S.R. SRINAVASA AND ORS. v. S. PADMAVATHAMMA

A The Judgment of the Court was delivered by

SUF~INDER SINGH NIJJAR, J. 1.This appeal by special leave has been filed by the legal heirs of the origin()I plaintiff, Lalithamma. OS No.195 of 1986 had been filed by La_lithamma in the Court of Civil Judge, Mysore which was subsequently re- 8 numbered as OS No.1434 of 1990 in the Court of Principal Civil Judge, (.Junior Division), Mysore. The suit was for declaration that the plaintiff and defendant No.4 are the absolute owners of the suit schedule property and for possession thereof. The suit was dismissed by the trial court. The appeal filed by the plaintiffs against the aforesaid judgment was allowed. The suit filed by the plaintiffs was decreed as prayed. The High Court, however, in regular second appeal filed by the respondent herein, set aside the judgment of the first appellate court and restored the judgment of the trial court, i.e. the suit filed by the plaintiffs-appellants was dismissed. In these circumstances, the legal representatives of the original plaintiffs have filed the present appeal by special leave in this Court.

2. Briefly stated the facts of the case are that the plaintiffs claimed that Puttathayamma was wife of Sivaramaiah who pre- deceaseci her in 1950. Puttathayamma died on 15.11.1979. She had four children. Lalithamma (daughter) who died in 1990, was the original plaintiff. Subbaramaiah (son) who died issuelesi; in 1973 and Smt. Kamalamma (daughter) also died issueles!i in 1998. She was impleaded as defendant No.4 in this suit. Smt. lndiramma was the 4th child. She also died issuelesB on 24.10.85. It is claimed that upon the death of Subbaramaiah, Puttathayamma inherited the suit property and became the absolute owner being class one heir of G Subbaramaiah. Upon the death of Puttathayamma, the deceasE!d plaintiff, defendant No.4, Kamalamma and lndiramrna inherited her property. During her :ife time, Puttathayamma was living with lndiramma. Upon her death, lndiramrna continued to be in possession of the property. The dispute about the property arose soon after the death of ti lndiramma.

p. 989 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

3. Since the original plaintiff - Lalithamma and defendant A No.4 were residing outside, they did not come to know about the death of their sister, lndiramma. Defendant No.1 claiming to be close relative of deceased lndiramma organized and performed her cremation ceremony. The house in which lndiramma was residing i.e., schedule property contained a lot B of movable properties such as gold and silver jewellery and other articles which were of considerable vcilue. He took charge of the house as well as the moveable properties by putting it under lock and key. On learning about the death of their sister, appellants and defendant No.4 came to Mysore: They c demanded that defendant No.1 should hand over the possession of the house and moveable properties. He, however, refused to do so asserting that he was the absolute owner of the entire property. Not only this, it is stated that defendant No.1 had taken away several lacs of rupees which D had been kept by lndiramma in various fixed deposits. Defendant No.1 had declined to hand over the title deeds of the schedule property as well as the bank deposit receipts.

4. The appellant and defendant No.4 also learnt that ttie first defendant had taken heavy advances from defendants No.2 E and 3 and put them in possession of different portions of the schedule property as tenant. He had _!>een recovering heavy rent from defendants No.2 and 3. During the pendency of the suit, defendants No.2 and 3 vacated the suit schedule property. Later, defendant no 5 was put in possession of the property. F

5. In the suit, it is made clear that appellant and the 4th defendant will take separate action regarding the bank deposits and other moveable properties in appropriate proceedings after ascertaining the particulars thereof. It is clarified that the present G suit was filed for declaration of the title to the property and for possession as the first defendant has denied their title by refusing to hand over the property to them.

6. We may also notice here that during the pendency of H

p. 990 Copy page pinpoint

A the suit, defendant No.4 also passed away issueless. The amended suit was, therefore, pursued by the L.Rs of deceased Lalithamma.

7. In the written statement, it was claimed by the defendant No.1 thal: Puttathayamma had executed a Will on 18.6.1974 in 8 favour of lndiramma. Cons~quently, there was no intestate succession. Testamentary succession devolved on late lndiramma. Therefore, neither the plaintiffs nor the 4th defendant could succeed to the properties of Puttathayamma at all. During C the life time of lndiramma.. her sister did not care to even look after her. The moment she died, they have claimed to be heirs of her estate. Defendant No.1, on the other hand, is the son of Seetharnma, sister of Puttathayamma. He denied the entire claim made by the plaintiffs. He further explained that he had informed the plaintiff and defendant No.4 about the death of D lndiramrna. Although the plaintiff turned up on the 5th day, the 4th defendant did not choose to come at all. Defendant No.1 further claimed to have carried out extensive repairs of the house. It is also pleaded by defendant No.1 that lndiramma was the secc1nd wife of one Chalapati Rao, who pre-deceased tier. E Althoµgh Chalapati Rao did not beget any children with lndiramrna, he died leaving four sons and two daughters from his first wif~ According to the first defendant, the legal heirs of Chalapati Rao would have preference over the appellants and defendant No.4. Therefore, under any circumstances, no relief F could be! granted to them.

8. In reply to the amended plaint, defendant No.1 stated that an agreement of mortgage had been created in favour of 5th defondant in respect of the schedule property. Upon G receiving Rs.1,00,000/-, defendant No.1 has put defendant No.5 in possession.

9. \Nith these pleadings parties led their evidence. Upon conside!ration of the entire material, the suit filed by the

p. 991 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJA~. J.]

appellants herein was dismissed by the Trial Court. A

· 10. The Trial Court notices that defendant No.1 is the son of Seethamma, sister of Puttathayamma. It is also noticed that · lndiramma was the second wife of one Chelapathirao who had six children from his previous marriage. lndiramma, however, 8 died issueless. The Will dated 18.6.1974 was produced by defendant No.1, during evidence. The Trial Court observed that the plaintiffs have not.seriously disputed the execution of the Will by Puttathayamma in favour of lndiramma. Defendant No.1 had examined the scribe of the Will as DW2 to prove the Will. C It has been held that the appellants in fact admitted the execution of the Will in a subsequent suit being OS No.233 of 1998 which was filed by the appeilants herein as the legal heirs. In view of the testamentary succession, lndiramma became the absolute owner of the schedule property. Since husband of lndiramma had pre-deceased her, the property would devolve upon his children under Section 15 (1) (b) of the Hindu Succession Act, 1956 (hereinafter referred to as "the Act"). It would not devolve on the appellants and defendant No.4 under Section 15(2) of the Act. The Trial Court further notices the claim made by the first defendant during trial that lndiramma had executed a Will in his favour dated 2.10.1984, bequeathing the schedule property to him. The Trial Court further notices that though defendant No.1 had got the Wil! dated 2.10.84 marked as Exhibit, he had not chosen to examine any of the attesting witnesses to the document. Defendant No.1 had earlier not instituted any proceedings to prov.e his title over the schedule property pursuant to the alleged Will. Consequently, the claim of defendant No.1 over the schedule property has also been negatived. However, in view of the finding that appellants and defendant No.4 cannot not inherit the property of G Puttathayamma under Section 15 (2) of the Act, the suit has been dismissed

11 .• The aforesaid judgment of the Trial Court was challenged by the petitioners in appeal. The first appellate court H

992 SUPREME COURT HEPORTS [2010] 4 S.C.R.

A in a very elaborately written judgment recapitulated the undisputed facts. It is noticed that Puttathayamma had four children, namely, plaintiff, defendant No.4, Subbaramaiah (who pre-deceased Puttathayamma) an~. lndiramma. lndiramma was in po:ssession of the schedulefproperty. After the death of B Puttathayamma, plaintiff and defehdant No.4 were residing in their matrimonial homes away from Puttathayamma. Defendant No.1 had cremated lndiramma. Appellant and defendant No.4 had not been present at the time of the cremation. Subsequently, they demanded the possession of the house c which the first defendant refused to hand over. The first defendant claimed to have put 5th defendant in possession as a mortgagt~e. Therefore they filed the suit claiming title over the property a1nd possession thereof. In the written statement defendant No.1 claimed that entire movable and immovable property had been bequeathed to lndiramma In a Will dated 0 18.6.1974. The first appellate court upon examination of the entire evidt~nce accepts the submission made on behalf of the petitioners. that the execution of the Will is shrouded by suspiciou~·. circumstances. The first appellate court also negatived tlhe submission made on behalf of the first defendant E that the plaintiffs have admitted the execution of the Will in the subsequent suit. Upon examination of the evidence, the first appellate court had come to the conclusion that PW1 had not admitted the genuineness of the Will anywhere. This witness I had also stated that he had come to know about the Will of F Puttathayarnma from the written statement filed by defendant No.1. It is, therefore, held that there can be no presumption with regard to thEl genuineness of the Will on the basis of the alleged admission. Therefore the first appeal was allowed, judgment and decree of the Trial Court wen:! set aside. The suit filed by G the plaintiffs/appellants was decreed with costs declaring that the legal representatives of the pl~intiffs are the owners of the suit property and they are entitled for possession of the suit schedule property.

H 12. Agg1rieved against this, defendant No.1 filed Regular

p. 993 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

Second Appeal No.641 of 2003 in the High Court of Karnataka, A Bangalore. The Hjgh Court allowed the Regular Second Appeal and nonsuited the plaintiffs, with the following observations:-

"5. The contesting 1st defendant does not set up a rival claim of title, but only disputes the title of the plaintiffs and 8 their right to seek possession. According to the 1st defendant, Ex.D7 is the registered will executed by Puttathayamma in favour of her daughter, lndiramma. As argued by Shri T.N. Raghupathy, learned counsel for respondents-appellants, I find that PW1-1 st plaintiff has C unequivocally admitted in his evidence, about issuance of legal notice prior to the filing of the suit and allegations are made therein about execution of the will by Puttathayamma in favour of lndiramma and also admits that she was married to one Chalapati Rao who predeceased her and through his first wife, had four children. Ex.D36 is the D , certified copy of the plaint in OS 233/98 filed by the plaintiffs herein. In the said suit, there is categorical averment to the effect that Puttathayamma, during .her lifetime, had executed the will, bequeathing her immovable properties in favour of lndiramma. When execution of the will has become an admitted fact by the plaintiff, formal proof of execution by examining the attestors would not be necessary in law. Therefore, I am unable agree with Sri Kashinath, learned counsel for the respondent that the will is not prove. Further the finding of the appellate court that the will is shrouded with suspicious circumstances is based on unwarranted surmises and contrai'y to the admissions of the plaintiff. Accordingly, point no. (1) is answered in the affirmative." G

13. The High Court further holds that since the property had been acquired by lndiramma through Will, Section 15(2) of the Act would not be applicable. It is noticed that 'The provisions of Section 15 (2) will apply only when the property is acquired by a female by way of intestate succession, otherwise, the H

p. 994 Copy page pinpoint

A property would devolve as directed under sub-Section (1). May be, the children of deceased husband of lndiramma being step sons, ane not entitled to succes5ion under.sub-sec. (1) (a), but however as heirs of th~ husband, under sub-sec .. (1) (b) of Sec.15, they will be entitled to succeed to the estate. In that B view of the matter, the claim of title of property by the plaintiffs is untenable.· It is further held that since the children of the first wife would be entitled to succeed to the estate, the appellants (plaintiffs) have no right to see~ the relief of title by succession. Consequently, the appeal was allowed .. The judgment and c decree of the Appellate Court was set aside. The judgment and decree of the Trial Court was confirmed. This judgment is challenued before us in the present appeal.

14. Mr. Bhat, learned counsel for the appellants has submitted that the judgment of the High Court is wholly erronecius in facts as well as in law. According to the learned counsel, the first appellate court has rightly held that the execution of the Will has not been proved. There is no admission with regard to the execution or the genuineness of the Will in the second suit. It was merely stated that a Will has been executed by Puttathayamma. The Will had to be proved in accordance with the procedure laid down under Section 63 of tile Act and in accordance with Section 68 of the Indian Evidence Act. The first appellate court, upon examination, of the entire circumstances came to the conclusion that the Will F is shrciuded by suspicious circumstances. The High Court, without examining any of the real issues has brushed aside the reasons given by. the first appellate court. According to the learned counsel, the second suit had been filed by the appellants herein only to prevent respondent No.1 from dealing with the movable properties of Puttathayamma. Even if the execution of the Will is admitted, its genuineness had to be established by respondent No.1. None of the attesting witnesses were examined. The Sub Registrar was also not examined. DW2, the scribe did not anywhere mention that he had attested the Will. Therefore, his examination as a witness

p. 995 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.] would not cure the defects·.. The High Cou'1 has also ignored A · the fact that lndiramma has·taken an active part in execution of the Will. She was present when the Will was written. She was also present before the Sub Registrar. According to th~ learned counsel, the mother was not in a fit state of mind to have executed the Will, shortly after the death of her only son. This a fact has been totally ignored by the High Court. If she had been the author of the Will, she would not have described her son as a "bachelor" whereas in fact he was a "divorcee". According to the learned counsel, the'Will is a manufactured document created by defendant No.1 to exclude the appellants from c succession. Learned counsel further submitted that since it was a judgment of reversal, it was necessary for the High Court to give cogent reasons to explain as to how the conclusions reached by the first appellate court were not acceptable. The High Court has reversed the judgment without giving any 0 reasons. In support of his submissions, learned counsel has relied on the following judgments:- ( 1) Jayantilal Mansukhlal and another vs. Mehta Chhanalal Amba/al, AIR 1968 Gujarat 212; E (2) State of Punjab vs. Ba/want Singh and others, 1992 Supp (3) Supreme Court Cases 108;

(3) V. Dandapani Chettiar vs. Balasubramanian Chettiar (Dead) by L.Rs. and Others, (2003) & Supreme Court F Cases 633;

(4) Palanive/ayutham Pillai and others vs. Ramachandran and others, (2000) 6 Supreme Court Cases 151; and G (5) K. Kama/am (dead) and another vs. Ayyasamy and another, 2001 (7) Supreme Court Cases 503.

15. According to the learned counsel, the property would be thus inherited by the appellants as Puttathayatnma died H

996 SUPR:EME COURT REPORTS [2010) 4 S.C.R.

A intestate. He further submitted that even if the Will dated 18.6.1974 is accepted as valid, defendant No.1 cannot inherit the property Gf lndiramma as she had died intestate. The Will dated 2.10.8.:1, propounded by defendant No.1 to have been made by lndiramma has not been proved. Therefore, again under Section 15 (2) of the Act, the property will revert back to the plaintiffs/appellants. Learned counsel emphasized that defendant No.1 has no locus standi to contest the title of th"e appellants as he is a complete outsider for the family. Section 15 of the Act has been enacted to ensure that the property remains within the family. Therefore, this court has consistently held against stranger in matters of succession.

16. Leamed counsel for the respondents, on the other hand, submitted that the Will from Puttathayamma is proved. There are no reasons to disbelieve a registered Will. The D exclusion of the other daughters was because they were married and well settled. Therefore, the property was given in good faith to the unmarried lndiramma. Learned counsel further submitted that if a respondent is a trespasser, equally the appellants have not proved any better title. The first appellate court has wrongly stated that there is no explanation with regard to the custody of the Will as it was given to respondent No.1 by lndiramrna. It is further submitted that the suspicious circumstances pointed out by the appellants are only conjectural. Therefore, the High Court has rightly disregarded the same. Genuineness of the Will cannot be disbelieved merely because the Sub Registrar or the. scribe was not examined. It was not mandatory to examine either the scribe or the Sub Registrar. lndiramma's presence in the house at the time when the Will was written is natural as she was living with G Puttathayamma. The description of the son in the Will as "bachelor" instead of "divorcee" would not be so material. The testator only wanted to say that he was unmarried. The appellants have failed to lead any evidence that Puttathayamma was not in :a sound and disposing mind due to the death of her H son. In fact it was only because her son had died that .she

p. 997 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

bequeathed her property to lndiramma. Learned counsel further submitted that in view of the admission about the execution of the Will made in the subsequent suit, it cannot possible by held that the Will was not duly proved. According to the learned counsel, admissions are the best form of evidence. Unless it is effectively rebutted, the same can be relied upon. He relies on the following judgments:-

(1) Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others, AIR 1960 Supreme Court 100; c (2) Nagindas Ramdas v. Dalpatram lccharam alias Brijram and others, AIR 1974 Supreme' Court 471; and

(3) Gautam Sarup vs. Leela Jetly and others, (2008) 7 SCC85. D

17. In reply, Mr. Bhat has submitted that there is no clear admission in the subsequent suit which was only to prevent the respondents to be away from the movable property. In any event, admissions cannot be relied upon to dispense with proof of the Will as required under law. He relies on the judgments in the cases of Somnath Berman v. Dr. S. P. Raju and another, AIR 1970 Supreme Court 846 and Smt. Jaswant Kaur v. Smt. Amrit Kaur and others, AIR 1977 Supreme Court 74.

18. We have considered the submissions made by the learned counsel for the parties. It is not disputed that resp_ondent No.1 is a rank outsider. He is not a lineal descendant of Puttathayamma. He is son of Puttathayamma's sister Seethamma. This would become clear from the genealogical graph of ttte family which is as under:- G

998 SUPHEMI: COURT REPORTS [2010] 4 S.C.R.

A Putta1thayamma Sivaramaia {died in 15.11.1997) {died in 1950) I I r- Smt. Lalithamrna Subbaramaiah Smt. Kamalamma Smt. lndiramma B {died in 1990) {diea 1973) (died 1998) (died issueless (original plaintiff) issueless issueless 24.10.1985 I (def.4) (husband I Predeceased) I c I I I S.R. Srinivasan B.S. Umadevi S.R. Venkat- S.R.V. S.R. Rajarao Krishnaiah Subbarao (plff.1) (plff.2: (plff.3) (plff.4) (plff.5)

19. Cll::!arly if the Will dated 18.61974 is held not to be 0 genuine, th13 property would be inherited by the appellants under Section 15 (2) of the Act. There is no dispute on this proposition of law by either side. The only question that needs determination in this case is as to whether the Will executed by Puttath;:1yamma has been proved to be duly executed and E the same was genuine.

20. The statutory provision regarding the rules of succession in case of female Hindus as enacted in Section 15 of the Hindu Succession Act, 1956 is as follows: F "15. General rules of succession in the case of female Hindus.-(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,- (a) firstly, upon the sons and the daughters (including the G chilclren of any predeceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; H

p. 999 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

(d) fourthly, upon the heirs of the father; and A (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),-- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son 8 or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her c husband or from her father-in-law shall devolve, in the absence of any·son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order 0 specified therein, but upon the heirs of the husband."

21. A perusal of the aforesaid provisions would show that the basic aim of Section 15(2) is to ensure that inherited property of an issueless female Hindu dying intestate goes back to the source It was enacted to prevent inherited property falling into E the hands of strangers. This is also evident from the recommendations of the Joint Committee of the Houses of Parliament, which have been duly noticed.by this Court in the case of State of Punjab v. Ba/want Singh, 1992 Supp (3) sec

108. The scheme underlying the introduction of the aforesaid "F provision had been discussed as follows: •

"It came to be incorporated on the recommendations of t!'";e Joint Committee of the two Houses of Parliament. The reason given by the Joint Committee is found in clause (17) of the Bill which reads as follows: G "While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that properties inherited by her from her father reverts to the family of the father in the absence of issue and similarly H

p. 1000 Copy page pinpoint

A property inherited from her husband or father-in-law reverts to the heirs of the husband in the absence of issue. In the opinion of the Joint Committe~ such a provision would prevent properties passing into the hands of persons to whom .1ustice would demand they should not pass."

B 15. The report of the Joint Committee which was accepted by Parliament indicates that sub-section (2) of Section 15 was intended to revise the order of succession amon!~ the heirs to a Hindu female and to prevent the prope11ies from passing into the hands of persons to whom c justicH would demand that they should not pass. That means the property should go in the first instance to the heirs of the husband or to the source from where it came."

p. 1001 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

are confined to the property "inherited" from the father, mother, husband and father-in-law of the female Hindu and do not affect the property acquired by her by gift or by device under a Will of any of them. The present Section 15 has to be read in conjunction with Section 16 which evolves a new and uniform order of succession to her property and regulates the manner of its distribution. In other words, the order of succession in case of property inherited by her from her father or mother, its ,operation in confined to the case of dying without leaving a son, a daughter or children of any predeceased son or daughter." c "10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a predeceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2)(a). If it is inherited by. her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section 15(2)(b). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or daughter including the children of any predeceased son or daughter, then the property would devolve upon the heirs of her father. Result F would be - if the property is inherited by a female from her father or her mother, neither her husband nor his heirs would get such property, but it would revert back to the heirs of her father."

23. As noticed earlier by virtue of Section 15(2) (a) of the G Act, the appellants would inherit the property in dispute. This right is sought to be defeated by defendant No.1 on the basis of the Will dated 18.6.1974, allegedly executed by Puttathayamma. Defendant No.1 being the sole beneficiary under the Will claims that the plaintiffs can not claim to 'inherit' H

p. 1002 Copy page pinpoint

A the property on the basis of intestate succession. Undoubtedly, therefore, it was for defendant No.1 to prove that. the Will was duly executed, and proved to be genuine.

24. The mode, the manner and the relevapt legal provisions which govern the proof of Wills have been 8 elaborately dilated upon by thii:. Court in a number of cases. We may make a reference only to some of these decisions.

25. In the case of H. Venkatacha/a Iyengar v. B.N. Thimmajamma, [1959 Supp (1) SCR 426) Gajendragadkar J. c stated the true legal position in the matter of proof of Wills. The aforesaid statement-of law was further clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur [(1977) 1 SCC 369) as follows: "1. Stated generally, a will has to be proved like any D other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

E 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least i 1as been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last · will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on H

S.R. SRINAVASAAND ORS .. v. S. 1003 PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

proof of the essential facts which go into the making of the will.

4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky sigcature,, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature.of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The .,,·.presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can ' be accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. F That test emph~sises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the G will has been validly executed by the testator.

6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence H

p. 1004 Copy page pinpoint

A of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initiai onus of the propounder to remove all reasonable doubts in the matter."

B 26. Applying the aforesaid principles to this case, it would become evident that the Will has not been duly proved. As noticed earlier in this case, none of the attesting witnesses have been examined. The scribe, who was examined as DW.2, has not stated that he had signed the Will with the intention to attest. C In his evidence, he has merely stated that he was the scribe of the Will. He even admitted that he could not remember the names of the witnesses to the Will. In such circumstances, the observations made by this Court in the case of M.L. Abdul Jabbar Sahib v. M. V. Venkata Sastri & Sons, [(1969) 1 SCC D 573], become relevant. Considering the question as to whether a scribe could also be an attesting witness, it is observed as follows: "It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that E he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness." F

27. In our opinion, the aforesaid test has not been satisfied by DW.2 the scribe. The situation herein is rather similar to the circumstances considered by this Court in the case of N. Kama/am v. Ayyasamy, [(2001) 7 SCC 503]. Considering the G effect of the signature of scribe on a Will, this Court observed as follows: "26.The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of the same status as that of the attesting witnesses." H

p. 1005 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

"The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer, rather goes against the prcpounder since both the witnesses are named therein with detailed address and no attempt has bee~ made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so c expressed in the document itself- this is again, however, not the situation existing presently in the matter under consideration."

28. The aforesaid observations are fully applicable in this case. Admittedly, none of the attesting witnesses have been examined. Here signature of the scribe cannot be taken as proof of attestation. Therefore, it becomes evident that the execution of a Will can be held to have been proved when the statutory requirements for proving the Will are satisfied. The High Court has however held that proof of the Will was not necessary as the execution of the Will has been admitted in the pleadings in O.S.No.233 of 1998, and in the evidence of P.W.1.

29. The contention that the execution of the Will has beer. admitted' by the appellants herein had been negated by the First F Appellate Court in the following manner: '"Nhat is admitted under EXD 36 i.e. plaint in O.S No: 233/ 98 at Para 7 is only about the will and not the genuineness of the will. During evidence of PW 1, it is elicited in the G cross examination that he came to know about the will of Puttathayamma as it was revealed jn the written statement and that Puttathayamma might have written the will dated 4-7-74. But PW 1 has not admitted the genuineness of the will anywhere ir. his evidence. Therefore the contention of H

p. 1006 Copy page pinpoint

A the learned Advocate for the first respondent that the execution of the will is admitted and therefore its genuineness is to be presumed cannot be accepted"

30. The aforesaid findings are borne out from the record produced before us, which we have perused. There is no 8 admission about the genuineness or legality of the Will either in the plaint of OS No.233 of 1998 or in the evidence of PW1. The High court committed a serious error in setting aside the well considered findings, which the first Appellate Court had recorded upon correct analysis of the pleadings and the C evidence.

31. It is undoubtedly correct that a true and clear admission would provide the best proof of the facts admitted. It may prove to be decisive unless successfully withdrawn or proved to be erroneous. The legal position with regard to admissions and 0 their evidentiary value has been dilated upon by this Court in many cases. We may notice some of them.

32. In the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi (1960) 1 SCR 773 it was E observed as follows: "A,1 admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous." F

33. In the case of Nagindas Ramdas v. Da/patram /chharam, (1974) 1 sec 242, it has been observed: "Admissions,' if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can

p. 1007 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

be made the foundation of the rights of the parties. On the A other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."

34. The aforesaid two judgments along with some other . 8 earlier judgments of this Court were considered by this Court in the case of Gautam Sarup v. Leela Jetty, (2008) 7 SCC 85 wherein it was observed as follows: "16.A thing admitted in view of Section 58 of the Evidence Act need not be proved. Order 8 Rule 5 of the Code of c Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff. Felying on or on the basis thereof a suit, having regard to the provisions of Order 12 Rule 6 of the Code of Civil 0 Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one's stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile therefrom." "28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other."

35. Examined on the basis of the law stated above we are unable to agree with the High Court that there was no need for independent proof of the Will, in view of the admissions made H

p. 1008 Copy page pinpoint

A in OS No.233 of 1998 and the evidence of PW1. In fact there is no admission except that Puttathayamma had executed a Will bequeathing only the immovable properties belonging to her in favour of lndiramma. The First Appellate Court, in our opinion, correctly observed that the aforesaid admission is only s about the making of the Will and not the genuineness of the Will. Similarly, PW1 only stated that he had come to know ab0ut the registration of the Will of his grandmother favouring lndiramma through the written statement of the first defendant. The aforesaid statement is followed by the following statements c "Other than that I did not know about the Will. She was not signing in English. I have not seen her signing in Kannada. There was no reason for my grand mother to write a Will favouring lndiramma." Even in the cross-examination he reiterated that "I know about the will written by Puttathayamma on 18.6.1974 bequeathing the properties to lndiramma only 0 through the written statement of the first defendant." In view of the above we are of the opinion that the High Court committed an error in setting aside the well-considered finding of the First Appellate Court. The statements contained in the plaint as well as in the evidence of PW1 would not amount to admissions with regard to the due execution and genuineness of the Will dated 18.6.1974.

36. In our opinion, the High Court also committed a serious error by totally disregarding the suspicious circumstances surrounding the execution of the Will. The First Appellate Court on analysis of the entire evidence had clearly recorded cogent reasons to conclude that the execution of the Will is surrounded by suspicious circumstances.

37. The First Appellate Court pointed out that the execution of the Will has not been proved as none of the attesting witnesses have been examined. The scribe who was examined as DW.2 nowhere stated that he had attested the Will. The animus to attest was not evident from the document. In the Will, D.W.2 had described himself as the scribe of the Will and signed as such. Therefore, in view of the ratio of law laid down

p. 1009 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

in N. Kama/am (supra) the statutory requirement of attestation was cle<rly not satisfied.

38. The First Appe!late Court also observed that the Will is not genuine, its execution being shrouded in suspicious circumstances. It is noticed by the First Appellate Court that although Puttathayamma had been allotted certain specific property, there is no recital in the Will as to which of the properties had been bequeathed to lndiramma. It is further noticed that son of Puttathayamma died on 27 .10. 73. She had, therefore, inherited the property which had been allotted to the share of the respondent. The Will does not describe the exact C· property that may have been bequeathed by Puttathayamma in favour of lndiramma. Non-description of the schedule property creates a reasonable suspicion as to whether Puttathayamma executed the Will Ex.07. It is noticed that if she had the intention of bequeathing all her property to lndiramma, she would have mentioned the details of all the properties which belonged to her in the Will. The First Appellate Court further- holds that no reason has been given as to why the Will was presented before the Sub Registrar on two separate occasions for registration. Although the son of Puttathayamma died after having been divorced from his wife he is described in the Will as a bachelor. No reason has been stated in the Will as to why the other two daughters have been excluded from the property by Puttathayamma. Since the suspicious circumstances have not been explained by defendant No.1, the Will is not genuine. F The First Appellate Court also notices that although lndiramma is the sole beneficiary in the Will, she was present at the time when the Will was written. She was also present in the office of Registrar when the Will was presente.d for registration. This would clearly show that lndiramma had an evil eye on the suit G property and, therefore, the descriptions of the other properties were. not given. The active participation of lndiramma in the writing and the registration of the Will may well create a suspicion about its genuineness. We may notice here the observations made by this Court in the case of Ramachandra H

p. 1010 Copy page pinpoint

A v. Champabia [AIR 1965 SC 357]. This Court has held as follows: "This Court also pointed out that apart from suspicious circumstances of this kind where it appears that the propounder has taken a prominent part in the execution B of the will which confers substantial benefits on him that itself is generally treated as a suspicious circumstances attending the execution of the will and the propounder is required to remove the suspicion by clear and satisfactory evidence. In other words, the propounder must satisfy the c conscience of the court that the document upon which he relies in the last will and testament of the testator."

39. Since there were suspicious circumstances, it was necessary for the defendants to exi:>-lain .the same. The D registration of the Will by itself was not sufficient to remove the suspicion. The first appellate court also notices that even in cases where the execution of the Will is admitted, at least one attesting witness of the Will has to be examined to receive the Will in evidence. DW2, who has been examined is the scribe of the Will, has given no plausible reasons as to why the Will E was presented twice before the Sub Registrar for registration. Nor is it stated by this witness as to why the Will was not registered on the first occasion. It is also held by the First Appellate Court that non-examination of the Sub Registrar creates suspicion about the genuineness of the Will. Even the attesting witnesses to the Will have not been examined. There is no. evidence whether the Will was read over by the Sub Registrar or anybody else before it was registered. It is not explained as to how the Will came into possession of defendant No.1. There is no evidence when he was put in proper custody of the Will. Considering the cumulative effect of all the circumstances, the First Appellate Court has held that execution of the Will is surrounded by suspicious circumstances. Consequently, the appeal was allowed and the judgment of the Trial Court was set aside. !H

p. 1011 Copy page pinpoint

PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

40. The.High Court in its judgment seems to have misread the entire evidence. Aforesaid findings recorded by the First Appellate Court have been brushed aside by dubbing them as conjectural. We are unable to appreciate the course adopted by the High Court. It was so influenced by the alleged admission made by the plaintiffs in the second suit, it did not deem it appropriate to examine the material which formed the basis of the findings recorded by the First Appellate Court. It appears that the pleadings, documents and the evidence was not read by the High Court yet it concluded that the findings of the Appellate Court were conjectural. We are unable to endorse c the view expressed by the High Court.

41. The High court ought to have taken great care to satisfy its judicial conscience that the execution of the Will was not surrounded by suspicious circumstances. The Appellate Court had pointed out so many suspicious circumstances which could not have been brushed aside as being conjectural. The findings were based on documentary evidence. It was necessary for the defendant No.1 to answer a number of pertinent questions relating to the execution of the Will.

42. It was also necessary for the High Court to exercise care and caution to ensure that the propounder of the Will has removed all legitimate suspicion. We have earlier noticed that in this case lndiramma was living with her mother Puttathayamma at the time of her death. She was the sole beneficiary under the Will dated 18.6.1974. Her sisters, the original plaintiff and defendant No.4 that is, Lalithamma and Kamalamma had been excluded from the inheritance. There is no convincing reason as to why they were excluded from the inheritance. The Will merely mentions that these two ladies are well settled in their lives whereas lndiramma was not married. G The Will does not specify which of the properties has been bequeathed to lndiramma, although Puttathayamma has been allotted certain specific property. Puttathayamma's son had died on 27.10.73 and the Will is stated to have been made on 18.6.1974. The Will is signed by lndiramma, even though she H

1012 SU PREM!: COURT REPORTS [2010] 4 S.C.R.

A is the sole beneficiary under the Will. She was present in the office of the sub-Registrar at the time when the Will was registered. There is also a question as to why the Will was presented for registration on two different occasions. It appears that on the date when the Will was executed lndiramma also 8 obtained a power of attorney from her mother which would demonstrate her anxiety to come into possession c.. the property immediately. Neither the scribe (DW2) nor DW1 were able to give any satisfactory explanation as to why the Wili was not registered on the first occasion. In such circumstances it c was the duty of the of the High Court to carefully examine the findings recorded by the lower Appellate Court together with the relevant docum<=>nts on the record to ensure that there is a proper explanation given by defendant No.1 of the aforesaid suspicious circumstances. This Court in Iyengar case (supra) had clearly held that cases in which the execution of the Will is 0 surrounded by suspicious circumstances, it may raise a doubt as to whether the testator was acting of his own free will. In such circumstances it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. The presence of suspicious circumstances makes initial onus heavier. Such E suspicion cannot be r~moved by the mere assertion of the propounder that the Will bears signature of the testator or that the testator was in a sound and disposing state of mind at the time when the Wilf was made.

F 43. In our opinion, the High Court failed to exercise proper care and caution by not thoroughly examining the evidence led by the party, especially when it was not in agreement with the reasons recorded by the First Appellate Court. In the case of Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 this Court G reiterated the principles governing the proof of a Will which is alleged to be surrounded by suspicious circumstances. Justice Chandrachud speaking for the Court observed as follows: "8. The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will. It is he who set up the will in

S.R. SRINAVASA AND ORS. v. S. / 1013 PADMAVATHAMMA [SURINDER SINGH NIJJAR, J.]

answer to the plaintiff's claim in the suit for a one-half share in her tlusband's estate. Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the will by his grandfather Sardar Gobinder Singh. c

9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by. the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."

44. In our opinion, the High Court failed to examine the entire issue in accordance with the aforesaid principles laid down by this Court. We are, therefore, unable to uphold the impugned judgment. The appeal is allowed. Judgment of the High court is set aside and the judgment of the First Appellate Court i.e. the Court of the Principal Civil Judge (Senior Division) at Mysore is restored. ~

D.G. Appeal allowed.

p. 1014 Copy page pinpoint

A N. SURESH NATHAN & ORS., ETC. ETC. V. UNION OF INDIA & ORS. ETC. ETC. (Civil Appeal No. 8468 of 2003)

APRIL 22, 2010 B [J.M. PANCHAL AND A.K. PATNAIK, JJ.]

Assistant Engineers (Including Deputy Director of Public Works Department) Group B(Technical) Recruitment Rules, c 1965:

rr. 5 and 11(1) - Promotion to post of Assistant Engineer under 50% quota for degree-holder category of Section Officers/Junior Engineers - HELD: Clause (1) of Rule 11 0 does not provide for a separate stream or channel of promotion exclusively for degree-holders, who have completed three years service - In view of r.5, post of Assistant Engineer being a selection post, merit is the sole criteria and seniority in the grade of Section Officers/Junior Engineers is not at all relevant - Therefore, all the Section E Officers/Junior Engineers who are eligible for consideration under Rule 11 (1) would be considered on the basis of comparative merit - Constitution of India, 1950 - Articles 16 and 141 - Code of Civil Procedure, 1908 - s. 11.

F Constitution of India, 1950:

Article 141 - Law declared by Supreme Court to be binding on all courts - Decision of Supreme Court in N. Suresh Nathan's case - HELD: Was confined to the G eligibility for consideration for promotion to 50% vacancies for the posts of Assistant Engineers/Public Works Department, Pondicherry meant for degree-holder or equivalent in the grade of Section Officer/Junior Engineer, and there was no law declared by the Court, to be binding under Article 141, on the H 1014

~ N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1015 OF INDIA & ORS. ETC. ETC.

issue as to how Section Officers/Junior Engineers who become A qualified for promotion to the post of Assistant Engineers would be considered for promotion - Nor would the said decision constitute res judicata on the issue - Precedents - Code of Civil Procedure, 1908 - s. 11 - Assistant Engineers (Including Deputy Director of Public Works Department) Group B B(Technica/) Recruitment Rules, 1965 - rr. 5 and 11 (1 ).

Promotion of appellant nos. 1 to 7 to the posts of Assistant Engineers, Public Works Department was challenged by respondent nos. 2 to 7, before the Central Administrative Tribunal. The Tribunal dismissed the application holding that in view of the decision of the Supreme Court in N. Suresh Nathan's' case, with regard to the procedure to be adopted for promotion of Section Officers/Junior Engineers, the applicants before it could not be allowed to raise the point once again nor was it open to the Tribunal to hold otherwise. But, the writ petition filed by the respondents challenging the order of the Tribunal was allowed by the High Court holding inter alia that the judgment of the Supreme Court in N. Suresh Nathan did not operate as res judicata. A review DPC was directed to be held.

Disposing of the appeals, the Court

HELD: 1. In N. Suresh Nathan & Ors.*, this Court confined its decision to the qualification or eligibility for consideration for promotion to 50% vacancies for the post of Assistant Engineer meant for degree-holders or equivalent in the grade of Section Officer/Junior Engineer and held that only those Section Officers/Junior Engineers, who had completed three years' service after obtaining degree, were qualified or eligible for consideration to the 50% vacancies meant for the category of degree-holders or equivalent. In the said

1Copy pinpoint1. (1991) 2 Suppl. SCR 423. H

p. 1016 Copy page pinpoint

A judgment, this Court did not decide on how the Section Officers/Junior Engineers who had completed three years' service in the grade after the degree in Civil Engineering or equivalent and had the qualification or eligibility for consideration for promotion to the 50% B vacancies meant for the category of degree-holders wo·Jld be considered for promotion. Therefore, in N. Su.·esh Nathan & Ors., there was no law declared by this Court so as to be binding on the courts under Article 141 of the Constitution, on the issue as to how Section c Officers/Junior Engineers, who become quaPfied or eligible for promotion to the post of Assistant Engineer would be considered for promotion; and, therefore, the decision in N. Suresh Nathan would also not constitute res judicata on the said issue. [Para 13-15] [1027-F-H; 1028- D A-C-E; 1029-A-B]

*N. Suresh Nathan & Ors. v. Union of India & Ors. (1991) 2 Suppl. SCR 423 = (1992) 1 Suppl. SCC 584 - explained and distinguished.

E 2.1. Clause (1) of Rule 11 is only a provision laying down the qualification or eligibility for promotion to 50% of the posts of Assistant Engineers and the qualification or eligibility provided therein is either three years service in the grade of Section Officer/Junior Engineer after degree in Civil Engineering or equivalent, or six years service in the grade of Section Officer/Junior Engineer with diploma in Civil Engineering. The provision also has a rider that if there are Section Officers/Junior Engineers. who have put in three years service after acquiring degree or equivalent, available for consideration for vacancies, then they will be considered first for promotion and the turn for consideration for promotion of diploma- holders in Civil Engineering with six years service in the grade of Section Officer/Junior Engineer will come only thereafter. Thus, the Rule itself provides that if for H

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1017 OF INDIA & ORS. ETC. ETC.

vacancies in the posts of Assistant Engineers, Section A Officers/Junior Engineers possessing a recognized degree in Civil Engineering or equivalent with three years' service in the grade are not available, then Section Officers/Junior Engineers holding diploma in Civil Engineering with six years' service in the grade would be B eligible for promotion. It cannot, therefore, be accepted that Clause (1) of Rule 11 provides for a separate stream or channel of promotion exclusively for degree-holders, who have completed three years service. [para 23] [1033- E-H; 1034-A-C] C

2.2. Rule 5 of the Recruitment Rules states that the post of Assistant Engineer in the Public Works Department is a selection post. The Recruitment Rules, however, do not lay down that seniority-cum-merit would be the criteria for promotion to the selection post of D Assistant Engineer. The person, who is most meritorious, is the most suitable person to be promoted to the selection post. Thus, merit is the sole criteria for prom'otion to the selection post and, therefore, question of seniority in the grade of Section Officer/Junior E Engineer is not at all relevant for promotion to the post of Assistant Engineer. [Para 29-30] [1036-E-F-G; 1037-E- F]

Dr. Jai Narain Misra v. State of Bihar & Ors. (1971) 1 F SCC 30; and Guman Singh, etc. v. State of Rajasthan & Ors. (1971) 2 sec 452, relied on. R. B. Desai & Anr. v. S. K. Khanolkar & Ors. (1999) 7 SCC 54; Chandravathi P.K. & Ors. v. C.K. Saji & Ors. 2004 (2) SCR 330 = (2004) 3 SCC 734; Shailendra Dania & Ors. G v. S. P. Dubey & Ors. 2007 (5) SCR 190 = (2007) 5 SCC 535; and M.B. Joshi v. Satish Kumar Pandey 1993 Supp.(2) SCC 419, referred to.

Suman Gupta v. State of J & K (1983) 4 SCC 339; H

p. 1018 Copy page pinpoint

A Munidra Kumar v. Rajiv Govi/ (1991) 3 SCC 368; Satya Narain Shukla v. U.0.1. (2006) 9 SCC 69; P.U. Joshi v. Accountant General (2003) 2 SCC 632; U. 0.1. v. Pushpa Rani (2008) 9 SCC 242; lnderjeet Khurana v. State of Haryana (2007) 3 sec 102; u.0.1. v. A.K. Naruta (2007) 11 sec 10; B and A. K. Raghumani Singh & Ors. v. Gopal Chandra Nath & Ors. (2000) 2) SCR 943 = (2000) 4 SCC 30, cited. 2.3. In the absence of any indication in the Recruitment Rules that seniority in the grade of Section Officer/Junior Engineer will be counted for the purpose of promotion to the post of Assistant Engineer, consideration of all Section Officers/Junior Engineers under Clause (1) of Rule 11 of the Recruitment Rules who are eligible for such consideration has to be done on the basis of assessment of the comparative merit of the eligible candidates and the most suitable or meritorious candidate has to be selected for the post of Assistant Engineer. Such a method of selection will be consistent with Rule 5 of the Recruitment Rules and Article 16 of the Constitution which guarantees to all citizens eqµality of opportunity in matters of public employment. [Par.a 34) [1040-F-H; 1041-A]

2.4. In the considered opinion of the Court, therefore, the practice adopted by the Government on the advice of the UPSC of counting the service of the eligible candidates from the date of acquisition of the degree in Civil Engineering by them and the judgment and order of the High Court directing that the entire service of eligible candidates, both prior and after acquisition of the degree of Civil Engineering by them, would be counted for the purpose of promotion to the post of Assistant Engineer under Clause (1) of Rule 11 of the Recruitment Rules are contrary to the fundamental right guaranteed under Article 16 of the Constitution and r. 5 of the Recruitment Rules which are made under Article 309 of the H Constitution. [Para 34) [1041-8-C]

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1019 OF INDIA & ORS. ETC. ETC.

3. The judgment of the High Court is set aside and A the Government of Pondicherry is directed to consider, in accordance with merit, the cases of all Section Officers/ Junior Engineers, who have completed three years' service in the grade of Section Officers/Junior Engineers. It is made clear that the promotions to the posts of 8 Assistant Engineers already made pursuant to the judgment and order of the High Court will not be disturbed until the exercise is carried out for promotion in accordance with merit as directed in this judgment and on completion of such exercise, formal orders of C promotion to the vacancies in the posts of Assistant Engineers which arose during the pendency of the cases before this Court are passed in case of those who are selected for promotion and, after such exercise only, those who are not selected for promotion may be reverted to the post of Section Officer/Junior Engineer. D· [para 35] [1041-D-G] Case Law Reference: (1991) 2 Suppl. SCR 423 distinguished . para 7 . E (1999) 1 sec 54 referred to · para 8 (2000) 2) SCR 943 cited para 8 2004 (2) SCR 330 referred to para 18 2007 (5) SCR 190 referred to para 19 F

(1971) 1 sec 30 relied on para 29 (1971) 2 sec 452 relied on para 30 (1983) 4 sec 339 cited para 31 G (1991) 3. sec 368 cited para 31 (2006) 9 sec 69 cited para 31 (2003) 2 sec 632 cited para 31 H

p. 1020 Copy page pinpoint

A sec 242 (2008) 9 cited para 31 (2001) 3 sec 102 cited para 31 (2007) 11 sec 10 cited para 31 1993 Supp. (2) sec 419 referred to para 32 B CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8468 of 2003.

From the Judgment & Order dated 23.6.2003 of the High Court of Judicature at Madras in Writ Petition No. 11236 of c 2000.

WITH C.A. Nos. 698 of 2004, 3649-3650 of 2010 & 8470 of 2003.

0 J.L. Gupta, L.N. Rao, M.S. Ganesh, V.G. Kanagaraj, Rakesh Dwivedi, K.V. Viswanathan, Satya Mitra Garg, S. Thananjayan, G. Balaji (for Mis. Mahalakshmi Balaji & Co.) S.R. Setia, V.G. Pragasam, S.J. Aristotle, P. Ramasubramanian, M.A. Chinnasamy, K. Krishna Kumar, Neha Sharma, S. E Krishna, Preetika Dwivedi, Mukti Chaudhary, Amit Singh, Abhishek Kaushik, P .B. Subramaian for the appearing parties.

The Judgment of the Court was delivered by

A.K. PATNAIK, J.1. Leave granted in S.L.P. (C) Nos. 7174-7175 of 2009.

2Copy pinpoint2. These ate appeals against the judgment and order dated 23.06.2003 passed by a· Division Bench of the Madras High Court in Writ Petition No.11236 of 2000. J

3Copy pinpoint3. The relevant facts briefly are that the Government of G Pondicherry, Planning & Development Department, made the Assistant Engineers (inclu(:ling Deputy Director of Public Works Department) Group 'B' (Technical) Recruitment Rules, 1965 [for short 'the Recruitment Rules'] for the post of Assistant Engineers for the Public Works Department initially by a H

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1021 OF INDIA & ORS. ETC. ETC. [AK. PATNAIK, J.]

Notification dated 31.01.1966. The Recruitment Rules were amended by a Notification dated 08.08.1986 and as per the amended Recruitment Rules the post of Assistant Engineer in the Public Works Department, Pondicherry, was a selection post and appointment to the 20% of the posts of Assistant Engineer was to be by direct recruitment and to the 80% of the posts by promotion. 50% of the promotion quota was to be filled up by Section Officers (now Junior Engineers) possessing a recognized degree in Civil Engineering or equivalent with three years service in the grade, failing which Section Officers holding diploma in Civil Engineering with six years service in the grade c and the remaining 50% of the promotion quota was to be filled· up by Section Officers (Junior Engineers) possessing a recognized diploma in Civil Engineering with six years service in the grade.

4Copy pinpoint4. On 24.09.1968, the Chief Secretary, Governm~nt of D Pondicherry, wrote to the Secretacy, Union Public Service Commission (for short 'the UPSC') thaflhere were Section Officers with diploma qualification who have acquired degree in Civil Engineering or equivalent and have putting in several years in service and having become qualified for consideration for 50% quota of the post of Assistant Engineers to be filled up by promotion and questions have arisen whether the service rendered by such Section Officers before and after possessing the degree or equivalent can be taken into account for consideration for promotion under the degree holders quota and whether their cases may be considered under the diploma · holders quota as well for promotion to the post of Assistant Engineer. In the letter dated 24.09.1968, the Chief Secretary sought the advice of the Commission regarding the correct procedure to be followed in such cases. The UPSC gave its advice in its letter dated 06.12.1968 that the services of Section Officers, who qualify as graduates while in service, should be counted from the date they passed the degree or equivalent examination or from the date they started drawing Rs.225/- p.m. in the prescribed scale, whichever was earlier and Section H

p. 1022 Copy page pinpoint

A Officers may continue to be considered in the diploma holders quota in case it is advantageous to them and the Government followed this advice of the UPSC.

5Copy pinpoint5. In 1989, however, some Junior Engineers, who were formerly Section Officers working in the Public Works and Local 8 Administration Department of Government of Pondicherry, filed O.A. No. 552 of 1989 in the Central Administrative Tribunal, Madras Bench, (for short 'the Tribunal') and in its judgment and order dated 09.01.1990 the Tribunal held that when the C Recruitment Rules require three years service in grade, the Section Officers (now Junior Engineers) who ceased to be mere diploma holders having acquired the degree qualification have to be regarded as having total experience put in the grade of Section Officers before and after acquiring the degree qualification and there was nothing in the Recruitment Rules to warrant the exclusion of a part of the experience acquired by such Junior Engineers while functioning in the grade of Section Officers (Junior Engineers). The Tribunal accordingly directed that the cases of the applicants in the O.A. be considered for promotion to the post of Assistant Engineers on par with other degree holders Junior Engineers taking due note of their total length of service rendered in the grade of Junior Engineers and such a consideration should be along side other Junior Engineers, who might have acquired the necessary degree qualification earlier than the applicants while holding the post· F of Junior Engineers.

6Copy pinpoint6. The judgment and order dated 09.01.1990 of the Tribunal was challenged by N. Suresh Nathan and Others before this Court in Civil Appeal No. 4542 of 1991 and this Court G interpreting Rule 11 of the Recruitment Rules held in the judgment reported in 1992 Supp. (1) SCC 584 that the period of three years' service in the grade required for degree-holders as qualification for promotion in the category of degree-holders must mean three years' service in the grade as a degree-holder and, therefore, that period of three years can commence only

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1023 OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

from the date of obtaining the degree and not earlier and this interpretation of ~ule 11 was in conformity With the past practice followed consistently by the Government and that the Tribunal was not justified in taking the contrary view and accordingly allowed the appeal. Review Petition No.50 of 1993 was filed against the judgment and order dated 22.11.1991 of 8 this Court in the aforesaid case but the same was dismissed on 31.01.1993.

7Copy pinpoint7. Thereafter, appellant Nos. 1 to 7 were promoted to the post of Assistant Engineer on 08.03.1997. Respondent Nos. 2 to 7 challenged the promotion of the appellant Nos. 1 to 7 C before the Tribunal in O.A. No. 359 of 1997 contending inter ,. alia that this Court in its judgment in N. Suresh Nathan & Ors. v. Union of India & Ors. (supra) has only held that three years' service required for eligibility for the promotion quota reserved for the category of degree-holders or equivalent should be D considered from the date of acquiring the degree or equivalent, but has not decided the question of seniority as between degree-holders or equivalent and diploma-holders in the grade. The Gov~rnment of Pondicherry in its reply filed in 0. A. No.359 of 1997 before the Tribunal contended that the Departmental E Promotion Committee met on 29.09.1996 and keeping in view the direction of this Court in the judgment in N. Suresh Nathan & Ors. v. Union of India & Ors. (supra) selected the Section Officers/Junior Engineers to the post of Assistant Engineers by preparing two lists, one list for considering promotions to the post of Assistant Engineer for the degree-holders quota and another list for considering promotion to the post of Assistant Engineers for the diploma-holders quota. The Government of Pondicherry further clarified in its reply that in the first list those who had joined as Section Officers/Junior Engineers witb degree in Civil Engineering were placed above the Section Officers/Junior Engineers who had joined the service with diploma in Civil Engineering but had subsequently acquired degree in Civil Engineering and in the second list, the Section Officers/Junior Engineers who had joined with diploma ·were H

1024 SUPREME CvURT REPORTS [2010] 4 S.C.R.

A placed in order of seniority counted from the date of the joining in the grade. By the judgment and order dated 27.08.1999, the Tribunal dismissed O.A. No.359of1997 after holding that this Court has already taken a specific view in N. Suresh Nathan's case (supra) with regard to the procedure to be adopted for B promotion of Junior Engineers in the Public Works Department of Pondicherry construing the recruitment rules and the applicants in O.A. should not be allowed to raise the point once again and that the judgment of this Court in N. Suresh Nathan's case was binding on the Tribunal and it was not open for the C Tribunal to hold otherwise insofar as the interpretation of the recruitment rules for the post of Assistant Engineer in the Public Works Department in Pondicherry is concerned.

8Copy pinpoint8. Aggrieved, respondents Nos.3, 4, 5 and 6 filed Writ Petition No.11236 of 2000 before the Madras High Court D against the judgment and order dated 27.08.1999 of the Tribunal in O.A. No.359of1997 and by the impugned judgment and order, a Division Bench of the Madras High Court held inter alia that in N. Suresh Nathan & Ors. v. Union of India & Ors. (supra) this Court only decided the question of eligibility for promotion to the posts of Assistant Engineer meant for the category of degree-holders or equivalent, but did not decide the question of seniority of Section Officers/Junior Engineers, who had acquired a degree in Civil Engineering or equivalent after joining as Section Officers/Junior Engineers and, therefore, the judgment of this Court in N. Suresh Nathan & Ors. (supra) did not operate as res judicata. The Division Bench of the Madras High Court, relying on the decisions of this Court in R. B. Desai & Anr. v. S. K. Khano/kar & Ors. [(1999) 7 SCC 54) and A. K. Raghumani Singh & Ors. v. Gopal G Chandra Nath & Ors. [(2000) 4 SCC 30), further held in the impugned judgment and order that the entire service of a person concerned even before acquiring the degree in Civil Engineering or equivalent have to be counted for the purpose of seniority and promotion and directed that a review DPC H should be held to consider the question of promotion of the

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1025 . OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

petitioners before the High Court vis-a-vis respondents 2 to 8 A and other eligible persons, who had become eligible by the date of sitting of the DPC in 1996 and accordingly allowed the Writ Petition.

9Copy pinpoint9. Mr. Jawahar Lal Gupta, Mr. L. Nageswar Rao and Mr. B M.N. Rao, learned senior counsel appearing for the appellants, submitted that the view taken by the High Court in the impugned judgment and order is the same as has been taken by the Tribunal in its order dated 09.01.1990 in the earlier O.A. No.552 of 1989 and as the order dated 09.01.1990 of the Tribunal in C O.A. No.552 of 1989 has been set aside by this Court in N. Suresh Nathan & Ors. (supra), the impugned judgment and order of the High Court cannot be sustained. They referred to the earlier order dated 09.01.1990 of the Tribunal in O.A. No.552 of 1989 to show that the Tribunal had directed the authorities to consider the applicants in the O.A. for promotion to the post of Assistant Engineer at par with other degree- holder Junior'Engineers taking due note of their total length of service rendered in the grade of Junior Engineer, both before and after acquiring the degree of Civil Engineering or equivalent, and submitted that this Court set aside this direction of the Tribunal in the judgment in N. Suresh Nathan & Ors. (supra). They further submitted that once this Court set aside the order dated 09.01.1990 of the Tribunal in O.A. No.552 of 1989 on the ground that the order of the Tribunal was norln conformity with Rule 11 of the Recruitment Rules and the practice followed by the Department, the decision of this Court on the issue constitutes res judicata and the interpretation of Rule 11 of the Recruitment Rules by this Court was a declaration of law binding on the High Court under Article 141 of the Constitution. G

10Copy pinpoint10. Mr. M.S. Ganesh, learned senior counsel appearing for the Government of Pondicherry, reiterated these contentions of the learned counsel for the appellants.

11Copy pinpoint11. Mr. Rakesh Dwivedi and Mr. K.V. Viswanathan, H

1026 SUPREME COURT REPORTS [2010) 4 S.C.R.

A learned counsel appearing for respondents No. 2 to 19, in their reply, contended that the High Court has rightly held in the impugned judgment and order that in N. Suresh Nathan & Ors (supra), this Court only decided the question of eligibility of Section Officers or Junior Engineers for promotion to the post B of Assistant Engineers meant for the category of degree- holders and not the method in which the eligible candidates will be consid6red for promotion.

12Copy pinpoint12. Para 5 of the judgment in N. Suresh Nathan & Ors. C (supra) which contains the ratio decided by this Court is quoted herein below:

"5. The Recruitment Rules for the post of Assistant Engineers in the PWD (Annexure C) are at pages 57 to 59 of the paper book. Rule 7 lays down the qualifications for direct recruitment from the two sources, namely, degree-holders and diploma-holders with three years' professional experience. In other words, a degree is equated to diploma with three years' professional experience. Rule 11 provides for recruitment by promotion from the grade of Section Officers now called Junior Engineers. There are two categories provided therein - one is of degree-holder Junior Engineers with three years' · service in the grade and the other is of diploma-holder Junior Engineers with six years' service in the grade, the provision being for 50 per cent from each category. This matches with Rule 7 wherein a degree is equated with diploma with three years' professional experience. In the first category meant for degree-holders, it is also provided that if degree-holders with three years' service in the grade are not available in sufficient number, then diploma-holders with six years' service in the grade may be considered in the category of degree-holders also for the 50 per cent vacancies meant for them. The entire scheme, therefore, does indicate that the period of three years' service in the grade required for degree-holders according to Rule 11 H

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1027 OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

as the qualification for promotion in that category must mean three years' service in the grade as a degree-holder and, therefore, that period of three years can commence only from the date of obtaining the degree and not earlier. The service in the grade as a diploma-holder prior to obtaining the degree cannot be counted as service in the grade with a degree for the purpose of three years' service as a degree-holder. The only question before us is of the· construction of the provision and not of the validity thereof and, therefore, we are only required to construe the meaning of the provision. In our opinion, the contention of c the appellants degree-holders that the rules must ·be construed to mean that the three years' service in the grade of a degree-holder for the purpose of Rule 11 is three years from the date of obtaining the degree is quite tenable and commends to us being in conformity with the 0 past practice followed consistently. It has also been so understood by all concerned till the raising of the present controversy recently by the respondents. The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the department." E

13Copy pinpoint13. On a close reading of the aforesaid para 5 of the judgment of this Court in N. Suresh Nathan & Ors. (supra), we find that this Court confined its decision to the qualification or eligibility for consideration for promotion to 50% vacancies for the post of Assistant Engineer meant for degree-holders or equivalent in the grade of Section Officers/Junior Engineers and held that only those Sections Officers or Junior Engineers, who had completed three years' service after obtaining degree, were qualified or eligible for consideration to the 50% vacancies meant for the category of degree-holders or equivalent. In the judgment in N. Suresh Nathan & Ors. (supra), this Court did not decide on how the Section Officers/Junior Engineers who had completed three years' service in the grade after the degree in Civil Engineering or equivalent and had the qualification or eligibility for consideration for promotion to the 50% vacancies H

1028 SUPREME COURT REPORTS [2010] 4 S.C.R.

A meant for the category of degree-holders would be considered for promotion.

14Copy pinpoint14. Article 141 of the Constitution states that the law declared by this Court shall be binding on all the courts within the territory of India. In N. Suresh Nathan & Ors. (supra) this 8 Court has set aside the order of the Tribunal dated 09.01.1990 in O.A. No.552 of 1989 after declaring that Section Officers/ Junior Engineers having three years' service in the grade after they acquired degree in Civil Engineering or equivalent will C become qualified or eligible for promotion to the 50% vacancies meant for the category of degree-holders or equivalent. In N. Suresh Nathan & Ors. (supra) this Court has not declared any law on how these Sections Officers/Junior Engineers, who had become qualified or eligible for promotion to the post of Assistant Engineer under the category of degree- D holders or equivalent, would be considered for such promotion. There was, therefore, no law declared by this Court on how Section Officers or Junior Engineers, who become qualified or eligible for promotion to the post of Assistant Engineer would be considered for promotion, which was binding on the courts under Article 141 of the Constitution.

15Copy pinpoint15. Section 11 of the Code of Civil Procedure Code (for short 'CPC') titled Res judicata' states that no court shall try any issue which was directly or substantially in issue between the same parties and which has been heard and finally decided by a competent court. Thus, unless an issue directly and substantially raised in the former case is heard and decided by the competent court, the principle of res judicata will not be attracted. In N. Suresh Nathan & Ors. (supra) this Court, while settjng aside the order dated 09.01.1990 in O.A. No.552 of 1989, has decided that those Section Officers/Junior Engineers who complete three years' service after acquiring the degree in Civil Engineering or equivalent are qualified or eligible for consideration for promotion to the 50% quota of vacancies for the post of Assistant Engineer under the degree-holders

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1029 OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

category but has not decided how such Section Officers/Junior A Engineers who are qualified or eligible will be considered for such promotion under the degree-holders category. The decision of this Court in N. Suresh Nathan & Ors. (supra), therefore, did not constitute res judicata on the issue regarding the manner in which Section Officers/Junior Engineers who were qualified or eligible for consideration for promotion to the post of Assistant Engineer would be considered for promotion.

16Copy pinpoint16. The High Court was, therefore, right in taking the view that in N. Suresh Nathan & Ors. (supra), this Court was concerned only with the question of eligibility but was not concerned whether the past services rendered by the diploma- holders would be counted for the purpose of seniority and that neither Article 141 of the Constitution nor the principle of res judicata was a bar for Tribunal or the High Court to consider whether past services of Section Officers/Junior Engineers who were diploma-holders before they acquired degree in Civil Engineering or equivalent could be counted for the purpose of promotion for the 50% vacancies for the post of Assistant Engineers meant for the category of degree-holders or equivalent. E

17Copy pinpoint17. Learned counsel for the appellants next submitted that Rule 11 of the Recruitment Rules provides for two streams or channels of promotion to the post of Assistant Engineer, Public Works Department, one stream or channel is for Sections F Officers or Junior Engineers possessing a recognized degree in Civil Engineering or equivalent and the other for Section Officers/Junior Engineers holding diploma in Civil Engineering. They submitted that it is for this reason that the UPSC in its letter dated 06.12.1968 advised the Government that the G services of Section Officers/Junior Engineers, who qualify as graduates while in service, should be counted from the date they passed the degree or equivalent while considering them for promotion for the channel or stream of promotion meant for Section Officers or Junior Engineers having degree in Civil H

1030 SUPREME COURT REPORTS [2010) 4 S.C.R.

A Engineering or equivalent and the Government of Pondicherry has acted on this advice of the UPSe.

18Copy pinpoint18. Mr. Nageswar Rao cited the decision in Chandravathi P. K. & Ors. v. C.K. Saji & Ors. [(2004) 3 sec 734) in which the question for consideration was whether in terms of th.e 8 scheme of the Kerala Engineering Service (General Branc;h) Rules, diploma-holders were entitled to claim any weightage for the service rendered by them prior to their acquisition of degree qualification in the matter of promotion or transfer to C higher posts when specific quota is fixed for graduates and diploma-holders in the matter of promotion and this Court, on a conjoint reading of Rules 4 and 5 of the Kerala Engineering Service (General Branch) Rules, held that a diploma-holder Assistant Engineer who subsequently acquired a degree qualification would be eligible for promotion as Assistant D Executive Engineer, only in the event he fulfils the conditions precedent therefor and not otherwise and his case could be considered only after the cases of promotion of those who had been holding such degree qualification have been considered.

19Copy pinpoint19. Mr. Ganesh adopted these arguments of learned counsel for the appellants and cited the decision in Shailendra Dania & Ors. v. S. P. Dubey & Ors. [(2007) 5 sec 535) wherein this Court interpreting the rules for promotion to the post of Assistant Engineers in CPWD, which has adopted by the DOA, found that 25% of the total posts of Assistant Engineers were to be filled up by promotion from the category of graduate Junior Engineers and 25% of the total posts were to be filled up by diploma-holders with eight years' service and held that a separate quota was, thus, prescribed for promotion of Junior Engineers for degree and diploma-holders to the higher post of Assistant Engineer. He submitted that in the aforesaid case of Shailendra Dania & Ors. (supra), this Court emphatically held that the service experience required for promotion from the post of Junior Engineer to the post of Assistant Engineer in the limited quota of degree-holder Junior H

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1031 OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

Engineers in the service experience of a degree-holder and A cannot be equated with the service rendered as a diploma- holder. Relying on this decision, learned counsel for the Government of Pondicherry submitted that the prior service experience of a Section Officer or Junior Engineer while he was diploma-holder and when he had not acquired the degree in B Civil Engineering or equivalent cannot be counted for the purpose of consideration for the 50% quota of promotion to the post of Assistant Engineer meant for degree-holders.

20Copy pinpoint20. Learned counsel appearing for the respondents 2 to 19, on the other hand, submitted that Rule 11 of the Recruitment C Rules does not provide for two streams or channels of promotion as contended by learned counsel for the appellants and it only lays down the qualification or eligibility of three years' service after degree in Civil Engineering or equivalent as a qualification or eligibility and once a diploma-holder acquires D a degree in Civil Engineering or equivalent, his entire length of service both prior to acquisition of such degree in Civil Engineering or equivalent and after acquisition of such degree or equivalent has to be taken into consideration at the time of consideration for promotion to the post of Assistant Engineer E meant for degree-holders.

21Copy pinpoint21. Mr. Viswanathan cited this Court's decision in R. B. Desai & Anr. v. S. K. Khanolkar & Ors. [(1999) 7 SCC 54] for proposition that if at the time of consideration for prpmotion, F the candidates concerned have acquired eligibility, then unless a rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility. He submitted that in the present case, the rules for promotion from the post of Section Officer or Junior Engineer G to Assistant Engineer did not give any such priority to the candidates acquiring earlier eligibility. He submitted that Chandrava~hi P. K. & Ors. v. C.K. Saji & Ors. (supra) was a case where the rules, namely, the Kerala Engineering Service (General Branch) Rules, were different from the Recruitment H

1032 SUPREME COURT REPORTS [2010] 4 S.C.R.

A Rules in the present case and the Kerala Engineering Service (General Branch) Rules clearly provided for two different streams or channels of promotion for the posts of Assistant Engineer, i.e. for diploma-holders and degree-holders. He submitted that in Shailendra Dania & Ors. v. S. P. Dubey & B Ors. (supra) cited by the learned counsel for the appellants and the Government of Pondicherry, the question for consideration was whether a diploma-holder Junior Engineer, who obtained a degree while in service, became eligible for promotion to the post of Assistant Engineer on completion of three years of c service after he obtained the Engineering degree or on completion of three years of service prior to obtaining the degree in Engineering and while answering this question, this Court held that a diploma-holder Junior Engineer became eligible for promotion to the post of Assistant Engineer on completion of three years' service after he obtained the 0 Engineering degree. He submitted that the decision of this Court in Shai/endra Dania & Ors. (supra), therefore, is not an authority for proposition that the service of diploma-holders put in prior to the acquisition of the degree or equivalent by him will have to be ignored while considering them for promotion E to the post of Assistant Engineer meant for degree holders.

22Copy pinpoint22. Rule 11 of the Recruitment Rules in the present case is quoted herein below :-

F "11. In case of recruitment Promotion by promotion/deputation/ 1. Section Officer Transfer grades from which possessing a recognized promotion/deputation/ degree in Civil transfer to be made. Engineering or Equivalent with 3 Years service in G the grade failing which Section Officers holding diploma in Civil Engineering with 6 years service in the grade - H 50%.

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1033 OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

2.Section Officers A possessing a recognized diploma in Civil Engineering with 6 years service in the grade - 50%" B

23Copy pinpoint23. A plain reading of Rule 11 of the Recruitment Rules quoted above would make it clear that for the 50% quota for the posts of Assistant Engineer mentioned under Clause 1 of Rule 11, Section Officers (now Junior Engineers) possessing recognized degree in Civil Engineering or equivalent with three years' service in the grade, failing which Section Officers possessing diploma in Civil Engineering with six years' service in the grade would be eligible for consideration for promotion. All that the Rule provides is that if for vacancy in the post of Assistant Engineer, Section Officers possessing recognized degree in Civil Engineering or equivalent with three years' service in the grade are not available, Section Officers holding diploma in Civil Engineering with six years service in the grade could be considered for promotion. Clause 1 of Rule 11 is, therefore, only a provision laying down the qualification or eligibility for promotion to 50% of the posts of Assistant Engineer and the qualification or eligibility provided therein is either three years service in the grade of Section Officers or Junior Engineers after degree in Civil Engineering or equivalent or six. years service in the grade of Section Officers or Junior F· Engineers with diploma in Civil Engineering. This provision also has a rider that if there are Section Officers/Junior Engineers, who have put in three ,years service after acquiring degree or equivalent, available for consideration for vacancies, then they will be considered first for promotion and the turn for G consideration for promotion of diploma-holders in Civil Engineering with six years service in the grade of Section Officers/Junior Engineers will come only thereafter. Thus, the Rule itself provides that if for vacancies in the post of Assistant Engineer, Section Officers possessing a recognized degree in H

1034 SUPREME COURT REPORTS [2010] 4 S.C.R.

A Civil Engineering or equivalent with three years' service in the grade are not available, then Section Officers holding diploma in Civil Engineering with six years' service in the grade would be eligible for promotion. We, therefore, cannot accept the submission of learned counsel for the appellants and the B Government of Pondicherry that Clause 1 of Rule 11 provides for a separate stream or channel of promotion exclusively for degree-holders, who have completed three years service and we are of the opinion that learned counsel for the respondents 2 to 19 are right in the submission that Clause 1 of Rule 11 c only lays down the qualification or eligibility for consideration for promotion to 50% of the posts of Assistant Engineers.

24Copy pinpoint24. In Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra), cited by Mr. L. Nageshwara Rao, on the other hand, this Court held that under Rules 4 and 5 of the Kerala D Engineering Service (General Branch) Rules there were separate avenues of promotion for the degree-holders and the diploma holders. This will be clear from the observations of the Court in para 30 of the judgment in Chandravathi P. K. ,& Ors. v. C.K. Saji & Ors. (supra), quoted herein below: E "A bare perusal of Rules 4 and 5 of the Kerala Engineering Service (General Branch) Rules would clearly go to show that the avenues for promotion for the degree-holders and the diploma holders were separate ....... " [(2004) 3 sec F 734 at 748]

25Copy pinpoint25. In Shailendra Dania & Ors. v. S. P. Dubey & Ors. (Supra) cited by learned counsel Mr. Ganesh, this Court similarly found that there were two different channels or streams of promotion for degree-holders and diploma holders to the G post of Assistant Engineer in the relevant rules. This will be clear from the findings in para 44 of the judgment quoted herein below:

"...... There is watertight compartment for graduate Junior H Engineers and diploma-holder Junior Engineers. They are

N. SU RESH NATHAN & ORS., ETC. ETC. v. UNION 1035 OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

entitled for promotion in their respective quotas. Neither a A diploma-holder Junior Engineer could claim promotion in the quota of degree-holders because he has completed three years of service nor can a degree-holder Junior Engineer make any claim· for promotion quota fixed for diploma-holder Junior Engineers. [(2007) 5 SCC 533 at B 560)1"

26Copy pinpoint26. In the present case, on the other hand, Clause 1 of Rule 11 of the Recruitment Rules does not provide for "separate avenues" or ''watertight compartments" for promotion to the post . C of Assistant Engineers fqr degree-holders and diploma- holders. As we have seen Clause 1 Rule 11 of the Recruitment Rules only lays down the qualification or eligibility for considerai.Jn for promotion to the post of Assistant Engineers earmarked for the 50% quota. The two decisions of this Court in Chandravathi P. K. & Ors. v. C.K. Saji & Ors. (supra) and D Shai/endra Dania & Ors. v. S. P. Dubey & Ors. (Supra) are, therefore, of no assistance to the appellants.

27Copy pinpoint27. In R. B. Desai & Anr. v. S. K. Khano/kar & Ors. (supra) cited by Mr. Viswanathan, this Court found that the amended rules of 1988 pertaining to the promotion to the cadre of Assistant Conservator of Forests provided that Range Forest Officers with five years regular service in the grade and possessing diploma of Forest Rangers' Training from Forest Rangers College in India or equivalent were eligible for promotion to the post of Assistant Conservator of Forests and the Court held in para 9:

"............. that if at the time of consideration for promotion the candidates concerned have acquired the eligibility, then unless the rule specifically gives an advantage to a G candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility. The rule under consideration does not give any such priority to the candidates acquiring earlier eligibility and, in our opinion, rightly so. In service law, seniority has its own weightage H

1036 SUPREME COURT REPORTS [2010] 4 S.C.R.

A and unless and until the rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same. [(1999) 7 sec 54 at 58)

28Copy pinpoint28. In the passage of the judgment of this Court in R.8. B Desai & Anr. V. S. K. Khanolkar & Or5. (supra) quoted above, it is laid down that in service law, seniority has its own weightage and unless and until the rules specifically exclude this seniority, it is not open to the authorities to ignore the ..;ame. In the aforesaid case though the post of ACF was mentioned to be a selection post in the amended rules of 1988, the question whether for a selection post seniority would have weightage or merit would have weightage while considering the eligible candidates for promotion was not raised or decided and the only question which was raised before this Court was whether ranking assigned in the eligibility list or the ranking assigned to the seniority list should be given weightage and this Court held that between the candidates who are eligible, ranking in seniority must be given weightage irrespective of the date for which the candidate becomes eligible.

29Copy pinpoint29. In the present case, we find that Rule 5 of the Recruitment Rules states that the post of Assistant Engineer in the Public Works Department, Pondicherry, is a selection post. The Recruitment Rules, however, do not lay down that seniority-cum-merit would be the criteria for promotion to the F selection post of Assistant Engineer. In Dr. Jai Narain Misra v. State of Bihar & Ors. [(1971) 1 SCC 30) a three-Judge Bench of this Court held that the question of seniority was not relevant for promotion to the selection post in the language of the judgment of this Court in Dr. Jai Narain Misra v. State of G Bihar & Ors. (supra): ' "It was not disputed before us that the post of Director of Agriculture is a selectjon post. Therefore, the question of seniority was not relevant in making the selection. It is for theState Government to select such officer as it considers as most suitable. In this view we think the High Court was

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1037 OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

not justified in going into the question of seniority nor will A we be justified in going into that question."

Thus, the question of seniority in the grade of Section Officers or Junior Engineers is not at all relevant for promotion to the post of Assistant Engineer in the Public Works Department, 8 Government of Pondicherry. The practice adopted by the Government of Pondicherry in consultation with the UPSC of counting the services of Section Officers or Junior Engineers, who qualified as graduates while in service from the date they passed the degree or equivalent examination and placing them C in order of seniority accordingly for the purpose of consideration for promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is contrary to Rule 5 of the Recruitment Rules. Similarly, the direction of the High Court in the impugned judgment and order to count the entire service of a person concerned even befo(e acquiring degree in Civil D Engineering for the purpose of seniority and promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is contrary to Rule 5 of the Recruitment Rules. E

30Copy pinpoint30. The person, who is most meritorious, is the most suitable person to be promoted for the selection post. Merit, in other words, is the sole criteria for promotion to the selection post. In Guman Singh, etc.· v. State of Rajasthan & Ors. [1971 (2) SCC 452] a five-Judge Bench of this Court speaking through Vaidialingam, J. explained how merit of candidates for promotion is to be assessed in para 35 at page 408 of the judgment in the following words:

" ........... No doubt the term 'merit' is not capable of an easy definition, but it can be safely said that merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the University, his character, integrity, devotion to duty and the manner in which he discharges his official duties. Allied to this may be various other matters or factors such as his H

1038 SUPREME COURT REPORTS [2010] 4 S.C.R.

A punctuality in work, quality and outturn of work done by him and the manner of his dealings with his superiors and subordinate officers and the general public and his rank in the service. We are only indicating some of the broad aspects that may be taken into account in assessing the B merits of an officer. In this connection it may be stated that the various particulars in the annual confidential repois of an officer, if carefully and properly noted, will also ~ive a very broad and general indication regarding the merit of an officer."

C Where, therefore, there are large number of eligible candidates available for consideration for promotion to a selection post, the Government car 1 issue executive instructions consistent with the principle of merit on the method to be followed for considering such eligible candidates for promotion to the selection post.

31Copy pinpoint31. Learned counsel for the appellants however submitted that when the Recruitment Rules are silent on the procedure to be adopted by the Government in selecting the candidates for promotion, the Government is the best authority to decide what procedure to be adopted in such promotion· and the Court will not interfere with the procedure so adopted unless it was unconstitutional, arbitrary, unreasonable or otherwise illegal. In support of this submission, Mr. L. Nageswar Rao cited the decisions of this Court in Suman Gupta v. State of J & K [(1983) 4 SCC 339], Munidra Kumar v. Rajiv Govil [(1991) 3 SCC 368], Satya Narain Shukla v. U.0.1. [(2006) 9 SCC 69], P.U. Joshi v. Accountant General [(2003) 2 SCC 632], U.0.1. v. Pushpa Rani [(2008) 9 SCC 242], lnderjeet Khurana v. G State of Haryana [(2007) 3 SCC 102] and U.0.1. v. A.K. Narula [(2007) 11 sec 1O]. Learned counsel for the appellants submitted that in the present case the Government of Pondicherry in consultation with the UPSC has adopted the procedure since 1968 that the services of Section Officers/ Junior Engineers who qualified as graduates while in service H

N. SU RESH NATHAN & ORS., ETC. ETC. v. UNION 1039 OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

should be counted from the date they passed the degree or equivalent examination for the promotion under clause 1 Rule 11 of the Recruitment Rules and this procedure is not unconstitutional, arbitrary, unreasonable or illegal and, therefore, the High Court by the impugned judgment and order should not have interfered with this procedure and should not have directed that the entire service of a person concerned even before acquiring the degree in civil engineering or equivalent has to be counted for the purpose of seniority and promotion to the post of Assistant Engineer under clause 1 of Rule 11 of the Recruitment Rules. Learned counsel appearing c for the Government of Pondicherry adopted this contention of the learned counsel of the appellants.

32Copy pinpoint32. Learned counsel for the respondents No.2 to 19, in their reply, submitted that the Government cannot adopt a procedure for selection by way of promotion to the post of D Assistant Engineer contrary to trye Recruitment Rules. They submitted that the Recruitment Rules do not provide that for promotion under clause 1 of Rule 11, the services of Section Officers/Junior Engineers who qualified as graduates while in service, would be counted from the date they passed the degree or equivalent examination and their services prior to the date of passing the degree or equivalent examination would be ignored. They further submitted that the Government also cannot adopt the procedure of selection which violates the fundamental right guaranteed under Article 16 of the Constitution of India to equality of opportunity in matters of public employment. They submitted that once a candidate became eligible or qualified to be considered for promotion to the post of Assistant Engineer under clause 1 of Rule 11 of the Recruitment Rules, he has a right to be considered for such promotion and such consideration cannot be denied by laying down a procedure which ignores his seniority in the grade of Section Officer/Junior Engineer. They relied on the decision of this Court in M.B. Joshi v. Satish Kumar Pandey [1993 Supp.(2) SCC 419]. H

1040 SUPREME COURT REPORTS [2010] 4 S.C.R.

33Copy pinpoint33. In M.B. Joshi v. Satish Kumar Pandey (supra), the State Government had been applying the principle of counting the seniority of Graduate Sub-Engineers from the date of their continuous officiation irrespective of the date on which such diploma-holder Sub-Engineer acquired the degree of B graduation in Engineering and on the basis of such seniority, the Departmental Promotion Committee was considering Graduate Sub-Engineers for promotion to the post of Assistant Engineers. When this method adopted by the State Government was challenged by some of the Sub-Engineers c before the Madhya Pradesh Administrative Tribunal, Jabalpur, the Tribunal held that the seniority of such Sub-Engineers must be determined from the date of acquiring the degree of graduation in Engineering and this Court held that the Tribunal was wrong in determining the seniority from the date of acquiring degree of Engineering and it ought to have been 0 determined on the basis of length of service on the post of Sub- Engineer and the Government was right in doing so and there was no infirmity in the orders passed by the Government. In this case also, the question did not arise whether for selection post seniority would have weightage or merit would have weightage while considering the eligible candidates for promotion.

34Copy pinpoint34. As we have seen, Rule 5 of the Recruitment Rules in the present case states that the post of Assistant Engineer is a selection post and the Recruitment Rules no where provide that seniority-cum-merit would be the criteria for promotion. In the absence of any indication in the Recruitment Rules that seniority in the grade of Section Officers I Junior Engineers will be counted for the purpose of promotions to the post of Assistant Engineer, consideration of all Section Officers I Junior G Engineers under Clause 1 of Rule 11 of the Recruitment Rules who are eligible for such consideration has to be done on the basis of assessment of the comparative merit of the eligible candidates and the most suitable or meritorious candidate has to be selected for the post of Assistant Engineer. Such a H method of selection will be consistent with Rule 5 of the

N. SURESH NATHAN & ORS., ETC. ETC. v. UNION 1041 OF INDIA & ORS. ETC. ETC. [A.K. PATNAIK, J.]

Recruitment Rules and Article 16 of the Constitution which A guarantees to all citizens equality of opportunity in matters of public employment. In our considered opinion, therefore, the · practice adopted by the Government of Pondicherry on the advice of the UPSC of counting the service of the eligible candidates from the· date of acquisition of the degree in Civil B Engineering by them and the impugned judgment and order of the High Court directing that the entire service of eligible candidates, both prior and after acquisition of the degree of Civil Engineering by them, would be counted for the purpose of promotion to the post of Assistant Engineer under Clause 1 c of Rule 11 of the Recruitment Rules are contrary to the rules made under Article 309 of the Constitution and the fundamental right guaranteed under Article 16 of the Constitution.

35Copy pinpoint35. For the aforesaid reasons, we set aside the impugned judgment of the High Court and direct the Government of D Pondicherry to consider the cases of all Section Officers or Junior Engineers, who have completed three years' service in the grade of Section Officers or Junior Engineers, for promotion to the vacancies in the post of Assistant Engineer, Public Works Department, Government of Pondicherry, in accordance with their merit. We make it clear that the promotions to the post of Assistant Engineers already made pursuant to the judgment and order of the High Court will not be disturbed until the exercise is carried out for promotion in accordance with merit as directed in this judgment and on completion of such exercise, formal orders of promotion to the vacancies in the posts of Assistant Engineer which arose during the pendency of the. cases before this Court are passed in case of those who are selected for promotion and after su.:h exercise only those who are not selected for promotion may be reverted to the post of Section Officer or Junior Engineer.

The appeals are disposed of accordingly w;th no order as to costs.

R.P. Appeals disposed of. H