judgement:
ition (Civil) No. 292 of 1986.
Under Article 32 of the Constitution of India.
Petitioner in person.
C.M. Nayar, C.V. Subba Rao, Pankaj Kalra, Ms. Abha Jain, A.K. Goel, T.V.S.N. Chari and S.M. Ashri for the Respondents The Judgment of the Court was delivered by O. CHINNAPPA REDDY, J.
Miss Neelima Shangla desires to be .
appointed to the Haryana Civil Service (Judicial) Branch.
She has a brilliant academic record.
The certificates produced by her show that from Matriculation to LL.B. she has passed every one of her examinations m the first division.
She was ranked No. 2 in the LL.B. examina tion of the Punjab University.
She was awarded the national merit scholarship and the UGC 's scholarship.
She was also awarded the medal for the best all round student of the Law Department in the year 1980 81.
Her extra curricular activities also appear to be of a very high order.
She was President of the College Young Speakers ' Club, Vice President of the College Students ' Council, the best camper and debater and represented the Punjab University in the All India Rock Climbing and Mountaineering Camp.
She was the student Editor of the College Magazine, the Law Review and the Punjab University Magazine.
She has also some published works to her credit.
She appeared at the competitive test held in 1983 84 for selection to the Haryana Civil Service (Judicial) Branch.
She secured 60.8 per cent marks in the written test and 50.5 per cent marks in the viva voce test.
She was ranked No. 24.
It may be mentioned here that there were altogether 774 applicants, while 390 only appeared at the test.
Out of the candidates who appeared at the test, 54 candidates belonging to the general category, four candidates belonging to backward classes, four candidates belonging to scheduled castes and two candidates belonging to the category of ex servicemen, qualified for appointment by securing the prescribed minimum of 55 per cent.
According to the petitioner, though there were 54 vacancies altogether, the Public Service Commission purported to recommend 26 candidates only and they included 17 from the general category.
The petitioner claims that 32 candidates in order of merit from the general category should have been selected for appointment and that the Service.
Commission 788 illegally withheld the names of all the successful candidates from the Government and the High Court.
She contents that if the rules had been adhered to, she would have been selected for appointment.
To appreciate her submission, it is necessary to refer to the relevant rules.
The rules relating to the appointment of Subordinate Judges in Haryana are in six parts A, B, C, D, & F. Part A deals with qualifications.
Part deals with submission of rolls.
Part deals with examination of candidates.
Rule 1 of Part provides that an examination will be held at a place to be determined by the Haryana Public Service Commission.
Rule S provides that the Judges of the High Court may, from time to time, declare the subjects in which the examination will be held.
Rule 7 prescribes that no candidate shall be called for the viva voce test unless he obtains at least 45 per cent marks in the aggregate in all the written papers and 33 per cent marks in the language paper, Hindi (in Devanagri script).
Rule 8 is important and it is as follows.
"No candidate shall be considered to have qualified in the examination unless he obtains at least 55 per cent in the aggregate of all papers including Viva Voce test.
The merit of the qualified candidates shall be determined strictly according to the marks obtained by them.
Provided that in case two or more candidates obtain equal marks, their merit shall be determined according to the marks secured by them in the Viva Voce and if the marks in the Viva Voce of the candidates are also equal, the older in age shall be placed higher in order of merit," Rule 10 is also important and it is as follows: "(i) The result of the examination will Haryana Government Gazette.
(ii) Candidates will be selected for appointment strictly in the order in which they have been placed by the Haryana Public Service Commission in the list of those who have qualified under rule 8: Provided that in the case of candidates belonging to 789 the Scheduled Castes/Tribes and other Backward Classes, Government will have a right to select in order of merit a candidate who has merely qualified under rule 8, irrespective of the position obtained by him in the examination: Provided further that the selection of candidates belonging to the Scheduled Castes/ Tribes and other Backward Classes in the order of merit inter se shall be made against the vacancies reserved for them and in the manner prescribed by Government from time to time.
" Part of the rules deals with "Appointment".
Rule 1 of Part is as follows: "The names of candidates, selected by Government for appointment as Subordinate Judges under rules 10 and 11 of Part C, shall be entered on the High Court Register in the order of their selection." Rule 7(1) may also be extracted and it is as follows: "Whenever it shall appear to the Judges that a vacancy or vacancies in the cadre of the Judicial Branch of the Haryana Civil Service, whether permanent, temporary or officiating, should be filled, they will make a selection from the High Court Register in the order in which the names have been entered in the register under rule 1 of this Part.
The name or names of the selected candidate or candidates will be forwarded to Government for appointment as Subordinate Judges under Article 234 of the Constitution of India.
Every Subordinate Judge shall, in the first instance, be appointed on probation for two years but this period may be extended from time to time expressly or impliedly so that the total period of probation including extension, if any, does not exceed three years.
Explanation The period of probation shall be deemed to have been extended impliedly if a Subordinate Judge is not confirmed on the expiry of his period of probation. ' Rule 8 is again important and it is as follows: 790 "There is no limit to the number of names borne on the High Court Register but ordinarily no more names will be included than are estimated to be sufficient for the filling of vacancies which are anticipated to be likely to occur within two years from the date of selection of candidates as a result of an examination.
" The scheme of the rules appears to be that the Public Service Commission should hold first a written test in subjects chosen by the High Court and next a Viva Voce test.
Unless a candidate secures 45 per cent of the marks in the written papers and 33 per cent in the language paper, he will not be called for the Viva Voce test.
All candidates securing 55 per cent of the marks in the aggregate in the written and Viva Voce tests are considered as qualified for appointment, their merit being determined strictly in accordance with the marks obtained by them.
The result of the examination is required to be published in the Haryana Gazette and the selection for appointment is to be made strictly in the order in which they have been placed by the Service Commission in the list of candidates qualified under rule 8 of Part C.
The names of the selected candidates are to be entered in a Register maintained by the High Court in the order of their selection and appointments are to be made from the names entered in the Register in that order.
The number of names to be entered in the Register maintained by the High Court may be sufficient to fill vacancies anticipated to occur within two years from the date of selection of candidates as a result of the examination.
Therefore, it appears that the duty of the Public Service Commission is confined to holding the written examination, holding the Viva Voce test and arranging the order of merit according to marks among the candidates who have qualified as a result of the written and the Viva Voce tests.
Thereafter the Public Service Commission is required to publish the result in the Gazette and, apparently to make the result available to the Government.
The Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withheld the names of any qualified candidates.
The duty of the Public Service Commission is to make available to the Government a complete list of qualified candidates arranged in order of merit.
Thereafter the Government is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination.
The names of the selected candidates are then to be entered in the Register maintained by the High Court strictly in that order and appointments made from the names 791 entered in that Register also strictly in the same order.
It is, of course, open to the Government not to fill up all the vacancies for a valid reason.
The Government and the High Court may, for example, decide that, though 55 per cent is the minimum qualifying mark, in the interests of higher standards, they would not appoint anyone who has obtained less than 60 per cent of the marks.
Something of that nature happened in State of Haryana vs Subash Chander Marwah & Ors.
In that case, though the rules prescribed a minimum 45 per cent of the aggregate marks to be qualified for appointment as a Subordinate Judge, the High Court and the Government decided not to appoint candidates who had secured less than 55 per cent marks.
The result was that although there were a large number of vacancies, only a few candidates were selected for appointment.
The selection was challenged on the ground that it could not be so restricted when qualified candidates were available.
This court rejected the submission and upheld the selection.
However, as we said, the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates.
There must be a conscious application of the mind of the Government and the High Court before the number of persons selected for appointment is restricted.
Any other interpretation would make rule 8 of Part meaningless.
In the present case, though the rules required the Public Service Commission to publish the result of the examination and, apparently, also to communicate the result to the Government, the Public Service Commission did not publish the result in the first instance and sent only the names of 17 candidates belonging to general category to the Government, though many more had qualified.
That was wrong.
The names of all the qualified candidates had to be sent to the Government.
The reason given by the Public Service Commission for not communicating the entire list of qualified candidates to Government is that they were originally informed that there were only 28 vacancies.
That is not a sound reason at all.
Under the "Rules relating to the appointment of Subordinate Judges in Haryana", the Public Service Commission is not concerned with the number of vacancies at all.
Nor is it expected to withhold the full list of successful candidates on the ground that only a limited number of vacancies are available.
The Government of Haryana has taken the stand that they were unable to select and appoint more candidates as the names of only a few candidates were sent to them by the Public Service Commission.
It now transpires that even before the Public Service Commission sent its truncated list to the Government, the High Court had already informed the Government that there were more vacancies 792 which required to be filled.
The Government not knowing that the names of several candidates who were qualified had been withheld from the Government by the Service Commission, wrote to the Service Commission to held a fresh competitive examination.
If the Government had been aware that there were qualified candidates available, they would have surely applied rule 8 of Part and made the necessary selection to be communicated to the High Court.
The net result is that qualified candidates, though available, were not selected and were not appointed.
Miss Neelima Shangla is one of them.
In the view that we have taken of the rules, Miss Neelima Shangla is entitled to be selected for appointment as Subordinate Judge in the Haryana Civil Service (Judicial) Branch.
By an interim order of this Court, one post of Subordinate Judge has been kept vacant for her.
We direct the first respondent (Government of Haryana) to include the name of the petitioner (Miss Neelima Shangla) in the 1984 List of candidates selected for appointment as subordinate judges in the Haryana Judicial Service (Judicial Branch) and forward the same to the High Court of Punjab and Haryana for inclusion in the High Court Register maintained under Rule 1 of Part of the Rules.
She will be entitled to her due place in the Seniority List of the 1984 batch.
The petitioner will be entitled to her costs which we quantify at Rs. 5000.
As a result of our finding a few more candidates would also be entitled to be included in the Select List and ordinarily we would have directed their inclusion in the list.
But having regard to the fact that most of the others have not chosen to question the selection and the circumstance that two years have elapsed we do not propose to make any such general order as that would completely upset the subsequent selection and create confusion and multiplicity of problems.
The cases of any other candidate who may have already filed a writ petition; this Court or the High Court will be disposed of in the light of the, judgment.
These who have not so far chosen to question the selection will not be allowed to do so in the future because of their laches.

summary:
Out of 390 candidates who appeared at the test held in 1983 84 for selection to the Haryana Civil Service (Judicial Branch), 54 candidates belonging to the general category, four candidates belonging to the backward classes, four candidates belonging to scheduled castes and two candidates belonging to the category of ex servicemen, qualified for appointment by securing the prescribed minimum of 55 per cent.
The petitioner was ranked No. 24.
There were 54 vacancies altogether but the Public Service Commission recommended 26 candidates only and they included 17 from the general category.
In a writ petition under article 32 of the Constitution, the petitioner contended (i) that if the rules relating to the appointment of Subordinate Judges in Haryana had been adhered to, she would have been selected for appointment; and (ii) that 32 candidates in order of merit from the general category should have been selected for appointment and that the Service Commission illegally withheld the names of all the successful candidates from the Government and the High Court.
Allowing the writ petition, ^ HELD: 1.1 The scheme of the rules relating to the appointment of Subordinate Judges in Haryana appears to be that the Public Service Commission should hold first a written test in subjects chosen by the High Court and next a Viva voce test.
The result of the examination is required to be published in the Haryana Gazette and the selection for appointment is to be made strictly in the order in which the candidates 786 have been placed by the Service Commission in the list of candidates qualified under rule 8 of Part C. [790 B D] 1.2 Under the "Rules relating to the appointment of Subordinate Judges in Haryana", the Public Service Commission is not concerned with the number of vacancies at all.
Nor is it expected to withhold the full list of successful candidates on the ground that only a limited number of vacancies are available.
The duty of the Public Service Commission is confined to holding the written examination, holding the Viva voce test and arranging the order of merit according to marks among that candidates who have qualified as a result of the written and the Viva voce tests.
Thereafter the Public Service Commission is required to publish the result in the Gazette and, apparently to make the result available to the Government.
The Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withhold the names of any qualified candidates.
The duty of the Public Service Commission is to make available to the Government a complete list of qualified candidates arranged in order of merit.
Thereafter the Government is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination.
The names of the selected candidates are then to be entered in the Register maintained by the High Court strictly in that order and appointments made from the names entered in that Register also strictly in the same order.
It is, of course, open to the Government not to fill up all the vacancies for a valid reason.
[790 E H; 791 A] 2.
The selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates.
There must be a conscious application of the mind of the Government and the High Court before the number of persons selected for appointment is restricted.
Any other interpretation would make rule 8 of Part of the Rules relating to the appointment of Subordinate Judges in Haryana meaningless.
[791 D E] In the instant case, the reason given by the Public Service Commission for not communicating the entire list of qualified candidates to the Government is that they were originally informed that there were only 28 vacancies.
That is not a sound reason at all.
The net result is that qualified candidates, though available, were not selected and were not appointed.
The petitioner is one of them.
Therefore, she is entitled to be selected for appointment as Subordinate Judge in the Haryana Civil Service (Judicial Branch).


judgement:
Civil Appeal Nos.
1495 1507 and 1509 1511 of 1986 etc.
From the Judgment and order dated 24.5.1985 of the Allahabad High Court in Civil Misc.
Writ Petition Nos. 7729/82, 12762/81, 7810, 7865, 8408, 8409, 8407, 8410, 8872, 9527, 9439, 2482, 5170, 5122, 7903 and 7904 of 1982.
K. Parasaran, Attorney General, Anil Dev Singh, Mrs. section Dixit, B.P. Maheshwari and S.N. Agarwal for the Appellants.
R.K. Garg, Raja Ram Agarwal, P.D. Sharma, M.C. Dhingra, D.D. Gupta and Ashok Srivastava for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
Meerut city which is situated in a densely populated part of the State of Uttar Pradesh is growing very fast.
The State Government constituted a Development Authority under the provisions of the U.P. Urban Planning and Development Act, 1973 for the city of Meerut for the purpose of tackling the problems of town planning and urban development resolutely, since it felt that the existing local body and other authorities in spite of their best efforts had not been able to cope up with the problems to the desired extent.
The Meerut Development Authority sent a proposal to the Collector of Meerut for acquisition of 662 bighas 10 biswas and 2 biswanis of land (approximately equal to 412 acres) situated at villages Mukarrabpur, Plahera, Paragana Daurala, Tehsil Sardhana, Distt.
Meerut for its housing scheme with the object of providing housing accommodation to the residents of Meerut city.
After making necessary enquiries and receipt of the report from the tehsildar of Sardhana, the Collector was fully satisfied about the need for the acquisition of the land.
He accordingly wrote a letter on December 13, 1979 to the Commissioner and Secretary, Housing and Urban Development, Government of Uttar Pradhesh recom mending the acquisition of the above extent of land in the villages men 747 tioned above and he also stated that since there was acute shortage of houses in Meerut city, it was necessary that the State Government should invoke section 17(i) and (4) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act ').
He also submitted a certificate as required by the Rules containing the relevant data on the basis of which the Government could take a decision.
In that certificate he stated that the acquisition of the land was very necessary for the purposes of the housing scheme.
The total value of the land was estimated to be about Rs.55,01,270.25 paise and the cost of trees and structures was stated to be in the order of about Rs. 1 lakh.
The Secretary of the Meerut Development Authority also submitted his certificate in support of the acquisition of the land in question.
He stated that the proposed cost of the project was in the order of Rs. 48 crores.
He also furnished the number of flats to be constructed and house sites to be allotted.
The certificate further stated that the land which was proposed to be acquired was being used for cultivation and that the said land had been proposed to be used for residential purposes under the master plan of Meerut city.
After taking into consideration all the material before it including the certificates of the Collector and the Secretary, Meerut Development Authority, referred to above, the State Government published a notification under subsection (1) of section 4 of the Act notifying for general information that the land mentioned in the Schedule was needed for a public purpose, namely, for the construction of residential buildings for the people of Meerut by the Meerut Development Authority under a planned development scheme.
The notification further stated that the State Government being of the opinion that the provisions of subsection (1) of section 17 of the Act were applicable to the said land inasmuch as it was arable land which was urgently required for the public purpose, referred to above.
The notification further directed that section 5 A of the Act shall not apply to the proposed acquisition.
The above notification was published in the U.P. Gazette on July 12, 1980 and it was followed by a declaration under section 6 of the Act which was issued on May 1, 1981.
The possession of the land, which had been notified for acquisition, was taken and handed over to the Meerut Development Authority in July, 1982.
Thereafter about 17 persons who owned in all about 40 acres of land out of the total of about 412 acres acquired, filed writ petitions in the High Court of Allahabad questioning the notification under section 4 and declaration under section 6 of the Act on the ground that the action of the Government in invoking section 17(1) of the Act and dispensing with the inquiry under section 5 A of the Act was not called for in the circumst 748 ances of the case.
The High Court after hearing the parties held that the notification dated 29.4.1980 under section 4 of the Act which contained a direction under section 17(4) of the Act dispensing with the inquiry under section 5 A of the Act was an invalid one and, therefore, both the notification under section 4 and the subsequent declaration made under section 6 of the Act were liable to be quashed.
Accordingly they were quashed.
It should be stated here that while only 17 persons owning about 40 acres of land had filed the writ petitions, the High Court set aside the acquisition of the entire extent of about 412 acres.
That was the effect of quashing the notification issued under section 4(1) of the Act and all subsequent proceedings as the relief was not confined to the petitioners only.
By the time the judgment of the High Court was pronounced on May 24, 1985, it is stated, that the Meerut Development Authority had spent more than Rs.4 crores on the development of the land which had been acquired.
By then 854 houses had been constructed on the land and 809 plots had been allotted by it to various persons.
All the landowners other than the writ petitioners before the High Court had been paid two thirds of the compensation due to them.
Aggrieved by the decision of the High Court, the State of Uttar Pradesh and the Meerut Development Authority have filed the above appeals by special leave.
The main ground on which the High Court set aside the impugned notification and the declaration was that the case of urgency put forward by the State Government for dispensing with the compliance with the provisions of section 5 A of the Act had been belied by the delay of nearly one year that had ensued between the date of the notification under section 4 and the date of declaration made under section 6 of the Act.
It, however, rejected the contention of the petitioners based on the delay that had preceded the issue of the notification under section 4 of the Act.
The High Court observed that 'if the Government were satisfied with the urgency it would have certainly issued declaration under section 6 of the Act immediately after the issue of the notification under section 4 of the Act. ' It found that the failure to issue declaration under section 6 of the Act immediately on the part of the State Government was fatal.
That there was delay of nearly one year between the publication of the notification under section 4(1) of the Act containing the direction dispensing with the compliance with section 5 A of the Act and the date of publication of the 749 declaration issued under section 6 of the Act is not disputed.
It is seen from the record before us that after the publication of the notification under section 4(1) of the Act, the Collector after going through it found that there were some errors in the notification which needed to be corrected by issuing a corrigendum.
Accordingly, he wrote a letter to the State Government on 25.8.1980 pointing out the errors and requesting the State Government to publish a corrigendum immediately.
Both the corrigendum and the declaration under section 6 of the Act were issued on May 1, 1981.
It is on account of some error on the part of the officials who were entrusted with the duty of processing of the case at the level of the Secretariat there was a delay of nearly one year between the publication of the notification under section 4(1) and the publication of the declaration under section 6 of the Act.
The question for consideration is whether in the circumstances of the case it could be said that on account of the mere delay of nearly one year in the publication of the declaration it could be said that the order made by the State Government dispensing with the compliance with section 5 A of the Act at the time of the publication of the notification under section 4(1) of the Act would stand vitiated in the absence of any other material.
In this case there is no allegation of any kind of mala fides on the part of either the Government or any of the officers, nor do the respondents contend that there was no urgent necessity for providing housing accommodation to a large number of people of Meerut city during the relevant time.
The letters and the certificates submitted by the Collector and the Secretary of the Meerut Development Authority to the State Government before the issue of the notification under section 4(1) of the Act clearly demonstrated that at that time there was a great urgency felt by them regarding the provision of housing accommodation at Meerut.
The State Government acted upon the said reports, certificates and other material which were before it.
In the circumstances of the case it cannot be said that the decision of the State Government in resorting to section 17(1) of the Act was unwarranted.
The provision of housing accommodation in these days has become a matter of national urgency.
We may take judicial notice of this fact.
Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke section 17(1) of the Act and to dispense with the compliance with section 5 A of the Act.
Perhaps, at the time to which the decision in Narayan Govind Gavate etc.
vs State of Maharashtra, [1977] (1) S.C.R. 768 related the situation might have been that the schemes relating to development of residential areas in the urban centres were not so urgent and it was not necessary to eliminate the inquiry under 750 section 5 A of the Act.
The acquisition proceedings which had been challenged in that case related to the year 1963.
During this period of nearly 23 years since then the population of India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes of development of residential areas do not 'appear to demand such emergent action as to eliminate summary inquiries under section 5 A of the Act '.
In Kasireddy Papaiah (died) and Ors.
vs The Government of Andhra Pradesh & Ors., A.I.R. 1975 A.P. 269.
Chinnappa Reddy, J. speaking for the High Court of Andhra Pradesh dealing with the problem of providing housing accommodation to Harijans has observed thus: "That the housing conditions of Harijans all over the country continue to be miserable even today is a fact of which courts are bound to take judicial notice.
History has made it urgent that, among other problems, the problem of housing Harijans should be solved expeditiously.
The greater the delay the more urgent becomes the problem.
Therefore, one can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for Harijans is bad merely because the officials entrusted with the task of taking further action in the matter are negligent or tardy in the discharging of their duties, unless, of course, it can be established that the acquisition itself is made with an oblique motive.
The urgent pressures of history are not to be undone by the inaction of the bureaucracy.
I am not trying to make any pontific pronouncements.
But I am at great pains to point out that provision for house sites for Harijans is an urgent and pres sing necessity and that the invocation of the emergency provisions of the Land Acquisition Act cannot be said to be improper, in the absence of mala fides, merely because of the delay on the part of some Government officials." (Underlining by us) What was said by the learned Judge in the context of provision of housing accommodation to Harijans is equally true about the problem of providing housing accommodation to all persons in the country today having regard to the enormous growth of population in the country.
The observation made in the above decision of the High Court of Andhra Pradesh is quoted with approval by this Court in 751 Deepak Pahwa etc.
vs Lt. Governor of Delhi & Ors., ; even though in the above decision the Court found that it was not necessary to say anything about the post notification delay.
We are of the view that in the facts and circumstances of this case the post notification delay of nearly one year is not by itself sufficient to hold that the decision taken by the State Government under section 17(1) and (4) of the Act at the time of the issue of the notification under section 4(1) of the Act was either improper or illegal.
It was next contended that in the large extent of land acquired which was about 412 acres there were some buildings here and there and so the acquisition of these parts of the land on which buildings were situated was unjustified since those portions were not either waste or arable lands which could be dealt with under section 17(1) of the Act.
This contention has not been considered by the High Court.
We do not, however, find any substance in it.
The Government was not acquiring any property which was substantially covered by buildings.
It acquired about 412 acres of land on the out skirts of Meerut city which was described as arable land by the Collector.
It may be true that here and there were a few super structures.
In a case of this nature where a large extent of land is being acquired for planned development of the urban area it would not be proper to leave the small portions over which some super structures have been constructed out of the development scheme.
In such a situation where there is real urgency it would be difficult to apply section 5 A of the Act in the case of few bits of land on which some structures are standing and to exempt the rest of the property from its application.
Whether the land in question is waste or arable land has to be judged by looking at the general nature and condition of the land.
It is not necessary in this case to consider any further the legality or the propriety of the application of section 17(1) of the Act to such portions of land proposed to be acquired, on which super structures were standing because of the special provision which is inserted as sub section (1 A) of section 17 of the Act by the Land Acquisition (U.P. Amendment) Act (20 of 1954) which reads thus: "(1 A).
The power to take possession under sub section (1) may also be exercised in the case of land other than waste or arable land where the land is acquired for, in connection with sanitary improvements of any kind or planned development.
" It is no doubt true that in the notification issued under section 4 752 of the Act while exempting the application of section 5 A of the Act to the proceedings, the State Government had stated that the land in question was arable land and it had not specifically referred to sub section (1 A) of section 17 of the Act under which it could take possession of land other than waste and arable land by applying the urgency clause.
The mere omission to refer expressly section 17(1 A) of the Act in the notification cannot be considered to be fatal in this case as long as the Government had the power in that sub section to take lands other than waste and arable lands also by invoking the urgency clause.
Whenever power under section 17(1) is invoked the Government automatically becomes entitled to take possession of land other than waste and arable lands by virtue of sub section (1 A) of section 17 without further declaration where the acquisition is for sanitary improvement or planned development.
In the present case the acquisition is for planned development.
We do not, therefore find any substance in the above contention.
It is, however, argued by the learned counsel for the respondents that many of the persons from whom lands have been acquired are also persons without houses or shop sites and if they are to be thrown out of their land they would be exposed to serious prejudice.
Since the land is being acquired for providing residential accommodation to the people of Meerut those who are being expropriated on account of the acquisition proceedings would also be eligible for some relief at the hands of the Meerut Development Authority.
We may at this stage refer to the provision contained in section 21(2) of the Delhi Development Act, 1957 which reads as follows: "21(2).
The powers of the Authority or, as the case may be, the local authority concerned with respect to the disposal of land under sub section (1) shall be so exercised as to secure, so far as practicable, that persons who are living or carrying on business or other activities on the land shall, if they desire to obtain accommodation on land belonging to the Authority or the local authority concerned and are willing to comply with any requirements of the Authority or the local authority concerned as to its development and use, have an opportunity to obtain thereon accommodation suitable to their reasonable requirements on terms settled with due regard to the price at which any such land has been acquired from them: Provided that where the Authority or the local au 753 thority concerned proposes to dispose of by sale any land without any development having been undertaken or carried out thereon, it shall offer the land in the first instance to the persons from whom it was acquired, if they desire to purchase it subject to such requirements as to its develop ment and use as the Authority or the local authority concerned may think fit to impose." Although the said section is not in terms applicable to the pre sent acquisition proceedings, we are of the view that the above provision in the Delhi Development Act contains a wholesome principle which should be followed by all Development Authorities throughout the country when they acquire large tracts of land for the purposes of land development in urban areas.
We hope and trust that the Meerut Development Authority, for whose benefit the land in question has been acquired, will as far as practicable provide a house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban area in question.
Having regard to what we have stated above, we are of the view that the judgment of the High Court cannot be sustained and it is liable to be set aside.
We accordingly allow these appeals, set aside the judgment of the High Court and dismiss the Writ Petitions filed by the respondents in the High Court.
There is no order as to costs.
P.S.S. Appeals allowed.

dataset_name: IN-Abs

summary:
The appellants are owners of arable land Lying on the outskirts of Meerut City.
The land was sought to be acquired by the Meerut Development Authority for its scheme to provide housing accommodation to the residents of the city.
The Collector, recommended the acquisition of the said land on December 13, 1979, stating that in view of the acute shortage of houses in the city it was necessary that the State Government invoke section 17(1) and (4) of the Land Acquisition Act, 1894.
The notification under section 4(1) of the Act dated April 29, 1980 was published in the Gazette on July 12, 1980, stating that the provisions of sub section
(1) of section 17 of the Act were applicable to the said land and that section 5 A shall not apply to the proposed acquisition.
After publication of the notification the Collector noticed some errors in it which needed to be corrected by a corrigendum.
The corrigendum and the declaration under section 6 of the Act were issued on May 1, 1981.
The possession of the land was taken and handed over to the Authority in July 1982.
The appellants filed writ petitions in the High Court questioning the notification under section 4 and declaration under section 6 of the Act alleging that the action of the Government in invoking section 17(1) and dispensing with the inquiry under section 5A were not called for since the case of urgency put forward by the State Government had been belied by the delay of nearly one year that had ensued between the date of notifica 744 tion under section 4 and the declaration under section 6 of the Act.
It was also contended that in the large extent of the land acquired there were some buildings here and there and so the acquisition was not justified since these portions were not either waste or arable lands which could be dealt with under section 17(1).
The High Court being of the view that the failure to issue the declaration under s.6 of the Act immediately after the notification under section 4 was fatal, held that the notification dated April 29, 1980 under section 4 which contained a direction under section 17(4) dispensing with the inquiry under section 5A of the Act was invalid and, therefore, both the notification under section 4 and the subsequent declaration made under section 6 were liable to be quashed.
In the appeals by special leave to this Court on the question: Whether in the circumstances of the case it could be said that on ac count of mere delay of nearly one year in the publication of the declaration it could be said that the order made by the State Government dispensing with compliance with section 5A at the time of publication of the notification under section 4(1) would stand vitiated in the absence of any other material.
Allowing the appeals, ^ HELD: 1.1 Having regard to the enormous growth of population in the country the provision of housing accommodation in these days has become a matter of national urgency.
The schemes relating to development of residential areas in the urban centres are so urgent that it is necessary to invoke section 17(1) of the Act to dispense with the inquiry under section 5A. [749 F G] 1.2 In the instant case, there is no allegation of any kind of mala fides on the part of either the Government or any of the officers, nor do the respondents contend that there was no urgent necessity for providing housing accommodation to a large number of people of the city during the relevant time.
[749 E] 1.3 The mere fact that on account of some error on the part of the officials processing the case at the level of the Secretariat there was a post notification delay of nearly one year in issuing declaration under section 6 is, therefore, not by itself sufficient to hold that the decision taken by the State Government under section 17(1) and (4) of the Act at the time of the issue of the notification under section 4(1) of the Act was either improper or illegal.
[751 A B] 745 Deepak Pahwa etc.
vs Lt. Governor of Delhi & Ors., ; referred to.
Narayan Govind Gavate etc.
vs State of Maharashtra, distinguished.
2.1 Where a large extent of land is being acquired for planned development of an urban area it would not be proper to leave small portions, over which some super structures have been constructed, out of the development scheme.
In a situation where there is real urgency it would be difficult to apply section 5 A of the Act in the case of few bits of land on which some structures are standing and to exempt the rest of the property from its application.
[751 D E] 2.2 Whether the land in question is waste or arable land has to be judged by looking at the general nature and condition of land.
[751 E F] 3.1 Whenever power under section 17(1) is invoked, the Government automatically becomes entitled to take possession of land, other than waste and arable, by virtue of sub section
(1 A) of section 17 without further declaration where the acquisition is for sanitary improvement or planned development.
[752 B C] 3.2 In the instant case, the acquisition was for planned development.
The mere omission to refer expressly to section 17(1 A) of the Act in the notification cannot be considered to be fatal in this case.
[752 B] 4.1 It may be that many of the persons from whom lands have been acquired are also persons without houses or shop sites and if they are to be thrown out of their lands they would be exposed to serious prejudice.
Since the land is being acquired for providing residential accommodation to the people of Meerut those who are being expropriated on account of the acquisition proceedings would also be eligible for some relief at the hands of the concerned Development Authority.
[752 D E] 4.2 Although section 21(2) of the Delhi Development Act, 1957 which provides for such relief is not in terms applicable to the present acquisition proceedings, the provision nonetheless contains a wholesome principle which should be followed by all Development Authorities throughout the country when they acquire large tracts of land for the purposes of land development in urban areas.
[753 B C] The Meerut Development Authority, for whose benefit the land in 746 question has been acquired, it is hoped, will as far as practicable, provide a house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban area in question.
[753 C D]


judgement:
No. 1669 of 1986.
(Under Article 32 of the Constitution of India).
By post.
The Judgment of the Court was delivered by THAKKAR, J.
Reasons, good and substantial, exist for directing the petitioner to approach the concerned High Court in the first instance instead of knocking at the doors of this Court straightaway.
And these need to be spelled out.
An illustration may tell more effectively, what other wise may not be told as effectively, and perhaps, only with some embarrassment.
Suppose there is only one National Hospital established especially for performing open heart surgery which cannot be performed elsewhere in any of the eighteen Regional Hospitals.
What will happen to the pa tients needing such surgery, if the National Hospital which alone is specially equipped for this type of surgery, throws its doors wide open also for patients suffering from other ailments who can be treated by any and every one of the eighteen Regional Hospitals? More particularly when the patients already admitted for such surgery by the National Hospital are already lying unattended to on its floors, and in its corridors, for an unconscionably long time? Showing sympathy for a patient with other than a heart problem who can also be treated equally effectively, and perhaps much more quickly, may well constitute cruelty to the heart patients who can be treated only by the National Hospital established especially and exclusively for the treatment of such patients.
Will it not be more merciful to all concerned (by being firm enough) to tell those suffering from other than heart problems to go to Regional Hospitals, instead of insisting on being treated at the National Hospital, which also can of course treat them, but only at the cost of neglecting the heart patients who have nowhere else to go '? More so as the patients going to the Regional Hospital may well benefit much more by securing more personalized and urgent attention thereat.
On the other hand, not to do so many well amount to being engaged in trying to relieve the distress of those whose distress can be 316 removed by any one else at the cost of refusing to treat those who cannot be treated by any one else.
If this Court takes upon itself to do everything which even the High Courts can do, this Court will not be able to do what this Court alone can do under article 136 of the Con stitution of India, and other provisions conferring exclu sive jurisdiction on this Court.
There is no reason to assume that the concerned High Court will not do justice.
Or that this Court alone can do justice.
If this Court enter tains Writ Petitions at the instance of parties who approach this Court directly instead of approaching the concerned High Court in the first instance, tens of thousands of Writ Petitions would in course of time be instituted in this Court directly.
The inevitable result will be that the arrears pertaining to matters in respect of which this Court exercises exclusive jurisdiction under the Constitution will assume more alarming proportions.
As it is, more than ten years old Civil Appeals and Criminal Appeals are sobbing for attention.
It will occasion great misery and immense hard ship to tens of thousands of litigants if the seriousness of this aspect is not sufficiently realized.
And this is no imaginary phobia.
A dismissed government servant has to wait for nearly ten years for redress in this Court. ' A litigant whose appeal has been dismissed by wrongly refusing to condone delay has to wait for 14 years before his wrong is righted by this Court.2 The time for imposing self disci pline has already come, even if it involves shedding of some amount of institutional ego, or raising of some eye brows.
Again, it is as important to do justice at this level, as to inspire confidence in the litigants that justice will be meted out to them at the High Court level, and other levels.
Faith must be inspired in the hierarchy of Courts and the institution as a whole.
Not only in this Court alone.
And this objective can be achieved only by this Court showing trust in the High Court by directing the litigants to ap proach the High Court in the first instance.
Besides, as a matter of fact, if matters like the present one are insti tuted in the High Court, there is a likelihood of the same being disposed of much more quickly, and equally effective ly, on account of the decentralisation of the process of administering justice.
We are of the opinion that the peti tioner should be directed to adopt this course and approach the High Court.
* More than 9000 are already pending now.
Kashinath Dikshita vs Union of India and others (SCC 1986 Vol.
3 p. 229) 2.
Shankarrao vs Chandrasenkunwar (Civil Appeal No. 1355(N) of 1973 decided on January 29, 1987.
317 It needs to be clarified that it will be open to the High Court to call upon the petitioner to present a properly framed Writ Petition without obliging him to incur the legal and other incidental expenditure if the petitioner cannot afford the same.
The matter may in such an event be assigned to a learned Advocate practicing in the High Court through the State Legal Aid and Assistance Board, or through the High Court Legal Aid Committee which can provide him with the requisite funds to enable him to do the needful.
It will also be open to the High Court to request the learned Dis trict Judge of Vadodara to look into the matter from the point of view of the complaints made in the letter in ques tion, and make an appropriate report to enable the High Court to pass such suitable orders as may be called for in the facts and circumstances of the case in order to secure ends of justice.
These are the reasons which we 'now ' articulate in support of the order we passed 'then '.

summary:
In a writ petition filed under Article 32 of the Consti tution of India, the Court found that good and substantial reasons existed for directing the petitioner to approach the concerned High Court in the first instance instead of knock ing at the doors of this Court straightaway.
While directing so, this Court, HELD: 1.
If Supreme Court takes upon itself to do every thing which even the High Court can do, this Court will not be able to do what this Court alone can do under article 136 of the Constitution of India, and other provisions conferring exclusive jurisdiction on this Court.
There is no reason to assume that the concerned High Court will not do justice.
Or that this Court alone can do justice.
If this Court enter tains Writ Petitions at the instance of parties who approach this Court directly instead of approaching the concerned High Court in the first instance, tens of thousands of Writ Petitions would in course of time be instituted in this Court directly.
The inevitable result will be that the arrears pertaining to matters in respect of which this Court exercises exclusive jurisdiction under the Constitution will assume more alarming proportions.
[316B D] 2.
It is as important to do justice at this level, as to inspire confidence in the litigants that justice will be meted out to them at the High Court level, and other levels.
Faith must be inspired in the hierarchy of Courts and the institution as a whole.
Not only in this Court alone.
And this objective can be achieved only by this Court showing trust in the High Courts by directing the litigants to approach the High Courts in 315 the first instance.
Besides, as a matter of fact, if matters like the present one are instituted in the High Courts, there is a likelihood of the same being disposed of much more quickly, and equally effectively, on account of the decentralisation of the process of administering justice.
[316E G]


judgement:
Appeal No. 460 of 1987.
388 From the Judgment and Order dated 14.4.
1986 of the Jammu & and Kashmir High Court in Civil 1st Appeal No. 54 of 1985.
Altar Anjad, Adv.
General and S.K. Bhattacharya for the Appellants.
S.M. Aquil and Shakeel Ahmed for the Respondents.
The Order of the Court was delivered by THAKKAR, J. To condone, or not to condone, is not the only question.
Whether or not to apply the same standard in applying the "sufficient cause" test to all the litigants regardless of their personality in the said context is another.
An appeal preferred by the State of Jammu & Kashmir arising out of a decision enhancing compensation in respect of acquisition of lands for a public purpose to the extent of nearly 14 lakhs rupees by making an upward revision of the order of 800% (from Rs. 1000 per kanal to Rs.8000 per kanal) which also raised important questions as regards principles of valuation was dismissed as time barred being 4 days beyond time by rejecting an application for condonation of delay.
Hence this appeal by special leave.
The legislature has conferred the power to condone delay by enacting Section 51 of the Indian of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits '.
The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning ful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts.
It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court.
But the message does not appear to have percolated down to all the other Courts in the hierarchy.
And such a liberal approach is adopted on principle as it is realized that: "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908.
may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 389 1.
Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated.
As against this when delay is con doned the highest that can happen is that a cause would be decided on merits after hearing the parties.
"Every day 's delay must be explained" does not mean that a pedantic approach should be made.
Why not every hour 's delay, every second 's delay? The doctrine must be applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides.
A litigant does not stand to benefit by resorting to delay.
In fact he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal.
The fact that it was the 'State ' which was seeking condonation and not a private party was altogether irrelevant.
The doctrine of equality before law demands that all litigants, including the State as a liti gant, are accorded the same treatment and the law is admin istered in an even handed manner.
There is no warrant for according a stepmotherly treatment when the 'State ' is the applicant praying for condonation of delay.
In fact experi ence shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the in 390 herited bureaucratic methodology imbued with the note mak ing, file pushing, and passing on the buck ethos, delay on its part is less difficult to understand though more diffi cult to approve.
In any event, the State which represents the collective cause of the community, does not deserve a litigant non grata status.
The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "suffi cient cause".
So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on mertis in preference to the approach which scuttles a decision on merits.
Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay.
The order of the High Court dismissing the appeal before it as time barred, is therefore.
set aside.
Delay is condoned.
And the matter is remitted to the High Court.
The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides.
Appeal is allowed accordingly.
No costs.
P.S.S. Appeal allowed.

summary:
An appeal by the State.
against a decision enhancing compensation in respect of acquisition of lands for a public purpose, raising important questions as regards principles of valuation, was dismissed by the High Court as time barred, being four days beyond time, by rejecting an appli cation for condonation of dalay.
The State appealed to this Court by special leave.
Allowing the appeal, HLED: 1.1 The expression 'sufficient cause ' employed by the legislature in s.5 of the Indian is adequately elastic to enable the Courts to do substantial justice to parties by disposing of matters on merits.
[388E F] 1.2 The State which represents the collective cause of the community.
does not deserve a litigant non grata status.
The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an equitable man ner.
The Courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression 'sufficient cause '.
So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scut tles a decision on merits.
[390B C] 2.
In the instant case, sufficient cause exists for delay in instituting the appeal in the High Court.
Delay is, therefore, condoned.
The matter is remitted to the High Court for disposal on merits.
[390C D]


judgement:
ivil Appeal No. 2732 of 1986.
From the Judgment and Order dated 7.8.
1986 of the Central Administrative Tribunal.
New Delhi in O.A. No. 27 of 1986.
A.K. Ganguli, P. Parmeshwaran and A. Mariaputham for the Appellant.
S.C. Gupta, M.N. Shroff and K.M.M. Khan, for the Re spondents.
343 The Judgment of the Court was delivered by B.C.RAY, J.
This appeal by special leave is against the order made on 7.8.1986 by the Central Administrative Tribu nal, Principal Bench, Delhi holding that the order dated 10.12.
1986 extending the appointment of respondent No. 2, Shri Suresh Mathur as the Director General of All India Radio is invalid. ' The post of Director General, All India Radio is the highest post in the organisation carrying with it adminis trative responsibilities and also requiring from the incum bent holding the post, leadership qualities of a high order.
Rules were flamed for recruitment to the said post as well as to the equivalent post of Director General of Doordarshan under proviso to Article 309 of the Constitution of India and these rules are known as All India Radio (Recruitment of Director General, All india Radio) Rules 1963.
These rules provide that the post of Director General, All India Radio may be filled up either by promotion or by re employment on transfer on deputation or by direct recruitment.
These rules also provide that 50 per cent of the vacancies are to be filled up by promotion failing which by transfer on deputa tion and failing both by direct recruitment and 50 per cent by reemployment or transfer on deputation or direct recruit ment.
It was also provided that in respect of the second category the exact method of recruitment is to be decided upon in consultation with the Union Public Service Commis sion on each occasion.
The post of Director General, All India Radio fell vacant on 14th February, 1985.
In accord ance with the aforesaid recruitment rules the Additional Director General in the All India Radio who had also served for three years in the post of Additional Director General will be considered for promotion to the post of Director General.
The respondent No. 1, Shri A.R. Shinde who was appointed as Additional Director General on 24.8.
1982 did not acquire the requisite qualification for being considered for promotion to the post of Director General, All India Radio as he had not rendered three years service in the said grade of Additional Director General on the said date.
The authorities concerned took recourse to make the appointment to the post by transfer on deputation.
Accordingly on March 4, 1985 the respondent No. 2, Shri Suresh Mathur who was an officer of the rank of Additional Secretary to the Govern ment of India and was the Secretary, U.P.S.C. at that time was appointed by transfer on deputation initially for a period of six months.
Before the expiry of the said period of six months.
i.e. in July August, 1985, the authorities concerned considered the proposals for continued appointment of Shri Suresh Mathur for a further period 344 of two years.
After approval by the Appointments Committee of the Cabinet the further continuation of respondent No. 2 as Director General, All India Radio till 3rd March, 1987 was notified on th December, 1985 on the basis of the said proposal.
This order of continuation of respondent No. 2 as Director General, All India Radio was assailed by respondent No. 1, Shri A.R. Shinde, the Additional Director General, before the Central Administrative Tribunal, Principal Bench, Delhi on the ground inter alia that though he fulfilled all the requisite qualifications as provided in the said rules for being considered for promotion to the post of Director General, All India Radio, his case was not considered and the said order was made continuing the appointment of re spondent No. 2 as Director General of All India Radio upto March 3, 1987.
The Central Administrative Tribunal after hearing the parties quashed the appointment of respondent No. 2 and directed for filling up the post of Director General, All India Radio in accordance with the rules and to consider the case of the 'applicant holding that the appointment of respondent No. 2 was not made in accordance with the said rules and respondent No. 1 though fulfilled the eligibility qualification was not at all considered and that the re spondent No. 2 also had not the requisite qualification as specified in the said rules for being appointed to the said post.
The learned counsel for the appellant has challenged the validity of the findings recorded by the Central Administra tive Tribunal (Tribunal) on both the points, viz: (1) As regards the finding that the appointment of re spondent No. 2 was bad on the ground that it was not in accordance with the rules; and (2) that respondent No. 2 was not qualified to be appointed to the post.
Having given our anxious consideration to the submis sions urged on behalf of both the sides and having accorded due weightage to the views expressed by the Tribunal, we are of the opinion that the findings recorded by the Tribunal on both the points are not sustainable.
In so far as the validity of the appointment of respond ent No. 2 is concerned, the Tribunal has overlooked the crucial circumstance that what was being done was extension of the original appointment to the 345 post and not a regular appointment under the Rules.
The relevant provisions in the background of which the question calls for consideration may be set out for the sake of convenience.
Column 10 of the Schedule of Rules as amended in 1985 which provides for the method of recruitment and percentage of the vacancies to be filled by various methods in respect of the two posts specified in Column 2, reads as under: "(i) 50% by promotion failing which by trans fer on deputation and failing both by direct recruitment.
(ii) 50% by re employment or transfer on deputation or direct recruitment, the exact method of recruitment to be decided in consul tation with the Union Public Service Commis sion on each occasion.
" Column 11 pertaining to the eligibility condition is as under: "PROMOTION Additional Director General, All India Radio/Doordarshan with 3 years regular service in the grade." With regard to transfer on deputation it is provided as under: "Officers of All India Services or Central Services Group 'A" working in or eligible for appointment to the post of Additional Secre tary to the Government of India and possessing experience of the type mentioned in clause (ii) of Column 7.
" Clause (ii) of Column 7 reads as follows: "18 years experience in a supervisory capacity in educational, cultural, publicity or profes sional institution/organisation, including adequate general administrative experience with ability and capacity for organisation." Thus, in order to satisfy the requirement as regards 50% recruitment by promotion, one of the two posts has to be filled by promotion.
The post of Director General fell vacant on February 14.
1985 and admittedly on that date Respondent No. 1 was not yet eligible for appointment to the said post.
So also no other Additional Director General in the organisation having three years ' service was qualified for promo 346 tion.
Under the circumstances, appointment by promotion was not feasible.
That is the reason why Respondent No. 2 Shri Suresh Mathur who was of the rank of Additional Secretary to the Government of India and was Secretary, Union Public Service Commission at the material time, was appointed by transfer on deputation for six months.
There were only three modes of making recruitment in order of preference viz: (1) By promotion; failing which (2) by deputation; and failing which (3) by direct recruitment Since the appointment by promotion was not at all possible and such an important and sensitive post could not be kept vacant, the appointment of respondent No. 2 was made by transfer on deputation which was the next mode of appoint ment in the order of preference.
Even the Tribunal has accepted this position, as is evident from the following passage: "Although the applicant has contended that even this appointment by transfer on deputa tion was illegal, we are unable to accept this contention.
Neither the applicant nor anyone else was qualified to be promoted as Director General, All India Radio in accordance with the rules on that day.
The method of promotion to the post of Director General, AIR had thus failed when the vacancy occurred in February, 1985.
No exception can, therefore be taken to the appointment by transfer on deputation instead or by promotion.
" Thus the appointment of respondent No. 2 made in February, 1985 is unexceptionable.
Exception, however, has been taken to the further extension of the appointment for the period expiring on March 3, 1987.
The question of filling up the vacancy was taken up for consideration in advance as the initial appointment was due to expire on September 3, 1985.
But even at that time no one was qualified for promotion.
Under the circumstances the appointment of respondent No. 2 was extended upto March 3, 1987.
The Tribunal has taken the view that "even if the proposal was initiated earlier the entire position as on 3.9.1985 when the post fell vacant ought to have been clearly 347 presented to the Appointments Committee and considered.
" Both the respondents would have then qualified to have been considered for the post by the Departmental Promotion Com mittee, The Tribunal adds.
In our opinion, this line of reasoning cannot be sustained.
The appointment to such a sensitive post by the very nature of things had to be con sidered in advance and if when the proceedings were initiat ed respondent No. 2 had not yet qualified for being appoint ed to the post, his name could not have been considered.
In any case failure to consider his name in anticipation that he would have qualified by the date on which the initial appointment came to an end does not constitute any illegali ty which vitiates the appointment.
The Tribunal does not say that there were mala fides.
And we think the Tribunal was right in not drawing such a sinister inference for there was nothing on record to suggest that the appointing authority had any animus against respondent No. 2.
The mere fact that the original appointment of respondent No. 2 which was rightly made initially, even according to the Tribunal, was extended for a further period by reason of the fact that when the proposal was mooted for consideration nobody else was eligible for promotion, cannot vitiate the appointment of respondent No. 2 by transfer on deputation which was the approved mode for appointment as per the relevant rules.
The very fact that extension was made only till March 3, 1987 shows that there was anxiety to fill up the vacancy ulti mately by promotion which was the first preferential mode of appointment, if possible.
If it was otherwise, the initial appointment itself could have been made without restricting the appointment by a time limit.
It therefore appears that there was anxiety to make the appointment by way of a stop gap arrangement in order that the regular appointment could possibly be made by promotion which was the first preferen tial mode of appointment to the post.
We do not think that merely by reason of the fact that it was not brought to the notice of the Appointments Committee that respondent No. 2 would qualify for being considered for promotion shortly would not justify characterising or quashing the appointment as illegal under the rules.
We are, therefore, unable to uphold the finding recorded by the Tribunal on this point.
So far as the second point is concerned, the view taken by the Tribunal is that respondent No. 2 was not qualified under the rules for being appointed for transfer on deputa tion.
The criteria for appointment as projected in Column 7 has already been extracted.
Now, admittedly respondent No. 2 fulfils the first part of the criteria in as much as he is holding the post of Additional Secretary to the Government of India.
Whether or not the second part of the criteria which 348 requires "possessing experience of the type mentioned in clause (ii) of column 7" may be examined presently.
Now, it would not be legal or proper to bodily lift and transplant clause (ii) literally and word by word as the requisite criteria for appointment by transfer on deputation as is being contended on behalf of respondent No. 1.
Due importance must be attached to the expression "possessing experience of the type mentioned in clause (ii) of Column 7".
The emphasis in substance, is on possession of experi ence of the general nature mentioned in clause (ii).
It would therefore not be fight to inject or read into the eligibility criteria the requirement of "18 years ' experi ence in a supervisory capacity in educational, cultural, publicity or professional institution/organisation" as the requisite criteria for appointment on transfer by deputa tion.
If the rule making authority was so minded, it could have expressly transplanted all the requirements of clause (ii) of Column 7.
If such were the intention the rule making authority would not have referred to experience of the 'type ' mentioned in clause (ii) of Column 7.
On a true, fair and reasonable reading of the eligibility criteria, it cannot be said that it requires either experience of '18 years ' or experience in a 'supervisory capacity ' in any of such institutions as are mentioned in clause (ii) of Column 7.
All that is required is experience of that type viz. experience in the sphere of education, culture, publicity etc.
along with adequate general administrative experience with capacity for organisation.
Be it realized that the criteria is being specified in the context of officers belonging to the All India Services or Central Services Group A.
By the very nature of things therefore they could not have 18 years ' experience in professional or supervisory capacity in any educational institution.
The service history of respondent No. 2 may now be briefly stated with the end in view to examine whether he fulfilled the criteria in the aforesaid sense.
Shri Mathur had to his credit 29 years of administrative experience (as on 1985) as an Officer belong ing to the Indian Administrative Service, of which he had been in the rank of Joint Secretary to Government of India or above for 13 years.
His service included terms as Joint Secretary in the Planning Commission in charge of State Plans and Multi level Planning, Additional Chief Secretary, and as Chief Secretary, Government of Manipur, Joint Secre tary in the Ministry of Information and Broadcasting, as Secretary, UPSC etc., the details of which are: 1956 Joined IAS (Madhya Pradesh Cadre) 1967 Managing Director, Tribal Co operative Development Corporation, where his duties 349 included Development of small scale industries by organising infrastru cure, raw material and marketing, promotion of the development of hand looms and handicrafts industry and establishment of co operative movement in the tribal area.
1969 Deputy Secretary in Cabinet Secretariat.
Later, Director in charge of Man power & Employment.
August 1972 to Secretary to Chief Minister, Govern ment January, 1973 of West Bengal.
January, 1973 Chief of Division and later as Joint Secretary to the Government of India in charge of State Plan and Multi level Planning Division in the Planning Commission.
May, 1977 Hill Commissioner, Secretary, Planning, Finance, PWD, Power, Food and Civil Supplies in the Government of Manipur.
Later, Additional Chief Secretary and Chief Secretary to the Government of Manipur.
July, 1980 Joint Secretary in the Ministry of Information & Broadcasting when he dealt not only the Broadcasting Media, namely, AIR and Doordarshan but also the Information Media, viz. Film Documentaries, Press, Advertising and Visual Publicity.
October, 1983 Appointed as Additional Secretary to the Government of India and posted as Secretary, UPSC.
In the present case respondent No. 2 was duly qualified having regard to the fact that he had to his credit 29 years of administrative experience and had held such senior posi tions as Joint Secretary in 350 charge of State level Plan in the Planning Commission, Additional Chief Secretary and Chief Secretary in the Gov ernment of Manipur, Joint Secretary in the Ministry of Information and Broadcasting.
With effect from October, 1983 he was holding the post of Additional Secretary to the Government of India.
The very fact that he had worked as Joint Secretary in the Ministry of Information and Broad casting itself coupled with his other experience would satisfy the requirement of the eligibility criteria for being appointed to the post of Director General, All India Radio.
We are, therefore, of the opinion that the Tribunal was in error in reaching the conclusion that respondent No. 2 was not qualified or eligible under the rules for being appointed to the post.
The Tribunal was accordingly in error in taking the view (1) that the extension of the term of appointment of re spondent No. 2 which is due to expire on March 3, 1987 was invalid, and (2) that the respondent No. 2 was not qualified for being appointed by transfer on deputation to the said post as per the rules.
The question regarding the filling up of the vacancy upon the term of respondent No. 2 coming to an end on March 3, 1987, will shortly arise.
Respondent No. 1 has by now become eligible for being promoted if he is otherwise found suitable.
The competent authority will of course, be re quired to consider the question as regards the suitability of respondent No. 1 for being promoted to the post of Direc tor General in the context of filling up of the post upon the expiry of the term of respondent No. 2 on March 3, 1987.
We have no doubt that the question will be considered objec tively, in the larger interest of the organisation and in larger public interest, and an appropriate decision on merits will be taken in accordance with law.
We accordingly allow this appeal and set aside the judgment and order of the Central Administrative Tribunal.
There will be no order as to costs.
N.P.V. Appeal allowed.

summary:
The All India Radio (Recruitment of Director General, All India Radio) Rules, 1963 provided that the post of Director General, All India Radio be filled up either by promotion or by re employment or by transfer on deputation, or by direct recruitment, and (i) 50% of the vacancies be filled up by promotion failing which by transfer on deputa tion, and failing both by direct recruitment, and (ii) 50% by reemployment or transfer on deputation or direct recruit ment, the exact method of recruitment to be decided in consultation with the Union Public Service Commission on each occasion.
The Additional Director General in the All India Radio who had served as such for three years was also eligible under the Rules for promotion to the post of Direc tor General.
The post of the Director General fell vacant on February 14, 1985.
The authorities took recourse to make appointment to the post by transfer on deputation as there was no body eligible for promotion, including the first respondent from the grade of Additional Director General.
The second re spondent, who was an officer of the rank of the Additional Secretary to the Government of India, was appointed by transfer on deputation initially for a period of six months, and before the expiry of 340 this period, his continuation for a further period of two years was recommended as nobody was eligible for promotion even at that time and after approval of the competent au thority the second respondent 's continuation was notified on December 10, 1985.
The aforesaid order of continuation was assailed before the Central Administrative Tribunal by the first respondent, who was working as the Additional Director General, on the ground that though he fulfilled all the requisite qualifica tions provided in the Rules for being considered for promo tion to the post of the Director General, his case was not considered and the impugned order continuing the appointment of the second respondent upto March 3, 1987 was made.
The Central Administrative Tribunal held that the ap pointment of the second respondent was not made in accord ance with the Rules, that he had not the requisite qualifi cation for being appointed to the post and though the first respondent fulfilled the eligibility qualification, was not considered at all, and quashed the appointment of the second respondent.
It also directed that the post be filled up in accordance with the rules and that the first respondent be considered for the post In the appeal to this Court, the findings recorded by the Central Administrative Tribunal that the appointment of the second respondent was bad on the ground that it was not in accordance with the rules and that he was not qualified to be appointed to the post, were challenged.
Allowing the appeal, this Court, HELD: 1.1 There were only three modes of making recruit ment viz. (1) by promotion, failing which (2) by deputation; and failing which (3) by direct recruitment.
[346B C] 1.2 Since the appointment by promotion was not at all possible, and such an important and sensitive post could not be kept vacant, the appointment of the second respondent was made by transfer on deputation which was the next mode of appointment in the order of preference.
Thus, the initial appointment of the second respondent is unexceptionable.
[346D G] 1.3 The appointment to such a sensitive post by the very nature of things has to be considered in advance and if when the proceedings were initiated, the first respondent had not yet qualified for being appointed 341 to the post, his name could not have been considered.
Fail ure to consider his name in anticipation that he would have qualified by the date on which the initial appointment came to an end, does not constitute any illegality which vitiates the appointment.
[347B C] 1.4 The mere fact that the original appointment of the second respondent, which was rightly made initially, was extended for a further period by reason of the fact that when the proposal was mooted for consideration nobody else was eligible for promotion cannot vitiate the appointment of the second respondent by transfer on deputation which was the approved mode for appointment as per the relevant rules.
[347C D] 1.5 The very fact that the extension was made only till March 3, 1987 shows that there was anxiety to fill up the vacancy ultimately by promotion which was the first prefer ential mode of appointment, if possible.
If it was other wise, the initial appointment itself could have been made without restricting the appointment by a time limit.
[347D E] 1.6 Merely by reason of the fact that it was not brought to the notice of the Appointments Committee that the second respondent would qualify for being considered for promotion shortly would not justify characterising or quashing the appointment as illegal under the Rules.
[347F] 2.1 The criteria for appointment has been projected in Column 7 of the Schedule of Rules.
The second respondent fulfils the first part of the criteria as he is holding the post of Additional Secretary to the Government of India.
[347G H] 2.2 It would not be legal or proper to bodily lift and transplant clause (ii) literally and word by word as the requisite criteria for appointment by transfer on deputa tion.
[348A B] 2.3 Due importance must be attached to the expression "possessing experience of the type mentioned in clause (ii) of column 7".
The emphasis in substance, is on possession of experience of the general nature mentioned in clause (ii).
It would, therefore, not be right to inject into the eligi bility criteria the requirement of "18 years ' experience in a supervisory capacity in educational, cultural, publicity or professional institution/organisation" as the requisite criteria for appointment on transfer by deputation.
If the rule making authority was so minded, it could have expressly transplanted all the requirements of 342 clause (ii) of column 7.
If such were the intention, the rule making authority would not have referred to experience of the 'type ' mentioned in clause (ii) of column 7.
[348B D] 2.4 On a true, fair and reasonable reading of the eligibility criteria, it cannot be said that it requires either experience of '18 years ' or experience in a 'supervi sory capacity ' in any of the institutions mentioned in clause (ii) of column 7.
All that is required is experience of that type viz., experience in the sphere of education, culture, publicity etc.
along with adequate general adminis trative experience with capacity for organisation.
The criteria is being specified in the context of officers belonging to the All India Services of Central Services Group A.
By the very nature of things, therefore, they could not have 18 years experience in professional or supervisory capacity in any educational institution.
[348D F] 2.5 The second respondent was duly qualified having regard to the fact that he had to his credit 29 years of administrative experience and had held senior positions including the post of Joint Secretary in the Ministry of Information and Broadcasting and was holding.
the post of Additional Secretary with effect from October, 1983.
The very fact that he had worked as Joint Secretary in the Ministry of Information and Broadcasting itself, coupled with his other experience, would satisfy the requirement of the eligibility criteria for being appointed to the post of Director General, All India Radio.
[349H; 350A B] 3.
The Tribunal was, therefore, in error in taking the view that the extension of the term of appointment of the second respondent which is due to expire on March 3, 1987 was invalid and that he was not qualified for being appoint ed by transfer on deputation to the said post as per the Rules.
[350C D]


judgement:
ivil Appeal No. 145 of 1979.
From the Judgment and Order dated 19.7.78 of the Andhra Pradesh High Court in Writ Petition Appeal No. 137/1978.
A. Subba Rao, P. Parmeshwaran and Ms. section Relan for the Appellants.
K. Ram Kumar for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave is against the judgment of the Andhra Pradesh High Court in a writ appeal agrising out of the judgment of a learned Single Judge in an application under Article 226 of the Constitu tion.
The respondent on taking premature retirement on compas sionate ground from the Indian Army at the age of 33, was offered appointment as Assistant Commandant in the Central Reserve Police Force (CRPF for short) and was given appoint ment initially for a period of three years.
Early in 1970 he was promoted on temporary basis as Commandant on the basis of selection.
In October 1970, the President sanctioned his continued re employment for one year as Commandant.
The respondent was asked to opt for absorption.
In the meantime, his promotional appointment as Commandant was extended from time to time.
In June 1976, he was informed by the Director General of the C.R.P.F. that in view of the Rule 107 of the Central Reserve Police Force Rules, 1955, he was not enti tled for absorption in the Force.
A representation of the respondent was rejected by the President.
Thereupon, he applied to the Andhra Pradesh High Court under Article 226 of the Constitution for a direction for his absorption 384 in the Force.
The learned Single Judge referred to Rule 105 which deals with recruitment and Rule 107 dealing with tenure and on the basis that there was nothing in these rules to disentitle a retired or released army officer from absorption, directed the appellants to consider the respond ent 's permanent absorption.
The Division Bench upheld the direction and dismissed the appeal of the appellants.
Rule 105(3 A) dealing with recruitment, inter alia, provides that the post of Assistant Commandant shall be filled: "(i) xxx xxx xxx xxx (ii) by re employment of retired or released Army Officers or substantive Majors of the Territorial Army or Indian Police Service Officer (Senior Scale) or with four years of service as such or State Police Officers holding the posts of Superintendent of Police or equivalent Posts preferably with experience of Armed Police duties or Assistant Commandants of the Central Reserve Police Force or (iii) xxx xxx xxx xxx.
" Indisputably the respondent had been recruited as Assistant Commandant on the footing that he was a retired/released Army Officer.
Rule 107(2) dealing with tenure then provided: "In the case of retired/released Army Offi cers, they will be under re employment for an initial period of one year, extendable by mutual consent for one year, at a time subject to premature termination should administrative exigency, and or unsuitability or any other unforeseen factors so demand.
The service shah be temporary subject to all rules and orders applicable to the Central Government employees in temporary service in general." (underlining is emphasised) Sub rule (2) has been substituted with effect from 20th september, 1985.
The notification of that date clearly provides that he amendment comes into force on the date of publication in the official gazette.
The amended rule runs thus: "(a) In the case of officers re employed after they had 385 retired/discharged/released from Army prior to the attainment of age of superannuation in the civil posts, will, if appointed to civil posts, be treated as direct recruits and their seniority in the grade fixed accordingly as under: (i) the inter se seniority of persons so re employed shall be determined in accordance with the orders of their selection; (ii) the relative seniority of persons so re employed in relation to direct recruits and promotees shall be determined on the basis of chronology of selection; (iii) their confirmation and promotion to higher posts would take place with reference to seniority so fixed subject to fulfillment of other laid down conditions regarding proba tion.
(b) The ex army officers re employed after they have attained the age of superannuation in civil posts shall not form part of the cadre and would be treated as if appointed on contract basis and such re employments on contract basis shall be extendable on year to year basis." Rule 107(2) made under the Central Reserve prior to the amendment of 1985 clearly provided that the service shall be temporary and rules and orders applica ble to Central Government employees in temporary service would apply.
It is true that Rule 105(3 A) dealing with the post of Assistant Commandant prescribes three alternate modes of recruitment.
Rule 107 provided that in case of recruitment by the second mode in Rule 105(3 A) temporary status only would be conferred.
Absorption on permanent basis would run counter to the scheme of the rules.
The High Court has found as a fact that the departmental authorities called for the option of the respondent for absorption.
Such a step con trary to the statutory rules would not operate as an estop pel nor confer any right to claim absorption.
The scheme of the rule is indicative of the position that in regard to that category of officers benefit of absorption was not admissible and we are inclined to agree with the submission of the appellants that the High Court was in error in saying that there was nothing which stood in the way of absorption.
386 It is a fact that the respondent has been given a promo tion and in the promotional post he has worked for about 16 years.
On the basis of such promotion on temporary basis the respondent would not be entitled to absorption as well.
The respondent was being continued in the promotional post by orders of the President from time to time which is clearly indicative that the arrangement was on temporary basts.
Even though under sub rule (2) of Rule 107 as it stood, the respondent was not entitled to claim absorption, he is certainly entitled to the benefit of the amended provision from 20th September, 1985.
Sub rule (2) as amended in terms applies to him and counsel for the appellants has also accepted this position.
Therefore, the respondent is enti tled to absorption in the cadre with effect from the date the amended rule came into force and he is, therefore, to be confirmed in the post of Commandant and absorbed in the appropriate cadre from that date.
Admittedly the respondent has put in continuous service of more than 20 years in the Force and it would be totally unjustified to deprive him of credit of service.
Though he may not be entitled to other advantages of such service prior to the date of absorption, in our view, he should be entitled to count that period for pension entitlement.
We, therefore, allow the appeal to the extent that the direction of the High Court to absorb the respondent from the date of his appointment stands set aside and in its place the respondent shall be entitled to absorp tion with effect from 20th September, 1985.
His seniority in the post of Commandant shall run from that date and he would be entitled to all service advantages on the basis of such absorption from September 1985.
He would, however, be enti tled to credit of continuous service for the entire period of service as Assistant Commandant and Commandant for the limited purpose of pension.
Learned counsel for the respondent pointed out in course of argument that there were some similarly placed officers as the respondent but they have been given the benefit of absorption.
This is a matter which the appellants should look into and anomaly on such score should be considered by them.
In the absence of such officers, if any, we are not inclined to give any direction to deprive them of any bene fit which may have been obtained by them.
Both parties are directed to bear their own costs throughout.
M.L.A. Appeal allowed.

summary:
The respondent had been recruited as Assistant Comman dant in the C.R.P.F. under Rule 105(3 A) of the Central Reserve Police Force Rules, 1955 on the footing that he was a retired Army Officer.
He was promoted on temporary basis as Commandant on the basis of selection.
His promotional appointment as Commandant was extended from time to time.
On being informed by the Authorities that he was not entitled for absorption in the Force in view of Rule 107(2) of the Rules, he made a representation to the President.
The said representation having been rejected by the President, he filed a writ petition in the High Court for a direction for his absorption in the Force.
A Single Judge of the High Court allowed the writ petition.
The Division Bench also upheld the decision of the Single Judge.
Hence this appeal by special leave.
During the pendency of the appeal, sub rule 2 of Rule 107 was substituted with effect from 20th September 1985.
It provides that any officer re employed after he has retired from Army prior to the attainment of the age of superannua tion in the civil post, will, if appointed to civil post be treated as direct recruit and his seniority in the grade fixed accordingly.
Allowing the appeal by the appellant in part.
HELD: (1) Sub rule(2) of Rule 107 of the Rules as amend ed in terms applies to the respondent.
He is entitled to absorption in the cadre with effect from the date the amend ed rule came in force and he is, therefore, to be confirmed in the post of Commandant and absorbed in the appropriate cadre from that date.
He would, however, be entitled to credit of continuous service for the entire period of serv ice as Assistant Commandant and Commandant for the limited purpose of pension.
[386B C; F] 383 (2) Rule 107(2) made under the Central Reserve prior to the amendment of 1985 clearly provided that the service shall be temporary and rules and orders applicable to Central Government employees in temporary service would apply.
The scheme of the rule is indicative of the position that in regard to officers recruited under Rule 105(3 A), benefit of absorption was not admissible.
Absorp tion on permanent basis would run counter to the scheme of the rules.
Therefore, the direction of the High Court to absorb the respondent from the date of his appointment stands set aside.
[385E H]