PETITIONER: UNION OF INDIA & ORS. Vs. RESPONDENT: LT. GEN. <NAME> & <NAME>. DATE OF JUDGMENT: 28/07/2000 BENCH: CJI., <NAME>, <NAME> & <NAME>, <NAME> JUDGMENT:

<NAME> J. :

The dispute in this case is in regard to the appointment to the post of <ORG> Commander. When Lt.Gen. <NAME> [hereinafter referred to as respondent No.2] was appointed or promoted as the <ORG> Commander, <ORG>, the same was challenged by Lt. Gen. <NAME> [hereinafter referred to as respondent No.1] by way of a writ petition (Civil Writ No. 1527 of 1998) in <ORG> principally on the ground that he is the senior-most eligible officer to be appointed to that post; that he was seeking the aid of the court to prevent unnecessary and avoidable aberration with regard to appointment/promotion of senior officers in the <ORG> and keeping in view the long term interest of the <ORG> and the country so as to avoid politicalisation of the crucial posts in the <ORG>; that he had won various meritorious awards; that he commanded a company in Nagaland and was awarded Vishist Seva Medal (VSM) on January 26, 1990 and as a Major General he commanded <ORG>, <ORG> rifles and <ORG> (BSF) and he was successfully able to bring cease fire in 1997 which is still holding; that he was awarded Ati Vishist Seva Medal (AVSM) on February 26, 1998 for his operational success and outstanding achievement; that he commanded a company in the Bangaladesh war; that his contribution in Operation Black Thunder was awarded The Chief of <ORG> Staffs Commendation in 1985; that he has the requisite staff experience and has served on the staff of <ORG> and <ORG> in Operational appointments; that he from the rank of Lt. Colonel onwards has attained all his select promotions in the first chance through unanimous decisions; since 1997 he has been in command of the oldest and the most prestigious strike <ORG> of the <ORG>; that the appointments and promotions to the post of <ORG> Commander/Vice Chief of the <ORG> Staff (VCOAS) are governed by the instructions as contained in the <ORG> letter dated October 20, 1986; that the said letter came into effect from January 1, 1989; that he became eligible to be promoted as <ORG> Commander as and when vacancy arose and instructions issued by the <ORG> were amended on November 18, 1996 which prescribe an additional criteria for appointment to the post of <ORG> Commander, namely, that the officer should have commanded a <ORG> for at least one year so as to become eligible for appointment as <ORG> Commander/VCOAS and no waiver in this stipulation is allowed without prior concurrence of the <ORG>; that the order dated November 18, 1996 has come into effect only to affect respondent No.1; that even otherwise in relation to such stipulation he had been granted a waiver by the <ORG> as prescribed by letter dated November 18, 1996 as per the <ORG> order dated March 16, 1998; that he was fit in all respects for appointment to the post of <ORG> Commander; that the second appellant had recorded in Annual Confidential Reports (ACRs) in respect of respondent No.1 that on or after February 27, 1998 he was fit in all respects; and, that having found respondent No.1 fit in all respects on or after February 27, 1998 and he being the senior most Lt. General in the Indian <ORG> ought to have been appointed as <ORG> Commander.

Respondent No.1 claimed that when he was posted as Attache in Paris he was considered for the post of Major General on April 24/25, 1992 wherein he was approved for being promoted as Major General and the said decision was communicated to him on July 7, 1992. However, he was promoted to the post of Major General on September 1, 1995 after respondent No.1 was repatriated from Paris. <ORG> for selecting Lt. General met on October 21, 1994, the decision of which was communicated to respondent No.1 on February 21, 1995. The case of respondent No.1 was deferred on the ground that the criteria appointment was lacking. Again on April 21/22, 1995 his appointment as Lt. General was deferred on the ground not adequately exercised in criteria appointment. Similarly, his case was again deferred on October 11/13, 1995 and on April 24/25, 1996. On October 31, 1996 his case was recommended to be promoted as Lt. General. It was contended before <ORG> that for certain irrelevant consideration and mala fide reasons the case of respondent No.1 was deferred by <ORG> to accommodate Major General <NAME> who was made a Lt. General; that such deferment of the case of respondent No.1 by <ORG> was unprecedented in the history of <ORG>. Respondent No.1 sought for review of the <ORG> decision regarding change of his grading from approved to deferred by an application made on March 8, 1997. On April 10, 1997 respondent No.1 was again considered by <ORG> to the post of Lt. General.

The decision thereto was conveyed to him on July 8, 1997. It is at this stage that the Chief of the <ORG> Staff had issued letters/instructions stipulating that henceforth an officer to be eligible to become <ORG> Commander/VCOAS should have commanded a <ORG> for at least one year. That is the first time such a stipulation had been introduced in the <ORG> and made applicable with immediate effect. On a representation made by respondent No.1 waiver was granted for a period of six months for his consideration for promotion to the rank of <ORG> Commander/VCOAS. It was contended on behalf of respondent No.1 that 2/3 days after respondent No.1 was recommended for promotion by respondent No. 2 (Appellant No. 2 herein) on March 2, 1998 a proposal was mooted for appointment of the <ORG> Commander, <ORG> for filling up the vacancy that arose on March 1, 1998 when respondent No.2 was recommended for promotion/appointment to the post of <ORG> Commander, <ORG>. On respondent No.1 approaching <ORG> on March 27, 1998, while directing notice it was made clear that if any appointment is made to the post of <ORG> Commander, <ORG>, the same shall be subject to the result of the writ petition. It was contended before <ORG> that for the first time more than one officer was considered at the time of making the recommendations for appointment or promotion to the post of <ORG> Commander in the Indian <ORG>; that in the past only name of senior most officer was forwarded and recommended for appointment/ promotion as <ORG> Commander; that respondent No.1 was recommended for appointment as <ORG> Commander; that when the statutory complaint was filed by respondent No.1, appellant No. 2 had recommended to appellant No. 1 the name of respondent No. 2 and, therefore, the impugned decision dated March 25, 1998 with the recommendation was sent to <ORG> the name of respondent No. 4 for promotion/appointment as <ORG> Commander, <ORG> in supersession of respondent No.1 is bad in law.

<ORG> first dealt with contention that stay of respondent No.1 in Paris should not come in his way for purpose of selection to a higher post. After going through the entire files it was noted that had respondent No.1s promotion not been deferred, he would have become Lt. General in 1996 itself although Major General <NAME> was promoted as Lt. General in spite of grading unfit to him by <ORG>. Surprisingly on November 23, 1996 the Defence Secretary recommended that Major General <NAME>s grading may be changed from Grade D to Grade B and in the case of the petition his grading from fit was recommended to be deferred and the Defence Secretary relied upon the fact that respondent No.1 has not completed the laid down adequately exercised period of 18 months. <ORG> commented on the manner of dealing with the files as rather strange and observed that there is inconsistency in the arguments advanced on behalf of the appellants inasmuch as only seniority of an officer is important; that the words senior most officer who is otherwise fit should be understood as that an officer whose name has been recommended by the <ORG> is also fit in all respects. On perusal of files, <ORG> came to the conclusion that the second respondent could never be deemed to be senior most officer who was otherwise fit and could not be compared with respondent No.1; that recommendation is in total disregard of the past practice and procedure; that the cases referred to are those of senior general officers, namely, Lt. General <NAME>, <NAME> and <NAME>, who missed promotion to the rank of <ORG> Commander on comparative merit and weak profile; that the note of the Joint Secretary admitted that in these cases there was no recommendation for promotion on account of their C.Rs. However, <ORG> proposed to consider their cases separately. <ORG> further concluded that from the records made available to the court it was evident that in the past only the senior most Lt. General was considered for promotion to the rank of <ORG> Commander in the vacancy arising as happened due to the retirement of Lt. General <NAME>; that the cases of Lt. General <NAME> and Lt. General <NAME> were recommended for promotion/appointment as GOC-In-C, <ORG>; that the reason for not appointing Lt. General <NAME> was that he was placed in low medical category.

<ORG> found force in the argument that comparative merit was not the requirement to be applied by the appellants; that the general officers meeting the requirement of <ORG> letter dated October 20, 1996 were promoted as <ORG> Commanders on the basis of the seniority; that fitness in every respect coupled with seniority is the criteria of appointment to the post of <ORG> Commander, and it noticed that the appellants could not go into the question of comparative merit to the post of <ORG> Commander when respondent No.1 carrier profile, experience, positive recommendation in the A.C.R. makes him fully fit for holding the post of <ORG> Commander, any other consideration which has gone into the process of denying that right is not justifiable if respondent No.1 was eligible in terms of policy of the appellants dated October 20, 1986 particularly when the appellants have considered his case for waiver which was granted by six months and when respondent No.1 stayed in Paris for a duration longer period and that the same cannot be utilised against him.

<ORG> also noticed that he had given his willingness certificate is not correct from the perusal of the records and he should have been repatriated on completion of three years which was not done. <ORG> also took into consideration the statutory complaint made by respondent No.1. It was noticed that on February 27, 1998 when the Chief of the <ORG> Staff had found respondent No.1 fit in every way to hold his present rank as well as found him fit for promotion to the next higher rank/appointment, how the name of respondent No. 4 could have been recommended on March 2, 1998. Therefore, <ORG> critically analysed the Cabinet Secretarys notice and found that respondent No.1 fulfilled the necessary criteria mentioned for promotion to the post of <ORG> Commander. <ORG> laid emphasis on the criteria seniority-cum-fitness rather than seniority-cum-merit and what is obligatory is that the promotion is automatic. Finally, <ORG> noticed that the only question before it whether the post of <ORG> Commander which became available on March 1, 1998 on the retirement of Lt. General <NAME> when the cases of respondent No. 1 and respondent No. 2 were considered whether the appointment of respondent No. 2 as <ORG> Commander in spite of respondent No. 1 being admittedly senior to respondent No. 2 was justified. <ORG> noticed that the argument advanced on behalf of the appellants that the Circular dated October 16, 1992 was complementary to the Circular dated October 20, 1986 does not inspire any confidence and it is not one of those orders issued in terms of Article 73 of the Constitution. The whole rationale, therefore, was of the principle of seniority-cum-fitness and thus considered, the senior person unless unfit should get the promotion automatically and, therefore, seniority ought to have been given preponderating weight. Further, It noted that the appointment of <ORG> commander is a selection grade appointment to be filled from eligible <ORG> Commander. Prior to 1986 <ORG> Commanders subject to having positive recommendation in their A.C.Rs. became <ORG> commanders In 1986 a criteria of two years residual service was introduced for their becoming <ORG> Commanders subject to their being fit in every respect. General Officers meeting the said criteria was promoted in the order of their seniority. One year command of a <ORG> was added to the criteria prescribed in 1986 by letter dated November 1996 which also provided for a waiver by the competent authority. The note of the Cabinet Secretary in which he has comparatively discussed the A.C.Rs. of 1971 of respondent No.1 amounts to importing a non- existent criteria after respondent No.1 was found fit in all respects in the A.C.R. on the basis of which he was promoted to next higher rank. The minimum tenure of one year as <ORG> commander had also been met by respondent No.1 on account of grant of waiver by the Government. The deferment made in the grading in October 1996 of <ORG> had adversely affected respondent No.1 and it is only thereafter stipulated that an officer to become eligible to be an <ORG> Commander should have commanded a <ORG> for at least one year. In this background, <ORG> quashed the appointment of respondent No. 2 as <ORG> Commander, <ORG> and allowed the writ petition.

Challenging this order of the learned Single Judge of <ORG> a Letters Patent Petition (L.P.A No. 568/98) was filed before <ORG> of <ORG>. By a very short order <ORG> of <ORG> disposed of the Letters Patent Petition stating that the comparative merit of officers was neither the requirement nor it is permissible and the appellants should not have treated the post of <ORG> Commander as a selection post. <ORG> is in agreement with the opinion of the learned Single Judge that in the past only a single person was considered and if he is not fit, then alone the next person in seniority was considered. Reliance placed by the <ORG> on Circular dated October 16, 1992 is not correct and was rightly rejected by the learned Single Judge inasmuch it is a non- statutory document. This is not the case of seniority-cum-merit but it is only seniority-cum-fitness subject to rejection on the basis of being unfit. Seniority alone governed the matter. On that basis <ORG> dismissed the appeal. Hence the present appeals - one filed by <ORG> and its officers (Civil Appeals Nos. 359-360 of 1999) and the other (Civil Appeals Nos. 361-362 of 1999) by Lt. Gen. <NAME>, respondent No. 2 in Civil Appeals Nos. 359-360 of 1999.

In this Court, the learned Attorney General contended on behalf of <ORG> that <ORG> had erred in quashing the appointment of respondent No. 2 as <ORG> Commander, <ORG>; that the entire consideration of the matter is mis-placed; that <ORG> had given undue importance to A.C.Rs. in the matter of promotion and when security of the country is of paramount consideration, mistakes cannot be allowed and gaining necessary field experience is absolutely essential; mere emphasis on the A.C.Rs. will not change the ground realities and, therefore, whatever may be the circumstances in which the appellant could not gain the necessary experience; that <ORG> could not have interfered with the impugned action. <ORG> has indulged in nit picking by making a censorious approach in examining the dossiers and files as also the note of the Cabinet Secretary; that the comparative merit is not prohibited in making the selection, which was quite often resorted to in making appointments to the post of <ORG> Commander. <NAME>, learned Senior Advocate appearing for respondent No. 2 and appellant in connected matter, supported the contentions of the learned Attorney General and supplemented the same on factual aspects.

<NAME>, learned senior advocate for respondent No.1, submitted, at the very outset, that decision in this case is of great momentous nature to the army inasmuch as the principles relating to the promotion to the post of <ORG> Commander, that is, in the highest echelons of service are in issue. Indeed he submitted that up to the stage of appointment as Lt. General, rigorous tests have to be undergone by the concerned officers before they are promoted and such processes have been undergone having reached a particular level. Further tests are held almost automatically unless there is something adverse as to their fitness. He stated that in these cases it is only seniority that governs and that when it was ignored the matter was taken to <ORG> and <ORG> has given relief in this case and, therefore, this <ORG> should not interfere in the order made by it. Respondent No.1 has always been senior to respondent No.2 by as many as 40 places although they belonged to the same batch having been commissioned on 10.6.1962. Respondent No.1 had a distinguished career and participated in the operations of 1971 Indo-Pak war and also has extensive counter insurgency experience. The battalion in which respondent No.1 was working during the war was engaged in fighting the enemy from Agartala to Dhaka and reached Dhaka on December 16, 1971 i.e. the date of cease-fire and surrender of the Pakistan <ORG>. In terms of letter dated November 18, 1996, the officer should have commanded <ORG> for at least one year so as to become eligible for appointment as <ORG> Commander unless waived with the prior concurrence of the <ORG>. As respondent No.1 was the only person to be affected by this new criterion which was sought to be enforced without any lead time, contrary to the earlier practice, in his statutory complaint dated 5.10.1997, he made an alternative request that this stipulation may be waived in his case as the delay in his promotions have been caused entirely in the interest of service and he specifically mentioned that the vacancy was due to occur on March 1, 1998 and he should be considered for the same. On 6.1.998, the Chief of the <ORG> Staff recommended the waiver by months for consideration for promotion to the appointment of <ORG> Commander for a vacancy occurring on March 1, 1998. <ORG> accepted the recommendation of the Chief of the <ORG> Staff. The case of respondent No.1 would have been considered for appointment for the <ORG> Commander in normal circumstances had he not been inordinately delayed in being placed on present criteria appointment. The delay was caused due to circumstances well beyond the control of respondent No.1 and was primarily due to administrative constraints of the organisation. New clause of tenure of one year as a <ORG> Commander affected only respondent No.1 and this aspect was borne in mind by the Chief of the <ORG> Staff while making the recommendation. On 10.4.1997, respondent No.1 was selected for the post of Lt. General by <ORG> and on 8.7.1997, he was intimated of the fact of selection and approval by the <ORG>. In another case filed by Major General <NAME>, the Delhi High <ORG> passed a stay order in July, 1997. On 23.8.1997, respondent No.1 was put in-charge of GOI-1 <ORG> and started gaining experience of commanding the <ORG> and continues to command the same even now. Thus <NAME> submits that in terms of letter dated November 18, 1996, it is enough if the officer has commanded a <ORG> for one year by the date of appointment to the post of <ORG> Commander in the absence of waiver or including the period of waiver. The appointment to the post of <ORG> Commander having been made by an order dated 20.4.1998, as on that date respondent No.1 had actually commanded <ORG> 1 for a period of seven months and 26 days; adding the period of waiver of six months, it comes to a total of one year, one month and 26 days. In other words, he fulfilled the requirement of commanding a <ORG> for at least one year by February 22, 1998. Therefore, he was eligible for consideration for the post in question and that he was rightly treated as eligible both by the Chief of the <ORG> Staff as well as by the <ORG> of India. He relies on the decision of this <ORG> in <CITATION> , 2000 (1) SCC

128. The criterion that the officer should be fit in every respect for such appointment stipulated in the <ORG> letter dated October 20, 1986 clearly indicates that the post of <ORG> Commander is a non-selection post. In contrast, the nature of selection posts in the <ORG> should be gathered from the selection system.

The hierarchy in the <ORG> and the method of selection and promotion to various posts starting from the post of Lieutenant and going up to the post of the Chief of the <ORG> Staff will clearly indicate that the posts of Lieutenant, Captain and Major are automatic promotion posts on passing the promotion examination irrespective of inter se merit, whereas the posts from Major to Lt. Colonel, Lt. Colonel to Colonel, Colonel to Brigadier, Brigadier to Major General and Major General to Lt. General are all selection posts filled up by promotion on the basis of relative merit assessed by the designated selection boards. From Lt. General [Corps Commander] to <ORG> Commander is a non-selection post to which promotion is made subject to fitness. It is promotion subject to fitness in all respects, although the rank remains the same. From the post of <ORG> Commander to that of the Chief of the <ORG> Staff, it is by promotion for which no specific criteria have been laid down. There have been precedents where the senior-most <ORG> Commanders have not been appointed as the Chief of the <ORG> Staff. Selection implies the right of rejection depending upon the criteria prescribed. Selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such criteria fall into three categories, namely,

1. Seniority cum fitness,

2. Seniority cum merit,

3. Merit cum suitability with due regard to seniority.

Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. Seniority cum merit postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority cum fitness and seniority cum merit. Merit cum suitability with due regard to seniority as prescribed in the case of promotion to <ORG> necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them.

<NAME> insisted that the letter dated October 20, 1986 containing the criteria for selection laid down by the President for the <ORG> Commander does not prescribe any minimum merit. In fact the word merit is conspicuously absent from the entire letter and the criteria do not postulate the comparative assessment of merit for appointment as <ORG> Commander or Lt. Generals in the same rank.

<NAME> further contended that the use of the word selection in a rule or administrative instruction does not necessarily make the post concerned a selection as has been contended by the appellant. Nor the expression selection grade used by respondent No.1 here and there makes the post in question a selection post to be filled in by promotion on the basis of comparative assessment of merit. In addition to the absence of merit being one of the criteria for selection and promotion to the post of <ORG> Commander, the past practice as recorded by the Defence Minister and concurrently found by the courts below shows that the senior-most Lt. General who is found fit in all respects for promotion according to the C.Rs. has always been promoted.

<NAME> also submitted that circular dated 28/16.10.1992 of <ORG> to the extent it applies to the appointment of <ORG> Commanders and is at variance with the letter dated October 20, 1986 setting out the criteria laid down by the President for appointment of <ORG> Commanders cannot be acted upon. In so far as the said circular provides for appointment of Corps Commander as the caption of the circular indicates, there will be no conflict with the criteria laid down by the President for appointment to the post of <ORG> Commander. The absence of the word seniority in the letter of <ORG> dated October 20, 1986 does not exclude the right to prior consideration flowing from being the senior-most officer entitled to the considered in terms of Articles 14 and 16 of the Constitution. The expression fitness in all respects or merit or suitability is not synonymous. It was submitted on behalf of respondent No.1 that an <ORG> Commander having experience of operations during war and extensive counter insurgency may be more suitable for commanding the <ORG> rather than for an equivalent staff post at the <ORG> and vice versa and that even the highest post in any organisation need not be a selection post to be filled on the basis of comparative assessment of merit of eligible officers.

<NAME> further elaborated that the post of <ORG> Commander, even if it is assumed, is selection post to be filled up on the basis of comparative assessment of relative merit of officers, the field of choice cannot be restricted to two persons only and there were as many as nine Lt. Generals eligible for consideration having had a residual service of two years and put in at least one year as <ORG> Commander including respondent No.1 and respondent No.2. Admittedly seven out of nine officers were not considered. The criteria adopted by the appellants are not that of selection or assessment of relative suitability of officers. According to <NAME>, the expression relative suitability of the officer does not mean the comparative assessment of merit. It means suitability for the particular command or the particular staff appointment as the case may be and that suitability is related to the command in question or the staff appointment in question and there is no mention of any comparative assessment of merit even in that circular. Even that circular does not itself lay down the two senior eligible officers should be considered for each <ORG> Commanders vacancy. In refers to a pre- existing <ORG> requirement without mentioning any <ORG> letter or circular. No such document containing this requirement has been produced so far. The so-called assessment of merit of respondent Nos.1 and 2 in the instant case does not reveal all the facts or take into consideration all the necessary facts that are required to be taken note of. There are several factors available on record such as Annexures 1, 2 and 3 of his representation to the Attorney General and Annexure C to the written submissions which will clearly indicate that the <ORG> has not taken note of all the factors in making the appointment in question. <NAME> submitted that advisory remarks are not adverse remarks and they cannot be relied upon for denying the promotion to an officer declared fit for promotion in all respects for that very post and that the reports which are too stale and remote cannot be dug up to change the settled inter se merit of officers assessed by as many as five selection boards for successive promotions from the ranks of Major to the rank of Lt. General all of which are selection posts. Advisory remarks of the Reviewing Officer in the CR of respondent No.1 for 1971 were never communicated to respondent No.1 and, therefore, the same could not be relied upon against him. Another submission that has been made by <NAME> is that consent to go on deputation cannot take away the right to be considered for promotion and if selected for promotion and that the policy regarding willingness certificate cannot in any event hold good beyond the normal tenure of three years of officers sent on foreign assignments in public interest and if the post of <ORG> Commander is a non-selection post to which appointment has to be made on the basis of seniority subject to fitness in all respects and fulfillment of both these criteria having already been held in his favour by the Chief of the <ORG> Staff, <ORG> was justified in issuing the writ.

The matter put before this Court in the light of the arguments advanced on behalf of the parties and the pleadings raised or the findings recorded by <ORG>, we have to consider the same from five facets of the case:

[i] Whether the Army Commander holds a selection post or one which is based on seniority but the officer should be fit in every respect for such appointment and should have a minimum of two years before retirement from the date of appointment as Army Commander/VCOAS?

[ii] Whether the instructions given on October 16, 1992 are executive instructions not supportable in law which stipulate that an officer to be eligible to the post of Corps Commander should either be eligible to become an Army Commander or should have a minimum of four years residual service on the date he is promoted to the rank of Lt. General and should have commanded a Corps for at least one year?

[iii] What is the effect of the ACRs recorded by the Chief of the Army Staff?

[iv] What is the effect of waiver granted to Lt. General R.S. Kadyan when he was a Brigadier serving in the Embassy of France?

[v] Whether the Cabinet Secretary is justified in taking into consideration the service profiles of Lt. General <NAME> and Lt. General <NAME> in making his recommendations?

Several decisions have been cited before us on either side by the learned counsel appearing in this case but we are not adverting to the same since we are not in any way detracting from the principles stated therein nor are we enunciating any new principle. Moreover, we are deciding on the special features arising in this case.

On October 20, 1986 criteria of appointment of Army Commander was issued purported to be under the orders of the President of India and such criteria is as follows :-

(a) The officer should be fit in every respect for appointment; and

(b) The officer should have a minimum of two years left before the retirement age from the date of appointment as <ORG> Commander/VCOAS.

(c) This will be applicable w.e.f. 1.1.1988

(d) As a one time exception, the pay but not the status of an <ORG> Commander will be given to those General officers, presently holding the rank of Lt. Gen., who are otherwise found fit to hold the appointment but are not selected because of the revision in the criteria.

(e) The officer should have commanded a <ORG> for at least one year so as to become eligible for appointment as <ORG> Commander/VCOAS. No waiver in this stipulation will be allowed without prior concurrence of the Government. [added on November 18, 1996 pursuant to letter No. 19(24)/96/D(MS) issued by <ORG>, <ORG>.] (Emphasis supplied) On the basis of this letter the argument advanced before us is that the appointment to the post of <ORG> Commander is of selection and not a mere promotion on the basis of seniority. It is urged on behalf of <ORG> and Lt. General <NAME> is that the post of <ORG> Commander is a selection post and not a post merely based on seniority. While <NAME>, learned senior Advocate for the contesting respondents, submitted that what is required in this letter is only that a concerned officer should be fit in every respect and should have fulfilled the other requirements. Though diametrically opposite views are stated, on a careful reading of this letter it becomes clear that an officer should be fit in every respect for such appointment will not merely mean that he must be physically fit or mentally fit but in every other respect. In addition, in clause (d) above in the letter while making certain exceptions what was in the mind of the authority is made clear that an officer holding the rank of Lt. General who is otherwise fit but not selected because of the revision of criteria will be a clear indication that it is a selection and not a mere promotion on the basis of seniority. Further, the expression fit has been brought to our notice as legally meaning fit to be chosen by elaborating the expression eligible in Strouds Judicial Dictionary, 5th Edn. However, the expression fit, which has different shades of meanings, also means a person to be appointed shall be legally eligible and eligible has already been explained by us to mean fit to be chosen. Again, the expression select means chosen or picked up. Therefore, we are of the view that to the post of <ORG> Commander, selection has to take place. Of course, considering the nature of rigorous standards adopted in the matter of selection of officers from the stage of Lt. Colonel onwards upto the stage of Lt. General in the usual course it may be that the senior most officer is selected as the <ORG> Commander. But that does not debar the Chief of the <ORG> Staff or <ORG> in making the selection of any other person for good reasons who fulfills the necessary criteria. Therefore, we are of the opinion that it was improper on the part of <ORG> to have concluded that the post of <ORG> Commander is a non-selection post. Further, the conclusion reached by <ORG> that appointment to the post of <ORG> Commander has to be made on the basis of seniority alone cannot be accepted.

The next question, which we have to consider, is what is the nature of the executive instructions that have been given. Even if we accept the view taken by <ORG> that <ORG> communication in this regard merely amounted to an executive instruction and not supported by any orders made by the President of India or <ORG>, the learned Attorney General submitted that the other parameters that are clearly laid down in the letters of <ORG> should be strictly followed, that is, all officers who are likely to be eligible for an <ORG> Commander appointment in terms of two years residual service will have to be given command of a <ORG> and unless such officer has commanded the <ORG> for at least one year he cannot be considered for promotion. In the present case, respondent No.1 became a <ORG> Commander on September 24, 1997 and the vacancy in the post of <ORG> Commander arose on March 1, 1998 and thus he had not completed one year of experience as a <ORG> Commander and he had put in 5 months and 7 days experience and to this if we add the waiver granted by the Government in terms of 6 months, it will only be 11 months and 7 days experience. Even so, he falls outside the zone of consideration for being appointed as an <ORG> Commander. However, much argument was addressed on the effect of the recommendation made by the Chief of the <ORG> Staff and the order made by <ORG> in that regard. On November 6, 1998 the Chief of the <ORG> Staff recorded a note in the following terms :- In view of the above, I recommend that redress be granted to tbe Gen officer by way of granting 6 months AE waiver to him for consideration for promotion to the appointment of <ORG> Cdr/VCOAS for a vacancy occurring on 01 Mar 98.

The argument addressed is that the waiver granted by the Government is identical with the consideration of his case for appointment as <ORG> Commander inasmuch as waiver has been granted for the purpose of considering his case to the post of <ORG> Commander it is contended that his case should have been considered. We fail to appreciate this line of argument. The basis upon which <ORG> proceeded is that having taken all the issues into consideration the respondents have taken a stand totally contrary to the recommendations of the Chief of the <ORG> Staff as well as <ORG>. The absence of the concerned officer from India on an assignment in the Embassy of France, the waiver granted only for a period of six months and other various factors taken into account are also set out in the following terms :-

In view of the above detailed examination of the case, <ORG> is of the view that Lt. Gen <NAME>, VSM, be granted waiver of six months in tenure of <ORG> and considered for the appointment of <ORG> as the Gen Offr is not completing AE criteria due to :-

(a) Delayed repatriation from France resulting in -

(b) Delayed placement on criteria appointment in the rank of Maj Gen.

(c) Delayed consideration for promotion to the rank of Lt Gen and

(d) Revision of FIT grading to Deferred, which resulted in

(e) Further delay in consideration, approval and placement as <ORG>, and

(f) Application of new clause vide MOD letter of 18 Nov. 96, the provisions of which only exclude him in 1962 batch vis-à-vis his batchmates.

All the above events were beyond the control of the complainant and were basically caused by the administrative constraints of the organisation. Hence, the Gen Offr deserves the benefit of grant of waiver in terms of natural justice and equal rights, clause of the law.

But whatever may be the circumstances or the period for which he fell short the waiver granted is only for a period of 6 months. If that is so, respondent No.1 cannot be said to have completed the period of one year of experience as Corps Commander. Further, Lt. General <NAME> was considered by <ORG> and found fit on April 10, 1997 but he could not be promoted as Lt. General and appointed as Corps Commander because of stay order passed by <ORG> in the writ petition filed by Lt. General <NAME>. The said order was vacated and thereafter Lt. General <NAME> was promoted on September 24, 1997 and he functioned as <ORG> with effect from August 23, 1997 without any effect on promotion, pay or any related benefits till he was actually promoted on September 24, 1997. Lt. General <NAME> was appointed as <ORG> after the stay was vacated on September 24, 1997. Hence that period including the period of waiver falls short of the requisite period of two years.

On 5.10.97, respondent No.1 made a statutory complaint that his case should be considered on the basis of merit-cum-seniority subject to being found fit for promotion and ultimately prayed for the following :

(1) The decision to defer his case in connection with the selection board met on October 31, 1996 may be reviewed and if he is deemed to have been placed in command of a corps retrospectively from the date of declaration of the results of <ORG>.

(2) In the alternative, he prayed that the stipulation of commanding of a corps for minimum one year to become eligible for appointment as an <ORG> Commander under the letter dated November 18, 1996 may be waived in his case as the delay in his promotion seems to have been caused entirely in the interest of service.

The Chief of Army Staff recommended waiver of this stipulation contained in the letter dated November 18, 1996 limiting to a period of six months. Therefore, the conclusion of <ORG> that he became eligible to be considered to the higher post does not seem to be valid nor <ORG> was justified in proceeding on that basis. The conclusion of <ORG> to that extent is erroneous.

The ACR for the period 1.10.1997 to 31.1.1998 is to the effect that he considered him fit in every way to hold his present rank and also to the next higher rank. On this basis, it is contended that the Chief of the Army Staff having recommended his case in the ACR as fit for promotion could not alter the same subsequently and give a finding that such a recommendation in ACR will have a limited effect. The position in law is that appraisal report or an annual confidential report is not the sole factor to be considered by the selection authority but one of the matters to be taken note of by such authority. We may advert to two decisions of this Court in this regard, namely, <CITATION> , 1993 (Supp.) 4 SCC 441 and <CITATION> , 1996 (10) SCC 555. Therefore, we are of the view that heavy reliance placed by <ORG> on the ACRs to reach the conclusion otherwise is not justified. In deciding whether a post is a selection post or not, one of the criteria to be considered is if it involves a comparative assessment of officers necessarily the element of selection is involved and, therefore, the post with which we are concerned is indeed a selection post although not totally ignoring a senior.

In raising an argument that respondent No.1 being the senior-most officer in the cadre was being considered for the next higher post. The post in question being a selection post for purposes of promotion, the contention advanced is that all the eligible candidates in that cadre should have been considered and consideration of only two candidates, namely, the appellant in one of the cases and respondent No.1, alone could not meet the necessary criteria. This contention does not also hold water because no one else has made a complaint and the case of respondent No.1 has been duly considered. Thus the argument advanced by <NAME> on this aspect does not stand to reason.

Now we come to the last aspect of the matter, namely, the manner in which the <ORG> Secretary examined the service profiles of the two officers in question. For purposes of convenience, we may set out the relevant portion of the note:

Lt. Gen. <NAME> He was commissioned in the Rajputana rifles regiment of the <ORG> in June, 1962 and has held various <ORG>, Staff and Instructional appointments. He picked up the rank of Lt. Gen. On 24th September, 1997 and started functioning as regular Corps <ORG>er. The General Officer has a balance exposure in <ORG>, Staff and Instructional appointments. However, his staff experience in senior ranks from Brig. onwards is only limited to that of Military Attachee. He has no experience of working in Northern <ORG> and <ORG>. Since 1980 he has worked for about 4 years in field areas. It also appears from his records that he did not participate in 1962, 1965 operations. In his report of 1971, when he participates in the operations, there are some advisory remarks both by the IO and RO as below:-

should be bold and aggressive in operation . Should lead his mean personally to difficult objectives. (Remarks by <NAME>).

.. his performance as a Rifle Coy Commander in the recent operations has been satisfactory though not upto the expected level. (Remarks by RO).

The overall profile of the officer, especially in senior ranks has been clearly above average. All the reporting officers gave him above average ratings with sprinkling of outstanding ratings.

As regards CI operations, the officer has handled the same as <ORG>, <ORG>, but he has not had experience of commanding a regular <ORG> Division. His experience as Corps Commander is also limited. He is a graduate of <ORG> and has also done higher command courses. He is recipient of Chiefs Commendation, VSM and AVSM. He is medical category SHAPE- 1.

Lt. Gen <NAME>: - He was commissioner in <ORG> in June, 1962. He became Lt. Gen in Feb, 1996 and since then he is commanding <ORG> the Eastern Sector. The general officer has rich experience in <ORG> and Staff appointments. He has worked both in Eastern and Northern <ORG>s including high altitude areas. Since 1982 he has worked for about 4 years in remote field areas in the Eastern Sector, especially the border areas with China. He has also held important staff assignments in Military Operations, Infantry and Staff Duties, Directorates in <ORG>. His instructional experience is however limited to junior ranks only and he has practically no experience of CI operations.

The officer did not participate in 1962 and 1965 operations. His report of 1971, the year in which operations took place is quite laudatory. The overall profile of the officer, especially in senior ranks has been clearly above average. All reporting officers have given him above average ratings with sprinklings of outstanding ratings. He is a graduate of <ORG> and has also done Senior Commands and NDS Courses. He is also a recipient of AVSM. He is medical category SHAPE-1.

The contention put forth before us is that there are factual inaccuracies in the statement recorded by the Cabinet Secretary in his note and, therefore, must be deemed to be vitiated so as to reach a conclusion that the decision of the <ORG> in this regard is not based on proper material. The learned Attorney General, therefore, took great pains to bring the entire records relating to the relevant period which was considered by the Cabinet Secretary and sought to point out that there were notings available on those files which justify these remarks. Prima facie, we cannot say, having gone through those records, that these notings are baseless. Critical analysis or appraisal of the file by the <ORG> may neither be conducive to the interests of the officers concerned or for the morale of the entire force. May be one may emphasize one aspect rather than the other but in the appraisal of the total profile, the entire service profile has been taken care of by the authorities concerned and we cannot substitute our view to that of the authorities. It is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions has nexus to the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no justification for the High <ORG> to have interfered with the order made by the <ORG>.

Before parting with the case we need to observe that considering the nature of the sensitivity of the posts involved and that each of the officer feeling that he did not get the best of the deal at the hands of the <ORG> or that the members of the force being aware who is the best is not heading them will certainly weaken the esteem and morale of the force. Therefore, the standards to be adopted and applied should be of the highest order so as to avoid such an impression in the force.

In the result, we allow the appeals filed by <ORG> and Lt. Gen. <NAME> and set aside the orders made by <ORG> and dismiss the writ petition filed by respondent No.1.


CASE NO.: Appeal (civil) 5077 of 1998 PETITIONER: <NAME> and <NAME>. RESPONDENT: <NAME> DATE OF JUDGMENT: 28/01/2003 BENCH: <ORG>, <NAME> & <NAME>. JUDGMENT:

JUDGMENT As regards applicability of Section 5 of the Limitation Act, 1963 in the matter of default in deposit of rent as also interpretation of the word 'shall' occurring in the Rajasthan Premises (Control of Rent & Eviction) Act , 1950 (hereinafter referred to 'the Act', for the sake of brevity), <ORG> of this Court by an order dated 21.3.2002 referred the matter to a three Judge Bench observing :

"Looking to the importance of the questions and the conflicting views taken in the judgments of this Court, we deem it proper that the case is heard by a Bench of three Judges."

That is how the matter is before us.

Before adverting to the aforementioned questions, the factual matrix involved in the matter may be noticed. The appellant herein is the landlord in respect of the suit premises and the respondent is a tenant therein. Allegedly, the respondent did not pay rent for the period 1.8.1986 to 31.1.1987 wherefor upon service of the legal notice, a suit for possession and arrears of rent was filed which was marked as Civil Suit No.824 of 1993.

The learned Trial Judge in terms of the provisions contained in Section 13(3) of the Act determined the provisional rent @ Rs.80/- per month and by an order dated 9.9.1991 directed the respondent to deposit the arrears as also current rent in court. Admittedly, the respondent did not deposit the same within the period specified therein. The appellant herein filed an application purported to be under Section 13(5) of the Act; whereafter on or about 9.11.1993 the respondent filed an application for condonation of delay. By reason of an order dated 20.1.1994, the said application for condonation of delay was dismissed, inter alia, on the ground that the same was not filed within time. A revision application was thereafter filed by the respondent questioning the legality or validity of the said order, inter alia, on the ground that there is no law barring filing of an application for condonation of delay after expiry of the period specified for deposit of rent.

It appears that a Full Bench of <ORG> in <CITATION> [AIR 1983 Raj. 222] had held that an application under Section 5 of the Limitation Act in the matter of deposit of rent in terms of Section 13(4) of the Act was maintainable. The said decision was rendered having regard to Rajasthan Premises (Control of Rent & Eviction) (Amendment) Act , 1975, in terms whereof Section 13-A was inserted whereby and whereunder the court was obligated to determine the amount of arrears of rent up to the date of the order as also the amount of interest thereon at the rate of 6% per annum and cost of the suit allowable to the landlord and direct the tenant to pay the amount so determined within such time, not exceeding ninety days as may be fixed by the court and on such payment being made within the time fixed as aforesaid, the proceedings were to be disposed of as if the tenant has not committed any default.

A learned Single Judge of <ORG> at the hearing of the revision application filed by the respondent was, however, of the view that as <ORG> in <NAME> case (supra) was concerned with interpretation of Section 13-A(b) of the Act; the question as regards applicability of Section 5 of the Limitation Act in the matter arising under Section 13(4) of the said Act requires consideration by a larger Bench. The learned Single Judge was further of the view that the decision of <ORG> in <NAME> case (supra) required reconsideration also on the question as to whether the court has any power to extend the time beyond the period prescribed under Section 13(4) of the Act having regard to the fact that the said decision based on various judgments of this Court relating to different Rent Control statutes of various States which were not in pari materia with the provisions of the Act.

Pursuant to or in furtherance of the said observations of the learned single Judge, <ORG> of five Judges was constituted. By reason of the impugned judgment dated 17.12.1997, three Hon'ble Judges of <ORG> held that Section 5 of the Limitation Act is applicable where there is default in deposit of arrears of rent within specified period whereas two other members of the Bench held to the contrary.

<ORG> was further of the view that since the applicability of the Indian Limitation Act , 1963 is not expressly excluded by reason of the provisions of the Act, Section 5 of the Limitation Act, 1963 would be applicable in a case where the tenant could not deposit the rent within the time pursuant to the order passed under Section 13(3) of the Act. <ORG> also held that the word "shall" has to be interpreted as "may" and it is in the discretion of the Court to condone the delay in default of payment/ deposit of rent within specified period.

In that view of the matter, the order rejecting the application under Section 5 of the Limitation Act was set aside and the revision petition filed by the respondent was allowed. It is against the said judgment, the appellants have preferred this appeal.

Two questions which arise for our consideration are, firstly, that whether the matter stands covered by the decision of this Court in M/s. B.P. Khemka Pvt. Ltd. Vs. <NAME> and <NAME>. [(1987) 2 SCC 407]; and, secondly, whether the provisions of Section 5 of the Limitation Act, 1963 is applicable where there is a default in depositing the rent within stipulated time by the tenant.

Section 13(1)(a) of the Act enables a landlord to sue for a decree of eviction in the event a tenant has neither paid nor tendered the amount of rent due from him for six months. In terms of sub-section (3) of Section 13 which was substituted by Section 8(i) of the Rajasthan Act No.14 of 1976 it is obligatory on the court to provisionally determine the amount of rent wherefor no application is required to be filed. Sub-sections (4) and (5) of the said Act which are relevant for this appeal read thus :-

"(4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month, the monthly rent subsequent to the period up to which determination has been made, by the fifteenth of each succeeding month or within such further time not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-section (3).

(5). If a tenant fails to deposit or pay any amount referred to in sub-section (4), on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit."

A bare perusal of the aforementioned provisions would show that in terms of sub-section (4) of Section 13 , a tenant is required to deposit the amount of rent determined by the <ORG> under sub-section (3) within fifteen days of the date of determination or within such further time not exceeding three months, as may be extended by the court.

It is not in dispute that by reason of 1976 Amendment, the following was specifically inserted :-

"Within such further time not exceeding 3 months as may be extended by the <ORG> or the words" or within such further time not exceeding 15 days as may be extended by the <ORG>, at the monthly rate at which the rent was determined by the <ORG> under sub-section (3)"

The word 'shall', which is ordinarily imperative in nature, has been used in sub-section (4) of Section 13 . The power of the court has also been limited to the extent that it can extend time for such deposit not exceeding three months and so far as the deposit of monthly rent is concerned, by fifteen days. The court's power, therefore, is restricted. In case tenant deposits the provisional rent as determined by the <ORG> within stipulated period the tenant is relieved by the eviction decree.

In the aforementioned backdrop, the decision of this <ORG> in M/s <NAME>'s case (supra) may be noticed.

M/s. B.P. Khemka (supra) arose out of the West Bengal Premises Tenancy Act, 1956 (in short 'the West Bengal Act '). In the said case the tenant committed default in payment of arrears of rent and the landlord brought a suit for eviction on the ground of default. While the suit was pending, the West Bengal Premises Tenancy (Amendment) Ordinance No. 6 of 1967, which was replaced by the West Bengal Premises Tenancy (Amendment) Act 30 of 1969 came to be promulgated with effect from August 26, 1967. The Act gave a retrospective effect to the amendments by providing that the amendments made by Section 2 of the Ordinance shall have effect in respect of all suits including appeals which were pending at the date of commencement of the Ordinance. The amendments inter alia enabled tenants who were in default to apply to the court and pay the arrears of rent in instalments and thereby avert their eviction. In pursuance thereof, the tenant deposited the rent. However, he subsequently committed default in paying monthly rent. Consequently, the defence was struck off on the ground that in paying the rent for the months of September, 1968 and March 1969, there had been a delay of 44 days and 6 days respectively, which was in contravention of Section 17(1) of the West Bengal Act.

In this context sub-sections (2A), (2B), (3) and (4) of Section 17 of the West Bengal Act may be noticed which read as under:

"(2A) Notwithstanding anything contained in sub- section (1) or sub-section (2) on the application of the tenant the court, may, by order :

(a) extend the time specified in sub-section (1) or sub-section (2) for the deposit or payment of any amount referred to therein.

(b) xxx xxx xxx xxx (2B) No application for extension of time for the deposit or payment of any amount under clause (a) of sub-section (2A) shall be entertained unless it is made before the expiry of the time specified therefor in sub-section (1) or sub-section (2);"

"(3) If a tenant fails to deposit, or pay any amount referred to in sub-section (1) or sub- section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub-section (2-A), or fails to deposit or pay any instalment permitted under clause (b) of sub-section (2-A) within the time fixed therefor, the court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

(4) If a tenant makes deposit or payment as required by sub-section (1), sub-section (2), or sub-section (2-A) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the court but the court may allow such costs as it may deem fit to the landlord."

This <ORG> in M/s. B.P. Khemka's case (supra) while interpreting the provisions of sub-section (4) held that the proviso makes it clear that if the subsequent default is for a period of 4 months within a period of 12 months, the tenant can claim relief under the sub-section once again. Since the default was less than 40 days, this <ORG> held that under the said proviso, the delay could be condoned.

In terms of clause (a) of sub-section (2A) of Section 17 of the West Bengal Premises Tenancy Act, 1956 requisite power to extend the time for deposit of rent on an application made by the tenant is conferred in the court in relation whereto there does not exist any restriction.

It is beyond any cavil that the question as to whether the provision is directory or mandatory would depend upon the language employed therein. [ <CITATION> [AIR 1990 SC 981 = (1989) Suppl. 2 SCR 336].

This Court in <CITATION> . [2002 (9) SCALE 102], has observed :-

"Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute"

[See also <CITATION> . (2002 (9) SCALE 778].

It is also a well-settled principle of law that the decision on an interpretation of one statute can be followed while interpreting another provided both the statutes are in pari materia and they deal with identical scheme.

<ORG> relied upon the following decisions dealing with respectively with the Rent Control Acts of the different States:

i) AIR 1980 SC 587 : 1980 (2) SCC 151 <CITATION> dealing with the M.P.

Accommodation Control Act,

ii) AIR 1980 SC 1664 : 1980 (3) SCC 610 Miss Santosh Mehta Vs. <NAME> and Ors. dealing with the Delhi Rent Control Act .

iii) AIR 1984 SC 1932 : 1984 (3) SCC 111 Ram Murti Vs. <NAME> and <NAME>. dealing with the Delhi Rent Control Act .

iv) AIR 1985 SC 964 : 1985 (3) SCC 53 <NAME> Vs. <NAME> dealing with the Bihar Building.

v) AIR 1987 SC 1010 : 1987 (2) SCC 407 B.P. Khemka Pvt. Ltd. Vs. <NAME> and <ORG>. dealing with West Bengal Premises Tenancy Act.

The question, therefore, which would arise for our consideration is as to whether the respective State Act s on the basis whereupon the impugned judgments of this Court had been rendered are analogous to the provisions of the Act or not.

In <NAME> vs. <NAME> [AIR 1980 SC 587 : (1980) 2 SCC 151], the provisions of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as "the M.P. Act ") was in question. Sub-sections (1) and (6) of Section 13 thereof are as follows :

"(1) On a suit or proceeding being instituted the landlord on any of the ground referred to in section 12 , the tenant shall, within one month of the service of summons on him or within such further time as the court may, on an application made to it, allow in this behalf, deposit in the court to pay to the landlord an amount calculated at the rate of rent at which it was paid for which the rent may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made; and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.

(6) If the tenant fails to deposit or pay any amount as required by this section the court may order the defence against eviction to be struck out an shall proceed with the hearing of the suit."

(Emphasis mine) A bare perusal of the said provisions would clearly go to show that by reason of the provisions of Section 13(1) of the M.P. Act, the <ORG> has been conferred power to extend the time for deposit of rent to any such further time, as it may, on an application made to it, allow in this behalf. The power of the court under the M.P. Act is not restricted. However, discretion available to the court under the Rajasthan Act, as noticed hereinbefore is limited. Furthermore, in sub-section (6) of Section 13 of the M.P. Act, the word 'may' has been used which is directory; in contra-distinction with the word 'shall' employed in the Rajasthan Act.

The M.P. Act provides for the power of the court to extend the time in the event sufficient cause therefor is shown which is absent in the Rajasthan Act. Furthermore, in terms thereof once the rent has been determined, the same has to be deposited within the prescribed period wherefor there exists no provision for filing an application.

<CITATION> . [1980 (3) SCR 325 : ] and <NAME> vs. Bholanath and Others [AIR 1984 SC 1392 : ], this Court was concerned with the provision of Section 15 of the Delhi Rent Control Act, 1958 which is in the following term :

(1) In any proceeding for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-section (1) of section 14 , the controller shall after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the controller within one month of the date of the order, an amount calculated at the rate of rent at which it was ast paid for the period for which the arrears of rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit, month by month by the 15th of each succeeding month a sum equivalent to the rate of rent.

(3) If in any proceedings referred to in subsection (1) or subsection (2), there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of first hearing of the proceedings fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of subsection (1) or subsection (2), as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of this act, and the amount of arrears, if any, calculated on the basis of standard rent shall be paid or deposited by the tenant within one month of the date on such further time as the Controller may allow in this behalf.

(7) If the tenant fails to deposit or pay any amount as required by this section the court may order the defence against eviction to be struck out and shall proceed with the hearing of the application."

(Emphasis mine) Yet again Section 15 of the Delhi Rent Control Act confers power upon the court to extend the time for deposit of rent to any such period, as it may in this behalf deem fit. Furthermore, even in sub-section (7) of Section 15 the word 'may' has been used. We may notice that under sub-section (5) of Section 13 of the old Act the word 'shall' has been used and construing the said provision, this Court in <CITATION> [AIR 1964 SC 1317], noticed :

".the change of words from "the court shall order the defence against ejectment to be struck out" to the words "the controller may order the defence against eviction to be stuck out" is clearly deliberate modification in law in favour of the tenant. Under the old act the court had no option but to strike out the defence if failure to pay or deposit the rent is proved; under the new act the controller who takes the place of the court has a discretion in the matter; so that in proper cases he may refuse to strike out the defence."

(Emphasis mine) <CITATION> [1985 (3) SCR 825 : ], this Court was concerned with interpretation of Section 11-A of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947 (hereinafter referred to ' Bihar Act of 1947') which was in the following term :

"11-A. Deposit of rent by tenants in suits for ejectment If in a suit for recovery of possession the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any; and the court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so. The court may further order the recovery of cost of suit and such other compensation as may be determined by it from the tenant."

The said provision of the Bihar Act of 1947 did not contain any negative provision as is there in the present Act. Furthermore, even under the said provision an application was required to be filed which is not the case in this appeal. For that reasons the decision in Ganesh Prasad Sah Kesri (supra) is distinguishable and has no application to the present case.

We may further notice that in <NAME> Vs. <NAME> [(2002) 3 SCC 617], which also arose out of the West Bengal Premises Tenancy Act, it was held that under sub-section (2A) of Section 17 of the Act, the <ORG> has a power to extend the period for depositing the rent in the event of default by the tenant to deposit the rent within a stipulated time. This <ORG> further held that if a <ORG> has no power to extend the time, then in cases of small default beyond the reason of the tenant, the time cannot be extended.

(Emphasis mine) It is interesting to note that in <CITATION> [1978 (3) SCR 198 : 1978 (2) SCC 573], this Court while interpreting similar provisions occurring in Section 12(3)(a) of the Bombay Rent, Hotel, Lodging Houses Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act") held :

" Section 12(3)(b) does not create any discretionary jurisdiction in the <ORG>, it provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature, it is not in the hands of the <ORG>."

Thus under the Bombay Rent Act only on certain grounds the <ORG> can exercise its discretionary power and not on other grounds.

Yet again in <CITATION> [AIR 1988 SC 602], this Court interpreting the provision of Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Ordinance 1982 being Ordinance No.63 of 1982 (hereinafter referred to as 'the Bihar Rent Ordinance, 1982'), held :

" Section 13 of the Act stipulates that if in a suit for recovery of possession of any building the tenant contests the suit as regards the claim for ejectment, the landlord may move an application at any stage of the suit for an order on the tenant to deposit rent month by month at the rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any, and the court after giving an opportunity to the parties to be heard may make an order to deposit the rent month by month at such rates as to be determined and the arrears, both before and after the institution of the suit, if any, and thereafter provides "on failure of the tenant to deposit the arrears of rent within 15 days of the next following month the court shall order the defence against the ejectment to be struck off". Therefore, there is a duty cast on the court to strike out the defence if there is a failure of the tenant to deposit arrears of rent within 15 days. In this case, both the trial court as well as <ORG> have found that there was, in fact, a delay to pay the arrears of rent within 15 days. In that view of the matter it is not possible to interference with the order of <ORG>."

In the said case there was delay of about four to five days in depositing the rent allegedly on the ground of bank strike but the defence against the eviction was struck off.

In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom. <CITATION> ) by Lrs. and Others [], <ORG> of this Court observed :

".The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters"

It is also pertinent to note that the Rent Control Act is a welfare legislation not entirely beneficial enactment for the tenant but also for the benefit of landlord. [See: <ORG> vs. <NAME> (Smt.) and Others [(1994) 2 SCC 671]. In that view of the matter, balance has to be struck while interpreting the provisions of the Rent Act .

The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the <ORG> can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well-settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression 'shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well-settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character.

Yet there is another aspect of the matter which cannot be lost sight of. It is a well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified. In Sutherland, Statutory Construction, 3rd edition, Vol.3 at p.107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision.

At p.111 it is stated as follows :

"As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive."

Thus, on analysis of the aforesaid two decisions we find that wherever the special Act provides for extension of time or condonation of default, the <ORG> possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the <ORG> does not have the power to do so.

In that view of the matter it must be held that in absence of such provisions in the present Act the <ORG> did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent.

Coming to the second question, we are of the view that Section 5 of the Limitation Act, 1963 is not applicable where there is a default in depositing the rent by the tenant under Section 13(4) of the Act.

It is true that Rajasthan Act does not expressly exclude the application of Limitation Act . But Section 5 in its terms is not applicable to wherever there is a default in depositing the rent by the tenant.

Section 5 of the Limitation Act reads thus:

"5. Extension of prescribed period in certain cases. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfied the court that he had sufficient cause for not preferring the appeal or making the application within such period."

On perusal of the said Section it is evident that the question of application of Section 5 would arise where any appeal or any application may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not making the appeal or application within such period. Section 13(4) provides that in a suit for eviction on the ground set forth in clause (a) of sub-section (1), the tenant shall on the first date of hearing or on or before such date, the <ORG> may on the application fixed in this behalf or within such time the tenant shall deposit in court or pay to the landlord in court as determined under sub- section (3) from the date of such determination or within such further time not exceeding three months as may be extended by the <ORG>. Thus, sub- section (4) itself provides for limitation of a specific period within which the deposit has to be made, which cannot be exceeding three months as extended by this <ORG>.

The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of Section 5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Section 5 cannot be extended where the default takes place in complying with an order under sub-section (4) of Section 13 of the Act.

The provisions of Section 5 of the Limitation Act must be construed having regard to Section 3 thereof. For filing an application after the expiry of the period prescribed under the Limitation Act or any other special statute a cause of action must arise. Compliance of an order passed by <ORG> in terms of a statutory provision does not give rise to a cause of action. Failure to comply with an order passed by <ORG> instant consequences are provided for under the statute. The court can condone the default only when the statute confers such a power on the <ORG> and not otherwise. In that view of the matter we have no other option but to hold that Section 5 of the Limitation Act, 1963 has no application in the instant case.

<CITATION> [AIR 1969 All. 200], V.G. Oak, CJ observed :

"Delay may be condoned if a party makes delay in filing an appeal or moving an application, but no such situation arose in the present case. The petitioner made delay in depositing the admitted tax. The Appeal itself was filed within time. The Assistant Commissioner rightly held that there was no room to give the appellant the benefit of Section 5 of Indian Limitation Act."

<NAME>, J.,(as he then was) observed :

" Section 5 is not attracted when the question arises whether the delay in depositing the admitted tax should be condoned. It seems to me that the application made by the Petitioner for condonation of delay in depositing the entire amount of admitted tax is not maintainable under Section 5 of Limitation Act."

<CITATION> [ 1974 (3) SCR 31 ], P. Jaganmohan Reddy, J. held that Section 5 of the Limitation Act does not govern an election petition. The said decision has been followed in <CITATION> [AIR 1983 Orissa 63].

<CITATION> [AIR 1975 SC 1039 = ], this Court upon referring to various decisions observed :

"Thus the principle that emerges is that if the <ORG> in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only upto a specified time-limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceedings on the analogy of Section 14(2) of the Limitation Act."

<CITATION> [], this Court observed : " In consequence, by operation of Section 29(2) read with Section 3 of the Limitation Act, limitation stands prescribed as a special law under Section 19 of the Contempt of Courts Act and limitation in filing Letters Patent appeal stands attracted. In consequence, Sections 4 to 24 of the Limitation Act stands attracted to Letters Patent appeal insofar as and to the extent to which they are not expressly excluded either by special or local law. Since the rules made on the appellate side, either for entertaining the appeals under clause 15 of the Letters Patent or appeals arising under the contempt of courts, had not expressly excluded, Section 5 of the Limitation Act becomes applicable. We hold that Section 5 to the Limitation Act does apply to the appeals filed against the order of the learned Single Judge for the enforcement by way of a contempt. <ORG>, therefore, was not right in holding that Section 5 of the Limitation Act does not apply. The delay stands condoned. Since <ORG> had not dealt with the matter on merits, we decline of express any opinion on merits. The case stands remitted to the <ORG> for decision on merits."

Furthermore, for constituting an application within the meaning of the said provision, there should be some request. [ <CITATION> , 1974 (3) SCR 494 : AIR 1974 SC 968].

Mr. <NAME>, appearing on behalf of the respondent, however, placed reliance upon a decision of this Court in <CITATION> []. Therein this Court was concerned with extension of period of limitation in a case wherein an appeal was to be preferred before an appellate authority under the Kerala Buildings (Lease and Rent Control) Act, 1965. As for preferring an appeal a period of limitation is prescribed, it was held that Section 5 of the Act was applicable and, therefore, the said decision is of no help to the respondent.

Similarly in <CITATION> [(1995) Supp.(4) SCC 578], this Court was concerned with the question as to whether the provision of Section 5 of the Act would be applicable to an appeal filed before the appellate authority functioning under the T.N. Buildings (Lease and Rent Control) Act, 1960.

The question which arose for consideration therein was whether the appellate authority was a court or a persona designata. Having regard to the provisions of contained in sub-section (2) of Section 29 , it was held that the Limitation Act ,1963 applies. Such is not the case here and, therefore, the said decision is distinguishable.

For the aforesaid reasons, we are of the view that the judgment of <ORG> cannot be sustained. We, accordingly, set aside the judgment under challenge.

The appeal is allowed. There shall be no order as to costs.