& Ors Vs. Dr. Ajay Kumar Jain  INSC 169 (31 March 2000)
Ruma Pal D.P. WADHWA, J.
appellants are aggrieved by the judgment dated May 24, 1994 of the Central Administrative Tribunal (Lucknow Bench)
('CAT' for short). The respondent, a Scientist, had filed Original Application
(OA No. 788 of 1993) seeking various reliefs. His petition was allowed by the
CAT giving the following directions: - "Accordingly, we hereby quash the
Office Memorandum dated 8.9.93 (Annexure 11 to the petition). As regards Office
Memorandum dated 5.6.92 we hold that the respondents are not bound to accept
the recommendations of the Selection Committee as regards fixing the
consolidated salary of the petitioner as Rs.3400/- and we deem it just and
proper to direct and do hereby direct that the consolidated salary payable to
the petitioner shall be nothing less than Rs.3737/- which the petitioner was
getting as a Pool Officer. The respondents are further directed to pay to the
petitioner accordingly the entire arrears of salary for the period commencing
from 1.8.91 till his re-engagement as Fellow Scientist and to continue to pay
the revised pay scale as shown in the table of the scale issued by the CSIR
vide its Office Memorandum dated 3.8.92 (Annexure R-11 to the rejoinder). The
respondents are also directed to put the petitioner on duty as scientist Fellow
as if the petitioner was not turned out on the basis of time limit and to regularise
the services of the petitioner taking into account his full length of service
rendered for CSIR as well as for CDRI with continuity of service and the
seniority." There are three appellants. First appellant is the Council of
Scientific and Industrial Research (CSIR), a Society registered under the
Societies Registration Act controlled by the Central Government. Second
appellant is the Director of Central Drug Research Institute, Lucknow (CDRI), a
body under the control of CSIR. Third appellant is the Senior Controller of
Administration in the CDRI. At the outset it was pointed by Mr. Soli J. Sorabjee,
learned Attorney General that in Sabhajit Tewary vs. Union of India and others
[(1975) 1 SCC 485] a Constitution Bench of this Court held that CSIR is not an
authority within the meaning of Article 12 of the Constitution. However,
whether CSIR is authority or not is not relevant for the purpose of decision of
the appellant sought leave to appeal to this Court under Article 136 of the
Constitution from the judgment of the CAT this Court issued notice to the respondent
limiting the notice as under : - "The only grievance made by learned
counsel for the petitioners is against the direction given by the Tribunal to
absorb and regularise the respondent even though his appointment was merely as
a Pool Officer, after expiry of the period of tenure of three years from the
date of his appointment.
notice returnable on 17.2.95 limited to this question stating that the matter
would be finally disposed of at this stage.
Ray Bhardwaj, learned counsel, entered appearance on behalf of the respondent.
No further notice is therefore necessary.
the operation of the Tribunal's order to this extent alone shall remain
stayed." Subsequently, leave to appeal was, however, granted.
how OA came to be filed by the respondent resulting in the impugned judgment by
the CAT we may refer to certain facts.
Scientists' Pool Scheme was formulated by the Central Government by Resolution
dated October 14, 1958. It was stated that Government of
India had under consideration the question of establishing a Pool for temporary
placement of well qualified Indian scientists and technologists returning from
abroad until they are absorbed in suitable posts on more or less permanent
basis. The Scheme was devised in consultation with CSIR. CSIR was authorised to
take all steps necessary for the implementation of the Scheme. Some of the
salient features of the Scheme are as under: - "1. A Pool shall be
constituted in the manner provided hereafter for a temporary placement of well-qualified
Indian scientists and technologists returning from abroad until they are
absorbed in suitable posts on a, more or less, permanent basis. Persons with
Indian qualifications who have outstanding academic records may also be
considered for appointment but, as the Pool is intended primarily for
facilitating the utilisation of Indian scientists and technologists abroad, the
proportion of persons with Indian qualifications who may be thus appointed will
not ordinarily exceed 25 per cent of the total number of posts in the Pool.
appointed to the Pool will be attached to a Government department or a State
Industrial enterprise, national Laboratory, university or scientific
institution, or given some other work depending on the requirement and their
qualifications and experience. Officers of the pool may also be seconded to a
Government Department or other organisations including industrial
establishments in the private sector. When a person is thus seconded to some
department or organisation for a period of a year or more, the resultant
vacancy in the Pool may be filled up if there are qualified candidates in
Controlling Authority : ............
Emoluments of Pool Officers...........
strength The authorised strength of the Pool at its initial constitution shall
be 100. The strength may be reviewed as often as is found necessary.
Recruitment Selections for the Pool will be made in consultation with the Union
Public Service Commission. A Special Recruitment Board will be set up
Conditions of service The Council of Scientific and Industrial Research will
frame regulations for regulating the conditions of service of Pool Officers.
such regulations are framed, Pool Officers will be governed by the existing
regulations which apply to temporary Class I Officers of the Council of
Scientific and Industrial Research." The respondent was given placement as
Pool Officer and was attached to the second respondent CDRI. His appointment
letter is dated May 25, 1988 and it reads as under: - Sub.: Appointment as Pool
Officer under the Scientists Pool Scheme of the Council of Scientific and
Industrial Research Dear Sir/Madam, I am happy to inform you that you have been
selected for appointment as Pool Officer under the Scientists Pool Scheme of
the Council of Scientific & Industrial Research on the following terms and
are offered a salary of Rs.2425/- per month (Rupees Two thousand four hundred
and twenty five only), plus allowances as admissible to a temporary Class I
Officer of the CSIR for a period of two year(s) or till you obtain a temporary
or permanent employment in India, whichever is earlier.
This offer is valid for three months only from the date of this letter and will
be treated as withdrawn if no acceptance is received during this period.
However, on receipt of a formal acceptance of the offer from you it will be
kept open for one year.
Please intimate your acceptance and return all the enclosed forms duly filled
in to this office.
case you accept the offer, you will be placed in a Government/quasi Government organisation
in India. As far as possible, efforts will
be made to match your professional specialisation with the objectives and
activities of the organisation of your placement. You may also contact such organisations
to arrange your placement.
all matters of service you will be governed by rules applicable to temporary
Class I Officer of the Council of Scientific and Industrial Research.
will take oath of allegiance to the constitution of India in the form enclosed (Annexure II).
During your stay in the Pool you will be under the administrative control of
the Head of the Organisation where you are placed for routine administrative
matters while for all other matters (extension beyond the present term,
contingency grant, all leaves other than casual leave, official tours etc.) you
will be under the control of CSIR.
will draw your salary as a Pool Officer from the day you join your duty.
are entitled to a contingent grant of Rs.10,000/- per annum as per guidelines
attached. You may submit your request for the grant through the Head of the
Department of the organisation to which you are attached as a Pool Officer.
Since the Scientists Pool provides temporary employment support, you will be
free to apply for any post in India in order
to secure a temporary or permanent employment.
Your continuation in the Pool and extension beyond the present term will depend
upon your performance as reflected through your work reports, sincere efforts
made by you to secure a regular employment and a satisfactory report from the organisation
of your placement. The prescribed forms for this purpose will be supplied to
you in due course.
Since stay in the Pool is of a short duration, Pool Officers are not allowed to
pursue higher education leading to a degree, diploma or a cert. The Pool
Officers are also not allowed to take up any private practice nor they are
entitled to any non-practising allowance in lieu thereof.
Your research contribution in the form of processes and patents acquired during
your stay in the Pool if property of the CSIR and you will not transfer any
knowledge or knowhow without prior permission of the CSIR.
You will be entitled to travelling allowance as per the CSIR rules for journeys
undertaking on official duty. No allowance will be admissible for the journeys
undertaken to join the duty or on termination of your appointment in the Pool.
Your appointment in the Pool can be terminated at any time without assigning
any reason whatsoever.
you have secured a job and do not wish to join the Pool now, please write to us
about the organisation you have joined." It is not disputed that maximum
period for which a person could be appointed as Pool Officer is three years
which in the case of the respondent expired on July 31, 1991. At that time the respondent was being paid emoluments of
Rs.3,737/- per month.
had another scheme called "Scheme of quick recruitment of Scientists
(Fellows) for major projects" (for short "Quick Hire Scheme").
Under this scheme the Director constitutes a committee with himself as Chairman
for selection of scientists. This Quick Hire Scheme prescribes different levels
of emoluments depending upon the qualifications etc. of the Scientist, who is
to be appointed. The appointment of such Fellows (Scientists) is to be on
contract for a period not exceeding three years, which may be terminated by a
notice of three months from either side (or three months' emoluments in lieu
contract could not be extended beyond the maximum period of three years.
the expiry of the period of three years, the respondent as Pool Officer was
selected for appointment under Quick Hire Scheme after a gap of few months.
had appeared before the Selection Committee under the Quick Hire Scheme on March 11, 1992 and appointed as Scientist Fellow
of CDRI by appointment letter dated March 17, 1992. The Selection Committee considered
the case of the respondent for emoluments in the level/range of Rs.3000-4000
and recommended his pay as Rs.3400/- per month.
On May 7, 1992 the respondent wrote to the Director, CDRI seeking
protection of his salary which earlier he was getting as Pool Officer. We quote
his letter: - "Sir, With due respect hereby, I would like to draw your
kind notice to the following points: - - that earlier when I was working as
Pool Officer my total salary was Rs.3737/- p.m.
currently my salary has been fixed at Rs.3400/- p.m. under the Quick
apparently there is big difference in my total emoluments.
shall be grateful, if you could kindly do the needful to protract my salary
status to encourage my Scientific Zeal and enthusiasm.
regards, Yours faithfully, Sd/- (DR. AJAY K. JAIN) Scientist Fellow of DRI
Division of Toxicology" Request of the respondent was not acceded to and
he was informed by Office Memorandum dated June 5, 1992 as follows:
Dated 5.6.1992 OFFICE MEMORANDUM With reference to his application dated 7th
May, 1992 Dr. Ajay Kumar Jain, Scientist Fellow is informed that the Selection
Committee recommended his appointment as Scientist Fellow on a consolidated
salary of Rs.3400/- p.m. in the range of Rs.3000-4000 under quick hire scheme.
the appointment has been made in accordance with the recommendation of the
Selection Committee it is regretted that his request for fixing his emoluments
at the level of Rs.3737/- drawn by him as Pool Officer can not be acceded
to." While respondent was appointed as Scientist Fellow of CDRI under
Quick Hire Scheme with effect from March 17, 1992 for one year at the first instance,
on the expiry of period of one year Director CDRI had approved the extension of
his contract for a further period of six months with effect from March 17, 1993. Representation of the respondent
for extension of his tenure was rejected and the rejection was communicated to
him by Office Memorandum dated September 8, 1993
as under: - "No.5(136)/82-Estt.I. Dated 08.09.1993 OFFICE MEMORANDUM With
reference to his application dated 12.08.1993 Dr.
Jain, Fellow of CDRI is informed that it is not possible to extend the tenure
beyond 16.09.1993." The respondent approached the CAT challenging the
Office Memorandum dated September 8, 1993 and also rejection of his request for
being paid at the rate of Rs.3737/-, the rate at which he was drawing as Pool
Officer before his appointment as Scientist Fellow under the Quick Hire Scheme.
further prayed that he be reinstated with full arrears of salary and other
perquisites and consequential benefits. Respondent also sought payment of his
salary for the period from August 1, 1991
when the appointment as Pool Officer ceased and till his subsequent engagement
as Scientist Fellow on March
17, 1992. His OA was
allowed by the CAT with the directions aforesaid.
we consider the rival submissions we may note the case of Pratibha Misra, which
came to this Court on a Special Leave Petition filed by the CSIR. Pratibha Misra
was also doing research work since her appointment as Junior Research Fellow in
1981. Lastly, by order dated 11.6.1993 she was appointed as Senior Research
Associate (Pool Officer) under Scientists Pool Scheme on the basic pay of
Rs.2350/- per month plus allowances for a period of three years with no further
extension. As in the case of the respondent before us the offer to Pratibha Misra
indicated that she would be free to apply for any post in India in order to secure temporary or
permanent employment. Pratibha Misra represented to the Director of National
Botanical Research Institute, Lucknow (NBRI) for her appointment in regular
cadre of CSIR on the post of Scientist. She also similarly addressed a letter
to the Director General, CSIR on the same subject. However, she was told by
Office Memorandum dated November 22, 1995 of the NBRI rejecting her request for
appointment in the regular cadre of CSIR on the post of Scientist 'C'/'B' not
being covered by the extant rules. She was also advised by the said Office
Memorandum to apply against the post as and when advertised in accordance with
her area of research. Similarly, by letter dated January 9, 1996 Pratibha Misra was also informed by CSIR that the extant
guidelines did not provide for automatic absorption of Pool Officers in CSIR in
regular service. Pratibha Misra challenged both these communications by filing
OA before the CAT, Lucknow Bench.
allowed her OA by issuing various directions as under:
"20. Considering therefore, the conspectus of the case in the background
of the foregoing discussions and also keeping in view the principles of equity
and justice while we reject the reliefs prayed for by the applicant, we
simultaneously order as below:
The applicant shall continue to be paid at the existing rate until she is
absorbed in one of the scientific posts under the CSIR and her services may be utilised
by the respondents during this period in an appropriate manner.
The case of the applicant shall be considered for appointment as Scientist in
an existing or future vacancy, if necessary by granting age relaxation, as per
CSIR Service Rules.
The respondents shall formulate a scheme for absorption of scientific
researchers at suitable levels in respect of those who have put in long years
of research particularly those with 15 years or more.
the alternative the respondents may suitably amend CSIR Service Rules, 1994 so
as to include a provision for absorption of Scientific Researchers at suitable
levels in respect of those who have put in long years of research work,
particularly, 15 years or more. Modifications to be made in the Service Rules
may provide for grant of weightage as may be considered appropriate to the
period of research work already put in, especially for purposes of relaxation
in age and qualifications. Provisions of weightage for purposes of fixation of
seniority and for grant of advance increments could also be considered.
The above directions except those in Para 20(i) which come into force
immediately shall be complied with within a period of six months from the date
of communication of these orders.
case the applicant has already not been absorbed as per directions contained in
Para 20(ii) above, her case shall be considered within 2 months of formulation
of the scheme or the amendment of the service rules as the case may be, in
pursuance of the observations in Para 20(iii) above." Aggrieved CSIR and
others came to this Court seeking special leave to appeal. However, by order
dated May 2, 1997 this Court refused to interfere with the following
observations: - "We feel that having regard to the facts and circumstances
of this case, the direction of the Tribunal in respect of the respondent Dr. Pratibha
Misra, should not be disturbed. However, so far as the formulation of scheme is
concerned, we direct the petitioners to consider the question of formulating a
scheme for people who are working on contract basis. The special leave petition
is disposed of." We do not think that decision of the CAT in the case of Pratibha
Misra and dismissal of the special leave petition by this Court would have any
bearing on the issue involved in the present appeal. This Court did not
consider the issues involved in the case of Pratibha Misra on merit and
proceeded to dispose of the special leave petition on the facts and the
circumstances of that case.
in view of the directions of this Court a scheme was propounded on July 3, 1998 effective from May 2, 1997 the date of dismissal of the special leave petition
in Pratibha Misra's case by this Court. This scheme was challenged in the CAT
and also by filing a petition under Article 32 of the Constitution in this
Court. The petition under Article 32 of the Constitution was, however, allowed
to be withdrawn with liberty to challenge the Scheme before the CAT. It is
contended by the appellants that purpose of two schemes, i.e., Scientist Pool
Scheme and Quick Hire Scheme are altogether different. Under the Pool Scheme a
scientist is retained to check the brain-drain from India and in the meanwhile to secure
alternative job. The purpose of Quick Hire Scheme though the result may be the
same but here it is to give quick appointment to a scientist on contract basis
which is not to exceed three years period.
therefore, contended that since the purpose of both the schemes is different,
the respondent could not have asked for emoluments in Quick Hire Scheme at the
same rate he was getting as Pool Officer. Technically that may be so but when
Quick Hire Scheme envisaged an emolument between three to four thousand there
does not appear to be any sound reason for the Selection Committee to recommend
pay of the respondent at the rate of Rs.3,400/- and not at Rs.3,737/-.
Committee must have been aware of the amount of emoluments drawn by the
respondent as Pool Officer. We are left in dark as to what weighed with the
Selection Committee to recommend lower emoluments. It is the CSIR, the
appellant, under which both the schemes are being worked.
only say that the decision of the Selection Committee is not informed with
proper reason. CAT is, therefore, right in directing that the respondent be
paid @ Rs.3,737/- per month while working as Scientist Fellow under the Quick
Hire Scheme. Appointment of the respondent as Scientist Fellow under Quick
Higher Scheme was for the period of one year to be extended for a maximum
period of three years.
the expiry of one year of period, he was informed that his contract could not
be extended beyond a period of six months effective from March 17, 1993. His services were terminated after
the expiry of this period. CAT has held that the extension of the placement of
respondent for six months period was not in order as the letter of appointment
stated that the period was renewable on year to year basis and further that the
appointment of the respondent should not have been made co-terminus with the
project only. The duration of tenure of Scientist Fellow is as under :
"The appointment of such Fellows will be on contract for a period not
exceeding three years and it may be terminated by a notice of three months from
either side (or three months' emoluments in lieu thereof). The contract cannot
be extended beyond the above maximum period." We may also quote here paras
1 and 3 from the appointment letter dated March 17, 1992 of the respondent :
Your appointment will be on a contract for a period of one year extendable on
year to year basis for 3 years. Your services can, however, be terminated at
any time after a notice of 3 months' from either side without assigning any
reason. 3. The position is contractual and will not confer any right whatsoever
for absorption in the regular strength of the Institute." It would,
therefore, appear that though the maximum period is three years, it could not
be said that the contract could not be terminated before the expiry of that
period. Rather the clause clearly provides that the contract could be
terminated by giving notice of three months from either side. However,
extension of contract for a further period of six months does not mean that the
appellants have exercised their option to terminate the contract by giving
three months notice. Extension of contract for six months cannot be equated
with the notice of termination of contract as provided in para 1 of the letter
of appointment. The question then arises if the contract could be extended for
six months period only when the Scheme and the letter of appointment envisage
extension of the contract on year to year basis. Both the schemes serve twin
purposes. Highly qualified Indian scientists and technologists returning from
abroad get temporary placement until they are absorbed in suitable post on more
or less permanent basis. Nation also gains from the experience and knowledge of
the scientists who have been working abroad.
with pride that these scientists return to their motherland. They are to be
shown due deference and consideration. Conditions are to be created that they
do not again leave the country. The emoluments which are given to these
scientists cannot be treated as a mere dole. They come back to the country of
their origin with high hopes.
should not await them in the long run. The respondent was working as Post
Doctoral Fellow in Japan before he came to India to be placed as Pool Officer.
After the expiry of his tenure as Pool Officer, he was selected and appointed
as Scientist Fellow under the Quick Hire Scheme by duly constituted Selection
Committee. He was appointed for one year. His placement could be extended on
year to year basis for a maximum period of three years.
the expiry of first one year period, he was given extension of six months. His
representation for further extension was turned down. We do not know if his case
of extension was again placed before the Selection Committee and what reasons,
if any, prevailed upon the appellants to extend the term of the respondent for
six months only. In the counter affidavit before the CAT or in the grounds of
appeal, appellants have not given any reasons for such an extension of six
months period only. This action of the appellants on the face of it seems to be
rather arbitrary and it appears to us that in this respect they have meted out
shabby treatment to the respondent, a scientist. In the circumstances,
therefore, CAT is right in holding that the respondent would have continued for
a full term of three years under the Quick Hire Scheme. But then the CAT has
gone a step further and has directed the appellants to regularise the services
of the respondent which does not appear to be correct. No doubt, Scientists
Pool Scheme and Quick Hire Scheme provided a sort of cushion to the scientists
returning from abroad and under the circumstances period of their engagement
under either of the schemes has to be for a limited period. For regular
appointment or absorption in CSIR or any of its bodies the scientists have to
be governed by the relevant service rules as applicable.
under the Quick Hire Scheme was on contract basis. The respondent was not
governed by CSIR Service Rules, 1994 for recruitment of Scientific, Technical
and Support Staff as he would not be appointed under those Rules. An
appointment under the Quick Hire Scheme cannot be equated with regular
appointment as per the relevant recruitment rules of CSIR against a sanctioned
post. To be eligible for regularisation, the respondent had to come within the
relevant rules. It is difficult to appreciate the directions issued by the CAT
in the circumstances of the case. A Pool Officer or a Scientist Fellow under
the Quick Hire Scheme cannot continue to hold on to the job till
superannuation. The respondent has referred to certain instances where
scientists were appointed on permanent contractual post by CSIR without following
the selection procedure. If something wrong has been done in violation of the
rules, we cannot use that as an example to perpetuate an illegality. In any
case those cases are not before us and it is difficult for us to comment if
there was violation of any rules regarding those scientists. Respondent,
however, cannot take advantage of an illegality, if there is any.
as Scientist Fellow under the Quick Hire Scheme cannot be understood to mean
regular appointment under the relevant recruitment rules applicable to CSIR or
to bodies under its control. The term 'appointment' has been only loosely used.
It is mere placement as Scientist Fellow and not appointment in the sense in
which this term is used in service law. As noted above, a scheme has been
framed for absorption in the Pool effective from May 2, 1997. If the respondent
case is covered by that scheme, he will certainly be entitled to be considered thereunder.
We may refer to a decision of this Court which was rendered in somewhat similar
circumstances. In Director, Institute of Management Development, U.P, vs. Smt. Pushpa
Srivastava [JT 1992 (4) SC 489 = (1992) 4 SCC 33] the respondent was first
appointed as Research Executive on a consolidated fixed compensation of
Rs.1,250/- per month on contract basis for a period three months. It would
specifically stated in the order that the appointment was purely on ad hoc
basis. Appointment of the respondent continued on various posts like Training
Executive or Executive on different emoluments but always on ad hoc basis.
Before the expiry of the last period for which the appointment was made the
respondent filed writ petition in the Allahabad High Court seeking regular or
permanent appointment. She succeeded. High Court directed that she may be taken
back on duty on the post hitherto held by her and that her services be regularised
within a period of three months. On appeal filed in this Court, both the
parties referred to relevant rules governing service conditions of the
employees of the appellant in support of their respective contentions.
Appellant referred to the office letter dated January 9, 1990 by which the respondent was appointed which stated that
"with effect from the date of joining Smt. Pushpa Rani Srivastava is
appointed on a consolidated fixed pay of Rs.2400/- per month on contract basis
for a period of six months in the Institute. The appointment of Smt. Srivasvata
is purely on ad hoc basis and is terminable without any notice. " On that
basis it was submitted that Pushpa Rani was appointed on contractual basis on a
consolidated pay and duration of appointment was six months. The appointment
was purely on ad hoc basis and was terminable without any notice. After
examining the various contentions this Court held that the directions given by
the High Court were not valid. It said that the appointment was purely ad hoc
and on contractual basis for a limited period. Therefore, on the expiry of the
period of six months the right to remain in the post comes to an end.
viewed, which this Court said was the only view, judgment of the High Court was
set aside. The Assistant Director of the CDIR and Scientist-In-Charge
appreciated the work of the respondent and recommended for the regularisation
of his services and these recommendations did merit consideration. The
respondent, it appears, after the expiry of his fixed period continued to work
as Pool Officer under the Assistant Director CDRI in the hope of getting
extension till he was selected Scientist Fellow under the Quick Hire Scheme without
there being any order in his favour respecting that period. He could not,
therefore, be awarded any emoluments for that period for which he continued to
work as Pool Officer without there being any order in his favour. Yet the CAT
awarded him emoluments for that period which appear to be rather irregular. We,
however, notice that the leave was granted only to consider if the CAT could
give directions to absorb and regularise the respondent when his appointment
was merely as Pool Officer or Scientist Fellow. We shall not, therefore,
disturb the order of the CAT that the respondent to be paid emoluments for the
period from July 31, 1991 to March 17, 1992 @ Rs.3,737/- per month. We,
therefore, set aside the impugned judgment of the Central Administrative Tribunal
(Lucknow Bench) whereby it directed the appellants to put the respondent on
duty as Scientist Fellow as if he was not turned out on the basis of time limit
and to regularise his services taking into account his full length of service
rendered for CSIR as well as CDRI with continuity of service and the seniority.
The impugned judgment is, however, upheld to the extent that the respondent
would be entitled to emoluments @ Rs.3,737/- per month as Scientist Fellow
under the Quick Hire Scheme from March 17, 1992 for a period of three years and
further the respondent will also be entitled to emoluments at this rate for the
period from July 31, 1991 to March 16, 1992. Since there was no stay of this
Court regarding payment of these amounts to the respondent, he shall also be
entitled to interest @ 12% per annum on the delayed payments. Appellants shall
be entitled to deduct the amount already paid to the respondent. The arrears
shall be paid within a period of eight weeks from today.
appeal is partly allowed. There shall, however, be no order as to costs.