judgement:
ivil Appeal No. 110 of 1974.
From the Judgment and Order dated 6.3.
1973 of the Mysore High Court in Writ Petition No. 2213 of 1970.
R.B. Datar, Swaraj Kaushal, K.M. Muzamnil and N. Nettar for the Appellant.
S.S. Khanduja and Y.P. Dhingra for the Respondent.
The Judgment of the Court was delivered by OZA, J.
This appeal arises out of Special Leave granted by this 581 Court against the Judgment of the High Court in Writ Peti tion No. 2213 of 1970 decided on 6.3.1973.
The facts necessary for the disposal of this appeal are that the respondent was appointed as a Workshop Mechanic in B.D.T. College of Engineering, Devangere in the year 1953.
He was promoted to the post of Workshop Instructor by order dated 7.8.1959 in the pay scale of Rs. 100 200.
In 1961 the pay scales were revised with effect from 1.1.
Diploma holders were given the pay scale of Rs. 150 320 and Certifi cate holders Rs. 150 250 in the cadre of Workshop Instruc tor.
The respondent who was a Certificate holder and not a Diploma holder was accordingly given the pay scale of Rs. 150 250.
By a notification dated 5.5.1964 the Government of Mysore made rules known as Mysore Education Department (Technical Education Department) (Recruitment) Rules and it is alleged that at about the same time the Government of India after accepting recommendations of the All India Council for Technical Education suggested revised pay scales of pay of Workshop Instructors and in these recommendations also the Workshop Instructors with second class Diploma or equivalent qualifications with 10 years experience were given the pay scales of Rs.260 500 and it is alleged that as the respondent was not entitled to this pay scale he was not given.
It is alleged that in 1969 the respondent made a representation to the State Government and when he did not succeed in spite of repeated representations he filed a Writ Petition in the High Court of Karnataka, Bangalore alleging that by not giving the pay scale to the respondent the Government of Karnataka had discriminated.
The High Court by its judgment dated 6.3.
1973 allowed the Writ Petition filed by the respondent and directed that the petitioner to be placed in the proper pay scale and should not be placed in the pay scale lower than the Diploma holders.
It is against this judgment that the State of Karnataka after obtaining leave from this Court preferred this appeal.
Learned Counsel for the appellant contended that so far as the present respondent is concerned the State Government is not very keen not to give the advantage to him but it was contended that the matter is of general impor tance as according to the learned counsel different pay scales on the basis of difference in educational qualifica tions could be justified and will amount to reasonable classification and therefore and will not be hit by Article 14 of the Constitution.
He by reference to certain observa tions in some of the judgments of this Court contended that the view taken by the High Court is not correct.
582 It is very significant that Hon 'ble the High Court did not indulge in the examination of the general question.
It restricted its consideration to the facts of the present case as it stood.
It is observed in the judgment that for recruitment to the post of Workshop Instructor no distinc tion is made between the holders of a Certificate and hold ers of a Diploma.
It is also observed in the judgment that at the time when this respondent was recruited there was no difference in the pay scales prescribed for holders of Diploma and holders of Certificate and when at the time of recruitment they were recruited on the basis that diploma holder and certificate holder both were entitled to be appointed to the same post in the same pay scale.
The High Court took in view that by subsequent revision of pay scale different pay scales could not be enforced for the same post merely on the basis of a holder of a certificate or a diplo ma as it was held that as an Instructor 'the person will perform the same duties and will do the same work in spite of the fact that he may be a certificate holder or a diploma holder.
It is not disputed before us that so far as the facts stated in the judgment of the High Court are concerned they are not disputed.
It is admitted that at the time when this respondent was recruited there was only one cadre and that was of Instructor and only one pay scale and the certificate holder or a diploma,holder both were entitled to be recruit ed on that post.
No material is in the record on the basis 'of which it could be contended that there was any substan tial difference at that time between the two qualifications although they were described differently.
It was argued that a diploma is a higher qualification than a certificate.
But neither there is any curriculum on record nor any other material to draw that inference.
On the contrary this cir cumstance that at the time when respondent was recruited a diploma holder or a certificate holder both were entitled to be recruited as an Instructor on the same pay scale and this indicates that in those days the two were considered to be alike.
There is also no material to indicate that when the pay scales were revised and subsequently when they were further revised it was done on the basis of some material indicating that the diploma became a better qualification than the certificate.
In fact we have no further material to examine the question in the broader aspect.
It appears that it was because of this that the learned Judges of the High Court accordingly disposed of the matter on the facts of this case alone and therefore did not go into the general question as to whether on the basis of educational qualifications dif ferent pay scales can or cannot be prescribed and in absence of any material it will not be possible for us 583 to go into that question.
Apart from it that question is not material for decision of the present appeal, it is not necessary for us to examine the matter which will merely be an academic exercise.
On the facts of the present case it cannot be said that the High Court committed any error in allowing the Writ Petition filed by the respondent.
The appeal is therefore dismissed with costs.
The respondent shall be entitled to cost of the appeal.
A.P.J. Appeal dismissed.

summary:
The respondent was appointed as a Workshop Mechanic.
He was promoted to the post of Workshop InstrUctor on 7.8.1959 in the pay scale of Rs.100 120.
The pay scales were revised w.e.f.
1.1.1961.
Diploma holders were given the pay scale of Rs. 150 320, and Certificate holders Rs. 150 250 in the cadre of Workshop Instructor.
The respondent, a Certificate holder, was given the pay scale of Rs. 150 250.
The pay scales were again revised in 1964 and Workshop Instructors with second class Diploma or equivalent qualifications with 10 years experience were given the pay scale of Rs.260 500, but the respondent did not get this scale in spite of re peated representations made to the State Government.
The respondent filed a Writ Petition alleging discrimi nation.
The High Court allowed the petition holding: (1) that for recruitment to the post of Workshop Instructor no distinction is made between the holders of a Certificate and holders of a Diploma, (2) that at the time when the respond ent was recruited there was no difference in the pay scales prescribed for holders of Diploma and holders of Certifi cate, and the basis for recruitment was that Diploma holder and Certificate holder both were entitled to be appointed to the same post in the same pay scale, and (3) that by subse quent revision of pay scale different pay scales could not be enforced for the same post merely on the basis of a holder of a Certificate or a Diploma because as an Instruc tor the person will perform the same duties and will do the same work in spite of the fact that he may be a Certificate holder or a Diploma holder, and directed that the respondent be placed in the pay scale not lower than that of the Diplo ma holders.
580 In appeal to this Court on behalf of the Appellant State it was contended: (1) that the different pay scales on the basis of difference in educational qualifications could he justified and will mount to reasonable classification and will not he hit by Article 14 of the Constitution, (2) that a Diploma is a higher qualification than a Certificate and (3) that the view taken by the High Court is not correct.
Dismissing the Appeal, HELD: 1.
Neither there is any curriculum on record nor any other material to draw the inference that Diploma is a higher qualification than a Certificate.
At the time when respondent was recruited there was only one cadre and a Diploma holder or a Certificate holder both were entitled to he recruited as an Instructor on the same pay scale.
This circumstance indicates that the two were considered to he alike.
[582E F] 2.
There is no material on record to indicate that when the pay scales were revised and subsequently they were further revised it was done on the basis of some material indicating that the Diploma became a better qualification than the Certificate holder.
It was because of this the High Court did not go into the general question as to whether on the basis of educational qualifications different pay scales can or could not be prescribed and in the absence of any material it will not he possible for this Court to go into that question.
[582F H] 3.
On the facts of the present case it could.
not he said that the High Court committed any error.
[583A B]


judgement:
s Nos.
630 32 of 1984 Under Article a2 of the Constitution of India.
M.K. Ramamurthy, Shanti Bhushan, U.R. Lalit, M.R. Shar ma, S.K. Mehta, B.R. Agarwala, N.D. Garg, E.M.S. Anam, P.D. Sharma, C.V. Subba Rao, I.S. Goel, Dr. K.S. Tiwari, P.H. Parekh, Sohail Dutt, Uma Datta and V.P. Goel for the appear ing parties.
The Judgment of the Court was delivered by SEN, J.
These petitions upder article 32 of the Constitu tion assail the constitutional validity of a notification issued by the State Government of Haryana in the Public Works Department (Irrigation Branch) dated June 22, 1984 purporting to amend r.6(b) of the Punjab Service of Engi neers, Class I, PUblic Works Department (Irrigation Branch) Rules, 1964 (for short 'the Class I Rules ') with retrospec tive effect from July 10, 1964 as violative of articles 14 and 16(1) of the Constitution and also ultra vires the State Government by reason of the proviso to s.82(6) of the .
The purport and effect of the impugned notification is to nullify the decision of this Court in A.S. Parmar vs State of Haryana, [1984] 2 SCR 476, holding 589 that a degree in Engineering was not essential for such promotion.
By the impugned notification, a degree in Engi neering is made an essential qualification for promotion of Assistant Engineers in the Irrigation Branch, a Class II service under r.6(b) of the Class I Rules and thereby the petitioners have been rendered ineligible for promotion to the post of Executive Engineer in Class I service.
The circumstances which led to the issuance of the impugned notification are these.
A controversy had arisen on the construction of r.6 of the Class I Rules as to whether a degree in Engineering was necessary when the post of Execu tive Engineer, which is a post in Class I service, was to be filled by promotion by members of Class II service and this was settled by the decision of this Court in A.S. Parmar 's case, supra.
The Court on a consideration of the relevant rules came to the conclusion that a member of Class II service, namely, Assistant Engineer or Sub Divisional Offi cer did not require to have a University degree for promo tion to the post of Executive Engineer in Class I service.
On February 24, 1984, the Additional Solicitor General gave an undertaking on behalf of the State Government that it would consider the cases of all eligible persons including the petitioners for regular appointment to the Class I service in accordance with the rules and complete the proc ess within four months from that day.
The Court, according ly, in Civil Appeal No. 149 of 1981 (Ashok Gulati & Ors.
vs State of Haryana) and the connected matters as also in these petitions under article 32 of the Constitution passed an order to the effect: "Mr. K.G. Bhagat, learned Additional Solicitor General says that the State Government will consider the cases of all the eligible persons including the appellants/petitioners and respondents for regular appointments to Class I Service in accordance with the law and complete the process of appointments within 4 months from today.
The Government is permitted to do so.
But all appointments made pursuant to this order will be subject to the final result of these cases.
In the meanwhile the appellants will continue in the posts held by them.
These matters will stand adjourned for a period of 6 months from today.
" 590 Just two days before the expiry of the period within which promotion of eligible persons including the petitioners was to be completed, the State Government purported to effect an amendment of r.6(b) retrospectively w.e.f. July 10, 1964.
The impugned notification was in these terms: "HARYANA GOVERNMENT PUBLIC WORKS DEPARTMENT (IRRIGATION) NOTIFICATION The 22nd June, 1984.
No. G.S.R. 47/Cons./Art. 309/Amend.
(1) 84 Inexercise of the powers conferred by the proviso to Article 309 of the Constitution of India and all other powers enabling him in this behalf, the Governor of Haryana, hereby makes the following rules further to amend the Punjab Service of Engineers, Class I, P.W.D. (Irrigation Branch) Rules, 1964, namely: 1.
(1) These rules may be called the Punjab Service of Engineers, Class I, P.W.D. (Irrigation Branch), Haryana, (Second Amend ment) Rules, 1984.
(2) 'These rules shall be deemed to have come into force with effect from the 10th July, 1964.
In the Punjab Service of Engineers, Class I, P.W.D. (Irrigation Branch) Rules, 1964, in rule 6, in clause (b), after the words "eight years service", the words, "in addition to the qualifications prescribed in clause (a)" shall be inserted.
" Presumably, the State Government adopted this unfortu nate course of action taking cue of the observations made by this Court in the concluding part of the judgment in A.S. Parmar 's case saying that if the Government wish to appoint only persons having a degree in Engineering to Class I service, it was free to do so by promulgating appropriate rules and that the power to frame such a rule was beyond question.
But the Court never laid down that such a rule may be framed under article 309 of the Constitution with retrospec tive effect so as to render ineligible Class II officers like the petitioners who were Diploma holders for further promotion as Executive Engineers in Class I service.
In view of the clear formulation of law interpreting 591 r.6(b) of the Class I Rules holding that a degree in Engi neering was not an essential qualification for promotion of Class II Officers to the cadre of Executive Engineers in Class I service, there was no occasion for the State Govern ment to issue the impugned notification unless it was with the object of nullifying the decision of this Court in A.S. Parmar 's case.
In order to appreciate the points involved, it is neces sary to state a few facts.
The three petitioners T.R. Kapur, Mohinder Singh and V.D. Grover who are Diploma holders hold the posts of Sub Divisional Officers, Public Works Depart ment (Irrigation Branch), Haryana, a Class II service, governed by the Haryana Service of Engineers, Class II P.W.D. (Irrigation Branch) Rules, 1970.
They joined Class III service as Overseers in the Irrigation Branch on Septem ber, 18, 1953, October 6, 1949 and November 8, 1952 respec tively in the erstwhile State of Punjab.
At the time when they were appointed to the Overseers Engineering Service, Punjab, r.3(c) of the Punjab Service of Engineers, Class II P.W.D. (Irrigation Branch) Rules, 1941 enjoined that no person shall be appointed to the service unless he possessed one of the University degrees or other qualifications pre scribed in Appendix 'A ' to the Rules.
Note beneath cl.(c), however, provided that the requirements of cl.(c) could be waived in the case of members of the Overseers Engineering Service (Irrigation Branch) Punjab to be promoted in the service under the proviso to r.5 of the Rules.
The term 'service ' was defined in r. 1(2)(g) to mean the Punjab Service of Engineers, Class II (Irrigation Branch), Proviso to r.5 of Part II Appointments Rules, reads as follows: "Provided that this rule may be relaxed by Government on the recommendations of the Chief Engineers in order to admit the promotion of a member of an Overseer Engineering Service (Irrigation Branch), Punjab of outstanding merit who may not possess the qualifications specified in In due course, the petitioners were promoted as Offg.
Sub Divisional Officers in the Class II service in November 1969, July 1966 and January 1964 respectively.
Subsequent ly, by notification dated October 27, 1985, the petitioners were appointed as Sub Divisional Officers on a regular basis w.e.f. December 25, 1970.
Under the unamended r.6(b) of the Class I Rules, the petitioners were eligible for promotion as Executive Engineers in Class I service despite the fact that they did not possess a degree in Engineering.
Rule 6 of Class I 592 Rules insofar as relevant may be reproduced: "6.
Qualifications: No person shall be ap pointed to the service unless he (a) possesses one of the University Degrees or other qualifications prescribed in Appendix B of these rules; Provided that Government may waive this qualification in the case of a particular officer belonging to the Class II Service.
(b) In case of appointment by promotion from Class II Service, has completed in that Class of Service for a period of ten years from the commencement of these rules, six years service and after that period eight years service." Shri Shanti Bhushan, learned counsel for the petitioners has put forward a three fold contention.
First of these submissions is that the impugned notification which purport ed to amend r.6(b) of the Class I Rules with retrospective effect from July 10, 1964 making a degree in Engineering essential for promotion to the post of Executive Engineer in Class I service constitutes a variation in the conditions of service applicable to officers belonging to Class II service who are diplomaholders like the petitioners prior to the appointed day i.e. November 1, 1966 to their disadvantage as it renders them ineligible for promotion to the post of Executive Engineer in Class I service and was ultra vires the State Government having been made without the previous approval of the Central Government as enjoined by the provi so to s.82(6),of the .
It is urged that any rule which affects the promotion of a person relates to his conditions of service, although mere chances of promotion may not be.
The contention, in our opinion, must prevail.
The second is that it was not permissible for the State Government to amend r.6(b) of the Class I Rules with retrospective effect under the proviso to article 309 of the Constitution so as to render ineligible for promotion to the post of Executive Engineer in Class I service, the members of Class II service who are diploma holders although they satisfy the condition of eligibility of eight years ' experience in that class of service.
It is said that the unamended r.6(b) conferred a vested right on persons like the petitioners which could not be taken away by retrospec tive amendment of r.6(b).
The third and the last submission is that the action of the State Government in issuing the impugned notification making retrospective 593 amendment of r.6(b) of the Class I Rules was wholly arbi trary, irrational and mala fide and thus violative of articles 14 and 16(1) of the Constitution.
It is submitted that the impugned notification was calculated to circumvent the direction given by this Court in its order dated February 24, 1984 on the basis of the undertaking given by the learned Additional Solicitor General that the State Govern ment would consider the cases of all eligible officers belonging to Class II service for promotion to the Class I service.
Sub s.(6) of s.82 of the provides: "82(6).
Nothing in this section shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person re ferred to in sub:section (1) or sub section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.
" It is quite clear that the proviso to section 82(6) of the is in the nature of a fetter on the power of the Governor under the proviso to article 309 of the Constitution to alter the conditions of service applicable to all persons serving in connection with the affairs of the State.
It interdicts that the conditions of service applicable to persons referred to in sub section
(1) or sub section
(2) thereof i.e. members of civil services affected by the reorganisation of the State.
The conditions of serv ice of any persons who immediately before the appointed day were serving in connection with the affairs of the existing State of Punjab and are as from that date allocated for service in connection with the affairs of the successor State i.e. allocated Government servants can not be varied to their disadvantage.
There is a long fine of decisions starting from Mohammad Bhakar vs
Y. Krishan Reddy, down to Mohammed Shujat Ali & Ors.
vs Union of India & Ors.
, ; while construing the analogous provision contained in the proviso to section 115(7) of the laying down that any rule made 594 under the proviso to article 309 of the Constitution which seeks to vary or alter the conditions of service without the previous approval of the Central Government would be void and inoperative being in violation of the proviso to sub section
(7) of section 115 of the Act.
, It is a trite proposition that any rule which affects the right of a person to be consid ered for promotion is a condition of service, although mere chances of promotion may not be.
As laid down by this Court in A.S. Parmar 's case, the petitioners like other members of Class II service who are diploma holders and satisfy the eligibility test of eight years ' service in that class, were eligible for being considered for promotion to the post of Executive Engineer in Class I service without having a degree in Engineering.
Admittedly, the impugned notification which seeks to amend r.6(b) with retrospective effect from July 10, 1964 clearly operates to their disadvantage as its purports to make them ineligible for promotion being diplo ma holders.
In Mohammad Bhakar 's case, the Court speaking through Mitter, J. said: "A rule which affects the promotion of a person relates to his conditions of service".
It was held that a rule which made the passing of certain departmental examinations a pre requisite for promotion having been made without the previous approval of the Central Government was void by reason of sub section
(7) of section 115.
In Mohammad Shujat Ali 's case, a Constitution Bench of this Court speaking through Bhagwati, J. observed: "A rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service." Under the Class I Rules as they existed immediately prior to the appointed day i.e. before November 1, 1966, a member of the Overseers Engineering Service in the Irrigation Branch, Punjab having a diploma was eligible for being promoted as Sub Divisional Officer in the Class II Service and then in due course to the post of Executive Engineer in the Class I service within the quota prescribed for them without having a degree in Engineering.
It was not necessary to possess a degree in Engineering as held by this Court in A.S. Parmar 's case for purposes of promotion under the unamended r.6(b) of the Class I Rules, as in the case of promotion to the post of Executive Engineer in Class I service under r.6(b) what was essential was eight years ' service in that class and not a degree in Engineering.
The impugned notification which purports to amend r.6(b) with retrospective effect, however, renders members of the Class II service like the 595 petitioners who are diploma holders ineligible for promotion by making a degree in Engineering an essential qualification for such promotion which amounts to alteration of the condi tions of service applicable to them to their disadvantage without the previous approval of the Central Government and is thus void by reason of the proviso to sub s.(6) of s.82 of the .
Faced with the difficulty, learned counsel for the respondents strenuously contends that the proviso to s.82(6) of the Act is not attracted in the present case.
It is argued that on the appointed day i.e. November 1, 1966 the petitioners were not members of Class II service.
It is said that the petitioners on the appointed day being Supervisors belonged to the Class III service and therefore were not governed by the unamended r.6(b).
Reliance is placed on the notification issued by the State Government dated October 27, 1985 constituting the Class II service w.e.f. December 25, 1970 and it is said that the petitioners are not shown as belonging to Class II service.
It was then contended that under r.3(c) of the Punjab Service of Engineers, Class II P.W.D. (Irrigation Branch) Rules, 1941, a degree in Engi neering was essential till the Punjab Service of Engineers, Class II, P.W. D. (Irrigation Branch) Rules, 1970 brought about a change.
Inasmuch as none of the petitioners had the requisite qualifications, they could not become members of the Class II service.
We are unable to accept this line of reasoning.
Undoubtedly, at the time when the petitioners were recruited as Supervisors in the Irrigation Branch, a Class III service, r.3(c) of the Punjab Service of Engineers, Class II, P.W.D. (Irrigation Branch) Rules, 1941 laid down that no person shall be appointed to the service unless he possessed one of the university degrees or other qualifica tions prescribed in Appendix 'A ' to the Rules.
Note beneath r.3(c) however provided that the requirements of cl.
(c) could be waived in the case of members of the Overseers Engineering Service, Irrigation Branch, Punjab for promotion to the service under the proviso to r.5 of the Rules.
The term 'service ' as defined in r. 1(2)(g) meant the Punjab Service of Engineers, Class II (Irrigation Branch).
Proviso to r.5 of the Rules, however, empowered the State Government to relax the condition.
It is clear from the terms of the proviso to r.5 quoted above that the State Government could relax the requirements of r.3(c) on the recommendation of the Chief Engineer in order to admit the promotion of a member of the Overseers Engineering Service, Irrigation Branch, Punjab if he was an officer of outstanding merit although he did not possess the qualifications specified in r.3(c) i.e. a 596 degree in Engineering.
Presumably, the petitioners were officers of outstanding merit and they were promoted as Offg.
Sub Divisional Officers in Class II service in January 1964, July 1966 and November 1969.
Eventually, the State Government by notification dated October 27, 1985 appointed them on a regular basis in that post, w.e.f. December 25, 1970. 'Further, it is wrong to suggest that on the appointed day i.e. on November 1, 1966 they were all Overseers belong ing to the Class III service and were therefore not governed by the unamended r 6(b).
Two of them V.D. Grover and Mohin der Singh had already been ' promoted as Offg.
Sub Divisional Officers prior to the appointed day i.e. in January 1964 and July 1966 and were therefore governed by the unamended r.6(b) of the Class I Rules and the third petitioner T.R. Kapur was also promoted to that post.
subsequently in Novem ber 1969.
Upon such promotion to the post of Offg.
Sub Divisional Officers they had not only the legitimate expec tation that they would in due course be considered for confirmation but also had the right on such confirmation to be considered for promotion.
It is also not quite accurate to say that the petitioners were not shown as belonging to the Class II service.
A bare look at the notification dated October 27, 1985 would show that the petitioners figure at Sr.
Nos. 246, 254 and 369.
It is not suggested that the State Government ever moved the Central Government seeking its prior approval to the proposed amendment of r.6(b) of the Class I Rules.
In that connection, it is necessary to recall that prior to the reorganisation of the States under the , a conference of the Chief Secretaries of the States that were to be affected was held at Delhi on May 18 and 19, 1956 for the purpose of formulation of the princi ples upon which integration of services was to be effected.
The Government of India by its circular dated May 11, 1957 to all the State Governments stated inter alia that it agreed with the views expressed on behalf of the States ' representatives that it would not be appropriate to provide any protection in the matter of departmental promotion.
This circular has been interpreted as a prior approval of the Central Government in terms of the proviso to sub s.(7) of section 115 of the Act in the matter of change of the conditions of service relating to departmental promotions.
These con siderations however do not arise in the present case.
Admit tedly, there was no Chief Secretaries Conference as was held prior to the reorganisation of the States under the .
Nor Was there any communication issued by the Central Government conveying its previous approval of the changes in service conditions which the States of Punjab and Haryana might 597 make in terms of the proviso to s.82(6) of the Punjab Reor ganisation Act, 1966.
Under the so also under the , the power of the Governor to make rules under the proviso to Art.309 of the Constitution had been controlled by the proviso to section 115(7) of the former Act and s.82(6) of the latter.
It follows that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub s.(1) or (2) of s.82 of the Act could not be varied to his disadvantage except with the previous approval of the Central Government.
That being so, the impugned notification issued by the State Government purporting to amend r.6(b) of the Class I Rules w.e.f.
July 10, 1964 which rendered members of Class II Service who are diploma holders like the petitioners ineligible for promo tion to the post of Executive Engineer in Class I Service making a degree in Engineering essential for such promotion, although they satisfied the condition of eligibility of 8 years ' experience in that class of service, must be struck down as ultra vires the State Government being contrary to s.82(6) of the . ' On the view that we take, there is no need for us to deal in detail with the other points raised.
We shall only touch upon them.
One should have thought that the controversy whether a degree in Engineering was an essential qualification for promotion of Sub Divisional Officers in Class II Service to the post of Executive E ngineer in Class I Service under r. 6(b) of the Class I Rules had ended with the decision of this Court in A.S. Parmar 's case.
Curiously enough, learned counsel for the respondents strenuously contends that the decision of this Court in A.S. Parmar 's case was incorrect.
He presses into service for our acceptance the decision of the High Court in o.
P. Bhatia vs State of Punjab, ILR taking a view to the contrary.
It is urged that in the erstwhile State of Punjab a degree in Engineering was essential for recruitment of Assistant Engineers in Class II Service under r. 3(c) of the 1941 Rules as held by the High Court in O.P. Bhatia 's case and that view was in consonance with the departmental instructions of the relevant rules in the State of Punjab and the State of Haryana as also in the erstwhile State of Punjab that r.6(b) required the promotees to have the essential qualification of a degree in Engineer ing.
We do not think that it is open to question the cor rectness of the decision in A.S. Parmar 's case which ex pressly overrules the view taken by the High Court in O.P. Bhatia 's case.
That apart, the proviso to r.5 of the 1941 Rules conferred power on the State Government to relax the requirement of r.3(c) on the recom 598 mendation of the Chief Engineer in order to admit the promo tion of a member of the Overseers Engineering Service (Irrigation Branch), Punjab if he was an officer of out standing merit although he did not possess the qualification prescribed in r.3(c) i.e. the educational qualification of a degree in Engineering.
The requirement of a degree in Engi neering for recruitment to the Class II Service was done away with in the 1970 Rules.
The contention also fails to take note of the fact that the requirement of a degree in Engineering which was an essential educational qualification for purposes of direct recruitment of Assistant Executive Engineers in Class I Service under r. 6(a) of the Class I Rules could not be projected for promotion of Sub Divisional Officers belonging to Class II Service to the posts of Executive Engineers in Class I Service under r. 6(b) as they form two distinct sources from which the appointments to the posts of Executive Engineers could be made.
As laid down in A.S. Parmar 's case, what was of the essence for purposes of promotion of Sub Divisional Officers who were members of Class II Service to the post of Executive Engineer under r.6 (b) of the Class I Rules was not a degree in Engineering, but 8 years ' experience in that class of service i.e. Class II Service.
More fundamental is the contention that the impugned notification issued by the State Government purporting to amend r.6(b) with retrospective effect from July 10, 1964 which rendered members of Class II Service who are diploma holders like the petitioners.
ineligible for promotion to the post of Executive Engineer although they satisfied the condition of eligibility of 8 years ' experience in that class of service was unreasonable, arbitrary and irrational and thus offended against articles 14 and 16(1) of the Consti tution.
It is urged that they were eligible for promotion under the unamended r.6(b) of the Class I Rules and had a fight to be considered for promotion to the post of Execu tive Engineer, and a retrospective amendment of r.6(b) seeking to render them ineligible was constitutionally impermissible.
It is said that the reason for this was obvious inasmuch as immediately prior to the reorganisation of the State of Punjab i.e. prior to November 1, 1966 even a member of the Overseers Engineering Service, a Class III Service, having only a diploma was eligible for being pro moted as Executive Engineer in Class I Service in due course since in the matter of promotion under the unamended r.6(b) it was not necessary to possess a degree in Engineering as held by this Court in A.S. Parmar 's case.
It follows there fore that every member of the Overseers Engineering Service was eligible for promotion first as Assistant Engineer or Sub Divisional Officer in Class II Service and thereafter, 599 in due course, to the post of Executive Engineer in Class I Service even without the educational qualification of a degree in Engineering.
In substance, the submission is that a retrospective amendment of r.6(b) by the impugned notifi cation which seeks to take away the eligibility of members of Class II Service who are diploma holders for purposes of promotion to the posts of Executive Engineers in Class I Service from a back date ranging over 20 years and thereby renders invalid the promotions already made is constitution ally impermissible.
It is well settled that the power to frame rules to regulate the conditions of service under the proviso to article 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect: B.S. Vadhera vs Union of India, ; , Raj Kumar vs Union of India, , K. Nagaraj & Ors.
vs Sate of A.P. & Anr.
, ; and State Of J & K vs Triloki Nath Khosla & Ors., ; It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be.
It may further be stated that an authority competent to lay down qualifica tions for promotion, is also competent to change the quali fications.
The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively.
This rule is however subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to article 309 which affects or impairs vested rights.
Therefore, unless it is specifi cally provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be re verted and their promotions cannot be recalled.
In other words, such rules laying down qualifications for promotion made with retrospective effect must necessary satisfy the tests of articles 14 and 16(1) of the Constitution: State of Mysore vs M.N. Krishna Murty & Ors., ; B.S. Yadav & Ors.
vs State of Haryana & Ors.
, ; State of Gujarat & Anr.
vs Ramanlal Keshavlal Soni & Ors., ; and Ex Captain K.C. Arora & Anr.
vs State of Haryana & Ors.
, ; A Constitution Bench of this Court in State of Gujarat & Anr.
vs Ramanlal Keshavlal Soni & Ors.
(supra) had to con sider the constitutional validity of the proviso to section 102 (1)(a) of the Gujarat Panchayat Act, 1961 as introduced by the Gujarat Panchayat (Third Amendment) Act, 1978 with retrospective effect and sought to extinguish the status of secretaries, officers and servants of the Gram and Nagar 600 Panchayats who became members of a service under the State on being allocated to the panchayat service.
The Court speaking through Chinnappa Reddy, J. observed: "Now, in 1978 before the Amending Act was passed, thanks to the provisions of the Prin cipal Act of 1961, the ex municipal employees who had been allocated to the Panchayat Serv ice as Secretaries, Officers and Servants of Gram and Nagar Panchayats, had achieved the status of government servants.
Their status as Government servants could not be extinguished, so long as the posts were not abolished and their services were not terminated in accord ance with the provisions of Art.311 of the Constitution.
Nor was it permissible to single them out for differential treatment.
That would offend article 14 of the Constitution.
" The learned Judge observed that the Amending Act was sought to be given retrospective effect to get over the constitu tional safeguards of articles 311 and 14 by reverting to a situation that existed some 17 years ago.
He said that there was no power to do so and observed: "The legislation is pure and simple, self deceptive, if we may use such an expression with reference to a legislaturemade law.
The legislature is undoubtedly competent to legis late with retrospective effect to take away or impair any vested fight acquired under exist ing laws but since the laws are made under a written Constitution, and have to conform to the do 's and don 'ts of the Constitution nei ther prospective nor retrospective laws can be made so a to contravene Fundamental Rights.
The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today.
The law cannot say, twenty years ago the parties had no fights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years.
We are concerned with today 's rights and not yesterday 'section A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitu tional rights accrued in the course of the twenty years.
That would be most arbitrary, unreasonable and a negation of history.
" The learned Judge relied with approval on the following observations 601 of Chandrachud, CJ.
speaking for a Constitution Bench in B.S. Yadav & Ors.
vs State of Haryana & Ors.
(supra): "Since the Governor exercises the legislative power under the proviso to article 309 of the Constitution, it is open to him to give retro spective operation to the rules made under that provision.
But the date from which the rules are made to operate, must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case. ' ' and summed up: "Today 's equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective.
Consti tutional rights, constitutional obligations and constitutional consequences cannot be tempered with that way.
A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective.
Past virtue (consti tutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws.
We are, therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends articles 311 and 14 and is arbitrary and unrea sonable.
" Following the view the Court in K.C. Arora 's case re ferred with approval to the observations of the Punjab & Haryana High Court in Harbhajan Singh vs State of Punjab, to the effect: "Now the rule making authority must have been aware that a competitive examination for appointment to the service had been held under the old rules and appointments were yet in the offing.
Surely, the rule making authority did not intend to exclude from appointment candi dates who were eligible under the old rules but became ineligible by reason of an amend ment of the rules made after the process of selection had almost reached a final stage." 602 And then queried: "Are they to be penalised "by barring their entry into the Punjab Civil Service (Judicial Branch) because they accepted employment at a time when acceptance of such employment was not a bar to appointment to the service? We do not think that we will be justified in at tributing such an unreasonable intention to the rule making authority.
In our view, the only reasonable interpretation of the amended rule, consistent with the prevailing situa tion, is to hold that only those persons who having joined the service of the Union or the State or a post under the Union or the State previously continued to hold the post on the date of the coming into force of the rule, are excluded from appointment to the Punjab Civil Service (Judicial Branch).
The expression 'joined or joins ' must be given a reasonable interpretation in the context of the situation and we think that our interpretation does not strain the language or attributes unreasona bleness to the rule making authority.
In that view, the petitioner cannot be said to be ineligible for appointment.
" The view expressed by the High Court has received the impri matur of the Court in K.C. Arora 's case.
That appears to be the present trend.
In the result, the petitions must succeed and are al lowed with costs.
The impugned notification dated June 22, 1984 issued by the State Government of Haryana purporting to amend r.6(b) of the Punjab Service of Engineers, Class I, Public Works Department (Irrigation Branch) Rules, 1964 with retrospective effect from July 10, 1964 is declared to be ultra vires the State Government.
P.S.S. Petitions allowed.

dataset_name: IN-Abs

summary:
The proviso to sub s.(6) of s.82 of the Punjab Reorgani sation Act, 1966 mandates that the conditions of service applicable to any person referred to in sub s.(1) or sub s.(2) shall not be varied to his disadvantage except with the previous approval of the Central Government.
Rule 6(b) of the Punjab Service of Engineers, Class I, Public Works Department (Irrigation Branch) Rules, 1964, as it stood at the relevant time, provided that in case of appointment by promotion from Class II Service no person shall be appointed unless he has completed in that Class of Service for a period of ten years from the commencement of these ,Rules, six years service and after that period eight years service.
The Governor of Haryana by a notification dated 22nd June, 1984 amended the above Rules by inserting the words 'in addition to the qualifications prescribed in clause (a) ' after the words "eight years service" in cl(b) of r.6 with retrospective effect from July 10, 1964 thereby making a degree in Engineering essential for promotion to the post of Executive Engineer in Class I service.
Rule 3(c) of the Punjab Service of Engineers, Class II P.W.D. 585 (Irrigation Branch) Rules, 1941 had enjoined that no person shall be appointed to the service unless he possessed one of the University degrees or other qualifications prescribed.
The proviso to r.5 however, laid down that that rule may be relaxed by Government on the recommendations of the Chief Engineers in order to admit the promotion of a member of the Overseers Engineering Service of outstanding merit who may not possess the qualifications specified in rule 3.
The petitioners, who are Engineering Diploma holders, were appointed to Class 11I Overseers Engineering Service (Irrigation Branch) in the erstwhile State of Punjab in the year 1953, 1949 and 1952 respectively.
In due course they were promoted as Sub Divisional Officers in Class II service and were eligible for promotion to the post of Executive Engineer in Class I service under the unamended rule 6(b) having more than eight years ' service in Class II service.
In A.S. Parmar vs State of Haryana, [1984] 2 SCR 476 this Court interpreting the unamended rule 6(b) had held that a degree in Engineering was not an essential qualification for promotion of Class II Officers to the cadre of Executive Engineer in Class I service.
But just before they were about to be promoted the State of Haryana issued the impugned notification rendering them inelligible.
Aggrieved by the said notification they filed these writ petitions under Art.32 of the Constitution.
It was contended for them that the impugned notification purporting to amend r.6(b) of Class I Rules with retrospective effect was ultra vires the State Government being contrary to the proviso to s.82(6) of the , that the unamended r.6(b) had conferred a vested right of promotion on them which could not be taken away by retrospective amendment under the proviso to article 309 of the Constitution, that a retrospective amendment taking away eligibility for promotion from a back date ranging over 20 years and thereby rendering invalid the promotions already made was constitu tionally impermissible, and that the action of the Govern ment in making such retrospective amendment to nullify the decision in Parmar 's case was wholly arbitrary, irrational and mala fide and thus violative of articles 14 and 16(1) of the Constitution.
For the respondents it was contended that the proviso to section 82(6) was not attracted to the facts of the case since on the appointed day, that is, November 1, 1966 the petitioners were not members of Class II Service.
They were then Super visors belonging to Class 111 Service, and, therefore, were not governed by the unamended r.6(b).
It was further con tended that under r.3(c) of the Punjab Service of Engineers, Class II 586 P.W.D. (Irrigation Branch) Rules, 1941 a degree in Engineer ing was essential till the 1970 Rules brought about a change.
Inasmuch as none of the petitioners had the requi site qualifications, they could not become members of Class II Service.
It wag strenuously contended that the decision in A.S. Parmar vs State of Haryana was incorrect.
Allowing the writ petitions, the Court, HELD: 1.1 The impugned notification dated June 22, 1984 issued by the State Government of Haryana purporting to amend r.6(b) of the Punjab Service of Engineers, Class I, Public Works Department (Irrigation Branch) Rules 1964, with retrospective effect from July 10, 1964 is declared ultra vires the State Government being contrary to s.82(6) of the .
[602EF, S97CD] 1.2 The proviso to s.82(6) of the is in the nature of a fetter on the power of the Gover nor under the proviso to article 309 of the Constitution not to alter the conditions of service applicable to members of civil services affected by the reorganisation of the State to their disadvantage without the previous approval of the Central Government.
[593E, 597B] In the Instant case, the State Government never moved the Central Government seeking its prior approval to the proposed amendment of r.6(b) of the said Class I Rules.
There was no Chief Secretaries Conference as was held prior to the reorganisation of the States under the States Reor ganisation Act, 1956.
Nor was there any communication issued by the Central Government conveying its previous approval of the changes in the service conditions which the States of Punjab and Haryana might make in terms of the proviso to s.82(6) of the .
The amend ment, therefore, must be struck down.
[596E,G, 597C] Mohammad Bhakar vs
Y. Krishan Reddy, ; Mohammdd Shujat Ali & Ors.
vs Union of India & Ors.
, ; and A.S. Parmar vs State of Haryana, [1984] 2 SCR 476, referred to.
I The decision in Parmar 's case is not open to ques tion.
What was of the essence for purposes of promotion of Sub Divisional Officers who were members of Class II Service to the post of Executive Engineer under r.6(b) of the Class I Rules was not a degree in Engineering, but eight years ' experience in Class II Service.
[597G, 598CD] 587 2.2 The petitioners like other members of Class II Service who are diploma holders and satisfy the eligibility test of eight years ' service in that Class were, therefore, eligible for being considered for promotion to the post of Executive Engineer in Class I service without having a degree in Engineering.
[594B] A.S. Parmar vs State of Haryana, [1984] 2 SCR 476, referred to.
The requirement of a degree in Engineering which was an essential educational qualification for purposes of direct recruitment of Assistant Executive Engineers in Class I Service under r.6(a) of the Class I Rules could not be projected for promotion of Sub,Divisional Officers belonging to Class II Service to the posts of Executive Engineers in Class I. Service under r.6(b) as they form two distinct sources from which appointments to the posts of Executive Engineers could be made.
[598B] 4.
The proviso to r.5 of the 1941 Rules conferred power on the State Government to relax the requirement of r.3(c) on the recommendation of the Chief Engineer in order to admit the promotion of a member of the Overseen Engineering Service (Irrigation Branch), Punjab if he was an officer of outstanding merit although he did not possess the qualifica tion prescribed in r.3(c), i.e. a degree in Engineering.
Presumably, the petitioners were officers off outstanding merit as they were promoted as Offg.
Sub,Divisional Officers in Class II Service in January 1964, July 1966 and November 1969.
[597H 598A, 596A] 5.
It cannot be said that on the appointed day i.e. on November, 1, 1966 the petitioners were Overseers belonging to the Class III Service and were therefore not governed by unamended r.6(b).
Two of them had already been promoted as (Mfg. SUb,Divisional Officers prior to the appointed day, i.e. in January 1964 and July 1966 and were, therefore, governed by the unamended r.6(b).
The third petitioner was also promoted to that post subsequently in November 1969.
Upon such promotion to the post of Offg.
Sub Divisional Officers they had not only the legitimate expectation that they would in due course be considered for confirmation but also had the right on such confirmation to be considered for promotion.
It is also not quite accurate to say that the petitioners were not shown as belonging to the Class 11 Service.
A bare look at the notification dated October 27, 1985 would show that the petitioners figure at Sr.
Nos. 246, 254 and 369.
[596B D] 6.
The power to frame rules to regulate the conditions of service 588 under the proviso to article 309 of the Constitution carries with it the power to amend or alter the rules with a retro spective effect.
This rule is, however, subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect.
Therefore, unless it is specifically provided in the rules, the employees who were already pro moted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled.
In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the tests of articles 14 and 16(1) of the Constitution.
They do not, in the instant case.
[599B F] B.S. Vadhera vs Union of India, ; , Raj Kumar vs Union of India, ; K. Nagaraj & Ors.
vs State of A.P. & Anr.
, ; ; State of J & K vs Triloki Nath Khosla & Ors., ; ; State of Mysore vs
M.N. Krishna Murtv & Ors., ; ; B.S. Yadav & Ors., vs State of liaryana & Ors.; , ; State of Gujarat & Anr.
vs Ramanlal Keshavlal Soni & Ors., ; and Ex Captain K.C. Arora & Anr.
vs State of Haryana & Ors.
, ; , referred to.


judgement:
Civil Appeal No. 2124 of 1972 From the Judgment and order dated 8.7.1971 of the Bombay High Court in S.C.A. No. 148 of 1967.
182 Rajinder Sacher, P.K. Ram, R.D. Suverna and D.N. Misra for the Appellant.
Anil Deo Singh, Mrs. Sushma Relan and C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
We find no merit at all in this appeal which has been filed on the strength of a certificate granted by the High Court of Bombay by its order dated January 12, 1972 under Article 133(1)(a) of the Constitution of India against the judgment of the High Court dated April 8, 1971 dismissing the Special Civil Application No. 148 of 1967 filed by the appellant.
The appellant is the sole proprietor of the Navbharat Trading Company, carrying on business in cloth at Ichalkaranji in Kolhapur.
The challenge raised by him in the Writ Petition filed in the High Court was against the appellate and revisional orders passed by the Collector of Central Excise, Bombay and the Government of India respectively holding that the appellant had been rightly assessed and called upon to pay excise duty amounting to Rs.53,190 in respect of cloth manufactured in some powerlooms and purported to have been purchased by him from the owners of those powerlooms.
The Assistant Collector of Central Excise, as well as the Appellate and Revisional Authorities have concurrently found that yarn had been supplied to the powerlooms by one Tejpal for and on behalf of the appellant, that the cloth in question was manufactured by the powerloom owners for and on behalf of the appellant himself and that the powerloom owners received only an amount equal to the labour charges.
Though, these were findings on pure question of fact, they were challenged by the appellant before the High Court on the ground that they were not supported by any material and were perverse.
On that basis it was contended before the High Court that the appellant should be held not to be the manufacturer of the cloth in question and hence not liable for payment of excise duty.
The High Court after a detailed consideration of all the aspects of the case found that the books of accounts produced by the appellant before the Excise Authorities contained clear evidence of the fact that the appellant himself was the owner of the yearn alleged to have been sold by Tejpal to the powerloom owners and that the appellant got 183 back that very yarn in the shape of cloth after it was woven into cloth.
After referring to the details of the evidence, the High Court observed: "These particulars and details go to show that there was clear and cogent evidence on the record of the department to enable the assessing authorities to make inferential findings that the transactions of alleged sale of yarn by Tejpal to the powerloom owners and the transactions of alleged purchase of cloth by the petitioner from the powerloom owners were camouflage for the petitioner to get powerloom cloth manufactured by himself by employing powerlooms of the powerloom owners.
" We see no scope at all for interference with the aforesaid conclusion of fact reached by the High Court.
The consequential position that emerges is that the appellant himself was the manufacturer of the cloth in question and he must be held to have been rightly assessed to excise duty in respect of the cloth so got manufactured in the powerlooms.
The appeal accordingly fails and is dismissed with costs.
S.R. Appeal dismissed.

summary:
While dismissing, by its order dated 8 4 71, the writ petition filed by the appellant challenging the findings of the appellate and revisional orders passed by the Collector of Central Excise, Bombay and the Government of India respectively holding that the appellant had been rightly assessed and called upon to pay excise duty in respect of cloth manufactured in some powerlooms and purported to have been purchased by him from the owners of those powerlooms, the Bombay High Court, by its order dated 12th January, 1972 granted certificate of fitness to appeal under Article 133(1)(a) against the said judgment.
Dismissing the appeal, the Court, ^ HELD: 1.
The books of accounts produced by the appellant before the excise authorities contained clear evidence of the fact that the appellant himself was the owner of the yarn alleged to have been sold by Tejpal to the powerloom owners and that the appellant got back that very yarn in the shape of cloth after it was woven into cloth.
Consequently the appellant himself was the manufacturer of the cloth in question and liable to excise duty in respect of the cloth so got manufactured in the powerlooms of private owners.
[182G H; 183D]


judgement:
Civil Appeal No. 114 of 1950.
Appeal from a judgment and decree of the High Court of Patna (Shearer and Reuben JJ.) dated 5th November, 1948, in Appeal No. 2064 of 1946, 271 which arose out of a decree of the District Judge of Purulia in Title Appeal No. 116 of 1945.
The facts are stated fully in the judgment.
M.C. Setalvad, Attorney General for India, (Nandial Untwalia, with him) for the appellant.
B. C. De (Jyotirmoy Ghose, with him) for the respondent.
November26.
The Judgment of the Court was deliv ered by MUKHERJEA J.
This appeal is on behalf of the defendant and it arises out of a suit commenced by the plaintiff respondent, in the Court of the Subordinate Judge at Chai bassa, for recovery of possession of the land described in schedule to the plaint, on the allegation that the defendant was a monthly tenant in respect of the same, and that the tenancy was determined by a notice to quit.
The suit was decreed by the trial court and the decision was affirmed, on appeal, by the District Judge, Purulia, and on Second Ap peal, by a Division Bench of the High Court of Patna.
The defendant has now come up to this court on the strength of a certificate granted under section 110, Civil Procedure Code.
Mr. Setalvad, appearing on behalf of the defendant appellant, stated to us at the outset that he would not dispute the validity or sufficiency of the notice to quit served upon his client, if on the facts of this case he is held to be a monthly tenant under the plaintiff in respect of the premises in suit.
His contention, in substance, is that the defendant was at no point of time a monthly tenant under the plaintiff or his predecessor.
There might have been, according to the learned Counsel, two tenancies for one year each for two successive periods, but on the expiry of the second yearly lease, which happened on 7th December, 1926, the defendant ceased to be a tenant and no fresh tenancy was created by holding over as is contemplated by section 116 of the Transfer of Property Act.
As there was no holding over, there could not be any question of a monthly tenancy being brought into existence 272 under the provision of section 116 of the Transfer of Property Act, and the present suit of the plaintiff having been admittedly brought more than 12 years after the deter mination of the second yearly lease, is barred by limitation under Article 139 of the Indian Limitation Act.
The whole controversy in this appeal thus centres round the point as to whether the defendant was in fact a monthly tenant under the plaintiff at the date when the notice to quit was served upon him.
To appreciate the respective contentions that have been put forward upon this point by the learned Counsel on both sides, it will be necessary to narrate briefly the material facts in their chronological order.
The property in suit is a plot of land, measuring 4 bighas 12 cuttas, and is comprised in old Survey plot No. 578 of village Jugselai in the district of Singhbhum.
The entire village forms part of the Dhalbhum estate, of which the plaintiff is admittedly the present proprietor.
One Charan Bhumiji was the " Prodhan" of village Jugselai from some time before 1913 and on 24th July, 1913, the father of the defendant, by a registered Patta, took a lease of about :31 bighas of land appertaining to Survey plot No. 573 from this Prodhan for purposes of cultivation.
It is not disput ed that the property in suit is covered by this Patta.
At that time the proprietor of the Dhalbhum estate was Raja Satrughna and he died in 1916, leaving behind him a will by which the entire estate was bequeathed to the present plain tiff.
The plaintiff 's claim under the will was challenged by one Partap Chandra Deo Dhabal who succeeded in getting his name recorded as proprietor of the zemindari in the Singhbhum Collectorate.
Thereupon the plaintiff instituted a suit (being Title Suit No. 67 of 1921) in the Court of the Subordinate Judge at Midnapore for establishment of his title to the zemindari and the suit was decreed by the trial Judge.
Against this decision, the defendant Pratap Chandra Deo Dhabal took an appeal to the High Court of Calcutta and during the pendency of this appeal, the High Court appointed a Receiver who was put in 273 possession of the entire estate.
On 8th December, 1924, the defendant executed a registered Kabuliyat in favour of the Receiver, by which he purported to take settlement of the land in suit for a period of 10 years at a rental of Rs. 46 per annum and a selami of Rs. 250.
There was a covenant in the lease, which looks like one for perpetual renewal, and it was to the effect that on the expiry of the term, if the lessor did not require the land for his own purposes and decided to re settle it, the lessee would be entitled to fresh settlement on enhanced,rent and on such terms as might be then agreed upon between the parties.
It appears from the record that the selami money, amounting to Rs. 250, was paid by the defendant to the Receiver several months before the Kabuliyat was executed, and the rental amounting to Rs. 46 was paid for the first time on 8th of March, 1925.
The next payment of rent was made in the succeeding year, on 16th of March, 1926.
Admittedly, no further payment of rent was made by the lessee either to the Receiver or to the proprietor since then, up to this period.
The High Court dismissed the appeal preferred by Pratap Chandra Deo Dhabal some time in 1924 and this order of dismissal was affirmed by the Judi cial Committee in May 1927.
The Receiver was then dis charged and the plaintiff got possession of the entire estate in July 1927.
On April 15, 1937, the plaintiff brought a suit for ejectment (being Title Suit No. 2 of 1937) against the defendant in respect of this property in the Court of the Subordinate Judge at Chaibassa.
The claim was based substantially upon the terms of the Kabuliyat executed by the defendant on 24th of December, 1924, and the suit was, in fact, one for ejectment of a lessee on the expiration of the period provided for in the lease.
It was only the renewal clause in the Kabuliyat that was challenged as invalid and inoperative, not only because it was vague and indefinite but also on the ground that the Receiver acted beyond his authority in entering into a stipulation of this character.
36 274 The defendant in his written statement resisted the plaintiff 's claim for possession primarily on the ground that he had acquired permanent rights in the land under the Prodhan 's Patta of 1913 and continuous occupation of it since then for more than 12 years.
The Kabuliyat of 1924, he attempted to ignore altogether.
It was said that it was executed only to avoid trouble and harassment at the hands of the Receiver and that, being inoperative as a lease, it could not, in any view, affect the prior rights which he acquired under the Patta of 1913.
The trial judge decreed the suit.
On appeal, the judg ment was reversed by the District Judge and the plaintiff 's suit was dismissed simply on the ground that the notice to quit that was served on the defendant was ineffectual in law to determine the tenancy.
The District Judge found, first of all, that the Prodhan 's Patta was void and inoperative in law and could not create any rights in the defendant, inas much as the Prodhan had no authority to settle lands of this character.
The Kabuliyat of 1924 was also held to be inef fectual as not amounting to a lease as defined by the Trans fer of Property Act.
It was held, however, by the District Judge that apart from the Kabuliyat, a tenancy was created by payment and acceptance of rent in the years 1925 and 1926 and after 1926 the defendant occupied the position of a monthly tenant by holding over under section 116 of the Transfer of Property Act.
Such tenancy could be determined by fifteen days ' notice, expiring with the month of tenancy, but as the notice, which was served by the plaintiff upon the defendant, did not fulfil this requirement, the plain tiff 's suit was bound to fail.
The District Judge, though he dismissed the suit, gave the plaintiff a declaration to the effect that the defendant was liable to eviction on service of fifteen days ' notice, expiring with the end of the Bengali month of the tenancy.
Against this decision, the plaintiff took an appeal to the High Court of Patna, and the appeal came up for hearing before Harries C.J. and Fazl Ali J.
The learned Judges affirmed the finding of the lower appellate court that 275 the Prodhan 's Patta did not create any rights in the defend ant and that the Kabuliyat of 1924 was also ineffectual as a lease to give the defendant any tenancy right.
The learned Judges further held that the defendant did not acquire any permanent right in the land by prescription or otherwise and that by reason of the payment of rent to the Receiver in the years 1925 and 1926 he became a tenant from month to month.
In these circumstances the High Court con curred with the District Judge in holding that the notice to quit was insufficient for the purpose of determining the tenancy.
It seems that the defendant made a strenuous endeavour before the High Court to establish that as the Patta of 1913 as well as the Kabuliyat of 1924 were both invalid and inoperative, he was never a tenant in respect of the land in suit and no tenancy could be created by the two payments of rent, inasmuch as the Receiver had no authority to receive them.
It was contended, therefore, that the plaintiff was in possession of the land as a trespasser all along and thus acquired a good title by adverse possession.
The High Court, though it held definitely that the defendant was a tenant from month to month, nevertheless kept open the question as to whether the payment of rent to the Receiver was tantamount to payment to the plaintiff.
It was held that as the notice to quit was defective, that was suffi cient for dismissal of the suit, and the declaration made in the decree of the lower appellate court that the defendant was liable to be evicted on service of fifteen days ' notice, expiring with the Bengali month of the tenancy, was directed to be deleted.
This judgment of the High Court was pro nounced on the 5th of May, 1942.
Soon after this on 18th July, 1942, the plaintiff served a notice to quit on the defendant, asking him to vacate the land on the 7th of August following, and as the defendant refused to give up possession, the present suit was brought on 22nd July, 1943.
The plaint in the present suit is a very simple one;it proceeds entirely on the findings record ed by the High Court in the previous litigation.
The right to 276 possession is not based on the terms of the Kabuliyat of 1024.
The plaintiff avers that by reason of the payment of rent on 8th March, 1925, and 16th March, 1926 the defendant became a tenant from month to month under him and the tenan cy was determined by a proper notice to quit.
The defendant in his written statement raised several pleas in answer to the plaintiff 's claim.
He reiterated his rights under the Patta of 1913 and urged that by reason of his holding possession of the land on assertion of a perma nent tenancy right for a long period of time, he acquired a valid title to the property.
As regards the Kabuliyat of 1924, it is said in one part of the written statement that the defendant executed this document under misapprehension of facts without knowing the contents thereof.
But at anoth er place it is stated that the Kabuliyat was binding on the plaintiff and he was not entitled to institute a suit in contravention of its terms, without in any event refunding the selami money.
The defendant admitted, what he denied in the earlier suit, that the payments made to the Receiver amounted to payments to the plaintiff himself, although this question was left open by the High Court on the previous occasion.
The other pleas raised in the written statement are not material, except that a specific point was taken, challenging the sufficiency of the notice to quit that was served upon the defendant.
On these pleadings a number of issues were framed.
The trial judge held on a consideration of the materials placed before him that the Prodhan 's Patta was a void and inopera tive document and conferred no rights on the defendant.
He negatived the case, which the defendant attempted to make in course of hearing, that the Kabuliyat executed by him was obtained by threat and coercion.
It was held by the Subordi nate Judge in accordance with the decisions of the Patna High Court on the point that the Kabuliyat could not operate as a lease under the Transfer of Property Act, and conse quently the defendant did not acquire the rights of a lessee under the same.
He held, however, 277 that by payment and acceptance of rent a new tenancy was created de hors the Kabuliyat, and as the new tenancy was for building purposes, it.
was a tenancy from month to month under section 106 Transfer of Property Act, terminable by fifteen days notice.
As the notice was proper and, suffi cient, the trial judge decreed the plaintiff 's suit.
Against this judgment, the defendant took an appeal to the court of the District Judge, Purulia, and the District Judge dismissed the appeal and affirmed the judgment of the trial court.
It appears that two points were raised by the defend ant before the District Judge in support of his appeal: one was that the Kabuliyat of 1924 was effective as a lease and consequently the defendant could not be ejected in contra vention of the terms thereof.
At the same time it was con tended that there was no tenancy at all held by the defend ant under the plaintiff, inasmuch as the payments made to the Receiver could not be regarded as payments to the plain tiff.
The first point, the District Judge pointed out, was contrary to the express decisions of the Patna High Court, while the second was contradictory to the defendant 's own admission in the written statement.
The defendant then came up in Second Appeal before the High Court of Patna and the appeal was heard by a Division Bench, consisting of Shearer and Reuben JJ.
The learned Judges agreed in dismissing the appeal and affirming the decree made by the courts below, but the grounds upon which they based their decision are not identical.
As regards the nature of the tenancy created by implication of law in consequence of the Receiver having accepted payment of rent from the defendant, it was held by Reuben J. that when the Receiver accepted rent in 1925, it should be presumed that the parties intended to create a tenancy for one year and when he accepted rent again in 1926, such acceptance amount ed to his assenting to the defendant 's holding over; and in view of the purpose for which the tenancy was created, the defendant from that time became a tenant from 278 month to month under the provision of section 116, Transfer of Property Act.
Shearer, J., felt difficulty in accepting this view though in his opinion if a periodic tenancy was created at all, it was from month to month and not from year to year.
There are observations, however, in the latter part of the judgment of Shearer, J., which would go to show that in his opinion the creation of two leases, each for one year, could be fairly gathered from the admitted facts of the case.
The learned Judge was not sure, however, as to whether the defendant ever became a tenant of the plaintiff.
He discussed the nature of the renewal clause contained in the Kabuliyat and held it to be void for uncertainty.
He also negatived the defendant 's plea on the strength of adverse possession.
His conclusion was that whatever view might be taken regarding these points, the defendant had no valid defence to the plaintiff 's claim for eviction and consequently the decision of the courts below was right.
It is the propriety of this decision that has been challenged before us in this appeal.
Mr. Setalvad, in support of his client 's case, has not called in aid the Prodhan 's Patta of 1913; nor has he placed any reliance upon the Kabuliyat of 1924 and the covenant for renewal contained therein.
He has not disputed before us that the payments made to the Receiver were in reality payments to the plaintiffs, and has conceded that a tenancy could be created by implication by reason of his client having paid and the Receiver having accepted rents in re spect of the suit premises.
His contention, as indicated already, is that by reason of the payment and acceptance of rent, there were two tenancies for one year each, creat ed for two successive years; but the relationship of landlord and tenant between the parties came to an end on the expiration of the second annual lease.
As there was no holding over by the defendant since then as contemplated by section 116, Transfer of Property Act, there was no subsist ing tenancy at any time after December, 1926, and the plain tiff 's suit instituted in the year 1943 was obviously time barred.
279 Mr. De, appearing for the plaintiff respondent, has, on the other hand, contended that the tenancy that was created by payment and acceptance of rent in the year 1925 was from the beginning a tenancy from month to month under the provi sion of section 106.
Transfer of Property Act.
Alterna tively, he has argued that if a tenancy for one year only was created in the year 1925, then after the expiration of that one year 's lease the defendant held over and the Receiver 's assent to his continuing in possession is evidenced by acceptance of rent from him in the year 1926.
The tenancy thus created would be a tenancy from month to month under section 116, Transfer of Property Act.
Lastly, it is argued that even if two successive tenancies were created for one year each, the facts admitted and proved would go to show that the tenant held over after the second annual lease and consequently a tenancy from month to month came into existence in accordance with the provision of section 116, Transfer of Property Act, even though no rent was demanded by the landlord after 1926.
The contro versy between the parties so far as this appeal is con cerned, therefore, narrows down to the following three points : (1) What was the nature of the tenancy created by ac ceptance of rent by the Receiver from the defendant on the 8th of March, 1925 ? If it was a tenancy from month to month, it is not disputed on behalf of the defendant that no question of holding over would at all arise and the plain tiff would be entitled to succeed.
(2) If in 1925 a tenancy was created for one year, can the landlord 's assent to the defendant 's continuing in possession be inferred from the fact that rent was accepted from the defendant in March, 1926 ? (3) If the payment and acceptance of rent in March, 1926, brought into existence a tenancy for another year, was there any subsequent tenancy created after the second year, although there was no ,demand or acceptance of rent by the landlord since then ? 280 So far as the first point is concerned, the courts below have proceeded on the view that a registered instru ment signed by the landlord was necessary to create.
a valid lease for ten years.
That view was not questioned before us and we express no opinion on this point.
Proceeding, there fore, on the assumption that even though the parties might have intended to create a lease for 10 years, no operative ]ease came into existence, the only facts admitted are that the defendant remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiff 's estate, and paid rent to the latter.
From these facts a tenancy could be fairly presumed and the point for determination is, what was the duration of the tenancy that was created in the present case? Section 106 of the Transfer of Property Act lays down: "In the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months ' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or les see, by fifteen days ' notice expiring with the end of a month of tenancy.
" The section lays down a rule of construction which is to be applied when there is no period agreed upon between the parties.
In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created.
The rule of construction embodied in this sec tion applies not only to express leases of uncertain dura tion but also to leases implied by law which may be inferred from possession and acceptance of rent and other circum stances.
It is conceded that in the case before us the tenancy was not for manufacturing or agricultural purposes.
The object was to enable the lessee to build structures upon the land.
In these circumstances, it could be 281 regarded as a tenancy from month to month.
unless there was a contract to the contrary.
The question now is, whether there was a contract to the contrary in the present case ? Mr. Setalvad relies very strongly upon the fact that the rent paid here was an annual rent and he argues that from this fact it can fairly be inferred that the agreement between the parties was certainly not to create a monthly tenancy.
It is not disputed that the contract to the con trary, as contemplated by section 106 of the Transfer of.
Property Act, need not be an express contract; it may be implied, but it certainly should be a valid contract.
If it is no contract in law, the section will be operative and regulate the duration of the lease.
It has no doubt been recognised in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding there to.
Conse quently, when the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption.
But the difficulty in applying this rule to the present case arises from the fact that a tenancy from year to year or reserving a yearly rent can be made only by registered instrument, as laid down in section 107 of the Transfer of Property Act(1).
The Kabuliyat in the case before us is undoubtedly a registered instrument, but ex concessis it is not an operative document at all and cannot consequently fulfil the requirements of section 107 of the Transfer of Property Act.
This position in fact is not seriously controverted by Mr. Setalvad; but what he argues is that a lease for one year certain might fairly be inferred from the payment of annual rent, and a stipulation like that would not come within the mischief of section 107 of the Transfer of Property Act.
His contention is that the payment of an annual rent, as was made in the present case, is totally inconsistent with a monthly lease.
We are not unmindful of the fact that in (1) Vide Debendra Nath vs Syama Prasanna, , 1126 37 282 certain reported cases, such inference has been drawn.
One such case has been referred to by Mr.Justice Reuben in his judgment(1), where reliance was placed upon an earlier decision of the Calcutta High CoUrt(3).
A similar view seems to have been taken also in Matilal vs Darjeeling Municipality(3).
But one serious objection to this view seems to be that this would amount to making a new contract for the parties.
The parties here certainly did not intend to create a lease for one year.
The lease was intended to be for a period exceeding one year, but as the intention was not expressed in the proper legal form, it could not be given effect to.
It is one thing to say that in the absence of a valid agreement, the rights of the parties would be regulat ed by law in the same manner as if no agreement existed at all; it is quite another thing to substitute a new agreement for the parties which is palpably contradicted by the admit ted facts of the case.
It would be pertinent to point out in tiffs connection that in the Second Appeal preferred by the plaintiff against the dismissal of his earlier suit by the lower appellate court, the High Court definitely held that the defendant 's tenancy was one from month to month under section 106, Transfer of Property Act, and the only question left open was whether payment to the Receiver amounted to payment to the plaintiff himself.
In this suit the defendant admitted in his written statement that payment to the Receiver had the same effect as payment to the plaintiff, and the trial judge took the same view as was taken by the High Court on the previous occasion, that by payment to and acceptance of rent by the Receiver, the defendant became a monthly tenant under section 106, Transfer of Property Act.
In his appeal before the District Judge, which was the last court of facts, the only ground upon which the defendant sought to challenge this finding of the trial judge was that the Receiver was an unauthorised person because of the 'decision of (1) Aziz Ahmad vs Alauddin Ahmad, A.I.R. 1933 Pat. 485.
(2) Md. Moosa vs Jaganund (3) 17 C.L.J. 167.
283 the Judicial Committee which set aside his appointment and consequently acceptance of rent by such person could not create a monthly tenancy.
This shows that it was not the case of the defendant at any stage of this suit that because one year 's rent was paid, a tenancy for one year was brought into existence.
We think, therefore, that on the facts of this case it would be quite proper to hold that the tenancy of the defendant was one from month to month since its inception in 1924.
This view finds support from a number of reported cases(1), and in all these cases the rent payable was a yearly rental.
On this finding no other question would arise and as the validity of the notice has not been questioned before us, the plaintiff would be enti tled to a decree in his favour.
The appeal thus fails and is dismissed with costs.
Appeal dismissed.

summary:
The rule of construction embodied in section 106 of the Transfer Property Act applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances.
270 The contract to the contrary contemplated by the said sec tion need not be an express contract; it may be implied, but it should be a valid contract.
If the contract is invalid the section will regulate the duration of the lease.
When the rent reserved is an annual rent, a presump tion would arise that the tenancy was an annual tenancy unless there is something to rebut this presumption.
But under section 107 of the Transfer of Property Act a tenancy from year to year or reserving an yearly rent can be made only by a registered instrument.
The defendant executed a registered kabuliyat to the Receiver who was managing an estate pending a suit, purport ing to take a plot of land on lease for a period of ten years at a rental of Rs. 46 per annum and paid the first year 's rent of Rs. 46 on the 8th March, 1925, and the next year 's rent on the 16th March, 1926.
No further rent was paid by the defendant to the Receiver or to the proprietor after that date.
The proprietor, treating the defendant as a monthly tenant served notice to quit on him on the 18th July, 1942, asking the latter to vacate on the 7th August, 1942, and instituted a suit for ejectment in July, 1943.
The kabuliyat was found to be inoperative in law and the defend ant contended that the payment and acceptance of annual rent in 1925 and 1926 did not create a monthly tenancy but two tenancies for one year each for two successive years, that the relation of landlord and tenant came to an end on the expiration of the second annual lease, and, as there was no holding over, the suit was time barred: Held (i) that from the facts a tenancy could be pre sumed to have come into existence from 1924; (ii} as the purpose of the tenancy was for building structures on the land, under sec.
106 of the Transfer of Property Act the tenancy must be presumed to be one from month to month in the absence of a contract to the contrary; (iii) a contract that the tenancy was for one year certain could not be inferred in the present case from the fact that an annual rent was paid in 1925 and 1926, inasmuch as the kabuliyat, though inoperative in law, showed that the parties never intended to create a lease for one year; (iv) on the facts of the case it was quite proper to hold that the tenancy was one from month to month since its inception in 1924 and the suit was not time barred.
Debendra Nath vs Shyama Prasanna and Sheikh Akloo vs Emaman (I.L.R. approved.
Aziz Abroad vs Alauddin Abroad (A.I.R. 1933 Pat. 485), Md. Moosa vs Jaganand and Matilal vs Darjeel ing Municipality (17 C.L.J. 167) referred to.