judgement:
Civil Appeal No. 223 of 1974.
From the Judgment and order dated 13.7.1973 of the Railways Rates Tribunal, Madras in Complaint No. 2 of 1969.
K.K. Jain, Bishamber Lal, Pramod Dayal and A.D. Sanger for the Appellant.
Bed Brat Barua, Ms. A. Subhashini,.
C.V. Subba Rao, Mrs. section Suri, P. Parmeswaran and Anil Katiyar for the Respondent.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
This appeal, with Special Leave, is against the order and judgment dated July 13, 1973, of the Railways Rates Tribunal Madras, in complaint filed by the appellant under Section 41(1) of the Indian Railways Act No. 9 of 1890.
The background facts are these: The appellant is a Company.
It has set up a fertilizer factory at 387 Kota in Rajasthan.
It is said to be an industrially backward area.
The factory manufactures Urea for which the main raw material is Naptha.
Naptha has to be transported from Koyali Refinery of Indian oil Corporation.
The nearest railway station is Bajuva near Baroda.
The nearest railway station serving Company 's factory is Dadhevi in Rajasthan.
The distance between Bajuva and Dadhevi is about 520 kms.
For transportation, the Naptha has been classified by the Railway under Clause 110 B of the tariff.
Before the actual setting up of the factory, the Company, by its letter dated September 5, 1966 requested the Railway Board for a concessional frieght rate for the carriage of Naptha.
It requested the Railway Board for fixed Station to Station rate equivalent to classification 62.5 B.
That would have meant reduction of about 43% in the normal tariff under clause 110 B.
In that letter it was pointed out that if such concessional rate was not fixed, the Company would be put to disadvantageous position as against the other factories located at ports or near the refineries.
The Railway Board by its letter exhibit C5 dated November 5, 1966 agreed to quote station to station rate equal to 85 B (Special).
In the said letter it was also stated that as the special rate was being quoted ahead of the actual setting up of the factory the freight rate need to be reviewed when the traffic actually begins to move.
When the factory was almost ready for operation the company wrote a letter dated June 5, 1967 requesting the Railway Board for charging the rate under classification 62.5 B instead of 85 B(Special).
The Railway Board did not accede to the request.
On May 31, 1968 the company wrote another letter informing the Railway Board that the movement of Naptha would commence from June/July 1968 and pending decision of the company 's earlier request, the Railway Board may permit charging the rate equivalent to 85 B (Special) already offered in terms of the letter exhibit 5.
The Railway Board refused to grant that request also.
The Railway Board, however, informed the Company in the letter dated July 11, 1968 as follows: "However, if on the basis of facts and figures your cost of production (date to be furnished for at least one complete year) vis a vis the sale price of fertilizers, it can be established that production of fertilizers at Kota is uneconomical, until freight concession on the movement of Naptha from Bajuva/Trombay to Kota is granted, the Railway Board would be prepared to reconsider the question.
" 388 on April 19, 1969, the company filed a complaint under Section 41(1)(a) and (b) of the Railways Act, 1890 before the Railway Rates Tribunal Madras.
The principal contentions raised in the complaint are as follows: "(i) The Railway Board was estopped and/or precluded from going back on the assurance Of quoting station to station concessional rate 85 B when the company had in vested a large amount of capital in setting up the factory at a place away from the refinery or port (ii) The rate charges by the Railway for the carriage of Naptha between two stations Bajuva and Dadhevi was unreasonable under Section 41(1)(b) of the Indian Railways Act, 1980, and (iii) The Railways were showing undue preference or advantage in respect of other traffic and contravening the provisions of Section 28 of the Indian Railway Act, 1890.
" With these and other contentions, the company requested the tribunal to declare the rate charged for the carriage of Naptha as unreasonable and to fix a reasonable rate for such carriage.
The Railway Board in its reply maintained that while quoting the concessional rate equal to 85 B (Special) it was made clear to the company that the rate was subject to review when the traffic starts moving and that concessional rate was provisional in character.
The company did not construct the factory relying solely on the concessional rate offered by the Railway Board.
There was no scope for any such understanding since the Railway reserved its right to determine the correct rate when the traffic started moving.
It was later found that the chemicals have been advisedly given low class rate with a view to encourage fertilizer industry and no further concession was necessary to the company.
It was further stated that the question of any undue prejudice of undue favour to any party does not arise when charging the respective class rates for specified commodities.
On these pleadings the Tribunal considered among others, the following issues: 1.
Whether freight charges, now charged, for the carriage of a Company 's traffic in Neptha from Bajuva to Dadhevi station are unreasonable under Section 41(1) of the Indian Railways Act, 1890? 389 2.
Whether the Railways are contravening Section 28 of the Indian Railways Act in charging the respective class rates for commodities naptha, chemical manures, divisions A & B, Urea and Gypsum? 3.
Whether the Railways are estopped by the doctrine of promissory estoppel in view of the assurance given in the letter exhibit C? The Tribunal determined all these questions against the company.
It was held that there was no unreasonableness in the rate charged for the carriage of Naptha from Bajuva to Dadhevi.
The Railways are not contravening Section 28 of the Railways Act.
The rate charged has not caused any prejudice to the company.
On the question of promissory estoppel, the Tribunal held that the assurance given by the Railway Board in the letter exhibit C5 was not mainly responsible for setting up of fertilizer factory at Kota.
It was further held that even if exhibit CS was an assurance to the Company the withdrawal of that assurance has not adversely affected the interests of the company.
Upon the submissions made by learned counsel on both sides, the following questions arise for our consideration: (1) Whether the Railway Board was bound to give the concessional rate offered to the company under exhibit C5 dated November 5, 1966? (2) Whether the rate charged for the carriage of Naptha between Bajuva and Dadhevi is unreasonable? (3) Whether the Railways are showing undue preference or advantage in respect of other traffic and contravening the provisions of Section 28 of the Railways Act? We may conveniently take up third question first for consideration.
The relevant provisions of the Railways Act, 1890, which have a material bearing on the question are these: Section 41 provides for filing complaints against Railway Administration.
The Section provides as follows, so far as it is material: 390 41(I) Any complaint that a railway administration (a) is contravening the provisions of Section 28 or (b) is charging for the carriage of any commodity between two stations a rate which is unreasonable, or (c) x x x x x may be made to the Tribunal and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this chapter.
Section 28 provides: "28.
A Railway administration shall not make or give any undue or unreasonable preference or advantage to, or in favour of, any particular person or railway administration, or any particular description of traffic, in any respect what soever, or subject any particular person or railway administration or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
" The third question formulated by us relates, to the contravention of Section 28 of the Railways Act.
The scope of this Section has been considered by this Court in Rajgarh Jute Mills Ltd v Eastern Railway and another, [ ; at 241.
There it was observed that a party who complains against the railway administration that the provisions of Section 28 have been contravened must establish that there has been preference between himself and his goods on the one hand and his competitor and his goods on the other.
Gajendragadkar, J. (as he then was) observed: "Section 28 is obviously based on the principle that the power derived from the monopoly of railway carriage must be used in a fair and just manner in respect of all persons and all descriptions of traffic passing over the railway area.
In other words, equal charges should normally be levied against persons or goods of the same or similar kinds pas sing over the same or similar area of the railway lines and under the same or similar circumstances; but this rule does not mean that, if the railway administration charges un 391 equal rates in respect of the same or similar class of goods travelling over the same or similar areas, the inequality of rates necessarily attract the provisions of section 28.
All cases of unequal rates cannot necessarily be treated as cases of preference because the very concept of preference postulates competition between the person of traffic receiving preference and the person or traffic suffering prejudice in consequence.
It is only as between competitors in the same trade that a complaint of preference can be made by one in reference to the other." In the light of these principles, the Tribunal considering the material on record held that there is no evidence produced by the Company to justify any grievance under Section 28.
We see no reason to disagree with this conclusion.
It is, in our opinion, perfectly justified.
In fact Mr. K.K. Jain learned counsel for the appellant also did not seriously dispute the correctness of that finding recorded by the Tribunal.
We may now turn to the second question.
K.K. Jain urged that the rate charged by the Railway Administration is per se unreasonable.
Here again the onus to prove the alleged unreasonableness of the freight rests on the company.
It is for the company to establish that the rate charged by the Railway Administration for the carriage of Naptha is unreasonable.
Of course, this onus could be discharged by relying upon the material produced by the Railways.
Mr. Jain, therefore, relied upon a statement exhibit C46 in support of his case.
exhibit C46 is a statement of surplus "working cost" in respect of carriage of Naptha from Bajuva to Dadhevi.
It is, in our opinion, not necessary to analyse the statement.
Even assuming that the railways are earning some surplus income after deducting the operation cost that by itself is no ground to hold that the freight charged is per se unreasonable.
It must be born in mind that the railways are run as commercial undertaking and at the same time it being an instrumentality of the State, should serve the national interest as well.
There is however, no obligation on the railways to pass on the extra amount realised by the carriage of goods to customers.
Nor it is necessary to share the profit with the commuters.
As Mr. Barua learned counsel for the Railways said that in the case of commodities of national needs such a foodgrains, crude oil etc., it may be necessary for the Railways to charge below the operation cost.
To off set such a loss the Railways may charge higher freight for certain other classified commodities.
Therefore, it seems to us, that the cost of operation cannot by itself be the basis for judging the reasonableness of the rate changed.
392 It was next urged by Mr. K.K. Jain that the crude oil and Naptha are considered as comparable commodities for the purpose of carriage.
The crude oil carries the rate equal to class 85 B(old), 85(new) while Naptha carries rate 110 B(old), 105 B(new).
In terms of amounts it works out at Rs.59.45 for crude oil as against Rs.73.13 for Naptha.
The counsel urged that there is no justification shown for this wide disparity in the first place.
Secondly, the freight rate of crude oil was the rate offered to the company under exhibit CS and the denial of that rate without any good reason is arbitrary.
This argument though attractive does not carry conviction if one analyses the evidence on record.
Crude oil has been clubbed with Glycerine, fruit juices and syrups, fibres, flax etc.
Naptha has been clubbed with Aviation Spirit, Petrol, Petroleum, Ether and solvent oil.
From the evidence produced by the Railways Naptha has been classified as a dangerous commodity with the flash point below 24.4 xf8C spontaneously.
The crude oil has no such dangerous characteristics.
It is also on record that Naptha requires special type of tank wagons and the Railways have to take special precautions for transportation.
These and other relevant factors have been taken into account by the Tribunal for rejecting the demand of the company for parity in freights.
This Court cannot, interfere with such a finding in this appeal under Article 136 of the Constitution.
On the merits also, we see no justification to demand that Neptha should take the same freight rate as that of crude oil.
We may now revert to the first question.
It relates to the correctness of the view taken by the Tribunal on the doctrine of promissory estoppel resulting by the letter exhibit CS of the Railway Board.
The Tribunal has rejected this claim of the company by summarising its conclusion in the following terms: "We must, therefore, hold that the assurance contained in .
CS was not mainly responsible for the setting up of the Fertilizer Factory at Kota.
Even if it was held that exhibit CS was a definite encouragement to the complainant to set up the Kota factory, there is no evidence on record to show that the withdrawal of the concession by exhibit 12 has adversely affected the complainant.
We will show in the (i succeeding paragraphs that the complainant has suffered no material injury by virtue of the withdrawal of the concessional rate and the charging of the normal rate.
It is well settled that the principle of estoppel cannot be applied unless the person pleading estoppel can show that he has been prejudiced by the conduct of the party on whose assurance l l he has acted.
" 393 Here the Railways Rates Tribunal apparently, appears to have gone off the track.
The doctrine of promissory estoppel has not been correctly understood by the Tribunal.
It is true, that is the formative period, it was generally said that the doctrine of promissory estoppel cannot be invoked by the promisee unless he has suffered 'detriment ' or 'prejudice '.
It was often said simply, that the party asserting the estoppel must have been induced to act to his detriment.
But this has now been explained in so many decisions all over.
All that is now required is that the party asserting the estoppel must have acted upon the assurance given to him.
Must have relied upon the representation made to him.
It means, the party has changed or altered the position by relying on the assurance or the representation.
The,alteration of position by the party is the only indispensable requirement of the doctrine.
It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel.
The Court, however, would compel the opposite party to adhere to the representation acted upon or abstained from acting.
The entire doctrine proceeds on the promise that it is reliance based and nothing more.
This principle would be clear if we study the cases in which the doctrine has been applied even since it was burst out into sudden blaze in 1946.
Lord Denning in Central London Properties Ltd v High Trees House Ltd, 11947] K.B. 130 sitting as a trial judge, asserted: "A promise intended to be binding, intended to be acted upon, and in fact acted upon is binding . .
The history of the High Trees principle is too well known to bear repetition.
It will be enough to make the following points.
The promisor is bound because he led the promisee to commit himself to change the position.
If the promisee has acted upon the promise, the promisor is.
precluded from receding his promise.
No further detriment to the promisee upon his temporal interests need be established.
This position has been made clear by Lord Denning himself in his article "Recent Developments in the Doctrine of Consideration" Modern Law Review, Vol. 15 at p. 5.
"A man should keep his word.
All the more so when the promise is not a bare promise but is made with the intention that the other party should act upon it.
Just a contract is different from tort and from estoppel, so also in the sphere now under discussion promises may give rise to a different equity from other conduct.
394 The difference may lie in the necessity of showing "detriment" where one party deliberately promises to waive, modify or discharge his strict legal rights, intending the other party to act on the faith of promise, and the other party actually does act on it, then it is contrary, not only to equity but also to good faith, to allow the promisor to go back on his promise.
It should not be necessary for the other party to show that he acted to his detriment in reliance on the promise.
It should be sufficient that he acted on it.
The principle governing this branch of the subject cannot be better put then in the wolds of a great Australian jurist, DIXON, J. in Grundt v The Great Boulder Pty Gold Mines Ltd, ; There he said: "It is often said simply that the party asserting the estoppel must have been induced to act to his detriment.
Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine.
That purpose is to avoid or pre vent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting.
This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it.
So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain.
His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment.
His action or inaction must be such that if the assumption upon which he proceeded were shown to be wrong, and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice.
" This passage was referred to, with approval, by Lord Denning in Central Newbury Car Auction Ltd v Unity Finance Ltd, at 909.
The said passage has also been quoted, with approval, 395 by Bhagwati, J. (as he then was) in Motilal Padampat Sugar Mills Co A Ltd v state of U.P. & Ors.,[ 1979]2 SCR 641 at p. 695= 1979(2)SCC 409.
The learned Judge then said: "We do not think that in order to invoke the doctrine of promissory estoppel it is necessary for the promisee to show that he suffered detriment as a result of acting in reliance on the promise.
But we may make it clear that if by detriment we mean injustice to the promisee which could result if the promisor were to recede from his promise then detriment would certainly come in as a necessary ingredient.
The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise.
" The view taken in Motilal Padmapat Sugar Mills case (supra) has been reiterated in Union of India & Ors.
vs Godfrey Philips India Ltd,, [ 1985 ] 4 SCC 369 = [ 1985 ] Supp 3 SCR 123 .
The concept of detriment as we know understand is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation.
It is, however, quite fundamental that the doctrine of promissory estoppel, cannot be used to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power.
Secondly, the estoppel stems from equitable doctrine.
It, therefore, requires that he who seeks equity must do equity.
The doctrine, therefore, cannot, also be invoked if it is found to be inequitable or unjust in its enforcement.
We may also state that for the purpose of invoking the doctrine, it is not necessary for the company to show that the assurance contained in exhibit
C5 was mainly responsible for establishing the factory at Kota.
There may be several representations to one party from different authorities in regard to different matters.
Or, there may be several representations from the same party in regard to different matters.
As in the instant case, there was one representation by the Rajasthan Government to supply power to the company at concessional rate.
There was another representation from the same Govern 396 ment to exempt the company from payment of tax for certain period.
There may be other representations from the same or some other authorities.
If those representations have been relied upon by the company, the Court would compel those parties to adhere to their respective representations.
It is immaterial whether each of the representations was wholly responsible or partly responsible for locating the factory at Kota.
It is sufficient if the company was induced to act on that representation.
The last and final aspect of the matter to which attention should be drawn is that for the purpose of finding whether an estoppel arises in favour of the person acting on the representation, it is necessary to look into the whole of the representation made.
It is also necessary to state that the representation must be clear and unambiguous and not tentative or uncertain.
In this context we may usefully refer to the following passage from Halsbury 's Laws of England, Halsbury 's Laws of England 4th Edn.
16 p. 1071 para 1595. "1595.
Representation must be unambiguous To found an estoppel a representation must be clear and unambiguous, not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for, and for this purpose the whole of the representation must be looked at.
This is merely an application of the old maxim applicable to all estoppels, that they "must be certain to every intent The question now is whether the assurance given by the Railway Board in the letter exhibit
C5 was clear and unqualified.
But unfortunately, it is not so.
It was subject to review to be undertaken when the company starts moving the raw material.
exhibit C5 reads: New Delhi I, Dated S Nov., 1966 Dear Sir, Sub: Integrated Fertilizer PVC project at Kota, Rajasthan Rail movement of Naptha.
397 Ref: Your letter No. SFC/Gen 72 dated 5.9.1966 I am directed to state that the Railway Board agree to quote a special rate equal o class 85 B (Special) CC: K for transport of Naptha in train loads from Bombay or Koyali to Kota, for manufacture of fertilizers.
The proposed special rate will apply at owner 's risk.
Since the special rate is being quoted ahead of the actual setting up of the factory the rate may need to be reviewed when the traffic actually begins to move.
The Railway may accordingly be approached before the traffic actually starts moving.
Yours faithfully, Sd/ R.L. Sharma for Secretary Railway Board" What does this letter mean? The first part of the letter offering the concessional rate equal to class 85 B (Special) has been completely watered down in the second part of the letter.
It has been expressly stated that the rate may need be reviewed when the traffic actually begins to move.
The company was put to notice that it has to again approach the Railway Administration.
The Railway authorities now states that they have reviewed the whole matter and found no justification to offer a concessional freight rate for Naptha, since fertilizers are deliberately given a low classification in the tariff.
From the tenor of exhibit S the Railways are entitled to state so, and it does not amount to resiling from the earlier assurance.
No question of estoppel arises in favour of appellant out of the representation made in exhibit CS.
We, therefore, agree with the conclusion of the Tribunal but not for all the reasons stated.
In the result the appeal fails and is dismissed.
In the circumstances.
however, we make no order as to costs.
S.L. Appeal dismissed.

summary/full:
The appellant, a company, set up a fertilizer factory at Kota in Rajasthan.
The factory manufactures urea for which the main raw material is Naptha, which has to be transported from the Koyali Refinery of the Indian oil Corporation.
Before the actual setting up of the factory, the appellant requested the Railway Board by letter for a concessional frieght rate for the carriage of Naptha to the factory.
The Railway Board by its letter EX 5 dated November 5, 1966, quoted station to station rate equal to 85 B (special) as against the rate equivalent to classification 62.5 B requested for by the appellant, and also stated that as the special rate was being quoted ahead of the actual setting up of the factory, the frieght rate would be reviewed when the traffic actually began to move.
When the factory was almost ready for operation, the appellant again requested the Railway Board by letter for charging the rate under classification 62 5 B instead of 85 B (special) quoted by it.
The Railway Board refused to oblige.
The appellant wrote another letter to the Board, requesting it to permit charging the rate equivalent to 85 B (special) pending its final decision, as the movement of naptha was to commence from June/July, 1968.
The Railway Board refused to grant that request also, saying that it could reconsider the question if on the basis of the facts and figures of the cost of production vis a vis the sale price of the fertilizers, it could be established that the production of the fertilisers at Kota was uneconomical unless freight concession on the movement of naptha was granted.
The appellant filed a complaint under section 41(1)(a) and (b) of the Railways Act, 1890, before the Railway Rates Tribunal.
The Tri 384 bunal decided against the appellant.
Aggrieved, the appellant appealed to this Court by special leave for relief against the order and judgment of the Tribunal.
Dismissing the appeal, the Court ^ HELD: Three questions arise for consideration of the Court: (1) whether the Railway Board was bound to allow the concessional rate offered to the appellant, that is, 85 B (special) quoted in its letter exhibit C 5 dt.
November 5, 1966, to the appellant, (2) whether the rate charged for the carriage of the naptha between the stations concerned was unreasonable, and (3) whether the Railways were showing undue preference or advantage in respect of other traffic in contravention of the provisions of section 28 of the Railways Act.
[389E F ] Dealing with the third question first, which relates to the contravention of section 28 of the Railways Act, the scope of the section was considered by this Court in Rajgarh Jute Mills Ltd vs Eastern Railway and another; , at 241, and the Railway Rates Tribunal, considering the material on record in the light of the decision of the Court in case, held that there was no evidence produced by the appellant to justify any grievance under section 28.
This conclusions is perfectly justified.
[390E; 391C] The second question above said relates to the rate charged by the Railway Administration being per se unreasonable.
Even assuming, as argued by appellant 's counsel, that the Railways are earning some surplus income, that by itself is no ground to hold that the frieght charged is per se unreasonable.
In the case of commodities of national needs such as foodgrains, crude oil etc., it may be necessary for the Railways to charge below the operation cost, and to offset the loss, the Railways may charge higher freight for some other classified commodities.
The cost of operation cannot by itself be the basis for judging the reasonableness of the rate charged.
Counsel for the appellant also argued that crude oil and naptha were comparable commodities for the purpose of carriage but there was disparity in the rates charged in respect of the two, naptha being charged at a much higher rate.
The Tribunal rejected the demand of the appellant for parity in frieghts, and the Court cannot interfere with the finding to the Tribunal in this appeal under Article 136 of the Constitution.
On merits also, there is no justification to demand that neptha should take the same freight rate as that of the crude oil.
[391D, F H; 392B. D E] 385 Lastly, the first question: It relates to the correctness of the view taken by the Tribunal on doctrine of promissory estoppel consequent upon the letter exhibit 5 of the Railway Board.
The Tribunal rejected this claim of the appellant.
Considering the conclusion of the Tribunal on this question, it appears the Tribunal has not correctly understood the doctrine of promissory estoppel: The party asserting the estoppel must have relied and acted upon the assurance given to him.
It means the party has changed or altered the position by relying on the assurance or representation.
The alteration of position by the party is the only indispensable requirement of the doctrine.
It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel. "A promise intended to be binding, intended to be acted upon, and in fact acted upon, is binding", said Lord Denning, sitting as a trial judge in Central London Properties Ltd vs High trees House Ltd., If the promisee has acted upon the promise, the promisor is precluded from receding from his promise.
The concept of detriment as it is understood now is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation.
It is, however quite fundamental that the doctrine of promissory estoppel cannot be used to compel the public bodies or The Government to carry out the representation or promise which is contrary to law or which is outside their authority or power.
Secondly, the estoppel stems from equitable doctrine.
it requires that he who seeks equity must do equity.
The doctrine, therefore, cannot also be invoked if it is found to be inequitable or unjust in its enforcement.
or the purpose of invoking the doctrine, it is not necessary for the appellant to show that the insurance contained in exhibit (I S was mainly responsible for the establishing of the factory at Kota.
There may be several representation to one party from different authorities in regard to different matters.
Or there may be several representations from the same party in regard to different matters; In the instant case, there was one representation by the Rajasthan government to supply power to the appellant 's factory at concessional rate.
There is another representation from the same government to exempt the appellant from payment of tax for a certain period.
If those representations have been relied upon by the appellant, the Court would compel the authorities to adhere to their representations.
What is required is the fact that the appellant was induced to act on the representations.
The assurance given by the Railway Board in the letter exhibit S was not clear and unqualified.
it was subject to review to be undertaken 386 when the appellant started moving the raw material.
Accordingly, A appellant was put to notice that it has to approach the Railway administration again when it would review the whole matter.
From the tenor of exhibit 5, the railways are entitled to say that they have reviewed the matter and found no justification for a concessional frieght rate for naptha; that does not amount to resiling from the earlier assurance.
No question of estoppel arises in favour of the appellant in the case out of the representation made in Ex 5.
The Court agreed with the conclusion of the Tribunal but not for all the reasons stated.
Rajgarh Jute Mills Ltd vs Eastern Railway & Anr, at 241; Central London Properties Ltd vs High Trees House Ltd, ; Central Newbury Car Auctions Ltd vs Unity Finance Ltd, at 909; Article "Recent Development in the Doctrine of Consideration" Modern Law Review, Vol. , Grundt vs The Great Boulder Ptv Gold, Mines Ltd, ; ; Mohlal Padampet Sugar Mills Co Ltd vs State of UP and ors; , at 695= ; ; Union of India and ors vs Godfrey Philips Ltd, ; [1985] Supp. 3 SCR 123 and Halsbury 's Laws of England 4th Edn., Vol. , para 1595, referred to.


judgement:
Civil Appeal No. 2598 of 1987.
370 From the Judgment and order dated 26.5.1987 of the Karnataka A High Court in W.A. No. 615 of 1987.
Dr. Y.S. Chitale and K.J. John for the Appellant.
S.S. Javali, Ranjit Kumar and Dev Dass for the Respondents.
The Judgment of the Court was delivered by Dutt, J.
Special leave is granted.
As elaborate submissions have been made at the preliminary hearing of the special leave petition on the merits of the case by both the parties, we proceed to dispose of the appeal on merits.
This appeal involves the question as to the eligibility of the appellant for admission in the First Year MBBS Course of the Mysore University.
The appellant passed the B.Sc.
Examination of the Mysore University with Botany, Chemistry and Zoology securing 54.7% marks in the aggregate.
She also passed the PUC in the year 1979 with Physics, Chemistry and Biology as optional subjects and obtained 43.1% marks in the aggregate.
She sought for admission in a private Medical College or Institute.
On her query, the second respondent, who is the Principal of the Institute, by his latter dated February 26, 1986 con firmed that the appellant was eligible for admission to MBBS Course.
The relevant portion of the letter, as quoted in the special leave petition, is extracted below: "With reference to your telegram, I wish to write that candidates passing B.Sc.
degree examination with Physics, Chemistry and Biology or Chemistry, Biology and Zoology as optional subjects, are eligible, provided such of these candidates who have passed with Chemistry, Biology and Zoology should have passed Physics as optional subject in II year PUC or equivalent examination (Pre degree or Intermediate) or the additional Physics examination of any University or Institution recognised by the State Government.
The candidate should have obtained 50% marks in the optional subjects in the B.Sc.
degree examination.
" It is the case of the appellant that on the basis of the said letter, she joined the Institute in February, 1986.
However, by Memo dated 371 September 19, 1986 the second respondent intimated the appellant that her admission had not been approved by the University of Mysore.
The relevant portion of the letter of the Registrar of the University of Mysore, as quoted in the said Memo, is given below: "She has secured 54% in B.Sc., but secured 43% in PUC.
Hence she is not eligible.
Her admission may be cancelled.
" The appellant moved the Karnataka High Court by filing a writ petition under Article 226 of the Constitution of India challenging the validity of the cancellation of her admission in the First Year MBBS Course and praying for an order directing the respondents to allow her to continue as a student of the First Year MBBS Course.
A learned Single Judge of the High Court by his judgment dated April 8, 1987 rejected the writ petition on the ground that the appellant not having obtained 50% marks in the aggregate in Physics, Chemistry and Biology in the PUC examination, was not eligible for admission to the MBBS Course.
On appeal by the appellant, the Division Bench of the High Court also took the same view and dismissed the appeal.
Hence the present appeal by special leave.
The Mysore University to which the Institute or College is affiliated has framed regulations regarding admission to MBBS Course for the academic year 1985 86.
The relevant provisions of the said regulations are extracted below: " 1. ADMlSSlONS ELIGIBIL1TY: (a) The candidate shall have passed the Two Year PUC Examination conducted by the PUC Board, Karnataka State with Physics, Chemistry and Biology as optional subjects or any other examinations recognised as equivalent by the Mysore University and/or shall have passed the competitive examination conducted by the Karnataka Government for this purpose.
or B.Sc.
Examination of an Indian University provided that 372 he has passed the B.Sc.
Examination with not less than two of the following subjects: Physics, Chemistry, Biology (Botany, Zoology) and further that he has passed the earlier qualifying examinations with the following subjects: Physics, Chemistry, Biology and English.
Provided that the candidate should have secured not less than 50% of the total marks in Physics, Chemistry, Biology subjects taken together at the qualifying and/or competitive examination.
Provided further that in respect of candidates belonging to Scheduled Caste/Scheduled Tribe the minimum marks required for admission shall be 40% in lieu of 50% for general candidats.
(b) The candidate should have completed 17 years on the 31st December of the year of admission. " Under Regulation l(a), a candidate having passed the Two Year PUC or equivalent examination with Physics, Chemistry and Biology as optional subjects or B.Sc.
Examination of an Indian University with Physics, Chemistry, Biology will be eligible for admission in the First Year MBBS Course subject to this that the candidate should have secured not less than 50% of the total marks in Physics, Chemistry and Biology taken together at the qualifying and/or competitive examination.
It follows, therefore, that a candidate has to secure 50% of the total marks in Physics, Chemistry and Biology taken together in the PUC or an equivalent examination, which is a condition precedent to her eligibility for admission in the First Year MBBS Course.
The High Court has rightly observed that as the appellant did not secure 50% of the total marks in Physics, Chemistry and Biology in the PUC Examination, she was not eligible for admission in the First Year MBBS Course also rightly overruling the contention of the appellant that the marks obtained by her in Physics in the PUC Course should be added to the marks obtained by her in the B.Sc.
Examination so that it would work out to 50% of the tot.
marks in Physics, Chemistry and Biology.
Under Regulation 1(a), a candidate after passing B.Sc.
Exami 373 nation and seeking admission in the seats reserved for B.Sc.
candidates has to secure 50% of the total marks in Physics, Chemistry and Biology in the PUC Examination.
It is true that the appellant has obtained 54% marks in the B.Sc.
Examination, but she had failed to obtain 50% marks in the aggregate in the PUC Examination in Physics, Chemistry and Biology.
In the circumstances, she was not eligible for admission ill the First Year MBBS Course.
We are afraid, the Karnataka Medical Colleges (Selection of Candidates for Admission to 1 MBBS) Rules, 1985, hereinafter referred to as 'the said Rules ', are not applicable to seats in Private Colleges other than Government seats, which is apparent from Sub rule (2) of rule 1.
Sub rule (2) of rule 1 provides as follows: "R.1(2) These rules shall be applicable to the selection of candidates made on or after the date of commencement of these rules, for admission to the I year MBBS Course in the State of Karnataka in respect of all the seats in Government Colleges and the Government seats in the Private Colleges, as indicated in the Schedule to these Rules.
" Dr. Chitale, learned Counsel appearing on behalf of the appellant, has placed much reliance upon the Government Order dated August 1, 1984 annexing a copy of the said Rules.
The relevant portion of the Government Order is as follows: "O R D E R Accordingly, after considering the matter, Government of Karnataka hereby direct that Rules for selection of candidates for admission on to I M.B.B.S. Course in the Government and Private Medical Colleges for the academic year 1985 86 and onwards shall be as in Annexure to this order." In the Government order, no doubt, Private Medical Colleges have been mentioned, but it does not follow that the said Rules would apply to all candidates in the Private Medical Colleges.
Sub rule (2) of rule 1 of the said Rules, which has been extracted above, clearly shows that the said Rules would apply to only Government seats in the Private Colleges and, as such, in the Government order Private Colleges have been mentioned.
There is, therefore, no substance in the contention made on behalf of the appellant that the said Rules would also be applicable to the appellant.
374 Even assuming that the said Rules are applicable to the case of A the appellant, still the appellant will not be eligible for admission in the First Year MBBS Course in view of sub rule (5) of rule 3 of the said Rules, which provides, inter alia, that a person who does not belong to any of the Scheduled Castes or Scheduled Tribes, he has to obtain 50% of marks in PUC or equivalent examination in Physics, Chemistry and Biology as optional subjects.
Thus, the appellant was not eligible for admission in the First Year MBBS Course of Mysore University.
The High Court was, therefore, right in overruling the contention of the appellant that she was eligible for admission in the First Year MBBS Course.
Now the question is whether the appellant should be allowed to continue her studies in the MBBS Course.
By virtue of the interim order of the High Court, the appellant completed the First Year MBBS Course and by virtue of the interim order passed by this Court, the appellant appeared in the First Year MBBS Examination.
It has been strenuously urged by the learned Counsel appearing on behalf of the University that as the appellant was not eligible for admission and was illegally admitted by the Institute in violation of the eligibility rules of the University, the appellant should not be allowed to continue her studies in the MBBS Course under the University.
In support of that contention, much reliance has been placed by the learned Counsel on a decision of this Court in A.P. Christians Medical Educational Society vs Government of Andhra Pradesh, ; What happened in that case was that the appellant Society without being affiliated to the University and despite strong protests and warnings of the University admitted students to the Medical College in the First Year MBBS Course in total disregard of the provisions of the A.P. Education Act, the Osmania University Act and the regulations of the Osmania University.
Some students, who were admitted to the Medical College, filed a writ petition before this Court.
While dismissing the writ petition of the students, this Court observed as follows: "Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interest of the students.
We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the student.
Any direction of the nature sought by Shri Venu gopal would be in clear transgression of the provisions of the University Act and the regulations of the University.
We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations 375 made by the University itself.
We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws.
" It was further observed by this Court as follows: "We regret that the students who have been admitted into the college have not only lost the money which they must have spent to gain admission into the college, but have also lost one or two years of precious time virtually jeopardising their future careers.
But that is a situation which they have brought upon themselves as they sought and obtained admission in the college despite the warnings issued by the University from time to time.
" It appears from the observations extracted above that the students were themselves to blame, for they had clear knowledge that the College was not affiliated to the University and in spite of the warning of the University they sought for the admission in the College in the First Year MBBS Course and were admitted.
In that context this Court made the above observations.
We may refer to a later decision of this Court in Rajendra Prasad Mathur vs Karnataka University, ; In that case, the condition for eligibility for admission to B.E. Degree Course of the Karnataka University was that the students seeking admission should have passed the two year pre University Examination of the pre University Education Board, Bangalore, or an examination held by any other Board or University recognised as equivalent to it.
The appellants, in that case, were admitted to certain private Engineering Colleges for the B.E. Degree Course upon payment of capitation fees, although they were not eligible for admission as the Higher Secondary Examination held by the Secondary Education Board, Rajasthan, passed by some of the appellants and the first B.Sc.
Examination of Rajasthan and Udaipur University passed by the remaining appellants, were not recognised as equivalent to the two year pre University Education Board, Bangalore.
While dismissing the appeals of the students on the ground that they were not eligible for admission in the engineering colleges, Bhagwati, C.J. who delivered the judgment of the Court, observed as follows: "We accordingly endorse the view taken by the learned Judge and affirmed by the Division Bench of the High 376 Court.
But the question still remains whether we should allow the appellants to continue their studies in the respective Engineering Colleges in which they were admitted.
It was strenuously pressed upon us on behalf of the appellants that under the orders initially of the learned Judge and thereafter of this Court they have been pursuing their course of study in the respective Engineering Colleges and their admissions should not now be disturbed because if they are now thrown out after a period of almost four years since their admission their whole future will be blighted.
Now it is true that the appellants were not eligible for admission to the Engineering Degree Course and they had no legitimate claim to such admission.
But it must be noted that the blame for their wrongful admission must lie more upon the Engineering Colleges which granted admission than upon the appellants.
It is quite possible that the appellants did not know that neither the Higher Secondary Examination of the Secondary Education Board, Rajasthan nor the first year B.Sc.
examination of the Rajasthan and Udaipur Universities was recognised as equivalent to the Pre University Examination of the Pre University Education Board, Bangalore.
The appellants being young students from Rajasthan might have presumed that since they had passed the first year B.Sc.
examination of the Rajasthan or Udaipur University or in any event the Higher Secondary Examination of the Secondary Education Board, Rajasthan they were eligible for admission.
The fault lies with the Engineering Colleges which admitted the appellants because the Principal of these Engineering Colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants.
We do not see why the appellants should suffer for the sins of the managements of these Engineering Colleges.
We would, therefore, notwithstanding the view taken by us in this judgment allow the appellants to continue their studies in the respective Engineering Colleges in which they were granted admission.
But we do feel that against the erring Engineering Colleges the Karnataka University should take appropriate action because the managements of these Engineering Colleges have not only admitted students ineligible for admission but thereby deprived an equal number of eligible students from getting admission to the 377 Engineering Degree Course.
We also endorse the directions given by the learned Judge in the penultimate paragraph of his judgment with a view to preventing admission of ineligible students.
" This Court was, therefore, of the view that as the students were innocent and were admitted to the Colleges for the sake of capitation fee in some cases, they should not be penalised and should be allowed to continue their studies in the respective Engineering Colleges in which they were granted admission.
The facts of the instant case are, more or less, similar to the Rajendra Prasad Mathur 's case (supra).
It has been already noticed that on the appellant s query ' the Principal of the Institute by his letter dated February 26, 1986 informed her that she was eligible for admission in the First Year MBBS Course.
It was, inter alia, stated in the letter that the candidate should have obtained 5()% marks in the optional subjects in the B.Sc.
Examination.
There is no dispute that the appellant had obtained 50% marks in those subjects in the B.Sc.
Examination.
The appellant was, therefore.
quite innocent and she was quite justified in relying upon the information supplied to her by none else than the Principal of the Institute in the said letter in regard to the eligibility of the admission in the First Year MBBS Course.
In the circumstances, we do not think that we shall be justified in penalising the appellant by not allowing her to continue her studies in the MBBS Course.
Prima facie it was the fault of the Principal of the Institute but, in our view, the statement that was made by him in his said letter to the appellant as to the eligibility of the appellant for admission in the MBBS Course, was on a bona fide interpretation of the regulations framed by the Mysore University for admission to MBBS Course for the academic year 1985 86, which to some extent suffer from ambiguity.
The regulations should have been more clear and specific.
Be that as it may, following the decision of this Court in Rajendra Prasad Mathur 's case (supra) while we dismiss the appeal.
we direct that the appellant shall be allowed to prosecute her studies in the MBBS Course, and that her result for the First Year MBBS Examination be declared within two weeks from date.
There will, however, be no order as to costs.
H.L.C. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant, who had passed B.Sc.
Examination with Botany.
Chemistry and zoology securing 54.7% marks in the aggregate, and, who had passed earlier the P.U.C. examination with Physics, Chemistry and Biology securing 43.1% marks in the aggregate, joined a private medical college after its principal had confirmed in writing that she was eligible for admission to the M.B.B.S. Course.
After six months in the college, she was informed by the principal that her admission had not been approved by the University as she had secured only 43% marks in the P.U.C. examination while the required minimum was 50% according to the Regulations framed by the University.
The appellant 's writ petition challenging the validity of the cancellation of her admission to the medical college having been dismissed by a Single Judge and her appeal against the same having been rejected by the Division Bench of the High Court, she approached the Court by special leave.
Counsel for the appellant contended inter alia that she was eligible for admission in terms of the Karnataka Medical Colleges (Selection of Candidates for Admission to M.B.B.S.) Rules, 1985, and that in any case, since the appellant had completed the first year M.B.B.S. Course by virtue of interim orders passed by the High Court and this Court, she should be allowed to continue her studies in the M.B.B.S. Course.
Allowing the appeal, ^ HELD: Under Regulation l(a) of the Regulations of the University regarding admission to M.B.B.S. Course for the Academic year 198586, a candidate after passing B.Sc.
Examination and seeking admission in the seats reserved for B.Sc.
candidates should have secured 50% of the total marks in Physics, Chemistry and Biology in the P.U.C. Exami 369 nation.
It is true that the appellant has obtained 54% marks in the B.Sc.
Examination, but she had failed to obtain 50% marks in the aggregate in the PUC Examination in Physics, Chemistry and Biology.
In the circumstances, she was not eligible for admission in the First Year MBBS Course.
[372H; 373A B] There is no substance in the contention made on behalf of the appellant that the Karnataka Medical Colleges (Selection of Candidates for admission to I MBBS) Rules, 1985 would also be applicable to the appellant.
Even assuming that the said Rules are applicable to the case of the appellant, still the appellant will not be eligible for admission in the First Year M.B.B.S. Course in view of sub r. (5) of r. 3 of the said Rules, which provides, inter alia, that a person who does not belong to any of the Scheduled Castes or Scheduled Tribes, has to obtain 50% of marks in P.U.C. Or equivalent examination in Physics, Chemistry and Biology as optional subjects.
Thus, the appellant was not eligible for admission.
[373H; 374A B] On the appellant 's query, the Principal of the Institute by his letter dated February 26, 1986 informed her that she was eligible for admission in the First Year M.B.B.S. Course.
lt was, inter alia, stated in the letter that the candidate should have obtained 50% marks in the optional subjects in the B.Sc.
Examination.
There is no dispute that the appellant had obtained 54% marks in those subjects in the B.Sc.
Examination.
The appellant was, therefore, quite innocent and she was quite justified in relying upon the information supplied to her by none else than the Principal of the Institute.
In the circumstances, we do not think that we shall be justified in penalising the appellant by not allowing her to continue her studies in the M.B.B.S. Course.
Prima facie it was the fault of the Principal of the Institute but, in our view, the statement that was made by him in his said letter to the appellant as to the eligibility of the appellant for admission in the M.B.B.S. Course, was on a bona fide interpretation of the Regulations framed by the University, which to some extent suffer from ambiguity.
The Regulations should have been more clear and specific.
[377C F] A.P. Christians Medical Education Society vs Government of Andhra Pradesh, [19861 2 S.C.C. 667, distinguished.
G Rajendra Prasad Mathur vs Karnataka University, A.I.R. , relied on.


judgement:
ition (Civil) Nos.11788 11796 of 1984.
(Under Article 32 of the Constitution of India).
G.L. Sanghi, P.P. Rao, Raja Ram Aggarwal, Ayyam Perumal and R. Venkatramani for the Petitioners.
S.N. Kacker,.
B.D. Aggarwal, M.K. Ramamurthi, P. Gaur, Jitendra Sharma for the Respondents.
402 Anil Deo Singh, and Mrs. section Dikshit for the State of U.P. and Jitendra Sharma for the others.
U.R. Lalit, Suresh Seth, R.D. Upadhyaya and Madan Sharma for the Intervenor The Judgment of the Court was delivered by OZA, J.
These writ petitions filed by the petitioners challenge the inter se seniority of the officers in the higher judicial service coming from two sources; i) promoted from the judicial service and ii) others who are directly recruited from the Bar.
The petitioners are officers of the State Judicial Service who have been promoted on various dates to the higher judicial service and posted as Additional District Judges or some of them were posted as Civil and Sessions Judges before 1974 as in 1974 the post of Civil and Sessions Judge has been abolished and the higher judicial service for the State of Uttar Pradesh was constituted.
According to the petitioners they were promoted to officiate as Additional District and Sessions Judges on various dates and they continue to officiate as such, they were confirmed and on their confirmation they have been given the seniority not from the date of their continuous officiation but from some other date chosen by the High Court arbitrarily.
And because of which, they have been put in the seniority list much below those officers appointed by direct recruitment and who were appointed much after the petitioners.
According to the petitioners, they were promoted on various dates shown against their names and they have also shown the dates on which they were confirmed: section Pet.
name Date of Date of pro Date of Date of No. joining motion & confir vacancy PCS (J) continous mation in which Nyayika officiation confirmed.
Sewa in HJS on Addl.
distt.
& Sessions Judge 1.
P.K. Dixit 1.3.61 9.9.73 24.1.81 1.10.78 2.
A.N. Gupta 1.3.61 22.9.73 24.1.81 1.10.78 403 3.
B.K. Srivastava 1.3.61 29.3.74 24.1.81 30.4.79 4.
I.S. Mathur 1.4.62 24.5:74 24.1.81 31.7.79 5.
Taj Shanker 1.4.62 16.8.76 24.1.81 1.1.80 6.
R.N. Sarkar 17.4.61 16.8.76 29.10.83 1.1.80 7.
S.P. Agarawal 2.3.63 3.1.77 29.10.83 1.1.80 8.
A.K. Srivastava 1.3.63 3.1.77 29.10.83 1.1.80 ____________________________________________________________ In this list they have also shown the date of the vacancy on which they were proposed to be confirmed.
It is also contended on behalf of the petitioners that in 1975 the present rules for recruitment of the judicial officers in the higher judicial service came into force.
Before these rules were brought into force, the earlier rules were declared to be bad and in substances therefore, before these rules were brought into force, there was no provision for direct recruitment to the higher judicial service.
It is contended that all the vacancies existing on the date on which these rules (1975 Rules) came into force have to be filled in by promotion.
And while confirming and giving the dates for the purposes of seniority, the High Court ought to have prepared a list of vacancies existing on the date on which these rules (1975 Rules) came into force and confirm all those who were officiating as Additional District and Sessions Judges or Civil and Sessions Judges on this date in all those vacancies.
And if this was done, these petitioners who were appointed before 1975 could have been confirmed on those vacancies and in that event they could not have been confirmed in the vacancies occurring in 1978, 1979 & 1980.
It is not disputed that out of these petitioners first four were promoted in 1973 and 1974 and on the date on which these rules came into force, they were already functioning as Civil and Sessions Judges as the designation of Additional District Judges was not there.
In the written affidavit filed by the High Court, it is not disputed that before these rules were brought into force, all the posts which were available on the date on which these rules came into force have to be filled in by promotion as till that date there was no rule requiring direct recruitment.
But unfortunately, the High Court in their return have not mentioned the exact number of vacancies existing on that date also the number of officers who were officiating on that date as Civil and Sessions Judges or Additional District and Sessions Judges 404 who were entitled to be included in that cadre of higher judicial service under these rules.
The High Court, it was contended has prepared a seniority list which has been notified and objections have been invited.
It was therefore directed that list must be produced in this Court and consequently, the lists have been produced.
The seniority list or the list which have been produced along with the affidavit filed by Mr. Chaterjee claiming to be in charge of the litigations of the High Court, unfortunately do not clearly give the picture.
The list must show the initial date on which officers were promoted and were posted in the post of Civil and Sessions Judge or Additional District and Sessions Judge.
It also does not clearly show the date on which the order of confirmation was issued.
And it should have been made clear that before this date of confirmation, on what date a post was available for confirmation of the person concerned so that he should get the seniority if not from the date on which he was promoted for the first time from the date on which the post was available for him.
It was expected that these facts clearly should have been stated in the return filed on behalf of the High Court.
It is not disputed that on the date on which these rules (1975 Rules) were brought into force, all the posts available were to Go to the promoted officers and the only thing that the High Court is expected to do is to find out how many posts were available on that date and how many persons were officiating in the higher judicial service or equivalent posts on that date and their seniority ought to be fixed on the basis of their promotion to the posts except where an officer was not found fit or where officer concerned was reverted back to the judicial posts.
The documents do not disclose that any one of these judicial officers who were promotees have been reverted.
The documents also do not disclose that at any time the High Court considered the question of their confirmation and any one of them was not found fit for confirmation, or that it was decided to postpone the date of confirmation because the work of the officer was not upto the mark.
The record produced by the High Court only shows the date from which these petitioners were promoted and started officiating as Additional District Judges and the date on which they were ultimately confirmed.
During this period their case was considered at any time does not appear from the record produced in this case nor was the contention of the learned counsel appearing for the High Court.
It, therefore, is not disputed that these petitioners who were promoted before these rules (1975 Rules) were brought into force were never found unfit for con 405 firmation and in this view of the matter, therefore, it is clear that all posts available on the date on which these new rules were brought into force will have to be filled in by these promoted officers who were working in the officiating capacity in the post of higher judicial service on the date on which these rules were brought into force.
So far as the situation before these rules were brought into force is concerned even during the course of argument not much controversy appears to exist as it is clear that the question of direct recruitment and the quota of the direct recruits vis a vis promotees was not in existence.
It was contended on behalf of the High Court that when these judicial officers were promoted as it became necessary to fill in the temporary posts the formality of examining their record and consideration by a committee or the full court was not done but were only promoted on the basis of seniority and therefore from the date from which these officers started officiating as Additional District and Sessions Judges, they could not be treated as appointed on probation.
But it is not the case of the High Court that after such adhoc promotion whenever the High Court (full court or a committee) examined their cases any one of them who may have been found not fit for promotion normally would be reverted back to his original post and if at any time these officers were not reverted then imaginary date for probation could not be given on arbitrary basis as throughout their officiation as Additional District and Sessions Judges they have been found fit and they were continuing on these posts.
It is also not stated when after an officer was promoted to fill in the temporary post, his case was considered for promotion to a substantive post.
At best while confirming and giving seniority the only thing that could be considered was the availability of a permanent post and from the date a permanent post was available these officers had to be confirmed giving them seniority from that date.
It appears that the stand of the High Court is that as and when a temporary vacancy was available an officer who was the seniarmost was promoted as Civil and Sessions Judge or Additional District and Sessions Judge but it is not the case of the High Court that afterwards the case of such promoted officers was considered by a committee or by the full court after examining the records and this was done at any time before their cases came up for consideration for confirmation.
It only appears that their cases were considered for confirmation and at that time some date has been given from which they were treated to be on probation and on that basis the seniority has been counted but as stated earlier in absence of any one of these officers not having been 406 found fit for promotion this stand taken by the High Court can not be A justified.
The period of officiation has to be considered as period of probation and the confirmation has to be from the date on which earliest a vacancy was available and the seniority has to be counted on that basis.
Unfortunately neither the affidavit filed on behalf on the High Court nor the list clearly shows the position of these judicial officers who were promoted long before these new rules were brought into force in 1975 and what has been stated above will have to be done afresh so far as the officers who were promoted before the new rules were brought into force in 1975.
This also appears to be the intention of the rules when they were framed in 1975 as is clear from the proviso to Rule 8.
It reads: "Provided further that the permanent vacancies existing on May 10, 1974 plus 31 temporary posts existing on that date, if and when they are converted into permanent posts, shall be filled by promotion from amongst the members of the Nyayika Sewa; and only the remaining vacancies shall be shared between the three sources under these rules: It therefore is clear that even these rules provided that all the posts (permanent) available in the Higher Judicial Service existing on May 10, 1974 plus 31 temporary posts existing on that date which may become permanent later shall be filled by promotion from amongst the members of the Nyayika Sewa.
It is therefore clear that all the posts in the Higher Judicial Service, Lying vacant on May 10, 1974 plus thirty one will have to be filled in from the officers of the Nyayika Sewa.
May be that some of these posts may be occupied by promotee officers who were given promotions on ad hoc basis and working on those posts or that the posts may be Lying vacant.
Whatever may be the situation on the basis of what has been discussed above and also as has been clearly provided in these rules the matter will have to be gone into by the High Court afresh and fill in all the posts in the Higher Judicial Service available on May 10, 1974 plus 31 posts from the officers of the Nyayika Sewa.
It appears that the date 10th MAY has been mentioned in this proviso to Rule 8 because by Notification of May 1974 the Higher Judicial Service was constituted and the posts of Civil and Sessions Judges were abolished.
Paragraph 3 of these Rules notified on 8th May 1975 about the abolition of Civil and Sessions Judges is also significant.
Para 3 reads thus: 407 "Creation of posts and confirmation: (1) Upon the abolition of the cadre of Civil and Sessions Judges, permanent and temporary posts of Additional District and Sessions Judges equal in number of the permanent and temporary posts, respectively, of Civil and Sessions Judges existing immediately before the date of commencement of these rules, shall stand created with effect from the said date, and the officers holding the posts of Civil and Sessions Judges immediately before the said date shall become Additional District and Sessions Judges and be designated accordingly.
" This clearly indicates that those holding the posts either temporarily or permanently as Civil and Sessions Judges immediately before this date i.e. 8th May 1974 shall become Additional District and Sessions Judges and were designated accordingly.
It is therefore clear that the officer who was officiating as Civil and Sessions Judge on 8th May 1974 automatically became Additional District and Sessions Judge and therefore it could not be contended that proper procedure for promotion was not followed but as and when occasion arose an officer in the Judicial Service was posted as Civil and Sessions Judge to perform the functions of that office on the basis of seniority.
It was also contended that when initially an officer in the Judicial Service (Nyayika Sewa) was posted to perform the functions of Civil and Sessions Judge, his promotion was not done in accordance with the Rules and what was suggested was that no Committee considered their record but on the basis of seniority it was decided to promote them.
This argument appears to have been based on the Rules of 1975 where for promotion of the members of the Nyayika Sewa it has been provided that Selection Committee will examine the record of the eligible Judicial officers and then shall prepare a list of those who have been selected for promotion and as and when a vacancy occurs an officer from this list will be promoted.
Admittedly this what has been contemplated in Rule 20 could not be applied retrospectively for promotions before 1975 when the Rules were brought into force and it is also not suggested or brought on record that there was any such system or practice in the High Court.
In fact, nothing has been brought on record to indicate as to how an officer was appointed to the post of Civil and Sessions Judge from the Nyayika Sewa.
In this view of the matter also and in view of the Notification abolishing the posts of Civil and Sessions Judges dated 8th May 1974 it is apparent that there is no scope for going back and those who were working as Civil and Sessions Judges either against temporary or permanent vacancies either appointed temporarily or 408 permanently became Additional District and Sessions Judges temporary or permanent as the case may be and therefore there is no scope for examining their cases now to find out as to whether they were promoted in accordance with the procedure prescribed in Rule 20 which was the rule enacted in 1975.
It has therefore to be accepted that all those who were working as Civil and Sessions Judges on 8th May 1974 automatically became Additional District and Sessions Judges and what was left was only a consideration of their cases of confirmation and in so doing in view of the conclusions arrived at by us and also as has been provided in the proviso to Rule 8 quoted above all the posts available on 10th May 1974 plus 31 posts (temporary) on that date will have to be filled in from the cadre of Nyayika Sewa by promotion.
In this view of the matter therefore while confirming these Judicial officers who were working as Civil and Sessions Judges and who became Additional District and Sessions Judges on abolition of the cadre of Civil and Sessions Judges automatically the only thing that could be kept in view is the date on which a vacancy (permanent) was available for their confirmation and the seniority of these officers will have to be reckoned in accordance with the date of confirmation which will be not the actual date of confirmation but a date when a post was available and in so doing it will not also be reasonable to fix any date as has been done by the High Court arbitrarily on the basis of the assumption that initially when they were promoted they were not promoted after following the precedure.
The only thing that can be considered will be that if at the time of confirmation an officer was not found fit naturally he must have been reverted, and the question of his seniority in the Higher Judicial Service therefore will not arise.
Much reliance was placed on the decision of this Court in o. P. Singla & Anr. etc.
vs Union of India & ors.
; So far as the officers promoted before the Rules were brought into force, this decision also does not carry the matter further and as regards the interpretation of rules, although an attempt was made to contend that the Delhi Rules and the U.P. Rules are similar but it could not be said that they are identical and therefore also this decision is not of much help to the case of the petitioners.
It could not be disputed that after these Rules which are Uttar Pradesh Higher Judicial Service Rules, 1975 came into force a ratio has been fixed for the direct recruits and promotees.
The petitioners also did not challenge the ratio nor did they challenge the rules except on the ground that while computing seniority they should be given the advantage of the continuous officiation.
As discussed above so far as the posts available on a particular date i.e. 10th May 1974 is concerned 409 the High Court will have to look into the matter afresh and decide the seniority in the light of what we have discussed but after the rules came into force it could not be disputed that the rules will have to be given effect to.
These rules have provided the mode of promotion & selection and have also provided the manner in which the seniority will be computed.
It was contended that the phrase "appointment to the service" which has been used in Rule 22 should not be restricted to the substantive vacancies i.e. permanent vacancies only.
As it was contended that the term the service" in Rule 3 has been defined to mean Uttar Pradesh Higher Judicial Service and it does not mean only permanent posts.
Rule 22 provides for the manner of appointments from the direct recruits as well as from the promotees which reads as under: "Appointment (1) Subject to the provisions of sub rules (2) and (3), the Governor shall on receipt from the Court of the lists mentioned in rules 18, 20 and 21 make appointments to the service on the occurrence of substantive vacancies by taking candidates from the lists in the order in which they stand in the respective lists.
(2) Appointments to the service shall be made on the rotational system, the first vacancy shall be filled from the list of officers of the Nyayik Sewa, the second vacancy shall be filled from the list of direct recruits (and so on), the remaining vacancies shall thereafter be filled by promotion from the list of the officers of the Nyayik Sewa: Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrate appointments to the service shall be made in such a way that the second, fifth and eighth (and so on), vacancies shall be filled from the list of Judicial Magistrates.
(3) Appointment for temporary vacancies or in officiating capacity shall be made by the Governor in consultation with the Court from amongst the members of the Nyayik Sewa: Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrates, appointments on temporary vacancies or in officiating 410 capacity shall be made in consultation with the Court from amongst the Judicial Magistrates according to the quota fixed for that source under these rules: Provided further that for so long as such members of the Judicial Service as are considered suitable for appointments on temporary vacancies or in officiating capacity, are not available in sufficient number, the Governor in consultation with the Court may fill in not more than 50 per cent of such vacancies from amongst the officers of the cadre of Judicial Magistrates.
(4) The appointments shall be made on rotational system the first vacancy shall be filled from the list of officers of the Nyayik Sewa, the second vacancy shall be filled from the list of Judicial Magistrates (and so on).
In Rule 22 the phrase used is "to make appointment to the Service on the occurrence of substantive vacancies" and it was contended on the one side that substantive vacancies does not mean permanent vacancies whereas on the other hand it was contended that it only means permanent vacancies.
The substantive vacancy has not been defined in the Rules but proviso to Rule 8 which has been quoted above speaks of permanent vacancies and temporary posts.
In fact the scheme of the Rules clearly indicates that there are permanent posts and temporary also which are created to meet contingency and it may in due course be made permanent.
It therefore could not be doubted that when appointment under Rule 22 is contemplated in the service of substantive vacancies, it may be both temporary or permanent but the vacancy must be in the cadre.
It could not be doubted than a person could only be confirmed when a permanent post is available for him.
Different procedure is provided for appointment to a temporary vacancy and to a permanent vacancy.
It was contended that if an officer is promoted to fill in a temporary post it is done without following the procedure i.e. selection but there is nothing to indicate as to how and when such appointments were considered and appointed on probation in a substantive post.
Unfortunately the record produced by the High Court does not indicate this.
What has been done it appears is that for purpose of seniority a date has been given and this has been done arbitrarily as there is no reason as to why the seniority should be counted from the date alone.
What appears from the scheme of the Rules as provided in clause (3) of Rule 22 is, that appointment to 411 temporary vacancies shall be made only from the Nyayik Sewa and as and when a substantive vacancy arises and the procedure for selection is to be followed, the officers who are appointed to fill in the temporary posts should be considered first and appointed on probation if found fit, but it appears that it has not been made clear as to how and when this was done nor it is clearly stated as to what was the number of temporary posts created and when those posts became permanent and in our opinion the High Court will have to examine the matter in the light of the scheme of the Rules as discussed above.
Probation has been provided in Rule 23 which reads: "(1) All persons shall on appointment to the service in substantive vacancies be placed on probation.
The period of probation shall, in each case, be two years, provided that the period for which an officer has been continuously officiating immediately prior to his appointment may be taken into account for the purpose of computing the period of probation.
(2) (a) The Court may, in special cases, extend the period of probation upto a specified date: Provided that the total period of probation shall not ordinarily exceed three years.
(b) An order sanctioning such extension of probation shall specify whether or not such extension shall count for increment in the time scale.
(3) If it appears to the court at any time during or at the end of the period of probation, or extended period of probation, as the case may be, that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction, it may make recommendation to the appointing authority whereupon the appointing authority may revert the probationer to his substantive post, if any, or if he does not hold a lien on any post, his services may be dispensed with.
(4) A person whose services are dispensed with or who is reverted under sub rule (3) shall not be entitled to any compensation.
412 This clearly shows that normally the period of probation shall be 2 years and in computing this period of probation an officer who has been continuously officiating immediately prior to his appointment on probation will also be taken into account for the purpose of computing the period of probation and it has been further provided that period of probation in any event shall not exceed three years.
Much controversy was raised about Rule 26 which provides for fixing the seniority wherein in the proviso it has been provided: "Provided that in the case of a promotee the maximum period of continuous officiation in the service shall not, for the purpose of determining seniority exceed three years immediately preceding the date of confirmation.
" It was contended that in the case of promotees even if he has been continuously officiating for more than 3 years still for purpose of computing seniority only 3 years will be counted according to this proviso.
But this appears to be consistent with Rule 23 where it has been provided that total period of probation shall not ordinarily exceed 3 years.
fact the contention raised on behalf of the petitioners was that they were officiating in the posts before these rules were brought into force but still for computing their seniority only 3 years have been counted but in view of what we have held earlier in respect of posts : available before the Rules of 1975 came into force, this question will not be of any consequence.
In fact these principles of seniority will only apply to the promotions made after these rules came into force i.e. in 1975 and the scheme of the Rules appears to be that if a person is appointed to officiate in the Higher Judicial Service, his case for confirmation normally will be considered within 3 years and either he will be confirmed or will be reverted and this scheme of these Rules therefore expect that an officer who has been promoted his case must be examined by the High Court within three years and decide whether the officer deserves to be confirmed or deserves to be reverted and it is in this view of the matter it appears that in Rule 23 it has been provided that period of probation shall not ordinarily exceed 3 years.
Similarly in Rule 26 while providing the principles of counting seniority it has been specifically provided that in case of promotee officers continuous officiation even if it is for more than 3 years, only three years will be counted for purpose of seniority.
This itself contemplates that such an occasion shall not arise when a person may be officiating for more than 3 years and still his case has not been considered for confirmation.
In fact not much controversy has been placed before us 413 about appointments after the rules came into force.
As it is ordinarily expected that if these Rules were brought into force the appointments to the Higher Judicial Service either on the basis of direct recruitment or on the basis of promotion must have been in accordance with these rules and it is expected that the probation, confirmation and seniority must have been looked into by the High Court strictly in accordance with these rules.
It appears that some amount of controversy has been raised as even after these rules were brought into force some officers continued to be officiating and it appears that while fixing seniority in the provisional list which has been notified by the High Court, the proviso to Rule 8 which we have quoted above and the principle that all posts before these rules were brought into force, will have to be filled in by the promotees, was not kept in view.
Having gone through these Rules it appears that the contention advanced by the petitioners in respect of proviso to Rule 26 about seniority does not appear to be justified.
We therefore feel that from the date these Rules have been brought into force, the High Court must have given effect to these Rules.
But in view of what we have discussed earlier about the appointments on the posts available before these Rules were brought into force and to fill in temporary posts, we feel that the matter will have to be examined afresh by the High Court.
So far as posts available on 10th May 1974 plus 31 posts are concerned they will have to be filled in only by promotees as we have discussed earlier and also in view of proviso to Rule 8 and after doing it examine the cases of promotion and direct recruitment after the coming into force of these Rules and the vacancies available and after considering the cases in accordance with these Rules the High Court will prepare afresh the seniority list which may be notified so that if any objections are there.
they may be placed for determination in accordance with the Rules and in the light of the discussions above.
We therefore allow the petition partly and dispose it of as stated above.
In the circumstances of the case, we direct that parties shall bear their own costs.
N.P.V. Petitions partly allowed.

summary/full:
In May, 1974 the Higher Judicial Service for the State of UP was constituted, and the post of Civil and Sessions Judge was abolished.
The U.P. State Higher Judicial Service Rules, 1975 came into force with effect from May 10, 1975.
The petitioners State Judicial Service Officers who were promoted on various dates to the Higher Judicial Service and posted as Additional District Judges/Civil and Sessions Judges before 1974, filed writ petitions in this Court challenging their inter se seniority, vis a vis, direct recruits contending that, on their confirmation, they were given seniority from a date chosen by the High Court arbitrarily, instead of from the date of their continuous officiation, which had resulted in their being placed much below the officers appointed much later by direct recruitment, that there was no provision for direct recruitment to the Higher Judicial Service before the 1975 rules were brought into force and all the existing vacancies on that date were to be filled by only promotion, and therefore, the High Court, while confirming and giving the dates for the purpose of seniority, ought to have prepared a list of a vacancies existing on the date the rules came into force and confirmed all those who were officiating as Additional and District Judges or Civil and Sessions Judges on that day in all those vacancies.
They also contended that while computing the seniority only three years were counted whereas they should have been given advantage of continuous officiation as they were officiating in the posts before the 1975 rules came into existence.
399 The aforesaid petitions were contested by the High Court contending that as it became necessary to fill in the temporary posts the formality of examining record and consideration by a Committee or the Full Court was not done, and all the petitioners were appointed only on the basis of seniority and not in accordance with the rules and, therefore, they could not be treated as appointed on probation from the date of their officiation and that even if an officer had been continuously working for more than three years, still for the purpose of computing seniority only three years will be counted as per proviso to Rule 26.
Allowing the writ petitions partly, ^ HELD: 1.1 The period of officiation has to be considered as period of probation and the confirmation has to be from the date on which earliest a vacancy was available and the seniority has to be counted on that basis.
[406A] 1.2 Before the U.P. Higher Judicial Service Rules, 1975 were brought into force, there was no rule requiring direct recruitment and hence all the posts available were to be filled by promotion.
In view of this, and in view of proviso to Rule 8, all the posts (permanent) available in the Higher Judicial Service plus thirty one temporary posts existing on that date, which may become permanent later, should be filled by promotion from amongst the members of the Nyayika Sewa.
Some of the posts may be occupied by promotees officers who were given promotions on ad hoc basis and working on these posts or that the posts may be Lying vacant.
Whatever may be the situation the matter will have to be gone into afresh by the High Court and all the posts in the Higher Judicial Service available as on May 10, 1974 plus thirty one posts have to be filled from the officers of the Nyayika Sewa.
[403C, 406E G] 1.3 In view of Para 3 of the Rules and the Notification abolishing the posts of Civil and Sessions Judges, all those officers who were officiating as Civil and Sessions Judges on 8th May, 1974 automatically became Additional District and Sessions Judges.
What has been contemplated in Rule 20 could not be applied retrospectively for promotions before 1975.
What was left was only a consideration of their cases of confirmation.
In doing so, the only thing that could be kept in view is the date on which a vacancy (permanent) was available for their confirmation and the seniority of those officers will have to be reckoned in accordance with the date of confirmation which will be not the actual date of confirmation but a date when a post was available, and in so doing, it will not also be reasonable to fix any date, as has been done by 400 the High Court arbitrarily on the assumption that actually when they were promoted they were not promoted after following the procedure.
The only thing that can be considered will be that if at the time of confirmation an officer was not found fit naturally he must have been reverted, and the question of ms seniority in the Higher Judicial Service, therefore, will not arise.
[407G H, 408B E] So far as the posts available on 10th May, 1974 is concerned, the High Court will have to look into the matter afresh and decide the seniority.
But after the rules came into force, the Rules will have to be given effect to.
[408H, 409A] 2.1 In Rule 22 the phrase used is "to make appointment to the service on the occurrence of substantive vacancies".
The substantive vacancy has not been defined in the Rules.
But the scheme of the rules clearly indicates that there are permanent posts and temporary posts also which are created to meet contingency and it may in due course be made permanent.
Therefore, when appointment under Rule 22 is contemplated in the service of substantive vacancies, it may be both temporary or permanent.
But the vacancy must be in the cadre.
A person could only be confirmed when the permanent post is available for him.
It is clear from cl.
(3) of Rule 22 that appointment to temporary vacancies shall be made from the Nyayika Sewa and as and when a substantive vacancies arises the procedure for selection should be followed and the officers who were appointed to fill in the temporary post should be considered first and appointed on probation if found fit.
[410D F, 410H 411A] 2.2 Normally the period of probation shall be two years.
In computing this period of probation, an officer who has been continuously officiating immediately prior to his appointment on probation will also be taken into account and the period of probation in any event shall not exceed three years.
Proviso 2 to Rule 26 provides that in the case of promotee officers a maximum period of continuous officiation in the service shall not, for the purpose of determining seniority, exceed three years immediately preceding the date of confirmation.
This is consistent with the Rule 23 which provides that total period of probation shall not ordinarily exceed three years.
[412A B, C D] These principles of seniority will apply only to the promotions made after the rules came into force.
The scheme of the rules is that if a person is appointed to officiate in the Higher Judicial Service his case for confirmation will normally be considered within three years and either he will be confirmed or reverted and the High Court is expected 401 to examine the case of the promotee officer within three years and decide whether the officer deserves to be confirmed or reverted.
[412E F] By laying down that the period of probation shall not ordinarily exceed three years and that only three years of continuous officiation will be counted for purposes of seniority in the case of promotee officers, the rules contemplate that there will not be an occassion when there may be a person officiating for more than three years and his case has not yet been considered for confirmation.
[412G H] Ordinarily, if the Rules were brought into force the appointments to the Higher Judicial Service, either on the basis of direct recruitment or on the basis of promotion, must have been in accordance with the Rules and it is expected that the probation, confirmation and the seniority must have been looked into by the High Court strictly in accordance with the Rules.
[413A B] 3.
About the appointments on the posts available before these Rules were brought into force and to fill in temporary posts, the matter will have to be examined afresh by the High Court and the posts available on 10th May, 1974 plus thirty one posts will have to be filled in only by promotees.
Thereafter the High Court should examine the cases of promotion and direct recruitment, after coming into force of these Rules, and the vacancies available.
After considering the cases in accordance with these Rules, the High Court will prepare afresh the seniority list which may be notified so that if any objections are raised they may be placed for determination in accordance with the Rules.
[413D F] O.P. Singla & Anr. etc.
vs Union of India & Ors., l, referred to.