<NAME>, J.

1. This is an appeal by special leave from a judgment dated the 2nd June, 1919 of a <ORG> appointed under the Martial Law Ordinances of 1919 and sitting at Lahore. By that judgment twenty of the twenty-one appellants were convicted of offences under Section 121 of the Indian Penal Code, that is to say, of waging or attempting to wage war against the King or abetting the waging of such war and were sentenced to death and forfeiture of property; but it is understood that as to some of them the death sentence has since been commuted. The remaining appellant, <NAME>, son of <NAME>, was convicted of an offence under Section 412 of the same Code, that is to say, of receiving stolen property from dacoits, and was sentenced to rigorous imprisonment for seven years. The question raised on the appeal is as to the competency of the <ORG> to try the appellants for those offences.

2. The facts may be stated as follows: At the end of March and during the first days of April, 1919, there was serious unrest in certain parts of the province of the Punjab, and this unrest culminated on the 10th April in the outbreak of open rebellion at Amritsar in that province and elsewhere, and the offences of which the appellants have been found guilty were committed at Amritsar on that date. The occurrences of the 10th April are stated in the judgment of the Commissioners as follows:-

On April 10th, 1919, about noon, after the arrest of <NAME> and <NAME>, disorder broke out in Amritsar, in the course of which an attempt was made to invade the Civil Station by a mob which had to be turned back by fire from troops and police. Shortly after this mob attacked <ORG> situated in the City, brutally murdered Mr. <NAME>, manager, and Mr. <NAME>, assistant manager, sacked and burnt the bank, and looted the godown, which contained cloth and other goods to the value of several lakhs of rupees. The <ORG> Alliance Banks were subsequently sacked. A Mission Hall, Church and <ORG> Depot were also attacked and burnt by the mob. There was no reason why those institutions should have been singled out by the mob or their leaders except that, us the evidence shows, they were out to destroy the visible manifestations of British connection with the country.

3. It was proved that the appellants, with the possible exception of <NAME>, wove members of the mob and took an active part in the attack on <ORG>, and there was evidence that some of them took part in the actual murder of the manager and assistant manager. <NAME> and <NAME> appear to have been the ringleaders. <NAME> was found in possession of property looted from the <ORG>. <NAME> was arrested on the 12th April and the other appellants on subsequent dates. None of them were taken in arms or in the act of committing the offences with which they were charged.

4. On the the 13th April the Governor-General in Council, acting under the Bengal State Offences Regulation No. X of 1804 (which was extended to the Punjab by the Punjab Laws Act , 1872) made an order whereby, after reciting that he was satisfied that a state of open rebellion against the authority of the Government existed in the districts of Lahore and Amritsar, he suspended the functions of the ordinary <ORG> within those districts as regards the trial of persons of the classes referred to in the Regulation taken in arms in open hostility to <ORG> or in the act of opposing by force of arms the authority of the same, or in the actual commission of any overt act of rebellion against the State, or in the act of openly aiding and abetting the enemies of <ORG> within those districts, and established Martial Law within those districts; and by the same order lie directed the immediate trial by Courts Martial of all such persons. Similar orders were subsequently made in respect of the districts of Gujrauwala and Gujrat.

5. On the 14th April the Governor-General, acting under Section 72 of the Government of India Act, 1915, made and promulgated the Martial Law Ordinance No. I of 1910, whereby it was provided that every trial in the districts of Lahore and Amritsar held under the Bengal State Offences Regulation, 18C4, should, instead of being held by a Court-Martial, be held by a <ORG> consisting of three persons appointed in this behalf by <ORG>. It was provided that at least two members of every such <ORG> should be persons who had served as Sessions Judges or had such other legal qualification as therein mentioned. It was also provided that a <ORG> should have the powers of a general Court-Martial under the Indian Army Act , 1911, and should follow so far as might be the procedure prescribed by that Act, but power was reserved to <ORG> to direct that the <ORG> should follow the procedure of a summary general Court-Martial. The finding and sentence of a <ORG> not to be subject to confirmation by the military authorities. Section 7 of the Ordinance was as follows :-

7. Save as provided by Section 6 , the provisions of this Ordinance shall apply to all persons referred to in the said Regulation who are charged with any of the offences therein described, committed on or after the 13th April, 1919.

6. By subsequent Ordinances the provisions of the above-mentioned Ordinance No. 1 of 1919 were extended to Gujrauwala and Gujrat, and power was given to impose a minor punishment in lieu of the death sentence.

7. In pursuance of the above-mentioned Ordinance No 1 of 1919, <ORG> duly appointed a <ORG>, consisting of Lieut-colonel <NAME>, C. I. E., District and Sessions Judge; <NAME>, Esq., I. C. S., District and Sessions Judge; and <NAME>.

8. From the above statement it is clear that the appellants could not, if no further step had been taken, have been brought before <ORG> for trial. They had not been taken in the act of committing any of the offences referred to in Regulation X of 1804, and the offences with which they were charged were committed before the 13th April, 1919, the date mentioned in Section 7 of the Ordinance. But on the 21st April, 1919, the Governor-General, acting under Section 72 of the Government of India Act, 1915, made a further Ordinance (referred to as Ordinance No. IV of 1919) in the following terms :

<ORG>.

"Legislative DEPARTMENT "NOTIFICATION.

"Smile the 21st April 1919.

"An Ordinance further to extend the Application of the Martial Law Ordinance, 1919.

"Whereas an emergency has arisen which renders it necessary to provide that commissions appointed under the Martial Law Ordinance, 1919, shall have power to try person and offences other than those specified in the said Ordinance:

"Now, therefore, in exercise of the power conferred by Section 72 of the Government of India Act, 1915, the Governor-General is pleased to make and promulgate the following Ordinance:-

"Ordinance No. IV of 1919.

"Short Title.

"1. This Ordinance may be called the Martial Law (Further Extension Ordinance, 1919.

"commissions under Martial Lair Ordinance, 1919, to try such cases as <ORG> may direct.

"2. Notwithstanding anything contained in the Martial Law Ordinance,' 1919, <ORG> may, by general or special order, direct that any commission appointed under the said Ordinance shall try any person charged with any offence committed on or after the 30th March, 1919, and thereupon the provisions of the said Ordinance shall apply to such trials accordingly, and a commission may pass in respect of any such offence any sentence authorised by law.

"<NAME>, " Viceroy and Governor-General, "<NAME>, "Off. Secretary to <ORG>."

9. On the 22nd April the Governor-General in Council made a further order under Regulation X of 1804, whereby after reciting that he was satisfied that a state of open rebellion existed in the districts of Lahore, Amritsar, Gujrauwala and Gujrat, he suspended the functions of the ordinary <ORG> in those districts in so far as trials held before Commissions in accordance with the provisions of Martial Law Ordinance No. IV of 1919 were concerned.

10. <ORG> was, instructed by <ORG> that the Commissions appointed' under Ordinance No. IV were to be used only for the trial of offence arising out of the recent disturbances.

11. The appellants having been charged with offences under various sections of the Penal Code , including as. 121, 302 and 412, as having been committed on the 10th April, <ORG>, acting under Ordinance No. IV of 1919, directed that they should be tried by <ORG> appointed under Ordinance No. I sitting at Lahore with the powers of a summary general Court-Martial, and convened the Commissioners for that purpose. The trial accordingly took place on the 29th May and the following days, and judgment was pronounced on the 2nd June. The Commissioners, while convicting the appellants (other than <NAME>) of an offence under a 121, added that certain of the accused could also be convicted under Section 302 , i.e., for murder, but that they saw no necessity to discriminate, especially as in circumstances like those before them there was only one possible penalty for the offence or offences committed. Thereupon special leave was obtained from the <ORG> to present this appeal.

12. Before the hearing of the appeal it was suggested by counsel for the appellants that Ordinance No. IV of 1919 was capable of being construed as intended only to extend the operation of Ordinance No. I to offences committed before the 13th April, but not earlier than the 30th March, and accordingly that this Ordinance (like Ordinance No. I) applied only to persons taken in the act of committing one of the offences specified in Regulation X of 1804. In their Lordships' opinion the Ordinance cannot be so construed. It is introduced by a recital that an emergency has arisen which renders it necessary to provide that <ORG> appointed under the earlier Ordinance shall have power to try persons and offences other than those specified in that Ordinance; and it empowers a <ORG> to try any person charged with any offence committed after the specified date, and to pass in respect of such offence any sentence authorised by law. It would be difficult to find words indicating more clearly that the operation of the Ordinance is not to be confined to the persons and offences described in the earlier Ordinance.

13. It was then argued that, if Ordinance No. IV applied (subject to the direction of <ORG>) to any person and to any offence known to the law, it was invalid by reason of the provisions of Section 65 , Sub-sections (2) and (3) of the Government of India Act, 1915; and this contention, upon which the argument for the appellants mainly rested must now be examined

14. Section 65 , Sub-section (2), when read with Section 72 , prevents the Governor-General from making-

any law affecting the authority of <ORG>, or any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any person to the <ORG> of the United Kingdom, or affecting the sovereignty or dominion of the <ORG> over any part of British India.

15. It was contended that the Ordinance under consideration, by Cepriving British subjects in India of the right to be tried in the ordinary course by the established Courts of Law, affected the 1 unwritten laws or constitution whereon the allegiance of His Majesty's subjects in India depends, and was accordingly invalidated by the sub-section last referred to; and reference was made to <NAME>'s case (1608) 7 Rep. 5 and to the maxim " protectio trahit subjectionemet subjectio protectionem," It is not easy to understand how the substitution for the ordinary Indian Courts- which are themselves of statutory origin-of another tribunal of a judicial character, can be said to affect in any way the unwritten laws or constitution of the country; but, apart from this observation, the argument appears to rest upon a misconception as to the meaning and effect of the sub-section. The subsection does not prevent the Indian (<ORG> from passing a law which may modify or affect a rule of the constitution or of the common law upon the -observance of which some person may conceive or allege that his allegiance depends. It refers only to laws which directly affect the allegiance of the subject to the <ORG>, as by a transfer or qualification of the allegiance or a modification of the obligations thereby imposed. In the case of In the matter of <NAME> (1870) 6 Beng. L. R. 469, 477, the meaning of a similar provision in the Act of 1833 (3 & 4 Will. IV, c. 85, Section 43 ) was discussed at length, and Mr, Justice <NAME> stated his opinion as follows :-

But I think It right to say that in my judgment the words 'whereon may depend, & c.,' do not refer to any assumed conditions precedent to be performed by or on behalf of the <ORG> as necessary to found the allegiance of the subject, but to laws or principles which prescribe the nature of the allegiance, viz., of the relations between the <ORG> on the one hand and the inhabitants of particular provinces, or particular classes of the community, on the other; 'and obviously such laws and principles as these are not touched by the local Acts which are impeached before us.

16. Since that judgment was pronounced the provision so interpreted has been re-enacted substantially in the same terms in the Acts of 1861 and 1915; and many statutes and ordinances have been passed in India which were similar in effect to the Regulation then under consideration. If their Lordships were to adopt the argument now pressed upon them, they would be casting doubt upon a long course of legislation and judicial decision which must be presumed to have been known to and in the view of <ORG> when the Act of 1915 was passed. See <NAME> v. <NAME> (1878) 3 App. Cas. 389, 907. Reference may also be made to the recent same of <CITATION> (1919) L. R. 48 I. A. 176, 191 where a like argument was rejected by the <ORG>. This argument, therefore, cannot prevail.

17. Turning now to Section 65 , Sub-section (3), of the Act of 1915, that sub-section is as follows:-

The Governor-General in <ORG> has not power, without the previous approval of the, Secretary of <ORG> in <ORG>, to make any law empowering any court, other than a high court, to sentence to the punishment of death any of His majesty's subjects born in Europe, or the children of such subjects, or abolishing <ORG>.

18. Upon this enactment it was argued that Ordinance No. IV, if it subjects any person whatever to be tried for his life by a <ORG> in lieu of the ordinary <ORG> or <ORG>, is an infringement of the provision which prevents the Governor-General in <ORG> from empowering any Court other than <ORG> to' sentence to death any of His Majesty's subjects born in Europe, and accordingly that the Ordinance is void not only as to persons falling within Sub-section (3) but altogether. The answer to this contention is to be found in Section 2 of the Government of India (Amendment) Act, 1016, which provides that there shall be inserted at the end of Section 84 of the Act of 1915 the following words:-

A law made by any authority in British India and repugnant to any provision of this or any other Act of <ORG> shall, to the extent of that repugnancy, but not otherwise, be void.

19. It appears to their Lordships that if the Ordinance in question in this cast contravenes Section 65(3) of the Act of 1915, it may properly be described as "repugnant" to that section so far as British-born subjects are concerned, and if so it is void to the extent of that repugnancy, but not otherwise. This argument therefore, also Tails.

20. For the above reasons their Lordships will humbly advise His Majesty that this appeal fails and should be dismissed. There will be no order as to costs.


JUDGMENT Divatia, J.

1. This case raises an interesting point of Hindu law which does not seem to be covered by authority. The appellant, who was the original plaintiff, sued to recover certain property as a distant agnate of one <NAME> who died in 1929 without leaving a widow or any issue. His father <NAME> had a brother named <NAME> who died several years back leaving a widow <NAME> who is defendant No. 1 in this case. The property was taken possession of by <NAME> as she was the widow of the paternal uncle, i.e. a gotraja sapinda, of <NAME>, and as such was entitled in our Presidency to inherit it as an heir in preference to a distant agnate under the ruling in <CITATION> (1876) I.L.R. 2 Bom. 388. The plaintiff contended that <NAME> was unchaste at the time when <NAME> died, and was, therefore, incapable of inheriting the suit property. The only question at issue was whether <NAME> was debarred from inheriting the property of <NAME> because of her unchastity. It was conceded by her that she was leading an unchaste life at the time of <NAME>'s death when the succession opened.

2. Both the lower Courts held that under the Hindu law the bar of unchastity applied only to a widow inheriting her husband's property, that in the present case the widow <NAME> inherited not her husband's property but the property of her husband's nephew, and the bar therefore did not apply. The suit was, therefore, dismissed on that ground.

3. It is contended here that for the purpose of the bar all widows inheriting property stand on the same footing, and that therefore the bar applied also to the case of a widow who inherits property as the widow of a gotraja sapinda. Now, it is important to note that under the Hindu law as such a widow of a gotraja sapinda does not inherit any property in her own right. It is only by virtue of "positive acceptance and usage," as held in <NAME> (1880) L.R. 7 I.A. 212, that in our Presidency she has acquired the right to stand in the same place as her husband, if living, would have occupied. Subsequent cases have made it clear that the widow of a gotraja sapinda takes the property in her own right as an heir and not only as representing her husband. The latest decision on this point is in <CITATION> .

4. The suit property in the present case was of the absolute ownership of <ORG> after <NAME>'s death, presumably because <NAME> and <NAME> were joint. On <ORG>'s death, therefore, <NAME> would inherit it not as the property of her husband <NAME> but as the property of her husband's nephew <ORG>, and the question is whether the bar which applies to the case of a widow inheriting her husband's property could also be extended to a case where the widow inherits the property not belonging to her husband but belonging to her husband's nephew.

5. It has been contended by Mr. <NAME> on behalf of the plaintiff-appellant that the bar should be held as also applicable to the case of a widow inheriting property as the widow of a gotraja sapinda, because she inherits it from her husband's family and that too only in our <ORG> by reason of usage. It is, therefore, necessary to examine the genesis of this bar. So far as inheritance is concerned, the only text in the Mitakshara relating to this bar is mentioned in Chapter II, section II, placitum 2, which runs as follows:-

6. Thus <NAME> says, "Let the widow succeed to her husband's wealth, provided she be chaste; and, in default of her, let the daughter inherit, if unmarried."

7. This bar, therefore, according to the text, applies only to a widow succeeding to her husband's wealth, and the case-law has also limited it to such estate. It has been held for instance that neither a mother nor a daughter is debarred from inheriting property on the ground of unchastity because both of them inherit in their own right: see <CITATION> (1907) I.L.R. 31 Mad. 100, and Advyapa v. Rudrava (1879) I.L.R. 4 Bom. 104. No authority has been cited before me to show that the bar has been applied to any female except a widow inheriting her husband's property. But the matter does not rest here. In the recent Hindu Women's Rights to Property Act (XVIII of 1937), the bar of unchastity seems to have been removed even with regard to the widow inheriting her husband's property, because it says that its provisions shall apply notwithstanding any rule of Hindu law or custom to the contrary, and as observed in Mayne's Hindu Law, 10th edn., at p. 722, "as the Act confers upon the widow a right of succession notwithstanding any rule of Hindu law, an unchaste widow will not be disqualified from inheritance." The result is that the bar of unchastity has now been removed even in the case of a widow inheriting her husband's property, and it would indeed be incongruous to hold that it applies to the case of a widow inheriting the property of any person other than her husband when she can now inherit her husband's property in spite of her unchastity. The position, therefore, is that there is no authority for the proposition that any widow inheriting any kind of property must be chaste, that the bar was confined to only one particular case, namely, the widow inheriting her husband's property, and even that bar is now removed by legislation. If the Hindu community desires that the bar of unchastity should be applicable to all widows inheriting property, it might invoke the aid of Legislature, but on the law as it stands at present, it is clear that an unchaste widow of <NAME> is not incompetent to inherit property of her husband's kinsmen.

8. The decision of the lower appellate Court is, therefore, correct and the appeal is dismissed with costs.


PETITIONER: R. N. NANJUNDAPPA Vs. RESPONDENT: T. THIMMIAH & ANR. DATE OF JUDGMENT08/12/1971 BENCH: <NAME>, A.N. BENCH: <NAME>, A.N. PALEKAR, D.G. CITATION: 1972 AIR 1767 1972 SCR (2) 799 1972 SCC (1) 409 CITATOR INFO : R 1979 SC1676 (5) RF 1980 SC2086 (7) F 1984 SC 885 (27) ACT: Civil Service--state Rules providing for 'methods' of recruitment by selection, or competitive examination--Appointment of Class III Officer to Class I post, in the absence of 'rules' of recruitment--Validiry--If could be treated as appointment of 'local candidate'. Constitution of India, 1950, Arts. 14, 16, 162 and 309--Appointment if violative of Arts. 14 and 16--Scope of Arts. 162 and 309. HEADNOTE: In 1957, the respondent, who was working as an Assistant Geologist in Class III Service, was sent on deputation as Vice-Principal of <ORG>, in the <ORG> From 15th February, 1958, he was also doing the duties of the Principal. In September, 1958, the <ORG> <ORG> appointed him as officiating Principal but on 3rd April 1959 modified the order and appointed him as temporary Officiating Principal with effect from the 15th February, 1958. On 9th January, 1967, the Mysore Education Department Service Rules were published by which appointment of the respondent, with effect from 15th February, 1958 was regu- larised. The appellant, who was the Principal of a <ORG> Polytechnic, and was in Class 11 Service, contended that the respondent's appointment was in breach of the Mysore <ORG> Civil Services (General Recruitment) Rules, 1957, and the Mysore Education Department Services (Technical Education Department Recruitment) Rules, 1964, and offended Arts, 14 and 16 of the Constitution. <ORG> held that the respondent was a local candidate within the meaning of the Mysore <ORG> Seniority Rules, 1957, and therefore his appointment could be regularised with effect from any date. Allowing the appeal to this Court, HELD : (1) Rule 3 of the Mysore <ORG> Civil Services (General Recruitment) Rules, 1957, which were in force from February 1, 1958, speaks of the method of recruitment to <ORG> by competitive examination, or by selection, or by promotion. The respondent's appointment was not by competitive examination nor was it a case of direct recruitment either in the year 1958 or at any time. If it were a case of direct recruitment there would have been advertisements for the post, and candidate would have been selected on merit. [808 E-H] (2)The appointment of the respondent could not be said to be by promotion because, under r. 4 of the 1957 Rules, it should be on the basis of merit and suitability or on the basis of seniority-cum-merit from among persons eligible for promotion. Moreover, the <ORG> contended that it was not a case of promotion, but was a case of selection on the basis that the respondent was the only person fit for the post. [806 E-G; 811 C-D] (3)It is true that the rules of recruitment were not made until 1964. Even sothe three'-methods of recruitment are specific. If it is a case of electionit should have been after consulting <ORG> orthe <ORG>, or' the ;appointing authority, and should have been made after inviting applications. 'To say that the 800 appellant was the only eligible candidate, is to deny the rights of others to apply. [805 F; 808 E-H] (4)Rule 16 of the 1957 rules provides for relaxation of rules relating to appointment and qualifications, and one of the instances of relaxation is when the <ORG>, for reasons to be recorded in writing, appoints an officer holding a post of equivalent grade by transfer from any other service of the <ORG>. But, in the present case, the respondent did not belong to a grade which Could be said to be equivalent, within the meaning of r. 8(1) of the Rules, to that of the Principal of <ORG>. Therefore, it could not be a case of transfer. In fact, the rule was neither available, nor acted on the present case. [806 G-H; 807 A-C] (5)The <ORG> <ORG> has no power to make a rule for regular rising an appointment under Art. 309 of the Constitution, since the Article speaks of rules for appointment and general conditions of service, Regu- larisation of appointment by stating that "notwithstanding any rules the appointment is regularised" strikes at the root of existing rules prescribing promotion, selection or competitive examination as methods of recruitment. Therefore the regularisation was in violation of the Article. [808 <CITATION> ,  5 S.C.R. 190 and <CITATION> ,  1 S.C.R. 994, referred to. (6)(a) The contention that a rule under Art. 309 for regularisation would itself be a form of recruitment read with reference to the power under Art. 162 is unsound, because regularisation is not a form of appointment. [809 G] (b)In the present case, the regularisation with effect from February 15, 1958, notwithstanding any rules cannot be said to be in exercise of the power under Art. 162. Articles 162 and 309 operate in different areas, and when the <ORG> acted under Art. 309 they cannot be said to have acted also Linder Art. 162 [809 G-H; 810 A-B] (c)If the appointment itself was in infraction of the Rules or in violation of the provisions of the Constitution, the illegality cannot be regularised.. Ratification or regularisation is possible of an act which is within the power and province of the authority and there has been some noncompliance with procedure which does not go to the root of the appointment. Article 162 does not confer either the power of regularisation nor the power to make rules for the recruitment or conditions of service. There may be a rule for person or one post, but rules are meant for recruitment and conditions of service, and not for the purpose of validating illegal appointments or promotions or transfer. [810 B-D; 814 <CITATION> .  3 S.C.R. 682, followed. (7)(a) <ORG> erred in holding that the respondent was a local candidate within the meaning of the 1957 rules. A local candidate is a temporary government servant not appointed regularly as per rules of recruitment to that service. But two government servants cannot be appointed substantively to the same permanent post at the same time except as a temporary measure. The respondent, in the present case, was a permanent government servant and was on deputation having a lien on his post as Assistant Lecturer Geology when he was appointed to officiate as Principal. Therefore, it cannot be said that he was substantively appointed to the post of Principal. If the respondent was appointed as 801 a temporary measure to the post of Principal, it would not therefore be as a local candidate, but as a <ORG> servant appointed to another post as a temporary measure. [810 D-E; 813 A-C] (i)Moreover the orders of appointment as officiating Principal in September 1958 and the modified order in April 1959, state that proposals to fill the post by advertisement through the <ORG> Public Service Commission should be forwarded. They show that the respondent was not treated as a local candidate, but was appointed as a temporary measure till proper appointment is made through the <ORG> Public Service Commission from persons possessing the necessary qualifications. [811 G-H] (8)When the <ORG> Public Service Commission agreed for regularisament ofthe respondent, but only to regularise the appointment to the post of Principal. [813 F-G] (9)<ORG> was wrong in holding that the appointment of the respondent did not offend Arts. 14 and 16. Under the 1964-rules the recruitment for the post was by promotion from the cadre of Heads of sections or by direct 'recruitment and Principals of Polytechnics and Heads of sections belonged to a common cadre and should have been considered for the appointment. As the appellant and others were not given equal opportunity and treatment in regard to the appointment, there was discrimination. [814 F-H; 815 A- F] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2357 of 1968.

Appeal by special leave from the judgment and order dated September 12, 1968 of <ORG> in Writ Petition No. 473 of 1967.

<NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, <NAME>, <NAME> and <NAME>, for respondent No. 1. <NAME> and <NAME>, for respondent No. 2. The Judgment of the Court was delivered by <NAME>, J. This is an appeal by special leave from the judgement dated 12 September, 1968 of <ORG> dismissing by a common judgment a group of petitions. The appellant challenged the Mysore Education Department Service Rules dated 9 February 1967 published in the notification No. ED. 91DGO 58, on 9 February, 1967. The Rules impeached by the appellant are as follows "In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, and all other powers enabling him in this behalf, the Governor of Mysore hereby makes the following rules, namely :-

1.Title : These rules may be called the Mysore Education Department Services (Technical Education Department (Special Recruitment) Rules, 1967.

2.Provisions relating to regularisation of appointment of Principal, <ORG>, Ooragaum, Kolar Gold Fields.

Notwithstanding any rule made under the proviso to article 309 of the Constitution of India, or any other rules or Order in force at any time, Dr. <NAME>, B.Sc. (Hons.) Ph.D. (Lond.) F.G.S. shall be deemed to have been regularly appointed as Principal, <ORG>, <ORG>, <ORG>, with effect from 15-2-1958.

By order and in the name of the Governor of Mysore Sd/- <NAME> Under Secretary to <ORG>". The appellant was posted as 'additional in-charge' of <ORG>, Bangalore. There were other petitions before <ORG> similarly challenging the aforesaid Service Rule. The petitioners in those cases were the Principal of <ORG>; Head of the Mechanical Engineering Section, <ORG>, Mysore; Principal of the <ORG>, <NAME>; and Principal of <ORG>, Devangere. The appellant joined as lecturer in Physics at <ORG> in 1941. In 1946 the appellant took a post graduate degree in Chemical Engineering at <ORG>. The appellant was then posted as Lecturer in Chemical Engineering, <ORG>, Bangalore. In 1949 the appellant was promoted and posted as Superintendent (Principal), Government <ORG>, Devangere in the grade of Rs. 200-20-300. In 1954 the appellant was posted as Principal, <ORG> College at <NAME> in the grade of Rs. 200-20-300. The appellant was confirmed in the year 1957 in the grade of Rs. 200-20-300 in Class II with effect from 12 December, 1949. On 1 January, 1957 the pay scale of the appellant was revised at Rs. 250-600.

The respondent <NAME> graduated and was appointed through <ORG> in the year 1951 as an Assistant Geologist in <ORG> in <ORG> in the grade of Rs. 125-10-175.

The respondent went to the United Kingdom and returned in 1957 with a Ph.D. in Geology. In the month of July, 1957 the establishment of <ORG> at Kolar Gold Fields was sanctioned in <ORG>. The respondent who was in 1957 a Lecturer in <ORG> was deputed for appointment is Vice Principal of <ORG> at Kolar Gold Fields. On 15 February, 1958 the respondent was asked to perform the duties of the Principal. On 22 July, 1958 <NAME> son who was the Principal of <ORG> at Kolar Gold Fields left. On 25 September, 1958 the respondent was appointed officiating Principal of <ORG> on a temporary basis with effect from 22 July, 1958. On 3 July, 1959 the respondent was appointed Principal with effect from 15 February, 1958. <ORG> in the year 1959 wrote to <ORG> that the respondent did not possess qualifications and proposed prescribed qualifications for the- Principal of <ORG>. Qualifications were proposed by the Director of Technical Education in the month of August, 1959. In the month of August, 1960 the respondent was promoted in his parent <ORG> as Geologist.

In the year 1962 the appellant made an application under Article 226 challenging the officiating appointment of the respondent. <ORG> on 17 November, 1963 dismissed the appellant's application as premature, because the Government was going to frame rules for recruitment for the <ORG>.

In the month of May, 1964 rules of recruitment were framed by the <ORG> for <ORG>. In the year 1967 Rules were made under Article 309 of the Constitution regularising the appointment of the respondent as Principal, <ORG> with effect from 15 February, 1958.

<ORG> was set up in the month of July, 1957. The respondent was sent in the month of August, 1957 on deputation for two years as Vice Principal of <ORG>. The respondent was then working as an Assistant Geologist. The then Principal of <ORG> was <NAME>. He was employed on a part time basis on an allowance of Rs. 200 p.m. On 22 July, 1958 when <NAME> left the respondent who was the Vice Principal had been doing the duties of the Principal since 15 February, 1958. <ORG> on 25 September, 1958 appointed the respondent <NAME> as officiating Principal with effect from 22 July, 1958 in the grade of Rs. 500-30-

800. On 3 April, 1958 <ORG> in modification of the notification of 25 September, 1958 appointed the respondent as temporary officiating Principal with effect from 15 February, 1958. The impugned rules regularising the Appointment of the respondent with effect from 15 February, 1958 came into existence on 9 February, 1967. The appellant contended that the respondent was governed by the Mysore Service Regulations, 1943, the Mysore <ORG> Civil Services (General Recruitment) Rules, 1957 as well as the Mysore Education Department Services (Technical Education Department) (Recruitment) Rules, 19 4. The appellant also contended that the respondent was in Class III service, and, therefore, the impeached regularisation of the respondent's appointment was in breach of the aforesaid Rules and Regulations and offended Articles 14 and 16 of the Constitution. The contention of the respondent before <ORG> was that the appointment to a civil post could be made in three ways : one by promotion; second by direct recruitment; and the third by regularisation of an appointment which had been initially made irregularly. It Was also contended in <ORG>, though there was no suggestion in the affidavit or in the return in answer to the petition, that the respondent was a local candidate in service, and, therefore, under rule 8 (27A) of the Mysore Civil Services Rules, 1957 the rules would not apply to the respondent and the regularisation ",as valid. An additional argument was advanced in this Court that under Article 162 of the Constitution regularisation would in itself be a mode of exercise of power of appointment of <ORG>. Regularisation was said to have the consequence of impressing upon the appointment the quality of permanence and the elimination of precariousness. According to the <ORG> such an appointment even if made in the shape of rules under Article 309 could not be attacked on the ground of being made for one person just as a piece of legislation could not be attacked on the ground of being made for a particular person or entity.

<ORG> held that the respondent was a local candi- date within the meaning of Rule 1-A of the Mysore Government Seniority Rules, 1957 and therefore the appointment of the respondent could be regularised with effect from any date. <ORG> expressed no opinion on the question of seniority among the several petitioners inter se. On that basis <ORG> held that there could be a temporary employment and recognition of a temporary servant as quasi permanent employee without violating Articles 14 and 16. <ORG> held that the appointment of a local candidate could not be said to be discriminatory or a denial of equal opportunity. <ORG> also held that when the respondent was appointed temporarily in 1958 there were no qualifications prescribed for the post and there were no cadre and recruitment rules.

On 17 August, 1957 when the respondent was sent on depu- tation as Vice Principal his post was counted as that of a lecturer. When <NAME> left <ORG> and when the respondent was asked to be in charge as Principal and thereafter when the respondent was in the month of September, 1958 appointed to officiate as Principal which was Class I service with effect from 15 February, 1958 the respondent had been on deputation from foreign service and in the affidavit it was stated that it was Class III service to which the respondent belonged and the appointment of the respondent to the post of Principal of <ORG> was challenged by the appellant to amount to promotion from Class III to Class I.

Under rule 57 of the Mysore Civil Service Regulations, 1943 an officer could be sent on deputation on such temporary duty for the performance of which there is no permanently or temporarily sanctioned appointment. Deputation however was not permissible under Rule 57 without the sanction of the <ORG>.

The question here is whether an officer like the respondent who was sent on deputation could be said not to be governed by any rule and be a local candidate as contended for by the <ORG>. At the relevant time in the month of February, 1958 the Mysore <ORG> Civil Service (General Recruitment) Rules, 1957 were in existence inasmuch as those rules came into force on 1 February, 1958. The Mysore <ORG> Civil Services Rules, 1957 defined 'direct recruitment', 'promotion' and 'selection'. Direct recruitment would be appointment otherwise than by promotion or transfer. Promotion would be appointment of a <ORG> servant from a post, grade of service or class of service, to a higher post or higher grade of service or higher class of service. Selection would be after consulting the <ORG> or <ORG> or <ORG>, or the appointing <ORG>. Rule 3 of the Mysore <ORG> Civil Services Rules, 1957 speaks of method of recruitment to the <ORG> Civil Service to be by competitive examination or by selection or by promotion. Judged by these rules the appointment in the present case could be said to be only by promotion. Indisputably there was neither any competitive examination not any selection nor it was a case of direct recruitment. Sub-clauses (a) and (b) of Rule 4(3) of the Mysore <ORG> Civil Services Rules, 1957 lay down the restrictions as to recruitment by promotion. The restrictions are two-fold in sub-clauses (a) and (b). First, if it :is to a selection post or to a post to be filled by promotion or by selection of a person on the basis of merit and suitability in all respects to discharge the duties of the post it is with due regard to seniority from among persons eligible for promotion. The second is recruitment by promotion to a post other than that referred to in sub- clause (1) by selection of a person on the basis of seniority-cum-merit, that is seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion. In 1958 the post of the Principal of <ORG> was a penurious post. The pay of the Principal was Rs. 500-800 at that time. The respondent was getting a salary of Rs. 165 plus Rs. 75, in the month of February 1958 and his grade of scale was from Rs. 125-175. The respondent had been substantively appointed to the post of a lecturer in Geology from which he was sent on deputation. The respondent under Rule 17 of the General Rules regarding lien on appointment and admissibility of allowances could not be appointed substantively to two or more permanent posts at the same time except as a temporary measure. Then again under Rule 20(1) of the General Rules regarding lien on appointment the <ORG> shall suspend the lien of a <ORG> servant on a permanent post which he holds substantively if he is appointed in a substantive capacity. In the month of February, 1958 the respondent was on deputation and having a lien on post as Assistant Lecturer of Geology when he was appointed to officiate as Principal, <ORG>, and, therefore, it could not be said that he was substantively appointed to the post of a Principal.

The appointment of the respondent as officiating Principal in the month of February, 1958 could be only by promotion. The two impediments to the case of recruitment by promotion have already been noticed in rule 4(3) sub-clauses (a) and

(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957. Under sub-clause (a) it is to be on the basis of merit and suitability with due regard to seniority from among persons eligible for promotion. Under sub-clause (b) it is to be on the basis of seniority-cum-merit from among persons eligible for promotion. It is not the case of the Government that it was a case of promotion because there is no material to show that merit and suitability in all respects with due regard to seniority from among persons eligible for promotion were considered.

The Mysore <ORG> Civil Services Rules, 1957 in Rule 16 speaks of relaxation of rules relating to appointment and qualifications and one of the instances of relaxation is that the Government may for reasons to be recorded in writing (a) (i) appoint to a post an officer of <ORG>, <ORG> or <ORG> or <ORG> of any other <ORG> and (ii) an officer holding a post of an equivalent grade, by transfer, from any other service of the <ORG>. Equivalent grade

-fined in the more Civil Services Rules 1957 which came into effect on 10 February, 1958. Rule 8(1) of the Mysore Civil Services Rules, 1958 speaks of class and grade. Appointments are said to be in the same 'Class' when they are in the same department, and bear the same designation, or have, been declared by <ORG> to be in the same, class. Appointments in the same class are sometimes divided into 'grades' according to pay. The post of <ORG> was said to be Class 1. It was said that in the month of February, 1958 there were no classes. But the respondent did not belong to a grade which could be said to be equivalent grade to that of the <ORG>. Therefore it could not be a case of transfer within the meaning of the aforesaid Rule 16.

The Mysore Technical Education Rules which came into existence on 5 May, 1964 referred to two classes and the Principal, <ORG> was in Class I and the Heads or Principal of Polytechnics were in Class I. In 1964 the post of Assistant Geologist was in Class III and not identical in rank. The respondent alleged that he was appointed temporarily to the post of Principal, <ORG> in February, 1958 and thereafter he was appointed under Article 162 of the Constitution because of his qualifications. It will appear from the affidavit evidence that the appellant in 1957 was Principal of <ORG> at Davangere and was in the grade, of Rs. 200-20-300. The respondent was in 1956 an Assistant Geologist at a salary of Rs. 165/- in the scale of Rs. 125-10-175. In 1964 the appellant was in Class III under the 1964 Rules as Principal of Polytechnic whereas the respondent was in the substantive post of Assistant Geologist which under the 1964 Rules was in Class 111. Therefore when the appointment of the respondent was attempted to be regularised with effect from 1958 the respondent was being placed at a position of advantage.

The appointment of the respondent by promotion or transfer is inherently indefensible. The respondent was in Class III service. He was being appointed to Class 1. If it were a case of promotion persons in the same grade and seniority and merit were to be considered. The appellant was senior to the respondent. There were other petitioners before <ORG> who were senior to the respondent. When the appellant made an application to <ORG> in the year 1962 the application was dismissed because it was found to be premature as the <ORG> was preparing the cadre and recruitment rules. <ORG> left it open and said if and when the appointment was regularised it would be open to the appellant to take such steps as law permits.

<NAME>

It was contended on behalf of the State that under Article 309 of the Constitution the State has power to make a rule regularising the appointment. Shelter was taken behind Article 162 of the Constitution andthe power of the Government to appoint. No one can deny thepower of the Government to appoint. If it were a case of direct appointment or if it were a case of appointment of a candidateby competitive examination or if it were a case of appointment by selection recourse to rule under Article 309 for regularisation would not be necessary. Assume that Rules under Article 309 could be made in respect of appoint- ment of one man but there are two limitations. Article 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore the relevant rules at the material time as to promotion and appointment are infringed and the impeached rule cannot be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or by competitive examination.

It was contended on behalf of the State that Rule 3 of the Mysore State Civil Services Rules, 1957 spoke of method of recruitment to be by competitive examination, or by selection, or by promotion. The method of recruitment and qualifications for each State Civil Service were to be set forth in the rules of recruitment but there were no rules until the year 1964. In 1964 the rule spoke of the Principal of School of Mines to be Class I and the method of recruitment for the Principal of School of Mines was to fill up the post by promotion from the cadre of Heads of Sections or by direct recruitment. It was said on behalf of the respondent that he was the only eligible candidate in 1964, and, therefore, his appointment was valid. This is opposed to facts. It is not a case of direct recruitment in the year 1958 or at any time. The State made rules in the year 1967 to regularise the appointment from the month of February, 1958. Again, if it were a case of direct recruitment one Would expect proper materials for the direct recruitment. There should be advertisements for the post. Candidates have to be selected. Their respective merits would have to be considered. To say that the appellant was the only eligible candidate is to deny the rights of others to apply for such eligibility tests.

Counsel on behalf of the <ORG> relied on the decision of this Court in <CITATION> (1) (1)  5 S.C.R. 190.

and the observations at page 201 of the report : "That the <ORG> have to employ temporary servants to satisfy the needs of a particular contingency and such employment would be perfectly legitimate." No exception could ordinarily be taken to such appointment. The appointment in the present case does not fall under that category. The appointment was in breach of rules as a case of promotion. It was not a case of direct recruitment. It was not a case of temporary appointment. It was not a case of appointment of a local candidate. This Court in the case of <CITATION> etc.(1) dealt with a rule under Article 309 to the effect that the respondents in that case having been invalidly retired should have been validly retired from service on superannuation. The notification of the <ORG> under Article 309 was issued on 25 March, 1959 there validating the action taken in retiring the respondent and others upon their attaining the age of 55 years. The respondents contended before <ORG> that they were entitled to continue in service upto the age of 58 years and not to be retired at the age of 55 years in view of an exception carved out by note 4 to rule 294(1) of the Mysore Civil Services Regulations. This Court did not express any opinion as to the power of the <ORG> to make a retrospective provision under Article 309 but the notification retiring certain persons on superannuation was struck down by this Court in these words : "We are, of opinion that this notification cannot be said to be a rule, regulating the recruitment and conditions of service of persons appointed to the services and posts in connection with the affairs of the <ORG>. All that the rule does is to say in so many words that certain persons who had been, in view of our decision on this point, invalidly retired should be deemed to have been validly retired from service on superannuation. It would if given effect contravene Article 311 of the Constitution. Such a rule in our opinion is not a rule contemplated under the proviso to Article 309". The contention on behalf of the <ORG> that a rule under Article 309 for regularisation of the appointment of a person would be a form of recruitment read with reference to power under Article 162 is unsound and unacceptable. The executive has the power to appoint. That power may have its source in Article 162. In the present case the rule which regularised the appointment of the respondent with effect from 15 February, 1958 notwithstanding any rules cannot be said to be in exercise of power under Article 162. First, Article 162 does not speak of rules whereas Article 309 speaks of rules. Therefore, the present case touches the power of the <ORG>, to make rules under Article 309 of the nature impeached here. Secondly, when the <ORG> acted (1)  1 S.C.R. 994.

under Article 309 the Government cannot be said to have acted also under Article 162 in the same breath. The two Articles operate in different areas. Regularisation cannot be said to be a form of appointment. Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the <ORG> contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. In the present case, it was said that the respondent was a local candidate within the meaning of rule 8(27A) of the Mysore Civil Services Rules, 1957 which came into effect on 1 March, 1958. A local candidate is defined there as a local candidate in service meaning a temporary Government servant not appointed regularly as per rules of recruitment to that service. When the appointment of a local candidate would be regularised it would be in consonance with the rules. A contention was advanced on behalf of the respondents that Rules 3, 4 and 14 in the Mysore <ORG> Civil Service Rules, 1957 which came into effect on 10 February, 1958 would not apply until rules of recruitment as con- templated in Rule 3 were brought into existence. In support of that contention reliance was placed on the decision of this Court in <CITATION> .(1). In that case a question arose as to the validity of appointments of 88 Assistant Enginers who were appointed in October, 1961. It was contended that the appointments there were to have been in consonance with the Rules which came into existence in December, 1960. It was held that the December 1960 Rules were not intended to cover appointments of persons who had been interviewed and recommended for appointment by <ORG> in the month of November, 1960 prior to the making of the rules. It was also held in that case that the absence of rules would not take away the power of the executive Government to make appointments under Article 162 of the Constitution. In the present case, the contention on behalf of the respondents that the regularisation was itself a mode of appointment (1)  3 S.C.R. 682.

<NAME>

under Article 162 of the Constitution is unsound. The Rules came into existence in the present case in 1964. The regularisation was made in the year 1967. The regularisation was made with effect from 1958. Therefore, the Rules became applicable. The regularisation in the present case was also bad because even without specific methods of recruitment appointments could be made only by selection or promotion or transfer from equivalent grade. The method of recruitment and qualification for <ORG> was to be setforth in the rules of recruitment of such service specialty made in that behalf. It follows that in the present case in the face of rules which spoke of recruitment to be by competitive examination or by selection or by promotion, these are the three modes of appointment. Even if the method of recruitment and qualifications are not laid down the three modes are specific. Counsel on behalf of the <ORG> stated that the respondent was not promoted but that it was a case of selection because the respondent was the only person fit for that post. A selection would have to be made by inviting applicants and then selecting them. The <ORG> relied on the affidavit of the Deputy Secretary to the Government that the respondent was a highly qualified person and there were no other qualified persons available to fill up the post of Principal of the School. It was therefore said that the Government found that the respondent was the only candidate found suitable and he was therefore selected. The affidavit does not say that he was selected on the basis that other candidates were interviewed and that claim of other candidates were considered. In <NAME>'s case (supra') this Court said that if rules were made the Executive would have to follow the Rules and the Executive could not under Article 162 of the Constitution ignore the Rule. Therefore, in the present case the Executive acted illegally in regularising the appointment of the respondent <NAME>. In the present case, the respondent was appointed tempora- rily as officiating Principal on 25 September 1958 until further orders. In foot note I to the letter dated 25 September, 1958 communicating the order it was stated that the Director of Technical Education was requested to forward proposals to fill the post by advertisement through <ORG>. Again on 3 April, 1958 when the respondent was appointed temporarily as officiating Principal with effect from 15 February, 1958 until further orders a similar foot note was given in that letter communicating the order to the effect that the Director of Technical Education would forward proposals to fill up the post by advertisement through <ORG>. These letters totally repel the suggestion of the respondent being a local candidate. 'These letters contain intrinsic evidence that the appointment was to be made, 'by advertisement through <ORG> so that persons who would possess the necessary qualifications would be able to apply for the same for consideration.

The case of promotion is totally impermeable in the present case. There were three classes of services under the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957. Rule 5 classified the services under four classes. Class I consisted of gazetted posts with the minimum pay of not less than Rs. 350 p.m. Class 11 was to consist of gazetted posts other than those referred to in Class 1. Class III was to consist of non-gazetted posts of Primary School teacher, Assistant Inspector of Shops and Establishments, Compounders, Village Accountants, Bill Collectors and other posts the pay or maximum pay of which if on a time scale is more than Rs. 90. Class IV was to consist of non-gazetted posts classified in the Schedule. There, were three Schedules. Promotion would have to be under rule 4 of the Mysore Civil Services (General Recruitment) Rules, 1957 on the basis of merit and suitability or on the basis of seniority-cum-merit. Rule 16 of the 1957 General Recruitment Rules speaks of relaxation of rules relating to appointment and qualifications. The Government has power to relax any rule and may appoint persons for reasons to be recorded in writing inter alia to a post of an equivalent grade by transfer. In the present case, it was not an appointment by transfer from one post to a post of an equivalent grade under the rules. The relaxation under Rule 16 of the Mysore Civil Service (General Recruitment) Rules, 1957 for a specified period of the qualifications prescribed for purposes of direct recruitment of candidates possessing the prescribed qualifications was neither available nor done in fact in the present case. Therefore it could not be said here that the appointment was by promotion because the respondent did not hold the post of an equivalent grade.

It is said on behalf of the State that the appointment of the respondent was justified on the following grounds. In the year 1958 the respondent was appointed on, a temporary basis. The Government has power to make a temporary appointment. The respondent was, according to the rules, a local candidate. A local candidate could be appointed irrespective of rules. Up to the year 1964 there were no rules fixed with regard to cadre or appointment. In 1964 when the cadre and recruitment rules were made the respondent was the only qualified person. There were no specific rules for regularisation. The Government has power under Article 162 to regularise appointments. Rules under Article 309 can be made for one Person. Therefore, the respondent was validly appointed.

<NAME>

The contentions on behalf of the <ORG> and the respondent are unacceptable. A local candidate means a temporary Government servant not appointed regularly. The respondent was a permanent Government servant at the material time. He was already in service. Under the rules in force in the year 1958 two Government servants cannot be appointed substantively to the same permanent post at the same time. A Government servant cannot be appointed substantively except as a temporary measure to two or more permanent posts at the same time. Therefore, if the respondent were appointed as a temporary measure to the post of Principal it would be not as a local candidate but as a Government servant appointed to another post as a temporary measure. This happened in 1958. When the appellant impeached the appointment of the respondent before <ORG> in 1962 the <ORG> Government stated that the rules had been framed and forwarded to <ORG> and the post of the Principal had to be filled up by promotion from the cadre of Heads of Sections or by direct recruitment. The qualifications for direct recruitments were also given. It was also stated before <ORG> that the matter of regularisation of the respondent in the post was under consideration and <ORG> had agreed to the regularisation and the matter was to be considered by the Government and the decision was to be given in that behalf. In that context, <ORG> said that no useful purpose would be served in pronouncing on the questions raised in the writ petitioN and if and when the appellant felt aggrieved by such regularisation it would be open to him to take such steps. It is in this background that when regularisation was made in the year 1967 that the appellant came up before <ORG> challenging the regularisation. When it was said before <ORG> in 1962 that <ORG> agreed to regularisation it did not mean that <ORG> agreed to regularise the appointment of the respondent. All that <ORG> did was to regularise the appointment to the post of the Principal. The regularisation by the <ORG> of the appointment is with effect from 1958. This reguularisation is bad for the following reasons. First, regularisation is not itself a mode of appointment. Secondly, the modes of appointments are direct recruitment or selection or pro- motion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade, by transfer, from any other service of the, <ORG>. The Government did not contend-, it to be a case of promotion. If it were a case of promotion it would not be valid because it would be a promotion not on the basis of seniority-cum- merit but a promotion of some one who was in Class III to Class I. Even with regard to appointment under rule 16 by transfer of a person holding an equivalent grade the appointment would be offending the rules because it would not be transfer from an equivalent grade. Again, merit and seniority could not be disregarded because the respondent was not in the same class as the Principal of <ORG>. The pay of the Principal was Rs. 500-800 whereas the respondent was getting a salary of Rs. 165 in the grade of Rs. 125-165 plus an allowance of Rs. 75.

The contention of the <ORG> that there were no rules and that the Government was free to appoint the respondent is wrong. There were 1957 rules which spoke of appointment by competitive examination or by selection or by promotion. Even if specific rules of recruitment for such services were not made the rule as to-appointment by competitive examination or selection or by promotion was there. Article 162 does not confer power of regularisation. Article 162 does not confer power on the Government to make rules for the recruitment or conditions of service. There can be rule for one person or one post but rules are meant for recruitment and conditions of service. Rules are not for the purpose of validating an illegal appointment or for making appointments or promotions or transfer. Rules under Article 309 are for the purpose of laying down the conditions of service and recruitment. Therefore, the regularisation by way of rules under Article 309 in the present case by stating that notwithstanding anything in the rules the appointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the proper selection. if the respondent were to be appointed by direct recruitment, there should have been advertisements. Then others would have the opportunity of applying. That would be proper selection.

Counsel on behalf of the appellant contended that Articles 14 and 16 of the Constitution were infringed by the impugned regularisation by rules under Article 309 of the Constitution inasmuch as the appellant and the other petitioners in <ORG> were not given equal opportunity and treatment in regard to the appointment and there was also discrimination. It was said on, behalf of the respondent that the appellant did not possess qualifications prescribed by the 1964 Rules. The appellant disputed that contention. 'Me appellant and the respondent belonged to the same class of service.

The Mysore Education Department Services Technical Education Department) (Recruitment) Rules, 1964 provided that the method of recruitment for the post of Principal, <ORG> was by, promotion from the cadre of Heads of Sections or by direct recruitment. The minimum qualifications for direct recruitment were age limit of 40 years and M.Sc. Degree in applied Geology with five years experience in Mining. The appointment of the respondent was not by direct recruitment at any stage. The appointment of the respondent was sought to be justified by the <ORG> and the respondent first on the ground of promotion and second on the ground of the respondent possessing the qualification. The appellant contended that the appellant was the Principal of the <ORG> since the year 1949. The appellant also contended that the appellant was senior to the respondent. The Principals of <ORG> and the Heads of sections, according to the contention of the appellant, belonged to the common cadre. Therefore, the appellant alleged that the appellant was eligible for promotion under the 1964 Rules. The case of promotion could not be considered by considering only the respondent. Again, the impeached rules do not show that it was a case of promotion but that it was a case of regularisation of an appointment with effect from the year 1958.

If it was the case of selection the appellant and the respondent and others should have been considered. The 1964 Rules prescribed qualifications for the first time. The 1964 Rules provided appointment by promotion or by direct recruitment. The appellant alleged eligibility. The appellant was Head of a Section. The respondent was also a Head of a Section. They both belonged to the same cadre. Therefore, the impugned rule affects the appellant not only in regard to his eligibility but also his seniority. <ORG> was wrong in holding that the appointment of the respondents was defensible as a local candidate and therefore the appointment did not offend Article 14 and 16 of the Constitution.

For these reasons, the judgment of <ORG> is set aside. The appeal is allowed. The impeded Rules dated 9 February, 1967 published in the notification No. ED.91DGO58 are declared to be void. There will be no order as to costs.

V.P.S. Appeal allowed.


PETITIONER: STATE OF ANDHRA PRADESH & ANR. Vs. RESPONDENT: P. SAGAR DATE OF JUDGMENT: 27/03/1968 BENCH: <NAME>, J.C. BENCH: <NAME>, J.C. RAMASWAMI, V. MITTER, G.K. CITATION: 1968 AIR 1379 1968 SCR (3) 565 CITATOR INFO : RF 1971 SC2303 (25) R 1972 SC1375 (33,64,80,87,92) F 1973 SC 930 (22) RF 1975 SC 563 (14,21) F 1985 SC1495 (60,63,119,114) ACT: Constitution of India, Art. 15(1) and (4)- <ORG> preparing a list of backward classes within the meaning -of cl. (4)- Claiming to have done so on advice of experts who were satisfied-relevant tests were applied Not placing any material before court to consider validity of list which ex- facie included 'castes' and not classes-Whether court can hold such list as valid. HEADNOTE: By an order of <ORG>, Andhra Pradesh, issued on July 29, 1966, 20% of the total number of seats for admission to medical colleges in the <ORG> were reserved, for members of the backward classes described in a list prepared by the <ORG>. This order and the list were challenged in writ petitions before <ORG> on the, ground that another list published by <ORG> on June 21, 1963 determining backward classes for the purpose of Art. 15(4) of the Constitution had been declared invalid by <ORG> in an earlier case as being violative of Art. 15(1); it was contended that <ORG> had adopted substantially the same list of backward classes with slight modifications and as the new list also made the reservation in favour of castes and not classes, it infringed the guarantee under Art. 15(1). On behalf of <ORG> it was urged that caste is one of the relevant tests in determining backwardness, and cannot be ignored in determining socially and educationally backward classes and if a group has been classified as backward on other relevent considerations, the classification is not liable to be challenged as invalid on the ground that for the purpose of classifying, the designation of caste is-given. It was stated in an affidavit on behalf of the <ORG> that the new list had been prepared by a <ORG> sub-committee and'approved by the <ORG> after a detailed enquiry of the conditions of the castes in question and on expert advice of the Director of Social Welfare as well as under the guidance of the Law Secretary; and that they were both satisfied that the correct tests were applied in the determination of the backward classes. <ORG> held that the reservations of seats for the members of the backward classes described in the list prepared by the <ORG> were in-,-Aid. The <ORG> appealed to this <ORG> by special leave. HELD:dismissing the appeal, The impugned list prepared by the <ORG> was ex-facie based on castes or communities and wag substantially the same list which bad been struck down by <ORG> as invalid in the earlier case. No materials were placed on the record to enable the <ORG> to decide whether the criteria laid down for determining that the list prepared by the <ORG> conformed to the requirements of cf. (4) or Art. 15 were followed. Article 15 guarantees by the first clause a fundamental right of farreaching importance. Clause (4) is an exception engrafted upon the guarantee in cl. (1), but being id the nature of an exemption conditions which justify departure must be strictly shown to exist. When a dispute is raised before a <ORG> that a particular. law which is inconsistent with the guarantee against discrimination is valid on the plea that it is permitted 596 under cl. (4) of Art. 15 , the mere assertion by the <ORG> that the officers of the <ORG> had taken into consideration the criteria which had been adopted by the courts for determining who the socially and educationally backward classes of the <ORG> are, or that the authorities had acted in good faith in determining the socially and educationally backward classes of citizens, would not be sufficient to sustain the validity of the claim. If a question arises whether a law which prima facie infringes a fundamental right is within an exception, the validity of that law has to he determined by the courts on materials placed before them. By merely asserting that the law was made after full consideration of the relevant evidence and criteria which have a bearing thereon, and was within the exception, the jurisdiction of the courts to determine whether by makinig the law a fundamental right has been infringed is not excluded. [603 C-G]. Case law referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1336 of 1967. Appeal by special leave from the judgment and order dated October 7, 1966 of <ORG> in Writ Petition No. 1268 of 1966.

<NAME> and <NAME>, for the appellants. <NAME> and <NAME>, for the intervener. The Judgment of -the <ORG> was delivered by <NAME>, <NAME> Against the order passed by the High- <ORG> of Andhra Pradesh declaring invalid the "reservation for backward classes under Rule 4A and 5A respectively of the Telangana and the Andhra Rules, and the directions in respect of the President's <ORG> Guides", under <ORG> orders Nos. 1135 & 1136-Health, Housing & Municipal Administration Department dated June 16, 1966, as modified by G.O. M.S. 1880 dated July 29, 1966 for the Telangana region, and by G.O.M.S. 1786 dated August 2, 1966 for the Andhra Region, the State of Andhra Pradesh has appealed to this <ORG> with special leave. The State of Andhra Pradesh is divided into two areas-Telan- gana and Andhra areas. In the Telangana area there are two Medical Colleges having in the aggregate 270 seats for entrants to the medical degree course. In Andhra area there are four Medical Colleges having in the aggregate 550 seats for new entrants. In admitting candidates for the medical degree course by <ORG> orders Nos. 1135 & 1136 <ORG> dated June 16, 1966, seats were reserved for <ORG> nominees, for <ORG>, <ORG>, for candidates with sports and extracurricular proficiency, for children of ex-Service army personnel, for children of displaced goldsmiths, for candidates from <ORG>, for women candidates, for candidates appearing from H.S.C. Multipurpose I.S.C. & P.U.C. Examinations, and for candidates who had secured the M.Sc. & B.Sc. de- grees. By <ORG> order No. 1880 dated July 29, 1966, twenty per cent. of the total number of seats were reserved for backward classes in each area, and pursuant thereto the Telangana Rules were amended by G.O. M.S. No. 1784-Health and the Andhra Rules were amended by G.O. M.S. No. 1783- Health dated August 2, 1966. The Validity of the <ORG> orders Nos. 1135 & 1136 was challenged on the ground that they infringed the fundamental freedoms guaranteed under Arts. 15(4), 16(4) and 29(2) of the Constitution. The High <ORG> held that in reserving seats for nominees of the <ORG> and from other States, for cultural scholars, for women, for graduates and for students from H.S.C. & P.U.C. Courses, no fundamental rights were infringed, but the reservations for members of the backward classes described in the list prepared by the <ORG> of Andhra Pradesh were invalid.

By Art. 15 of the Constitution, as originally enacted, it was provided that "(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2).................................. (3)Nothing in this article shall prevent the State from making my special provisions for women and children."

Article 29(2) provided that "No citizen shall be denied admission into any educational institution maintained by the <ORG> or receiving aid out of <ORG> funds on grounds only of religion, race, caste, language or any of them.

By Art.. 46, which occurs in Ch. IV relating to Directive Principles of State Policy, the State was enjoined to promote the educational and economic interests of the weaker sections of the people, but Arts.' 15 and 29 as originally framed prohibited the making of,any discrimination against any citizen on grounds only of religion,, race, caste, sex, place, of birth or any of them. In the State of Madras v. <NAME>) an order issued by the Government of the State of Madras fixing the number of seats for particular communities for selection of candidates for admission to <ORG> in the State was challenged on the ground that it violated the guarantee against d crimination under Art. 25(2) of the"Constitution. This Court held that the Government order constituted a violation of the (1)  S.C.R. 525.

fundamental right guaranteed to the citizens of India by Art. 29(2) of the Constitution, notwithstanding the directive principles of <ORG> policy laid down in Part IV of the Constitution. The Part thereafter added cl. (4) in Art. 15 , by the Constitution (First Amendment) Act, 1951, providing that:

"Nothing in this article or in clause (2) of article 29 shall prevent the <ORG> from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."

On July 31, 1962, the State of Mysore, in supersession of all previous orders made under Art. I 5(4) divided backward classes into two categories : backward classes and more backward classes, and reserved 68%- of the seats in <ORG> and other technical institutions for the educationally and socially backward classes and the Scheduled Castes and Scheduled Tribes, and left 32% seats for the merit pool. That order was challenged by a group of writ petitions under Art. 32 of the Constitution before this Court. This Court in <CITATION> (1) held that the order passed by the State of Mysore "was a fraud on the constitutional power conferred on the State by Art. 15(4)" and was liable to be quashed, because the order categorised, contrary to the plain intendment of Art. 15(4 ), the backward classes on the sole basis of caste. A similar order G.O. M.S. No. 1880-Health issued by the State of Andhra Pradesh on June 21, 1963, notifying a list of castes for the purpose of selecting candidates from the backward classes in <ORG> in the State of Andhra Pradesh was declared invalid by <ORG> on the ground that the order which classified the backward classes solely on the basis of caste subverted the object of Art. 15(4) of the Constitution : see <NAME> and others v. <ORG> (2).

On February 3, 1964, the. previous order issued by the State of Andhra Pradesh was cancelled. Thereafter it is claimed by the' State of Andhra Pradesh that it took steps to prepare a fresh list of backward classes consistently with the provisions of the Constitution. The Chief Secretary of <ORG> has sworn in his affidavit that <ORG> appointed a <ORG><ORG><ORG>e to draw up a list of backward classes, inter alia, for the purpose of admission of students to professional Colleges. The <ORG>e invited the Law Secretary and the Director of Social Welfare to attend the meetings of the <ORG><ORG><ORG>, and letters were written to the other States calling for information about the criteria adopted by those States for determining backward classes for purposes of Am. 15(4) and 16(4) of the (1) [1963] Supp. 1 S.C.R. 439.

(2) (1966) 1 Andbra W.R. 294.

Constitution, that after considering the replies received from the Chief Secretaries of the various <ORG>s it was resolved 'that the existing list of backward classes pertaining to Andhra and Telangana areas he scrutinised with a view to selecting from that list those castes or communities which are "considered backward on account of the low standard of living, education, poverty, places of habitation, inferiority of occupations followed etc "; that at another meeting it was resolved that the, list of 146 backward communities prepared by the Director be rearranged in "the order of priority in consultation with the Law Secretary, taking into consideration the criteria given by Law Secretary in his note to the <ORG> Sub-Committee and that in doing so such of the criteria as capable of being practically possible for consideration may be taken into account", and accordingly the Law Secretary and the Director of Social Welfare considered the representations made by certain communities to the Government from time to time and "drew up a list of the order of priority as called for by the <ORG> Sub-Committee", that thereafter the <ORG> Sub- Committee made its recommendations which were considered by <ORG> on July 4, 1966, and that <ORG> considered the social, educational and economic conditions of the backward classes named in the lists submitted to them, and dealt with each individual class and deleted certain items or classes in the lists, changed the denomination of certain classes "for the more premise effectuation of concessions to those classes only who really need them", and consolidated the backward classes into one list, ruling out the priorities suggested by the Director of Social Welfare in accordance with the opinion of the <ORG> Sub-Committee, and thereafter published resolution No. G.O. 1880 pursuant to which the rules were amended reserving 20% of the seats for the backward classes mentioned in the list prepared by the <ORG> of the <ORG>. The list prepared on the basis of reservations for socially and educationally backward classes is indisputably a list community wise. On behalf of the petitioners it was contended in <ORG> that <ORG> had adopted the same list of backward classes which was struck down by <ORG> in <NAME> caw() with some slight modifications and the new list also having made a reservation in favour of castes and not classes, it infringed the guarantee Under Art. 15(1). On behalf of the <ORG> it was urged that caste is one of the relevant tests in determining backwardness, and cannot be ignored in determining the socially and educationally backward classes: if a group has been classified as backward on other relevant considerations, the classification is not liable to be changed as invalid on the ground that for the purpose of classifying,the designation of caste 'is given. <ORG> held that the earlier G.O. was struck down (1) (1966) 1 Andhra W.R. 294.

in <NAME> case(') on the ground that it was based on caste alone, and since the G.O. under challenge was again prepared on the same basis it could not be sustained as falling within,the exception provided in Art. 15(4). Counsel for the <ORG> contends that <ORG> erred in holding that the impugned rules reserving seats for backward classes made caste the determining factor. In the context in which it occurs the expression "class" means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence .in a locality, race, religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or community cannot also be accepted. By cl. (1), Art. 15 prohibits the <ORG> from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. By cl. (3) of Art., 15 the <ORG> is, notwithstanding the provision contained in cl. (1), permitted to make special pro,vision for women and children. By cl. (4) a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes is outside the purview of cl. (1). But cl. (4) is an exception to cl. (1). Being an exception, it cannot be extended so as in effect to destroy the Guarantee of cl. (1). The <ORG> has by enacting cl. (4) attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision to be made for their advancement. In order that effect may be given to cl. (4), it must a pear that the beneficiaries of the special provision are classes which are backward socially and educationally and they are other than the Sche- duled Castes and Scheduled Tribes, and that the provision made .is for their advancement. Reservation may be adopted to advance the interests of weaker sections of society, but in doing so, care must be taken to see that deserving and qualified candidates are -not excluded from admission, to higher educational institutions. The criterion for determining-the backwardness Must not be based solely on religion, race, caste, sex, or place of birth, and, the backwardness being social, and educational must be similar to the backwardness from which the Scheduled Castes and the Scheduled Tribes suffer. These are the principles which have been enunciated in the decision of this <ORG> in.M. <NAME> case(3) and <CITATION> .and. others(2). In <NAME> case (2), <NAME> J., speaking for the majority of the <ORG> observed at p. 388 (1) (1963) Supp.1 S.C.R.439..

(2) (1964) 6 S.C.R.368 .lm15 "The important factor to be noticed in Art. 15(4) is that it does not speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes. Though it may be suggested that the wider expression "cLasses" is used in cl. (4) of Art. 15 as there are communities without castes, if the intention was to equate classes with castes, nothing prevented the makers of the constitution from using the expression "backward classes or castes'. The juxtaposition of the expression "backward classes" and "Scheduled Castes" in Art. 15(4) also leads to a reasonable inference that the expression "classes" is not synonymous with castes. It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong."

In a recent judgment of this <ORG> <NAME> & <ORG>. v. The State of Madras and others('), <NAME>, <NAME>, speaking for the <ORG> observed :

". . . if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Art. 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within, the meaning of Art. 15(4). It is true that in the present cases the list of socially and educationally backward classes has been specified by caste. But that does not necessarily mean that caste was the sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens." That case makes no departure from the rule enunciated in the earlier cases.

The list dated June 21, 1963, of castes prepared by <ORG> to determine backward classes for the purpose of Art. 15(4) was declared invalid by <ORG> in <NAME> case('). A fresh list was published under the amended rules with some modifications, but the (1)  2 S.C.R. 786.

(2) [1966] 1 Andhra W.R. 294.

basic scheme of the list was apparently not altered. It is true that the affidavits filed by the Chief Secretary in <ORG> and the Director of Social Welfare in this Court have set out the steps taken for preparing the Est of backward classes. It is also stated in the affidavit of the Director of Social Welfare that he considered the representations made to him, consulted the Law Secretary and certain publications relating to the study of backward classes e.g. - <NAME>'s "Caste and Tribes" and <NAME> "Castes and Tribes", and made his recommendations which were modified by the <ORG>-<ORG> appointed by <ORG> and ultimately <ORG> prepared a final list of backward classes. But before <ORG> the materials which the <ORG> <ORG>-<ORG> or <ORG> considered were not placed, nor was any evidence led about the -criteria adopted by them for the purpose of determining the backward classes. <ORG> observed :

"A perusal of this affidavit (Chief Secretary's affidavit) as well as that of the Director of Social Welfare,. . .which are filed on behalf of the Government do not say what was the material placed before <ORG>-Committee or <ORG>, from which we could conclude that the criteria laid down by their Lordships of <ORG> have been applied in preparing the list of backward classes.

After referring to the opinion of the Law Secretary and the views ,of the Director of Social Welfare they observed:

".... We are not able to ascertain whether any material, and if so, what material was placed before <ORG><ORG>Committee, upon which the list of backward classes was drawn. On the other hand, it is stated <ORG>that the<ORG> Law Secretary and the Director of Social Welfare sat together and drew up a list, the former specifying the legal requirements and the latter as an expert advising on the social and educational backwardness of class or classes."

It was urged before <ORG> that expert knowledge of the Director of Social Welfare and of the Law Secretary was brought to bear upon the consideration of the relevant materials in the preparation of the list and they were satisfied that the correct tests were applied in the determination of backward classes and on that -account the list should be accepted by <ORG>. <ORG> in dealing with the argument observed:

".... the impugned backward classes list cannot be and has not been sustained by the- <ORG> as coming within the exception provided in Art. 15(4) on any material placed before this Court. In fact, there is a total absence of any material, from which we can say that the <ORG> applied the criteria enunciated by their Lordships of <ORG> in the above referred cases, in preparing the list of backward classes. We cannot accept the contention of the learned Advocate General that "once there is proof that the <ORG> bona fide considered the matter it is sufficient". Acceptance of this argument would make for arbitrariness, absolving the party on whom the burden of proof to bring it within the exception rests, from proving it. The mere fact that the act is bona fide and that there was total absence of mala fides, is not relevant."

Article 15 guarantees by the first clause a fundamental right of far-reaching importance to the public generally. Within certain defined limits an exception has been engrafted upon the guarantee of the freedom in cl. (1), but being in the nature of an exception, the conditions which justify departure must be strictly shown to exist. When a dispute is raised before a <ORG> that a particular law which is inconsistent with the Guarantee against discrimination is valid on the plea that it is permitted under cl. (4) of Art. 15 , the assertion by the <ORG> that the officers of the <ORG> had taken into consideration the criteria which had been adopted by the <ORG>s for determining who the socially and educationally backward classes of the Society are, or that the authorities had acted in good faith in, determining the socially and educationally, backward classes of citizens, would not be sufficient to sustain the validity of the claim. The <ORG>s of the country are invested with the power to determine the validity of the law which infringes the fundamental rights of citizens and others and when a question arises whether a law which prima facie infringes a guaranteed fundamental right is within an exception, the validity of that law has to be determined by the <ORG>s on materials placed before them. By merely asserting that the law was made after full consideration of the relevant evidence and criteria which have a bearing thereon, and was within the exception, the jurisdiction of the .<ORG>s to determine whether by making the law a fundamental right has been infringed is not excluded.

<ORG> has repeatedly observed in the course of their judgment that no materials at all were placed on the record to enable them to decide whether the criteria laid down by this Court for determining that the list prepared by the <ORG> conformed to the requirements of cl. (4) of Art. 15 were followed. On behalf of the <ORG> it was merely asserted that an enquiry was in fact made with the aid of expert officers and the Law Secretary and the question was examined from all points of view by the L7Sup.C.I/68-14 officers of the <ORG>, by the <ORG> Sub-<ORG> and by the <ORG>.- But whether in that examination the correct criteria were applied is not a matter on which any assumption could be made especially when the list prepared is exfacie based on castes or communities and in substantially the list which was struck down by <ORG> in <NAME> case(1) Honesty of purpose of those who prepared and published the list was not and is not challenged, but the validity of a law which apparently infringes the fundamental rights of citizens cannot be upheld merely because the law-maker was satisfied that what he did was right or that he believes that he acted in manner consistent with the constitutional guarantees of the citizen. The test of the validity of a law alleged to infringe the fundamental rights of a citizen or any. act done in execution of that law lies not in the belief of the maker of the law or of the person executing the law, but in the demonstration by evidence and argument before the <ORG> that the guaranteed right is not infringed. The appeal therefore fails and is dismissed., R.K.P.S. Appeal dismissed.

(1) [1966] 1 Andhra W.R. 294.


<NAME>, J.

1. This is an appeal by the plaintiff against a decree of the Subordinate Judge of Agra. The parties are the descendants of two brothers whose family from time immemorial had been the hereditary trustees and managers of certain temples at Muttra and Gokul and of the endowments appertaining to them. It appears that some time before suit most of the landed property had been by a friendly arbitration divided between them, but that the temples were left joint. In the 10th paragraph of the plaint it was alleged that for some time there had been disagreements between the parties as to the employment and dismissal of servants, the distribution of offerings made at the temple, the expenses of daily worship, &c, &c, and that there was an apprehension of disturbances, loss of property, &c. The plaintiff therefore prayed the Court to declare that each party was entitled to manage and superintend the temples in turn and to give proper instructions for the custody of the property appertaining to the temples, for the appointment of servants and such matters, and for the mode of living of the parties in the houses appertaining to the temples as well as for the repairs of the houses.

2. As to the last mentioned matter, the plaintiff during the hearing of the suit explained (vide No. 506 of the record, at p. 49 of the respondents' printed book) that the dwelling-houses in question belong to the temples, that the plaintiff did not desire to have them partitioned, but wished that the parties should live in them as hitherto and that the <ORG> should give directions as to their repair. A similar disclaimer of any desire to partition was made as to certain baithaks, or sitting-rooms.

3. On the following day (March 7th, 1895) another and most important admission was made on behalf of the plaintiff, and was concurred in on behalf of the defendants. According to that admission neither party has any personal pecuniary interest in the income of the temples, whether from property belonging to them or from offerings made by worshippers; all the income is declared by both parties to belong to the temples and to them only. This admission has the effect of correcting a statement made in the 7th paragraph of the plaint to the effect that "if there be any surplus income the parties appropriate it." It further is clear that in this case there is no dispute between the parties as to their right to share in the performance of the worship of the idols in the temples. The ceremonies of public worship are, as appears from the plaint, performed by the servants attached to the temples and the parties are at liberty to take whatever share they please in them. Accordingly, on the allegations of the plaint and on the admission of the parties, it is clear that these temples are trust property in which none of the parties have any pecuniary interest, and that from time immemorial the management has been joint in the hands of the family to which the parties belong.

4. Thus the main relief asked for in the plaint narrowed itself down to a prayer that the <ORG> would partition their duties as trustees and managers between the parties, and would fax stated periods during which each party in turn would hold exclusive possession of the temples and carry on the management, It was suggested that a period of six months in each year should be assigned to each.

5. The Subordinate Judge who tried the suit refused to grant to the plaintiff the relief he asked for. In a carefully considered judgment the Subordinate Judge pointed out most properly that this suit was not one for a declaration of plaintiff's right to share in conducting public worship at the temple and to a participation in the offerings. As to that matter he showed there was no dispute whatever, the real dispute being as to plaintiff's claim to hold the management "in turn."

6. The plaintiff appeals, contending that the relief asked for by him should have been granted. That was the only one o! the grounds of appeal which was argued before us.

7. In support of his contention the learned vakil for the appellant cited to us several cases from the Bombay and Calcutta reports, e.g., <NAME> v. <NAME> 14 B.L.R. 156. This case clearly is not in point in the present appeal. It was a case in which a person, who possessed jointly with others a right to worship at a certain shrine and to participate in the offerings, prayed to have his right partitioned from those of his co-sharers and to have periods fixed during which he might exercise it. <ORG> held that such a right was a property which could be partitioned like other kinds of property. In <NAME> v. <NAME> I.L.R. 6 Bom. 298, <ORG> held that a transfer by a divided Hindu of his right to perform public worship and to participate in the offerings at the temple was not invalid. The cases Limba bin <CITATION> bin Pimplu I.L.R. 13 Bom. 458, Anandamoyi Chaudrani v. Baikant Nath Rae 8 W.R. 193, and <NAME> v. Prannath 1 Bom. H.C. Rep. 12, were cases in which the plaintiffs setup their right to conduct public worship and to receive a share in the offerings made at the temples, and Ram Soondur Thakoor v. <ORG> 19 W.R. 28, was a suit in which to establish similar rights the plaintiff sought to be authorized to remove an idol to his house.

8. All the above cases differ essentially from the present cafe in that in-all of them there was a dispute as to the plaintiffs' right to share in the manner set up by them in the performance of public worship and to receive a share in the offerings. Such cases cannot be considered as in any way laying down a rule applicable to the present case in which there is no such dispute.

9. The parties here are the joint managing trustees of the temples, whose duty it is as such to manage the affairs to the best of their united abilities, a duty which they undertook to perform when they accepted the trust. They have no rights of property or any personal pecuniary interest in the subject-matter of the trust. Is then one of such trustees entitled to ask a <ORG> to partition the duties of the trust between himself and his co-trustees, and, e.g., to give to him the exclusive management of, and possession of, the trust property for, say, six months in each year, putting the other trustees entirely aside during his period of management? We think not. We regard the body of trustees as being each of them not merely entitled, but also as being obliged by his acceptance of the trust to act jointly at all times with the others in the management of the trust property. The duty incumbent on the trustees is one incumbent on them acting jointly, and is not a "property" personal to any one of them individually or to all of them jointly. As it is not a personal property, it does not come under the rule as to partition laid down in the first of the cases cited above. Such a duty cannot in our opinion be partitioned.

10. Something was said at the hearing as to the partition by arbitration which had already been made by the parties. No issue was raised before us as to that partition. It is therefore unnecessary for us to express any opinion as to whether it is a valid instrument or not. We concur with the lower Court in holding that the appellant is not entitled to partition in this case. We therefore dismiss this appeal with costs.