PETITIONER: U.P. STATE ELECTRICITY BOARD Vs. RESPONDENT: RAM AUTAR AND ANOTHER DATE OF JUDGMENT: 22/03/1996 BENCH: VENKATASWAMI K. (J) BENCH: VENKATASWAMI K. (J) AHMADI A.M. (CJ) CITATION: JT 1996 (5) 424 1996 SCALE (3)108 ACT: HEADNOTE: JUDGMENT:

J U D G M E N T K. Venkataswami,J.

Leave granted. Heard counsel on both sides. The appellant, <ORG> (hereinafter referred to as <ORG>") seems to be more aggrieved by the following pungent/harsh observations made by <ORG> against the officials of <ORG> and in particular against its Chairman and Secretary :

"Probably the authorities of <ORG>, think themselves above the <ORG> or the least a <ORG> within the <ORG>. It seems that they are under an illusion that if they flout the directions of the <ORG> Government, there would be no forum where the person can seek redress. They failed to realise that the <ORG> Government acting within its powers, sanctioned by law, had the authority to issue directions, particularly in matters, where a policy is involved leaving no option to them except to comply with those directions. As they refused to comply with the directions of the <ORG> Government in a most reckless and indiscreet manner, this <ORG>, has no option except to force them to act, within the boundaries of law. But before doing so, I am constrained to say, that the Chairman and Secretary of <ORG>, considering themselves, a rare species like white Elephants, tried to ransack and destroy, circumvent the directions of the <ORG> Government. I am definitely of the view that the aforesaid officers are not only guilty of flouting the directions of the <ORG> Government, but are responsible for harassing, a retrenched employee who deserved sympathy and compassion. However, it is for the <ORG> Government to consider, as to whether such persons should be allowed to continue on such higher positions."

The circumstances under which the above observations came to be made can be briefly noted :

<ORG> took a policy decision to absorb the employees of the <ORG>s/ Undertakings which have been wound up due to recurring losses in other Departments/Undertakings of the <ORG>. One such <ORG> owned <ORG> which ended in winding up was <ORG>. After giving notice steps were taken to terminate the services of the employees of that <ORG> and on humanitarian ground, the <ORG> decided to take steps for absorption of the employees of this <ORG> in other Departments/Organisations under the <ORG>. Out of 600 employees of <ORG>, only few had been without absorption in other departments, one among those left out was the first respondent herein. Pursuant to the policy as stated above, the <ORG> asked <ORG> to appoint the first respondent as Electrician. In spite of several such requests from the <ORG>, the appellant <ORG> took a stand that <ORG> being an autonomous body cannot be directed by the <ORG> absorb/appoint the first respondent in <ORG> as Electrician. Finding that <ORG> was not prepared to appoint/absorb him, the first respondent moved <ORG> for the issue of a Writ of Mandamus commanding <ORG> to appoint/absorb him on the post of Electrician and for consequential reliefs. Even before <ORG>, the appellant took the same stand by placing reliance on Sections 5 and 78A of the Electricity (Supply) Act, 1948 The learned Single Judge after looking into the various correspondence that passed between the <ORG> and <ORG> made the above observations.

Learned counsel appearing for the appellant <ORG> fairly and rightly stated that in compliance of the order of <ORG>, the first respondent has been appointed/absorbed and the appellant has decided to continue his services irrespective of the result of this case. Therefore, so far as the question of law is concerned, we need not go into that in view of the fair and reasonable attitude taken by the appellant <ORG>. However the learned counsel for the appellant was particular about the deletion the pungent observations extracted above.

<CITATION> (AIR 1992 SC 1348) this Court had occasion to consider the scope of Section 78A of the Electricity (Supply) Act, 1948. Considering Section 78A of the Act, the Court observed as under :-

"78A. Directions by the State Government.-

(1) In the discharge of its functions, the <ORG> shall be guided by such directions on question of policy as may be given to it by <ORG>. (2) If any dispute arises between the <ORG> and <ORG> as to whether a question is or is not a question of policy, it shall be referred to the <ORG> whose decision thereon shall be final.

The above provision clearly lays down that the Board shall be guided by such directions on questions of policy as may be given to it by <ORG>. In the circumstances of the case before us the directions given under letter dated 18.7.1988 and 5.

5. 1989 cannot be considered as directions on any questions of policy. So far as the appointment of staff is concerned, S.15 empowers the <ORG> to appoint such officers and employees as may be required to enable the <ORG> to carry out its functions under the Act."

In view of the law laid down by this Court as above, one cannot find fault with the appellant for taking a stand as they took before <ORG>, namely, that the Government have no authority to give directions to <ORG> to appoint/absorb the first respondent as Electrician in the Board. The further question whether the directions in the facts and circumstances of this case will fall within the scope of Section 78-A is a debatable question and, therefore, the appellant can not be condemned for taking such stand before <ORG>. This Court has time and again observed that making stringent observations/strictures must be avoided by the courts as far as possible and only in exceptional circumstances such observations can be made. We do not think the case on hand presents any exceptional circumstances. For the reasons stated above, We set aside the observations extracted at the beginning from the judgment of <ORG> appealed against and dispose of the appeal accordingly. However, there will be nor order as to costs.


<NAME>, J.

1. This is an appeal from a judgment of <ORG>, dismissing an appeal from the full bench of <ORG> at Lahore, whose decision had been in favour of the respondents. The appellants have thus failed before both Courts in India.

2. The question is whether a certain Act of <ORG>, Punjab Act IV of 1938, entitled the Punjab Restitution of Mortgaged Lands Act, is void as being ultra vires of <ORG>. The action was commenced by the appellants as mortgagees claiming a declaration that they were mortgagees in possession of certain lands therein specified and that the defendants were not entitled to redeem without payment of the mortgage debt due under the mortgage deeds, and also an injunction to restrain the defendants as mortgagors from prosecuting their petition for redemption of the lands in <ORG> under the Punjab Act IV of 1988 (hereinafter called the impugned Act) and for restitution of the lands under the provisions of the Act.

3. The object of the impugned Act was the relief of mortgagors by giving them restitution of the mortgaged premises on conditions more favourable than those under the mortgage deed and by providing for a procedure before the Collector, which was more summary than that before the ordinary <ORG>. The relevant sections of the impugned Act are as follows:

3. (1) The expression 'land' means land which is not occupied as the site of any building in a town or village and is occupied or lot for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes

(a) the sites of buildings and other structures on such land;

(b) a share In the profits of an estate or holding;

(c) any dues or any fixed percentage of the land revenue payable by an inferior landowner to a superior landowner.

(d) a right to receive rent;

(e) any right to water enjoyed by the owner or occupier of land as such;

(f) any right of occupancy; and

(g) all trees standing on such land.

4. A mortgagor to whose land the provisions of this Act apply may at any time present a petition to the Collector praying for restitution of possession of the land mortgaged. The petition shall be duly verified in the manner prescribed for such petitions.

7. (1) If the Collector finds that the mortgage is one to which this Act applies, he shall, notwithstanding anything contained in any other enactment for the time being in force, in cases where he finds that the value of the benefits enjoyed by the mortagagee, while in possession, equal or exceed twice the amount of the principal sum originally advanced under the mortgage, order in writing-

(a) that the mortgage be extinguished, and,

(b) where the mortgagee is still in possession, that the mortgagor be put into possession of the mortgaged land as against the mortgagee and that the title deeds, if any, be restored to the mortgagor.

(2) If in cases to which this Act applies, the Collector finds that the value of the benefits enjoyed by the mortgagee while in possession is less than twice the amount of the principal sum originally advanced and some payment is still due to the mortgagee according to the terms of the mortgage, the Collector shall, by order in writing, and notwithstanding anything contained in any other enactment for the time being in force direct that the land be restored to the mortgagor and he be put into possession subject, however, to the payment of compensation by the mortgagor to the mortgagee at rates not exceeding the following scales:-

(i) thirty times the land revenue assessed on the land at the time when it was mortgaged if the mortgagee has been in possession for a period exceeding thirty years but not exceeding forty years;

(ii) fifteen times the land revenue assessed on the land at the time when it was mortgaged if the mortgagee has been in possession for a period exceeding forty years but not exceeding fifty years;

(iii) five times the land revenue assessed on the land at the time when it was mortgaged if the mortgagee has been in possession for a period exceeding fifty years.

12. No civil court shall have jurisdiction to entertain any claim to enforce any right under a mortgage declared extinguished under this Act, or to question the validity of any proceedings under this Act.

4. The main points of objection to the validity of the impugned Act were based on Sections 100 and 107 of the Government of India Act, 1935 (hereinafter called the Constitution Act ). Section 100 is in the following terms-

100. (1) Notwithstanding anything in the two next succeeding sub-sections, <ORG> has, and <ORG> has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the 'Federal Legislative List.') (2) Notwithstanding anything in the next succeeding sub-section, <ORG>, and, subject to the preceding sub-section, <ORG> also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereinafter called the 'Concurrent Legislative List').

(3) Subject to the two preceding sub-sections, <ORG> has, and <ORG> has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II in the said Schedule (hereinafter called the 'Provincial Legislative List').

(4) <ORG> has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof.

5. The item in the Provincial List which is directly relevant is No. 21, which is in these terms-

Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonisation; Courts of Wards; encumbered and attached estates; treasure trove.

6. But item No. 2 of the same List which enables <ORG> to legislate on:-

Jurisdiction and powers of all Courts except <ORG>, with respect to any of the matters in this list; procedure in <ORG>.

must also be considered.

7. The matters enumerated in List III (Concurrent Legislative List) in respect of which both <ORG> and <ORG> may legislate include:-

Civil Procedure including the law of Limitation, and all matters included in the Code of Civil Procedure... (Entry No. 4 in the Concurrent Legislative List);

Wills, intestacy, and succession, save as regards agricultural land. (Entry No. 7);

Transfer of property other than agricultural land... (Entry No. 8);

Contracts, including partnership, agency, contracts of carriage, and other special forms of contract, but not including contracts relating to agricultural land. (Entry No. 10);

8. The precedence of the Concurrent List is defined by Section 107 of the Constitution Act which provides that If any provision of a Provincial law is repugnant...to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section...the existing Indian law shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.

9. "Existing Indian Law" is defined by Section 311 of the Constitution Act as meaning any law passed by any legislature in British India before the commencement of Part III of the Act, which came into force on April 1, 1937.

10. As the main issue in the suit was whether the impugned Act was or was not valid, the Punjab Province applied for and was granted leave to intervene in the proceedings, and was the only respondent which actually appeared before <ORG> on the hearing of the appeal. Owing to the death of one of the appellants a change of parties had taken place in the appellants, but that is not material.

11. Certain grounds of objection which were taken before the Courts in India were not relied upon by the appellants before their Lordships. The stress of the argument before the Board was laid on Sections 100 and 107 . The respondent contended that the provisions of the impugned Act were wholly within item 21, supplemented if need be by item 2 of the Provincial Legislative List, that accordingly the respondent did not need to rely for the validity of the Act on any powers of the <ORG> under the Concurrent Legislative List and therefore Section 107 was irrelevant to the decision of the case. The appellants on the other hand contended that the impugned Act went beyond the limits of the legislative powers of the <ORG> under List II and could not be supported by invoking concurrent powers of the <ORG> under List III, because the provisions which had to be invoked for this purpose were repugnant to existing Indian laws and were thus invalid under Section 107 . They instanced the Indian Contract Act , Sections 37 , 69 and 70 , and the Code of Civil Procedure, Section 4(1) and (2) and Section 9 as containing provisions to which the impugned Act is repugnant and further contended that as none of the Lists specifically mentioned mortgages, any jurisdiction to deal with them is confined to the Governor-General in virtue of his reserved power under Section 104 . Thus both parties rightly construed Section 107 as having no application in a case where the <ORG> could show that it was acting wholly within its powers under the Provincial List and was not relying on any power conferred on it by the Concurrent List. In such a case it is also clear that there is no room for the exercise by the Governor-General of his reserved power under Section 104 .

12. Their Lordships will first deal with the more important of the respondent's arguments, viz. that the impugned Act is within item 21 of List II; item 2 in that list is of less importance if the respondent's contention under item 21 is good.

13. It will accordingly be necessary to determine in detail whether the provisions of the impugned Act fall within item 21. In their Lordships' judgment they do completely so fall, for reasons which they will now state.

14. The first matter to be determined is what are the relevant powers conferred on the Provinces by items 2 and 21 of List II which have already been set out above.

15. The key to item 21 is to be found in the opening word, "Land." That word is sufficient in itself to include every form of land, whether agricultural or not. Land indeed is primarily a matter of provincial concern. The land in each province may have its special characteristics in view of which it is necessary to legislate, and there are local customs and traditions in regard to land-holding and particular problems of provincial or local concern which require provincial consideration. It would be strange if the land in a province were to be broken up into separate portions some within and some outside the legislative powers of the Province. Such a conflict of jurisdiction is not to be expected, item 21 is part of a Constitution and would on ordinary principles receive the widest construction, unless for some reason it is cut down either by the terms of item 21 itself or by other parts of the Constitution which has to be read as a whole. As to item 21, "Land", the governing word, is followed by the rest of the item, which goes on to say, "that is to say", These words introduce the most general concept-"rights in or over land". "Rights in land" must include general rights like full ownership or leasehold or all such rights. "Rights over land" would include easements or other collateral rights, whatever form they might take. Then follow words which are not words of limitation but of explanation or illustration, giving instances which may furnish a clue for particular matters: thus there are the words "relation of landlord and tenant and collection of rents." These words are appropriate to lands which are not agricultural equally with agricultural lands. Rent is that which issues from the land. Then the next two sentences specifically refer to agricultural lands, and are to be read with items 7, 8 and 10 of List III. These deal with methods of transfer or alienation or devolution which may be subject to federal legislation but do not concern the land itself, a sphere in which the provincial and federal powers are concurrent, subject to the express exception of the specific head of agricultural land which is expressly reserved to the provinces. The remainder of item 21 specifics important matters of special consequence in India relating to land. The particular and limited specification of agricultural land proves that "land" is not used in item 21 with restricted reference to agricultural land but relates to land in general. Item 2 is sufficient to give express powers to the Provinces to create and determine the powers and jurisdiction of <ORG> in respect of land, as a matter ancillary to the subject of item 21.

16. It is next necessary to consider the terms of the impugned Act, which it is said is ultra vires of the Province, and compare them with the terms of the constitution just quoted. But before that is done, it may be observed that there is no express provision in the Constitution referring by name to mortgages, though mortgages are of particular importance in India as subject of ordinary business life and of litigation and of legislation. But a constitution does not generally deal with particular transactions or types of transactions, and mortgages of land would, in their Lordships' judgment, as a matter of construction, properly fall under item 21 in so far as they are mortgages of land, though in certain aspects they include elements of transfer of property and of contract. But they form, a type of transaction which may properly be regarded as sui generis, incidental to land and included within item 21 except in so far as they fall within items 8 and 10 of List III which again contain an express exception in the case of agricultural land. Their Lordships cannot accept the view that so important a subject as mortgages was left out of the Constitution and merely left to the Governor-General's powers under Section 104 of the Constitution Act as a residual subject. So far as land at least is concerned, item 21 would include mortgages as an incidental and ancillary subject.

17. The impugned Act, as already explained, has the main purpose of giving relief to mortgagors by enabling them to obtain restitution of the mortgaged lands on terms less onerous than the mortgage deeds require. It is limited to existing mortgages of land as defined in Section 3 , effected prior to June 8, 1901. That definition restricts it to land "occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture." The addition of the word "pasture" has been relied on as extending the scope of the Act beyond agriculture, but pasture is certainly "land" within item 21 of List II. It may have been mentioned ex abundanti cautela, but in any case it is sufficiently allied to agriculture generally to be treated as a species of agricultural land or at least as land occupied or let for purposes subservient to agriculture and as such within the general scope of an Act dealing with agricultural land. Section 3 of the Act goes on, it is true, to give a number of specific types of land which are included, but they are all governed by the controlling words of Sub-section (1) which limits the whole Act to agricultural land in the sense already stated. Thus head (b) of Sub-section (1) of Section 3 must be read as referring to an estate or holding in the only class of land with which the Act deals. The same is true of all the other heads in the sub-section, dues, rent, water rights, occupancy, trees, all come within the category of rights in or over land within item 21, List II, and all are governed by the same controlling reference to agriculture or agricultural purposes. This reading of the section is supported by the qualification of trees as trees standing on such land, that is, agricultural land. Sections 7 and 8 of the impugned Act embody its main substantive provisions for the relief of mortgagors and need not be repeated here. The rest of the Act deals with ancillary matters like procedure which fall within the powers given by item 2 and also by item 21.

18. If, as their Lordships think, the impugned Act is limited to agricultural land, items 7, 8 and 10 of List III do not affect the position, since agricultural land is excluded in these entries. But in any event the Act does not deal with wills or the transfer of property at all; it does certainly deal with mortgages, but as their Lordships have already stated, mortgages, though not expressly mentioned in the Constitution, are properly to be classed not under the head of contracts, but as special transactions ancillary to the entry of "land."

19. It follows that in their Lordships' judgment there is not sufficient ground for holding that the impugned Act or any part of it was invalid. As a whole it fell within the powers given to the Province by items 2 and 21 of List II, without any necessity to invoke any powers from the Concurrent List, List III. Accordingly questions of repugnancy under Section 107 of the Constitution Act do not arise and need not be considered here.

20. Their Lordships will accordingly, for the reasons given, humbly advise His Majesty that the appeal should be dismissed. The appellants will pay the costs of the appeal.


JUDGMENT <NAME>, J.

1. This appeal is brought by special leave from the judgment of <ORG> dated May 28, 1965, in Letters Patent Appeal No. 192 of 1965.

2. The respondent joined the income-tax department as an upper division (sic). He was confirmed as an upper division clerk with effect from December 1, 1949. On October 25, 1951, he was promoted as inspector of Income-tax in an officiating capacity. On April 8, 1953, the respondent as promoted to officiate until further orders as Income-tax Officer, class II, grade III." The order of the Commissioner of Income-tax d: April 8, 1953, is to the following effect:

ORDER Establishment-Gazetted class II servants Promotion, transfer and posting of.

<NAME>, officiating inspector, special survey circle Amritsar, is promoted to officiate until further orders as <ORG> class II, grade III, in the scale of Rs. 275-35-500-EB.30-800 and posted as <ORG>r, Special Survey Circle, Patiala, with effect from the date he relieves <NAME> since reverted. He is also appointed to hold charge of special survey circle, Patiala II, in addition to his own duties his relieving <NAME> since reverted.

He should relieve both <NAME> and <NAME> as soon as possible but not later than 14th April, 1953.

<NAME>, Commissioner of Income-tax.

3. On May 22, 1964, the respondent was reverted from his officiating position of Income-tax Officer, class II, as his work was not considered satisfactory. The order of reversion reads as follows:

ORDER Establishment-Gazetted class II Income-tax Officer-Reversion of.

<NAME>, Officiating Income-tax Officer, class II, at present employed as Income-tax Officer, <ORG>, Ludhiana, having been found unsuitable after trial to hold the post of Income-tax Officer, class II, hereby reverted as officiating inspector, Income-tax, with immediate effect.

<NAME>, Commissioner of Income-tax.

4. The respondent thereupon moved <ORG> for grant of a writ quash the order of reversion dated May 22, 1964. It was contended , behalf of the respondent that the order of reversion was made by way of punishment and the provisions of Article 311 of the Constitution were attracted and the procedure contemplated by that article should have been followed. The single judge allowed the writ petition by his judgment dated May 12, 1965, holding that the reversion of the respondent from the officiating position of Income-tax Officer, class II, to a lower position of officiating Inspector of Income-tax was tantamount to a reduction in rank and the respondent was entitled to the safeguards provided in Article 311 of the Constitution. The appellants took the matter in appeal under the Letters Patent but the appeal was dismissed on May 28, 1965.

5. It was contended by Mr. <NAME> on behalf of the respondent that the order of reversion was made by way of punishment and the provisions of Article 311(2) of the Constitution were attracted. It was pointed out that in his demi-official letter dated February 6, 1964, Mr. <NAME>, the then Commissioner of Income-tax, said that the respondent should be reverted because of the large number of complaints which the department had received against the integrity of the respondent and the bad reports received by him from his superiOrs. It was said that the Commissioner was largely influenced by the complaints received against the respondent about his honesty while coming to the conclusion that he was fit suitable for the post of Income-tax Officer. We are unable to accept the, argument of Mr. <NAME> that the order of reversion is punitive in character and that the procedure of Article 311(2) of the Constitution is applicable to this case. In the order of reversion, dated May 22, 1964, here is nothing to show that a stigma was attached to the respondent. No reference is made to the imputation on the integrity of the respondent and the only reason given is that the respondent was found unsuitable to hold the post of Income-tax Officer, class II. It is well established that a <ORG> servant who is officiating in a post has no right to hold it for all time and the <ORG> servant who is given an officiating post holds it on the implied term that he will have to be, reverted if his work was found unsuitable. In a case of this description a reversion on the ground of unsuitability fan action in accordance with the terms on which the officiating post is held and not a reduction in rank by way of punishment to which Article 311 of the Constitution could be attracted. It is, of course, well-settled that temporary <ORG> servants are also entitled to the protection of Article 311(2) of the Constitution in the same manner as permanent <ORG> servants if the <ORG> takes action against them meting out one of the three punishments, namely, dismissal, removal or reduction in rank see <CITATION>  S.C.R. 828). But this protection is only available where the dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. As pointed out in <NAME> case  S.C.R. 828, the two tests applicable in a matter of this description are: (1) whether the <ORG> servant has a right to the post or the rank, or (2) whether he has been visited with evil consequences ; and if either of the tests is satisfied, it must be held that the <ORG> servant had been punished. Further, even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing actor which influences the <ORG> to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the <ORG> is whole irrelevant. The test for attracting Article 311(2) of the Constitution in such a case is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee (seen decision of this Court in <CITATION> the present case, however, the order of reversion does not contain any express words of stigma attributed to the conduct of the respondent and therefore, it cannot be held that the order of reversion was made by way on punishment and the provisions of Article 311 of the Constitution are consequently attracted. This view is supported by the decision of this Court <CITATION>  Supp. 1 S.C.R.; A.I.R. 1962 794, in which the respondent who held' substantive post of Inspector of Police and had been officiating as Deputy Superintendent of Police was reverted to his original rank Inspector without being given any opportunity of being heard in respect the reversion. His request to furnish him with reasons of his reversion refused. Later, a departmental enquiry was held behind his back in rest of certain allegations of misconduct made against him in a confidential communication from the District Superintendent of Police to the Deputy Inspector-General of Police but these allegations were not proved at the enquiry The Inspector-General of Police thereafter wrote to the <ORG> that respondent's previous record was not satisfactory and that he had been promoted to officiate as Deputy Superintendent of Police in the expectation that he would turn a new leaf but the complaint made in the confidential memorandum was a clear proof that the respondent was habitually dishonest and did not deserve promotion. As the order of reversion was maintained by the <ORG>, the respondent filed a suit challenging the order. The suit was decreed by the court of first instance and the decree was affirmed by <ORG> on appeal. On further appeal to this Court it was held that the reversion of the respondent on the ground of unsuitability was action in accordance with the terms of which the officiating post was be held and was not a reduction in rank by way of punishment to which Section 240 of the <ORG> of India Act, 1935, would be attracted. The appeal of the <ORG> was allowed and the suit of the respondent dismissed. A similar view was expressed by this Court in <CITATION> and <CITATION> . 1272 of 1966 decided on 12-1-1968.

6. We are accordingly of opinion that in the present case <ORG> was in error in holding that the reversion of the respondent from the post of officiating Income-tax Officer, class IT, to a lower position as inspector of income-tax was tantamount to a reduction in rank and that the respondent was entitled to the safeguards provided in Article 311 of the Constitution. For these reasons we hold that the judgment of <ORG> dated May 28, 1965, should be set aside and the writ petition filed by the respondent should be ordered to be dismissed. We accordingly allow the appeal. But there will be no order as to costs throughout.


PETITIONER: DR. <NAME> AND <NAME>. Vs. RESPONDENT: CHANCELLOR, NAGPUR UNIVERSITY AND <NAME>. DATE OF JUDGMENT21/08/1990 BENCH: <NAME>, P.B. BENCH: <NAME>, P.B. KASLIWAL, N.M. (J) CITATION: 1990 AIR 2023 1990 SCR (3) 883 1990 SCC (4) 55 JT 1990 (3) 552 1990 SCALE (2)338 ACT: Service Law: Nagpur <ORG> Act, 1974: Sections 32, 57(4)(a), 57(5), 67 and 76. <ORG> Teaching staff--Employment notice inviting applications-Reservation category-wise not post-wise/sub- ject-wise--Validity of--<ORG>'s interpretation of Rule--Declaration of that interpretation as bad--Effect of--From the beginning--Validity of termination orders. Administrative Law: Natural justice-Audi alterem partem-Sevices terminated due to change in law--Not on merits and/or misdemeanow--Whether hearing before termina- tion necessary. Practice and Procedure: Judicial decision--Overruling--Consequences of--Whether operates retrospectively--Value of precedent. Words & Phrases: "Post"--Meaning of. HEADNOTE: The respondent <ORG> issued an employment notice inviting applications for the posts of Professors, Readers and Lecturers in different subjects. The notice mentioned the number of reservations category-wise, but not subject- wise. Including the petitioners, a number of candidates belonging to both reserved and non-reserved categories applied. Selection Committees were constituted which recom- mended 47 candidates for 53 posts; weightage was given to candidates belonging to the reserved category. Thereafter <ORG> constituted a sub-Committee to decide which posts should be reserved. On its recommendations and on consideration of the backlog of reservations, <ORG> decided to set apart 17 posts and gave perma- nent appointments only to 30 candidates. It also decided that in respect of the 17 posts reserved, temporary appoint- ments would be made pending the availability of suitable candidates from the reserved category. On receipt of some representations expressing grievances against the employment notice as also the procedure followed in making the appointments, the Chancellor appointed a one- man Committee to in- 884 quire into the matter. The Committee submitted its report which was accepted by the Chancellor. Meanwhile, a batch of writ petitions was filed in <ORG> challenging the employment notice on the ground that the non-obtaining of the recommendation from the Board of <ORG> Teaching and Research before issuing the employment notice was bad in law in view of the provisions of Section 32(2)(iii) of the Act. <ORG> quashed the employment notice and set aside the appointments made to the posts. It also restrained the <ORG> from making any appointment without obtaining the recommendations as afore- said. Taking into consideration the report of the one-man committee and the decision of <ORG>, the Chancellor directed the Vice Chancellor to terminate the services of all the appointees including the appellants. Accordingly, the Vice-Chancellor issued orders of termination of the services of the appellants and other similarly appointed. Although the services were thus terminated, the Vice- Chancellor on the same day issued another order in exercise of his emergency powers under Section 11(4) of the Act and appointed all the appellants and others to the same posts protecting their pay and allowances and making it clear to the appointments were temporary. However the matter went before <ORG> since one <ORG> took the view that post-wise reservation was not necessary, and another <ORG> differed from it. The Full Bench held that general reservations were in breach of the provisions of the Act and against reservation policy and hence illegal. It also held that since the appointments were not in accordance with law from the beginning, the termination of the appellants' services was legal. Aggrieved, the appellants have preferred the present appeal against the decision of <ORG>. Dismissing the appeal, this <ORG>, HELD: 1. The employment notice dated July 27, 1984 was bad in law since it had failed to notify the reservations of the posts subject-wise and had mentioned only the total number of reserved posts without indicating the particular posts so reserved subject-wise. [893G] 2. The word "post" used in S. 57(4)(a) of the Nagpur <ORG> Act, 1974 has a relation to the faculty, disci- pline, or the subject for 885 which it is created. When therefore, reservations are re- quired to be made "in posts", the reservations have to be postwise, i.e., subjectwise. The mere announcement of the number of reserved posts is no better than inviting applica- tions for posts without mentioning the subjects for which the posts are advertised. When, therefore, Section 57(4)(a) requires that the advertisement or the employment notice would indicate the number of reserved posts, if any, it implies that the employment notice cannot be vague and has to indicate the specific post, i.e. the subject in which the post is vacant and for which the applications are invited from the candidates belonging to the reserved classes. A nonindication of the post in this manner itself defeats the purpose for which the applications are invited from the reserved category candidates and consequently negates the object of the reservation policy. That this is also the intention of the legislature is made clear by Section 57(4)(d) which requires the selection committee to interview and adjudge the merits of each candidate and recommend him or her for appointment to "the general posts" and "the reserved posts", if any, advertised. [891H; 892A-C] 3.1 It is common knowledge that the vacancies in posts in different subjects occur from time to time according to the exigencies of the circumstances and they arise unequally in different posts. There may not be vacancies in one or some posts whereas there may be a large number of vacancies in other posts. In such circumstances, it is not possible to comply with the minimum reservation percentage of 34 visa- vis each post. It is for this reason that the Government Resolution dated 30.3.81 states that although minimum per- centage of reserved posts may not be i"filed in one or some posts, it will be enough if in that year it is filled in, taking into consideration that total number of appointments in all the posts. This, however, does not absolve the ap- pointing authority from advertising in advance the vacancies in each post and the number of posts in such vacancies meant for the reserved category, and inviting applications from candidates belonging to the reserved and unreserved catego- ries with a clear statement in that behalf. In fact, the overall minimum percentage has to be kept in mind, as stated in the Resolution, at the time of issuing the employment notice or the advertisement as the case may be. [892H; 893A-C] 3.2 However, the course to be adopted would depend upon the unit of reservations, the period over which the backlog is to be carried, the number of appointments already made in the relevant posts, the availability of candidates from the reserved category etc. [893F] Dr. Raj Kumar v. Gulbarga <ORG>, I.L.R. 1990 KAR 2125, referred to. 886 4. In the instant case, there is nothing on record to show that the method of giving weightage to the candidates was not followed in respect of reserved category candidates even if they had not applied for the post in the reserved seats. There is also nothing on record to show whether any candidate belonging to the reserved category had applied for a particular post in a reserved seat, without the prior knowledge that the post was reserved. It is, therefore, difficult to understand as to how the selection committees proceeded to give weightage to the candidates without know- ing whether they had applied for reserved or nonreserved seats. What is more objectionable in the procedure was that its <ORG> proceeded to classify the posts in different subjects between reserved and non-reserved posts after the lists of selected candidates were received from different selection committee. This method was open to an obvious objection since it gave a scope to eliminate unwant- ed selected candidates at that stage. [891A-D] 5. When the court decides that the interpretation of a particular provision as given earlier was not legal it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. This being the case, since <ORG> and now this <ORG> has taken the view that the interpretation placed on the provisions of law by the <ORG> in <NAME>'s case was erroneous, it will have to be held that the ap- pointments made by the <ORG> on March 30, 1985 pursuant to that decision were not according to law. Hence, the termination of the services of the appellants was in compli- ance with the provisions of section 57(5) of the Act. [894B-D] 6. Since the services of the appellants are to be termi- nated in view of the change in the position of law and not on account of the demerits or misdemeanour of individual candidates, it is not necessary to hear the individuals before their services are terminated. The rule of audi alterem partem does not apply in such cass, and therefore, there is no breach of the principles of natural justice. [894D-E] 7. It seems, some of the appellants had resigned from their earlier jobs and joined the <ORG>. Some of them have become overaged for making any fresh application, while others will have no chance either because the posts as per the new advertisements of 1987 are reserved or non-reserved and they belong to the other category. It is recommended on compassionate grounds that the <ORG> may take into consideration the relevant facts pertaining to each of the appellants, and if it is possible, accommodate them without transgressing the law and the claim of other eligible candi- dates. [894F-G] 887 JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1451 of 1988.

From the Judgment and Order dated 14.3.88 of <ORG> in W.P. No. 1033 of 1987.

<NAME>, <NAME> and Dr. <NAME> for the Appellants.

<NAME>, Ms. <NAME> and <NAME> for the Respondents.

<NAME> for the <ORG>.

The Judgment of the Court was delivered by <NAME>, <NAME> The two questions raised in this appeal are:

(i) Whether the employment notice issued by the respondent <ORG> on July 27, 1984 ought to have indicated reserva- tions postwise, and

(ii) Whether, assuming that the said notice was invalid the termination of services of the appellants on April 21, 1987 was valid?

2. The University issued the employment notice in ques- tion inviting applications for a total of 77 posts which included 13 posts of Professors, 29 posts of Readers and 35 posts of Lecturers in different subjects ranging from Eco- nomics, Politics and Sociology to Physics, Pharmacy and Geology. The notice mentioned total number of reservations categorywise but not subjectwise as follows: Professors - Scheduled Castes-3, Scheduled Tribes-2 and VJ/NT- 1 Readers - Scheduled Castes-6, Scheduled Tribes-4 and VJ/NT-2 Lecturers - Scheduled Castes-7, Scheduled Tribes-5 and VJ/'NT-4 A number of applications were received for the posts from candidates including the petitioners belonging to both reserved and nonreserved castes for all the three categories of posts, viz., Professors, Readers and Lecturers. This advertisement was corrected by Corrigendum of February 1, 1985. Thereafter, a further employment notice for additional posts in all the three categories was issued on August 1, 1985 but we are not concerned with the same. Different selection committees in all 53 in number were constituted and they recommended 47 candidates for 53 posts. It appears that while recommending the selections, the committees also gave weightage to the candidates belonging to the reserved castes. Thereafter, <ORG> constituted a sub-committee to decide which posts should be reserved for the reserved castes. On the recommendation of the sub-committee and after taking into consideration the backlog of reservations, <ORG> decided to keep apart 17 posts and made permanent appointments only to 30 out of 47 candidates by its appointment orders issued on March 30, 1985 for the academic year 1985-86. As regards 17 posts which were kept apart for reserved candidates, it decided to fill in the same by temporary appointments for those posts pending the availability of the suitable candi- dates from reserved castes.

3. It appears that against these appointments some social workers and organisations made representations to the Chancellor making a grievance both against the employment notice as well as the procedure followed in making the said appointments. By his order dated February 22, 1986, the Chancellor appointed a one-man committee under Section 76 of the Nagpur University Act, 1974 (hereinafter referred to as the 'Act') to inquire into the matter. The committee submit- ted its report on September 24, 1986 which was accepted by the Chancellor.

4. In the meanwhile, a batch of writ petitions was filed in <ORG> challenging the employment notice on the ground that the non-obtaining of the recommendation from <ORG> ('<ORG>' for short) before issuing the employment notice was bad in law in view of the provisions of Section 32(2) (iii) of the Act. <ORG> accepting this contention quashed the employment notice and set aside the appointments to the posts which were challenged in those petitions. In all the petitions the Court also restrained the <ORG> from making any ap- pointment without obtaining the recommendations from the <ORG>.

Taking into consideration both the report of the one-man committee and also the decision of <ORG>, the Chancellor directed the Vice-Chancellor to terminate the service of all the appointees including the appellants and accordingly the Vice-Chancellor issued orders of termination of services of the appellants and others similarly appointed on April 21, 1987. The termination orders mentioned four grounds as follows:

(a) the reservation policy adopted by the <ORG> was contrary to Section 57 of the Act;

(b) the decision of <ORG> allocating all reserved posts to <ORG> posts were arbitrary and dis- criminatory;

(c) the University had failed to comply with the mandatory provisions of Section 32 of the Act since it had not con- sulted the BUTR; and

(d) that the employment notice was not in accordance with law.

It may be mentioned here that although the services were thus terminated by the said order the Vice-Chancellor on the same day issued another order in exercise of his emergency powers under Section 11(4) of the Act and appointed all the appellants and others to the same posts protecting their pay and allowances at the same time making it clear that the appointments were temporary.

We are concerned in this appeal only with two grounds as stated at the outset. The third ground, viz., whether the recommendations of BUTR were mandatory before the issuance of the employment notice was not pressed before the Full Bench from which the present appeal arises. It appears that on the first ground, viz., whether the general reservation instead of the postwise reservation was illegal, there was a difference of opinion between two Division Benches of <ORG>. One Division Bench in Writ Petition No. 1876 of 1984 (hereinafter referred to as the '<NAME>'s case' (decid- ed on December 7, 1984 took the view that the postwise reservation was not necessary whereas another Division Bench differed with the said view and sent the papers to the learned Chief Justice for referring the matter to a larger Bench and the issue referred to the larger Bench was as follows:

"Is non-reserving the posts of University teachers subject- wise in the employment notice a breach of letter and spirit of reservation policy contained in Section 77C read with Section 57 of the Act?"

That being the only issue, <ORG> was really called upon to answer it alone. However, thereafter by the the consent of parties one more issue was raised before <ORG> which is the second of the two questions which we have to decide in this appeal, viz., whether, notwithstand- ing the illegality of the general reservation, the services of the appellants were liable to be terminated. On the first issue, <ORG> held that general reservations were in breach of the provisions of the Act and against the reserva- tion policy and, therefore, illegal. On the second issue, by majority <ORG> held that since the appointments were not according to law from the beginning, 'the termina- tion of the appellants' services was legal.

6. As regards the first question, we have narrated earlier the method which was adopted by the <ORG> for reserving the posts. It announced the posts categorywise as Professors, Readers and Lecturers in different subject and made a blanket declaration that 6 of the posts of Professor, 12 of the posts of Readers and 16 of the posts of Lecturers would be reserved for backward castes. Neither the Universi- ty nor the candidates knew at that time as to for which of the subjects and in what number the said posts were re- served. The result was that the candidates belonging to the reserved category in particular, who wanted to apply for the reserved posts did not know for which of the posts they could apply and whether they could apply at a11 for the posts in the subjects in which they were qualified. That this could be the expected consequence of such an employment notice can legitimately be inferred and need not be and indeed cannot be, demonstrated by evidence of what actually happened, for there may be number of candidates who on account of the said uncertainty might have refrained from applying for the posts as against those who applied to take a chance. What is further, the selection committees which were appointed to interview the candidates for the respec- tive posts did not also know whether they were interviewing the candidates for reserved posts or not, and to assess merits of the candidates from the reserved category as such candidates. The contention advanced on behalf of the appel- lants that the selection committees even without know wheth- er the posts concerned were reserved or not, had given weightage to the candidates from the reserved category and, therefore, it cannot be said that any injustice had resulted to them is without merit. In the first instance, the conten- tion proceeds on the footing that all those belonging to the reserved category who wanted to apply for a11 the said posts had done so even without knowing that the concerned posts were reserved. Secondly, it also presumes that all eligible candidates from unreserved category had applied for the posts without knowing whether the posts were reserved or not. The possibility that many eligible candidates belonging to both reserved and unreserved categories might not have taken the risk and chosen to gamble cannot be ruled out. This argument further ignores the fact that the suitability of a candidate from a reserved category to the particular post has to be adjudged by taking into consideration various factors and the desired result cannot be obtained by merely giving uniform weightage marks to the candidates concerned which was the only method followed by the selection committees while selecting the candidates. Further, there is nothing on record to show that this method of giving weightage to the candidate was not followed in respect of reserved category candidates even if they had not applied for the post in the.reserved seats. What is more, there is also nothing on record to show wheth- er any candidates belonging to the reserved category has applied for a particular post in a reserved seat, without the prior knowledge that the post was reserved. It is, therefore, difficult to understand as to how the selection committees proceeded to give weightage to the candidates without knowing whether they had applied for reserved or nonreserved seats. What is more objectionable in the proce- dure was that its <ORG> proceeded to classify the posts in different subjects between reserved and non- reserved posts after the lists of selected candidates were received from different selection committees. This method was open to an obvious objection since it gave a scope to eliminate unwanted selected candidates at' that stage. Whether it occurred in the present case or not is immaterial for testing the validity and the propriety of the method followed by the <ORG>. As has been stated earlier, in fact, after the receipt of the list of selected candidates not only the <ORG> constituted yet another committee to decide which of the subjectwise posts should be reserved or not but the <ORG> also decided that although candidates for 47 posts were selected only 30 of them should be appointed permanently. The latter included some backward class candidates for reserved posts so catego- rised later. But 17 of the posts were set apart although the candidates were selected for them, and they were so set apart for being filled in afresh by candidates belonging to the reserved category. Interestingly, however, the employ- ment notice issued subsequently for these 17 posts mentioned reservations postwise (subjectwise).

7. The argument based on Section 57(4)(a) of the Act to support the procedure adopted by the <ORG> is, accord- ing to us, not well merited. The contention is that since Section 57(4)(a) requires the <ORG> to state in the advertisement only the total number of posts and the number of reserved posts and not postwise, i.e., subjectwise, the employment notice in question was not bad in law. According to us, the word "post" used in the context has a relation to the faculty, discipline, or the subject for which it is created. When, therefore, reservations are required to be made "in posts", the reservations have to be postwise, i.e., subjectwise. The mere announcement of the number of reserved posts is no better than inviting applications for posts without mentioning the subjects for which the posts are advertised. When, therefore, Section 57(4)(a) requires that the advertisement or the employment notice would indi- cate the number of reserved posts, if any, it implies that the employment notice cannot be vague and has to indicate the specific post, i.e., the subject in which the post is vacant and for which the applications are invited from the candidates belonging to the reserved classes. A non-indica- tion of the post in this manner itself defeats the purpose for which the applications are invited from the reserved category candidates and consequently negates the object of the reservation policy. That this is also the intention of the legislature is made clear by Section 57(4)(d) which requires the selection committees to interview and adjudge the merits of each candidate and recommend him or her for appointment to "the general posts" and "the reserved posts", if any, advertised.

8. A support was also sought to be derived by the appel- lants to their contention from the policy of reservation as enunciated in <ORG> Resolution dated March 30, 1981 wherein instructions were issued in the matter in exercise of the power conferred on the <ORG> under Section 77(c) of the Act. The contention was that since in para 3(b) of the said Resolution it is stated that "similarly, at any given time of recruitment to the teaching posts, only the total number of reserved vacancies and the sections from which they are to be filled in should be determined. It would be enough if the required percentage is fulfilled as a whole and not with reference to any particular post. If the reserved vacancies cannot be filled, then so many posts as cannot be filled in, may be kept vacant for six months and should be again advertised thrice. If, even after readver- tising the posts three times, suitable candidates belonging to the reserved category do not become available, they may be filled in by candidates belonging to the "open category". We are afraid that this interpretation placed on the afore- said contents of the <ORG> Resolution stems from their misreading. Read in the context in which the said contents appear, it is clear that what is sought to be conveyed by them is that although at any given time the total percentage of reservation, viz. 34 is not made up vis-a-vis particular post or posts, it would be an enough compliance with the Resolution if the total number of vacancies filled in all the posts together conform to the said percentage. It is common knowledge that the vacancies in posts in different subjects occur from time to time according to the exigencies of the circumstances and they arise unequally in different posts. There may not be vacancies in one or some posts whereas there may be a large number of vacancies in other posts. In such circumstances, it is not possible to comply with the minimum reservation percentage of 34 vis-a-vis each post. It is for this reason that the Resolution states that although minimum percentage of reserved posts may not be filled in one or some posts, it will be enough if in that year it is filled in taking into consideration the total number of appointments in all the posts. This, however, does not absolve the appointing authority from advertising in advance the vacancies in each post and the number of posts in such vacancies meant for the reserved category, and inviting applications from the candidates belonging to the reserved and unreserved categories with a clear statement in that behalf. In fact, the overall minimum percentage has to be kept in mind, as stated in the Resolution, at the time of issuing the employment notice or the advertisement as the case may be.

On behalf of the appellants reliance was also sought to be placed on a <ORG> decision of <ORG> in Dr. <NAME> v. <ORG>, AIR 1990 KAR 2 125. We do not see how the decision in question helps the appellants, for the <ORG> has observed there that general reservation has to be cadrewise and subjectwise. But an exception could possibly be made in cases like the one of professors in which post available in each of the subjects is only one while grouping all of them together for purposes of reservation so that at least in the subjects in which the candidates belonging to the reserved category are available, they could be accommodated. It is not necessary for us in this case to express our opinion on the correct course to be adopted when only one post is available in a particular subject at a given time. The course to be adopted would depend upon the unit of reservations, the period over which the backlog is to be carried, the number of appointments already made in the said posts, the availability of candi- dates from the reserved category etc. What is material from our point of view in this case is to point out that even the Karnataka <ORG> has taken the view that generally reservation had to be cadrewise and subjectwise. It was also a case of the filling in of the vacancies in teaching posts in a <ORG>.

We are, therefore, in complete agreement with the view taken by <ORG> that the employment notice dated July 27, 1984 was bad in law since it had failed to notify the reservations of the posts subjectwise and had mentioned only the total number of reserved posts without indicating the particular posts so reserved subjectwise.

9. The second contention need not detain us long. It is based primarily on the provisions of Section 57(5) of the Act. The contention is that since the provisions of that section give power to the Chancellor to terminate the services of a teacher only if he is satisfied that the appointment "was not in accord- ance with the law at that time in force" and since the law at that time in force, viz., on March 30, 1985 when the appellants were appointed, was the law as laid down in <NAME>'s case (supra) which was decided on December 7, 1984, the termination of the appellants is beyond the power of the Chancellor. The argument can only be described as naive. It is unnecessary to point out that when the court decides that the interpretation of a particular provision as given earli- er was not legal, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. This being the case, since the Full Bench and now this Court has taken the view that the interpretation placed on the provisions of law by <ORG> in <NAME>'s case (supra) was erroneous, it will have to be held that the appointments made by the <ORG> on March 30, 1985 pursuant to the law laid down in <NAME>'s case (supra) were not according to law. Hence, the termination of the services of the appellants were in compliance with the provisions of Section 57(5) of the Act. When, therefore, the services of the appellants are to be terminated in view of the change in the position of law and not on account of the demerits or misdemeanour of indi- vidual candidates, it is not necessary to hear the individu- als before their services are terminated. The rule of audi altrem partem does not apply in such cases and, therefore, there is no breach of the principles of natural justice. In the result. we are of the view that there is no merit in this case. The appeal, therefore, stands dismissed. In the circumstances of the case, however, there will be no order as to costs.

10. However, it is pointed out to us that some of the appellants had resigned from their earlier jobs and joined the <ORG>, some of them have become overaged for making any fresh application while others will have no chance either because the posts as per the new advertisement of 1987 are either reserved or non-reserved and they belong to the other category. We can, therefore, only recommend that the <ORG> may take into consideration the relevant facts pertaining to each of the appellants, and if it is possible, accommodate them without transgressing the law and the claims of other eligible candidates. We make it clear that this recommendation is not a direction and is made purely on compassionate grounds. It is to be followed only if it is possible for the <ORG> to do so without giving rise to further litigation by candidates who may be ag- grieved on that account.

G.N. Appeal dismissed.


<NAME>, C.J.

1. The plaintiff instituted these suits between the 6th and 10th days of September 1910, as found by the Subordinate Judge, having been born according to his own case on the 10th September 18.89. He thus delayed to bring the suit until a few days before the expiry of three years from the date when he says he attained majority, viz., the 10th September 1907, and the burden is thrown on him of proving that he was born on that date, a burden which the Subordinate Judge finds he has failed to discharge. The plaintiff and the defendants are members of divided branches of one family. Defendants No. 4 to 7 are the sons of <NAME>, a <NAME> very well known in his day. The plaintiff and the defendants Nos. 1 to 3 are descended from his elder brother <NAME>, defendants Nos. 1 to 3 being descended from <NAME>, one of <NAME>'s sons, while the plaintiff is descended from another brother; and according to his own case, which the Subordinate Judge has found to be true, was adopted by one <NAME> who was descended from yet another son of <NAME>. Though they were divided, the families remained closely connected and the plaintiff's case is that his affairs were managed during his minority under the directions of <NAME> and of the 1st defendant <NAME>, and his adoptive father had an account both with <NAME> and with <NAME>. The defendants have contented themselves with setting up the manifestly false case that he was born two years earlier than he says, whereas we find them suing him as a minor in as late as July 1907, just as they falsely denied his adoption. The plaintiff's natural mother was examined on commission more than a month before the trial and was unable to say exactly when he was born. She said the adoption took place about 15 years ago, which would be 18(sic)5, and deposed in cross-examination that the plaintiff was 10 years old and would then (July 1910) be 22-23, adding Females do not know to say exactly if they are questioned much." His adoptive mother, whom he alleges to be under the influence of the defendants, was not called. At the trial it was proved that on the 30th September. 1907, the plaintiff filed in <ORG> an affidavit, Exhibit A, in which he stated that he had attained majority on 10th September 1907, having been born on the 10th September 1889. The petition was not opposed by <NAME>, his adoptive mother and next friend, and he was accordingly brought on record as a major. No one has been able to suggest any reason why he should have wilfully post-dated his birth in September 1909, but the question is whether the date is legally proved. All that the 4th plaintiff's witness can say is that the plaintiff was born about 7 or 8 months after the birth of his own son in Sarvathari Margali and this is, as the Subordinate Judge observes, too vague to be of any use. There are documents, as the Subordinate Judge observes, which show that the plaintiff must have been born after the 6th July and before the 30th September 1889, but this again is not enough. As regards the plaintiff's own statement in evidence and in the affidavit Exhibit A, the Subordinate Judge does not appear to question its admissibility and it would appear to be admissible under Section 21(1) read with Section 32(5) of the Indian Evidence Act if made by a person having special means of knowledge, and It appears to be settled that such knowledge need not be personal knowledge but may be derived from hearsay. But even if admissible, the statement of the party himself at the trial would be of very little weight, if it were not supported by his statement in Exhibit A made ante litem motam, at a time when the plaintiff had no interest in representing himself as younger than he was. The Subordinate Judge says it appears to have been made with a motive which it is indeed difficult to divine at present, and goes on to suggest that it may have been made because he anticipated objection by his adoptive mother to an application to draw money deposited in <ORG>, but such a motive would make, him represent himself as older and not as younger than he really was and would go to show that his birthday may possibly have been later but not earlier than the date he gave according to which his suit is in time. We have, however, still to see whether his statements as to his birthday were statements made with special knowledge. A European may be presumed to know his own birthday as a matter of course, but it is denied that there is any such presumption in the case of Hindus of this class, and his natural mother apparently did not remember it. It becomes necessary, therefore, to examine the sources of information given by him in Exhibit A. He mentions his natural mother and elder brother as his informants but the mother apparently does not remember what his birthday was, and his elder brother has not been called. He also refers to a horoscope "prepared as directed by my natural father and in my possession" but this horoscope, Exhibit C, has been criticized by the Subordinate Judge and by my learned brother, who are in a better position to judge than I am, and I am not prepared to differ from their opinions that no reliance can be placed on it. I also agree with them that the evidence of the witness who speaks to Exhibit O, is exceedingly unsatisfactory. As, therefore, the sources of information put forward by the plaintiff do not support his statement as to his birthday, and as on the evidence in the case no presumption arises that his birthday was accurately known to him, I am not prepared to differ from the conclusion of the Subordinate Judge and my learned brother, that the plaintiff has failed to prove that the suit is not barred. In this view it is unnecessary to discuss the evidence on the main issue, and I will only say that the established facts that the plaintiff was charged in Exhibit II, an account between the plaintiff and the A.L.A., R. branch, with the cost of the village and that he has always paid poruppu on it raise a presumption in his favour which, I am inclined to think, has not been satisfactorily met. In the result the appeal fails and is dismissed with costs.

2. As regards Appeal No. 220 of 1912 and the Memoranda of Objections in these appeals I agree with the judgment of <NAME>, J.

<NAME>, J.

3. The case for the plaintiff is that the village in dispute is the private property of his adoptive father <NAME> alias <NAME> and that after the death of his father in May 1896, the 1st defendant took possession of if with the) consent of his adoptive mother. He now sues to recover it. The defence is that the property was endowed by <NAME>, to <ORG>, that the late <NAME> was the trustee during his lifetime and that after his death, the 1st defendant took possession of the village for and on behalf of the temple. The 1st defendant also pleads that as at the date of the suit the plaintiff was more than 21 years of age, the suit is barred by limitation. I shall deal with this last contention at the end, as it is common to this and another appeal.

4. On the main question, whether the suit village is the private property of the plaintiff, after giving my very careful consideration to the arguments of Mr. <NAME>, I am unable to differ from the learned Subordinate Judge whose knowledge of <NAME> litigation is unrivalled in this Presidency.

5. The plaintiff has no title-deed. It is common ground that <NAME> conveyed this village and Siruvali to one <NAME> under Exhibit IVa in 1890; <NAME> was only a benamidar. At the date of the conveyance, a suit, was pending to set aside an alienation made by <NAME> in respect of this village. It is in evidence that <NAME> was interesting himself in that litigation. We do not hear anything about <NAME> in that connection. If <NAME> was a benamidar, it looks he was so on behalf of <NAME> only. It is conceded by the plaintiff that the second village covered by Exhibit IV was given away by <NAME> to another temple, <ORG>. This goes a great way to support the defendants' case. The next piece of evidence is Exhibit VIII. There was considerable discussion regarding its admissibility. It was a deposition of <NAME> in the suit brought by the zamindar, at the instance of the general lessees of Siyaganga to set aside the alienation of the village by <NAME>. <NAME> had entered into an arrangement with the lessees to have the property conveyed to him by the zamindar, if the suit was successful. It was under these circumstances that he gave evidence in the case. His deposition in so far as it is relevant to this case is in these terms.--"I have given away to <ORG> Devastanam Siruvali village which is one of the two villages in dispute. I have given the other village called Pannipullam to the Kandadevi Devastanam." Now the question is whether this is a statement against the interest of the deponent. Section 19 of the Indian Evidence Act, Mr. <NAME> relied on, has no application. The statement must come, if admissible, under Clause 3 of Section 32 . In <NAME> v. <NAME>, <NAME> v. <NAME> (1876) 3 Ch. V. 605 : 45 L.J. Ch. 708 : 24 W. W B. 877 <NAME>, Master of the Rolls, says:

It is, no doubt, an established rule in the Courts of this country that an entry against the interest of the man who made it is receivable in evidence after his death for all purposes. What is the meaning of its being against his interest? I adopt the view of Mr. Baron <NAME> in the case of Reg. v. Lower Heyford 2 Sm. L.C. 7th Ed. 333 (11th Ed. 339) that it must be prima facie against his interest, that is to say, the natural meaning of the entry standing alone must be against the interest of the man who made it'.

6. In <NAME> v. <NAME> (1879) 13 Ch. D. 558 : 49 L.J. Ch. 76 : 41 L.T. 788 : 28 W.R. 212 Vice-Char.cellor Hall introduced a qualification to the effect that "in order to be admissible as a declaration against interest, the entry must, I take it, be one which under no circumstances could operate for the advantage or benefit of the party who made it."

7. In Ex parte <NAME>, In re Tollemache (1884) 14 Q.B.D. 415 <ORG> remarked that the statement to be receivable in evidence must have been against the interest of the person at the time of making it and "not an admission which may or may not turn out at some subsequent time to have been against his interest."

8. In <NAME> v. <ORG> (1912) 2 K.B. 317 : 81 L.J.K.B. 668 : 106 L.T. 669 : (1912) W.C. Rep, 238 Lord Justice <NAME> added a further qualification that, It must be shown that the statement was to the knowledge of the deceased contrary to his interest."

9. IN this state of authorities, the question came up for consideration before <ORG> in <NAME> v. <ORG>; <NAME> v. <ORG> (1913) 2 K.B. 130 : 82 L.J.K.B. 533 : (1913) W.C. & I. Rep. 355 : 108 L.T. 201 : 57 S.J. 301 : 29 T.L.R. 291. The statement which was sought to be put in related to the acknowledgment of paternity and a promise made by the deceased to marry the mother of the child, who claimed compensation under the Workman's Compensation Act " as a dependent on the deceased. Lord Justice <NAME>, after making an incidental observation that as between the dicta of <NAME>, J., in <NAME> v. <NAME> (1867) 2 Q.B. 326 : 8 B.& S. 157 : 36 L.J.Q.B. 156 : 15 W.R. 492 that the statement must be one which never could be made available for the person himself, and that of <NAME>, <NAME>, that it is sufficient that the statement is prima facie against the interest of the person making it, he was inclined to the former view, "if there is any real difference between them,"--proceeds to lay down categorically the tests of admissibility of statements against interest. According to the learned Lord Justice, (a) the deceased must have had personal knowledge of the facts he was stating, (6) the fact should have been to the deceased's immediate prejudice, (o) the statement must have been, to the knowledge of the deceased, contrary to his interest, and (d) the interest must be either pecuniary or proprietary. The case went up to <ORG>. Lords <NAME> and <NAME> apparently accepted the statement of the law as laid down by <ORG>; but Lord <NAME> was not prepared to agree with it. See <NAME> v. <ORG> (1914) A.C. 733 : 88 L.J.K.B. 1054 :. (1914) W.C. & I. Rep. 450 : 111 L.T. 338 : 58 S.J. 514 : 30 T.L.R. 456. The other learned Lords made no comment on this point. The statement was held admissible by the whole <ORG> on another ground.

10. Accepting in their entirety the qualifications suggested by Lord Justice <NAME> in <NAME> v. <ORG>; <NAME> v. <ORG> (1913) 2 K.B. 130 : 82 L.J.K.B. 533 : (1913) W.C. & I. Rep. 355 : 108 L.T. 201 : 57 S.J. 301 : 29 T.L.R. 291, I am of opinion that the statement in Exhibit VIII is receivable in evidence. It fulfills all the four conditions suggested by the Lord Justice. It was undoubtedly against the proprietary interest of the person making it. Mr. <NAME> contended that this statement may at some future time be availed of by the maker to claim the trusteeship. I do not think this criticism has any force. Even Mr. Justice <NAME>'s very stringent requirement seems to be satisfied in this case. Lord Justice <NAME> in <NAME> v. <ORG> (1912) 2 K.B. 317 : 81 L.J.K.B. 668 : 106 L.T. 669 : (1912) W.C. Rep, 238 points out: Such declarations were admitted as evidence in our jurisprudence on the ground that declarations made by persons against their own interests are extremely unlikely to be false."

11. In this view, it seems to me that the statement, Exhibit VIII, is a very valuable piece of evidence in this case. As pointed out in Smith's Leading Cases, Volume II, 12th Edition, at page 316: It is now, however, well settled that declarations of deceased persons against their interest, pecuniary or proprietary, are receivable not only to prove so much contained in them as is adverse to the interest, but to prove collateral facts stated in them; at all events, so far as relates to facts which are not foreign to the declarations, and may be taken to have formed a substantial part of them; see per <NAME>, C.J., in Reg. v. Birmingham Overseers 1 B.& S. 763 : 31 L.J.M.C. 63 : 8 Jur. (N.S.) 37 : 5 L.T. 309 : 10 W.R. 41 : 121 E.R. 897, where a parol declaration by the deceased father of a pauper's husband as to his occupation of a tenement as tenant at a certain rent was held to be admissible to prove the pauper's statement; and per <NAME>, C.B., in <NAME> v. <NAME> 7 H. & N. 786 at p. 795 : 31 L.J. Ex. 257 : 8 Jur. (N.S.) 121 : 5 L.T. 802 : 10 W.R. 250." The statement is, therefore, evidence that the property had been given away. It also negatives proprietorship at the time of the deposition in the plaintiff's father. I might refer to one Indian decision before leaving this part of the case. <CITATION> 31 C. 965 the statement that there was a tenant on the land was regarded as one against the proprietary interest of the landlord. For all these reasons I am of opinion that the statement in question is receivable in evidence. It was made at a time when <NAME> is not shown to have had any interest adverse to that of the plaintiff's father. Further, one of the facts mentioned in that statement is now admitted, to be true.

12. The next piece of evidence which tells very much against the plaintiff, is that no document passed between his adoptive mother and the 1st defendant when the village passed into the latter's possession. It is impossible to believe that private property would have so easily been surrendered without protest. 1 do not believe the suggestion that the adoptive mother is inimical to the plaintiff. Was she inimical when her husband died? There is absolutely no evidence to support this suggestion. On the other hand, the fact that at this time the widow took Exhibit III to evidence the assignment of Vengalur and Exhibit G for the assignment of the lease right in the Devastanam villages negatives ill-will and shows that the village was given up without any document, because there was no proprietary interest in it. Again, it is admitted that the 1st defendant never rendered nor was asked to render an account of the income from this village. If the village was private property it is incredible that such a thing could have happened. The widow has not been examined in the case to show under what circumstances she parted with possession.

13. As against these facts, the plaintiff relies on Exhibits D, R, S, T and Hand the payment of poruppu by him. Exhibit D is headed "Purchase account." The first entry is in 1892. That entry states that a sum of Rs. 392 and odd was debited against the village of Pannipullanvayal. There is no evidence whether this sum included the price paid for the purchase. However that may be, the document is unreliable for more reasons than one. If, as Mr. <NAME> contended and, as the heading implies, it is a separate ledger relating to the purchase of the suit village, the entries relating to the payment of poruppu in 1900 and to the payment of kist in 1907 should find no place in it. If, on the other hand, it is a general ledger of all transactions relating to the village, there ought to be more entries about the payment of poruppu and about the expenses of cultivation, etc. I am unable to place any reliance on this document. Exhibit R is the day book of the plaintiff. It contains an entry about the Rs. 392, corresponding to Exhibit D. This document takes the case no further. Exhibit S, which is a continuation of Exhibit R, on the other hand, tends to show that the village was dedicated to the temple. In more than one place in that document, the credits are entered as received "through the accountant of Kandadevi." Debits through the temple accountant are also made. One entry in page 72 looks as if articles for pooja were purchased for the temple. There is no satisfactory explanation for introducing the name of the temple accountant, if the village was not an endowment. Exhibit T, the ainthugai account, does include this among the properties of <NAME>. An ainthugai account among <NAME> is an account of the properties in the possession of a person. Non constant that it would not include properties held by him on trust. A general account of assets might include private as well as trust properties. Exhibit II was strongly relied on. It is the plaintiff's account in <ORG>'s ledger. This undoubtedly shows that <ORG> had no claim to the property and that he debited the plaintiff's father with the sum of Rs. 392 in respect of the plaint village. I do not think this is evidence that it was the private property of the plaintiff. My surmise is that <NAME> wanted to have the credit of being the donor of this property to the Kandadevi temple, seeing that his pangali endowed <NAME> with property worth four times as much, and agreed to debit himself with the cost of its purchase; unfortunately all the persons who could speak to what took place at or about 1890 are dead. The fact that <NAME>'s widow never claimed the surplus proceeds of this village from the 1st defendant strongly corroborates this opinion. However that may be, I do not think the evidence I have discussed is sufficient to discharge the burden, which is strong on the plaintiff, that the village is the private property of his adoptive father. I agree with the Subordinate Judge on this question.

14. I wish to say a few words on the question of limitation. The plaintiff has to prove that he was within time when he instituted the suit. He relies on Exhibit A, an affidavit made by him in September 1907, in which he gives his date of birth as the 10th September 1889. This document is spoken to by the plaintiff and, therefore, is corroborative evidence of what he deposes. It can have no higher value. It is not independent evidence Now, on examining Exhibit A, the first thing that strikes one is the laboured particularity of the statements contained in it. Ordinarily an affidavit would state that a man was born in a particular year and that he attained majority on the date of the application. Here we have a reference to the horoscope "prepared as directed by my natural father and in my possession." Then there is a statement that the natural mother and elder brother gave him information about the date of his birth. The natural mother was examined and she was not asked whether she gave any such information. The elder brother has not been examined at all. This document is of no higher value than the deposition of the plaintiff. It is true that there is no explanation on the defendants' side for the plaintiff having made these statements, if they are false, in this affidavit. I do not think that absolves the plaintiff from proving that the affidavit was made under the circumstances mentioned' in if. As regards the horoscope, Exhibit C, I have not the slightest hesitation in holding that it is altogether unreliable. I agree with Mr. <NAME> that a horoscope is receivable in evidence under Clause (5) of Section 32 ' of the Evidence Act . I do not think that either Clause (2) or Clause (6) covers it. <CITATION> 17 M. 134 : 4 M.L.J. 86 a horoscope was admitted in evidence. In <NAME> v. <NAME> 31 Ind. Cas. 637 : 19 C.W.N. 787 (P.C.) we have the authority of <ORG> in support of its admissibility. But I think Mr. <NAME> is fight in contending that the party making it must have had special means of knowledge. The evidence of P.W. No. 10 is worthless. We have to depend upon his ipse dixit that Exhibit C is in his father's writing. No documents have been produced for comparison. The astrologer was living 8 miles away from Devakotta and no satisfactory explanation is given for having gone to Ariakudi in search of an astrologer. There is nothing to show that the father of P.W. No. 10 had any special means of knowledge. Exhibit C is further an extraordinary document for a horoscope. In the rasi chakaram, only two planets are entered. All the other seven are left out. The dasabukti at the date of the birth is not given. The horoscope does not begin and end in the usual way. I am unable to place any reliance on this document. Exhibit L, a copy supposed to have been kept by P.W. No. 10, is of a piece with the evidence of P.W. No. 10, and I reject it unreservedly. The plaintiff relies on Exhibits F, G, and FF. F and G are documents executed by the plaintiff to the defendant. Exhibit FF is a plaint in which the plaintiff is described as a minor. As against this we have the deposition of the plaintiff's mother who supports the suggestion that the plaintiff was born in 1887. There is also the evidence of the 1st defendant. What presses the most is the absence of the elder brother from the witness-box and the failure to elicit from the mother as to when he was born and after how many children. I do not think the plaintiff has proved satisfactorily that he is within time. On the merits and on limitation, I hold the plaintiff's case must fail.. I would dismiss the appeal with costs of respondents Nos. 1 to 3.

15. I shall very briefly deal with Appeal No. 220 of 1912. The claim is for the balance of nuzzur due for the assignment of lease rights in certain villages. The assignment was in 1896. There was no document on that date. The amount settled was Rs. 3,700 and odd. Admittedly Rs. 1,700 and odd was paid. The defendant's plea is that there was <NAME> due to the lessor on the date of the transfer to the extent of Rs. 2,000, that he discharged that debt and that consequently nothing is due to the plaintiff. Five years after the assignment, in 1901 Exhibit III was executed by the 1st defendant in which reference is made to his liability to pay <NAME> for 1895. I regard this as part of the arrangement for releasing the claim for the balance of the nuzzur. Exhibit III does not say that anything more was due to the widow on that date. I see no difficulty in accepting the explanation of the 1st defendant in the witness-box, which bears the impress of truth on it and is in accordance with the probabilities. If any portion of the nuzzur remained due, a demand would have been made for it. I do not agree with the learned Subordinate Judge in saying that the 1st defendant's evidence should not be accepted. The claim appears to be a stale one. The appeal must be dismissed with costs.

16. The Memoranda of Objections in the two appeals are not pressed and are dismissed with costs.