CASE NO.: Writ Petition (civil) 202 of 1955 PETITIONER: RAGHUBAR SARUP NAWAB JAMSHED ALI KHAN RESPONDENT: STATE OF U.P. DATE OF JUDGMENT: 18/12/1958 BENCH: S.R. DAS CJI & S.K. DAS & P.B. GAJENDRAGADKAR & K.N. WANCHOO & M. HIDAYATULLAH JUDGMENT:

JUDGMENT AIR 1959 SC 909 WANCHOO, J. : These petitions under Article 32 of the Constitution and appeals on certificates granted by <ORG> question the action taken by the State of Uttar Pradesh under the U. P. Zamindari Abolition and Land Reforms Act, No. I of 1951, (hereinafter called the Abolition Act) and the Rampur Thekedari and Pattedari Abolition Act No. X of 1954, (hereinafter called the Thekedad Act). We propose to deal with them by one judgment as they raise common points and in the case of some petitioners lands covered by both the Acts are involved.

2. The former State of Rampur was an independent State under the paramountcy of the British Crown before 1947. When India became a <ORG> on the passing of the Indian Independence Act of 1947, the State of Rampur acceded in August, 1947, to the <ORG> of India by means of an instrument of accession. This was followed by a merger agreement between the Ruler of the Rampur State and the <ORG> of India on May 15, 1949, by which the Ruler agreed to transfer the entire administration of the State to the <ORG> as from July 1, 1949. The Governor General then passed an order on July 1, 1949, known as the Rampur (Administration) Order by which a Chief Commissioner was appointed to administer the area of the former Rampur State under <ORG>. This was followed on November 29, 1949, by the States Merger (United Provinces) Order, 1949, promulgated by the Governor General by which the administration of the former State of Rampur was transferred to <ORG> and Rampur thereafter became a district in the State of Uttar Pradesh. In 1951 the State of Uttar Pradesh passed the Abolition Act. It was, however, not applied to the district of Rampur initially; but power was reserved under S. 2 to apply the whole or any provisions of the Act to Rampur as defined in the Rampur (Administration) Order, 1949, subject to such exceptions or modifications, not affecting the substance, as the circumstances of the case may require. By virtue of this power, notification No. 3168/1-A-559/ 1951 was issued on June 30, 1954, applying the Abolition Act to Rampur. This was followed by another notification No. 3169/1-A559/1951 on July 1, 1954, declaring that all estates situate in Rampur vested in the State of Uttar Pradesh. These notifications are the target of attack in the petitions and appeals relating to jagirs, zamindaris and muafis in Rampur.

3. The system of land tenure in the former Rampur <ORG> was this. In a portion of the <ORG> known as Ileqz Jadid, which was ceded by <ORG> to the former Rampur <ORG> in 1857, there were intermediaries called Zamindars who were in all respects similar to the Zamindars in the <ORG> of Uttar Pradesh. Secondly, some lands had been conferred by the Ruler of the <ORG> on certain persons as jagirs or muafis. The holders of these estates did not pay any land revenue which was payable by the Zamindars; they only paid a local rate or abvab. Thirdly, the rest of the land in the <ORG> consisted of Ehau villages, i. e. lands belonging to the <ORG> in which there were no intermediaries between the <ORG> and the tillers of the soil. In this class of lands, there were villages which were almost uninhabited and very little land in these villages was under cultivation. The Ruler of Rampur decided in March 1949 to lease out some of these villages to persons who were called Thekedars or Pattedars in order that these persons might settle tenants and invest money in the villages so that lands lying uncultivated might be brought under cultivation and the production of food grains might increase. These leases were to be in the first instance for a period of ten years with a right to the <ORG> to extend the period by another ten years. The leases provided what the Thekedars were to do in order to bring lands in villages leased to them under cultivation and also provided what percentage of the profits was to be paid to the <ORG> as revenue. The leases further provided for a review after three years, six years and ten years whether the conditions had been carried out and for increase of the <ORG>'s share of the profit after each review. It was also provided that in case the conditions were not carried out, the leases would be terminated and the villages taken under direct management by the <ORG>. Many petitioners and appellants before us are Thekedars or Pattedars to whom such leases were granted and the initial period of ten years has yet to run out.

4. The Abolition Act did not obviously apply to these leases. In 1954 the State of Uttar Pradesh decided to abolish this system of thekedari and pattedari prevalent in Rampur with a view to facilitating the introduction of land reforms therein. Consequently, the Thekedari Act was passed and received the assent of the President on April 18, 1954 and was to come into force from July 1, 1954. Section 2(6) of the Thekedari Act defines the word lease in terms to cover these leases Section 3 provides for determination of such leases and section 4 for the consequence of such determination. Sections 7 to 17 lay down the principles and procedure for payment of compensation to the lessees. The vires of this Act has also been challenged.

5. We shall first deal with the cases relating to jagirs, zamindaris and muafis. The contention in these cases was two-fold. In the first place, reliance was placed on the agreements entered into between the Ruler of Rampur and <ORG> and it was urged that in view of these agreements it was not open to the State of Uttar Pradesh to abolish estates in Rampur. In the second place, it was contended that S. 2(1) of the Abolition Act was ultra vires as it amounted to excessive delegation of essential legislative functions to the executive, and in any case the notification of June 30, 1954, was bad inasmuch as it effected substantial changes in the definition of the word 'estate' in the said Act.

6. We are of opinion that there is no force in these contentions. The petitioners and the appellants in these cases cannot in the first place rely on the provisions of the agreement between the Ruler of Rampur and the Dominion of India and raise any dispute on the basis of this agreement in view of the bar of Art. 363 of the Constitution; (see. <CITATION> , 1955-2 SCR 164: ( (S) AIR 1955 SC 540). In any case even if one looks at clauses (iii) and (x) of the collateral letter which are the basis of this argument, it is found that there is nothing in this argument even on merits. Clause (iii) reads as follows:-

"All contracts and agreements entered into by your Highness before the date on which the administration is made over to <ORG> will be honoured except in so far as any of these contracts or agreements may either be repugnant to the provisions of a law made applicable to the State or inconsistent with any general policy of the successor Government."

Assuming that the jagirs, zamindaris and muafis with which we are concerned here are the result of some contracts or agreements entered into by Ruler of <NAME>, clause (iii) makes it clear that these contracts and agreements would only be honoured except where they become inconsistent with any general policy of the successor Government. As soon therefore as the State of Uttar Pradesh which is the successor Government for present purposes decided to abolish the jagirs, zamindaris and muafis in pursuance of a general policy to abolish all estates in the whole of Uttar Pradesh, these contracts and agreements must fall and those deriving benefits from these contracts and agreements cannot put them forward against the general policy of the successor Government.

7. Clause (x) is in these terms---

"The present grants and allowances to the <NAME> mothers, brothers, sisters, and other members of the <NAME> family, list attached, will be continued during their life time and, will be charged on the revenue of the <ORG>."

<NAME> is a brother of the Ruler and he falls back on this clause. It is enough to say, as pointed out by <ORG>, that this clause deals with cash allowances to the relations of the Ruler, which will be clear from the list attached and also from the fact that the clause provides that these grants and allowances would be charged on the revenue of the <ORG>. <NAME>'s name does not appear in the list attached, and, therefore, he cannot take advantage of this clause. The contention based on the agreement, therefore, fails. Our attention was also drawn to Articles 7 and 8 of the <ORG>s Merger (Governors' Provinces) Order 1949, which also applied to the <ORG>s Merger (United Provinces) Order 1949. Those Articles have no relevance so far as jagirs, zamindaris and muafis are concerned. They transfer the liability in respect of loans, guarantees and other financial obligations of <ORG> arising out of the governance of the merged <ORG> to the absorbing provinces and lay down that any contract made before the appointed day on behalf of the Dominion of India for the purposes connected with the governance of the merged <ORG> shall have effect as if it had been made by or on behalf of the absorbing <ORG> unless it is wholly or in part for central purposes. These provisions therefore have no earing on the questions canvassed before us.

8. The second contention relates to the vires of S. 2(1) of the Abolition Act and the notification, of June 30, 1954. We are of opinion that it is unnecessary to go into this question now, in view of the amendment made in the Abolition Act by U. P. Zamindari Abolition and Land Reforms (Amendment) Act, No. XIV of 1958. The main attack originally was that even if power of delegation under S. 2(1) of the Abolition Act was not excessive, the notification of June 30, 1954, by changing the definition of the word "estate" while applying the Abolition Act to Rampur made a change of substance therein. This argument now falls because U. P. Act No. XIV of 1958 has retrospectively amended the definition of the word "estate" in section 3(8) of the Abolition Act. Section 1(2) of the U. P. Act XIV of 1958 provides that the Act shall be deemed to have come into force from the 1st of July, 1952. Section 2 provides that the following shall be and shall be deemed to have always been substituted for clause (8) of S. 3 of the Abolition Act. The new definition of the word "estate" begins with the words "estate means and shall be deemed to have always meant". By this amendment the change made in the notification of June 30, 1954 in the definition of the word "estate" in the Abolition Act has now been made a legislative provision in force from July 1, 1952. It is not disputed that with this change in the definition of the word "estate" from July 1, 1952, all jagirs, zamindaris and muafis in Rampur would be covered by the word "estate" as now defined. So far as the power given to <ORG> to extend the Abolition Act to other areas in the State of Uttar Pradesh to which it was not initially applied is concerned, it cannot be said that this power amounts to excessive delegation, for it is well settled that the legislature may leave it to the executive to apply the provisions of an Act to different geographical areas at different times depending on various considerations. This point, therefore, also fails in view of U. P. Act XIV of 1958. The contention that pending litigation is saved is not sound because the new law applies to all estates and no saving in respect of pending litigation can be implied; (see <NAME>, v. Mt. <NAME>, 63 Ind App 47 : (AIR 1936 PC 49). No other points were urged before us. All the petitions and appeals relating to jagirs, zamindaris and muafis must therefore be dismissed. But it is only proper that parties should bear their own costs as the amendment came in 1958.

9. This brings us to the petitions and appeals relating to thekedari and pattedari. In these cases also, reliance was placed on the agreements between the Ruler of Rampur and the Dominion of India. We have dealt with that already in the earlier part of this judgment and we reject the contention based on these agreements.

10. Then it was urged that the leases given to the thekedars and pattedars could not be determined under the Thekedari Act, because a perusal of the terms of the leases shows that in substance the person to whom the leases were granted was only a 'manager'. We find it difficult to appreciate this argument. We have already briefly summarised the terms of these leases. Those terms indubitably show that the persons to whom these leases were granted were not mere managers of these villages on behalf of the <ORG>. In the first place, the instruments show that they were in terms called leases and the persons to whom they were granted were called lessees. These persons were not managers in the sense of being employees of the <ORG>. They certainly had interest in the lands leased to them. As a matter of fact, three of the terms show that if certain conditions were not fulfilled the lease was to be determined and the management taken over directly by the <ORG>. The lessees were to invest their own money, and had to pay what was called revenue and their interest was heritable. In the face of these terms the lessees can in no circumstances be called mere managers, and they cannot, therefore, say that the Thekedari Act which applies to lessees of these leases does not apply to them. The Thekedari Act in terms becomes applicable to leases of this kind under the definition in S. 2(6) and the lessees are directly hit by it. It is not disputed that <ORG> had power to enact this law under Entry 18 of List II of the Seventh Schedule to the Constitution. Further, no argument was addressed before us against the adequacy of compensation provided in the Thekedari Act. In the circumstances, the Thekedari Act being within the powers of the legislature and complying with the provisions of Art. 31(2) is a valid piece of legislation to which no exception can be taken. No other point was urged before us in this connection. There is no force, therefore, in these petitions and appeals relating to thekedari and pattedari lands, and they must be dismissed.

11. We, therefore, dismiss all the petitions and appeals relating to jagirs, zamindaris and muafis; but in the circumstances pass no order as to costs in them.

12. We further dismiss all the petitions and appeals relating to thekedari and pattedari lands and order one set of costs to the State of Uttar Pradesh in them.

13. C. As. Nos. 530, 540, 569, 600, 601 and 617 of 1957 have abated and are hereby dismissed.

14. C. As. Nos. 547, 553, 555, 578, 595 and 598 of 1957 are dismissed for non prosecution.


ORDER <NAME>, J.

1. The judgment<ORG>debtor in the E.P. No. 110/2005 in O.S. No. 210/1988, on the file of the learned <ORG>, Alandur, is the Revision Petitioner before this <ORG>. The respondent herein filed O.S. No. 19 8/1988 before the <ORG><ORG><ORG>, Poonamallee for a declaration that the 'B' schedule property mentioned in the schedule is his absolute property and for directing the 1st defendant/Revision Petitioner to put the the decree holder/respondent in vacant possession of the suit property. By judgment and decree dated 31.10.1995, the trial court decreed the suit for title and dismissed the same for possession. The respondent/plaintiff herein alone filed an appeal in A.S. No. 385/1996 before this <ORG> and <ORG> of this <ORG> by its elaborate judgment dated 29.3.2005 allowed the appeal and granted the decree for possession also. Against the judgment and decree dated 29.3.2005, the Revision Petitioner filed Special Leave Petition. But the same was also dismissed by the Hon'ble Supreme <ORG> on 13.5.2005. The respondent/decree holder filed E.P. No. 110/2005 to execute the decree and after receiving the notice in the execution proceedings, the Revision Petitioner filed an Execution Application under Section 47 and with a prayer to declare that the decree dated 31.10.1995 is null and void and not executable against him. The execution court by order dated 14.3.2 006 in unnumbered SR No. 11420/2005 in E.P. No. 110/2005 rejected the same and challenging the order dated 14.3.2006, the above Revision Petition has been filed by the Revision Petitioner herein.

2. Heard the Learned Counsel for the Revision Petitioner and also the Learned Counsel for the respondent. I have also perused the documents filed in support of their submissions.

3. Learned counsel for the Revision Petitioner contended that the execution court has failed to exercise its jurisdiction to decide the issue in accordance with Section 47 of C.P.C., read with Rule 143 of the Civil Rules of Practice. He further submitted that the Revision Petitioner had no occasion to bring it to the notice of the court during the hearing of the suit and appeal about the fraud played by the decree holder against the courts and other authorities which came to light when he took steps to obey and to give effect to the decree in the suit.

4. Per contra, Learned Counsel for the respondent submitted that the executing court has rightly rejected the Section 47 application as the executing court cannot go behind the decree and reopen the matter afresh.

5. It is the case of the Revision Petitioner that he pursued the suit and appeal bonafidely without realising that the respondent herein played premeditated fraud by making and fabricating successive documents and obtained orders suppressing the public records with the calculated intention to cheat the real owner and legally interested persons. Therefore, according to him, the decree in O.S. No. 210/1988 is a nullity and unenforceable. It is the revision petitioner's further case that the decree is not executable against the petitioner in view of the inherent defect in the title of the property and also description of the property mentioned in the schedule in the decree. Learned counsel for the petitioner relied on the judgment ( <CITATION> ) to contend that objection under Section 47 about the executability of the decree can be allowed if it is found that the decree is a nullity.

6. In the above judgment, <ORG> has elaborately dealt with the power of the executing court under Section 47 of C.P.C., and held as follows:

23. Under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the court executing the decree and not by a separate suit. The powers of the court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. A first appellate court is not only entitled but obliged under law to go into the questions of facts as well, like the trial court, apart from questions of law. Powers of the second appellate court under different statutes like Section 100 of the Code, as it stood before its amendment by Central Act 104 of 1976 with effect from 1.2 .1977, could be exercised only on questions of law. Powers under statutes which are akin to Section 100 of the Code, as amended and substituted by the aforesaid Central Act , have been further narrowed down as now in such an appeal only a substantial question of law can be considered. The powers of this <ORG> under Article 136 of the Constitution of India, should not be exercised simply because substantial question of law arises in a case, but there is further requirement that such question must be of general public importance and it requires decision of this <ORG>. Powers of revision under Section 115 of the Code cannot be exercised merely because the order suffers from legal infirmity or substantial question of law arises, but such an error must suffer with the vice of error of jurisdiction. Of course, the revisional powers exercisable under the Code of Criminal Procedure and likewise in similar statutes stand on entirely different footing and are much wider as there the court can go into the correctness, legality or propriety of the order and regularity of proceeding of the inferior court. It does not mean that in each and every case the revisional court is obliged to consider questions of facts as well like a first appellate court, but the court has discretion to consider the same in appropriate cases whenever it is found expedient and not in each and every case. Discretion, undoubtedly, means judicial discretion and not whim, caprice or fancy of a Judge. Powers of review cannot be invoked unless it is shown that there is error apparent on the face of the record in the order sought to be reviewed.

24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against <ORG> of the College which was the defendant without seeking leave of the court to continue the suit against the <ORG> upon whom the interest of the original defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that the original defendant absented himself from the proceedings of the suit after appearance as he had no longer any interest in the subject of dispute or did not purposely take interest in the proceedings or colluded with the adversary or any other ground permissible under law.

7. From the above judgment, it is very clear that the powers of the court under Section 47 are much narrower than its powers of the appeal, revision or review. The executing court can allow objections under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was obtained passed in ignorance of such a provision of law or the law as promulgated making the decree in-executable after its passing. The validity or otherwise of a decree may be challenged by getting a properly instituted suit or taking any other remedy under law. The executing court cannot go behind t he decree except when the decree is a nullity or is without jurisdiction.

8. Learned counsel for the respondent relied on the judgment of <ORG> ( <CITATION> .) to submit that <ORG> should not enlarge the scope of the execution proceeding and treat it as a Full-blown suit. In the above judgment, <ORG> held as follows:

7. In support of the appeals, Learned Counsel for the appellant submitted that a new dimension has been given by the Division Bench. Admittedly, Respondent 1 does not claim any right of ownership over the attached properties. No claims of the nature set forth by Respondent 1 can be examined in terms of Section 47 or Order 21 Rule 58 CPC. By the impugned judgment, <ORG> has enlarged the scope of the execution proceedings and has treated it as a full-blown suit without even recording any reason as to how Respondent 1 has any adjudicable interest in the proceedings. The question of tenancy of tenancy cannot be decided by the executing court.

10. The executing court cannot go beyond the decree. It is settled position in law which flows from Section 38 CPC, except when the decree is a nullity or is without jurisdiction. The crucial expression in Section 47 is "All questions arising between the parties to the suit" "or their representatives". Order 21 Rule 54 deals with attachment of immovable property, while Rule 58 deals with adjudication of claims to, or objections to attachment of property. Case of Respondent 1is not covered by Section 47 or Order 21 Rule 54 or Rule 58. <ORG> misconceived the nature of claim set up by Respondent 1. Learned Single Judge rightly noted that Respondent 1 was not having independent right to the properties. It found that the right claimed was as assignee under the judgment-debtor. The agreement, if any, in that regard was not produced before the <ORG> and, therefore, the learned Single Judge drew adverse inference. Before <ORG>, the stand of Respondent 1was that it was a tenant. Without indicating any reason as to how the reasoning of the learned Single Judge was wrong <ORG> enlarged the scope of the controversy and directed the executing court to decide the question of tenancy, which is legally impermissible.

9. In the light of the well settled legal principles, let me examine the case on hand.

10. It is not in dispute that having suffered a decree, the Revision Petitioner did not file a regular appeal questioning the title of the respondent herein. It is only the respondent who filed an appeal before the court challenging the disallowed portion in the decree. The trial court rendered a finding that the revision petitioner herein is a trespasser and he is a person in possession without any authority. This finding was not at all challenged by the revision petitioner and the same reached its finality. In such circumstances it is not for the revision petitioner herein to contend that by the respondent creating and fabricating documents is thus cheating the true and real owner and legally interested persons.

11. The revision petitioner herein filed S. 47 application on the ground that the respondent herein did not have proper title and the documents he filed before the trial court to prove the title are bogus documents. Such kind of plea cannot be allowed to be raised for the first time by the petitioner in Section 47 application and if it is allowed to be raised the same will defeat the very decree itself and in such a case the executing court has to travel beyond the scope of the decree which is not permissible that too at the instance of a trespasser.

12. The court below has considered the entire facts and rightly came to the conclusion that all the documents relied on by the revision petitioner related to his defence in relation to the declaration relief sought for by the respondent herein which was already held against the petitioner. In such circumstances, I do not find any merit in the Revision Petition and the same is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. C.M.P. No. 5 604/2006 is also dismissed.


PETITIONER: <NAME> & <NAME>. Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 25/04/2000 BENCH: <NAME>, S.R.Babu, <NAME> JUDGMENT:

<NAME> J. :

Civil Appeal No. 5086 of 1994 This appeal is directed against the order made by <ORG>, <ORG> [hereinafter referred to as `the <ORG>'] on November 5, 1993 in O.A. No. 286/92. Respondents Nos. 3 and 4 filed an application O.A. No. 286/92 before the <ORG>. The pleadings raised in the application, briefly stated, are as under.

The respondents were directly recruited through <ORG> as Assistant Executive Engineers (Electrical) Class I in <ORG>, while respondents Nos. 3 to 5 before the <ORG> were recruited as Assistant Engineers (Electrical) Class II and both the applicants and the other respondents were subsequently promoted on ad hoc basis and thereafter they were regularised as Executive Engineers (Electrical). The two respondents were aggrieved by the letter sent on February 6, 1992 which was accompanied by a seniority list of <ORG> whereby the ad hoc services rendered by respondents 3 to 5 before the <ORG> as Executive Engineers from May 25, 1977, February 21, 1982 and April 16, 1982 respectively being treated as regular services and counted for the purpose of seniority in that grade and proposed to re-fix that position in the final seniority list of Executive Engineers as on April 1, 1985 and thus the applicants before the <ORG> being pushed down in the seniority list.

There are two channels of recruitment under the relevant recruitment rules and promotions to the post of Executive Engineer are to be made from two categories, namely, Assistant Executive Engineer Class I with five years regular service on seniority-cum-fitness basis (non-selection) in the 2/3rd quota and the other being Assistant Engineer Class II with eight years regular service on seniority-cum-merit basis (selection method) in the 1/3rd quota selection being made by <ORG> with a member of the <ORG> as Chairman.

The stand taken by the applicants before the <ORG> is that while regular promotions to the grade of Executive Engineers from the Assistant Executive Engineers cadre was made regularly from 1976. However, the seniority in respect of Assistant Engineers Class II was not finalised till November 1987 in view of certain disputes inter se the promotees in the cadre. The <ORG> thereafter selected from the category of Assistant Engineers Class II in a meeting held only in May 1988 when the <ORG> selected the appellants for the vacancies belonging to their quota for the years 1977 to 1982. The appellants had thus worked for long period varying from 6 to 11 years in the post of Executive Engineer on ad hoc before the <ORG> could meet for finalising regular promotion. The revision of the seniority list which was challenged before the <ORG>, it was submitted, was only a corrective action though belated to render justice to the affected persons and is in compliance of the judgment of the Madras Bench of the <ORG> dated October 12, 1990 in O.A. No. 113/89 directing disposal of the representation regarding the seniority of one of the appellants. It was further made clear in the said direction that it has to be decided after taking into account the decision of the Principal Bench of the <ORG> in <NAME> case in O.A. No. 978/87 and of this <ORG> in <CITATION> ., 1990 (2) SCC 715. After noticing several decisions of this <ORG> and of the <ORG>, it was held that under the statutory recruitment rules promotions to the post of Executive Engineer were to be made from among the Assistant Engineers Class II with eight years regular service on seniority-cum-merit by selection method in the 1/3rd quota and admittedly the appellants were promoted on ad hoc basis as Executive Engineers on different dates mentioned earlier. The relevant appointments were purely temporary and on ad hoc basis and were for a limited duration and it was also made clear that services on ad hoc basis will not confer any claim in the matter of seniority, confirmation, etc. Thus it was noticed that the ad hoc promotions were made in administrative exigencies since seniority lists of Assistant Engineers could not be finalised in view of pending litigation and, therefore, the <ORG> meeting for regular selection could not be arranged. Non- selection for a selection post can hardly be considered to be a minor procedural deficiency and, therefore, the <ORG> concluded that selection was not by a competent <ORG> and the ad hoc promotion was itself for a limited time and, therefore, does not fulfil the conditions mentioned in the decision in <CITATION> .., 1993 (3) SCC 371. The <ORG> is of the view that ad hoc service to count for seniority must be rendered continuously till the date of regularisation for 15 years or more and, therefore, it held that the appellants could not take advantage of the ad hoc promotions made purely as a stop gap arrangement and it is only in special circumstances such ad hoc service could be counted for purpose of seniority as noticed in some of the decisions of this <ORG>. Consequently, the application filed by the contesting respondents was allowed and it was declared that the appellants were not entitled to count their ad hoc service in the post of Executive Engineers (Electrical) for seniority, confirmation, promotion, etc. It is contended before us that regular promotions from Executive Engineers, which is a feeder cadre, to the grade of Superintending Engineer could not take place immediately and four vacancies of Superintending Engineers had arisen by the time the meeting of <ORG> was held on October 17, 1984. Strong reliance was placed on the counter affidavit filed before the <ORG> which is to the following effect :- "The first two points after Point No. 7 of seniority list dated 10-4- 85 thus, go to the officers promoted from the rank of AEE(E) and SL No. 10 goes to the officer promoted from the rank of AE(E). A point was left blank in seniority list to accommodate an officer promoted from Group B. This was erroneously shown as Sl No. 9 instead of SL No. 10. This mistake has later on been rectified. The applicant cannot presume that in the selection process, he will find the top most position on the panel. The <ORG> chaired by a Member of <ORG> will draw a select panel according to statutory Recruitment Rules."

Appellant No. 1 claimed that he was assigned top most position by the <ORG> held on May 13, 1988 but the provisional seniority list dated January 12, 1989 did not reflect his position and in those circumstances he sought permission to withdraw the pending application with liberty to file a fresh application. So far as appellant No. 2 is concerned, he filed an O.A. before the Madras Bench of the <ORG> claiming seniority from the year 1982 when he was promoted on ad hoc basis to the grade of Executive Engineer (Electrical). The <ORG> rejected the contention raised by the <ORG> that he is deemed to be on regular basis only with effect from May 13, 1988 when the <ORG> met. Since the seniority list dated January 12, 1989 was only provisional the <ORG> directed appellant No. 2 to make another representation to the <ORG> which the <ORG> was directed to dispose of in accordance with law. Pursuant to this direction given by the Madras Bench of the <ORG> it is stated that the seniority had to be re-fixed and, therefore, it is contended that inasmuch as they had rendered service for a long period at any rate in higher cadre and their promotions having been subsequently regularised ought to be treated as giving them seniority in the matter.

The stand taken by the contesting respondents is that under the relevant rules the <ORG> should be headed by a member of <ORG> which was not done in the case of the appellants at the time of their ad hoc appointment and appellant No. 1 was duly considered in 1978 and was not found suitable and for that reason his name did not figure in the selection list and there was no additional quota vacancy in the grade of Executive Engineer (Electrical) meant for group B cadre officers upto 1985. As a matter of fact, <NAME>, who is admittedly senior to both the appellants, was only regularised on June 28, 1985 with effect from April 1, 1975 as he came under the purview of clause 4C of amended rules published on September 22, 1984. Since the appellants herein were not covered under clause 4C of amended rules 1984 and also additional quota was not available as such, they could not be regularised prior to 1985. The <ORG> has taken note of the fact that the ad hoc promotions given to the appellants were not de hors the rules. It was contended that there were four vacancies against Assistant Engineers' quota but <ORG> had informed the <ORG> to fill two vacancies from direct recruitment and the <ORG> accordingly selected <NAME> and <NAME> though <NAME> and the first appellant were also eligible and vacancies were existing they were not regularly promoted by wrong interpretation of rules and separately reserving two vacancies for promotee cadre. Such provision is not existing in recruitment rules and the petitioners are the initial constituents in Assistant Engineer (Electrical) grade and are much above promotees in the Assistant Engineer (Electrical) seniority list. There was considerable delay in the introduction of initial constitution clause and the same was published only in 1984 after a gap of 9 years and came into force with effect from April 5, 1975. <ORG> was thereafter convened by the <ORG> on August 16, 1985 and appellants and officers, including <NAME> and several other officers, were promoted on the dates indicating against their names. Appellant No. 1 and <NAME> were not included as initial constituents since they neither completed eight years of service nor on ad hoc before April 5, 1975. Their promotions fall under maintenance clause 4A and 4B of amended rules 1984. They, however, formed the initial constituents in Assistant Engineer (Electrical) or Assistant Executive Engineer (Electrical) cadre separately. On that basis it was contended that the seniority list published is in order.

<ORG> has also filed two appeals - one (Civil Appeal No. 3018 of 1997) arising out of judgment dated June 27, 1996 in O.A. No. 108/96 passed by the Madras Bench of <ORG> and other (Civil Appeal No. 5081 of 1994) against judgment and order dated November 5, 1993 passed by the <ORG> in O.A. No. 286/92. In O.A. No. 108/96 the Madras Bench of <ORG> merely followed the judgment of the <ORG> which is under appeal before us in Civil Appeal No. 3018 of 1997.

There is another dimension to the case by reason of the introduction of the Rules called "The Posts & Telegraphs Civil Engineering (Electrical Gazetted Officers) Recruitment (Amendment) Rules, 1984", which were given retrospective effect from April 5, 1975. It is explained that the reason for introduction of these Rules is that for recruitment to the various posts in the Electrical Branch of the Civil Wing of <ORG>, the rules of recruitment were published on the April 5, 1975. Prior to commencement of the said Rules, there were officers who had joined directly as Assistant Executive Engineer (Electrical) through the Combined Engineering Services Examination held by <ORG>. Those who had come on deputation from C.P.W.D. were also deemed to have been regularly appointed in <ORG> pursuant to a decision of <ORG>. Some of the officers were promoted to the higher grades on ad hoc basis. In order to ensure that these officers are not deprived of the service rendered by them before commencement of the rules, it was proposed to incorporate retrospectively a provision for initial constitution of these posts. Therefore, though the rules were amended by a notification issued on April 22, 1984 published in <ORG> and it was given retrospective effect but the purpose of giving retrospective effect to the provision relating to the initial constitution of these posts would not prejudicially affect the interests of any person already in service. It is in this background, it is contended before us, that the cases of the appellants could not be considered to the post of Superintendent Engineers although they were functioning as the Executive Engineers without determining their position in the initially constituted cadre and that could be done with reference to the rules, as amended in 1984 which came into effect from April 5, 1975. Though there may have been some delay and complications arising thereto there is another factor which needs to be considered in these cases. The case of the 1st appellant was considered by <ORG> in which Air Marshal <NAME> was present on behalf of the <ORG> and who presided over that meeting for selection of officers for officiating promotion to the grade of Executive Engineer (Electrical) and it was noticed that out of four vacancies, two vacancies are to be filled by promotion of direct recruit Assistant Engineer (Electrical) and the remaining two vacancies were kept reserved for the promotion of Assistant Engineer (Electrical). As no officer was available for consideration at present and the Committee accordingly considered the 4 eligible officers and assessed them. While <NAME>, <NAME> and <NAME> were found to be `very good', the 1st appellant was assessed to be only `good'. This was recorded in the minutes of the meeting of <ORG> held on June 2, 1978 in the office of the <ORG>. Thereafter, in the minutes of the meeting of the meeting of <ORG> held on May 13, 1988, the 1st appellant was found to be `very good' for the year 1977 as an Executive Engineer (Electrical) Group A. It is in these circumstances, it is to be considered whether the case of the 1st appellant could have been considered earlier to the date he was found fit to be promoted. The initially constituted cadre is of the date April 5, 1975 and on that date the 1st appellant had not been considered for promotion to the post of Executive Engineer and he was found fit to be promoted as Executive Engineer only with effect from 1977, i.e., much later to the promulgation of these rules. Reliance has been placed on the decision of this Court in <ORG> [supra]. That is a case where the quota rule between the direct recruits and the promotees had broken down and the appointments were made from one source in excess of the quota, but were made after following the procedure prescribed by the rules for the appointment; therefore, it was held that the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. In that case the direct recruits were not available in adequate number for appointment and appropriate candidates in the subordinate rank capable of efficiently discharging the duties of Deputy Engineers were waiting in their queue. The development work of the <ORG> pre-emptorily required experienced and efficient hands and in that situation the <ORG> Government took a decision to fill up the vacancies by promotion in excess of the quota, but only after subjecting the officers to the test prescribed by the rules. Therefore, in those peculiar conditions certain directions had been given by this Court inasmuch as the rigours of the quota rule having been neutralised and the seniority being dependent on continuous officiation, the seniority so fixed would not be defeated by the ratio fixed by the rules. It is difficult to appreciate as to how the principle stated in that case could be extended to the case of 1st appellant in the present case as the quota rule had not broken down in any manner nor is there any material before the court to show that he has not been duly considered by <ORG> before appointment to the higher grade. Again in the case of <CITATION> [supra] the same question arose. In that case it was noticed that when reckoning seniority the length of the service may be a relevant factor. If the ad hoc selection is followed by regular selection, then the benefit of ad hoc service is not admissible if ad hoc appointment is in violation of the rules. If the ad hoc appointment has been made as the stop gap arrangement and where there was a procedural irregularity in making appointments according to rules and that irregularity was subsequently rectified, the principle to be applied in that case was stated once again. There is difficulty in the way of the appellants to fight out their case for seniority should be reckoned by reason of the length of the service whether ad hoc or otherwise inasmuch as they had not been recruited regularly. As stated earlier, the appellants were regularly found fit for promotion only in the year 1977 and if that period is reckoned their cases could not be considered as found by the <ORG>. The view expressed by this Court in these cases have been again considered in the decisions in <CITATION> ., 1998 (5) SCC 293; <CITATION> ., 1999 (1) SCC 280; <CITATION> ., 1997 (2) SCC 150; <CITATION> ., 1997 (6) SCC 406; <CITATION> , 1995 Supp. (1) SCC 16, but all these decisions do not point out that in case the promotions had been made ad hoc and they are subsequently regularised in the service in all the cases, ad hoc service should be reckoned for the purpose of seniority. It is only in those cases where initially they had been recruited even though they have been appointed ad hoc the recruitment was subject to the same process as it had been done in the case of regular appointment and that the same was not a stop gap arrangement. That is not the position in the present cases at all. Therefore, we are of the view that conclusions reached by the <ORG> appear to us to be correct and call for no interference. However, we make it clear, as noticed earlier, that while amending the rules of recruitment in the 1984 all those who are already in service will be borne in mind in adjusting the seniority amongst the promotees inter se and suitable adjustments could be made and so far as the direct recruits are concerned, their cases will go by their quota rule and the view taken by the <ORG> in this regard cannot be taken exception of.

Appeals stand dismissed accordingly.