ivil Misc
Petition No 20065 of 1988
In Civil Appeal No 1702 of 1987
From the Judgment and Order dated 3131987 of the Allahabad High Court in CMWP No 5702 of 1985
Petitioner in person
G Ramaswamy Additional Solicitor General CVS Rao and AK Srivastava for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
Petitioner a Lt Colonel in the Indian Army has filed this application for taking contempt proceeding against the respondents on the allegation that the directions contained in the judgment of this Court dated 20th April 1988 in Civil Appeal No 1702 of 1987 have not been complied with
This Court in the Civil Appeal found that the petitioner was entitled to a reconsideration of his claim for promotion on the basis of his medical categorisation continuing as S I and directed The appeal is allowed in part and to the extent that the appellant s medical cate gory shall be taken as being continued to be S I from 1977 and on that basis his promotion al entitlement shall be finalised by the respondents within three months hence After this Court s decision by a letter dated 17th of June 1988 the respondents informed the petitioner to the following effect In this connection I have been directed to inform you that your case has been reexamined in the light of the judgment of the Supreme Court of India dated 20th April 1988
It may kindly be recalled that acting rank of Lt Col was granted to you with your original seniority based on the earlier direc tions of the Hon ble Court
Substantive 373 rank of Lt Col was also granted to you along with your batch mates
Consequent to the Supreme Court s judgment dated th August 1983 your case for promotion to the rank of AColonel was considered on three occasions viz July 86 April 87 November 87 and rejected on all the three occasions based on your overall performance and merit of your batch
Your medical category was not taken into consideration as per the laid down proce dure
Therefore upgradation of your medical category from Shape 2 to Shape I by the Su preme Court vide their orders dated 20th April 1988 does not warrant reconsideration of your case for promotion because your medi cal category had not affected your case for promotion to the rank of AColonel on any occasion
You failed to make the grade for promotion not on the basis of your medical category but on the basis of your overall performance and merit of your batch  Upon notice in this miscellaneous proceed ing a counter affidavit was filed on behalf of the respondents stating that the petition was misconceived and he was not entitled to any relief as claimed
It was stated that the promotional entitlements of the petitioner had been finalised as per the directions of this Court after reexamining the petitioner s case for promotion within the specified time and as there was no failure to comply with the direc tions no contempt had been committed
The counter affidavit proceeded to state As per the selection procedure explained in the proceeding paragraphs the medical category of Lt Col
KD Gupta was not taken into cognizance
On receipt of the directions of the Supreme Court dated 20th April 1988 Lt Cot
Gupta s case for promo tion was reexamined
Since the Hon ble Court had given no such directions to the effect that the case of Lt Col Gupta shall be placed before the Selection Board and has only directed that the petitioner s promotional entitlements be finalised in view of his continued medical category in Shape I since 1977 his case was reexamined and finalised and the same was intimated to him vide our letter dated 17th June 1988
The record of consideration for promotion of the petitioner at the various stages by the Board was directed to be produced before the Court
In a further affidavit on behalf of the respondents Col Bharucha stated that 374 By letter dated 265
1988 the Military Secretary observed as under The Officer was considered by No 3 Selection Board for promotion to the acting rank of Colonel and awarded the following a R  Unfit in July 1986 with ACR 8485 b R  Unfit in April 1987 with ACR 685 to 286
c R  Unfit in November 1987 with ACR 686 to 587 The Officer has been finally superseded for promotion to the rank of acting Colonel based on his overall profile and his medical catego ry was not taken into account during the above three considerations
However the officer has been granted the substantive rank of Lt Colonel wef 01 August 1979 vide Gazette Notification No 177487 dated 19th September 1987
Therefore no further action is required by the department in pursuance of the judgment of this Hon ble Court dated 2041988 I state that the petitioner had addressed a demi official letter dated 0251988 to the Chief of Army Staff in this regard
The Chief of Army Staff called for the details of the case of the petitioner and the same were placed before the Chief of Army Staff on 0361988
The Chief of Army Staff after considering the note put up to him directed the office to intimate the petitioner accordingly
By letter dated 1761983 the office has informed the petitioner a copy of which is enclosed herewith
It is therefore humbly submitted that the case of the peti tioner was considered after the judgment of this Hon ble Court dated 20th April 1988 by the Military Secretary of the rank of Lt General and it was found that it is not neces sary to send him for selection board as he was already found unfit without reference to his medical certificate Shape II
375 On 24th of January 1989 this Court made the following order After carefully considering the matter we direct the respondents to reconsid er the case of the appellant for promotion on the basis that his medical category continues to be S I from 1977
The medical category will be taken into account if the rules for promo tion so require otherwise not
The considera tion of promotion will be completed within four weeks from today   We have been informed that the petitioner s case was considered on the basis of record and he was not found fit for any promotion
It is relevant to notice at this stage that the petitioner had come before this Court on an earlier occasion by filing writ petition No 5302 of 1980 which was disposed of on August 10 1983 This Court in its judgment indicated Shri Abdul Khader learned counsel for the respondents explained to us that the petition er had been reverted from the rank of Acting Lt Colonel to Major for three reasons i Reduction in rank had to follow as a matter of course on placement of the petitioner in a lower medical category ii After the latest medical exami nation in 1978 he was not eligible to be considered for promotion for one year his earlier reduction in rank was therefore justified and iii He performed no duty for six months from March 22 1976 when he was admit ted in the hospital and under the rules he stood automatically reduced in rank
We find no substance in any of the reasons mentioned by Shri Abdul Khader
Shri Khader was unable to draw our attention to any rule order or circular which prescribed that reduction in rank should inevitably follow on placement of an officer in a lower medical category
In fact it was conceded by Shri Khader that an officer whose medical classifi cation is downgraded will not be reduced in rank on that account but will continue to hold the same rank as 376 before
We are therefore unable to under stand why the petitioner had to be reduced in rank because subsequent to his promotion his medical classification was downgraded
The second reason given by Shri Khader that the petitioner would not be eligible to be promot ed for a year after the latest medical exami nation and therefore his earlier reduction in rank was justified is only to be stated as rejected
When the petitioner was promoted he satisfied all the requirements including that of medical categorisation if any
We find it impossible to agree with the proposition that since he would be ineligible to be promoted today he could not have been promoted yester day when he satisfied all the requirements
The reason really pressed before us was the third reason namely that the petitioner had not performed any duty for six months and therefore he had to be reduced in rank in accordance with paragraph 5 of Special Army Instruction No 1 dated January 9 1974
We do not propose to examine the question whether Special Army Instruction No 1 authorises a reduction in rank for failure to rejoin duties for more than six months since that appears to be the case of the petitioner also
 The counter affidavit filed m the writ petition and the submissions of counsel advanced at the hearing thereof clearly indicate that the medical category of the petitioner was connected with his entitlement to promotion
In fact in the civil appeal itself the petitioner s claim for promotion to higher ranks keeping the promotions accorded to his batch mates in view was challenged on the basis of the petitioner s lower medical category
In the affidavits filed in the civil appeal the respondents never took the stand that entitlement to promotion as claimed by the petitioner had nothing to do with the state of his healthphysical and mental
If that stand had been adopted this Court would certainly have gone into that question before directing the petitioner s case to be reexamined by a Special Board of Psychiatrists on the basis of whose report the petitioner was allowed to be continued in shape I from 1977 without any break
It is not disputed that the petitioner had in the second round of the litigation mainly pressed for his promo tion by contending that his medical categorisation was vitiated
Counsel for the respondents at no stage during the hearing of the appeal advanced the contention that the claim for promotion was not in any manner connected with the medical category of the petitioner
That is why this Court in its judgment stated 377    on the basis of material available on the record which had been partly dealt with by this Court on the earlier occa sion while disposing of the writ petition and what we have now found on the basis of the result of examination by the Committee of Experts the appellant has become entitled to limited relief
Though there was no order reducing him from the rank of acting Lt Colonel to Major he was treated to have been so reduced
Then followed the frequent psychi atric examinations without any real justifica tion
These have constituted the foundation of the appellant s grievance
His recategorisa tion as S II in 1978 in these circumstances was without justification
He is therefore entitled to a reconsideration of his claim for promotion on the basis of his medical categor isation continuing as S I The appellant inter alia has asked for entitlement to promotion in view of promo tions earned by his batchmates
We do not think that would be a safe guide but we do hope and trust that the respondents would consider his case for promotion with an open mind on the basis of his continuity in Shape I The judgment of this Court did clearly proceed on the foot ing that the lower medical categorisation prejudiced the petitioner in the matter of obtaining appropriate promo tions
For the first time the respondents have taken the stand in the contempt proceeding that the lower categorisa tion has nothing to do with the refusal to accord promotion to the petitioner
In the circumstances indicated above the plea now advanced cannot be accepted
In fact Mr Ramaswa my Additional Solicitor General appearing for the respond ents being cognizant of this situation stated to us during the hearing of this application that the petitioner has justification to feel aggrieved
The respondents have maintained that the petitioner has not served in the appropriate grades for the requisite period and has not possessed the necessary experience and training and consequential assessment of ability which are a precondition for promotion
The defence services have their own peculiarities and special requirements
The considera tions which apply to other government servants in the matter of promotion cannot as a matter of course beapplied to defence personnel of the petitioner s category and rank
Requisite experience consequent exposer and appropriate review are indispensable for 378 according promotion and the petitioner therefore cannot be given promotions as claimed by him on the basis that his batch mates have earned such promotions
Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not avail able
We find force in the stand of the respondents and do not accept the petitioner s contention that he can be grant ed promotion to the higher ranks as claimed by him by adopt ing the promotions obtained by his batch mates as the meas ure
In the appellate judgment this Court said He has also indicated in paragraph 8 of that petition that he is prepared to be released from service after his promotional entitlements are finalised and is given his dues on such basis as may be determined
The appellant has claimed compensation which we see no basis to grant
The petitioner also told us in course of the hearing of this case that even if he is not accorded promotions as claimed by him he should suitably be compensated and thereafter he should be released from the Army on the basis of voluntary retirement
The respondents have also indicated that his retirement is being processed separately
The question for consideration now is as to how the petitioner has to be compensated and what should be its measure
The petitioner has of course advanced tall claims by contending that he has suffered physical and mental torture loss of reputation and of social acceptance and financial loss
What promotions the petitioner would other wise have earned would be a matter of speculation and cannot be ascertained at this stage
for lack of appropriate deci sive criteria
His grievance that he suffered in dignity and humiliation as a result of being looked down upon by his batch mates friends and relatives has perhaps been suffi ciently met by the appellate judgment which has declared that his lower medical categorisation was unjustified and the petitioner continued to be Shape I without break from 1977
The defence personnel have peculiar incidence of serv ice
Life s course does not run smoothly for everyone
In the present proceeding which is for contempt we do not think that we can award compensation under every head of claim
Some of factors relevant for such purpose are the duration of time for which the petitioner was subjected to various medical checks and hospitalisation and the conse quent suffering which he underwent the loss of promotional prospects 379 and the fact that he would now be obliged to request to be released from service pre maturely
We are of the view that a total compensation of Rs four lakhs would meet the ends of justice
This would obviously mean that the petitioner would not be entitled to any other claim on these heads but we make it clear that he would be entitled to all other service benefits which an officer of the Lt Colonel s rank which the petitioner admittedly holds would be entitled to
This judgment should serve the petitioner in vindication of his stand and to dispel clouds cast on his physical and mental health by the purported lower medical characterisa tion and obviously in the event of his being considered for reemployment after retirement his suitability would be considered on the basis of his service records and the judgment of this Court
We direct that the amount of Rs four lakhs be paid to the petitioner within two months and the petitioner may be released from the defence service m accordance with any decision that may be taken on his request for such release
The contempt proceeding is disposed of with these direc tions and no order as to costs
GN Petition dis posed of


Summary:
The appellant tenant was in occupation of the premises and carrying on business
The original respondent who was the owner of the said premises filed an eviction petition against the appellant on the ground of bona fide requirement as he wanted to set up his eldest son in business by start ing a photo studio in the said premises
The appellant disputed the correctness of the claim and alleged that the property in which the said premises were situated was the absolute endowed property of which the original respondent was the de facto trustee and as such he had no personal or proprietary interest in the said property to evict the appellant on the ground of personal use and occupation
The respondent asserted that he was the absolute owner of the said premises
The Rent Controller passed a decree for eviction on the ground that the bona fide requirement of the respondent landlord was made out and also on the ground that the appellant had denied the title of the respondent which denial was not bona fide
The appellant filed an appeal before the Appellate Authority which was dismissed upholding the order of eviction passed by the Rent Controller
The appellant preferred a revision petition to the High Court and a Single Judge of the High Court also upheld the order of eviction
The appellant came in an appeal to this Court by special leave
It was contended for the appellant that in order to constitute a ground for eviction the denial of title must be anterior to the filing of the eviction petition and a denial of title in the course of eviction petition would not con stitute a ground for eviction
The contention on behalf of the respondent was that the denial of the landlord s title was not the only ground pleaded for eviction but it was also contended that the appellant was liable to be evicted as the respondent wanted the said premises for his personal bona fide use and occupation
Dismissing the appeal by special leave this Court 154 HELD The AP Rent Act was enacted with a view to consolidate the law relating to regulation of leasing of buildings control of rent thereof and prevention of unrea sonable eviction of tenants in the State of Andhra Pradesh
Section 10 of the AP Rent Act deals with eviction of tenants
Sub Section 1 of that section prohibits eviction of tenants except in accordance with the provisions of that section or sections 12 and 13 of that Act
156D E It is well settled that the Court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately
157F Kundan Mal vs Gurudutta Judgments today 1989 1 SC 147 not applicable
The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant sec tion of the Rent Acts
Even after the termination of the contractual tenancy the landlord under the definitions of the terms landlord and tenant contained in the Rent Acts remains a landlord and the tenant remains a tenant because of the express provision made in the enactments that a tenant means or includes a person continuing in possession after the termination of the tenancy in his favour 
Yet another important feature of the Rent Acts is that either by way of a non obstante clause or by necessary implication these enactments have done away with the law contained in section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee
158D E Maharaja of Jaypore vs Rukmani Pattamahdevi 46 IA 109 AIR 1919 PC 1 and V Dhanapal Chattiar vs Yeso dai Ammal   referred to
Sada Ram and Others vs Gajjan Shiama AIR 1970 Punjab HP 22 and Machavaram Venkate Narayana Rao vs Sarvepalli Narayane Rao Sarada and another  relied upon