judgement:
Appeal No. 78 of 1954.
Appeal from the judgment and decree dated April 17, 1950, of the Bombay High Court in Appeal No. 642 of 1949, arising out of the judgment and decree dated July 30, 1949, of the Court of Civil Judge, Senior Division, Ahmedabad in Suit No. 10 of 1946.
Purshottam Tricumdas, M. H. Chhatarpati and section section Shukla, for the appellants.
H. N. Sanyal, Additional Solicitor General of India and I. N. Shroff, for the respondent.
March 21.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
This is an appeal by the plaintiffs against the decree passed by the High Court of Bombay dismissing their suit to recover from the defendant Rs. 1,52,334 8 9 as damages for breach of contract for non delivery of certain cotton goods.
The plaintiffs ' claim had been decreed by the trial court but on appeal it has been dismissed.
The appellants are the partners of M/S. Navinchandra & Co. This partnership had placed an order with the respondent for 251 bales of printed chints on or about July 4, 1942, and the said order had been accepted by the respondent by its letters dated July 1 1 and July 20, 1942.
The delivery period for the said goods was fixed for the months of September and October, 1942.
Another order was placed by the 215 appellants with the respondent for 31 bales of printed chints on July 24, 1942, and this order was accepted by the respondent on July 25, 1942.
The delivery of these goods was to be given in the month of October 1942.
On August 9, 1942, the workers in the respondent mills went on strike in sympathy with the Quit India, movement which had then commenced.
In consequence, the respondent wrote to the appellants ' firm on August 15, 1942, and stated that, in view of the strike and the political situation, the delivery time of all the pending contracts should be automatically understood as extended for the period the working of the mills was stopped and until the normal state of affairs recurred.
The strike came to an end and the mills resumed working on November 22, 1942.
On December 5, 1942, Jasubhai, who was then in charge of the management of the mills was approached by the appellants, Keshavlal and Ratilal, for obtaining delivery of the goods.
He, however, told them that the appellants ' contracts were void and so no delivery could be claimed or given.
On December 6, 1942, the said Jasubhai wrote to the appellants informing them that their contracts were not binding on the mills as they were null and void.
It may be mentioned at this stage that, when the contracts were made between the appellants and the respondent, Chinubhai Lalbhai was in charge of the managing agency of the mills.
Subsequently, on September 18, 1942, as a result of the compromise between Chinubhai and his brothers Jasubhai and Babubhai, this managing agency of the mills fell to the share of Jasubhai and Babubhai.
On December 17, 1942, the appellants wrote to the respondent that, as the respondent had extended the time of delivery of all goods by its letter dated August 15, 1942, the respondent was bound to deliver the contracted goods and that if the respondent did not do so, the appellants would be compelled to take legal proceedings against the respondent.
In reply, the respondent repeated its earlier contentions by its letter dated December 20, 1942.
The appellants then formally demanded the delivery of goods in January 216 and again in February 1943, and, since the demand was not complied with, the appellants filed the present suit on January 9, 1946, claiming damages to the extent of Rs. 1,52,334 8 9 with interest and costs.
In the plaint, it was alleged that the suit was in time because the request made by the respondent for extension of time had been accepted by the appellants. 'The suit was resisted by the respondent on several grounds.
In particular, the respondent urged that there was no agreement between the parties with regard to the extension of time and so the suit was barred by limitation.
The learned trial judge framed several issues with two of which the present appeal is concerned.
These two issues related to the question of extension of time for the performance of the contract and the plea of limitation.
On both these points, the learned judge found in favour of the appellants.
In the result the appellants ' claim was decreed.
The respondent then preferred an appeal in the High Court at Bombay and his appeal was allowed.
The learned Judges of the High Court have held that the oral evidence led by the appellants to show the acceptance of the respondent 's proposal for the extension of time could not be treated as true or reliable.
They also rejected the appellants ' case on the ground that the conduct of the appellants subsequent to the stoppage of the respondent 's mills did not show acceptance of the respondent 's proposal for extension of time.
Besides, in the opinion of the High Court, even if acceptance had been proved, it was not possible to ascribe any certain or definite meaning to the words used by the respondent in its letter dated August 15, 1942 (exhibit P. 78), and so this agreement to extend time was void since it wag vague and uncertain.
That is why it was held that the appellants ' suit was barred by time.
It is these findings which are challenged before us by the appellants in the present appeal.
It is obvious that the value of the claim in the trial court as well as before us is more than Rs. 20,000 and the judgment of the High Court under appeal has reversed the decree passed by the learned trial judge.
The appellants are thus entitled to agitate 217 both questions of fact and of law before us in this appeal.
The first point which has been urged before us by the appellants is in respect of the finding made by the High Court against the appellants on the question of the extension of time for the performance of the contract.
The argument is that the learned Judges of the High Court were in error in rejecting the oral ' evidence led by the appellants.
It would, therefore, be necessary to consider the material evidence bearing on this point.
The proposal to extend time was made by the respondent by its letter (exhibit P. 78) on August 15, 1942.
Ratilal P. W.
I stated that, four or five days after this letter was received, he went to Ahmedabad where he met and consulted Keshavlal.
Then he saw Chinubhai at the mills and told him that he accepted the extension of time as per the said letter.
In cross examination, Ratilal added that he met Chinubhai at the office in his mills.
I He also stated that, besides the subject of extension of time, no other matter was discussed between them at the said meeting.
He admitted that no letter had been written by the appellants confirming their acceptance of the respondent 's proposal to extend time.
The evidence given by Ratilal is corroborated by the testimony of Keshavlal.
It appears on the evidence of both these witnesses that, after the mills reopened, they had gone to Jasubhai and demanded delivery of the bales according to the contracts.
The appellants argued that there is really no reason why the evidence of these two witnesses should be disbelieved.
It is significant that the main plea raised by the respondent against the appellants ' claim in the present suit was that the contract itself was invalid and not bind ing on it and that the letter written by Laxmidas on August 15, 1942, was likewise unauthoirised and not binding on it.
These pleas have been negatived in the courts below.
It is fairly clear from the record that the attitude adopted by the respondent in the present dispute was actuated more by Jasubhai 's prejudice against Chinubhai and it may be safely 28 218 asserted that some of the pleas taken by the respondent were known to the respondent to be untenable.
The appellant,% rely upon this conduct of the respondent and suggest that the oral testimony of Ratilal and Keshavlal is consistent with probabilities and should be believed.
Chinubhai also gave evidence in the case.
He stated that the proposal to extend time had 'been conveyed by Laxmidas under his instructions.
It is common ground that similar request was made to all the constituents of the mills both in Ahmedabad and outside Ahmedabad.
Chinubhai did not remember whether he had got any written reply to the letter of August 15, 1942, from the appellants but the effect of some of the statements made by him would generally appear to be that lie had received oral acceptance of the said proposal from the appellants.
However, in answer to further questions put to him in cross examination, Chinubhai stated that he did not remember whether the appellants accepted the offer or not.
It is, however, clear that the evidence of Chinubhai is not at all inconsistent with the statements made by Ratilal and Keshavlal.
It is common ground that the prices of the goods were rising at the material time and so it is more likely that the appellants were willing to extend time because they would naturally be keen on obtaining delivery of the goods under the contract.
In both the courts below an argument appears to have been urged by reference to the sauda books kept by the respondent.
Shri Dharamasi Harilal had brought the sauda books in the court but neither party got the books exhibited in the case.
The learned trial judge took the view that, since the sauda books were not produced and proved by the respondent, it led to the inference that, if the books had been produced, they would have shown an endorsement made against the suit contracts that the extension of time had been agreed upon by the appellants.
On the other hand, the learned Judges of the High Court were inclined to draw the inference that, since the appellants did not want the said sauda books to be exhibited, it would appear that the said books did not contain any note about the extension.
In our opinion, it would be 219 unsafe to draw either of these two inferences in the present case.
Therefore, the decision of the question would depend upon the appreciation of oral evidence considered in the light of probabilities and other relevant circumstances in the case.
On the whole, we are disposed to take the view that the evidence given by Ratilal and Keshavlal is true.
Besides, the conduct of the parties also points to the ' same conclusion.
If the period for the delivery of the goods had not been extended by mutual consent, we would normally have expected the appellants to make a demand for delivery of the goods on due dates as fixed under the original contracts.
It is conceded that no such demand was made.
On the other hand, it is only after the mills reopened that Ratilal and Keshavlal saw Jasubhai and discussed with him the question about the delivery of the goods.
This is admitted by the respondent in its letter dated December 6, 1942, (exhibit P. 62).
The appellants were, however, told by the respondent that the saudas of their firm were not binding on the respondent and that the same were void.
It is somewhat remarkable that though this document disputes the validity of the sauda, even alternatively it does not suggest that the period of extension had not been agreed to by the appellants.
It may be that, since Jasubhai then wanted to challenge the validity of the contracts themselves, he did not care to make any alternative plea.
But however that may be, the conduct of the appellants is, in our opinion, consistent with their case that they had agreed to the extension of time.
The true legal position in regard to the extension of time for the performance of a contract is quite clear under section 63 of the Indian Contract Act.
Every promise, as the section provides, may extend time for the performance of the contract.
The question as to how extension of time may be agreed upon by the parties has been the subject matter of some argument at the Bar in the present appeal.
There can be no doubt, we think, that both the buyer and the seller must agree to extend time for the delivery of goods.
It would not be open to the promise by his unilateral act to extend 220 the time for performance of his own accord for his own benefit.
It is true that the agreement to extend time need not necessarily be reduced to writing.
It may be proved by oral evidence.
In some cases it may be proved by evidence of conduct.
Forbearance on, the part of the buyer to make a demand for the delivery of goods on the due date as fixed in the original contract may conceivably be relevant on the question of the intention of the ' buyer to accept the seller 's proposal to extend time.
It would be difficult to lay down any hard and fast rule about the requirements of proof of such an agreement.
It would naturally be a question of fact in each case to be determined in the light of evidence adduced by the parties.
Having regard to the probabilities in this case, and to the conduct of the parties at the relevant time, we think the appellants are entitled to urge that their oral evidence about the acceptance of the respondent 's proposal for the extension of time should be believed and the finding of the learned trial judge on this question should be confirmed.
The finding in favour of the appellants on this point is not, however, decisive of the dispute between the parties in the present appeal.
It still remains to be considered whether the agreement between the parties about the extension of time suffers from the infirmity of uncertainty and vagueness.
The learned Judges of the High Court have come to the conclusion that the letter of August 15, 1942, which is the basis of the agreement for the extension of time is so vague and uncertain that the agreement as to extension of time itself becomes void and unenforceable.
The correctness of this conclusion must now be considered.
The basis of the agreement is the letter and so it is the construction of this letter which assumes considerable importance.
This is how the letter reads: Dear Sirs, Your good selves are well aware of the present political situation on account of which entire working of our Mills is closed.
At present, it is difficult to say as to how long this state of affairs will continue and as such we regret 221 we cannot fulfil the orders placed by you with us in time.
Under the circumstances, please note that the delivery time of all your pending contracts with us shall be automatically understood as extended for the period the working is stopped and till the normal state of affairs recurs.
" It would be noticed that the letter begins by making a reference to the current political situation which led to the closure of the mills and it adds that it was vary difficult to anticipate how long the said state of affairs would continue.
It is common knowledge that, at the material time, the whole country in general and the city of Ahmedabad in particular was in the grip of a very serious political agitation and nobody could anticipate how long the strike resulting from the said, agitation would last.
It 'is in that atmosphere of uncertainty that the respondent requested the appellants to note that the time for delivery would be automatically extended " for the period the working is stopped and till the normal state of affairs recurs ".
The first condition does not present any difficulty.
As soon as the strike came to an end and the closure of the mills was terminated, the first condition would be satisfied.
It is the second condition that creates the real difficulty.
What exactly was meant by the introduction of the second condition is really difficult to determine.
So many factors would contribute to the restoration of the normal state of affairs that the satisfaction of the second condition inevitably introduces an element of grave uncertainty and vagueness in the said proposal.
If the normal state of affairs contemplated by the second condition refers to the normal state of affairs in the political situation in the country that would be absolutely and patently uncertain.
Even if this normal state of affairs is construed favourably to the appellants and it is assumed that it has reference to the working of the mills, that again does not appreciably help to remove the elements of uncertainty and vagueness.
When can normal working of the mills be deemed to recur? For the normal working of the mills several factors are essential.
The full complement of workmen should be 222 present.
The requisite raw material should be available and coal in sufficient quantities must be in stock.
Some other conditions also may be necessary to make the working of the mills fully normal.
Now, unless all the constituent elements of the normal working of the mills are definitely specified and agreed upon, the general expression used in the letter in that behalf cannot be construed as showing anything definite or certain.
Therefore, even if the appellants ' evidence about the acceptance is believed, that only shows in a very general and loose way the acceptance of the proposal contained in the letter.
It does not assist us in determining what was understood between the parties and agreed upon by them as constituting the normal state of affairs mentioned in the letter.
In this connection, it would be relevant to refer to the material allegations in the plaint itself.
In para.
7, the plaint has averred that the plaintiffs agreed to the said extension of time for the delivery of the said goods as suggested by the defendant, that is by a period during which the said mills would remain closed.
In other words, the whole of the plaint proceeds on the assumption that the extension of the period for the delivery of goods had reference only to the stoppage of the mills.
Indeed, it was sought to be argued at one stage that the second condition in the letter should be treated as a meaningless surplusage and the extension of time agreed upon between the parties should be read in the light of the first condition alone.
In support of this argument reliance was placed on the decision in Nicolene Ld.
vs Simmonds (1).
In that case, a contract for the sale of a quantity of reinforcing steel bars was expressed as subject to " the usual conditions of acceptance ".
The seller repudiated the contract whereupon the buyers claimed and were awarded by the trial judge damages for the breach of contract.
On appeal, the seller contended that the contract was not concluded there being no consensus ad item in regard to the conditions of acceptance.
It was held that, there being no " usual conditions of acceptance ", the condition was meaningless and should be ignored, and that the (1) , 552.
223 contract was complete and enforceable.
Dealing with the relevant clause, Denning L. J. observed, "that clause was so vague and uncertain as to be incapable of any precise meaning.
It is clearly severable from the rest of the contract.
It can be rejected without impairing the sense or reasonableness of the contract as a whole, and it should be so reacted.
The contract should be held good and the clause ignored ".
Then ' the learned Lord Justice pointed out that " the parties themselves treated the contract as subsisting.
They regarded it as creating binding obligations between them and it would be most unfortunate if the law should say otherwise ".
" You would find ", observed the learned Lord Justice, " defaulters all scanning their contracts to find some meaningless clause on which to ride free ".
In our opinion, this decision can be of no assistance to the appellants ' case before us.
The second condition in the letter in question constitutes a clause which had to be agreed upon by the parties since it formed one of the conditions of the respondent 's proposals for the extension of time.
The respondent 's proposal was to extend time for the performance of the contract subject to two conditions and unless both the conditions were agreed upon between the parties there would be no valid or binding extension of time under section 63 of the Indian Contract Act.
The fact that the second condition introduced by the respondent is vague and uncertain, does not necessarily show that the said condition was intended by the respondent to be the addition of a meaningless surplusage.
If that be the true position, then the material allegations in the plaint itself demonstrably prove that there has been no acceptance by the appellants of the second condition mentioned by the respondent in its proposal to extend time for the performance of the contract.
Besides, as we have already indicated, it is really difficult to hold that the respondent had a clear and precise notion as to the constituent elements of the second condition mentioned in its letter and that the appellants were duly apprised of the said constituent elements and agreed with the said condition with that knowledge.
In this connection, we may usefully refer to the decision 224 of the House of Lords in Scammel (G.) And Nephew, Ld.
vs (Ouston) (H. C. And J. 0.) (1).
In this case, the respondent had agreed to purchase from the appellant a new motor van but stipulated that this order was given on the understanding that the balance of purchase price can be had on the hire purchase terms over a. period of two years.
The House of Lords held that the clause as to hire purchase terms was so vague that no precise meaning could be attributed to it and consequently there was no enforceable contract between the parties.
In his speech, Lord Wright observed that " the object of the court is to do justice between the parties, and the court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not at mere form.
But the test of intention is to be found in the words used.
If these words, considered however broadly and untechnically and with due regard to all the just implications, fail to evince any definite meaning on which the court can safely act, the court has no choice but to say that there is no contract ".
Then the learned Law Lord added that his reason for thinking that the clause was vague was not only based on the actual vagueness and unintelligibility of the words used but was confirmed by the startling diversity of the explanations tendered by those who think there was a bargain of what the bargain was.
We would like to add that, when the appellants attempted to explain the true meaning of the second condition, it was discovered that the explanations given by the appellants ' counsel were diverse and inconsistent.
We must, therefore, hold that the learned Judges of the High Court were right in coming to the conclusion that the conditions mentioned by the respondent in its letter asking for extension of time were so vague and uncertain that it is not possible to ascertain definitely the period for which the time for the performance of the contract was really intended to be extended.
In such a case, the agreement for extension must be held to be vague and (1) 225 uncertain and as such void under section 29 of the Indian Contract Act.
There is one more point which must be considered.
It was strongly urged before us by the appellants that, in the trial court, no plea had been taken by the respondent that the agreement for the extension of time was vague and uncertain.
No such plea appears to have been taken even in the grounds of appeal preferred by the respondent in the High Court at Bombay; but apparently the plea was allowed to be raised in the High Court and the appellants took no objection to it at that stage.
It cannot be said that it was not open to the High Court to allow such a plea to be raised even for the first time in appeal.
After all, the plea raised is a plea of law based solely upon the construction of the letter which is the basis of the case for the extension of time for the performance of the contract and so it was competent to the appeal court to allow such a plea to be raised under 0.
41, r. 2, of the Code of Civil Procedure.
If, on a fair construction, the condition mentioned in the document is held to be vague or uncertain, no evidence can be admitted to remove the said vagueness or uncertainty.
The provisions of section 93 of the Indian Evidence Act are clear on this point.
It is the language of the document alone that will decide the question.
It would not be open to the parties or to the court to attempt to remove the defect of vagueness or uncertainty by relying upon any extrinsic evidence.
Such an attempt would really mean the making of a new contract between the parties.
That is why we do not think that the appellants can now effectively raise the point that the plea of vagueness should not have been entertained in the High Court.
The result is we confirm the finding of the High Court on the question of vagueness or uncertainty of the agreement to extend time and that must inevitably lead to the dismissal of the present appeal.
We are, however, free to state that we have reached this conclusion with some reluctance because we are satisfied that there are no bona fides in the attitude 29 226 adopted by the respondent in the present litigation.
The main pleas raised by the respondent against the binding character of the contracts themselves as well as against the authority of Laxmidas to write the letter for extension of time have been rejected by both the courts below, and the only ground on which the respondent succeeds before us was made on behalf of the ,respondent for the first time in appeal.
Under these circumstances we think the fair order as to costs would be that parties should bear their own costs throughout.
The result is the appeal fails and is dismissed but there would be no order as to costs throughout.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellants entered into a contract with the respondent mills for the purchase of certain goods in which the time for delivery was fixed for the months of September and October, 1942.
Before the expiry of the time fixed there was a strike in the mills and the respondent wrote a letter to the appellants on August 15, 1942, that in view of the strike and the political situation, the delivery time of all the pending contracts should be automatically understood as extended for the period the working of the mills was stopped and until the normal state of affairs recurred.
Though the strike came to an end the respondent declined to give delivery of the goods on the ground that the contracts were void.
In the suit filed by the appellants on January 9, 1946, for damages for breach of the contract the respondent pleaded that there was no agreement between the parties with regard to the extension of time and so the suit was barred by limitation.
The appellants ' case and their evidence which was consistent with the conduct of the parties at the relevant time only showed definitely that they had orally agreed to the proposal made by the respondent for extension of time for the period during which the mills would remain closed, and as regards the second condition referred to in the respondent 's letter dated August 15, 1942, " till the normal state of affairs recurs (which was vague and uncertain), the evidence did not show that there was an acceptance by the appellants of the said condition.
The question was whether there was an enforceable agreement for extension of time for performance of the contract within the meaning of the Indian Contract Act : Held, (1) An extension of time for the performance of the contract Under section 63 of the Indian Contract Act must be based upon an agreement between the parties, and it would not be open to the promise by his unilateral act to extend the time for performance of his own accord for his own benefit.
Such an agreement need not necessarily be reduced to writing and can be proved by oral evidence or by evidence of conduct.
(2) The respondent 's proposal for extension of time contained in the letter dated August 15, 1942, was subject to two conditions, and the fact that the second condition was vague and 214 uncertain does not necessarily show that it was intended to be treated as a meaningless surpluses.
As there was no acceptance by the appellants of the second condition there was no valid or binding agreement for extension of time under section 63 of the Indian Contract Act.
Nicolene Ld.
vs Simmonds, , distinguished.
(3) In any event as the conditions were so vague and uncer tain that it was not possible to ascertain definitely the period for which the time for the performance of the contract was really intended to be extended, the agreement for extension was void under section 29 Of the Indian Contract Act.
Scammel (G.) and Nephew, Ld.
vs Oustom (H. C. and 1.
G.) Queston, , relied on.


judgement:
ivil Appeal Nos.
1335 36 of 1976.
853 From the Judgment and Order dated 9.12.75 of the Punjab & Haryana High Court in L.P.A. Nos. 231 and 267 of 1974.
Markandey Singh, Appellant in person, in CA.
No. 1335 of 1976 and Respondent in person in CA.
No. 1336 of 1976.
Girish Chandra, C.V. Subba Rao and K.S. Guruswamy for the appellants in CA.
No. 1336 of 1976.
V.C. Mahajan, for the Respondent In 1335 of 1976.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These two appeals are connected.
These deal with the rectification of year of allotment of absorption of the appellant in the first appeal and respondent in the second one Shri Markandey Singh (hereinafter called the appellant in the first appeal and respondent in the second appeal) in the Indian Police Service.
Shri M.L. Bhanot is the respondent in the first appeal.
He is appellant in the second appeal being Civil Appeal No. 1336 of 1976.
By the order dated 21st July, 1973, Shri Markandey Singh was assigned 1956 as the year of allotment in I.P.S. cadre.
Shri Bhanot challenged the said order.
The same was quashed by the learned single judge of Punjab & Haryana High Court on 4th April, 1974.
Letters Patent Appeal against the said order was dismissed by the Division Bench of the said High Court on 9th December, 1975.
The first appeal aforesaid arises from the said decision.
In order to appreciate the position, it may be relevant to note that Shri Markandey Singh the appellant in the first appeal joined the U.P. State Service as Deputy Superintendent of Police on 17th November, 1950 by passing a competitive examination.
Two years later he was confirmed as such.
In November, 1953, he joined on deputation the Union Territory of Delhi which had at that time no police service of its own.
While on deputation in 1958 and again in 1959 60, the appellant had officiated as Superintendent of Police but for administrative reasons was reverted back.
In July, 1960, Himachal Pradesh Indian Police Service was created and thereafter the Delhi Himachal Pradesh Police Service in March, 1961.
On 6th December, 1961, Shri Singh was again promoted to officiate as Superintendent of Police.
During the period of his officiation, his request for being absorbed in the Himachal Pradesh State Police Service was accepted and by an order dated 7th February, 1963, he was absorbed in the State Service with effect from 27th November, 1962.
While he was continuing to officiate in the senior post as aforesaid, on 854 30th April, 1965, he was confirmed in the Union Territory Cadre of I.P.S. with effect from 14th May, 1964.
He was assigned 1958 as the year of allotment.
He, however, made representation against the order of allotment in August, 1969 to the Central Government claiming the benefit of officiation from 6th December, 1961 to 13th May, 1963 in the matter of fixation of his year of allotment.
On 14th May, 1963, the appellant 's name had been brought on the select list of the officers to be promoted to the Indian Police Service and he was recruited with effect from the same date.
It may be noted that during the preceding period of officiation as mentioned hereinbefore he was not on the select list.
On 23rd April, 1970, his representation was rejected by the Central Government.
He made a second representation on 23rd June, 1970.
Shri Bhanot had appeared in the I.P.S. Examination.
He was successful and recruited in the Police Service in October, 1957.
The year of allotment assigned to him was 1957.
Shri Bhanot, was allotted the year 1957 on his joining the service by examination and the appellant allotted the year 1958 as mentioned hereinbefore.
In November, 1962, the respondent, Shri Bhanot was promoted as Superintendent of Police in the Union Territory of Delhi with effect from 13th May, 1961.
In November, 1966, reorganisation of State of Punjab took place and at that time Shri Bhanot was allotted to the joint I.P.S. Cadre of Delhi and Himachal Pradesh.
On coming to know in December, 1972 about the second representation made by Shri Singh, Shri Bhanot wrote to the Central Government that he having been allotted the year 1957 was senior to Shri Singh and if any change was brought about in the year of allotment of Shri Singh which was 1958, he, the respondent, should be intimated of the reasons so as to enable him to make an effective representation.
According to the respondent, which has been accepted by the Division Bench of the High Court of Punjab & Haryana in the impugned judgment, he did not hear anything from the Central Government in spite of the several reminders.
On 21st June, 1973, the Central Government by its order of the same date gave the benefit of officiation for a period from 6th December, 1961 to 13th May, 1963 to Shri Singh and accepted his representation and assigned to him 1956 as the year of allotment.
In consequence, Shri Singh was placed below one Shri B.P. Marwaha and above Shri Bhanot in the gradation list of Union Territory of I.P.S. Feeling aggrieved, Shri Bhanot filed the writ petition being Writ Petition No. 12 of 1974 before the High Court.
The learned single judge allowed the same.
He held that Shri Singh being on deputation was not entitled to the benefit of officiation on senior post prior to 27th November, 1962 with effect from which he was absorbed in Delhi Himachal Pradesh State Police Service.
The representation made by Shri Singh was barred by time.
855 It was further held by the learned single judge that acceptance of the second representation of Shri Singh without giving an opportunity to Shri Bhanot was in violation of the principles of natural justice.
In the premises the order dated 21st June, 1973 was quashed by the learned single judge.
There were two appeals before the Division Bench one was filed by Shri Singh against the judgment of the learned single judge and the other was filed by the Union of India.
Both these appeals were disposed of by the Division Bench by judgment in Letters Patent Appeal No. 231 of 1974 and for the reasons given in Letters Patent Appeal No. 231 of 1974, the appeal by the Union of India was also dismissed and being aggrieved by the said decision, the Union of India has preferred the second appeal herein namely Civil Appeal No. 1336 of 1976.
The question involved in these appeals is whether the year of allotment given to Shri Singh as 1958 was correct or not and whether the order passed by the High Court both of the learned single judge which was later upheld by the Division Bench to quash the year of allotment in favour of Shri Singh for the year 1956 was bad or not.
this depends upon the interpretation of various rules and provisions.
The main question which falls for consideration in these two appeals is whether the service rendered by one in a senior post in the I.P.S. Cadre of a particular State while the incumbent was on deputation to the State Police Service of that State from another State was entitled to the benefit for the purpose of working out the year of allotment in accordance with second proviso to rule 3(3)(b) of the Seniority Rules.
We are concerned with the unamended rule 3(3) of the said Rules.
The relevant part of the said rule reads as follows: "3(3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be (a) Where the officer is appointed to the Service on the result of a competitive examination, the year following the year in which such examination was held; (b) Where the officer is appointed to the Service by promotion in accordance with rule 9 of the Recruitment Rules, the year of allotment of the junior most among the officers recruited to the 856 Service in accordance with rule 7 of those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former; Provided that the year of allotment of an officer appointed to the Service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those Rules, so started officiating shall be determined adhoc by the Central Government in consultation with the State Government concerned.
Provided further that an officer appointed to the Service after the commencement of these Rules shall be deemed to have officiated continuously in senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Police Service (Appointment by Promotion) Regulation framed under rule 9 of the Recruitment Rules, if the period of such officiation prior to that date if approved by the Central Government in consultation with the Commission.
Explanation 1.
An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion a senior post otherwise than as a purely temporary to local arrangement.
Explanation 2.
An officer shall be treated as having officiating in a senior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstances.
" On behalf of the appellant before us, reliance was placed on the decision of this Court in Arun Ranjan Mukherjee vs Union of India & Ors., [1971] Suppl.
S.C.R. 574 A.I.R.
It may be mentioned that in 1954 the Central Government, in 857 exercise of the powers vested in it by section 3 of the All India Services Act, 1951 (hereinafter called the 'said Act ') framed certain rules.
The Indian Service (Recruitment) Rules (hereinafter called the 'Recruitment Rules '), the Indian Police Service (Cadre) Rules (hereinafter referred to as the 'Cadre ') and the Indian Police Service (Regulation of Seniority) Rules (hereinafter referred to as the 'Seniority Rules ').
The Indian Police Service (Fixation of Cadre Strength) Regulations ', 1955 (hereinafter referred to as the 'Cadre Regulations ') were also framed for determining the strength and composition.
It is not necessary to refer to the various rules to which the Division Bench in the impugned judgment has made exhaustive reference.
It is indisputable that Shri Singh, the appellant herein, was holding a substantive position in the U.P. State Police Service until he was taken over in the joint Police Service of Delhi and Himachal Pradesh in February, 1963, with effect from 27th November, 1962.
He was brought on the select list of officers to be promoted to I.P.S. cadre of the Union Territories of Himachal Pradesh and Delhi on 14th May, 1963.
Prior to that, he had been continuously officiating in a senior post since 6th December, 1961.
He claimed that he should be given the benefit of that period.
This was rejected by the learned single judge and this rejection was upheld by the Division Bench of the High Court.
He was on deputation in Delhi Himachal Pradesh State Police Service.
The question is what is the correct position.
The first representation that the appellant made for fixing the year of allotment to be given the benefit of continuous officiation on a senior post from 6th December, 1961, to 13th May, 1963 was rejected by an order dated 23rd April, 1970.
The said order of rejection is Annexure R. 4.
It stated that in accordance with the orders contained in Letter No. 1/2/62 Delhi IDH(S) dated 23.8.1963, of the Home Ministry, all cadre posts held by non cadre officers not on the Select List were deemed to have been kept in abeyance with effect from 27th September, 1961 onwards; and according to the Seniority Rules, the service rendered by an officer prior to his inclusion in the Select List could not be counted for seniority unless approved by the Central Government in consultation with the Union Public Service Commission under the Second proviso to rule 3(3)(b) of the Seniority Rules.
The requisite approval, it was stated, was not there.
In the second representation made by the appellant, the Division Bench noted the fact that Shri Singh had noted in Madan Gopal Singh vs Union of India, the Division Bench of Delhi High Court had quashed the aforesaid letter of the Home Ministry.
A 858 perusal of the order dated 21st June, 1973 made by the Central Government showed that the representation was accepted but not on the ground urged by him.
The reason why the second representation was accepted by the Central Government was that in November, 1972, the Union Public Service Commission had approved of the officiation of Shri Singh in the I.P.S. cadre post during the period 6th December, 1961 to 13th May, 1963 under the second proviso to rule 3(3)(b) of the Seniority Rules, "as they stood in May, 1963".
Accordingly, Shri Singh was allowed the year of 1956 and placed above Shri Bhanot.
Old rule 3(3)(b) of the Seniority Rules applicable in this case has been set out hereinbefore.
It was urged before the Division Bench that nowhere rule 3(3)(b) and the second proviso thereto in particular excludes the officiating period of deputation.
In this connection reliance was placed on the decision of the Division Bench in the case of Arun Ranjan Mukherjee vs Union of India and others (supra).
In as much as good deal of reliance was placed by the Division Bench as well as by the appellant before us on the said decision.
It may be mentioned that the appellant in that case joined the Indian Army as a Commandant Officer in 1942.
He became a Major in 1945.
His services were lent to the state of West Bengal and accordingly on 10th January, 1949, he was posted as a Commandant of the Special Armed Police Battalion, a post corresponding to a senior post in the I.P.S.
The said appellant with his consent was appointed to the West Bengal State Police Service on 1st July, 1953.
On 8th September, 1954, the Indian Police Service (Recruitment) Rules, 1954, Indian Police Service (Cadre) Rules, 1954 and the Indian Police (Regulation of Seniority) Rules, 1954 were framed by the Government of India under section 3 of the All India Services Act 61 of 1951.
On 6th June, 1955, the Indian Police Service (Appointment by Promotion) Regulations, 1955 were also issued under which 25% of the senior posts were allotted to the Indian Police Service cadre in each State.
The appointment of the appellant was outside the quota.
On 31st July, 1958, the appellant was appointed on probation in the State cadre of West Bengal.
In December, 1959 he was substantively appointed to a senior post in the Indian Police Service and confirmed thereon with effect from 21st July, 1958.
In December, 1958, the Ministry of Home Affairs conveyed to the Government of West Bengal its decision to fix the pay of the appellant in the senior scale of the Indian Police Service notionally from 10th January, 1949, the date from which he held an Indian Police Service Cadre post continuously.
On 19th January, 1960, the Indian Police Service (Seniority of Special Recruits) Regulations 1960 were framed pursuant to rule 5 A of the Seniority Rules on 11th October, 859 1960, the Government of India in consultation with the Union Public Service Commission decided to allot to the appellant the year 1948.
The year of allotment was subsequently changed to 1947 on the basis that the officiation of the appellant as well as that of the junior most direct recruit, in a senior scale did not start before 19th May, 1951.
The appellant filed a writ petition under Article 226 of the Constitution.
The learned single judge, allowing the petition, held that the date from which the appellant continuously officiated was 10th January, 1949 and that accordingly the year 1943 allotted to D the Junior most direct recruit, should also be allotted to the appellant.
The learned Single Judge also held that the first and second proviso to rule 3(3)(b) of the Seniority Rules were not applicable to the appellant.
The Division Bench in appeal agreed with the learned single judge, that the date of continuous officiation of the appellant was 10th January, 1949.
But the High Court thought that the year 1947 allotted to the appellant on the basis of his officiation from 19th May, 1951 could not be sustained because the latter date had been held by this Court to be irrelevant in the case of D.R. Nim, I.P.S. vs Union of India, ; Non the less the year of allotment 1948 assigned to the appellant in the order of 11th October, 1960 was sustained because it was on an ad hoc basis.
Against the High Court 's order the appellant appealed to this Court.
He urged under the main clause of rule 3(3)(b) of the Seniority Rules the year 1943 should be allotted to him as the said year had been allotted to D the junior most direct recruit and that the first proviso to rule 3(3)(b) did not apply to him as it applied only to those in the joint cadre; and that this Court should deduct the 'P ' factor from the date of officiation which as held by the High Court was 10th January, 1949 and allot to him the year 1943 as the year of allotment.
This Court dismissed the appeal and held that D was an Indian Police Officer recruited in 1945.
He became a member of the Indian Police Service under sub rule(1) of rule 3 of the Indian Police Service (Recruitment) Rules, 1954 on the date when the said Rules came into force in 1954, and was not an officer recruited to the service in accordance with rule 7 of those Rules.
The year of allotment assigned to D was not therefore available to the appellant under the main part of rule 3(3)(b).
This Court further held that the first proviso to rule 3 nowhere referred or even remotely indicated that it was only applicable to the persons in the joint cadre.
In fact rule 2(1) of the Seniority Rules and the words "State cadre" and "joint cadre" had been defined as having the meaning respectively assigned to them in the Indian Police Service (Cadre) Rules, 1954.
By reference to rule 7 of the Cadre Rule it is 860 apparent that what is to be determined is the authority which is to appoint, to the respective cadres i.e. in the case of State Cadre it is the State Government and in the case of Joint Cadre it is the State Government concerned.
The first proviso did not refer to any appointment to any cadre it only dealt with Regulation of Seniority and the reference to State Government concerned is for the purpose of fixing the date of officiation ad hoc in consultation with the Central Government.
When there are several State Governments the consultation by the Central Government must necessarily be with the State Government concerned in relation to the officer who was appointed to the cadre of that State.
Whether the first proviso applied or the second proviso applied, it was the Central Government that had to determine ad hoc, the year of allotment after approving the period of officiation in consultation with the Public Service Commission.
This Court further held that in view of the judgment in Nim 's case (supra) the order assigning 1947 as the year of allotment to the appellant on the basis of an arbitrary date of officiation namely 19th May, 1951 was bad and had been quite properly struck down by the High Court.
The High Court however had no power to direct the year 1948 to be fixed as the year of allotment for the determination of the seniority of the appellant on the basis that that was fixed on an ad hoc basis in an earlier occasion by the Government of India.
Once the Government of India had on a memorial presented by the Appellant decided finally in supersession of its previous decision that his year of allotment was 1947, the previous decision fixed on ad hoc basis could not be revived.
It was for the Government of India in consultation with the Commissioner to determine ad hoc the year of allotment to be assigned to the appellant in relation to the date of his continuous officiation.
This Court would not trespass upon the jurisdiction of the Government of India to determine ad hoc in consultation with the Commission on a consideration of the relevant materials, the date of the appellant 's continuous officiation and assign him a year of allotment.
This Court reiterated that it was for the Central Government to examine year of allotment after approving the period of officiation in consultation with the Union Public Service Commission.
It may be relevant to mention that this Court noted the observations of the Division Bench judgment of the Calcutta High Court which was under appeal in that case and noted that there was nothing in clause (b) of the said Rules which showed that while officiating in a "senior post", the officer concerned must be an officer belonging substantially to the State Police Service in question and could not be an officer on deputation from some other service.
It was urged before the Divi 861 sion Bench that this Court had approved the view of the Calcutta High Court that benefit of the period of deputation should be given to Shri Mukherjee.
The Division Bench was unable to accept the position.
The Division Bench was of the view that this Court had reiterated that it was relevant material which had to be taken into consideration by the Government of India but it was for Government to determine in consultation with the Union Public Service Commission the date of a person 's continuous officiation and assign to him a year of allotment and the High Court as such had no such power.
The Division Bench was of the view that the learned single judge of the High Court was right that this Court had not given any decision whether the period of deputation of Shri Mukherjee in that case before his absorption could be taken into account in assigning the year of allotment to him.
The learned single judge in Chambers as noted by the Division Bench further found support to this view with reference to relevant noting in the file of Shri Mukherjee which was produced before the learned single judge.
Rule 3(3)(b) of the Seniority Rules and the provisos thereto should not be read in isolation.
This rule is in the setting of other rules.
The Cadre rules read with Indian Police Service (Fixation of Cadre Strength) Regulations of 1955 fixed the strength of the Indian Police cadre of the Union Territories a particular figure.
Out of them, not more than 25% officers eligible for recruitment to the I.P.S. cadre had to be the substantive members of the State (U.T.) Police Service at that time.
The scheme as it stood, fixed the strength of the I.P.S. cadre State wise.
Recruitment by promotion thereto could only be from the substantive members of the Police Service of that particular State.
So long as Shri Singh remained as a substantive member of the U.P. State Police Service, he could not possibly be promoted to the joint I.P.S. cadre of the Union Territories of Delhi and Himachal Pradesh.
He became eligible to his promotion to the Union Territory I.P.S. Cadre only after he had been absorbed in the Delhi Himachal Pradesh State Police Service.
Proviso (1) to Rule 3(3)(b) of the Recruitment Rules gave a clear indication that for determining the year of allotment ad hoc the Central Government consulted the State Government concerned.
In Explanation (2) again, there was reference to a certificate by the State Government concerned that an officer would have officiated in a senior post but for his absence on leave or appointment to any special post.
It is apparent therefore that the State Government is the one, of the Police Service of which the Officer concerned is a substantive member.
In this case as found by the Division Bench, Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Police Service and he 862 had gone back to his parent State of U.P.
In case Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Police Service and he had gone back to his parent State of U.P., then according to Explanation (2) the U.P. State Government might have issued the certificate to facilitate his promotion to the I.P.S. cadre of the U.P. State.
The Promotion Regulation of 1955 laid down the determination of the eligibility of a substantive member of the State Police Service.
Thereafter, the names of the eligible officers were brought on the Select List, which were to be approved by the commission.
Appointments by promotion to the I.P.S. cadre are made from the Select List.
In the event of promotion, but for second proviso the benefit of continuous officiation on a senior post for fixing his year of allotment is given to an officer from the date after his being nominated on the Select List.
In Explanation (1) of rule 3(3), there is no mention that deputationist before his absorption in the State Police Service can get the benefit of such officiation.
That is the position.
Therefore before his absorption, it is not possible to accept the position that Shri Singh was entitled to the benefit of his officiation.
The Division Bench so held.
We are of the opinion that the Division Bench was right on this aspect of the matter.
It may be mentioned that Seniority Rules 1954 including rule 3(3)(b) quoted above were amended with effect from 22nd April, 1967.
Before the amendment, the appellant Shri Singh, had been confirmed in the Union Territory cadre of Indian Police Service with effect from 14th May, 1964 and had been allotted 1958 as the year.
The first representation was made by him in August, 1969 and the second in June, 1970.
The second proviso to old seniority rule 3(3)(b) referred to hereinbefore had laid down that where a promotee had officiated continuously in a senior post prior to the date of inclusion of his name in the Select List prepared in accordance with the Promotion Regulations, he could get the benefit of such officiation if approved by the Central Government in consultation with the Commission.
The Seniority Rules as amended in 1967, however, did not provide for such approval.
Hence, after the amendment of the Seniority Rules, the Central Government was not empowered to grant the approval as aforesaid in favour of Shri Singh in November, 1972.
This was the submission on behalf of the respondent, Shri Bhanot.
The argument was not accepted by the Division Bench because the question of allotment of Shri Singh in accordance with the Seniority Rules ripened before the amendment of 1967.
There is no rule vitiating the operation of the old seniority rules.
As a matter of fact, the party had proceeded all along in this case on the basis that the old seniority rules applied.
863 In Government of India and Anr.
vs C.A. Balakrishnan and Ors., this question was considered.
In that case the promotion in question was made in November, 1957.
The change in the relevant rules of promotion came in September, 1960.
This Court affirmed the decision of the High Court and held that in November, 1957 the post in question was a selection post and that the basis of seniority cum fitness introduced by the amendment rules in September, 1960 was not applicable.
The question, therefore, was held to be governed by the old rules.
The Division Bench held that the second representation made by Shri Singh was barred.
As mentioned hereinbefore, in support of the appeal, the appellant submitted that the Division Bench was in error in not following the ratio of the decision in the case of Arun Ranjan Mukherjee (supra).
We are unable to accept this submission.
Arun Ranjan Mukherjee 's case proceeded on the basis of the decision of this Court in the case of D.R. Nim, I.P.S.v.
Union of India (supra).
There under rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954 issued under section 3(1) of the All India Services Act, 1951, the mode of determining the seniority of officers of the Indian Police Service was laid down.
It was provided that the officers were divided into categories: namely, (1) those in the Service at the commencement of the Rules, and (2) those appointed to the Service after the commencement of the Rules.
The second category was divided into two sub categories: namely, (a) officers appointed as a result of a competitive examination, and (b) officers appointed by promotion in accordance with rule 9 of the Recruitment Rules.
The year of allotment of an officer which determined his seniority, was determined according to rule 3(3)(a) or (b) of the present rules.
But if an officer started officiating continuously in a senior post from a date earlier than the date on which any of the officers was recruited to the Service by competition, the year of allotment had to be determined ad hoc by the Central Government under proviso (1) to rule 3(3)(b) and under proviso (2) to rule 3(3)(b), the period of officiation before the date of inclusion of the name of an officer in the Select List prepared in accordance with the requirements of the Indian Police Service (Appointment by Promotion) Regulations would be counted only if such period was approved by the Central Government in consultation with the Public Service Commission.
In that case the appellant was officiating as Superintendent of Police from June, 1957 that is from a date earlier than the date of any officer recruited by competition, and was appointed to the Indian Police Service by promotion in 1955 after the commencement of the Seniority Rules.
His name was included in the Select List in 1956.
The 864 government passed an order on 25th August, 1955, that officers promoted to the Indian Police Service should be allowed the benefit of their continuous officiation with effect only from 19th May, 1951.
The appellant challenged the order by a petition under Article 226 before the High Court because the period of his officiation from June, 1947 to May, 1951 was excluded for the purpose of fixation of his seniority.
The High Court dismissed the petition.
This Court under appeal held that the impugned order dated 25th August, 1955 should be quashed and the Central Government directed to fix the year of allotment and seniority of the appellant according to the law.
The date 19th May, 1951 in that case was an artificial and arbitrary date having nothing to do with the application of the first and second proviso to rule 3(3).
It has some relevance for the Indian Administrative Service, but why it should be applied to the Indian Police Service was not adequately explained.
Under the two provisos, this Court held, the Central Government had to determine ad hoc the year of allotment after approving or not approving the period of officiation in consultation with the Public Service Commission taking into consideration all the relevant facts.
The Central Government cannot pick out a date and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso.
In view of the fact that he was officiating for eight years, that he was never reverted and that he was appointed to the post when vacancies fell, it could not be held that the appellant 's continuous officiation a mere temporary or local or stop gap arrangement, within the meaning of Explanation (1) to rule 3(3)(b).
In the instant case, the Central Government had not fixed the date of appellant 's absorption in the Select List as 1958 out of the hat so to say.
It had relevance as it appears from the basis of the order of the Central Government.
In this case, the appellant who was a deputationist before the absorption in the State Public Service could not be entitled to get such officiation.
In case Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Police Service and he had gone back to his parent State of U.P., then according to explanation (2), U.P. State Government might have issued the certificate to facilitate his promotion to the I.P.S. cadre of the U.P. State.
But so long as Shri Singh remained a substantive member of the U.P. State Police Service, he could not possibly be permitted to join I.P.S. cadre of the Union Territories of Delhi and Himachal Pradesh.
In accordance with the rules, he became eligible to his promotion to the Union Territory I.P.S. cadre only after he had been absorbed in Delhi Himachal Pradesh Police Service. 865 Reading the rules with which we are concerned which state that certain year should be assigned by the Government in consultation with Public Service Commission must be interpreted in the light of the well established rule of construction that if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound these words in their natural and ordinary sense, the words themselves in such a case best declaring the intention of the legislature.
See in this connection the observations of this Court in The Collector of Customs, Baroda vs Digvijaysinhji Spinning & Weaving Mills Ltd.,[1962] 1 SCR 896 at 899.
This Court in Ram Prakash Khanna and others etc.
vs S.A.F. Abbas and others etc.
; , dealing with the aforesaid rule proviso 2, observed that under the second proviso to Rule 3(3)(b) a promotee could obtain the advantage of officiation continuously in a senior post prior to the inclusion of the name in the Select List if the period of such officiation is approved by the Central Government in consultation with the Union Public Service Commission.
This Court reiterated that approval as contemplated in Rule 3(3)(b) is a specific approval and is directed to the particular matter mentioned therein as to whether there was approval of the period of officiation prior to the inclusion in the names in the select list.
The officiation in a senior post is one of the indispensable ingredients in the application of rule 3(3)(b).
But it must be borne in mind that this was not a sine qua non.
This Court found on the materials in the appeal before this Court in that case that it could not be held that the Central Government gave any approval in consultation with the Union Public Service Commission to have the benefit of the period claimed by the appellant.
In the instant case, before the absorption of the appellant in the Himachal Pradesh Delhi, I.P.S. Cadre, his officiation had not been taken by the Central Government into consideration.
We are unable to say that the Central Government had not acted properly.
This appeal is not concerned with the assignment of year 1958 to Shri Singh but rule 16 clause (1)(iii) of the Service Rules provides for certain penalties and one of the penalties, inter alia, is the effect of superseding him in promotion to a Selection Post and as such is appealable.
We are of the opinion that the High Court was right that appeal does not necessarily lie only against the order imposing penalty and is also open to entertain appeal when the service rule was interpreted to the disadvantage of member of the service but rule 17 bars the filing of appeal after the expiry of 45 days.
Proviso to the said rule, however, gives discretion to the appellate authority to condone the delay if 866 sufficient cause is shown.
Rule 24 of All India Services (Discipline and Appeal) Rules, 1969 provides for review within different periods.
Under that rule since Shri Singh could have filed an application for review within one year, in this case remedy of review by Shri Singh had also become barred when the second order was passed.
Rule 25 regulates memorials.
It reads as follows: "A member of the Service shall be entitled to submit a memorial to the President against any order of the Central Government or the State Government by which he is aggrieved within a period of three years from the date of the passing of such order.
It appears that there is provision for appeal in the order of this nature.
Failure to prefer an appeal or apply for review was no bar to the submission of memorials to the President.
In December, 1963 in this case the year of allotment was assigned to Shri Singh.
Shri Singh made the first representation in August, 1969, after the period of limitation had expired.
It was contended, however, on behalf of the appellant relying on the Full Bench decision of the Punjab and Haryana High Court in Sunder Lal and others vs The State of Punjab, that in a case of bona fide mistake, there was always the power to rectify.
It was emphasised that every administrative authority has an inherent right to rectify its own mistakes.
So far as fixing the year 1957 was concerned, we are unable to accept the submission.
It is doubtful that inherent power can be invoked, if there is no reason for refixing the appellant 's year of 1957.
If belated claims are allowed arbitrarily, an atmosphere of uncertainty would prevail.
There should be no sense of uncertainty among public service.
Furthermore it is clear that if the fixation of year 1958 allotment is a mistake, the first representation was rejected with the order dated 23rd April, 1970 which has been set out in extenso in the judgment under appeal.
There the Government 's order reiterates that in accordance with the order contained in the Home Ministry 's letter to which reference is made, all cadre posts held by non cadre officers not on the Select List were deemed to have been kept in abeyance with effect from 27th September, 1961 onwards.
As such Shri Singh could not have claimed that he was officiating in the cadre post prior to coming on the Select List.
In those circumstances, Shri Singh could not be deemed to have officiated in cadre post during the period 6th December, 1961 to 14th May, 1963.
The order further reiterated that according to the seniority rules, the service rendered by an officer prior to inclusion in the Select List could not be counted for seniority unless approved by the Central Government in consultation 867 with the Union Public Service Commission.
It is clear that the Central Government was of the view that decision taken by it in 1963, fixing the said year of allotment was correct.
Good and cogent reasons were given for it.
It is true that the Home Ministry 's letter referred to in annexure R 4 has been quashed by the Delhi High Court but the same has no bearing on the correctness of the decision taken by the Central Government in 1963, because at the relevant time the letter was there and the Central Government was bound to act in accordance thereto.
The contention of the appellant that there was no period of limitation for the grant of the approval is not relevant.
It is therefore clear that there was no scope of the acceptance of second representation.
In the said order there is no mention of any mistake.
When the first order was made, it may be that it was not necessary to give any notice to Shri Bhanot but when the second order was made it affected adversely Shri Bhanot because he in the meantime having been absorbed in the I.P.S. in 1957.
In our opinion it is not that the constitutionality of any provision was challenged as was the case in A. Janardhana vs Union of India and Others, ; at 967 and in General Manager, South Central Railway Secundrabad and Anr.
vs A.V.R. Siddhanti and Ors.
; , , it was held that those would be affected by the grant of the year of seniority need not join as party.
But the position here is different.
Here Shri Bhanot would be adversely affected and his seniority would be affected and here the change was sought from the Government reversing the previous decision and in the meantime Shri Bhanot has acquired a year of allotment.
Therefore, in our opinion it should have been done upon notice to Shri Bhanot.
In any case, Shri Bhanot has been heard.
Our attention was drawn to certain observations of Administrative Law Cases & Materials, second edition by Peter Brett and Peter W. Hogg on the nature of appeal and in the light of the view we have taken, it is not necessary to refer to the said observations.
In the aforesaid view of the matter we are of the opinion that the High Court was right in dismissing the writ petition of the appellant herein.
We, however, having regard to the facts set out hereinbefore, direct the Central Government that the salary scale of the appellant should be refixed taking into consideration the appellant 's service in U.P. and Himachal Pradesh cadre in the senior position as a deputationist.
The appeals are, therefore, dismissed with the aforesaid directions without any order as to costs.
S.L. Appeals dismissed.

summary:
Shri Markandey Singh, the appellant in the first appeal had joined the U.P. State Service as Deputy Superintendent of Police by passing a competitive examination.
In November, 1953, he joined on deputation the Union Territory of Delhi which at that time had no police service of its own.
While on deputation and again in 1959 60, he officiated as Superintendent of Police but was reverted back for administrative reasons.
In July, 1960, Himachal Pradesh Indian Police Service was created and thereafter, the Delhi Himachal Pradesh Police Service, in March 1961.
On 6th December, 1961, Shri Singh was again promoted to officiate as Superintendent of Police.
During the period of his officiation, his request for being absorbed in the Himachal Pradesh State Police Service was accepted and he was absorbed in the State Service with effect from 27th November, 1962.
He was confirmed in the Union Territory Cadre of I.P.S. with effect from 14th May, 1964.
He was assigned 1958 as the year of allotment.
He made a representation against the order of allotment to the Central Government, claiming the benefit of officiation from 6th December, 1961 to 13th May, 1963 in the matter of fixation of his year of allotment.
The Central Government rejected the representation by order dt.
23rd April, 1970, which stated that in accordance with the orders contained in letter NO.
1/2/62 Delhi IDH(S) dated 23.8.1963 of the Home Ministry, all cadre posts held by non cadre officers not on the Select List were deemed to have been kept in abeyance with effect from 27th September, 1961 onwards, and according to the seniority rules, the service rendered by an officer prior to his inclusion in the Select List could not be counted for seniority 848 unless approved by the Central Government in consultation with the Union Public Service Commission under the Second Proviso to rule 3(3)(b) of the Seniority Rules.
The requisite approval was not there.
Shri Singh made a second representation on 23rd June, 1970.
The Central Government by order dt.
21st June, 1973, accepted the second representation, gave the benefit of officiation in question and assigned to him 1956 as the year of allotment.
The reason why the second representation was accepted was that in November, 1972, the Union Public Service Commission had approved of the officiation of Shri Singh in the I.P.S. cadre for the relevant period under the second proviso to rule 3(3)(b) of the Seniority Rules "as they stood in May, 1963.
" In consequence, he was placed above Shri M.L. Bhanot, respondent, in the gradation list of Union Territory of I.P.S. Feeling aggrieved by the order of the Central Government, Shri Bhanot filed a writ petition before the High Court.
A Single Judge allowed the same, and quashed the order dt.
21st June, 1973.
Against the judgment of the Single Judge, two appeals were filed before the Division Bench of the High Court one by Shri Singh, and the second, by the Union of India.
Both the appeals were dismissed by the Division Bench.
Aggrieved by the decision of the High Court, Shri Singh and the Union of India filed these two appeals for relief in this Court.
Dismissing the appeals with directions, the Court, ^ HELD: The question involved in the appeals was whether the year of allotment given to Shri Singh as 1958 was correct or not and whether the order of the High Court, quashing the year of allotment given to Shri Singh as 1956 was bad or not.
This depended upon the interpretation of the various rules and provisions and the determination of the question whether an officer was entitled to the benefit of the service rendered by him in a senior post in the I.P.S. cadre of a particulare State while he was on deputation to the State Police Service of that State from another State, for the purpose of working out the year of allotment in accordance with the second proviso to unamended rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules (The 'Seniority Rules ').
[855D F] Rule 3(3)(b) of the Seniority Rules and the provisos thereto should not be read in isolation.
This rule is in the setting of other rules.
The Indian Police Service (Cadre) Rules (The 'Cadre Rules ') read with the Indian Police Service (Fixation of Cadre Strength) Regulations of 1955 849 fixed the strength of the Indian Police cadre of the Union Territories at a particular figure.
Out of them not more than 25% officers eligible for recruitment to the I.P.S. cadre had to be substantive members of the State (U.P.) Police Service at that time.
The scheme, as it stood, fixed the strength of the I.P.S. cadre State wise.
Recruitment by promotion thereto could only be from the substantive members of the Police Service of that particular State.
So long as Shri Singh remained as a substantive member of the U.P. State Police Service, he could not possibly be promoted to the joint I.P.S. Cadre of the Union Territories of Delhi and Himachal Pradesh.
He became eligible to his promotion to the Union Territory, I.P.S. cadre only after he had been absorbed in the Delhi Himachal Pradesh State Police Service.
Proviso (1) to Rule 3(3)(b) of the Recruitment Rules gives a clear indication that for determining the year of allotment ad hoc the Central Government consulted the State Government concerned.
In Explanation (2) again there is a reference to a certificate by the State Government concerned that an officer would have officiated in a senior post but for his absence on leave or appointment to any special post.
It is apparent, therefore, that the State Government is the Government of the Police Service of which the officer concerned is a substantive member.
In this case, as found by the Division Bench of the High Court, Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Police Service and he had gone back to his parent State of U.P.
In case Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Service and had gone back to his parent State of U.P., then according the Explanation (2), the U.P. State Government might have issued the certificate to facilitate his promotion to the I.P.S. Cadre of the U.P. State.
The Promotion Regulations of 1955 laid down the determination of the eligibility of a substantive member of the State Police Service.
Thereafter, the names of the eligible officers were brought on the Select List, who were to be approved by the Public Service Commission.
Appointments by promotion to the I.P.S. cadre are made from the Select List.
In the event of promotion, but for the second proviso, the benefit of continuous officiation on a senior post for fixing his year of allotment is given to an officer from the date after his being nominated on the State List.
In Explanation (1) of rule 3(3), there is no mention that deputationist before his absorption in the State Police Service can get the benefit of such officiation.
Therefore, it was not possible to accept the position that before his absorption Shri Singh was entitled to the benefit of his officiation.
The Division Bench of the High Court so held.
The Division Bench was right on this aspect of the matter.
[861D H;862A D] The Seniority Rules 1954 including rule 3(3)(b) were amended with 850 effect from 22nd April, 1967.
Before the amendment, the appellant Shri Singh had been confirmed in the Union Territory cadre of the Indian Police Service with effect from 14th May, 1964, and had been allotted 1958 as the year.
The question of allotment of Shri Singh in accordance with the Seniority Rules had ripened before the amendment of 1967.
There is no rule vitiating the operation of the old seniority rules.
Reliance was placed by the appellant Shri Singh on the decision of this Court in Arun Ranjan Mukharjee vs Union of India & Ors., , and the appellant submitted that Division Bench was in error in not following the ratio of the decision in that case.
The Court could not accept this submission.
[862D E;863C] In this case, the Central Government had not fixed the date of appellant 's absorption in the Select List as 1958 out of the hat, so to say.
It had relevance as it appeared from the basis of the order of the Central Government.
The appellant, who was a deputationist before the absorption in the State Police Service could not be entitled to get such officiation.
In case, Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Police Service and had gone back to his parent State of U.P., then, according to explanation (2) the U.P. State Government might have issued the certificate to facilitate his promotion to the I.P.S. cadre of the U.P. State.
But so long as Shri Singh remained a substantive member of the U.P. State Police Service, he could not possibly be permitted to join I.P.S. cadre of the Union Territories of Delhi and Himachal Pradesh.
In accordance with the rules, he became eligible to his promotion to the Union Territory I.P.S. cadre only after he had been absorbed in the Delhi Himachal Pradesh Police Service.
[864F H] The rules with which the Court was concerned, which state that certain year should be assigned by the Government in consultation with the Public Service Commission, must be interpreted in the light of the well established rule of construction that if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound these words in their natural and ordinary sense, the words themselves in such a case best declaring the intention of the legislature.
See in this connection the observations of this Court in The Collector of Customs, Baroda vs Digvijaysinhji Spinning & Weaving Mills Ltd., ; , 899.
[865A B] The officiation in a senior post is one of the indispensable ingredients in the application of rule 3(3)(b).
But it must be borne in mind that this was not a sine qua non.
In this case, before the absorption of 851 the appellant in the Himachal Pradesh Delhi I.P.S. cadre, his officiation had not been taken by the Central Government into consideration.
The Court could not say that the Central Government had not acted properly.
[865E F] This appeal was not concerned with the assignment of year 1958 to Shri Singh but rule 16, clause (1)(iii) of the Service Rules provides for certain penalties and one of the penalties, inter alia, is the effect of superseding him in promotion to a selection post and such is appealable.
The High Court was right that appeal does not necessarily lie only against the order imposing penalty and it is also open to entertain appeal when the service rule was interpreted to the disadvantage of member of the service but rule 17 bars the filing of appeal after the expiry of 45 days.
Proviso to the said rule, however, gives discretion to the appellate authority to condone the delay if sufficient cause is shown.
Rule 24 of All India Services (Discipline and Appeal) Rules 1969 provides for review within different periods.
Under that rule since Shri Singh could have filed an application for review within one year, in this case remedy of review by Shri Singh had also become barred when the second order was passed.
[865G H;866A B] It appeared that there is provision for appeal in the order of this nature.
Failure to prefer an appeal or apply for review was no bar to the submission of memorials to the President.
In December, 1963, in this case, the year of allotment was assigned to Shri Singh.
Shri Singh made the first representation in August, 1969, after the period of limitation had expired.
It was contended by the appellant relying on the full Bench decision of the Punjab & Haryana High Court in Sunder Lal & Ors.
vs The State of Punjab, that in a case of bona fide mistake, there was always the power to rectify.
It was emphasized that every Administrative authority has an inherent right to rectify its own mistakes.
It was doubtful that inherent power could be invoked if there was no reason for re fixing the appellant 's year.
If belated claims are allowed arbitrarily, an atmosphere of uncertainty would prevail.
There should be no sense of uncertainty among public service.
Furthermore, it was clear that if the fixation of year 1958 was a mistake, the first representation was rejected with the order dated 23rd April, 1970.
There, the Government 's order reiterated that in accordance with the order contained in the Home Ministry 's letter to which reference was made, all cadre posts held by the non cadre officers not on Select List were deemed to have been kept in abeyance with effect from 27th September, 1961, onwards.
As such Shri Singh could not have claimed that he had been officiating in the cadre post prior to coming on the Select List.
In 852 those circumstances, Shri Singh could not be deemed to have officiated in cadre post during the period 6th December, 1961 to 14th May, 1963.
The Central Government was of the view that the decision taken by it in 1963, fixing the year of allotment was correct.
It is true that Home Ministry 's letter referred to in Annexure R 4, had been quashed by the High Court but the same had no bearing on the correctness of the decision taken by the Central Government in 1963, because at the relevant time, the letter was there and the Central Government was bound to act in accordance therewith.
The contention of the appellant that there was no period of limitation for the grant of the approval was not relevant.
It was, therefore, clear that there was no scope of acceptance of the second representation.
In the said order, there was no mention of any mistake.
[866C H;867A C] When the second order was made, it affected Shri Bhanot adversely because he in the meantime had been absorbed in the I.P.S. in 1957.
It was not that the constitutionality of any provision was challenged as was the case in A. Janardhana vs Union of India & Ors., ; , 967.
In this case, seniority of Shri Bhanot would be adversely affected as he had acquired a year of allotment.
In the opinion of the Court, it should have been done upon notice to Shri Bhanot.
[867C E] The High Court was right in dismissing the writ petition of the appellant.
Having regard to the facts of the case, the Central Government was directed to refix the salary scale of the appellant, taking into consideration the appellant 's service in U.P. and Himachal Pradesh cadre in the senior position as a deputationist.
[867G] Arun Ranjan Mukherjee vs Union of India & Ors., ;Madan Gopal Singh vs Union of India, ;D.R. Nim, I.P.S. vs Union of India, ; ;Government of India and Anr.
vs C.A. Balakrishnana & Ors., ;The Collector of Customs, Baroda vs Digvijaysinhji Spinning & Weaving Mills Ltd., ; , 899;Ram Prakash Khanna & Ors., etc.
vs S.A.F. Abbas & Ors., etc.; , ;Sunder Lal & Ors.
vs The State of Punjab, ;A. Janardhana vs Union of India & Ors., ; ,967 and General Manager, South Central Railway Secundrabad & Anr., etc.
vs A.V.R. Siddhanti & Ors., etc.; , , referred to.