judgement:
ition Nos. 9222 to 9226 of 1981.
(Under Article 32 of the Constitution of India).
N.N. Keshwani, R.N. Keshwani and Raj Kumar Gupta for the Petitioners in W.P. Nos.
9222 25 of 1981.
Petitioner in person (Inder Mohan Lal Tandon) in W.P. No. 9226 of 1981.
V.C. Mahajan, G.L. Sanghi, C.V.S. Rao, Kitty Kumaraman glam, Randhir Jain and S.K. Bhattacharya for the Respond ents.
The Judgment of the Court was delivered by SINGH, J.
By means of these petitions under Article 32 of the Constitution the petitioners claim relief for quash ing Railway Board 's circular/letter No. E (NG) 1/69/PMI 180 dated 2nd July, 1970 and No. E (NG) I 80 SR6 39 dated 28th November, 1981.
They further claim relief for the issue of writ in the nature of mandamus restraining the respondent, Railway Authorities, from altering or issuing seniority list in pursuance of the Railway Board 's circular dated 28th November, 1023 1981 and to maintain the previous seniority list issued in 1968 for the purpose of promotions, confirmation and further advancement.
In the Indian Railways, initial recruitment of Train Examiners, used to be made in the entry Grade D in the pay scale of Rs. 100 185.
Prior to 1st April, 1966 recruitment to Grade D of Train Examiners was made from two sources (1) by promotion of skilled artisans working in the lower grade, (2) by direct recruitment of apprentices having completed prescribed four years ' training.
50 per cent of the vacan cies were filled by apprentices while the remaining 50% of the vacancies used to be filled by promotion of skilled artisans.
Promotion from entry Grade D was made to next higher Grade C of Train Examiners in the pay scale of Rs. 150 225 and later these grades were revised and the scale of D grade was raised to Rs. 180 240 and that of C Grade to Rs.205280.
Promotion to Grade C used to be made on the basis of senioritycum suitability without any distinction of promotee or direct recruits.
Because there was increase in the work load of Train Examiners the Railway Board took steps to re organise the cadre of Train Examiners.
With that end in view, it issued a notification on 27.10.1965 which directed that vacancies in the entry grade of Train Examin ers in the scale of Rs. 120 140 should not be filled from apprentice Train Examiners upto 50 per cent as hitherto, but should exclusively be, filled by promotion of skilled arti sans.
It further provided that vacancies in the next higher grade C (in the scale of Rs.205 280) should be filled from amongst the Train Examiners working in the grade of Rs. 180 240 to the extent of 20%.
The remaining 80 per cent vacancies were to be filled by direct recruitment of appren tice Train Examiners who may have successfully completed prescribed training.
Paragraph 2 of the notification provid ed .that the apprentice Train Examiners recruited on or from 1.4.1966 shall be given training for a period of 5 years and from the same date artisans recruited in the lower grade as apprentice Train Examiners shall be given 'in service ' training for a period of three years.
The circular upgraded 50% of the existing posts of Train Examiners from Grade D to Grade C in the scale of Rs.205 280 which were earlier ear marked for Apprentice Train Examiners.
The notification further directed that with effect from 1.4.1966 all the apprentice Train Examiners on successful completion of their training should be straightaway brought to the scale Rs.205 280 instead of being first absorbed in the scale of Rs. 180 240 as was being done prior to the issue of the notification.
Apprentice Train Examiners who were undergoing training on the date of the issue of notification, were directed to be brought to the working posts before 1.4.1966 and they were allowed stipend in the scale of Rs. 180 240 during the period of their training 1024 and their period of training was increased from four years to five years.
On the completion of the training they were straightaway posted in Grade C in the scale of Rs.205 280.
Those apprentice Train Examiners who had already been or may be absorbed in the scale of Rs. 180 240 upto 31.3.1966 were directed to be accommodated first in the scale of Rs.205 280 in Grade C against the quota of 80% vacancies reserved for them, and they were not required to undergo selection before being absorbed in that grade.
The effect of the Railway Board 's circular dated October 27, 1965 was that the existing apprentice Train Examiners who had already been absorbed in Grade D by March 31, 1966 were first accommodated in Grade C against 80% of the vacan cies reserved for them without undergoing any selection, while 20% of the vacancies reserved for the departmental Train Examiners, were to be filled by artisan promotees by selection and not on the basis of seniority cum suitability.
Although apprentices as well as artisan promotees constitut ed one integrated class in Grade D but promotee artisans ,were treated differently for promotion to Grade C. Roshan Lal Tandon who was promoted from artisan class to Grade D, filed a writ petition in 'this Court challenging the validi ty of the notification dated 27 10 1965 on the ground that a part of the notification which gave favourable treatment to apprentice Train Examiners was violative of Articles 14 and 16 of the Constitution.
In that writ petition a Consti tution Bench of this Court on August 14, 1967 in Roshan Lal Tandon vs Union of India, ; held that artisans and apprentices recruited from two sources to Grade D were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade C. Apprentice Train Examiners who were recruited directly to Grade D as Train Examiners formed one common class with the skilled artisans who were promoted to Grade D as Train Examiners and thereafter no favoured treat ment could be given to the apprentice Train Examiners merely because they were directly recruited as Train Examiners, no discrimination could be made against the latter merely because they were promotees.
The Court emphasised that once the direct recruits and promotees are absorbed into one cadre, they formed one class and they could not be discrimi nated for the purpose of further promotion to higher Grade C.
On these findings the Court allowed the writ petition and issued a mandamus directing the Railway Board not to give effect to the impugned part of the circular which was as under: 1025 "The Apprentice T.X. Rs. who have already been or will be absorbed in scale Rs. 180 240 upto 31.3.
1966 should first be accommodated in scale Rs.205 280 against the quota of 80% vacancies reserved for them.
Such staff should not be required to undergo a 'Selection ' before being absorbed in that grade.
The upgraded vacancies in scale Rs.205 280 left over after earmarking those for the appren tices under training on 2.4.66 should be filled by promotion of T.X. Rs. in scale Rs. 180 240 on a selection basis.
While computing the number of posts available for promotion of T.X. Rs. in scale of Rs. 180 240 the vacancies likely to occur during the period of appren ticeship of the apprentices under training as on 1.4.1966 should also be taken into account.
In other words, it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1.4.1966, who cannot be absorbed in the antic ipated vacancies which will arise by the time they qualify.
" The Railway Board with a view to implement the decision of this Court and to remove the anomaly which had been pointed out by this Court issued circular/letter No. N (NG) 65 PMI/86 dated 13.9.1968 annexures III to the affidavit filed on behalf of Respondent Railway Administration.
Para graph 1 of the letter refers to this Court 's judgment in Roshan Lal Tandon 's case and also to that portion of the Railway Board 's circular dated October 27, 1965 which had been struck down by the Court and the interim orders issued by the Court restraining the Railway authorities from imple menting the Circular dated October 27, 1965 during the pendency of the writ petition.
Paragraph 2 and 3 of the Circular dated September 13, 1968 stated that in view of the judgment of the Supreme Court the Board have decided that vacancies in the grade of Rs.205 280 (after taking into account the upgrading of 50 per cent of posts in the scale of Rs. 180 240 to 205 280 less the number of posts required for absorbing Apprentice Train Examiners undergoing the enhanced period of training of five years on April 1, 1966, should be filled by selection from amongst Train Examiners in the scale Rs. 180 240 as on March 31, 1966 irrespective of whether they were initially recruited as Apprentice Train Examiners or were promoted from lower grades.
The Board desired that Railway Administrations should take immediate steps to ensure that proper selections are held for which all TXRs in scale of Rs. 180 240 are considered.
It had come to Board 's notice that prior to the issue of the stay order, persons originally recruited as Apprentice Train Examiners who were in the 1026 scale of Rs. 180 240 have been promoted to the grade Rs.205 280 in pursuance of Board 's letter dated 27.10.
The Board decided that in view of the Supreme Court 's judg ment, such promotions should be treated as null and void and the vacancies should be properly filled as mentioned in para 2 of the circular.
The Railway Board issued another circular No. E.(NG)i/69/PMI180 dated 2nd July 1970 laying down procedure for filling of posts of Train Examiners and upgradation of posts.
It directed that vacancies arising in Grade C after 1.4.1966 to the extent of 50% shall be maintained in that grade and the remaining 50% shall be down graded to the scale of Rs. 180 240 to be filled by promotion of skilled artisans.
It further directed that 50% of the vacancies in Grade C should be filled by direct recruitment of apprentice Train Examiners with five years ' training to the extent of 80% thereof and the remaining 20% by promotees from Grade D as laid down in paragraph 1 of the Railway Board 's circular dated 27.10.1965.
This procedure was directed to be followed till the cadre position was normalised ' and the excess in the Grade of Rs.205 280 were eliminated.
Paragraph 2 of the circular further directed that those promoted to Grade C in the scale of Rs.205280 as on April 1, 1966 will be assigned seniority amongst themselves in the order of their inter se seniority in Grade of Rs. 180 240 for the purposes of con firmation in that grade and also for further advancement and they will rank senior to those recruited as apprentice Train Examiners with five years training and appointed after 1.4.1966 in the Grade of Rs. 205 280.
The result of the circular was that all those promotees who had been appointed to Grade D prior to 1.4.
1966 stood absorbed in Grade C and they were granted seniority in that Grade with retrospective effect viz. with effect from April 1, 1966.
Later the Railway Board took a policy decision to abol ish the entry Grade D of Train Examiners in the pay scale of Rs. 180 240, and in order to implement that decision it issued circular/letter No. PC 69 PS 5 TR 1, New Delhi dated 30th October, 1972, abolishing the entry Grade D of Train Examiners and placing the incumbents of that Grade en masse in Grade C in the scale of Rs.205 280 with effect from 1.11.1972.
Paragraph 2 of the circular directed that the pay of the staff brought from Grade D (Rs. 180~240) to Grade C (205 280) will be fixed under Rule 2017 A(III) read with Rule 2019 II.
As all the incumbents of Grade D in the scale of Rs. 180 240 were placed en masse in the higher grade C in the scale of Rs.205 280, a provisional seniority list of Grade C Train Examiners working in Delhi Division was pre pared on 16th November 1981.
In that seniority list peti tioners 1027 were shown senior to some of the respondents as the seniori ty was not determined in accordance with Rule 302 of the Railway Establishment Manual.
This seniority list was not prepared in accordance with the prescribed criteria as had been done in other divisions.
The Railway Board issued a circular No. E(NG) 1 80 SR6 39 dated 28.11.
1981 directing that Delhi Division should also fall in line with other divisions of Northern Railway and the seniority of the Train Examiners appointed between 1.4.1966 to 1.11.1972 should be prepared in accordance with the existing practice viz. on the basis of the date of appointment in particular grade.
In pursuance to that direction seniority of Train Examiners of Grade C placed in that Grade between 1.4.
1966 to 1.11.
1972 was published in 1981 by the authorities of the Delhi Divi sion of Northern Railway.
After inviting objections, the seniority list was finally published in December, 1982.
In that seniority list the petitioners were shown junior to Respondents Nos.
5 to 10, who were placed above the peti tioners.
Aggrieved the petitioners have challenged the validity of the seniority list also by raising additional grounds in the writ petitions.
Before we consider the submissions made on behalf of petitioners it would be appropriate to refer to comparative position of petitioners and the respondents Nos.
5 to 10 with regard to their date of entry in service as Train Examiners in Grade D and Grade C.
The relevant position is as under: Name Date of entry Grade D Grade C Rs. 180 240 Rs.205 280 1.
Yashbir Singh, Petitioner.
29.4.1986 1.11.
1972 2.
I.M. Lal Tandon, Petitioner.
19.6.1966 1.11.
1972 3.
Hira Lal Kapoor, Petitioner.
29.4.1966 1.11.
1972 4.
Harbhaj an Singh, Petitioner.
16.8.1966 1.11.1972 5.
Som Dutt Sharma, Petitioner.
29.4.1966 1.11.1972 6.
A.K. Sharma, Respondent 5, 5.
9.1967 7.
V.K. Chandhok, Respondent 6, 25.
2.1968 8.
R.N. Verma, Respondent 7, 10.
8.1968 9.
Maglani, Respondent 8, 22.
4.1969 10.
Dev Raj Sharma, Respondent 9, 21.
5. 1970 11.
K.N.Sharma, Respondent 10, 9. 2.1971 The above chart shows that Respondents Nos.
5 to 10 who be 1028 long to group of apprentice Train Examiners were directly placed to working posts in Grade C after completion of five years training in accordance with the Railway Board 's circu lar dated 2nd July, 1970, on the respective dates shown in Column 3, which indicates that each one of them had been placed in Grade C prior to 1.11.
1972, while the petitioners were placed in Grade C with effect from 1.11.
1972, in pursuance of the Railway Board 's circular dated 30.10.
Since the Respondents Nos. 5 to 10 were appointed to Grade C earlier in time and as the petitioners were placed in Grade C later, they. were shown junior to the Respondents in the seniority list.
No valid objection can be raised against respondents ' seniority.
Further in the seniority list all those promotees who had been placed in Grade C with effect from April 1, 1966 under the Railway Board 's circular dated July 2, 1970 were shown senior to the petitioners.
Since the petitioners were not granted seniority with retrospective effect in Grade C as was done in the case of those who were promoted under the Circular dated July 2, 1970 they have assailed the Constitutional validity of Railway Board 's circular dated July 2, 1970.
Learned counsel for the petitioners contended that the Railway Board 's circular dated July 2, 1970 was illegal and unconstitutional for variety of reasons.
Firstly, the Rail way Board had no authority in law to grant seniority with retrospective effect to all those promotees who had been placed in Grade C with effect from April 1, 1966 in pursu ance of the circular dated July 2, 1970.
Secondly, the Railway Board practised discrimination between the promotees forming the same class of Grade D with regard to seniority in Grade C.
He contended that under the circular dated July 2, 1970 promotees belonging to Grade D (like the petition ers) were granted seniority in Grade C on their promotion to that grade with retrospective effect from the date of their appointment in Grade D and not from the date of their ap pointment or placement in Grade C whereas the petitioners who form the same class have not been granted the same benefit, instead their seniority has been determined with effect from the date of their entry in Grade C.
The peti tioners and all those who had been appointed in Grade D prior to April 1, 1966 and promoted to Grade C formed the same class and yet they have been treated differently with out any rational basis.
The petitioners were also recruited in 1966 and they all had completed service of more than 4 years approximately as Train Examiners in Grade D on Novem ber 30, 1972 when the circular was issued but they have not been given seniority in Grade C with retrospective effect as was done under the circular dated July 2, 1970.
1029 We have given our anxious consideration to these submis sions but we do not find any merit in the same.
The peti tioners have challenged validity of the Railway Board 's circular dated July 2, 1970 in 198 1 after 11 years.
All the petitioners were in service on the date that circular was issued and they were aware that their colleagues (promotees belonging to Grade D) were placed in Grade C and they had been granted seniority with retrospective effect but none of them challenged the validity of the circular.
Now petition ers cannot be permitted to challenge the validity of that circular after 11 years.
If the petitioners were aggrieved by the Railway Board 's circular dated July 2, 1970 they should have challenged the same within a reasonable period of time which they did not do so.
It is well settled that anyone who may feel aggrieved with an administrative order or decision affecting his right should act with due dili gence and promptitude and not sleep over the matter.
Raking of old matters after a long time is likely to result in administrative complications and difficulties and it would create insecurity and instability in the service which would affect its efficiency.
The petitioners are therefore not entitled to challenge the validity of the Railway Board 's circular dated July 2, 1970 after 11 years and their chal lenge is bound to fail on this ground alone.
We have considered the merit of the submission also but we find no legal or constitutional infirmity in the Circular dated July 2, 1970.
There was increase in the work of car riage and wagons examination, as more complicated type of rolling stock was available with the Indian Railways.
In order to reorganise the cadre of Train Examiners and to cope with the increased work load the Railway Board by its noti fication dated 27th October, 1965 reorganised the cadre.
It directed that vacancies in Grade D were to be exclusively filled by promotion from amongst skilled artisans and direct recruits were to be appointed straightaway to Grade C after completion of training of five years.
Validity of the noti fication was challenged before this Court in Roshan Lal Tandon 's case and the implementation of the circular was stayed.
This Court struck down only a portion of the notifi cation which has been extracted in the earlier part of this judgment but the rest of the directions contained in the notification remained unaffected, including the direction that with effect from April 1, 1966 all the Train Examiners on successful completion of their training should be straightaway brought on to the scale of Rs.205 280 instead of being first absorbed in Grade D. Similarly further direc tion that those apprentices who were undergoing training on April 1, 1966 shall undergo five years ' training instead of four years and during their training they would receive 1030 stipend in the scale of Rs. 180 2 10 and after completion of their training they will straightaway be appointed to Grade C. After the judgment of this Court, the Railway Board reconsidered the matter and with a view to implement the decision of this Court and to further carry out its policy of reorganisation as initiated under its circular dated October 27, 1965 it issued directions under its circular dated July 2, 1970, which is as under: "GOVERNMENT OF INDIA MINISTRY OF RAILWAY (RAILWAY BOARD) No. E(NG) i/69/PMI 180 New Delhi Dated 2nd July 1970 The GMs.
All India Railways.
Sub: Procedure for filling up posts of TXRs upgra dation of.
Boards letter No. E (NG) 165 PMI 86 dated 27.10.1965 and 13.9.1968.
The Board have been receiving representations from the staff working in the category of TXRs in scale Rs. 180 240 (AS) against the procedure prescribed for filling vacancies arising out of upgradation of 50% of posts in scale Rs. 180 240 (AS) to Rs.205280 w.e.f.
1.4.1966.
It has been decided in modification of previous orders that all the TXRs working in Grade 180240 consisting of both App.
of 4 years Trg.
and promotees from ranks as on 1.4.1966 should be promoted en masse to the grade Rs.205 280 irrespective of the quota of vacancies reserved for promotees, the excess to the permissible re organised cadre strength in the grade Rs.205 280 being worked off gradually by wastage such as retirement etc.
in grade Rs.205 280 (AS).
After 1.4.1966 50% of the vacancies arising in grade Rs.205 280 should be main tained in that grade and the remaining 50% will be down graded to the scale of Rs. 190240 to be filled by promotion of skilled artisans.
The 50% of the vacancies in grade Rs.205 280 (AS) should be filled by direct recruitment of App.
TXRs with 5 years training to the extent of 80% thereof and the remaining 20% by pro 1031 motees from grade Rs. 180 240 as laid down in paragraph 1 (ii)(a) of Board 's letter No. E(NG) 165 PMI 86 dated 27.10.1965.
This proce dure will continue to be followed till the cadre position is normalised and the excess in the grade of Rs. 205 280 eliminated.
(2) The staff promoted to the grade Rs.205 280 as on 1.4.1966 will be assigned seniority amongst themselves in the order of their inter se seniority in the grade Rs. 180 240 for the purpose of confirmation in that grade and also for further advancement.
They will all rank senior to those recruited as App.
TXRs with 5 years Trg.
and appointed after 1.4.1966 to the grade Rs.205 280.
(3) The above instructions may please be implemented immediately and a report submitted to the Board in due course.
receipt Sd (O.D.S harma) Asstt.
Director(E) Rly Board" The circular issued three directions, firstly, it directed that all the Train Examiners working in Grade 180 240 con sisting of both apprentice Train Examiners and promotees from rank as on April 1, 1966 should be promoted en masse to Grade C irrespective of quota reserved for promotees.
Sec ondly, it directed that after April 1, 1966 vacancies in Grade C to the extent of 50 per cent should be maintained in that Grade while the remaining 50 per cant should be down graded to Grade D to be exclusively filled by promotion of skilled artisans, it further directed that 50 per cent of the vacancies in Grade C should be filled up by direct recruitment of apprentices with five years training to the extent of 80 per cent thereof and remaining 20 per cent of vacancies from Grade D. Thirdly, it issued direction with regard to assigning seniority to the staff promoted to Grade C on April 1, 1966.
They were to carry their inter se sen iority in Grade D for the confirmation and also for further advancement.
It further directed that the promotees will rank senior to the direct recruits in Grade C appointed after April 1, 1966.
These directions were issued with the object and purpose of achieving the reorganisation which had been initiated by Railway 1032 Board under its circular dated October 27, 1965.
The scheme of reorganisation of cadre as contemplated by the circular dated October 27, 1965 was to be carried out with effect from April 1, 1966 and that date was followed by the Railway Board in its circular dated January 2, 1970.
The petition ers ' submission that the date April 1, 1966 was fixed in arbitrary manner without any basis is untenable.
The promo tees who were placed in the higher Grade C with effect from April 1, 1966 were undoubtedly senior to the petitioners in Grade D, none of the petitioners ' rights were affected by their promotion.
The reorganisation of the cadre of Train Examiners and the promotion to Grade C could not be complet ed on account of the pendency of Roshan Lal Tandon 's case in this Court and the stay orders issued therein.
After the decision of this Court the Railway Board implemented the scheme and it made promotion with retrospective effect.
As the promotion to Grade C had been stayed, during the penden cy of the writ petition in this Court the Railway Board was justified in granting promotion with effect from April 1, 1966 as initially reorganisation was proposed to be imple mented with effect from that date as is clear from Railway Board 's notification dated October 27, 1965.
The Railway Board promoted the staff with retrospective effect because on account of stay orders issued by the Court those entitled to be promoted with effect from April 1, 1966 could not be promoted.
The petitioners cannot claim parity with those who had been promoted to Grade C under the Railway Board 's circular dated July 2, 1970 as they do not belong to that class.
Equality can be claimed among equals and not with unequals.
Those persons who had acquired right of promotion under the Railway Board 's notification dated October 27, 1965 could not be promoted on account of litigation, they formed a distinct class and the petitioners cannot equate themselves with them as they were not entitled to promotion under the notification dated October 27, 1965.
The petition ers have no right in law to claim similar treatment.
There is therefore no merit in the petitioners ' plea of discrimi nation.
Validity of the Railway Board 's circular dated July 2, 1970 on the ground of it being discriminatory was raised before the Delhi High Court in writ petition No. 1147 of 1971, Chaman Lal and others vs Union of India and others decided on May 20, 1980.
A Division Bench of that Court upheld its validity.
In another writ petition No. 2834 of 198 1 Kewal Krishan vs Union of India and others again the validity of Railway Board 's circular dated July 2, 1970 as well as the validity of Railway Board 's circular dated January 28, 1981 was upheld by a Division Bench of the Delhi High Court on December 15, 1981.
Learned counsel for the petitioners challenged the validity of the 1033 Railway Board 's circular dated November 1, 1981 which di rected the.
Delhi Division to fall in line with other divi sions of Northern Railways for determining the seniority of Train Examiners.
It appears that seniority of Train Examin ers in Grade C working in other Divisions of Northern Rail way was determined, from the date of appointment in that Grade, in accordance with Rule 302 of the Railway Establish ment Manual but in Delhi Division that practice was not followed.
The Railway Board directed the Delhi Division to fall in line with other divisions in determining the senior ity of Train Examiners.
Learned counsel for the petitioners urged that since under the Railway Board 's circular dated October 30, 1972 the petitioners were placed en masse in Grade C in the scale of Rs.205 280 they are entitled to seniority with effect from the date of their appointment in Grade D and if that be so, they would rank senior to Re spondents Nos. 5 to 10 who were appointed later in time.
At this stage it would be profitable to have a glance at Rail way Board 's circular dated October 30, 1972 which is as under: "GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) No. PC 69/PS 5/TR 1 New Delhi dated 30.10.
1972 The General Managers, All India Railways.
Sub: Upgrading of the initial scale of pay of Train Examiners on Railways.
Ref: Board 's letters No. (1) E(NG) 65 PMI '86 dated 27.10.
(ii) No. E (NG) 165 PMI 86 dated 13.9.
(iii) No. E(NG) 1 69 .PM/ 1/130 dated 2.7.
The Board have considered the commu nications received from the National Federa tion of Indian Railwaymen and the All India Railwaymen 's Federation regarding the proce dure prescribed for filling and maintenance of vacancies in the Train Examiners ' cadre as envisaged in the above mentioned letters and more particularly their demand for abolition of the grade of Rs. 180 240.
It has now been decided in modification of existing orders that the 1034 initial grade of TXRs, viz. Rs. 180 240 should be abolished and all the TXRs working in that grade should be placed en masse in the grade Rs.205 280 w.e.f. 1.11.
It has been decided that vacancies in grade Rs.205 280 should hereafter be filled in the following manner: (i) 40% of vacancies to be filled by promotion or Artisans; (ii) 20% of vacancies to be reserved for existing Artisans going as Apprentice TXRs, with age relaxation upto 35 years; and (iii) 40% of vacancies to be filled by direct recruitment of Apprentices TXRs from the open market through Railway Service Com missions.
Pay of the staff brought on from grade Rs. 180 240 (AS) to Grade Rs.205 280(AS) will be fixed under Rule 2017(a)(ii) read with rule 2019 PII.
This has the approval of the President.
Sd/ (R.S. Bharal) Dy.
Director, Establishment (P & A) Railway Board No. PC 69/PS 5/TP 1 New Delhi dated 30.10.72 Copy of the FA & CAOS, and Chief Auditors of All Indian Railways.
Sd/ (R.S. Bharal) Dy.
Director, Establishment (P & A) Railway Board.
" By the aforesaid circular the entry grade of Train Examiners in the scald of Rs. 180 240 was abolished and all the Train Examiners working in that Grade were placed in the scale of Rs.205 280 with effect from November 1, 1972.
In pursuance to that decision, petitioners were included in Grade C with effect from November 1, 1972 and 1035 therefore they are entitled to seniority with effect from that date in Grade C.
In the absence of any statutory rule or directions petitioners are, not entitled to claim senior ity in Grade C with reference to the date of their appoint ment in Grade D.
The chart indicating respective dates of entry of petitioners and the Respondents 5 to 10 in Grade C. as extracted in the earlier part of the judgment would show that Respondents Nos. 5 to 10 were appointed in Grade C earlier in time than the petitioners, therefore they are entitled to be senior to the petitioners.
It is not disputed that Rule 302 of the Railway Establishment Manual lays down a general rule for determining seniority from the date of appointment in a particular grade and the petitioners have not placed any rule or instruction before us to support their case.
Seniority ordinarily reflects length of service in a particular cadre or grade.
It is generally regulated by service rules or in the absence of Rules by executive in structions.
By and large, such rules provide for determining seniority with reference to the date of appointment but there are instances where rules provide for determining seniority with reference to date of confirmation.
Normally, when a person is promoted or placed in a higher grade his seniority is determined with reference to the date of such promotion or placement unless the relevant rules provide to the contrary.
Seniority in the lower grade has no meaning for determining seniority in the higher grade except for determining inter se seniority of promotees.
Rule 302 con tains a general Rule and there is no exception to it.
In the absence of any contrary provision in the Rules, the general rule of seniority as laid down by Rule 302 must prevail.
Learned counsel then urged that the seniority list of Grade D had been prepared in 1968 and in that seniority list petitioners were shown senior to some of the respondents and that seniority could not legally be disturbed.
It appears that in the seniority list prepared in 1968 the names of some of the respondents was shown in Grade D on the assump tion that they held posts of Train Examiners in that Grade.
It was done on a wrong assumption.
Admittedly, the Respond ents Nos. 5 to 10 were apprentices who were undergoing training, and in accordance with the directions contained in the Railway Board notification dated October 27, 1965 they were entitled to appointment in Grade C straightaway on completion of their training.
They were no doubt drawing stipend at the rate of Rs. 180 240 which was the scale prescribed for Grade D but nonetheless they did not belong to Grade D as they were not appointed to any of the posts in that Grade.
Their names therefore could not be included in the seniority list of Grade D. Petitioners cannot draw any advantage from the mistake committed in 1036 including the Respondents name in the seniority list of 1968.
Learned counsel then urged that Hira Lal Kapoor, one of the petitioners was promoted on June 23, 1981 on the basis of his seniority in Grade D, therefore, other petitioners are also entitled to their seniority with effect from the date of their appointment in Grade D.
In the written submis sion filed on behalf of Respondents it is stated that the Deputy Regional Manager of Delhi had granted promotion to H.L. Kapoor on June 2, 1981 on ad hoc and temporary basis.
On receipt of representations and.
protests from Respondent No. 5 Ashok Kumar Sharma and the General Secretary.
Northern Railway Men 's Union, order of promotion issued in favour of H.L. Kapoor was cancelled and Sh.
A.K. Sharma, Respondent No. 5 was promoted.
Since the petitioners were placed in higher Grade C with effect from November 1, 1972 they are entitled to seniority with reference to date of their place ment in that Grade and they have no legal right to claim seniority in that Grade against those who were appointed to that Grade before November 1, 1972.
Learned counsel for the petitioners referred to Lok Sabha questions asked by Sh.
Suraj Bhan, M.P. and the an swers given to those questions with regard to seniority of direct recruits and promotees, (Annexures K of the petition).
The petitioners have asserted that in reply to the Lok Sabha questions, it was clearly stated by the Rail way Administration that direct recruit Train Examiners posted on working posts before November 1, 1972 in Grade C in the scale of Rs.205 280 will not be treated senior to the Train Examiners promoted en masse with effect from November 1, 1972.
In the counter affidavit filed by the respondents it is stated that the reply to the Lok Sabha questions as contained in Annexure K to the petition is of no relevance as the said questions were not admitted at all and no reply was given by the Railway Board.
It appears that the General Manager had prepared a draft reply to the Lok Sabha ques tions but the reply had not been finalised by the Railway Board which is the competent authority.
The Railway Board could have modified the draft of the reply as prepared by the General Manager but since the question was not admitted no reply was sent to the Lok Sabha.
The petitioner can therefore draw no support from Annexure K to the petition.
Learned counsel for the petitioners then urged that the petitioners were not promoted to Grade C instead they were placed en masse in Grade C on the abolition of Grade D therefore the date of their seniority should not be deter mined from the date of their placement in 1037 Grade C instead they are entitled to their seniority with reference to the date of their appointment in Grade D. He placed reliance on the directions, contained in paragraph 2 of the Railway Board 's circular dated October 30, 1972 that the petitioners ' salary in Grade C shall be fixed in accord ance with Rule 2017 R II read with rule 2019 II.
He urged that if the petitioners were treated to have been promoted to Grade C with effect from November 1, 1972 in that case their salary could have been fixed in accordance with Rule 2018 (R II) (PR 22/C).
It is true that the petitioners were not promoted from Grade D to Grade C instead Grade D was abolished and the petitioners and all other incumbents holding posts in Grade D were placed en masse in Grade C and the Railway Board issued directions that their salary shall be fixed in accordance with the Rule 2017 read with Rule 2018 (R II) (PR 22/C).
Whether petitioners were promoted to Grade C or whether they were placed en masse in that Grade does not make any difference so far as their entry to Grade C is concerned, in either case, they entered Grade C with effect from November 1, 1972.
Reference to a particular rule for determining their pay in the higher grade cannot change the criteria for determining seniority.
The Railway Board had never issued any direction for determining the petition ers seniority with reference to their date of appointment in the initial entry grade.
The petitioners have failed to show that any person junior to them has been made senior to them.
Their grievance is without any substance.
In view of the above discussion we find no merit in the petitions.
We accordingly dismiss the same with costs.
All interim orders stand discharged.
S.L. Petitions dismissed.

summary/full:
The petitioners were railway employees.
The Railway Board issued a circular dated July 2, 1970, laying down procedure for filling up posts of train examiners and upgra dation of posts.
It directed that vacancies arising in Grade C after 1.4.1966 to the extent of 50 per cent would be maintained in that grade and the remaining 50 per cent would be down graded to be filled by promotion of skilled arti sans.
It further directed that 50 per cent of the vacancies in Grade C should be filled by direct recruitment of appren tice Train Examiners with five years ' training to the extent of 80 per cent thereof and the remaining 20 per cent by promotees from Grade D as laid down in paragraph 1 of the Circular dated 27.10.1965 of the Board.
This procedure was directed to be followed till the cadre position was norma lised and the excess in the Grade of Rs.205 280 were elimi nated.
Paragraph 2 of the circular further directed that those promoted to Grade C in the scale of Rs.205280 as on April 1, 1966 would be assigned seniority amongst themselves in the order of their inter se seniority in the Grade of Rs. 180 240 for the purposes of confirmation, etc., in that grade and they would rank senior to those recruited as apprentice train examiners with five years ' training and appointed after 1.4.66 in the grade of Rs.205 280.
The result of the circular was that all those promotees, who had been appointed to Grade D prior to 1.4.66 stood absorbed in Grade C and they were granted seniority in that grade with retrospective effect, that is, with effect from April 1, 1966.
The Railway Board later took a policy decision to abol ish the entry grade D of train examiners in the pay scale of Rs. 180 240, and in order to implement that decision issued a circular dated October 30, 1972, abolishing the entry Grade D of the train examiners and placing the incumbents of that grade en masse in grade C in the scale of Rs.205280 with effect from 1.11.72.
Paragraph 2 of the circular di rected that the pay of the staff brought from Grade D (Rs.180 240) to grade C 1019 (Rs.205 280) would be fixed under Rule 2017 A (III) read with rule 2019 II.
As all the incumbents of grade D in the scale of Rs. 180 240 were placed en masse in the higher grade C in the scale of Rs.205 280, a provisional seniority list of grade C Train Examiners working in Delhi Division was prepared on November 16, 1981.
In that seniority list, the petitioners were shown senior to some of the respondents as the seniority was not determined in accordance with Rule 302 of the Railway Establishment Manual.
This seniority list was not prepared in accordance with the prescribed criteria, as had been done in the other Divisions.
The Board issued a circular dated 28.11.81, directing that the Delhi Division should also fail in line with the other Divisions of the Northern Railway, and the seniority of the train examiners appointed between 1.4.66 and 1.11.72 should be prepared in accordance with the existing practice.
viz. on the basis of the date of appointment in the particular grade.
In pursuance of that direction, seniority of the train examiners of grade C placed in that grade between 1.4.66 and 1.11.72, was published in 1981 by the authorities of the Delhi Division of the Northern Railway.
After inviting objections, the seniority list was finally published in December, 1982.
In that seniority list, the petitioners were shown junior to respondents 5 to 10.
Aggrieved, the peti tioners moved this Court by writ petitions, challenging the validity of the seniority list and for quashing the circu lars dated July 2, 1970 and November 28, 1981 of the Railway Board, and restraining the respondent Railway authorities from altering or issuing the seniority list in pursuance of the circular dated November 28, 1981 of the Railway Board and for maintaining the seniority list issued in 1968.
Dismissing the petitions, the Court, HELD: The Respondents Nos.
5 to 10, who belonged to the group of apprentice train examiners were directly placed to working posts in grade C after completion of 5 years ' train ing in accordance with the circular dated July 2, 1970 of the Railway Board, and each one of them had been placed in grade C prior to 1.11.72, while the petitioners were placed in grade C with effect from 1.11.72, in pursuance of the circular dated 30.10.72 of the Railway Board.
Since the respondents 5 to 10 were appointed to grade C earlier and the petitioners were placed in that grade later, the peti tioners were shown in the seniority list junior to the respondents concerned.
No valid objection can be raised against respondents ' seniority.
[1027H; 1028A C] 1020 The petitioners challenged the validity of the Railway Board 's circular dated July 12, 1970, in 1981 after 11 years.
All the petitioners were in service on the date that circular was issued and they were aware that their col leagues (promotees belonging to grade D) were placed in grade C and they had been granted seniority with retrospec tive effect, but none of them challenged the validity of the circular.
Now, the petitioners cannot be permitted to chal lenge the validity of that circular after 11 years.
The petitioners should have challenged the circular within a reasonable period of time which they did not do.
It is wellsettled that anyone, who may feel aggrieved by an admin istrative order or decision affecting his right, should act with due diligence and promptitude and not sleep over the matter.
Taking up old matters after a long time is likely to result in administrative complications and difficulties and would create insecurity and instability in the service which would affect its efficiency.
The petitioners are, therefore, not entitled to challenge the validity of the Railway Board 's circular dated July 2, 1970, after 11 years.
Even otherwise, on merits.
there is no legal and constitutional infirmity in the circular.
In order to reorganise the cadre of the train examiners to cope with the increased work load, the Railway Board issued a Notification dated October 27, 1965, reorganising the cadre.
The validity of the notifica tion was challenged before this Court in Roshan Lal Tandon 's case.
The Court struck down only a portion of the notifica tion and the rest of the directions contained in the notifi cation remained unaffected.
After the judgment of the Court, the Railway Board reconsidered the matter, and, with a view to implementing the decision of this Court and further carrying out its policy of reorganisation as initiated under its circular dated October 27, 1965, issued the circular dated July 2, 1970 [1029A H; 1030A B] The scheme of reorganisation of the cadre as contemplat ed by the circular dated October 27, 1965, was to be opera tive with effect from April 1, 1966.
The Petitioners ' sub mission that the date April 1, 1966, was fixed in an arbi trary manner without any basis, is untenable.
The promotees, who were placed in the higher grade C with effect from April 1, 1966, were undoubtedly senior to the petitioners in grade D, and none of the petitioners ' rights were affected by their promotions.
The Railway Board implemented the reorgan isation scheme after the decision of this Court in Roshan Lal Tandon 's case.
As promotion to grade C had been stayed during the pendency of Tandon 's case in this Court, the Railway Board was justified in granting promotion with retrospective effect from April 1, 1966, as initially, the reorganisation was proposed to be implemented from that date, which could not be done on account of stay orders issued by this Court.
The petitioners 1021 cannot claim parity with those who had been promoted to grade C under the Railway Board 's circular dated July 2, 1970, as they do not belong to that class.
Equality can be claimed amongst equals and not with unequals.
The persons, who had acquired the right of promotion under the Railway Board 's notification dated October 27, 1965, but could not be promoted on account of litigation, formed a separate class, and the petitioners could not equate themselves with them, as they were not entitled to promotion under the notification dated October 27, 1965.
There is no merit in the petitioners ' plea of discrimination.
[103AF H] The validity of the Railway Board 's circular dated July 2, 1970, was challenged by a writ petition before the Delhi High Court, which upheld the same.
Again, the validity of that circular as well as the circular dated January 28, 1981 of the Railway Board was challenged by a writ petition before the Delhi High Court, which upheld the same.
[1032F H] By the Circular dated October 30, 1972, of the Railway Board, the entry grade of train examiners in the scale of Rs. 180 240, was abolished and all the train examiners in that grade were placed in the scale of Rs.205 280 with effect from November 1, 1972.
The petitioners were included in grade C with effect from November 1, 1972, and, there fore, they are entitled to seniority with effect from that date in Grade C.
The petitioners are not entitled to claim seniority in grade C with reference to the date of their appointment in grade D. The respondents 5 to 10 were ap pointed in grade C earlier than the petitioners and, there fore, they are senior to the petitioners.
Rule 302 of the Railway Establishment Manual lays down a general rule for determining seniority from the date of appointment in a particular grade when a person is promoted to or placed in a higher grade, his seniority is determined with reference to the date of such promotion or placement unless the relevant rules provide to the contrary.
Seniority in lower grade has no meaning for determining seniority in the higher grade except for determining inter se seniority of the promotees.
In the absence of any contrary provision in the Rules, the general rule of seniority laid down by Rule 302 must pre vail.
[1034G H; 1035A E] It appears that in the seniority list prepared in 1968, the names of some of the respondents were shown in grade D on a wrong assumption.
The respondents 5 to 10 were appren tices undergoing training, and in accordance with the direc tions contained in the Railway Board 's notification dated October 27, 1965.
they were entitled to appointment 1022 straightaway on completion of their training.
They were drawing stipend at a rate which was the scale prescribed for grade D, but they did not belong to grade D and could not be included in the seniority list of grade D.
The petitioners cannot draw advantage from the mistake committed in includ ing the names of the respondents in the seniority list of 1968.
[1035F H; 1036A] The petitioners were placed in higher grade C with effect from November 1, 1972, and they are entitled to seniority with reference to their placement in that grade and they have no legal right to claim seniority in that grade as against those who were appointed to that grade before November 1, 1972.
[1036C D] Whether the petitioners were promoted to grade C or were placed en masse in that grade, does not make any difference in so far their entry to grade C is concerned; in either case, they entered grade C with effect from November 1, 1972.
The petitioners have failed to show that any person junior to them has been made senior to them.
Their grievance is without any substance.
[1037C E]


judgement:
ecial Leave Petition No. 4 120 of 1987.
From the Judgment and Order dated 24.12.
1986 of the High Court of Calcutta in Civil Rule No. 676 of 1985.
R.B. Mehrotra for the Petitioner.
S.K. Bhattacharya for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is a petition for special leave to appeal against an order and judgment of the High Court of Calcutta dated 24th September, 1986.
By the im pugned judgment and order the High Court has held that the present petitioner was not a sub tenant and as such he was bound by the decree passed against the tenant for eviction.
The petitioner challenges that finding and contends that he was a sub tenant with knowledge and consent of the landlord and as such it does not bind him because in the suit he was not a party.
There should have been a separate suit accord ing to him.
He should have been made a party to the suit.
The High Court has held against this contention.
We are of the view that the High Court was right.
Our attention was drawn by Mr. Kacker to the agreement of 1st of September, 1966, contending that this was an arrangement of subletting and in that document one of the attesting witness was land lord himself.
Therefore, this is done with the knowledge and consent of the landlord and as such valid.
The agreement states, inter alia as follows: "THIS MEMORANDUM OF AGREEMENT made this the 1st September 1966 BETWEEN ABDUR RAHAMAN son of late Nabi Buksh by religion Muslim, by profession business of 51/1, Watgunj Street, P.S. Watgunj 1089 District 24 Parganas, Calcutta 23, hereinafter called the FIRST PARTY OF THE ONE PART AND MD.
SALIM son of Waris Ali, by religion Muslim by profession business residing at 2/3, Mominpore Road Police Station Ekbalpore District 24 Parganas, Calcutta 23 hereinafter called the SECOND PARTY OF THE OTHER PART WHEREAS tHE FIRST PARTY having taken settlement of a shop room its landlord Md. Mea has been running a business with the stock in trade as described in the schedule below AND WHEREAS THE FIRST PARTY feels it inconvenient to look after and manage the same personally at present AND WHEREAS THE SECOND PARTY is willing to manage the said business on behalf of the FIRST PARTY on terms and conditions hereinafter appearing; NOW THIS MEMORANDUM WITNESSES: That the first party will remain the proprie tor of the aforesaid business and the business Licence shall stand in the name of the FIRST PARTY and the costs thereof shall be paid by the SECOND PARTY: That house rent of the shop room shall be paid by the FIRST PARTY in his name; That the SECOND PARTY run the business in the shop room with the stock in trade supplied by the First Party as described in the schedule as also with other articles and stock in trade to be supplied by him and manage the affairs of the said business under his personal supervision for two (2) years with effect from 1.9.66 to 31.8.66 on behalf of the First Party and will restore the business alongwith the said arti cles in good condition with the expiry of the term of this contract; That the second party will pay to the First Party a sum of Rs.90 (Rupees Ninety) only per month payable within the 7th day of each month for which it becomes payable.
That the SECOND PARTY will be enti tled to appropriate the entire issues and profits arising out of the business in its entirely subject to the aforesaid payment to be made to FIRST PARTY and the costs of Licen see fees.
That the SECOND PARTY SHALL not encumber the business in any way and shall not be entitled to raise any loan against the business and the business shall not be liable for any such, debt, if any, incurred by the SECOND PARTY That the SECOND PARTY shall also bear all incidental costs 1090 for carrying out the business properly.
That if the SECOND PARTY fails or neglects to pay the dues reserved under this contract for two months or violates any of the conditions mentioned herein then this agreement shall be treated as cancelled and of no effect and the First party will be entitled to re enter the shop room and business and to take khas pos session of the same along with the articles mentioned in the schedule.
" One of the attesting witness to the .said agreement was Md. Ali, the respondent herein, who was at the relevant time landlord and is now represented by his legal representatives to this application.
On a construction of the different clauses of the aforesaid document we are of the opinion that this was an agreement for management of the business of the tenant.
It was not and cannot be construed as an agreement of sub tenancy.
There was no exclusive possession with the respondent.
There was no parting of possession of the prem ises, there was only a right to "manage" the business, looking after the existing business with fixed monthly payments and this cannot be construed as an agreement of sub tenancy.
Therefore, though the landlord had knowledge of the document and as such can be said to have consented to the bargain it cannot be said to be consent to an agreement of sub tenancy.
Our attention was drawn to the decision of this Court in M/s Girdbar Lal & Sons vs Balbir Nath Matbur and Others, [19681 2 SCC 237 where considering similar provision of Delhi Rent Control Act, 1958, it was held that where the landlord had in fact consented to the sub tenancy and as such the sub tenancy was valid and landlord was bound by it.
But in the present case, there was no sub tenancy created by the agreement mentioned herein.
Hence the consent and knowl edge of the landlord do not help.
Our attention was also drawn to section 2(4) on the expression 'tenant ' in West Bengal Premises Tenancy Act, 1956.
That definition does not affect the position of the petitioner in the instant case as there was no sub tenancy in the present case.
In view of the above, we are of the opinion that the High Court was right in the view it took.
The Special leave petition is accordingly dismissed.
There will be no order as to costs.
S.L. Petition dismissed.

dataset_name: IN-Abs

summary/full:
This petition for special leave to appeal was filed against the judgment and order of the High Court, whereby the High Court had held that the petitioner was not a sub tenant and as such he was bound by the decree passed against the tenant for eviction.
The petitioner challenged before this Court the finding of the High Court and contended that he was a sub tenant with the knowledge and consent of the landlord and as such the decree of eviction passed against the tenant did not bind him because in the suit he had not been a party.
He should have been made a party to the suit.
Dismissing the petition, the Court, HELD: The High Court was right.
The attention of the Court was drawn to an agreement of 1st September, 1966, with the contention that that was an arrangement of sub letting and in that document one of the attesting witnesses was the landlord himself, and, therefore, the subletting was done with the knowledge and consent of the landlord and, as such, was valid.
[1088G] One of the attesting witnesses to the said agreement was Md. Ali, the respondent herein, who was at the relevant time the landlord, now represented by his legal representatives in this petition.
On a construction of the different clauses of the aforesaid document, the Court was of the opinion that this was an agreement of the business of the tenant.
It was not and could not be construed as an agreement of subtenan cy.
There was no parting of possession of the premises.
There was only a right to "manage" the business, looking after the existing business with fixed monthly payments and this could not be construed as an agreement of sub tenancy.
Therefore, though the landlord had knowledge of the docu ment, it could not be said to be consent to an agreement 1088 of sub tenancy.
The attention of the Court was drawn to section 2(4) on the expression 'tenant ' in the West Bengal premises Tenancy Act, 1956.
That definition did not affect the position of the petitioner in this case as there was no sub tenancy in the case.
[1090C E, G] The High Court was right in the view it took.
[1088F] M/s. Girdhar Lal & Sons vs Balbir Nath Mathur and oth ers, , referred to.


judgement:
ivil Appeal No. 3535 of 1982.
From the Judgment and Order dated 16.3.
1982 of the Calcutta High Court in F.M.A No. 282 of 1981 & C.R. No. 3842 (m) of 1980.
T.S. Krishnamurthy Iyer, G.L. Sanghi, G.S. Chatterjee and D.P. Mukherjee for the Appellant.
L.N. Sinha, M.P. Jha, K.C. Mittal and A.K. Chopra for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal directed against the judg ment of a Division Bench of the High Court of Calcutta in Appeal from Original Order No. 282 of 1981 with C.R. No. 3842 (m) of 1980.
The relevant facts for the purpose of this appeal can be shortly stated.
In August 1969, the appellant before us obtained a money decree in the High Court at Calcutta against the judgment debtor Maharaj Kumar Maley Chand Mahatab.
On 31st July 1970 the appellant filed a petition for execution of the decree, numbered as Title Execution Case No. 19 of 1970.
On 3rd August 1970 attachment was levied in execution on open land 1040 belonging to the judgment debtor admeasuring about 19 Kathas at 10A, Diamond Harbour Road, and portion of premises No. 2 Judges Court Road, now, numbered as 6/1D, Diamond Harbour Road and 2/A, Judges Court Road, 24 Paraganas respectively.
On 14th September 1970, the judgment debtor sold a portion of the attached property admeasuring a little over to 11 Kathas to one Bharat Shamshere Jung Bahadur Rana.
On 29th March, 1972 Bharat Shamshere ,lung Bahadur Rana sold a portion of the said land admeasuring a little over 9 Kathas (referred to hereinafter as "the said property") to Prabhat ilal Chowdhary and others who are the respondents in the present appeal.
On 9th May, 1972 the aforesaid Execution Petition, namely.
Title Execution Case No. 19 of 1970 was dismisssed for default.
On 16th September, 1975, on an application by the appellant, the said Title Execution Case No. 19 of 1970 was restored.
On a petition dated 26th Sep tember, 1975 the said property was again attached.
Thereaf ter.
a proclamation for sale of the said property was issued under Order 21 Rule 66 of the Code of Civil Procedure.
The respondents Prabhatilal Chowdhary & Others filed a petition under Order 21 Rule 58 of C.P.C. for releasing the said property from attachment.
This application was registered as Misc.
Case No. 8 of 1978.
On 11th August, 1980 the said Misc.
Case No. 8 filed by Prabhatilal and Others was dis missed.
On 16th March, 1982 the aforesaid appeal from Order No. 282 of 1981 and C.R. NO. 2843(m) of 1980 was allowed by the Calcutta High Court.
It is this decision allowing the said appeal which is assailed before us.
Mr. Sanghi, learned counsel for the appellant urged that the sale of the said property by the judgment debtor to Bharat Shamshere Jung Bahadur Rana and the sale of the said property by the said Bharat Shamshere Jung Bahadur Rana to the respondent were both effected during the subsistence of the attachment.
Although the attachment ceased on the dis missal of the said Title Execution Case on 9th May, 1972, the said attachment was revived by reason of restoration of the said case on 16th September, 1975.
It was submitted by him that, in view of the provisions of Section 64 of the Code of Civil Procedure, the sale of the said property by the judgment debtor to Bharat Shamshere Jung Bahadur Rana and the sale of the same by the Bharat Shamshere Jung Baha dur Rana to the respondent are both void as against the appellant decree holder.
Section 64 of the Code of Civil Procedure runs as follows: "Where an attachment has been made, any private transfer 1041 or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attach ment.
" There is an Explanation to this Section, but it is not material for our purposes.
Order 21 Rule 57 as it stood prior to its amendment in 1976 and as amended by the Calcutta High Court as follows: "Where any property has been attached in execution of a decree but by reason of the decree holder 's default the Court is unable to proceed further with the application for execution, it shall either dismiss the appli cation or for any sufficient reason adjourn the proceedings to a future date.
Upon the dismissal of such application the attachment shall cease unless the Court shall make an order to the contrary.
" The words "unless the Court shall make an order to the contrary" have been added by way of amendment to the said Rule made by the Calcutta High Court.
In view of the plain wording of the aforesaid Rule, it is clear that when the aforesaid Title Execution Suit was dismissed for default, the attachment levied ceased as no order to continue that attachment was made by the Court.
The question as to what is the effect of the restoration of the said Title Execution Suit, that is, whether the said resto ration would restore the original attachment and, if so, to what extent.
In this connection, it has been held by the Calcutta High Court that where an order for releasing property from attachment is set aside on appeal, the effect is to make the property still subject to the attachment and to restore the state of things which had been disturbed by the order of release.
It makes no difference whether the order for releasing the attachment under Order 21 Rule 63 of the Code of Civil Procedure is passed in appeal or revision.
(See Sushila Bala Dasi vs Guest Keen Williams, Ltd., I.L.R. 1949 Vol.
1 Calcutta, p. 177.
A Division Bench of the Madras High Court in Annapurna Patrani & Ors.
vs Lakshmana Kara & Anr., A.I.R. 1950, Ma dras, p. 740 has held that where in execution of decree property is attached 1042 but the petition for execution is dismissed for default and on appeal the order of dismissal for default is set aside, the effect of the appellate order is to restore the order attaching property and the trial Court would have to proceed with the execution application from the stage at which it had interrupted it by dismissing it for default.
The appel late order restoring attachment would relate back to the date when the attachment was first made and would render invalid any alienation in the interim period.
A similar view has been taken by a learned Single Judge of the Bombay High Court in Pradyut Natwarlal Shah vs SuryakantN. Sangani & Ors., A.I.R. 1979 Bombay, p. 166.
However, in the present case the restoration of the Title Execution Case was not made on an appeal or revision, whereby order of dismissing the said suit for default was set aside, but the said suit has been restored on an appli cation made for restoration.
Such an order for restoration cannot be equated with an order passed on appeal or in 2revision setting aside the dismissal.
In this case we are not called upon to consider what is the effect of an order of dismissing the Execution Application for default being set aside on appeal or revision, and we do not propose to express any opinion in that connection.
In a case which is more relevant for determination of the question before us, namely, Tavvala Veeraswami vs Pulim Ram anna & Ors., A.I.R 1935 Madras, p. 365 which was decided by a full Bench of the Madras High Court an order dismissing a suit for default was set aside on an application for that purpose.
It was held that where an order dismissing a suit for default is set aside on an application for that purpose, the suit remains as it was on the day when it was dismissed and all proceed ings taken up upto that date must be deemed to be in force when the dismissal is set aside and all interlocutory orders will be revived on the setting aside of the dismissal.
Similarly, an order for attachment of property will also be revived.
In that case an attachment before judgment was raised on security being furnished.
The suit in which the attachment was levied was dismissed for default, but was restored on an application made for that purpose and decreed and the decreeholder sought to enforce the security bond.
It was held that on the restoration of the suit, all ancillary orders were restored without any further order, and that therefore, the security bond given for the raising of at tachment before judgment was also restored and the decree holder was entitled to enforce the security bond.
It was observed by Beasley C.J., who delivered the judgment with which other learned Judges concurred, as follows: "It does not seem to be reasonable that the plaintiff in a 1043 suit who has got an attachment before judgment should have again, after the restoration of the suit after its dismissal for default, to apply to the Court for a fresh attachment and that having done so, the defendant should have to apply to raise the attachment by producing a surety or sureties.
The commonsense view of the matter is that all ancillary orders should be restored on the suit 's restoration without any further orders.
" In the present case both, the sale by the judgment debtor to Bharat Shamshere Jung Bahadur Rana and the sale by Bharat Shamshere Jung Bahadur Rana to the respondent, were effected during the subsistence of the attachment and before the Title Execution Case was dismissed for default.
In our view, even if a doubt were to be entertained as to whether an order for restoration of the suit or execution applica tion would have the effect of restoring the attachment retrospectively so as to affect alienations made during the period between dismissal of the suit or execution applica tion and the order directing restoration, it is clear that an order of restoration would certainly restore or revive the attachment for the period during which it was in sub sistence, namely, prior to the dismissal of the suit or execution application.
The learned counsel for the respondent drew our atten tion to the decision of the Division Bench of the Calcutta High Court in the case of Patringa Koer vs Madhavanand Ram & Ors., Calcutta Law Journal, 1911, Vol.
14 p. 476 where it was held that a revival of execution proceedings does not operate as revival of the attachment so as to prejudice the rights of strangers who have in the interval acquired a title to the property.
The reversal of judicial orders leaves unaffected the rights of strangers, bona fide pur chasers, whether under execution sale or under private sale, who have acquired title on the assumption that such orders were valid in law.
A careful reading of this decision shows it is of no assistance to the case of the respondent because the judgment makes it clear that what was really held was that in the absence of statutory provisions to the contrary, the court cannot cancel the order of dismissal for default of an execution application with retrospective effect so as to prejudice the title that might have been acquired in the interval by a stranger, when the property was admittedly not in the custody of the Court.
This decision might have helped the respondents if the alienations in question had been effected during the interval between the dismissal of the Title Execution Case and its restoration.
But, in the present case, the alienations were effected 1044 when the attachment was subsisting as we have already point ed out and hence this decision is of no assistance to the respondents.
We are not called upon to consider as to wheth er the aforesaid decision lays down good law or as to what would have been the effect of the restoration of the Title Execution Case had the alienations been effected during the aforesaid interval and we do not propose to say anything in this regard.
In our view, the Division Bench of the Calcutta High Court was in error in taking the view, in the judgment appealed against, that by reason of the dismissal of the said Title Execution Case, the attachment came to an end and the order of restoration of the said case would not affect any alienation made before the restoration although such alienations might have been made during the subsistence of the attachment.
We may mention that our attention was drawn to the amendment of Rule 57 of Order 21 made by the Calcutta High Court, but in our view that amendment merely provides that although under Rule 57 of Order 21 the attachment would cease on an order dismissing the application for execution it is open to the Court to make an order to the contrary.
which would mean that the Court could make an order to continue the attachment for some time.
The amendment, howev er, is of no relevance in the case before us.
In the result, the appeal is allowed, the impugned judgment set aside and the order of First Subordinate Jude at Alipore in Misc.
Case No. 8 of 1978 which was set aside by the Calcutta High Court restored.
The respondents must pay to the appellant the cost of the appeal.
N.P.V. Appeal allowed.

summary/full:
The appellant filed a petition for execution of the money decree obtained by her in High Court against the judgment debtor and attachment was levied in execution on open land and a portion of the premises in question belong ing to the judgment debtor.
Subsequently, the judgment debtor sold a portion of the attached property.
The purchas er in turn, sold a portion thereof to the respondents.
The aforesaid execution petition was dismissed for default but later on an application by the appellant, the said Execution Case was restored, and the said property was again attached, and a proclamation for sale of the said property was issued under Order 21 Rule 66 of the Code of Civil Procedure.
The respondents ' petition under Order 21, Rule 58 of C.P.C. for releasing the property purchased by the respondents from attachment was dismissed.
The High Court allowed the appeal.
In appeal to this Court, it was urged on behalf of the appellant that in view of the provisions of Section 64 of the Code of Civil procedure, the sale of the property by the judgment debtor to the purchaser and the sale thereafter by him to the respondents, which were both effected during the subsistence of the attachment, were void as against the appellant decree holder, and although the attachment ceased on the dismissal of the Title Execution Case, on May 9, 1972, it was revived by restoration of the case.
Allowing the appeal, this Court, HELD: An order of restoration of a suit dismissed for default would certainly restore or revive the attachment for the period during which it was in subsistence, namely, prior to the dismissal of the suit or execution application.
[ 1043D] 1039 In the present case both transactions, sale by the judgment debtor and subsequent sale by the purchaser to the respondents, were effected during the subsistence of the attachment and before the Title Execution Case was dismissed for default.
[1043C] The Division Bench of the High Court was in error in taking the view that by reason of the dismissal of the said Title Execution Case, the attachment came to an end and the order of restoration of the said case would not affect any alienations made before the restoration, although such alienations might have been made during the subsistence of the attachment.
[1044C] Sushila Bala Dasi vs Guest Keen Williams Ltd., I.L.R. 1949 Vol.
1 Calcutta, p. 177 Annapuma Patrani & Ors.
vs Lakshmana Kara & Anr., A.I.R. 1950, Madras, p. 740; Pradyut Natwarlal Shah vs Suryakant H. Sangani & Ors., A.I.R. 1979 Bombay, p. 166; Tavvala Veeraswami vs Pulim Ramanna & Ors., A.I.R. 1935 Madras, p. 365 and Patringa koer vs Madhavanand Ram & Ors., Calcutta Law Journal, 1911, Vol.
14 p. 476, referred to.