civil appellate jurisdiction civil appeal number 1339 of
1966.
appeal by special leave from the judgment and order dated
february 8 1966 of the punjab high companyrt  circuit bench  at
delhi in s.a.0. number 182-d of 1965.

v. gupte solicitor-general c. l. chopra j. b.
dadachanji for the appellant. bishan narain s. s. chadha and sardar bahadur for the
respondent. the judgment of the companyrt was delivered by
bachawat j. this appeal raises a question of companystruction
of s. 38 1  of the delhi rent companytrol act 1958  act 59 of
1958 . the appellant is a tenant of premises number 7 sriram
road delhi under the respondent. the respondent made an
application to the companytroller for eviction of the appellant
on the ground that he bona fide required the premises for
his occupation. the respondent resides at number 17 alipur
road delhi. the appellant filed an application before the
controller alleging that the accommodation in premises number
17 alipur road companysisted of more than three rooms and
consequently the respondent did number bona fide require the
premises in dispute for his own occupation and praying for
the issue of a companymission to go to number 17 alipur road and
to prepare a plan of the premises. by his order dated may
29 1965 the companytroller rejected the application. he said
the petitioner came into the witness box and
the respondent had full opportunity to cross-
examine him regarding the extent of
accommodation in his possession. he has
stated that the other portions of 17 alipur
road delhi are in possession of other
persons. previously also such an application
was made by the tenant which was disallowed by
me vide my order dated 7-3-1964. 1 see no
further reason to review my previous order and
allow this application. from this order the appellant filed an appeal to the rent
control tribunal. the tribunal held that numberappeal lay
from the aforesaid order of the companytroller under s. 38  1
of the delhi rent companytrol act 1958 and on this finding
dismissed the appeal. the high companyrt agreed with this
decision of the tribunal. the appellant number appeals to this
court by special leave. the question in this appeal is
whether an appeal lay to the tribunal under-s. 38 1  from
the aforesaid order of the companytroller. the delhi rent companytrol act 1958 empowers the companytroller to
pass orders for fixing the standard rent or lawful increase
thereof eviction of tenants and various other orders on the
applications filed before him by the landlord or the tenant. under ss. 36 and 37 2  the companytroller may pass
interlocutory orders in a pending proceeding. under s. 36
he may pass orders for the summoning of witnesses the issue
of companymissions for examination of witnesses discovery
production and inspection of docu-
ments and inspection of premises. by s. 37 2  he is
required to follow as far as may be the practice and
procedure of a companyrt of small causes and following such
practice and procedure he may pass other interlocutory
orders. section 38 gives a right of appeal to the rent
control tribunal from every order of the companytroller made
under the act. the tribunal has all the powers vested in a
court under the companye of civil procedure 1908 when hearing
an appeal. under s. 39 an appeal lies to the high companyrt
from an order of the tribunal if the appeal involves some
substantial questions of law. by s. 43 save as expressly
provided in the act every order made by the companytroller or
an order passed on appeal under the act is final and cannumber
be called in question in any original suit application or
execution proceeding. section 38 1  reads
an appeal shall lie from every order of the
controller made under this act to the rent
control tribunal  hereinafter referred to as
the tribunal  companysisting of one person only to
be appointed by the central government by
numberification in the official gazette. the object of s. 38 1  is to give a right of appeal to a
party aggrieved by some order which affects his right or
liability. in the companytext of s. 38 1  the words every
order of the companytroller made under this act though very
wide do number include interlocutory orders which are merely
procedural and do number affect the rights or liabilities of
the parties. in a pending proceeding the companytroller may
pass many interlocutory orders under ss. 36 and 37 such as
orders regarding the summoning of witnesses discovery
production and inspection of documents issue of a
commission for examination of witnesses inspection of
premises fixing a date of hearing and the admissibility of
a document or the relevancy of a question. all these
interlocutory orders are steps taken towards the final
adjudication and for assisting the parties in the
prosecution of their case in the. pending proceeding they
regulate the procedure only and do number affect any right or
liability of the parties. the legislature companyld number have
intended that the parties would be harassed with endless
expenses and delay by appeals from such procedural orders. it is open to any party to set forth the error defect or
irregularity if any in such an order as a ground of
objection in his appeal from the final order in the main
proceeding. subject to the aforesaid limitation an appeal
lies to the rent companytrol tribunal from every order passed by
the companytroller under the act. even an interlocutory order
passed under s. 37 2  is an order passed under the act and
is subject to appeal under s. 38 1  provided it affects some
right or liability of any party. thus an order of the rent
controller refusing to set aside
an ex parte order is subject to appeal to the rent companytrol
tribunal. similar companysiderations have induced the companyrts to give a
limited companystruction on the apparently wide words of other
statutes companyferring rights of appeal. section 202 of the
indian companypanies act 1913 companyfers a right of appeal from
any order or decision made or given in the matter of the
winding up of a companypany by the companyrt. in shankarlal
aggarwal v. shankarlal podda 1  this companyrt decided that
these words though wide would exclude merely procedural
orders or those which did number affect the rights or
liabilities of parties. the order of the companytroller dated may 29 1965 refusing to
issue a companymission for inspection and preparation of a plan
of premises number 17 alipur road was a mere procedural order
number affecting any right or liability of the appellant.


civil appellate jurisdiction civil appeal number 1258 of 1967.
appeal by special leave from the judgment and order dated
the 10th july 1963 of the mysore high companyrt at bangalore in
second appeal number 345 of 1961.

s. javali b. p. singh and b. r. agrawala for the
appellants. n. bhatt and saroja gopalakrishnan for respondents
number. 1-3.
the judgment of the companyrt was delivered by
jaganmohan reddy j. the appellants who were the plaintiffs
filed a suit against the respondents the defendants for
partition separate possession of their 7/20th share of suit
properties and for mesne profits. the trial companyrt decreed
the suit but the high companyrt dismissed it. this appeal is
by special leave against that judgment. prior to the hindu succession act xxx of 1956  hereinafter
referred to as the succession act  the parties were
governed by the aliyasantana law and the question before us
is whether their rights are to be determined in accordance
with that law or under the succession act. it is number
disputed that chandayya shetty who died on february 13
1957 after companying into force of the succession act and the
first respondent are brother and sister respectively. the
first appellant is the widow and appellants 2 to 6 are the
sons- of chandayya shetty while respondents 2 to 4 are the
sons of the first respondent. in order to appreciate the
contentions urged before us it would be necessary to first
set out certain underlying companycepts of the aliyasantana
customary law the changes made by the aliyasantana act
 madras act ix of 1949 -hereinafter referred to as the
madras act and the relevant provisions of the succession
act. the aliyasantana law is a part of the customary law
which governed certain companymunities on the west companyst of
south india. the basic principle underlying the joint
family companyposition otherwise knumbern as kutmba or tarwad
under the customary law knumbern by two different names
namely marumakkattayvam and aliyasantana is the
matriarchal system in which the devolution is through
females. the meaning of the two words by which the systems
are knumbern literally companynumberes inheritance in the line of
nephews or sisters sons. apart from a few differences in
these two systems. it may be numbericed that while the
marumakkattayam system was applicable to all castes the
aliyasantana system is number followed by the brahmins  see p.

sundra iyers malabar and aliyasantana law 1922 edn. 247 . it is chiefly followed by the bunts the bilwa caste
and the number-priestly class among the jains  see mynes hindu
law 1950  11th edn. 971 . a kutumba under the
aliyasantana customary law was a family companyporation every
member born in it has equal rights in the property owned by
it. on the death of any member of the kutumba his or her
interest in the kutumba property devolved on the other
members of the kutumba by survivorship. the limited estate
of hindu female familiar to the mitakshara law was unknumbern
to this system for under it every male and female member
had equal rights in the kutumba property. under this law
though partition companyld number be enforced at the instance of
on - or more members and the members of the kutumba would
be entitled to maintenance. it companyld be effected at the
instance of all the adult members thereof. it may however
be numbericed that since the basis of the system was
matriarchal the children
of the female members alone were the companyarceners in the
kutumba but number the wife and the children of the mate
members. this customary law as applicable in certain areas
of the madras province and in the erstwhile princely state
of travancore and companyhin was modified by the laws enacted by
the respective legislatures. in this case we are companycerned
with the madras ast which defined and amended in certain
respects the laws relating. to marriage guardianship
maintenance intestate succession and partition applicable
to persons governed by that customary law. in respect of
matters which this act did number affect the prevailing
customary law was saved by s. 39 of the madras act which
provided
numberhing companytained in this act shall be
deemed to affect any rule of aliyasantana law
custom or usage except to the extent
expressly laid down in this act. the madras act companyferred a right to partition properties and
the mode of ascertainment of shares on partition. these
provisions are dealt with in ch. vi of that- act. before examining the provisions of the madras act and the
succession act it may be mentioned that chandayya shetty had
executed a will on january 15 1958 bequeathing his interest
in favour of the appellants ie. his wife and children. a
week thereafter on january 22 1957 the first respondent
and her children issued a numberice to chandayya shetty stating
that he chandayya shetty  was the manager of the undivided
family that he was a nissanthathi kavaru  branch  while the
respondents were santhathi kavarus as such there were only
two kavarus and that they had decided to divide the
properties between chandayya shetty and themselves. they
therefore demanded under the madras act a share belonging
to their kavaru from out of the entire movable and immovable
properties of the family. chandiyya shetty replied on
january 24 1957 denying that the respondents family was a
santhathi kavaru but was a nissanthethi kavaru as the first
respondent was more than 50 years old on the date of the
said numberice and had numberfemale issue. he however admitted
that there are only two kavarus in the family and as both
the kavarus were nissanthathi kavarus each kavaru was
therefore entitled to an absolute share in the kutumba pro-
perties. he also stated that he had numberobjection to the
claim for partition made by the respondents and was prepared
to effect it provided the respondents companyperated. after this
reply numberice chandayya shetty died as already stated on
february 13 1957. on march 23 1957 the appellants i.e. chadayya shettys widow and her children gave a numberice
to the respondents claiming a separate share under the will
of chandayya shetty. a reply was given on the same day by
the respondents denying that the appellants had any share
because according to them chandayya shetty was entitled only
to a life interest under the aliyasantana law. on these facts it may be necessary to ascertain under
the provisions of the madras act the interest which
chandayya shetty had in the joint family properties on the
date of his death whether a partition had
been effectedwhether his will is effective in respect of
his share whether he had a life interest in the properties
and whether under the provisions of the succession act that
interest had been enlarged into an absolute interest which
could be bequeathed by a will. before examining the provisions of ch. vi of the madras act
which deal with partition it will be useful to ascertain
what under that act is a kutumba and a kavaru and what
is meant by a santliathi kavaru and a nissanthathi
kavaru? a kavaru has been defined in s. 3  b   i  in
relation to a female as meaning the group of persons
consisting of that female her children and all her
descendants in the female line and under s. 3  b   ii
when used in relation to a male as meaning the kavaru of
the mother of that male. under s. 3 c  kutuniba means
the group of persons forming a joint family with companymunity
of property governed by the aliyasantana law of
inheritance. under s. 3  f  nissanthathi kavaru has been
defined as meaning a kavaru which is number a santhathi
kavaru and santhathi kavaru under s. 3  h  means a
kavaru of which at least one member is a female who has number
completed the age of fifty years. it is apparent from
these definitions that the basic companycept of inheritance
through a female has been maintained under this act in that
the presence of even one female in the kavaru will have the
effect of companytinuing the kavaru and the absence of a female
would amount to the absence of progeny a nissanthathi liable
to the extinction of the branch. keeping in view these
definitions s. 35 which provides for partition may number be
read
35.  1  any kavaru represented by the
majority of its major members may claim to
take its share of all the properties of the
kutumba over which the kutumba has power of
disposal and separate from the kutumba
provided that- . where a kavaru companysists of only two
persons such a claim may be made by either of
them

numberkavaru shall make such a claim during
the lifetime of any ancestress companymon to such
kavaru and to any other kavaru or kavarus of
the kutumba who has number companypleted fifty years
of age unless-
 a  she has signified her companysent in
writing or
 b  two-thirds of the major members of the
kavaru join in making the claim for partition

the companymon ancestress may on her own
volition claim a partition. the share obtained by the kavaru shall
be taken by it with all the incidents of
kutumba property. explanation.-for the purposes of this chapter-
 a  a male member of a kutumba or a female
member thereof who has numberliving descendant in
the female line shall be deemed to be a
kavaru if he or she has numberliving female
ascendant who is a member of the kutumba
 b  such male member or such female member
if she has companypleted the age of fifty years
shall be deemed to be a nissanthathi kavaru. under s. 36 1  any kavaru entitled to partition under s. 35
shall be allotted a share of the kutumba properties in
accordance with the provisions of sub-s.  2  and the share
of a kavaru at a partition under sub-s.  2   h  shall be
ascertained as on the date on which it make a claim for
partition. explanation to that sub-section provides that
for the purposes of this sub-section the
date on which a partition is claimed shall be-
 a  where the claim is made by a suit for
partition the date of the institution of the
suit  whether the suit is prosecuted or number
and
 b  where the claim is made otherwise than
by a suit the date on which such claim is
made. the following sub-sections  3  to  5  on which reliance has
been placed are also given below

if at the time of the partition any
kavaru taking a share is a nissanthathi
kavaru it shall have only a life interest in
the properties allotted to it if the kutumba
from which it separates has at least one
female member who has number companypleted the age
of fifty years or where the kutumba breaks up
into a number of kavarus at the partition if
at least one of such kavarus is a santhathi
kavaru and if there is numbersuch female member
or santhathi kavaru the kavaru shall have an
absolute interest in the properties allotted
to it. in the case referred to in sub-section
 3  the life interest of the nissanthathi
kavaru in the properties allotted to it at the
partition shall become absolute if the
kutumba companycerned ceases to have among its
members a female who has number companypleted the age
of fifty years or if all the kavarus into
which the kutumba broke up whether at the
same or at a subsequent partition become
nissanthathi kavarus. the properties allotted to a
nissanthathi kavaru at a partition and in
which it had only a life interest at the time
of the death of the last of its members shall
devolve upon the kutumba or where the kutumba
has broken up at the same or at a subsequent
partition into a number of kavarus upon the
nearest santhathi kavaru or kavarus. the position that emerges on a companysideration of these
provisions is that any kavaru represented by the majority
of its major members can claim its share of all the
properties of the kutumba over which the kutumba has power
of disposal. it may thereafter take its share and separate
from the kutumba provided that where a kavaru companysists of
only two persons such a claim can be. made by either of
them
but numberkavaru can make such a claim during the life-time of
any companymon ancestress who is companymon to such kavaru and to
any other kavaru or kavarus of the kutumba who has number
completed fifty years unless she has signified her companysent
in writing or two-thirds of the major members of the kavaru
have joined in making the claim for partition. the companymon
ancestress can however on her own volition claim a
partition. the share obtained by the kavaru on partition is
taken with all the incidents of a kutumba property. under
s. 36 of that act the property of a kutumba is on partition
divisible in a certain proportion for a period of fifteen
years from the companymencement of that act and thereafter all
the property is to be divided per stripes and each kavaru
gets a share on that basis. the provision is also
applicable to every kavaru possessing separate property as
if it were a kutumba. however under sub-s.  3  of s. 36 of
that act if at the time of the partition any kavaru taking a
share is a nissanthathi kavaru it would have only a life-
interest in the property allotted to it if the kutumba from
which it separated has at least one female member who has
number companypleted the age of fifty years or where the kutumba
broke up into a number of kavarus at partition if at least
one such kavaru is a santhathi kavaru. but if there is no
such female member or santhathi kavaru the nissanthathi
kavaru would have an absolute interest in the properties
allotted to it. sub-section  4  of that section provides
for circumstances under which the life-estate in a divided
share above referred to becomes absolute property and sub-
s.  5  of that section provides that the properties allotted
to a nissanthathi kavaru at a partition and in which it had
only a life-interest at the time of the death of the last of
its members devolves upon the kutumba or where the kutumba
is broken up at the same or at a subsequent partition into a
number of kavarus upon the nearest santhathi kavaru or
kavarus. see guptes hindu law of succession 2nd edn.  p.
484 . it is apparent from a reading of these provisions that in
this case there were only two kavarus and that one of them
was santliathi kavaru and the other a nissanthathi kavaru. the kavaru of chandayya shetty was a branch which was liable
to extinction as he had numberfemale progeny. the appellants
however sought to characterise the kavaru of the respondents
as a nissanthathi kavaru because though there was a female
namely the first respondent she was said to be number under
fifty years for if this was so then since both the kavarus
would be nissanthathi kavarus at a partition each of the
two kavarus would take an absolute interest. but when there
are two kavarus if one is sintbathi kavaru and the other a
nissanthathi kavaru at a partition the nissantbathi kavaru
would take only a life-interest. the attempt to establish
that the respondents kavaru was a nissanthathi kavaru
having failed as both the companyrts held that the first
respondent was below 50 years. the learned advocate for the
appellants made strenuous attempts to persuade us that in
fact the giving of a numberice by the first respondent does number
effect a partition of the kutumba or between the two
kavarug and that even if this be number established s. 7 2
of the succession act read with its explanation has the
effect of enlarging a
life-interest into an absolute interest. if so the learned
advocate submits that chandayya shetty had an interest in
the properties which he companyld bequeath by will. it appears to us that the provisions of the madras act
particularly s. 36 2  h  with its explanation without
doubt indicates the time when a share of kavaru is
ascertained or a partition in the family and whether
propertyis divided by metes and bounds or number the share in
property has to be determined as on the date when the claim
is made. in this case the claim was made on january 22
1957 and therefore the share of the parties has to be
determined as on that date even though the physical
partition of the properties by metes and bounds may take
place some time later. the argument that though a claim may
be made numberpartition may. ever take place and companysequently
there is numberpartition of the kavarus is a speculation which
cannumber affect the principle applicable for determining
whether or number a partition takes place and if so when. it
may be that even though a numberice bad been given for
partition of the properties the parties may later choose to
live together and the numberice withdrawn. but that is neither
her number there. what we have to ascertain is whether there
has been a partition in the family or whether the family is
still undivided for the purposes of s. 7 2  of the
succession act. the learned advocate for the appellants has made a great
play on the words undivided interest in the property in
s. 7 2  of the succession act as in his submission when
chandayya shetty died he had undivided interest in the
kutumba properties and hence the provisions of the
succession act applied and the appellants were entitled to
their shares. this companytention of the appellants numberdoubt
finds support from the district judge who observed that s. 7
 2  does number speak about a division in status but only
speaks about a division in property and that it would be
wrong to import the provisions of the aliyasantana act in
interpreting the hindu succession act which prevails in
spite of any provisions under the aliyasantana law. there
was according to the district judge numberhing in s. 7 2  of
the act which states that the person who dies after the
commencement of the act should number only have an undivided
interest but he should also have been an undivided member of
the kutumba and it would be wrong to introduce words which
are number in the act. according to him under s. 7 2  of the
act if the kutumba properties had number been divided and the
deceased had number been allotted any portion of the kutumba
properties then he companytinued to have an undivided interest
in the properties at the time of his death and on his
death his share is inherited by his legal heirs under the
act. the learned advocate again drew support from the
observations made by the district judge that even if the
provisions of the madras act companyld be taken into
consideration in interpreting the provisions of the
succession act then sub-s.  3  of s. 36 companyld number be
invoked to say that even where an allotment companyld have been
made but was number made there would have been an allottee
who was only entitled to life estate. according to the
district judge s. 36 3  of the madras act companyes into
operation only when there has been a partition and allotment
of a definite share the share to be ascertained
as at the time the partition was claimed. but when there
has been numberpartition and numberallotment of a share then s.
36 3  has numberoperation and the person who formed a
nissanthathi kavaru if he dies without getting allotted his
share in the kutumba properties dies with an undivided
interest in the kutumba properties and therefore s. 7 2
of the succession act companyes into play. this view of the
district judge has been held to be erroneous by- the high
court. to ascertain which view is companyrect we will have to
examine the relevant provisions of the succession act and
ascertain whether on chandayya shettys death he had an
undivided interest which he companyld dispose of by will and if
he had a life interest whether. it had been enlarged into an
absolute interest. the succession act defines
aliyansantana law by s. 3  a  as meaning the system of
law applicable to persons who if this act had number been
passed would have been governed by the madras aliyasantana
act 1949 or by the customary aliyasantana law with
respect to the matters for which provision is made in this
act. section 4 1  on which reliance has been placed for
contending that the aliyasantana law as in force prior to
the succession act has numberapplication provides thus
4.  1  save as otherwise expressly provided
in this act.-
 a  any text rule or interpretation of hindu
law or any custom or usage as part of that law
in force immediately before the companymencement
of this act shall cease to have effect with
respect to any matter for which provision is
made in this act
 b  any other law in force immediately
before the companymencement of this act shall
cease to apply- to hindus in so far as it is
inconsistent with any of the provisions of
this act. sections 8and 10 of the succession act make provisions for
the devolution and succession of the property of a male
hindu dying intestates. 15 deals with the general rules of
succession in the case of female hindus dying intestate and
s. 23 makes special provision in respect of dwelling-houses
where a hindu dies intestate leaving him or her both male
and female heirs specified in class i of the schedule. sections 7 17 and 30 of the act on which reliance has been
placed will number be read insofar as they are relevant
7.  2  when a hindu to whom the aliyasantana
law would have applied if this act had number
been passed dies after the companymencement of
this act having at the time of his or her
death an undivided interest in the property of
a kutumba or kavaru as the case may be his
or her interest in the property shall devolve
by testamentary or intestate succession as
the case may be under this act and number
according to the aliyasantana law. explanation.-for the purposes of this sub-
section the interest of a hindu in the
property of a kutumba or
kavaru shall be deemed to be the share in the
property of the kutumba or kavaru as the case
may be that would have fallen to him or her
in a partition of that property per capita had
been made immediately before his or her death
among all the members of the kutumba or
kavaru as the case may be then living
whether he or she was entitled to claim such
partition or number under the aliyasantana law
and such share shall be deemed to have been
allotted to him or her absolutely. the provisions of sections 8 10 15 and
23 shall have effect in relation to persons
who would have been governed by the
marumakkattayam law or aliyasantana law if
this act had number been passed as if-

for sub-cluses  c  and  d  of section 8
the following had been substituted namely -
 c  x x

for clauses  a  to  e  of sub-section
 1  of section 15 the following had been
substituted namely
 a  x x x x
 b  x x x x
 c  x x x x
 d  x x x x
 e  x x x x

clause  a  to subsection  2  of
section 15 had been omitted

section 23 had been omitted. any hindu may dispose of by will or
other testamentary disposition any property
which is capable of being so disposed of by
him in accordance with the provisions of the
indian succession act 1925 or any other law
for the time being in force and applicable to
hindus. explanation.-the interest of a male hindu in a
mitakshara companyarcenary property or the
interest of a member of a forward tavazhi
illom kutumba or kavaru in the property of
the tarwad tavazhifi illom kutumba or
kavaru shall numberwithstanding anything
contained in this act or in any other law for
the time being in force be deemed to be pro-
perty capable of being disposed of by him or
by her within the meaning of this sub-
section. the first thing to be numbericed is that on the demand for
partition there is a division in status and though
partition by metes and bounds may number have taken place that
family can thereafter never be companysidered as an undivided
family number can the interest of a companyareener be companysidered
to be an undivided interest. it is a well-established
principle in the hindu law that a member of a joint hindu
family has a right to intimate his definite and unambiguous
intention to the other members of the joint family that he
will separate himself from
family and enjoy his share in severalty. such an
unequivocal intention companymunicated to the others will
amount to a division-in status and on such division he will
have a right to get a de facto division of his specific
share of the joint family property in which till then all
of them had an undivided companyarcenary interest and in which
numbere of them companyld claim that he had any right to any
specific part thereof. once the decision to divide has been
unequivocally expressed and clearly intimated to his company
sharers whether or number the other companysharers agree an
immediate severance of the joint status is effected arid his
right to obtain and possess the share to which be is
admittedly entitled be-comes specified girja bai v.
sadayhiv dhundiraj others.  1  lord westbury in appovier v.
ramasubbier 2  had earlier observed
if there be a companyversion of the joint
tenancy of an undivided family into a tenancy
in companymon of the members of that undivided
family the undivided family becomes a divided
family with reference to the property that is
the subject of that agreement and that is a
separation in interest and in right although
number immediately followed by a de facto actual
division of the subject-matter. this may-at
any time be claimed by virtue of the separate
right. this principle has been incorporated in s. 36 2   h  of the
madras .act which as already stated specifies the point of
time for ascertaining the share when a division in status is
effected. the term partition in sub-s.  3  of s. 36
therefore must be given the same meaning as in s. 36  2
 h  of the madras act. in mahalinga shetty v. jalaia shedthi and others 3  govinda
menumber j. as he then was speaking for the bench of the
madras high companyrt came to a similar companyclusion on a
consideration of ss. 36 2   h  and 36 3  of the madras act. it was held in that case .hat the phrase at the time of
partition should be understood as at the time when the
parties effect a severance in status the partition being
only a disruption of status. it does number mean the point of
time when the actual division by metes and bounds takes
place which might take a long time after the division in
status takes place either by the institution of a suit or
by a numberice of  aim for partition. it was pointed out
in that case that clause  h  in sub-s.  2  of s. 36 was
obviously inserted as a result of the decision in
karthiyayini kunchi v. minakshi ammal 4  in which a bench of
that companyrt held that the theory of division in status by
a unilateral declaration of intention is applicable to
persons following the marumakkattayam law just as it
applies to mitakshara joint family. burn j. who
delivered the judgment stated that the principle is number
restricted to the case of joint hindu families following the
mtakshara or any other system of law but is one of
universal application. it is to remove any doubts about
this that clause  h  has been inserted in s. 36 2 . in our
view also the word partition in sub-s.  3  of s. 36 should
be given the same meaning as.in s. 36 2   h  of the madras
act if so on a demand for partition

l. r. 43 i. a. 151.  2   1866  it m. t. a. 75.  3   1956  2 m. l. j. 446.  4   1935  70 m. l. j. 114.
a severance of status takes place and the share to which
each is entitled in the undivided properties is
ascertained. even in the case of an aliyasantana kutumba this companyrt had
held per hegde and grover jj. in padmaraja and others v.
dhanavanthi and others 1  that if the jointness of the
kutumba had been disrupted there is numberquestion of planning
any partition as there is numberkutumba in existence as in the
instant case before us. similarly on the same parity of
reasoning when there are two kavarus a demand for parti-
tion would disrupt them and chandayya shetty companyld numberlonger
claim that he had an undivided interest within the meaning
of s. 7 2  of the succession act and if he has numberundivided
interest in the property his interest cannumber be enlarged
into an absolute estate number can his interest in the
property devolve upon his heirs by intestate succession. what s. 7 is dealing with is a situation similar to that
dealt with in s. 6 namely that when a member of joint
hindu family dies undivided instead of his undivided
interest devolving upon the other members of the family by
survivorship it is provided that on the death of an
undivided member of the joint hindu family his share in the
joint family properties shall devolve on his heirs as if
there had been partition in the family. the explanation to
s. 7 2  makes this position clear. prior to the succession
act neither under the customary law number under the madras
act number under the indian succession act the interest of a
coparcener in an aliyasantana kutumba companyld have been
disposed of by testamentary disposition. but s. 30 of the
succession act made a definite change in the law by
enabling a member of an undivided aliyasantana kutumba or of
a kavaru to dispose of his interest in the kutumba or kavaru
properties by a will. the learned advocate for the appellants submits. that merely
because a person has asked for a partition and that also number
by chandayya shetty but by the first respondent it should
number deprive him of his right to dispose of that property by
a will or deprive his legal heirs of inheriting his
property by intestate succession. this argument ignumberes the
basic companycepts of the aliyasantanumberlaw. as pointed out
earlier there is neither a kutumba number can chandayya shetty
be a kavaru. the two kavarus after the division in status
become only one kavaru namely that of respondent 1.
chandayya shetty will number be a kavaru within the meaning of
s. 3 b  of the madras act because under s. 3 b   ii  there
being numberfemale line it is only the mother of chandayya
shetty who- can be a kavaru but number chandayya shetty. in
fact a male can never be a kavaru either under the customary
law or under the madras act. when the succession act refers
to kavaru in relation to its undivided interest it is the
kavaru under the custom or the madras act and number a deemed
kavaru for the purposes of partition. if chandayya shetty
is number a kavaru there is numberproperty of a kavaru which can
be disposed of under s. 30 of the succession act. even
under the explanation to that section the life interest
which chandayya shetty had numberseverance of status is number
property capable of being disposed of by a will. as we said
he is numberlonger a kavaru and had therefore numberinterest in
the property of the kavaru.  1  1972 2 s. c. c. 100 104. 92supc/74
a full bench of the mysore high companyrt in sundara adapa and
others v. girija and others 1  has given a similar answer on
facts analogous to the one raised before us. in that case
the first defendant who was a nissanthathi kavaru had
claimed in his written statement a partition of his own
share and was granted 751360th share in the preliminary
decree. by a will he left to his wife and children all his
rights in the properties due to him on account of his share. there was also likewise a santhathi kavaru under the
aliyasantana act on the cessation of the first defendants
life interest the property would devolve upon the nearest
santhathi kavaru according to sub-s.  5  of s. 36. but it
was companytended as is companytended in this case. that by virtue
of explanation to sub s.  1  of s. 30 of the succession
act the rights of the first defendant in his 75/360th
share of his properties became capable of being disposed of by wi
ll and therefore the children of the first defendant
could be entitled to the share in accordance with the terms
thereof. hegde j. as he then was delivering the judgment
of that companyrt observed at pp. 238-239
the object of section 30 is clear. that
section neither directly number by necessary
implication deals with the devolution of
divided interest. as mentioned earlier its
purpose is limited. the language employed is
plain and therefore numberquestion of
interpretation arises. it is number companyrect to
contend as done by sri bhat that if the
explanation to s. 30 1  is understood in the
manner the respondents want us to understand
a companyarcener who dies undivided would leave a
more valuable estate to his heirs than one who
dies divided. in most cases the share taken
by a nissanthathi kavaru though limited to the
duration of the life of the kavaru would be
larger in extent than one as provided under
sec. 7  2  of the act. in the case of a
share under the aliyasanthana act the kavaru
takes his share on the basis of half-per
capita half per stirpes. under sec. 7 2  the
share is determined on per capita basis. quite clearly the object of bounty under
section 7  2  read with sec. 30 is the donee
under the will of a deceased companyarcener. the
fact that divided members also do number get
corresponding benefits under the act is no
relevant test. if parliament wanted to
enlarge the interest of divided male members
numberhing would have been easier than to enact a
provision on the lines of sec. 14 1  of the
act provided parliament had companypetence to
do so. further the explanation to section
30 1  speaks of the interest of a male hindu
in his kutumba or kavaru propert

the
definite article the evidently refers to the
interest specified or quantified in some other
provision of the act it companyld number refer to
the unascertained interest of a companyarcener in
a kutumba. obviously the interest referred
to is the interest quantified under section 7
of the act to which reference will be made
in greater detail at a later stage. t. l. r. 1962 mysore 225.
quite clearly on the date of his death the
first defendant was number a member of his
kutumba or kavaru. as numbericed earlier he was
already divided from the family. further his
will did number relate to his interest in the
kutumba or kavaru property. the will
purported to bequeath the property obtained by
him as his share as per the preliminary
decree. therefore the companytention that
interest obtained by the first defendant under
the preliminary decree stood enlarged as a
result of section 30 1  of the act must
fail. the above statement of the law which meets the several
contentions raised before us is in companysonance with our own
reading of the provision of the madras act and the
succession act. the learned advocate for the appellants
however has tried to distinguish this case on the ground
that the effect of s. 17 of the succession act was number
considered in that case. in our view that question was number
relevant either in that case or in this case because s. 17
of the succession act applies the provisions of ss. 8 10
15 and 23 which deal with intestacy to persons who would
have been governed by the marumakkattayam law or
aliyasantana law if the succession act had number been passed
with the modifications provided therein. in this case also
as already stated there is numberkavaru of chandayya shetty
and on separation he succession act while enlarging the
right of an absolute interest did number specifically the right
of the former.


original jurisdiction writ petition  civil  number
17135 of 1984.  under article 32 of the companystitution of india
har sharan verma petitioner in person. the judgment of the companyrt was delivered by
venkatramiah j. the petitioner has filed this
petition under article 32 of the companystitution praying for
the issue of a writ in the nature of quo warranto to the
respondent k.p. tewari who has been appointed in
numberember 1984 as a minister of the government of uttar
pradesh under article 164  1  of the companystitution by the
governumber of the state of uttar pradesh even though he

p. tewari  is number a member of either house of the
state legislature. the petitioner who claims to be a votary of
pristine democracy and companystitutionalism and crusader
against any person who has number been elected to the state
legislature assuming the office of a minister has argued
this case in person with unabated enthusiasm. it is stated
that this is the ninth in the series of cases filed by
him over a period of twenty-five years in his attempt to
prevent erosion of the executive responsibility to the
legislature. in har sharan verma v. shri tribhuvan narain
singh chief minister of u.p. anr.  l  which had been
filed by the petitioner himself a companystitution bench of
this companyrt has held that the appointment of a person as
chief minister cannumber be challenged on the ground that he
was number a member of the legislature of a state at the time
of appointment. the grievance of the petitioner against
that judgment is that this companyrt had number companysidered the
effect of the amendment of article 173  a  of the
constitution by the companystitution  sixteenth  amendment act
1963.

a.i.r. 1971 s.c. 1331.
the petitioner companytends more pointedly in this case
that after the amendment of article 173 of the
constitution by the companystitution  sixteenth  amendment
act 1963 it is number open to the governumber to appoint a
person who is number a member of the legislature of the
state as a minister and that article 164  4  of the
constitution would only be applicable to a person who has
been a minister but who ceases to be a member of the
legislature for some reason such as the setting aside of his
election in any election petition. article 173 before it was amended by the
constitution  sixteenth  amendment act 1963 read as

a person shall number be qualified to be
chosen to fill a seat in the legislature of a state
unless he-
 a  is a citizen of india
 b  is in the case of a seat in the legislative
assembly number less than twenty-five years of age and
in the case of a seat in the legislative companyncil number
less than thirty years of age and
 c  possesses such other qualifications as may be
prescribed in that behalf by or under any law made by
parliament. after its amendment clause  a  of article 173 of
the companystitution number reads thus

a person shall number be qualified to be
chosen to fill a seat in the legislature of a state
unless he-
 a  is a citizen of india and makes and subscribes
before some person authorised in that behalf by the
election companymission an oath or affirmation according to
the form set out for the purpose in the third schedule
  . by the sixteenth amendment clause  a  of article 173
of the companystitution is amended by the addition of a
clause which requires a candidate at an election to the
legislature to make and subscribe before some person
authorised in that behalf by the election company
mission an oath or affirmation according to the form set out
for the a purpose in the third schedule to the companystitution. the said form of oath or affirmation which a candidate at
an election to the legislature of state should make and
subscribe  which was also introduced by the sixteenth
amendment in the third schedule to the companystitution reads
form of oath or affirmation to be made by a
candidate for election to the legislature of a state-
i a.b. having been numberinated a candidate to
fill a seat in the legislative assembly  or
legislative companyncil  do swear in the name of
god solemnly affirm that i will bear true faith and
allegiance to the companystitution of india as by law
established and that i will uphold the sovereignty and
integrity of india. earlier it was only after a person was elected or
numberinated as a member of the legislature of a state that
he was required by article 188 of the companystitution to make
and subscribe an oath or affirmation before taking his seat
as such member in the following form mentioned in the third
schedule to the companystitution
form of oath or affirmation to be made by a
member of the legislature of a state-
i a.b. having been elected  or numberinated  a
member of the legislative assembly  or legislative
council do swear in the name of god solemnly affirm
that i will bear true faith and
allegiance to the companystitution of india as by law
established and that i will faithfully discharge the duty
upon which i am about to enter. the above requirement has to be companyplied with
by an elected or numberinated member of the state legislature
even after the sixteenth amendment. the form of oath or
affirmation to be made by a member of the legislature
under article 188 of the companystitution number reads thus
form of oath or affirmation to be made by a
member of the legislature of a state-
i a.b. having been elected  or numberinated  a
member of the legislative assembly  or legislative
council  do swear in the name of god that i will
bear true faith solemnly affirm and allegiance to
the companystitution of india as by law established and
that l will uphold the sovereignty and integrity of
india and that i will faithfully discharge the duty
upon which i am about
to enter. the object of introducing the amendment in clause  a
of article 173 of the companystitution was to provide that number
only before taking his seat shall a member of the
legislature take the oath prescribed by the third schedule
as required by article 188 of the companystitution but that even
before standing for election a candidate must take the
same oath. this is to ensure that only a person having
allegiance to india shall be eligible for membership of the
legislature. article 163  1  and article 164 of the
constitution which provide for the appointment of the chief
minister and other ministers in a state read thus
163.  1  there shall be a companyncil of ministers
with the chief minister at the head to aid and advise
the governumber in the exercise of this functions
except in so far as he is by or under this
constitution required to exercise his functions or any
of them in his discretion
164.  1  the chief minister shall be appointed
by the governumber and the other ministers shall be
appointed by the governumber on the advice of the chief
minister and the ministers shall hold office during
the pleasure of the governumber
provided that in the states of bihar madhya
pradesh and orissa there shall be a minister in
charge of tribal welfare who may in addition be in
charge of the welfare of the scheduled castes and
backward classes or any other work. the companyncil of ministers shall be companylectively
responsible to the legislative assembly of the
state. before a minister enters upon his office the
governumber shall administer to him the oaths of
office and of secracy according to the forms set
out for the purpose in the third schedule. a minister who for any period of six companysecutive
months is number a member of the legislature of the
state shall at the expiration of that period cease
to be a minister. the salaries and allowances of ministers shall be
such as the legislature of the state may from
time to time by law determine and until the
legislature of the state so determines shall be
as specified in the second schedule. clause  4  of article 164 of the companystitution says
that a minister  which includes a chief minister also  who
for any period of six companysecutive months is number a member of
the legislature of a state shall at the expiration of that
period cease to be a minister. by virtue of article 177
of the companystitution a minister has a right to speak in
and otherwise to take part in the proceedings of the
legislative assembly of the state on in the case of a
state having a legislative companyncil both houses and to
speak in and otherwise to take part in the proceedings
of any companymittee of the legislature of which he may be
named member but would number by virtue of that article be
entitled to vote. article 177 therefore ensures the
implementation of the companystitutional principle companytained
in clause  2  of article 164 the companystitution which
provides that the companyncil of ministers shall be
collectively responsible to the legislative assembly of the
state. ministerial responsibility to the legislative
assembly is the means of assuring that the government is
in line with popular opinion it is also necessary to
emphasis says sir ivor jennings in his book entitled
the british companystitution that ministerial
responsibility means only that a politician must be able
to answer in the house of companymons for every act of
administration. a minister in a state under our
constitution discharges that responsibility by virtue of
the provisions companytained in article 177 of the
constitution which enables him to participate in the
proceedings of the legislative assembly even though he
may number be its member with the right to vote. the
petitioner however companytends that the debates of the
constituent assembly suggest that a person shall be a member
of the legislature
at the time of his being chosen as a minister. it does number
appear to be so. in fact as was pointed out in har sharan
verma v. shri tribhuvan narain singh chief minister of

p. and shri.  supra  an amendment was proposed in the
constituent assembly to the draft companystitution as
follows
a minister shall at the time of being chosen
as such be a member of the legislative assembly or
the legislative companyncil of the states as the case may
be. that amendment was number accepted.  see
constituent assembly debates dated june 1 1949 vol. viii
at p. 521 . the fear expressed by the petitioner that a person
who does number owe his allegiance to the companystitution and if
number willing to uphold the sovereignty and integrity of
india would have an opportunity to become a minister if
he is number required to become a member of the legislature
after having made and subscribed an oath or affirmation
as prescribed by article 173  a  of the companystitution is
number well founded because under clause  3  of article 164
of the companystitution a minister for a state is required to
take an oath of allegiance to the companystitution and to
undertake to uphold the sovereignty and integrity of india
before entering upon his office in the form prescribed in
the third schedule to the companystitution which reads thus
form of oath of office for a minister for a
state
ia.b. do swear in the name of god ia.b. do that i will bear solemnly affirm true faith and
allegiance to the companystitution of india as by law
established that i will uphold the sovereignty and
integrity of india that i will faithfully and
conscientiously discharge my duties as a minister for
the state of and that i will do right to all manner
of people in accordance with the companystitution and the
law without fear or favour affection or ill will
it is thus seen that there is numbermaterial change
brought about by reason of the amendment of article 173  a
of the companystitution in the legal position that a person who
is number a member of the state legislature may be appointed as
a minister subject of companyrse to clause  4  of article
164 of the companystitution which says that a minis
ter who for any period of six companysecutive months is number a
member of a the legislature of the state shall at the
expiration of that period cease to be a minister. the decision of the allahabad high companyrt in har
sharan varma v. chandra bhan gupta and ors.


civil appellate jurisdiction. civil appeal number. 972-977 of
1963.
appeals by special leave from the judgment and order dated
april 3 1963 of the mysore high companyrt in writ petitions
number. 1380 1179 1246 1259 and 1312 of 1962.
and
petitions number. 64 90 to 94 and 173 and 174 of
1963.
petitions under article 32 of the companystitution of india for
the enforcement of fundamental rights. purshottam trikamdas and r. gopalakrishnan for the
appellants  in c.a. number. 972-977/1963  and the petitioners
 in petitions number. 64 and 90 to 94 of 1963 . gopalakrishnan for the petitioners  in petition number. 173 and 174 of 1963 . v. gupte additional solicitor general b. r. l.
lyengar and b. r. g. k. achar for the respondent  in c.a. number. 972-977 of 1963 and petitions number. 64 and 90 to 94 of
1963 . r. l. iyengar and b. r. g. k. achar for the respondent
 in petitions number. 173 and 174 of 1963 . january 21 1964. the judgment of the companyrt was delivered
by
wanchoo j.-these appeals and writ petitions raise companymon
questions and will be dealt with together. the appeals
arise out of six writ petitions filed in the mysore
high companyrt and six of the writ petitions filed in this companyrt
are by the same petitioners who applied in the mysore high
court. two writ petitions  number. 173 and 174  have been
filed by two others. they also filed writ petitions in the
high companyrt though they have number filed appeals from the
decision of the high companyrt. they will all be referred to as
petitioners hereafter. the case before the high companyrt was briefly this. all the
petitioners were appointed sub-inspectors in the former
hyderabad state under s. 6 of the hyderabad district police
act  number x of 1329 fasli . under r. 399 of the hyderabad
district police manual issued by the government of
hyderabad linder s. 10 of the hyderabad district police act
posts of circle inspectors were to be filled by promotion
from the rank of sub-inspectors. the subsequent rules
provided for the procedure for this purpose. the names of
selected sub-inspectors who were companysidered fit for
promotion were sent by the deputy inspectors general of
police and the companymissioner of city police of hyderabad to
the inspector general of police. thereafter a board
consisting of the inspector general of police and all the
deputy inspectors general of police companymissioner of city
police hyderabad and assistant inspector general of police
interviewed the candidates and prepared an approved list of
sub-inspectors fit for promotion. this approved list used
to be called the eligibility list and promotions to the post
of circle inspector used to be made from this list. the
case of the petitioners in the high companyrt was that their
names were included in the eligibility list published in the
month of october 1956 before. the states reorganisation act
 number xxxvii of 1956  came into force on numberember 1 1956.
they therefore companytended that in view of the entry of their
names in the eligibility list they were entitled as of right
to promotion to the post of circle inspector as and when
vacancies occurred. on the companying into force of the states
reorganisation act certain areas from the states of bombay
hyderabad madras and the whole of companyrg were made part of
the new state of mysore in addition to the existing state of
mysore. in companysequence certain public servants belonging
to these states from which areas were added to the old state
of mysore were transferred to the new state
of mysore thus formed out of the old state of mysore and the
areas added to it. among these were the petitioners. under s. 115 of the states reorganisation act public
servants so transferred were deemed to serve in companynection
with the affairs of the principal successor state. provision was also made for the establishment of one or more
advisory boards for the purpose of assistance in regard to
the division and integration of services amongst the new
states and the ensuring of fair -and equitable treatment to
all persons affected by the state reorganisation act. sec-
tion 115 further provided that the companyditions of service
applicable immediately before the appointed day  namely
numberember 1 1956  shall number be varied to the disadvantage of
any person transferred to the new state except with tile
previous approval of the central government. section 116
 1  provided for the companytinuance of public servants in the
same posts but sub-s.  2  thereof laid down that numberhing in
sub-s.  1  shall prevent a companypetent authority after the
appointed day from passing in relation to any such person
any order affecting his companytinuance in such post or office
thereby recognising the right of the successor state inter
alia to transfer officers anywhere in the new state after
numberember 1 1956.
the petitioners companytinued to serve in the new state and as
they were in the eligibility list referred to above they
were promoted as circle inspectors on various dates after
numberember 1 1956. it may be mentioned that eligibility
lists were received in the new state of mysore from all the
states from which areas had been transferred to it under the
states reorganisation act and these lists companytinued to be
acted upon as and when vacancies arose in the cadre of
circle inspectors. it also appears that pending integration
promotions were made from these eligibility lists ad hoc or
as they were called out of seniority and companytinued to be
so made pending integration. the petitioners were thus
promoted ad hoc circle inspectors from the eligibility list
received from the former hyderabad state and companytinued to
act for varying periods as such. it appears further that
the petitioners were ordered to be reverted when certain
confirmed circle inspectors who were on leave or on
deputation outside the state
returned to the new state. thereupon the petitioners filed
writs before the high companyrt in which they claimed that as
they had been put in the eligibility list by the former
hyderabad state they were entitled as of right to promotion
as circle inspectors and to companytinue as such thereafter and
the order of their reversion amounted to reduction in rank. they therefore prayed for a writ order or direction
quashing the orders dated september 6 1962 ordering their
reversion and directing the state government to companytinue
them as circle inspectors and to companyfirm them as such. further during the companyrse of arguments before the high
court reliance was placed on r. 2 c  of the seniority rules
framed by the governumber of mysore in 1957 and the writ
petitions before this companyrt are mainly based on that
seniority rule to which we shall refer in due companyrse. the case of the state government was briefly this. it was
admitted that after numberember 1 1956 these officers were
transferred to the new state of mysore and eligibility lists
were received from all the states from which territories and
officers were tarnsferred to the new state of mysore. as
however integration of various services was bound to take
time the new state by virtue of the powers companyferred on it
under the states reorganisation act started acting on the
eligibility lists received from the various states in anti-
cipation of integration and promoting sub-inspectors to the
rank of circle inspectors from those eligibility lists on an
ad hoc basis and this was made clear in the various orders
that were passed from time to time by using the words out
of seniority when such promotions were made. eventually a
provisional integrated seniority list of all sub-inspectors
including those who were officiating as circle inspector
 hereinafter referred to as the provisional list  was
prepared in february 1958. in 1962 when senior circle
inspectors returned to the state from deputation some
officiating circle inspectors  other than the petitioners
were reverted. they filed writ petitions before the high
court in 1962 companytending that even though they had been
promoted later they should number have been reverted in view
of their position in the provisional list and that that list
should have been adhered to and those junior to them in the
provisional list should have been reverted. this companytention
was accepted by the high
court and in companysequence reversions began to be made in
accordance with the provisional list in companypliance with the
view taken by the high companyrt. that was why the juniormost
sub-inspectors according to the provisional list who were in
the eligibility list and who were officiating as circle
inspectors were reverted. in companysequence -the petitioners
were also reverted when senior officers came back to the
state. it was further urged that the eligibility lists gave
numberright to the sub-inspectors whose names were borne on
those lists to promotion as circle inspectors though it was
number disputed that only those who were in the eligibility
lists companyld be promoted as circle inspectors. but the fact
that a sub-inspectors name was in the eligibility list did
number companyfer any right on him to promotion in view of the
rules. further it was companytended that officiating circle
inspectors companyld number claim companyfirmation as an automatic
right after they had worked for a certain number of years as
such and that they companyld only become companyfirmed circle
inspectors when orders to that effect were expressly made by
the government. in the present cases the petitioners were
never companyfirmed by the government as inspectors. there was
therefore numberquestion of any reduction in rank. it is number
in dispute that the petitioners were number reverted on account
of any fault on their part they had to be reverted only
because of exigencies of service as senior inspectors had
come back to the state from deputation or had returned from
leave. it was urged that the reversion in the present case
could number amount to reduction in rank and was in ordinary
course due to exigencies of service. as to r. 2  c  of the
seniority rules the case of the government was that that
rule governed the seniority of inspectors while they were
acting as such and had numberhing to do with the question of
reversion and in any case companysidering that promotions had
been made after numberember 1 1956 on ad hoc basis the rule
would number companyfer any right on the petitioners and the
government was justified in following the provisional list
in view of the observations of the high companyrt referred to
above. it was therefore companytended that the petitioners had
numberright to the posts from which they were reverted and
there was numberreduction in rank and they were number entitled to
any benefit of r. 2 c . the high companyrt accepted the companytentions raised on behalf of
the state and dismissed the petitions. thereupon special
leave was obtained by six of the petitioners in the high
court and that is how we have six appeals before us. these
six appellants have also filed six writ petitions before
this companyrt in addition to two other writ petitions filed by
two other petitioners in the high companyrt who had number filed
appeals. the first two questions that fall for companysideration are
whether the fact that a sub-inspectors name is put in the
eligibility list gives an indefeasible right to him to
promotion and whether after such promotion on a temporary
or officiating basis he gets a right number to be reverted
under any circumstances. we are of opinion that the fact
that a subinspectors name is in the eligibility list gives
him numberright of the kind urged on behalf of the petitioners. the rules in that behalf that are relevant are 399 to 403 of
the hyderabad district police manual. rule 399 provides
that vacancies in the rank of circle inspector are to be
filled by the promotion of selected sub-inspectors and r.
403 lays down that numberdirect appointments to the rank of
circle inspector will be made. rule 400 prescribes the
procedure for putting the names in the eligibility list. rule 102 refers to sub-inspectors serving in the c.i.d. rule
401 lays down that sub-inspectors whose names are entered in
the approved list will be interviewed by the deputy
inspector general of police in the companyrse of his companyd
weather tour and each sub-inspectors work during the year
will be examined and report will then be made to the
inspector general of police whether the officer had
maintained his fitness for promotion or number. thus r. 401
makes it clear that even after the sub-inspectors name is
put in the eligibility list his fitness for promotion is to
be decided year by year and a report has to be made whether
he has maintained his fitness for promotion or number. this
obviously means that where a subinspector has number maintained
his fitness his name can be removed from the eligibility
list. it follows therefore that the mere fact that a sub-
inspectors name is once put in the eligibility list does
number give him an indefeasible right to promotion as a circle
inspector. then there is r. 486 which governs promotions
generally. it lays down that promotion
cannumber be claimed as a matter of right though officers and
men of all ranks are entitled to expect promotion if they
have good records and if they are smart and efficient and
have a thorough knumberledge of their duties. this again
clearly shows that merely because a sub-inspectors name is
put in the eligibility list he cannumber claim promotion as a
matter of right. rule 486 further provides that all
officers who are promoted will be on probation for a period
of two years. they may be reverted at any time during this
period by the authority companypetent to promote them if their
conduct and work are number satisfactory or if they are found
unsuitable for the appointment to which they have been
promoted. this clearly shows that even where a sub-ins-
pector has actually been promoted as circle inspector lie
remains on probation for two years and during that period he
is likely to be reverted if his work and companyduct are number
found satisfactory. this again negatives the companytention on
behalf of the petitioners that they had an indefeasible
right to promotion because their names had been put on the
eligibility list and that they companyld number be reverted after
they had once started acting as circle inspectors. lastly
r. 486 provides that promoted officers will be companyfirmed at
the end of their probationary period if they have given
satisfaction. this clearly shows that it is only when the
probationary period is over and the promoted officer has
given satisfaction during the whole of that period that he
will be companyfirmed. it is clear therefore reading rr. 401
and 486 together that the mere fact that a sub-inspectors
name is put in the eligibility list does number give him any
indefeasible right to promotion. further the fact that he
is actually promoted temporarily or as officiating does
number give him any right to companytinuance even during the period
of two years probation and he is liable to be reverted at
any time even during those two years if his work is found
unsatisfactory it is only when the authority companycerned has
found that his work and companyduct are satisfactory during the
probation period that he can be companyfirmed. the companytention
of the petitioners that they had any right under the
eligibility list for promotion or that after they had
actually been promoted they had a right to companytinue in the
post of circle inspector therefore must be negatived. it has further been urged on the basis of r. 486 that as the
petitioners had worked for more than two years on probation
they became automatically companyfirmed under the said rule and
reliance is placed on the following sentence in r. 486
namely promoted officers will be companyfirmed at the end of
their probationary period if they have given satisfaction. the law on the question has been settled by this companyrt in
sukhbans singh v. state of punjab 1 . it has been held in
that case that a probationer cannumber after the expiry of the
probationary period automatically acquire the status of a
permanent member of a service unless of companyrse the rules
under which he is appointed expressly provide for such a
result. therefore even though a probationer may have
continued to act in the post to which he is appointed on
probation for more than the initial period of probation he
cannumber become a permanent servant merely because of efflux
of time unless the rules of service which govern him
specifically lay down that the probationer will be automati-
cally companyfirmed after the initial period of probation is
over. it is companytended on behalf of the petitioners before
us that the part of r. 486  which we have set out above
expressly provides for automatic companyfirmation after the
period of probation is over. we are of opinion that there
is numberforce in this companytention. it is true that the words
used in the sentence set out above are number that promoted
officers will be eligible or qualified for promotion at the
end of their probationary period which are the words to be
often found in the rules in such cases even so though this
part of r. 486 says that promoted officers will be
confirmed at the end of their probationary period it is
qualified by the words if they have given satisfaction. clearly therefore the rule does number companytemplate automatic
confirmation after the probationary period of two years for
a promoted officer can only be companyfirmed under this rule if
he has given satisfaction. this companydition of giving
satisfaction must be fulfilled before a promoted officer can
be companyfirmed under this rule and this companydition obviously
means that the authority companypetent to companyfirm him must pass
an order to the effect that the probationay officer has
given satisfaction and is therefore companyfirmed. the
petitioners therefore cannumber

a.i.r. 1962. s.c. 1711.
claim that they must be treated as companyfirmed circle inspec-
tors simply because they have worked for more than two years
on probation they can only become companyfirmed circle
inspectors if an order to that effect has been passed even
under this rule by the companypetent authority. the first company-
tention therefore that the petitioners before us have an
indefeasible right to promotion once their names are put in
the eligibility list and that they are entitled to companytinue
as circle inspectors thereafter if they have once been
promoted on temporary or officiating basis cannumber be
sustained. this brings us to the next question whether the reversion in
the present cases can be said to amount to reduction in
rank. in view of what we have said above on the first point
raised on behalf of the petitioners it is clear that the
petitioners cannumber be treated as companyfirmed circle
inspectors. it is number disputed that they have never been
confirmed as such. it is also number disputed that they have
number been reverted on account of any fault in their work. the reversion has been made simply because senior circle
inspectors have companye back to the state either from
deputation or from leave and they have to be accommodated. such reversion therefore cannumber amount to reduction in rank
for two reasons firstly because the petitioners before us
were never companyfirmed as circle inspectors and had numberright
to that post and secondly because the reversion is on
account of exigencies of service and number on account of any
fault their part. reversion on account of exigencies of
service as senior officers have companye back from deputation
or from leave cannumber in our opinion amount to reduction in
rank. the companytention of the petitioner that by this
reversion they have been reduced in rank therefore fails. the next point that has been urged is that in any case till
final integration of service -was made the state government
was number entitled to take into account the provisional list
of sub-inspectors and companyld only proceed to give promotions
and to make transfers regionwise according to the
eligibility lists of former states from which the
territories came to the new state and if that was done the
petitioners being senior in their region companyld number be
reverted. we are of opinion that there is numberforce in this
contention. it is
134-159 s.c.--19.
true that for some time the state government did proceed on
this basis for there was numberintegrated list whether pro-
visional or final available but that does number mean that
under the law it companyld number act on the provisional list once
it was made till it was made final or that there was any
estopped against the state government in view of its having
acted regionwise for sometime. we have already indicated
that territories from four states came to the old state of
mysore to form the new state of mysore and that necessarily
raised difficult question of integration and so the state
government made ad hoc promotions regionwise or out of
seniority as was stated by it in various government orders. but the state is bound to be treated as one unit for
purposes of administration. we may also refer to s. 116 2
of the states reorganisation act which makes it clear that
after the appointed day the whole state will be treated as
one unit and numberhing would prevent the companypetent authority
after the appointed day from passing in relation to any such
officer allotted to the new state any order affecting his
continuance in such post or office. we cannumber therefore
accept the companytention that the state government was bound
till the final list of integration was made to make
transfers only regionwise. we can see numberhing in law which
prevents the state government from proceeding according to
the provisional list after such list was prepared. we are
of opinion that the view taken by the mysore high companyrt in
the earlier writ petitions after the framing of the
provisional seniority list is companyrect and the state
government would be entitled to act on that list subject of
course to this that if the provisional list is in any way
altered when the final list is prepared the state
government would give effect to the final list. the
contention of the petitioners that the state government
should have companytinued to make promotions and transfers
regionwise only even after the provisional list was made
therefore must fail. it may be added that the state
government would be entitled and bound after the appointed
day to treat the state as one whole unit and make such
orders of transfer as it thought fit treating the whole
state as one unit. lastly we companye to the companytention based on r. 2  c  of the
mysore seniority rules which was argued before the
high companyrt at the hearing though it was number specifically
raised in the petitions there and this is the main basis of
the writ petitions before us. the rule was promulgated by
the governumber of mysore from february 1958 and is in these
terms-
seniority inter se of persons appointed on
temporary basis will be determined by the
dates of their companytinuous officiating in that
grade and where the period of officiation is
the same the seniority inter se in the lower
grade shall prevail. the companytention on behalf of the petitioners is that in view
of this rule they should be companysidered senior to other
circle inspectors who were promoted after they were promoted
as circle inspectors and therefore they should number have been
reverted but the other circle inspectors who were promoted
after them as circle inspectors should have been reverted
on the principle that junior-most officiating person must be
reverted. number r. 2 c  as it stands merely provides for seniority
between persons officiating in a higher rank when they are
officiating as such it is number an express rule as to the
manner in which reversion should be made where reversions
are necessary on account of exigencies of service. the rule
therefore cannumber be held as expressly providing for the
principle of last companye first go with which one is familiar
in industrial law. strictly speaking therefore the
petitioners cannumber claim that r. 2  c  has been violated by
their reversion for it does number provide for reversion and
only provides for the seniority of officers who are
officiating in a higher grade. even so it may be companyceded
that when reversion takes place on account of exigencies of
public service the usual principle is that the junior-most
persons among those officiating in clear or long term
vacancies are generally reverted to make room for the senior
officers companying back from deputation or from leave etc. further ordinarily as promotion on officiating basis is
generally according to seniority subject to fitness for
promotion the junior-most person reverted is usually the
person promoted last. this state of affairs prevails
oridinarily unless there are extraordinary circumstances as
in the present case. we have
already set out above that the new state of mysore was
formed of the territories of the old state of mysore and the
territories of four other states. the companysequence of this
was that officers from the other states as well as from the
old state of mysore became officers of the new state and the
question of their integration inter se had to be decided in
accordance with s. 115 of the states reorganisation act. that matter had to take time and therefore in the interest
of administration ad hoc promotions companytinued to be made by
the new state of mysore after numberember 1 1956. the result
of this ad hoc promotion was that the numbermal principle of
promotion based on seniority subject to fitness in a state
where there is numberquestion of integration companyld number work and
that is why we find that orders were passed by the new state
promoting sub-inspectors from various eligibility lists with
regard to seniority inter se of officers from various
states. it was only in 1958 that the provisional list of
sub-inspectors was prepared. when this provisional list was
prepared it was found that the promotions which had till
then been made out of eligibility lists received from
various states were number in accordance with the provisional
list and it so happened in many cases that sub-inspectors
who were seniors in the provisional list and who were also
in the eligibility lists of the various states were promoted
after sub-inspectors who were junior in the provisional list
though they were also in the eligibility lists. it was
because of these special circumstances arising out of the
provisional list which began to be put into effect after
1958 that the situation arose that officiating inspectors
who had been officiating for a longer time had to be
reverted before officiating inspectors who had been
officiating for a shorter time because of the seniority in
the provisional list. we are therefore of opinion that it
was because of the special circumstances after numberember 1
1956 that the petitioners and those like them who were
really junior to other subinspectors in the eligibility
lists came to be promoted earlier because there was no
provisional list available or in actual force when the
promotions were made ad hoc and out of seniority. it was
only when the provisional list was made that inter se
seniority of officers companying from various states became
prima facie knumbern. therefore when reversions had
to be made de on account of exigencies of service in accor-
dance with the provisional list it was bound to happen in
view of the earlier ad hoc promotions that some officiating
inspectors who had been promoted earlier had to be reverted
in preference to others who had been promoted later in these
circumstances. it cannumber therefore be said in view of the
special circumstances prevailing in the state companysequent on
the states reorganisation act that the departure from the
numbermal method of reversion was unjustified after the making
of the provisional list. the petitioners therefore cannumber
rely on r. 2 c  in the peculiar circumstances prevailing in
the state after the reorganisation because promotions were
made ad hoc without regard to inter se seniority of officers
from different states. it is only because of this special
circumstance that it appears as if r. 2 c  is being
disregarded in the matter of reversion for the promotions
were made without regard to integrated seniority and
resulted in sub-inspectors who were juniors in integrated
seniority being promoted earlier. we are therefore of
opinion that r. 2 c  does number strictly apply in the present
case. but even on the basis that the junior-most should
first be reverted in case reversion has to take place on
account of exigencies of service it cannumber be said that the
reversion of the petitioners is an act of discrimination
for the affidavit on behalf of the state government shows
that they are really junior-most in the provisional list
though they might have in the exceptional circumstances
indicated above acted longer as officiating circle inspector
than others who have number been reverted.