<CITATION> .

1. Respondent No.1 is Deputy Chief Engineer (General) in <ORG>, <ORG>, Secunderabad. He joined in <ORG> in Group-C on 11-11-1964. By 1979 he was selected as Assistant Engineer Group-B through a limited departmental examination. Later he came to be promoted to Senior Time Scale (STS) Group-B on 29-6-1987. Next promotion of Officers of STS Group-B is to Indian <ORG> (<ORG>), which is a selection post. Respondent No.1 became eligible for the post of <ORG> Junior Scale (JS) Group-A by 27-10-1982 after completion of three years in <ORG> However, he could not be considered as he fell out of zone of consideration. By 1989 his seniority in <ORG> moved up and he allegedly came within the zone of consideration. As per the rules and procedure of <ORG> <ORG> (<ORG>) has to consider all the eligible candidates who are within the zone of consideration and recommend for promotion to <ORG>. It is admitted that the <ORG> was not constituted from 1988-91. Be it, however, noted that though the <ORG> was constituted in 1991 in relation to vacancies of 1988, the respondent No. 1 was not in the zone of consideration. In December, 1992 he was considered by the <ORG> and promoted as Deputy Chief Engineer (JS) Group-A in <ORG> with effect from 24-12-1992.

2. The petitioner was given five years weightage from the date of his promotion i.e., 24-12-1992 in accordance with the principles laid down for fixation of seniority. He was fixed in the seniority list below three directly recruited officers who were respondents 3 to 5 before <ORG> and who were recruited against the vacancies, which arose prior to 1989. Aggrieved by such action, respondent No. 1 filed an original application being <ORG> No.495 of 1997 under Section 19 of the Administrative <ORG>s Act, 1985 ('the Act' for brevity). He prayed for quashing the letter of the <ORG>-respondent No.l dated 8-12-1995 in which the seniority of un-official respondent Nos.3 to 5 was fixed from the date of initial time scale (DOITS) in 1984. He also prayed for a direction to the petitioner to refix his DOITS in 1984 counting weightage of five years from the year of vacancy. The <ORG> disposed of the <ORG> directing the petitioner to dispose of the representation dated 22-7-1996 made by respondent No.1. The representation was duly disposed of by letter dated 3-10-1997. Aggrieved by the same, respondent No.1 again filed <ORG> No.590 of 1998 before the Central <ORG> praying to quash the <ORG>'s letter dated 8-12-1995 wherein his seniority was fixed with effect from 24-12-1987 and for quashing the tetter dated 4-10-1997 of the Secretary, <ORG>, which was the basis for passing the order on 3-10-1997 by respondent No.2, rejecting the representation made by the first respondent on 22-7-1996. The learned <ORG> allowed the <ORG> in the following terms :

In view of what is stated above, we have no hesitation to come to the conclusion that the applicant should be shown as having been promoted to <ORG> in the vacancies that arose for promotion from Group 'B' to Group 'A' service in the year 1989. On that basis he should also be given antedated seniority in accordance with the principles laid down by order dated 30-11-1976. The applicant is also entitled for other consequential benefits arising out of that seniority.

3. While doing so the <ORG> also placed reliance on the judgment of the Central Administrative <ORG>, Bombay Bench in CP No.5 of 1991 in OA No.177 of 1986 dated 20-9-1991 wherein it was observed that the delay in holding <ORG> shall not deprive the claim of the incumbent for seniority and date of time scale anterior to the date of promotion.

4. <NAME>, learned Counsel for the petitioners submits that allowing promotion to respondent No.1 in Group-A (JS) of <ORG> prior to 1989 is in contravention of the principles of <ORG> approved by the President of India. If the principle laid down by the <ORG> is allowed to stand whenever there is delay in constitution of <ORG>, the subsequent promotions in accordance with the recommendations of <ORG>, would have to be dated back which would result in violation of Articles 14 and 16 of the Constitution of India. He also submits that the view taken by the <ORG> is contrary to the principles laid down by <ORG> in <CITATION> , , <CITATION> , 2000 (4) <ORG>, <CITATION> , , <CITATION> , 2000 (1) <ORG>, <CITATION> , and <CITATION> , 2000 (4) Supreme 710.

5. The learned Counsel for the respondent No.l Sri C.V. Mohan Reddy submits that though respondent No.l was eligible for promotion to Group-A even in 1982 his case could not be considered as he was not within the zone of consideration. Though there were vacancies in 1989 the petitioners did not hold <ORG> in relation to the vacancies whiclx arose in 1989 and respondent No.1 was only considered in 1992, and therefore, the petitioners are bound to give weightage of five years and refix the DOITS five years anterior to 1989 i.e., 1984. He also submits that when <ORG> is required to fill up vacancies in the ratio of 60:40 by direct recruitment and by promotion filling up vacancies from only one source is against rules and cannot be sustained. As respondent Nos.3 to 5 were directly recruited in the examination years 1983, 1985 and 1984 respectively. If the first respondent is not given weightage of five years to be reckoned from 1989, he would become junior to 1984 direct recruits which violates the fundamental right under Article 16 of the Constitution of India. As the petitioners held <ORG> in December, 1992 for the examination years of 1989, 1990 and 1991 and made separate panels for three years, the petitioners are bound to give weightage of five years from 1989, the examination year and not from the date of promotion as otherwise, respondent No. 1 would stand to loose three years of seniority. He also further submits that those officers who are promoted for the examination years of 1991 in view of the fact that there is only one year delay in conducting <ORG>, they would lose only year's seniority, and therefore, respondent No. 1 meted out with discrimination. He also submits that the petitioners have not followed the principles of determination of seniority vide <ORG>'s letter dated 30-11-1976, and therefore, the <ORG> was justified in allowing the OA. He placed strong reliance on the judgments of <ORG> in <CITATION> , 1994 (4) SLR 20 (SC), <NAME> v. State of Bihar, , <CITATION> , 1997 (1) SLJ 69, <CITATION> , 1997 SCC (L&S) 1194 and <CITATION> , 1998(1) SLJ 259.

6. In the light of the rival contentions presented before us, the point that arises for consideration is whether the first respondent is entitled for weightage from the date of appointment to <ORG> of Group-A of <ORG> with effect from 24-12-1992 or is he entitled for such weightage anterior to the year of allotment i.e., 19-8-1997.

7. It is one of the principles of fixation of seniority that whenever there is recruitment to a particular service from two sources i.e., direct recruitment and promotion the seniority of promotees is fixed by giving wcightage in the form of seniority in the service subject to certain conditions. Weightage principle is generally applied also in a situation when persons in a feeder category come from two different lower categories and are required to fulfil two different kinds of eligibility criteria weightage of service means that though a promotee is given promotion to a cadre post or higher post in the non-cadre post, his seniority will be reckoned from a date anterior to the date of promotion, because in every year of recruitment, the rule obligates to maintain the ratio of recruitment between direct recruits and promotees. This is done to maintain the efficiency of service as well as to balance the competing interests. The weightage principle generally contemplates considering the service rendered in the cadre from which the promotion is given or for officiating service rendered on promotion prior to substantive appointment. Cases have come up with regularity where the question mostly involved the application of the rules than the vires of the rules. Further, cases involving weightage principle in fixing the seniority are by and large arose in relation to <ORG> like <ORG>, <ORG>, <ORG> etc. It also arose in relation to fixation of seniority of service holders who came to hold such post from two different sources. The principle of giving weightage has been held to be not unreasonable in <CITATION> , and <CITATION> , .

8. The question however before this Court is not as to the validity of the principle of weightage in fixation of seniority, but only as to how such weightage is to be reckoned. Therefore, it is necessary to examine the controversy in a nutshell and the purport of the various <ORG> Orders as approved by the President of India.

9. It is not denied before us that respondent No. 1 was promoted in a vacancy earmarked for promotees with reference to 1989. It is also not denied before us that till 1991 respondent No.1 did not come up within the zone of consideration though he became eligible for being promoted to <ORG> of <ORG> cadre October, 1982. Further, a perusal of the order impugned before the <ORG> dated 8-12-1995 shows that by virtue of notification No.E (GP)92/ 1/49 dated 3-11-1995 issued by <ORG>, respondent Nos. 1 and 111 other <ORG> officers were substantively appointed to the JS (<ORG>) of <ORG> with effect from 24-12-1992. According to the impugned letter/seniority list the inter se seniority of all the 112 <ORG> officers who were substantively appointed to <ORG> of <ORG> was prepared giving DOITS by applying principle (vi) of the principles for determining the relative seniority vide <ORG> letter No.E(O)l-72/ SR-6/29 dated 30-11-1976 as amended by letter dated 23-4-1991 and all other relevant factor. As per the annexure to the said letter 112 <ORG> officers will rank below one <NAME> whose DOITS was with effect from 4-12-1987 and above one <NAME> whose DOITS was with effect from 15-3-1988. The said S.R. Paul was junior most officer in the seniority list issued vide "<ORG> letter dated 24-12-1993 and <NAME> was the senior most direct recruit in 1986 batch and the inter se seniority position was circulated vide <ORG> letter dated 26-2-1983. This means that respondent No.l and all others who were appointed substantively to JS (<ORG>) <ORG> with effect from 24-12-1992 were placed above senior most of direct recruits of 1986 batch and junior most officer in the already finalised seniority list with reference to allotment year of 1987. Applying this principle, the petitioner was given DOITS with effect from 24-12-1987 whereas the said Paul was given DOITS with effect from 4-12-1987. Between these two dates there was no officer who was given DOITS with reference to 1984 which is now claimed by respondent No.1. All the 112 officers of <ORG> were appointed to <ORG> vide <ORG> dated 3-11-1995 and their inter se seniority was fixed accordingly giving all of them DOITS as 24-12-1987. This was done by applying seniority principles contained in the letter dated 30-11-1976 as amended by another letter dated 23-4-1991.

10. As per Rule 209(B)(1) of Indian Railway Establishment Code Vo.1 read with Rule 4, recruitment for <ORG> 40% of the posts from promotion from Group-B to Group-A Junior Scale which is based on selection on merit. For filling up the promotion quota <ORG> is held by <ORG> and as per the procedure followed in <ORG> Officers coming within the zone of consideration and those who have Bench mark grading 'good' are considered. Even among these officers, the officers with grade as 'outstanding' rank en bloc seniority to those who have grade as 'very good' and those who have graded as 'very good' rank en bloc senior to those who have graded as 'good' and get place in the select list accordingly. The officers placed in the panel were promoted to Group-A JS with the approval of the President with effect from the date of communication of approval of the <ORG> and recommendations of the <ORG>.

11. By letter dated 30-11-1976 <ORG> in Ministry of Railways with the approval of the President of India circulated principles for determining the seniority of officers appointed to various Class-I services from different sources (for short 'the principles'). Principle (i) states that the seniority of officers appointed to class-I shall be determined on the basis of 'date for increment on time scale' (DOITS) to be specifically determined in each case in accordance with the principles laid down therein. Principle (ii) is to the effect that all such officers promoted to class-I shall count their seniority from the date they commence earning increments in the regular scale as Assistant Officers subject to condition that inter se seniority of officers in each service recruited as probationers in a particular year will be regulated by their place in order of merit. Principle (vii) with which we are concerned reads as under:

Principle (vii):- In the case of Class II Officers permanently promoted to Class I Services, if two are more than two officers are promoted on the same date their relative seniority will be in the order of selection. Subject to the aforesaid provision the seniority of officers, permanently promoted from Class II to Class I services, shall be determined by giving weightage based on:

(a) the year of service connoted by the initial pay on permanent promotion to Class-I Service; or

(b) Half the total number of years of continuous service in Class-11, both officiating and permanent;

Whichever is higher, subject to a maximum weightage of five years.

12. The above principle (vii) contemplates giving wieghtage based either on the year of service connoted by the initial pay on permanent promotion to Class-1 or half of the total number of continuous officiating and permanent service in Class-II subject to maximum service of weightage of five years. These principles were amended subsequently by letter dated 23-4-1991. Principle (vii) in the letter dated 30-11-1976 was renumbered as principle (vi) and after amendment, it reads as follows:

Principle (vi): In the case of Group 'B' officers permanently promoted to Group 'A' services, if two or more officers are promoted on the same date, their relative seniority will be in the order of selection, subject to the aforesaid provision, the seniority of officers, permanently promoted from Group 'B" to Group 'A' service shall be determined by giving weightage based on:

(a) the year of service connoted by the initial pay on permanent promotion to Group 'A' service; or

(b) half the total number of years of continuous service in Group 'B' both officiating and permanent;

whichever is more, subject to a maximum of 5 years; provided that the weightage so assigned does not exceed the total non-fortuitous service rendered by the officer in Group 'B'.

13. As per the amendment contained in letter dated 23-4-1991 the same is applicable to all selections of <ORG> officers for substantive appointment to <ORG> for which selections are held after 23-4-1991. It is not denied that in the case on hand the selections were held on 24-12-1992 and therefore the principle (vi) as amended by letter dated 23-4-1991 is applicable. This principle (vi) was subject-matter in two cases before <ORG> being <NAME>'s case (supra) and <NAME>'s case (supra). While upholding these principles as satisfying tests of equity and fairness, <ORG> applied these principles therein. As seen from the principle, the weightage subject to a maximum of five years is with reference to the year of service connoted by initial pay on permanent promotion to <ORG> or half the total number of years of continuous service in <ORG> including officiating and permanent service. As respondent No.l I was substantively appointed w.e.f. 24-12-1992 to Junior Scale <ORG> of IRSE (DOITS) with effect from 24-12-1992 can only be given weightage of five years with reference to that date and therefore the impugned order insofar as the same reckons weightage from 24-12-1987 is in accordance with principle (vi)(a) of the amended principles for determination of seniority. For all purposes, admittedly respondent No.l's year of service is 1992 and though he is shown against vacancy of 1989 a reasonable reading of the principle shows that he is entitled for weightage of five years with effect from 24-12-1992 and certainly not from 1989. If the contention of respondent No.1 is accepted he would be given DOITS with effect from 1984 in which year admittedly he was not even within the zone of consideration. He came within the zone of consideration only in 1989 and it is not permissible to read the 'principle' as suggested by the learned Counsel for respondent No.l. Further, he was appointed as Assistant Engineer <ORG> in 1979 and to <ORG> (<ORG>) on 29-6-1987. If the weightage principle is given from 1989, he would have reckoned his seniority from 1984 when he was not even in <ORG> (<ORG>) post, which is feeder category to posts in <ORG> IRSE.

14. The principle of giving weightage is subject to two conditions. First, under no circumstance the service shall be determined by giving weightage upto a maximum period of 5 years. Secondly, the weightage so assigned does not exceed the total non-fortuitous service rendered in <ORG> In our considered opinion, if respondent <NAME>'s contention is accepted that he is entitled for weightage of five years from 1989, the same would violate the second condition, in the sense that admittedly the petitioner was promoted to <ORG> on 29-6-1997, and he had worked for a little more than five years in STS <ORG> If his seniority is considered from 1984, the same would exceed the total non-fortuitous service rule of 5'/2 year's which is impermissible.

15. In <NAME>'s case (supra) the appellants who belong to <ORG> (RBSS) claimed weightage of being substantively appointed by promotion to Junior Scale Group-A of <ORG> (IRPS) on 15-12-1984 against 50% promotion quota reserved for Class-II Officers. By applying the relevant principle for determining the relative seniority of the Class-I Officers of <ORG> (for reckoning weightage of seniority) DOITS worked out to 15-2-1979 that is to say five years weightage from the date of substantive appointment by promotion on 15-2-1984. Accordingly, they were given weightage in the JS Grade-I from 15-2-1979 and seniority was reckoned from that 'date of substantive appointment. Later as they were completed five years of service by 15-2-1984 in JS Grade-I they were posted in Senior Scale Grade-A of IRPS immediately after their joining in their respective <ORG> in JS Grade-I. They were also promoted to Junior Administrative Grade with effect from 14-5-1987 by reckoning their service from 15-2-1979 as they have completed eight years of service and eligible for consideration to Junior Administrative Grade and their seniority was circulated which was the subject-matter of challenge by <NAME> before <ORG>, Principal Bench. <ORG> allowed the OA and hence the appellants carried the matter to <ORG>. Placing reliance on principle (vi) of the principles for determining the relative seniority of Class-I (Group-A) officers, <ORG> found fault with the order of <ORG>. It was observed therein as under;

It is settled law that the appointing authority or the appropriate <ORG> can frame rules governing seniority which are reasonable keeping in mind the divergent claims that can be put forward by the various categories of the members of the service. It is, however, necessary that there should be no discrimination, that is, persons placed in the same group must be treated similarly and, further, that any principle which is made the basis of determination of seniority should, if applicable to others, be applied to them also. In other words, if seniority is to depend purely upon the date of confirmation or the date of appointment, that rule should be applicable to all; but if the promotees and special recruits are being given weightage, the principles applicable to the members of the service should be kept in mind while determining the weightage to be given or while laying down rules for determination of seniority.

16. It is therefore clear that while granting weightage of five years to a promotee officer it is always five years backwards from the date of substantive appointment and not from the year of allotment. This judgment which is relied on by Sri <NAME> in fact goes against the first respondent. As observed by <ORG> in <NAME> 's case (supra) in working out weightage of promotee officers, one cannot ignore the principles of seniority applicable to other members and cannot ignore other principles for determination of seniority.

17. <NAME> case (supra) involved the interpretation of <ORG> (Regulation of Seniority) Rules, 1954 and the case was decided on the facts peculiar to it and no principle or ratio was laid down therein. It is not an authority on the question of giving weightage with which we are concerned and the same cannot be considered an authority. <NAME> case (supra) arose out of IAS (Appointment by Promotion) Regulations. Having regard to Regulation 5 of the said regulations it was held that if for any reason <ORG> is not able to meet in a particular year the <ORG> when it meets next, should, while making selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the <ORG> Civil Service Officers who were eligible and fall within the zone of consideration for selection in that year. The relevant interpretation of the regulations is as under:

It must, therefore, held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, <ORG> is required to meet every year for the purpose of making the selection from amongst <ORG> Civil Service Officers who fulfil the conditions regarding eligibility on the first day of the January of the year in which the <ORG> meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of <ORG> to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason <ORG> is not able to meet during a particular year, the <ORG> when it meets next, should, while making the selection prepare a separate list for each year keeping in view the number of vacancies in that year after considering the <ORG> Civil Service Officers who were eligible and fall within the zone of consideration for selection in that year.

18. In <NAME>'s case (supra) the controversy involved the promotion to the post of Senior General Manager in <ORG> under <ORG> Service Rules. It was held:

It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right on him/her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, and in public interest and omission thereof should not be arbitrary. <CITATION> , <ORG> had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The State is under no legal duly to fill up all or any of the vacancies even though the State Act s in an arbitrary manner. In <NAME> v. <NAME> of Bihar, [1993 Supp (3) 268 - 1993 SCC (L&S) 1076 = (1993) 25 ATC 598] it was held that mere inclusion of one's name in the panel does not confer on him/her any indefeasible right to appointment. It is further held that the purpose of making a panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be the exact to the notified or anticipated vacancies.....However, in the light of the above principles and in the light of the clear rules extracted therein before, it is seen that the exercise of preparation of the panel is undertaken well in advance to fill up the clear vacancies or anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, year-wise panel of the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith.

19. <NAME>'s case (supra), which is concerned with the seniority of officers in the rank of Commandant/Security Officer in <ORG>. In relation, thereto the circular letter dated 30-11-1976 containing principles of seniority which was modified by <ORG> in accordance with the recommendations of the <ORG> was also considered. Having regard to the policy of <ORG>, <ORG> observed after referring to <NAME>'s case (supra) and <NAME> 's case (supra) that the two letters of <ORG> containing principles of reckoning inter se seniority between Groups-A and B Officers was fair and equitable. This judgment of <ORG> refers to the principles of seniority contained in letter dated 30-11-1976 of <ORG> on two earlier cases and having regard to the principles laid down in the cases of <NAME> and <NAME> (supra) came to the conclusion that the principle of weightage which is also proposed by <ORG> in their letters was unassailable.

20. In <NAME> case (supra) the question was whether the respondent could be deemed to have been promoted from a date anterior to actual date of promotion. <ORG> directed that the respondent shall be deemed to have been promoted with effect from 17-1-1989 with all consequential benefits though in its proceedings dated 13-9-1995 found the respondent unfit for promotion upto 16-1-1994. <ORG> held that an employee who is declared unfit initially but given ad hoc promotion cannot count his seniority from the date of ad hoc promotion and that his seniority shall be reckoned/ determined wilh reference to the date of regular promotion only.

21. The decisions of <ORG> in <ORG>, Maharashtra Vikrikar Karmachari Sanghatan and Shanmukham cases (supra) cited by petitioner's Counsel did not deal with the principle of weightage while fixing seniority of the promotccs and they deal with the question of consideration of period of ad hoc promotion for the purpose of reckoning seniority and therefore it is not necessary to refer to these judgments.

22. In <ORG> case (supra) the question was as to whether the delay in filling up the vacant posts would confer any right on the person promoted subsequently to claim seniority from the date when the vacancy arose or from the year the vacancy was available. <NAME> dealing with Indian Administrative Service (Cadre) Rules and IAS (Fixation of Cadre Strength) Regulations, 1955 <ORG> held that even when the vacancy exists to be filled up by promotion from non-cadre service holders, the <ORG> is not bound to fill up those vacancies. Placing reliance on the earlier judgments in <CITATION> , , <ORG> observed as under:

This however does not, in our opinion, confer any right on the petitioners to seek a mandamus for encadring those ex-cadre/temporary posts, for any such mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength. The basis of the petitioners' right to be selected for <ORG> is traceable in case of <ORG> Civil Service Officers to Rule 8 of the Recruitment Rules which says that <ORG> may recruit 1AS persons by promotion from amongst the members of the <ORG> civil service. This Rule itself puts a ceiling on the number of posts that could be filled in IAS from such promotions, which are limited to not more than 33 1/3% of the posts enumerated therein. The prayer of the petitioners for encadrement of the ex-cadre/temporary posts in reality amounts to asking <ORG> to create more posts. The question then arises whether there is any such right in the petitioners to seek such creation of additional posts. It is a well-settled principle in service jurisprudence that even when there is a vacancy, the <ORG> is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vest with the employer who for good reasons, be it administrative, economical or policy, can decide not to fill up such post(s).

23. From the various authorities cited before us, the following principles would emerge:

(i) Even when vacancies arises/exists it is not incumbent on the part of the authorities to fill up the vacancies. The officers may have a legitimate expectation, but they cannot have any enforceable right either to compel constitution of <ORG> or to seek promotion with retrospective date; for valid reasons <ORG> may be postponed;

(ii) The principle of weightage has to be applied having regard to other principles of seniority and cannot be construed or applied in a straight jacket formula;

(iii) The principle of weightage has to be applied by giving due weightage of service of five years from the date of substantive appointment and not from the year of allotment;

(iv) The principle of giving weightage of five years from the date of substantive appointment is fair and equitable procedure and cannot be held to violate Articles 14 and 16 of the Constitution of India;

(v) The principle of giving weightage subject to condition that weightage assigned shall not exceed the total non-fortuitous service rendered by the officer in the lower category; and

(vi) If the principle of giving five years of weightage in service in the promoted category is reckoned with reference to year of allotment, the same would violate the principle of equity in Articles 14 and 16 of the Constitution of India, in that, even a person whose claims were rejected earlier or who was not qualified or who was not within the zone of consideration would get the benefit of weightage of five years of service which is illogical and illegal.

24. The learned <ORG> in the impugned judgment while holding that the first respondent is entitled for weightage from the year in which vacancy occurred placed reliance on the principles contained in the letter dated 30-11-1976 and did not notice the subsequent amendment by letter dated 23-4-1991. Apart from this as observed by <ORG> in <NAME> 's case (supra) five years weightage can only be given from the DOITS i.e., the date on which the substantive appointment is made and not from the year in which the vacancy occurred. Be it noted that the year of service is always connoted by initial pay on permanent promotion and not promotion with reference to a panel year. In this view of the matter, the impugned judgment of the <ORG> suffers from error and is liable to be set aside which requires to be rectified by us in this petition for judicial review.

25. In the result, for the aforesaid reasons, we allow the writ petition and dismiss OA No.590 of 1998 filed by the first respondent herein. There shall be no order as to costs.


JUDGMENT <NAME>, J.

1. I think the lower appellate court was right in holding that the notice, Ext. A3 dated 22-10-19-38, issued by the plaintiff to defendants 1. 2 and 3 but not to the 4th defendant was not effective to determine the under-lease which, by reason of the surrender of the lease by Ext. A-2 dated 12-3-1945, must, for all intents and purposes, be regarded as a direct lease under the plaintiff. Both according to the plaint and the written statements, the 4th defendant also was an under-lessee, whether along with defendants 1, 2 and 3 as an heir with them of the original under-lessee as alleged in the plaint, or along with defendants 1 and 2 only as a donee with them under Ext. B-2 dated 4-7-1945 from a legatee of the original under-lessee, is a matter of no consequence.

In either case, the 4th defendant and her co-tenants could have taken only as tenants in common and not as joint tenants--defendants 1 and 2 are sons, the 3rd defendant, the daughter and the fourth defendant, the widow of the original under-lessee, and, while on the one hand there is no averment that they constituted a joint family and took the property as such, on the other, there is nothing in the gift deed Ext. B-2 to show that a joint tenancy was intended to be created thereby -- and in the absence of notice to quit to the 4th defendant there was no effective determination of the lease. The observation in <CITATION> . AIR 1963 SC 468 (in paragraph 7 of the report) that notice to one alone of several Joint tenants is sufficient applies only to a case where the several tenants hold as joint tenants and not where, as in this case, they hold as tenants in common.

That is cleat from the emphasis placed by their Lordships on the circumstance that the tenants took the premises as joint tenants, the deed of assignment by which they acquired the lease expressly providing that they were taking as joint tenants. Where joint owners are joint tenants there is unity of title, unity of interest and the right of survivorship in addition to unity of possession so that it might be said that any one of the joint tenants represents the entire estate -- indeed in the <ORG> case already referred to it would appear that one of the two joint tenants had died and the lease had vested solely in the other by suivorship before notice to quit was served on the other so that there was no question of the legal representatives of the deceased joint tenant having any interest whatsoever in the lease so as to require that notice should go to them.

Where, however, the joint owners are only tenants in common there is only unity of possession, not of title or interest, and to determine a tenancy so held in accordance with section 106 of the Transfer of Property Act notice must be addressed to all the tenants though proof of service on one will be prima facie proof of service on all. See <NAME> v <NAME>, AIR 1918 P. C. 102 -- and <CITATION> , AIR 1925 Cal 752. In the words of the section, notice must go to every party intended to be bound by it, and if it is not issued to any of the joint owners of the lease there is no determination of the lease so far as he is concerned. A lease cannot be determined piecemeal and hence it follows that there is no determination even so far as the others are concerned.

2. I dismiss this appeal with costs.


JUDGMENT <NAME>, C.J.

1. The question for determination in these appeals is whether, in the circumstances to be presently stated, the plaintiffs, who were formerly co-sharer landlords with the defendants and others in Mauza Sawas Khurd, are entitled to a raiyati interest in certain lands in that village, they having purchased an occupancy holding from the tenants, many years ago before 1885, and having remained in possession thereof paying to their co-sharers their proportionate amount of the rent up to the year 1913, when they sold their proprietary interest to other co-sharers pending partition proceedings which were finally completed in 1918. Four suits in all were instituted, two by <NAME> whose father <NAME>, deceased, sometime before 1885 had purchased the raiyati jote in the lands now claimed by him, and two by <NAME>, who had himself purchased a similar raiyati jote at about the same time.

2. On partition of the mauza in 1918, the lands in question in each case were allotted to the takhtas of two other sets of co-sharers who are the defendants in the respective suits and who contend that the lands in question were the bakasht of all the co-sharers and that the tenancy interest of the plaintiffs came to an end on partition. As the lands claimed by each of the plaintiffs fell partly to the share of one set of co-sharers on partition and partly to the shara of another, each plaintiff brought two suits. The facts in each case are precisely similar and the cases were heard together in the trial Court, and in the lower <ORG>, and the further appeals to this Court have also been heard together. In referring to the plaintiffs and defendants the reference will be to each of them unless otherwise indicated.

3. The <NAME> of Jamui before whom the suits came for trial found in favour of the plaintiffs and passed a decree for possession in each case.

4. On appeal the Subordinate Judge of Monghyr agreed with the conclusions of the <ORG> and dismissed the appeals. The defendants have preferred these second appeals to this <ORG>.

5. The material facts found by the lower <ORG> are that some time before 1885, the ancestor of the plaintiffs in the one case and the plaintiff himself in the other purchased the raiyati jote of certain tenants, the purchaser being at that time co-sharer proprietors in the village. The plaintiffs, or their predecessors, remained in possession paying a proportionate part of the rent to their co-sharers from the date of the purchase until 1913, when a suit for partition was instituted before the Subordinate Judge of Monghyr by some of the co-sharers. The final partition was made in 1918, and separate possession of their interests was directed to be given to the respective co-sharers according to their takhtas. Before that date, however, namely, in 1913, shortly after the partition proceedings were instituted, the plaintiffs sold their proprietary interest to other co-sharers, who are not parties to this suit and whose names are immaterial. By the partition made in 1918, the lands in question were included in the takhtas of the defendants who endeavoured to obtain <ORG> possession but found the plaintiffs still in possession with the result that proceedings under Section 145 of the Criminal Procedure Code were instituted and, in January, 1922, terminated in favour of the defendants who dispossessed the plaintiffs.

6. When the plaintiffs transferred their proprietary interest to other co-sharers in 1913, by an agreement then come to between them and their transferees, they were permitted to remain in cultivating possession of the lands in suit as formerly, and they were not in fact dispossessed until 1922. It has been found as a fact in the Courts below that the lands were not the bakasht of the co-sharers originally but raiyati jote land acquired by the plaintiffs or their predecessors, and this is corroborated by the Record of Rights published in 1909 which, whilst describing the lands as bakasht of the plaintiffs or their predecessors, states that they were formerly an occupancy raiyati jote acquired by them as share-holding proprietors and gives the amount of rent which the other co-sharers were entitled to under Section 22(2) of the Bengal Tenancy Act. It was argued on behalf of the appellants that the plaintiffs having been parties to the partition suit originally were bound by the decision in that suit in But far as it treated the land as bakasht. But even if they are to be treated as parties to the partition suit, notwithstanding that they sold their proprietary interest shortly after the suit was instituted and ceased to be interested any longer as proprietors, still it has not been shown that there was any issue in the suit as to the nature of the land in question. In any case if the lands were treated as bakasht in the partition, the sense in which that term was used must be explained by reference to the Record of Rights on which the partition was founded, and this clearly shows that the lands were subject to the plaintiffs' possessory right under Section 22(2) of the Bengal Tenancy Act: see <CITATION> 65 Ind. Cas. 586 : 3 P.L.T. 13; A.I.R. 1922 Pat. 193. Moreover a new situation arose when the plaintiffs sold their proprietary interest to other co-sharers in 1913 and took a subordinate interest from them. It is not shown that they took any further part in the partition proceedings, and in their absence their successors could not by their action deprive them of the rights, if any, which they acquired at the time when they sold their proprietary interest, In my opinion <ORG> was right in holding that the lands were not the bakasht of the joint body of maliks but were originally a raiyati jote purchased by the plaintiffs or their predecessors and subject to the plaintiffs' right to hold the same on paying rent to their co-sharer and they did not by the partition cease to be lands of this nature.

7. The question then arises whether by the transfer of their proprietary interest to other co-sharers the plaintiffs lost their tenancy right in the land. If one regards the rights of the parties as governed by the Bengal Tenancy Act, as amended in 1907, then the interest of the plaintiffs, being a peculiar tenancy right of a co-proprietor, as pointed out in the judgment of <NAME>, J., in <CITATION> 89 Ind. Cas. 232 : 7 P.L.T. 87 : 3 Pat. L.R. 138; A.I.R. 1925 Pat. 547 would pass to the purchasers on transfer of the proprietary right. The purchasers, however, allowed the plaintiffs to remain in possession as cultivators by an arrangement come to at the time of the transfer. That transaction was, in my opinion, tantamount to a sub-lease within the meaning of Section 22(2) of the Bengal Tenancy Act and the plaintiffs thereupon became raiyats of the holding. Under the Act as it now exists merger of interest no doubt takes place where the entire interest of the raiyat and his immediate landlord, who is either a proprietor or a permanent tenure-holder, become united in the same person but it is quite different where the occupancy right of a tenant is transferred to a fractional proprietor. In the latter case, although no occupancy right can vest in the fractional proprietor, he still acquires a separate interest in the raiyati holding paying to his co-proprietors their share of the rent. This interest passes to his transferee with the transfer of the proprietary interest and the holder can sub-let the same to another who thereupon becomes a raiyat of the holding.

8. It is contended, however, that the Bengal Tenancy Act has no application to the present case as the interest of the plaintiffs was originally acquired before 1885 when the first Bengal Tenancy Act was passed, and that we must consider the law then existing. Even so I am clearly of opinion that the doctrine of merger had no application in Bengal in such a case under the old law before 1885: see <NAME> v. <NAME> (3); <NAME> v. <NAME> 25 W.R. 503 and <CITATION> 2 Ind. Cas. 654 : 13 C.W.N. 913 and in fact it is not disputed that the plaintiffs for many years, both before and after 1885, although co-proprietors, remained in possession of the holding on payment of proportionate rent to their co-owners. It is clear, therefore, that even if the occupancy right ceased to exist the holding did not merge in the larger interest. This is also in accordance with the decisions under the Act of 1885: see <CITATION> 21 C. 869 : 10 Ind. Dec. (N.S.) 1211; Jawaaul Hug v. <NAME> 24 C. 143 : 1 C.W.N. 166 : 12 Ind. Dec. (N.S.) 761 and <CITATION> 65 Ind. Cas. 281 : 3 P.L.T. 22; (1922) Pat. 55; A.L.R. 1822 Pat. 62. It follows then that if the interest acquired before 1885 did not merge it remained alive at all events up to 1913 when the plaintiffs sold their proprietary interest. I can see no reason why under the old law any more than under the present Bengal Tenancy Act this right should cease to exist because the co-sharer transfers his interest to another proprietor. It would pass, in my opinion, even before the Act of 1885 to the transferee of the (3) 10 w. R. 5. proprietary interest. Whether before the amending Act of 1907 the co-owner or his transferee could sever the interest by subletting to a tenant may be a question of some difficulty and no authority has been drawn to our attention on the subject but in my opinion, it is unnecessary to determine this point; for whatever may be said as to the retrospective effect of the first Sub-section of Section 22 , which limits the rights of a proprietor, the second sub-section, in so far as it refers to the rights of a sublessee which come into operation after the Act must, I think, apply to all cases where such a sub-lease is effected after the passing of the amending Act, whether the occupancy right was acquired before or after the passing of that Act, or the Act of 1885. The language of the sub-section seems to me to demand this construction. No vested rights are interfered with. The sub-section merely gives the holder of such a right power to sub-let his interest and defines the nature of the interest of the sub-lessee as that of a raiyat. The plaintiffs are, in my opinion, raiyats of the land claimed and were improperly dispossessed and should be restored to possession.

9. Whether the sub-lessee in such a case can acquire by twelve years' occupation an occupancy right it is unnecessary to determine. He is clearly not an under raiyat as he does not hold under a raiyat and there seems to be no reason why he should not in the course of time acquire an occupancy right. The point, however, does not arise for decision for such a right had not matured by twelve years' possession when the suit was instituted, and I prefer to reserve my decision on this point until the question arises.

10. In my opinion the conclusion arrived at by the lower Courts was right in the particular circumstances of the case and these appeals should be dismissed with costs to the contesting respondents together with interest at the usual rate.

<NAME>, <NAME>

11. I agree.