judgement:
Civil Appeal No. 1196 of 1986 with 830 of 1991.
From the Judgment and Order dated 19.4.1985 of the Calcutta 519 High Court in F.M.A.T.Nos.
153 of 1980 and 326 of 1983.
N.S. Hegde, Additional Solicitor General, Tapas Ray, D.K. Sinha, J.R.Das and D.N. Mukherjee for the Appellants.
P.P. Rao, A.K. Ganguli, Ajit Chakraborty, A. Mariarputham.
Mridula Ray, A. D. Sikri and B.B. Tawakley for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The West Bengal Services (Revision of Pay and allowance) Rules, 1970, (hereinafter referred to as 1970 Rules), issued in exercise of the power conferred by the proviso to Article 309 of the Constitution of India, vide Notification No. 5212.F dated 30th December, 1970 on the basis of the Pay Commission Report specified the revised scales of pay of the government employees in various departments with effect from 1st April, 1970.
Schedule I of the 1970 Rules relates to services generally.
The Government of West Bengal issued Notification No. 10303.F dated 19th November, 1974, amending the 1970 Rules.
The Notification material for the purpose of these cases is set out below: "NOTIFICATION No. 10303.F, Dated the 19th November, 1974.
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor is pleased to direct that the following amendment shall be made in the West Bengal Services (Revision of Pay and Allowance) Rules, 1970, Published with Finance Department Notification No. 5212,F, dated the 30th December.
1970, as amended from time to time, namely: AMENDMENTS In Schedule I, Part B, to the said rules, the following amendments shall be made: 1.
In the cadre of Assistant Engineers under different Departments, the Intermediate Selection Grade shall be at 15 per cent of the Cadre in the scale as shown in Column (3) of the Schedule.
520 II.
In departments/offices having services/posts as shown in Column (i) in the scale as shown in Column (2) of the Schedule, there shall be no Intermediate or New Selection Grade as the case may be at 10 per cent of the services/posts (except in the cadre of Assistant Engineer) in the scale as shown in Column (3) of the Schedule.
From 1st August 1974, the New/Intermediate Selection Grade shall be raised to 15 per cent, from 10 per cent.
(i) Sub Assistant Engineers having Engineering Degree shall have an initial start in the existing scale of Rs.300 600 at the stage of Rs.360 per month.
They will also get the benefit of age relaxation for direct recruitment either through the Public Service Commission or for ad hoc appointments.
(ii) All Test Relief Overseers and other diploma holder Engineers will henceforth be termed as Sub Assistant Engineers.
(iii) Sub Assistant Engineers with L.E.E. who have supervisor 's licence from the Commerce and Industries Department will get a qualification pay of Rs.50 per month.
(iv) Gazetted status is hereby conferred on the members of the Subordinate Engineering Service and all Sub Assistant Engineers.
The existing scale, namely Rs.375 10 415 15 610 20 650 prescribed for the members of the non gazetted Health Service having M.B.B.S., or M.M.F. qualifications shall be changed to Rs. 375 10 415 15 610 20 650 (E.B. after 8th and 18th stages) higher initial start at Rs.450.
All Licentiate Medical Officers in the West Bengal Health Service (Non Gazetted) who have completed 10 years of service shall be eligible for appointment in the West Bengal Health Service (Gazetted) within the existing cadre strength of the basic grade provided they are found suitable for the basic grade in consultation with the Public Service Commission.
521 VII.
The New or Intermediate Selection Grades sanctioned above shall be admissible after 10 years of service in the grade next below.
Unless otherwise stated above and in the Schedule; these amendments shall be deemed to have come into effect from 1st day of March, 1974.
The Notifications bearing No. 2194.F, 2195.F and 2197, dated the 11th March, 1974, stand cancelled.
No prior consultations with the Public Service Commission shall be necessary for making appointments to New/Intermediate Selection Grades sanctioned in this Notification." The said Notification contained a Schedule.
The relevant items dealing with Engineering is provided as follows: SCHEDULE _______________________________________________________________ Service/ Existing scale New/Intermediate Posts Rs. Selection Grade Rs. ________________________________________________________________ 1.
Engineering Services/Posts.
i) Assistant 475 30 685 35 1000 825 50 875 60 1415.
Engineer 50 1150, with selec tion grade for 5 per cent of the cadre on 1150 50 1350.
ii) Executive 825 50 875 1535 60 1775.
Engineer 60 1475.
iii) Sub Assistant 300 10 430 15 600 560 20 700 25 Engineer with higher initial 825(a).
start at Rs. 330/ .
____________________________________________________________ The respondents in Civil Appeal No. 1196 of 1986 and the respondents in the other Civil Appeal arising out of S.L.P. (Civil) No. 5298 of 1987 are diploma holder engineers employed in various 522 departments of the Government of West Bengal in the post of Operator cum Mechanics/Electricians etc.
in the scale of pay of Rs.230 425.
These respondents filed two writ petitions bearing No. C.R. Nos. 6053 (W) of 1978 and C.R. No.6593(W) of 1978 before the High Court of Calcutta, claiming that by virtue of sub para (ii) of Para IV of the Notification No. 10303.F dated 19th November, 1974, the writ petitioners who are diploma holders in engineering are to be termed as Sub Assistant Engineers and given the benefit of that post and the scale of pay of Rs.300 600.
They contended inter alia that the benefit of the aforesaid Notification was given to similarly situated persons in the other deparptments of the Government of West Bengal and the writ petitioners employed in the Agriculture Department had been subjected to discriminatory treatment.
The State Government contended before the High Court that sub para (ii) of Para IV of the said Notification applies only to the Overseers, Estimators and Sub Overseers already holding the scale of pay of Rs.300 600 and not to Operator cum Mechanics/Electricians etc.like the writ petitioners whose scale of pay is Rs.230 425.
According to the State, the said Notification was merely one changing the designation of various techniques and engineers having scale of pay of Rs.300 600 but having different designations and was meant to give uniformity of designation to all the aforesaid officials in the same scale of pay of Rs.300 600.
It was also the contention of the State that they being Operator cum Mechanics whose recruitment qualifications is much less than the the diploma in engineerings, the writ petitioners cannot or are not entitled to be redesignated as Sub Assistant Engineers.
These contentions were repelled by the learned single Judge who by judgment dated 19th September, 1979, allowed the writ petitions.
In the Judgment, Sabyasachi Mukharji, J., (as he then was) held as under: "Now it is important to emphasise that the said Notifications covered `other diploma holder Engineers '.
Now, if those who were engineers or those for whose recruitments qualification of being engineers was essential there was no necessity to indicate that they should be henceforth be termed as Sub Assistant Engineers.
They are Engineers, Sub Assistant or otherwise, before they were called by the deeming provision of the amended Notifications referred to hereinbefore.
" In construing sub para (ii) of Para IV of the said Notification, the learned Judge said thus: 523 "The aforesaid clause in the Notifications can only mean, in my opinion, that even though the persons who come within the purview of this amended clause of the Notification will for the limited purpose of their pay, allowances and other financial emoluments be termed from the date of coming into operation or from the mentioned in the Notification of 1974 that is to say from 1st of March, 1974 as Sub Assistant Engineers though they are, in fact, not engineers.
That in my opinion, is clear from the language used.
" The learned single Judge noticed that the history preceding the Notification supported the clear language used and persons holding different positions became by virtue of the Notification entitled to be termed as Sub Assistant Engineers irrespective and independent of whether by fortuitous circumstances some of the incumbents who got the benefits of the said Notification are also qualified engineers.
Accordingly, it was held that the writ petitioners come within the purview of the Notification for purpose of the the pay scale and the rule was made absolute.
The State Government carried the matter in appeal.
The Division Bench of the High Court vide judgment and order dated 19.4.1985, however, affirmed the judgment while holding that sub para (ii) of Para IV of the Notification dated 19.11.1974 cannot be construed to include the Operator cum Mechanics/Electricians who are holders of diploma in engineering and drawing the scale of pay of Rs. 230 425.
The appeal was dismissed with the observation that the writ petitioners should have been admitted to the benefit of the scale of pay of Rs.300 600 with higher initial start long before others holding the same position as the writ petitioners have been granted the benefits and that great injustice had been done to the writ petitioners by keeping them in the panel since 1974 without taking any steps for their appointments to the post of Sub Assistant Engineers although others have been appointed to the said post in implementation of the impugned Notification.
Being aggrieved by the appellate judgment, the State has moved this Court under Article 136 of Constitution.
Leave is granted in S.L.P.(C) No. 5298 of 1987.
The main contention urged on behalf of the appellants is two fold.
It is contended that the Division Bench having come to the 524 specific conclusion that the Notification in question is not applicable to the respsondents herein, the writ petitions ought to have been dismissed.
The further contention is that the appointment of 17 other persons without considering the case of the respondents even if irregular cannot be the basis for making the Notification applicable to the respondents.
Before considering these propositions put forward by Mr. Hegde, Addl.
Solicitor General, appearing for the appellants, we shall dispose of the preliminary objection raised by Mr. P.P. Rao, counsel for the respondents.
It was pointed out that no appeal has been preferred by the State of West Bengal against the judgment dated 25.6.1982 in the case of Ranjit Kumar Ghosh & Ors.
vs The State of West Bengal & Ors., being C.R. No. 923 (W) of 1980, granting similar relief and that the rule of law has become final so far as that matter is concerned.
Relying on the decision of this Court in Chief Secretary to Govt.
A.P. vs Cornelius, ; , it was argued that the State cannot agitate the case of only few others.
It is not disputed that the judgment against which no appeal has been preferred is only based on the judgment in the main case which is now pending before us for consideration.
The Court in State of Punjab vs Joginder Singh, [1963] Supp.2 SCR 169, where a similar objection was raised overruled the same observing at page 177 thus: "In our opinion, the true position arising, if the present appeal by the State Government should succeed, would be that the finality of the orders passed in the other three writ petitions by the Punjab High Court would not be disturbed and that those three successful petitioners would be entitled to retain the advantages which they had secured by the decision in their favour not being challenged by an appeal being filed.
That however would not help the present respondent who would be bound by our judgment in this appeal and besides, so far as the general law is concerned as applicable to everyone other than the three writ petitioners (who would be entitled to the benefit of decisions in their favours having attained finality), the law will be as laid down by this Court.
We therefore overrule the preliminary objection.
" It appears that this pronouncement was not noticed in Cornelius case (supra) where the facts were also not identical.
We have, therefore, no hesitation in overruling the preliminary objection.
525 The appellants, in our opinion, cannot however, succeed on the merits.
The basis of the respondents ' claim is that they are diploma holder engineers who are to be designated as Sub Assistant Engineers for the purpose of the revised pay scale by virtue of the Notification dated 19th November, 1974.
The learned single Judge had construed the expression 'other diploma holder engineers ' in clause (ii) of Para IV of the said Notification as covering persons like the respondents who are holders of diploma in engineering.
The Division Bench in holding a contrary view overlooked the fact that the posts of Overseers, Estimators and Sub Overseers were already covered under the category of Sub Assistant Engineers even under the unamended rules and were in the pay scale of Rs.300 600 whereas the respondents holding the post of Operator cum Mechanics/Electricians were diploma holder engineers in the scale of pay of Rs.230 425.
As noticed by the learned single Judge, the reasons for amending the 1970 Rules by the Notifications dated 11.3.1974 and 19.11.1974 was the decision of the Government to remove the anomalies in the existing rule so as to attract men of quality and also with a view to remove frustration among those having specialised knowledge of a technical nature.
This factual background was not considered by the Division Bench while considering the scope of the amended provisions.
The appellants admitted that in 1970 the pay scale of Overseers and Sub Overseers was revised and both Overseers and Sub Overseers were brought within the scale of Rs.300 600.
The Division Bench has recorded a finding to the effect that the Overseers.
Estimators and Sub Overseers were already included in the categories of Sub Assistant Engineers under Schedule I Part B of the 1970 Rules even before the same was amended by the Notification.
The persons brought under the category of 'other diploma holder engineers ' can only be the persons like the Operator cum Mechanic/Electrician with diploma in engineering and working in various departments in the Engineering Service.
It is to be noticed that the respondents have been absorbed in the posts of Operator cum Mechanics after having attended to the training sponsored under the scheme 'Training of Educated Unemployed Youths ' in the operation of river lift, deep tubewells and shallow tubewells etc.
Clause (iv) of Part IV of the Notification which states that Gazetted status is conferred on the members of the Subordinate Engineering Services and all Sub Assistant Engineers also relates to these two categories, that is, the Overseers, Sub Overseers and Estimators who are already members of the Subordinate Engineering Service and the 'other diploma holder engineers ' now termed as Sub Assistant Engineers.
526 It has been contended for the appellants that by construing the Notification as including Operators cum Mechanics in the lower time scale as Sub Assistant Engineers and giving them a higher scale, there would be a division amongst the Operators cum Mechanics in the matter of their pay scale and such an anomly would not have been contemplated by the rule makers.
There is no force in this contention.
It is well settled that difference in pay of employees belonging to the same cadre post or educational qualification is constitutionally valid and permissible and is not violative of Articles 14 and 16 of the Constitution.
The post of Sub Assistant Engineer is a direct recruitment post.
It appears that the Division Bench assumed that the post of Sub Assistant Engineers were ultimately a promotional post for the Operators cum Mechanics through intermediary promotions in intermediary grades.
This is incorrect.
Under the Rules, the post of Sub Assistant Engineers is not at all a promotional post for any categories of employees in the State, on the contrary, it is a direct recruitment post.
It is not contested that 17 other employees similarly placed as the respondents herein were given the benefits of the said amended Notifications and were conferred both status of Sub Assistant Engineers and also the pay scale thereof for the reason that they were also diploma holder engineers though they were not in the pay scale of Rs.300 600.
This is a concurrent finding that these respondents have been discriminated and the State Government had acted arbitrarily without any rational basis by conferring benefits of the Notification to 17 other employees in other departments while denying the said benefits to the said respondents in the Agriculture Department.
It has been brought to the notice of the Court that the Operators cum Mechanics would be absorbed in the existing vacancies in the category of Sub Assistant Engineers since injustice had been done to the respondents by keeping them in the panel since 1974 without taking any steps for their appointments as Sub Assistant Engineers along with others when such appointments were made and the assurance made before the Court.
The fact that in implementation of the judgment of the learned single Judge, the respondents have already been admitted to the benefits of the amended Rule, is an additional reason for this Court not to interfere with the impugned judgment.
We are, therefore, of the view that both the civil appeals have only to be dismissed.
We do so accordingly.
The parties are directed to bear their respective costs.
Y.L. Appeals dismissed.

summary/full:
The respondents in these appeals are diploma holder engineers employed in the various departments of the Government of West Bengal as Operator cum mechanics/Electricians etc.
in the pay scale of Rs.230 425.
Consequent upon the amendment of West Bengal Services (Revision of Pay and Allowances) Rules, 1970 the respondents filed writ petitions before the High Court claiming that by virtue of sub para (ii) of Para IV of the Notification dated 19.11.74 they are to be termed as Sub Assistant Engineers and given the benefit of that post and scale of pay of Rs.300 600, as they are diploma holders in engineers.
It was asserted by them that the benefit of the said Notification had been given to similarly situated persons in the other department of the State Government but they had been subjected to discriminatory treatment by denying to them those benefits.
The State Government contended before the High Court that sub para (ii) Para IV of the notification applied only to Overseers, Estimators and Sub Overseers already working in the pay scale of Rs.300 600 and not to Operator cum Mechanics/Electricians etc.
whose scale of pay was Rs.230 425.
According to the State, the said Notification was intended merely to change the designation of various technicians and engineers having identical scale of pay Rs.300 600 to secure uniformity of designation of those employees and since the recruitment qualification of the respondents was much less than the diploma in engineering, they were not entitled to be redesignated as Sub Assistant Engineers.
The learned single Judge of the High Court allowed the writ petitions holding that the case of the respondents fell within the purview of the November 1974 notification and they were entitled to be termed as Sub Assistant Engineers.
The State Government preferred an appeal against the said order before the Division Bench.
The Division Bench of the High Court, though held that sub para (ii) of para IV of the Notification dated 19.11.1974 could not be 518 construed to include the Operator cum Mechanics/Electricians, who were drawing the pay scale of Rs.230 425, dismissed the appeals with the observation that the respondents/writ petitioners should have been admitted to the benefit of the pay scale of Rs.300 600 long before others holding the same position as the writ petitioners had been granted the benefits.
The State Government has now filed these appeals after obtaining special leave.
Dismissing the appeals, this Court, HELD: The reasons for amending the 1970 Rules by the Notifications dated 11.3.1974 and 19.11.1974 was the decision of the Government to remove the anomalies in the existing rule so as to attract men of quality and also with a view to remove frustration among those having specialised knowledge of a technical nature.[525C D] The persons brought under the category of `other diploma holder engineers ' can only be the persons like the Operator Cum Mechanic/Electrician with diploma in engineering and working in various departments in the Engineering Service.
[525F] Clause (iv) of Para IV of the Notification which states that Gazetted status is conferred on the members of the Subordinate Engineering Services and all sub Assistant Engineers also relates to these two categories, that is, the Overseers, Sub Overseers and Estimators who are already members of the Subordinate Engineering Service and the `other diploma holder engineers ' now termed as Sub Assistant Engineering.
[525G H] There is a concurrent finding that these respondents have been discriminated and the State Government had acted arbitrarily without any rational basis by conferring benefits of the Notification to 17 other employees in other departments while denying the said benefits to the said respondents in the Agriculture Department.[526E] Chief Secretary to Government of A.P. vs Cornelius, ; ; State of Punjab vs Joginder Singh, [1963] Supp.2 SCR 169, referred to.


judgement:
Civil Appeal No. 4 of 1977.
From the Judgment and Order dated 3/4.3.1975 of the Calcutta High Court in Appeal No. 156 of 1974.
G.L. Sanghi, Dhruv Mehta, Aman Vachhar and S.K. Mehta for the Appellants.
Tapas Ray and G.S. Chatterjee for the Respondents.
Harish N. Salve, Lalit Bhasin, Ms. Nina Gupta, Vibhu Bhakru, Pranab Mullick and Vineet Kumar for the intervener.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by certificate is from the Judgment of the Calcutta High Court dated 4.3.1975 passed in appeal No. 156 of 1974.
The appellants in partnership have been carrying on business of restaurants under the name and style of Trinca 's at No. 17B, Park Street Calcutta, providing food and drinks (alcohol and non alcohol) to the customers under valid licences.
Sometimes musical performences are also arranged.
The restaurants are provided with air conditioning plant.
Under the West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972 as amended by the Act of 1974, hereinafter referred to as 'the Act, the respondents by their Memo No. 4942/A.T. dated 9.12.1972 called upon the appellants to make ad hoc payment of luxury tax calculated at Rs.2,40,000.00.
The President of the Hotelers ' Association made a representation against this illegal tax which was turned down by the respondents, and thereafter the appellants challenged the validity of this action in the Calcutta High Court by filing Writ Petition No. 358 of 1973 on 16.5.1973.
The appelants contended, inter alia before the High Court that the levy was unreasonable restriction on carrying the business; that the levy was unreasonable restriction on carrying the business; the Act was not meaningful and purposeful; the rules were confiscatory in nature; and the mode of the Act.
The learned Single Judge of the High Court dismissed the writ petition relying on the Judgment passed on 6.3.1974 in Writ Petition No. 338 of 1973 wherefrom Civil Appeal No. 406 of 1976 was filed in this Court.
467 From the above order of the learned Single Judge, the appellants filed Appeal No. 156 of 1974 on 26.6.1974 before the Division Bench of the Calcutta High Court contending that the legislature cannot enlarge the scope of Entry 62 and seek to impose a tax on expenditure incurred by a customer on services rendered to him including food and drinks.
The High Court held that section 2(b) defined entertainment tax but section 2(c) defined entertainment tax and under the Act entertainment tax meant tax payable under section 3 of the Act.
A clear distinction had been made between entertainment and entertainment tax and in this case the High Court was concerned only with entertainment tax as defined in section 2(C).
The second submission before the High Court was whether the State legislature had the competence to impose entertainment tax payable under section 3 of the Act and the High Court held that section 3 was a valid piece of legislation.
The argument of the appellants was that tax imposed by section 3 was discriminatory and it violated article 14 of the Constitution.
The High Court held that the differentia made in section 3 had a rational relation to the object sought to be achieved by the statute.
The last submission was whether the persons enjoying the same facilities had been treated differently as the section had imposed a maximum tax of 15% on amount paid or payable by the customer.
The High Court held that since a distinction had to be maintained between section 2(b) and section 2(c), the learned counsel 's argument on discrimination could not be acceded to.
The appeal was accordingly dismissed, but certificate of fitness to appeal was granted.
The contentions raised in this appeal are the same as were raised in Civil Appeal No. 406 of 1976 whcih has just been dismissed.
In East India Hotels Ltd. vs State of West Bengal, AIR 1990 SC 2029 this Court held that whatever has been said by this Court in relation to section 4 of the Act will be equally applicable to section 3 of the Act.
Consequently, for the above reason and for the reasons stated in our Judgment in Civil Appeal No. 406 of 1976, we dismiss this appeal also with costs quantified at Rs.5,000 (Rupees five thousand).
G.N. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Under the West Bengal Entertainments and Luxuries (Hotels and Restaurents) Tax Act, 1972 as amended in 1974, the appellants were called upon to make ad hoc payment of luxury tax calculated at Rs.2,40,000.
A representation from the Hotel Association to the Respondents having being turned down, the appellants filed Writ Petition before the High Court, challenging the constitutional validity of the Act.
The Writ Petition was dismissed by a Single Judge.
On appeal, the Division Bench declined to interfere holding that there was no dicrimination, and thus there was no violation of Article 14 of the Constitution.
Aggrieved, the appellants preferred the present appeal.
Dismissing the appeal, this Court, HELD: 1.
The Luxury Tax charged under Section 4 of the West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972, is not discriminatory and is constitutionally valid for the reasons stated in the judgment of this Court in a similar matter wherein the same contentions were urged.
[467E F] M/s. Spences Hotel Pvt. Ltd. & Anr.
vs State of West Bengal and Ors., [1991] 1 SCR applied.
Whatever has been stated by this Court in relation to Section 4 of the Act would be equally applicable to Section 3 of the Act.
[467F] East India Hotels Ltd. vs State of West Bengal, AIR 1990 SC 2029, relied on.


judgement:
ivil Appeal No.2327 of 1977.
From the Judgment and Order dated 23.5 1975 of the Allahabad High Court in First Appeal No. 302 of 1966.
K.C. Jain and H.K. Puri for the Appellants.
A.P.S. Chauhan, Roopendra Singh and A.S. Pundir for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by special leave is directed against the common judgment and order of the Division Bench of the Allahabad High Court dated May 23, 1975.
The appellant herein (since deceased and represented by Legal 391 Representatives) was the owner of 48613 sq. yards of land in village Ghatwasan, Teh.
Sadar, Dist.
The same was acquired by the Agra Town Improvement Trust under the provisions of the U.P. Town Improvement Act, 1919.
Notification under section 36(2) of the aforesaid Act.
which is analogous to section 4 of the Land Acquisition Act, 1894 was issued on 29 7 1950 and the acquisition proceedings culminated by an award of the Land Acquisition Collector, followed by taking possession of the land from the appellant on 11 3 1953.
For the land acquired, the appellant was paid a partly sum of Rs. 1344 2 annas &, 6 paise as compensation.
No solatium was awarded as none was awardable under the U.P. Town Improvement Act, 1919.
Feeling dissatisfied the appellant sought a reference under section 18 of the Land Acquisition Act before the Nagar Mahapalika Tribunal, a creature of the U.P. Town Improvement Act, 1919.
The appellant asserted before the Tribunal that he should have been allowed a rate of Rs.8 per sq. yard for the acquired land.
The Tribunal partly accepted the claim of the appellant by its order dated 5 11 1965 raising compensation to the rate of Rs.3 per sq. yard and thus held the appellant entitled to a total sum of Rs. 1,45,889 inclusive of the sum of about Rs. 1344 already received by him.
The Tribunal also awarded interest on the amount due at the rate of 4 1/2 percent per annum with effect from 11 3 1953, the date of taking possession of the land till its payment.
Still dissatisfied, the appellant moved the High Court of Allahabad in appeal; a forum provided under the U.P. Town Improvement (Appeals) Act, 1920, but on grounds analogous to section 100 CPC.
Correspondingly the Nagar Mahapalika also filed a cross appeal against enhancement.
The Tribunal disposed of both the appeals by a common judgment.
The appellant was awarded enhanced compensation at the rate of Rs.4 per sq. yard.
Consequently an additional sum of Rs.48613 was held due to him.
The High Court also changed the rate Of interest from 4 1/2 percent per annum to 6 percent per annum, correcting the error committed by the Tribunal.
The claim of the appellant to solatium at the rate of 15 per cent on the sum awarded uptill the Tribunal 's level was rejected as the appellant had not claimed the same before the Tribunal and had not made a grouse thereof in his memorandum of appeal before the High Court.
So on the sum of Rs. 1,45,839 assessed as market value by the Tribunal, no Solatium was awarded.
On the amount of Rs.48,613 enhanced by the High Court, solatium at the rate of 15 per cent was awarded by the High Court, and interest thereon was also awarded from 11 3 1953.
392 the date of taking possession till its payment.
The appeal of the Nagar Mahapalika was dismissed.
The appellant alone who is before us has challenged the common judgment of the High Court.
No dispute herein has been raised to any further increase in the market value of the land.
The claim vehemently put forth is with regard to the solatium of 15 per cent on the market value of the land and which claim, partly has been negatived by the High Court.
It is not disputed that if the claim is valid, the rate of solatium would be 15 percent of the market value.
Though a faint attempt was made to raise claim to solatium at the rate of 30 per cent and interest to 9 per cent per annum in terms of the amendments made in the Land Acquisition Act, 1894 by means of Act No. 68 of 1984, but such claim was abandoned in the next breath.
So we are thus concerned only to the claim of solatium which has been declined by the High Court.
Section 23(2) of Land Acquisition Act, as it then was, provided that in addition to the market value of the land, as provided in sub section (1) of section 23, the court shall in every case award a sum of rupees fifteen per centum on such market value in consideration of the compulsory nature of acquisition.
Solatium, as the word goes, is "money comfort", quantified by the statute, and given as a conciliatory measure for the compulsory acquisition of the land of the citizen, by a welfare state such as ours.
The concern for such a citizen was voiced by the Law Commission of India in its Report submitted in 1957 on the Need for Reform in the Land Acquisition by observing as follows: "We are not also in favour of omitting Section 23(2) so as to exclude solatium of 15% for the compulsory nature of the acquisition.
It is not enough for a person to get the market value of the land as compensation in order to place himself in a position similar to that which he could have occupied had there been no acquisition; he may have to spend a considerable further amount for putting himself in the same position as before. .
As pointed out by Fitzgerald the community has no right to enrich itself by deliberately taking away the property of any of its members in such circumstances without providing adequate compensation for it.
This principle has been in force in India ever since the Act of 1870.
The Select Committee which examined the Bill of 1883 did not think it necessary to omit the provision but on the other hand transferred it to Section 23.
" 393 The importance of the award Of solatium cannot be undermined by any procedural blockades.
It follows automatically the market value of the land acquired, as a shadow would to a man.
It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired.
It follows as a matter of course without any impediment.
That it falls to be awarded by the Court "in every case" leaves no discretion with the court in not awarding it in some cases and awarding in others.
Since the award of solatium is in consideration of the compulsory nature of acquisition, it is a hanging mandate for the court to award and supply the omission at any stage where the Court gets occasion to amend or rectify.
This is the spirit of the provision, wherever made.
It is pertinent to note here that the claim of the appellant to solatium was not entertainable before the Land Acquisition Collector, taking proceedings of the acquisition under the U.P. Town Improvement Act in the absence of a provision allowing it.
Rather the amendments and modifications set out in the schedule attached to the U.P.Town Improvement Act made read that way.
The payment of solatium as awardable under section 23(2) of the Land Acquisition Act was specifically not made applicable to the land acquired under the U.P. Town Improvement Act.
Such amendment to the schedule, however, being violative of Article 14 of the Constitution was struck down by this Court on 14 12 1973 in Om Prakash & Another vs State of U.P. and Others vs State of U.P. and Others, This Court took the view that if the government could acquire land for a Mahapalika or other local body by resort either to the Land Acquisition Act or the U.P. Town Improvement Act, it would in the former case have to pay solatium and in the latter case not at all and which would lead to discrimination, and consequently granted relief of solatium to the land owner whose land was acquired.
On the law laid down by this Court, the High Court rightly took the view that since the amendments made to the schedule to the Town Improvement Act had gone out of the way of the appellant, the compensation due to him would have to be assessed in accordance with the provisions of section 23 of the Land Acquisition Act.
Holding so, the High Court awarded solatium on the amount enhanced by it and for that part rightly.
The denial of the solatium to the appellant on the sum awarded by the Tribunal is based on the reasoning that firstly the Collector had not awarded solatium and the appellant while taking the matter to the Tribunal had not raised such claim.
Secondly after the order of the Tribunal the appellant when taking the matter to the High Court in 394 appeal, had not made a grouse and laid claim to it in his grounds of appeal.
The High Court, it appears was even then prepared to grant solatium to the appellant and offered the appellant to seek amendment of the grounds of appeal but the appellant declined to do so asserting that his claim to solatium was not based on any demand at his instance but was rather a statutory duty of the Court to grant it, as otherwise, the mandate of section 23(2) would fail.
The High Court negatived such contention.
We do not appreciate the distinction made by the High Court in this regard.
The appellant had all the same not pleaded for grant of solatium in the grounds of appeal before the High Court while claiming enhanced compensation, and yet the High Court felt that it was under the statutory duty to grant solatium on the amount enhanced by it.
The High Court did not shut out the claim of the appellant on the ground that he had not asked for it specifically in the grounds of appeal.
If that is so, the legal error which was otherwise patent needed to be rectified by the High Court in favour of the appellant; more so when there was a cross appeal of the Nagar Mahapalika before it and resort could be had to the provisions of Order 41 Rule 33 C.P.C. Additionally, the claim to solatium arose in this regard on the basis of Om Prakash 's case (supra) on 14 12 1973 by which the provisions of the U.P. Town Improvement Act whereunder solatium was withheld were struck down, and on that date the appeal of the appellant against the order of the Tribunal dated 5 11 1965 was pending before the High Court.
The claim to solatiun surfaced and compulsory acquistition of the land but also on the law on the subject being declared by this Court in Om Prakash 's case (supra).
We are thus of the view that the High Court should have measured the claim of the appellant to solatium on the sum awarded by the Tribunal with the same yardstick as to the sum awarded by it and modified in decree accordingly.
We have thus no hesitation in upsetting the judgment and order of the High Court in this regard and award to the appellant solatium at the rate of 15% on the entire market value of the land, which would include a sum of Rs. 1,45,839 left out by the Tribunal and the High Court.
The appellant further shall be entitled to the interest at the rate of 6% per annum from 11 3 1953, the date of taking possession, till the date of payment of the sum due as solatium.
The appeal shall stand allowed accordingly.
Before parting with the judgment, we need to clarify that solatium in the scheme of section 23(2) of the Land Acquisition Act is part of the compensation and section 28 and 34 of the said Act pro 395 vided payment of interest on the amount of compensation.
This Court recently in Periyar and Pareekanni Rubbers Ltd. vs State of Kerala; , has ruled that compensation is recompense or reparation to the loss caused to the owner of the land and that payment of interest on solatium is to recompensate the owner of the land the loss of user of the land from the date of taking possession till date of payment into Court.
Therein the land owner was held entitled to interest on solatium).
Attention, however, may be invited to Dr. Shamlal Narula V. Commissioner of Income tax Punjab, ; The quality of the sum paid as interest was held somewhat different.
It was ruled therein that the statutory interest paid under the Act is interest paid for the delayed payment of compensation amount and in no event can that be described as compensation for owner 's right to retain possession, for he has no right to retain possession after possession was taken under sections 16 and 17 of the Act.
The quality of the receipt of interest can be left by us here, whether it be a recompense for the loss of user of land or is a sum paid for the delayed payment of compensation.
Solatium being part of compensation must fetch statutory interest from the date of dispossession of the land owner till date of payment.
Accordingly, we allow this appeal and direct that the appellant shall also be paid solatium at the rate of 15% on the left out amount of Rs. 1,45,839 and interest at the rate of 6% per annum thereon from 11 3 1953, the date of taking possession till date of payment, and that too with costs.
R. section section Appeal allowed.

summary/full:
Appellant 's land was acquired by the Agra Town improvement Trust under the provisions of the U.P. Town Improvement Act, 1919.
For the land acquired, the appellant was paid a paltry sum.
No solatium was awarded as none was awardable under the Act.
[391B].
The appellant sought a reference before the Nagar Mahapalika Tribunal.
The Tribunal raised the compensation to Rs.1,45,839 and also awarded interest at the rate of 4 1/2 percent.
Still dissatisfied, the appellant moved the High Court in appeal.
The Nagarpalika also filed a cross appeal against enhancement.
The High Court allowed the appeal of the appellant and further enhanced the compensation by Rs.48,613 and the rate of interest to 6 percent.
On the amount of Rs.48,613 solatium at the rate of 15% was awarded by the High Court.
No solatium was however awarded on the slim Of Rs. 1,45,839 awarded by the Tribunal, on the ground that the appellant had not made a grouse or laid any claim to it in his grounds of appeal.
The High Court negatived the contention of the appellant that his claim to solatium was not based on any demand at his instance but it was rather a statutory duty of the Court to grant it.
Allowing the appeal, this Court, HELD: (1) Solatium, as the word goes, is "money comfort" quantified by the statute, and given as a conciliatory measure for the Compulsory acquisition of the land of the citizen, by a welfare state such as ours.
[392D E] 390 (2) The importance of the award of solatium cannot be undermined by any procedural brocades.
It follows automatically the market value of the land acquired, as a shadow would to a man.
It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired.
That it falls to be awarded by the Court "in every case" leaves no discretion with the court in not awarding it in some cases and awarding in others.
[393A B] Om Prakash vs State of Uttar Pradesh, [19741 2 S.C.C. 731, referred to.
(3) Solatium in the scheme of section 23(2) of the Land Acquisition Act is part of the compensation and sections 28 and 34 of the said Act Provide for payment of interest on the amount of compensation.
[394H 395A] Periyar & Pareekanni Rubbers Ltd. vs State of Kerala, ; , referred to.
(4) Solatium being part of compensation must fetch statutory interest from the date of dispossession of the land owner tin date of payment.
[395D] Dr. Shamlal Narula V. Commissioner of Income Tax Punjab, ; , referred to.


judgement:
ivil Appeal Nos.
4032 & 4033 of 1989.
From the Judgment and Order dated 30.4.1988 of the Rajasthan High Court in D. B. Civil W. P. Nos. 694 & 696 of 1988.
Appellant in person in C. A. No. 4032 of 1989.
Rajinder Sachher, and Ravinder Bana for the Appellant in C. A. No. 4033 of 1989.
Aruneshwar Gupta for the Respondents in both the appeals.
The Judgment of the Court was delivered by PUNCHHI, J.
The identification of the highest post/posts in the Rajasthan Administrative Service, capable of being filled by merit alone, under sub rule (7) of 28 B of the Rajasthan Administrative Service Rules, 1954 (hereafter referred to as the `Rules '), is the search undertaken in these two connected appeals by special leave.
The respective appellants herein are Ajeet Singh Singhvi, who appeared in person, and Jagbir Singh who appeared through learned counsel.
Both the appellants, at the time they moved the Rajasthan High Court by means of their respective writ petitions, were high ranked officers in the Rajasthan Administrative Service but found their further chances to promotion obstacled on account of the amendments caused in the said Rules with effect from July 17, 1987.
Broadly stated, on such amendments a Super Time scale was created which statedly was to remove stagnation in service.
The contention of 581 the appellants before the High Court was, and is, that the creation of Super Time scale did not have the automatic effect of creating highest post/posts to be filled by merit alone, and that the posts which Super Time scale was attractive remained `higher posts ' in contrast to `highest post ' available to the members of the Rajasthan Administrative Service on the prescribed percentage of 50 percent on merit and the remaining fifty percent on seniority cum merit.
The appellants challenged the vires of the amendments dated 17 7 1987 for confining the selection to the highest posts made thereafter solely on the basis of merit.
Before the High Court, however, the question of vires of the amendments was given up and thus the High Court invited its attention to the following two questions: (i) whether the Super Time scale is/are the highest post/posts in the service; and (ii) if it is so, whether that post/posts is/are to be filled on the basis of seniority cum merit in the proportion of 50:50 or on merit alone in accordance with sub rule (7) of Rule 28 B of the Rules? The High Court by a long and an elaborate judgment, dated 30.4.1988 traced the history of the Rules and the amendments made to rules 28 B and 32 from time to time expressed the opinion that Super Time scale post/posts was/were the highest post/posts in the service and those required to be filled on merit alone and not in the proportion of 50:50 on the basis of merit and seniority cum merit.
It is to challenge that view that these matters are here before us and we have had the opportunity of hearing the party in person and learned counsel on both sides.
We begin by taking note that the word `highest ' has not been given a definitive meaning in the Rules, and has to be understood and employed in the context in its ordinary meaning and diction.
Rule 6 prescribes the strength of the service.
It mandates that the strength of post in each grade of the service shall be such as may be determined by the government from time to time.
The proviso thereto leaves all the possible flexibility with the government in the creation of any post of any kind and nature and for its abolition.
The latest notification in that regard, as was placed before us, is Notification No. F1(2) Karmik/ Ka IV/79 dated January 12, 1988 issued from the Department of Personnel and Administrative Reforms, Government of Rajasthan specifying that as per Rule 6 of the Service Rules, the strength of posts 582 in each grade of Rajasthan Administrative Service is determined therein.
The said notification is found in a compilation prepared by the Rajasthan Administrative Service Association, amended upto June, 19,1988.
It demonstrates posts with their titles divided into seven categories.
The first category is of Super Time Scale posts in the grade of Rs. 3900 125 4400 150 5300.
The second category is of selection scale post in the grade of 2978 75 3050 100 3650 125 4400 150 4700.
Thereafter there are lesser pay scale given in the third category of senior scale posts and in the fourth category, junior scale posts followed by special ex cadre posts, training reserve and leave reserve posts.
The Super Time Scale posts are 25 in number and those posts are named and numbered as follows: section NO.
Name of the Post No. of Posts 1.
Director of Agriculture Marketing & Ex 1 Officio Dy.
to Govt.
Director, Local Bodies 1 3.
Commissioner, Devasthan Deptt.
Revenue Appellate Authority 10 5.
Principal, A.P.R.T.S., TONK 1 6.
Divisional Commissioners 6 7.
Director, HCM RIPA, Udaipur 1 8.
Commissioner, Co,.
Cum R. A. A., Bikaner1 9.
Commissioner, TAD 1 10.
Commissioner, Desert Dav.
Commissioner, Transport 1 25 Now whether these posts are the highest posts in the Rajasthan Administrative Service or are just higher posts, so as to identify the criteria applicable for promoting to these posts their personnel.
`Service ' has been defined in Rule 4 L to mean the Rajasthan Administrative Service.
Sub rule (7) of Rule 28 B prescribes that 583 selection for promotion to the highest post/posts in the State Service shall always be made on the basis of merit alone.
As said before, `highest posts ' has nowhere been defined.
Prior to the amendment of July 17, 1987, sub rule (7) read as follows: "Selection for promotion to the highest post or highest category of posts in the State Service shall always be made on the basis of merit alone." According to the appellants, prior to July 17, 1987 the highest post was never identified and equally the highest category of posts were nowhere visible.
The posts now falling in the Super Time Scale, tabulation of which stands incorporated above, were always considered as higher posts and in terms of sub rule (6) of rule 28 B,Selection for promotion to all other higher posts/higher category of posts in the State Service were required to be made on the basis of merit and seniority cum merit in the proportion of 50:50.
The proviso, however, to sub rule (6) provided that if the Committee (appointed under Rule 28) was satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority cum merit may be made in the same manner as specified in these Rules.
The two appellants maintained that before the introduction of the Super Time scale vide amendment dated July 17, 1987 there were only three categories, namely, ordinary scale posts (alternatively known as junior scale), senior scale posts and selection scale posts in the Service and these continued as such despite the amendments.
Before the High Court the exercise to identify the Super Time selection posts would have been easy had the government notification dated 12th January,1988 been brought to its notice.
In any event after the issuance of the Government notification dated 12th January, 1988, those very posts in the Service have now been designated as junior scale, senior scale, selection scale and super time scale posts and for valid administrative reason have Super Time Scale posts been treated as highest posts even though they may have hitherto belonged to the category of higher posts; the State Service remaining the same.
Rule 15 prescribes eligibility for consideration for promotion on the basis of qualifying service for promotion.
Rule 28 prescribes the procedure for promotion and postulates the Constitution of a Commitee.
Rule 28 B, so far as is relevant for our purpose, is called out below: "28 B REVISED CRITERIA, ELIGIBILITY AND 584 PROCEDURE FOR PROMOTION TO JUNIOR, SENIOR AND OTHER POSTS ENCADRED IN THE SERVICE (i) As soon as the appointing authority determines the number of vacancies (under rule 9 of these Rules) and decides that a certain number of posts are required to be filled in by promotion, it shall, subject to provisions of sub rule (9), prepare a correct and complete list of senior most persons who are eligible and qualified under these Rules for promotion on the basis of seniority cum merit or on the basis of merit to the class of posts concerned.
(2) For appointment to the Service by promotion, the eligible persons included in the list mentioned in rule 28 shall be considered.
(3) xxxxxxxxxxx (4) Selection for promotion in the reguler line of promotion from the post/posts not included in Service to the lowest post or category of post in the Service shall be made strictly on the basis of merit and on the basis of seniority cum merit in the proportion of 50:50.
PROVIDED that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority cum merit may be made in the manner as specified in these Rules.
(5) Subject to the provisions of sub rule (7),selection for promotion from the lowest post or category of post in the State Service to the next higher post or category of post in the State Service and for all posts in the Subordinate Services and in the Ministerial Services shall be made strictly on the basis of seniority cum merit from amongst the persons who have passed the qualifying examination, if any, prescribed under these Rules, and have put in at least five years service, unless a different period is prescribed elsewhere in these Rules, on the first day of the month of April of the year of selection on the post or category of post from which selection is made: 585 PROVIDED that in the event of non availability of the persons with the requisite period of Service of five years, the Committee may consider the persons having less than the prescribed period of Service, if they fulfill the qualifications and other conditions for promotion prescribed elsewhere in these Rules, and are found otherwise suitable for promotion on the basis of seniority cum merit.
(6) Selection for promotion to all other higher posts or higher categories of posts in the States Service shall be made on the basis of merit and on the basis of seniority cum merit in the proportion of 50:50.
PROVIDED that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority cum merit may be made in the same manner as specified in these Rules.
EXPLANATION: If in a Service, in any category of post, number of posts available for promotion is an odd number then for purpose of determining the vacancies for selection by promotion on the basis of seniority cum merit and merit in the proportion of 50:50, the following cyclic order shall be followed: The first vacancy by seniority cum merit; The subsequent vacancy by merit; The cycle to be repeated.
(7) Selection for promotion to the highest post/posts in the State Service shall always be made on the basis of merit alone: PROVIDED that (a) in a Service or Groups or Sections thereunder, where there are only two scales e.g. junior scale or senior scale and there is only one promotion then promotion shall be made on the basis of seniority cum merit alone; (b) in a Service or Groups or Section thereunder, where there are three scales e.g. junior scale, and selection scale and there are two promotions then promotion shall be as under: 586 (i) first promotion on the basis of seniority cum merit.
(ii) second promotion on the basis of seniority cum merit and merit in the proportion of 50:50; (c) in Services or Groups or Sections thereunder, where there are more than two promotions then first promotion shall be made on the basis or seniority cum merit alone and promotions to subsequent higher posts shall be made on the basis of seniority cum merit and merit in the proportion of 50:50 except to the highest post.
PROVIDED further that if the Committee is satisfied that suitable persons are not available for selection by promotion to highest post/posts, strictly on the basis of merit in a particular year, selection by promotion to highest post/posts on the basis of seniority cum merit may be made in the same manner as specified in these rules.
(8) The persons having been selected and appointed by promotion to a post or category of post on the basis of merit, shall be eligible for promotion to the next higher post or category of post, which is to be filled in by merit, only when they have put in after regular selection, at least five years ' service, unless a higher period of Service is prescribed elsewhere in these Rules, on the first day of the month of April of the year of selection on the post or category of post from which selection is to be made: PROVIDED that the condition of five years 'service shall not be applicable to a person, if any person junior to him is eligible for consideration for promotion on the basis of merit.
PROVIDED further that in the event of non availability of persons equal to the number of vacancies to be filled in, eligible for promotion in the category of post next lower from which promotion is made, the Committee may consider the persons having less than five years ' service, if they are found otherwise suitable for promotion on the basis of merit alone.
587 EXPLANATION: If any doubt arises about the categoriesation of the post as the lowest, next higher or highest post in the Service, the matter shall be referred to the Government in the Department of Personnel and Administrative Reforms whose decision thereon shall be final.
(9) The zone of consideration of persons eligible for promotion shall be as under: i) No. of vacancies No. of eligible persons to be considered a) for one vacancy Five eligible persons b) for two vacancies Eight eligible persons c) for three vacancies Ten eligible persons d) for four or more vacancies Three times the number of vacancies.
ii) Where, the number of eligible persons for promotion to higher post is less than the number specified above, all the persons so eligible shall be considered.
iii) Where,adequate number of candidates belonging to the Scheduled Castes or the Scheduled Tribes, as the cases may be, are not available within the zone of consideration specified above, the zone of consideration may be extended to five times the number of vacancies and the candidates belonging to the Scheduled Castes or the Scheduled Tribes, as the case may be, (and not any other) coming within the extended zone of consideration shall also be considered against the vacancies reserved for them.
iv) For the highest post in a State Service a) if promotion is from one category of post, eligible persons upto five in number shall be considered for promotion; b) if promotion is from different categories of the post in the same pay scale, eligible persons upto two in number from each category of posts in the same pay scale shall be considered for promotion; 588 c) if promotion is from different categories of posts carrying different pay scales, eligible persons in the higher paying scale shall be considered for promotion first and if no suitable person is available for promotion on the basis of merit in the higher pay scale then only the eligible persons of other categories of posts in lower pay scales shall be considered for promotion and so on and so forth.
The zone of consideration for eligibility in this case shall be limited to five senior most eligible persons in all.
xxxxxxxx 11.
a) XXXXXX b) XXXXXX c) XXXXXX 12.
XXXXXX 13.
XXXXXX 14.
XXXXXX 15.
XXXXXX 16.
XXXXXX Rule 32 after the amendment reads as follows: "32.
APPOINTMENT TO SENIOR POST (1) [In accordance with vacancies determined according to the provisions laid down in rule 9] appointment to [senior scale, selection scale and super time scale] post shall be made by Government from amongst the members of the Service in accordance with the selection having been made on the basis of merit and seniority cum merit on the recommendations of a Committee which shall consist of following: 1.
Chairman, Rajasthan Public Service Commission .
Chairman 2.
Chairman, Board of Revenue .
Member 3.
Secretary to Government in Super time scale of the 589 Indian Administrative Service, as may be nominated by the State Government .
Member 4.
Special Secretary to Govt.
in the Department of Personnel .
Member Secretary PROVIDED that in case any Member or Member Secretary, as the case may be constituting the Committee has not been appointed to the post concerned the officer holding charge of the post for the time being shall be the Member or Member Secretary, as the case may be of the Committee.
(2) Except as provided in this rule, the procedure and the principles for selection by merit shall, in so far it may apply, be the same as provided in rule 28 B.
For selection by seniority cum merit, the Committee shall consider the cases of all the persons eligible for promotion by examining their Confidential Rolls and Personal Files and interviewing such of them as they may deem necessary, and shall select a number of candidates equal to the number of vacancies likely to be filled by promotion by seniority cum merit.
PROVIDED (1) that appointment to the senior or selection grade post [or super time scale] post may be made by Government by appointing thereto temporarily a person eligible for appointment by the promotion to the Service under the provisions of these Rules.
(2) No appointment made under [proviso (1)] above shall be continued beyond a period of one year without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur".
Argument was sought to be built that in Rule 32, Super Time scale was introduced with effect from 17 7 1987 whereunder the Government was required to make an appointment on the basis of merit and seniority cum merit on 50:50 basis in accordance with subrule 6 of rule 28 B in the absence of identification of posts.
The argument looses its thrust in entirety when viewed on the basis of sub rule (2) whereunder the procedure and principles for selection by merit 590 shall, in so far it may apply, is the same as provided in rule 28 B. which embodies sub rule (7) as well.
We have in the context to apply the Rule of harmonious construction.
In The J. K. Cotton Spinning & Weaving Mills Co. Ltd. vs The State of Uttar Pradesh & Others; ; this Court applied the rule of harmonious construction even to subordinate legislation and laid down as follows: "In applying the rule however we have to remember that to harmonise is not to destroy.
In the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.
These presumption will have to be made in the case of rule making authority also." Then again in Lt. Col. Prithi Pal Singh Bedi etc.
vs Union of India & Others, at pages 404 05 it was observed as follows: "The dominant purpose in construing a statute is to ascertain the intention of the Parliament.
One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity.
The first question to the posed is whether there is any ambiguity in the language used in rule 40.
If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else discover the intention or meaning.
If the literal construction leads to an absurdity, external aids to construction can be resorted to.
To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed.
This necessitates examination of the broad features of the Act.
" On the application of above principles, it is noticeable that the terms `higher post ' and `highest post ' occuring in Rules 28 B and 32 by all means are relative ones expected to be created in singular or plural terms under Rule 6 whereunder the strength of posts in each grade was determinable by the government from time to time.
Sub rule (7) even before the amendment of 17 7 1987 postulated a highest post/posts capable of being filled on the basis of merit alone.
The fact that they 591 remained un identified gives no basis to the plea that the State was incapacitated to identify at a later stage the highest posts in the State Service required to be filled on the basis of merit alone.
It seems to us, on a close analysis,and on the language employed in Rules 28 B and 32 that the highest post/posts conceptually were part of the Rules but their effectuation and identification has surfaced only by means of the amendments of July 17, 1987 and the notification of January 12, 1988.
Another significant factor which leans towards such an interpretation is the stance of the State which militates against the views canvassed on behalf of the appellants.
There is an inbuilt safety kept in the explanation added to sub rule (8) of Rule 28 B which prescribes that if any doubt arises, amongst others, about the categorisation of the posts as the highest posts in the Service, the matter shall be referred to the government in the Department of Personnel and Administrative Reforms, whose decision there on shall be final.
The appellants could easily have raked up and got referred the matter to the government to have a decision thereon.
The view of the government in maintaining that the Super Time scale posts are highest posts is not only a bare and literal interpretation given by it to the Rules but also is reflective of its policy in this regard and no decision needs to be given by the Court in normal circumstances to amend or alter such policy.
In such a realm even contemporaneous exposition of a similar rule in an other set of rules cannot play their part to influence either the Court or the Government to give the same interpretation or exposition to the rules requiring interpretation herein.
Besides the government being the author of the rule, has kept to itself, as a matter of prudence; the right to remove any ambiguity about the identification of any post including the highest post/posts.
The stance of the government in this regard should have clinched the matter but since the same had been put forth as a defence in the High Court, its view nonetheless are entitled to great weight and the burden of the appellants to lift that weight, an uphill task by all means, has remained unfulfilled.
To sum up, our interpretation of the rules is in accord with the interpretation of the rules as put by the High Court holding that the Super Time scale posts are the highest posts in the Service and selection for promotion and appointment on that basis in the Service has to be made on the basis of merit alone and not on the basis of seniority cum merit and merit in the proportion of 50:50.
In the facts and circumstances of the case, however, we pass no order as to costs, while dismissing the appeals.

summary/full:
The appellants are high ranking officers in Rajasthan Administrative Service governed by the Rajasthan Administrative Service Rules, 1954.
Consequent upon the amendment caused to the said rules on July 17, 1987, they felt that the amendment had affected their further promotional chances.
They therefore filed writ petitions before the High court challenging the vires of the amendment dated 17.7.1987 contending that the creation of Super time scale did not have the automatic effect of creating highest post/posts to be filled by merit alone, and that the posts to which Super Time Scale was attracted remained `higher posts ' in contrast to `highest posts ' available to the members of the Rajasthan Administrative Service on the prescribed percentage of 50 per cent on merit and the remaining fifty per cent on seniority cum merit.
Their case was that section to the highest posts made under the amended rule solely on the basis of the merit was bad in law.
Before the High Court challenge to the vires of the amendment was abandoned and the High Court considered the question (i) whether the Super time scale is/are the highest post/posts in the service and (ii) if it is so, whether the post/posts is/are to be filled on the basis of seniority cum merit in the proportion of 50:50 or on merit alone in accordance with sub rule (7) of /Rule 28 B of the Rules: The High Court rejected the writ petitions opening that the Super Time Scale post/posts was/were the highest post/posts in the service and those are required to be filled on merit alone and not in the proportion of 50:50 on the basis of merit and seniority cum merit.
Hence these appeals by the appellants.
Dismissing the appeals this Court HELD: The terms `higher post ' and `highest post ' occurring in 580 Rules 28 B and 32 by all means are relative ones expected to be created in singular or plural terms under rule 6 whereunder the strength of posts in each grade was determinable by the government from time to time.
Sub rule (7) even before the amendment of 17.7.1987 postulated a highest post/post capable of being filled on the basis of merit alone.
[590 G H] Super Time Scale posts are the highest posts in the service and selection for promotion and appointment on that basis in the service has to be made on the basis of merit alone and not on the basis of seniority cum merit in the proportion of 50:50.[591 G] J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs State of U. P. and Ors. ; ; Lt. Col. Prithi Pal Singh Bedi etc.
vs Union of India and Ors.


judgement:
ivil Appeal No. 1440 of 1986.
From the Judgment and Order dated 30.11.1985 of the Patna High Court in Second Appeal No. 129 of 1983.
Ranjan Diwvedi, A.N. Bardiar and R.S. Sharma for the Appellants.
D. Goburdhan and D.N. Goburdhan for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The plaintiff respondent instituted the suit for possession of the land in Khata No. 19 in village Gauripur in 1968 claiming title under exhibit 2 sale deed dated February 10, 1964 executed in his favour by Mst.
Tetri, the widow of Chhathu Sah, the original owner.
Tetri had earlier executed exhibit 2 A sale deed on 546 February 14, 1959 in favour of her brother 's son Lakhan Sao for a consideration of Rs.600.
She cancelled this deed on July 31, 1962 before transferring the property in favour of the respondent.
By proceeding dated 11.7.1963 obtained mutation in her name and paid rent on 18.7.1963.
The dispute, however, arose over possession of the land between the respondent and Lakhan Sao that led to proceedings under section 145, Cr.
By the order dated March 4, 1966, Lakhan Sao and his brother Gulab Sao the appellants herein were put in possession.
The present suit was thereafter instituted by the respondent for declaration of this title and possession.
The respondent alleged that the deed of 1959 in favour of Lakhan sao was a Farzi Kebala executed without consideration and was not operative and the respondent had acquired valid title under the transfer in his favour.
The suit was resisted denying plaintiff 's title and asserting that the title and possession passed under the deed of 1959.
The Trial Court decreed the suit and the decree was confirmed in appeal.
The High Court set aside the decree and remanded the case to the first appellate court pointing out that the burden to prove that the document of 1959 was farzi in character and remained inoperative clearly lay on the plaintiff and the finding of the first appellate court was vitiated by erroneous conception of law.
After the remand, the appeal was disposed of by the Additional District Judge by judgment dated January 31, 1983 upholding the plaintiff 's title and confirming the decree of the Trial court.
The second appeal filed against that judgment was dismissed in limine by the High Court on 30.11.1985.
This appeal by special leave is directed against that judgment of the High Court.
Shri Ranjan Dwivedi, learned counsel for the appellants, maintained that the first appellate court committed the same error as was pointed out by the High Court earlier in disposing of the appeal and the error thus committed has given rise to a substantial question of law and the High Court failed to exercise the jurisdiction under section 100, C.P.C., in dismissing the appeal in limine.
The original defendant died and his legal representatives are the appellants before this Court.
It was submitted that the Additional District Judge had approached the question as to whether the impugned deed of 1959 is a sham and inoperative transaction by casting the burden on the defendant, in spite of the specific direction in the order of remand.
No fresh evidence had been tendered by the plaintiff to discharge the burden of proving that no consideration passed under the document and that the document was inoperative.
The Court proceeded to examine the 547 evidence tendered by the defendant to arrive at the conclusion and has found fault with the defendant for not proving that consideration passed and the transaction has come into operation.
This approach, according to the learned counsel, has vitiated the finding and resulted in miscarriage of justice.
The submission is that the lower appellate court has discussed the evidence tendered by the defendant and rejected the same.
The respondent 's learned counsel pointed out that the lower appellate court had properly appreciated the evidence applying the correct law as to the burden of proof.
The findings recorded are on the appreciation of the facts and evidence of the case and no question of law did arise and therefore the second appeal has been rightly dismissed.
In the suit based on title the burden was undoubtedly on the plaintiff to prove such title.
When the plaintiff has assailed the earlier deed executed by his vendor in respect of the same land it was for the plaintiff to establish that it was Farzi Kebala and sham transaction unsupported by consideration.
The learned Additional District Judge has proceeded to consider how far this onus which lay heavily on the plaintiff had been discharged.
He referred to the various tests that have been laid down in order to ascertain that a particular deed is a Farzi Kebala.
He considered the relationship between the parties, the evidence relating to the custody of the document, passing of consideration, motive and possession.
It was found that Lakhan Sao and his brother Gulab Sao were closely related to Tetri, that exhibit 2 A sale deed was in the custody of Tetri and it had been produced in Court by the plaintiff.
On the evidence, it was found hat the stamp paper for the document was purchased by the vendor and there was clear indication that the vendee did not take part in the preparation of the document.
He inforred this fact from the circumstance that incorrect particulars had been incorporated in the deed.
He rejected the contention that the documents were surreptitiously obtained by the plaintiff and his vendor.
It was noticed that even after the execution of the deed, Tetri was continued to be in possession.
She moved the authorities for recording her name in Jamabandi and she had paid the rent.
Regarding the motive for the execution of the deed, it was noticed that Mst.
Tetri had debts and the deed was executed to cover the property from the reach of the creditors and without consideration.
The learned Additional District Judge considered the evidence relating to the consideration.
He referred to the evidence of PW 8, the attesting witness and PW 14 the plaintiff.
These witness stated that nothing had been paid as consideration.
As per the recital in the deed an amount of Rs. 500 was a prior payment and Rs.100 was paid in cash at the time of execu 548 tion.
The learned Judge noticed that there was no specific statement regarding the payment of any part of the consideration in cash.
The vendor was dead.
Lakhan Sao, the defendant, avoided the witness box.
The evidence of the parties to the document was not therefore on record.
Gulab Sao, the brother of Lakhan Sao, was examined as DW 11.
His evidence was analysed and was found to be discrepant.
The learned Judge on a consideration of evidence on both sides found that the evidence on the point of payment of consideration by appellant Lakhan Sao is far from satisfactory and the evidence of the appellants is unworthy of credit.
Motive was found to be satisfactorily established as the existence of debts to some creditors was admitted.
On the question of possession, the learned Judge scrutinised the evidence and found that Tetri was in possession even after execution of exhibit 2 A. Having found these ingredients in favour of the plaintiff, the learned Judge concluded that exhibit 2 A executed by Tetri on 14.2.1959 was only Farzi Kebala without any consideration and it created no title and possession to the appellant.
The findings are essentially findings of fact.
If, however, the appellants succeed in showing that in recording the findings of fact, the court had proceeded on a wrong conception of law as to onus, the correctness of the findings has necessarily to be examined.
The only point that has been stressed before us is that lower appellate court has wrongly proceeded on the basis that onus shifted to the defendant to prove the passing of consideration and that the evidence did not establish that fact.
It was maintained that the onus did not shift as the burden was entirely on the plaintiff to prove the fact that document was inoperative and no consideration did pass thereunder.
We have point out earlier that the High Court has set aside the earlier decree pointing out the error committed by the lower appellate court.
This observation made by the High Court has been kept in mind by the Additional District Judge in disposing of the appeal thereafter.
The learned Judge has considered the question of burden on the plaintiff to establish that there had been no consideration.
In examining the question whether the plaintiff had succeeded in proving the negative fact it was open to the court to consider the entire evidence on record when both the parties have tendered evidence and no part of the evidence could be left out.
On a consideration of the whole evidence, the Court has concluded that there had passed consideration.
This finding cannot, therefore, be said to be vitiated.
It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but after having gone into evidence, he 549 cannot ask the court not to look at and act on it.
The question of burden of proof at the end of case when both parties have tendered evidence is not of any great importance and the court has to come to a decision on a consideration of all material.
In the present case, the plaintiff proceeded on the basis that the deed executed by his vendor in 1959 was sham unsupported by consideration and it never came into operation thereby pleading the necessary facts in support of his title.
Evidence was tendered to prove what has been alleged.
To counter the claim, the defendants have asserted that the consideration was paid under the deed and counter evidence was tendered.
The entire evidence was fully appreciated by the Court and the findings have been recorded.
We do not agree that any error had been committed by the learned Judge in his approach.
He recorded definite findings on a clear analysis of the entire evidence and the findings are fully supported by the evidence on record.
We do not therefore see any merit in the appeal which is accordingly dismissed.
No costs.
T.N.A. Appeal dismissed.

summary/full:
The respondent plaintiff instituted a suit against the appellant defendant for declaration of title and possession of the suit properties on the basis of a sale deed dated February 10, 1964 executed in his favour by Mrs. T.
The appellant defendant also asserted his title and possession under an earlier deed dated February 14, 1959 executed by Mrs. T in his favour.
The respondent contended that the deed of 1959 in favour of the defendant was sham and without any consideration.
The Trial Court decreed the suit and the decree was confirmed in appeal.
The High Court set aside the decree and remanded the case to the first appellate court stating that the burden to prove that the 1959 deed was sham was on the plaintiff.
After the remand, the first appellate court considered the evidence adduced by both sides and upheld the plaintiff 's title and confirmed the decree of the trial court.
The second appeal filed against the judgment was dismissed in limine by the High Court.
In defendant 's appeal to this court it was contended that inspite of specific direction by the High Court in the order of remand that the burden to prove that 1959 deed was sham was on the plaintiff, no fresh evidence was tendered by the plaintiff to discharge the burden and the appellate court proceeded to examine the evidence tendered by the defendant and rejected the same; hence the appellate court committed an error in disposing the appeal which gave rise to a substantial question of law and the High Court failed to exercise its jurisdiction under Section 100 CPC in dismissing the second appeal in limine.
Dismissing the appeal, this Court HELD: 1.
It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but after having gone into 545 evidence, he cannot ask the court not to look at and act on it.
The question of burden of proof at the end of case when both parties have tendered evidence is not of any great importance and the court has to come to a decision on a consideration of all materials.
[515H; 516A] 2.
In the suit based on title the burden was undoubtedly on the plaintiff to prove such title.
When the plaintiff assailed the earlier deed executed by his vendor in respect of the same land it was for him to establish that it was a Farzi Kebala and sham transaction unsupported by consideration.
But in examining the question whether the plaintiff had succeeded in proving the negative fact it was open to the court to consider the entire evidence on record when both the parties have tendered evidence and no part of the evidence could be left out.
The plaintiff proceeded on the basis that the deed executed by his vendor in 1959 was sham unsupported by consideration and it never came into operation thereby pleading the necessary facts in support of his title.
Evidence was tendered to prove what has alleged.
To counter the claim, the defendants have asserted that the consideration was paid under the deed and counter evidence was tendered.
The entire evidence was fully apprecited by the Appellate Court and the findings recorded.
Thus the Appellate Court recorded definite findings on a clear analysis of the entire evidence and the findings are fully supported by the evidence on record.
Therefore, no error had been committed by the learned Judge in his approach.
[597C D; 599B C]