Ramphal Dangi And Anr vs State Of Haryana And Ors

C.W.P. No.2625 of 2012 -1-

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.

DATE OF DECISION : 12.1.2018

1. C.W.P. No.2625 of 2012 (O&M)

Ramphal Dangi and another v. State of Haryana and others.

2. C.W.P. No.13566 of 2011 (O&M)

Dr.Satbir S.Kadian and others v. State of Haryana and another.

3. C.W.P. No.2564 of 2016 (O&M)

Shyam Lal v. State of Haryana and others.

4. C.W.P. No.18941 of 2016 (O&M)

Balraj Chauhan v. State of Haryana and others.

5. C.W.P. No.19841 of 2013 (O&M)

R.S.Sehrawat and another v. State of Haryana and another.

CORAM : HON'BLE MR.JUSTICE MAHESH GROVER HON'BLE MR.JUSTICE RAJ SHEKHAR ATTRI

Present:- Shri Anupam Gupta, Senior Advocate with Shri Ashok Kumar, Advocate for the petitioners (in CWPNo.2625 of 2012 and for the petitioners No.3 and 6 (in CWP No.13506 of 2011).

Shri J.K.Goel, Adocate for the petitioner (in CWP No.2564 of 2016).

Shri Y.P.Malik, Advocate for the petitioner (in CWP No.19841 of 2013).

Shri Saurabh Bajaj, Advocate for the petitioners (in C.W.P. No.19841 of 2013).

Shri Sunil Nehra, Advocate for the applicant (in C.M. No.13811-CWP of 2015).

Shri Lokesh Sinhal, Additional A.G. Haryana.

Shri R.Kartikeya, Advocate for respondents No.3 to 5.

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MAHESH GROVER, J.

By this order we will dispose of C.W.P. Nos.2625 of 2012, 13566 of

2011, 19841 of 2013, 2564 and 18941 of 2016.

For the sake of convenience, brief facts have been taken from C.W.P.

No.2625 of 2012.

The writ petitions have been filed questioning some of the provisions

of the Haryana Civil Service of Engineers, Group A, Public Health Engineering

Department Act, 2009 (herein after referred to as the Act) in particular, 3rd proviso

to Section 9 and the impact of the rules on inter-se seniority and prospects of

promotion.

As far as the individual grievances are concerned, they flow from the

action of the respondents by applying the rules to determine their seniority and

adversely affect their chances of promotion with reversion as a consequence in

some of the cases.

Since the principal challenge is to the provisions of the Act, it would

be essential to determine this issue in the first instance before commenting on the

Act of the State and its impact on the petitioners' claim for seniority and

promotion. An identical challenge has been mounted to some provisions which are

absolutely similar, but flowing from different enactments applicable to different

departments such as Irrigation Department. The Act was promulgated in the year

2009 (Haryana Act No.9 of 1990), but made applicable with effect from 1.11.1966

as Rule 1 sub-clause (2) which reads here below :-

"(1) This Act may be called the Haryana Service Engineers,

Group A, Public Health Engineering Department Act, 2009.

(2) It shall be deemed to have come into force on 1st day of

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November, 1966."

The word "service" has been defined in rule 2 sub-clause (q) to mean

Haryana Service of Engineers, Group A, Public Health Engineering Department

comprising two separate cadres of Civil and Mechanical. Similarly the word

'Service' has been defined in sub-rule 15 of Rule 2 of Haryana Services of

Engineers Class-II P.W.D. (Irrigation Branch).

Rule 3 provides for two cadres of service namely Civil and

Mechanical comprising of various posts as may be determined separately for each

cadre on the Ist day of January each year, the relevant portion of which is extracted

here below :-

"3. (1) There shall be two cadres of Service, namely, Civil

and Mechanical comprising various posts as may be

determined separately for each cadre on the Ist day of January

each year or as soon thereafter, as may be practicable

according to the provisions of Appendix A. The strength of the

respective cadres so determined shall remain in force till it is

revised by the Government."

Rule 9 which is perceived to be an irritant and violative of the

provisions of the Constitution, is extracted here below :-

"9. (1) Subject to the provisions of sub-sections (2) and (3)

members of the Service of the respective cadre shall be

eligible for promotion to any of the posts within their

respective cadres :

Provided that a member of the Service in Group B who

does not possess one of the degrees of a University or other

qualifications as specified in section 6, shall not be eligible for

promotion to the post of Executive Engineer till he has

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acquired the requisite qualifications :

Provided further that promotion to the post of

Engineer-in-Chief shall be made from amongst the

members of the Civil Cadre only :

Provided further that in case of Mechanical cadre,

an Executive Engineer having an experience of seven years

may be given the pay scale of the post of Superintending

Engineer as a personal measure while continuing to

discharge the duties of Executive Engineer if an Executive

Engineer of Civil cadre having equivalent length of service

as Executive Engineer has been promoted as

Superintending Engineer :

Provided further that in the case of Mechanical

cadre, a Superintending Engineer having an experience of

three years, may be given the pay scale of the post of Chief

Engineer as a personal measure while continuing to

discharge the duties of Superintending Engineer if an

Superintending Engineer of civil cadre having equivalent

length of service as Superintending Engineer has been

promoted as Chief Engineer.

Explanation.- Once an officer has been appointed as member

of the Service, his promotion within the service

from one rank to another shall be regarded as

promotion within the same cadre.

(2) Promotion shall be made by selection on the basis

of seniority-cum-merit and suitability in all respects and a

member of the Service shall not have any claim to such

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promotion as a matter of right or mere seniority.

(3) A member of the Service shall not be eligible for

promotion to the rank of -

(a) Executive Engineer, unless he has rendered five

years service as an Assistant Executive Engineer

and has passed departmental examination as

provided in section 15 :

Provided that an officer who has rendered

six years or more service as an Assistant

Executive Engineer shall, unless he is considered

unsuitable for promotion, be given preference for

such promotion over an eligible Group B

Officer;

(b) Superintending Engineer, unless he has rendered

seven years service as an Executive Engineer ;

(c) Chief Engineer, unless he has rendered three

years service as Superintending Engineer ;

(d) Engineer-in-Chief, unless he has rendered two

years service as Chief Engineer.

Provided that if, it appears to be necessary to promote

an officer who has successfully completed his probation in

public interest, the Government may, for reasons to be

recorded in writing, either generally for a specified period or

in any individual case, reduce the period specified in clauses

(a), (b), (c) or (d) to such an extent, as it may deem proper."

Rule 12 lays down the manner of determining the seniority and is

extracted here below :-

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"12. (1) The seniority of the members of Service shall be

determined separately for the Civil and Mechanical cadres.

(2) In the case of Assistant Executive Engineers, the

order of merit determined by the Commission shall not be

disturbed in fixing the inter-se seniority amongst them.

(3) The inter-se seniority of the member of the Service

appointed as Executive Engineers shall be determined by the

length of continuous service on the cadre post of Executive

Engineer :

Provided that in case of Executive Engineers directly

appointed or promoted from Assistant Executive Engineers or

promoted from Group B Service against cadre posts or

appointed by transfer against cadre posts on the same date,

their inter-se seniority shall be determined in the following

order :-

(a) Executive Engineer directly appointed shall be senior

to all :

(b) Executive Engineer promoted from Assistant Executive

Engineer shall be senior to the Executive Engineer

promoted from Group B Service or appointed by

transfer ;

(c) Executive Engineer promoted from Group B Service

shall be senior to the Executive Engineer appointed by

transfer.

(4) In the case of the Executive Engineers appointed by

transfer from different cadres, their seniority shall be

determined according to pay, preference being given to a

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member, who was drawing a higher rate of pay in his

previous appointment, and if the rates of pay drawn are also

the same, then by the length of their service in the

appointments ; and if the length of such service is also the

same, the older member shall be senior to the younger

member.

(5) Where a member of the Service, for a cause which the

Government considers to be sufficient, is unable to join the

Service or continues with the Government's approval on

deputation outside the Service, it shall be open to the

Government to allow him credit for such service as if it was a

service rendered udder this Act for the purposes of the

fixation of his seniority.

Explanation.- All employment on deputation after a

member has joined the Service and has had his

seniority fixed under this Act, shall count as if it

was employment in the Service and shall not in

any way affect the seniority already fixed,

except to the extent that such seniority would in

any case have been affected, had the member of

the Service continued to work in the

Department."

The argument in brief with reference to the aforesaid provisions is

that the seniority of the members of Service is to be determined separately for

Civil and Mechanical cadres, but the rule of promotion denies the post of

Engineer-in-Chief which is restricted to the members of the Civil Service cadre

only. Similarly, an Executive Engineer of the Mechanical cadre with an

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experience of 7 years is only given the pay-scale of Superintending Engineer as a

personal measure while continuing to discharge duties as an Executive Engineer if

an Executive Engineer of a civil cadre having equivalent length of service has been

promoted as a Superintending Engineer.

Likewise, a Superintending Engineer of the Mechanical cadre with

experience of 3 years has to be given the pay-scale of the post of Chief Engineer as

a personal measure while continuing to discharge duties as Superintending

Engineer in the eventuality of a Superintending Engineer of a Civil cadre having

equivalent length of service as such having been promoted as Chief Engineer.

Similar is the position in C.W.P. No.13566 of 2011 where the

primacy has been given to one cadre only to deprive other cadres of promotion.

It is contended that this rule is violative of Article 14 of the

Constitution of India besides being arbitrary and deserves to be struck down as it

discriminates qua the Engineers of Mechanical cadre vis-a-vis those of Civil

Engineering who stand to occupy the seniormost posts with the Engineers of

Mechanical cadre achieving the level of an Executive Engineer only.

That apart, it has been contended that rules have been made

applicable with effect from the year 1966 and such retrospective operation of law

is impermissible.

The respondents, on the other hand, justify the enactment with

reference to the cadre strength which is heavily loaded in favour of the Civil

Engineers with the cadre strength of Mechanical Engineers being a distant second

and it is therefore, contended that vice of discrimination does not manifest itself in

view of the negligible strength of Engineers in the Service and the fact that they

have been admitted to the pay structure of a higher post even if they do not stand

promoted. A tabulation with regard to the cadre strength existing in 2010 has been

appended to the written statement and is extracted here below :-

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........ .. ....... ........ .. ....... ........ .. ....... ........ .. ....... ........ .. ....... ........ .. ....... ........ ...

1.1.2004 1.1.2005 1.1.2006 1.1.2007 1.1.2008 1.1.2009 1.1.2010

........ .. ....... ........ .. ....... ........ .. ....... ........ .. ....... ........ .. ....... ........ .. ....... ........ ... Group A senior 76(Civil) 76(Civil) 76(Civil) 75(Civil)76(Civil) 76(Civil) 81(Civil) posts cadre posts. 3(Mech.) 3(Mech.) 2(Mech.) 2(Mech) 3(Mech) 3(Mech) 3(Mech)

Ex cadre posts. 14(Civil) 14(Civil) 14(Civil) 14(Civil)14(Civil) 14(Civil) 14(Civil) Nil(Mech) Nil(Mech) Nil(Mech Nil(Mech) Nil Nil Nil(Mech) (Mech) (Mech)

Group A junior 14(Civil) 14(Civil) 14(Civil) 14Civil) 14(Civil) 14(Civil) 14(Civil) Nil(Mech) Nil(Mech) Nil(Mech) Nil(Mech) Nil Nil Nil(Mech) (Mech) (Mech)

Ex cadre posts Nil Nil Nil Nil Nil Nil Nil

........ .. ....... ........ .. ....... ........ .. ....... ........ .. ....... ........ .. ....... ........ .. ....... ........ ...

We have heard the learned counsel for the parties on the aforesaid

primary issue.

It would be worthwhile to refer to the statement of objects and

reasons from where the enactment has flowed :

"So far as Public Health Engineering Department is

concerned, it has been observed that the Public Health

Engineering Department is predominantly a civil engineering

organization and therefore, common seniority of civil and

mechanical cadres is not desirable. Moreover, the number of

posts of Group A and B officers in mechanical cadre of the

department is very small as compared to the number of

officers in the civil cadre. The Government had notified

separate posts of civil and mechanical cadres. The preparation

of common seniority of the officers of the Civil and

Mechanical cadres has given rise to certain administrative

problems and has also caused tension between officers of the

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department in their day to day working. Therefore, it is

desirable that separate seniority of Civil and Mechanical

cadres is maintained by repealing the Haryana Service of

Engineers, Class-I PWD(B&R Branch), (Public Health

Branch) and (Irrigation Branch) respectively Act, 1995

(Haryana Act No.20 of 1995) in so far as its applicability to

the Public Health Engineering Department is concerned and

by enacting a new legislation the Haryana Service of

Engineers, Group A, Public Health Engineering Department

Act, 2009 in its place.

The proposed bill now seeks to replace the Act No.20

of 1995 with Bill so far as its applicability to the Public

Health Engineering Department, in ensuing session of the

Haryana Vidhan Sabha."

Evidently, the aforesaid suggests, what has persuaded the State to

take this decision is the overwhelming pre- dominance of the Civil Engineering

cadre in the organization with the Mechanical cadres reduced relatively to a

minority, and playing second fiddle to the majority cadre rendering a common

seniority list not only undesirable, but also creating administrative problems on

account of the tension between officers in the day to day work.

The first issue that we propose to discuss is the effect of

retrospective operation of the Act and its legality.

In a given situation, the Legislature would have the power to give

retrospective effect to a legislation, but if the consequences of such an enactment

result in violation of any right or if it tramples on or subverts or subjugates

individual rights, then such an enactment giving retrospective effect would

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certainly have to be nullified.

In the Service Law, one has to understand that a person who gains

employment, is subject to rules and an incumbent develops a legitimate

expectations of future prospects at the threshold itself and has every right to

choose or refusee employment if he perceives bleak future prospects. Even

otherwise, once an employee binds himself to the rigors of the rules in a service,

the benefits that accrue to him or are assured to him, cannot ordinarily be denied

by an executive action. In the instant case, the 1995 Rules which held the field

prior to 2009 Rules envisaged a common cadre with the seniority based on the

length of service and promotion flowing in terms of Rule 9 from the common

cadre on the basis of meri9t and suitability. For the purpose of reference, Rule 9 of

the 1995 Rules is reproduced here below :-

9. Promotion within Service.- (1) Subject to the provisions

of sub-sections (2) and (3), members of the Service shall be

eligible for promotion to any of the post in the Service namely,

Executive Engineer, Superintending Engineer, Chief Engineer

and Engineer-in-Chief within their respective branches.

Provided that a member of the Service who does not

possess one of the University degrees or other qualifications as

specified in Appendix B of this Act, shall not be eligible for

promotion to the post of Superintending Engineer or above, till

he has acquired the requisite qualifications.

Explanation.- Once an officer has been appointed as

member of the Service, his promotion within it from one rank

to another shall be regarded as promotion within the same

cadre.

(2) Promotions shall be made by selection on the basis of

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merit and suitability in all respects and a member of the

Service shall not have any claim to such promotion as a matter

or right or mere seniority."

Evidently, as per the prevailing 1995 Rules, any member of the

Service from Civil or Mechanical cadre was eligible for consideration to the higher

post of Engineer-in-Chief, Chief Engineer and Superintending Engineer, subject to

merit and suitability. With the introduction of the 2009 Rules, the entire seniority

and the chances of promotion beyond the level of Executive Engineer in the case

of Mechanical cadre, have been thwarted.

While commenting on a retrospective operation of law and its

resultant consequences the Hon'ble Supreme Court in State of Gujarat and

another v. Raman Lal Keshav Lal Soni and others (1983) 2 S.C.C. 33

observed as under :-

"48. From the summary of the provisions of the Amending

Act that has been set out above it requires no perception to

recognise the principal target of the amending legislation as

the category of ex-municipal employees', who are, so to say,

pushed out of the panchayat service and are to be denied the

status of government servants and the consequential benefits.

The ex-municipal employees are virtually the "poor relations",

the castle, the panchayat service, is not for them nor the

attendant advantages, privileges and perquisites, which are all

for the "pedigree descendants" only. For them, only the

outhouses. As a result of the amendments they cease to be

government servants with retrospective effect. Their earlier

allocation to the panchayat service is cancelled with

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retrospective effect They become servants of Gram and Nagar

Panchayats with retrospective effect. They are treated

differently from those working in Talluqa and District

Panahayats as well as from the Talatis and Kotwals working in

Gram and Nagar Panchayats. Their conditions of service are to

be prescribed by panchayats, by resolution, whereas the

conditions of service of others are to be prescribed by the

Government. Their promotional prospects are completely

wiped out and all advantages which they would derive as a

result of the judgments of the courts are taken away."

The applicability of these rules is likely to jettison the chances of

promotion of those in mechanical cadre besides creating a situation where a person

who might have gained an entry into service much after an incumbent from the

Mechanical cadre, stealing a march over him ; a situation that we perceive to be

not only eminently undesirable, but also contrary to the settled tenets of the service

law. It is almost in identical situation that the Hon'ble Supreme Court in State of

Andhra Pradesh v. Dr.N.Ramachandra Rao 1990(2) R.S.J. 238, observed as

under :-

"17. Furthermore, Rule 2 does not expressly excluded the

service in Class-II Cadre for preparing panel for consideration

for promotion to posts with which we are concerned. We also

consider that it would be unreasonable and unjust to exclude

the service and overlook the vertical seniority in the

substantive cadre to which everyone was selected by the

Public Service Commission. In medical profession there are

specialties and specialties, but it is generally accepted that

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they are not of equal importance or utility. However, the

promotions are allowed on the basis of the respective

specialties and the availability of promotional vacancies in

such specialties. A junior with relatively less important

specialty may be fortunate enough to get quick promotion than

his senior with a different specialty. We are of the opinion

that the juniors who get accelerated promotion on account of

fortutious circumstances depending upon their specialty and

availability of vacancies in such specialty should not be

allowed to march over their seniors for appointment to

administrative posts. Any advantage gained by juniors on

such fortuitous circumstances of having some specialty and

promotion should not impair the rights of their seniors for

promotion to posts where specialty or teaching experience is

not called for. The seniority determined in order of seniority

should not therefore be the basis for promotion to

administrative posts. Any rule providing for the contrary may

be vulnerable to attack on the ground of arbitrariness."

We have perceived an element of arbitrariness in the said provisions

of the 2009 Rules particularly when we see the justification offered by the State to

amend the Rules is merely because of one cadre strength being numerically

stronger than the other of mechanical cadre.

Accepting such an argument that the interest of a majority can be

used as a justification to subvert the interests of those in minority would conflict

directly with the guaranteed individual rights enshrined in the Constitution of

India. The acceptance of the justification offered by the State is fraught with

dangers of majoritarianism with marginalisation of those in minority in an

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institution or in the social fabric at large if expanded on a larger convas for the

rights of an individual flow from the Constitution and are neither platitudional nor

proportionately dependent to the numerical strength of the populace.

In the present case, simply because the cadres of Civil Engineers are

numerically greater, would not give the State a right to ignore or subvert the

legitimate expectation of a numerically weaker cadre existing alongside.

Article 14 does not permit any such classification. A bare reading of

the provision shows that the State cannot deny to any person equality before the

law or equal protection of law. Article 14, therefore, embodies the sacred rule of

equality before the law and equal protection of law. The action of the State in the

present case tends to create a classification amongst the two cadres marginalizing

the one while monopolizing the other. In Lachhman Dass v. State 1963(2)

S.C.R. 353, the Hon'ble Supreme Court had observed that such an action is against

the doctrine of classification and its over emphasis may deprive the citizens of the

protection of Article 14 and result in arbitrariness.

In the present case, the State has virtually created a favourable

classification qua the Civil Engineers and in an attempt to mask arbitrariness,

admitted the Engineers of Mechanical cadre to a higher pay structure as an olive

branch while working in their assigned posts. Such an action is completely

arbitrary for the reason that an employee has a legitimate expectation of being

promoted to a post with higher designation. It is not merely pay that draws an

incumbent to the promoted post, but also the status and designation of the higher

post. It is evident from the rule itself that the chances of career progression of the

Engineers of Mechanical cadre have been restricted to the post of an Executive

Engineer with the remaining post of Superintending Engineer and Chief Engineer

and Engineer-in-Chief going only to those from the Civil Engineering cadre.

The doctrine of arbitrariness has been elaborately brought out in the

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judgment of the Hon'ble Supreme Court in Shayara Bano v. Union of India and

others, Writ Petition (Civil) No.118 of 2016 decided on 22.8.2017 and it will be

useful to extract the relevant portion of the judgment which traces out in extenso

the evolution of the principle of arbitration and its impact on the statutes in

executive actions as below :-

" ... 33. In the pre-1974 era, the judgments of this Court did

refer to the "rule of law" or "positive" aspect of Article 14, the

concomitant of which is that if an action is found to be arbitrary

and, therefore, unreasonable, it would negate the equal

protection of the law contained in Article 14 and would be

struck down on this ground. In S.G. Jaisinghani v. Union of

India, (1967) 2 SCR 703, this Court held:

"In this context it is important to emphasize that the

absence of arbitrary power is the first essential of the rule

of law upon which our whole constitutional system is

based. In a system governed by rule of law, discretion,

when conferred upon executive authorities, must be

confined within clearly defined limits. The rule of law

from this point of view means that decisions should be

made by the application of known principles and rules

and, in general, such decisions should be predictable and

the citizen should know where he is. If a decision is taken

without any principle or without any rule it is

unpredictable and such a decision is the antithesis of a

decision taken in accordance with the rule of law. (See

Dicey -- "Law of the Constitution" -- 10th Edn.,

Introduction cx).

"Law has reached its finest moments", stated Douglas, J.

in United States v. Wunderlick [342 US 98], "when it has

freed man from the unlimited discretion of some ruler....

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Where discretion, is absolute, man has always suffered".

It is in this sense that the rule of law may be said to be

the sworn enemy of caprice. Discretion, as Lord

Mansfield stated it in classic terms in the case of John

Wilkes [(1770) 4 Burr. 2528 at 2539], "means sound

discretion guided by law. It must be governed by rule,

not by humour : it must not be arbitrary, vague, and

fanciful"." (pages 718 - 719)

This was in the context of service rules being seniority rules,

which applied to the Income Tax Department, being held to be

violative of Article 14 of the Constitution of India.

34. Similarly, again in the context of an Article 14 challenge to

service rules, this Court held in State of Mysore v. S.R. Jayaram,

(1968) 1 SCR 349 as follows:

"The principle of recruitment by open competition aims

at ensuring equality of opportunity in the matter of

employment and obtaining the services of the most

meritorious candidates. Rules 1 to 8, 9(1) and the first

part of Rule 9(2) seek to achieve this aim. The last part of

Rule 9(2) subverts and destroys the basic objectives of

the preceding rules. It vests in the Government an

arbitrary power of patronage. Though Rule 9(1) requires

the appointment of successful candidates to Class I posts

in the order of merit and thereafter to Class II posts in

the order of merit, Rule 9(1) is subject to Rule 9(2), and

under the cover of Rule 9(2) the Government can even

arrogate to itself the power of assigning a Class I post to a

less meritorious and a Class II post to a more meritorious

candidate. We hold that the latter part of Rule 9(2) gives

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the Government an arbitrary power of ignoring the just

claims of successful candidates for recruitment to offices

under the State. It is violative of Articles 14 and 16(1) of

the Constitution and must be struck down." (pages 353 -

354)

35. In the celebrated Indira Gandhi v. Raj Narain judgment,

reported in 1975 Supp SCC 1, Article 329-A sub-clauses (4) and

(5) were struck down by a Constitution Bench of this Court. Applying the newly evolved basic structure doctrine laid down

in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225,

Ray, C.J. struck down the said amendment thus:

"59. Clause (4) suffers from these infirmities. First, the

forum might be changed but another forum has to be

created. If the constituent power became itself the forum

to decide the disputes the constituent power by repealing

the law in relation to election petitions and matters

connected therewith did not have any petition to seize

upon to deal with the same. Secondly, any decision is to

be made in accordance with law. Parliament has power to

create law and apply the same. In the present case, the

constituent power did not have any law to apply to the

case, because the previous law did not apply and no other

law was applied by clause (4). The validation of the

election in the present case is, therefore, not by applying

any law and it, therefore, offends rule of law." (at page

44)

36. This passage is of great significance in that the amendment

was said to be bad because the constituent power did not have

any law to apply to the case, and this being so, the rule of law

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contained in the Constitution would be violated. This rule of law

has an obvious reference to Article 14 of the Constitution, in

that it would be wholly arbitrary to decide the case without

applying any law, and would thus violate the rule of law

contained in the said Article. Chandrachud, J., was a little more

explicit in that he expressly referred to Article 14 and stated

that Article 329-A is an outright negation of the right of equality

conferred by Article 14. This was the case because the law would

be discriminatory in that certain high personages would be put

above the law in the absence of a differentia reasonably related

to the object of the law. He went on to add:

"681. It follows that clauses (4) and (5) of Article 329-

A are arbitrary and are calculated to damage or destroy

the rule of law. Imperfections of language hinder a

precise definition of the rule of law as of the definition of

'law' itself. And the Constitutional law of 1975 has

undergone many changes since A.V. Dicey, the great

expounder of the rule of law, delivered his lectures as

Vinerian Professor of English law at Oxford, which were

published in 1885 under the title, "Introduction to the

Study of the Law of the Constitution". But so much, I

suppose, can be said with reasonable certainty that the

rule of law means that the exercise of powers of

Government shall be conditioned by law and that subject

to the exceptions to the doctrine of equality, no one shall

be exposed to the arbitrary will of the Government. Dicey

gave three meanings to rule of law: Absence of arbitrary

power, equality before the law or the equal subjection of

all classes to the ordinary law of the land administered by

ordinary law courts and that the Constitution is not the

source but the consequence of the rights of individuals,

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as defined and enforced by the courts. The second

meaning grew out of Dicey's unsound dislike of the

French Droit Administratif which he regarded "as

a misfortune inflicted upon the benighted folk across the

Channel" [See S.A. de Smith:

Judicial Review of Administrative Action, (1968) p. 5].

Indeed, so great was his influence on the thought of the

day that as recently as in 1935 Lord Hewart, the Lord

Chief Justice of England, dismissed the term

"administrative law" as "continental jargon". The third

meaning is hardly apposite in the context of our written

Constitution for, in India, the Constitution is the source

of all rights and obligations. We may not therefore rely

wholly on Dicey's exposition of the rule of law but ever

since the second world war, the rule has come to acquire

a positive content in all democratic countries. [See Wade

and Phillips: Constitutional Law (Sixth Edn., pp. 70-73)]

The International Commission of Jurists, which has a

consultative status under the United Nations, held its

Congress in Delhi in 1959 where lawyers, judges and law

teachers representing fifty-three countries affirmed that

the rule of law is a dynamic concept which should be

employed to safeguard and advance the political and civil

rights of the individual in a free society. One of the

committees of that Congress emphasised that no law

should subject any individual to discriminatory

treatment. These principles must vary from country to

country depending upon the provisions of its

Constitution and indeed upon whether there exists a

written Constitution. As it has been said in a lighter vein,

to show the supremacy of the Parliament, the charm of

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the English Constitution is that "it does not exist". Our

Constitution exists and must continue to exist. It

guarantees equality before law and the equal protection

of laws to everyone. The denial of such equality, as

modified by the judicially evolved theory of classification,

is the very negation of rule of law." (at page 258)

37. This paragraph is an early application of the doctrine of

arbitrariness which follows from the rule of law contained

in Article 14. It is of some significance that Dicey's formulation

of the rule of law was referred to, which contains both absence

of arbitrary power and equality before the law, as being of the

essence of the rule of law.

38. We now come to the development of the doctrine of

arbitrariness and its application to State action as a distinct

doctrine on which State action may be struck down as being

violative of the rule of law contained in Article 14. In a

significant passage Bhagwati, J., in E.P. Royappa v. State of

T.N., (1974) 4 SCC 3 stated (at page 38):

"85. The last two grounds of challenge may be taken up

together for consideration. Though we have formulated

the third ground of challenge as a distinct and separate

ground, it is really in substance and effect merely an

aspect of the second ground based on violation of

Articles 14 and 16. Article 16 embodies the fundamental

guarantee that there shall be equality of opportunity for

all citizens in matters relating to employment or

appointment to any office under the State. Though

enacted as a distinct and independent fundamental right

because of its great importance as a principle ensuring

equality of opportunity in public employment which is so

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vital to the building up of the new classless egalitarian

society envisaged in the Constitution, Article 16 is only

an instance of the application of the concept of equality

enshrined in Article 14. In other words, Article 14 is the

genus while Article 16 is a species. Article 16 gives effect

to the doctrine of equality in all matters relating to public

employment. The basic principle which, therefore,

informs both Articles 14 and 16 is equality and inhibition

against discrimination. Now, what is the content and

reach of this great equalising principle? It is a founding

faith, to use the words of Bose. J., "a way of life", and it

must not be subjected to a narrow pedantic or

lexicographic approach. We cannot countenance any

attempt to truncate its all-embracing scope and

meaning, for to do so would be to violate its activist

magnitude. Equality is a dynamic concept with many

aspects and dimensions and it cannot be "cribbed,

cabined and confined" within traditional and doctrinaire

limits. From a positivistic point of view, equality is

antithetic to arbitrariness. In fact equality and

arbitrariness are sworn enemies; one belongs to the rule

of law in a republic while the other, to the whim and

caprice of an absolute monarch. Where an act is

arbitrary, it is implicit in it that it is unequal both

according to political logic and constitutional law and is

therefore violative of Article 14, and if it effects any

matter relating to public employment, it is also violative

of Article 16. Articles 14 and 16 strike at arbitrariness in

State action and ensure fairness and equality of

treatment. They require that State action must be based

on valid relevant principles applicable alike to all

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similarly situate and it must not be guided by any

extraneous or irrelevant considerations because that

would be denial of equality. Where the operative reason

for State action, as distinguished from motive inducing

from the antechamber of the mind, is not legitimate and

relevant but is extraneous and outside the area of

permissible considerations, it would amount to mala fide

exercise of power and that is hit by Articles 14 and 16.

Mala fide exercise of power and arbitrariness are

different lethal radiations emanating from the same vice:

in fact the latter comprehends the former. Both are

inhibited by Articles 14 and 16." [Emphasis Supplied]

XXX XXX XXX

40. This was further clarified in A.L. Kalra v.Project and

Equipment Corpn., (1984) 3 SCC 316, following Royappa

(supra) and holding that arbitrariness is a doctrine distinct from

discrimination. It was held:

"19... It thus appears well-settled that Article 14 strikes at

arbitrariness in executive/administrative action because

any action that is arbitrary must necessarily involve the

negation of equality. One need not confine the denial of

equality to a comparative evaluation between two

persons to arrive at a conclusion of discriminatory

treatment. An action per se arbitrary itself denies equal

of (sic) protection by law. The Constitution Bench

pertinently observed in Ajay Hasia case [(1981) 1 SCC

722: 1981 SCC (L&S) 258: AIR 1981 SC 487: (1981) 2

SCR 79: (1981) 1 LLJ 103] and put the matter beyond

controversy when it said "wherever therefore, there is

arbitrariness in State action whether it be of the

Legislature or of the executive or of an 'authority'

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under Article 12, Article 14 immediately springs into

action and strikes down such State action". This view

was further elaborated and affirmed in D.S. Nakara v.

Union of India [(1983) 1 SCC 305: 1983 SCC (L&S) 145:

AIR 1983 SC 130: (1983) UPSC 263]. In Maneka Gandhi

v. Union of India[(1978) 1 SCC 248: AIR 1978 SC 597:

(1978) 2 SCR 621] it was observed that Article 14 strikes

at arbitrariness in State action and ensures fairness and

equality of treatment. It is thus too late in the day to

contend that an executive action shown to be arbitrary is

not either judicially reviewable or within the reach

of Article 14." (at page 328) The same view was reiterated

in Babita Prasad v. State of Bihar, (1993) Suppl. 3 SCC

268 at 285, at paragraph 31.

41. That the arbitrariness doctrine contained in Article 14 would

apply to negate legislation, subordinate legislation and

executive action is clear from a celebrated passage in the case of

Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 (at

pages 740-741):

"16... The true scope and ambit of Article 14 has been the

subject-matter of numerous decisions and it is not

necessary to make any detailed reference to them. It is

sufficient to state that the content and reach of Article

14 must not be confused with the doctrine of

classification. Unfortunately, in the early stages of the

evolution of our constitutional law, Article 14 came to be

identified with the doctrine of classification because the

view taken was that that article forbids discrimination

and there would be no discrimination where the

classification making the differentia fulfils two

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conditions, namely, (i) that the classification is founded

on an intelligible differentia which distinguishes persons

or things that are grouped together from others left out of

the group; and (ii) that that differentia has a rational

relation to the object sought to be achieved by the

impugned legislative or executive action. It was for the

first time in E.P. Royappa v. State of Tamil Nadu [(1974)

4 SCC 3, 38: 1974 SCC (L&S) 165, 200: (1974) 2 SCR

348] that this Court laid bare a new dimension of Article

14 and pointed out that that article has highly activist

magnitude and it embodies a guarantee against

arbitrariness. This Court speaking through one of us

(Bhagwati, J.) said: [SCC p. 38: SCC (L&S) p. 200, para

85]

"The basic principle which, therefore, informs

both Articles 14 and 16 is equality and inhibition

against discrimination. Now, what is the content

and reach of this great equalising principle? It is a

founding faith, to use the words of Bose, J., "a way

of life", and it must not be subjected to a narrow

pedantic or lexicographic approach. We cannot

countenance any attempt to truncate its all-

embracing scope and meaning, for to do so would

be to violate its activist magnitude. Equality is a

dynamic concept with many aspects and

dimensions and it cannot be "cribbed, cabined

and confined" within traditional and doctrinaire

limits. From a positivistic point of view, equality

is antithetic to arbitrariness. In fact, equality and

arbitrariness are sworn enemies; one belongs to

the rule of law in a republic while the other, to the

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whim and caprice of an absolute monarch. Where

an act is arbitrary it is implicit in it that it is

unequal both according to political logic and

constitutional law and is therefore violative

of Article 14, and if it affects any matter relating to

public employment, it is also violative of Article

16. Articles 14 and 16 strike at arbitrariness in

State action and ensure fairness and equality of

treatment."

This vital and dynamic aspect which was till then lying latent

and submerged in the few simple but pregnant words of Article

14 was explored and brought to light in Royappa case [(1975) 1

SCC 485: 1975 SCC (L&S) 99: (1975) 3 SCR 616] and it was

reaffirmed and elaborated by this Court in Maneka Gandhi v.

Union of India [(1978) 1 SCC 248] where this Court again

speaking through one of us (Bhagwati, J.) observed: (SCC pp.

283-84, para 7)

"Now the question immediately arises as to what is the

requirement of Article 14: What is the content and reach

of the great equalising principle enunciated in this

Article? There can be no doubt that it is a founding faith

of the Constitution. It is indeed the pillar on which rests

securely the foundation of our democratic republic. And,

therefore, it must not be subjected to a narrow, pedantic

or lexicographic approach. No attempt should be made

to truncate its all-embracing scope and meaning, for to

do so would be to violate its activist magnitude. Equality

is a dynamic concept with many aspects and dimensions

and it cannot be imprisoned within traditional and

doctrinaire limits.... Article 14 strikes at arbitrariness in

State action and ensures fairness and equality of

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treatment. The principle of reasonableness, which legally

as well as philosophically, is an essential element of

equality or non-arbitrariness pervadesArticle 14 like a

brooding omnipresence."

This was again reiterated by this Court in International Airport

Authority case [(1979) 3 SCC 489] at p. 1042 (SCC p. 511) of the

Report. It must therefore now be taken to be well settled that

what Article 14 strikes at is arbitrariness because an action that

is arbitrary, must necessarily involve negation of equality. The

doctrine of classification which is evolved by the courts is not

paraphrase of Article 14 nor is it the objective and end of that

article. It is merely a judicial formula for determining whether

the legislative or executive action in question is arbitrary and

therefore constituting denial of equality. If the classification is

not reasonable and does not satisfy the two conditions referred

to above, the impugned legislative or executive action would

plainly be arbitrary and the guarantee of equality under Article

14 would be breached. Wherever therefore there is arbitrariness

in State action whether it be of the legislature or of the

executive or of an 'authority' under Article 12, Article

14 immediately springs into action and strikes down such State

action. In fact, the concept of reasonableness and non-

arbitrariness pervades the entire constitutional scheme and is a

golden thread which runs through the whole of the fabric of the

Constitution." [Emphasis Supplied]

42. In this view of the law, a three Judge Bench of this Court in

K.R. Lakshmanan (Dr.) v. State of T.N., (1996) 2 SCC 226,

struck down a 1986 Tamil Nadu Act on the ground that it was

arbitrary and, therefore, violative of Article 14. Two separate

arguments were addressed under Article 14. One was that the

Act in question was discriminatory and, therefore, violative

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of Article 14. The other was that in any case the Act was

arbitrary and for that reason would also violate a separate facet

of Article 14. This is clear from paragraph 45 of the said

judgment. The judgment went on to accept both these

arguments. In so far as the discrimination aspect is concerned,

this Court struck down the 1986 Act on the ground that it was

discriminatory in paragraphs 46 and 47.

Paragraphs 48 to 50 are important, in that this Court struck

down the 1986 Act for being arbitrary, separately, as follows (at

pages 256-257):

"48. We see considerable force in the contention of Mr.

Parasaran that the acquisition and transfer of the

undertaking of the Club is arbitrary. The two Acts were

amended by the 1949 Act and the definition of 'gaming'

was amended. The object of the amendment was to

include horse-racing in the definition of 'gaming'. The

provisions of the 1949 Act were, however, not enforced

till the 1974 Act was enacted and enforced with effect

from 31-3-1975. The 1974 Act was enacted with a view to

provide for the abolition of wagering or betting on horse-

races in the State of Tamil Nadu. It is thus obvious that

the consistent policy of the State Government, as

projected through various legislations from 1949

onwards, has been to declare horse-racing as gambling

and as such prohibited under the two Acts. The operation

of the 1974 Act was stayed by this Court and as a

consequence the horse-races are continuing under the

orders of this Court. The policy of the State Government

as projected in all the enactments on the subject prior to

1986 shows that the State Government considered horse-

racing as gambling and as such prohibited under the law.

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The 1986 Act on the other hand declares horse-racing as

a public purpose and in the interest of the general public.

There is apparent contradiction in the two stands. We do

not agree with the contention of Mr. Parasaran that the

1986 Act is a colourable piece of legislation, but at the

same time we are of the view that no public purpose is

being served by acquisition and transfer of the

undertaking of the Club by the Government. We fail to

understand how the State Government can acquire and

take over the functioning of the race-club when it has

already enacted the 1974 Act with the avowed object of

declaring horse-racing as gambling? Having enacted a

law to abolish betting on horse-racing and stoutly

defending the same before this Court in the name of

public good and public morality, it is not open to the

State Government to acquire the undertaking of horse-

racing again in the name of public good and public

purpose. It is ex facie irrational to invoke "public good

and public purpose" for declaring horse-racing as

gambling and as such prohibited under law, and at the

same time speak of "public purpose and public good" for

acquiring the race-club and conducting the horse-racing

by the Government itself. Arbitrariness is writ large on

the face of the provisions of the 1986 Act.

49. We, therefore, hold that the provisions of 1986 Act

are discriminatory and arbitrary and as such violate and

infract the right to equality enshrined under Article 14 of

the Constitution.

50. Since we have struck down the 1986 Act on the

ground that it violates Article 14 of the Constitution, it is

not necessary for us to go into the question of its validity

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on the ground of Article 19 of the Constitution."

[Emphasis Supplied]

43. Close upon the heels of this judgment, a discordant note was

struck in State of A.P. v. McDowell & Co., (1996) 3 SCC 709.

Another three Judge Bench, in repelling an argument based on

the arbitrariness facet of Article 14, held:

"43. Shri Rohinton Nariman submitted that inasmuch as

a large number of persons falling within the exempted

categories are allowed to consume intoxicating liquors in

the State of Andhra Pradesh, the total prohibition of

manufacture and production of these liquors is

'arbitrary' and the amending Act is liable to be struck

down on this ground alone. Support for this proposition

is sought from a judgment of this Court in State of T.N.

v. Ananthi Ammal [(1995) 1 SCC 519]. Before, however,

we refer to the holding in the said decision, it would be

appropriate to remind ourselves of certain basic

propositions in this behalf. In the United Kingdom,

Parliament is supreme. There are no limitations upon

the power of Parliament. No court in the United

Kingdom can strike down an Act made by Parliament on

any ground. As against this, the United States of America

has a Federal Constitution where the power of the

Congress and the State Legislatures to make laws is

limited in two ways, viz., the division of legislative

powers between the States and the Federal Government

and the fundamental rights (Bill of Rights) incorporated

in the Constitution. In India, the position is similar to

the United States of America. The power of Parliament

or for that matter, the State Legislatures is restricted in

two ways. A law made by Parliament or the legislature

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can be struck down by courts on two grounds and two

grounds alone, viz., (1) lack of legislative competence

and (2) violation of any of the fundamental rights

guaranteed in Part III of the Constitution or of any other

constitutional provision. There is no third ground. We

do not wish to enter into a discussion of the concepts of

procedural unreasonableness and substantive

unreasonableness -- concepts inspired by the decisions

of United States Supreme Court. Even in U.S.A., these

concepts and in particular the concept of substantive

due process have proved to be of unending controversy,

the latest thinking tending towards a severe curtailment

of this ground (substantive due process). The main

criticism against the ground of substantive due process

being that it seeks to set up the courts as arbiters of the

wisdom of the legislature in enacting the particular piece

of legislation. It is enough for us to say that by whatever

name it is characterised, the ground of invalidation must

fall within the four corners of the two grounds

mentioned above. In other words, say, if an enactment is

challenged as violative of Article 14, it can be struck

down only if it is found that it is violative of the equality

clause/equal protection clause enshrined therein.

Similarly, if an enactment is challenged as violative of

any of the fundamental rights guaranteed by clauses (a)

to (g) of Article 19(1), it can be struck down only if it is

found not saved by any of the clauses (2) to (6) of Article

19 and so on. No enactment can be struck down by just

saying that it is arbitrary or unreasonable. Some or other

constitutional infirmity has to be found before

invalidating an Act. An enactment cannot be struck

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down on the ground that court thinks it unjustified.

Parliament and the legislatures, composed as they are of

the representatives of the people, are supposed to know

and be aware of the needs of the people and what is good

and bad for them. The court cannot sit in judgment over

their wisdom. In this connection, it should be

remembered that even in the case of administrative

action, the scope of judicial review is limited to three

grounds, viz., (i) unreasonableness, which can more

appropriately be called irrationality, (ii) illegality and

(iii) procedural impropriety (see Council of Civil Service

Unions v. Minister for Civil Service [1985 AC 374: (1984)

3 All ER 935: (1984) 3 WLR 1174] which decision has

been accepted by this Court as well). The applicability of

doctrine of proportionality even in administrative law

sphere is yet a debatable issue. (See the opinions of

Lords Lowry and Ackner in R. v. Secy. of State for Home

Deptt., ex p Brind [1991 AC 696: (1991) 1 All ER 720] AC

at 766-67 and 762.) It would be rather odd if an

enactment were to be struck down by applying the said

principle when its applicability even in administrative

law sphere is not fully and finally settled. It is one thing

to say that a restriction imposed upon a fundamental

right can be struck down if it is disproportionate,

excessive or unreasonable and quite another thing to say

that the court can strike down enactment if it thinks it

unreasonable, unnecessary or unwarranted." (at pages

737-739)

44. This judgment failed to notice at least two binding

precedents, first, the judgment of a Constitution Bench in Ajay

Hasia (supra) and second, the judgment of a coordinate three

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judge bench in Lakshmanan (supra). Apart from this, the

reasoning contained as to why arbitrariness cannot be used to

strike down legislation as opposed to both executive action and

subordinate legislation was as follows:

(1) According to the Bench in McDowell (supra), substantive

due process is not something accepted by either the American

courts or our courts and, therefore, this being a reiteration of

substantive due process being read into Article 14 cannot be

applied. A Constitution Bench in Mohd. Arif v. Supreme Court

of India, (2014) 9 SCC 737, has held, following the celebrated

Maneka Gandhi (supra), as follows:

"27. The stage was now set for the judgment in Maneka

Gandhi [Maneka Gandhi v. Union of India, (1978) 2 SCR

621: (1978) 1 SCC 248]. Several judgments were

delivered, and the upshot of all of them was that Article

21 was to be read along with other fundamental rights,

and so read not only has the procedure established by law

to be just, fair and reasonable, but also the law itself has

to be reasonable as Articles 14 and 19 have now to be

read into Article 21. [See at SCR pp. 646-48: SCC pp.

393-95, paras 198-204 per Beg, C.J., at SCR pp. 669, 671-

74 & 687: SCC pp. 279-84 & 296-97, paras 5-7 & 18 per

Bhagwati, J. and at SCR pp. 720-23 : SCC pp. 335-39,

paras 74-85 per Krishna Iyer, J.]. Krishna Iyer, J. set out

the new doctrine with remarkable clarity thus:

(SCR p. 723: SCC pp. 338-39, para 85)

"85. To sum up, 'procedure' in Article 21 means

fair, not formal procedure. 'Law' is reasonable law,

not any enacted piece. As Article 22 specifically

spells out the procedural safeguards for preventive

and punitive detention, a law providing for such

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detentions should conform to Article 22. It has

been rightly pointed out that for other rights

forming part of personal liberty, the procedural

safeguards enshrined in Article 21 are available.

Otherwise, as the procedural safeguards contained

in Article 22 will be available only in cases of

preventive and punitive detention, the right to life,

more fundamental than any other forming part of

personal liberty and paramount to the happiness,

dignity and worth of the individual, will not be

entitled to any procedural safeguard save such as a

legislature's mood chooses."

28. Close on the heels of Maneka Gandhi case [Maneka Gandhi

v. Union of India, (1978) 2 SCR 621: (1978) 1 SCC 248]

came Mithu v. State of Punjab [(1983) 2 SCC 277: 1983 SCC

(Cri) 405], in which case the Court noted as follows: (SCC

pp.283-84, para 6)

"6. ... In Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494:

1979 SCC (Cri) 155], while dealing with the question as to

whether a person awaiting death sentence can be kept in

solitary confinement, Krishna Iyer J. said that though

our Constitution did not have a "due process" clause as in

the American Constitution; the same consequence

ensued after the decisions in Bank Nationalisation case

[Rustom Cavasjee Cooper (Banks Nationalisation) v.

Union of India, (1970) 1 SCC 248] and Maneka Gandhi

case [Maneka Gandhi v. Union of India, (1978) 2 SCR

621:

(1978) 1 SCC 248] .... In Bachan Singh [Bachan Singh v.

State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580]

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which upheld the constitutional validity of the death

penalty, Sarkaria J., speaking for the majority, said that

if Article 21 is understood in accordance with the

interpretation put upon it in Maneka Gandhi [Maneka

Gandhi v. Union of India, (1978) 2 SCR 621 : (1978) 1

SCC 248], it will read to say that:

(SCC p. 730, para 136) '136. "No person shall be deprived

of his life or personal liberty except according to fair, just

and reasonable procedure established by valid law."

The wheel has turned full circle. Substantive due process

is now to be applied to the fundamental right to life and

liberty." (at pages 755-756)

Clearly, therefore, the three Judge Bench has not noticed

Maneka Gandhi (supra) cited in Mohd. Arif (supra) to show

that the wheel has turned full circle and substantive due process

is part of Article 21 as it is to be read with Articles 14 and 19.

Mathew, J., while delivering the first Tej Bahadur Sapru

Memorial Lecture entitled "Democracy and Judicial Review",

has pointed out:

"Still another point and I am done. The constitutional makers

have formally refused to incorporate the "due process clause" in

our Constitution on the basis, it seems, of the advice tendered

by Justice Frankfurter to Shri B.N. Rau thinking that it will

make the Court a third Chamber and widen the area of Judicial

review. But unwittingly, I should think, they have imported the

most vital and active element of the concept by their theory of

review of 'reasonable restrictions' which might be imposed by

law on many of the fundamental rights. Taken in its modern

expanded sense, the American "due process clause" stands as a

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high level guarantee of 'reasonableness' in relation between

man and state, an injunction against arbitrariness or

oppressiveness. I have had occasion to consider this question in

Kesavananda Bharati's case. I said:

"When a court adjudges that a legislation is bad on the

ground that it is an unreasonable restriction, it is

drawing the elusive ingredients for its conclusion from

several sources...If you examine the cases relating to the

imposition of reasonable restrictions by a law, it will be

found that all of them adopt a standard which the

American Supreme Court has adopted in adjudging

reasonableness of a legislation under the due process

clause."

In fact, Mithu v. State of Punjab, (1983) 2 SCC 277, followed a

Constitution Bench judgment in Sunil Batra v. Delhi

Administration & Ors., (1978) 4 SCC 494. In that case, Section

30(2) of the Prisons Act was challenged as being

unconstitutional, because every prisoner under sentence of

death shall be confined in a cell apart from all other prisoners,

that is to say he will be placed under solitary confinement. The

Constitution Bench read down Section 30(2) to refer only to a

person who is sentenced to death finally, which would include

petitions for mercy to the Governor and/or to the President

which have not yet been disposed of. In so holding, Desai, J.

speaking for four learned Judges, held (at pages 574-575):

"228. The challenge under Article 21 must fail on our

interpretation of sub-section (2) of Section 30. Personal

liberty of the person who is incarcerated is to a great

extent curtailed by punitive detention. It is even

curtailed in preventive detention. The liberty to move,

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mix, mingle, talk, share company with co-prisoners, if

substantially curtailed, would be violative of Article

21 unless the curtailment has the backing of law. Sub-

section (2) of Section 30 establishes the procedure by

which it can be curtailed but it must be read subject to

our interpretation. The word "law" in the expression

"procedure established by law" in Article 21 has been

interpreted to mean in Maneka Gandhi's case (supra)

that the law must be right, just and fair, and not

arbitrary, fanciful or oppressive. Otherwise it would be

no procedure at all and the requirement of Article

21 would not be satisfied. If it is arbitrary it would be

violative of Article 14. Once Section 30(2) is read down

in the manner in which we have done, its obnoxious

element is erased and it cannot be said that it is arbitrary

or that there is deprivation of personal liberty without

the authority of law." [Emphasis Supplied]

In a long and illuminating concurring judgment, Krishna Iyer,

J., added (at page 518):

"52. True, our Constitution has no 'due process' clause or

the VIII Amendment; but, in this branch of law,

after R.C. Cooper v. Union of India, (1970) 1 SCC 248

and Maneka Gandhi v. Union of India, (1978) 1 SCC 248,

the consequence is the same.

For what is punitively outrageous, scandalizingly unusual

or cruel and rehabilitatively counter-productive, is

unarguably unreasonable and arbitrary and is shot down

by Articles 14 and 19 and if inflicted with procedural

unfairness, falls foul of Article 21." [Emphasis Supplied]

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Coming to Mithu (supra), a Constitution Bench of this Court

struck down Section 303 of the Indian Penal Code, by which a

mandatory sentence of death was imposed on life convicts who

commit murder in jail.

The argument made by the learned counsel on behalf of the

petitioner was set out thus:

"5. But before we proceed to point out the infirmities

from which Section 303 suffers, we must indicate the

nature of the argument which has been advanced on

behalf of the petitioners in order to assail the validity of

that section. The sum and substance of the argument is

that the provision contained in Section 303 is wholly

unreasonable and arbitrary and thereby, it

violates Article 21 of the Constitution which affords the

guarantee that no person shall be deprived of his life or

personal liberty except in accordance with the procedure

established by law. Since the procedure by which Section

303 authorises the deprivation of life is unfair and unjust,

the Section is unconstitutional. Having examined this

argument with care and concern, we are of the opinion

that it must be accepted and Section 303 of the Penal

Code struck down." (at page 283)

After quoting from Sunil Batra (supra), the question before the

Court was set out thus:

"6......The question which then arises before us is whether

the sentence of death, prescribed by Section 303 of the

Penal Code for the offence of murder committed by a

person who is under a sentence of life imprisonment, is

arbitrary and oppressive so as to be violative of the

fundamental right conferred by Article 21." (at page 285)

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After setting out the question thus, the Court further stated:

"9......Is a law which provides for the sentence of death for the

offence of murder, without affording to the accused an

opportunity to show cause why that sentence should not be

imposed, just and fair? Secondly, is such a law just and fair if, in

the very nature of things, it does not require the court to state

the reasons why the supreme penalty of law is called for? Is it

not arbitrary to provide that whatever may be the circumstances

in which the offence of murder was committed, the sentence of

death shall be imposed upon the accused?" (at page 287) The

question was then answered in the following manner:

"18. It is because the death sentence has been made mandatory

by Section 303 in regard to a particular class of persons that, as

a necessary consequence, they are deprived of the opportunity

under Section 235(2) of the Criminal Procedure Code to show

cause why they should not be sentenced to death and the court

is relieved from its obligation under Section 354(3) of that Code

to state the special reasons for imposing the sentence of death.

The deprivation of these rights and safeguards which is bound

to result in injustice is harsh, arbitrary and unjust." 19... To

prescribe a mandatory sentence of death for the second of such

offences for the reason that the offender was under the sentence

of life imprisonment for the first of such offences is arbitrary

beyond the bounds of all reason. Assuming that Section 235

(2) of the Criminal Procedure Code were applicable to the case

and the court was under an obligation to hear the accused on

the question of sentence, it would have to put some such

question to the accused:

"You were sentenced to life imprisonment for the offence of

forgery. You have committed a murder while you were under

that sentence of life imprisonment. Why should you not be

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sentenced to death?" The question carries its own refutation. It

highlights how arbitrary and irrational it is to provide for a

mandatory sentence of death in such circumstances.

23. On a consideration of the various circumstances which we

have mentioned in this judgment, we are of the opinion

that Section 303 of the Penal Code violates the guarantee of

equality contained in Article 14 as also the right conferred

by Article 21 of the Constitution that no person shall be

deprived of his life or personal liberty except according to

procedure established by law." (at pages 293, 294 and 296) In a

concurring judgment, Chinnappa Reddy, J., struck down the

Section in the following terms:

"25. Judged in the light shed by Maneka Gandhi [(1978) 1 SCC

248] and Bachan Singh [(1980) 2 SCC 684], it is impossible to

uphold Section 303 as valid. Section 303 excludes judicial

discretion. The scales of justice are removed from the hands of

the Judge so soon as he pronounces the accused guilty of the

offence. So final, so irrevocable and so irrestitutable is the

sentence of death that no law which provides for it without

involvement of the judicial mind can be said to be fair, just and

reasonable. Such a law must necessarily be stigmatised as

arbitrary and oppressive.

Section 303 is such a law and it must go the way of all bad laws.

I agree with my Lord Chief Justice that Section 303, Indian

Penal Code, must be struck down as unconstitutional." (at page

298) It is, therefore, clear from a reading of even the aforesaid

two Constitution Bench judgments that Article 14 has been

referred to in the context of the constitutional invalidity of

statutory law to show that such statutory law will be struck

down if it is found to be "arbitrary".

However, the three Judge Bench in Mcdowell (supra) dealt with

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the binding Constitution Bench decision in Mithu (supra) as

follows (at page 739):

"45. Reference was then made by Shri G. Ramaswamy to the

decision in Mithu v. State of Punjab [(1983) 2 SCC 277: 1983

SCC (Cri) 405] wherein Section 303 of the Indian Penal Code

was struck down. But that decision turned mainly on Article

21 though Article 14 is also referred to along with Article 21. Not

only did the offending provision exclude any scope for

application of judicial discretion, it also deprived the accused of

the procedural safeguards contained in Sections 235(2) and 354

(3) of the Criminal Procedure Code. The ratio of the said

decision is thus of no assistance to the petitioners herein." A

binding judgment of five learned Judges of this Court cannot be

said to be of "no assistance" by stating that the decision turned

mainly on Article 21, though Article 14 was also referred to. It is

clear that the ratio of the said Constitution Bench was based

both on Article 14 and Article 21 as is clear from the judgment of

the four learned Judges in paragraphs 19 and 23 set out supra.

78 A three Judge Bench in the teeth of this ratio cannot,

therefore, be said to be good law. Also, the binding Constitution

Bench decision in Sunil Batra (supra), which held arbitrariness

as a ground for striking down a legislative provision, is not at all

referred to in the three Judge Bench decision in Mcdowell

(supra).

(2) The second reason given is that a challenge under Article

14 has to be viewed separately from a challenge under Article 19,

which is a reiteration of the point of view of A.K. Gopalan v.

State of Madras, 1950 SCR 88, that fundamental rights must be

seen in watertight compartments. We have seen how this view

was upset by an eleven Judge Bench of this Court in Rustom

Cavasjee Cooper v. Union of India, (1970) 1 SCC 248, and

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followed in Maneka Gandhi (supra).

Arbitrariness in legislation is very much a facet of

unreasonableness in Article 19(2) to (6), as has been laid down

in several Judgments of this Court, some of which are referred

to in Om Kumar (infra) and, therefore, there is no reason why

arbitrariness cannot be used in the aforesaid sense to strike

down legislation under Article 14 as well.

(3) The third reason given is that the Courts cannot sit in

Judgment over Parliamentary wisdom. Our law reports are

replete with instance after instance where Parliamentary

wisdom has been successfully set at naught by this Court

because such laws did not pass muster on account of their being

"unreasonable", which is referred to in Om Kumar (infra).

We must never forget the admonition given by Khanna, J. in

State of Punjab v. Khan Chand, (1974) 1 SCC 549. He said:

"12. It would be wrong to assume that there is an element of

judicial arrogance in the act of the Courts in striking down an

enactment. The Constitution has assigned to the Courts the

function of determining as to whether the laws made by the

Legislature are in conformity with the provisions of the

Constitution. In adjudicating the constitutional validity of

statutes, the Courts discharge an obligation which has been

imposed upon them by the Constitution. The Courts would be

shirking their responsibility if they hesitate to declare the

provisions of a statute to be unconstitutional, even though those

provisions are found to be violative of the Articles of the

Constitution. Articles 32 and 226 are an integral part of the

Constitution and provide remedies for enforcement of

fundamental rights and other rights conferred by the

Constitution. Hesitation or refusal on the part of the Courts to

declare the provisions of an enactment to be unconstitutional,

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even though they are found to infringe the Constitution because

of any notion of judicial humility would in a large number of

cases have the effect of taking away or in any case eroding the

remedy provided to the aggrieved parties by the Constitution.

Abnegation in matters affecting one's own interest may

sometimes be commendable but abnegation in a matter where

power is conferred to protect the interest of others against

measures which are violative of the Constitution is fraught with

serious consequences. It is as much the duty of the courts to

declare a provision of an enactment to be unconstitutional if it

contravenes any article of the Constitution as it is theirs to

uphold its validity in case it is found' to suffer from no such

infirmity." This again cannot detain us.

(4) One more reason given is that the proportionality doctrine,

doubtful of application even in administrative law, should not,

therefore, apply to this facet of Article 14 in constitutional law.

Proportionality as a constitutional doctrine has been

highlighted in Om Kumar v. Union of India, (2001) 2 SCC 386

at 400-401 as follows:

"30. On account of a Chapter on Fundamental Rights in Part III

of our Constitution right from 1950, Indian Courts did not

suffer from the disability similar to the one experienced by

English Courts for declaring as unconstitutional legislation on

the principle of proportionality or reading them in a manner

consistent with the charter of rights. Ever since 1950, the

principle of "proportionality" has indeed been applied

vigorously to legislative (and administrative) action in India.

While dealing with the validity of legislation infringing

fundamental freedoms enumerated in Article 19(1) of the

Constitution of India -- such as freedom of speech and

expression, freedom to assemble peaceably, freedom to form

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associations and unions, freedom to move freely throughout the

territory of India, freedom to reside and settle in any part of

India -- this Court has occasion to consider whether the

restrictions imposed by legislation were disproportionate to the

situation and were not the least restrictive of the choices. The

burden of proof to show that the restriction was reasonable lay

on the State. "Reasonable restrictions" under Articles 19(2) to

(6) could be imposed on these freedoms only by legislation and

courts had occasion throughout to consider the proportionality

of the restrictions. In numerous judgments of this Court, the

extent to which "reasonable restrictions" could be imposed was

considered.

In Chintamanrao v. State of M.P. [AIR 1951 SC 118: 1950 SCR

759] Mahajan, J. (as he then was) observed that "reasonable

restrictions" which the State could impose on the fundamental

rights "should not be arbitrary or of an excessive nature, beyond

what is required in the interests of the public". "Reasonable"

implied intelligent care and deliberation, that is, the choice of a

course which reason dictated. Legislation which arbitrarily or

excessively invaded the right could not be said to contain the

quality of reasonableness unless it struck a proper balance

between the rights guaranteed and the control permissible

under Articles 19(2) to (6). Otherwise, it must be held to be

wanting in that quality. Patanjali Sastri, C.J. in State of Madras

v. V.G. Row [AIR 1952 SC 196: 1952 SCR 597: 1952 Cri LJ 966],

observed that the Court must keep in mind the "nature of the

right alleged to have been infringed, the underlying purpose of

the restrictions imposed, the extent and urgency of the evil

sought to be remedied thereby, the disproportion of the

imposition, the prevailing conditions at the time". This principle

of proportionality vis-à-vis legislation was referred to by Jeevan

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Reddy, J. in State of A.P. v. McDowell & Co. [(1996) 3 SCC 709]

recently. This level of scrutiny has been a common feature in the

High Court and the Supreme Court in the last fifty years.

Decided cases run into thousands.

31. Article 21 guarantees liberty and has also been subjected to

principles of "proportionality". Provisions of the Criminal

Procedure Code, 1974 and the Indian Penal Code came up for

consideration in Bachan Singh v. State of Punjab [(1980) 2 SCC

684 : 1980 SCC (Cri) 580] the majority upholding the

legislation. The dissenting judgment of Bhagwati, J.

(see Bachan Singh v. State of Punjab [(1982) 3 SCC 24 : 1982

SCC (Cri) 535]) dealt elaborately with "proportionality" and

held that the punishment provided by the statute was

disproportionate.

32. So far as Article 14 is concerned, the courts in India

examined whether the classification was based on intelligible

differentia and whether the differentia had a reasonable nexus

with the object of the legislation. Obviously, when the courts

considered the question whether the classification was based on

intelligible differentia, the courts were examining the validity of

the differences and the adequacy of the differences. This is again

nothing but the principle of proportionality. There are also

cases where legislation or rules have been struck down as being

arbitrary in the sense of being unreasonable [see Air India v.

Nergesh Meerza [(1981) 4 SCC 335: 1981 SCC (L&S) 599] (SCC

at pp.

372-373)]. But this latter aspect of striking down legislation

only on the basis of "arbitrariness" has been doubted in State of

A.P. v. McDowell and Co. [(1996) 3 SCC 709] ."

45. The thread of reasonableness runs through the entire

fundamental rights Chapter. What is manifestly arbitrary is

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obviously unreasonable and being contrary to the rule of law,

would violate Article

14. Further, there is an apparent contradiction in the three

Judges' Bench decision in McDowell (supra) when it is said that

a constitutional challenge can succeed on the ground that a law

is "disproportionate, excessive or unreasonable", yet such

challenge would fail on the very ground of the law being

"unreasonable, unnecessary or unwarranted". The arbitrariness

doctrine when applied to legislation obviously would not

involve the latter challenge but would only involve a law being

disproportionate, excessive or otherwise being manifestly

unreasonable. All the aforesaid grounds, therefore, do not seek

to differentiate

between State action in its various forms, all of which are

interdicted if they fall foul of the fundamental rights guaranteed

to persons and citizens in Part III of the Constitution.

46. We only need to point out that even after McDowell (supra),

this Court has in fact negated statutory law on the ground of it

being arbitrary and therefore violative of Article 14 of the

Constitution of India. In Malpe Vishwanath Acharya v. State of

Maharashtra, (1998) 2 SCC 1, this Court held that after passage

of time, a law can become arbitrary, and, therefore, the freezing

of rents at a 1940 market value under the Bombay Rent Act

would be arbitrary and violative of Article 14 of the Constitution

of India (see paragraphs 8 to 15 and 31)."

The Hon'ble Supreme Court in atleast three of the judgments, i.e. in

E.P.Royapa v. State of T.N. (1974) 4 S.C.C.3(supra), Maneka Gandhi v. Union

of India (1978) 1 S.C.C. 248 (supra) and Ajay Hasia v. Khalid Mujib

Sehravardi (1981) 1 S.C.C. 722, has commented on the vice of arbitrariness on

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In Cellular Operators Association of India and others v.

Telecom Regulatory Authority of India and others 2016(7) S.C.C. 732 the

Hon'ble Supreme Court held that there is a presumption in favour of the

constitutionality and validity of a supporting legislation and it can be challenged

on the following grounds :-

"34. In State of T.N. v. P.Krishnamurthy, this Court after

adverting to the relevant case law on the subject, laid down the

parameters of judicial review of subordinate legislation

generally thus :(SCC pp.528-28, para as)

"12. There is a presumption in favour of

constitutionality or validity of a subordinate legislation

and the burden is upon him who attacks it to show that

it is invalid. It is also well recognized that a

subordinate legislation can be challenged under any of

the following grounds :

(a) Lack of legislative competence to make the

subordinate legislation.

(b) Violation of fundamental rights guaranteed under

the Constitution of India.

(c) Violation of any provision of the Constitution of

India.

(d) Failure to conform to the statute under which it is

made or exceeding the limits of authority

conferred by the enabling Act.

(e) Repugnancy to the laws of the land, that is, any

enactment.

(f) Manifest arbitrariness/unreasonableness (to

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an extent where the court might well say that

the legislature never intended to give

authority to make such rules)."

For the afore-stated reasons, we are of the opinion that restricting the

rights of the Engineers of Mechanical cadre in the Public Health Engineering

Rules and the electrical cadres in Haryana Services of Engineers Class-II P.W.D.

(Irrigation Branch) Rules as provided for in the offensive clause of Rule 9 of the

2009 Rules extracted here below, is clearly hit by the vice of arbitrariness and

deserves to be struck down. Ordered accordingly.

"Provided further that promotion to the post of

Engineer-in-Chief shall be made from amongst the

members of the Civil Cadre only :

Provided further that in case of Mechanical cadre,

an Executive Engineer having an experience of seven years

may be given the pay scale of the post of Superintending

Engineer as a personal measure while continuing to

discharge the duties of Executive Engineer if an Executive

Engineer of Civil cadre having equivalent length of service

as Executive Engineer has been promoted as

Superintending Engineer :

Provided further that in the case of Mechanical

cadre, a Superintending Engineer having an experience of

three years, may be given the pay scale of the post of Chief

Engineer as a personal measure while continuing to

discharge the duties of Superintending Engineer if an

Superintending Engineer of civil cadre having equivalent

length of service as Superintending Engineer has been

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promoted as Chief Engineer."

The retrospective operation assigned to the rules with effect from

1966, has the effect of depriving the in service incumbents of the legitimate

expectations they were assured of at the time of entry into service, besides

prejudicially affecting their rights of promotion. Hence bad.

The 2009 Rules in particular the offensive Rule 9 tends to create an

unreasonable classification between two cadres, which once existed alongside but

with a common seniority list, based on the first principle of service law, to assign

seniority with effect from the date one is borne on the cadre and is restrictive in

promotional avenues to one, while favourable to those of Civil Engineering cadre,

which can at best be termed to be discriminatory and arbitrary.

Having said thus we direct the official respondents to undertake the

determination of seniority etc., in the light of what has been observed above.

Since the Court has primarily decided the question of law, there is no

necessity of impleading the applicants. Hence C.M. Applications No.10147 of

2012 and 13811 of 2015 in C.W.P. No.13566 of 2011 are dismissed. All other

pending miscellaneous applications stand disposed of.

The writ petitions are therefore, disposed of accordingly.

( MAHESH GROVER ) JUDGE

( RAJ SHEKHAR ATTRI ) January 12, 2018 JUDGE GD

Whether speaking/reasoned Yes Whether reportable Yes/No

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