judgement:
ivil Appeal No. 2041 of 1972.
From the Judgment and Decree dated 5.11.1971 of the Gujarat High Court in First Appeal No. 693 of 1964.
Harish N. Salve, S.A. Shroff, S.S. Shardul and R. Sasi prabhu for the Appellant.
S.T. Desai and M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by SEN, J.
This appeal on certificate brought from the judgment and order of the High Court of Gujarat dated July 3, 1972 raises a question whether the High Court was justi fied in reversing the decision of the District Judge, Suren dranagar dated March 19, 1964 and restoring the order of the Charity Commissioner, Ahmedabad, State of Gujarat dated February 1, 1962 upholding that of the Deputy Charity Com missioner, Ahmedabad holding that the two temples of Sri Dwarkadhishji and Sri Trikamrayji at Patadi were temples as defined in section 2(17) of the Bombay Public Trusts Act, 1950 and therefore they fell within the purview of the expression 'public trust ' within the meaning of section 2(13) of the Act.
The facts giving rise to the appeal may be shortly stated.
The appellant is a former ruler of the semi juris dictional State of Patadi, one of the 17 States which en tered into a covenant for the formation of the United State of Kathiawad which on the reorganisation of the States became part of the former State of Bombay and now forms part of the State of Gujarat.
The Bombay Public Trusts Act, 1950 was extended to the Saurashtra region including the area that formed part of the erstwhile State of Patadi in the year 1952.
In Patadi, which was the seat of the former Ruler, there exist two temples known as Sri Dwarkadhishji Mandir or Haveli which is the main temple and adjacent to it there is the smaller temple known as Sri Trikamrayji Mandir.
Both these temples were constructed in the years 1872 and 1875 respectively by the then ruler of Patadi and the cost of construction was met from the Patadi State Treasury.
The temples are situated on the main road in Patadi and do not form part of the Darbargadh or the palace wherein the ruler and the members of the royal family used to reside, although there exists a passage leading to the public road presumably meant for the use of the ladies of the royal family.
In the Gram Panchayat records Sri Dwarkadhishji Mandir or Haveli stands in the name of the deities and the appellant is merely shown as a Vahivatdar.
Similarly, Sri Trikamrayji Mandir is shown as the property of the deities and the appellant as a Vahivatdar.
The two temples were exempted from payment of municipal as well as other taxes including the land revenue presumably because they were public tem ples.
This is one of the decisive factors in determining whether a temple is a private or a public one.
It appears that the management of the temples remained throughout with the successive ruler of Patadi but that circumstance would not afford an indicia of ownership of the temples being vested in the rulers.
On the contrary, the evidence shows that the temples were throughout treated as places of public religious worship and the public in general and members of the Vaishnava sect in particular were regu larly worshipping in the temples as a matter of right ever since the installation of the deities and also taking part in the ceremonial festivals like 'Hindola ' and 'Annakut ' and making cash offerings of bhends, gifts of ornaments etc.
The evidence also discloses that nobody was required to take permission from the darbar before entering into the temples for darshan and worship, nor was there any obstruction made at any point of time except after the initiation of the proceedings from the appellant or the manager and/or his servants to the use of the temples by the public as of right.
The cash offerings or 914 bhents, gifts or ornaments etc.
made by the general public and members of the Vaishnava sect were kept in a golak at Sri Dwarkadhishji Mandir under the exclusive control of the Vaishnava sect and remittances were made to Goswami Maharaj, Acharya of the Vaishnava sect at Ahmedabad.
Even after the Act was extended to the erstwhile State of Patadi, the public in general and the members of the Vaishnava sect in particular had unrestricted right of worship at the temples.
Sometime in the year 1958 the inhab itants of Patadi made a complaint to the Charity Commission er that there were several items of public religious and charitable endowments under the possession and control of the appellant and he was appropriating the income and prof its thereof.
Thereupon the Deputy Charity Commissioner suo motu initiated proceedings under section 19 of the Act and issued show cause notice to the appellant.
In answer to the show cause notice the appellant filed a reply admitting the existence of some public trusts and agreed to get them registered as such under section 18 of the Act and thereafter made an application.
He however pleaded that the two temples in question and the properties appurtenant thereto as well as a public library were private properties of the ruler and the members of the royal family and were not public trusts.
During the inquiry, several wit nesses were examined on behalf of the public as well as by the appellant.
The appellant however did not enter the witness box but examined his chief darbari NatwarIal Ranch hodlal.
The Deputy Charity Commissioner by his order dated January 29, 1960 on the totality of the evidence came to the conclusion that the shrines had been dedicated as places of public religious worship and were therefore temples within the meaning of section 2(17) of the Act and these temples togeth er with the properties appurtenant thereto have constituted public religious trusts within the meaning of section 2(13).
The appellant being dissatisfied carried an appeal to the Chari ty Commissioner who by his order dated February 1, 1962 upheld the finding reached by the Deputy Charity Commission er.
Aggrieved, the appellant made an application under section 72 of the Act before the District Judge, Surendranagar for setting aside the order of the Charity Commissioner.
The learned District Judge disagreed with the finding reached by the Charity Commissioner and held that there was no clear, cogent or satisfactory evidence of the existence of a public endowment.
He held that the question as to whether the temples in question were dedicated to the public depends upon inferences which could legitimately be drawn from facts not in 915 dispute and observed that a dedication to the public may be inferred from a long course of conduct of the founders and descendants.
However, it was abundantly clear that the temples which undoubtedly have been constructed by the then ruler of Patadi adjacent to the Darbargadh were meant for the worship of the family deities of the founder and his family.
The temples were constructed by the then ruler of Patadi, the management of which exclusively remained with the ruler for the time being, and there was nothing to show that they were intended for the use of the public at large for an indeterminate though restricted class of the Hindu community in general.
According to the learned District Judge, the mere fact that the public was allowed access to the temples was not conclusive as to the nature of the endowments and that the Department had failed to discharge the burden of showing that they were public endowments.
Thereupon, the Deputy Charity Commissioner preferred an appeal under section 72(4) of the Act to the High Court.
Disa greeing with the learned District Judge the High Court has come to the conclusion following the decision of this Court in Goswami Shri Mahalaxmi Vahuji vs Rannchhoddas Kalidas & Ors., ; that the two temples were places of public religious worship used as of right by the Vaishnavas and observed: "The circumstance that the public or a section thereof have been regularly worshipping in the temples as a matter of course and they could take part in the festivals and ceremonies conducted in that temple as appears from the record, apparently as a matter of right, is a strong piece of evidence to establish the public character of the temple.
" ** ** ** "There is nothing on record to indicate that in the long past in Patadi, any ruler had put any restriction on the use of the temples for Darshan over a fairly long period during which the members of the public have visited the temples as if they were their temples and this establishes their right.
Such a consistent and unobstructed user must be taken as of right.
It is well known that those who go for 'Dar shan ' and/or 'Puja ' do not and generally have no occasion to assert their right.
It is not shown that the right was ever obstructed.
" ** ** ** "Although there was a sort of private passage running from 916 the Darbargadh leading to the public road, presumably meant for the use of the 'Pardana shin ' ladies of the royal family, this would not indicate that the temples were attached to the Darbargadh or were reserved for the exclu sive use of the ruler and the members of the royal family.
" The High Court on a consideration of the evidence brought out two circumstances, namely, (1) The general public and particularly the members of the Vaishnava sect had unre stricted right of worship at the temples as a matter of course and participated in the festivals of 'Hindola ' and 'Annakut ' functions and sewa at Sri Dwarkadhishji Temple and daily darshan and worship at the other temple which, by itself, was a strong piece of evidence to establish the public character of the temples.
And (2) The cash offerings or bhents, gifts of ornaments etc.
On consideration of the evidence in the case, particularly the two circumstances adverted to read in conjunction with the evidence as to the way in which the temple endowments had been dealt with and the evidence as to the public user of the temples, the High Court came to the conclusion that they were temples within the meaning of section 2(17) of the Act which clearly fell within the ambit of the expression 'public trust' under section 2(13) It repelled the contention of the appellant that the temples were the pri vate temples of the ruler and members of the royal family, observing: "These two relevant circumstances go to show that the two temples which were places of public religious worship were used as of right by the Vaishnavas.(supra).
There is no evidence on record to show that the temples were treated as private property and that the income from the offerings made at the temples was merged with the State funds, much less treated as the private income of respondent No. 1 (ex Ruler).
There is also no evidence to show that the temples were at any time closed down on any occasion so as to exclude the public from worship when the members of the Ruler 's family visited the temple or temples on any other family occasion." 917 "The mere management of the temples being with the successive rulers of Patadi would not afford an indicia to show the ownership of temples as having been vested in the Rulers.
It is well known that in the princely regimes, a citizen would not ordinarily interfere with the management of such properties being made by the then Ruler.
His evidence that the darbar if it thinks fit can obstruct any person from entering into the temples introduced in the examination in chief is not dependable.
He has in his cross examination admitted that prior to the enquiry proceed ings, nobody was required to take permission before entering the 'Haveli ' and the Mandir for 'Darshan ' and worship.
This would go to show that there was no obstruction made at any point of time by the Darbar and his manager and/or his servants to the use of the temples by the public as of right.
" ** ** ** "Even if it be assumed that the temples had originated as private temples, although the case as urged by Mr. Chhaya is that the origin is unknown or lost in antiquity, there is good evidence to show that the temples were being used as public temples.
Taking an inte grated view of the circumstances aforesaid, as appear from the relevant evidence on record, in our opinion, it must be held that the Vaishnavas were regularly worshipping in the temples as a matter of course and they took part in the festivals and ceremonies conducted in the temples and outside apparently as a matter of right." ** ** ** "The mere fact that the successive Darbars of the rulers were the managers of the temples would not go to show that the temples were private trust properties.
The circumstances aforesaid lead to a reasonable inference that although the origin of the temples was at the instance of 918 then Ruler of the Patadi State, the funds which went for the construction of the temples were the funds of the State and, at least gradually in course of time, there was dedica tion of the temples for the benefit of the Vaishnav community as places of public wor ship.
" We thought that on the overwhelming evidence on record both oral and dOcumentary no other conclusion than the one reached by the High Court was possible.
The question whether the temples had been dedicated to the public or were the private property of the appellant was essentially a matter of inference to be drawn from the other facts on record and the findings arrived at by the High Court as well as the Charity Commissioner were clearly unassailable.
Where in a case like the present, the creation of the trust is not lost in antiquity or shrouded in obscurity, the temples having admittedly been constructed by the appellant 's ancestor must, in the absence of a formal document of endowment, be regarded as the private temples of the founder and the members of the royal family, from the fact that the appel lant and his predecessors have throughout been in management of the same.
The findings reached by the High Court and the Charity Commissioner that the temples were places of public religious worship and were temples within the meaning of section 2(17) of the Act and fell within the purview of the expression 'public trust ' as defined in section 2(13), are therefore vitiated due to misplac ing of that burden.
(3) The High Court was in error in holding that the temples were constructed by the appellant 's ancestor for the benefit of the community at large and that the general public or a particular section thereof, had an unrestricted right of worship at the temples merely because of the circumstance that there was proof of long user of the temples by the public particularly by the members of the Vaishnava sect without any let or hinderance or the fact that in the revenue records and the register of the gram panchayat the temples were recorded in the names of 919 the deities with the appellant shown as a mere Vahivatdar and that separate accounts were kept in respect of the temples.
According to the learned counsel, these circum stances were non sequitur.
He relied upon Mulla 's Hindu Law, 15th edn., para 424 at pp.
544 545, Mukherjea 's Hindu Law of Religious & Charitable Trusts, 5th edn., paras 4.36 to 4.40 at pp.
185 190, Nar Hari Sastri & Ors.
vs Shri Badrinath Temple Committee, ; ; Goswami Shri Mahalaxmi Vahuji vs Rannchhoddas Kalidas & Ors., ; Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das, and Radhakanta Deb & Anr.
As to the first, there is very strong and clear evidence to establish that there was dedi cation of the temples by the appellant 's ancestor for the use or benefit of the public.
"Endowment" is dedication of property for purposes of religion or charity having both the subject and object certain and capable of ascertainment.
Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind and for all purposes considered meritorious in the Hindu social and religious system.
Under the Hindu law the image of a deity of the Hindu pantheon is, as has been aptly called, a `juristic entity ', vested with the capacity of receiving gifts and holding property.
The Hindu law recognises dedica tions for the establishment of the image of a deity and for maintenance and worship thereof.
The property so dedicated to a pious purpose is placed extra commercium and is enti tled to special protection at the hands of the Sovereign whose duty it is to intervene to prevent fraud and waste in dealing with religious endowments.
Dedication need not always be in writing and can be inferred from the facts and circumstances appearing.
It would be a legitimate inference to draw that the founder of the temple had dedicated it to the public if it is found that he had held out the temple to be a public one: Pujari Lakshmana Goundan vs Subramania Ayyar, AIR 1924 PC 44.
In view ' of this, the contention that there is no evi dence to establish that there was dedication of the temples by the appellant 's ancestor for the benefit or use of the public or a section thereof, cannot therefore prevail.
On the contrary, the evidence discloses that although the temples had been constructed by the appellant 's ancestor, the cost of their construction was met from out of the public 920 exchequer and that the income from the offerings made by the worshippers at the shrine in the form of bhents and gifts of ornaments etc.
That evidence clearly establishes that the temples were intended and meant by the founder for the benefit and use of the public.
As to the second, undoubtedly the burden was on the Charity Commis sioner to establish the existence of a public endowment and that burden the Charity Commissioner has discharged by unimpeachable evidence of long and uninterrupted user of the temples by the general public and particularly by members of the Vaishnava sect.
The finding reached by the High Court and the Charity Commissioner that the temples were places of public religious worship within the meaning of section 2(17) read with section 2(13) of the Act is not vitiated by displacing of that burden but the finding reached by them is based on a proper appreciation of the evidence.
As to the third conten tion, we would presently deal with the circumstances brought out in the evidence which lead to no other conclusion than the one arrived at by the Charity Commissioner and the High Court, that the temples constructed 'by the appellant 's ancestor were for the benefit of the community at large and the members of the Vaishnava sect in particular and that they had an unrestricted right of worship.
In the absence of a written grant, the question whether an endowment made by a private individual is a public endow ment or a private one is a mixed question of fact and law and the scope of dedication must be determined on the appli cation of legal concepts of a public and private endowment to the facts found in each particular case.
Facts and cir cumstances, in order to be accepted as proof of dedication of a temple as a public temple, must be considered in their historical setting viz. the origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received, the rights exercised by the devotees in regard to worship therein, etc.
In the present case, the temples were constructed at public expenditure by meeting the cost of construction from the public exchequer and the upkeep and maintenance of the temples was met by public subscription and therefore the High Court and the Charity Commissioner rightly inferred existence of a public endow ment.
Such an inference was strengthened by the fact of user of the temples by the public or a section thereof, as of right for over a century.
The general effect of the evidence is that the appellant as well as his predecessors although in management, had throughout treated the temples as public temples of which they were mere Vahivatdars.
921 The essence of a public endowment consists in its being dedicated to the public; and in the absence of any document creating the endowment, long user is the material factor from which an inference of dedication may arise.
The dis tinction between a private and public endowment is that whereas in the former the beneficiaries are specific indi viduals, in the latter they are the general public or a class thereof.
The distinction is succinctly brought out in Mula 's Hindu Law in para 424 at pp.
544 545 in these words: "Religious endowments are either public or private.
In a public endowment the dedication is for the use or benefit of the public.
The essential distinction between a public and a private endowment is that in the former the beneficial interest is vested in an uncertain and a fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private endowment the beneficiaries are defi nite and ascertained individuals or who within a definite time can be definitely ascertained.
The fact that the fluctuating and uncertain body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make it a private endow ment.
The essence of a public endowment con sists in its being dedicated to the public; and in the absence of any document creating the endowment, long user is the material factor from which an inference of dedication may arise.
Besides user by the public, conduct of the founder and his descendants is also relevant, and if they in fact held out the temple to be a public one a very strong pre sumption of dedication would arise.
" It therefore follows that the principles are well settled.
When property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the members who are entitled to worship at the shrine of the deity can only be the members of the family i.e. an ascertained group of individuals.
But where the beneficiaries are not the members of a family or specified individuals but the public at large of a specified portion thereof, then the endowment can only be regarded as public intended to benefit the general body of worshippers.
We do not think that it would serve any purpose to refer to all the 922 well known decisions except a few.
In Pujari Lakshmana Goundan vs Subramania Ayyar (supra), the temple was not an ancient one and there was no deed of endowment.
The question was whether the temple was a public temple or a private temple.
Although the temple was a private temple, the evi dence disclosed that the Pujari Lakshmana Goundan, the founder of the temple had held out and represented to the Hindu public in general that the temple was a public temple at which all Hindus might worship.
Sir John Edge, in deliv ering the judgment of the Privy Council held that on that evidence the Judicial Committee had no hesitation in drawing the inference that the founder had dedicated the temple to the public, as it was found that he had held out the temple as a public temple.
Another Privy Council decision to which we need refer is that of Babu Bhagwan Din vs Gir Har Saroop, LR 1939 67 IA 1 where the grant was made to one Daryao Gir and his heirs in perpetuity and the evidence showed that the temple and the properties attached thereto had throughout been treated by the members of the family as their private property appropriating to themselves the rents and profits thereof.
Sir George Rankin, delivering the judgment of the Privy Council held that the fact that the grant was made to an individual and his heirs in perpetuity was not reconcila ble with the view that the grantor was in effect making a wakf for a Hindu religious purpose.
That very distinguished Judge referred to the earlier decisions in Pujari Lakshar nana Goundan 's case, and observed: "Their Lordships do not consider that the case before them is in general outline the same as the case of the Madras temple, , in which it was held that the founder who had enlarged the house in which the idol had been installed by him, constructed circular roads for processions, built a rest house in the village for worshippers, and so forth, had held out and represented to the Hindu public that it was a public temple." The true test as laid down by this Court speaking through Venkatarama Ayyar, J. in Deoki Nandan vs Murlidhar, ; in determining whether a temple is a private or a public temple, depends on whether the public at large or a section thereof, 'had an unrestricted right of worship ' and observed: "When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of worshippers, the 923 question whether an endowment is private or public presents no difficulty.
The cardinal point to be decided is whether it was the intention of the founder that specified indi viduals are to have the right of worship at the shrine, or the general public or any specified portion thereof." The learned Judge distinguished the decision of the Privy Council in Babu Bhagwan Din vs Gir Har Saroop, (supra) on the ground that properties in that case were granted not in favour of an idol or temple but in favour of the founder who was maintaining the temple and to his heirs in perpetuity, and said: "But, in the present case.
the endowment was in favour of the idol itself, and the point for decision is whether it was private or public endowment.
And in such circumstances, proof of user by the public without interfer ence would be cogent evidence that the dedica tion was in favour of the public.
" It was also observed while distinguishing the Privy Council decision in Babu Bhagwan Din 's case that it was unusual for rulers to make grant to a family idol.
In Deoki Nandan 's case the Court referred to several factors as an indicia of the temple being a public one viz. the fact that the idol is installed not within the precincts of residential quarters but in a separate building constructed for that purpose on a vacant site, the installation of the idols within the temple precincts, the performance of pooja by an archaka appointed from time to time for the purpose, the construction of the temple by public contribution, user of the temple by the public without interference, etc.
The next important decision is that of Tilkayat Shri Govindlalji Maharaj vs State of Rajasthan & Ors., [1964] 1 SCR 561 where a Constitution Bench of this Court had to consider whether the famous Nathdwara Temple which is held in great reverence by the Hindus in general and members of the Vaishnava followers of the Vallabha Sampradaya in par ticular was a public temple.
It was held that neither the tenets nor the religious practice at the Vallabha School necessarily postulate that the followers of the denomination must worship in a private temple.
The Court observed that the question whether a Hindu temple is private or public must necessarily be considered in the light of the relevant facts relating to it as well as the accepted principles laid down by several judicial decisions, and it was said: 924 "A temple belonging to a family which is a private temple is not unknown to Hindu law.
In the case of a private temple it is also not unlikely that the religious reputation of the founder may be of such a high order that the private temple rounded by him may attract devotees in large number and the mere fact that a large number of devotees are allowed to worship in the temple would not necessarily make the private temple a public temple.
On the other hand, a public temple can be built by subscriptions raised by the public and a deity installed to enable all the members of the public to offer worship.
In such a case, the temple would clearly be a public temple." "Where evidence in regard to the foundation of the temple is not clearly avail able, sometimes, judicial decisions rely on certain other facts which are treated as relevant.
Is the temple built in such an imposing manner that it may prima facie appear to be a public temple? The appearance of the temple of course cannot be a decisive factor; at best it may be a relevant factor.
Are the members of the public entitled to an entry in the temple? Are they entitled to take part in offering service and taking Darshan in the temple? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right?" It was then laid down that the participation of the members of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations of festival occasions would be a very strong factor in determining the character of the temple.
Another significant decision is that of Goswami Shri Mahalaxmi Vahuji vs Rannchhoddas Kalidas & Ors.
(supra) where the question arose whether the Haveli of Nadiad where the idol of Sri Gokulnathji was installed which is wor shipped by the Vaishnava devotees of the Vallabha cult is a private or public temple on the ground of dedication, and it was laid down: "In brief the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public 925 character of the temple are factors that go to establish whether a temple is a public temple or a private temple.
" See also: Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das, ; Dhaneshwarbuwa Guru Purshottambuwa owner of Shri Vithal Rukhamai Sansthan vs The Charity Commissioner, State of Bombay, 18 and Radhakanta Deb & Anr.
vs Commissioner of Hindu Religious Endowments, Orissa, ; ; Hari Bhanu Maharaj ofBaroda vs Charity Commissioner, Ahmedabad, [1986] 4 SCC .162 and Heir of deceased Maharaj Purshottamlalji Maha raj, Junagad vs Collector of Junagad District & Ors.
, ; We have carefully gone through the evidence of the witnesses examined by the Deputy Charity Commissioner as also the finding reached by him as well as by the Charity Commissioner which finding has been upheld by the High Court while reversing the decision of the learned District Judge.
We find no substance in the contention advanced.
There are overwhelming circumstances brought out in the order of the Charity Commissioner as well as in the judgment of the High Court and no other conclusion is possible than the one reached by them that the temples in question were public religious trusts within the meaning of section 2(17) read with section 2(13) of the Act.
The learned District Judge in interfering with the order was largely influenced by the fact that the management of the temples throughout remained with the ruler for the time being and while adverting to the other circumstances held that there was no evidence that the temples were dedicated to the public at large or to a sec tion thereof and that the other circumstances brought out in the evidence viz. public user for the past over 100 years without any let or hinderance, the fact that the members of the Hindu community in general and members of the Vaishnava sect in particular were allowed to visit the temples for worship and make their offerings, or that the temples stand recorded in the names of the deities in the revenue records and the register of the gram panchayat with appellant shown as a Vahivatdar, were not sufficient to draw an inference that the temples were places of public religious worship.
In coming to that conclusion he relied upon the decision 926 of the Privy Council in Babu Bhagwan Din 's case (supra) as also of this Court in Goswami Shri Mahalaxmi Vahuji 's case.
The underlying fallacy in the judgment of the learned District Judge is that he proceeds on the assumption that there was no dedication of the temples express or implied by the founder for the benefit or use of the pub lic.
Several circumstances are brought out by the Charity Commissioner and the High Court showing that the temples were public temples, namely: (1) Although the temples were constructed by the appellant 's ancestor way back in 1872 and 1875, there was positive evidence showing that the entire cost of construction was met from the public exchequer i.e. Patadi State Treasury.
(2) The general public and particu larly the members of the Vaishnava sect had an unrestricted right of worship at the temples and participated in the festivals and ceremonies conducted in the temples right from the very inception, as it appears from the record, apparent ly as a matter of right without any let or hinderance on the part of the appellant or his predecessors.
(3) The Hindu worshippers at the temples in general and members of the Vaishnava sect in particular made cash offerings of bhents into the golak kept at Sri Dwarkadhishji Mandir or Haveli which was under the exclusive control of the members of the Vaishnava sect and the remittances of it used to be made to Goswami Maharaj, Acharya of Vaishnava sect at Ahmedabad.
(4) The public records showed that the temples stand recorded in the names of the deities, the appellant and his predecessors shown as mere Vahivatdars.
It was an undisputed fact that separate accounts being maintained in respect of the income and expenditure of the temples i.e. the cash offerings, gifts of ornaments etc.were not intermingled with the monies belonging to the appellant or the members of the royal family and the incomes from the temples were utilised for their upkeep and maintenance and also for acquisition of properties attached to the temples (5) The State used to keep apart a share of vaje i.e. Darbar 's share of the crops grown by the cultivators and also used to impose and collect tola, a cess from the cultivators for the upkeep and mainte nance of the temples.
That evidence shows that the public at large and members of the Vaishnava sect had been worshipping at the temples as of right for the last over 100 years and that the temples had all along been primarily maintained by the contributions made by the public particularly by the devotees belonging to the Vaishnava sect.
In course of time the tem 927 ples particularly Sri Dwarkadhishji Mandir or HaveIi at tracted a large number of worshippers and they used to participate in the religious festivals and ceremonies per formed there.
The evidence of the witnesses also shows that the deities were taken out in a palanquin by members of the Vaishnava sect and it was joined by the general public.
The temples though adjacent to the Darbargadh were not in the precincts of the palace but were constructed facing a public road allowing access to the general public.
All these cir cumstances clearly support the finding reached by the Chari ty Commissioner and the High Court that the temples were public temples and therefore public religious trusts within the meaning of section 2(17) read with section 2(13) of the Bombay Public Trusts Act, 1950 and the temples with the properties attached thereto were not the private properties of the appellant or the members of his family.
The only factor relied upon by the learned District Judge was that the management of the temples remained with the ruler for the time being but then the Court has to come a conclusion not on one single factor alone but on a conspectus of all the relevant factors i.e.1 upon an appreciation of all the facts and circumstances appearing.
In the result, the appeal must fail and is dismissed with costs.
N.P.V. Appeal dis missed.

summary/full:
At Patadi in the erstwhile State of Patadi in the Sau rashtra region of Gujarat State there were two temples known as Sri Dwarkadhishji Mandir and Sri Trikamrayji Mandir, which were constructed in the years 1872 and 1875 respec tively by the then ruler with funds from the State Treasury.
In the Gram Panchayat records the temples stood in the name of the deities, and the appellant, the former ruler of the State, was shown as a Vahivatdar.
The temples were exempted from payment of municipal and other taxes including land revenue.
The Bombay Public Trusts Act, 1950 was extended to the Saurashtra region of Gujarat State in the year 1952.
The Deputy Charity Commissioner, sometime in 1958, suo motu initiated proceedings under section 19 of the above named Act, and issued show cause notice to the appellant, who was Vahivatdar of the temples.
The appellant pleaded that the temples and the properties appurtenant thereto were private properties of the ruler and the members of the royal family, and were not public trusts.
After examining witnesses, the Deputy Charity Commissioner came to the conclusion that the shrines had been dedicated as places of public religious worship and were, therefore, temples within the meaning of section 2(17) of the Act, and that the temples together with the properties appurtenant thereto constituted public religious trust within the meaning of section 2(13).
These findings were upheld by the Charity Commissioner.
On an application under section 72 of the Act, the District Judge held 910 that there was no clear, cogent or satisfactory evidence of the existence of a public endowment, that the question whether the temples were dedicated to the public may be inferred from a long course of conduct of the founders and the descendants, and that the mere fact that the public was allowed access to the temples was not conclusive as to the nature of the endowment and that the department had failed to discharge the burden of showing that they were public endowments.
The department appealed to the High Court which held that the temples fell within the meaning of section 2(17) of the Act and were, therefore, within the ambit of the expression "public trust" under section 2(13).
In the appeal to this Court, it was contended that there was no evidence to establish that there was dedication of the temples by the appellant 's ancestor for the use and benefit of the public, that the findings reached by the High Court and the Charity Commissioner were vitiated due to misplacing of the burden to establish the existence of public endowment, and that the High Court was in error in holding that the temples were constructed by the appellant 's ancestor for the benefit of the community at large and that the general public or a particular section thereof, had an unrestricted right of worship at the temples, merely because there was proof of long user by the members of the Vaishnava sect without any let or hinderance, that in the revenue records and the register of the gram panchayat, the temples were recorded in the names of the deities with the appellant shown as a mere Vahivatdar, and that separate accounts were kept in respect of the temples.
Dismissing the appeal, this Court, HELD: 1.
The findings arrived at by the High Court as well as the Charity Commissioner that the temples were 'public temples ' and, therefore, 'public religious trusts ' within the meaning of section 2(17) read with section 2(13) of the Bombay Public Trusts Act, 1950, and not the private proper ties of the appellant or the members of his family are unassailable.
[927C] 1.2 The question whether the temples had been dedicated or were the private property of the appellant was essential ly a matter of inference to be drawn from the other facts on record.
There is clear, consistent, reliable and unimpeacha ble evidence to establish that although the temples in question were constructed by the appellant 's ancestor, he had intended and meant that they were for the use and bene fit of the 911 public, that the public at large and members of the Vaishna va sect had been worshipping at the temples as of right for the last over 100 years and that the temples had all along been primarily maintained by contributions made by the public particularly devotees belonging to the Vaishnava sect.
[918C, 926G H] 2.1 The essence of a public endowment consists in its being dedicated to the public; and in the absence of any document creating the endowment, long user is the material factor from which an inference of dedication may arise.
The distinction between a private and public endowment is that whereas in the former the beneficiaries are specific indi viduals, in the latter they are the general public or a class thereof.
[921A B] 2.2 When property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the members who are entitled to worship at the shrine of the deity can only be members of the family.
But where the beneficiaries are not the members of a family or specified individuals but the public at large or a specified portion thereof, then the endowment can only be regarded as public intended to benefit the general body of worshippers.
[921G] 2.3 Dedication need not always be in writing and can be inferred from the facts and circumstances appearing.
In the absence of a written grant, the question whether an endow ment made by a private individual is a public endowment or a private one is a mixed question of fact and law and the scope of dedication must be determined on the application of legal concepts of public and private endowment.
Facts and circumstances, in order to be accepted as proof of dedica tion must be considered in their historical setting viz. the origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received, the rights exercised by the devotees in regard to worship there in, etc.
[919F, 920E F] In the instant case, the temples were constructed at public expenditure by meeting the cost of construction from the public ex chequer and the upkeep and maintenance of the temples was met by public subscription.
The High Court and the Charity Commissioner therefore, rightly inferred exist ence of a public endowment.
Such an inference was strength ened by the fact of user by the public as of right for over a century.
The appellant as well as his predecessors al though in management, have throughout treated the temples as public temples of which they were mere Vahivatdars.
The finding reached by the High Court and the Charity Commis sioner is based on a proper appreciation of the 912 evidence.
All the circumstances clearly support the finding.
[920G H, C, 927B] Shri Mahalaxmi Vahuji vs Rannchhoddas Kalidas & Ors., ; ; Nar Hari Sastri & Ors.
vs Shri Badrinath Temple Committee, ; ; Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das, ; Radhakanta Deb & Anr.
vs Commissioner of Hindu Religious Endowments, Orissa, ; ; Pujari Lakashmana Goundan vs Subramania Ayyar, AIR 1924 PC 44; Babu Bhagwan Din vs Gir Har Saroop, LR 1939 67 IA 1; Deoki Nandan vs Murlidhar, ; ; Tilkayat Shri Govindlalji Maharaj vs State of Rajasthan & Ors., [1964] 1 SCR 561; Bhaneshwarbuwa Guru Purshottambuwa, owner of Shri Vithal Rukhamai Sansthan vs The Charity Commissioner, State of Bombay, ; ; Hari Bhanu Maharaj of Baroda vs Charity Commissioner, Ahmedabad, ; Heir of deceased Maharaj Purshottamlalji Mahara], Junagad vs Collec tor of Junagad District & Ors., ; and Mulla 's Hindu Law, 15th edn., para 424 at pp.
544 545, Mukherjea 's Hindu Law of Religious & Charitable Trusts, 5th edn.
paras 4.36 to 4.40 at pp.
185 190, referred to.


judgement:
SDICTION: Writ Petition (Civil) No. 811 of 1986 etc.
(Under Article 32 of the Constitution of India).
F.S. Nariman, G.L. Sanghi, S.N. Kacker, R.C. Kaushik, D.K. Garg, Mohan Katarki, S.S. Javali, Ravi P. Wadhwani, C.S. Vaidyanathan, K.V. Mohan, section Ravindra Bhatt, P. Chowd hry, S.R. Setia and Mukul Mudgal for the Petitioner/Appel lant.
G. Ramaswamy, Additional Solicitor General, B.R.L. Iyengar, M. Veerappa and Ashok Sharma for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The obstinate problem of inter se seniority, this time amongst officers in the Karnataka Administrative Service has fallen for determination in this group of appeals by special leave and writ petitions under Article 32 of the Constitution at the instance of both direct recruits and promotees.
It is not disputed that under the relevant Recruitment Rules of 1957 in regard to Class I Junior Scale posts there was a quota system 889 two thirds of the vacancies had to be filled up by promotion by selection from Class II Officers and the remaining one third by direct recruitment by competitive examination to be held by the Public Service Commission.
When direct recruit ment had not been made timely as envisaged by the scheme in the Rules officiating promotions were given in respect of posts covered by the direct recruit quota.
Such temporary promotions remained effective for a number of years some times varying between 5 and 8 and later when the vacancies within the direct recruitment quota were filled up, the appointments made in latter years were deemed to carry weightage for seniority on the footing of deemed filling up when vacancies had arisen.
Thus the dispute as to seniority inter se between those who had manned the promotional posts beyond the 2 3rds limit and the direct recruits subsequently appointed has come for judicial determination.
A three Judge Bench of this Court in V.P. Badami etc.
vs State of Mysore & Ors., dealt with a situa tion of this type with reference to the same set of Rules.
A similar dispute came before the Karnataka High Court in a bunch of writ petitions filed both by promotees and direct recruits and in view of common questions of fact and law involved therein, the High Court disposed them by a common leading judgment in the case of M.G. Kadali vs State of Karnataka & Ors., [1982] 2 KLJ 453.
The High Court noticed the ratio in Badami 's case and found that with a view to implementing the rule in Badami 's case, the State Government issued an official memorandum on 5.7.1976.
laying down guidelines for determination of seniority between the direct recruits and promotees.
The Gradation List of Junior Scale officers as on 30.6.1973 was drawn up following such guide line and was notified on 10.8.1976 with the following ex planatory cover note: (i) Between 2.12.1957 and 10.9.1959, the number of substantive vacancies were thirty nine and of those, twenty six were promotional and thirteen were the share of direct re cruits.
The first fifteen of the promotional posts were given to allottees and the remain ing eleven to promotees.
In the absence of direct recruitment, these thirteen posts were carried forward; (ii) Between 11.9.1959 and 26.10.1964 (when 1962 direct recruits became due for promotion), the vacancies were seventy six, of which fiftyone were available for direct recruits and twentyfive for promotees in view of the change in the proportion in the 1959 Rules.
Twentythree substantive vacancies were given to direct 890 recruits of 1962.
The net result, therefore, was 13 direct recruit posts of the earlier period and twentyeight of this period were carried forward; (iii) After October 1964, the vacancies were classified on annual basis.
Upto 7.10.1971, sixty vacancies were filled up by promotion.
As noticed earlier fortyone direct recruits vacancies had been carried forward and thirty five fresh vacancies were available to direct recruits.
Eleven vacancies were filled up by direct recruitment and sixtyfive were carried forward.
By a latter notification dated 2.2.
197 1, when a further gradation list was pub lished, the following explanatory note was added: "(i) During the period 7.6.1974 to 15.7.76 (when direct recruits of 1974 were eligible for confirmation), eleven substantive vacan cies were available on the basis of the perma nent strength of the cadre; (ii) Out of one hundred and thirty three temporary posts available during that period, eightynine posts were assigned to promotees.
The direct recruitment vacancies carried forward from the earlier period.
The recruits of the 1964 batch were assigned ranks taking into account the direct recruitment vacancies carried forward for the previous period.
" On a representation by the 1974 batch of direct re cruits for refixation of inter se seniority in the Gradation List taking into account only the permanent posts in the cadre and by taking into account the carried forward vacan cies, the State Government made an order on 22.5.
1980, to the effect that the 1974 batch of direct recruits should be shown immediately below serial number 64 and above serial number 65 in the continuation Gradation List published on 2.2.
Certain promotees being aggrieved by this Governmental direction approached the High Court under Article 226 for relief claiming protection of their seniority.
The High Court classified their contentions into the following five: (i) The only basis for determination of inter se seniority of officers in a cadre whether by promotion or direct recruitment should be the date of entry into the cadre and the quota rule is 891 not available to be used for pushing up or down officers of the cadre; (ii) Even if there be any 'carry forward ' it should not extend beyond three years; (iii) Quota rule should be applied taking into account both substantive as well as temporary vacancies in the cadre; (iv) The quota rule did no longer operate in regard to the junior scale officers when the 1959 rules became operative; at any rate it was clearly so when the 1966 Rules came into force, and (v) The impugned Government order of 1980 was invalid and liable to be quashed on several grounds, one of them being that it was made without providing an opportunity to the promo tees who were adversely affected by it.
The High Court analysed the judgment of this Court in Badami 's case and also referred to, and relied upon, the observations in Col. Iyer 's case and with reference to the issues catalogued above came to the conclusion as stated below in its own words: (i) "If promotions have taken place in excess of the quota for promotion, pushing down the promotees promoted in excess of their quota or if direct recruitment was done in excess of the quota for direct recruitment, pushing down direct recruits appointed in excess of their quota in a necessary concomitant of the quota rule.
Carrying forward of direct recruitment vacancies or promotional vacancies to the next recruitment period is merely the consequence of such pushing down.
(What was perhaps in tended to be said was that pushing down was the direct outcome of the mandate to carry forward) we are unable to accept the conten tion of learned counsel for the promoteepeti tioners that there should be no such pushing down or such carry forward.
" (ii) "In the light of the above ruling of the Supreme Court, it must be held that carry forward of direct recruitment vacancies cannot extend beyond three years.
However, this ruling of the Supreme Court (In A.S. Iyer 's case) does not affect the finality and binding character of the earlier judgment of the Supreme Court in Badami 's case which specifi cally dealt with the Grada 892 tion List of Junior Scale officers as on 1.1.
1972, and gave direction as to how a fresh Gradation List should be prepared.
Those directions are bound to be obeyed while pre paring such Gradation List of officers who entered that cadre upto 1.1.1972 without any limitation as to the period upto which promo tional or direct recruitment vacancies should be carried forward to the next recruitment period.
But such carry forward cannot exceed three years after 1.1.1972.
" (iii) "The above ruling of the Supreme Court (Badami 's case) is binding on all courts under Article 141 of the Constitution.
It is not open to us to speculate what would have been the conclusion of the Supreme Court if it had known the correct factual position that the cadre of Junior Scale officers consisted both of permanent and temporary posts.
That the promotee petitioners in the present writ petitions were not parties to Badami 's case, in no way detracts from the binding character of the law declared by the Supreme Court." (iv) "Hence, we reject the contention that 1959 Rules abrogated the quota rule in regard to recruitment to the cadre of Junior Scale officers .
We, therefore, reject the contentions of learned counsel for promotee petitioners that after the 1966 Rules came into force, the quota rule ceased to apply to the recruitment to the cadre of Junior Scale officers and that thereafter the date of entry into the cadre, whether by direct recruitment or by promotion, became the only basis for determining the seniority in that cadre." (v) "The High Court examined the individual cases of both the groups and finally directed dismissal of Kadali 's (or promotee) writ application as also of the direct recruits of 1976 and 1977.
It further quashed the Govern ment order dated 22.5.
1980 by which certain modifications were made in the Gradation List of 1976 and called upon the State Government to make appropriate alterations in the Grada tion List of 10.8.
1976 and the continuation list of 2.2.
1977 on the basis that the carry forward rule should operate for a maximum period of three years subsequent to 1.1.
" We have before us a batch of appeals by special leave and two writ petitions under Article 32.
Both the writ petitions are by direct recruits; Civil Appeal Nos. 2906 and 2910 and 2911 of 1984 are by 893 promotees while Civil Appeal Nos.
2902 to 2905 to 2907 to 2909 of 1984 are by direct recruits.
The promotees challenge the propriety of the direction of the High Court to modify the Gradation List by applying the quota rule while the direct recruits seek to have full application of the quota rule instead of the limitation of three years and have asked for consequential benefits.
This group of cases has been heard at great length and learned counsel for the parties have produced a lot of papers.
On looking into the matter objectively in the back drop of Badami 's decision we are of the view that if the following aspects are answered all that arose for judicial determination would be appropriately met.
Those aspects are: (i) What is the effect of the quota rule in the matter of fixation of inter se seniority in the Gradation List so far as recruits from different sources are concerned? (ii) Though admittedly in 1957 under the relevant rule, a quota existed, was that basis altered or given up during the relevant peri od? (iii) What is the effect of this Court 's judgment in Badami 's case? Was the High Court correct in observing that this Court would not have come to the conclusion that quota was confined to substantive vacancies only if the true state of facts was known? (iv) What is the effect of the observation in Iyer 's case and does it supersede the rule in Badami 's case? (v) Does the situation highlighted in this case require any other direction? It is a well settled position in law that where recruit ment is from two sources to a service, a quota rule can be applied fixing the limits of recruitment from the two sources.
(H.C. Sharma vs Municipal Corporation of Delhi & Ors., ; FIRST ASPECT In S.G. Jaisinghani vs Union of India & Ors., a Constitution Bench of this Court observed: "The Solicitor General on behalf of respond ents 1, 2 894 and 3 submitted that the quota rule was merely an administrative direction to determine recruitment from two different sources in the proportion stated in the rule and a breach of that quota rule was not a justiciable issue.
The Solicitor General said that there was, however, substantial compliance with the quota rule . .
We are unable to accept the argument of the Solicitor General that the quota rule was not legally binding on the Government.
It is not disputed that Rule 4 of the Income Tax Officers (Class I, Grade II) Service Recruitment Rules is a statutory rule and there is a statutory duty cast on the Government under this rule to determine the method or methods to be employed for the purpose of filling the vacancies and the number of candidates to be recruited by each method.
In the letter of the Government of India dated October 1951 there is no specific reference to rule 4, but the quota fixed in their letter must be deemed to have been fixed by the Government of India in exercise of the statutory power given under rule 4, it is not now open to the Government of India to say that it is not incumbent upon it to follow the quota for each year and it is open to it to alter the quota on account of the particular situation.
We are of opinion that having fixed the quota in exercise of their power under rule 4 between the two sources of recruitment, there is no discretion left with the Govern ment of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, act its own will and pleasure.
As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice, it will be difficult to hold that the seniority rule i.e., rule 1(f)(iii) and (iv), is not unrea sonable and does not offend Article 16 of the Constitution.
" In Badami 's case (supra) this aspect was examined by the Court.
The learned Chief Justice spoke for the three Judge Bench thus: "In working out the quota rule, these principles are generally followed.
First, where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre.
Second, confirmed persons are senior to those who are officiating.
895 Third, as between persons appointed in offici ating capacity, seniority is to be counted on the length of continuous service.
Fourth, direct recruitment is possible only by compet itive examination which is the prescribed procedure under the rules.
In promotional vacancies, the promotion is either by selec tion or on the principle of seniority cummer it.
A promotion could be made in respect of a temporary post or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about period of probation is expected to be completed.
Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular.
The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota.
If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota.
Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be ab sorbed in the vacancies within their quota in the facts and circumstances of a case.
The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacan cies of the quota of direct recruits nor recruits can be allotted to promotional vacan cies.
The result is that direct recruitment vacancies between 11th September, 1959 and 26th October, 1964 cannot be occupied by any promotees.
The fact that direct recruits were confirmed on 28th October, 1964 will not rob the direct recruits of their quota which remained unfilled from 2nd December, 1957 . .
In S.C. Jaisinghani vs Union of India (supra) it was said that when the quota was fixed for the two sources of recruitments, the quota could not be altered according to exigencies of the situation.
It was held there that the promotees who had been promoted in excess of the prescribed quota should be held to have been illegally promot ed.
In Bishan Sarup 's case [1978] SCR Suppl.
491 it was held that when it was ascertained that not more than 1/3rd of the vacancies were to go to the promotees and the rest to the direct recruits the ratio was not mere depend ant on whether any direct recruit was appoint ed in 896 any particular year or not.
The promotees were entitled to 1/3rd of the vacancies in any particular year, whether or not there was direct recruitment by competitive examination in that year.
Two principles are established in the decision referred to.
One is that quotas which are fixed are unalterable.
according to exi gencies of situation.
Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rules.
The other is that on the ground one group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the ground that because there has been a number in excess of quota the same should be absorbed depriving the other group of quota.
In Bachan Singh & Anr.
vs Union of India & Ors., the two appel lants were promoted in the year 1958 and 1959.
The respondents were appointed by direct recruitment in 1962, 1963 and 1964.
The re spondents were confirmed in their posts before the appellants.
The appellants contended that the respondents who were directly appointed after the appellants had been promoted were not to be confirmed in permanent posts before the appellants.
It was held that the direct recruits were confirmed against permanent vacancies within their quota.
The earlier confirmation of direct recruits though ap pointed later was upheld on the ground that they fell within their quota of permanent vacancies.
Subraman 's case [1975] 2 SCR 979 on which the appellants relied also held that each quota would have to be worked independ ently on its own force.
In that case the Assistant Executive Engineers who were ini tially entitled to 3/4th and subsequently to 2/3rd of the vacancies while Assistant Engi neers who were entitled initially to 1/4th and subsequently to 1/3rd of such vacancies were held to be entitled to their respective quotas independent of the fact that whether any person from one class or the other was promot ed or not.
It was illustrated by saying that if there were three vacancies in a year two would go to the Assistant Executive Engineers and one would go to the Assistant Engineers and even if there were not eligible 897 Assistant Executive Engineers who could be promoted to fill in two vacancies belonging to their quota, one vacancy is to be filled up by promotion of an Assistant Engineer if he was eligible.
Similarly, if two vacancies belong ing to the quota of Assistant Executive Engi neers are to be filled by Assistant Engineers for want of availability of eligible Assistant Executive Engineers, the appointment of As sistant Executive Engineers have to be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota for those years.
" Badami 's case referred to several authorities of the Court and clearly drew out the judicial consensus on the point in issue by concluding that the quota rule had to be strictly enforced and it was not open to the authorities to meddle with it on the ground of administrative exigencies.
The scheme in force relating to the services for fixing inter se seniority takes into account the filling up of the vacancies in the service from the two sources on the basis of the quota and, therefore, fixation of inter se seniority in the Gradation List has to be worked out on the basis of quota.
SECOND ASPECT There was no dispute either before the High Court or before us that in the 1957 Rules there existed a quota for filling up vacancies in the Class I Junior Scale posts.
The High Court found that the quota continued throughout during the relevant period.
Before us Mr. Nariman supported that finding while Mr. Kacker maintained that the quota had in later years been given up.
Rule 3 of Mysore Recruitment of Gazetted Probationers Rules, 1959 made the following provi sions: "(1) The provisions of these rules shall be applicable in respect of direct recruitment to the cadres in State Civil Services Class I and Class II specified in column 3 of the Schedule to these rules relating to the Services speci fied in the corresponding entries of Column 2 of the said Schedule.
(2) These rules shall have effect notwith standing anything contrary contained (i) in the Cadre and Recruitment Rules for the time being in force applicable to the Cadres in the 898 State Civil Services referred to in sub rule (i) and (ii) in the Mysore State Civil Service (General Recruitment) Rules, 1957.
(3) During the period of five years from the date of commencement of these rules, as nearly as may be two thirds of the number of vacan cies arising in the cadres in the State Civil Services referred in to in sub rule (i) shall be filled by appointment of candidates herein after in these rules referred to as probation ers selected in accordance with the provisions of these rules and the actual number of vacan cies to be so filled shall be determined by the Government.
" Admittedly these rules related only to direct recruitment and as it appears, in sub rule (3) remained in force for five years (said to have been extended for one more year); with the lapse of a total period of six years from the date when these rules came into force, they cease to have effect.
In 1966 rules were made under the proviso to Article 309 known as the Karnataka Government Gazetted Probationers Posts (Appointment by Competitive Examination) Rules, 1966 and sub rule (3) of Rule 3 thereof provided inter alia: "That notwithstanding anything contrary in the rules of recruitment to the Karnataka Adminis trative Service the number of vacancies as determined by the Government in that service should be filled by direct recruitment after holding a competitive examination by the Commission.
" On the 11th of August, 1977, the Karnataka Administra tive Service (Recruitment) (Amendment) Rules, 1977 came into force.
Rule 2 thereof provided: "Amendment to Schedule: In the Schedule to the Karnataka Administrative Service (Recruitment) Rules, 1957 for the entries at the Item (b) the following entries shall be subsituted, namely: 1 2 3 (b)All Class I (i)50%of vacancies to be Forpromotion;ClassII (Junior Scale) filled by promotion Officers must have 899 Posts.
from Class II Officers; worked for at least a and period of four years (ii) 50% by Direct including the period of Recruitment in accor officiation or probation dance with the Karnataka Recruitment of Gazetted Probationers (Appoint ment etc.) Rules, 1966.
Unless the 1957 Rules remained in force till 1977, there would have been really no necessity to refer to them for the purpose of amendment; Badami 's case did proceed on the footing that the quota system in the Recruitment Rules continued till 1971 72.
It is not Mr. Kacker 's case that anything happened after 1972 which brought about dissolution of the quota.
We reject the contention of Mr. Kacker that the quota system had been abandoned and confirm the finding of the High Court in that regard.
It is, however, a fact that the ratio has been changed from time to time.
THIRD ASPECT As already pointed out, Badami 's case was concerned with these very rules and a similar situation though for a dif ferent period.
It is a decision of a three Judge Bench and we proceed on the footing that it is binding on us.
The High Court has pointed out in the leading judgment in Kadali 's case: "There are numerous Government orders sanc tioning, from time to time, temporary posts of Assistant Commissioner which are the same as the posts of Junior Scale Officers and extend ing the tenure of those temporary posts from time to time . . . . .
Though the Karnataka Administrative Service Cadre Rules mention of only permanent posts and not temporary posts in the cadre of Junior Scale Officers, the material produced before us clearly establishes that the cadre of Junior Scale Officers consisted of a consider able number of temporary posts at all material times.
In para 6 of the statement of objec tions filed on behalf of the State in these petitions, the State has admitted thus: "The cadre strength of KAS Class I Junior Scale Officers had itself undergone revision and figures 900 showed that 152 permanent posts and 133 tempo rary posts were available as is clear from the notification No. GAD 590 SMC 74 dated 3.3. 1976.
" However learned counsel for direct recruits on the following observations of the Supreme Court in Badami 's case at page 1564 of the report: "In E.P. Royappa vs State of Tamii Nadu, ; this Court said on the con struction of Rule 2 of the relevant Cadre Rules in that case that the State Government might add for a period to the cadre one or more posts.
But, the posts so added could not become cadre posts.
The temporary posts which are created due to exigencies of the service are posts which are outside the Cadre.
" From the above observations, it would appear that the Supreme Court took the view that temporary posts which were created due to exigencies of service, were posts which were outside the cadre.
In other words, the Supreme Court seems to have thought that temporary posts added to the cadre were ex cadre posts.
The attention of the Supreme Court does not appear to have been drawn to Note 2 to R 49 of the KCSR which classifies temporary posts into two categories, namely, posts created to perform the ordinary work for which permanent posts already exist in the cadre, and isolated posts created for the performance of special task unconnected with the ordinary work which a service is called upon to perform.
" The conclusion indicated in the decision of the learned Chief Justice of this Court in Badami 's case had been sup ported by reasons.
As it would appear at page 8 19 of the Reports, this aspect was raised as the first of the six contentions formulated for consideration of the Court.
Keeping the facts of the case in the background, three reasons were indicated in the judgment for the conclusion that quota covered permanent posts.
Reference was made to certain decisions of this Court as also.
to Rule 9 of the Probation Rules of 1959.
It was held that Rule 9 establishes the exclusion of temporary posts from the cadre.
Royappa 's case (supra) was relied upon for the same conclusion by saying that posts temporarily added to the cadre by exercise of power under a permissive rule would not become cadre posts and temporary 901 posts created due to exigencies of the service should be treated as posts outside the cadre.
The High Court in the judgment in Kadali 's case relied upon Note 2 of Rule 49 of the KCSR and thought that this Court was not properly in formed of the factual situation when in Badami 's case it said that temporary posts were not to be taken into consid eration for the purpose of working out the quota.
The note to Rule 49 has indeed no bearing on the point and we are of the view that there was really no justification for the doubt indicated by the High Court.
Apart from the fact that the conclusion of this Court in Badami 's case on this score is a binding authority on us, from an examination of the matter we also reiterate that conclusion to be correct.
FOURTH ASPECT The High Court in these cases has taken the view that the quota could be carried forward for a maximum period of three years and not beyond.
This has been done by placing reliance on the Constitution bench judgment of this Court in the case of Col. A.S. Iyer & Ors.
vs V. Balasubramanyam & Ors., ; Krishna Iyer, J. speaking for the Court at page 1058 of the Reports stated: "The total number of vacancies at the DSS level for each year shall be divided in the ratio of 2:1 (50% for the Army Corps and 25% for direct recruits).
The 50% reserved for the army corps shall be available to be filled by those candidates.
The 25% seats to be filled by direct recruits shall be filled only by such recruits.
Even if enough direct re cruits are not available they will not be filled by the army nominees but shah be kept vacant to be carried forward and filled in later years by such direct recruits.
A reason able period for the carry forward scheme will be three years, not more.
Likewise, military vacancies at the DSS level each year shall be filled only by such nominees.
If enough such hands are not available, a similar procedure of carry forward will govern.
For the SS posts 25% belongs to promotees from Class II offi cers.
The total number will be worked out by adding all the posts of SS, Deputy Directors and Directors and Surveyor General and allot ting 1/4th of it as the quota for Class II promotees for appointment as SS.
Such is the reasonable interpretation of the rule." The Court in that case had been called upon to decide the dispute of 902 seniority between the direct recruits and promotees within the civilian quota in the Survey of India service.
Survey of India (Recruitment) Corps of Engineer Officers, Rules, 1950 came for consideration of the Court.
The opinion expressed by this Court in the extracted paragraph was with reference to the rules before the Court.
The provisions as indicated in the extracted paragraph were somewhat peculiar.
After the quota was provided, there was a prohibition against filling up of the vacancies in the respective quotas from other categories even when suitable candidates were not available from within the reserved sphere.
This meant that the posts were allowed to go vacant even though in public interest the same should have been filled up on account of the bar in the rule.
It is in that background that this Court indicated that a reasonable period for the carry forward scheme would be three years and at the end of the paragraph indicated that that would be a reasonable interpretation of that rule.
Obviously nothing of general application was intended to be said and this Court did not certainly intend to lay down a time limit of general application.
The Mysore State Civil Service (General Recruitment) Rules, 1957 which admittedly applied to the services in question by Rule 17 provided: "Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post, the appointing authority may (a) recruit by direct recruitment to a post reserved to be filled by promotion when it is satisfied that the person eligible to be considered for appointment by promotion is not fit to be also appointed, or (b) fill up by promotion any vacancy relating to a post which is required to be filled by direct recruitment when such vacancy is not likely to last for more than one year . . . " In exercised of the powers conferred under this rule the appointments in excess of the quota limit appear to have been made.
It is conceded that every appointment to the promotional post made in excess of the quota was at the commencement a temporary one.
The 1957 Rules were substitut ed in 1977 by the Karnataka Civil Services (General Recruit ment) Rules, 1977.
As far as relevant Rule 17 thereof pro vides: "Notwithstanding anything contained in these rules or in 903 the rules of recruitment specially made in respect of any service or post, the appointing authority may (a). . . . . . . . . (b). . . . . . . . . (c) fill by promotion temporarily on the basis of senioritycum merit a vacancy required to be filled by direct recruitment where selection to the post has not been finally made and there is likelihood of delay in making direct recruitment.
No such promotion shall be made unless a requisition has been sent to the Commission or to the appropriate recruiting authority for selection of a suitable candi date.
A candidate temporarily promoted under this sub rule shall not have any preferential claim for regular promotion and also shall not count the period of service in the promoted post for seniority; he shall revert to his original post on the expiry of one year or on the appointment of a direct recruit whichever is earlier . . . . . " The scheme in the Rules of 1977 clearly indicates that the transgression of the quota rule was a deviation of a tempo rary nature and was intended to be balanced in good time.
The conclusion of Ray, C.J. is fortified by the spirit of Rule 17 of the 1957 Rules as clarified in clause (c) of that rule in 1977.
The presence of such a rule in the field excludes the application of the ratio of Col. Iyer 's case to the facts hereof.
We do not think the High Court was right in overlooking the binding judgment of this Court in Bada mi 's case and preferring to apply the observations of Iyer, J in the latter decision made with reference to a different set of rules containing a different scheme of implementing quota.
The rule on this aspect of Badami 's case was quoted with approval by a two Judge Bench of this Court in P.S. Mahal & Ors.
vs Union of India, ; A lot of argument was advanced at the Bar particularly on the side of the promotees that serious prejudice was being caused to them by enforcing the quota rule.
Reliance was placed on a number of authorities of this Court begin ning with the case of A. Janardhana vs Union of India & Ors., ; ; G.S. Lamba & Ors.
vs Union of India & Ors.
, ; ; G.P. Doval & Ors.
vs Chief Secre tary, Government of U.P. & Ors, [1985] 1 SCR70; O.P. Singla &Anr.
vs Union of India & Ors., ; and D.S. Nakara & Ors.
vs Union of India, ; 904 In Lamba 's case (supra) the Court found that the promo tion was not styled as temporary or ad hoc or stop gap; on the other hand, the Court at page 459 of the judgment in the Reports referred to the case of N.K. Chandan & Ors.
vs State of Gujarat, ; where on the basis of a power of relaxation the Court had held such promotion to be regu lar.
The Court further held: "Once the promotees were promoted regularly to substantive vacancies even if temporary unless there was a chance of their demotion to the lower cadre their continuous officiation confers on them an advantage of being senior to the later recruits under Rule 21(4).
If as stated earlier by the enormous departure or by the power to relax, the quota rule was not adhered to, the rota rule for inter se senior ity as prescribed in Section 25(1)(ii) cannot be given effect.
In the absence of any other valid principle of seniority it is well estab lished that the continuous officiation in the cadre grade of service will provide a valid principle of seniority. . . " This principle appears to have been followed in this Court in some cases during the last two years or so.
The excep tional circumstances indicated in Lamba 's case for support ing the departure in the judicial opinion has been over looked in some of these cases and the resultant benevolent approach to protect the promotees in their claim for senior ity has been accepted without considering the special cir cumstances in which the ratio had been inducted in support of the departure.
In a precedent bound judicial system binding authorities have got to be respected and the procedure for developing the law has to be one of evolution.
It is not necessary for disposal of these matters before us to go into that aspect except noticing the existence of distortion in the field.
The rationalisation of the view in a way known to law is perhaps to be attempted some day in future.
In the present batch of cases the law being clear and particularly the mandate in the rule being that when recruitment takes place the promotee has to make room for the direct recruit, every promotee in such a situation would not be entitled to claim any further benefit than the advantage of being in a promo tional post not due to him but yet filled by him in the absence of a direct recruit.
One aspect which we consider relevant to bear in mind is that the promoted officer has got the advantage of having been promoted before it became his due and is not being made to lose his 905 promotional position.
The dispute is confined to one of seniority only.
The advantage received by the promotee before his chance opened should be balanced against his forfeiture of claim to seniority.
If the matter is looked at from that angle there would be no scope for heartburning or at any rate dissatisfaction is expected to be reduced so far as the promotees are concerned.
LAST ASPECT In Karam Pal vs Union of India, ; a three Judge Bench of this Court to which one of us was a party indicated as follows: "In a vast country such as ours, strong and independent bureaucratic set up is indispens able.
At the same time it is equally necessary that the service from top to bottom must be alive to the fact that it is its obligation to maintain proper attitudes, discipline and duty oriented working.
While it is the right of every person in the service set up to expect just and fair treatment in regard to his employment frequent litigation between him and the State involving countless other co employees in the service in the battle is a deviation from the right direction.
It is true that very often instances come to light where the grievance is genuine and the treatment meted is unwarranted and uncalled for.
Govern ment in a democratic polity runs on impersonal basis but on the cadinal code that everyone shall perform his duty." This Court further observed, "There has been a phenomenal rise in service disputes in the last three decades.
It is time that serious attention is devoted to discover the reason for it and take effective steps to ensure curtailment thereof.
Whether such litigations come before Courts or Tribunals is of no consequence here.
Frequent litigations between the States and its employees ultimate ly affect the efficiency of service and bring about indiscipline, lack of loyalty and an attitude of indifference. ' ' We are struck by the innumerable rules that have been framed within a period of about thirty years to cover the field relating to constitution, 906 recruitment and provision for other conditions of service.
It is proper that service rules should be simple making reasonable provision for necessary aspects.
While framing such rules, the relevant provisions of the Constitution and laws in force have to be kept in view.
There should be no frequent alteration of the service rules through.
Exigencies of circumstances and unforeseen situations will certainly justify alterations.
Those will be indeed rare occasions.
Experience shows that legal battles are fought in court between government servants whether individual pitched against individual or group against group; this embitters relationship inter se and often results in a switch over of attention from public duty to personal cause.
Frequent litigations against the State or higher authorities in the hierarchies of administration, wipe out reverance, loyalty and the sense of discipline and substitute those by anger, disrespect and rancour.
In the process fellow feeling is lost, the sense of brotherhood vanishes.
The net resultant of all is deprivation of the efficiency of the bureaucratic community to serve the society.
The undue growth of service litigation within these four decades of independence clearly calls for these observations.
As and when, occasion has arisen the Court has sought to draw the attention of the State as the employer as also the Government servants to this aspect of the matter.
This has been done not with a view to subjecting any litigant to undue criticism but with the fond hope that it would help the problem to receive adequate attention.
We are surprised that the words spelt out in the different judgments have fallen on deaf ears and created no stir.
Thereby the most powerful wing in the administrative set up is gradually moving away from its designated path.
We have come across cases where officers have been in court litigating over service disputes for about twenty five to thirty years of their career which would mean almost three fourths of their service period.
What would be the contribution of such officers to the public service can well be imagined.
Very often a public officer is forced into litigation as he gets no justice in the hands of the superior.
There are also several instances where an officer drags the employer into litigation without a cause of action.
These are matters which must be taken into account without further loss of time and with fortitude so that the most effective wing of the administration does not further lose its serviceability.
A public servant whatever his status be is in the position of a trustee.
Social power vests in him for the purpose of rendering service to the community.
Every public servant has to be cognizant to that obligation.
Once the level of that consciousness grows up there is 907 bound to be a corresponding fail in the attitude to litigate over small issues.
What this Court said in the case of Dr. T.G. Siddapparadhya & Ors., has to be borne in mind.
These were the words then said: "The canker of litigiousness has spread even to a sphere of life where discipline should check ambition concerning personal preferment.
A teacher is justified in taking legal action when he feels that a stigma or punishment is undeserved but he is expected to bear with fortitude and reconcile himself to his lot suppressing disappointment when he finds a co worker raised to a position which he him self aspired after".
What applies to a teacher may perhaps well apply to everyone in positions of social trust.
It is for the privileged public servant as also his employer to share this philoso phy.
The net result of the discussion above requires that rule in Badami 's case has to be given full effect.
The appeals and writ petitions of the direct recruits have to succeed and those by the promotees have to fail.
We hope and trust that the State of Karnataka will not demote anyone who has been in a promotional post for several years to the Class II service as a consequence of this decision but the Gradation List has got to be adjusted to fit into the prin ciples indicated in the judgment.
No justification was shown to us as to why the State of Karnataka failed to comply with its obligation of making recruitments in terms of the quota.
Once the State frames rules they are binding on the State and like individuals the State has got to regulate its conduct in accordance with the rules nay, the State has to observe it all the more.
We hope and trust that the State of Karnataka in the years ahead will comply with the quota rule with regularity so that a litigation of this type may not arise again.
If any party has to be directed for payment of costs in this bunch of litigation it must be the State.
We, however, do not want to saddle the State with costs for two reasons firstly, we do not want the employees to have a feeling that in the fight their employer has been vanquished and secondly we entertain a fond hope that there will be no reoccurrence.
In course of arguments we had suggested to learned counsel for the parties to furnish recast Gradation List on the basis of claims advanced before us (1) showing how it would be when full claim of the promotees is granted and (2) how different it would look when the 908 total claim of the direct recruits is allowed.
Such charts have been prepared and furnished and we find that the proc ess of pushing up and down would be inevitable but would be within reasonable limits and no irreparable prejudice was apparent.
The appeals and writ petitions of the direct recruits are allowed, and the appeals by the promotees are dismissed.
There shall be no order for costs throughout.
S.L. Appeals and Petitions dis posed of.

dataset_name: IN-Abs

summary/full:
Under the relevant Recruitment Rules relating to Class I junior scale posts, there was a quota system two thirds of the vacancies had to be filled up by promotion by selection from Class II officers and the remaining one third by direct recruitment by competitive examination to be held by Public Service Commission.
When direct recruitment was not made timely as envisaged by the scheme in the Rules, officiating promotions were given in respect of the posts covered by the direct recruit quota.
Such temporary promotions remained effective for a number of years and later when the vacancies within the direct recruitment quota were filled up, the appointments made in the later years were deemed to carry weightage for seniority on the footing of deemed filling up when the vacancies had arisen.
Thus, the dispute as to seniority inter se between those who had manned the promotional posts beyond 2/3rds limit and the direct recruits subsequently appointed, arose for judicial determination.
This Court in V.P. Badami, etc.
vs State of Mysore and Ors., had dealt with a similar situation with reference to the same set of rules, and with a view to implementing the rule of this Court in Badami 's case, the State government had issued an official memorandum on 5.7.75, laying down guide lines for determination of the seniority between the direct recruits and promotees, and accordingly, gradation list of the junior scale officers as on 30.6.73 was drawn up, and notified on 10.8.75.
By a later notification dated 2.2.77, a further gradation list was published.
Then, on a representa tion by the 1974 batch of direct recruits for refixation of inter se seniority in the gradation list taking into account the carried forward vacancies, the State Government made an order on 22.5.80 to the effect that the 1974 batch of direct recruits should be shown immediately below serial number 64 and above serial number 65 in the continuation gradation list published on 2.2.77.
886 Aggrieved by this government direction, some promotees moved the High Court under Article 226 of the Constitution for protection of their seniority, and aggrieved by the decision of the High Court, both, the direct recruits and promotees moved this Court for relief by appeals by special leave and writ petitions.
The promotees challenged the propriety of the direction of the High Court to modify the gradation list by applying the quota rule, while the direct recruits sought to have full application of the quota rule instead of the limitation of three years, and the consequen tial benefits.
Allowing the appeals and the writ petitions of the direct recruits and dismissing the appeals by the promotees, the Court, HELD: The rule of this court in V.P. Badami, etc.
vs State of Mysore and others, has to be given full effect.
The appeals and writ petitions of the direct recruits have to succeed and those by the promotees have to fail.
The Court hopes the State of Karnataka will not demote anyone who has been in a promotional post for several years in the Class II service as a consequence of this decision, but the gradation list has got to be adjusted to fit into the principles indicated in the judgment.
No justification was shown as to why the State of Karnataka failed to comply with its obligation of making recruitments in accordance with the quota system.
Once the State frames rules, the rules are binding on the State, and like individuals, the State has got to resulate its conduct in accordance with the rules; in fact, the State has to observe them all the more.
The Court hopes that the State of Karnataka in the years ahead will comply with the quota rule with regularity so that a litigation of this type may not arise again.
[907D F] Upon a suggestion of the Court, counsel for the parties filed charts, containing recast gradation list on the basis of the claims advanced before the Court showing (1) how it would be when the full claim of the promotees was granted and (2) how different it would look when the total claim of the direct recruits was allowed, and the Court notices that the process of pushing up and down would be inevitable, but would be within reasonable limits and no irreparable preju dice was apparent.
[907H; 908A B] OBSERVATION: The Court was struck by the innumerable rules framed within a period of about thirty years to cover the field relating to constitution, recruitment and provi sion for other conditions of service.
It is proper that service rules should be simple, making 887 reasonable provision for necessary aspects.
While framing such rules, the relevant provisions of the Constitution and the laws in force hove to be kept in view.
There should be no frequent alteration of the service rules.
Exigencies of circumstances and unforeseen situations will certainly justify alterations.
Those would be indeed rare occations.
[905H; 906A B] Experience shows that legal battles are fought in court between Government servants whether an individual pitched against an individual or a group against a group; this embitters relationship inter se and often results in a switch over of attention from public duty to personal cause.
Frequent litigations against the State or the higher author ities in the hierarchies of administration wipe out rever ence, loyalty and the sense of discipline, and substitute these by anger, disrespect and ram:our.
In the process, fellow feeling is lost and the sense of brotherhood vanish es.
The net result of all this is the deprivation of the efficiency of the bureaucratic community to serve the socie ty.
The undue growth of service litigation within the four decades of independence clearly calls for these observa tions.
As and when the occasion has arisen, the Court has sought to draw the attention of the State as the ' employer as also the government servants to this aspect of the mat ter.
This has been done not with a view to subjecting any litigant to undue criticism but with the fond hope that it would help the problem to receive adequate attention.
The Court is surprised that the words spelt out in the different judgments have fallen on deaf ears.
Thereby the most power ful wing in the administrative set up is gradually moving away from its designated path.
There have been cases where officers have been in court, litigating over service dis putes for about twenty five to thirty years of their career, which would mean almost three fourth of their service peri od.
What would be the contribution of such officers to the public service, can be well imagined.
Very often a public officer is forced into litigation as he gets no justice from his superior.
There are also several instances where an officer drags the employee into litigation without a cause of action.
These are matters which must be taken into ac count without further loss of time and with fortitude so that the most effective wing of the administration does not further lose its service ability.
[906B G] A public servant is in the position of a trustee.
Social power vests in him for rendering service to the community.
Every public servant has to be cognizant to that obligation.
Once the level of that consciousness grows up, there is bound to be a corresponding fail in the attitude 888 to litigate over small issues.
It is for the privileged public servant as also his employer to share this philoso phy.
[906H; 907C] V.P. Badami, etc.
vs State of Mysore & Ors.
, ; M.G. Kadali vs State of Karnataka & Ors., [1982] 2 K.L.J. 453; N.C. Sharma vs Municipal Corporation of Delhi & Ors., ; ; S.G. Jaisinghani vs Union of India & Ors., ; ; Bishan Sarup 's case, ; Bachan Singh & Anr.
vs Union of India & Ors.
, ; Sabraman 's case, ; Col. A.S. Iyer & Ors.
vs V. Balasubramanyam & Ors., ; ; P.S. Sahal & Ors.
vs Union of India, ; ; A. Janardhana vs Union of India & Ors., ; ; S.S. Lamba and Ors.
vs Union of India and Ors.
, ; ; G.P. Doval and Ors.
vs Chief Secretary, Government of UP and Ors., ; O.P. Singla and Anr., etc.
vs Union of India and Ors.
, ; ; D.S. Nakara and Ors.
vs Union of India, ; ; N.K. Chandan & Ors.
vs State of Gujarat, ; ; Karam Pal vs Union of India; , and Dr. T.C. Siddapparadhya