Civil Appeal No 532 of 1986
From the Judgment and Order dated 69
1985 of the Punjab and Haryana High Court in RSA No 1786 of 1985
BR Iyengar and NK Agarwala for the Appellants
Ms Lilfy Thomas for the Respondents
The Judgment of the Court was delivered by KANIA J
The Appellants before us were the defendants and the two Respondents were the plaintiffs in the Civil Suits Nos 294 of 1979 and 421 of 1979 respectively in the court of the learned Sub Judge Palwal
Both these suits raised common questions of fact and law and were decided by a common judgment
We shall refer to the parties by their original descriptions in the suit
There is no controversy about most of the facts relevant for the disposal of this Appeal
The plaintiffs are the owners of two houses adjacent to each other and also to the property of the defendants
The defendants had a structure on their own property
On the roof of that structure they had made three morries narrow outlets for the outflow of dirty water
These morries opened towards the property of the plaintiffs
In an earlier suit the defendants had obtained an injunction directing the plaintiffs not to block the flow of dirty water from the said three morries
The defendants were however permitted to fix up pipe lines of a suitable size at their PG NO 738 own costs to receive the said water and carry it to a nali drain towards the East of their houses
The plaintiffs complied with the terms of the decree granting the said injunction
The defendants then raised the height of the first floor of their structure by three feet and on a part of the terrace over the first floor they constructed two additional storeys
In raising the height of the roof over the first floor the defendants blocked the three original morries and opened three new morries on the roof over the first floor and opened six more morries on the respective terraces over the second and third floor in the new construction
They opened all the morries in such a way that the outflow of water from all the said morries was directed towards the properties of the plaintiffs
The defendants also constructed new windows which opened towards the houses of the plaintiffs
The plaintiffs blocked these new windows by raising the height of their respective walls and the defendants claimed the right to break these walls which obstructed the view from their new windows
On these facts the plaintiffs filed the said suits in the court of the learned Sub judge praying for a permanent injunction restraining the defendants from using the said new morries and from opening the said windows
The plaintiffs claimed that the outflow of water from the said morries damaged their properties
During the course of hearing the suits there was a spot inspection by a learned Sub Judge in the end of May 1979
In that inspection it was noted that there were no signs of the of morries and that six now morries were opened by the defendants on the upper storeys newly constructed by the defendants and that six new windows were also constructed by the defendants on their upper storeys
The plaintiffs claimed that by closing the old morries the defendants had lost their right of easement to discharge water through their old morries and in any event as six more morries in all were constructed in their building by the defendants they had increased the burden of easement on the properties of the plaintiffs
The defendants had no right to do this
The plaintiffs further contended that they were entitled to block the new windows opened by the defendants by raising the height of their walls and that the newly constructed windows had affected their right of privacy
The learned Sub Judge granted the injunction as prayed for by the plaintiffs
The defendants filed an appeal which was disposed of by the learned Additional District Judge II Faridabad
The learned District Judge in the course of his judgment has pointed out that there is no street or narrow gali between the properties of the plaintiffs and the defendants as appears to have been in existence at the time when the earlier suits where the defendants had secured an injunction as stated earlier was decided
He has further pointed out that the nine new PG NO 739 morries opened by the defendants are causing heavy damage and loss to the respective houses of the plaintiffs
The Second Appeal preferred by the defendants to the High Court of Punjab and Haryana was dismissed in limine
The present Appeal has been preferred by the defendants against the judgment of the High Court by Special Leave granted under Article 136 of the Constitution
Mr Iyenger learned Counsel for the Appellants has made two submissions before us
His first contention was that the owner of an easement was entitled to after the mode and place of enjoying the easement as laid down in Section 23 of the 
The second contention was that the right of privacy cannot be established except by pleading and proof of a customary right which has not been done by the plaintiffs in the present case
Coming to the first submission we propose to proceed on the assumption that the defendants had acquired the easement to discharge water from the original roof of his house through the three morries which were previously in existence
The defendants have however not merely altered the position of the said three morries by raising the height of his first storey and the roof thereon but have opened six new morries so that in the place of three old morries there are at present nine morries in existence
Now it is a matter of commonsense that the outflow of water from the nine morries would be larger than the outflow of water from the three old morries and hence it must be held that the burden of the easement has been increased by the action of the defendants
Section 23 of the on which reliance was placed by Mr Iyenger in terms provides that the dominant owner may from time to time alter the mode and place of enjoying the easement provided that he does not thereby impose any additional burden on the servant heritage
In the present Appeal before us as additional burden on the property of the plaintiffs has been imposed by the action of the defendants the provisions of the said section cannot come to the aid of the defendants
It was then contended by learned Counsel that in any event three of these morries namely on the roof of the first floor which has been raised by three feet should be directed to be unobstructed because the burden of the easement could not be said to be increased by the same
There is no basis for granting such relief
The original three morries are no longer in existence and out of nine morries opened by the defendants it is not possible to earmark any three morries as exactly corresponding to the old morries It was for the dafendants if so advised to have taken the plea that the three on the roof of the first storey merely constitute a change in the or place of enjoyment of the easement which the defendants PG NO 740 had
The defendants have however not done any such thing and hence we find that the question as to whether the three morries on the roof of the first floor would not add to the burden of easement and could be said to be only corresponding to the three old morries has not been considered by the courts below
It is not open to the defendants to raise such an issue at this stage
Moreover permitting the defendants to take up such a plea would involve remanding the case for further evidence
In the present case the conduct of the defendants in opening nine morries in the place of three morries and there by damaging the properties of the plaintiffs is such that no discretion need be exercised in their favour
In fact in our view the conduct of the defendants is such that no interference is called for at their instance in an Appeal by Special Leave granted under Article 136 of the Constitution
Apart from what we have stated earlier as pointed out by the learned Additional District Judge in his judgment when the defendants raised the height of the first floor and put up additional construction on a part of the terrace of the first floor it was quite possible for them to make arrangements to take the water from their morries by pipe lines towards the East of their house so that it could be discharged in the drain or a nali on that side
Instead of doing this the defendants have opened nine morries as stated aforesaid towards the houses of the plaintiffs and caused damage to those houses
There is therefore no reason why the discretionary jurisdiction under Article 136 should be exercised to help such parties Mr Iyenger drew our attention to the decision in Harve vs Walters and two other decisions
The ratio of these decisions are of no application to the present case before us because in these cases it was found that by the alteration of the mode or place of enjoyment of easement the burden on the servient heritage was not increased whereas as pointed out earlier that is not the situation in the case before us
As far as the question of opening of new windows is concerned it is open to the defendants to use their property in any manner permitted by law and hence they cannot be restrained from opening new windows as no customary right of privacy appears to have been pleaded or proved
This position is not disputed by the plaintiffs
It is however equally clear that if the defendants open any new windows the plaintiffs are fully entitled to block the same by raising the height of the walls and the defendants are not entitled to break or damage the said walls or any PG NO 741 portion thereof so as to remove the obstruction to their new windows
In the result the Appeal is dismissed save and except that the injuction against the defendants restraining them from opening new windows is vacated and is substituted by an injunction restraining the defendants from breaking or in any manner damaging or interfering with any of the walls put up by the plaintiffs or which may be put up here after by the plaintiffs on their respective properties to block the new windows opened by the defendants
As far as the miscellaneous Petitions are concerned there will be no order on the Contempt Petition
The interim stay granted by this Court shall stand vacated
There will be no order as to costs in these petitions
The Appellants defendants shall Pay to the Respondents plaintiffs the costs of the Appeal
RSS Appeal dismissed


Summary:
In supersession of its earlier order issued in I968 the Union Government communicated in I971 its policy regarding reservation for the Scheduled Castes and the Scheduled Tribes in post filled by promotion on the basis of seniority subject to fitness
Whenever such promotion were to be made in appointments to Class I Class II Class III and Class IV posts in grades or services in which the element of direct recruitment if any did not exceed 50 per cent 15 per cent and 71 per cent of the vacancies were to be reserved for SCs and STs respectively
Detailed instructions were issued to the appointing authorities to make promotions accordingly so that the SCs and STs could have an advantage of getting promotion to a higher grade much earlier than the others
In 1974 further instructions were issued with regard to reservation of Scheduled Castes and Scheduled Tribes in posts filled by promotiontsappointments to Selection Grade Posts directing reservation of 15 per cent7 12 percent of the vacancies for SCsSTs
PG NO 623 PG NO 624 In the Posts and Telegraphs Department the aforesaid policy continued till 1983 when an agreement was arrived at between the Ministry of Communications and certain associations of Post and Telegraphs employees and a fresh order relating to the policy of promotion to be adopted in the P  T Department was issued in supersession of the scheme of reservation followed till then
Under the policy all official belonging to basic grades in Group C and Group D to which there was direct recruitment either from outside andor by means of limited competitive examination from lower cadres and who had completed 16 years of service in that grade would be placed in the next higher grade
Whether an employee belonged to general category or to the category of SCs and STs he would get his promotion on the completion of 16 years  service
Under the previous scheme it was possible for the SC and ST employees to secure promotion within a period of 1 to 12 years while the other employees had to wait for nearly 20 to 23 years
Thus the comparative advantage enjoyed by employees belonging to SCs and STs was taken away
No specific order was issued by the Government regarding reservation for SCs and STs though clause 6 of the new scheme provided for it
But the earlier orders providing for reservation for SCs and STs were made inapplicable
Aggrieved by the new policy which deprived the SC and ST employees of the advantage which they were enjoying the petitioners approached this Court by way of the present writ petition
Petitioners prayed for a direction to the Govt
of India for issuing an order under clause 6 of the new scheme conferring such additional advantage to them as are enjoyed by SC and ST employees in other departments
The Respondent contended that the new scheme was advantageous to all the employees since all of them would get automatic promotion after completing 16 years of service in a cadre and that it was done with the consent of the Federations of Employees of the P  T Department
Allowing the writ petition HELD1The advantage of promotion within a shorted period is being enjoyed by persons belonging to the Departments and only the petitioners have been deprived of it
Such deprivation violates the equality clause of the PG NO 625 Constitution
While it may be true that no writ can be issued ordinarily compelling the Government to make reservation under Article 164 which is only an enabling clause the circumstances in which the members belonging to the Scheduled Castes and Scheduled Tribes in the Posts and Telegraphs Department are deprived of indirectly the advantage of such reservation which they were enjoying earlier while others who are similarly situated in the other departments are allowed to enjoy it make the action of Government discriminatory and invite intervention by this Court
629G H 630A B 2
One of the methods by which the Government can confer some extra advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in cases of this nature where promotion to higher cadre is a time bound one is to direct that the employees belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on completion of a shorter period of service than what is prescribed for others
In this particular case it is open to the Government to direct that while all others would be entitled to be promoted to the higher cadre on completion of 16 years of service the members belonging to the Scheduled Castes and the Scheduled Tribes may nay be promoted to the higher cadre on completion ot say 12 or 13 years of service
There may be other methods of achieving the same result
In what way it should be done is a matter left to the discretion of the Government
This should be decided by the Government taking into consideration al aspects of the case630B F 3
The Government of India shall within four months issue an order under clause 6 of the letter dated 23111983 conferring some additional advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in the Posts  Telegraphs Department commensurate with similar advantages which are being enjoyed by the employees belonging to the Scheduled Castes and the Scheduled Tribes in the other departments
Any order that may be issued by the Government shall operate prospectively
All promotion that have been made so far pursuant to the policy contained in the letter dated 23111983 and that may be made hereafter till the date on which the direction to the issued by the Government under claus 6 comes into operation shall however remain undisturbed
630 F H631A