JUDGMENT <NAME>, J.

1. This is an appeal by the defendant who has been directed by the decree of the lower Court to pay certain sums of money to the plaintiff, his son, towards maintenance. The plaintiff is an adult and is not under the Hindu Law ordinarily entitled to enforce payment of maintenance as a "personal" obligation of the father. Where the father is in possession of joint family property, the adult son is entitled to be maintained from out of the income of the joint family property but it is doubtful if he can maintain a suit for maintenance against the father when he could as well sue for partition. Where the property in the father's possession is impartible the son would not, even if the impartible estate be joint family property, be entitled to sue for partition and in such cases a suit for maintenance has been permitted.

2. In the present case the plaint proceeded on the footing that the defendant was in possession of the Uttumalai Zamindari in some character other than that of separate property. The plaint also alleged that there was an immemorial and well-known custom prevalent in the Uttumalai Zamindari and all other Zamindaris according to which a person in the position of the plaintiff was entitled to maintenance. The defendant denied that the plaintiff was entitled to maintenance. He asserted that the Uttumalai Zamindari must be regarded as separate property in his hands and not as joint family property out of which the plaintiff can claim maintenance. He also denied the existence of the custom alleged in the plaint; and, in paragraph 2 of the additional statement filed on the 17th December, 1930, it was distinctly asserted:

No such custom has hitherto been recognised in judicial decisions at any rate when the impartible estate is the self-acquired property of the holder.

3. In the rejoinder filed by the plaintiff in answer to this statement no new information was vouchsafed, but it was asserted that <ORG> was in no sense the self-acquired property of the defendant.

4. On these allegations, issues were framed, of which it is sufficient to refer to issues 2, 3 and 4. Issue 2 raised the question whether the Uttumalai Zamindari was the joint family property of the parties or the sole property of the defendant. The lower Court rightly found that the property was the separate property of the defendant because he got it by inheritance from his sister's adopted son. This finding has not been attacked before us and it is unnecessary to say more on this issue.

5. The fourth issue was to the effect, "Is that custom true?". It is to be regretted that the issue was framed in a form which did not bring out the nature of the custom pleaded or required for the purposes of the case. The point really in controversy between the parties on the question of custom was whether there was a custom to pay maintenance even when the property is not held by the holder for the time being, as joint family property; if it was joint family property, the right of the first generation of descendants to maintenance, has not been disputed. This way of framing issue No. 4 has led to an obvious mistake in the treatment of the case in the lower <ORG> as we shall presently show.

6. The third issue ran as follows:

If the second issue is found for the defendant, is plaintiff entitled to have that Zamindari taken into consideration in the fixing of the maintenance allowance to be awarded to him assuming the custom alleged by him to be true?

7. Issues 1 to 3 were heard as preliminary issues. On the third issue the learned Subordinate Judge curiously enough said that the defendant had made no distinction in his additional written statement as between Zamindaris which are held as joint family properties and Zamindaris which are self-acquisitions so far as the allegation as to the custom was concerned. He forgot that the plaint itself made very little differentiation between judicial decision and custom and the written statement accordingly followed the same lines. It is however obvious from the paragraph which we have already quoted from the additional written statement that the defendant did insist that the plaintiff was not entitled to maintenance if the Court should hold that the Zamindari in his hands was not joint family property.

8. The learned Subordinate Judge disposed of issue 3 in two sentences which we have had great difficulty in understanding. He said:

Their Lordships of the Privy Council have referred in <CITATION> (1927) 53 M.L.J. 30 at 37 : L.R. 54 I.A. 289 : I.L.R. 54 Cal. 955 at 968 (P.C.) to the expression of opinion in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 (P.C.), though that expression of opinion has been stated in <CITATION> (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 (P.C.) to be obiter. Consequently I have to find the issue for the plaintiff.

9. The learned Counsel who appeared for the respondent before us has explained this judgment of the learned Subordinate Judge to mean that according to the observations of their Lordships in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) the son of the holder of an impartible estate has been recognized to be entitled to maintenance without the necessity of proving the custom in each case and as that decision proceeds upon the footing that in an impartible estate there are neither coparcenary rights nor any of the incidents relating to joint family property, the observations justify the award of maintenance to the son irrespective of the question whether the impartible estate in the possession of the father is joint family property or separate property. The learned Judge however recognised that Lord <NAME> himself in <CITATION> (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 at 243 and 244 (P.C.) stated that many of the observations in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) might have to be ragarded as obiter. But as reference has been made in Pro tap <CITATION> (1927) 53 M.L.J. 30 at 37 : L.R. 54 I.A. 289 : I.L.R. 54 Cal. 955 at 968 (P.C.) to <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) he thought he must follow the dictum in that case.

10. When the case came on before another Judge for the trial of the other issues in the case, the learned Counsel for the defendant asked for a separate trial and finding in respect of Issue No. 4. But the then Judge felt himself precluded from dealing with the question because of what he considered to be the implication of the finding already recorded by his predecessor on the third issue. He was good enough, however, in justice to the defendant, as he says, to refer to some of the contentions raised before him, but refrained from giving a finding on the point. Feeling himself precluded from dealing with the question of the plaintiff's right to maintenance, the new Subordinate Judge practically confined himself to the question of the amount of maintenance and other incidental matters.

11. In the course of the argument before us, Mr. <NAME> has drawn our attention to the relevant decisions of <ORG> and of all the Courts in India. More than one recent judgment of their Lordships has attempted to state with precision the result of the cases relating to impartible estates; it is therefore not necessary for us to refer to earlier decisions. Taken out of its context, the observation in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) is no doubt capable of being understood in the way that the learned Subordinate Judge understood it. But a perusal of the whole judgment and a consideration of their Lordships' later judgments will show that that view is not correct.

12. It is unnecessary for the purposes of this case to discuss the exact basis of the decision in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) because in the later decisions in <CITATION> (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 (P.C.) and <CITATION> (1934) 67 M.L.J. 274 : L.R. 61 I.A. 286 : A.I.R. 56 All. 468 at 485 (P.C.), their Lordships have themselves attempted to state the position with the necessary qualifications. It is sufficient to refer to the observation in <CITATION> (1934) 67 M.L.J. 274 : L.R. 61 I.A. 286 : A.I.R. 56 All. 468 at 485 (P.C.) that it has been clearly shown:

That there is now no reason why the earlier judgments of the <ORG> should not be followed, such as, for instance, the <NAME> case, <CITATION> (1900) 10 M.L.J. 294 : L.R. 27 I.A. 151 : I.L.R. 24 Mad. 147 (P.C.), which regarded their right to maintenance, however limited, out of an impartible estate as being based upon the joint ownership of the junior members of the family.

13. We may also add that the observation in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) that has been relied on by the learned Subordinate Judge and by the learned Counsel for the respondent before us does not itself purport to declare the right to maintenance but merely refers to the basis on which the right recognised in the earlier cases in respect of maintenance might be based, the suggestion being that custom rather than joint family right might be regarded as the basis. It was obviously not the effect or the intention of the sentence to recognise the right to maintenance in cases where no such right has been recognised in the earlier cases. Mr. <NAME> admitted before u§ that in none of the earlier cases relating to impartible Zamindaris has the <ORG> recognised a right in an adult son to claim maintenance from the impartible Zamindari in the hands of the father even when it was not joint family property.

14. We may refer in this connection to an observation in Sir <NAME>'s book, 8th Edn. at page 611 where a sentence from <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) is reproduced without the context in which it occurs. As it stands, the statement in the book is capable of being misread as supporting a general right to maintenance in favour of the son irrespective of the question whether the impartible estate in the father's hands is joint family property or not. <CITATION> (1934) 67 M.L.J. 306 : I.L.R. 57 Mad. 1023 (F.B.) a Full Bench of this Court affirmed the principle that the right to maintenance which the son of the holder of an impartible Zamindari possesses is only an incident attaching to its character as joint family property.

15. The observations in <NAME> v. <NAME> (1879) I.L.R. 5 Cal. 256 are likewise capable of being misunderstood if the context is ignored. The antethesis drawn in that judgment was between claims by the younger sons against their elder brother on the one hand and claims by the descendants of the younger brother against their uncle. The son's claim against the father was not then before the <ORG>. It is obvious that when one of three brothers inherits an impartible estate from the father, it would be an estate where the younger brothers had lost their right of succession only by reason of its impartibility. In such circumstances the <ORG> thought that the younger sons would be entitled to maintenance without proof of special custom, but they added that as regards members belonging to a lower generation there must be definite proof of custom.

16. We may refer in passing to the way in which the matter has been dealt with in a recent enactment of <ORG>. In Madras Act XII of 1934 which attempted to declare the law as it has been understood even prior to the decision in <CITATION> (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 (P.C.) and in conformity with the latest pronouncements of their Lordships as regards the true character of impartible estates, the second section which pro-pose's to add Section 9 to the Impartible Estates Act of 1904 is limited to cases where the estate has for the purpose of succession to be regarded as the property of the joint family. There is accordingly no warrant for Mr. <NAME>'s suggestion that there is a kind of consciousness in this presidency that a <NAME>'s son should be entitled to maintenance from his father irrespective of the question whether in the father's hands the <NAME>i is joint family property or not. It is not suggested that the evidence in this case establishes any custom to that effect. The decision of the lower Court in favour of the plaintiff is accordingly unsustainable.

17. Mr. <NAME> suggested two other grounds in favour of the plaintiff's claim, on

18. The offer in the written statement is more in the nature of a voluntary undertaking and does not amount to any admission of a legal right; that undertaking is coupled with onditions which no Court of law can enforce, namely, that the plaintiff should behave in a particular way and be amenable to the defendant. No decree could be founded on such an offer.

19. The appeal must accordingly be allowed and the suit dismissed with costs both here and in the <ORG> below.


PETITIONER: UNION OF INDIA AND <NAME>. Vs. RESPONDENT: <NAME> DATE OF JUDGMENT04/09/1991 BENCH: RAMASWAMI, V. (J) II BENCH: RAMASWAMI, V. (J) II SHETTY, K.J. (J) YOGESHWAR DAYAL (J) CITATION: 1992 AIR 96 1991 SCR (3) 873 1992 SCC Supl. (1) 323 JT 1991 (3) 608 1991 SCALE (2)481 CITATOR INFO : E&D 1992 SC2014 (23) ACT: <ORG> Judges (Conditions of Service) Act , 1954: Paragraphs 2, 9, Part I of First Schedule, Section 17-A --Pension payable to retired Judge of <ORG>--Fixing of minimum service of seven years-Fixing of lesser pension to those not eligible--Whether discriminatory- Amending Act of 1986--Whether applicable to all Judges irrespective of their dates of retirement. Judicial Act ivism: Invoking of judicial activism to set at naught legislative judgment--Whether subversive of the constitutional harmony and comity of instrumentalities--<ORG> to carry out the obvious intention of legislature--not to legislate itself. HEADNOTE: The Respondent retired as Judge of <ORG> on 3.10.1983 on superannuation and elected to receive his pension under Part I of the First SChedule to the <ORG> Judges (Conditions of Service) Act , 1954. As a Judge of the <ORG>, he had put in service of 5 years 10 months and 17 days and his pension was determined at Rs.8,400 p.a. and family pension at Rs.250 p.m. In 1986, the Act was amended providing for an increased pension from 1.11.1986. Thereafter, the Respondent filed a Writ Petition before the <ORG> praying for directions that he was entitled to refixation of his pension from the date of his retirement at Rs.9,600 per annum on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days; that from November 1, 1986 his pension may be refixed at Rs.20,580 per annum at the rate of Rs.3,430 for six complet- ed years of service; and that the family pension admissible to his wife be calculated on the basis that he had completed six years of service. During the pendency of the Writ Petition the Respondent made representations to <ORG> that since the respondent fell short of 6 completed years of service only by 1 month and 13 days, the President may be pleased to allow him to add the period so as to 874 caluclate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge. By its order dated April 16, 1987 <ORG> rejected the representation of the respondent among other grounds that the request was belated. By its judgment dated March 15, 1988 the <ORG> allowed the Writ Petition directing the <ORG> to retix his pension, family pension and gratuity treating him as having put in six completed years of service. <ORG> has preferred the present appeal, by special leave against the <ORG>'s order. It was contended on behalf of the appellants that the <ORG> has re-written the retirement benefit provisions of the First Schedule to the Act which it was not entitled to and hence the refxation of the pension on that basis was wholly illegal and unconstitutional- However, during the pendency of the appeal this <ORG> in its proceedings dated December 15, 1988 the <ORG> directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of 1 month and 13 days subject to the final decision of this <ORG> in the appeal. However, it was added that the period shall be disregarded in calculating additional pension. if any, under Part I, Part II and Part III of the First Sched- ule of the said Act. Allowing the appeal, this <ORG>. HELD: 1. It is a well-known practice in pensionary schemes to fix a minimum period for purposes of pension. What shall be the minimum period for such pension will depend on the particular service, the age at which a person could enter into such service. the normal period which he is expected to serve before his retirement on superannuation, and various other factors. There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary. So far as the Judges of the <ORG> are concerned even under <ORG> Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension. In fact no pension was provided for those who had not com- pleted seven years of service under pre-constitutional scheme. Thus there are historical grounds or reasons for fixing not less than seven years of service for pension. Part I deals with pensionary scheme. Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification. It is a qualification for eligibility. It is different from computation of pension. All those who 875 satisfy that condition are eligible to get pension. [885G-H; 886A-C] 2. Even those who had completed seven years of service were not given pension for all the completed years of serv- ice at the rate of Rs.1,600 per annum and a maximum limit has been fixed for purposes of pension. If one calculates the maximum amount provided with reference to the rate per year roughly in about 14 years of service one would have reached the maximum amount. Any service above that period is not taken into account. Thus a person who had put in the minimum period for getting the maximum pension could be said to be favourably treated against the person who had put in more number of years of service than needed for the maximum pension and thereby discriminated. [886D-E] 3. It is not correct to state that the amount of pension provided in paragraph 9 is minimum pension. The said para- graph does not use the word 'minimum' but only states that if a Judge retires without being eligible for pension under any of the provisions. notwithstanding anything contained in the other provisions. the pension of a particular amount mentioned therein shall be paid to the Judge. This amount is not calculated or has any reference to any period of serv- ice. A Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who has completed six years of service. If the provision is struck down as unconstitutional the condition relating to completion of seven years of service in para- graph 2, all those who had put in less than six completed years of service would be seriously affected and paragraph 9 also would become inapplicable. Further, it may be open to those who have put in more than five years or more than four years as the case may be. to contend that they are discrimi- nated against because persons who had put in less than that period will get pension at much higher rate. [886F-H: 887A] 4. The Amending Act 38 of 1980 provided that the amend- ed liberalised pension scheme would apply only to a Judge who has retired on or after the commencement of the <ORG> and Supreme <ORG> Judges (Conditions of Service) Amendment Act . 1986. A similar provision which made the amendment 01 1976 applicable only to those Judges who have retired on or after October 1. 1974 was struck down as ultra vires and it was decided that the benefit of the amendment was available to. all the retired Judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974. The Amending Act of 1986 could not restrict the applicability of the amended provision to only those who have retired on or after the commencement of the Amending Act . It 876 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from November 1, 1986. [883A- <CITATION> .  3 SCR 550; <CITATION> ,  3 SCR 552 and <CITATION> ,  2 SCR 165, referred to. 5. In the instant case. <ORG> had exceeded its jurisdiction and power in amending and altering the provi- sions of paragraph 2 by substituting different minimum period for eligibility for pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Sched- ule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum. [887B-C] 6. Since in compliance with the mandamus issued by the <ORG>, the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal, this <ORG> does not go into the question whether the <ORG> was right in set- ting aside the earlier rejection for addition of the period. The addition of one month and 13 days does not make any difference in calculation of pension it is relevant only for the purpose of calculating the gratuity under section 17A(3) of the Act. As the period was less than three months and as the President was pleased to sanction the addition in exer- cise of his power under Section 16 of the Act though subject to the final decision of this <ORG> it is just and necessary to allow this addition to remain for the purposes of calcu- lation of gratuity, and family pension only though not for pension. The respondent will be entitled to fixation of family pension and for payment of gratuity calculated on the basis of his having completed six years of service. [887D-H] 7.1. It is not the duty of the <ORG> either to enlarge the scope of the legislation or the intention of the legis- lature when the language of the provision is plain and unambiguous. The <ORG> cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The <ORG> cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the 877 words used by the legislature the <ORG> could not go to its aid to correct or make up the deficiency. <ORG>s shall decide what the law iS. and not what it should be. The <ORG> of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. [885A-D] 7.2 Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimina- tion. What the <ORG> has done in this case is a clear and naked usurpation of legislative power. [885F] <CITATION> ,  1 SCR 482; <CITATION> ,  5 SCR 239; <CITATION> ,  Supp. 1 SCR 489; <CITATION> , Shahjahanpur,  SCR 1122; <CITATION> .,  SCR 533; <CITATION> ,  2 SCR 146; S. Narayanaswa- mi v.G. Pannerselvam & Ors.,  1 SCR 172; N.S. Varda- chari v. G. Vasantha Pai & Anr.,  1 SCR 886; <CITATION> .,  1 SCR 423 and <CITATION> ,  2 SCR 430, relied on. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3674 of 1988.

From the Judgment and Order dated 15.3.1988 of <ORG> in Civil Misc. Writ Petition No. 20328 of 1986.

<NAME>, <NAME> and <NAME> for the Appel- lants.

<NAME>-in-person and Mrs. <NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME>, J. The respondent was elevated as Judge of <ORG> on November 17, 1977. He retired on October 3, 1983 on superannuation at the age of 62. He had elected to receive his pension under Part I of the First Schedule to the High  Court Judges (Conditions of Service) Act , 1954. As he had put in only a period of five years 10 months and 17 days service as a Judge. of <ORG>, under paragraph 9 Part I of the First Schedule pension payable was determined at the rate of Rs.8,400 per annum and the family pension in the event of his death earlier than his wife at Rs.250 per month in the letter of Accountant General, Allahabad dated December 2, 1983. The gratuity was worked out at Rs. 11,665.66 P. in lump-sum under Section 17A(3) also on the ground that he had put in only five completed years of service. The pension was payable with effect from October 4, 1983. The Act was amended by the Amending Act No. 38 of 1986 providing for an increased pension with effect from November 1, 1986. On December 10, 1986 the petitioner filed a writ petition before <ORG> under Article 226 of the Constitution praying for an order or directions declaring (i) that he was entitled to refixation of his pension from the date of his retirement, namely, October 4, 1983 to October 31, 1986 at Rs.9,600 per annum plus dearness allowance admissible under the rules from 'time to time on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days to the 5 years 10 months and 17 days; (ii) for refixa- tion of pension for the period from November 1, 1986 at Rs.20,580 per annum plus dearness allowance or other allow- ances as may be admissible under the rules from time to time, at the rate of Rs.3,430 per annum for six completed years of service as stated above; (iii) to retix the family pension admissible to his wife on the scale allowed under Section 17A as amended by Act 38 of 1986 again taking the period of completed years of service as 6 years and not as total service of 5 years, 10 months, and 17 days. During the pendency of the writ petition the respondent made representations to <ORG> stating that since the respondent fell short for 6 completed years of service only by one month and 13 days, the President may be pleased to allow him to add the period so as to calculate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge. By its order dated April 16, 1987 <ORG> rejected the repre- sentation of the respondent among other grounds that the request was belated. By its judgment dated March 15, 1988 <ORG> allowed the writ petition directing the <ORG> to retix his pension, his family pension and gratuity treating him as having put in six completed years of service and in the manner provided in the judgment. The main grievance of <ORG> in this appeal is that <ORG> has rewritten the retirement benefit provisions of the First Schedule to tile Act which it was not entitled to and the refixation of the pension on that basis was wholly illegal and unconstitutional. Since <ORG> issued the manda- mus directing the <ORG> to add one month and 13 days to the total length of service renderred by the re- spondent as Judge of <ORG> for the com- puting the pension under Section 16 of the Act, during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the <ORG> directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of one month and 13 days "subject to the final decision of this Court in Special Leave Petition 6798 of 1988 (CA No. 3674 of 1988)." However, they added that the period shall be disregarded in calculat- ing additional pension, if any, under Part I and Part II and Part HI of the First Schedule of the Said Act. In order to appreciate the argument of the learned counsel for the appellant-<ORG> it is necessary to set out certain provisions relating to pension payable to a Judge of <ORG> on his retirement. Clause 17 of <ORG> (High Court Judges) Order, 1937 relating to pension payable to a Judge on his retirement which was in force prior to the coming into force of the Constitution provided that "a pension shall be payable to a Judge on his retirement if, but only if, either:

"(a) he has completed not less than 12 years' service for pension; or

(b) he has completed not less than 7 years' service for pension and has attained the age of sixty; or

(c) he has completed not less than 7 years' service for pension and his retirement is medically certified to be necessitated by ill-health."

Thus it may be seen that under the provisions then existing a Judge who had completed less than seven years of service was not allowed any pension.

As we are concerned in this case to the provisions applicable to a Judge to whom Part I of the First Schedule of <ORG> Judges (Conditions of Service) Act, 1954 is applicable either by reason of his appointment directly to <ORG> from the <ORG> or who has elected to receive pension payable under that part we need to set out only relevant provisions relating to pension in Part I of the First Schedule. Paragraphs 2, 3, 4, 5, and 9 as stood prior to its amendment by Act 35 of 1976 read as follows:

"2. Subject to the other provisions of this part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be the basic pension specified in para- graph 3 increased by the additional pension, if any, to which he is entitled under para- graph 5.

3. The basic pension to which such a Judge shall be entitled shall be--

(a) for the first seven completed years of service for pension, Rs.5,000 per annum; and

(b) for each subsequent completed year of service for pension, a further sum of Rs. 1,000 per annum:

provided that the basic pension shall in no case exceed Rs. 10,000 per annum.

4. For the purpose of calculating additional pensions, service as a Judge shall be classi- fied as follows:-

Grade I. Service as Chief Justice in any <ORG>;

Grade II. Service as any other Judge in any <ORG>.

5. For each completed year of service for pension in either of the grades mentioned in paragraph 4, the Judge who is eligible for a basic pension under this Part shall be enti- tled to the additional pension specified in relation to that grade in the second column of the table annexed hereto.

provided that the aggregate amount of his basic and additional pension shall not exceed the amount specified in the third column of the said table in relation to the higher grade in which he has rendered service for not less than one completed year.

TABLE Service Additional pension Maximum aggregate per annum pension per annum Rs. Rs. Grade I 740 20,000 Grade II 740 16,000

9. Where a Judge to whom this Part applies, retire or has retired at any time after the 26th January, 1950 without being eligible for a pension under any other provision of this Part, then, notwithstanding anything contained in the foregoing provisions, a pension of Rs.6,000 per annum shall be payable to such a Judge.

(a) to an additional Judge or acting Judge; or

(b) to a Judge who at the time of his appoint- ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the <ORG> or a <ORG>. Note: The <ORG> was added by Act No. 46 of 1958."

By the Amending Act 35 of 1976 the First Schedule was amended by substituting paragraphs 2 and 9 and deleting paragraphs 3, 4 and 5. The substituted paragraphs 2 and 9 read as follows:

"2. Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be--

(a) for service as Chief Justice in any High Court, Rs.2,400 per annum; and

(b) for service as any other Judge in any High Court, Rs. 1,600 per annum:

provided that the pension shall in no case exceed Rs.28,000 per annum in the case of a Chief Justice and Rs.22,400 per annum in the case of any other Judge.

9. Where a Judge to whom this Part ap- plies, retires or has retired at any time after the 26th January, 1950 without being eligible for pension under any other provision of this part, then, notwithstanding any- thing contained in the foregoing provi- sions, a pension of Rs.8,400 per annum shall be payable to such a Judge. Provided that nothing in this paragraph shall apply--

(b) to a Judge who at the time of his appoint- ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the <ORG> or a <ORG>."

These amended provisions Were held applicable in respect of all the Judges of <ORG> who have retired irre- spective of their dates of retirement in the decisions of this Court in <CITATION> ,  3 SCR 550 and <CITATION> ,  3 SCR 552. However the increased pension was payable only with effect from October 1, 1974, Part I of the First Schedule was further amended by Act 38 of 1986 with effect from November 1, 1986 and the amended paragraph 2 reads as follows:

"2. Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies, and who has completed not less than seven years of service for pension shall be---

(a) for service as Chief Justice in any High Court, Rs.4,500 per annum for each completed year of service;

(b) for service as any other Judge in any <ORG>, RS.3,430 per annum for each completed year of service:

provided that the pension shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs.48,000 per annum in the case of any other Judge."

The Act further amended paragraph 9 by substituting Rs.

15,750 for the figure Rs.6,000-

At this stage itself, we may note that this Amending Act 38 of 1986 provided that the amended liberalised pension scheme would apply only to a Judge "who has retired on or after the commencement of <ORG> and <ORG> Judges (Conditions of Service) Amendment Act , 1986." A similar provision which made the amendment by Act 35 of 1976 applicable Only to those judges who have retired on or after October 1, 1974 was held ultra vires and struck down in the two decisions of this Court above referred to and it was held that the benefit of the amendment was available to all the retired judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974. That was also ratio of the decision of <ORG> of this Court in <CITATION> ,  2 SCR 165. On the same reasoning and logic we have to hold that Amending Act . 38 of 1986 could not restrict the applicability of the amended provision to only those who have retired on or after the commencement of the Amending Act . The resultant position would be that the provisions of pension in Part I of First Schedule as amended by Act 38 of 1986 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from NOvember 1, 1986, As already stated, the respondent retired from service on October 3, 1983. For the period from October 4, 1983 till October 31, 1986 the respondent claimed that he is entitled to be paid at the rate of Rs.9,600 and at the rate of Rs.20,580 per year from November 1, 1986 when the Amending Act 38 of 1986 came into force, plus the usual dearness allowance admissible from time to time. This claim was made on the ground that the power of the President under Section 16 of the Act though discretionary could not be exercised arbitrarily or on extraneous or other unsupportable grounds that on the facts and circumstances the refusal to include the period of one month and 13 days to the length of his service by the order of 'the <ORG> dated April 16, 1987 was illegal and on the facts and circumstances, his case is a fit one for enlarging the period of his service to six years. On the assumption that he is entitled for such en- largement and the had completed six years of service, the further case of the respondent was that he is entitled for calculation on the pension at the rate of Rs. 1,600 for each completed year of service and for six.years at Rs.9.600 per annum for the period prior to November 1, 1986. He further contended that in paragraph 2 of Part I of the First Sched- ule the words "who has completed not less than seven years of service for pension'' shall be read as "who has completed more than five years of service for pension" on the ground that while a Judge who has completed seven years of service is permitted to calculate at the rate of Rs. 1,600 for each completed years of service, a person who had not completed seven years of service could not be denied that benefit. But finding that a person who had completed only five years of service or less than five years of serv- ice, if the pension is to be calculated at the rate of Rs. 1,600, would get Rs.8,000 or less than Rs.8,000 though Rule 9 provided for a fixed pension of Rs.8,400 per annum for those who had not completed seven years of service, he wanted to read "not less than five years" of service in paragraph 2 as "more than five years" of service. This argument was accepted by <ORG> on the ground that there is no rational basis for depriving a Judge who had put in six completed years of service to calculate the benefit of pension at the rate of Rs. 1,600 per year of service which was provided for those who had completed seven years of service. <ORG> was of the view denying the benefit of calculation at the rate of Rs. 1,600 per year would lead to the striking down of the provision as a dis- criminatory piece of legislation and that however the provi- sion can be saved by "reading down paragraph 2 of Part I of the First Schedule to the Act and reading 'more than five years' in the place of not less than seven years." In that view <ORG> amended paragraph 2 so to say by substi- tuting the words "not less than 7 years" as "more than 5 years" and allowed the claim for payment of pension at Rs.9,600 per annum for the period from 4.10.1983 to 31.10.1986.

As already stated as per the Amending Act 38 of 1986 the pension payable for those who have completed 7 years of service was to be calculated at the rate of Rs.3,430 for each completed year of service and for those who have not completed 7 years of service a sum of Rs.15,750 was payable as pension. On the same reasoning which prompted <ORG> to read "less than seven years" as "more than five years" in the provision which was in force prior to November 1, 1986 <ORG> further held that since in four years service the Judge would have earned Rs. 13,720 and on com- pletion of five years service he would have earned Rs.17,150 calculated at the rate of Rs.3430 per annum as against a sum of Rs.15,750 provided in paragraph 9, necessarily paragraph 2 will have to be read down by providing instead of "not less than seven years" as "more than four years". The learned Judges read the provisions in the manner as was amended by them and calculated the pension payable to the respondent at Rs.20,580 per annum for the period November 1, 1986. Consequential relief relating to the payment of the gratuity and family pension in the light of the relief granted relating to pension was also directed to be given.

We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as "more than five years" and as "more than four years" in the same paragraph for the period subsequent to November 1, 1986. It is not the duty of the <ORG> either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The <ORG> cannot re- write, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The <ORG> cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the <ORG> could not go to its aid to correct or make up the deficiency. <ORG>s shall decide what the law is and not what it should be. The <ORG> of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. <CITATION> , 1990 1 SCR 482 at 488; <CITATION> ,  5 SCR 239; <CITATION> ,  Supp. 1 SCR 489; <CITATION> ,  SCR 1122 at 113 1; <CITATION> .,  SCR 533 at 545; <CITATION> ,  2 SCR 146; S. Narayanaswa- mi v. G. Pannerselvam & Ors.,  1 SCR 172 at 182; <CITATION> .,  1 SCR 886; <CITATION> .,  1 SCR 423 and <CITATION> ,  2 SCR 430 at 438. Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimination. If we may say so, what the High <ORG> has done in this case is a clear and naked usurpation of legislative power. The view of the High <ORG> that paragraph 2 discrimi- nates between those who have completed seven years of serv- ice and those who have not completed that much service is in our opinion not correct. It is a well-known practice in pensionary schemes to fix a minimum period for purposes of pension. What shall be the minimum period for such pension will depend on the particular service, the age at which a person could enter into such service, the normal period which he is expected to serve before his retirement on superannuation, and vari-

ous other factors. There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary. So far as the Judges of the High Court is concerned as we have noticed earlier even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension. In fact no pension was provided for those who had not completed seven years of service under preconstitu- tion scheme. Thus we have history or historical grounds or reasons for fixing not less than seven years of service for pension. Part I deals with a pensionary scheme. Prescribing a minimum period of service before retirement on superannua- tion, for pension is the very scheme itself and not a clas- sification. It is so to say a qualification for eligibility. It is different from computation of pension. All those who satisfy that condition are eligible to get pension.

Even those who had completed seven years of service were not given pension for all the completed years of serv- ice at the rate Rs. 1,600 per annum and a maximum limit has been fixed for purposes of pension. If we calculate the maximum amount provided with reference to the rate per year roughly in about 14 years of service one would have reached the maximum amount. Any service above that period is not taken into account. Thus a person who had put in the minimum period for getting the maximum pension could be said to be favourably treated against the person who had put in more number of years of service than needed for the maximum pension and thereby discriminated. Thus the reasonableness of the provision in the pensionary scheme cannot be consid- ered in this line of reasonings. It is not impossible to visualise a case where the pension payable would be more than the last drawn pay if the maximum limit had not been fixed.

It is also not correct to state that the amount of pension provided in paragraph 9 is minimum pension. The said paragraph does not use the word 'minimum' but only state that if a Judge retires without being eligible for pension under any of the provisions, notwithstanding anything con- tained in the other provisions, the pension of a particular amount mentioned therein shall be paid to the Judge.. This amount is not calculated or has any reference to any period of service. For instance a Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who have completed six years of service. Again if we run down the provision and strike as unconstitutional the condition relating to completion of seven years of service in paragraph 2 all those who had put in less than six completed years of service would be seri- ously affected and paragraph 9 also would become inapplicable. Further if we amend paragraph 2 of Part I of the First Schedule of the Act as done by <ORG> it may be open to those who have' put in more than five years or more than four years as the case may be to, contend that they are discriminated against because persons who had put in less than that period will get pension at much higher rate.

We have, therefore, no doubt that <ORG> had exceeded its jurisdiction and power in amending and altering the provisions of paragraph 2 by substituting different minimum period for eligibility of pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Schedule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum.

We have already noticed that during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government of India communicated to the Chief Secretary, Government of Lucknow, in compliance with the mandamus issued by <ORG>, that the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal. In the circumstances however and in the view we have expressed earlier on the question of pension, we do not want to go into the question whether <ORG> was right in setting aside the earlier rejection for addition of the period. Since the addition of one month and 13 days does not make any difference in calculation of pension as we have already stated, this Presidential sanction has become rele- vant only for the purpose of calculating the gratuity under section 17A(3) of the Act. As the period is less than three months and as the President was pleased to sanction the addition in exercise of his power under Section 16 of the Act though subject to the final decision of this Court we would consider it just and necessary to allow this addition remain in force for the purposes of calculation of gratuity, and family pension only though not for pension. The appeal is accordingly allowed and the order of <ORG> is set aside. The respondent will however be entitled to fixation of family pension and for payment of gratuity calculated on the basis of his having completed six years of service. There will be no orders as to costs.

<NAME> al- lowed.


PETITIONER: STATE OF BIHAR AND OTHERS ETC. Vs. RESPONDENT: AKHOURI SACHINDRA NATH AND OTHERS ETC. DATE OF JUDGMENT19/04/1991 BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SAHAI, R.M. (J) CITATION: 1991 AIR 1244 1991 SCR (2) 410 1991 SCC (1) 334 JT 1991 (2) 279 1991 SCALE (1)748 ACT: <ORG> Law: Bihar Public Works Departments Code: Rule 2-Bihar Engineering <ORG>, Class II-Assistant Engineers- 25 of posts to be filled up by promotion and 75% by direct recruitment-Seniority promotees and direct recruits-Whether seniority can be conferred on promotees retrospectively from a date they were not born in the Cadre. HEADNOTE: Under Rule 2 of the Bihar Public Works Department Code, the Governor of Bihar took a decision on 7.4.1958 providing that 25% of the posts of Assistant Engineers in <ORG> (the <ORG>) were to be filled by promotion, subject to availability of suitable hands, from Overseers in <ORG> (<ORG>) and 75% of the posts were to be filled by direct recruitment to the <ORG>. Respondents no. 1 to 5 in both these appeals were appointed as Assistant Engineers in the <ORG> on the recommendation of <ORG> in the year 1961; and the appellants (in Civil Appeal No. 233 of 1978(respondents no. 6 to 23 in Civil Appeal No. 232 of 1978), who had been working as Overseers in <ORG> (<ORG>) were promoted to the posts of Assistant Engineers in the <ORG> in 1962 and thereafter. However, by orders dated 12.7.1975, 20.1.1976 and 9.4.1977, the <ORG> changed the date of promotion of the appellants to the dates prior to the appointment of respondents no. 1 to 5 in the <ORG>, making the former Senior to the letter. Respondents no. 1 to 5 filed writ petition before <ORG> challenging the seniority conferred on the appellants from the retrospective date and contended that the orders giving promotions to the appellants from a date earlier to date of their promotion in the <ORG> purported to affect prejudicially respondents no. 1 to 5's right inasmuch as they were appointed to the <ORG> earlier to the promotion of the appellants; and that the seniority had to be reckoned amongst the officials working as Assistant Engineers in the <ORG> from the date of their appointment or promotion to the said <ORG>. The appellants contended that they were entitled to be promoted retrospectively on the 411 basis of reservation of 25% of the Cadre posts in the <ORG> till 1958. <ORG>. holding that the orders promoting the appellants with retrospective effect were bad, quashed the same and allowed the writ petition. Hence the present appeals. On consideration of the legality and validity of the orders of the <ORG> giving promotions to the appellants from a date earlier to the date of their entry into the <ORG> as Assistant Engineers, and its effect on the inter- se seniority amongst the appellants and respondents no. 1 to 5, who were directly appointed as Assistant Enginers in the <ORG> before the appellants entered in the said <ORG>. Dismissing the appeals, this <ORG>, HELD: 1. The <ORG> Orders dated 12.7.1975, 20.1.1976 and 9.4.1977 which purported to give promotion to the appellants retrospectively were arbitrary, illegal and inoperative inasmuch as these seriously affected rspondents no. 1 to 5. The appellants were not borne in the cadre of Assistant Engineers even in officiating capacity at time when rspondents no. 1 to 5 were directly recruited to the post of Assistant Egineer. As such, the promotee appellants could not be under any circumstance given seniority over the directly recruited respondents no. 1 to 5. The judgment of <ORG> in quashing the impugned <ORG> Orders was, therefore, unexceptionable. [418F-H; 420A] 2.1 No person can be promoted with retrospective effect from a date when he was not borne in the Cadre so as to adversely affect others; and amongst members of the same grade, seniority is reckoned from the date of their initial entry into the service. [419F] 2.2 Seniority inter-se amongst the Assistant Engineers in Bihar Engineering <ORG>, Class II would be considered from the date of the length of service rendered as Assistant Engineers. Therefore, the appellants could not be made senior to respondents no. 1 to 5 by the impugned <ORG> Orders as they entered into the said <ORG> in 1962 and thereafter by promotion subsequent to respondent no. 1 to 5 who were directly recruited in the quota meant for them. There was nothing to show that the appellants could be deemed to be recruited in 1958 quota and that these vacancies were carried forward. [419G; 418E- <CITATION> .,  1 SCC 319, relied on. 412 <CITATION> .,  1 SCR 815 and <CITATION> ,  Supp. SCC 207, held inapplicable. <CITATION> .,  Supp. SCC 243, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 232-233 of 1978.

From the Judgment and Order dated 19.7.1977 of <ORG> in C.W.J.C. No. 756 of 1977.

<NAME>, <NAME>, <NAME>, Ms. <NAME>, Ms. <NAME>, Mrs. <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, Mrs. <NAME> and <NAME> for the appearing parties.

The Judgment of the Court was delievered by <NAME>, J. These two appeals were filed against the common judgment and order dated 29th July, 1978 made by <ORG> of <ORG> at Patna in C.W.J.C. No. 756 of 1977 whereby <ORG> quashed the orders of the government contained in Annexures 8, 9 and 10 to the writ petition. The facts unfurled from the writ petition are as follows:

The respondent Nos. 1 to 5 in these appeals (the petitioners in the writ petition) were directly appointed in <ORG> as Assistant Engineers of <ORG> on the recommendation of <ORG> and were posted in <ORG> in 1961. The respondent Nos. 6 to 23 in C.A. No. 232 of 1978 (who are appellants in C.A. No. 233 of 1978 and respondent Nos. 5 to 22 in the writ petition) were working at that time as overseers in <ORG> (<ORG>). On 7th April, 1958 the the Governor took a decision under rule 2 of the Public Works <ORG> Code that 25% of the posts in <ORG>, Class II shall be filled up by promotion, subject to availability of suitable hands. Thus, out of the total vacancies in <ORG>, Class II, 75% of the vacant posts as determined by the <ORG> will be filled up by direct recruitment and 25% of the vacant posts will be filled up by promotion subject to availability of suitable candidates. By notification dated 18th July, 1964/27th August, 1964, respondent Nos. 6 to 13 in C.A. No. 232 of 1978 (appellant Nos. 1 to 8 in C.A. No. 233 of 1978 and respondent Nos. 5 to 12 in the writ petition) who were members of <ORG> (Overseers) were promoted to the post of Assistant Engineer in Class II and by another notification dated 21st July, 1969, respondent Nos. 14 to 23 in C.A. No. 232 of 1978 (appellant Nos. 9 to 18 in C.A. No. 233 of 1978 and respondent Nos. 13 to 22 in the writ petition) were also promoted to <ORG>, Class II as Assistant Engineers. On February 25, 1969, a seniority list of Assistant Engineers was published by the <ORG> wherein the names of the respondent Nos. 1 to 5 (the petitioners) were mentioned at Sl. Nos. 170, 199, 208, 211 and 226 and the names of the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in writ petition) were mentioned at Sl. Nos. 253, 254, 256 to 262, 687 to 695 and 701 respectively The respondent Nos. 6 to 23 were thus shown as juniors to the respondent Nos. 1 to 5 (the petitioners). The respondent Nos. 6 to 23 feeling aggrieved by the said seniority list made representations claiming seniority over respondent Nos. 1 to

5. On 3rd May, 1972 the State of Bihar constituted a Committee known as <ORG> by a resolution to consider the inter se seniority of Civil Engineers including the Assistant Engineers. On April 19, 1973 the <ORG> submitted a report making certain recommendations. It was alleged that a revised seniority list was prepared wherein the respondent Nos. 1 to 5 were shown juniors to the respondent Nos. 6 to 23. This, of course, has been denied in affidavit-in-counter filed on behalf of the <ORG> (appellants in C.A. No. 232 of 1978, respondent Nos. 6 to 9 in C.A. 233 OF 1978, and respondent Nos. 1 to 4 in the writ petition). On 21st of July, 1975, an order was made whereby the date of promotion of respondent Nos. 6 to 13 was changed from 21st July, 1962 to 27th February, 1961 thereby making the respondent Nos. 1 to 5 juniors to respondent Nos. 6 to

13. This order is contained in annexure 8 to the writ petition. In other words, the respondent Nos. 6 to 13 were promoted retrospectively from the State against it but the State government instead of redressing their grievances made another order on January 20, 1976 (annexure 9 to the writ petition) re-fixing the seniority of respondent Nos. 6 & 7 promoting them to <ORG> with effect from December 19, 1958. Again, to the prejudice of the respondent Nos. 1 to 5, an order was passed by <ORG> by which the date of promotion of respondent Nos. 14 to 23 was pushed back to February 27, 1961 making them also senior to the respondent Nos. 1 to 5. This order is contained in annexure 10 to the writ petition.

The respondent Nos. 1 to 5, therefore, filed a writ petition in <ORG> at Patna being Civil Writ Petition No. 756 of 1977 challenging the seniority conferred on the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in the writ petition) by annexures 8, 9 and 10 on the ground that these orders were wholly arbitrary illegal, void and inoperative and ineffective and so prayed for appropriate writ for quashing those orders.

A counter-affidavit was filed on behalf of the State <ORG>. In Para 3(iii) of the said affidavit, it has been averred that till 1957, 25% of the vacancies in <ORG>, Class II, were being filled up by promotion from <ORG> (commonly known as `Overseers'). Subsequently, in the year 1958, it was decided that 25% of the cadre posts in the <ORG>, Class II Both permanent and temporary, shall be reserved for being filled up through promotion from the members of <ORG>. It has been further averred in para 3(iv) that all the posts of temporary Assistant Engineers to which the Overseers were entitled to be promoted on the basis of 25% reservation in the cadre were not filled up by promotion of Overseers, only 3 overseers were given promotion with effect from 19.12.1958 vide order No. A/P1- 409-64-1-14294 dated 18.7.64/27.8.64. In the said affidavit it has also been stated that on a careful examination of the matter it was found that on the basis of total number of posts of Assistant Engineers in the Department, the Overseers were entitled to 60 posts on the basis of 25% reservation till 1958, out of which they were already given 33 posts and 27 more posts of Assistant Engineers were still due to them and accordingly by an order dated 20th January, 1976 the 21 Overseers who had earlier been given promotion as temporary Assistant Engineers from later dates in 1960, 1961 and 1962 by the order dated 18.7.64/27.8.64. were given promotion, with effect from 19.12.1958. Due to this correction, respondent Nos. 6 and 7 and one Shri Mithileshwari Sahay (since retired) were promoted as temporary Assistant Engineers with effect from 19.12.1958 in partial modification of the <ORG> order dated 18.7.64/27.8.64 and another order dated July 12, 1975. It has been further stated that as a result of this modification in the dates of promotion as Assistant Engineer who by the order dated 20th January, 1976 were allowed promotion as temporary Assistant Engineers with effect from 19.12.1958 as against promotions from later dated in 1960, 1961 and 1962 given to them by earlier <ORG> Order dated 27.8.1964 and order dated 21.7.1969. It has also been stated that the respondent Nos. 6 and 7 were entitled to promotion in 1958 and respondent Nos. 8 to 23 to promotions in 1960 and 1961, on the basis of the reservation of 25% of the cadre post in <ORG>, Class II, for promotion of Overseers from <ORG>. It has been further averred that as against 21 consequential vacancies, the case of only 17 Overseers was modified accordingly in supersession of the earlier <ORG> order dated 18.7.64/27.8.64 and respondent Nos. 8 to 13 were given promotion as temporary Assistant Engineer with effect from 27.2.1961, from which date the promotion was due to them on the basis of the quota by a <ORG> Order No. 10501 (annexure 8 to the writ petition) dated July 12, 1975 and No. 17328 dated November 8, 1975 respectively. It has also been stated that the seniority list that was prepared and published in 1969 was tentative.

<ORG>, Patna held that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely effect others. The respondent Nos. 1 to 5 were recruited to the post of Assistant Engineer, Class II before the respondent Nos. 6 to 23 were promoted to the post of Assistant Engineer, Class II in <ORG>, Class II. <ORG>, therefore, held that the orders contained in Annexure (respondent Nos. 5 to 22 in the writ petition) with retrospective effect are bad and so quashed those <ORG> orders referred to in the said annexures.

Against this judgment and order made by <ORG>, the instant appeals on special leave were filed.

The sole question which falls for decision in these appeals is whether the inter-se seniority between the petitioners-respondent Nos. 1 to 5 who are direct recruits and the Overseers belonging to <ORG> (Irrigation Department) who had been promoted retrospectively in their 25% quota for the year 1958 as revised by the <ORG> orders mentioned in annexures 8, 9 and 10 to the writ petition, is arbitrary, illegal and inoperative as those orders purport to affect prejudicial the seniority of the petitioners-respondent Nos. 1 to 5 in the service of <ORG>, Class II. It is not disputed that in 1958 under Rule 2 of the Public Works Department Code, the <ORG> of Bihar took a decision to the effect that 25% of the posts in the <ORG>, Class II shall be filled up by promotion, subject to availability of suitable hands. It also appears from the counter-affidavit filed on behalf of the <ORG> that in 1958, the the total number of posts to be filled up by promotion from the Overseers in <ORG> (Irrigation Department) to the post of Assistant Engineer, in <ORG>, Class II was 60 out of which only 33 posts were filled up by promotion, leaving 27 more posts of Assistant Engineers to be filled up by promotion from the Overseers in <ORG> (Irrigation Department). It is also clear from the averments made in the said counter-affidavit that the petitioners-respondent Nos. 1 to 5 were appointed in <ORG>, Class II on the recommendation of <ORG> in the year 1961 and the respondent Nos. 6 to 13 who had been working in <ORG> (Irrigation Department) as Overseers and having independent charge of the sub-division were promoted to the post of Assistant Engineer, Class II by notification dated 18.7.64/27.8.64. The respondent Nos. 14 to 23 were also promoted by notification dated 21.7.1969. On the basis of these appointments and promotions in the post of Assistant Engineer in the <ORG>, Class II, a seniority list was prepared and published in february, 1969 tentatively wherein the petitioners- respondent Nos. 1 to 5 were shown as senior to respondent Nos. 6 to 23. However, the <ORG> by its order dated 21st July, 1962 changed the date of promotion of respondent Nos. 6 to 13 from 21.7.1962 to 27.21961 (Annexure 8 to the writ petition) thereby making the petitioners-respondent Nos. 1 to 5 junior to respondent Nos. 6 to 13. On January 20, 1976, the <ORG> passed another order re-fixing the seniority of respondent Nos. 5 & 6 promoting them to <ORG>, Class II with effect them 19.12.1958 (Annexure 9 to the writ petition). Again an order contained in Annexure 10 to the writ petition was passed by which the date of promotion of respondent Nos. 14 to 23 was pushed back to February 27, 1961, thus making them senior to the petitioners-respondent Nos. 1 to 5. The petitioners- respondent Nos. 1 to 5 challenged these three <ORG> orders mainly on the ground that these orders giving promotion to the respondent Nos. 6 to 23 from a date earlier to their date of promotion to the post of Assistant Engineer in <ORG>, Class II purport to affect prejudicially the rights of the petitioners-respondent Nos. 1 to 5 in as much as they were appointed to the post of Assistant Engineer in the <ORG>, Class II earlier to the promotion to the said post of the respondent Nos. 6 to 23. It has also been submitted in this connection that he seniority has to be reckoned amongst the officials working as Assistant Engineers in the <ORG>, Class II from the date of their appointment on promotion to the said Service. The petitioners-respondent Nos. 1 to 5 being appointed earlier directly in the quota of direct recruits than the promoted respondents who were promoted later cannot be given seniority in service to the petitioners-respondent Nos. 1 to 5 and it was contended that the impugned orders are wholly illegal and unwarranted and so <ORG> has rightly quashed the said orders. It has been further urged in this connection that the <ORG> can promote its employees with retrospective effect provided such retrospective promotion does not affect the right and seniority already earned by others. The petitioners-respondent Nos. 1 to 5 who were senior to the petitioners-respondents Nos. 6 to 23 were made junior to them by the said <ORG> orders as contained in Annexure 8, 9 and 10 to the writ petition. It has, therefore, been contended that the promotion to the respondent Nos. 6 to 23 was illegal and arbitrary as the same had prejudicially affected the petitioners-respondent Nos. 1 to 5 in regard to their seniority.

<ORG> while rendering its judgment relied on the decision in the case of <CITATION> .,  1 SCC 319 specially on the observation made therein as under:

"Once the Assistant Engineers are regularly appointed to officiate as Executive Engineers within their quota they will be entitled to consideration in their own rights as Class I Officers to further promotions. Their "birth marks" in their earlier service will be of no relevance once they are regularly officiating in the grade of Executive Engineer within their quota." <ORG> held that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others.

It is the admitted position that the respondent Nos. 6 to 23 were working as Overseers in <ORG> and were promoted to the post of Assistant Engineer in <ORG>, Class II much after the petitioners-respondents Nos. 1 to 5 were directly recruited and appointed on the basis of the recommendation of <ORG>, to the post of Assistant Engineers in 1961 and as such they have been working in the grade of Assistant Engineers much before the respondent Nos. 6 to 23. Undoubtedly, on the basis of the order of the Governor in 1958, the posts of Assistant Engineers are to be filled up from two sources i.e. by direct recruitment as well as by promotion from Overseers working in <ORG> and the ratio of the vacan-

cies to be filled up has been fixed as 75% from the direct recruits and 25% from the promotees. It has been urged on behalf of the respondent Nos. 6 to 23 that in view of the quota rule the respondent Nos. 6 to 23 who were promoted in the quota set out for promotees in respect of the vacancies of 1958 shall be taken to be promoted in 1958 notwithstanding that they have been actually promoted long after 1958 and after the direct recruits i.e. respondent Nos. 1 to 5 were recruited directly to the post of Assistant Engineers. In other words even though the respondent Nos. 6 to 23 have been promoted after the date of recruitment of respondent Nos. 1 to 5 to the post of Assistant Engineer, still then the promote respondent Nos. 6 to 23 should be deemed to be senior to the direct recruit respondent Nos. 1 to 5 as they were promoted in the vacancies for 1958 quota set up for promotees. In support of this submission the decision in V.B. Badami etc. v. State of Mysore and Ors., [1976] 1 SCR 815 as well as <NAME> v. State of Kanataka, [1987] Supp. SCC 207 were cited at the bar. In both these cases the promotees occupied the quota of direct recruits as direct recruits were not available to fill up the quota meant for them. It was held that direct recruits who were appointed within their quota subsequently were entitled to the vacancies within their quota which had not been filled up and they would become senior to the promotees The promotees would be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota of those years. The promotees cannot claim any right to hold promotional posts unless the vacancies fall within their quota. These cases have no application in the instant case in as much as the direct recruits i.e. respondent Nos. 1 to 5 were recruited in their quota i.e. the quota meant for them. This being so, the decision in these two cases has no application to the instant case. Moreover, there is nothing to show that the respondent Nos. 6 to 23 who were promoted in 1962 and thereafter i.e. subsequent to the direct recruits i.e. respondent Nos. 1 to 5 could be deemed to be recruited in 1958 quota as there was nothing to show that these vacancies were carried forward.

The <ORG>'s orders as contained in annexures 8, 9 and 10 which purport to give promotion to the respondent Nos. 6 to 23 retrospectively are arbitrary, illegal and inoperative in as much as these seriously affect the respondent Nos. 1 to 5. The respondent Nos. 6 to 23 were not in the cadre of Assistant Engineers even in officiating capacity at the time when the respondent Nos. 1 to 5 were directly recruited to the post of Assistant Engineer. As such, the said promotee respondent Nos. 6 to 23 could not be under any circumstances, given seniority over the directly recruited respondent Nos. 1 to 5. <ORG> has rightly quoted the observation made by this Court in the case of <ORG> (supra) as mentioned in the preceding paragraphs.

It is pertinent to mention in this connection, the observation of this Court in the case of <CITATION> .,  Supp. SCC 243. In this case the petitioners were confirmed as Assistant Medical Officers in 1962 and 1963 and they were placed in the higher scale of Assistant Divisional Medical Officers to <ORG> with effect from January 1, 1973. Thereafter they were appointed as officiating Divisional Medical Officers in 1972, 1973 and 1974 and they had been continuing there uninterrupted. Respondent Nos. 4 to 64 were given substantive appointments as Divisional Medical Officers later on but they were confirmed earlier than the petitioners because of the zone-wise confirmation given by <ORG>. It was held that the petitioners should be considered at par for the purpose of fixing seniority, with those appointed to permanent posts in a substantive capacity. For the purpose of determining seniority among promotees, the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointment and the "entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts."

In the instant case, the promotee respondent Nos. 6 to 23 were not born in the cadre of Assistant Engineer in <ORG>, Class II at the time when the respondent Nos. 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over the respondent Nos. 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter-se amongst the Assistant Engineers in <ORG>, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law the respondent Nos. 6 to 23 can not be made senior to the respondent Nos. 1 to 5 by the impugned <ORG> orders as they entered into the said Service by promotion after the respondent Nos. 1 to 5 were directly recruited in the quota of direct recruits. The judgment of <ORG> quashing the impugned <ORG> orders made in annexures, 8, 9 and 10 is unexceptionable.

In the premises aforesaid, we confirm the judgment and order rendered by <ORG>. The appeals are, therefore, dismissed. In the facts and circumstances of the case, there will be no order as to costs.

R.P. Appeals dismissed.


JUDGMENT <NAME>, J.

1. This is an appeal from the judgment of Mr. Justice <NAME>. On June 26, 1942, the defendants sold to the plaintiffs 33 bales of piecegoods or 36 bales, three bales more according to the option of the defendants. In all delivery was given of 22 bales between July 3, and August 21, 1942. The defendants, according to the plaintiffs, failed to give delivery of the remaining 11 bales, and the plaintiffs have fled this suit for damages for non-delivery of the 11 bales. Mr. Justice <NAME> who tried the suit held that the defendants had committed a breach of the contract and that they had failed to give delivery of the 11 bales; and he referred the suit to the Commissioner to assess the damages on the basis that the breach had taken place on November 12, 1942, and that damages should be assessed at the difference between the market rate prevailing on that date and the contract rate. The plaintiffs' case was that they had made various demands for delivery. They proved two oral demands in October, 1942, and they also proved that a tender was made for the remaining eleven bales on November 12, 1942, which tender was refused by the defendants. On this evidence the learned Judge came to the conclusion that the contract had been broken on November 12, 1942.

2. In this appeal the first question that arises is whether there was any breach of the contract on the part of the defendants. Under Section 35 of the Indian Sale of Goods Act, 1930, it is obligatory upon the buyer to apply for delivery and the seller is not bound to deliver the goods unless there is an application for delivery on the part of the buyer. Mr. <NAME> has contended that in this case there was no application for delivery by the buyer within reasonable time and, therefore, there was no breach on the part of the seller as the seller was not bound to deliver the remaining 11 bales.

3. The terms of the contract have been reduced to writing; and we may point out, with respect to the learned Judge below, that he has fallen into error in admitting parole evidence with regard to negotiations antecedent to the contract and also with regard to the subsequent conduct of the parties. Once the parties reduce the terms of their contract into writing, the <ORG> can only look at the writing alone in order to construe what the terms of the contract were. It is hardly necessary to say that what the terms of the contract between the parties were cannot be ascertained by allowing parole evidence as to what transpired antecedent to the contract or what the parties did -subsequent to the contract. Now on the construction of the contract two points have been placed before us; and as far as we can see, whatever view we may take as to the construction does not materially affect the question that we have got to decide. The contract sets out various particulars in different columns. It first mentions the number of bales and then the quality of the bales; and then under the heading "Delivery" it mentions various places, Indore, Ujjaa and Bombay; and then the prices of various bales are mentioned. At the foot of the contract appears:

Mill Delivery, Shipment Ready, Less 3/4% per cent discount and Re. 1 per bale, Railway Receipt through Bank.

Now Mr. <NAME> has contended that on a true construction of, this contract the goods were to be delivered at the various places mentioned in the contract at the mills. Mr. <NAME> argues that the column "Delivery" makes it clear that the place of delivery was the different places mentioned under that column and delivery is further localised by stating; that not only is it to be at the particular place but at the mill itself. On the other hand, Sir <NAME> contends that when you look at all the particulars of the contract carefully, it is clear that the place of delivery of the goods was at Calcutta. Sir <NAME> particularly emphasizes the expression "Shipment Ready" in the contract. It is common ground that the goods that were sold were not forward goods but ready goods. But the expression "Shipment" has to be carefully noticed because, if the buyer had to take delivery at the various places mentioned in the contract, there was no need to state in the contract the expression "Shipment". "Shipment" is not used in its proper etymological sense, but it can only mean in this case "despatch" or "rail" and the contract undoubtedly casts an obligation upon the seller to despatch or rail the goods. Further it is to be noted that payment is to be made by the buyer through a bank when he obtains the railway receipt. If the obligation was upon the buyer's take delivery at the various places mentioned in the contract, it is difficult to understand how lie could pay for these goods against railway receipts through a bank in Calcutta. The various places mentioned under the column "Delivery", coupled with the phrase "Mill Delivery", seem to indicate that the prices fixed are ex-mill and that the buyer is liable to pay for extra charges incurred for despatching the goods from the various places to Calcutta. "We do not agree with Mr. <NAME> that the expression R/R through bank merely deals with the mode of payment. This provision has got to be taken into consideration with all the other provisions in the contract in order to arrive at a true conclusion as to whether under the contract goods were to be delivered at Calcutta or at the various places mentioned in the contract. We therefore agree with the learned Judge who took the view that under the contract the delivery of the goods had to be made at Calcutta.

4. Now on the question whether the buyer made an application for delivery not not, there is evidence on the record which has been accepted by the learned Judge. <NAME>, the munim of the plaintiff, gave evidence and he stated that the contract was reduced to writing at Calcutta and duly signed and after the contract was signed, he told the representative of the defendants that he had bought ready goods and therefore early delivery should be given of these goods and the representative of the defendants agreed that a quick and early delivery would be given; and further on, in cross-examination., he repeated practically the same evidence by saying that he, demanded that as the contract was for ready goods they should be delivered immediately and the defendants' representative said that they would be so delivered as and when the railway waggons were made available. Mr. <NAME> has made a grievance of the fact that in the plaint the fact that an application for delivery was made on June 26, 1942, has not been clearly set out. It is true that when a buyer sues a seller for damages for non-delivery, application for delivery on his part is a part of the cause of action and must be explicitly stated, but when we turn to paragraph 3 of the plaint, we do find an averment that the defendants had failed to give delivery of the remaining goods in spite of the repeated requests made in that behalf by the plaintiffs, in our opinion this averment, although perhaps not as specific as one might have desired, is sufficiently clear to cover the application for delivery relied upon by the plaintiff's at the trial on the date on which the contract was made, namely June 26, 1942.

5. We might point out that we do not agree with the contention of Sir <NAME> that when goods which are to be delivered are ready goods, no application for delivery is necessary on the part of the buyer tinder Section 35 of the Indian Sale of Goods Act. Section 35 makes 110 distinction between the sale of ready goods and of forward goods; and <ORG> in <CITATION> (1935) 37 Bom. L.R. 538, P.C. has laid down that the buyer can only be relieved from his statutory obligation to apply for delivery by an express stipulation to the contrary.

6. Assuming that there was an application for delivery on the part of the buyer on June 26, 1942, it is not disputed that the defendants failed to make delivery of the eleven bales and thereby committed a breach of the contract. What we have next to consider is: what is the date of the breach of the contract? and what is the due date on which the contract should have been performed ? Now under this contract, as I have pointed out, no time is fixed for delivery of the goods sold; and under Section 36 , Sub-clause (2), of the Indian Sale of Goods Act , where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. Therefore the law implies a reasonable time within which the contract is to be performed when the contract itself is silent as to the time of performance. In our opinion once a reasonable time is implied within the meaning of Section 36 , Sub-clause (2)3 the contract becomes a contract to be performed at, a fixed time as much as if the parties themselves have fixed a specific time. In the one case it is the act of parties which determines the time when the contract is to be performed; in the other case it is by implication of law that the time is determined.

7. In this case Sir <NAME> has relied on the fact that although the contract was arrived at on June 26, 1942, 22 bales were delivered between -July 3, and August 21, 1942. Nothing happened in September and, as I have pointed out, there were oral demands in October, 1942; and finally a tender for a sum of Rs. 7,300 to cover the delivery of the remaining bales was made on November 12, 1942. Sir <NAME> has argued that the contract must be deemed to be alive till November 12, 1942, and the breach took place when there was a final refusal to perform the contract on November 12, 1942. Now in <CITATION> (1945) 47 Bom. L.R. 719, we very recently held that a party to the contract cannot extend the time for the performance of the contract by a unilateral act and that there must be an agreement to extend the time. Now in this case no agreement to extend the time is either pleaded or attempted to be proved. It is true that in. that particular case the time for delivery was fixed; but I see no reason in principle to distinguish between a contract where the time for delivery is fixed and a contract where the time for delivery is, not fixed. If the time for the performance of a contract or the time for delivery is fixed, it cannot be extended by the unilateral act of a party.

8. Equally so time cannot be extended in the case of a contract where the law implies a reasonable time for the performance of the contract. In the first case, when the fixed time has expired there would be a breach; in the latter case, when the reasonable time implied by the law has expired, equally so there would be a breach unless either in the one or in the other case there is an agreement between the parties to extend the time for the performance of the contract. Sir <NAME> has contended that there is a distinction in law between a contract where the time for delivery is fixed and a contract where such a time is not fixed and, according to Sir <NAME>, the latter contract does not come; to an end by efflux of reasonable time implied by the law, but there must be-a definite refusal on the part of one of the parties to perform the contract. It is only then that there is a breach of the contract. In this case, according to Sir <NAME>, both the parties to the contract considered the contract to be alive till November 12, 1942, and it was only on November 12 that the seller definitely refused to perform the contract and therefore, according to-Sir <NAME>, the breach took place on November 12, 1942. In support of this contention Sir <NAME> has relied on two English cases. The first is <NAME> v. <NAME> and <NAME> [1920] 1 K. B. 693. This is the judgment of Mr. Justice <NAME>. Now, in the first place, it is to be noted that the observations of Mr. Justice <NAME>, although deserving of the greatest respect, are on the facts of that case purely obiter. Mr. Justice <NAME> was dealing with a ease of a contract where the time for delivery was fixed; but he did observe (p. 696):

If there is no fixed time the measure is the difference between the contract price and the market price at the time of refusal to deliver.

It is also to be noted that these observations of the learned Judge were based on the clear language of Section 51 , Sub-clause (3), of the English Sale-of Goods Act , 1898, which provided:

Where there is an available market for the goods in question the measure of damages is prima fade to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.

It is to be noted that our Sale of Goods Act has no section which corresponds, to Section 51 , Sub-clause (3), of the English Act . Even so, notwithstanding the clear language of Section 51 , Sub-clause (3), of the English Sale of Goods Act , 1893, <ORG> in England in <NAME> v. <ORG>  2 K. B. 369 doubted the correctness of the opinion expressed by Mr. Justice <NAME> in <NAME> v. <NAME> and <NAME>  1 K. B. 693. Lord Justice <NAME> actually went to the length of saying, contrary to the view expressed by Mr. Justice <NAME>, (p. 378) :

It is difficult to see why it should be said that that the contract for delivery at times which can be determined by a jury is not a contract for delivery at fixed times. It seems to me that a meaning could be given to the words, 'if no time was fixed,' by reading them as referring to a contract such as to deliver goods on demand or to deliver goods as required by the purchaser. It might well be argued that that would give a meaning to the words in question.

Therefore the view that Lord Justice <NAME> took was that under the English section when a reasonable time is implied by the law, the contract becomes a contract where the time for delivery is fixed. Sir <NAME> in his wellknown text-book on the Sale of Goods Act has expressed the opinion, after setting out the provisions of Sections 50 and 51 of the English Sale of Goods Act, that Section 73 of the Indian Contract Act and the illustrations thereto, though the language is slightly different, are declaratory of the common law and in substance the same as Sections 50 and 51 of the English Sale of Goods Act. Now with great respect to the learned author, when we turn to Section 73 of the Indian Contract Act, there is nothing in the language of the section corresponding to Section 50 (3) or Section 51(3) of the English Sale of Goods Act, and even the illustrations to that section, which, as is well known, cannot possibly control the language of the section itself but merely afford a guide to the construction, do not in our opinion carry the matter any further. Illustrations (e) and (d) to Section 73 of the Indian Contract Act, which are relied upon, really do not deal with the question of reasonable time at all. Illustration (e) is a case of anticipatory breach and it is not clear from the illustration whether the breach took place within the reasonable time or not. Illustration (d) also does not indicate whether the promise was broken within the reasonable time or not. Even assuming that a refusal on the part of the seller to perform was necessary in a contract like this, which was a contract to be performed within a reasonable time, it is clear on the evidence that after the application for delivery was made on June 26, 1942, admittedly there was a failure to give delivery to the extent of 11 bales and, therefore, there was a failure to perform the contract which must be taken to mean the same thing as refusal to perform the contract. I fail to see why any more explicit refusal is necessary than a refusal to comply with the application for delivery made on the part of the buyer. But in our opinion there is no difference in law between a contract where the time is fixed by the act of the parties and a contract where no time is fixed and by implication of the law the contract is to be performed within a reasonable time. (If that be so, after the plaintiffs had made the application for delivery on June 26, 1942, the breach of the contract took place within a reasonable time of June 26. Now what is a reasonable time is a question of fact and in England it would be determined by the jury. Unfortunately the learned Judge did not apply his mind to this aspect of the case and, therefore, we have received no help or guidance from his judgment on this point. But fortunately there is sufficient evidence on record from which we can come to the conclusion as to what a reasonable time for the performance of this contract should be. "Reasonable time" must in each case depend upon the particular circumstances, the nature of the commodity, the question of transport, the times during which the contract was entered into and so on. It is in evidence that the first consignment of 2 bales was despatched on July 1, 1942, and reached Calcutta on July 8, 1942, which is within twelve days of the entering into the contract. There is no suggestion that if the seller was so minded, all the bales could not have been despatched at the same. time. The evidence shows that both the parties relied on the fact that the sale was of ready goods and they should be despatched as early as possible. Taking all the evidence into consideration, we are of the opinion that reasonable time in this case would be a fortnight after June 26, 1942.

9. We might point out that in a Bombay case, which was also a case for the sale of piecegoods, Mr. Justice <NAME> considered one week as a reasonable time for delivery of the goods. That case is <CITATION> (1921) 24 Bom. L.R. 140. The case is also instructive from another point of view. In that ease the contract was for delivery of seventy-five sales for ready and twenty-five bales for September delivery. Forty-eight bales were delivered between September 17, 1920, and October 21, 1920; and although the delivery of these forty-eight bales extended right up to October 21, 1920, still Mr. Justice <NAME> held that the date of breach was eight days after September 13, 1920, with regard to the contract for the sale of ready goods. The learned Judge said that the forty-eight bales which were delivered must be appropriated to the ready contract; and with regard to the balance, he awarded damages on the basis that the breach had taken place within a week of September 13, 1920. In this case also although the delivery of 22 bales had taken place from July 3, 1942, to August 21, 1942, these deliveries to 'the extent that they are after a fortnight from the date of the contract, namely, June 26, 1942, cannot be referable to this contract. As pointed out by Mr. Justice <NAME> in a case reported in the same volume- <CITATION> deliveries are referable to a separate transaction and not to the contract in suit.

10. Therefore we hold that there was a breach on the part of the defendants, that the due date of the performance of the contract was July- 10, 1942 and that the damages must be assessed on the basis of the date of breach being July 10, 1942.

11. We will, therefore, vary the decree of the learned Judge below by substituting the date July 10, 1942, for November 12, 1942, as the date on which the breach took place. The learned Judge's order with regard to the reference to the Commissioner will stand.

12. The learned Judge has awarded to the plaintiffs the costs of the suit, Mr. <NAME> contends that if the date of the breach was July 10, 1942, then no damages would be found in favour of the plaintiffs. If he is right, then inasmuch as no decree would be passed in favour of the plaintiffs, the plaintiffs would not be entitled to the costs of the suit. Therefore, in our opinion, the proper order with regard to the costs of the suit would be that the costs of the suit and further directions should be reserved till the Commissioner has made his report.

13. The appellants came to this <ORG> contending, in the first place, that there was no breach and, secondly, that the learned Judge was wrong in fixing November 12, 1942 as the date of the breach. They have failed on the first and succeeded on the second.

14. Under the circumstances we think the proper order to make with regard to the costs of this appeal is that each party should bear their own costs.