judgement:
Civil Appeal No. 435 of 1983.
Appeal by Special leave from the Judgment and Order dated the 30th July, 1982 of the Bombay High Court in writ petition No. 63 of 1982.
Dayaram Asanand Gursahani Appellant in person.
A. V. Sawant, M. N. Shroff, section M. Shah and P. Sankara Narayana for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The two questions urged in this appeal filed against the judgment of the High Court of Bombay are whether the appellant is entitled to reckon for purposes of his seniority in the cadre of District Judges the period during which he had worked as an Assistant Judge in accordance with the proviso to sub clause (b) of clause (i) of sub Rule (2) of Rule 5 of the Bombay Judicial Service Recruitment Rules, 1956 (hereinafter referred to as 'the Rules ') and whether the appellant is entitled to get the salary and allowances in 708 the selection grade scale or to be posted as an Inspecting Judge.
Both the contentions were negatived by the High Court in a writ petition filed under Article 226 of the Constitution.
This appeal by special leave is preferred against the judgment of the High Court.
The appellant was enrolled as an advocate on December 14, 1951.
In response to a notification inviting applications for the purpose of recruiting members of the Bar directly as District Judges under Rule 5 (2) (i) (b) of the Rules, the appellant made an application for considering his case also for recruitment as a District Judge.
Ultimately five persons were selected and appointed as Assistant Judges by notification issued on January 2, 1967 and the appellant was one of them.
All of them were first posted as Assistant Judges as per the proviso to Rule 5 (2) (i) (b) of the Rules.
On February 19, 1973, the appellant was appointed to officiate in the cadre of District Judges.
He was confirmed as a District Judge with effect from August 1, 1975 as per notification No. A 1274/75 dated December 9,1975.
The seniority of the appellant in the cadre of District Judges was fixed on the basis of his actual appointment as District Judge in April, 1973.
The first contention of the appellant is that on a true construction of Rule 5 (2) (i) (b) of the Rules, he should be deemed to have entered the cadre of District Judges when he was initially recruited as a District Judge and posted as an Assistant Judge under the proviso to Rule 5(2) (i) (b) of the Rules.
This claim of the appellant has been rejected by the High Court.
We do not propose to consider this contention on the ground of laches as we do not find any satisfactory explanation for the delay of nearly nine years on the part of the appellant in questioning the correctness of the seniority assigned to him in the year 1973.
We shall, however, confine this appeal to the second question namely, whether the appellant is entitled to the salary and allowances said to be payable to District Judges in the selection grade.
In order to decide the above question, it is necessary to deal with the constitution of the Judicial Service in the State of Maharashtra.
The Judicial Service of the State of Maharashtra consists of two branches namely, (i) the Junior Branch and (ii) the Senior Branch.
The Junior Branch consists of the following Class I Officers (i) Judges of the Small Causes Courts at places other than Bombay, (ii) Civil Judges (Senior Division), (iii) Judges of the Small Causes Court at Bombay 709 and Metropolitan Magistrates and (iv) Civil Judges (Junior Division) and Judicial Magistrates of the First Class.
The Senior Branch consists of (i) District Judges, (ii) the Principal Judge and Judges of the Bombay City Civil Court, (iii) the Chief Judge and the Addl.
Chief Judge of the Small Causes Court, Bombay, (iv) the Chief Presidency Magistrate and the Additional Chief Presidency Magistrate, Bombay and (v) the Assistant Judges.
The Metropolitan Magistrate, Juvenile Court, Bombay is also a member of the Maharashtra Judicial Service.
Rule 4 of the Rules provides for the method of appointment to the post in the Junior Branch including Metropolitan Magistrates, Juvenile Court, Bombay, Rule 5 of the Rules deals with the method of recruitment to the Senior Branch.
Sub rule (2) of Rule 5 of the Rules relates to the recruitment to the cadre of District Judges and Judges of the Bombay City Civil Court.
It reads: "5,(2) District Judges and Judges of the Bombay City Civil Court.
(i) District Judges.
Appointments to the posts of District Judges shall be made by the Governor (a) in consultation with the High Court by promotion from the members of the Junior Branch who have ordinarily served as Assistant Judges, and (b) on the recommendation of the High Court from members of the Bar who have practised as Advocates or Pleaders for not less than seven years in the High Court, or Courts subordinate thereto: Provided that persons recruited at the age of not more than forty five years, fifty years in the case of a person belonging to a community recognised as backward by Government for the purposes of recruitment shall first be appointed to 710 work as Assistant Judge for such period as may be decided by Government on the merits of his case on the recommendations of the High Court before he is appointed as a District Judge: Provided further that ordinarily the proportion of posts filled in by promotion, under clause (a) and those by appointment from members of the Bar under clause (b) shall be 50: 50.
" It may be noted here that there is no separate cadre of selection grade District Judges or of Inspecting District Judges referred to in the Rules which are framed under the proviso to Article 309 of the Constitution.
The scale of pay of District Judges prior to July 1, 1962 was Rs. 900 50 1000 60 1600 50 1800.
On October 21, 1963 on the recommendation of the High Court, the State Government passed a resolution, the relevant part of which reads as follows: "Resolution: Government is pleased to sanction one post of District Judge in the Selection Grade of Rs. 1800 100 2000 in the cadre of District Judges with effect from the Ist July, 1962.
As the Selection Grade is the part of the pay scale of Rs. 900 50 1000 60 1600 50 1800, applicable to the cadre of District Judges, an officer drawing pay in this grade shall also be entitled to the special pay, if any, attached to the post held by him, subject to the condition that pay plus special pay does not exceed Rs. 2000/ ." (emphasis added) The resolution set out above only stated that one District Judge in the selection grade will draw salary in the scale of Rs. 1800 100 2000 with effect from July 1, 1962.
It also stated that this scale was a part of the pay scale of Rs. 900 50 1000 60 1600 50 1800 applicable to the cadre of District Judges.
It did not indicate that there was any process of promotion by selection or otherwise from the cadre of District Judges to the cadre of selection grade District Judges 711 involved while sanctioning the selection grade pay scale.
There was no question of even crossing the efficiency bar.
It appears that the said selection grade scale was sanctioned only to mitigate the hardship caused by stagnation at the highest level of the original pay scale i.e. at Rs. 1800.
It was just a time scale and an extension or projection of the pay scale of Rs. 900 1800 applicable to the cadre of District Judges but confined to one person.
The above resolution was followed by another resolution of the State Government dated July 20, 1974, the material part of which read as follows: "Resolution: Government is pleased to sanction five additional posts of District Judges in the selection grade of Rs. 1800 100 2000 in the cadre of District Judges with effect from the Ist August, 1974.
As the Selection Grade is the part of the pay scale of Rs. 900 50 1000 60 1600 50 1800, applicable to the cadre of District Judges, an officer drawing pay in this grade shall also be entitled to the special pay, if any, attached to the post held by him, subject to the condition, that pay plus special pay does not exceed Rs. 2000." (Emphasis added) This resolution was worded in the same manner as the earlier one but the number of selection grade posts was increased by five.
Thus there were in all six posts of selection grade District Judges who could draw salary at the pay scale attached to it.
Consequent upon the revision of pay scales of officers of the cadre of the Indian Administrative Service the State Government modified the pay scale of the selection grade District Judges with effect from January 1, 1973 by the resolution dated August 21, 1975, the relevant part of which reads thus: "Resolution: Government is pleased to direct that the revised Selection Grade I.A.S. pay scale of Rs. 2000 125/2 2250 should be made applicable to the Selection Grade District Judges with effect from 1 1 1973.
712 2.
Government is also pleased to direct that District Judges in the Selection Grade posts, should be allowed to draw special pay, if any, attached to the post held by them, subject to the condition that pay plus special pay does not exceed Rs. 2450/ .
" There was, however, no other alteration in the conditions of service relevant to the subject of selection grade District Judges.
In so far as the Inspecting District Judges are concerned, it is seen that the specific case of the High Court as set out in the affidavit of Shri Makarend Shankar Vaidya, Additional Registrar (Inspection).
High Court of Bombay is that the High Court had not created any new cadre of Inspecting District Judges and that it was only for the purpose of facilitating a brief and easy reference to such officers as were doing inspection work under a scheme evolved by the High Court for maintaining the efficiency of the Judicial service that they were being referred to in common parlance as Inspecting District Judges.
No rule was evolved by the High Court to the effect that either the senior most Judges or those promoted by selection to that cadre should be posted as Inspecting District Judges.
It is, however, stated by the deponent of this affidavit that the High Court had laid down certain guidelines for posting a District Judge as an Inspecting District Judge and they are (i) that the District Judge should have put in at least three years as District Judge and should have worked as such in any of the districts,(ii) that his administrative capacity should be relatively high and (iii) that he should have a reasonable length of service ahead of him as a District Judge till his retirement.
Taking all these guidelines together, it is possible to post any District Judge who satisfies the three conditions as an Inspecting District Judge even though there may be many District Judges who are senior to him and who also satisfy the above conditions.
Since admittedly the posts of Inspecting District the Judges do not constitute a separate cadre superior to the cadre of District Judges, no person posted as an Inspecting District Judge can claim seniority over a District Judge who is not holding such a post on that ground alone.
This is also manifest from the statement in paragraph 52 of the counter affidavit filed on behalf of the High Court (respondent No. 2) which reads thus: 713 "I say that it is false to say that the respondent No. 2 has created an erroneous impression in the cadres of the judiciary, public and litigants that District Judges appointed under the scheme of inspection of courts are superior to other District Judges and this has caused insecurity in the minds of District Judges.
" On the above question, the High Court has observed in its judgment under appeal thus: "Government of Maharashtra, in law and Judiciary Department Resolution dated 23rd September, 1969 and the earlier the Resolution dated 21st October, 1963 had sanctioned the posts of District Judges in the Selection Grade.
By the same Resolution additional posts of Joint Judges Were also sanctioned.
It appears from the affidavit filed by the respondents that scheme for conducting the surprise inspection of the courts in the State outside the Greater Bombay was introduced in the year 1969 with the following objects.
"1. Prevention, detection and rooting out the corruption from courts and their administrative offices 2.
Enforcement of discipline and punctuality among Judges and staff and generally ensuring that the allocated work both judicial and administrative is efficiently done and delay in disposal is eliminated.
Ensuring strict observance of civil and criminal manuals.
Checking of registers and accounts and ensuring that they are properly and punctually maintained, and 714 5.
Ensuring the welfare of Judges and the staff including the provision of suitable healthy and sanitary conditions in courts, adequate housing accommodation for the Judges and the staff, and generally towards providing conditions of service with in our limitations.
" As part of this scheme Judicial officers posted as District Judges at Pune, Thane Aurangabad, Akola and Nagpur are entrusted with the work of surprise inspection of courts.
Each of these District Judges is expected to carry out surprise inspection work in 5 districts.
He is expected to carry out the surprise inspection of at least 35 courts in a year and submit his inspection notes to the High Court.
These inspection notes are scrutinised by the High Court and decisions on these inspection notes are also taken by the High Court.
Regular inspection work is carried out by the District Judge concerned.
From the affidavit filed by the Additional Registrar (Inspection) of the High Court, it is further clear that no new cadre or posts of Inspecting District Judge are created.
Though in a common paralance they are called Inspecting District Judges they are merely District Judges doing the work of surprise Inspection.
" Having held thus, the High Court committed an error in virtually treating the Inspecting District Judges as equivalent to selection grades District Judges as the following observations made by it in paragraph 11 of its judgment: "As to how the District Judges are selected for doing this inspection work is also explained by the respondents in their affidavits.
From the submission made in the affidavits it is quite clear that guidelines have been laid down for selecting the District Judges working under the scheme of Inspection of the Courts.
While selecting a person guidelines kept in view are (i) that the District Judges should have put in at least 715 3 years as District Judge, and should have worked as such in any of the districts, (2) that his administrative capacity should be relatively high and (3) that he should have reasonably long service ahead as Judge till his retirement.
It is also clarified in the affidavit that these guidelines necessarily imply his competence in judicial work and also his general performance.
The assessment of relatively high administrative capacity in particular implies in the context his aptitude for inspection work, his attitudes towards the bar, litigants, judicial officers and staff working in the inspecting courts.
It is also submitted that while assessing the eligibility of a person with reference to these guidelines, the cases of judicial officers have been considered all along in the order of seniority of the person in the cadre of District Judges.
Since no separate cadre is created of judicial officers who are asked to do the work of inspection under the scheme, no separate rules are framed, but guidelines are laid down by the High Court.
Similarly guidelines are laid down for awarding the selection grade to the District Judges and, normally all the 5 Inspecting District Judges and the Registrar are placed in the cadre of Selection Grade District Judges unless there are compelling reasons to the contrary.
It is then stated in the affidavit of the respondents that the petitioner 's case was considered on four occasions between 1979 to 1981 for being assigned this inspection work and for being placed in the selection grade but he has not been found suitable.
" The infirmities noticeable in the above passage are these: The High Court has failed to notice that the creation of the posts of five Inspecting District Judges had nothing to do with the sanctioning of selection grade pay scale for District Judges.
While the selection grade pay scale was sanctioned for six posts of District Judges by the two Government Resolutions dated October 21, 1963 and July 20, 1974, the five posts of Inspecting District Judges were created by the Government resolution dated September 23.
the relevant part of which read thus: "Resolution: Government is pleased to direct that 716 five temporary posts of District Judges in the scale of Rs. 900 50 1000 60 1600 50 1800 should be created for a period of upto the 28th February, 1970 for inspection of subordinate courts and tackling the problem of corruption.
" These five posts were not posts with the selection grade pay scale which had already been brought into force by the Government Resolution of October 21, 1963.
It could not also have been the intention of the High Court as well as of the Government at the time of the creation or these posts of Inspecting District Judges that the five senior most District and Sessions Judges in the State in should instead of disposing of important judicial work be engaged in inspecting a minimum of 35 courts during a year, in writing reports and in carrying out other administrative work which would leave very little time to engage themselves in judicial work.
That is also clear from the guideline laid down for the posting of an officers as an Inspecting Judge which could be easily satisfied by younger and active members working in the cadre of District Judges.
The High Court also overlooked that the specific case of the High Court being that no separate cadre of Inspecting District Judges had been created, there could be no occasion to consider the case of the appellant or any other District Judge for such promotion.
The observations that since no separate cadre is created of judicial officers who are asked to do the work of inspection under the scheme, no separate rules are framed but guidelines, are laid down by the High Court.
Similarly guidelines are laid down by for awarding the selection grade to the District Judge and normally all the 5 Inspecting District Judges and the Registrar are placed in the cadre of selection grade District Judges unless there are compelling reasons to the contrary" in the above passage are again out of place.
The above conclusion would have been possible only on proof of the following facts viz. (1) that the selection grade District Judges and the Inspecting District Judges belong to the same cadre and (2) that they belonged to a cadre higher than the cadre of District Judges or that there was a need for going through the process of selection to sanction selection grade pay scale.
We have already shown that the selection grade District Judges are only those who draw pay in pay scale of Rs. 1800 100 2000 for which no promotion 717 is contemplated and that mere posting as an Inspecting District Judge by itself does not make an officer so posted superior to other District Judges.
The true legal position is that while the first six persons in the seniority list of District Judges based on the length of continuous officiation in the cadre of District Judges can be recipients of salary in the selection grade pay scale, the posts of Inspecting District Judges and of the Registrar need not necessarily be held by them.
When it is held that the selection grade District Judges do not constitute a separate cadre, the High Court cannot in exercise of its general powers of control under Article 235 of the Constitution without the increment beyond Rs. 1800 in the selection grade pay scale unless there is a rule or an executive instruction which authorises it to do so.
As mentioned earlier, the selection grade post is not a post to which promotion has to be made nor is there any efficiency bar rule attached to it.
Further it is not shown that the Governor had issued any executive instructions as it had been done in Sant Ram Sharma vs State of Rajasthan & Anr.
( ') and in Lalit Mohan Deb & Ors. vs Union of India & Ors.(2) enabling the High Court to withhold increments in the extended pay scale which is in this case called as selection grade pay scale.
The pay scale to which a judicial officer is entitled is a condition of service which can be regulated by a statute or rules made under the proviso to Article 309 or by executive instructions issued under Article 162 of the Constitution.
It cannot come within the range of the expression.
'control ' in Article 235 of the Constitution.
(See B.S. Yadav & Ors.
vs State of Haryana & Ors, etc,(3)) It is only where there is such a law, rule or executive instruction, the High Court may act under Article 235 of the Constitution to sanction it or to refuse to sanction it.
We are of the view that in the present case the mere nomenclature given to the extended pay scale as the selection grade pay scale does not lead to the inference that there is an element of selection involved in sanctioning it.
In the circumstances it should be treated as just an extended pay scale which forms part of the pay scale of Rs. 900 1800 as clarified in two Government orders sanctioning the selection grade posts.
In view of the foregoing while the question whether the appellant can be posted as an Inspecting District Judge is within the discretion of the High Court, the refusal on the 718 part of the High Court to sanction the selection grade pay scale to the appellant when it become due automatically on the ground that he was not found fit to be sanctioned that scale of pay is erroneous.
In view of what has been stated above, we need not go into the other points raised by the appellant regarding the above question.
In the result the judgment of the High Court is set.
aside in so far as the question of sanctioning of the selection grade pay scale to the appellant is concerned.
It is hereby declared that the appellant is entitled to the pay in the selection grade pay scale from the date on which his immediate junior (seniority being counted on the length of continuous officiation in the cadre of District Judges) commenced to draw salary in the selection grade pay scale.
He is also entitled to all other consequential reliefs flowing therefrom.
A writ shall issue in the above terms.
The appeal is accordingly allowed in part.
No costs.
S.R. Appeal partly allowed.

summary:
The judicial service of the State of Maharashtra consists of two branches namely, (i) the Junior Branch and (ii) the Senior Branch, The Junior Branch consists of the following Class I Officers (i) Judges of the Small Causes Courts at places other than Bombay, (ii) Civil Judges (Senior Division), (iii) Judges of the Small Causes Courts at Bombay and Metropolitan Magistrates and (iv) Civil Judges (Junior Division) and Judicial Magistrates of the First Class.
The Senior Branch consists of (i) District Judges, (ii) the Principal Judge and Judges of Bombay City Civil Court, (iii) the Chief Judge and the Addl.
Chief Judge of the Small Causes Court, Bombay (iv) the Chief Presidency Magistrate and the Additional Chief Presidency Magistrate, Bombay, and (v) the Assistant Judges.
There is no separate cadre of selection grade District Judges or of Inspecting District Judges referred to in the Rules which are framed under the proviso to Article 309 of the Constitution.
The scale of pay of District Judges prior to July 1, 1962 was Rs. 900 50 1000 60 1600 50 1800.
On the recommendation of the High Court, the State Government passed two resolutions one on 21 10 1963 and another on July 20, 1974 sanctioning one post under the former with effect from 1 7 62 and five posts under the latter with effect from 1st August 1974 of District Judges in the Selection Grade of Rs. 900 100 2000, which is specifically stated to be a part of the pay scale of Rs. 900 1800 applicable to the cadre of District Judges.
Consequent upon the revision of Pay scales 704 of officers of the cadre of the Indian Administrative Service the State Government modified the pay scale of the selection grade District Judges with effect from January, 1, 1973 by the resolution dated August 21, 1975 revising the Selection Grade Pay scale to one of 2000 125 2250.
By its earlier Resolution dated 23 9 1969, the Government also sanctioned five temporary posts of District Judges in the same scale of Rs. 900 1800 for inspection of subordinate Courts and tackling the problem of corruption.
The High Court had laid down certain guidelines for posting a District Judge as an Inspecting District Judge and they are (i) that the District Judge should have put in at least three years as District Judge and should have worked as such in any of the districts, (ii) that his administrative capacity should be relatively high and (iii) that he should have a reasonable length of service ahead of him as a District Judge till his retirement.
The appellant was enrolled as an Advocate on December 14, 1951.
In response to the Notification inviting applications for the purpose of recruiting member of the Bar directly as District Judges under Rule 5(2) (1) (b) of the Rules, the appellant applied for one of the posts and was also successful in getting selected and appointed as an Assistant Judge by notification issued on 2 1 1967.
On February 19, 1973, the appellant was appointed to officiate in the cadre of District Judges and later confirmed as a District Judge with effect from August, 1, 1975.
The seniority of the appellant was fixed on the basis of his actual appointment as District Judge in April 1973.
The appellant filed a writ petition under Article 226 of the constitution contending: (1) that he was entitled to reckon for purposes of his seniority in the cadre of District Judges the period during which he worked as an Assistant Judge in accordance with the proviso to sub clauses (b) of clause (i) of sub rule (2) of Rule 5 of the Bombay Judicial Recruitment Rules, 1956, and (ii) that he was entitled to get the salary and allowances in the Selection grade scale or to be posted as an Inspecting Judge.
Both the contentions were negatived by the High Court and hence the appeal by special leave of the Court.
Allowing the appeal in part, the Court, ^ HELD 1.
Due to laches and absence of satisfactory explanation for the delay of nearly nine years, the question of the correctness of the seniority assigned to the petitioner appellant in the year 1973 cannot be looked into.
The appellant is entitled to the pay in the selection grade pay scale from 'the date on which the immediate Junior (seniority being counted on the length of 705 continuous officiation in the cadre of District Judges) commenced to draw salary in the selection grade pay scale.
He is also entitled to all other consequential relief flowing therefrom.
[718 C D] 2.2.
The two Resolutions of the Government sanctioning six posts of selection grade District Judges did not indicate that there was any process of promotion by selection or otherwise from the cadre of District Judges to the cadre of selection grade District Judges involved while sanctioning the selection grade pay scale.
There was no question of even crossing the efficiency bar.
The said selection grade scale was sanctioned only to mitigate the hardship caused by stagnation at the highest level of the original pay scale i.e. Rs. 1800.
It was just a time scale and an extension or projection of the pay scale of Rs. 900 1800 applicable to the cadre of District Judges but confined to six persons in all.
The sanctioning of selection grade pay scale for District Judges has nothing to do with the creation of the posts of Inspecting District Judges either.
The true legal position is that the first six persons in the seniority list of judges based on the length of continuous officiation in the cadre of District Judges can only be recipients of salary in the selection grade pay scale, there being only six such selection grade sanctioned.
[710 G H, 711 A B] 2.3.
When it is held that the selection grade District Judges do not constitute a separate cadre, the High Court cannot in exercise of its general powers of control under Article 235 of the Constitution withhold the increment beyond Rs. 1800 in the selection grade pay scale unless there is a rule or an executive instruction which authorises it to do so.
The selection grade post is not a post to which promotion has to be made nor is there any efficiency bar rule attached to it.
Further it is not shown that the Governor had issued any executive instructions, enabling the High Court to withheld increments in the extended pay scale which is in this case called as election grade pay scale.
The pay scale to which a judicial officer is entitled is a condition of service which can be regulated by a statute or rules made under the proviso to Article 309 or by executive instructions issued under Article 162 of the Constitution.
It cannot come within the range of the expression 'control ' in Article 235 of the Constitution.
It is only where there is such a law, rule or executive instruction, the High Court may act under Article 235 of the Constitution to sanction it or to refuse to sanction it.
[717 C F] In the present case the mere nomenclature given to the extended pay scale as the selection grade pay scale does not lead to the inference that there is an element of selection involved in sanctioning it.
In the circumstances it should be treated as just an extended pay scale which forms part of the pay scale of Rs. 900 1800 as clarified in the two Government orders sanctioning the selection grade posts.
The refusal on the part of the High Court to Sanction the selection grade pay scale to the 706 appellant when it became due automatically on the ground that he was not found fit to be sanctioned that scale of pay is erroneous.
[717 G H 718 A] Sant Ram Sharma vs State of Rajasthan & Anr. ; ; Lalit Mohan Deb & others vs Union of India & Others AIR 1972 SC 951 B.S. Yadav & Others etc.
vs State of Haryana & others etc.
[1981] I S.C.R. 1024 referred to.
The High Court had not created any new cadre of Inspecting District Judges and that it was only for the purpose of facilitating a brief and easy reference to such officers as were doing inspection work under a scheme evolved by the High Court for maintaining the efficiency of the Judicial Service that they were being referred to in common parlance as Inspecting District Judges.
No rule was evolved by the High Court to the effect that either the senior most Judges or those promoted by selection to that cadre should be posted as Inspecting District Judges.
Taking the these guidelines together, it is possible to post any District Judge who satisfies the three conditions as an Inspecting District Judge even though there may be many District Judges who are senior to him and who also satisfy the above conditions.
Since admittedly the posts of Inspecting District Judges do not constitute a separate cadre superior to the cadre of District Judges, no person posted as an Inspecting District Judge can claim seniority over a District Judge who is not holding such a post on that ground alone.
[712 E H] 3.2.
The High Court in the Judgment under appeal has committed an error in virtually treating the Inspecting District Judge as equivalent to selection grade District Judges.
The creation of the posts of five Inspecting District Judges had nothing to do with the sanctioning of selection grade pay scale for District Judges.
While the selection grade pay scale was sanctioned for six posts of District Judges by the two Government Resolutions dated October 21, 1963 and July 20, 1974, the five posts of Inspecting District Judges were created by the Government Resolution dated September 23, 1969.
These five posts were not posts with the selection grade pay scale which had already been brought into force by the Government Resolution of October 21, 1963.
It could not also have been the intention of the High Court as well as of the Government at the time of the creation of these posts of Inspecting District Judges that the five senior most District and sessions Judges in the State should instead of disposing of important judicial work be engaged in inspecting a minimum of 35 courts during a year, in writing reports and in carrying out other administrative work which would leave very little time to engage themselves in judicial work.
That is also clear from the guidelines laid down for the posting of an officer as an Inspecting Judge which could be easily satisfied by younger and active members working in the cadre of District Judges.
H, 716 C D] 3.3.
The High Court also overlooked that the specific case of the High Court being that no separate cadre of Inspecting District Judges had been created, there 707 could be no occasion to consider the case of the appellant or any other District Judge for such promotion.
The selection grade District Judges are only those who draw pay in pay scale of Rs. 1800 100 2000 for which no promotion is contemplated and that mere posting as an Inspecting District Judge by itself does not make an officer so posed superior to other District Judges.
The true legal position is that while the first six persons in the seniority list of District Judges based on the length of continuous officiation in the cadre of District Judges can be recipients of salary in the selection grade pay scale, the posts of Inspecting District Judges and of the Registrar need not necessarily be held by them.
Therefore, the question whether the appellant can be posted as an Inspecting District Judge is within the discretion of the High Court only.
[716 F H, 717 A B, H]


judgement:
Civil Appeal No. 6009 of 1983.
Appeal by special leave from the Judgment and Order dated the 19th April, 1983 of the Punjab and Haryana High Court in C.W.P. No. 1484 of 1983.
WITH Civil Appeal Nos. 1207 and 1208 of 1980.
Appeals by special leave from the Judgment and Order dated the 30th May, 1980 of the Punjab and Haryana High Court in Civil Writ Petition Nos.
1759 and 1848 of 1980.
J.L. Gupta, D.N. Gupta and V.K. Verma for the Appellant in CA.
No. 6009 of 1983.
J.L. Gupta and C.M.Nayar for the Appellant in CA.
No. 1207 and 1208 and 1980.
Hardev Singh and R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA J.
Each of these appeals is by special leave and is directed against the decision of the High Court of Punjab and Haryana in separate writ petitions.
A common question is involved in all the three matters and that relates to a correct interpretation of Rule 27.1(a) in Chapter III of the Punjab University Regulations.
Respondents in each of these appeals was a student of the Punjab University for the Master Degree in Law (LL.M).
Rule 33 7 of the Punjab University Regulations provides: "7.
The minimum marks required to pass Part I/II examination, as the case may be, shall be: (i) 45 per cent in each paper; and (ii) 50 per cent in the aggregate.
" It may be stated that there are eight papers in all each carrying 100 marks and Part I covers four papers while Part II covers the remainder.
Rule 27 reads as follows: "27.1(a).
A candidate who appears in all subjects of an examination and who fails in one or more subject (written, practical, sessional or viva voce) and/or the aggregate (if there is a separate requirement of passing on the aggregate) shall be given grace marks up to maximum of 1 per cent of the total aggregate marks (excluding marks for internal assessment) to make up the deficiency if by such addition the candidate can pass the examination.
While awarding grace marks fraction working to 1/2 or more will be rounded to a whole; Provided that grace marks be also awarded to a candidate if by awarding such marks he can earn exemption or compartment in subject/s and part/s.
(b) A candidate who re appears to clear the compartment or subject/s and part/s in which he has been declared (eligible) to re appear shall be awarded grace marks up to 1% of the total marks of the subject/s and part/s in which he re appears if by such addition the candidate can pass in that subject/s or part/s.
" Each of the respondents failed to satisfy the requirements of Rule 7 and being eligible to clear the subject in which he failed on compartmental basis reappeared in such subject in the next examination.
As on the performance of the subsequent examination each of the respondents was not eligible to pass by complying with the requirements of Rule 7, the need for invoking Rule 27 arose.
The University authorities took the view that Rule 27.1(b) authorised addition of the grace marks of up to 1 per cent on the marks secured in the subject/s in which the candidate reappeared and as with that benefit given the candidates did not pass, they. were found not to have been successful.
That led to each of the 34 respondents filing a separate writ application before the High Court.
The High Court referred to the rule and observed: "The only question to be seen is whether Regulation 27.1(a) in Chapter III of the Punjab University Calendar, Volume II, 1976, relating to Moderation of Question Papers and results of examinations, is applicable or not.
We have gone through clauses (a) and (b) of this Regulation very carefully and we find that clause (b) is not applicable.
We are unable to agree with the contention of Shri Gupta, the learned counsel for the University that the case would fall under clause (b).
This contention is without any merit as it is clear that this clause will only come into play if the candidate is failing in the subject in which he or she reappears.
It is quite clear from the facts that the petitioner has not so far availed advantage as given in clause (b) so that she could get one per cent mark of the total marks in all the subjects The contention of the learned counsel for the University, that clause (a) will only apply if a candidate appears in all the subjects in the examination, is without any merit.
The language of this provision does not show what has been contended before us.
For the reasons recorded above, we allow this writ application and direct the University to make available the benefit of clause (a) of the said Regulation to the petitioner and declare the result of the petitioner accordingly.
" A bare reading of the Rule 27 (referred to as the Regulations by the High Court) makes it clear that clause (a) is applicable where the full examination is taken and clause (b) is attracted where the candidate reappears to clear the compartment or subject and part in which he has been declared eligible to reappear.
In each of these cases the candidate was reappearing to clear the paper in which he or she had failed; clause (b) was clearly attracted and the benefit under clause (a) was not available.
The University had taken that decision and took the same stand before the High Court in answer to the rule nisi.
We are clearly of the opinion that the 35 High Court went wrong in taking the view that when a candidate reappeared to clear a paper or a subject on being found eligible to do so, clause (a) was attracted.
The language of clause (b) is such as would squarely apply to such a situation.
Having taken the view that clause (a) governed the matter, the High Court had no occasion to express any opinion as to if clause (b) applied what benefit the candidate would have got.
The provision in clause (b) is clear and on reappearing the candidate becomes entitled to grace marks of up to one per cent of the total marks of the subject/subjects in which he reappears.
Once clause (b) applies no reference is available to the performance in the regular examination taken earlier and the benefit of grace marks to the extent indicated has to be confined to the performance at the reappearance.
Once this is the position each of the candidates was not eligible to pass.
We, however, find that a direction was given in this Court on 19.6.80 on the concession of the University that the respondents in the two appeals of 1980 would be declared to have passed irrespective of the result of the appeals.
Learned counsel appearing for the University before us reiterated his consent and even agreed that the respondent in the remaining appeal may be given the same advantage as the University did not intend to make any discrimination.
In view of this special feature we do not disturb the declaration of the University that each of the respondents has passed the examination taken by him or her.
We must indicate our disapproval of the position obtaining in the Punjab University that in respect of post graduate degrees grace marks are being awarded.
A master 's degree in any speciality is considered to be the highest qualification in the normal run.
It is very much necessary that such a degree should be conferred only on the deserving students who having studied the subject and taken the appropriate examination conducted by the University at the end of such studies have deserved the degree on the basis of their performance.
There should be no scope for looking for grace marks at such level and the sooner the Punjab University abandons the practice of awarding grace marks in respect of post graduate examinations the better it would be in the interest of higher education in this country.
36 We allow each of these appeals and set aside the judgments of the High Court in each of the writ petitions without any order for costs.
To avoid confusion we reiterate that our vacating the judgments of the High Court do not in any manner affect the declarations made in favour of the respondents by the appellant University in regard to passing of the Master Degree Examinations in law.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
Respondents in each of these appeals could not clear the LLM examination in accordance with Regulation 7 of the Punjab University Regulations either in the first attempt or later while taking on compartmental basis even after addition of grace marks as laid down in Rule 27(1)(b) of the University Regulations.
The respondents filed separate writ petitions praying for a direction to give the benefit of moderation grace mark as calculated under Rule 27(1)(a).
The High Court rejected the plea of the Appellant University holding that it was Rule 27(1)(b) that applied and not Rule 27 1(a).
Hence the appeal by Special Leave.
Allowing the appeal, the Court ^ HELD : A bare reading of the Rule 27 (referred to as the Regulations by the High Court) makes it clear that clause (a) is applicable where the full examination is taken and clause (b) is attracted where the candidate reappears to clear the compartment or subject and part in which he has been declared eligible to reappear.
In each of these cases the candidate was reappearing to clear the paper in which he or she had failed; clause (b) was clearly attracted and the benefit under clause (a) was not available.
The language of clause (b) is such as would squarely apply to such a situation.
The provision in clause (b) is clear and on reappearing the candidate becomes entitled to grace marks of up to one per cent of the total marks of the subject/subjects in which he reappears.
Once clause (b) applies no reference is available to the performance in the regular examination taken earlier and the benefit of grace marks to the extent indicated has to be confined to the performance at the reappearance.
Once this is the position each of the candidates was not eligible to pass.
[34GH, 35B C] [In view of the declaration dated 19.6.1980 made before the court, that irrespective of the result of the appeals, the candidates will be declared to have passed, the Court as a special case did not want to disturb the result.] [35D] 32 Observation: The position obtaining in the Punjab University in respect of Post Graduate degrees namely grace marks being awarded is disapproved.
A Master 's degree in any speciality is considered to be the highest qualification in the normal run.
It is very much necessary that such a degree should be conferred only on the deserving students who having studied the subject and taken the appropriate examination conducted by the University at the end of such studies have deserved the degree on the basis of their performance.
There should be no scope for looking for grace marks at such level and the sooner the Punjab University abandons the practice of awarding grace marks in respect of post graduate examinations the better it would be in the interest of higher education in this country.
[35F H]


judgement:
Civil Appeal No. 3702 (NCE) of 1982.
Appeal by Special leave from the judgment and order dated the 2nd August, 1983 of the Allahabad High Court in Election Petition No. 28 of 1980.
24 With Civil Appeal No. 9 of 1983 Appeal by Special leave from the Judgment and Order dated the 15th October/Ist December, 1982 of the Allahabad High Court in Election Petition No. 1 of 1982.
And Civil Appeal No. 10 of 1983 Appeal by Special leave from the Judgment and Order dated the 15th October, 1982 and 1st December, 1982 of the Allahabad High Court in Election Petition No. 1 of 1982.
S.N. Kacker, R.L. Srivastava, Rajesh and V.K. Verma for the Appellants in CA.
No. 3702 of 1982.
Appellant in person in CA.
No. 10 of 1983.
M.C. Bhandare and V.K. Verma for the Appellant in CA.
Yogeshwar Prasad, Ms. R. Chhabra, Sujat Ullah and K.K. Gupta for the Respondents.
The Judgment of the Court was delivered by FAZAL ALI J.
As these appeals involve common points of law, we propose to decide them by one judgment.
Civil Appeal No. 3702 of 1982 This appeal arises out of election to '375 Iglas Assembly Constituency, Aligarh to the Uttar Pradesh Legislative Assembly ' which was held on May 28, 1980 and the result of which was declared on June 1, 1980, in which the appellant was declared elected.
Respondent No. 1, Smt.
Usha Rani had also contested the above mentioned election but was defeated.
Aggrieved by the result of the aforesaid election, Smt.
Usha Rani filed an election petition on 25 July 15, 1980, at the residence of the Registrar of the Allahabad High Court.
Thereafter, on September 24, 1981, the appellant filed a petition before the High Court for rejection of the election petition filed by the respondent, on the ground that the copy of the petition served on him was neither attested to be a true copy nor a correct copy of the original petition, as contemplated by the provisions contained in section 81 (3) of the Representation of the People Act (hereinafter referred to as the 'Act ') and hence the election petition should be rejected in limine under section 86 of the Act.
Sub section
(3) of section 81 may be extracted thus; "81.
Presentation of petitions XX XX XX (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
" An analysis of this sub section would reveal that every election petition should be accompanied by as many copies as there are respondents and that every copy should be attested by the petitioner under his own signature.
If these requirements are not followed strictly and literally, it would result in dismissal of the election petition without any trial as provided by section 86 of the Act.
In the instant case, the main point raised by the appellant was that two sets of copies were filed by the election petitioner in the High Court, one set being a correct and exact one and the other containing vital omissions and mistakes.
This position is not disputed by the respondent (election petitioner).
In reply to the preliminary objection raised by the appellant, the respondent rebutted the charge on the ground that the appellant had got a correct copy as required by section 81 (3) of the Act and, therefore, he could not be heard to complain of any non compliance with the provisions of the aforesaid sub section.
After going through the judgment of the High Court it is not clear whether the appellant received the correct copy of the petition or an incorrect one.
On the other hand, on the evidence and admitted facts the following circumstances appear to be undisputed; 26 (a) that two sets of copies were filed by the election petitioner in the High Court, (b) that one set was correct as required by the Act, and (c) the other set was incorrect as it contained vital omissions and mistakes regarding the details of corrupt practices alleged against the appellant.
There is, however, no clear evidence or finding to show that the copies which were received by the appellant were correct or incorrect and there is some divergence on this point.
The High Court seems to have come to the conclusion that as the respondent had filed correct copies also, she did not violate the provisions of section 81 (3) and it was for the appellant to have chosen the correct copy from the two sets.
The learned Judge of the High Court has also invoked the doctrine of benefit of doubt in order to cure the non compliance of the mandatory provisions of section 81 (3).
On going through the relevant evidence we find that there is overwhelming material to show that the appellant did not receive the correct copy and even the respondent in her evidence did not categorically deny this fact.
The respondent in her evidence before the Court admitted that out of the 22 23 copies filed by her, 10 copies were correct and were duly signed by her and the rest were left with the counsel with instructions to get them corrected.
Therefore, she was not at all sure whether all the copies were corrected or not.
She further admitted that in some of the copies she did not initial the various corrections and that Exts.
R 1, R 2, R 3 and R 4 were not out of those 10 copies which had been filed by her along with the election petition at the residence of the Registrar.
There is, however, clear evidence to show that the copies which were received by the appellant were Exts.
R 1 to R 4, which admittedly were not correct copies of the election petition.
This being the position, it is manifest that the appellant did not receive the correct copies as contemplated by section 81 (3) of the Act.
The respondent has also not been able to prove that the copies served on the appellant were out of the 10 corrected copies which she had signed and filed.
It appears that in view of a large number of copies of the petition having been filed, there was an utter confusion as to which one was correct and which was not.
It is obvious that if an 27 election petitioner files a number of copies, some of which may be correct and some may be incorrect, it is his duty to see that the copy served on the respondent is a correct one.
A perusal of sections 81 (3) and 86 of the Act gives the impression that they do not contemplate filing of incorrect copies at all and if an election petitioner disregards the mandate contained in section 81 (3) by filing incorrect copies, he takes the risk of the petition being dismissed in limine under section 86.
It is no part of the duty of the respondent to wade through the entire record in order to find out which is the correct copy.
If out of the copies filed, the respondent 's copy is found to be an incorrect one, it amounts to non compliance of the provisions of section 81 (3) which is sufficient to entail a dismissal of the election petition at the behest.
Hence, the mandate contained in section 81 (3) cannot be equated with section 537 of the Code of Criminal Procedure which makes certain omissions as a curable irregularity.
No such concept can be imported into the election law because the object of the law is that the electoral process should not be set at naught and an elected candidate should not be thrown out unless the grounds mentioned in the Act are clearly and fully proved.
An election dispute concerns the entire constituency and in a parliamentary democracy it is of paramount importance that duly elected representatives should be available to share the responsibility in the due discharge of their duties.
That is why the law provides time bound disposal of election disputes and holds out a mandate for procedural compliance.
In these circumstances, therefore, in the instant case there was absolutely no justification for the learned Judge to have invoked the doctrine of benefit of doubt.
We are satisfied that it has not been proved by the respondent that she filed correct copies of the election petition or, for that matter the appellant got the correct copy and not the incorrect one, in the face of the clear and categorical assertion by him that he did not receive the correct copy.
For these reasons, therefore, the appeal is allowed and the election petition filed by the respondent is dismissed under section 86 of the Act.
There will be no order as to costs.
Civil Appeal Nos. 9 & 10 of 1983 There two connected appeals also involve more or less the same point of law as was involved in Civil Appeal No. 3702 of 1982, with the difference that in Civil Appeal No. 9 of 1983, J.P. Goyal, 28 and in Civil Appeal No. 10 of 1983, Bishamber Nath Pandey, (appellants) were declared elected to the Rajya Sabha on March 29, 1982.
An election petition to set aside their election was filed on May 10, 1982 by the Respondent (Raj Narain) making a number of allegations.
When the case came up before the Court on 5.7.82, an application was made by the respondents for amendment of the original petition by insertion of page 17, which was allowed.
The appellants filed a petition before the Election Judge for rejecting the election petition of the respondents because no amendment could be allowed which would have the effect of defeating or bypassing the provisions of s.81 (3) of the Representation of the People Act (for short, referred to as the 'Act ').
It may be stated here that Shri Bishamber Nath Pandey has in the meantime been appointed as Governor of Orissa and has resigned his membership of the Rajya Sabha, Therefore, as requested at the Bar, his name is deleted from the category of appellants.
The main argument on behalf of the remaining appellants was that 11 copies of the election petition were filed on 10.5.1982 and although the copies which were served on them did contain page 17 yet the original petition did not contain page 17 and was sought to be added only by way of approaching the Court for amendment of the petition.
It was further contended that the Court had no jurisdiction to accede to the prayer for amendment of the petition when at the time of filing the petition, the mandate contained in section 81 (3) was not complied with.
In other words, the position seems to be that while the copies which were served on the appellants did contain page 17 yet the original election petition did not contain page 17.
This being the admitted position, it could not be said that the copies served on the appellants were the correct and exact copies of the election petition.
The provision of section 81 (3) is clear and specific and requires that every copy of the election Petition must be a true and exact copy of the petition.
The learned counsel for the respondent submitted that this is a highly technical objection and did not cause any prejudice to the appellants because so far as their copies were concerned they already contained page 17.
Mr. Bhandare, counsel for the appellants, however, submitted that this is beside the point and does not cure the invalidity of the election petition filed on 10.5.82.
The mandate contained in section 81 (3) enjoins that there should be no difference of 29 any kind whatsoever barring some typographical or insignificant omissions between the petition filed and the copy served on the respondent.
If an entire page is missing in the petition but it is there in the copy served on the respondent, then it is manifest that the copy served was not an exact and true copy of the petition.
The consequences of the mandatory provisions of s.81 (3) could not be got over by praying for an amendment of the election petition because that would defeat the very object and purpose of section 81 (3).
It is not disputed that this discrepancy between the election petition and the copies served on the appellants was undoubtedly there.
In these circumstances, the High Court was wrong and committed a serious error of law in allowing the amendment of the petition.
The High Court should have tried to appreciate the tenor and spirit of the mandate contained in s.81 (3) of the Act.
In the case of Sharif ud Din vs Abdul Gani Lone(1) this Court dismissed the election petition only on the ground that the words "attested to be a true copy" were not signed by the election petitioner and held that this was not a sufficient compliance with the provisions of s.89 (3) of the Jammu & Kashmir Representation of the People Act, which is the same as s.81 (3) of the Act.
In the instant case, the inconsistency is much greater than in Sharif ud Din 's case.
Similarly, in an earlier case of Satya Narain vs Dhuja Ram & Ors(2)., this Court held as follows: "If there is any halt or arrest in progress of the case, the object of the Act will be completely frustrated.
We are, therefore, clearly of opinion that the 1st part of section 81 (3) with which we are mainly concerned in this appeal is a peremptory provision and total non compliance with the same will entail dismissal of the election petition under section 86 of the Act".
This view has been consistently taken all through in all the decided cases of this Court so far.
Reliance was, however, placed by the counsel for the respondents on the following observations of Dwivedi, J., in Satya Narain 's case: 30 "Our decision restores that primacy of procedure over justice.
It make s.86 (1) a tyrannical master.
The rigidity of the rule of precedent ties me to its chains.
My only hope now is that Parliament would make a just choice between the social interest in the supply of copies by the election petitioner alongwith his election petition and the social interest in the purity of election by excluding s.81 (3) from the purview of s.86 (1) of the Act.
The aforesaid observations express a pious wish but do not at all detract from what has been decided in this case and with which the learned Judge also agreed.
Despite these observations, the Parliament in its wisdom has not made any attempt to interfere with the peremptive and mandatory provisions of section 81 (3) resulting in the consequence of dismissal of the petition under s.86 of the Act.
For the reasons given above, we allow the appeals, set aside the judgment of the High Court and dismiss the election petitions in limine under s.86 of the Act.
In the circumstances, there will be no order as to costs.
N.V.K. Appeals allowed.

summary:
The respondent filed an Election Petition for setting aside the election of the appellant to the State Legislative Assembly.
The appellant filed a petition for rejection of the said Election Petition in limine under Section 86 of the Representation of the People Act, 1951 on the ground that the copy of the petition served on him was neither attested to be a true copy nor a correct copy of the original petition, as contemplated by the provisions contained in section 81(3).
The case of the respondent election petitioner was that two sets of copies were filed, one set being correct as required by the Act and the other set incorrect containing vital omissions and mistakes, the appellant having got a correct copy as required by section 81(3) there was compliance with the requirement of the section.
The High Court held that as the respondent had filed correct copies, the provisions of section 81(3) were not violated and it was for the appellant to have chosen the correct copy from the two sets and invoked the doctrine of benefit of doubt in order to cure the non compliance of the mandatory provisions of section 81(3), and rejected the application to dismiss the Election Petition.
In the connected appeals, the 1st Respondent had filed separate Election Petitions for setting aside the election of the appellants to the Rajya Sabha.
When the said petitions came up before the High Court for hearing an application was made by the respondent for amendment of the original petition by insertion of page 17 which was allowed.
The appellants filed petitions before the Election judge for rejecting the Election Petition on the ground that no amendment could be allowed which would have the effect of defeating or bypassing the provisions of section 81(3) of the Act, and that the original petition served on the appellants did not contain page 17 and hence was not the correct and exact copy of the election petition.
The High Court rejected the application to dismiss the Election Petition.
Allowing the Appeals.
23 ^ HELD: 1.
The mandate contained in section 81(3) is clear and specific and requires that every copy of the election petition must be a true and exact copy of the petition.
The consequences of this mandatory provision cannot be got over by praying for an amendment of the election petition because that would defeat the very object and purpose of section 81(3).
B] In the instant cases, the judgment of the High Court are set aside, and the election petitions dismissed in limine under section 86 of the Act.
[30 D] Sharif ud Din vs Abdul Gani Lone, ; ; referred to.
Section 81(3) and 86 of the Act do not contemplate the filing of incorrect copies and if an election petitioner disregards the mandate contained in section 81(3) by filing incorrect copies, he takes the risk of the petition being dismissed in limine under section 86.
It is no part of the duty of the respondent to wade through the entire record in order to find out which is the correct copy.
If out of the copies filed, the respondent 's copy is found to be an incorrect one, it amounts to non compliance of the provisions of section 81(3) which is sufficient to entail a dismissal of the election petition at the behest of the respondent.
[27 B; C] 3.
If an election petitioner files a number of copies, some of which may be correct and some may be incorrect, it is his duty to see that the copy served on the respondent is a correct one.
[27 A] In the instant case, it has not been proved by the respondent that correct copies of the election petition had been filed or, that the appellant got the correct copy and not the incorrect one, in the face of the clear and categorical assertion by him that he did not receive the correct copy.
[27 F] 4.
The mandate contained in Section 81(3) cannot be equated with section 537 of the Code of Criminal Procedure which makes certain omissions as a curable irregularity.
No. such concept can be imported into the election law because the object of the law is that the electoral process should not be set at naught and an elected candidate should not be thrown out unless the grounds mentioned in the Act are clearly and fully proved.
[27 D] 5.
Parliament in its wisdom has not made any attempt to interfere with the preemptive and mandatory provisions of section 81 (3) resulting in the consequence of dismissal of the petition under section 86 despite the observations in Satya Narain.
vs Dhija Ram & Ors. ; [30 C]


judgement:
Civil Appeal No. 2999 of 1980.
From the judgment and order dated the 22nd April, 1980 of the High Court of Delhi at New Delhi in C.R. Petition No. 336 of 1979.
G.L. Sanghi, Mr. A.K. Verma and section Kashwa for the appellant.
D.D. Thakur, P.H. Parekh, P.K. Menon and R.K. Sharma for the respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The landlord whose application for eviction of the tenant, respondent before us, was rejected by the High Court by reversing the order of the eviction passed by the Additional Rent Controller has come before this Court on obtaining special leave and the short point arising for consideration is as to the true meaning of a clause in the rent deed.
The respondent was admitted into tenancy of the premises in question under a lease deed dated 5th January, 1968.
Clause 12 thereof provided: "That the lessee shall use the premises for the purpose of Residential/Personal office only and Not for commercial purposes".
(underlinings are our own) The landlord, appellant before us, applied to the Controller on March 14, 1972, for eviction of the respondent under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 ( 'the Act ' for short).
The tenant obtained leave to contest and pleaded, inter alia, that the premises were let out both for residential as also office and the composite purpose of the tenancy took the premises out of the purview of residential accommodation.
The Controller did not accept the defence and passed an order for eviction.
Thereupon, the tenant carried a revision to the Delhi High Court and reiterated his defence that the tenancy was not for residential purpose.
The High Court found that there was no infirmity in the finding about the bona fide requirement but adverting to the conclusion on the letting purpose held: "It is well known that premises may be let out for residence only, for use as an office, for use as a shop and for other com 54 mercial purpose.
Once any of the latter purposes is combined with the purpose of use as residence, the premises let out for a composite purpose and for residence only.
The meaning of the word 'office ', not defined in the Act, in the Chamber 's dictionary is a place where business is carried oh.
Office is certainly not residence and a letting purpose which includes office must be understood to include a purpose other than residence only".
And ultimately concluded by saying: "Clause (e) of Section 14(1) is available as a ground to seek eviction of tenants only, among other requirements, if the premises were let out for residence only and once the letting purpose is shown to be composite, an eviction petition under Section 14(1) (e), without more, must fail.
" The High Court rejected the landlord 's submission that the use of the word 'personal ' before 'office ' was intended to convey the idea that the tenancy was not for the purpose of accommodating a place of business.
Counsel for the appellant took us to the terms of clause 12 of the lease agreement and emphasised on the feature that commercial purposes were clearly kept out and the lease was for residence and authorised the location of a personal office.
He also relied upon the description of the premises as residential in the application made by the tenant to the controller for fixation of fair rent in respect of the very premises.
The word 'office ' is used in different senses and in each case that meaning must be assigned to it which conforms with the language used.
In Volume 67, Corpus Juris Secundum at page 96, the following statement appears: "The term 'office ' is one which is employed to convey various meanings, and no one definition thereof can be relied on for all purposes and occasions".
This Court has approved the observation of Lord Wright in Macmillan vs Guest, 1 where it was stated: "The word 'office ' is of indefinite content.
Its various meanings 55 cover four columns of the New English Dictionary. " See Smt.
Kanta Kathuria vs Manak Chand Surana(1).
In this view of the position the High Court was not right in picking one of the meanings given to the word in the Chamber 's dictionary and proceeding to the conclusion that 'office ' is certainly not residence and a letting purpose which includes office must be understood to include a purpose other than residence only.
Section 2(i) of the Act defines 'premises ' to mean "any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose . ." Respondent 's counsel has argued that tenancy under the Act can be for three purpose; (1) residential, (2) commercial and (3) for any other purposes depending upon the use for which the premises are let out.
Conceding that the definition is capable of such an argument being built up, a reference to the pleadings in this case shows that the permission in the rent deed of locating a personal office had been stated to be a commercial purpose.
Great care seems to have been taken by the landlord while inducting the tenant under the rent deed to put a total prohibition to commercial user of the premises.
That is why in clause 12 it has been specifically stated that it is "not for commercial purposes".
In the back drop of such a provision in the lease agreement, the true meaning of the words 'personal office ' has to be found out.
Law is fairly settled that in construing a document the ordinary rule is to give effect to the normal and natural meaning of the words employed in the document itself.
See Krishna Biharilal vs Gulabchand and Ors.
(2) This Court in D.D.A. vs D.C. Kaushish(3) observed: "There (at pages 28 29) 'Construction of Deeds and Statutes ' by Odger 's (5th ed.
1967) the First General Rule of Interpretation formulated is: 'the meaning of the document or of a particular part of it is therefore to be sought for in the document itself '.
That is, undoubtedly, the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect.
Of course, 'the document ' means 'the document ' read as a whole and not piecemeal.
56 The rule stated above follows logically from the Literal Rule of Construction which, unless its application produces absurd results must be resorted to first.
This is clear from the following passages cited in Odgers ' short book under the First Rule of Interpretation set out above : Lord Wensleydale in Monypenny vs Monypenny 1 said: "the question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed; a most important distinction in all cases of construction and the disregards of which often leads to erroneous conclusions".
Brett, L.J. in Re Meredith, ex parte Chick 2 observed : "I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke.
They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.
" Since we agree with this exposition of the law reference to the oral evidence or even to the tenant 's documents would be wholly out of place.
The terms of the document if they make any good meaning must be given effect to.
All the provisions of the lease deed have to be read and in fact with the assistance of counsel we have read the same more than once during the hearing.
The parties to the document were anxious enough and took proper care in order to keep the user of the premises confined to residential purpose; that is why it was expressly stipulated in the lease to prohibit commercial user.
Even while permitting an office to be located, equal care was taken to put the word 'personal ' before 'office ' to convey the idea that the tenant would not be entitled to transact official business connected with his avocation.
Although ordinarily an office would mean the place where official business is transacted a personal office in contradistinction to an office simpliciter or a commercial office would be a place where an outsider would not normally 57 be admitted; commercial transactions would not take place; there would be no fixity of the location and the tenant would be entitled to use any portion of the premises as his personal office and the like.
Such a place if referred to as personal office would essentially be residential and obviously while entering into the present lease deed, the parties were not trying to create a lease of premises for any other purposes as now contended by Mr. Thakur for the respondent.
The High Court, therefore, went wrong in reversing the decision of the Rent Controller by merely relying upon clause 12 of the lease deed.
It is relevant to note the description of the premises as given in the lease deed itself.
Paragraph 2 of the document described the premises thus : "The lessor hereby leases to the lessee the following described premises of the entire house built on plot No. 125.
Greater Kailash I, New Delhi comprising of three bed rooms with two bath rooms, drawing cum dining room, one kitchen one front and central veranda, front and back lawn, garage, servant quarter, above garage, a servant W.C. and terrace.
" There was no description of any existing office room and available for such use to the tenant.
nor was space earmarked for any personal office out of this accommodation.
As indicated above it was in the discretion of the lessee to use any part as a personal office.
Every lessee, or for the matter of that every person maintaining an acceptable standard of living does set apart a portion of the accommodation available to him which can answer the description of a personal office.
Mr. Thakur placed reliance on another clause of the lease deed which reads as follows: "That the lessor shall pay all the taxes of any kind whatsoever including house tax, ground rent as are of may hereinafter be assessed on the demised premises by the municipality or any other authority whatsoever provided the premises are used for residence only.
" We do not think the terms of this clause support the stand of the lessee.
As contemplated under the Transfer or Property Act a document of lease normally provides the rights and obligations of both the 58 lessor and the lesses.
In stipulating the rent payable for the use and occupation of the premises the lessor had undertaken the liability of payment of taxes as described therein as long as the premises were used for residence only.
This clause necessarily means that what had been stipulated was only residential user.
It is appropriate to take note of the admission of Mr. Thakur that the lessor had been paying the taxes and the lessee has not been called upon to share the burden.
This clause is an added provision to clinch the point in dispute against the tenant.
We are, therefore, of the view that the High Court clearly erred in law in reversing the decision of the Controller allowing the eviction.
The appeal is allowed and the order of the High Court is set aside and the order of the Additional Rent Controller is restored.
Parties are directed to bear their respective cost throughout.
This is a litigation which began in 1970.
The tenant has been in occupation and continuing for about 14 years now after the application for eviction had been filed.
Ordinarily we would not have allowed any time to the tenant keeping this aspect in view.
But Mr. Thakur has urged upon us to take judicial notice of the fact that these days an alternative premises would be very difficult to find.
We allow time to the tenant until 30th December, 1984 to vacate the premises subject to furnishing usual undertaking within four weeks from today.
In the absence of the undertaking the tenant becomes liable to eviction after four weeks.
S.R. Appeal allowed.

summary:
Prem Chand Sharma was admitted into tenancy of the suit premises under a lease deed dated 5th January, 1968, clause 12, thereof provided.
"That the lessee shall use the premises for the purpose of Residential Personal office only and not for commercial purposes.
" The landlord, appellant, applied to the Rent Controller on March 4, 1972, for eviction of the Respondent under section 14(1) (e) of the Delhi Rent Control Act, 1958.
The respondent tenant obtained leave to contest and pleaded inter alia that the premises were let out both for residential as also for office and the composite purpose of the tenancy took the premises out of the purview of residential accommodation.
The Controller did not accept the defence and passed an order for eviction.
In revision, however, the High Court rejected the land lord 's submission holding that the use of the word "personal" before "office" was intended to convey the idea that the tenancy was not for the purpose of accommodating a place of business and reversed the decision of eviction.
Hence the appeal by the landlord, after obtaining special leave of the Court.
Allowing the appeal, the Court ^ HELD: (1) The word "office" is used in different senses and in each case that meaning must be assigned to it which conforms with the language used.
Therefore, in the instant case, the High Court was not right in picking one of the meanings given in the chamber 's dictionary and proceeding to the conclusion that "office" is certainly "not residence" and a letting purpose which includes office must be understood to include a purpose other than residence only.
[54 A, 55A B] Macmillan vs Guest ; Smt.
Kanta Kathuria vs Manak Chand Surana, , referred to.
52 2:1.
Law is fairly settled that in construing a document the ordinary rule is to give effect to the normal and natural meaning of the words employed in the document itself.
[55 D E] Krishna Biharilal vs Gulab Chand and Others, [1971] Supp.
S.C.R. 27; D.D.A. vs D.C. Kaushish, (1974) 1 S.C.R. 535; Monypenny vs Monypenny, ; ; In re: Meredith, ex parte Chick, , referred to.
In the instant case it is clear that the parties to the document were anxious enough and took proper care in order to keep the user of the premises confined to residential purpose; that is why it was expressly stipulated in the lease to prohibit commercial user.
Even while permitting an office to be located, equal care was taken to put the word 'personal ' before 'Office ' to convey the idea that the tenant would not be entitled to transact official business connected with his avocation.
Although ordinarily an office would mean the place where official business is transacted, a personal office in contradistinction to an office simpliciter or a commercial office would be a place where an outsider would not normally be admitted; commercial transactions would not take place; there would be no fixity of the location and the tenant would be entitled to use any portion of the premises as his personal office and the like.
Such a place is referred to as personal office would essentially be residential and obviously while entering into the present lease deed, the parties were not trying to create a lease of premises for any other purposes.
In para 2 of the document, there was no description of any existing office room and available for such use to the tenant, nor was space earmarked for any personal office out of this accommodation.
It was in the discretion of the lessee to use any part as a personal office.
Every lessee, or for the matter of that every person maintaining an acceptable standard of living does set apart a portion of the accommodation available to him which can answer the description of a personal office.
Even the clause relating to payment of tax by the lessor do not support the stand of the lessee.
As contemplated under the Transfer of Property Act a document of lease normally provides the rights and obligations of both the lessor and the lessee.
In stipulating the rent payable for the use and occupation of the premises the lessor had undertaken the liability of payment of taxes as described therein as long as the premises were used for residence only.
This clause necessarily means that what had been stipulated was only residential user.
In fact, the lessor had been paying the taxes and the lessee had not been called upon to share the burden.
This clause is an added provision to clinch the point in dispute against the tenant.
Therefore the High Court, went wrong in reversing the decision of the Rent Controller by merely relying upon clause 12 of the lease deed.
[55C, 56F G, 57A B, D E, GH, 58 A B] 3.
Though the fact that the tenant has been in occupation for more than 14 years after the litigation began will disentitle him to any further time to vacate, taking judicial notice of the fact that these days an alternative premises would be very difficult to find, the Court considered it appropriate to grant time to the Respondent to vacate the premises upto 31st December, 1984 subject to furnishing usual undertaking within four weeks or to face eviction after four weeks.