H.S. Atwal
Vs. Union of India [1994] INSC 404 (27 July 1994)
Hansaria
B.L. (J) Hansaria B.L. (J) Kuldip Singh (J)
CITATION:
1994 AIR 2531 1994 SCC (5) 341 JT 1994 (5) 346 1994 SCALE (3)555
ACT:
HEAD NOTE:
ORDER
1. We
have heard the learned counsel at some length.
2. We
are of the firm opinion that the object of Section 7(2) of U.P.(Temporary)
Control of Rent and Eviction Act, 1947 is to prevent private renting and
thereby circumvent of the provisions of the Act. Certainly, where a decree of
eviction, obtained under any of the grounds mentioned in Section 3 of the Act
and after that decree is yet to be executed, the landlord need not go before
the District Magistrate under Section 7(2) and ask for permission to occupy. If
such a power is conferred on the District Magistrate, he can set at naught the
decree of the court obtained after contest. This may include even the High
Court or even a higher court. Law cannot be administered unreasonably that way.
The appeal will stand dismissed.
All
interim orders passed during the pendency of the civil appeal will stand
vacated.
1 Suit
No. 335 of 1978 342 The Judgment of the Court was delivered by H.S. ATWAL v.
UNION OF INDIA (Hansaria,J.) HANSARIA, J.- The "spinal issue" (which
is the expression used in the impugned judgment of the Administrative Tribunal)
in these appeals is relatable to the interpretation of Rule 4(1) of Demobilised
Indian Armed Forces Personnel (Reservation of Vacancies) in the Himachal
Pradesh Administrative Service Rules, 1974, hereinafter, the Rules. The precise
point for our consideration is whether a member of armed forces covered by the
Rules would get the benefit of period of military service rendered by him for
the purpose of his seniority irrespective of the fact that while under military
service he did not get any opportunity to enter the Himachal Pradesh
Administrative Service which such a member had joined after demobilisation.
2. To
answer the aforesaid question we may note the broad facts pertaining to one of
the appellants only, he being H.S. Atwal, appellant 1, as that would serve our purpose,
Atwal had joined the army sometime in 1963 and left it in 1968. He joined the Himachal
Pradesh State Administrative Service in 1975. The first examination which had
been conducted to enable any person to join the State Administrative Service
was in 1973. Atwal took a stand, on the strength of the aforesaid rule, that
though the first opportunity which became available to him was in 1973, his
period of military service which was of about five years, has to be reckoned
for the purpose of his 343 seniority, whereas he was taken to have entered the
Administrative Service on 25-7-1971, which was the date Himachal Pradesh got
Statehood. Atwal thus got benefit of about four and a half years for the purpose
of his seniority whereas this period would have been five years if the
contention of Atwal were to be accepted. The Tribunal not having done so the
present appeals have been preferred.
3. Let
us note the material part of Rule 4(1):
"Fixation
of pay, seniority and retirement benefits.- (1) The period of military service
rendered after attaining the minimum age prescribed for appointment to the Himachal
Pradesh Administrative Service, by the candidates appointed against reserved
vacancies under Rule 2 shall count towards fixation of pay and seniority in the
said service subject to the condition that, - (a) the date of appointment in
the Himachal Pradesh Administrative Service in respect of such candidates as
are appointed against the reserved vacancies under Rule 2 shall be determined
on the assumption that they joined the service under the State Government at
the first opportunity they had after joining military service or training prior
to the commission.
4. Shri
Sachar, learned Senior Advocate appearing for the appellants, has strenuously
contended that denial of period of military service to the appellants on the
ground that no opportunity of entering Administrative Service had become
available to them during the period of their military service is not tenable;
and is really against the decision of this Court in S.B. Dogra v. State of H.
P.
5. Let
us first see whether Dogra case' can be called in aid, though the first
opportunity to join the Himachal Pradesh Administrative Service had become
available in 1973.
A
perusal of the judgment in Dogra case' shows that this Court had in fact
expressed no view on the legality of the ground basing on which seniority was
given to Dogra from 1964, though in his case also first opportunity had become
available in 1973. This becomes apparent from what has been stated in paragraph
10 to which our attention has been invited by Shri Mehta appearing for some of
the interveners.
It has
been stated therein that as respondent Amist (sic) challenged the seniority of Dogra
for the first time in 1983, the same ought not to have been disturbed by the
Tribunal after a long lapse of time, as it had been finalised in 1979. This
Court also observed that the Tribunal should have been slow in these
circumstances in interfering with the seniority which was holding the filed for
last several years. As such what was accepted in Dogra case, cannot assist the
appellants.
6. Let
us now see whether the contention of Shri Sachar has merit dehors Dogra
decision'. He contends that what was held by this Court in Union of 1 (1992) 4
SCC 455: 1993 SCC (L&S) 36: (1993) 23 ATC 358 344 India v. Dr S. Krishna
Murthy2, would bear his contention.
We do
not however, think so. The point under consideration here had not come up for
examination in that case because the appellants therein had joined the army
between 1962-68 and opportunity to join the Indian Police Service and Indian
Forest Service had become available to them for the first time in 1963 and so
during the period of their military service. That was not a case where the
first opportunity to join the civil services had become available after the
incumbents had ceased to be in military service, as in present appeals.
7. The
decision in Ex-Capt. K.C. Arora v. State of Haryana3, which was heard along
with the appeal of Ex-Capt. A.S. Parmar3 does not also advance the matter
because those cases principaly dealt with retroactivity of the benefit given by
a parallel provision whose language was also different a,, has been pointed out
in paragraph 7 of Dogra case'. For the same reason the decision of this Court
in Narendra Nath Pandey v. State of Up.4, is not relevant as the language of
rule which had come up for consideration in that case too was differently
worded as observed in paragraph 9 of Dogra case'.
8.
Having found that no light is shed by any of the aforesaid cases, let the point
under consideration be examined on first principle. Shri Sachar's main
contention strenuously advanced is that what has been stated under clause (a)
of the sub-rule dealing with the condition cannot take away the benefit
conferred by the main part of sub-rule (1) which is about reckoning of military
service for the purpose of seniority. According to the learned counsel this
benefit has to be given irrespective of the fact whether the condition
mentioned under clause (a) gets satisfied or not.
This
legal contention is disputed by the learned counsel of the respondents,
according to whom the sub-rule has to be read as a whole and the main part of
it cannot be read in isolation, that is, without taking note of the condition
subject to which the period of the military service has to be reckoned for the
purpose of seniority.
9. To
decide as to which of the contentions merits our acceptance we have to know the
purpose for which the benefit has been given. The same apparently is to see
that the persons who joined military service to defend the country from
external aggression which took place in 1962 do not suffer from disadvantage as
regards their seniority in civil services which they had joined after demobilisation.
It may be pointed out that before the rules at hand came into existence, there
had been similar administrative circulars, the first of which seems to be one
which was issued in July 1963 which has been noted in K.C Arora case3. The
benefit sought to be conferred however was hedged by the condition mentioned in
clause (a).
10. A
Full Bench of the Punjab and Haryana High Court had occasion
to deal with the question under examination, though in a different context.
That 2 (1989) 4 SCC 689: 1990 SCC (L&S) 23: (1989) It ATC 892 3 (1984) 3
SCC 281: 1984 SCC (L&S) 520 4 (1988) 3 SCC 527: 1988 SCC (L&S) 841:
(1988) 7 ATC 967 345 was in the case of Khusbash Singh Sandhu v. State of Punjab5. In that case the incumbent claimed
the benefit of similar rule from 1964, in which year the first examination for
the purpose of recruiting the member for the Service in question was held,
though by that year he was not qualified to appear in the examination. The Full
Bench held that the rule did not permit the benefit of the military service to
be given for the purpose of seniority, the incumbent being not qualified to
appear in the examination which was held in 1964. It was observed in paragraph
10 that the opportunity of which the rule speaks of, though presumptive, has to
satisfy the conditions prescribed by the Rules. It was also stated that Rule
4(1)(a) does not tend to make the opportunity fictional and it does not relax
the rigours imposed; one of which was the necessity of having required
qualification before one could be accepted as eligible for appearing in the
examination.
11. We
may point out that when a fiction is created by a legal provision, it cannot be
carried beyond the purpose for which it has been created, as pointed out by
this Court in K.S. Dharmadatan v. Central Govt.6 This view had been taken after
noting some important Indian and English decisions to which reference was made
in paragraphs 11 to 13.
12. As
the benefit of the military service for the purpose of seniority has been
hedged by a condition and as the condition got satisfied in the present cases
only in 1973, we cannot agree with Shri Sachar that the period of military
service between 1963 to 1968 was required to be reckoned to determine the
seniority of Atwal; so too in case of other appellants who are similarly
situated. The purpose for which the sub-rule was made does not require giving
of benefit in question even if the condition mentioned in the sub-rule is not
satisfied. The condition imposed is reasonable and sufficiently compensates the
members of the armed forces for the contribution made by them to protect the
country during the year of 1962 external aggression.
13. We
have another observation to make. The same is that the sub-rule, as it is, tends
to show that the opportunity in question should have become available to the
incumbent during the period of their military service. This was not so in the
present case. It may thus be that the entire sub- rule became non-operational
on this ground as well.
Question
is whether in such a situation it would be open to this Court to give the
benefit of period of military service regardless of what has been stated in the
sub-rule because of the services rendered by the appellants when our country
was in distress. We have given our due thought to this aspect and we feel that
law does not permit us to do so because the well-settled legal principle is
that in the absence of rule or executive instruction indicating the manner in
which inter se seniority has to be fixed, it is length of service which is the
basis for fixing the same, as pointed out by a two-Judge Bench in paragraph 5
of 5 (1981) 2 SLR 576 (P&H) 6 (1979) 4 SCC 204: 1979 SCC (Cri) 958 346 Desoola
Rama Rao v. State of A.P.7 The same view was expressed in Union of India v. Ansusekhar
Guin8, in which another two-Judge Bench of this Court stated that continuous
length of service is the well-accepted rule of fixing inter se seniority, when
the service rule does not prescribe any mode of fixing the same (See paragraph
5).
14. In
the aforesaid premises, we are not in a position to accept the legal submission
advanced by Shri Sachar because of which the appeals stand dismissed. We,
however, leave the parties to bear their own costs.
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