Gujarat Housing Board Engineers Assn. Vs.
State of Gujarat  INSC 480 (5 November 1993)
SINGH (J) KULDIP SINGH (J) BHARUCHA S.P. (J) VERMA, JAGDISH SARAN (J) SINGH
N.P. (J) CITATION:
1994 SCC (2) 24 JT 1993 (6) 469 1993 SCALE (4)383
Judgment of the Court was delivered by BHARUCHA, J.- Special leave granted.
appeal requires a true and correct interpretation to be placed upon Regulation
3 of the Gujarat Housing Board Services Classifications of and Recruitment
appeal arises thus: The first appellant is an association of the Engineers of
the Gujarat Housing Board (the second respondent). The second and third
appellants are employees of the Housing Board. They filed a writ petition in
the Gujarat High Court challenging the direction given to the Housing Board by
the State of Gujarat (the first respondent) to appoint
to the post of Assistant Housing Commissioner (Technical) an officer on
deputation from the Building and Communication Department of the State
Government. The writ petition was dismissed. The High Court relied upon the
fact that the decision to appoint to the said post an officer of the rank of
Superintending Engineer from the Building and Communication Department of the State
Government had been taken by the State Government for reasons stated in its
affidavit in reply and the said decision could not be said to be unjust or
arbitrary or based on irrelevant or extraneous considerations.
Gujarat Housing Board Services Classifications of and Recruitment Regulations,
1981 are made under the provisions of Section 74(c) of the Gujarat Housing
Board Act, 1961 (now called "the said Act") with the previous
sanction of the State Government. Regulation 3 in Part V thereof prescribes the
qualifications, age, experience and procedure relating to recruitment to the
post of Assistant Housing Commissioner (Technical), now called Superintendent
Engineer. The relevant portion thereof reads thus:
post may be filled in either:
by promotion of employees working as Executive Engineer in Board's Higher
Services on the basis of seniority cum merits, OR (b) by calling Executive
Engineer on deputation from State Building and Communication Department.
(c) by direct selection from amongst the candidates called for interview;
be eligible for promotion, Executive Engineers (i) should have rendered at
least 4 years continuous service as Executive Engineer;
promotion, the officer will be on trial for one year on expiry of which he may
be finally promoted or his trial may be extended or he may be reverted to the
post from which he was promoted as the case may be looking to his performance
during the trial period. On the expiry of the extended trial period, his case
will be again reviewed and dealt in same manner.
a suitable candidate is not available for appointment by promotion from the
Executive Engineers of the Board, a panel of names of Executive Engineers
having at least 4 years standing experience from the State B & C Department
may be called for, with a proviso that no departmental inquiry should be
pending against them. The of the names will be selected by the Board and the
selected candidate will be appointed by the Board.
be eligible for appointment by direct selection a candidate (i) should be not
more than 45 years of age;
possess a Bachelor's Degree in Engineering of a recognised University or an
equivalent qualification recognised by Board, and (iii) should have at least 10
years. practical experience of planning and building construction work in State
or Central Government or a local authority or a Corporation owned or controlled
by such Government or in renowned private firms of Engineers and Contractors in
a responsible post.
in Board's Higher Service who are eligible for direct selection as above, can
also apply along with others.
contention on behalf of the appellants is that no appointment on deputation can
be made to the said post of an officer serving in the State Government's
Building and Communication Department until and unless it has been found that
no suitable eligible candidate is available for appointment to the said post by
promotion from among the eligible Executive Engineers of the Housing Board. On the
other hand, it is contended on behalf of the State Government that Regulation 3
provides three alternative modes of appointment to the said post in clause (1)
and clause (3) provides yet another, fourth mode of appointment.
appointment in question was directed to be made under the provisions of
sub-clause (b) of clause (1) and not under clause (3), so that the State
Government and the Housing Board were not in any manner constrained in making
the appointment and it was not required that the appointment should 28 be so
made only if no suitable eligible candidate was available for appointment by
promotion from among the Executive Engineers of the Housing Board.
(1) of Regulation 3 provides that the post of Assistant Housing Commissioner
(Technical) may be filled in by promotion of employees working as Executive
Engineers in the Housing Board on the basis of seniority cum merit; or by
calling Executive Engineers on deputation from the Building and Communication
Department of the State Government; or by direct selection from among
candidates called for interview.
(2) sets out who among the Executive Engineers of the Housing Board are
eligible for such promotion. Clause (3) states that if a suitable eligible
candidate is not available for appointment by promotion from among the
Executive Engineers of the Housing Board, a panel of names of Executive
Engineers having four years standing experience in the State Government's
Building and Communication Department may be called for and one name out of the
panel may be selected and appointed on deputation by the Housing Board. Clause
(4) sets out the eligibility requirements of candidates for appointment by
is, therefore, clear that clause (2) of Regulation 3 has application to
sub-clause (a) of clause (1); that is to say, clause (2) sets out the
eligibility criteria of employees working as Executive Engineers in the Housing
Board for appointment to the said post on the basis of seniority-cum-merit
under sub-clause (a) of clause (1).
(3) sets out how and when an Executive Engineer from the State Government's
Building and Communication Department can be appointed on deputation to the
said post under the provisions of sub-clause (b) of clause (1). Clause (4) sets
out the eligibility requirements for candidates to be appointed by direct
selection under the provisions of sub- clause (c) of clause (1).
have no doubt, therefore, that clause (3) does not set out an additional,
fourth mode of filling in the said post but is only a provision which sets out
how and when an Executive Engineer from the State Government's Building and
Communication Department can be appointed to the said post on deputation. It
provides that an appointment can be made of an Executive Engineer from the
State Government's Building and Communication Department to the said post on
deputation only if a suitable eligible candidate is not available for
appointment by promotion from among the Executive Engineers of the Housing
3 can be read in no other manner. To construe it otherwise would mean that it
provides no guidelines as to when the said post is to be filled up from among
the Executive Engineers of the Housing Board, when by deputation from among the
Executive Engineers of the Building and Communication Department of the State
Government and when by direct selection. The interpretation that the court must
place upon Regulation 3 must be such as avoids arbitrariness and the conferment
of uncanalised power. Regulation 3 must, therefore, be read as providing that
the said post 29 must be filled by promotion of eligible Executive Engineers of
the Housing Board on the basis of seniority-cum-merit.
only if no suitable candidate is available for promotion to the said post from
among the eligible Executive Engineers of the Housing Board that the
appointment may be made on deputation from among the Executive Engineers of the
State Government's Building and Communication Department.
this, the appointment can be made by direct selection from among candidates
called for interview.
is an admitted position that the suitability of eligible Executive Engineers of
the Housing Board for appointment to the said post by promotion was not
considered before resort was directed to be had to the provisions of sub-clause
(b) of clause (1) for filling the said post by deputation of an officer of the
State Government's Building and Communication Department. In our view,
therefore, the State Government was patently in error in directing the Housing
Board to fill the said post by deputing an officer in the State Government's
Building and Communication Department.
Reference was made on behalf of the State Government to the provisions of
Section 82 of the said Act and it was submitted that the State Government was
thereby empowered to give to the Housing Board such directions as were in its
opinion necessary or expedient for carrying out tile purposes of the said Act
and the Housing Board was obliged to comply with such directions. The short
answer to the submission is that it is not open to the State Government to give
directions to the Housing Board under Section 82 which are contrary to the
provisions of Regulations made under the provisions of the said Act with its
The appeal is allowed. The judgment and order under appeal are set aside. The
direction given to the Gujarat Housing Board by the Government of Gujarat to
fill the post of Assistant Housing Commissioner (Technical) (now called
Superintendent Engineer) by appointment on deputation a person in its service
in the Building and Communication Department is set aside. For the purposes of
filling up the said post, the Gujarat Housing Board shall proceed in the manner
There shall be no order as to costs.
ARUNDHATI MISHRA V. SRI RAM CHARITA PANDEY ORDER 1. Leave granted.
This appeal arises against the judgment of the Allahabad High Court in Second
Appeal No. 89 of 1990 dated December 21, 1992.
The facts in a nutshell are that the appellant-plaintiff basing on title laid
the suit for possession and mesne profits against the respondent. The
respondent was inducted into possession of M.I.G. flat allotted to her by the Lucknow
Improvement Trust later renamed as Lucknow Development Authority. The rent was Rs
30 per month. It was covenanted that the respondent should pay every month a
sum of Rs 24.50 to the L.I.T./L.D.A. and the balance to the appellant. On March 15, 1971, the appellant got issued a notice
under Section 106 of the T.P.
determining the tenancy for default committed in payment of the rent. Thereon,
the respondent replied that the appellant was only his benamidar and he is the
real owner of the property. The appellant paid the installments and got the
sale deed executed in 1977 by L.I.T. or L.D.A. Suit notice was issued in 1978
on the ground that the denial of the appellant's title constitutes forfeiture
of the tenancy which the respondent had with the appellant. The respondent
reiterated in his written statement that he is the real owner and remained in
possession as owner of the suit house and the appellant is only benamidar. The
respondent also later filed an application under Order 6 Rule 17, CPC to add para
21-A claiming alternatively compensation for the improvements made by him.
Framing appropriate issues and on addiction of evidence, the trial court found
that the appellant has title to the property, by denial of the title, the
respondent forfeited his tenancy and decreed the suit.
first appeal, the respondent filed another application on March 30, 1989 for amendment of the written
statement setting up the plea of "adverse possession". The appellate
court rejected the application, considered the case on merits and confirmed the
decree of the trial court.
second appeal the learned Single Judge considered and allowed the application
for amendment, set aside the findings of the courts below and remitted the case
to the trial court for fresh trial. Thus this appeal by special leave.
is settled law as laid down by this Court in Firm Sriniwas Ram Kumar v. Mahabir
Prasad that it is open to the parties to raise even mutually inconsistent pleas
and if the relief could be founded on the alternative plea it could be granted.
If the facts are admitted in the written statement, the relief could be granted
to the plaintiff on the basis of the evidence though inconsistent pleas were
raised. Amendment to written statement cannot be considered on the same
principle as an amendment to the plaint. The pleas in the written statement may
be alternative or on additional ground or to substitute the original plea. It
is equally settled law that amendment of the pleadings could be made at any
stage of the proceedings. Instances are not wanting that pleadings are permitted
to be amended even when second appeal is pending. Equally it was refused. It is
not necessary to burden the judgment by copious references thereof. But 1 AIR
1951 SC 177: 1951 SCR 277 32 each case depends upon its own facts. The
essential requisites are that the delay in making the application; the reason
therefore should be given and considered; and there should be no prejudice
caused to the other side. Bar of limitation which is available to the parties
cannot be permitted to be defeated. It is also settled law that if the relief
is found on the same cause of action, though different sets of facts are sought
to be brought on record by appropriate pleadings, it cannot be refused. In
those circumstances, permission to amend the pleadings could be granted.
question in this case is whether the plea of adverse possession sought to be
set up by the respondent could be permitted to be raised. The pleas based on
title and adverse possession are mutually inconsistent and tile latter does not
begin to operate until the former is renounced. It is his own case that he came
into possession of the suit house in his own right and remained in possession
as an owner. The appellant is only benamidar.
his plea is based on his own title. He never denounced his title nor admitted
the title of the appellant.
never renounced his character as an owner asserting adverse possession openly
to the knowledge of the appellant and the appellant's acquiescence to it.
Thereafter, he remained in open and peaceful possession and enjoyment to the
knowledge of the appellant without acknowledging/or acquiescing the right,
title and interest of the appellant.
plea of adverse possession, though available to the respondent, was never
raised by him. Only on receipt of the first notice he denied title of the
appellant and made it known to him for the first time through the reply notice
got issued by him. Even then the plea of adverse possession was not raised in
the written statement. No explanation for the belated plea was given. Even
assuming that the reply dated March 15, 197 1
constitutes assertion of adverse possession, the Imitation would start running
against the appellant only from March 15, 197 1 and not earlier. Tile suit was filed in 1978 within 12
years. Under these circumstances, tile High Court is not justified in
permitting the respondent to raise the plea of adverse possession. It is made
clear that we are not expressing any opinion on merits. The judgment of the
High Court is set aside and the matter is remitted to the High Court for
disposal on merits according to law.
appeal is allowed but without costs.