Input:
ivil Appeal Nos.
400 401 of 1984 From the Judgment and Order dated 15 7.1983 of the Calcutta High Court in C.R. No. 7979 (W) Of 1981.
M.K. Ramamurthi, B. Datta, Rishi Kesh, Badri Prasad and Pudisserry for the Appellants.
S.N. Kacker, H.K. Puri, D.N. Mukharjee, J.R. Das and D.R. Sinha for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The wars of the Roses go on.
How else is one to describe the perpetual battles waged between the 'direct recruits ' and the 'promotees ' ? This time the front is the Calcutta Police, the posts are those of Sub Inspectors of Police and the question is the same old one of seniority.
Petitioners 1 and 2, who joined the Calcutta Police as Constables in November 1947 were first promoted as Assistant Sub Inspectors of Police and later, on August 6, 1951, as officiating Sub Inspector of Police.
They were confirmed as Sub Inspectors of Police on January 1, 1975.
In the meanwhile, a large number of persons were directly recruited as Sub Inspectors of Police and also confirmed as such, All of them are now ranked above the petitioners in the seniority list, and the petitioners, therefore, have a natural grievance.
They claim that as laid down by a series of decisions of this court, their seniority must be reckoned from the date of their continuous officiation as Sub Inspectors of Police.
Petitioner No.3, we may mention, was promoted as officiating Sub Inspector of Police on September 6, 1975, but the precise date of his confirmation is not available from the record.
Apart from the claim to seniority, 917 the petitioners also alleged that they were never considered for promotion to the next higher post of Inspector of Police because of their delayed confirmation and because of the insistence of the Rules that they should be confirmed as Sub Inspectors of Police before they could be considered for promotion to the post of Inspector of Police.
they want the offending rule to be quashed.
Other reliefs were claimed in the writ petition filed by them in the High Court, but we are not now concerned in this appeal with those other reliefs.
While the State of West Bengal appeared to support the claim of the appellants to seniority on the basis of continuous officiation, the direct recruits contested the writ petition in the High Court.
The High Court refused to recognise the claim of the appellants to seniority from the dates of their continuous officiation on the ground that their promotion as officiating Sub Inspectors of Police could only be considered as promotion to posts outside the cadre.
The High Court held that their seniority could only be reckoned from the date of their confirmation.
The High Court further held that the rule prescribing confirmation as Sub Inspector as a condition precedent for promotion to the post of Inspector of Police was not invalid.
The 'promotee ' Sub Inspectors have preferred this appeal by special leave of the court under article 136 of the Constitution.
It is necessary now to refer to the various recruitment and seniority rules made from time to time under the powers conferred by the statute.
Rule 2(b) of the Recruitment Rules for the Subordinate Ranks of the Calcutta Police, 1936 provided that twenty five per cent of the vacancies shall be filled by promotion of Assistant Sub Inspectors and Sergeants and the rest by direct recruitment.
Rule 2(f) prescribed the qualification for outside candidates meaning thereby direct recruits.
What is important to be noted is that they were required to be Graduates of a University.
Rule 2(g) prescribed the qualifications for departmental candidates and it is necessary to extract the whole of it, which is as follows: "(g) Qualifications for departmental candidates On the first of June, nominations shall be called for from all District Officers of Assistant Sub Inspectors and Sergeants fit for promotion to the rank of Sub Inspectors.
Nominees shall have had at least 3 years ' service as Ser 918 geant or Assistant Sub Inspector, be less than 40 years of age and normally have passed one of the following examination.
(1) Matriculation or the Indian Army Special Certificate of Education, (2) Junior Cambridge, (3) First Class Army Certificate, or have, in the opinion of the Selection Board, other wise attained a satisfactory educational standard.
They shall sit in a preliminary departmental test examination at the Calcutta Police Training School.
The names of all nominees who pass that examination shall be submitted to the Selection Board.
The candidates shall have (i) a good record of service, and (ii) a good social position; The Judge of this should be the Selection Board.
Note On passing out of the Calcutta Police Training School officers shall remain on probation prior to confirmation.
Rule 2 (j) which applied both to outside and departmental candidates was as follows: "(j) Qualified Candidates shall be summoned before a Selection Board consisting of the Commissioner of Police, the Deputy Commissioner of Police, Head quarters. ' a District Deputy Commissioner, and an Assistant Commissioner of Police.
The Selection Board shall make the final selections for appointment.
" The Probation Rules for the Subordinate Ranks of the Calcutta Police, 1936 prescribed that for Sub Inspectors, the period of probation of a person directly recruited or of an officer who was 919 promoted from a lower rank shall be two years counting from the date of his joining the Calcutta Police Training School.
While Rule 2 sub rule 3 provided that persons directly recruited shall draw the minimum pay in the time scale of Sub Inspectors through the period of their probation.
Rule 2 sub rule 4 provided that promoted officers shall draw the minimum pay in the time scale of Sub Inspectors, subject to the condition that they shall count towards increment, officiating and temporary service in that rank rendered prior to their appointment as probationers and also their probationary period or any part thereof and draw increment that may fall due to them during the period of their probation.
It was further stipulated that a probationer shall be confirmed on the termination of his probationary period unless the Deputy Commissioner in charge of a District shall during the period of probation make an order extending this period of probation or discharging him from service or reverting him to his substantive rank.
An order of extension of probation was not to extend beyond one year, except with the sanction of the Commissioner of Police.
By an order dated December 16, 1940, it was provided that when determining the relative seniority of probationary Sub Inspectors in the Calcutta Police, the following principles were to be observed: "(1) Departmentally appointed Sub Inspectors will be senior to direct recruits of the same year and will be graded inter se according to the date of their confirmation in the rank of Assistant Sub Inspector.
(2) The seniority of directly recruited Sub Inspectors will be in accordance with their position In the final examination at the Police Training School." In supersession of this order, a further order was issued on December 14, 1960 laying down the principles to be followed in determining the relative seniority of probationary Sub Inspectors of the Calcutta Police.
The principles were as follows: "(1) The seniority of departmentally promoted and directly recruited Sub Inspectors will be determined in accor 920 dance with the dates of their probationary appointment in the rank.
(2) Where a departmentally promoted Sub Inspector and a directly recruited Sub Inspector are appointed on probation with effect from the same date, the depart mental officer will be senior to the direct recruit, provided they undergo training at the Police Training College the same year.
(3) The seniority of the directly recruited Sub Inspectors will be in order of their position in the final examination held at the Police Training College and that of the departmentally promoted officers be in accordance with their position in the approved list of officiating Sub Inspectors, fit for confirmation in the rank of Sub Inspector.
" In 1962, the Calcutta and Suburban Police (subordinate ranks recruitment, conditions of service and discipline) Rules were made.
Schedule I prescribed the method of recruitment, qualifications for appointment including age and conditions of service.
Paragraph 2 of the Schedule dealt with Sub Inspectors not belonging to the Armed Branch and to the extent it is relevant, is extracted below: "Sub Inspectors not belonging to the Armed Branch 2.
(1) Method of recruitment: Recruitment in the rank of Sub Inspector shall be made each year in the month of January.
Twenty five per cent of the vacancies shall be filled by promotion of Assistant Sub Inspectors and the remaining vacancies shall be filled by direct recruitment.
(2) For filling up vacancies by promotions candidates shall be selected on the basis of merit only.
(3) (a) For filling up vacancies by direct recruitment applications from outsiders shall be invited through the Press in the 1st week of August. . . 921 (b). . . . . . (c). . . . . (4) Qualifications for outside candidates The candidates shall (i) be graduates of one of the lndian universities; (ii) . . (iii) . . (iv) . . (V) . . . (5) Qualifications for departmental candidates On the first day of June every year nominations shall be called for from all Deputy Commissioners of Assistant Sub Inspectors fit for promotion to the rank of Sub Inspector.
Nominees shall have had at least 3 years of service as Assistant Sub Inspector, be less than 40 years of age and normally have passed one of the following examinations: (a) Matriculation, School Final or Higher Secondary Examination or the Indian Army Special Certificate of Education Examination: (b) Junior Cambridge Examination; (c) First class Army Certificate Examination; or have, in the opinion of the Selection Board referred to insub rule (7), otherwise attained a satisfactory educational standard.
They shall be required to sit in a preliminary departmental test examination.
The names of all nominees who pass that examination shall be submitted to the said Selection Board.
The candidates shall have in the the opinion of the said Selection Board a good record of service, 922 Note Selected candidates shall have to undergo a course of training in the Police Training College.
On passing out of the Police Training College, officers shall remain on probation prior to confirmation.
(6) . . (7) Qualified candidates shall be summoned before a Selection Board consisting of the Deputy Commissioner, Headquarters, a Divisional Deputy Commissioner and an Assistant Commissioner of Police.
Appointment shall be made of candidates included in an approved list of candidates prepared on the recommendation of the Selection Board.
(8) . .
Paragraph 19 of Schedule I deals with the probation of Sub Inspectors and to the extent necessary it is extracted below: "Sub InsPectors 19. 1) The period of probation of a person directly recruited as a Sub Inspector shall be two years counting from the date of leaving the Police Training College and that of an officer promoted as a Sub Inspector from a lower rank shall be one year counting from the date of joining the Police Training College on such promotion.
(2) . . (3) Promoted Sub lnspectors shall draw the grade pay in the time scale of Sub Inspectors, subject to the condition that they shall count towards increment officiating and temporary service in that rank rendered prior to their appointment as probationers and also their probationary period or any part thereof and draw increment that may fall due to them during the period of their probation.
A probationer Sub lnspector shall be confirmed on the completion of his probationary period unless the Deputy Commissioner, Headquarters, shall make an order extending his period of probation or discharging him from service 923 or reverting him to his substantive rank.
Any order for such extension of the probationary period or reversion or discharge shall indicate grounds on which the order is made.
Such an order of extension shall not ordinarily extend the period of probition beyond one year.
For extension for any Period beyond one year, the sanction of the Commissioner shall be obtained.
(4) (a) The training period of promoted Sub Inspectors shall be one year, of which the first six months shall be spent in the Police Training College.
The training period of direct recruits as Sub Inspectors shall be two years of which one year shall be spent in the Police Training College.
(b) The initial pay of direct recruits as Sub Inspectors when posted to the Police Training College shall be Rs. 200 per mensem, the minimum of the time scale of pay of Sub Inspectors.
(csuch part of the training period of direct recruits as Sub Inspectors as is spent in the Police Training College, namely, one year, shall be exclusive of the probationary period and count towards increment of pay.
(d) The training period of promoted Sub Inspectors shall count towards increment of pay." In 1967, the Police Regulations, Calcutta were framed under section 3 of the Calcutta Suburban Police Act, 1866 and section 9 of the Calcutta Police Act.
Chapter XV dealt with method of recruitment, qualifications for appointment including age and conditions of service.
Paragraph 3 of Chapter XV dealt with Subspectors not belonging to the Armed Branch.
To the extent necessary, paragraph 3 is extracted again: "3.
Sub Inspectors not belonging to the Armed Branch: (1) Method of recruitment Recruitment in the rank of Sub lnspector shall be made each year in the month of January.
One third of the vacancies shall be filled 924 by promotion of Assistant Sub Inspectors, and the remaining vacancies shall be filled by direct recruitment.
(2) For filling up vacancies by promotion candidates shall be selected on the basis of merit with due regard to seniority, (3)(a) . . (b) . . (c) . . (4) Qualifications for candidates for direct recruitment The candidates shall (i). . (ii) be graduates of one of the Indian Universities.
(iii) . . (iv) . . (v) . . (vi) . . (5) Qualified candidates shall be required to appear for an interview before a Selection Board consisting of the Deputy Commissioner, Headquarters, and two other Deputy Commissioners nominated by the Commissioner.
Appointment shall be made of candidates included in an approved list of candidates prepared on the recommendation of the Selection Board.
(6) . . (7) Qualifications for departmental candidates Nominations shall be called for as and when necessary from all Deputy Commissioners of all Assistant Sub Inspec.
925 tors fit for promotion to the rank of Sub Inspector.
A Nominees shall have had at least three years of service as Assistant Sub Inspector and normally have passed one of the following examinations: (a) Matriculation, School Final or Higher Secondary Examination or the Indian Army Special Certificate of Education Examination, (b) Junior Cambridge Examination; (c) First Class Army Certificate Examination; or have, in the opinion of the Selection Board, referred to in Sub rule (8) below otherwise attained a satisfactory educational standard.
They shall be required to sit in a departmental examination the procedure and syllabus for which shall be such as may be determined by the Commissioner.
(8) The names of all nominees who pass that examination shall be submitted to the Selection Board.
The candidates shall have in the opinion of the Selection Board, good records of service.
The S election Board shall consist of Deputy Commissioner, Headquarters, and two other Deputy Commissioners nominated by the Com missioner.
(9) Candidates must have passed the departmental exami nation completely before they are interviewed by the Selection Board.
Candidate shall be eligible for the examination referred to above after they are confirmed in the rank of Assistant Sub Inspector.
Selected candidate (both direct recruits and departmental) shall have to undergo a course of training in the Police Training College.
(10) An officiating Sub Inspector having completed two years ' continuous service in the rank and on completion of the required course of training shall be eligible 926 for appearing before the Selection Board concerned for inclusion of his name in the panel of officiating Sub Inspector fit for confirmation in the rank of Sub Inspector.
" Paragraph 46 may also be extracted here: (1) The period of probation of a person directly recruited as a Sub lnspector or a Sub lnspectoress shall be two years counting from the date of leaving the Police Training College or School, as the case may be, and that of an officer promoted as a Sub Inspector or Sub lnspectoress from the lover rank shall be one year counting from the date of his or her appointment on probation.
Such part of the training period of direct recruit as Sub Inspectors or Sub Inspectoress as is spent in the Police Training College or School, namely, one year, shall be exclusive of the probation any period and count towards increment of pay.
(2) . . . (3) Promoted Sub Inspectors including Sub Inspectoresses shall draw the grade pay in the time scale of Sub Inspectors, subject to the condition that officiating and temporary service in that rank rendered prior to their appointment as probationers and also their probationary period or any part thereof shall counttowards increment and they shall draw increment that may fall due to them during the period of their probation.
A probationary Sub Inspector or Sub Inspectoress shall be confirmed on the completion of his or her pro bationary period unless the Deputy Commissioner, Head quarters, shall make an order extending his or her period of probation or discharging him or her from service or in the case of a promoted Sub Inspector or Sub lnspectoress reverted him or her to his or her substantive rank.
Any order for such extension of the probationary period or reversion or discharge shall indicate grounds on which the order is made.
Such an order of extension shall not exceed the period 927 of probation beyond one year in the case of a direct recruit and six months in the case of a promotee.
For extension of any period beyond one year or six months, as the case may be, sanction of Government shall be obtained.
" In 1981 the West Bengal Services (Determination of Seniority) Rules were made and it is not disputed before us that these rules are applicable to the Calcutta Police.
Rule 3 (iv) defines "post"," cadre" or "grade" as meaning any post, cadre or grade in connection with the affairs of the State of West Bengal.
Rule 3 (vi) says, "date of Joining" shall be reckoned from the date of continuous officiation in a post/cadre or grade.
Rules 4, 5 and 6 which deal with 'Determination of seniority of direct recruits ', 'determination of seniority of promotees, and relative seniority of direct recruits and promotees, are important and have to be extracted in full.
They are as follows: "4.
Determination of seniority of direct recruits.
The relative seniority of all persons appointed directly through competitive examination or interview or after training or otherwise shall be determine by the order of merit in which they are selected for such appointment on the recommendation of the Commission or other selecting authority, persons appointed on the result of an earlier selection being senior to those appointed on the result of a subsequent selection: Provided that where appointment of persons initially made otherwise than in accordance with the relevant recruitment rules is subsequently regularised in consultation with the Commission, where necessary, seniority of such persons shall be determined from the date of regularisation and not from the date of appointment.
The inter se seniority amongst such persons shall how ever, depend on the date of appointment of each such person in the department or office concerned: Provided further that if any person selected for ap pointment to any post does not join within two months of the offer of appointment, his seniority shall count from the date on which he joins the post unless the 928 appointing authority for reasons to be recorded in writing condones the delay.
Note (1) A list of candidates for the purpose of selection for appointment shall be prepared in all cases by the selecting authority, when there will be recruitment in a single process of selection Or more than one person.
(2) Where the inter se seniority amongst several persons has not been determined prior to the coming into force of these rules; such seniority shall, on the coming into force of these rules, be determined on the basis of actual date of their joining.
When the date of joining of all such persons is the same, seniority shall be determined on the basis of date of birth, person retiring earlier being adjudged as senior.
When the date of birth is the same, seniority shall be determined on the basis of total marks obtained by each in the examination, passing of which is the qualification prescribed for recruitment to the particular cadre or grade.
(3) In so far as the determination of relative seniority Of persons selected either by the Commission or by other selecting authority for appointment to different posts in the same grade with different qualifications such as posts of Assistant Professors in History, Economics, Physics, Chemistry, etc., is concerned, seniority shall be determined from the date of joining.
Determination of seniority of promotees (1) Seniority of person appointed on promotion to any Post, cadre or grade shall be determined fro n the date of joining such post, cadre or grade.
(2) When there will be appointment in a single process of selection of more than one person the; relative seniority of persons so appointed shall be determined by the order in which they are selected for such promotion.
929 (3) Persons appointed on the result Or an earlier selection shall be senior to those appointed on the results of a subsequent selection.
(4) Where promotions to a post, cadre or grade are made from more than one post, cadre or grade, the relative seniority of the promotees from different posts, cadre or grades shall be according to the order of merit determined by the commission or the selecting authority, if such posts, caders or grades do not come within the purview of the commission.
Note 1 A list of candidates for the purpose of selection for promotion shall be prepared in all cases by the selecting authority when appointments are made on promotion in a single process of selection of more than one person.
Note 2 Where the inter se seniority amongst several persons has not been determined prior to the coming into force of these rules, such seniority shall, on the coming into force of these rules, be determined on the basis of date of joining.
When the date of joining of such person is the same, seniority in the promotion post, cadre or grade shall follow the seniority in the lower feeder post, cadre or grade.
Relative seniority of direct recruits and promotees 1.
The relative seniority between a promotee and a direct recruit shall be determined by the year of appointment or promotion of each in the post, cadre or grade irrespective of the date of joining.
The promotees shall be en bloc senior to the direct recruits of the same year.
" A certain amount of confusion has been created by the reliance placed by the High Court upon the decisions of this Court in Ganga Ram vs Union of India(l) and Katyani Dayal vs Union of Media.(2) We wish to make it clear, straightaway, that neither of (1) ; (2) [l980] 3 SCR 139. 930 these cases has any application to the facts of this case, as we shall presently explain.
The proposition is now undisputed, and, indeed none of the Counsel who appeared before us disputed it, that in the absence of Rules to the contrary regulating the question of seniority between direct recruits ' and the 'promotees ', the general principle to be implied and followed to determine seniority is to base it on continuous officiation in non fortuitous vacancies.
In the case of section B. Patwardhan vs State of Maharashtra (1) Chandrachud, CJ.
Observed: "We, however, hope that the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for deter mining seniority as between 'direct recruits ' and the 'promotees '.
All other factors being equal, continuous officiation in a non fortuitous vacancy ought t receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities.
" In Roleshwar Dass vs State of U. P.(2), Krishna Iyer, J. had occasion to observe: We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of Government servants, keeping posts temporary for long, sometimes by annual renewal for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified.
If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights.
Not so, if the post is, for certain departmental or like purposes, declared temporary, (I) [l977] 3 S.C.R. 775 (2) [l981] 1 S.C.R. 449. 931 but it is with in the ken of both the Government and the appointee that the temporary posts are virtually long lived.
It is irrational to reject the claim of the 'temporary ' appointee on the nominal score of the terminology of the post.
We must also express emphatically that the principle which has received the sanction of this Court 's pronounce ments is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis.
It may be permissible, within limits, for Government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrary cut off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of articles 14 and 16. ' ' To the same effect in A. Janardhana vs Union of India,(1), D. A. Desai, J. Observed: ".
In other words, after having rendered service in a post included in the service, he is hanging outside the service, without finding a berth in service, whereas direct recruits of 1976 have found their place and berth in the service.
This is the situation that stares into one 's face while interpreting the quota rota rule and its impact on the service of an individual.
But avoiding any humanitarian approach to the problem, we shall strictly go by the rele vant Rules and precedents and the impact of the Rules on the members of the service and determine whether the impugned seniority list is valid or not.
But, having done that we do propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service, jurisprudence from the precedents namely, that a (1) [1983]3 SCC 601.
932 person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service.
A time has come to recast service jurisprudence on more just and equitable foundation by examining all precedents on the subject to retrieve this situation.
" These cases were quoted with approval by Chandrachud,CJ.
and one of us (Pathak, J.) in O.P. Singla vs Union of India(1).
In that case as a result of the application of Rules 16 and 17 of the Delhi Higher Judicial Service Rules, the quota and rota ' Rule ceased to apply and the question arose what was the criterion to be adopted to determine the seniority between 'direct recruits ' and 'promotees '.
Chandrachud, CJ.
and Pathak, J. Observed: Since the rule of 'quota and rota ' ceases to apply when appointments are made under Rr. 16 and 17, the seniority of direct recruits and prormotees appointed under those Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts created in the ser vice or in substantive vacancies to which they were appoint ted in a temporary capacity, G. section Lamba & Ors.
vs Union of India,(2) there was a break.
down of the 'quoto rota ' Rule as it had not been followed.
The problem was how seniority to be determined between direct recruits and promotees.
D.A. Desai, 1. with whom Khalid, J. agreed after noticing the decisions in B.S. Gupta vs Union of Indiu(3).
A.K. Subrarnana vs Union of India.(4) P.S. Mahal vs Union of India, Janardhana vs Union of India, O.P. Singla vs Union of India (Supra) observed .
(1) ; (2) ; (3) [1975] SUPP.
SCR 401.
(4) 933 "In the absence of any other valid principle of senio rity it is well established that the continuous officiation in the cadre, grade or service will provide a valid principle of seniority.
The seniority lists having not been prepared on this principle are liable to be quashed and set aside.
" We may now refer to the two decisions of this Court upon which reliance was placed by the High Court.
In Ganga Ram vs Union of India (1), the question arose with regard to the validity of a provision of the Indian Railways Establishment Manual according to which amongst Clerks Grade I who had been promoted from the rank of Clerks Grade Il after passing the prescribed qualifying examination, those who had been promoted earlier because they had passed the examination earlier, were, nevertheless required to take their place in the seniority list after those who were promoted later because they had passed the examination later if the latter happened to be senior in Grade 11.
In other words, notwithstanding their actual dates of commencement of continuous officiation, promotees to Grade I carried with them their seniority in Grade Il.
The Rule was challenged on the ground of discrimination.
It was said that in the case of direct recruit to Grade I seniority was reckoned from the date of appointment to Grade I whereas in the case of promotees amongst themselves their seniority was based on their seniority in Grade Il.
This argument was repelled by this Court on the ground that direct recruits and promotees constituted different classes and the classification was sustainable.
It was said that promotion to Grade I was guided by the consideration of seniority cum merit and it was, therefore, difficult to find fault with the provision which placed in one group all those Grade II clerks who had qualified by passing the examination.
The fact that the promotees from Grade II who had OFFICIATED for some time were not given the credit of that period when a permanent vacancy arose also did not attract the prohibition contained in articles 14 and 16.
It did not constitute any hostile discrimination and was neither arbitrary nor unreasonable.
It applied uniformly to all Grade 11 clerks who had qualified and become eligible.
The onus, it was said, was on the petitioners to establish discrimination.
The difference emphasized on behalf of the petitioners, it was finally observed, was too tenuous to form the basis of a serious argument.
It will be seen that the case was not concerned at all with the rival claim of direct recruits and promo ; 934 themselves.
The comparison with direct recruits was only for the purpose of advancing the claim that since amongst direct recruits seniority was reckoned in a particular way, there was no reason why the same principle should not be adopted in the case of promotees also instead of the principle of basing seniority in Grade I on seniority in Grade ll.
We do not think that this case is of any avail to the II direct recruits in the present case.
In Katyani Dayal Y. Union of India, in order to meet some special requirements of new situations created by new projects, some new posts of temporary Assistant Officers, were created under a special scheme.
These Temporary Assistant Officers belonged neither to class I nor to class II service, though on completion of three years service it was declared that they could be considered for absorption in Class I, Junior Scale.
The temporary Assistant Officers filed a writ petition claiming that they were appointed to the Indian Railway Service of Engineers Class I right from the beginning and that the Railway Board was wrong in treating them as belonging to neither class I nor class II.
The court held that the service comprising the Temporary Assistant Officers and the Indian Railway Service of Engineers Class I started separately and never become one.
The objects of their recruitment were dissimilar and the appointing authority was not the same.
The training that was imparted was also unlike.
The very tenure of the Temporary Assistant Officers was precarious and their immediate aspiration was only to be absorbed into the Indian Railway Service of Engineers Class I.
These distinctive features marked out the Temporary Assistant Officers as a Class apart from the Indian Railway Service of Engineers Class I and therefore there was no question of entitlement of equal rights with the later.
Of course, once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter.
Their seniority would ordinarily be reckoned from the date of their absorption into the Railway service of Engineers, as promised in their letters of appointment.
It was further pointed out that there was a fundamental qualitative difference, linked with the method of recruitment.
Though the minimum educational qualification was the same, those who were recruited directly to the Indian Railway Service of Engineers Class I were subjected to stiff and competitive, written and personality tests.
Only the very best could aspite to come out successful.
The Temporary Assistant Officers were not subjected either to a written test or to a personality 935 test but were selected on the basis of an interview by the Union Public Service Commission.
In addition to the minimum educational qualification, three years ' experience as a Civil Engineer was also prescribed.
Thus while brilliance was the beacon light which beckoned those aspiring to become members of the Indian Railway Service of Engineers Class 1, it was replaced by experience in the case of those wanting to be Temporary Assistant Officers.
Again the appointing authority in the case of Indian Railway Service of Engineers Class I was the President while the appointing authority in the case of temporary assistant Officers was the Railway Board, no doubt, pursuant to the authority given by the President.
Different courses of training were prescribed for the Indian Railway Service of Engineers and the Temporary Assistant Officers.
For the Indian Railway Service of Engineers the training was an intensive and comprehensive one designed to equip them for higher posts in the Department too while the training for Temporary Assistant Engineers was a brief six months ' training intended merely to equip them for carrying out the specific jobs.
In the matter of terms and conditions of service, while the provisions of the Indian Railway Establishment Code were fully applicable to the Indian Railway Service of Engineers Class 1, those provisions were applicable to 'Temporary Assistant Officers ' to the extent there was no specific provision in their letter of appointment and agreement.
It was on those facts and circumstances that it was held that there was no discrimination directed against the temporary Assistant Officers.
We are unable to see how this case can possible help the direct recruits in the present case.
It was suggested that the officiating Sub Inspectors of Police who had been promoted from the rank of Assistant Sub Inspectors were appointed to posts outside the cadre as in Katyani Dayal s case and it was this argument that found favour with the High Court.
There is no basis whatsoever for the supposition that there was any new cadre or any new class of posts created by the Government, known as officiating Sub Inspector of police.
The officiating Sub lnspectors of Police were obviously appointed to officiate in permanent or temporary vacancies in the existing subordinate ranks of the Calcutta Police, governed by the same Rules and regulations as other Sub lnspectors of police, drawing the same pay and discharging the same duties.
There was not and there could never be any question of officiating Sub Inspectors constituting a different cadre, class or category by themselves.
936 The next question is whether the Rules regulating the recruitment, seniority etc.
Of Sub Inspectors of Police in the Calcutta Police make any departure from the general pri nciple laid down in the whole series of cases commencing with Patwardhan to which we have already referred.
Earlier we have set out in great detail all the relevant rules in force from time to time.
We do not find anything in any of the rules indicating an intention to depart from the gene ral principle.
Shri section N. Kacker, learned counsel for the direct recruits invited our attention to Rule 6 of the West Bengal Services (Determination of Seniority) Rules, 1981 and asked us to read it in the light of Rule 3 (vi) which defines 'date of joining ' and stipulates that date of joining shall be reckoned from the date of continuous officiation in a post/cadre or grade.
Rule 6 (i) provides that relative seniority between a promotee and a direct recruit shall be deter mined by the year of appointment or promotion of each in the post, cadre or grade irrespective of the date of joining and Rule 6 (2) provides that the promotees shall be en block senior to the direct recruits of the same year.
The submission of Shri Kackar was that 'date of joining ' as defined in Rule 3 (vi) was expressly made irrelevant by Rule 6 (1) for the purpose of determining Seniority between a promotee and a direct recruit and it meant that the period of continuous officiation was not to be taken into account in determining relative seniority between promotees and direct recruits.
The argument though superficially attractive lacks substance.
A perusal of Rule 4 and 5 makes the position clear.
Rules 4, 5 and 6 constitute a single scheme.
Now Rule 4 which deals with seniority amongst direct recruits, broadly, provides that their relative seniority shall be according to the cadre of merit when they are selected at the same examination persons appointed on the basis of an earlier examination taking precedence over those appointed on the basis of a later examination.
Rule 4 further provides that where seniority has not been previously determined it shall be determined according to the actual date of joining Rule 5 deals with determination of seniority of promotees and broadly again, provides that seniority of person appointed to any post, cadre of grade shall be determined from the date of joining such post, cadre or grade.
which we know from Rule 3 (vi) means the date of continuous officiation in the post, cadre or grade.
Then comes Rule 6 which prescribes that the relative seniority between a promotees and a direct recruit shall be determined by the year of appointment or promotion of each in the post, cadre or grade irrespective of the date of joining and that the promotees 937 shall be en blow senior to the direct recruits of the same year Now, if Rules 4, 5 and 6 are read together the scheme becomes clear.
While date of joining is important to decide, the question of seniority amongst promotees, it is the year of joining that is relevant when the question of relative seniority is to be determined between promotees and direct recruits.
If direct recruits are appointed and promotees are promotee in the same year, all promotees are to take precedence over the direct recruit, irrespective of the actual date of their joining but as amongst the promotees themselves, the seniority is to be based on the date of joining.
That according to us is the true and appropriate construction of Rules 4, 5 and 6.
We are indeed very happy to note that this is precisely what the West Bengal Government wanted to do and it was done with a view to give effect to the judgments of this Court.
Paragraph 5 (Il) the affidavit of Nirupom Som, Commissioner of Police, Calcutta, is worth extracting and it is as follows : "5 (1). . . " 5 (II) With effect from 11.
3. 81, the West Bengal Services (Determination of Seniority) Rules, 1981 were promulgated under Article 209 of the Constitution.
These rules were made following the judgment of the Hon 'ble Supreme Court in the Patwardhan vs State of Maharashtra case ; Previously the seniority was determined under provisions laid down in the Finance Department Memo No. 568 F dated 20.
Prior to 20.2.68, there was no codified principles, the respective Departments following principles that might be different in different departments. " (b) The Hon 'ble Supreme Court made observations, inter alia as follows in the aforesaid case: (i) The vice of the seniority rule (with determines seniority between direct recruits and promotees from the date of confirmation) is that it leaves the valuable right of seniority to depend upon the mere accident of confir mation.
That under Article 14 and 16 of the Constitution is impermissible and therefore, we must strike down the said rule as being unconstitutional.
" 938 "(ii) We do not want to take upon ourselves task of framing rules of seniority.
That is not the function of this Court and frankly it lacks the expertise and data to do so.
We, however, hope that the Government will bear in mind the basic` principles that if a cadre consists of both perma nent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees.
All others factors being equal continuous officiating in a non fortuitous vacancy ought to receive due recognition in terminating rules of seniority as between person recruited from different sources, so long as they belong the same cadres discharge similarly functions and bear similar res ponsibilities.
" " (c) In the light of the aforesaid observations of the Hon 'ble Supreme Court the provisions in Finance Department Memo No. 568 F dated 20.
68 were examined in Consultation with the law officers of Government and the public service commission.
The West Bengal Service (Determination of Seniority) Rules 1981 were promulgated with effect from 11.
3. 81 after due observance of all formalities and considering all aspects of the matter.
" Again in paragraph 10 it was said, "10.
I submit that in the instant case it can hardly be disputed that both the direct recruits as well as the promotees Sub lnspectors of Police form one class.
They are both known by the same designation, they have the same scales of pay, they discharge the same functions, and the posts held by them arc interchangeable.
Thus there is nothing to show that the two groups are kept apart, and both are merged together in the same class.
It is not competent to the Government thereafter to discriminate between directly recruited Sub lnspectors and promotee Sub lnspectors in the matter of further promotion to the posts of Inspectors, as that would be violation of Article 16 of the Constitution.
It is submitted that the rule of pro motion is inextricable linked with the rule of weightage and seniority in the lower grade.
There is a well recognised discrimination between promotion and confirmation 939 and the tests to be supplied for the purposes of promotion are entirely different from those that had to be applied at the time of confirmation.
Though drawn from two different sources, the direct recruits and promotees constitute in the instant case a single integrated cadre.
They discharge in dentical functions, bear similar responsibilities and acquire an equal amount of experience in their respective aisignment.
The superseded principles for Determination of Seniority denied to the promotees the benifit of their long and valuable experience.
If there was some intelligible grounds for this differentiation being nexus with efficiencies in public services, it might perhaps have been possible to sustain such a classification.
Confirmation is one of the inglorions uncertainities of Government Service depending within an efficiency of the incumbent nor on the availability of substantive vacancies.
The vice of the seniority rule (which determines seniority between direct recruits and promotees) from the date of confirmation is that it leaves the valuable right of seniority to depend upon the mere accident of confirmation.
that under Article 14 and 16 of the constitution, is impermissible.
If a cadre consist of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees.
All other facts being equal continuous officiating in a non fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruits from different sources, so long as they belong to the same cadre discharge similarly functions and bear similar responsibilities.
" We think it is needless to further dilate on this topic except to express our appreciation of the stand taken by the West Bengal Government in these paragraphs.
The final submission of Mr. Kacker was that the appellants had never appeared at the prescribed examination, had never been called before the Selection Board and had never been sent to the Police Training College.
They had never gone through the selection process prescribed by the Rules and could not therefore have been validly appointed as Officiating Sub lnspectors of Police or confirmed as Sub lnspectors of Police.
The appellants, at least two 940 of them, have been officiating as Sub Inspectors of Police since almost three decades and even confirmed as Sub Inspectors of Police for a decade.
We are afraid it is rather late in the day for Mr. Kacker to raise this question at almost the final stages of a long drawn out battle.
It is true that in their writ petition in the High Court, the appellants made the barest of allegations in regard to their process of selection which they went through before they were promoted to the rank of Sub lnspectors of Police.
They had said, "After passing the departmental examination for pro motion to the rank of Sub Inspector, your petitioners were declared fit for promotion to the rank of Sub Inspector and your petitioners Nos. 1 and 2 were promoted to the rank of Sub Inspector on the 6th August, 1957 while your petitioner No. I was promoted to the rank of Sub lnspector on the 8th September, 1975 " Even this bare allegation was not properly denied in the counter filed by the respondents and that was never seriously put in issue.
At the conclusion of the hearing we called upon the State of West Bengal to produce all the relevant records pertaining to the service careers of the three appellants but we do not purpose to wait for them.
Enough for us to do justice is it appears from the records now before us.
We think that the three appellants are entitled to have the benefit of their continuous officiating service as Sub Inspectors of Police counted for seniority as Sub lnspectors of Police.
A writ will, therefore, issue directing the respondents to re fix the seniority of the appellants and other officers similarly situated in accordance with what we have said above.
A further question was raised by the appellants regarding the validity of the paragraph 1 (iii) of the Police Regulation, Calcutta, 1967 which provides that directly recruited Sub Inspectors shall be eligible to sit for the departmental examination to qualify themselves for promotion after their confirmation and on completion of 7 years ' service, including temporary service in their rank.
On the other hand, they complain that the rule provides that department Sub Inspectors who have been so appointed by promotion shall be eligible to sit for the examination after their confirmation in the rank of Sub lnspectors provided that their total length of service as Sub lnspector is not less than 7 years .
Seemingly, the rule 941 appears to treat both the direct recruits and promotees on the same footing, but it was submitted by a learned counsel for the petitioners that in practice the rule works harshly on the promotees because of the 'inglorious ' uncertainty of the confirmation of the promotees.
It was said that the date of confirmation of a promotee was so incurably uncertain, compelling a promotee to wait for more than a decade for confirmation and thus he will not be eligible to appear for the qualifying examination for promotion as Inspector of Police even though he has completed 7 years of continuous officiating service as Sub Inspector of Police.
There appears to be some legitimate scope for grievance on this question because of the vagaries of dates of confirmation of promotees, but we are not inclined to examine this question in the present case as petitions 1 and 2 made no efforts to qualify themselves for promotion by appearing in the examination after their confirmation in 1975 even though they had already completed 7 years of service.
In the case of the 3rd petitioner, he had not even completed 7 years ' service by the date of the filing of the writ petition and we are told that he had also now retired from service.
In the circumstances, we do not think it necessary to examine this question.
The appeal is, therefore, allowed in the manner and to the extent indicated.
Such other benefits to which the appellants are entitled under the judgment of the High Court will remain uneffected.
The appellants will get their cost, which we quantify to Rs. 5, 000.
N. V. K. Appeals allowed.

Output:
The appellants joined the State Police Force as Constables, were promoted as Assistant Sub Inspectors of Police, and later as officiating Sub Inspectors of Police and confirmed as Sub Inspectors.
In the meanwhile, a large number persons were directly recruited as Sub Inspectors, and also confined.
All these persons were ranked above the appellants in the seniority list.
In writ petitions to the High Court, the appellants contended that their seniority must be reckoned from the date of their continuous officiation as sub Inspectors, and that they were never considered for promotion to the next higher post of Inspector of Police, because of their delayed confirmation, and of the insistence of the Rules that they should be confirmed as Sub Inspectors of Police before they could be considered for promotion to the post of Inspector of Police and that the offending Rule be quashed.
The State supported the claim of the appellants to seniority on the basis of continuous officiation, but the direct recruits contested the writ petition.
The High Court refused to recognise the claim of the appellants to seniority from the dates of their continuous officiation, on the ground that their promotion as officiating Sub Inspectors of Police could only be considered as promotion to posts outside the cadre.
It further held, that their seniority could only be reckoned from the date of their confirmation, and that the rule pres 915 cribing confirmation as Sub Inspector as a condition precedent for promotion to the Post of Inspector of Police was not invalid.
Allowing the Appeals, ^ HELD: 1.
The three appellants are entitled to have the benefit of their continuous officiating service as Sub Inspectors of Police counted for seniority as Sub Inspectors of Police.
A writ will issue, directing the state to re fix the seniority of the appellants and other officers similarly situated.
[939 F] 2.
It is not undisputed, that in the absence of Rules to the contrary, regulating the question of seniority between 'direct recruits ' and the 'promotees ' the general principle to be implied and followed to determine seniority is to base it on continuous offication in non fortuitous vacancies.
[929B] In the instant case, the officiating Sub Inspectors of Police were obviously appointed to officiate in permanent or temporary vacancies in the existing subordinate ranks of the Calcutta Police, governed by the same Rules and Regulations as other Sub Inspectors of Police, drawing the same pay and discharging the same duties.
There was not and there could never be any question of officiating Sub Inspectors constituting a different cadre, class or category by themselves.
[934G H] 3.
Rule 4 of the West Bengal Services (Determination of Seniority) Rules, 1981 which deals with seniority amongst direct recruits, broadly provides that their relative seniority shall be according to the cadre of merit when they are selected at the same examination persons appointed on the basis of an earlier examination taking precedence over those appointed on the basis of a later examination.
It further provides that where seniority has not been previously determined it shall be determined according to the actual date of joining.
Rule 5 deals with determination of seniority of promotees and provides that seniority of a person appointed to any post, cadre or grade shall be determined from the date of joining such post, cadre or grade, which by Rule 3 (vi) means tho date of continuous officiation in the post, cadre or grade.
Rule 6 prescribes that the relative seniority between a promotee and a direct recruit shall be determined by the year of appointment or promotion of each in the post, cadre or grade irrespective of the date of joining, and that the promotees shall he en bloc senior to the direct recruits of the same year.
Rules 4, 5 and 6 constitute a single scheme and if read together the scheme becomes clear.
While date of joining is important to decide the question of seniority amongst promotees, it is the year of joining that is relevant when the question of relative seniority is to be deter mined between promotees and direct recruits.
If direct recruits are appointed and promotees are promoted in the same year, all promotees are to take precedence over the direct recruit, irrespective of the actual date of their joining but as amongst the promotees themselves, the seniority is to be based on the date of joining.
That is the true and appropriate construction of Rules 4, 5 and 6, and that was what the State Government wanted to do and was done.
[935 F H ;936 A C] 916 Ganga Ram vs Union of India, ; , Katyani Dayal vs Union of India ; , distinguished.
S.B Patwardhan vs State of Maharashtra, ; Baleshwar Dass vs State of UP.
[1981] 1 SCR 449; A. Janardhana vs Union of India, ; , O.P. Singla , .
Union of India; , ; G.S. Lamba & Ors.
vs Union of India; , , B.S. Gupta vs Union of India, [1975] SUPP SCR 491; A.K. Subramana vs Union of India, P.S. Mahal vs Union of India. ; ; referred to.


Input:
Appeal No. 589 of 1960.
Appeal by special leave from the judgment and decree dated April 28, 1953, of the Madras High Court in A.S. No. 695 of 1949.
K.N. Rajagopal Sastri, K. Jayram and R. Ganapthy Iyer.
for the appellant.
A. V. Viswanatha Sastri and T.V.R. Tatachari, for respondent nos.
1, 3, 4 and 6 to 8.
B. Kalyana Sundaram, M. Rajagopalan, K. Rajendr Choudhry, M. R. Krishna Pillai for K. R. Chaudhuri, for respondent No. 2.
March 26, 1964.
The Judgment of the Court was delivered by DAs GUPTA, J.
Three brothers, Ramakrishna, Narayanaswamy and Mahadeva.
, who are eighty three, seventy nine and sixty nine years of age respectively, are the main figures in this litigation.
After their father 's death in 1908 the three brothers continued as members of a joint family.
The eldest brother, Ramakrishna became under the law the Karta of the family.
When the father died the family was possessed of about 10 acres of land.
But he had left some debts and one of the first acts which Ramakrishna had to do as the Manager was the repayment of those debts.
Ramakrishna had become the Karnam in Narasingampettai in 1902 and even during his father 's life time started acquiring property.
Property to the extent of about 25 acres was acquired for the joint family between the years 1911 to 1931.
In 1927 Ramakrishna had been transferred to the bigger village of Vepatthur and continued to be there till 1930.
On his retirement in that year his son Venkatarama succeeded him as the Karnam of Vepatthur.
Between 1931 to 1946 properties in Vepatthur and other villages were acquired in the name of Ramakrishna 's son Vankatarama, his wife Mangalathammal, his grandson (Ven katarama 's son) Mahalingam.
Some property was acquired also in the name of Mangalathammal 's brother Raja Ayyar.
Monies were also invested in loans in the names of Ramakrishna 's wife.
Mangalathammal, his son Venkatarama and his grandson, Mahalingam.
492 The second brother Narayanaswami became a Vakil 's clerk in Kumbakonam in 1910.
The third brother Mahadeva who was a boy a of thirteen at the time of his father 's death was put into the medical school and qualified as a doctor.
He was in service as a Sub Assistant Surgeon at the time when the present suit was instituted by Narayanaswamy.
Both of them earned well and have admittedly acquired properties for themselves out of their own earnings.
As early as the thirties feelings became strained between Ramakrishna, the eldest brother and Narayanaswami the second brother.
Mahadeva who had to remain away at different places in connection with his service demanded partition of the joint family properties and in this Narayanaswami also seems to have joined him.
The extreme action of going to courts was however not taken so long as mother was alive.
She died early in 1945 at the age of 90 years.
In December, (12th December) 1946 Narayanaswami sent a lawyer 's notice to Ramakrishna in which he claimed that not only the 25 acres acquired between 1911 and 1931 but also the properties ac quired in the name of Ramakrishna 's wife, his son and brother in law had been acquired with the income of the family and formed part of the joint family properties.
He claimed also in this notice that family funds of about Rs. 25.000/ was in the hands of Ramakrishna in the shape of cash and Benami investments.
He demanded a partition of all these properties and of the cattle and other movable properties owned by the family.
He also called upon Ramakrishana to account for the income derived from the family properties "for the last three years at least".
In all these he claimed a one third share.
To this Ramakrishna replied on December 1, 1946.
He stated that the joint family properties consisted only of 10 acres left by their father and about 25 acres acquired later on and denied that the other properties belonged to the family.
Soon after this, on the 1st February 1947.
Narayanaswami brought this suit for partition and accounts in the court of the Subordinate Judge, Kumbakonam.
The eldest brother Rama krishna was impleaded as the first defendant; Mahadeva the third brother, was the second defendant, Ramakrishna 's son Venkatarama.
his wife Mangalathammal and his brother inlaw Raja lyer were in pleaded as the third, fourth and the fifth defendants respectively.
Mahalingam was impleaded as the sixth defendant.
Two other minor sons of Venkatarama were also impleaded.
They are the seventh and the eighth defendants in the case.
The plaintiff 's case was short and simple.
He claimed that Ramakrishna as the Karta of the joint family managed the family properties and acquired properties with the family funds from 1911 to 1946.
He thus claimed that not only the 34 493 acres and 58 cents of land in the village Kumarakshi (men tioned in the A Schedule) which the first defendant Rama krishna 's wife or son or grandson or brother in law were joint ties mentioned in the Schedules B, Bl and B2, and C, C1 and C2 and D for which the sale deeds stood in the name of Ramakrishna 's wife or son or grandson or brother in law were joint family properties.
He claimed also that between 1931 and 1946 Ramakrishna.
the Karta.
had invested family funds in the name of his wife.
his son and his grandson and these were also joint family properties.
The movable properties claimed to be joint family properties were mentioned in Schedule A2, while the house in Thiagarajapuram.
also claimed to be joint family property was mentioned in AI Schedule.
The plaintiff prayed for allotment to him of one third share of these properties by division in metes and bounds into three equal shares.
He further prayed for a direction on the first defendant to account for the management of the family properties for three years and for payment to the plaintiff of his share in the amount that may be found due.
The second defendant Mahadeva generally supported the plaintiff though as regards the years, 1940, 1941, 1942 and 1943 his case in the written statement was that it was the plaintiff Narayanaswamy and not the first defendant who collected the income from the join family properties.
For these four years, he pleaded that the plaintiff was liable to render an account while for the remaining period the first defendant was said to be liable.
In a Schedule to his written statement he mentioned several other items of properties which he claimed belonged to the joint family though one of the sale deeds stood in the name of the sixth defendant Mahalingam and the other in the name of the fifth defendant Raja Ayyar.
The other defendants contested the suit.
The first defendant 's case was that though on his father 's death he became in law the Karta of the joint Hindu family the actual management was carried on by the mother till 1940 and from 1940 till the mother 's death in 1945 by the plaintiff Narayanaswami.
It was only after the mother 's death that he has taken up the management of the properties.
He pleaded that of the properties mentioned in the plaint only 34.58 acres mentioned in the A Schedule formed the joint family property.
(In addition to some of the movable properties mentioned in A2 Schedule).
He further pleaded that a house in Kumbakonam town which was acquired by the plaintiff in his own name as also some lands in Manalur village in Kumbakonam and Rs. 8,000/ in cash which the plaintiff had obtained on sale of certain lands also formed part of the joint family property.
His wife Mangalathammal, the fourth defendant also pleaded that the properties and the investments standing in her 494 name were made by her on her own account with the monies which her husband Ramakrishna gave to her from his own earnings.
These therefore were not part of the joint family property and consequently not liable to partition.
The third defendant (Venkatarama 's) case was that the purchases of land and investments of money standing in his name were all with his own earnings since he became Qarnam and did not form part of the joint family property.
As regards what stood in the name of his son Mahalingam the third defendant pleaded that these were with his own earnings.
The fifth defendant also pleaded that whatever stood in his name was acquired by him with his own money and did not form part of the joint family of the plaintiff and his brothers.
The learned Subordinate Judge held on a consideration of the evidence that the plaintiff 's case 'that the oldest brother Ramakrishna managed the family property as the Karta from and after their father 's death in 1908 till the date of the suit had been established.
He also came to the conclusion that in about 1931 Ramakrishna had with him an accumulated income of about Rs. 14,000/ belonging to the family and but very little money of his own,, From these findings it was an easy step to hold, as the learned Judge did.
that the immovable properties mentioned in Schedules A, Al, B, B1., C. Cl, C2 and D as also Item 5 in Schedule B2 were all properties belonging to the joint family.
Out of these he found that the properties in Schedule Al, that is, a house in Thiagarajapuram had been, given away to the sister Rukmaniammal and was no longer a joint family property and therefore not liable to division.
The rest of the properties, he held, was liable to be divided among the three brothers, the plaintiff and the defendants 1 and 2.
The Court also held that the mortgages and promissory notes on which money had been lent in the names of defendants 3 to 5 belonged to the joint family with the exception of a few standing in the name of the third defendant (Venkatarama) which was held to be the third defendant 's personal property.
A preliminary decree was made by the Court in accordancewith these findings with a direction that an account be taken with reference to income of the properties in Schedules A, A1, B, B1, C, C1 and D and Item 5 in Sch.
B2 and the house at Kumbakonam mentioned in the Schedule to the first defendant 's written statement, for three years prior to the date of the suit and from the date of the suit till the passing of the final decree.
As regards the properties in Schedule A it was, directed that the accounting will cease from the date on which the parties took possession of their share in accordance with the interim decree.
Against this decision the first defendant appealed to the High Court of Judicature at Madras.
The plaintiff also filed 495 an appeal challenging the decision of the Subordinate Judge that the house in Kumbakonam was a joint family property. 'The High Court allowed the plaintiff 's appeal holding that the Kumbakonam house was a separate self Acquisition of the plaintiff.
Against this decision of the High Court no appeal has been preferred and we are no longer concerned with the question whether this house was plaintiff 's property or not.
In the appeal preferred by the first defendant the High Court came to the conclusion, disagreeing with the Trial court, that the first defendant Ramakrishna had saved enough from his separate earnings from which it was quite possible for him to make all the acquisitions and investments in the name of his son, wife and grandson subsequent to 1930.
In the opinion of the High Court the view of the Subordinate Judge that by 1930 the first defendant had in his hands a sum of Rs. 14,000/ accumulated from the income of the joint family lands was "surprising and untenable".
It did not disturb the Trial Court 's findings that Schedule D land acquired in the name of the 3rd defendant was joint family property, apparently because no appeal had been filed as regards this property.
Taking these 14 acres to be acquisitions for the family the High Court recorded its conclusion thus: "When we consider that the joint family nucleus has been more than quadrupled, it is difficult to see what grievance the younger coparceners really have, particularly the second defendant, who after keeping for himself his earnings as a Doctor in Government Service finds himself entitled to a share in a greatly increased ancestral patrimony.
" Finally the High Court concluded "that the plaintiff has not shown that any of the acquisitions or investments in the names of defendants 3, 4 and 6 were made from joint family funds.
" Accordingly, it allowed also the appeal preferred by the first defendant, holding that the only items liable for partition as joint property assets were those in Schedules A and D. It also ordered that the first defendant would account for the income from 12th December 1946, the date on which notice demanding partition was sent to him by the plaintiff.
The present appeal has been preferred by the plaintiff against this decision of the High Court.
Two main arguments were advanced before us by Mr. Rajagopala Sastri in support of the appeal.
The first is as regards the properties purchased in the name of the first defen dant 's wife, his son, and his grandson.
Learned Counsel submitted that the High Court did not record any clear conclusion that at the date of the acquisition of these properties the joint family had not a sufficient nucleus for acquiring these.
He argued that the acquisitions in the name of the first defendant 's wife was admittedly with funds advanced by the first defendant himself; and if at the date of the acquisition in her name the joint family had sufficient nucleus for acquiring them, the presumption would be that they were acquired with joint family funds notwithstanding the fact that the first defendant may have sufficient funds of his own for the same purpose.
It was rightly argued that in such a case the property should be held to be joint family property unless the presurmption of the acquired property also being joint family property was rebutted by the first defendant.
It was also argued that acquisitions in the name of the third defendant and the sixth defendant should also be held to have been made with funds advanced by the first defendant himself and so these also should be presumed to have been acquired with joint family funds if it is shown that the joint family had sufficient nucleus for acquiring these at the date of the acquisitions and the first defendant does not show positively that the funds with which they were acquired did not belong to the joint family.
The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property In the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown.
(Vide Amritlal Sen & ors., vs Surath Lal Sen & others(1) Appalaswami vs Suryanarayanamurthy & others(2).
In the case before us, it is not disputed that the acquisi tions in the name of the first defendant 's wife were made with funds advanced by him.
As regards the acquisitions in the name of the third defendant and his minor son the sixth defendant also we find it reasonable to hold from the evidence, as regards the earnings of the third defendant and other circumstances, that for these acquisitions also money was paid by the first defendant.
The question whether the joint family had at the time of each of these acquisitions sufficient nucleus from which the acquisitions could have been made is therefore of great importance.
On a consideration of the evidence, as discussed below, we have come to the conclusion that it does not appear that the joint family had at the date of the acquisitions made in the names of the first defendant 's wife.
his son, and his grandson sufficient nucleus from which these properties could be acquired.
In coming to this conclusion we have taken into consideration the fact that family funds were spent in purchasing 14 acres of land mentioned in the name of the 5th defendant.
(1) A.I.R. 1942 Cal.
(2) I.L.R. [1948] Mad.
(P.C.) 440.
497 The period during which acquisitions admittedly for the joint family were made came to an end in about 1931.
At that time the first defendant had, according to his own evidence, about Rs. 15,0001 in his hand.
His case is that this entire K. amount was what he had accumulated out of his own earnings.
The Subordinate Judge held that a little more than Rs. 14,000 / out of this amount was the savings from the family funds.
We agree with the High Court that this conclusion is not justified by the evidence on the record.
As rightly pointed out by the High Court properties worth about Rs. 20,000/had been purchased out of the family income during this period.
During part of this period at least monies had to be spent for other requirements of the family including the expenses on the education of the third brother Mahadeva.
The several documents produced in the case show that at the time of more than one purchase the first defendant had to borrow money on promissory notes to pay the consideration mentioned in the documents.
It is worth mentioning that even the plaintiff was not prepared to say that the family income was sufficient to pay for these purchases.
In cross examination a question was put to him in these words: "Q. From 1911 out of the family income Rs. 20,000/worth of lands had been purchased? Can there have been more income from the family lands?" The answer is significant.
It was in these words: "A. From the family income, the joint income of myself and Defendant 1 certainly exceeded Rs. 20,000/ .
The income of myself and Defen dant 1 which went in the purchase of lands may have come to Rs. 10,000/ ".
In other words, the plaintiff himself seem to concede that only Rs. 10,000/ of the family income was available during this period for purchase of lands.
The claim made here that he also contributed to the purchase is clearly inconsistent with his own written statement and with other parts of his evidence and cannot be accepted.
The learned Subordinate Judge, appears to have been con vinced that Ramakrishna 's personal earnings were very little.
He thought also that what little Ramakrishna earned was required for the expenses of his own branch of the family.
The learned Judge concluded that he could not have saved out of these earnings.
This view appears to have been mainly responsible for this conclusion that almost the whole of Rs. 15,0001which the defendant No. 1 admitted to have with him in about 1931 came out of the family funds.
In our opinion, the materials on the record do not justify the Trial Court 's view that Ramakrishna could not have accumulated a sum of 498 Rs. 15,000/ out of his own income.
The mamools which he received as Karnam of Narasingampettai and later on of the bigger village Vepatthur amounted to a considerable quan tity of paddy and must have fetched him a goodly income.
There was apart from this, his income from the banana plan tations which he had at Narasingampettai.
One of the lease deeds shows a receipt of Rs. 450/ for one season.
Taking good years with bad, it would not be unreasonable to think that this also brought him a few thousands of rupees.
We are convinced also on a consideration of his evidence, taken with the entries in the account book of Appaswamy Iyer (exhibit B IO 1) that he received a sum of Rs. 2,500/ as reward for successfully maintaining the litigation on Appalaswamy 's behalf.
There can be little doubt that he received good sum also as fees for writing documents.
One of his witnesses, Narayanaswami Reddiar, DW 7, has given evidence that he paid the defendant Rs. 1,000/ as fees for the documents written for him.
Even if this be considered an exaggeration, it s quite clear from, the evidence of this witness that Ramakrishha who, it may be noted, was a man of some education, did a flourishing side business as a writer of documents, saved two or three thousand rupees, earned by him by this work during the entire period he served as a Karnam.
It is more than probable that he had other sources of income which he did not think it prudent to mention in the witness box.
On a consideration of the circumstances we are convinced that this story that he had Rs. 15,O0O/ in his hands in about 1931 as accumulated out of his own earnings is sub stantially true.
Mr. Rajagopala Sastri has however rightly pointed out that a finding that in 1931 very little remained out of the family income would not be sufficient to show that there was no sufficient nucleus for the acquisition of the different pro perties in the name of the defendant 's wife, his son and his grandson after 1931 For a proper decision of this question it is necessary to consider roughly the income and expenditure out of the admittedly family properties during this period.
We shall first consider the period, 1931 to 1939, as it is clear from the evidence that during this period the defendant No. 1 carried on the actual management of the joint family properties.
It is common case of both the parties that the paddy yield in 1931 was 856 kalams; during 1932 1,000 kalams and during 1933 1,118 kalams.
For the next five years paddy yield was, according to the respondent 's counsel, 1,058, 1,058, 958, 958, and 958 kalams.
The appellant 's counsel puts his estimates and 1,160 kalams respectively.
These differences in the estimates for these years at the higher figures of 1,360, 1,360, 1,160, 1,160 seem to be mainly due to the fact that while, 499 according to the respondent, the family was in possession of only six acres of mortgaged land in addition to the 35 acres, the appellant 's case was that an additional area of six acres of mortgaged land was also in the family 's possession during these years.
Mr. Rajagopala Sastri was not however able to point out anything on the record in support of this claim.
We think it reasonable therefore to accept as substantially correct the estimate of paddy yield as mentioned before us on behalf of the respondent for these years.
For the year 1939 the yield may be taken as 1,153 kalams roughly as in that year the D Schedule lands now found to be the property of the joint family had also been acquired.
On an examination of the evidence on the record we accept the the price for each kalam of paddy to be Rs. 2.50 nP for each of the years 1931 and 1932 and 1.19, 1.25, 1.37, 1.40, 1.50, 1.56 and 1.62 for the years 1933 to 1939 respectively, as contended before us on behalf of the respondent.
The total income received from paddy in these nine years thus appears to be about Rs. 14,976/ .
To this has to be added the receipts from the dry crops like black grams and green rams grown on some of the lands.
We accept the evidence given by the defendant that dry crops were not grown in every year and also not on all the lands.
The sale proceeds of black grams and green grams amounted to Rs. 72/ for the year 1935 according to the account book exhibit A 98.
Taking this to be the average receipt per year from the dry crops the receipts from these crops during the nine years under consideration amounted to about Rs. 648/ .
The total income from the crops grown on the joint family lands during the years 1931 to 1939 thus works out approximately to be about Rs. 15,624/ .
Adding to this the sum of Rs. 1,100/ received on repayment of the mortgage loan on exhibit 187 the joint family earnings during these nine years appears to have amounted to about Rs. 16,724/ .
It is now necessary to have some idea of the expenditure incurred during these years.
The claim of expenditure of Rs. 5,172/ during these years made before us on behalf of the respondent is not disputed by the appellant.
We think also that the respondent 's claim that Rs. 1,100/ advanced on the mortgage bond (exhibit 187) was paid from family funds should be accepted.
We have next to add the sum of Rs. 6,500/ that was paid for the purchase of the D Schedule lands, Rs. 4,030/ paid as kists and Rs. 2.000 / as cultivation expenses including Kariasthan 's pay.
The total expenditure during the nine years 1931 to 1939 amounted thus to more than Rs. 18,000 / .
Proceeding therefore on the basis on which there is no longer any dispute, that the D Schedule lands were acquired out of the family funds, it appears clear that the joint family did not possess sufficient nucleus for making any of the other purchases.
made during this period, viz., the properties mentioned in Schedules B and BI purchased by the document exhibit 125, the properties mentioned in Schedule Cl purchased by the document exhibit B 124, the properties mentioned in Schedule C purchased by exhibit 129, the properties mentioned in the Schedule to the written statement of the second defendant purchased by documents Exhibits B 134 and B 135.
The High Court 's conclusion as regards these properties that they did not form part of the joint family properties and are not liable to partition in the present suit is therefore clearly correct.
The properties mentioned in Schedule C2 were purchased on the 24th April 1941 by exhibit 136 in the name of the 4 th defendant while properties mentioned in Item 1 of B2 Schedule were purchased on the 19th August 1942 by exhibit 126 in the name of the sixth defendant.
Though it was the first defendant 's case that he had nothing to do with these purchases we are convinced on a consideration of the evidence that the monies for these purchases were also advanced by him.
To decide whether these properties or the properties mentioned in Item 5 of Schedule B2, a house in Vepatthur, of which mortgage was taken in the name of the first defendant himself by exhibit B 1929 on the 10th May 1942, formed part of the joint family property, it is necessary to examine what funds, if any, belonging to the joint family were with the first defendant during these years.
The first defendant 's case, as already indicated, is that from 1940 till the mother 's death in 1945 the plaintiff and not he managed the joint family properties so that he did not receive any portion of the joint family earnings during the period.
The plaintiff has strenuously denied the truth of this statement.
There are several circumstances however which make us think that the first defendant 's version is true.
The most imoprtant of these is the fact that the youngest brother Mahadeva, who is clearly siding with the plaintiff in this family quarrel, made a definite assertion in his written statement in these words: "Similarly the plaintiff has been collecting the income from the joint family properties during the years 1940, 1941, 1942 and 1943.
" He also stated there that the plaintiff had assured him that he would maintain proper accounts for the collection and expenditure of the income joint family for his period of management and made the definite claim that the plaintiff was liable to render an account for the period of his management.
It is true that at the trial Mahadeva tried to explain away this assertion in the written statement by saying that this was based on information given to him by the defendant No. 1.
In the very next sentence, however, he again said that this view that the plaintiff was exclusively managing for certain years was his coiiclusion.
It is important to notice in this connection that at the bottom of exhibit B 190 dated the 13th March 1941 which Mahadeva 501 received from Ramakrishna, Mahadeva made in his own hand an entry in red ink to the following effect: "1939 Kuruvai (paddy) sold by Nana 1939 Semba Mudal (harvest) by Nana, sold in 1940.
" It is true that there are some letters which indicate that even during 1941 and thereafter Ramakrishna was issuing some instructions to the Kariasthan.
But, considering the facts mentioned above along with the letters Exibits B 177 and B 72 in which detailed instructions about the cultivation were being given by the plaintiff to the Kariasthan, we have come to the conclusion that from about 1940 till the mother 's death early in 1945 the plaintiff displaced the first defendant from the management of the family lands and took away all the family lands in Kumarakshi and took away all the income from them.
The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands.
The yield from these lands may roughly be estimated at about 300 kalams for each year.
The price per kalam in 1941 appears from exhibit 100 to have been Rs. 2/6/ .
The net income, after payment of the kist and debiting the expenses of cultivation etc., may be placed there fore at about Rs. 500 It is undoubtedly a very rough estimate.
But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendant 's hands from the D Schedule property.
On this calculation the first defendant appears to have had in his hands about Rs. 1,5001 during the years 1940 to 1942.
There was already however a deficit of more than this amount on his management of the properties during the previous period 1931 to 1939.
It is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942.
The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.
Some of the properties mentioned in Schedule B2 to the plaint were purchased in 1945 and 1946 by exhibit B 127 aid B. 128 in the name of the third defendant, Venkatarama.
At the time of these acquisitions the third defendant had been karnam of Vepatthur for over 15 years.
It is not unlikely he would have saved some portion of his own earnings during this period so as to be able to pay for these purchases out of his own earnings.
It cannot therefore be said reasonably that these purchases were made from funds advanced by the first defendant.
Apart from this, it appears that the plaintiff has not been able to show that at the time of these acquisitions the first defendant had 502 with him sufficient income out of the joint family properties for purchasing all these lands.
We have already found that the first defendant resumed management of the joint family properties on his mother 's death in 1945.
On the question about the income and expenses during this period there is hardly any evidence worth the name on the record.
On a consideration of all these circumstances, we are of opinion that the High Court 's conclusion as regards these properties also that they did not form part of the joint family property is correct.
The brings us to Mr. Rajagopala Sastri 's second argument.
While admitting the legal position that in the absence of any evidence of fraud or misappropriation the Karta cannot be called upon to account for the past transactions, learned Counsel stresses the responsibility of the Karta to establish what are the assets available for partition.
In support of this, the learned Counsel drew our attention to the decision in Parmeshwar Dube vs Gobind Dube(1).
That case laid down the rule that in the absence of fraud or other improper conduct the only account the Karta of a joint family is liable for is to the existing state of the property divisible; but that this did not mean that the parties were bound to accept the statement of the Karta as to what the property consisted of and an enquiry should be directed by the court in a manner usually adopted to discover what in fact the property consisted of at the date of the partition.
About the correctness of this proposition there is no dispute.
In what manner this principle can be applied depends however on the facts and circumstances of each case.
Where, as in the present case, the evidence already adduced before the court shows prima facie that the Karta could not reasonably be expected to have in his hands at the date of the suit any accumulation worth the name in addition to the immovable properties found on evidence to have been acquired for the family, there can be no justification for calling the Karta to account for his past dealings with the joint family property and its income.
In the circumstances of this case therefore the order of the High Court that there was no liability on the first defendant as managing member to render any account of any kind prior to the 12th December 1946, on which notice demanding partition was issued, does not call for any modification.
In the result, the appeal is dismissed with costs.
Appeal dismissed.

Output:
There were three brothers who continued as members of a joint family with the eldest of them, the first respondent as the karta.
Certain properties were acquired thereafter for the joint family.
Certain properties were also acquired in the name of the first respondent 's son his wife and grandson.
The two other brothers of respondent No. 1 acquired properties for themselves out of their own earnings.
Relations became strained between the brothers and the second brother the present appellant filed suit for partition claiming not only the original properties of the joint family and the properties acquired for the joint family by the Karta, the present respondent but also the properties acquired by the respondent No. 1 in the name of his wife, son and grandson as joint family properties.
He also called on the first respondent to account for the past years.
The third brother was impleaded as second defendant.
Respondent No. 1 's contention was that the last mentioned properties were bought by him from his own savings and therefore were not part of the join, family property and consequently not liable to partition.
The learned trial Judge held that those properties were joint family property and were liable to be partitioned.
Respondent No. 1 thereupon appealed to the High Court and the High Court allowed the appeal regarding substantial part of the schedule properties.
Thereupon the appellant filed the present appeal.
Held: (i) Where properties were acquired in the name of a joint family member, if at the date of such acquisition the joint family had sufficient nucleus for acquiring it, the property should be presumed to have been acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown.
In the present case on a consideration of the evidence it is found that the joint family had at the date of the acquisition Of the properties in question sufficient nucleus from which these properties could be acquired.
Amritlal Sen & Ors.
vs Surath Lal Sen, A.I.R. 1942 Cal.
553 and Appalaswami vs Suryanarayanamurthy, I.L.R. [1948] Mad.
(P.C.) 440, referred to.
(ii) In the absence of any evidence of fraud or misrepresentation the Karta of a joint family cannot be called upon to account for the past transactions, but this does net mean that the parties were bound to accept the statement of the Karta as to what the property consisted of and an enquiry should be directed by the court in a manner usually adopted to discover that in fact the property consisted of at the date of the partition.
In what manner this principle can be applied depends on the facts and circumstances of each case.
Where as in the present case the evidence ,on record shows prima facie that the Karta could not reasonably 491 be expected to have in his hands at the date of the suit any accumulaties found on evidence to have been acquired by the family, there can be no justification for calling the Karta to account for his past dealing with the joint family property and its income.
Parameshwar Dube vs Govind Dube, I.L.R., , explained.