ivil Appeal No 656 of 1989
From the Judgment and Order dated 2711
1987 of the Patna High Court in CWJ C No 1254 of 1987
Tapas Ray and DP Mukharjee for the Appellants
MK Ramamurthi PP Singh AN Trehan and Promod Swarup for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
This appeal by special leave is directed against the decision of the Patna High Court dated 2711
1987 quashing the notification dated 18111986 under which in terms of the Subordinate Education Service Teach ing Branch Determination of Seniority Rules framed under the proviso to Article 309 of the Constitution the hitherto single cadre known as Secondary Education Service was bifur cated
On 20th of February 1975 the State Government pub lished a joint seniority list of teachers of Subordinate Education Service belonging to the Boys school branch and the Higher Secondary Teachers 660 of the Subordinate Education Service
The joint gradation list was challenged before the High Court in Writ Petition No 2956 of 1975
The High Court dismissed the writ petition as also an application for review of such dismissal
On 30th March 198 1 this Court dismissed the special leave peti tion carried against the decision of the High Court
When with the dismissal of the special leave petition the posi tion was getting settled the State Minister of Education came forward with a proposal that the cadre should be sepa rated and the Higher Secondary teachers and Secondary teach ers of the Upper Division of the Subordinate Education Service should have a separate gradation list
Ultimately by the impugned notification the bifurcation was done
The Government took the stand that the demand to bifurcate was taken up in the Legislature and in terms of the decision taken by the Implementation Committee of the Bihar Legisla tive Council the new scheme of bifurcate came to be done
The High Court considered the matter at great length and with care
The legal position as settled by several deci sions of this Court was noticed
Towards the end of the judgment the High Court has said We have referred to the judgment of the Supreme Court in KS Vora  Ors
vs State of Gujarat  Ors only to illustrate that the courts have at no time ignored the interest of the employees and questioned the authority of the State to frame rules in terms of the proviso to Article 309 of the Constitution of India but the courts have always taken notice of the fact that those who stood together and fell in line to proceed further have to be provided all opportunities in respect of their avenues of promotion alike without breaking that order so that one who ranks higher in the grade may not go down in due course of service
It is in this context that we have no hesitation in holding that rules in the notification dated 18111986 are ultra vires Articles 161 and 14 of the Constitu tion
We do not propose to predicate into what is alleged to be the mala fide of the respondent State inasmuch as after the judg ment of this Court in C WJC
No 2956 of 1975 the Minister of State decided to find means to disintegrate the already integrated cadre or the Chairman of the Legislative Council having no apparent role in the proc ess of making rules in terms of proviso to Article 309 of the Constitution appeared and influenced the process
We 661 refrain from going into this aspect for we think with our conclusion as above the upper division of the Subordinate Education Service shall continue to have the same respect as it got from the judgment of this Court in CWJC No 2956 of 1975 and no one in the Government shall in future again attempt to deny to the members of the said service their due rights for promotion to the selection grade and other higher posts
 In course of hearing of the matter counsel for the State was not able to dislodge the conclusion that bifurca tion was the outcome of an attempt to provide quick promo tional avenues to those who were lower down in the joint cadre and would not have come within the range of considera tion for promotional benefits but by bifurcation became entitled to such benefits
The High Court in our opinion rightly found fault with such action
We have considered the matter from different angles keeping the relevant aspects in view but have not been able to satisfy ourselves that the judgment of the High Court suffers from any infirmity to justify its vacation
The appeal is accordingly dismissed but parties are left to bear their respective costs
NVK Appeal dis missed


Summary:
The appellant is the successor in interest of the mort gagor of the suit property
The suit property was mortgaged on 2251886
In the normal course the suit for redemption should have been filed on or before 2251946 the limita tion for such a suit being 60 years under the Limitation Act 1906
The appellant however filed the suit for re demption only on 28121968
The defence to the plea of limitation urged was that the son of the original mortgagee while selling the property on 111
1913 had specifically acknowledged the right of the mortgagor to redeem the property
It was claimed that this acknowledgment constitut ed a fresh starting point for computing the period of limi tation
The Trial Court accepted the plea and granted decree for redemption
The Additional District Judge however ac cepted the appeal of the respondents
The High Court in appeal confirmed the order of the Additional District Judge and held that the sale deed had nowhere acknowledged the right of the mortgagor to redeem the land
Before this Court it was contended on behalf of the appellant that the recital in the sale deed clearly con tained a specific acknowledgment by the mortgagee of a subsisting right of redemption in the mortgagor
On the other hand it was contended that the said recital did not serve as an acknowledgment
It was further urged by the respondents that even otherwise the suit should have been filed within 7 years of the coming into force of the Limita tion Act 1963 ie on or before 141971 and that it was actually instituted only on 1841973
Allowing the appeal setting aside the orders of the Additional District Judge and the High Court and restoring the decree for redemption passed by the Trial Court this Court 611 HELD 1 The period of limitation cannot be extended by a mere passing recital regarding the factum of the mortgage but the statement on which the plea of an acknowledgment is based must relate to a subsisting liability
The words used must indicate the jural relationship between the parties and it must appear that such a statement is made with the inten tion of admitting such jural relationship
613G 6 14A Tilak Ram vs Nathu AIR 1967 SC 935 referred to
2 In the instant case it is not correct to treat the recitals in the document as a mere narration of the previous mortgage that had been created on the property
The words spell out a clear intention that the moneys due under the mortgage still remained unpaid and also that the mortgagor had a subsisting right of redemption which he could enforce against the mortgagee
614E F 3 In the Trial Court the plaintiff appellant had adverted to the provisions of the and the position that the suit should have been filed within 7 years of the application of the new Act and had urged that the suit was within time
The Trial Court had accepted the contention of the plaintiff appellant on this point
It could not have been so accepted if the suit had in fact been instituted only in 1973
In the cause title of the suit in the Trial Court the date of institution is set out as 281219681841973
This position does not appear to have been specifically challenged either in the Trial Court or in the first Appellate Court
The High Court in its judgment has pointed out that the suit had been filed on 28th of December 1968
In this state of the record this Court has to proceed on the basis that the suit had been filed on 28th of December 1968 and therefore to hold that the suit had been filed in time
615B C