& Ors Vs. High Court of Madras & Ors  INSC 317 (20 March 1997)
SUHAS C. SEN, B.N. KIRPAL
Civil Appeal No. 2110 of 1997 arising out of S.L.P.
No. 6584 of 1997 (CC No. 3647)] J U D G E M E N T SEN, J.
The Tamil Nadu State subordinate judiciary originally
consisted of two separate services, Tamil Nadu state Magisterial Service and
Tamil Nadu judicial service. The Magisterial Service consisted of two
categories. Subordinate Magistrates (later redesignated as Judicial Second
Class Magistrates) and Additional First Class Magistrates (later redesignated
as Judicial First Class Magistrates).
Judicial Service also consisted of two categories, the Subordinate Judge and
below the post of Subordinate Judge was the post of District Munsif.
recruitment and promotions to the posts in the Tamil Nadu Judicial Service was
governed by Tamil Nadu State Judicial service Rules (here in after referred to
as 'the Rules') which came into force on 1.1.1955. Under these rules,
recruitment to the post of Subordinate Judge was only by promotion from the
post of District Munsif. The appointments to the post of District Munsif was by
direct recruitment from the bar or by transfer from various posts in the State
and Subordinate Services. There were as many as nine categories of posts which
formed the feeder cadre for transfer to the post of District Munsif. Class 6 of
feeder cadre comprised of Judicial Second Class Magistrates and Judicial First
Class Magistrates in the Tamil Nadu State Magisterial Service.
Magisterial Service, appointment to the post of Judicial First Class
Magistrates, was by promotion from the post of Judicial Second Class
Magistrates or by transfer of service from Assistant Public Prosecutor Grade I
and appointment to the post of Judicial Second Class Magistrates was by direct
recruitment from the bar and by transfer from various departments of the
Government in the ratio of 6|4.
Judicial Service, the recruitment could be made only through the Tamil Nadu
Public Service Commission. The names recommended by the Tamil Nadu Public
Service Commission in the year 1965 were exhausted in the year 1967.
the vacancies which arose were filled up by making temporary appointments by
transfer from the eligible services and by direct recruitment from the bar on
the recommendation of the High Court. This inflow of temporary appointments on
transfer was one of the reasons for the backlog in fixing seniority, regularisation
and consequent promotions of the respective officers. During the years 1960-74,
nearly 110 Judicial Second Class Magistrates were appointed on transfer on
purely temporary basis. Out of the said 110 Judicial Second Class Magistrates,
only about 37 were regularised by G.O. No. 1924, Home Department dated
22.10.1975. In the year, 1982 about 80 Judicial Second Class Magistrates were
appointed temporarily by direct recruitment from among the bar.
facts have been recorded in the judgement under appeal and are not in dispute.
Chairman of the Bar Council of Tamil Nadu filed a Writ Petition No. 11604/81
and on 20.1.1982 orders of injunction were passed restraining the Government
from regularising the services of all the temporary Second Class Magistrates.
This had the effect of stalling the process of regularisation of temporary
judicial officers. Two more writ petition were filed in the High Court (W.P.
Nos. 3053 and 3294/1984). In these writ petitions, a direction was sought for
filling up of all the vacancies in the posts of Magistrates and District Munsifs
only in accordance with the Rules.
order dated 10.5.85, these writ petitions were allowed and directions were
issued to regularise the appointments through the process of selection by Tamil
Nadu Public Service Commission within four months and to put an end to the
these proceedings were going on in the Madras High Court, petitions were made
in this Court in which this Court ordered transfer of proceedings pending in
the Madras High Court and both the writ petitions filed in the Madras High
Court and the writ appeals were disposed of by an order dated 5.8.1986 in which
it was inter alia directed as under:
find from the record that the High Court at a full Court meeting held on 30th
April, 1986, passed the following resolution | 'Insofar as the suggestions made
in the letter of Mr. Govind Swaminathan are concerned, the High Court is
agreeable only for regularisation of such of the Second Class as are found fit
on a proper scrutiny by a Committee of Judges. This regularisation will only be
in the cadre of Judicial Magistrates of the Second Class.
High Court is not prepared to accept the suggestion that Judicial Magistrates
of the Second Class who are officiating either as Judicial First Class
Magistrates or as District Munsifs should be regularised as Judicial First
Class Magistrates or District Munsifs, as the case may be. The regularisation
will be within the limits of the ratio prescribed by the Recruitment Rules. The
Government be also informed that such an arrangement has been agreed to between
the Chief Minister and the High Court will implement the same. The Magistrates
Association has given to the Chief Justice in writing a letter that they are
prepared to have the officers screened by a committee of Judges and such of
those who are not found fit be sent back.' Since the arrangement set out in
this resolution is agreed to between the Chief Justice and the Chief Minister
and the High Court has agreed to implement the same, we would direct that the
class of temporary Judicial Magistrates, Second Class, shall be scrutinised by
a Committee consisting of two or more learned Judges of the High Court and
after scrutiny and assessment of their merits, ability and integrity by the
Committee, the High Court will decide how many of them should be regularised as
Judicial Magistrates, Second Class.
will be within the limits of the ratio prescribed by the recruitment rules. The
seniority of those who are regularised will be fixed by the High Court in
accordance with the quota prescribed by the rules, in other words, seniority
will be fixes with effect from the respective dates on which each of them would
have been regularly appointed, having regard to the quota rule. The temporary
Judicial Magistrates, First Class or District Munsifs even if they have been
promoted as such. They will, however, be entitled to be considered for
promotion in accordance with the rules regulating promotions. They will also be
entitled to compete for the posts of District Munsifs. We hope and trust that
the question of regularisation will be taken up by the High Court at an early
date, so that those who are to be regularised, are assured of their
position." A further order was passed by this Court on 14.11.1986 on
application of some of the parties which was to the following effect:
directed by our order dated 5th August, 1986 that the cases of temporary
Judicial Magistrates, 2nd Class shall be scrutinised by a Committee consisting
of two or more Judges of the High Court and after scrutiny and assessment of
their merits, ability and integrity by the Committee, the High Court will
decide how many of them should be regularised as Judicial Magistrates, 2nd
Class. This regularisation will be within the limits of the ratio prescribed by
the recruitment rules. We also directed that the temporary Judicial
Magistrates, 2nd Class, will be regularised only in the cadre of Judicial
Magistrates, 2nd Class and not as Judicial Magistrates, 1st Class or District Munsifs
even if they have been promoted as such and that they will be entitled to be
considered for promotion to the post of District Munsifs. We are informed by
the Registrar of the High Court that the High Court has constituted a Committee
of three Judges for scrutinising the cases of temporary Judicial Magistrates,
2nd Class, as provided in our order and that this particular task is expected
to be completed within four months. Since we have directed that the temporary
Judicial Magistrates, 2nd Class, after scrutiny and assessment of their merits,
ability and integrity etc. should be regularised within the limits of the ratio
prescribed by the recruitment rules, it is obvious that the regularisation of
temporary Judicial Magistrates, 2nd Class who are found fit by the High Court
should be made in accordance with the quota prescribed by the recruitment rules
and if they cannot be regularised within their quota in a particular year in
which they have been appointed, they would have to be pushed down in order that
they may be absorbed within their quota in the subsequent years, if it is found
that out of the temporary Judicial Officers, 2nd Class, who are found fit, any
of them cannot be regularised within their quota by 31st March, 1987. (we are
modifying this date on the basis that the High Court requires a period of four
months to complete the scrutiny). We would suggest that such temporary Judicial
Magistrates, 2nd Class, may be continued on supernumerary posts to be created
by the State Government and they may continue in such supernumerary posts until
such time as they are absorbed within their quota in the following years. But
on no account should the quota be branched or violated in any manner
whatsoever." Pursuant to the directions of this Court and the findings of
the Screening Committee of the Madras High Court, the Government there upon regularised
the temporary services of the Judicial Officers in question as Judicial Second
Class Magistrates in two batches, vide G.O. Ms. No.
Home dated 10.5.1988 and G.O. Ms. No. 1269, Home dated 2.6.1988, whereby 182
and 34 temporary Judicial Officers respectively were regularised.
Tamil Nadu Public Service Commission in order to fill up vacancies in the posts
of District Munsifs, started the selection process and ordered the appointment
of 56 District Munsifs on 21.9.1988. It was at this stage that the Government
passed an order introducing an amendment to the Tamil Nadu State Judicial
Service Rules, providing for the manner of integration and fixation of inter se
seniority of the members of the integrated service. The amendments wee to come
into force with effect from 6.10.1988. At that time the Tamil Nadu State
Judicial Service consisted of three categories of District Munsifs –
who were regularly appointed through the Tamil Nadu Public Service Commission
on 26.3.1986 and 21.9.1988;
those who were selected and appointed by the Tamil Nadu Public Service
Commission from out of the regularised Judicial Second Class Magistrates; and
who became District Munsifs on 6.10.1988 consequent upon the principle of
Government Order G.O. Ms. No. 2196 was issued introducing several amendments to
the Tamil Nadu State Judicial Service Rules besides rescinding the Tamil Nadu
State Magisterial Service Rules.
validity of these amendments was challenged by a number of writ petitions
before the Madras High Court. The challenge, in particular, was to the third
proviso which was added to Rule 20 by clause 7 of the said Government Order.
said proviso fixed the principle of fixation of inter se seniority of judicial
officers. Rule 20 as amended is as follows|- "20. Seniority.- The
seniority of a person in the category of a service shall, unless he has been
reduced to a lower rank as a punishment, be determined by the rank assigned to
him in the list drawn by the Tamil Nadu Public Service Commission or the
appointing authority as the case may be, subject to the rule of reservation
where it applies. The date of commencement of his probation shall be the date
on which he joins duty irrespective of his seniority in the list. In the case
of member of category 2, such date shall be the date on which the approved
candidate joins duty after training.
that the seniority of any person in a service or post of the merged territory
of Pudukkottai, who is absorbed in a service or post under the Government of
Tamil Nadu shall be determined as follows|-
he is absorbed in a post similar to that which he was formerly holding in the
service of the merged territory of Pudukkottai, his seniority shall be determined by the date from which
he was holding the former post continuously.
If he is absorbed in a post of higher scale of pay than that which he was
formerly holding in the service, his seniority shall be determined by the date
on which he joined the post under the Government of Tamil Nadu.
If he is absorbed in a post other than those specified in clauses (i) and (ii),
which does not improve his cadre and scale of pay in the service, his seniority
shall be determined on the basis of merit:
further that the seniority in a category of the service of a person who
immediately before the 1st November, 1956, was serving in connection with the
affairs of the former State of Travancore-Cochin and who is allotted to the
State of Tamil Nadu for absorption in a category of the service under the
Government of Tamil Nadu be determined by the date from which he was
continuously holding a post in the corresponding category in the former State
of Travancore- Cochin; if the seniority of any such person and that of any
other person in the said service or post has to be determined with reference to
the same date, the older of the two shall be deemed to be senior.
also that as on the date of coming into force of this proviso, all regular
Judicial Magistrates of the First Class shall be placed according to their
existing seniority below the order of seniority of the regular Distinct Munsifs
and below them all permanent Judicial Magistrates of the Second Class shall be
placed according to their existing seniority and below them all the Judicial
Magistrates of Second Class whose services have been regularised before the
31st January, 1976 shall be placed according to their existing seniority. All
the Judicial Second Class Magistrates whose services have been regularised
during the year 1988 shall be placed below those Judicial Second Class
Magistrates whose services were regularised prior to 31.1.1976 according to
their existing seniority." The writ petition was dismissed by the Single
Judge on 5.10.1989. An appeal was preferred against the order of the learned
appeal court held that the third proviso Rule 20 was valid, logical and
reasonable. It further observed:- "The mere fact that their services may
be regularised in respect of some of them from such earlier dates of their
temporary officiation under Rule 11(4) of the Rules is an irrelevant and
extraneous consideration in so far as fixation of inter se seniority of the
members of the service forming the integrated service is concerned. The inter
se seniority shall have to be determined only by applying the principles
contained in the **** proviso to Rule 20 of the Rules." The appeal was
Leave Petition (No. 10214/91) filed against the appellate order was dismissed
by this Court on 5.12.94.
meantime, the Administrative Committee of the High Court comprising of the
Chief Justice and two other learned Judges of the Madras High Court went into
the question of fixing inter se seniority of District Munsif- cum-Judicial
Magistrates and a provisional list was prepared which was circulated on
12.8.1994 and objections were invited to be filed on or before 24.8.1994.
Subsequently, as requested by some of the Judicial Officers, the time for
filing objections was extended till 12.9.1994. About 105 Judicial Officers
submitted their objections/representations. These objections were placed before
the Administrative Committee and duly taken into consideration. Ultimately, on
15.9.1994 the Administrative Committee after considering the various objections
placed the recommendations before the Full Court on 23.9.1994. The following resolution was passed at the meeting of the
Full Court:- "It is resolved to overrule
the objections raised by some of the officials and accept the seniority list,
as approved by the Committee, subject to Thiru G. Mangapathy being placed at S.No.
76, Thiru G. Frederick Kanagaraj at S.No. 77, Thiru G. Namasivayam at S.No. 78
and Thiru J.D. Joseph at S.No. 79 and also subject to the decision of the
Supreme Court in S.L.P. No. 10214 of 1991.
further resolved that the Registrar shall file an affidavit in S.L.P. No. 10214
of 1991 and produce the seniority list as determined as per this resolution
following the judgement in W.A. No. 944 of 1989, which is subject matter of
S.L.P. No. 10214 of 1991 and also produce the Resolutions of Administrative
Committee No. III and the gist of objections filed by the District Munsifs,
Which have been overruled." The aforesaid facts relating to the
proceedings of the Administrative Committee about the finalisation of the
seniority list and the decision of the Full Court was stated by the Registrar of the Madras High Court by way of an
additional counter affidavit filed in the pending Special Leave Petition No.
10214 of 1991. A Notification dated 5.10.1994 was also issued fixing the
seniority list. This was published in the Tamil Nadu Government Gazette on
15.10.1994 a Writ petition No. 18121/94 was filed challenging the final list of
seniority. On 19.10.1994 an interim order was passed by the learned Single
Judge in the aforesaid Writ Petition, restraining the High Court from giving
effect to the final list. Further Writ Petitions (nos. 18162 and 19938 of 1994)
were filed on 22.10.1994. The entire group of Writ Petitions challenging the
seniority list was heard by a Division Bench of the High Court which quashed
the seniority list fixed by the Administrative Committee and the Full Court of
the High Court by its judgement and order dated 7.2.1995. The Division Bench
was of the view that the points in issue were substantially concluded by the judgement
in the earlier Writ Petitions.
been pointed out by the appellants that the High Court was clearly in error in
coming to that conclusion because in the earlier Writ Petitions Particularly
two points were considered:- (a) The proviso to Rule 20 of Tamil Nadu State
Judicial service Rules is arbitrary and violative of Articles 14 and 16 of the
Constitution of India as the proviso is not based on the principle that in
determining seniority, length of service in the particular category alone
should be taken into account and those who have been holding the post of
District Munsif for long period should not be denied the benefit of their
That the temporary service rendered by the appellants as District Munsifs must
be taken into consideration for fixing their inter se seniority as on
Division Bench held that the power and authority of the employer to frame rules
on seniority has to be recognised and the general principle of length of
service in a particular grade is subject to specific rules and orders, if any,
to the contrary. In the instant case, there were specific rules on the subject,
namely, Rule 20 and the third proviso and the principle underlying the third
proviso was necessitated to meet the extraordinary circumstances prevailing in
the particular service in question and in the context of integration, there was
nothing unreasonable or arbitrary in the formula contained in the third proviso
to Rule 20. Therefore, the third proviso to Rule 20 was validly framed.
the principal issue in the earlier writ petition was the validity of the third
proviso to Rule 20.
to the validity of this third proviso was rejected by the Division Bench. But
the dispute in this appeal is not about the validity of the third proviso to
Rule 20 or any other rule governing the service conditions of the Judicial
Officers. The question in this case is whether the rules were correctly
understood and implemented by the Administrative Committee or the Full Court by issuing the seniority list. Any
other observation which was not germane to the dispute raised before the
Division bench could not be treated as res judicata between the parties.
the earlier writ petition was by a few persons and all the affected persons
were not parties to that writ petition. That apart these writ petitions were
filed before fixation of the Seniority List by the Administrative Committee or
the Full Court. What is now under challenge is
this Seniority List. the question of validity of this Seniority List could not
have been an issue in the earlier writ petitions. The High Court was not right
in invoking the principle of res judicata in the facts of this case. The High
Court also overlooked the scope and effect of Rules 2(b)(i), 2(10) and 2(9) of
Tamil Nadu State Judicial Service Rules:- "Rule 2 (b)(i). 'Appointed to
the service' A person is to be appointed to the service when in accordance with
these rules, he discharges for the first time the duties of the post borne on
the cadre of the service or commences the probation prescribed for members
2(10). 'Member of the Service' Member of the service means a person who has
been appointed to the service and who has not retired, or resigned, had been
removed or dismissed, been substantively transferred to another service or
being discharged other than for want of a vacancy.
be a probationer and approved probationr or a full member of the service.
2(9). `Full member' Full member of the service means a member of the service
who has been appointed substantively to a permanent post borne on the cadre
thereof." The 75 recruits in 1988 including Respondents 4 to 14 became
members of the service only after 31.10.88, namely, when they started
discharging the duties of the post for the first time. They could not claim
seniority over the persons who were already members of the service. The fact that
they started discharging their duties after 31.10.1988 is not disputed.
resolution of the Administrative Committee which was adopted by the Full Court
Correctly states the position in law as under:- "The expression
"appointed to the Service" has been defined under Rule 2(b) of the
Tamil Nadu State Judicial Service Rules, hereinafter referred to as the Rules.
According to the said definition, a person is said to be appointed to the
service when , in accordance with the Rules, he discharges for the first time
the duties of the post borne on the cadre of the service or commences the
probation prescribed for the members thereof. It is from this date only he
becomes a "member of the Service" as per the definition of that
expression contained in Rule 2(10) of the Rules. Therefore, either the date of
selection or the date of appointment cannot be considered as the date on which
the appointee discharges for the first time the duties of the post to which he
is appointed . It is only pursuant to the appointment, when the appointee
reports to duty he can be said to have discharged his duties for the first time
on the date he reports to duty and from that date only his period of probation
this will not affect the inter-se-seniority of the officers appointed under the
same notification "of the Public Service Commission which make the
selection. We are not now concerned with the inter-se- seniority of the
candidates selected by the Public Service Commission under its notification dt.
21.9.1988, but we are concerned with the determination of the seniority between
District Munsif-cum- Judicial Magistrates who came to be selected by the Public
Service Commission under its Notification dt. 21.9.1988. The proviso to Rule 20
also does not give them seniority over the District Munsif- cum-Judicial
Magistrates who were in service before their appointment. It provides for
fixation of seniority as specified below:-
Regular District Munsifs.
Regular Judicial First Class Magistrates.
Permanent Judicial Second Class Magistrates.
Judicial Second Class Magistrates whose services have been regularised before
Judicial Second Class Magistrates whose services have been regularised in the
the 128 candidates selected by the Public Service Commission under its
notification dated 21.9.88, 70 were recruited from the Bar and 53 were those
who were already in Magisterial Service and whose services came to be
integrated on 6.10.1988, and the remaining 5 were selected by way of transfer
from other non-magisterial services. Thus, out of the 128 candidates selected,
53 candidates were already in service as Judicial Second Class Magistrates and
their services came to be integrated in the cadre of District Munsif-cum-
Judicial Magistrates under the order dated 6.10.1988. Thus, they became
District Munsif-cum-Judicial Magistrates on 6.10.1988 and commenced to
discharge their duties as such from 6.10.1988, as per the definition of the
expression "appointed to the Service", referred to above.
Consequently, they have to be ranked above the other 75 candidates selected by
the Public Service Commission under its notification dated 21.9.1988 and who
joined the service for the first time much later to 6.10.1988, i.e., during
November, 1988." According to the petitioners before the High Court who
are now the respondents in this appeal, the judgement of the Division Bench of
the Madras High Court must be upheld.
contention is that the Tamil Nadu Public Service Commission selected 128
candidates as per the ratio of 11:9 prescribed by the Tamil Nadu Judicial
Service Rules 1955.
the 128, 70 were from the Bar and 58 were from Feeder categories, that is
Judicial Magistrate I Class and II Class and Non Magisterial cadre. The
selection list was published by notification dated 7.6.1988. The above selectees
were appointed in G.O. Ms. 2064 Home dt. 21.9.1988. In this G.O. the State
Government requested the High Court in para 9 to give posting orders to the
persons appointed as District Munsifs working temporarily. Before issuing
respective posting orders to the individuals who were appointed as District Munsifs
in the substantive vacancies, on the recommendation of the High Court, Madras,
the state Govt. issued G.O. Ms. 2196 Home dt. 6.10.1988, upgrading the posts of
Judicial Second Class Magistrates to Judicial First Class Magistrates and
integrating them with District Munsifs. This G.O. had amended the Tamil Nadu
State Judicial Service Rules by introducing proviso 3 to Rule 20 providing for
the fixation of inter-se-seniority between the regular District Munsifs and the
upgraded Magistrates, who could not get selected as District Munsifs in the
selection by Tamil Nadu Public Service Commission, below the Regular District Munsifs
selected and appointed for the substantial vacancies in the year 1988.
behalf of the appellants, it has been urged that prior to 6.10.1988 when Tamil Nadu
State Judicial Service Rules came into force by G.O.M. No. 1053 dated May 10,1988,
182 temporary Judicial Second Class Magistrates were regularised. Similarly by
subsequent G.O.M. No. 1269 dated 2.6.1988 services of 34 temporary Judicial
Second Class Magistrates were regularised. Although on 21.9.1988, the State
Government approved a list of 125 candidates selected by the Tamil Nadu Public
Service Commission for the post of District Munsifs, they were not appointed as
District Munsifs. All these direct recruits whose selection by Tamil Nadu
Public Service Commission was approved by the State Government on 21.9.1988,
actually joined service only on 3.11.1988 which was after the appellants had
acquired the status of District Munsifs when on 6.10.1988 Tamil Nadu State
Judicial Service Rules were amended. Amongst them, 34 persons were already
acting as District Munsifs on 6.10.1988 and the rest of them became District Munsifs
by Virtue of integration brought into force on 6.10.1988. It has been submitted
that under Rule 2(b) "Appointment to the service" is only when a
person discharges for the first time the duties of the post borne on the cadre
of the service and under Rule 2(10) "Member of the Service". It is
thus clear that the direct recruits though selected by the Tamil Nadu Public
Service Commissions for the post of District Munsif and approved by the state
Government on 21.10.1988 were "appointed to the service" only on
3.11.1988 and at that point of time, all the appellants were already District Munsifs
in view of the integration brought about by the amended Tamil Nadu State
Judicial Service Rules.
of the view that the contentions of the appellants must be upheld. The Division
Bench took the view that the third proviso to Rule 20 has to be taken into
consideration for the purpose of determination of seniority, but in doing so
overlooked Rule 2(b) and Rule 2(10). The question of res judicata cannot arise
in this case because under the earlier writ petition, validity of proviso (3)
to Rule 20 was under challenge was repelled by the earlier Division Bench, the
Madras High Court took up the question of determination of seniority of the
judicial officers in accordance with the rules. What was under challenge in the
second batch of writ petitions was the determination of seniority by the Full
Court. The language of Rules 2 (b) and 2 (10) is clear. The direct recruits
were "appointed to service" only on 3.11.1988. It is only from this
date that the direct recruits started discharging the duties for the first
time. These direct recruits cannot be placed above the persons who were already
discharging functions as District Munsifs on regular basis on and from
8.10.1988 when the Tamil Nadu Judicial Service Rules were amended to bring
about integration of the Services. 34 persons were already acting as District Munsifs
even before 6.10.1988. There is nothing in Rule 20 or the third proviso thereto
which takes away the seniority of the persons who were "appointed to the
service" before 3.11.1988.
affidavit filed by the Registrar of the High Court in Writ Petition No. 17737
of 1994 and Writ Petition No. 17738 of 1994, the principle followed by the Full
Court in determining the seniority was explained which has been set out earlier
in the judgment. The Seniority List was finalised after inviting objections,
and making some amendments pursuant to the objections.
of the view that neither in principle nor in practice has the Full Court committed any error of law.
appeals are allowed. The common judgment dated 7.2.1995 disposing of Writ
Petitions Nos. 17737/94, 17738/94, 18121/94 of the High Court is set aside.
will be no case as to costs.
APPEAL NO. 2110 OF 1997 [ARISING OUT OF S.L.P. (C) NO. 6584 OF 1995 (CC NO.
3647).] I.A. allowed.
view of our judgment in Civil Appeal Nos. 2106-09 of 1997 (Arising out of
S.L.P. (C) Nos. 11111-11114 of 1995) the above appeal is also allowed. There
will be no order as to costs.