 W.R. 181; Nistarini Dasi v. <NAME> 9 B.L.R. 11 : 17 W.R. 432. The test in each case is, whether the relief sought may be granted upon the facts stated in the plaint and established by the evidence and whether the variance, if any, between the pleading and proof will take the defendant unfairly by surprise. Tested in the light of these principles, it is mainfest that the defendant has no substantial grievance. The facts are set out with sufficient precision in the plaint and have been made out by the evidence on the side of the plaintiffs. The special case set up in the defence has completely failed. Under these circumstances, there is no conceivable reason why the plaintiffs should not get relief on the ground that they have shebait right in the image of the diety <NAME> and the properties endowed for his worship. It has, farther, been argued by the learned Counsel for the appellant that if the plaintiffs as representatives of the founder are entitled to any relief, it is the first plaintiff alone in whose favour a decree may legitimately be made, because, it was contended, the office of shebait is inalienable and any arrangement, made by <NAME> authorising his wife <NAME> and his nephew <NAME> to hold the office jointly, is inoperative in law. There may be some force in this contention in view of the decisions in <CITATION> 4 I.A. 76 : 1 M. 235; Gnanasambanda Pandara Sannadhi v. <NAME> 27 I.A. 69 : 23 M. 271 : 4 C.W.N. 329; <CITATION> 12 C.W.N. 98 and <CITATION> 35 C. 226 : 12 C.W.N. 323 : 7 C.L.J. 315. But the question of the rights of the plaintiffs inter se is evidently one winch cannot be determined in this litigation. In the first place, this question has not been raised or even suggested at any previous stage of the proceedings. In the second place, the plaintiffs-respondents have throughout been represented by the same Pleader and any question of conflict of interest cannot properly be discussed unless an opportunity is afforded to each of them to place his case before the <ORG> independently. In the third place in view of the decision in the cases of <NAME> v. Purun Mal 10 I.A. 90 : 6 A. 1; <CITATION> it is quite conceivable that the plaintiffs other than the first plaintiff may have acquired as against the latter astatutory right to hold the shebaitship jointly. In the fourth place, it is immaterial to the defendant-appellant whether all the plaintiffs or only one amongst them holds the office of shebait as the representative of the founder. Under these circumstances we must decline to enter into a discussion of the question of the rights to shebaitship amongst the plaintiffs inter se.

6. It may be added that a question was raised in the Court below as to whether the suit was maintainable in view of the provisions of Section 539, Civil Procedure Code of 1882. The objection was not seriously pressed though evidence was adduced to prove the worship is now maintained to a considerable extent by public charity and substantial additions have been made to the properties by the gifts of devotees and worshippers. The Subordinate Judge held that the objection could not be maintained in view of the decisions of this Court in <CITATION> 33 C. 789 : 10 C.W.N. 581. This is manifestly right and the objection has not been reiterated in this Court.

7. The result, therefore, is that the decree made by the Subordinate Judge is substantially just and must be affirmed with costs.


CASE NO.: Writ Petition (civil) 613 of 1994 Writ Petition (civil) 671 of 1994 Writ Petition (civil) 83 of 1998 Writ Petition (civil) 197 of 1998 Special Leave Petition (civil) 7823 of 1996 PETITIONER: TAMIL NADU ADMINISTRATIVE SERVICE OFFICERS ASSOCIATION & ANR. Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 19/04/2000 BENCH: <NAME>, <NAME> JUDGMENT:

SANTOSH HEGDE, J.

L.....I.........T.......T.......T.......T.......T.......T..J Leave granted in SLP©No.7823/96. In the above writ petitions and civil appeal members of <ORG> have sought for directions from this <ORG> to the respondents to encadre all the <ORG> posts, Ex-cadre posts and Temporary posts hitherto manned by the members of <ORG> (for short <ORG>) for a continuous period exceeding three years, in the <ORG> cadre. It is their complaint that in their respective <ORG>s large number of posts which are not included in item 1 of the Schedule to the <ORG> (Fixation of Cadre Strength) Regulations, 1955 (for short Cadre Regulations) are being manned by <ORG> officers and these posts have been in existence for decades together and in spite of the same they are not encadred even though under the Cadre Regulations it is obligatory for <ORG> to do periodical cadre review. Consequent to the failure on the part of the respondents to encadre these large number of posts the petitioners/appellants are denied of their legitimate right of being selected to the <ORG> by promotion under Rule 8 of the <ORG> (Recruitment) Rules, 1954 (for short Recruitment Rules). They contend that 33 1/3 per cent of the <ORG> <ORG> cadre is reserved for selection by promotion of the <ORG> service officers and non encadring of the above posts has denied them of their legitimate share in the <ORG> cadre. During the pendency of these petitions and appeal, by notification dated December 31, 1997 <ORG> brought about certain amendments to the <ORG> (Appointment by Promotion) Regulations, 1955 (for short Appointment by Promotion Regulations). <ORG> in its counter affidavit filed in the above cases contended that the complaints of the petitioners/appellants do not survive after the amendment since the respondents by those amendment have included the <ORG> posts and the Trainee reserve posts as part of the <ORG> cadre strength and petitioners are now entitled to have their share of 33 1/3 per cent of the enhanced cadre strength for their appointment to the <ORG>. However, the petitioners have rebutted this contention of the Respondent and have amended their original petitions and/or filed separate petitions challenging the said amendments. A perusal of the pleadings in the petitions/appeal filed prior to the amendment shows that under Rule 9 of the Recruitment Rules as it stood before the amendment, the number of persons to be recruited to the <ORG> from the <ORG> Civil Service was restricted to 33 1/3 per cent of the number of posts found at items 1 and 2 to the concerned schedule of the Cadre Strength Regulations. By amending the Recruitment Rules, the <ORG> has now enhanced the cadre strength of each <ORG> by including the posts allotted to them under items 5 and part of item 6 of the Schedule found in the Cadre Strength Regulations which are posts classified as <ORG> and Trainee reserve. Therefore, it is clear that since the filing of the original petitions/appeal <ORG> has increased the strength of the <ORG> cadre of <ORG>, but the petitioners/appellants pleaded that this increase in the strength is wholly illusory. They contend that still large number of posts, which are either termed as ex-cadre or temporary, are excluded from the cadre strength and what is increased by the amendment is only a cosmetic increase. The respondents in opposition contend that during the exercise of review of the cadre strength they have taken note of the necessary requirements of each <ORG> and have encadred only such <ORG> and the Trainee reserve posts which in their opinion requires to be encadred. They contend that the <ORG> <ORG>s have in contravention of Rule 4 of the Cadre Rules at times have been creating certain ex-cadre posts which in the opinion of <ORG> are unnecessary and hence such posts cannot be encadred in the <ORG>. In regard to the partial relief got by them after the amendment, the petitioners further contend the same has been given prospective effect only thereby denying them their legitimate seniority. They contend that inclusion of these posts ought to have been made with effect from the date these posts were created or at least from the date on which these petitions were filed. In reply to this, <ORG> contends that the petitioners do not have any legal right to demand the encadrement of these posts which hitherto were not a part of the cadre strength. This request of the petitioners amounts to asking <ORG> to create additional posts which right is not available to the petitioners. The petitioners have also in their amended and fresh petitions questioned the constitutional validity of amended Regulation 5(1) of the Appointment by Promotion Regulations. The Petitioners contend that by the said amendment the <ORG> has brought about unwanted, arbitrary and drastic changes in the calculations of vacancies available to be filled by the promotees by excluding the anticipated vacancies and by confining the selections only to substantive vacancies available on the first day of January of the said year. The petitioners contend that the process of selection invariably takes considerably long time consequent to which timely selection has become impossible, by excluding the anticipated vacancies, it is contended there will be further delay in selecting the petitioners to the <ORG> which might deprive many of them their chance to be selected for the <ORG>. They also contend that this practice of calculating the vacancies on the anticipated basis has been in vouge for a number of decades and <ORG> has brought about these amendments without any justification which limits the opportunities available for the petitioners for being selected to the <ORG>. The <ORG> of India has rebutted this contention. It contends that these amendments were brought about to streamline the selection process. It is stated that it has become practically impossible to make selections to anticipated vacancies for want of necessary information and some other practical reasons. They deny that these amendments are arbitrary and unnecessary. From the above contentions of the parties and taking into account the subsequent events that have taken place after the filing of the original petitions/appeal, the following questions arise for our consideration: 1. Should the temporary and ex-cadre posts that are in existence in the concerned <ORG> <ORG> service be directed to be encadred in the <ORG> cadre strength of the <ORG>s concerned? 2. Are the petitioners entitled in law to demand that the encadrement of posts should be effective from the original date of creation of the posts or at least from the date of filing of the respective petitions? 3. Are the amendments brought about to Regulation 5(1) of the <ORG> (Appointment by Promotion) Regulations, 1955 ultra vires and liable to be struck down? Before we proceed to consider the arguments advanced in support of their respective contentions in the above cases it is necessary to note that similar grievances were made by the <ORG> Service Officers of <ORG>s of Madhya Pradesh and West Bengal before <ORG>, Jabalpur and Calcutta benches. In the case of <CITATION> . 81/86) Jabalpur bench of the <ORG> held that deputation reserve listed at item 5 of the Schedule under the Cadre Strength Regulations has to be included for computing the promotion quota. This judgment was brought up by way of SLP before this <ORG> and the same was rejected. It is also to be noted that similar view was taken by the Calcutta bench of <ORG>. The Chandigarh bench of <ORG> as per the order dated December 13,1995, from which the above noted Civil Appeal No. of 2000 (arising out of S.L.P. © No. 7823 of 1996) arose, took the view that the temporary/ex cadre posts which have continued for long number of years, cannot be allowed to be continued as such, hence it directed the <ORG> and the <ORG> <ORG> to take necessary steps to discharge their legal and constitutional duties by examining the question whether such temporary and ex cadre posts which are in existence for a number of years and are likely to continue indefinitely should be either abolished or should form part of the cadre of the <ORG> of Haryana. Though the applicants therein succeeded in getting the above direction, they have preferred the above civil appeal to the extent the <ORG> failed to give them the retrospective benefit of the said order and rejected the challenge to the amendments referred to herein above. We have heard <NAME> and <NAME>, learned senior counsel for the petitioners/ appellants and <NAME>, learned Additional Solicitor General for <ORG> of India. The service conditions of <ORG> are governed by the provisions of the <ORG> Services Act , 1961 and the Rules and Regulations made under the said Act such as the Cadre Rules, Cadre Regulations, Recruitment Rules and the Appointment by Promotion Regulations. Practically, every aspect from the creation of the cadre, fixation of strength of the cadre, filling up of the officers in the cadre, their deputation, selection, promotion and seniority are all statutorily governed under the above-cited Rules and Regulations. Under Rule 3 of the Cadre Rules, an <ORG> cadre is created for each <ORG> or a group of <ORG>s in the Indian <ORG>. Rule 4 of the said Rules provides that <ORG> in consultation with the <ORG> <ORG>s should determine the strength and composition of the cadres constituted under Rule 3 by framing the regulations in this behalf. This Rule also provides for a review of the cadre from time to time which used to be at an interval of every 3 years and presently amended to 5 years. The review of the cadre strength contemplated under this Rule is to be done in consultation with the <ORG> <ORG>s concerned. The proviso to this Rule empowers the <ORG> <ORG> concerned to temporarily add to its cadre one or more post(s) for a period not exceeding one year on its own and with approval of <ORG> for a further period not exceeding two years. Thus, a conjoint reading of these sub-clauses and proviso of Rule 4 shows the fixation of the cadre strength and review thereof is the responsibility of <ORG> and for any urgent need of temporary nature, the <ORG> <ORG> is empowered to add to this cadre one or more posts on its own as provided in the proviso to Rule 4(2). Therefore, creation of a cadre and fixation of the cadre strength are statutorily controlled and the same will have to be reviewed periodically bearing in mind the necessity prevailing at the time of review. The components of the cadre are also fixed statutorily which normally consist of the six items enumerated in the Schedule to the Cadre Strength Regulations. The said Regulation also provides for fixation of number of posts under those 6 items. Under Rule 8(1) of the Recruitment Rules, provision is made for recruitment to the <ORG> by <ORG> by promotion of substantive members of the <ORG> Civil Service. The number of posts so permitted to be filled from the <ORG> service is regulated under Rule 9 of the said Rules which has fixed a quota of not exceeding 33 1/3% of the number of posts as are shown against Items 1 and 2 of the cadre in relation to the <ORG> concerned as fixed under the Cadre Regualtions. (After the amendment of 1997 the posts enumerated under Items 5 and part of Item 6 are also to be counted for the purpose of fixing the quota of 33 1/3%). In the background of the above statutory provisions, we will now consider the first claim of the petitioners for encadrement of ex-cadre/temporary posts. This argument proceeds on the basis that as per the Cadre Rules no temporary or ex cadre posts are permitted to be created by the <ORG> <ORG>s for a period exceeding 3 years (See Rule 4(2) of the Cadre Rules). The petitioners contend that the posts identified by them in their petitions being permanent in nature and some of them having been created under <ORG> enactments requiring their manning by <ORG> officers have to be encadred. They further contend that if they are so encadred they are entitled to be promoted to the extent of 33 1/3% of the so enhanced posts <ORG>, per contra, contends that during the triennial review (as it used to be), they have taken into consideration the necessity to encadre such ex cadre and temporary posts in consultation with the <ORG> <ORG>s and after finding out the need to encadre such posts and wherever it was found necessary, such encadrement was done. They also contend that by virtue of the amendments of 1997, the posts earmarked for <ORG> deputation reserve and training reserve have already been included in the cadre strength of the respective <ORG>s and if there is any further need to encadre any more post, the same will be done during the course of next periodic review of the cadre strength of the <ORG>s. A perusal of the petition allegations does show that a number of posts outside the <ORG> cadre in the <ORG>s concerned are in existence which are being manned by <ORG> Officers. Continuous existence of these posts over the decades shows that these posts are of permanent in nature, but the pertinent question for consideration is whether merely because the <ORG> <ORG> has created some posts and continued them over the years by posting regular <ORG> officers, can a court issue a mandamus to <ORG> to encadre these posts ? If one looks into the object of creating an all India service, it is clear that this service was created to select exceptionally bright and intelligent men/women through all India examinations and train them to handle the affairs of the <ORG>s by manning important posts in the administration of the <ORG>. These persons are not to be posted to any and every posts in the <ORG>. They are to man only such posts which have been identified to be so important as to require the services of these persons. With this view in mind, <ORG> was entrusted with the responsibility of identifying such posts and to encadre them in the <ORG> cadre. A perusal of the Cadre Rules and Regulations shows that <ORG> has identified posts like that of the Collectors, Commissioners, Members of <ORG>, Secretaries and Deputy Secretaries in the administrative departments and Heads of important Departments. It is the attitude of the <ORG> <ORG>s of creating ex-cadre/temporary posts without consulting <ORG> and contrary to the Cadre Rules which has created the controversy in hand and has given rise to heart-burn and disappointment to the <ORG> civil servants. This however does not, in our opinion, confer any right on the petitioners to seek a mandamus for encadring those ex- cadre/temporary posts, for any such mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength. The basis of the petitioners right to be selected for <ORG> service is traceable in case of <ORG> Civil Service officers to Rule 8 of the Recruitment Rules which says that <ORG> may recruit to the <ORG> persons by promotion from amongst the members of the <ORG> civil service. This Rule itself puts a ceiling on the number of posts that could be filled in the <ORG> from such promotions which is limited to not more than 33 1/3% of the posts enumerated therein. The prayer of the petitioners for encadrement of the ex-cadre/temporary posts in reality amounts to asking <ORG> to create more posts. The question then arises whether there is any such right in the petitioners to seek such creation of additional posts. It is a well- settled principle in service jurisprudence that even when there is a vacancy, the <ORG> is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vests with the employer who for good reasons; be it administrative, economical or policy, decide not to fill up such post(s). <CITATION> . [].This principle applies with all the more force in regard to the creation of new vacancies like by encadrement of new posts; more so when such encadrement or creation of new posts is statutorily controlled. We have noticed earlier that the Cadre Regulations and the Recruitment Rules require <ORG> to follow a particular procedure and make necessary consultations before fixing or re-fixing the cadre strength. In such a situation, issuance of a mandamus to increase the cadre strength or to encadre a particular post merely on the basis of long existence of these posts would be inappropriate. The petitioners in support of their contention have placed reliance upon a judgment of this <ORG> in <CITATION> . [1991 Supp (2) SCC 199]. In para 5 of the said judgment this <ORG> held thus : As to the merits of the matter, it is necessary to state that every civil servant has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Articles 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. In our opinion, that decision does not help the contention of the petitioners to seek a mandamus to encadre the ex- cadre/temporary posts as contended in their petition. The above judgment only lays down that a civil servant has a right under Articles 14 and 16(1) of the Constitution to be considered for promotion and such consideration cannot be postponed on unreasonable grounds. The petitioners next relied on another judgment of this <ORG> in <CITATION> .[] wherein in para 21 of the judgment, this <ORG> laid down that whenever a long term vacancy arises in a post, whatever may be the reason by which the vacancy is caused, it would have to be filled up by promotion by applying the quota rule. <ORG> further said : But where a vacancy arises on account of the incumbent going on deputation for a reasonably long period and there is no reasonable likelihood of the person promoted to fill such vacancy having to revert, the vacancy would be subject to the quota rule, . From the above observations of this <ORG>, the petitioners contend that since the vacancies pointed out by them in the petition are of permanent nature, the same will have to be encadred so as to give them an enhanced quota of promotion. We do not find any such support to the case of the petitioners from the aforesaid case. It is to be noted that the facts of the <NAME> case (supra) are entirely different from that of the petitioners. That was a case where the promotees who were occupying a direct recrtuiment post for a considerably long period when sought to be reverted by the application of quota rule, this <ORG> found such reversions to be to be inequitable. Such is not the case in the present petitions. Here the petitioners are not yet promoted much less there is any threat of reversion. The claim of the petitioners herein is based on an argument that on the existing facts the cadre strength of the <ORG> <ORG> cadre requires to be enhanced which is an argument de hors the quota rule. Therefore, we are of the opinion that this judgment does not help the petitioners to seek a mandamus to encadre the ex-cadre and temporary posts existing in their respective <ORG>s. So also the next judgment relied upon by the petitioners that is the case of <CITATION> . [] does not help the petitioners. However, reliance is placed on paras 9 and 34 of this judgment wherein this <ORG> while considering the inter se seniority dispute between the direct recruits and promotees held at para 34 thus : In such a situation 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 the substantive vacancies to which they were appointed in a temporary capacity. We do not think this case of <ORG> (supra) also assists the petitioners. However, we must observe on facts that the above-cited judgments of <ORG>s case (supra) give an indication that if any temporary posts are in existence for a long time then such posts may have to be treated as permanent posts but then these observations will have to be taken into consideration in the background of the statutory rules applicable to the present case. We have already noticed in this Case that the Statute applicable mandates <ORG> to fix the cadre strength in consultation with the <ORG> <ORG>s concerned, duly bearing in mind the objects of the Act and the Rules and Regulations. <ORG> in its counter has stated that it has conducted this exercise during the periodic review and wherever necessary, temporary and ex-cadre posts created by the <ORG> <ORG>s have been encadred, however few they may be. They have also specifically contended that each and every ex-cadre and temporary post created by the <ORG> <ORG> is not necessarily required to be encadred in the <ORG>. On behalf of the <ORG> of India, reliance was placed on the various Rules and Regulations to which reference has already been made by us. Learned counsel for the <ORG> of India relied on the following judgment of this <ORG> in the case of <NAME> case (supra) and <CITATION> [] to support its contention that the petitioners do not have a right to seek encadrement of the posts. We respectfully agree with the ratio laid down in the above cases. However, we think it appropriate to notice a passage from the judgment of this <ORG> in <NAME> case (supra) at para 7 which is as follows : However, it does not mean that the <ORG> has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the <ORG> is bound to respect the comparative merit of the candidates, as reflected at the recruitment test and no discrimination can be permitted.

The petitioners next contend that though there is a statutory obligation on the part of <ORG> to make a periodical review which it has failed to do so. By this failure the promotees promotion got inordinately delayed and they have lost their seniority in the promoted cadre, therefore, they are entitled to their seniority being fixed with retrospective effect. For this purpose, they rely on the judgments of <NAME> case (supra) and <CITATION> . [1993 Supp. (3) SCC 575]. We have already referred to the earlier two cases. In the last of the said cases referred to above, this Court had held : Preparation of the select-list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the <ORG> Government concerned and this Court takes serious note of wanton infraction. Based on the above observations of this Court, the petitioners contend that since the periodic review and preparation of select-list in this case has not been done in time in accordance with the <ORG>, the petitioners are entitled for retrospective seniority once that error is rectified. Here we would like to note that the decision of this Court in <NAME> case (supra) has been explained in the case of <NAME> v. <ORG> [1981 Scale SP 11]. From the judgment of <NAME> (supra), it is clear that mere delay in preparing the select list as also the cadre review is not fatal if the concerned respondent had given sufficient reasons for the same. In the instant case, we find from the counter affidavit of the <ORG> that they have given sufficient explanation for the delay in preparing the select list as also cadre review. Therefore, petitioners cannot claim any relief based solely on the ground of delay in cadre review or preparation of select list. The petitioners further contend that similar relief was granted in the case of applicants who filed original applications before the Jabalpur and Calcutta Benches of <ORG>, and there is no reason why the petitioners should be denied such benefits. The <ORG> has explained in the counter affidavit that those are isolated cases where promotions were given on the basis of the directions issued in the original applications as well as contempt petitions, and the same should not be treated as a binding precedent in every other case. We notice that as per the statutory provisions, the encadring of posts can be done only on certain fact-situations existing and further it will have to be done on a review to be conducted by <ORG> in consultation with the <ORG> Governments and on being satisfied that an enhancement in the cadre strength or encadring of certain posts is necessary in the administrative interest of the <ORG>s concerned. Until such encadrement takes place, nobody including the petitioners could stake a claim to consider their case for promotion to those ex-cadre posts. Therefore, such right to be considered for promotion, in our considered view, would arise only from the date of encadrement which having been done with effect from 1998 only, we do not think that as a matter of right the petitioners are entitled for retrospective seniority. In light of the above, we are of the opinion that the petitioners are not entitled to the twin reliefs sought for by them i.e. for a writ of mandamus to encadring the ex-cadre/temporary posts, so also for a writ of mandamus for the retrospective seniority in regard to the posts already included in the <ORG> <ORG> cadre strength by virtue of 1997 amendments. This, however, does not mean that there is no obligation on the part of <ORG> to consider the requirement of encadring the ex-cadre/temporary posts which are existing in those <ORG>s in regard to which the complaint is made. It is to be noticed that a large number of posts exclusion of which would make sufficient impact on the quota fixed under Rule 9 of the Recruitment <ORG> are in existence for periods extending even over two decades. We are also told that many of these posts are statutorily required to be filled up by the members of the <ORG>, but for reasons not known, these posts are not being made permanent. It is possible that these posts which, on the face of it, are in contravention of the cadre rules, are created by the concerned <ORG>s for reasons other than the administrative exigencies and it is also possible that <ORG> which has the primary responsibility of making the cadre reviews, has not applied its mind to the real necessity of encadring these posts. Though prima facie we have accepted the explanation given by the <ORG> still we find such posts are being continued by the <ORG>s concerned even till date. We have not found any reason either in the pleadings or in the arguments addressed on behalf of the <ORG> why it has not taken any steps to direct the <ORG> Governments concerned to abolish these posts if not required to be encadred. Therefore, we find it necessary to direct the <ORG> to consider in consultation with the <ORG> Government concerned, as required in the Cadre <ORG>, review the necessity of either to encadring these ex-cadre/temporary posts or not and take such other necessary steps. In this process <ORG> shall bear in mind the existence of these posts for the last so many years and if it is so satisfied and finds it necessary in the interest of justice to encadre these posts, it may do so with retrospective date so that officers promoted consequent to such encadrement would have the benefit of the seniority from such date, bearing, of course, in mind the possible conflict that may arise in fixation of inter se seniority and take appropriate decisions in this regard so as to avoid any further disharmony in the service. This leaves us now to consider the challenge made to the constitutional amendments effected in Regulation 5(1) of the Appointment by Promotion Regulations. The petitioners in this regard contend that under the old provision, <ORG> was required to calculate the anticipated substantive vacancies for preparation of select list which is now being changed to vacancies not exceeding the substantive vacancies as on the first day of January of the year in which the meeting is held. They contend that by this change in procedure large number of vacancies which should have been available for selection of promotees will be left out. They state that there is always considerable delay in completing the process of promotion by selection and this delay will be further extended by virtue of the amendments and consequently the promotion of the petitioners will get delayed and some of them may even loose the chance of getting selected to the <ORG>. They say that the unamended provisions were in existence for decades and there was no need for effecting this amendment. In reply thereto, the respondents contend that these changes have been brought about to avoid the delay in making the selections. They say by the existing <ORG>, it was extremely difficult to ascertain with certainty/finality the number of anticipated vacancies since the <ORG> Governments had the power to give extension of service up to 6 months beyond the date of retirement to a number of <ORG> officers. It is also stated that many a time such anticipated vacancies did not fructify and a <ORG> civil service officer included in the select list could not be sure of his appointment and this ultimately led to a plethora of litigation. It is with a view to avoid such difficulties that preparation of select list is confined to the vacancies available as on the first day of January of the year concerned. We have carefully gone through the pleadings of the petitioners and the respondents in this regard and we do not find any arbitrariness in this amendment. We think this is a matter of policy which will be uniformly applicable after the amendments. Further, vacancies which are not filled up in one year will automatically get carried forward to the next year if they become actual vacancies by them. Therefore, the challenge of the petitioners that this amendment is arbitrary and violative of Article 14 of the Constitution, cannot be accepted. In regard to the next contention that by the amendment the respondents are given a unilateral and arbitrary power to hold <ORG> proceedings or not, is also denied by the respondents. They state that under the amended <ORG> there is no unfettered or uncanalised power and discretion given regarding the authority to hold <ORG> meetings. On the contrary, they plead that there is a clear mandate for holding the meeting of <ORG> every year but in view of the exceptional exigencies given in the Rule itself, the <ORG> could not be constituted and that too only on the basis of a conscious decision taken by the respondents. They further contend that the <ORG> have been framed with inbuilt safeguards to keep at bay the eventuality of non-convening <ORG> meeting by default on the part of the <ORG> Government etc. They also contend that under the amended <ORG> in exceptional situations alone and for reasons to be recorded in writing, a meeting of <ORG> could be deferred.

In view of the above statement of <ORG> found both in the explanatory note to the amendments and the counter affidavit filed in the concerned writ petitions, we are of the opinion that this challenge of the petitioners should also fail. We, however, make it clear while disposing of these petitions that it is open to the petitioners to file a detailed representation to <ORG>, giving all the particulars of the post which they consider are fit to be encadred and special reasons why they should be encadred with a retrospective date and on such representation being made, <ORG> will consider these representations in consultation with the State Governments concerned, and take appropriate decisions in this regard, preferably within six months from the receipt of those representations. The petitions and appeal are disposed of accordingly. No costs.


JUDGMENT

1. We must follow the decision in <NAME> v. Ganga I.L.R. 7 Bom. 34 and Vishnu Shambhog v. Manjamma I.L.R. 9 Bom. 108 and hold that unchastity of a widow deprives her wholly of her right to maintenance. No text has been cited in favour of the theory that a bare maintenance can be allowed. The fact that there has been an agreement in our opinion makes no difference. It merely fixes the amount and the security. We must dismiss the appeal with costs.