The findings and the reasonings recorded by the High Court are not based on evidence, cannot be sustained. As rightly held by the trial court, the respondents-tenants are liable to be evicted on three grounds:- (i) default in payment of rent; (ii) defendant Nos.1/2 and 1/3 not being entitled to the benefit of Section 5(11)(c); and (iii) sub-letting. It is unfortunate that the appellant-landlord is litigating for more than four decades to get back possession of his own premises and, therefore, the respondent-tenants are directed to handover vacant possession of the premises immediately.= The impugned judgement of the High Court is set aside and this appeal is allowed and the order of eviction passed by the Court of Small Causes Court, Vadodara is restored. The respondent Nos. 1 to 4 or other person, if any, inducted by the respondents Nos.1 to 4 are directed to handover vacant possession within two months from the date of this judgment, failing which the respondents shall be liable for contempt of this court apart from other remedies available in law. No costs.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5284 OF 2006

ANIL KUMAR DADURAO DHEKLE                      …Appellant
                                   Versus
RUKHIBEN AND ORS.                                   …Respondents

                               J U D G M E N T

R. BANUMATHI, J.


      This appeal arises out of the judgment and order dated  16.10.2003  in
Civil Revision Application No.1517 of 1983  passed  by  the  High  Court  of
Gujarat at Ahmedabad, dismissing the  revision  petition  thereby  affirming
the order of the First Appellate Court which reversed the order of  eviction
passed by the trial court. Vide impugned order, the High Court  declined  to
order eviction on the ground of default in payment of rent  and  sub-letting
without the permission of the landlord.

2.    Brief facts which led to filing of this appeal  are  as  follows:  The
appellant herein is the owner of the property known as “Radha Bhuvan” a  two
storeyed building situated on Vadi Rang Mahal, Hathia  Khan  Road,  Vadodara
City near Alankar Studio and flour mill.  The property  consists  of  ground
floor, first floor and second floor.  The ground floor of the suit  premises
was let out  to  the  first  respondent-defendant  No.1  Manilal  Ishwarbhai
Valand-the original tenant in the year 1958 on a monthly rent of  Rs.  30/-.
The original tenant was running a hair cutting salon in the rented  premises
under the name of ‘Excellent Hair Dressing Saloon’.  The  tenancy  commenced
from the 6th day of the month and ended on 5th day of  the  following  month
and for payment of rent, receipt was given from time to time.  The  original
tenant was not in the habit of paying the rent regularly, that  is,  on  the
due date of each month and he was in arrears of rent for the period  ranging
from 06.07.1974 to 05.05.1976, amounting to Rs.660/ for twenty  two  months.
On wilful default in payment of rent, a notice  was  duly  served  upon  the
original tenant to make payment of the above arrears within one  month  from
the date of receipt of notice and the tenant has neither  paid  the  arrears
nor sent any reply.  Left with no alternative, the  appellant-plaintiff  was
constrained to file Rent Suit No.499 of 1978 on 29.09.1978 before the  Court
of Small Causes Judge at Vadodara seeking possession  of  the  property  and
arrears of rent.  During the pendency  of  the  suit,  the  original  tenant
Manilal Ishwarbhai Valand died on 26.11.1979 and his  legal  representatives
viz., his wife and two sons namely, Dahyalal and Bhogilal  were  brought  on
record as defendant Nos.1/1 to 1/3.

3.    One of the sons of the tenant named Bhogilal independently  runs  hair
cutting salon on Ajwa Road opposite to Navjivan Society. Similarly,  another
son Dahyalal was serving in Alembic Glass  Works  for  the  last  10  to  12
years.  Even when tenant-Manilal was alive, his son  Dahyalal  never  worked
with his father and never helped him in running the shop.  After  the  death
of the  original  tenant-defendant  No.1  Manilal,  the  appellant-plaintiff
found that one  Somabhai  Dahiyabhai  Valand  was  inducted  into  the  suit
premises by illegal sub-letting of the tenanted premises so  as  to  deprive
the appellant-plaintiff of his legal right to seek possession  of  the  suit
property. The said Somabhai Dahyabhai Valand was arrayed as  defendant  No.2
in the suit (respondent No.4 in this appeal).

4.    Upon consideration of the evidence adduced  by  the  parties  and  the
submissions made by the respective parties, the Small Causes  Court  allowed
the rent  suit  on  the  ground  of  default  in  payment  of  rent  by  the
respondents-defendants and also  directed  them  to  handover  peaceful  and
vacant possession of  the  property  to  the  appellant-plaintiff.   It  was
further held by the Small Causes Court that after the death of the  original
tenant, the defendant Nos.1/2 and 1/3 are not statutory tenants of the  said
premises and that the defendant Nos.1/2 and 1/3 have unlawfully sub-let  the
suit  property  to  respondent  No.4  herein  with  an  ulterior  motive  of
depriving  the  appellant-plaintiff  from  obtaining  peaceful  and   vacant
possession of the suit premises.

5.    Being aggrieved by the order of the  Small  Causes  Court,  the  legal
representatives of the original tenant  preferred  Civil  Appeal  No.227  of
1981 before the District Judge, Vadodara.  The 2nd  Extra  Assistant  Judge,
Vadodara on 30.07.1983 allowed the appeal filed by the  respondents  herein.
The First Appellate Court held that under notice Ex.31,  appellant-plaintiff
demanded rent and other local taxes and hence the tenancy was not a  monthly
tenancy but annual, and rent was payable at the end of every year  and  that
the case of the appellant-plaintiff was covered under  Section  12(3)(b)  of
the Bombay Rents, Hotel and Lodging House Rates Control  Act,  1947  [Bombay
Rent  Control  Act].  The  First  Appellate  Court  further  held  that  the
appellant-plaintiff failed to prove that defendant Nos.1/1 to 1/3  had  sub-
let the premise to the second defendant/4th respondent.  On these  findings,
the appellate court reversed the order  of  eviction  passed  by  the  trial
court.

6.    Feeling aggrieved by the order passed by the  First  Appellate  Court,
the appellant-plaintiff preferred the revision before the High  Court  under
Section 29(2) of the Bombay Rent Control Act.   As  noted  above,  the  High
Court dismissed the revision holding that there is no default in payment  of
rent and that the defendants have deposited  all  the  amount  due,  on  the
first day of the hearing of the suit and thus, complied with the  provisions
of Section 12(3)(b) of the Bombay Rent Control Act.   Insofar  as  the  sub-
letting is concerned, the High Court affirmed  the  findings  of  the  first
appellate court. Aggrieved by the dismissal of the revision, the  appellant-
plaintiff is before us by way of this appeal.

7.    When the matter was taken up for  admission  and  notice  was  issued,
though the service was complete none appeared for the respondents.   In  the
interest of justice, by order dated 08.03.2017, we directed the Registry  to
engage a counsel  for  the  respondents  through  the  Supreme  Court  Legal
Services Committee and Ms. Richa Kapoor, Advocate was  nominated  to  appear
for the respondents.

8.    Learned counsel for the appellant submitted that as a matter  of  fact
respondents were persistent defaulters in payment of  rent  for  the  period
ranging from 06.07.1974  to  05.05.1976  which  the  High  Court  failed  to
appreciate properly. It was further submitted  that  the  case  falls  under
Section 12(3)(a) of the Bombay Rent  Control  Act,   as  per  which  if  the
tenant is in arrears of rent for more than six months he  is  liable  to  be
evicted and,  therefore,  the  Rent  Controller  had  rightly  directed  the
respondents to vacate the premises. It was further submitted that after  the
demise of the original tenant, respondent  No.4  Somabhai  Dahiyalal  Valand
was inducted into the suit premises as sub-lessee and thus  the  respondents
are also liable to be evicted  on  the  ground  of  subletting  without  the
permission of the landlord.  Learned  counsel  for  the  appellant-plaintiff
further submitted that the First Appellate Court and the High  Court  failed
to properly appreciate the evidence  and  materials  placed  on  record  and
hence the impugned judgment cannot be sustained.

9.     Per  contra,  the  learned  counsel  for  the  respondents-defendants
submitted that both the appellate court as  well  as  the  High  Court  have
dealt with all the issues  extensively  and  have  rightly  arrived  at  the
conclusion that case would fall under     Section  12(3)(b)  of  the  Bombay
Rent Control Act and that the appellant-plaintiff failed to prove  the  case
of sub-letting without the permission of the landlord.

10.   We have carefully considered the rival  contentions  and  perused  the
impugned judgment and other materials on record.

11.   Section 12 of Bombay Rent Control Act deals with the  ejectment  of  a
tenant.  As per Section 12(1) of the Act, a landlord shall not  be  entitled
to the recovery of possession of any premises so long as  the  tenant  pays,
or is ready and willing  to  pay,  the  amount  of  the  standard  rent  and
permitted increases, if any and observes and performs the  other  conditions
of the tenancy, insofar as they are consistent with the provisions  of  this
Act.  Section 12(3)(a) deals with the eviction where rent is payable by  the
month.  Section 12(3)(b) of the Bombay Rent Control  Act  deals  with  other
cases other than monthly tenancy.  Section 12(3)(a) and  (b)  with  relevant
explanations read as under:

“12.  No ejectment ordinarily to be made if tenant  pays  or  is  ready  and
willing to pay standard rent and permitted increases. ?

     (1)……
     (2)……
     (3)(a). Where the rent is payable by the month and there is no  dispute
regarding the amount of standard rent or  permitted  increases,  if  such  a
rent or increase are in arrears for a period of six months or more  and  the
tenant neglects to make payment thereof until the expiration of  the  period
of one month after notice referred to in  sub-section  (2),  the  Court  may
pass a decree for eviction in any such suit for recovery of possession.
      (b). In any other case no decree for eviction shall be passed  in  any
such suit if on the day of hearing of the suit or on or  before  such  other
date as the Court may fix, the tenant pays or tenders in Court the  standard
rent and permitted increases then due [and thereafter continues  to  pay  or
tender in Court Regularly such rent and permitted increases  till  the  suit
is finally decided and also pays costs  of  the  suit  as  directed  by  the
Court].

              [and there after,-

       (i) Continues to pay or tender  in  Court  such  rent  and  permitted
increases till the suit is finally decided; and

       (ii) pays costs of the suit as directed by the Court.

      (4) …….

Explanation.- In any case where there is a  dispute  as  to  the  amount  of
standard rent or permitted increases recoverable under this Act  the  tenant
shall be deemed to be ready and willing to pay such amount  if,  before  the
expiry of the period of one month after notice referred  to  in  sub-section
(2) he makes an application to the Court under sub-section  (3)  of  section
11 and thereafter pays or tenders the amount of rent or permitted  increases
specified in the order made by the Court.

Explanation I.- In any case where there is a dispute as  to  the  amount  of
standard rent or permitted increases recoverable under this Act, the  tenant
shall be deemed to be ready and willing to pay such amount  if,  before  the
expiry of the period of one month after notice referred  to  in  sub-section
(2), he makes an application to the Court under sub-section (3)  of  section
11 and thereafter pays or tenders the amount of rent or permitted  increases
specified in the order made by the Court.”

12.   So far as  the  first  ground  of  eviction  of  arrears  of  rent  is
concerned, it is an admitted case that the tenant Manilal was in arrears  of
rent from 06.07.1974 to 05.05.1976 amounting to Rs.660/- and  proper  notice
(Ex.31) was issued asking him to vacate premises in case he  fails  to  make
good the arrears of rent.  Though  the  tenant  Manilal  received  the  said
notice, no reply was sent there to; nor the dispute  of  standard  rent  was
raised.  It is only in the written statement filed by him, the  dispute  was
raised for the first time as to the  standard  rent.   Notably,  the  tenant
Manilal had never applied for fixation of  the  standard  rent  earlier  nor
within one month of the service of notice had he  applied  for  fixation  of
the standard rent.  As noted earlier, the tenant Manilal did not  even  send
reply notice disputing the standard rent.

13.   According to the appellant-landlord, the property is situated on  main
road and Gajrawadi bus stand is also nearby and hence, the standard rent  of
the demised property cannot be less than Rs.30/-  per  month.   It  is  also
pertinent to note that at  relevant  point  of  time,  first  floor  of  the
tenanted premises was let out to another  tenant  namely  Chimanlal  Jaiswal
who was using the same for residence and had been  paying  rent  of  Rs.30/-
per month.  Likewise, the second floor was  let  out  to  one  tenant  named
Rikhavchand who was also using it as residence and the ground floor was  let
out for  hair  cutting  salon  on  the  rent  of  Rs.30/-  per  month.  Upon
consideration of evidence, the trial court recorded  that  rent  of  Rs.30/-
per month for the salon in the ground floor cannot be said to be  excessive.
 There is no bona fide in the  dispute  raised  by  the  tenant  as  to  the
standard rent. From the evidence of appellant-landlord admittedly there  was
default in payment of rent for more than  six  months  and  the  tenant  was
liable to be evicted under Section 12(3)(a) of the Bombay Rent Control  Act.


14.   The First  Appellate  Court  took  the  view  that  in  Ex.31  Notice,
appellant-plaintiff had demanded not only the  rent  but  also  other  local
taxes with permitted increases and it was not a  case  of  monthly  tenancy;
but the rent was payable at the end of every year and  therefore,  the  case
of the appellant-plaintiff was covered under Section 12(3)(b) of the  Bombay
Rent Control Act and not covered under Section 12(3)(a) of the Act.  In  our
view, the First Appellate Court as well as the High Court did  not  properly
appreciate the evidence of appellant-plaintiff and  other  evidence  adduced
by the parties.

15.   The appellant-landlord has asserted that the  tenancy  was  a  monthly
tenancy, where rent of Rs.30/- was due on 6th day of each month  and  rental
receipt was issued accordingly. To substantiate his evidence, the  appellant
has produced Ex.27 which is the receipt No.184.   Ex.27  is  a  receipt  for
payment of rent from 06.03.1974 to 05.04.1974.   So far as the rent  receipt
is concerned, the defendant No.1/2  Dahyabhai  Manilal  Valand  son  of  the
tenant Manilal admitted the signature of his father on  the  receipt  Ex.27.
After the said payment of rent, defendant paid  an  amount  of  Rs.100/-  as
rent in lieu  of  which  three  other  similar  receipts  were  prepared  on
14.08.1974 and in this manner rent upto 05.07.1974 was paid,  Rs.10/-  being
remainder in credit of the defendant.  According to appellant-landlord,  the
respondent did not come to receive those three receipts and so the  counter-
foils were  not  signed  by  him.  The  rent  was  due  from  06.07.1974  to
05.05.1976, amounting to Rs.660/- for twenty  two  months  and  Rs.10/-  was
already in credit of the defendant, thus an  amount  of  Rs.650/-  was  due.
Notice (Ex.31) was sent by the appellant’s  advocate  that  the  arrears  of
rent is Rs.650/- which the defendant had received  by  Ex.4/2.   As  already
noted, the defendant Manilal had neither sent reply to the said  notice  nor
disputed the standard rent.  By producing Ex.27 receipt and other  receipts,
the appellant-landlord has established  that  the  tenancy  was  a  ‘monthly
tenancy’.

16.   In this regard, the learned counsel for the appellant  has  drawn  our
attention to the notice issued by  the                             Defendant
No. 1/2-Dahyalal Manilal Valand dated  27.01.2004,  wherein  it  is  clearly
stated that the tenancy is a ‘monthly tenancy’ at a monthly rent of  Rs.30/-
.  As pointed out by the trial court, the defendants  deposited  the  amount
after a lapse of one month after the receipt of  notice.   Resultantly,  the
respondent-defendant Nos.1/2 and 1/3 are liable to be evicted on the  ground
of default in payment of rent. The First Appellate Court and the High  Court
erred in ignoring the material evidence  that  the  tenancy  was  a  monthly
tenancy and that the case would fall under Section  12(3)(a).   The  finding
of the High Court as also of the First  Appellate  Court  that  the  present
tenancy is covered under Section 12(3)(b) is liable to be set aside and  the
order of eviction passed by the trial court on  the  ground  of  default  in
payment of rent is to be restored.

17.   Next question  falling  for  consideration  is,  after  the  death  of
Manilal, whether defendant’s heirs-defendant Nos.1/2 and  1/3  are  entitled
to continue in the  shop.   Appellant-landlord  pleaded  that  none  of  the
Manilal’s sons were doing business of hair cutting alongwith  the  defendant
Manilal and under Section 5(11)(c) of  the  Bombay  Rent  Control  Act,  the
defendant Nos.1/2 and 1/3 are not entitled to continue in tenancy after  the
death of deceased-tenant Manilal.  Section 5(11)(c) reads as under:-
(11) “tenant” means any person by whom or on whose account rent  is  payable
for any premises and includes-
       (a) xxx
       (b) xxx

 (c)  (i) any member of the tenant’s family residing with him  at  the  time
of his death as may be decided in default of agreement by the Court;

(ii) in relation to premises let for business, trade or storage, any  member
of the tenant’s family carrying on  business,  trade  or  storage  with  the
tenant in the said premises at the time of the death of the  tenant  as  may
continue, after his death, to carry on the business, trade  or  storage,  as
the case may be, in the said premises and as may be decided  in  default  of
agreement by the Court.

18.   It is brought on record that defendant No.1/2  Dahyabhai  was  serving
in Alembic Glass Works as full time worker and,  to  prove  the  same  Ex.39
Service Card was produced which shows that Dahyabhai was a full time  worker
and he never carried on business of Barber  alongwith  the  original  tenant
Manilal.  Though in his evidence,  defendant  No.1/2  Dahyabhai  has  stated
that he was staying in the shop and was  doing  barber  work  alongwith  his
father nothing was produced to prove the same.  As rightly  pointed  out  by
the trial court, no evidence was produced  to  show  that  defendant  No.1/2
Dahyabhai had worked alongwith his father or that he had cut hair of even  a
single person in Baroda in the tenanted shop premises.

19.   So far as the other son Bhogilal-defendant No.1/3 is concerned, it  is
brought on record that he was running a separate  barber  shop  in  Navjivan
Society and to prove the same, appellant-landlord has  produced  photographs
Exs.49-50 which showed that Bhogilal was actually working  in  his  separate
shop in Navjivan Society while  his  father  Manilal  was  alive.   In  this
regard, it is relevant to refer to the observation of the trial  court  that
to his identity and his photographs, how defendant No.1/3 came to the  court
with his head completely shaven and moustache removed  to  disguise  himself
as a different person from the photographs Exs.49, 50 and  51.  Nothing  was
brought on record  to  show  that  defendant  Nos.1/3  had  been  doing  the
business with his father at any point  of  time.   Further,  the  appellant-
landlord has also produced Exs.43 and 44 photographs to show that there  was
only one chair for the customers in the  shop  and  that  neither  defendant
No.1/2 nor defendant No.1/3 were  present  in  the  shop  to  carry  on  the
business alongwith tenant-Manilal thereafter.  The  First   Appellate  Court
and the High Court failed to appreciate that  the  defendant  No.1/2  was  a
full time worker in Alembic Glass works and defendant No. 1/3  was  carrying
on his business separately.  The  findings  of  the  trial  court  that  the
defendant Nos.1/2 and 1/3  are  not  entitled  to  the  benefit  of  Section
5(11)(c), is well reasoned and based on evidence  and  the  same  is  to  be
restored.

20.   So far as the sub-letting is concerned, the  defendant  No.1/2  stated
that the second defendant Somabhai Dahyabhai was  engaged  as  their  worker
and that he was being paid 50%  of  the  charges  as  worker  and  as  still
Somabhai did not find it profitable and, he had  left  the  job.   The  fact
that a stranger was engaged in the shop and he was  being  paid  50%  labour
charges, as rightly observed by the trial  court  that  it  must  have  been
either  a  case  of  partnership  or  of  sub-letting.  That  apart,  second
defendant Somabhai has not been examined to substantiate the version of  the
defendants that he was engaged by  the  defendants  as  their  worker.   The
findings of the First Appellate Court and the High Court on  sub-letting  is
accordingly reversed, restoring the findings of the  trial  court  that  the
defendants are liable to be evicted on the ground of sub-letting also.

21.   The findings and the reasonings recorded by the  High  Court  are  not
based on evidence, cannot be  sustained.   As  rightly  held  by  the  trial
court, the respondents-tenants are liable to be evicted on  three  grounds:-
(i) default in payment of rent; (ii) defendant Nos.1/2 and  1/3   not  being
entitled to the benefit of Section 5(11)(c); and (iii)  sub-letting.  It  is
unfortunate that the appellant-landlord is litigating  for  more  than  four
decades to get back possession of  his  own  premises  and,  therefore,  the
respondent-tenants  are  directed  to  handover  vacant  possession  of  the
premises immediately.

22.   The impugned judgement of the High Court is set aside and this  appeal
is allowed and the order of eviction passed by the  Court  of  Small  Causes
Court, Vadodara is restored.  The respondent Nos. 1 to 4  or  other  person,
if any, inducted by the respondents Nos.1 to  4  are  directed  to  handover
vacant possession within two months from the date of this judgment,  failing
which the respondents shall be liable for contempt of this court apart  from
other remedies available in law.  No costs.



                                                             ...……………………….J.
                                                  [KURIAN JOSEPH]


                                                              .………………………..J.
                                              [R. BANUMATHI]
New Delhi;
April 12, 2017

“When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweigh experience.” =No doubt on the date of occurrence of a vacancy in the post of Inspector of Police, in case a Reserve Sub-Inspector selected and appointed on transfer as Sub-Inspector of Police has completed 6 years as Sub-Inspector of Police (Civil), he is entitled to be considered in preference to his juniors in the seniority list of Sub-Inspectors of Police. In view of the factual and legal position explained above, we find no merit in these appeals, accordingly they are dismissed, subject to the above clarification. There shall be no order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION



                     CIVIL APPEAL NOS. 6795-6798 OF 2014




PALURE BHASKAR RAO ETC. ETC.      ...  APPELLANT (S)


                                   VERSUS

P. RAMASESHAIAH & ORS. ETC.               ... RESPONDENT (S)

                                    WITH

                     CIVIL APPEAL NOS. 6799-6800 OF 2014


                                    WITH

                        CIVIL APPEAL NO.6801 OF 2014


                                     AND

                     CIVIL APPEAL NOS. 6802-6803 OF 2014






                               J U D G M E N T

KURIAN, J.:




    Seniority versus eligibility, transfer versus appointment  by  transfer,
are the conflicting concepts arising for consideration  in  this  case.  The
quintessence of the  whole  dispute  centers  round  interpretation  of  the
Andhra Pradesh Police Subordinate  Service  Rules  and  the  Andhra  Pradesh
Police Service Rules.

 The Andhra Pradesh Police Subordinate Service Rules consist of  7  classes.
We are concerned with   Class  I.  Class  I  consists  of  the  following  7
categories :-
“ Categories :

1.    Sub-Inspectors of Police
2.    Sub-Inspectors of Police (Intelligence)
3.    Reserve Sub-Inspectors including the Band-
       master
4.    Assistant Sub-Inspectors
5.    Assistant Reserve Sub-Inspectors
6.    Head Constables (including Band Head
       Constables, and Reserve Head Constables, in
       Armourers, Singallers and Motor Transport
       Drivers.
7.    Constables including Band Constables
       Reserve    Constables,    Buglers     and
       Bellowboys.”

Though the qualifications for appointment and scales of pay  for  the  first
three  categories  of  Class  I  is  one  and  the  same,   they   are   not
interchangeable.

The    category    I-Sub-Inspectors    of    Police    has    later     been
   re-designated as Sub-Inspectors of Police (Civil).

Method of appointment to category I Sub-Inspector of Police  (Civil),  under
Rule 2 of the Subordinate Service Rules is done as  per  Annexure-I  to  the
Rules.
“a)   By promotion of HC’s upto 30% of cadre

b)    PCS, HCS, Police Ministerial staff of sportsmen upto 13% of cadre

c)    Direct recruitment upto 50% of cadre.

d)    Transfer of RSI’s from AR/APSP upto 5% (w.e.f. 02.04.1990 as amended
by G.O. Ms. No. 270 Home)

e)    Compassionate appointment upto 2%”


As per Annexure-II (2) (9), a Reserve Sub-Inspector shall  be  eligible  for
appointment by transfer to the category of Sub-Inspector,  after  completion
of 5 years of  service  and  also  subject  to  the  requisite   educational
qualification prescribed for Sub-Inspector (Civil). Appointment by  transfer
to the post of Sub-Inspector (Civil) is made by  way  of  selection  by  the
State Level Recruitment Board.

The appointment by transfer from Reserve Sub-Inspector to the post  of  Sub-
Inspector (Civil) against 5% reserved quota is optional.
Rule 15 of the Subordinate Service Rules  deals  with  the  seniority.  Rule
15(a) and (c) are relevant which read as follows :-
“Rule 15. Seniority : (a)  The  seniority  of  a  person  in  the  class  or
category or grade shall, unless he has been  reduced  to  lower  rank  as  a
punishment be determined by the date of his first appointment to such  class
or category or grade. If any portion of the service of such person does  not
count towards his probation under the General Rules his seniority  shall  be
determined by the date of commencement of his service which  counts  towards
probation….

          XXX             XXX           XXX

(c)    The transfer of a person from one class or category  of  the  service
to another class or category carrying the same pay or  scale  of  pay  shall
not be treated as first appointment to the latter for purposes of  seniority
and the  seniority  of  person  so  transferred  shall  be  determined  with
reference to the date of his first appointment to  class  or  category  from
which he was transferred. Where any difficulty or doubt arises  in  applying
this sub-rule, seniority shall be determined by the appointing authority.”

In view of the statutory provision as above  on  seniority  a  Reserve  Sub-
Inspector selected and appointed as Sub-Inspector (Civil) against  5%  quota
will be entitled to retain his seniority  from  the  date  of  his  original
appointment as Reserve Sub-Inspector of Police.
Inspector of Police, the next avenue open to the Sub-Inspector of Police  is
under the Andhra Pradesh Police Service and  selection  and  appointment  is
governed by Andhra Pradesh Police Service Rules, 1966. Rule 3  of  the  A.P.
Police Service Rules to the extent relevant, provides :-
“Recruitment by transfer from the Sub-Inspectors  of  Police  categories  of
Class I in the A.P. Police Subordinate Service Rules shall be  made  on  the
grounds of merit and ability, seniority being  considered  where  merit  and
ability are approximately equal”.

A few things are clear, (1) the feeder category for appointment to the  post
of Inspector of Police under the A.P.  Police  Service  Rules  is  the  Sub-
Inspector of Police (Civil) of the A.P. Police Subordinate Service. (2)  The
method of appointment  is  recruitment  by  transfer  from  the  Subordinate
Service to the State service.  (3 ) The recruitment by transfer is  made  on
the  basis  of  selection  based  on  merit  and  ability,  seniority  being
considered where merit and ability are equal.

Rule 5 of the A.P. Police  Service  Rules  provides  for  qualification  for
appointment to the post of Inspector of Police. The  relevant  Rule  5(F)(i)
reads as follows :-
“Rule 5(F) (i) No Sub-Inspector of Police (Category-I,  Class  I  of  Andhra
Pradesh Police Subordinate Service) shall be  eligible  for  appointment  as
Inspector of Police, Category 4,  by  transfer,  unless  he  has  put  in  a
minimum period of service as specified in the table hereunder -





|TABLE                                                    |
|S.No.|Sub-Inspector of Police,     |Minimum service      |
|     |Category 1, of A.P. Police   |required for         |
|     |Subordinate Service          |appointment by       |
|     |                             |transfer as Inspector|
|     |                             |of Police, Category 4|
|1.   |Sub-Inspector (Direct        |Six completed years  |
|     |Recruits)                    |                     |
|2.   |Sub-Inspectors (Promotees)   |Four completed years |
|3.   |Sub-Inspectors (Recruited by |Six completed years  |
|     |transfer)                    |                     |
|4.   |Sub-Inspectors (Absorbed from|Four completed years,|
|     |Sub-Inspectors of            |provided he has put  |
|     |Ex-Prohibition  Department)  |in not less than Two |
|     |                             |continuous years of  |
|     |                             |service as           |
|     |                             |Sub-Inspector in the |
|     |                             |ex-Prohibition Dept. |
|     |                             |or six completed     |
|     |                             |years otherwise”     |


Rule 6(a) of the A.P. Police Service Rules provides  for  ‘Probation’  which
reads  :-
“Rule 6. Probation -(a) Every person recruited by transfer or  promotion  to
a category in the service shall be on probation for a total  period  of  one
year on duty within a continuous period of two and half years.”

The simple issue to be tackled in  this  case  is  whether  a  Reserve  Sub-
Inspector of Police who is transferred  on  selection  as  Sub-Inspector  of
Police (Civil) in the A.P. Police  Subordinate  Service  when  recruited  by
transfer to A.P. Police Service and appointed as Inspector,  should  have  6
years of completed service as Sub-Inspector of Police  (Civil)  or  a  total
service of 6 years including the  service  as  Reserve  Sub-Inspector?   The
Tribunal and the High Court have held that  6  years  service  required  for
appointment as Inspector under the A.P. Police Service  should  be  as  Sub-
Inspector of Police (Civil) and  the  same  does  not  include  the  service
rendered as  Reserve  Sub-Inspector.  Thus  aggrieved,  the  appellants  are
before this Court.

Heard learned senior counsel and other counsel appearing on behalf  of  both
sides.   Though several contentions  have  been  raised,  the  crux  of  the
arguments  is  that  once  seniority  is   considered   from  the  date   of
appointment as Reserve Sub-Inspector, since the scales  of  pay  of  Reserve
Sub-Inspector and Sub-Inspector (Civil) is the same and  since  both  belong
to the same class under  the  A.P.  Police  Subordinate  Service,  the  Sub-
Inspectors selected by transfer  and  appointed  as  Sub-Inspectors  (Civil)
against 5% vacancy  and  subsequently  recruitment  by  transfer  should  be
allowed to carry the benefit of total service, lest it should  also  violate
Article 14 of the Constitution of India.

We find it  difficult  to  appreciate  the  above  submission.  A.P.  Police
Subordinate Service and A.P. Police Service are two  distinct  and  separate
services. And though the pay scales of both categories in Class  I  post  of
A.P. Police Subordinate Service is one and  the  same,  the  posts  are  not
interchangeable.  It has been the submission of  the  State  that  there  is
functional difference in the service  as  well.  Be  that  as  it  may,  the
selection to the post of Sub-Inspector (Civil)  from  Reserve  Sub-Inspector
is by way of transfer  by  selection  based  on  merit.  Only  5%  quota  is
allocated to the Reserve Sub-Inspectors.   Once  the  Reserve  Sub-Inspector
comes into the category of Sub-Inspector of Police (Civil), he  is  entitled
to carry his  seniority  from  the  date  of  appointment  as  Reserve  Sub-
Inspector and placed accordingly in the  seniority  list  of  Sub-Inspectors
(Civil). In other words as and when a Reserve Sub-Inspector is selected  and
appointed by transfer to the post of  Sub-Inspector  (Civil),  though  there
may be Sub-Inspectors of Police (Civil) already available in  that  category
working for more than 4 years but less than 5 years  yet  the  Reserve  Sub-
Inspector transferred as Sub-Inspector of  Police  (Civil)  will  be  placed
above those existing Sub-Inspectors of Police recruited from other  channels
without the benefit of ‘carry on’ seniority. But that does not mean that  on
such placement in seniority he will be  entitled  to  claim  appointment  as
Inspector of Police in the A.P. Police Service since under the  A.P.  Police
Service Rules, a Sub-Inspector of Police recruited by transfer  should  have
a minimum service of 6  completed  years  for  appointment  by  transfer  as
Inspector of Police. This rule is not under challenge.

The learned senior counsel for the  appellants  made  a  persuasive  attempt
placing reliance on minimum service in the case of  Sub-Inspectors  absorbed
from Sub-Inspectors of Ex-Prohibition Department. Under  the  said  category
the minimum service required is 4 completed years as  Sub-Inspector  (Civil)
provided such an Inspector has put in not less than 2  continuous  years  of
service as Sub-Inspector in the Ex-Prohibition Department or  has  completed
 6 years otherwise. That will not take  the  appellants  anywhere.  What  is
required in the category of  appellants  namely,  Sub-Inspectors  of  Police
(Civil) recruited by transfer for appointment as Inspectors is  6  completed
years of service  as  Sub-Inspectors  and  not  total  service  of  6  years
including the service as Reserve Sub-Inspectors.  The rule as it  stands  is
crystal clear and does not call for any other interpretation.

The rule as stands now and  having  regard   to  the  functional  duties  of
Reserve Sub-Inspector and Sub-Inspector, and in the absence of  a  challenge
set up on discrimination we find it difficult to test the arguments  on  the
tenets  of Article 14 of the Constitution of India.

Transfer and recruitment by transfer are entirely  two  different  concepts.
No doubt transfer can be from one category to  another  category  or  within
the class if the rule permits interchangeability of the categories within  a
class. Any other transfer both intra category  and  inter  category  are  in
fact, under law is a selection and appointment by way  of  a  transfer  from
one category to another or from one class  to  another  class  or  from  one
service to another.  If it is a transfer simplicitor it conveys a  different
meaning and if it is a recruitment by transfer, as we have  clarified  above
conveys  a  different  concept  altogether.  The  latter  is   a   mode   of
selection/recruitment to a service.

 Transfer in relation to service  simply  means  a  change  of  a  place  of
employment within an organization. Such transfer being to a similar post  in
the same cadre and therefore obviously such a transfer does  not  result  in
the termination of his lien in the parent cadre but recruitment by  transfer
is a different service concept altogether. It is a method of recruitment  to
a service, in the instant case to a different category in the  same  service
initially  and  thereafter  to  a  different  service  altogether.  Once  an
employee undergoes a transfer by way of a recruitment to a  different  cadre
or to a different service,  the  employee  loses  his  lien  in  the  parent
cadre/service. In that process, there is an induction to  a  new  cadre  and
sometimes with a  different  type  of  duty.  Such  induction  has  distinct
consequence on the career of the employee different  from  what  would  have
been the normal course had he continued in  the  parent  service.  Thus  the
recruitment by transfer terminates the lien of an  employee  in  the  parent
cadre/service whereas transfer simplicitor to a similar  post  in  the  same
cadre results only in change of place of employment and therefore  there  is
no termination of lien, (See :- V. Jagannadha Rao & Ors. v. State of A.P.  &
Ors.[1], B. Thirumal v. Ananda Sivakumar & Ors.[2]).

Seniority and eligibility are also distinct concepts. As  far  as  promotion
or recruitment by transfer to a higher  category  or  different  service  is
concerned if the method of promotion  is  seniority-cum-merit  or  seniority
per se, there is no question of  eligible  senior  being  superseded.  Other
things being equal, senior automatically gets promoted. But in the  case  of
selection based on merit-cum-seniority,  it  is  a  settled  principle  that
seniority has to give way to merit. Only if merit being  equal  senior  will
get the promotion.

Merely because a person is senior, if the senior is not  otherwise  eligible
for consideration as per the rules for promotion, the senior  will  have  to
give way to the eligible juniors.   The instant case is  a  classic  example
for the said principle. The Reserve Sub-Inspectors  selected  and  appointed
on transfer as Sub-Inspectors (Civil) carries seniority  from  the  date  of
appointment as Reserve Sub-Inspectors. But the eligibility  for  appointment
by way of a transfer to the post of Inspector under the A.P. Police  Service
requires 6 completed years of service after being recruited to the  category
of Sub-Inspector of Police (Civil). In other words, though the Reserve  Sub-
Inspector selected and appointed on transfer as  Sub-Inspector  (Civil)  may
be seniormost in the category of Sub-Inspector of Police, but still he  will
be ineligible for consideration of appointment as Inspector in case he  does
not have 6 years of service as Sub-Inspector  of  Police  (Civil).  All  his
juniors who have 6 years of service as Sub-Inspector of  Police  and  having
been recruited to that post from different categories are entitled to  steal
a march over him as the rule now stands.  The rule making authority  in  its
wisdom has provided such a classification and we do not  find  any  material
on record to upset the said wisdom.

The view taken by us as above is fortified by the decision of this Court  in
the case of R. Prabha Devi  and  others  v.  Government  of  India,  Through
Secretary, Ministry of Personnel and Training,  Administrative  Reforms  and
others[3] wherein it has been held that :-
“15. The rule-making authority is  competent  to  frame  rules  laying  down
eligibility  condition  for  promotion  to  a  higher  post.  When  such  an
eligibility condition has been laid down by  service  rules,  it  cannot  be
said that a direct recruit who is senior to the promotees  is  not  required
to  comply  with  the  eligibility  condition  and  he  is  entitled  to  be
considered for promotion to the higher post  merely  on  the  basis  of  his
seniority. The amended rule in question has  specified  a  period  of  eight
years’ approved service in the grade of Section Officer as  a  condition  of
eligibility for being considered for promotion to Grade I post of CSS.  This
rule is equally applicable to both the direct recruit  Section  Officers  as
well as the promotee Section Officers. The submission that a senior  Section
Officer has a right to be considered for promotion to Grade I post when  his
juniors who have fulfilled the eligibility condition  are  being  considered
for promotion to the higher post, Grade  I,  is  wholly  unsustainable.  The
prescribing of an eligibility condition for  entitlement  for  consideration
for promotion is within the competence of the  rule-making  authority.  This
eligibility condition has to be fulfilled by the Section Officers  including
senior direct recruits in order to be  eligible  for  being  considered  for
promotion. When qualifications for appointment to a  post  in  a  particular
cadre are prescribed, the same have to be satisfied before a person  can  be
considered for  appointment.  Seniority  in  a  particular  cadre  does  not
entitle a public servant for promotion to a higher post  unless  he  fulfils
the eligibility condition prescribed by the relevant rules.  A  person  must
be eligible for promotion having regard  to  the  qualifications  prescribed
for the post before he can be considered for promotion.  Seniority  will  be
relevant only amongst persons eligible. Seniority cannot be substituted  for
eligibility nor it can override it in the matter of promotion  to  the  next
higher post. The rule in question which  prescribes  an  uniform  period  of
qualified service cannot be said to be  arbitrary  or  unjust  violative  of
Article 14 or 16 of the Constitution.  It  has  been  rightly  held  by  the
Tribunal:
  “When certain length of service in  a  particular  cadre  can  validly  be
prescribed  and  is  so  prescribed,  unless   a   person   possesses   that
qualification, he cannot be considered eligible for  appointment.  There  is
no law which lays down that a  senior  in  service  would  automatically  be
eligible for promotion. Seniority by itself does not outweigh experience.”

The aforesaid view of this Court in the case of R. Prabha Devi  (supra)  has
been reiterated and followed in State of Punjab and others  v.  Inder  Singh
and others[4] and Shiba Shankar Mohapatra & Ors.  v.  State  of  Orissa  and
others[5].

 No doubt on the date of occurrence  of a vacancy in the post  of  Inspector
of Police, in  case  a  Reserve  Sub-Inspector  selected  and  appointed  on
transfer as Sub-Inspector of Police has completed 6 years  as  Sub-Inspector
of Police (Civil), he is entitled to be  considered  in  preference  to  his
juniors in the seniority list of Sub-Inspectors of Police.

In view of the factual and legal position explained above, we find no  merit
in these appeals, accordingly they  are  dismissed,  subject  to  the  above
clarification. There shall be no order as to costs.
                                                   .......................J.
                                                             (KURIAN JOSEPH)



                                                                 .……………………J.
                                                           (R. BANUMATHI)

New Delhi;
April 12, 2017.
-----------------------
[1]     (2001) 10 SCC 401
[2]     (2014) 16 SCC 593
[3]    (1988) 2 SCC 233
[4]     (1997) 8 SCC 372
[5]     (2010) 12 SCC 471


-----------------------
                                                                  REPORTABLE

The “grammar of humility in law” in the hierarchical system basically means to abide by the precedents unless distinguishable but not to ignore them and pass orders because of an individual notion or perception. = “humility”, and “request” as used by this Court, has to be appositely understood by the High Courts. It requires attention. And attention in the context is disciplined and concerned awareness. Nothing more need be said. 26. In view of the aforesaid analysis, we cannot but hold that the impugned order passed by the learned Single Judge of the High Court is absolutely unsustainable. But the controversy does not end there. It is the admitted position that the respondent-college has been granted approval for the academic session 2017-2018. By virtue of the interim order passed by the High Court, three students had been admitted and they are prosecuting their studies. We intend to strike a balance. The students who have been admitted shall be allowed to continue their courses, but their seats shall be adjusted from the academic session 2017-2018. The respondent- college cannot be allowed to get a premium. The grant of bounty is likely to allow such institutions to develop an attitude of serendipity. Such a culture is inconceivable. Therefore, apart from the adjustment of seats for the next academic session, we also direct the respondent-college to deposit a sum of Rs. 30 Lakhs before the Registry of this Court within eight weeks hence and to ensure such compliance, the matter shall be listed in the third week of July, 2017 for further directions. After the amount is deposited, it shall be determined how to deal with the sum. The costs that has been directed to be deposited before the Registry of this Court shall in no manner be recovered from the students who had been admitted nor shall it be collected from the students who will be admitted to the course in the next year. That apart, the respondent-college shall not think of any kind of adjustment.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.4926 OF 2017
                    (@ S.L.P. (Civil) No. 26887 OF 2016)

Dental Council of India                        ... Appellant(s)

                                Versus

Dr. Hedgewar Smruti Rugna Seva
Mandal, Hingoli & Ors.                        ... Respondent(s)


                               J U D G M E N T

Dipak Misra, J.
      Though this Court  ordinarily  is  loath  to  interfere  with  interim
orders or directions issued by the High Court, yet the impugned order  dated
27.05.2016 passed in Writ Petition No. 4529 of 2016 by the learned  Vacation
Judge of the High Court  of  Judicature  at  Bombay,  Bench  at  Aurangabad,
constrains, in a way, obliges us to pen a verdict  with  some  concern,  for
abandonment to  write  a  decision  in  the  obtaining  circumstances  would
tantamount  to  playing  possum  with  the  precedents,  which  need  to  be
recapitulated by the High Courts.

2.    The facts are simple.  The respondent, a dental college,  vide  letter
dated  26.05.2015,  submitted  its  scheme  on  29.07.2015  for   grant   of
permission to start post-graduate course  of  Orthodontics  and  Dentofacial
Orthopaedics along with four other specialties.  A team  of  Dental  Council
of India (for short, ‘the Council’), the appellant herein, conducted a  pre-
PG assessment of the respondent-college on 17th and 18th November, 2015  and
submitted its report to the Council.  The  assessment  report  submitted  by
the said team was placed before the Executive Committee of  the  Council  in
its meeting  held  on  03.12.2015  whereupon  the  Committee  found  many  a
deficiency relating to infrastructure, teaching faculty and  other  physical
facilities in the respondent-college.  The Committee decided  to  call  upon
the  respondent-college  to  rectify  the  deficiencies   and   submit   its
compliance within seven days.   The  said  decision  was  communicated  vide
letter dated 08.12.2015.   The  respondent-college  vide  its  letter  dated
17.12.2015 submitted its compliance report whereafter the assessors  of  the
Council carried out a compliance verification assessment of the  respondent-
college on 21.12.2015.   The  case  of  the  respondent-college  was  placed
before the Executive Committee  for  consideration,  which  found  that  the
respondent-college fulfilled the eligibility criteria at  the  undergraduate
level.  On 29.01.2016,  the  Council  decided  to  carry  out  the  physical
assessment of the dental college in order to ascertain  the  infrastructure,
clinical  material,  teaching  faculty  and  other  physical  facilities  in
respect  of  four  postgraduate  specialties  and  in  accordance  with  the
decision, inspection was conducted on 28th  and  29th  January,  2016.   The
assessment report was considered by the Executive Committee in  its  meeting
held on 12.02.2016 and it observed that  there  were  deficiencies  and  the
college was required to submit compliance.

3.    As is evident from the materials brought on  record  the  decision  of
the Committee was communicated to the college on  18.02.2016  whereupon  the
respondent-college communicated that the  defects  had  been  removed.   The
Council proceeded to verify the compliance made by the college  and  keeping
in view the various facilities and regard being had to the decision of  this
Court in Royal Medical Trust (Registered) and another v. Union of India  and
another[1], decided to recommend to the Government of  India  not  to  grant
permission  to  the  respondent-college  for  starting   the   post-graduate
courses.  The  Government  of  India,  after  affording  an  opportunity  of
hearing to the respondent-college, vide letter  dated  21.03.2016,  required
the Council to verify/review the schemes and further desired to furnish  its
revised recommendation.

4.    The communication received from the Government  of  India  was  placed
before the Committee and the Committee keeping in  view  the  cut-off  date,
postulated in Royal Medical Trust (supra) and Ashish Ranjan  and  others  v.
Union of India and others[2], decided to reiterate  its  earlier  stand  and
accordingly it was communicated to the Government of  India  on  28.03.2016.
The  Government  of  India  after  considering  the  recommendation  of  the
Council, vide  letter  dated  31.03.2016,  disapproved  the  scheme  of  the
respondent-college for starting MDS course in the specialty of  Orthodontics
and Dentofacial Orthopaedics for the academic session 2016-2017.

5.    Being dissatisfied with the decision of the Government of India  which
is based on  the  recommendation  of  the  Council,  the  respondent-college
knocked at the doors of the High Court by filing a  writ  petition  and  the
learned Vacation Judge upon   hearing the learned counsel for  the  parties,
passed the following order:-

“The controversy or the issue involved in the matter requires  consideration
and due to paucity of time, this Court  is  unable  to  decide  this  matter
finally.  In  such  circumstances  the  impugned  communication  dated  31st
March, 2016 is hereby stayed until next date i.e. 06.06.2016. The  admission
process undertaken by the petitioner is at the risk of the petitioner.   The
petitioner shall intimate the order passed by this  Court  to  the  students
who are intending to take admission for M.D.S. course  in  Orthodontics  and
Denotfacial Orthopaedics.”



      After passing the said direction, the Court adjourned  the  matter  to
06.06.2016.

6.    Assailing the said order,  it  is  submitted  by  Mr.  Gaurav  Sharma,
learned counsel for the appellant that the High Court  could  not  have,  in
the absence of approval of the scheme submitted by the  college,  passed  an
order of the present nature by staying the  order  and  observing  that  the
admission process undertaken by the institution would be at  its  own  risk.
Learned counsel would submit  that  though  the  learned  Single  Judge  has
opined that the college shall intimate the students  who  are  intending  to
take  admission  to  MDS  course  in  the   Orthodontics   and   Dentofacial
Orthopaedics about the order passed by the  Court,  yet  such  an  order  is
impermissible as it brings in anarchy and chaos in the process of  admission
to medical courses.  He has referred to certain authorities, which we  shall
refer to in the course of the judgment.

7.    Mr. S.M. Jadhav, learned counsel for the                   respondent-
college would contend, in his turn, that decision of the Council  was  prima
facie erroneous and, therefore, the High Court was justified in staying  the
said order.  It is further canvassed by  him  that  the  High  Court,  while
staying the order, had  imposed  the  conditions  and  hence,  there  is  no
justification  or  warrant  on  the  part  of  the  Council  to  invoke  the
jurisdiction of this Court under Article 136  of  the  Constitution  and  it
would have been advisable for it to wait for the final decision of the  High
Court.  Additionally, it is urged by him  that  the  respondent-college  has
been granted due approval for the academic session 2017-2018 and that  would
make the non-denial of the approval for the earlier order  illegal  and,  in
any case, the three students who have been admitted by virtue of  the  order
passed by the High Court  should  not  put  in  a  state  of  suffering  and
predicament.

8.     The  narration  of  facts  is  absolutely  telling  that  the  scheme
submitted by the respondent-college for starting the MDS course in  the  two
specialties  had  been  disapproved  by  the  Government   of   India.   The
justifiability of the said non-approval was the subject matter  of  the  lis
before the High Court. The High  Court  was  expected  to  adjudicate  under
Article 226 of the Constitution within its parameters as regards the  nature
of deficiencies pointed out by the Council, steps taken by the college  with
regard to removal of such  deficiencies  and  whether  there  had  been  any
perversity  in  the  decision  making  process  of  the  Council  while  not
recommending for approval to the Government of India and  further  declining
to  review the decision  after  the  Government  of  India  required  it  to
verify/review the scheme and  furnish  the  revised  recommendation.  As  is
evident, the Council keeping in view the cut-off  date  prescribed  by  this
Court in Royal Medical Trust (supra) and Ashish  Ranjan  (supra)  reiterated
its earlier recommendation. Thus, the ultimate  result  was  disapproval  of
the scheme by the Government of India.  Hence, the writ court  observed,  as
is demonstrable from the order which we have reproduced  hereinbefore,  that
the controversy required consideration  and  as  the  matter  could  not  be
finally adjudicated, the circumstances required interim direction  and  stay
of the impugned communication.  True it is, the  High  Court  has  qualified
its order by stating that the admission process shall be at the risk of  the
college and the students shall be intimated, but the  heart  of  the  matter
is,  whether  the  High  Court  should  have  stayed  the  order  with  such
conditions. Basically, the order amounts  to  granting  permission  for  the
admission of students  in  certain  courses  in  a  college  which  had  not
received approval. There may be a case where the court may  ultimately  come
to the conclusion that the recommendation  is  unacceptable  and  eventually
the decision of disapproval by the Government  of  India  is  unsustainable.
But the issue is whether before arriving at  such  conclusions,  should  the
High Court, by way of interim   measure, pass such an order.

9.  Such a controversy has not arisen for the first time. A two-Judge  Bench
in Union of India v. Era Educational Trust and  another[3]      stated  that
normally this Court  would  hesitate  to  interfere  with  an  interlocutory
order, but was compelled to do so where prima facie  it  appeared  that  the
said order could not be justified by any  judicial  standard,  the  ends  of
justice and the need to maintain judicial discipline required the  Court  to
do so and  to  indicate  the  reasons  for  such  interference.  The  Court,
adverting to the aspects  of  passing  of  orders  relating  to  provisional
admission, quoted a passage from Krishna Priya  Ganguly   v.  University  of
Lucknow[4] which reads thus:-

“[T]hat whenever a writ petition is filed provisional admission  should  not
be given as a matter of course on the petition  being  admitted  unless  the
court is fully satisfied that the petitioner has a cast-iron case  which  is
bound to succeed or the  error  is  so  gross  or  apparent  that  no  other
conclusion is possible.”

       The  Court  also  thought  it  appropriate   to   reproduce   further
observations from Krishna Priya Ganguly (supra):-

“Unless the institutions can provide complete and full  facilities  for  the
training of each candidate who is admitted in the various  disciplines,  the
medical education will be incomplete and the universities would  be  turning
out doctors not fully qualified which would adversely affect the  health  of
the people in general.”

10.   Adverting to the facts in the case before it, the Court held:-
“9. In the present case, this type of situation has arisen  because  of  the
interim order passed by the High Court  without  taking  into  consideration
various judgments rendered by this Court for exercise of jurisdiction  under
Article 226. It is apparent that even at the  final  stage  the  High  Court
normally could not have  granted  such  a  mandatory  order.  Unfortunately,
mystery has no place in judicial process. Hence, the impugned  order  cannot
be justified by any judicial standards and requires to be  quashed  and  set
aside.”

      The aforesaid  passage  is  quite  vivid  and  reflects  the  surprise
expressed by the learned Judges.
11.   In Medical Council of India  v.  Rajiv  Gandhi  University  of  Health
Sciences and others[5] the three-Judge Bench referred to  the  authority  in
Era Educational Trust (supra) and emphatically reiterated the  law  declared
therein.  The reiteration is as follows:-
“4. We once again emphasise that the law declared by this Court in Union  of
India v. Era Educational Trust (supra) that  interim  order  should  not  be
granted as a matter of course, particularly  in  relation  to  matter  where
standards of institutions are involved and the permission to be  granted  to
such institutions is subject to certain provisions of  law  and  regulations
applicable to the same, unless the same are complied with. Even if the  High
Court  gives  certain  directions  in  relation  to  consideration  of   the
applications filed  by  educational  institutions  concerned  for  grant  of
permission or manner in which the same should be processed should  not  form
a basis to direct the admission of students in these institutions which  are
yet to get approval from the authorities concerned  or  permission  has  not
been granted by the Council.”

      The aforesaid pronouncement, as is manifest,  rules that issue  of  an
interim order in respect of  an  institution  which  has  not  received  the
approval is not countenanced in law.
12.   In Medical Council of India v. JSS Medical College and another[6]  the
issue had arisen with regard to passing of interim orders by the High  Court
relating to permission for increase of seats. The anguish expressed  by  the
Court is reflectible from the following passage:-
“12. Without adverting to the aforesaid issues and many other  issues  which
may arise for determination, the  High  Court,  in  our  opinion,  erred  in
permitting increase in seats by an interim order.  In  normal  circumstances
the High Court should  not  issue  interim  order  granting  permission  for
increase of the seats. The High Court ought to realise  that  granting  such
permission by an interim order has a cascading effect.  By  virtue  of  such
order students are admitted as in the present case and though many  of  them
had taken the risk knowingly but few may be ignorant. In most of such  cases
when finally the issue is  decided  against  the  College  the  welfare  and
plight of the students are ultimately projected to arouse  sympathy  of  the
Court. It results in a very awkward and difficult situation. If on  ultimate
analysis it is found that the College’s  claim  for  increase  of  seats  is
untenable, in such an event the admission of students with reference to  the
increased  seats  shall  be  illegal.  We  cannot  imagine   anything   more
destructive of the rule of law than  a  direction  by  the  Court  to  allow
continuance of such students, whose  admissions  is  found  illegal  in  the
ultimate analysis.”

13.   In Priya Gupta v. State of Chhattisgarh  and  others[7]  dealing  with
various aspects, the Court  was  in  pain  and  thought  it  appropriate  to
request the High Courts with humility.  The lucid  statement   is  extracted
below:-
“78.4. With all the humility at our command, we request the High  Courts  to
ensure  strict  adherence  to  the  prescribed  time  schedule,  process  of
selection and to the rule of merit. We reiterate what  has  been  stated  by
this Court earlier, that except in very exceptional cases,  the  High  Court
may consider it appropriate to decline interim  orders  and  hear  the  main
petitions finally, subject to the convenience of the Court. …”

14.   In   Medical  Council  of  India  v.  M.G.R.  Educational  &  Research
Institute University & another[8] treating the admission as unauthorized  as
there had been no approval by the MCI, the Court  imposed  costs  of  Rs.  5
crores on the respondent institution therein, for it had created a  complete
mess insofar as the students were admitted  to  the  second  batch  of  MBBS
course in the college. There has been a further direction  that  the  amount
of costs that was directed to be  deposited  before  the  Registry  of  this
Court was not to be recovered in any manner from  any  student  or  adjusted
against the fees or provision for  facilities  for  students  of  subsequent
batches.
15.   The three-Judge Bench in Royal Medical Trust  (supra),  while  dealing
with time schedule, stated thus:-
“33. The cases in hand show that the Central Government did  not  choose  to
extend the time-limits in the  Schedule  despite  being  empowered  by  Note
below  the  Schedule.  Though  the  Central   Government   apparently   felt
constrained by the directions in Priya Gupta (supra) it  did  exercise  that
power in favour of government medical colleges. The decision of  this  Court
in Priya Gupta  (supra)  undoubtedly  directed  that  the  Schedule  to  the
Regulations must be strictly and scrupulously observed. However,  subsequent
to that decision,  the  Regulations  stood  amended,  incorporating  a  Note
empowering the Central Government to modify the stages  and  time-limits  in
the Schedule to the Regulations. The effect of similar such empowerment  and
consequential exercise of power as expected from the Central Government  has
been considered by this Court in Priyadarshini[9].  The  Central  Government
is thus statutorily empowered to modify the Schedule in respect of class  or
category of applicants, for reasons to be recorded in  writing.  Because  of
subsequent amendment and incorporation of the Note as aforesaid, the  matter
is now required to be seen in the light of and in accord with  Priyadarshini
(supra) where similar Note in pari materia  Regulations  was  considered  by
this Court. We therefore hold that the directions  in  Priya  Gupta  (supra)
must now be understood in the light of such  statutory  empowerment  and  we
declare that it is open to the Central Government, in terms of the Note,  to
extend or modify  the  time-limits  in  the  Schedule  to  the  Regulations.
However the deadline, namely, 30th of September  for  making  admissions  to
the first MBBS course as laid down by this  Court  in  Madhu  Singh[10]  and
Mridul Dhar (5)[11] must always be observed.”

16.   The question of tenability of an interim  order  passed  by  the  High
Court in matters of admission came for consideration in  a  recent  decision
in Medical Council of India v. Kalinga Institute of Medical Sciences  (KIMS)
and others[12].  The  Court  found  that  after  the  MCI  and  the  Central
Government having twice considered the inspection report, the  matter  ought
to have been given a quietus by the High Court for the academic  year  2015-
2016.  It has been further observed that the High Court ought to  have  been
more circumspect in directing the admission of students  and  there  was  no
need for the High Court to rush into an area that MCI feared to  tread.   It
was further observed that:-
“27.  … Granting admission to students in an  educational  institution  when
there is a serious doubt whether admission should at all be granted  is  not
a matter to be taken lightly. First of  all  the  career  of  a  student  is
involved — what would a student do if his admission is found to  be  illegal
or is quashed? Is it not a huge waste of time for him or her? Is  it  enough
to say that the student will not claim any equity in his or her  favour?  Is
it enough for student to be told that his or her  admission  is  subject  to
the outcome of a pending litigation? These are all questions that arise  and
for which there is no easy answer. Generally speaking, it is better  to  err
on the side of caution and deny admission to a student rather than have  the
sword of Damocles hanging over him or her. There  would  at  least  be  some
certainty.”


      We respectfully concur with the said observations.
17.   It is worthy to note that the Court thought it appropriate to  observe
that for the fault of the institution, the students should  not  suffer  nor
should the institution get away scot-free.  It issued certain directions  to
the institution that it should not have entered into adventurist  litigation
and costs of Rs. 5 crores were imposed for playing with the  future  of  the
students and the mess that the institution had created  for  them.   Certain
other directions were issued in this case which we need not advert to.
18.   In Ashish Ranjan (supra), the Court after hearing the Union of  India,
MCI and all the States, had fixed a time schedule and directed as  follows:-

“3. Regard being had to the prayer in the writ petition, nothing remains  to
be adjudicated. The order passed today be sent to the Chief  Secretaries  of
all the States so that they shall  see  to  it  that  all  the  stakeholders
follow the schedule  in  letter  and  spirit  and  not  make  any  deviation
whatsoever. Needless to say AIIMS and  PGI  (for  the  examination  held  in
July) shall also follow the schedule in letter and spirit.”

19.   From the aforesaid authorities,  it  is  perspicuous  that  the  court
should not pass such interim orders in the matters of  admission,  more  so,
when the institution had not been accorded approval. Such  kind  of  interim
orders are likely to cause chaos, anarchy and uncertainty. And, there is  no
reason  for  creating  such  situations.  There  is  no   justification   or
requirement. The High Court may  feel  that  while  exercising  power  under
Article 226 of the Constitution,  it  can  pass  such  orders  with  certain
qualifiers as has been done by the impugned order, but it  really  does  not
save the situation.  It is because an institution which has not  been  given
approval for the course, gets a premium. That apart, by  virtue  of  interim
order, the court grants approval in a way which is  the  subject  matter  of
final adjudication before it.  The anxiety of the students to get  admission
reigns supreme as they feel that the institution is  granting  admission  on
the basis of an order passed by the High Court.  The  institution  might  be
directed to inform the students that the  matter  is  sub  judice,  but  the
career oriented students get into the college with the hope  and  aspiration
that in the ultimate eventuate everything shall  be  correct  for  them  and
they will be saved.  It can be thought of  from  another  perspective,  that
is, the students had deliberately got into such  a  situation.   But  it  is
seemly to note that it is the  institution  that  had  approached  the  High
Court and sought a relief  of  the  present  nature.   By  saying  that  the
institution may give admission at its own risk invites further  chaotic  and
unfortunate situations.
20.   The  High  Court  has  to  realize  the  nature  of  the  lis  or  the
controversy. It is quite different. It is not a construction which is  built
at the risk of a plaintiff or the  defendant  which  can  be  demolished  or
redeemed by grant of compensation.  It is a situation where  the  order  has
the potentiality to play with the career and life of young. One may say,  “…
life is a foreign language; all mis-pronounce it”, but it has  to  be  borne
in mind that artificial or contrived accident is not the goal of life.
21.   There is no reason to invite a disaster by way of an interim order.  A
Judge has to constantly remind himself about the  precedents  in  the  field
and not to be swayed away by his own convictions. In this context, the  oft-
quoted passage from Felix Frankfurter[13] would be apt to remember:-
“For the highest exercise of judicial duty is to subordinate one’s  personal
pulls and one’s private views to the law of which we  are  all  guardians  ?
those impersonal convictions that make a society a civilized community,  and
not the victims of personal rule.”

22.   That leads us to say something about  following  the  precedents.  The
purpose is to have consistency. A three-Judge Bench in Government of  Andhra
Pradesh and others v. A.P. Jaiswal and others[14] observed:-
“24. Consistency is the cornerstone of the administration of justice. It  is
consistency which creates confidence in the system and this consistency  can
never be achieved without respect to the rule of  finality.  It  is  with  a
view to achieve consistency in  judicial  pronouncements,  the  courts  have
evolved the rule of precedents,  principle  of  stare  decisis,  etc.  These
rules and principle are based on public policy….”

 23.  In Arasmeta Captive Power  Company  Private  Limited  and  another  v.
Lafarge India Private Limited[15], dealing with the matter that  related  to
the field of arbitration, the Court emphatically  observed  that  it  is  an
“endeavour to clear the maze, so that certainty  remains  “A  Definite”  and
finality is “Final””.  In this regard, we may travel a  decade  and  a  half
back. In Chandra Prakash and others v. State of  U.P.  and  another[16],  it
has been held:-
“22.  …  The doctrine of binding precedent is of utmost  importance  in  the
administration  of  our  judicial  system.   It   promotes   certainty   and
consistency in judicial decisions. Judicial consistency promotes  confidence
in the system,  therefore,  there  is  this  need  for  consistency  in  the
enunciation of legal principles in the decisions of this Court.”

24.   In the instant case, the precedents are clear and  luculent.  It  does
not allow any space for any kind of equivocation. In  Priya  Gupta  (supra),
the Court had requested the High Courts to ensure strict  adherence  to  the
prescribed time schedule, process of selection and role of merit and  except
in very exceptional cases, to decline interim orders.  The Court  had  added
the words “humility at our command”.   The “grammar of humility in  law”  in
the hierarchical system basically means to abide by  the  precedents  unless
distinguishable but not to  ignore  them  and  pass  orders  because  of  an
individual  notion  or  perception.    Adjudication   in   accordance   with
precedents is cultivation of humility.  As long as a  precedent  is  binding
under the constitutional scheme, it has to be  respected  by  all.   It  has
been said by Simone Weil[17]:-
“In the intellectual order, the virtue of humility is nothing more nor  less
than the power of attention”

25.   We reiterate  the  concept  of  humility  as  stated  in  Priya  Gupta
(supra). However, we intend to  add  that  the  meaning  behind  the  words,
namely, “humility”,  and  “request”  as  used  by  this  Court,  has  to  be
appositely understood by  the  High  Courts.   It  requires  attention.  And
attention in the context is disciplined and  concerned  awareness.   Nothing
more need be said.
26.   In view of the  aforesaid  analysis,  we  cannot  but  hold  that  the
impugned order passed by the   learned Single Judge of  the  High  Court  is
absolutely unsustainable.  But the controversy does not  end  there.  It  is
the admitted position that the respondent-college has been granted  approval
for the academic session 2017-2018. By virtue of the  interim  order  passed
by  the  High  Court,  three  students  had  been  admitted  and  they   are
prosecuting their studies.  We intend to strike a balance. The students  who
have been admitted shall be allowed to continue  their  courses,  but  their
seats shall be adjusted from the academic session 2017-2018. The respondent-
college cannot be allowed to get a premium.  The grant of bounty  is  likely
to allow such institutions to develop an attitude  of  serendipity.  Such  a
culture is inconceivable. Therefore, apart from the adjustment of seats  for
the next academic session, we also direct the respondent-college to  deposit
a sum of Rs. 30 Lakhs before the Registry of this Court within  eight  weeks
hence and to ensure such compliance, the  matter  shall  be  listed  in  the
third week of July,  2017  for  further  directions.  After  the  amount  is
deposited, it shall be determined how to deal with the sum.  The costs  that
has been directed to be deposited before the Registry of  this  Court  shall
in no manner be recovered from the students who had been admitted nor  shall
it be collected from the students who will be admitted to the course in  the
next year. That apart, the respondent-college shall not think  of  any  kind
of adjustment.
27.   The appeal stands disposed of in above terms.

                                  ……………………………….…J.
                                  (Dipak Misra)



                                  ………………………………..…J.
                                  (Mohan M. Shantanagoudar)
NEW DELHI;
APRIL 11, 2017
-----------------------
[1]

      [2]  (2015) 10 SCC 19
[3]

      [4]  (2016) 11 SCC 225
[5]

      [6] (2000) 5 SCC 57
[7]

      [8] (1984) 1 SCC 307
[9]

      [10] (2004) 6 SCC 76
[11]

      [12] (2012) 5 SCC 628
[13]  [14] (2012) 7 SCC 433
[15]  [16] (2015) 4 SCC 580
[17]  [18] (2011) 4 SCC 623
[19]  [20] (2002 ) 7 SCC 258
[21]  [22] (2005) 2 SCC 65
[23]  [24] (2016) 11 SCC 530
[25]  [26] FRANKFURTER, Felix, in Clark, Tom C., “Mr. Justice Frankfurter:
‘A Heritage for all Who Love the Law’,” 51 A.B.A.J. 330, 332 (1965)
[27]  [28] (2001) 1 SCC 748
[29]  [30] (2013) 15 SCC 414
[31]  [32] (2002) 4 SCC 234
[33]  [34] Simone Weil, 1909-1943 Gravity and Grace, 1947

the High Court in Second Appeal was not justified in reversing the concurrent findings entered by the first appellate court and trial court in the matter of right to sell and in reversing the admitted position of landlord-tenant relationship as found by the first appellate court and denying eviction. First appellate court is the last court on facts. We find no perversity in the findings of the first appellate court. The said court has found on admission that there was landlord-tenant relationship. After entering such a finding only, the eviction was ordered on the ground of arrears of rent. There is no dispute on these facts. On the right to sell the property by the first respondent’s father, the findings are concurrent. In that view of the matter, we allow the appeal, set aside the impugned judgment of the High Court and restore that of the first appellate court. The respondents are given a period of two months to surrender vacant possession to the appellants. No costs.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION



                        CIVIL APPEAL NO. 5823 OF 2008


SATISH CHAND (D) BY LRS. & ANR.           ...  APPELLANT (S)

                                   VERSUS

KAILASH CHAND & ORS.                            ... RESPONDENT (S)




                               J U D G M E N T

KURIAN, J.:


      Appellant-landlords are aggrieved by the impugned judgment  passed  in
Second Appeal No. 602 of 2002 by the High Court of Madhya Pradesh at  Indore
whereby the High Court reversed the order of eviction passed  by  the  first
appellate court. The first appellate court had reversed the finding  of  the
Civil Judge, Class II, Sanwad (for short “the trial court”) on the issue  of
landlord-tenant relationship and thus aggrieved, the present appeal.
The appeal is not contested by the respondent-tenants.

The trial court had entered a finding that Vallabhdas, whose heirs  are  the
respondents herein was entitled to  sell  the  property  to  the  appellant-
landlords. There was also  a  finding  that  there  was  no  landlord-tenant
relationship. The  first  appellate  court,  having  regard  to  an  earlier
finding, which was an admitted position in a previous litigation, held  that
there was landlord-tenant relationship. The court granted  eviction  on  the
ground of arrears of rent but declined on the ground of bona fide need.  The
first appellate court also upheld the right of Vallabhdas  to  alienate  the
property to the appellant-landlords and thereafter treating  the  seller  as
tenant. The High Court however, took a different stand and held that it  was
too early for the courts below to  enter  a  finding  as  to  the  right  of
Vallabhdas to sell his property.

Having heard the learned senior counsel for the appellants, we  are  of  the
view that the High Court in Second Appeal was  not  justified  in  reversing
the concurrent findings entered by  the  first  appellate  court  and  trial
court in the matter of right to sell and in reversing the admitted  position
of landlord-tenant relationship as found by the first  appellate  court  and
denying eviction.

First appellate court is the last court on facts. We find no  perversity  in
the findings of the first appellate court.  The  said  court  has  found  on
admission that there was landlord-tenant relationship. After  entering  such
a finding only, the eviction was ordered on the ground of arrears  of  rent.
There is no dispute on these facts. On the right to  sell  the  property  by
the first respondent’s father, the findings are concurrent. In that view  of
the matter, we allow the appeal, set aside  the  impugned  judgment  of  the
High Court and restore that of the first appellate court.   The  respondents
are given a period of two months  to  surrender  vacant  possession  to  the
appellants. No costs.

                                                   .......................J.
                                                             (KURIAN JOSEPH)


                                                                 .……………………J.
                    (R. BANUMATHI)
New Delhi;
April 11, 2017.