vil Appeal Nos
1339 40 of 1988
From the judgment dated 771987 of the Madras High Court in WP Nos 9781 and 10545 of 1986
GL Sanghi PP Rao R Mohan R Perumal V Krishna murthy MN Krishnamani V Sekhar KV Vishwanathan T Raja SR Setia P Chaudhary A Mariarputham and MA Krishnamurthy for the appearing parties
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
In these appeals by special leave the legality of the judgment of the Madras High Court dated 7 July 1987 quashing the promotions made to the cadre of professors in law colleges in the State of Tamil Nadu has been called into question
The appeals arise in the following circumstances During the period from 197 1 to 1982 the Government appointed temporary junior professors in different law colleges in the State
The appointments were made under Rule 10ai1 of the Tamil Nadu State and SubOrdinate Services Rules 1955 Viz
Preliminary and The General Rules hereinafter called the Rules 
In 1979 the State Public Service Com mission invited applications for regular appointment of junior professors
The temporary junior professors and others applied for the posts
The Public Service Commission selected 25 candidates out of whom 21 were already working as temporary junior professors
The selected candidates were arranged in the list called approved list   in the order of merit
The list was prepared by the Public Service Com mission on 16 August 1983
It was approved by the Government on 9 December 1983
On 27 June 1985 the State Government made an order regularising the services of those 21 junior professors
Their services were regularised with effect from the dates of original appointments as temporary junior professors
On 10 September 1986 some of the junior professors were promoted and appointed as professors in the law colleges
promotion was challenged before the Madras High Court on the ground that the claim of the seniors has been over looked  It was urged before the High Court that once the temporary services have been regularised retrospectively with effect from the date of entry in the service the seniority should be reckoned by giving the benefit of regu larised service 621 notwithstanding the ranking in the approved list prepared by the Public Service Commission
The High Court accepted that plea and queshed the promotion of professors and directed the Government to make a proper order of promotion in the light of the views expressed in the judgment
The correctness of the judgment of the High Court has been assailed in these appeals
We must first outline the necessary statutory provisions bearing on the question raised
Section 10ai1 provides as follows 10
Temporary appointments ai1 Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules the ap pointing authority may temporarily appoint a person otherwise than in accordance with the said rules
Rule 22 so far as relevant reads Reservation of Appointments Where the Spe cial Rules lay down that the principle of reservation of appointments shall apply to any service class or category selection for appointment thereto shall with effect on and from the 7th June 1971 in cases such selec tion is made by the Commission and 8th Novem ber 1971 in other cases be made on the following basis a The unit of selection for appointment for the purpose of this rule shall be one hun dred of which eighteen shall be reserved for the Scheduled Castes and the Scheduled Tribes and thirty one shall be reserved for the Backward Classes and the remaining fifty one shall be filled on the basis of merit
b The claims Of members of the Scheduled Castes and the Scheduled Tribes and the Back ward Classes shall also be considered for the fifty one appointments which shall be filled on the basis of merit and where a candidate 622 belonging to a Scheduled Caste Scheduled Tribe or Back  ward Class is selected on the basis of merit the number of posts reserved for the Scheduled Castes and the Scheduled Tribes or for the BackWard Classes as the case may be shall not in any way be affected
XXXXX XXXX XXXX Rule 23 so far
as material is as follows 23ai Date of Commencement of probation of persons first appointment temporarily If a person appointed temporarily either under sub rule a or sub rule
d of rule 10 to fill a vacancy in any service class or cate gory otherwise than in accordance with the rules governing appointment thereto such vacancy being a vacancy which may be filled by direct recruitment is subsequently appointed to the service class or category in accord ance with the rules he shall commence his probation if any in such category either from the date of his first temporary appoint ment or from such subsequent date as the appointing authority may determine
XXXXX XXXXX XXXXX Provided that on the date so determined the person possesses all the qualifications pre scribed for appointment to the service class or category as the case may be
ii A person who commences probation under clause i shall also be eligible to draw increments in the time scale of pay applicable to him from the date of commencement of his probation
Where commencement of probation is ordered from a date earlier than the date of the order and if this has not been enabled by relaxation of any rule he shall draw incre ments including arrears in the time scale Of pay applicable to him from such  earlier date
The appointing authority shall include a provision to this effect while issuing orders in all such cases
Rule 35 omitting immaterial words is in these terms 35a The seniority of a person in a service class or cate 623 gory or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the TNPSC or other appointing authoritY as the case may be subject to the rule of reser vation
where it applies
The date of com mencement of his probation shall be the date on which he joins duty irrespective of his seniority
  It is under these Rules the Public Service Commission invit ed applications for selecting candidates for direct recruit ment to the cadre of Assistant professors in Law
The Public Service Commission prepared the list of selected candidates by following the reservation provided under rule 22
The list was approved by the State Government  Rule 35a states that seniority of a person  be determined by the rank obtained by him in the list of approved candidates drawn by the Public Service Commission subject to rule of reservation where it applies
The contention urged for the respondents is
that since their temporary service as junior professors were regula rised the regularised service should count for the purpose of determining their seniority and not the rankings in the select list approved by the Government
We find little substance in it
The order of regularisation is in these terms ORDER DATED 2761985 In GO Ms No 2288 Education dated 9121983 the Government approved the selection made by the Tamil Nadu Public Serv ice Commission of the 25 candidates mentioned therein for appointment by direct recruitment as Junior Professor in the Tamil Nadu Legal Educational Service These 25 candidates were appointed temporarily as from their taking charge in GO
Ms No 897 Education dated 117
The Government have however decided to appoint them regularly with effect from the dates on which they were declared fully qualified to hold the post of Junior professor in the Law Colleges in Tamil Nadu prior to their selection by the Tamil
Public
Service
Commission and appointment as Junior Profes sorsin Law Colleges with reference to their selection
The Government accordingly direct that the services of the 21 individuals men tioned in 624 the Annexure to this order as Junior Profes sors in the Tamil Nadu Legal Educational Service be regularised with retrospective effect from the dates noted against them
The inter se seniority of the 21 candi datesindicated in the annexure is in accord ance with the seniority fixed by the Tamil Nadu Public Service Commission
The inter se seniority position will not be affected in any way with reference to the dates of regulari sation mentioned in column 3 of the annexure
Under Rule 23aii of the General Rules for State and Subordinate Services the incum bents are eligible for increments from the date of their regularisation as they are fully qualified to hold the post on that date
The increments already sanctioned to them for their services as temporary
junior professors prior to regular appointment is ratified
XXXXX XXXXX   The first paragraph of the order refers to the selection of 25 candidates by the Public Service Commission for ap pointment as Junior Professors in the  law colleges and their appointment with effect from their  taking charges
The second paragraph of the order deals with the regularisa tion of the services of21 candidates out of 25 appointed
The Government directed that the services of the 21 Junior Professors specified in the order be regularised with retro spective effect from the date noted against them
In the third paragraph it is stated that the inter se seniority of the 21 candidates is in accordance with the seniority fixed by the Public Service Commission and the inter se seniority position will not be affected in any way with reference to the dates of regularisation of their services
The paragraph four of the order deals with the rights of the candidates to draw increments under rule 23aii in the service rendered as temporary Junior Professors
The High Court has stated that Rule 35a could not have been properly invoked by the State Government after the regularisation of he services of the candidates and it would be against the very concept of order of regularisa tion
It has been pointed out that by regularisaion the period of temporary service has been converted into a period of regular service and a deeming fiction is introduced that the candidates whose services have been regularised retro spectively must be 625 treated for all purposes as being in regular service from the respective dates of regularisation
In our opinion the view
expressed by the
High Court not only runs counter to the terms of the order of the
regularisation but also is inconsistent with Statutory principle of determining seniority under Rule 35a
In the first place the order of regularisation of the services of the candidateS expressly states that the inter se seniority of the candidates would be in accordance with the rankings in the approved list prepared by the Public Service Commis sion and will not be affected in any way by the date of regularisation of services
When the  order of regularisa tion of temporary service itself denies such service for the purpose of determining seniority the Court cannot count that service for the purpose of seniority
Secondly Rule 35a provides for determining the inter se seniority of the candidates selected by the Public Service Commission
It states that the seniority of a person in a service class or category or trade shall be determined unless he has been reduced to a lower rank as a punishment by the rank ob tained by him in the list of approved candidates drawn by the Public Service Commission or other appointing authority as the case may be 
Since the parties in these cases ap peared for selection before the Public Service Commission for regular recruitment as Junior Professors the list of approved candidates prepared by the Public Service Commis sion in the orderof merit and accepted by the Government should be the basis for determining their inter se seniori ty
It is not open to the parties to claim that their tempo rary service as Junior Professors upon regularisation should be counted for the purpose of determining the seniority in the cadre
There is no rule supporting such contention
The services rendered in the temporary post is available either for earning increments or for commencement of probation
That would be clear from Rule 23a
Consistent with the Rule 23a the Government in the order of regularisation has directed that the incumbents are eligible for increments from the date of their regularisation as they are fully qualified to hold the post on that date
The increments already sanctioned to them during their services as tempo rary Junior Professors prior toregular appointment has been ratified by the said order
The High Court was plainly in error in ignoring the statutory Rules and the terms and conditions of the order of regularisation of services
Apart from that Rule 10ai1 provides for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately
Such appointments are made otherwise than in accor 626 dance with the procedure prescribed under the Rules
In the instant case the respondents were appointed temporarily and otherwise than in accordance with the Rules
They were later selected along with others for direct recruitmentby the Public Service CommisSion
They were not entitled to count their temporary service for seniority
In APM Mayakutty etc vs Secretary Public Service Department etc at 942 this Court observed that the serv ices rendered by the applicants under Rule 10ai1 cannot be considered for the purpose of seniority as such appointment is a matter of stop gap emergency or fortuitous arrangement
The present case cannot  be an exception to this principle even though their temporary services have been regularised since regularisation was only for limited purposes
In any view of the matter the decision of the High Court cannot be sustained
In the result the appeals are allowed and the impugned judgment is set aside with no order as to costs
VPR Appeals allowed


Summary:
One Yesaji 2 ancestor of the parties rendered meritori ous military service to Ranaji Scindia and in recognition thereof the Raja of Gwalior granted permanent jagir of Chandurpura village together with the buildings situated in 100 Bighas of land and the residential Bada with right of enjoyment and succession from generation to generation
By virtue thereof the ownership possession and enjoyment was continued successively for seven generations upto Dwarkanath by rule of primogeniture
Dwarkanath was the nephew broth er s son Of the respondent and father of appellant Nos 1 and 2
Dwarkanath being minor at the time of his succession to the estate the court of wards took over the management and the respondent was appointed as Superintendent and on his death since appellants 1 and 2 were minors Aruna Rai their mother initially managed the estate with the assist ance of the respondent and subsequently the respondent came into full control and management
The respondent filed a suit for partition in the year 1962 of the plaint schedule 1 to 3 properties in equal moiety and allotment of one such share to him
He pleaded that the properties are coparcenary joint family properties and he is entitled to a half share therein
The respondent received maintenance from the jagir income at the rate of Rs125 per month
The appellants defendants disputed the nature of the properties as joint family status of the respondent and the appellants as coparceners
They referred to various accretions made to the jagir estate by their father and mother and pleaded that the jagir being an impartible estate is the separate and self acquired properties of Dattatraya 1 Dwarkanath by rule of primogeniture and the concept of coparcenary and joint family status  are inapplicable to it and that the respond ent has thus no share therein but has only a right of maintenance as per the law and the Custom of Gwalior State
It was also added that the respondent and his wife were given jewellery at
the time of their mar 645 riage which belonged to the family of the appellants and some of them are stridhana of the 3rd defendant the re spondent had no share therein or in the utensils etc
The trial court found that till the date of death of Ghanshyam 2 in 1909 he was jagirdar
Dattatraya 1 and Dwarkanath suc ceeded as Jagirdars by rule of primogeniture
After the abolition of the Jagir compensation was paid to Dwarkanath during his life time as the eldest member of the family and the appellant No 1 also had been paid balance of compensa tion
If a joint family possesses property which was admit tedly joint the presumption would he that the property continued to be joint and the burden lies upon the member who claims as separate property to plead and prove it as separate or self acquired property
On this reasoning the trim court granted preliminary decree for partition of half share in schedule 1 and 2 and half share in the moveable property viz compensation amount jewellery and utensils
The High Court substantially upheld the findings of the trial court
It held that rule of primogeniture and survi vorship was introduced by the Manual of Jagirdars of the Gwalior State Qwaid Jagirdaram in the year 1913 and with the abolition of the Jagir in 1951 under the Madhya Bharat Abolition of Jagir Act 28 1951 the properties became the ancestral Hindu Joint family properties and they are parti ble irrespective of the fact in whose name it was entered either as Bhumidar in revenue papers or Jagirdar
The High Court while confirming the decree of the trial court di rected the respondent to bring into hotch potch his jewel lery and the appellants to have a half share therein and accordingly dismissed the appeal and the cross objections
Hence this appeal by the appellants defendants by special leave
Partly allowing the appeal this Court HELD Liability to partition is an ordinary feature of joint family property but it must not be supposed that joint property and partible property are mutually converti ble terms
652F Succession to an impartible estate is governed by rule of primogeniture and the eldest male member of the family would succeed by survivorship to the impartible estate
653H 654A The impartible estate though descends by rule of primo geniture and survivorship on the eldest male member of the family it must also be proved that the junior members gave up expressly or by implication his right to a share therein655G The income of an impartible estate is not income of the undivided 646 family but is the income of the present holder notwith standing that he has sons or brothers from whom he is not divided
The fact that the son s or brother s right to maintenance arises out of the eldest brother s possession of impartible estate and is a right to be maintained out of the estate do not make it a right of a unique or even excep tional character or involve the consequence at Hindu Law that the income of the estate is not the holder s income
Income is not jointly enjoyed by the party entitled to maintenance and the party chargeable nor can it be said that the respective chances of each son to succeed by survivor ship make them all co owners of the income with their father or make the holder of the estate a manager on behalf of a Hindu family of which he and they are the male members of the family
658C E The right of joint enjoyment which is ordinary incident to a coparcenary where the joint estate is partible is excluded by the rule of primogeniture and impartibility
The income of an impartible estate and the accumulation of such income are the absolute property of the holder
The immova ble properties would be incorporated with impartible estate
It must be proved that the holder had impressed the immova ble properties as part of the estate
But the movable properties will not
Movables are not an accretion to the estate as in the case of an ordinary joint family estate
659E
The grant of Chandurpur Jagir was in perpetuity and the enjoyment is from generation to generation
Geneology ex tracted herein before establishes that devolution by survi vorship to the eldest male member continued till time of Dwarkanath and the respondent received only maintenance from the Jagir estate
What was implicit was made explicit by Qwaid Jagirdaran issued in Samvat 1970 by Maharaja Scindia of Gwalior State
659F G Thus it is indivisible and impartible and succeeded by lineal eldest descendent of the family by rules of primogen iture
659H Baijnath Prasad Singh vs Tej
Bali Singh 48 Indian Appeals 195 AIR 1921 PC 62 Katama Natchiar vs Raja of Shivganga 1863 9 Noore Indian Appeals 588 PC Sartaj Kuari  Anr
vs Deoraj Kuari 15 Indian AppealS 51 Pratap Chandra Deo vs Jagdish Chandra Deo 54 Indian Appeals 289 AIR 1927 PC 159 Anant Shikkappa Patil vs Shankar Ramchandra Patil AIR 1943 PC 196 at 201 Amrendra Man Singh vs Sanatan Singh 60
Indian Appeals 142 AIR 1933 PC 155 Shiba Prasad Singh vs Rani Prayag Kumari Debi  Ors 59 Indian Appeals 351 AIR 1932 PC 216 Chin 647 nathayi  Veeralakshmi vs Kulasekara Pandiya Naicker  Anr
   Smt
Rani Prabha Kumari Bibi vs Jagdish Chunder Dhabal 29 Indian Appeals 82ILR 29 Calcutta 433 PC Janki Pershad Singh vs Dwarka Pershad Singh 40 Indian Appeals 170ILR 35 Allahabad 391 PC Murtaza Husain Khan vs Mohd Yasin Ali Khan 43 Indian Appeals 269AIR  Jagdamba Kumari vs Wazir Narain 48 Indian Appeals 195AIR  Commissioner of Income tax Madras vs Honble Sri Ravu Swetachalapati Ramakrishna Ranga Rao Rajah of Babbili  Commissioner of Income tax Punjab vs DeWan Bahadur Dewan Krishna Kishore Rais Lahore AIR 1941 PC120 Mirza Raja Shri Pushava thi Viziaram Gajapathi Raj Manne Sultan Bahadur  Ors
vs Shri Pushavathi Visweswar Gajapathi Raj  Ors   Muttu Baduganadha Tevar vs Periasami  Udayana Tevar 23 Indian appeals 128 PC Ravi Janardhana Krishna Ranga Rao vs State of Madras AIR 1953 Madras 185 Tha kore Shri Vinayasinghji vs Kumar Srinatwarsinghji  Ors 1988 Supp SCC 133 Sri Raja Rao Venkata Mahipati Gangadara Rama Rao Bahadur vs Raja of Pittapur 47 Indian Appeals 354AIR  Maharajah of Jeypore  Anr
vs Vikrama Deo Garu 52 Indian Cases 333AIR 1919 PC 126 Anant Kibe  Ors
vs Purushottam Rao  Ors 1984 Suppl SCC 175 referred to