ivil appeal Nos
552 554 of 1991
From the Judgment and Order dated 9101989 of the Central Administrative Tribunal New Bombay in Transfer Applications No 430 431 and 433 of 1987
BK Mehta CP Pandey M Chopra and VS Sharma for the Appellants
K Lahiri Ms Kitti Kumaramangalam and Ms Sushma Suri NP for the Respondents
The Judgment of the Court was delivered by AHMADI J
Special leave granted The appellants and the writ petitioners are presently serving in the Time Keeping Department of the Naval Dockyard Bombay which is under the administrative control of the Vice Admiral Flag Officer Commanding in chief Western Naval Command Bombay
In the said department there are several posts of Junior Time Keepers and only two posts of Senior Time Keepers
Since the promotional posts were limited in number there was stagnation at the base level of Junior Time Keepers
With a view to removing this stagnation the cadre of Time Keepers was sought to be amalgamated with the clerical cadre in the same department
On 14th September 1966 the Under Secretary to the Government of India Ministry of Defence wrote a letter to the Chief of Naval Staff on the subject of amalgamation of the Time Keepers cadre with the clerical cadre
The text of the letter reads as under Sir I am directed to convey the sanction of the President to the merger of the cadre of time keepers with the clerical cadre in all Naval Establishments
Consequent on this merger 223 Senior Time Keeper will be redesignated as Upper Division Clerks
The authorised ratio of 14 between UDCs and LDCs will be maintained after this merger but where because of the merger and redesignation of Senior Time Keepers as Upper Division Clerks the number of Upper Division Clerks exceeds the authorised ratio no reservations will be made and the excess vacancies of Upper Division Clerks will be adjusted against vacancies of Upper Division Clerks becoming available by way of increase in Establishment retirement etc
The existing pay of the time keepers will be protected and they will continue to draw increments in the new cadre on the due dates 3
Any subsidiary instructions regarding seniority promotion etc
will be issued by you
4This letter issue with the concurrence of Ministry of Finance DefenceNavy vide their uo
No 3161 NA dated 3181866
 A few days later another letter dated 5th December 1966 was issued by the office of the Rear Admiral Western Naval Command Bombay on the same subject which reads as under In accordance with the Govt
of India Ministry of Defence letter No CPA4895NHQ8364DN II dated 14th September 1966 the Cadre of Time Keepers will be merged with that of LDCUDC with effect from 1st December 1966
This merger is intended only to give promotion to the Time Keepers alongwith the LDCUDC
Their duties terms and conditions of service will remain the same and their hours of work will also continue to be 45 in a week
Consequent upon the issue of this order and in order to distinguish them from the UDCLDC and UDCsLDCs the suffix T will be added after their designation
All records and correspondence relating to them should also be indicated by this suffix
224 The employees working in the Time Keeping Department were entitled to the benefit of over time and productivity linked bonus since they were considered to belong to the industrial wing
Lower Division Clerks and Upper Division clerks belonging to the clerical cadre who were working in different administrative offices of the Naval Dockyard were not entitled to this benefit
Therefore when one Thoppil Ramakrishnan was transferred in August 1980 as UDCT in the Spare Parts Distribution Centre he challenged his transfer by filing a Writ Petition No 106580 in the High Court of Bombay on the ground that since he was appointed as Junior Time keeper in 1953 and was promoted as UDCT in 1967 he belonged to a special cadre and could not be transferred to the general cadre as that would entail loss of the benefit of over time and productivity linked bonus
His petition was allowed by the High Court by the judgement and order dated 1st March 1984
The High Court treating the letter of 5th December 1966 as clarificatory concluded that the merger was intended for the sole purpose of making available to the Time Keepers avenues of promotion in the clerical cadre but their terms and conditions of service were to remain in tact and it is for that purpose that they were to be designated by the suffixT
The High Court therefore held that there was no complete merger of the two cadres
The High Court however realised that Time Keepers could not be given promotion to more responsible assignments unless they received the required experience of administrative work normally available to Lower Division Clerks and Upper Division Clerks but rested content on the statement made by the counsel for the petitioner that the pertitioner will not claim the benefit of promotion in the clerical cadre
On this statement the High Court made the rule absolute
Against this judgement a Letters Patent Appeal was filed but without success
Another Writ Petition No106680 files by Chob Singh Tomar was similarly disposed of by the same learned Judge on the next day ie 2nd March 1984
Both the above Judgement were mainly based on the language of the letter of 5th December 1966
Realising the difficulty created by the saidletter the Flag Officer Commanding in Chief Western Naval Command Bombay cancelled the said letter by his communication dated 27th August 1984
The subsequent communication reads as under 1
Ministry of Defence Letter CPA4895NHQ8634DN II dated 14 Sep 66 is reproduced as Annexure I to this order for information
225 2This Headquarters Civilian Establishment Order Part II of 1966 No6 dated 05 Dec 66 and 5080 dated 23 Aug 80 are hereby cancelled
 By a subsequent letter dated 20th November 1984 it was further directed that the suffixS and suffix T should bed removed from all records and the incumbents should be redesigned as LDCsUDCs
On the cancellation of the letter of 5th December 1966 and the removal of the suffix T what survived was only the merger order of 14th September 1966
Consequently inter se transfers from the Time keeping Department to the various administrative departments of the Naval Dockyard became possible
Thereupon RA Sawant and RD Jawakar who were working in the Time Keeping Department were transferred on promotion as UDC by orders dated 17th April 1985 and 5th October 1985 respectively to other administrative departments of the naval establishment
These transfers triggered off certain writ petitions in the High Court of Bombay
On the constitution of the Central Administrative Tribunal for that area those writ petitions were transferred to the Tribunal for disposal in accordance with law
The Tribunal by its impugned common judgement dated 9th October 1989 came to the conclusion that after the cancellation of the order dated 5th December 1966 the field was held by the Presidential Order referred to in the letter of 14th September 1966
The Tribunal held that the employees in the Time Keeping Department no longer belonged to separate cadre and the authorities were entitled to transfer them to the other ministerial branches in the Naval establishment under the Merger Scheme
In regard to the judgements delivered by the High Court of Bombay on 1st and 2nd March 1984 it opined that on the cancellation of the order of 5th December 1966 those decisions had lost their force and the question had to be answered solely on the basis of Presidential Order referred to in the letter of 14th September 1966
In this view of the matter the Tribunal dismissed the applications and vacated the interim orders
It is against the said judgement of the Tribunal that the aforesaid appeals have been filed
Certain other employees who apprehended transfer from the Time Keeping Department to other administrative departments in the Naval establishment approached this Court directly by way of a writ petition
Their contention is identical to the contention raised in the appeals preferred against the impugned order of the Tribunal
We will therefore dispose of the appeals as well as the writ petition by this common judgement
226 Mr Mehta the learned counsel for the appellant petitioners contended that the employees working in the Time Keeping Department of the Naval establishment perform duties which are distinct from ordinary clerical duties and therefore they constitute a separate and distinct cadre to which are attached certain additional monetary benefits such as over time payment productivity linked bonus etc which would be lost to them if they are transferred to other administrative departments of the naval establishment
He submitted that since the Junior Time Keepers did not have sufficient avenues for promotion and were stagnating at the base leval and the Senior Time Keepers had no promotional avenue altogether their grievance was sought to be redressed by providing them further avenues of promotion under the Presidential Order without depriving them of their identity and special benefits available as belonging to the industrial wing of the establishment
According to him the Presidential Order of merger contained in the letter dated 14th September 1966 was issued for this limited purpose only of giving the Time Keepers an opportunity of career advancement which was available to their counter part in the administrative Non industrial departments of the Naval establishment but it was never intended to deprive them of the additional monetary benefits to which they were entitled as belonging to the industrial wing
In other words according to Mr Mehta the merger of the Time Keepers  cadre with the clerical cadre was only notional and limited to opening avenues for promotion for the former but there was no actual merger in the sense of the Time Keepers losing their identity and that is why in the subsequent letter of 5th December 1966 the department rightly observed that their duties terms and conditions of service will remain the same and their hours of work will continue to be 45 in a week and they should be distinguished by the use of the suffix T after their designation
The cancellation of the order of 5th December 1966 by the subsequent order of 22nd August 1984 does not alter the situation contended Mr Mehta and therefore said he the Tribunal was in error in coming to the conclusion that the earlier two decisions of the Bombay High Court had lost their force
He therefore submitted that the Tribunal s approach was clearly erroneous and this Court must correct the same
Mr Lahiri the learned counsel for the department contended that the Presidential Order referred to in the letter of 14th September 1966 had merged both the cadres and the Time Keepers were therefore redesignated as Lower Division Clerks and Upper Division Clerks
He submitted that there was no indication in the Presidential Order that these Time Keepers who were redesignated as LDCs 227 UDCs will continue to constitute a separate cadre and yet be entitled to promotion in the clerical cadre
He therefore submitted that the subsequent order of 5th December 1966 was issued on an erroneous reading of the Presidential Order and when the department realised the mistake after the High Court s judgements it promptly cancelled the said order and restored the position as on the issuance of Presidential Order
He therefore submitted that the Tribunal was right in coming to the conclusion that as the High Court s judgements were based on the subsequent order of 5th December 1966 and the same was since cancelled the judgements no longer held the field and the appellants petitioners were not entitled to the benefit thereof
He further pointed out that under the Presidential Order the  pay  of the Time Keepers has been protected and therefore they can have no cause to complain but such of those LDCsUDCs who are posted in the Time Keeping Department are allowed to draw overtime wages as well as bonus admissible under the relevant law
These benefits are attached to the post and not the individual and the one who is manning the same is entitled to them and not others
He therefore submitted that this Court should not interfere with the view taken by the Tribunal and should dismiss these appeals as well as the writ petition
We have carefully considered the contentions urged before us by the learned counsel for the contesting parties
The letter of 14th September 1966 clearly refers to the Presidential sanctionto the merger of the cadre of Time Keepers with the clerical cadre in all Naval establishments
Consequent on this merger the Junior Time Keepers were to be redesignated as Lower Division Clerks and there Senior Time Keepers as Upper Division Clerks
There is nothing in this letter to convey that they were to retain their identity as Time Keepers
The letter further states that their entry into the clerical cadre should not disturb the authorised ratio of 14 between UDCs and LDCs but where because of the merger and redesignation of Senior Time Keepers as UDCs the numbers of UDCs exceeds the authorised ratio there should be no revision but in the excess should be adjusted against vacancies becoming available by way of increase in establishment retirement etc
Paragraph 2 of that letter states that the existing pay of the Time Keepers will be protected and they will continue to draw increments in the new cadre on the due dates
It is clear from the above text of the letter of 14th September 1966 that the intention was to merge the cadre of Time Keepers with the clerical cadre and to adjust the imbalance
If any caused on account of such merger in a manner so as not to disturb the authorised ratio
The pay and increments of the Time Keepers were protected by the said order
There 228 can therefore be no doubt that the plain language of the Presidential Order as reproduced in the letter of 14th September 1966 clearly manifests an intention to merge the existing Time Keepers  cadre with the clerical cadre albeit with a view to opening avenues for promotion for the Time Keepers
The subsequent order of 5th December 1966 issued by the Western naval Command could not alter this Presidential Order
If that subsequent order was found to be inconsistent with the Presidential Order it had to be ignored for the simple reason that the officers of the Naval establishment were not competent to alter vary or modify a Presidential Order
The interpretation placed on that subsequent letter by the Bombay High Court in the judgements delivered on 1st and 2nd March 1984 does give the impression that the High Court thought that there was no complete merger and the personnel meaning the Time Keeping Department retained their identity and were therefore entitled to the additional benefits of over time and productivity linked bonus
After the judgements were delivered the department instead of approaching this Court thought it wise to undo the mischief by cancelling the subsequent order of 5th December 1966 which was the source of trouble
Since the conclusion reached by the High Court was based on the language of the subsequent order of 5th December 1966 the Tribunal was not bound to follow the same on the cancellation of that order
We may also state with respect to the learned judge in the High Court that we find it difficult to persuade ourselves to his point of view for diverse reasons
Firstly the plain language of the text of the Presidential Order manifests a clear intention to merge the cadre of Time Keepers with the clerical cadre on the establishment
Secondly the subsequent order of 5th December 1966 had to be read consistently with the Presidential Order as to fulfil the purpose or objective and not to impede or stifle it
Thirdly even if the subsequent order was found to be inconsistent with the Presidential Order in certain respects the inconsistency had to be ignored for the obvious reason that the officer issuing the order could not have altered or modified the Presidential Order and lastly if there was any confusion caused by the subsequent order it should have been read harmoniously with the Presidential order Order so as to advance its objective or merger of the Time Keepers  cadre with the clerical cadre
In order to appreciate Mr Mehta s contention that by the Presidential Order only a notional merger for the limited purpose of providing the Time Keepers with promotional avenues was intended and not actual merger so as to deprive the Time Keepers of their distinct identity it is necessary to realise that the sole purpose of the exercise 229 indisputably was to make career advancement possible for the Time Keepers
At the time of issuance of the Presidential Order there were only two layers in the Time Keeping Department of the establishment
The base level which was fairly large comprised Junior Time Keepers and above them were Senior Time Keepers
Since there were only two posts of Senior Times Keepers the prospects of promotion for Junior Time Keepers were very dim
As there was no further promotional avenue for the Senior Times Keepers the mobility was restricted and they too suffered on that account
There was therefore large scale stagnation and with a view to overcoming the same the question of merger of the Time Keepers  cadre with the clerical cadre was examined
On the same being found feasible the Presidential Order came to be issued
The High Court realised that if the Time Keepers do not gather sufficient exprience of administrative work they would not be able to handle responsible work at higher levels in the heierarchy and hence their movement to the ministerial posts is absolutely necessary
But the High Court resolved this situation by obtaining a statement from the incumbent that he would not claim the benefit of promotion to which he may otherwise be entitled by reason of the merger policy
Would this advance the policy of merger or fulfil the purpose of opening avenues of promotion for the Time Keepers If the mobility from Time Keepers  post to the clerical post is halted on account of the former s unwillingness to move to the clerical side to gain experience and equip himself to discharge higher responsibilities in future merely to retain the monetary benefit accruing from overtime wages and bonus it is difficult to understand how even the limited objective of providing promotional avenues to Time Keepers would be satisfied
And it is all the more difficult to understand how those incumbents who entered the Time Keepers Department after the Presidential Order became effective can claim that they have a vested right to continue in the department because they would suffer a monetary loss if they are transferred to the clerical posts
The list Annexure C to the appeals would show that except for those at serial Nos
1 to 3 8 and 12 the rest of the incumbents had either joined as LDC in the Time Keeping Department after the Presidential Order became effective or had been transferred to that department from the other administrative departments where they were working as LDCs
It is difficult to understand how those who entered that department after the merger via the other administrative branches of the establishment can refuse to go back on the specious plea that they would suffer a financial loss
They can have no right to the post in the Time Keeping Department
So long as they are posted there and are discharging the functions of the Keeper they would be entitled to overtime wages 230 and bonus but on that plea they cannot contend that they are not transferable to the ministerial posts on the establishments
We havetherefore no hesitation in concluding that those who joined the Time Keeping Department after the Presidential Order became effectiveeither by a direct posting in that department as LDC or on transfer to that departmenthave no right to continue in that department merely because their would entail economic loss since they are governed by the merger scheme which had become operative before their entry in that department
 They were borne on the common cadreand werenever members of the earlier Time Keeper s cadre
But the case of those Time Keepers who were serving as such in the Time Keeping Departmentsuch as the incumbents at serial Nos1 to 3 8 and 12 SPJadhavVSKhotPJ Rodrigues BJDhamba and VS Shinde must be viewed differently
They belonged to a separate cadre of Time Keepers at the date of the issuance of the Presidential Order
Their terms and conditions of service couldnot be alteredvaried ormodified to their detriment without giving them an opportunity to exercise their option
If their transfer outside the Time Keeping Department becomes possible by the merger of their cadre with the clerical cadre but the same entails civil consequences in the form of loss of overtime wages and bonus justice demands that they must be given an option to choose which course is beneficial to them and if they decide or opt in favour of the status quo they must be allowed to continue as Time Keepers and not be transferred outside that department without their consent because to do so would render the scheme vulnerable unless the department agrees to make good the economic loss suffered on transfer
Thereforeso far as those Time Keepers who were serving in the Time keeping Department on and before the date of the implementation of the Presidential Order and who continue to serve in the same department are concerned the department should give them an option if they are proposed to be transferred outside that department or the department should undertake to make good the economic loss which they are likely to suffer on transfer
Such a reading of the Presidential Order is permissible on the plain language of theorder and saves it from being rendered vulnerable
See The State of Kerala vs MKKrishnan Nair  Ors
  at 571
In the result we allow the appeals partly insofar as they concern the aforenamed five persons to the extent indicated above and dismiss them in respect of the remaining appellants
Since the writ petitioners 231 are not shown to belong to the category of employees who were borne on the cadre of Time Keepers and were actually working in the Time Keeping Department on or before the issuance of the Presidential Order their writ petition fails and is dismissed
There willhowever be no order as to costs in the appeals as well as the writ petition


Summary:
The Ziarat Shareef of Hazrat Baba Ibrahim a holy place of worship in the Rakhbahu area of Jammu City was granted certain land to the Ziarat by the State Government vide two orders dated September 22 1955 and November 29 1958
The Ziarat was being managed by the 1st appellant and his brothers since the death of their father in 1963
The Committee of Muslim Wakf incorporated under the Jammu and Kashmir Muslim Wakf Act which came into force in 1959 file a suit for restraining them from alienating raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat on the allegation that the appellants defendants were treating the lands granted to the Ziarat as their personal property and mismanaging and also alienating the same
Resisting the suit the appellants defendants contended inter alia that notwithstanding the use of the word Ziarat in the two Government orders the transfer of the land in dispute was in their father s favour in his personal capacity in lieu of his possessory right over about 400500 kanals of land which was taken over by the Government and not in the form of any dedication and as such the land was not the property of the Ziarat but their father s absolute property and had devolved upon them by succession and therefore they had the right to deal with the property in any manner they liked
The trial court dismissed the suit holding that the two grants were in fact made in favour of defendants  father and not the Ziarat
254 The first appellate court upheld the trial court s findings
However in second appeal the High Court held that from the recitals of the two orders of the Government of 1955 and 1958 it was clear that the two grants were in favour of the Ziarat
Hence the appellants defendants filed the appeal by special leave before this Court contending that the High Court had erred in upsetting the findings of the courts below based on appreciation of the evidence that as a fact the appellants defendants were the owners of the property the subject matter of the Government grants
Dismissing the appeal the Court HELD 11 The two orders of the Government dated September 22 1955 and November 29 1958 are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to the Ziarat alone and not to the appellants defendants in their personal capacity
In fact the names of the appellants defendants or their ancestors are not even mentioned in the two orders
The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shareef of Baba Ibrahim Shah be granted to the said Ziarat permanently
The later order of 1958 also says the same thing
It is nowhere mentioned in any of those orders that the land was given not to the Ziarat but to the father of the appellants defendants who was Majawar of the Ziarat either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government
259A B C 12 A manager or a trustee in possession of a religious shrine cannot be allowed to assert a hostile title unless he formally surrenders possession to the lawful authority
260B In the instant case there was no justification for the appellants defendants to cast their covetous eyes on the property of the Ziarat taking advantage of their possession over the same which was as managers or trustees and assert a hostile title to it
Even if they were in possession of the lands it would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat
In other words the possession would be for
the benefit of the Ziarat
259H 260A E 13 In the face of clear and unambiguous terms of the Government orders it was not permissible for the appellants defendants to adduce evidence to show that the grant was made to them and not to the 255 Ziarat
The question was of interpretation of two Government orders which was essentially a question of law
260G In the circumstances the High Court was not in error in upsetting the findings of the courts below
260F