REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 5743-5745 OF 2005 Infosys Technologies Ltd. ...... Appellant Vs. Jupiter Infosys Ltd. & Anr. ...... Respondents JUDGMENT R.M. LODHA, J. These three appeals by special leave are directed against the order dated September 9, 2004 passed by Intellectual Property Appellate Board (for short, `IPAB') whereby it ordered the removal of appellant's mark `Infosys' from the register of trade marks in respect of computer stationery, computer manuals, printed matter for computer, instructional and teaching materials, computer hardware and peripherals and machine and machine tools. 2. The appellant is Infosys Technologies Limited. It was incorporated and registered under the Companies Act, 1956 on July 2, 1981 in the name of Infosys Consultants Private Limited. The appellant got the trade mark `Infosys' registered in 1987 in classes 16 and 9 in connection with computer stationery, computer manuals, printed manual for computer instruction and teaching materials; computer hardwares, computer interface, computer peripherals, electronics telex interface and in 1988 in class 7 in connection with machine and machine tools and motors (not for land vehicles). The particulars with reference to the trade mark registered by the appellant are as follows : Date Registration Class Goods No. 15.07.1987 475269 Class 16 Computer Stationery, Computer Manuals, Printed Manuals for Computer Instruction and teaching materials etc. 15.07.1987 475267 Class 09 Computer Hardwares, Computer Interface, Computer Peripherals, Electronics Telex Interface and all goods covered in class 09. 27.01.1988 484837 Class 07 Machine and Machine Tools and Motors (not for land vehicles) included in class 07. 3. On April 21, 1992, the name of the company--Infosys Consultants Pvt. Limited--was changed to Infosys Technologies Pvt. Ltd. and thereafter on June 2, 1992, the name was changed to the present name, i.e. Infosys Technologies Limited. 4. The first respondent is Jupiter Infosys Limited. The first respondent was incorporated and registered in September 1978 under the name of Jupiter Agencies Pvt. Limited. The name of the first respondent was changed to Jupiter Infosys (P) Limited in August, 1995 and now since July, 2003, the name is changed to Jupiter International Limited. 5. On October 11, 1996, the appellant instituted a suit in the Calcutta High Court for perpetual injunction, inter alia, restraining the first respondent from infringing the appellant's mark `Infosys' by using the mark `Infosys' by itself or in combination with other marks in course of its trade. The appellant also prayed for an interim order in the suit. On November 22, 1996, the Calcutta High Court by an ad- interim order restrained the first respondent from using the word `Infosys' in any manner in relation to the goods for the time being. The ad-interim order was confirmed on November 29, 1996. 6. The appellant having come to know of several instances of misuse of mark `Infosys' also filed a writ petition (being writ petition no. 14214 of 2000) before the Calcutta High Court, inter alia, praying that the Registrar of Companies be restrained from registering the companies bearing the name `Infosys'. On September 13, 2000, the Calcutta High Court restrained the Department of Company Affairs and Registrar of Companies from incorporating any company bearing the name `Infosys' without the permission of the appellant. 7. In January 2001, the appellant filed yet another suit before the High Court of Judicature at Madras for permanent injunction restraining the first respondent from offering shares to the public as claimed in the Initial Public Offer (IPO) using `Infosys'. The Single Judge of the Madras High Court passed an interim restraint order on February 1, 2001 against the first respondent. The said order was confirmed on May 22, 2001 to remain operative till disposal of suit. 8. The first respondent then filed three separate applications before the Madras High Court, inter alia, under Sections 46 and 56 of the Trade and Merchandise Marks Act, 1958 (`the 1958 Act'). In O.P. No. 764 of 2001, the first respondent prayed for the removal/rectification of the entry in the register of trade mark in respect of trade mark No. 475269 in Class 16 while in the other two applications being O.P. No. 765 of 2001 and O.P. No. 766 of 2001, the first respondent prayed for removal/rectification of trade mark No. 475267 in Class 9 and trade mark No. 484837 in Class 7 respectively. 9. The appellant opposed these applications on diverse grounds by filing counter affidavits. 10. On August 12, 2003, the Madras High Court framed the following issues: a) Whether the mark applied for registration was used in respect of the goods for which the mark was registered? b) Whether the respondent had a bonafide intention to use the mark applied for under section 18 of the Trade and Merchandise Marks Act? c) Whether the mark registered in favour of the respondent is a service mark? d) Whether there is a non use of registered trade mark by the respondent for a period of over 5 years and 1 month. e) Whether the registered trade mark is disentitled for protection in a Court of Law under Section 11(e) of the Trade and Merchandise Marks Act? f) Whether the registered trade mark has lost its distinctiveness and is liable to be removed under section 32(c)? g) Whether the respondent has committed fraud while obtaining registration of the mark? And h) To what further relief? 11. The 1958 Act was repealed by the Trade Marks Act, 1999 (for short, `the 1999 Act'). In terms of Section 100 of the 1999 Act, the three petitions filed by the first respondent before the Madras High Court for rectification/removal of registered trade mark Nos. 475269, 475267 and 484837 were transferred to the IPAB. 12. Some more facts may be noticed. The appellant filed yet another suit (being suit no. 2115 of 2002) before Delhi High Court for infringement of trade mark and passing off against the first respondent. In that suit, the appellant also made an application for grant of temporary injunction. The vacation Judge of the Delhi High Court, on December 27, 2002 passed an order of temporary injunction against the first respondent as follows: "Notice for 24th March, 2003 before the Joint Registrar. Heard. Perused the averments made in the suit and application which are duly supported by documents on record. I am of the opinion that in case ex-parte ad-interim orders are not granted, the relief claimed itself may be rendered infructuous. Accordingly it is directed that pending further consideration of the matter after notice for the next date of hearing, the defendants are restrained by themselves, their directors, employees, agents and/or others acting on its behalf, from using the trade mark/corporate name INFOSYS or any other mark/name deceptively similar trade mark or colourable imitation thereof as a mark and/or corporate name or as part of a mark and/or business name, in respect of goods and/or services, for publicity on propaganda, on websites and or in domain names, in any way, whatsoever, thereby causing infringement of the registered trade mark INFOSYS of the plaintiff in isolation or in combination with words/letters/numbers their advertisements as part of their corporate name either in isolation or in goods and services, or in or by way of any advertisement/publicity campaigns etc. Compliance of Order XXXIX Rule 3 CPC within three days." The said suit was transferred to the Court of the Additional District Judge, Tis Hazari Court, Delhi. In that suit, an affidavit came to be filed by the first respondent wherein it was stated that the name of the company has been changed from Jupiter Infosys Limited to Jupiter International Limited and a certificate to that effect has been issued by the Registrar of Companies, Kolkata under the Companies Act, 1956 and no dispute remains between the parties under the trade mark. The relevant statement made in the affidavit dated July 14, 2003 (we were informed that the date of the affidavit is July 14, 2004) reads as follows: "4. That in the meantime the defendant has already changed the Trade Mark namely "Jupiter International Ltd." in place of "Jupiter Infosys Ltd." The copy of the incorporation on change of name which was issued by the registrar of the Companies are being marked and annexed herewith as Annexure A. 5. That now there is no dispute between the plaintiff and defendant under the Trade Mark." Based on this affidavit, the suit was partially decreed in favour of the appellant on November 10, 2004. 13. In 2007, however, the first respondent filed a suit in the Court of Additional District Judge, Delhi for setting aside the decree dated November 10, 2004. That suit is said to be pending. 14. The IPAB proceeded with the matter in light of the issues that were already framed by the High Court and heard the parties. The IPAB in the impugned order while dealing with the plea of limitation raised by the appellant held that the first respondent was the appropriate aggrieved party in the matter in view of the fresh cause of action having arisen to the first respondent on filing of Civil Suit No. 71 of 2001 by the appellant before the Madras High Court. The IPAB in the impugned order held that the trade mark Nos. 475269, 475267 and 484837 have not been used by the appellant for more than a period of five years and one month and the appellant also failed to make out that it had been in manufacturing or trading of the goods for which it had taken Registration Nos. 475269, 475267 and 484837. Consequently, the IPAB allowed the applications made by the first respondent purportedly under Section 46(1)(b) of the 1958 Act and directed the Registrar to remove these registrations from the register. 15. We heard Mr. Akhil Sibal, learned counsel for the appellant and Mr. Vaibhav Gaggar, learned counsel for the first respondent at quite some length. 16. Mr. Akhil Sibal, learned counsel for the appellant argued that an application for rectification, whether under Section 46 or Section 56 of the 1958 Act, can only be preferred by a `person aggrieved'; the applicant must not only be a person aggrieved on the date of the application but must continue to remain a person aggrieved until such time as the rectification application is finally decided. He contended that the first respondent is not shown to have ever traded or intended to trade in any goods covered by the appellant's registrations under Classes 7 and 16 and as such the first respondent is not a `person aggrieved' with regard to the appellant's registrations under these two classes. As regards Class 9 he would submit that in view of the affidavit filed by the first respondent on July 14, 2004 in the Court of Additional District Judge, Delhi the first respondent ceases to be an aggrieved person on the date of consideration of the rectification application. Learned counsel heavily relied upon two decisions of this Court: (1) Hardie Trading Ltd. & Anr. v. Addisons Paint & Chemicals Ltd.1 and (2) Kabushiki Kaisha Toshiba v. Tosiba Appliances Company & Ors.2. 17. Assailing the finding of the IPAB as regards non-use by the appellant during the relevant period, learned counsel for the appellant argued that the said finding was erroneous on legal as well as factual premise. He contended that the IPAB erred in holding that software was a `service' and the subject registrations were in relation to goods without considering the wide definition of `goods' provided under Section 2(g) of the 1958 Act. Mr. Akhil Sibal argued that the IPAB committed grave error in relying upon the provisions of the 1999 Act and the Trade Marks Rules, 2002 when these provisions were not applicable as the applications were filed under the 1958 Act. According to him, the IPAB sought to rely upon `computer programming' which is a `service' enumerated in Class 42, without considering the distinction between a `computer programme' and `computer programming' and without noticing the (2003) 11 SCC 92 (2008) 10 SCC 766 entry `computer' under Class 9 which falls within `goods'. Learned counsel would submit that in examining the question of non-use under Section 46(1)(b), the IPAB failed to consider that the requisite use must be `in relation to goods' under registration, which is extensively defined under Section 2(2)(b) of the 1958 Act. 18. Mr. Akhil Sibal, learned counsel also argued that the IPAB failed to have regard to the proviso to Section 46(1), in terms of which it is open to the registered proprietor to rely upon use of the registered trade mark during the relevant period in relation to `goods of the same description', in order to resist an application for rectification. He contended that the IPAB failed to apply proper legal tests for determining `goods of the same description' and had that been done it would be evident that `computer software' amounts to `goods of the same description' as `computer hardware'. In this regard, he relied upon M/s. Eagle Potteries Private Ltd. v. M/s. Eagle Flask Industries Pvt. Ltd.3; Lever Brothers, Port Sunlight Ld. v. Sunniwite Products Ld.4; The Ritz Hotel v. Charles of the Ritz5 and Australian Wine Importers' Trade Mark6. AIR 1993 Bombay 185 (1949) 66 RPC 84 (1989) RPC 333 (1889) 6 RPC 311 19. Learned counsel for the appellant also submitted that in any view of the matter, the IPAB erred in exercising its discretion under Section 46 of the 1958 Act without taking into consideration the aspect of public interest. He argued that the IPAB ought to have considered whether use of mark `Infosys' by the first respondent on computer hardware would create confusion in the mind of the consumers that they might be led to believe that the said hardware is manufactured by the appellant. Learned counsel, thus, submitted that the impugned order is unsustainable and liable to be set aside. 20. On the other hand, an objection is raised in the written submissions on behalf of the first respondent -- and reference was made in support of the objection to seven Judge Bench decision of this Court in L. Chandrakumar v. Union of India & Ors.7 -- that challenge to the order of IPAB directly in the appeal before this Court under Article 136 of the Constitution is barred. 21. In reply to the arguments of learned counsel for the appellant, Mr. Vaibhav Gaggar, learned counsel for the first respondent strenuously urged that the plea of `aggrieved person' is a new plea and raised substantially for the first time before this Court. He argued that the appellant has not taken the plea of the first (1997) 3 SCC 261 respondent not being a `person aggrieved' with respect to filing of the applications for rectification before the IPAB; merely urging the plea that the first respondent has no locus standi in the written submissions before the IPAB is not sufficient. Learned counsel would submit that the appellant has, for the first time, argued before this Court that the first respondent is not a person aggrieved and/or not capable of maintaining the rectification proceedings with respect to each and every good for which the appellant has been registered since the first respondent has not been registered for all the goods. Mr. Vaibhav Gaggar rather asserted that the first respondent is a person aggrieved in view of the fact that various suits for infringement have been filed by the appellant against the first respondent and on the date of the applications for rectification/removal of the subject registrations from the register, the suits were pending. With reference to the affidavit dated July 14, 2004 filed by the first respondent before the Court of Additional District Judge, he submitted that the said affidavit has no relevance in consideration as to whether the first respondent is an aggrieved person as Section 46 (1) of the 1958 Act relates only to the period upto the date of the filing of the rectification application and the rights of the parties crystallized at that stage itself. In this regard, he relied upon a decision of the Madras High Court in Agha Hyder Hussain & Anr. v. Omar Khayyam Wineries (Pvt.) Ltd. & Anr.8 He also placed reliance upon some more decisions viz; Ritz Hotel Ltd.5, Philosophy Di Alberta Ferretti9 ; Keystone Knitting Mills Trade Mark10 and Motor Terms Company Pty. Limited. v. Liberty Insurance Ltd.11. Learned counsel for the first respondent further submitted that the affidavit dated July 14, 2004 was not placed by the appellant before the IPAB nor any reference of the said affidavit has been made in the written submissions before the IPAB and the appellant also did not make any effort to amend the pleadings that the first respondent was not an aggrieved person. It was contended by Mr. Vaibhav Gaggar that even otherwise in view of the fraud perpetrated by the appellant qua the registrations in question, the issue as to whether the first respondent had a dispute with the trade mark or not pales into insignificance as the primary duty of the court is to maintain the `purity of the register'. He argued that in a case such as the present one since the allegations against the appellant relate to trafficking, AIR 1977 Mad 166 2003 R.P.C. 15 1929 (1) Ch.D. 92 1967 116 C.L.R. 177 squatting and non-user, the scope of `person aggrieved' has to be enlarged. Learned counsel submitted that the fact that the appellant continues to allege - and that stance has not changed in the pleadings in SLP as well--that the first respondent is an infringer, pilfriger, defrauder, someone who wants to ride on the goodwill of the appellant or someone who wants to mislead the public at large, there is no question of the first respondent ceasing to be a person aggrieved at any stage. 22. Mr. Vaibhav Gaggar, learned counsel for the first respondent contended that the appellant is registered as a `manufacturer and trader' under Classes 7, 9 and 16 even though, it is a company engaged in software only. Moreover, there is nothing on record to indicate linkage with the manufacturing or marketing of the goods for which the appellant is holding registration of subject trade marks. He vehemently contended that goods in Classes 7, 9 and 16 for which the appellant obtained registration were never used in the manner contemplated by the 1958 Act for almost 30 years and that would show the mala fide intention of the appellant in having the same registered for the purpose of squatting and trafficking. 23. Learned counsel for the first respondent further argued that `Infosys' is not an invented or a coined word; the said word is an abbreviation and combination of the words `information system'; the word `Infosys' has been used by various companies abroad as well as within India prior to incorporation of the appellant itself and hence cannot be called an invented word. In this regard, he relied upon a decision of the Madras High Court in Nestle's Products (India) Ltd. v. P. Thankaraja & Anr.12. He submitted that appellant is primarily in service industry which is unregistrable under the 1958 Act and since the appellant is not trading in the goods in respect of which it is registered, it cannot be said that the mark of the appellant is distinctive of its goods. In any case, learned counsel would submit that the expression `Infosys' is not descriptive expression. 24. Insofar as discretion exercised by IPAB in ordering removal of the appellant's registrations from the register under Section 46(1)(b) of the 1958 Act is concerned, learned counsel for the first respondent submitted that this Court should not overturn the discretion so exercised by the IPAB keeping in view the dishonest and fraudulent conduct of the appellant. Lastly, he submitted that although no cross objections or cross appeal has been filed, the first AIR 1978 Mad 336 respondent has some grievance with regard to the order of the IPAB in not considering the case set up in the rectification/removal applications particularly with regard to Section 56 of the 1958 Act. 25. Having regard to the order that we intend to make, we are not persuaded to accept the objection raised on behalf of the first respondent that present appeal preferred directly before this Court from the impugned order passed by the IPAB is not maintainable and must be dismissed as such. Pertinently, the notice was issued in the petitions for special leave to appeal to the respondents on November 1, 2004. In response to the said notice the first respondent filed counter affidavit before this Court on March 11, 2005 wherein no specific objection about invocation of jurisdiction of this Court directly has been taken. In the counter affidavit a very vague objection in the following terms was raised: "that the present petition apart from being false and misconceived lacks the necessary jurisdiction, hence deserves outright rejection." We are afraid, this is hardly an objection about maintainability. Apart from it, on September 12, 2005 after hearing both parties, special leave was granted by this Court. In the backdrop of these peculiar facts, in our view, it is not appropriate to relegate the appellant at this distance of time to challenge the impugned order passed by the IPAB in writ petition before the High Court. The objection about maintainability of the appeals is, accordingly, overruled. 26. The moot question which has been debated before us is whether or not, the first respondent is an aggrieved person. That the first respondent filed composite applications under Sections 46 and 56 of the 1958 Act for rectification/removal of the trade mark `Infosys' registered in Classes 7, 9 and 16 is not in dispute. Sections 46 and 56 read as follows : "S. 46. Removal from register and imposition of limitations on ground of non-use.--(1) Subject to the provisions of section 47, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either-- (a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or, in a case to which the provisions of section 45 apply, by the company concerned, and that there has, in fact, been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application; or (b) that up to a date one month before the date of the application, a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being: Provided that, except where the applicant has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description, being goods in respect of which the trade mark is registered. (2) Where in relation to any goods in respect of which a trade mark is registered-- (a) the circumstances referred to in clause (1) of sub- section (1) are shown to exist so far as regards non- use of the trade mark in relation to goods to be sold, or otherwise traded in, in a particular place in India (otherwise than for export from India), or in relation to goods to be exported to a particular market outside India; and (b) a person has been permitted under sub- section (3) of section 12 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in relation to goods to be so sold, or otherwise traded in, or in relation to goods to be so exported, or the tribunal is of opinion that he might properly be permitted so to register such a trade mark, on application by that person in the prescribed manner to a High Court or to the Registrar, the tribunal may impose on the registration of the first-mentioned trade mark such limitations as it thinks proper for securing that that registration shall cease to extend to such use. (3) An applicant shall not be entitled to rely for the purpose of clause (b) of sub-section (1) or for the purposes of sub-section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates." "S. 56. Power to cancel or vary registration and to rectify the register.--(1) On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto. (2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to a High Court or to the Registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit. (3) The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register. (4) The tribunal, of its own motion, may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) or sub-section (2). (5) Any order of the High Court rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly. (6) The power to rectify the register conferred by this section shall include the power to remove a trade mark registered in Part A of the register to Part B of the register." 27. The position that emerges from the above provisions is this. Whether the application is under Section 46 or under Section 56 or a composite application under both Sections, it is a pre-requisite that the applicant must be a person aggrieved. Section 46(1) of the 1958 Act enables any person aggrieved to apply for removal of registered trade mark from the register on the ground of non use as stated in Clause (a) and/or Clause (b). To be an aggrieved person under Section 46, he must be one whose interest is affected in some possible way; it must not be a fanciful suggestion of grievance. A likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi. In Kerly's Law of Trade Marks and Trade Names (11th edition) at page 166, the legal position with regard to `person aggrieved' has been summarized thus : The persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed - where it is a question of removal - from the register; including all persons who would be substantially damaged if the mark remained, and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled. We accept the above statement of law. 28. Insofar as Section 56 is concerned, it provides for varying situations in which the person aggrieved may apply for rectification of the registered trade mark from the register. Although both Sections, namely, Sections 46 and 56 require `person aggrieved' to apply for removal of the registered trade mark from the register or rectification of a trade mark in the register, the expression `person aggrieved' for the purposes of these two Sections has different connotations. The interpretation of the expression `person aggrieved' occurring in Sections 46 and 56 has come up for consideration before this Court on more than one occasion. In Hardie Trading Ltd.1, this Court stated as follows: "30. The phrase "person aggrieved" is a common enough statutory precondition for a valid complaint or appeal. The phrase has been variously construed depending on the context in which it occurs. Three sections viz. Sections 46, 56 and 69 of the Act contain the phrase. Section 46 deals with the removal of a registered trade mark from the Register on the ground of non-use. This section presupposes that the registration which was validly made is liable to be taken off by subsequent non-user. Section 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made. The situations covered by this section include: (a) the contravention or failure to observe a condition for registration; (b) the absence of an entry; (c) an entry made without sufficient cause; (d) a wrong entry; and (e) any error or defect in the entry. Such type of actions are commenced for the "purity of the Register" which it is in public interest to maintain. Applications under Sections 46 and 56 may be made to the Registrar who is competent to grant the relief. "Persons aggrieved" may also apply for cancellation or varying an entry in the Register relating to a certification trade mark to the Central Government in certain circumstances. Since we are not concerned with a certification trade mark, the process for registration of which is entirely different, we may exclude the interpretation of the phrase "person aggrieved" occurring in Section 69 from consideration for the purposes of this judgment. 31. In our opinion the phrase "person aggrieved" for the purposes of removal on the ground of non-use under Section 46 has a different connotation from the phrase used in Section 56 for cancelling or expunging or varying an entry wrongly made or remaining in the Register. 32. In the latter case the locus standi would be ascertained liberally, since it would not only be against the interest of other persons carrying on the same trade but also in the interest of the public to have such wrongful entry removed. It was in this sense that the House of Lords defined "person aggrieved" in the matter of Powell's Trade Mark: "... although they were no doubt inserted to prevent officious interference by those who had no interest at all in the register being correct, and to exclude a mere common informer, it is undoubtedly of public interest that they should not be unduly limited, inasmuch as it is a public mischief that there should remain upon the register a mark which ought not to be there, and by which many persons may be affected, who, nevertheless, would not be willing to enter upon the risk and expense of litigation. Whenever it can be shown, as here, that the applicant is in the same trade as the person who has registered the trade mark, and wherever the trade mark, if remaining on the register, would, or might, limit the legal rights of the applicant, so that by reason of the existence of the entry on the register he could not lawfully do that which, but for the existence of the mark upon the register, he could lawfully do, it appears to me he has a locus standi to be heard as a person aggrieved." 33. But if the ground for rectification is merely based on non- user i.e. under Section 46 of the Act, that is not really on account of any public mischief by way of an incorrect entry. The non-user does not by itself render the entry incorrect but it gives a right to a person whose interest is affected to apply for its removal. An applicant must therefore show that "in some possible way he may be damaged or injured if the trade mark is allowed to stand; and by `possible' I mean possible in a practical sense, and not merely in a fantastic view.... All cases of this kind, where the original registration is not illegal or improper, ought to be considered as questions of common sense, to a certain extent, at any rate; and I think the applicants ought to show something approaching a sufficient or proper reason for applying to have the trade mark expunged. It certainly is not sufficient reason that they are at loggerheads with the respondents or desire in some way to injure them". 34. Addisons' application was one under Section 46 and the test to determine whether the applicant was a "person aggrieved" within the meaning of that section should have been the one laid down by Romer, J. in Wright case and not the one propounded by the House of Lords in the matter of Powell's Trade Mark. The High Court and the Joint Registrar fell into error in not drawing this distinction. However, it is not necessary to dilate on this aspect of the matter as the appellant has really argued on the second and third aspects of Section 46 viz. the alleged non-use of the trade marks by Hardie and special circumstances". 29. In the case of Hardie Trading Ltd.1, this Court approved the test applied by Romer, J. in The Royal Baking Powder Company v. Wright, Crossley, and Co.13, which has been reproduced in para 33 of the report. We respectfully agree. 30. Hardie Trading Ltd.1 has been followed by this Court in a recent decision in the case of Kabushiki Kaisha Toshiba2. This Court (1898) 15 RPC 677 stated that Section 46 speaks for private interest while Section 56 speaks of a public interest. 31. It is true that the appellant in opposition to the applications for removal/rectification of trade mark did not specifically challenge in its counter affidavits the locus standi of the first respondent to be heard as a person aggrieved. Obviously, in the absence of any specific objection by the appellant to that effect, no specific issue was framed by the High Court whether the applicant was an aggrieved person. The applications having been transferred to the IPAB in terms of Section 100 of the 1999 Act, the IPAB examined the matter in light of the issues that were framed by the High Court although in the written submissions before it, the objection was raised that the first respondent has ceased to have locus standi in view of the subsequent events, particularly change of the name of the first respondent from Jupiter Infosys Ltd. to Jupiter International Ltd. The question is, whether in these circumstances it was incumbent upon the IPAB to consider and satisfy itself about the locus standi of the first respondent to be heard as a person aggrieved. In our considered view, it was. In the first place, when the first respondent applied for rectification/removal in respect of three registrations in Classes 7, 9 and 16, it must have shown in respect of each of them that it is a `person aggrieved' and the IPAB must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common. Secondly, and more importantly, during the pendency of the applications, certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of Section 46 (1) of the 1958 Act is concerned. In the affidavit filed by the first respondent on July 14, 2004 before the Court of Additional District Judge, Delhi an unequivocal and categorical statement has been made that now there is no dispute between the plaintiff (appellant herein) and defendant (first respondent herein) under the Trade Mark and that defendant has already changed the Trade Mark namely "Jupiter International Ltd." in place of "Jupiter Infosys Ltd." 32. In terms of Section 46(1), not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the IPAB must also be satisfied, before it directs the removal of registered trade mark, that the applicant is an aggrieved person before it invokes the power in directing the removal of the registered trade mark. This is so because the pre-requisite for exercise of power under Section 46(1) is that the applicant is a person aggrieved. 33. The question then arises, whether it is sufficient for the applicant to show that he is a person aggrieved when he makes his application or he must continue to remain a person aggrieved until such time as the rectification/removal application is finally decided. In our view, the grievance of the applicant when he invokes Section 46(1) must not only be taken to have existed on the date of making application but must continue to exist when such application is decided. If during the pendency of such application, the applicant's cause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason, there may not be any justification for rectification as the registered trade mark cannot be said to operate prejudicially to his interest. In re Apollinaris Company's Trade-Marks14, while dealing with this aspect, Kekemich,J. stated : ".....because that is a remedy given to the person aggrieved through the interposition of the Court for the benefit of the (1891) 2 Ch. 186 applicant, and if at the date of the trial he has no cause of complaint it seems to be monstrous to suppose that the Court will rectify the register at his instance when it can do him no good to rectify, and when the retention on the register can do him no harm merely because at the date of his application he may have had some grievance." We concur with the above statement. 34. In the circumstances, we are satisfied that the applications made by the first respondent for rectification/removal of the subject trade marks from the register need to be considered afresh by the IPAB in accordance with law and the observations made above. Since the first respondent has also grievance in connection with the impugned order particularly with regard to non- consideration of its case under Section 56 of the 1958 Act, we refrain from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the IPAB. 35. In view of the above, these appeals are allowed in part and the impugned order dated September 9, 2004 is set aside. The applications being TRA Nos. 25 to 27 of 2003 (OP Nos. 764 to 766 of 2001) are restored to the file of Intellectual Property Appellate Board, Chennai for hearing and disposal afresh in accordance with law. The parties shall bear their own costs. .................... J. (Aftab Alam) .................... J. (R.M. Lodha) NEW DELHI, NOVEMBER 9, 2010.


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6690 OF 2008 [Arising out of S.L.P. (C) No.21315 of 2006] Mukul Saikia & Ors. ..... Appellants Versus State of Assam & Ors. ..... Respondents JUDGMENT Lokeshwar Singh Panta, J. 1. Leave granted. 2. This appeal is directed against the common judgment and order dated 15.09.2006 passed by a Division Bench of the High Court of Gauhati, dismissing Writ Appeal Nos. 471/2003 and 08/2005 filed by the appellants herein against the common judgment and order dated 14.08.2003 of the learned Single Judge in WP (C) No. 2026/2001, WP (C) No.2036/2001 and WP (C) No.4932/2001 whereby the learned Single Judge has dismissed the said writ petitions. 3. Briefly stated the facts of the case are as follows:- The Assam Public Service Commission (hereinafter referred to as "APSC") had issued an advertisement dated 19.08.1997 for filling up 27 posts of Child Development Project Officer (hereinafter referred to as "CDPOs"), pursuant whereupon a selection process was held. Finally, a select list dated 17.07.2000 containing the names of 64 candidates far in excess of the notified vacancies was prepared and published by the APSC. The names of the appellants who are 13 in number before this Court appeared in the select list below 27 persons who were appointed on merit by the State Government. 4. The appellants filed two separate writ petitions before the High Court of Gauhati, inter alia, challenging the Cabinet Memorandum dated 16.06.2000 circulated by the Commissioner and Secretary, Government of Assam, Social Welfare Department under Rule 17 of the Assam Rules of Executive Business relating to the regularization of 18 CDPOs/ Probation Officers who were appointed under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Function) Regulation, 1951 (for short "Regulation 1951") and praying for a direction to the State- respondent to appoint the appellants in the vacant/newly created posts of CDPOs/ Probation Officers. The appellants also challenged the policy decision taken by the State to regularize the services of the private respondents herein, who were initially appointed temporarily under Regulation 3 (f) of Regulation of 1951 and could not succeed in the selection process conducted by the APSC. The appellants contended before the High Court that giving benefit of regularization of service to the private respondents to the posts of CDPOs was contrary to the recruitment rules and the action of the State Government would amount to giving backdoor entry to the unsuccessful candidates into the State Services. 5. The stand of the respondent-State before the High Court was that 27 advertised vacant posts meant for direct recruitment quota, were filled up by the State Government on merits out of the select list prepared by the APSC dated 17.07.2000. The select list having thus exhausted, the appellants, whose names figured below the 27 selected candidates in the select list, therefore, could not claim to be appointed in excess of the advertised vacancies of CDPOs; and that if any future vacancies which arose after the publication of the advertisement, were to be filled up out of the left out candidates of the select list, the said appointment would amount to depriving other persons who, in the meantime, would have become eligible for selection and appointment. It was also submitted that as soon as the posts advertised were filled up or the validity of the select list expired, whichever event was earlier in point of time, the candidates whose names appeared in the select list could not thereafter claim appointment as the select list got exhausted. It was stated that the appellants have neither challenged the policy decision taken by the Government on the basis of the Cabinet decision nor the Notification issued pursuant thereto by the State Government regularising the service of 18 CDPOs/ Probation Officers. It was also stated that the decision to regularize 18 CDPOs, who were initially appointed under Regulation 3 (f) of Regulation, 1951, was taken by the State in view of the fact that they had already rendered more than four years of service satisfactorily and their continuation in service was necessary to implement the time-bound scheme of the Government of India for which ICDS Project was created in the State of Assam. It was categorically stated that 18 CDPOs were regularized by the State Government to the posts meant for promotees. 6. The stand of the private respondents-appointees was that 27 advertised vacancies were filled up by the State Government on the basis of merit list prepared by the APSC on 17.07.2000 and as soon as those vacancies were filled up against the direct quota, the select list got exhausted. They stated that the appellants could not, as a matter of right, claim that they shall be appointed against the unadvertised future vacancies, merely because their names are found in the select list prepared by APSC. The respondents-appointees submitted that since they were not regularized against the posts advertised by the APSC by means of advertisement dated 19.08.1997, the appellants could not claim that they should be appointed against those posts pursuant to their selection when 18 vacancies in the cadre of CDPOs were meant to be filled up by way of promotion. They submitted that the decision to regularize their services was taken by the State Government by giving relaxation as contemplated under Clause 11 of the Assam Social Welfare (Recruitment and Promotion) Service Order, 1994 (for short "the Service Order, 1994) and the said decision in fact has not been challenged by the appellants/original writ petitioners either in the writ petitions or in the writ appeals filed by them before the High Court. 7. The learned Single Judge of the High Court dismissed the writ petitions of the appellants, inter alia, holding that no posts beyond 27 advertised vacancies could be filled up from the select list and the appellants had challenged only the Cabinet Memorandum dated 16.06.2000 without challenging the Cabinet decision taken on 13.10.2000 followed by the Notification dated 16.11.2000 issued by the State Government whereby the services of the private respondents came to be regularized. 8. Being aggrieved thereby, the appellants filed the above- said two writ appeals (being WP(C) 471/2003 and WP (C) 08/2005) which have been dismissed by the Division Bench by common judgment and order dated 15.09.2006. Now, all the appellants have preferred this single appeal challenging the impugned order of the High Court. 9. On notice issued by this Court, Shri Joydeep Shukla, Extra Assistant Commissioner, Government of Assam, has filed affidavit stating, inter alia, that the private respondents have rendered highly satisfactory and dedicated service in implementation of time-bound Integrated Child Development Scheme Projects (ICDS) ever since they joined the services and their retention in service would also be highly beneficial to the interest of the Project as well as the public at large. It is stated that at the relevant point of time, there were 18 vacant posts of CDPOs in the promotional category and another 10 additional vacancies meant for the promotees had also arisen thereby making a total number of 28 vacancies meant to be filled up by promoting departmental candidates as per the requirement of Service Order, 1994. It is stated that the private respondents submitted representations to the authorities praying for regularization of their services which was duly considered by the Department of Social Welfare, Government of Assam and taking into consideration the interest of ICDS Projects, it was decided that regular absorption of the private respondents against the promotional posts of CDPOs was in the best interest of the Projects which are funded by the Central Government in the State for the welfare of the general public. It is stated that a Cabinet Memorandum dated 16.06.2000 was circulated under Rule 17 of the Assam Rules of Executive Business, after obtaining the approval of the Personnel (B) Department of the State of Assam for regularizing the services of the private respondents in the exceptional circumstances of the matter against 28 available vacancies meant for promotees by invoking power of Rule 11 of the Service Order, 1994. On the basis of the Cabinet Memorandum dated 16.06.2000, a Cabinet decision was taken on 13.10.2000 granting approval of regularization of services of the respondents. The respondent-State also submitted that the appellants have not challenged the one- time policy decision taken by the Cabinet nor the Notification dated 16.11.2000 issued pursuant to the Cabinet decision regularizing the services of the private respondents have been challenged by the appellants before the learned Single Judge or the Division Bench of the High Court and the High Court has rightly dismissed the writ petition and appeals of the appellants, inter alia, on the grounds that the appellants have no enforceable right to get appointments to the posts of CDPOs against promotional quota merely because their names had figured in the select list prepared by the APSC against the direct quota. 10. The private respondents, in their counter affidavit filed before this Court have stated that total number of notified vacancies of CDPOs were only 27, yet a select list dated 17.07.2000 was published by the APSC wherein as many as 64 candidates were recommended. In order of merit, 27 selectees were appointed out of whom 17 were appointed in the general quota and 10 from the reserved category as per the rules. The names of the appellants appeared below 27 candidates who have been appointed; therefore, the appellants have no legal right to claim appointment against the excess quota of the advertised vacancies. The Secretary to the Government of Assam, Personnel (B) Department by circular bearing No. 98/4 dated 18.12.1998 had requested the APSC to recommend the candidates equal to the number of vacancies notified in the advertisement. The contesting respondents stated that in the year 1996-97, there were total number of 45 vacant posts of CDPOs and allied cadre in the Department of Social Welfare including the backlog vacancies and as per Service Order, 1994, 60 per cent of the vacancies are required to be filled up by way of direct recruitment and the remaining 40 per cent by means of promotion of suitable departmental candidates. Accordingly, only 27 (60 per cent) vacancies of CDPOs were available at the time of issuing the advertisement notice dated 19.08.1997 for which selection was made by the APSC and on the basis of merit, 27 vacancies were filled up by the State Government after complying with the provisions of the rules including the reservation in favour of SCs/STs/OBCs. The remaining 18 vacancies being 40 per cent of total 45 vacancies were to be filled up by eligible departmental candidates. In addition thereto, 10 more vacancies were also available to be filled up by way of promotion thereby making 28 total number of vacancies. The State Government regularized the services of private respondents against 18 vacancies in the cadre of CDPOs which were meant to be filled up by way of promotion from departmental candidates and as such, the appellants who had applied against direct quota have no legitimate right to be selected and appointed against promotees quota. 11. The private respondents also submitted that they have been regularized on the basis of the Cabinet decision dated 13.10.2000 and Notification dated 16.11.2000 in deference to Rule 11 of the Service Order, 1994. They submitted that there was an urgent need on the part of the Department to fill up all the vacant posts for the purpose of proper and effective implementation of the time-bound Projects of the State. It is stated that, in view of the long services rendered by the private respondents and having due regard to their past satisfactory performance and also the service record, they have been regularized against those promotional vacancies, purely in the interest of the public. It is also submitted that subsequently by Notification No. 59 PSC/DR-41/1/2005-06 dated 20.04.2006, the APSC has also conveyed its approval to the regularization of the respondents' services. They have stated that the procedure for regularization of the respondents' services was a one-time measure adopted by the State Government in the special circumstances and their regularization has not, in any manner, caused any prejudice to the interest of the appellants. The respondents also stated that the appellants have not challenged the Cabinet Decision dated 13.10.2000 and subsequent Notification dated 16.11.2000 issued by the State Government in the writ petitions filed by them nor they have challenged the same before the Division Bench of the High Court. In that view of the matter, the private respondents submitted that the appellants had no locus standi to file the writ petitions under Article 226 of the Constitution of India. 12. We have heard learned counsel for the parties. Mr. A.K. Ganguly, learned senior counsel appearing for the appellants, submitted that the private respondents were appointed in the year 1995-96 only for four months on ad hoc basis in terms of Regulation 3(f) of Regulation 1951, or till regular appointments in accordance with the preference and recommendations were made by the APSC under the Service Order, 1994, as such their continuance on ad hoc basis was de hors the rules and they are illegally regularized on 16.11.2000 after they have put in barely four years of service. He submitted that in identical cases, namely, Pranjit Kumar Das v. State of Assam & Ors. (1995) 1 GLR 229 and Dr. Anoop Kumar Das v. Dr. Sanjib Kakati & Ors. (2000) 2 GLR 479, the Gauhati High Court has held that any appointment under Regulation 3 (f) of Regulation 1951 is ad hoc in nature and de hors the rules, and therefore, could not be sustained. He submitted that the Cabinet decision in regard to the regularization of the private respondents was in disregard to the binding law as laid down in the above cited decisions. He submitted that the appellants who were duly selected by the APSC could have been appointed against the vacancies which subsequently arose in excess of 27 advertised posts. In support of this submission, reliance is placed on decisions in Virender Singh Hooda v. State of Haryana and Anr. [1999 (3) SCC 696], Suvidya Yadav & Ors. v. State of Haryana & Ors. [(2002) 10 SCC 299] and Sandeep Singh v. State of Haryana & Anr. [2002 (10) SCC 549]. Lastly, it was contended that the regularization of the service of private respondents to the posts of CDPOs after they remained unsuccessful in the test held by the APSC is in violation of Articles 14 and 16 of the Constitution of India as well as in derogation of the law laid down by a Constitution Bench of this Court in Secretary, State of Karnataka and Ors v. Uma Devi & Ors. [(2006) 4 SCC 1]. 13. While refuting the submissions of the appellants, Mr. P.P. Rao, learned senior counsel for the State, on the other hand, submitted that the posts in which the private respondents were regularized were promotional posts to be filled up by promotion from amongst the persons who have rendered 10 years' continuous service in the feeder cadre and the appellants cannot have any claim to be considered for appointment against promotional quota. He submitted that all the 27 advertised posts have been filled up on the basis of the select list prepared by the APSC and the appellants cannot have any right to claim appointment against the anticipated vacancies which were never advertised and they have a right to be considered along with other eligible candidates as and when posts are advertised for direct recruitment. He then contended that when the regularization of the private respondents took place in the year 2000, the law declared by this Court in State of Haryana v. Piara Singh [(1992) 4 SCC 118], was holding the field, which required the State Government to regularize the services of ad hoc employees who have put in a few years of continuous service. He submitted that the law laid down by a Constitution Bench of this Court in Secretary, State of Karnataka's case (supra) relied upon by the appellants in support of their case will be of no help and assistance to the appellants as in the said decision, this Court has clarified that the regularization, if any, already made, but not sub judice, need not be re-opened on the basis of the judgment. 14. Mr. P.S. Patwalia, learned senior counsel, appearing on behalf of the private respondents in addition to the submission of Mr. P.P. Rao, learned senior counsel, submitted that the appellants have no right that can be enforced in the present proceedings, particularly, in view of the fact that admittedly their names appeared in the select list dated 17.07.2000 below the persons who have been appointed against the 27 vacancies. He submitted that the Rules applicable to the present case do not permit inclusion of more number of candidates in the select list in excess of the notified vacancies. In support of this submission, reference is made to the decisions of this Court in Madan Lal v. State of J & K & Ors. [(1995) 3 SCC 486], Shri Kant Tripathy & Ors. v. State of U.P. & Ors. [(2001) 10 SCC 237], State of U.P. & Ors. v. Raj Kumar Sharma & Ors. [(2006) 3 SCC 330] and Prem Singh v. Haryana State Electricity Board [1996 (4) SCC 319]. He submitted that the appellants have no locus standi to file the writ petition under Article 226 of the Constitution of India before the High Court as the private respondents would stand on a completely different footing as compared to the appellants. It was also submitted that the decision to regularize the services of the private respondents was taken by the Cabinet in its meeting dated 13.10.2000 pursuant whereupon separate Notification dated 16.11.2000 was issued by the State Government regularizing their services in deference to Rule 11 of Service Order, 1994 by relaxing the rules. It was then contended that the Cabinet decision as well as the subsequent Notification of the State Government have not been challenged in the writ proceedings, the High Court has rightly dismissed the writ petition and the appeals of the appellants. 15. At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The selection list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17.07.2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularization of the private respondents. 16. At the time of issuing the advertisement dated 19.08.1997, the total number of vacancies available in the cadre of CDPOs in the year 1996-97 was 45 out of which 27 vacancies, being 60 per cent of the total number of vacancies were available for being filled up by way of direct recruitment as per Service Order, 1994. The Joint Secretary, Personnel (B) Department, circulated the Cabinet Memorandum under Rule 17 of the Assam Rules of Executive Business. It was made clear in the said Cabinet Memorandum that the private respondents could not pass the APSC written examination, but they have gathered sufficient experience under Social Welfare Department and the performance of the officers was also found satisfactory. It was stated that their services were not terminated and they were allowed to continue in their respective posts and in the interest of the public service, the State Government had decided to regularize their services and to absorb them under Social Welfare Department against posts held by them. The Commissioner and Secretary to the Government of Assam, Social Welfare Department on 16.06.2000, concurring with the proposal of Joint Secretary, Personnel (B) Department, as a special case sought the approval of the Cabinet for regularization of appointment of 18 CDPOs/Superintendents/ Home Probation Officers who were appointed in terms of Regulation 3 (f) of APSC and in accordance with the method as provided in Clause 5(c) by invoking discretion of relaxation under Clause 11 of Service Order, 1994. The Cabinet in the meeting held on 13.10.2000, decided to regularize the services of the private respondents in the special circumstances that they have been working against the posts of CDPOs for the last more than four years and their performance was found satisfactory and their continuity in the existing posts was also needed for effective implementation of the time-bound scheme of the Government of India for which ICDS Projects were provided in the State of Assam. Pursuant to the Cabinet decision, Notification No. SWD 34/99/104 dated 16.11.2000 was issued by the Commissioner and Secretary to the Government of Assam, Social Welfare Department by which the services of the appellants were ordered to be regularized with effect from the date of their joining the Social Welfare Department. Indisputably, the appellants have challenged only the Cabinet Memorandum dated 16.06.2000 in the writ petition before the High Court while the Cabinet decision dated 13.10.2000 was taken on the basis of the said Memorandum and the subsequent Notification regularizing the services of the appellants issued by the State Government on 16.11.2000 had remained unchallenged. The Cabinet took the decision dated 13.10.2000 in exercise of the powers under Rule 17 of the Assam Executive Business Rules which was subsequently notified by the State Government on 16.11.2000 as a one-time measure to regularize the services of the private respondents. It appears that the appellants were not serious in regard to challenging the regularization of the private respondents but were only interested in pursuing their own claim for appointment as CDPOs against the vacancies reserved for direct quota. In the circumstances and the facts of the present case, the appellant cannot maintain any claim whatsoever in respect of the 18 vacancies of CDPOs against which the private respondents were regularized. The appellants and the private respondents stand on a completely different footing. The services of the private respondents have been regularized against the vacancies meant for promotees and the source of legal right of the appellants and the private respondents being from two different and distinct sources, their relative rights cannot be compared with each other and, therefore, there cannot be any violation of fundamental rights under Article 14 of the Constitution of India as a consequence of the regularization of the services of the respondents. 17. We have gone through the Service Order, 1994 issued by the Government of Assam, Social Welfare Department dated 01.08.1994. Clause 3 of the Service Order classifies the class and cadre of the services. The post of Child Development Project Officer is in Class II cadre. Clause 5 thereof envisages method of recruitment and promotion. The relevant portion of Clause 5 reads as under:- "5 Recruitment to the Cadre of the service shall be made in the following manners:- (a) xxx xxx xxx (b) xxx xxx xxx (c) In the order of District SWO/ CDPO/ Special Home/ Principal Balbhawan VTRC/ Probationary Officer/ PWO/ Liaison Officer/ Vice Principal, Jorhat, Blind Institute. The posts shall be filled up by direct recruitment through the Commission as per norms fixed jointly with Ministry of Welfare, Government of India by the Social Welfare Department." Clause 11 of the Service Order deals with relaxation. It reads:- "Where the Governor is satisfied that the operation of any of the provisions of these orders has caused undue hardship in any particular case, he may dispense with or relax the requirement of that provision to such extent and subject to such condition as he may consider necessary for dealing with the case in a just and equitable manner. Provided that the case of any Government servant shall not be dealt with in any manner, less favourable to him than that provided in these orders." 18. Annexure-1 attached to Service Order, 1994 contains class of posts, cadre of posts, cadre strength, scale of pay and qualifications & experience for the service. At serial No. 3, in Class II the total cadre strength of CDPOs has been shown as 68 in the pay scale of Rs.1635-3950/-. Column 6 of Annexure I prescribes that 40 per cent of the posts of CDPOs have to be filled up by promotion from amongst the persons who have rendered 10 years of continuous service in the cadre of ACDPOs/Assistant Superintendent Homes and Allied Cadre and 60 per cent by direct recruitment. The private respondents, no doubt, were appointed on ad hoc basis and admittedly they have not completed 10 years of continuous service in the cadre of ACDPOs, but the State of Assam, with the approval of the Cabinet, decided to regularize the services of the appellants as a special case by giving relaxation under para 11 of the Service Order. Therefore, the decision of the Cabinet pursuant whereof the State Government issued Notification cannot be held to be arbitrary and irrational. The appellants fall in different categories and they have no enforceable right to challenge the regularization of the private respondents who have been regularized against the vacancies meant for promotional quota. In their writ petition, they have prayed for their appointment because their names were included in the select list by the APSC against the direct quota. The State Government appointed 27 persons in order of merits out of the select list prepared by the APSC, as such the appellants being selectees cannot claim appointment as a matter of right in excess to the advertised vacancies. It is well settled law that filling up of the vacancies over and above the number of vacancies advertised would be violative of Articles 14 and 16 of the Constitution of India. Mere inclusion of the appellants in the select list of the direct appointees does not confer any right on them to be appointed against the vacancies reserved for promotees. The decision of the Cabinet and the Notification issued by the State Government pursuant thereto in our view, are both in consonance and in conformity with Clause 11 of the Service Order to save the services of the private respondents from being thrown out of the job which otherwise would cause extreme hardship and injury to them and to the members of their families. 19. In the facts and circumstances of the present case, we find that the High Court has rightly held that the appellants do not have any enforceable right of being appointed to the post of CDPOs against the quota meant for promotees and more particularly against the decision of the State Government regularizing the services of the private respondents. The Cabinet decision was taken as a one-time measure having regard to the special circumstances of the case, the satisfactory performance rendered by the private respondents and their past service record which was found to be unblemished by the Government as well as in the exigencies of the Scheme of the Central Government which were to be operationalised in a time-bound manner and also keeping public interest in mind. In these circumstances, the High Court is right in holding that the appellants have no locus standi to challenge the regulation of private respondents against the vacancies meant for the promotional quota the appellants who appeared in the interview held by APSC as direct candidates could not have any grievance against their regularization against 40 per cent promotional posts. 20. In the backdrop of the above stated facts and the relevant provisions of rules, we do not find any error or infirmity in the impugned judgment and order passed by the High Court which would warrant any interference by this Court in this appeal. None of the contentions raised by the appellants merits acceptance. The law laid down by the Constitution Bench of this Court in Uma Devi's case (supra) in the present set of facts and circumstances will be of no help and assistance to the appellants. The decision of the Gauhati High Court in the cases cited at Bar by the learned senior counsel for the appellants will turn on the facts and circumstances of the said cases and the ratio laid down therein cannot be made binding on the peculiar facts of the present case. 21. For the above-stated reasons, the appeal fails and it is accordingly, dismissed. In the facts and circumstances, the parties are left to bear their own costs. ........................................J. (R. V. Raveendran) ........................................J. (Lokeshwar Singh Panta) New Delhi, November 18, 2008.