Appeal No 203 of 1956
Appeal by special leave from the orders dated January 25 1955 of the Madras High Court in CMP No 9335 of 1954 and section R No 55247 of 1953
K section Krishnaswamy Iyengar R Ganapathy Iyer and G Gopalakrishnan for the appellant
C K Daphtary Solicitor General of India and M section K Sastri for the respondent
Venkatakrishnan and T M Sen for the intervener
November 28
The following Judgment of the Court was delivered by GAJENDRAGADKAR J
This is a plaintiff s appeal by special leave against the order passed by a Division Bench of the Madras High Court on January 25 1955 1023 calling upon him to pay court fees on the valuation of Rs 1500000 both on his plaint and on his memorandum of appeal and it raises some interesting questions of law under the provisions of the Court Fees Act which will be described hereafter as the Act
The appellant bad filed Civil Suit No 311 of 1951 on the Original Side of the Madras High Court
In this suit be had claimed partition of the joint family properties and an account in respect of the joint family assets managed by the respondent
The appellant is the son of Subbiah Chettiar
His case was that Subbiah had been adopted by Lakshmi Achi in 1922
Lakshmi Achi was the widow of the undivided paternal uncle of the respondent
As a result of his adoption Subbiah became a coparcener in his adoptive family and as Subbiah s son the appellant claimed to have a share in the joint family properties and in the assets of the joint family and that was the basis on which a claim for partition and accounts was made by the appellant in his suit
In the plaint it had been alleged that Subbiah had filed a suit for partition of his share and had obtained a decree in the trial court
The respondent had taken an appeal against the said decree in the High Court
Pending the appeal the dispute was settled amicably between the parties and in consideration of payment of a specified sum and delivery of possession of certain sites Subbiah agreed to release all his claims and those of his son the present appellant in respect of the properties then in suit
According to the appellant this compromise transaction did not bind the appellant and so he claimed to recover his share ignoring the said transaction between his father and the respondent
The plaint filed by the appellant valued the claim for accounts at Rs 1000 under section 7ivf of the Act and a court fee of Rs 112 7 0 was paid on the said amount on an ad valorem basis
In regard to the relief for partition the fixed court fee of Rs 100 was paid by the appellant under article 17 B Madras of Schedule II of the Act
For the purposes of jurisdiction however the appel lant gave Rs 1500000 as the value of his share
130 1024 It appears that the Registry on examining the plaint was inclined to take the view that the plaint should have borne court fee under section 7v in respect of the claim for partition
Since the appellant did not accept this view the matter was referred to the Master of the Court who was the taxing officer under the Madras High Court Fees Rules 1933
The Master felt that the issue raised by the Registry was of some importance and so in his turn he referred the dispute to the Judge sitting on the Original Side under section 5 of the Act
This reference was decided by the Chamber Judge Krishnaswamy Naidu J on October 18 1951
The learned judge held that the appellant was not bound to set aside the prior compromise decree between his father and the respondent and that the plaint was governed by article 17 B of Schedule 11
Accordingly the court fee paid by the appellant in respect of his claim for partition was held to be in order
In due course the respondent was served and he filed a written statement raising several contentions against the appellant s claim for partition and accounts
One of the points raised by the respondent was that the compromise and the release deed executed by the appellant s father and the decree that was subsequently passed between the parties were fair and bona fide transactions and since they amounted to a settlement of the disputed claim by the appellant s father the plaintiff was bound by them
Ramaswamy Gounder J who heard the suit tried the respondent s contention about the binding character of the compromise decree as a preliminary issue
The learned judge held that there was a fair and bona fide settlement of the dispute by the appellant s father acting as the manager of his branch and so the appellant was bound by the compromise decree
In the result the appellant s suit was dismissed on September 22 1953
Against this decree the appellant presented his memorandum of appeal on December 1 1953
This memorandum bore the same court fees as the plaint
On examining the memorandum of appeal the Registry again raised the question about the sufficiency of 1025 fees paid by the appellant
The Registry took the view that the appellant should have paid court fees under section 7v of the Act in respect of his claim for partition as the appellant s claim in substance was a claim for recovery of possession based on title within the meaning of section 7v
The matter was then referred to the Master but in his turn the Master again made a reference to the Taxation Judge under section 122 of the Act
Thereupon the learned Chief Justice constituted a Bench of two judges to deal with this reference
The learned judges who heard the reference did not think it necessary to consider whether section 12 of the Act was applicable to the present appeal
They dealt with the reference as made under section 5 of the Act
The appellant urged before the Division Bench that the order passed by Krishnaswami Naidu J was final since it was an order passed under section 5 of the Act
The learned judges did not accept this contention
They held that the record did not show that Krishnaswamy Naidu J had been nominated by the Chief Justice to
hear the reference under section 5 either by a general or a special order and so no finality could be claimed for the said order under section 5 of the Act
On the merits the learned judges agreed with the view taken by Krishnaswamy Naidu J and held that section 7v of the Act was not applicable to the appellant s claim for partition
According to the learned judges neither was article 17 B of Schedule II applicable
They held that the provisions of section 7ivb of the Act applied
That is why the appellant was directed to mention his value for the relief of partition under the said section
It may be mentioned at this stage that this order became necessary because in the plaint the plaintiff had not specifically mentioned the value for the relief of partition claimed by him
He had merely stated that for the relief of partition claimed by him he was paying a court fee of Rs 100 in accordance with Schedule II article 17 B All that he had done in the plaint was to value his total claim for jurisdiction at Rs 1500000
In compliance with this order the appellant valued 1026 his relief to enforce his right to share in the joint family properties in suit at Rs 50000 paid the deficit court fee Rs 1662 7 0 and re presented his memorandum of appeal in court on May 7 1954
That however was not the end of the present dispute in respect of court fees
The Registry raised another objection this time
According to the Registry since the appellant had valued his relief in the suit for purposes of jurisdiction at Rs 1500000 it was not open to him to value his relief on the memorandum of appeal under section 7ivb without an amendment of the valuation made in the plaint
Since the appellant did not accept this view of the Registry the matter was again placed before the court for orders
The appellant then offered to file an application for formal amendment of his plaint by substituting Rs 50000 in place of Rs 1500000 for the jurisdictional value of his relief Accordingly the appellant made an application on October 181954
This application was opposed both by the respondent and the Assistant Government Pleader on behalf of the State
The learned judges who heard this application took the view that if the appellant had given the value in the first instance for purposes of jurisdiction he was precluded from giving a different value at a later stage
Accordingly it was held that Rs 1500000 which had been mentioned in the plaint as the value of the appellant s claim for jurisdictional purposes should be treated as the value given by the appellant also for the purposes of court fees under section 7ivb of the Act
The result was that the application made by the appellant for a formal amendment of the valuation made in the plaint was rejected
The learned judges also purported to exercise their jurisdiction under section 122 of the Act and directed that the appellant should pay deficit court fees on the basis of Rs 1500000 not only on his memorandum of appeal but also on his plaint
It is this order which has given rise to the present appeal
The first point which Shri Krishnaswamy Ayyangar has raised before us on behalf of the appellant is that the order passed by the learned Chamber Judge on 1027 October 18 1951 is final under section 5 of the Act
By this order the learned Chamber Judge had held that the plaint filed in the present suit did not attract the provisions of section 7v of the Act and that the proper court fee to be paid was determined by article 17 B of Schedule II of the Act
Since the appellant had paid the fixed court fee of Rs 100 under this latter provision no objection could be taken on the ground that sufficient court fee had not been paid
If this order bad really been passed under section 5 of the Act it would undoubtedly be final
Section 5 of the Act provides for procedure in case of difference as to necessity of court fee
In cases where a difference arises between an officer whose duty it is to see that any fee is paid under Chapter III and a suitor as to the necessity of paying the fee or the amount thereof it has to be referred to the taxing officer whose decision thereon shall be final
This section further provides that if the taxing officer to whom such difference is referred by the office is of opinion that the point raised is one of general importance he can refer the said point to the final decision of the Chief Justice of the High Court or such judge of the High Court as the Chief Justice shall appoint either generally or specially in this behalf and it is clear that if the Chief Justice or any other judge appointed in that behalf by the Chief Justice decides the matter in question his decision shall be final
Unfortunately however in the present
case it has been found by the Division Bench that dealt with this matter subsequently that a search of the record did not show any general or special order which would have justified the exercise of jurisdiction under section 5 by Krishnaswamy Naidu J
No doubt Shri Krishnaswamy Ayyangar stated before us that the practice in the Madras High Court always was to refer disputes as to proper court fees arising between suitors on the Original Side and the Registry to the Chamber Judge and it was always assumed says Shri Ayyangar that the Chamber Judge on the Original Side was appointed generally to deal with such disputes
It is difficult for us to make any such assumption in dealing with the present suit
Unless we are satisfied 1028 from the record that Krishnaswamy Naidu J bad at the material time been appointed either generally or specially to act under section 5 it would be difficult to accede to the argument that the order passed by him in the present proceedings is final
It is frankly conceded that the record does not show any general or special order as contemplated by section 5
That is why we must hold that the learned judges of the Division Bench were right in refusing to attach finality to the order passed by Krishnaswamy Naidu J
It is then urged by Shri Krishnaswamy Ayyangar that the learned judges were in error in purporting to exercise their jurisdiction under section 122 of the Act when they directed the appellant to pay additional court fees on the plaint on the basis of the valuation of Rs 1500000
His contention is that section 12 does not apply to the appeals arising from judgments and decrees passed in suits on the Original Side of the Madras High Court
It is perfectly true that the question about the levy of fees in High Courts on their Original Sides is governed by section 3 of the Act and if the matter had to be decided solely by reference to the Act it would not be possible to apply any of the provisions contained in Chapter III of the Act either to the suits filed on the Original Side of the Madras High Court or to the appeals arising from judgments and decrees in such suits
But it is common ground that on the plaints filed on the Original Side of the Madras High Court court fees are leviable under the relevant provisions contained in Chapter III of the Act and the levy of these fees is authorised by O 11 r
I of the High Court Fees Rules 1933
It is therefore necessary to inquire what provisions of the Act have been extended to the suits filed on the Original Side
The authority and jurisdiction of the Madras High Court in enacting r I of O 11 are not in dispute
What is in dispute before us is the effect of the said rule
The appellant s case is that the said rule merely contemplates the levy of certain specified court fees as indicated in the provisions of the Act which are expressly made applicable to the Original Side
No other provision of the Act according to the appellant 1029 can be said to have been extended and so the learned judges were in error in purporting to exercise their jurisdiction under section 122
We are not satisfied that this argument is well founded
Order II r
I reads thus  O II r 1 of Madras High Court Fees Rules 1933 Order II
The fees and commissions set out in Appendix II hereto shall be charged by the Registrar Sheriff The Reserve Bank of India and the Imperial Bank of India as the case may be upon the several documents matters and transactions therein specified as chargeable
The commission chargeable to Government shall be charged by the Reserve Bank of India and credited to Government
To other documents including Memoranda of appeals the Registrar shall apply so far as may be the law for the time being in force relating to court fees as regards the scale of such fees the manner of levy of such fees the refund of such fees and in every other respect in the manner and to the extent that it is applicable to similar documents filed in original proceedings in a District Court and in appeals from decrees and orders of a District Court
Added by R 0
C No 2219 of 1949
 It cannot be disputed that as a result of this rule section 7iv a b c d e and f of the Act along with the proviso as well as article 17 B of Schedule II of the Act applied to suits filed on the Original Side of the High Court
The latter portion of the order which has been added in 1949 obviously makes applicable to the suits and appeals on the Original Side of the High Court provisions of the Act as regards the scale of fees the manner of their levy and the refund of fees
It also makes the relevant provisions of the Act applicable in every other respect
The words in every other respect in the context clearly indicate that section 12 which confers upon the appellate court authority or jurisdiction to examine the question about the 1030 sufficiency or otherwise of the court fees paid not only on the memorandum of appellant but also on the plaint in the suit which comes before the court of appeal is obviously intended to apply
It would indeed be illogical to apply the relevant provisions of the Act for the levy of court fees on plaints and memoranda of appeal and not to confer jurisdiction on the appropriate court to examine the sufficiency or otherwise of the court fees paid in that behalf
The power to entertain claims for refund of court fees has been specifically mentioned
A claim for refund can be validly made for instance in a case where excess court fee has been paid
That is why the provisions of sections 13 14 and 15 had to be applied in terms
If a litigant is entitled to make a claim for refund of court fees in cases governed by the relevant provisions of the Act there appears to be no reason why it should not be open to the court to entertain the question about inadequate payment of court fees
Logically if excess court fees paid should and can be refunded in these proceedings inadequate or insufficient court fees paid can and should be dealt with on that footing and orders passed to pay the deficit court fees in such cases
It is matters of this kind that are clearly covered by the expression in every other respect to which we have just referred
We therefore hold that the learned judges below were justified in assuming jurisdiction under sub sections
1 and 2 of section 12
Section 12 consists of two parts
Sub section 1 provides that the question about the proper payment of court fees on the plaint or memorandum of appeal shall be decided by the court in which such plaint or memorandum of appeal is filed
It also lays down that such decision is final between the parties to the suit
Sub section 2 confers upon the court of appeal reference or revision jurisdiction to deal with the question of adequacy of court fee paid on the plaint whenever the suit in which such plaint has been filed comes before it and if the court is satisfied that proper court fees have not been paid then it can pass an order requiring the party to pay so much additional fee as would have been payable if the question had been rightly decided 1031 in the first instance
Since the decision of Krishnaswamy Naidu J cannot attract the finality mentioned in section 5 of the Act it was open to the Division Bench to consider the correctness of the view taken by the learned Chamber Judge and as they were satisfied that the plaint did not fall under article 17 B of Schedule II they were entitled to pass appropriate orders under section 121 and 2
The appellant however contends that the learned judges were in error in directing him to pay court fees on the basis of the value of Rs 1500000 both on his plaint and on his memorandum of appeal because he argues that this decision is inconsistent with the earlier order that the proper court fees to be paid on the memorandum of appeal had to be determined under section 7ivb of the Act
This order has been passed by the Division Bench under section 5 of the Act and it is final between the parties
This order gives the appellant leave to value his claim for the relief of partition and be exercised his option by valuing it at Rs 50000
The valuation thus made by the appellant in respect of the value of his relief of partition for the payment of court fees should and must be taken to be the valuation even for the purposes of jurisdiction and it is on this valuation alone that the appellant can be justly called upon to pay court fees both on the plaint and on the memorandum of appeal
The learned judges were therefore in error in not allowing the appellant leave to make amendment in the plaint so as to bring the plaint in conformity with the provisions of section 7 sub section
iv of the Act
That in brief is the appellant s case
On the other hand on behalf of the IntervenerAdvocate General of Madras as well as on behalf of the respondent it was sought to be urged before us that both the plaint and the memorandum of appeal ought to be valued for the purposes of payment of court fees under section 7v of the Act
It is conceded that the question of court fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the 131 1032 written statement or by the final decision of the suit on the merits
The argument however is that if all the material allegations contained in the plaint are fairly construed and taken as a whole it would appear that the plaintiff has been ousted from the enjoyment of the properties in suit and his claim for partition in substance is a claim for possession of  the suit properties and as such falls within the provisions of a 7 sub section
v of the Act
The question about proper court fees leviable on plaints in which Hindu plaintiffs make claims for partition under varying circumstances has given rise to several conflicting decisions in the High Courts of India
We are however not called upon to consider the point as to whether section 7v would apply to the present suit or whether the present suit would fall under section 7ivb
In our opinion the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of court fee under section 7ivb of the Act is final under the provisions of s5 of the Act and it cannot be reopened at this stage
It may be that when the Division Bench of the Madras High Court considered this matter under reference made by the Master under section 5 the respondent was not heard
Normally the dispute between the litigant and the Registry in respect of court fees arises at the initial stage of the presentation of the plaint or the appeal and the defendant or the respondent is usually not interested in such a dispute unless the question of payment of court fees involves also the question of jurisdiction of the court either to try the suit or to entertain the appeal
There is no doubt that the question about the adequacy of the court fees leviable on the appellant s memorandum of appeal was properly referred by the Master to the learned Chief Justice of the Madras High Court and has been decided by the Division Bench of the said High Court in pursuance of the requisite order made by the Chief Justice in that behalf
In such a case the decision reached by the Division Bench must be held to be final under section 5 of the Act
That is why we have not allowed the merits of this order to be questioned in the present 1033 appeal
We must therefore deal with the appellant s contention on the basis that the court fees on his memorandum of appeal must be levied under section 7iv b of the Act
The question which still remains to be considered is whether the Division Bench was justified in directing the appellant to pay court fees both on the plaint and on the memorandum of appeal on the basis of the valuation for Rs 1500000
In our opinion the appellant is justified in contending that this order is erroneous in law
Section 7 sub section
ivb deals with suits to enforce the right to share in any property on the ground that it is joint family property and the amount of fees payable on plaints in such suits is according to the amount at which the relief sought is valued in the plaint or memorandum of appeal
 Section 7 further provides that in all suits falling under section 7iv the plaintiff shall state the amount at which the value of the relief is sought
If the scheme laid down for the computation of fees payable in suits covered by the several sub sections of section 7 is considered it would be clear that in respect of suits falling under sub section
iv a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court fees
The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim it is really difficult to value the claim with any precision or definiteness
Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property
The basis of the claim is that the property in respect of which a share is claimed is joint family property
In other words it is property in which the plaintiff has an undivided share
What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property
Now it would be clear that the conversion of the plaintiff s alleged undivided share in the joint family property into his separate 1034 share cannot be easily valued in terms of rupees with any precision or definiteness
That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court fees
It really means that in suits falling under section 7 ivb the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court fees payable in respect of the said relief
In the circumstances of this case it is unnecessary to consider whether under the provisions of this section the plaintiff has been given an absolute right or option to place any valuation whatever on his relief
What would be the value for the purpose of jurisdiction in such suits is another question which often arises for decision
This question has to be decided by reading section 7 iv of the Act along with section 8 of the Suits Valuation Act
This latter section provides that where in any suits other than those referred to in Court Fees Act section 7 para 5 6 and 9 and para
10 cl
d court fees are payable ad valorem under the Act the value determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same
In other words so far as suits falling under section 7 sub section
iv of the Act are concerned section 8 of the Suits Valuation Act provides that the value as determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same
There can be little doubt that the effect of the provisions of section 8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court fees and that is natural enough
The computation of court fees in suits falling under section 7 iv of the Act depends upon the valuation that the plaintiff makes in respect of his claim
Once the plaintiff exercises his option and values his claim for the purpose of court fees that determines the value for jurisdiction
The value for court fees and the value for jurisdiction must no doubt be the same in such cases but it is the value for court fees stated by the plaintiff that is of primary importance
It is from this value that the value for jurisdication must be determined
The result is that it is the amount at 1035 which the plaintiff has valued the relief sought for the purposes of court fees that determines the value for jurisdiction in the suit and not vice versa
Incidentally we may point out that according to the appellant it was really not necessary in the present case to mention Rs 1500000 as the valuation for the purposes of jurisdiction since on plaints filed on the Original Side of the Madras High Court prior to 1953 there was no need to make any jurisdictional valuation
The plaintiffs failure to state the amount at which he values the relief sought is often due to the fact that in suits for partition the plaintiff attempts to obtain the benefit of article 17 B of Schedule II in the matter of payment of court fees
Where the plaintiff seeks to pay the fixed court fee as required by the said article he and his advisers are apt to take the view that it is unnecessary to state the amount for which relief is sought to be claimed for the purposes of court fees and the valuation for jurisdiction purposes alone is therefore mentioned
Often enough it turns out that the plaint does not strictly attract the provisions of article 17 B of Schedule II and that the court fee has to be paid either under section 7ivb or under section 7v of the Act
If the court comes to the conclusion that the case falls under section 7ivb or section 7ivc ordinarily liberty should be given to the plaintiff to amend his plaint and set out specifically the amount at which he seeks to value his claim for the payment of court fees
It would not be reasonable or proper in such a case to hold the plaintiff bound by the valuation made by him for the purposes of jurisdiction and to infer that the said valuation should be also taken as the valuation for the payment of court fees
In this connection we may point out that this is the view taken by the Full Bench decision of the Lahore High Court in Karam Ilahi vs Muhammad Bashir 1
As we have already indicated section 8 of the Suits Valuation Act postulates that the plaintiff should first value his claim for the purpose of court fee and it provides for the determination of the value for jurisdiction on the basis of such claim
In our opinion therefore the learned judges 1 AIR 1949 Lah
1036 of the Madras High Court were in error in holding that the valuation for jurisdiction showed in the plaint should be taken to be the valuation for the payment of court fees on the plaint as well as the memorandum of appeal
In view of their prior decision that the present case fell under section 7ivb they should have allowed the appellant to amend his valuation for the payment of court fees not only on the memorandum of appeal but also on the plaint
We must accordingly set aside the order under appeal and direct that the plaintiff should be allowed to state the amount of Rs 50000 at which he values the relief sought by him for the purpose of section 7ivb of the Act
Shri Krishnaswamy Ayyangar has orally requested us to give him liberty to make the appropriate amendment in his plaint and we have granted his request
In the result the appeal would be allowed and the appellant directed to pay additional court fees on his plaint on the basis of the valuation of Rs 50000 within two months from today
Since the appellant has already paid adequate court fees on his memorandum of appeal no further order need be passed in that behalf
There will be no order as to costs
Appeal allowed


Summary:
 Controversies relating to the seniority of the officers in the Indian Forest Service IFS for short in this batch of cases from the States of Maharashtra orissa and Uttar Pradesh arose as asequal to three decisions of this Court in regard to the constitution of the Indian Forest Service in Kraipak vs Union of India AIR 1970 SC 150 Parvez Qadir vs Union of India and Union of India vs Chothia  The Court had to consider in these cases the questions arising out of the selections made by the Special Selection Boards SS Bs in place of the selections set aside by the Kraipak case above mentioned and was concerned with the initial recruitment under section 41 of the IFS Recruitment Rules 1966
The first selections by way of initial recruitments to the State cadres were made sometime in 1966 and 1967
The Kraipak decision came in 1969
In the meanwhile in many of the States the first selection had been made followed up by subsequent recruitments largely made on the basis of competitive examination under rule 42a of the Recruitment Rules and a few also by promotion under rule 42b
As a result of the second and third selections made by the SSB a number of officers in the respective State Forest Service SFS had been given appointment in the IFS with effect from October 1 1966 under rule 43A and were placed in a position of higher seniority vis a vis the recruits direct recruits under rule 42
The direct recruits were dissatisfied with this
In the case of Uttar Pradesh nine petitioners moved the High Court for relief out of whom eight direct recruits of 1968 and 1969 confirmed between 1969 and 1972 came up in appeal to this Court
In this State the initial recruitment was made in 1966 67 of 85 officers 58 to the posts in the senior time scale and 27 to the posts in the junior time scale
Subsequently six persons were promoted under rule 42b and 286 nine persons were recruited under rule 42a of the Recruitment Rules
the initial recruitment having been declared bad a fresh SSB was appointed and on its recommendations 104 persons were appointed to the service 60 to senior scale posts and 44 to junior scale posts
Again in 1976 six more persons were added and thus 110 persons were taken in by way of initial recruitment as against 85 persons taken in the first selection
The direct recruits were aggrieved by these selections
Their case was rejected by the High Court
In the case of Maharashtra the first selection was made on 221967 of 57 officers 36 for the senior time scale and 21 for the junior time scale
This was set aside
On July 13 1971 at the second selection 116 officers were found eligible but only 66 were considered suitable for appointment
39 out of 51 eligible officers were found suitable for the senior scale of whom 35 were appointed immediately and four later
For junior scale 27 were found suitable out of whom 23 were appointed initially and four later
All these 66 appointments were made wef t tO 1966
Some persons who had joined the State Forest Service in 1962 and had put in 4 years  service as on 1101966 and were thus eligible for consideration for junior scale posts filed a writ petition in the High Court
Their grievance was that the government had not considered all the officers who were eligible for the junior posts as should have been done as laid down in the Chothia case aforementioned
The High Court allowed the writ petitions
Some of the respondents comprising persons who had been directly recruited under rule 42 between 1968 and 1970 appealed to this Court against the decision of the High Court
In the case of Orissa eight persons moved this Court by Writ Petitions
They had joined the orissa State Forest Service as on 141962
After two years  training they had been appointed Assistant Conservators of Forests on 141964
By 141966 they had four years  continuous service in the State Cadre
They had become eligible for selection to junior scale posts in the l
FS Two selections were made by way of initial recruitment once in January 1967 when 41 officers were selected and then in 1972 42 out of 82 eligible officers were selected
The petitioners were taken into the IFS under rule 42b between 1975 and 1977
The petitioners  contention was that their names were not considered at all either at the first selection or at the second selection and the selections were made by considering eligible officers in the order of seniority only to recruit 41 or 42 persons
The government did not consider all the 82 eligible officers and select 34 out of them arranged in the order of preference and this vitiated the selection as 287 held in the Chothia case afore mentioned
Dismissing the appeals from UP and Maharashtra subject to observations and allowing the Orissa writ petitions and directing the Special Selection Board to redo the selections in the light of the principles set out the Court  HELD The initial recruitment regulations clearly envisage that the Special Selection Board should consider the cases of all the officers in the State Forest Service who fulfil the conditions of eligibility and judge their suitability for appointment to posts in the service and prepare a list of such officers in the order of preference
This selection was done by a Board the constitution of which was found to be vitiated
The logical consequence of this would be that the process of selection had to be redone by a validly appointed SSB before which the range of selection was the same as was or should have been considered by the initial SSB ie Out of those officers in the SFS who were eligible as on 11066
However there had been some changes subsequent to 11066 in the CRS
Of some of the officers pertaining to the period upto 1
1066 consequent on the representations for expunction or modification of the adverse remarks and nobody could validly object to these persons also being considered since the case of an officers who has the adverse remark against him struck off or modified is on the footing as if such adverse remark had not been there at all or had been in the modified form from the beginning
The decision in the Kraipak case necessitated a complete review of the first selection
The subsequent selection Boards could not be compelled to restrict their adjudication regarding suitability to the same number of persons as the first Board had selected so long as the same list of eligible officers and their records as on 1101966 were considered
309D H 310C D The first proviso to rule 42 of the cadre Rules only outlines the general principle that whoever has the power to do a particular thing has also the power to exercise it from time to time if needed
The Central Government has the power to alter the strength and composition of the cadres at any time
However if the terms of the relevant rules are scruitinized it will be seen that the strength and composition of the cadres have to be determined by regulations which have to be made by the Central Government in consultation with the State Government
If the initial composition can be only drawn up in consultation with the State Government and by Regulations it will not be permissible for the Central Government to modify or alter the same save in the same manner
It is not possible to accept the contention of 288 the initial recruits that the mere appointment of an excess number of officers should be treated as an automatic expansion of the cadre strength and composition in exercise of the power available under rule 41
312D E 313A B These cases are concerned with a set of Regulations whose whole purpose is to fix the cadre strength
It is also a provision in regard to an All lndia Service in regard to the constitution of which both the Central Government and the State Governments have a say
The cadre strength could not be varied without amending the Regulations and schedule or without
lt consulting the State Government concerned
313H314A The Cadre Regulations read with the Cadre Rules leave no doubt that the strength and composition referred to or prescribed therein are of the entire cadre of the service in the State concerned and are not restricted to the recruitments made after the initial recruitment
The total authorised strength referred to is the total number of officers who at any point of time can man the posts in the cadre
It could not have been the intention that the cadre should consist of an indefinite number of persons recruited by the SSB from the SFS supplemented by the number of officers referred to as the total authorised strength
There is no difficulty in holding that the total strength of the cadre is to be counted by including the initial recruits and that all the eligible officers adjudged suitable cannot be recruited to the service in excess of the total authorised strength
314E F 316B The critical and difficult question in these appeals is not that appointments by way of initial recruitment were made in excess of the total authorised strength but that the government has failed to keep in mind the restrictions placed on the number of senior and junior posts in each cadre while making appointments
The grievance of the appellants is that more recruitments have been made against the junior posts than is permissible under the respective schedule
316C E The initial recruits are right in contending that the Cadre Regulations do not lay down any water tight classification of junior and senior posts in the manner contended for by the direct recruits
It is true that the Cadre Regulations make a reference to seniors and junior posts but this is not intended to be an essential element in the composition of the cadre
The Cadre Rules do not indicate in respect of some posts whether they are to be considered as junior or senior and they contain no definition of the words senior  and junior  posts
It cannot be postulated that the entrants to the service will first enter on a junior 289 scale post and work their way upward
All the rules show that an officer being in the junior or senior time scale or on a junior post or senior post depends upon various eventualities and it is not possible to pin down any posts as senior or junior or any officer as on one of the two time scales
The Court agreed with the initial recruits that the reference to junior and senior posts in the cadre should not be considered to be so rigid or integral a part of the cadre composition as to affect the validity of the appointments made m excess of a particular number
318B C 319B C One thing plain on the terms of the Regulations is that once a person is found to be eligible and is adjudged suitable for recruitment under the Initial Recruitment Regulations he has to be taken into service as a part of the initial recruitment either immediately on 1101966 or as and when the vacancies arise in the cadre
It is necessary to remember that if the vacancies are in senior posts they can be filled only by SFS Officers with eight years  continuous service and exhypothesi such officers will not be available for at least four more years and if the vacancies are of junior posts they can be filled in only after a competitive examinations is held which will take time
The Court cannot accept the contention that officers of the SFS who have been adjudged suitable by the SSB should not be taken into the service merely because their number exceeds the number of posts available
True they cannot be appointed immediately but the consequence cannot be that they should be ignored and persons recruited under rule 42 given preference over them
It is only rational to interpret the rules as laying down that all those officers of the SFS with eight or four years  experience who are adjudged suitable for the service should be recruited to the service bef ore any recruitment can at all start under rule 42
Whether all such persons are entitled to the back dating of their appointment to 1101966 or not they are certainly entitled to contend that their appointment should be given precedence over the appointments of the recruits under rule 42 of the Recruitment Rules
In this view of the matter the plea of the petitioners that they will get precedence over the surplus officers among the eligible cannot at all be accepted
It is only right that persons should be adjudged on the basis of the correct CRS Any
Expunction or modification in the CRS
Of a period naturally relates back to that period and no legitimate objection can be taken if the correct CRS are taken into account
There was nothing wrong in the selections made by the Selection Board
319D E 320D E 321C E Rule 43A only places the fresh recruits in the same position as if they had been recruited in the first instance ie on 1101966 as indeed 290 they should have been and thus involves no retrospective effect beyond the date of commencement of the Act
It is also not correct to suggest that it prejudicially affects the direct recruits in any way
The appellants acquire under the Rules no right to be in service until after the initial recruitment is over
Under the Rules they can rank only after the candidates who get in by way of initial recruitment
The appellants cannot be aggrieved that those in service in the SFS are found suitable for recruitment to the service and taken into service wef 1 101966
Those persons even if not entitled to appointment as on 1 101966 are entitled to be appointed as and when vacancies arise and must always be given a position of precedence over the recruits under Rule 42
The direct recruits can hardly claim that they are prejudicially affected by the re making of the initial recruitment
323D G So far as Orissa is concerned all the 82 eligible officers had to be considered for initial recruitment but the SSB merely selected 42 officers and made an omnibus observation that the others were found unsuitable
This as explained Chothia s case is not a proper compliance with the Rules and so the selection has to be set aside with a direction that it should be re done properly324A B There has been delay on the part of the petitioners in coming to this Court but in view of the complicated nature of the issues involved the petitioners should not be put out of the court on the ground of laches
All the 82 eligible officers as on 11066 should be considered and not merely some of them
Their suitability should be adjudged
If they are not found suitable reasons should be given which the UPSC should be able to consider
If they are found suitable a list of such officers should be drawn up with ranking given to them in the order of preference for the consideration of the UPSC
Since this has not been done the recruitments have to be set aside and the matter remanded with the direction that it should be finalised as per the Recruitment Rules and in the light of the judgment
324E G If the Court had agreed with the direct recruits that there had been some invalidity or infirmity attached to the subsequent selections by way of initial recruitment the Court would not have rejected the appeals on the ground that the Regulations cannot give rise to a cause of action
There is no error in the procedure followed by the Government
327E It is not the intention of the Court nor can it be the result of dis 291 cussion that the appointments of any officers recruited under rule 41 or 42 should be considered invalid
All the officers selected will have to be adjusted if necessary by amending the Cadre Regulations
The only result of the Court s findings would be the re adjustment of the seniority with necessary and consequential effect on promotions in the service
327G No merit in the appeals from UP and Maharashtra Orissa writ petitions allowed SSB directed to re do the selections in the light of the principles set out in the judgment328A B Kraipak vs Union of India AIR 1970 SC 150 Parvez Qadir vs Union of India   Union of India vs Chothia   Jagat Narain vs Union CMWP 58 of 1968 Lila Gupta vs Lakshmi Narain  at 932 Atlas Cycle Industries Ltd vs State of Haryana  at 1076 1084 1085 GS Lamba vs Union of India at 1032 Kapur vs Union of India  Union of India vs Harnek Singh LPA 40683 decided by the Punjab  Haryana High Court on 2091983 Inderjit Singh vs Union of India  Amrik Singh and Ors
vs Union of India  Ors
 and RR Verma and Ors
vs The Union of India  Ors  referred to