Transport & Dock Workers Union & Ors vs Mumbai Port Trust & Anr

2. Article 14 of the Constitution (the equality provision) is a

slippery slope, and a fine balancing act must be done by the Court to

avoid slipping down the slope.

2

3. As observed by Lord MacMillan in `Law and Ethics' 49 Scot. L.

Rev.61, 69 (1933) :

"The judiciary is constantly confronted with the necessity of making a choice between a legal principle which is sought to be applied in a particular case, and the choice which it makes in the particular instance resulting inevitably in the expansion or restriction of the principle applied or rejected."

4. The judicial process is thus not a bucket of readymade

answers, but a process, or technique, for easing an endless flux of

changing social tensions. This is illustrated in this case.

5. Heard learned counsel for the parties and perused the record.

6. This Special Leave Petition has been filed against the impugned

judgment of the Bombay High Court dated 9th October, 2009

passed in Writ Petition No.3059 of 1999.

7. The appellants had filed a writ petition in the High Court

complaining of violation of Article 14 of the Constitution on the ground

that those Typist-cum-Computer Clerks who had been appointed in

the Mumbai Port Trust prior to 1.11.1996 have to work for six and half

hours a day, whereas Typist-cum-Computer Clerks (like the 3

appellants) who have been appointed after 1.11.1996 have to work

for seven and half hours (excluding lunch break). This, it was

alleged, violates Article 14 of Constitution.

8. The appellant no.1 is a registered Trade Union, which

represents the employees of the respondent no.1 - Mumbai Port

Trust, a body corporate constituted under Section 3 of the Major Port

Trusts Act. The appellant nos.2 and 3 are working as Typist-cum-

Computer Clerks with the respondent no.1 and were appointed to that

post after 1.11.1996. The case of the appellants, in short, is that as

regards the employees who were recruited as Typist-cum-Computer

Clerks before 1.11.1996, their duty hours are six and half hours per

day, whereas for the personnel who were recruited as Typist-cum-

Computer Clerks after 1.11.1996 they are seven and half hours.

According to the appellants, this is discriminatory and violates Article

14 of the Constitution. The appellants also claim that this practice is

contrary to Clause 24 of the settlement dated 6th December, 1994

reached between the employees Union and the respondent Port, and

also violates Section 9A of the Industrial Disputes Act. The

appellants prayed that either their duty hours be reduced by one

hour, or else they be given overtime allowance for one hour. 4

9. The reply of the respondent-Port is that the duty hours of the

Typist-cum-Computer Clerks recruited before 1.11.1996 is seven

hours per day, which includes half an hour lunch break, while the duty

hours for the Typist-cum-Computer Clerks recruited after 1.11.1996 it

is eight hours per day with half an hour lunch break. Thus, according

to the respondent no.1, the difference in the duty hours of the

personnel recruited before 1.11.1996 and after 1.11.1996 is one hour.

According to the respondent no.1, though there is no settlement

reached in this behalf, as a matter of practice and usage the duty

hours of the personnel in indoor establishment was six and half

hours. However, due to change in the technology and with

introduction of privatization and setting up private Ports with whom

the respondent-Port has to compete, the respondent-Port decided as

a policy to have uniform working hours for the personnel working on

the indoor establishment and the out door establishment. It is

claimed that from the beginning so far as personnel working on out

door establishment are concerned, their duty hours were seven and a

half hours and therefore, to bring about uniformity in the duty hours of

the personnel working on the indoor establishment and out door

establishment, a policy decision was taken to change the duty hours 5

of personnel working in the indoor establishment. However, in order

to avoid any litigation it was decided that the working hours of the

personnel who were in the indoor establishment, will not be disturbed.

While making new recruitment of personnel in the indoor

establishment, it was made clear that they will have to work for eight

hours, and it is only on acceptance of that condition by them that they

were given employment. According to the respondent no.1, this

condition was accepted by the personnel who were appointed on

indoor establishment after 1.11.1996.

10. According to the respondent no.1, since the newly recruited

personnel on the indoor establishment appointed after 1.11.1996 had

agreed to eight hours as their duty hours, with the retirement of

personnel who were recruited before 1.11.1996 in the indoor

establishment, working hours of the personnel working in the indoor

establishment would uniformly be eight hours, and thus the uniformity

in the working hours of the personnel working on the indoor and

outdoor establishments will be brought about. It was submitted by

the respondent no.1 that by adopting such practice the respondent

no.1 has not violated Article 14 of the Constitution. It was also

claimed that the reliance placed by the appellants on Clause 24 of the 6

settlement dated 6th December, 1994 is misplaced because by that

settlement no provision was made in relation to the duty hours. What

was done by Clause 24 was that none of the clauses contained in

that settlement were to be taken to have modified or cancelled any

award, practice or usage, which was in existence. It was, therefore,

submitted that the policy decision of the respondent-Port cannot be

said to be contrary to Clause 24 of that settlement.

11. In so far as the provision of Section 9A of the Industrial

Disputes Act is concerned, it was submitted that since by the policy

decision no change in relation to the personnel who were working

was intended to be brought about, there was no question of giving

any notice of change.

12. The learned counsel appearing for the appellants relied on the

judgment of the Supreme Court in the case of People's Union for

Democratic Rights and Ors. vs. Union of India and Ors. AIR

1982 SC 1473 to contend that a writ petition by workers, when they

claim any violation of fundamental right, is maintainable. The learned

counsel also relied on the judgment of the Supreme Court in the case

of Moti Ram vs. N.E. Frontier Railway AIR 1964 SC 600 to claim 7

that the respondent-Port could not have framed a policy which

violates the guarantee of Article 14 of the Constitution. The learned

counsel appearing for the appellants further relied on the judgment of

the Supreme Court in the case of Olga Tellis and Ors. vs. Bombay

Municipal Corporation and Ors. AIR 1986 SC 180 to contend that

even if an undertaking is given, that undertaking does not stop the

person who has given the undertaking from asserting his fundamental

right.

13. The learned counsel for the respondents on the other hand

relied on the judgments of the Supreme Court, in the case of Ravi

Paul and Ors. vs. Union of India and Ors. 1995 (3) SCC 300, and

M.P. State Textile Corporation Ltd. vs. Mahendra and Ors.

2005(10) SCC 675, and submitted that in one establishment there

can be employees having separate duty hours.

14. In our opinion the writ petition filed by the appellants should

have been dismissed by the High Court on the ground of existence of

an alternative remedy under the Industrial Disputes Act. It is well

settled that writ jurisdiction is discretionary jurisdiction, and the

discretion should not ordinarily be exercised if there is an alternative 8

remedy available to the appellant. In this case there was a clear

alternative remedy available to the appellant by raising an industrial

dispute and hence we fail to understand why the High Court

entertained the writ petition. It seems to us that some High Courts by

adopting an over liberal approach are unnecessarily adding to their

load of arrears instead of observing judicial discipline in following

settled legal principles. However, we may also consider the case on

merits.

15. From the record the following facts emerge :

(i) As a matter of practice, duty hours of the personnel working on indoor establishment including typist-cum-computer clerk was seven hours, which included half an hour lunch break;

(ii) The respondent-Port as a matter of policy decided to include a condition in the offer of appointment that was given to the personnel who were selected for being appointed as a typist-cum-

computer clerk after1.11.1996 that they will have to work in shift of eight hours duration;

(iii) They were to give their acceptance of this term, and it was only on their acceptance of the term that they were given appointment;

(iv) It is an admitted position that so far as the personnel working on out door establishment of the respondent no.1 are concerned their duty hours were identical to the typist-cum-computer clerk 9

appointed after 1.11.1996;

(v) As a result of change in the policy after 1.11.1996 in the indoor establishment of the respondent-Port, there were typist-cum-computer clerks appointed before 1.11.1996 whose duty hours were seven hours and there were typist-cum- computer clerks appointed after 1.11.1996 whose duty hours are eight hours;

Except for different duty hours all other conditions of service of typist-cum-computer clerks working on the indoor establishment of the respondent no.1 were identical.

16. In the light of these admitted facts, the question to be

considered is whether the action of the respondent no.1 in prescribing

different working hours for typist-cum-computer clerks working in their

indoor establishment with reference to their date of appointment is

contrary to the guarantee contained in Article 14 of the Constitution.

The reason that has been given by the respondent-Port for

prescribing different working hours for typist-cum-computer clerks

with reference to their date of appointment as found in paragraph 9 of

the counter affidavit filed on behalf of the respondent in the writ

petition in the High Court is as follows :

"At many points the typist-cum-computer clerks had to work in shift timings of the docks and other operational departments for eight hours. Thus 10

in subsequent appointments a provision for working in shift timing as required by the management was included. The management also considered that with computerization under the MIS project and operation of the Container Traffic Control System and the Cargo Management and Information System, persons to be recruited in the category of Typist-cum-Computer Clerks had to work full time on operation of computers in consonance with the operation working."

17. In paragraph 10 of their Affidavit the respondents stated:

"10. That the general objective in changing the timings of the newly recruited Typist-cum- Computer Clerks was to have persons working in timings in tune with the dock working, to do away with the distinction between indoor and outdoor and to bring about uniformity in the working hours in various fields and administrative posts in the organization and thus promote operational efficiency."

18. In paragraph 5 of their Affidavit, the respondent no.1 has further

stated :

"5. The respondents submit at the outset that Mumbai Port is a Commercial organization, which now competes not only with other Indian major ports but also private ports and terminals within India and the surrounding region. In this competitive world, the only way for survival is through cost efficient service to port users. Thus systems and work procedures have to be changed to meet the demands of the Trade. This is one step to provide better and cost efficient service."

11 19.Thus, the reason that has been given by the respondent-Port for

adopting the practice of prescribing different working hours for

Typist-cum-Computer Clerks recruited after 1.11.1996 is the

change in the situation, change in technology, the desire to bring

in uniformity in working hours of the personnel working on indoor

establishment and out door establishment. It was submitted

before us that the Port considered the option of increasing the

duty hours of the existing personnel working at that time on the

indoor establishment. However, it was thought that effecting

change in that regard may involve the Port in litigation and

introduction of the change may get delayed. Therefore, it was

decided by the Port to change the duty hours of the personnel

recruited on indoor establishment after 1.11.1996 without

disturbing the duty hours of the personnel working at that time on

the indoor establishment, after giving the personnel, to be newly

recruited, a clear understanding that in case they accept the offer

of appointment, they will have to work for eight hours and it is only

on their acceptance of this term that they were given the

appointment. Thus, for the achievement of the object i.e. bringing 12

in uniformity in the duty hours of the personnel working on the

indoor establishment and out door establishment, the respondent-

Port classified persons working on the indoor establishment for the

purpose of duty hours into two classes, the basis for classification

being the date of their appointment, and the object being to

become competitive in business and efficient.

20. In our opinion Article 14 of the Constitution does not take away

from the State or its instrumentality the power of classification,

which to some degree is bound to produce some inequality vide

State of Bombay vs. Balsara AIR 1951 SC 318. However, in our

opinion, mere inequality is not enough to violate Article 14.

Differential treatment, per se, does not constitute violation of

Article 14. It denies equal protection only when there is no

reasonable basis for differentiation vide Ameerunnissa Begum

vs. Mahaboob Begum AIR 1953 SC 91 (para 11), Babulal

Amthalal Mehta vs. Collector of Customs AIR 1957 SC 877

(para 16) etc.. If the law or the practice deals equally with

members of a well defined class, it is not obnoxious and it is not

open to the charge of denial of equal protection on the ground that

it has no application to other persons.

13

21. It has been repeatedly held by this Court that Article 14 does not

prohibit reasonable classification for the purpose of legislation or

for the purposes of adoption of a policy of the legislature or the

executive, provided the policy takes care to reasonably classify

persons for achieving the purpose of the policy and it deals

equally with all persons belonging to a well defined class. It is not

open to the charge of denial of equal protection on the ground that

the new policy does not apply to other persons. In order,

however, to pass the test of permissible classification, as has

been laid down by the Supreme Court in the catena of its

decisions, two conditions must be fulfilled; (1) that the

classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from

others left out of the group and (2) that the differentia must have a

rational relation to the object ought to be achieved by the statute in

question, vide Gopi Chand vs. Delhi Administration AIR 1959

SC 609 (see also Basu's `Shorter Constitution of India, fourteenth

edition 2009 page 81).

22.Thus the classification would not violate the equality provision 14

contained in Article 14 of the Constitution if it has a rational or

reasonable basis.

23. However, the question remains: what is `rational' or

`reasonable'? These are vague words. What may be regarded as

rational or reasonable by one Judge may not be so regarded by

another. This could lead to chaos in the law.

24. Should this vagueness or uncertainty be allowed to remain so

that Judges may have total freedom or discretion? We think not. The

law should be, as far as possible, clear and certain so that people

know where they stand and conduct their affairs accordingly. Also, if

total freedom is given to Judges to decide according to their own

individual notions and fancies the law will run riot.

25. Hence in our opinion an attempt should be made to clarify the

meaning of the words `reasonable' or `rational'.

26. Numerous decisions of this Court on Articles 14 and 19 of the

Constitution have no doubt held certain classifications to be

reasonable while other classifications have been held to be

unreasonable. But what is reasonable and what is unreasonable 15

does not appear to have been discussed in depth by any decisions of

this Court, and no tests have been laid down in this connection. All

that has been said is that it is not prudent or pragmatic to insist on a

mathematically accurate classification covering diverse situations and

all possible contingencies in view of the inherent complexities

involved in society, vide State of Karnataka vs. Mangalore

University Non Teaching Employees Association (2002) 3 SCC

302 (para 10), Ombalika Das vs. Hulisa Shaw (2002) 4 SCC 539

(para 11) etc.

27. In our opinion while it is true that a mathematically accurate

classification cannot be done in this connection, there should be

some broad guidelines.

28. There may be several tests to decide whether a classification or

differentiation is reasonable or not. One test which we are laying

down and which will be useful in deciding this case, is : is it conducive

to the functioning of modern society? If it is then it is certainly

reasonable and rational.

29. In the present case, as we have noted, the purpose of the 16

classification was to make the activities of the Port competitive and

efficient. With the introduction of privatization and setting up private

Ports, the respondent had to face competition. Also, it wanted to

rationalize its activities by having uniform working hours for its indoor

and outdoor establishment employees, while at the same time

avoiding labour disputes with employees appointed before

01.11.1996.

30. In the modern world businesses have to face competition with

other businesses. To do so they may have to have longer working

hours and introduce efficiency, while avoiding labour disputes.

31. Looked at from this point of view the classification in question is

clearly reasonable as it satisfies the test laid down above.

32. We do not mean to say that the above is the only test to decide

what is reasonable, but in our opinion it is certainly one of the tests to

be adopted if we want our country to progress. We have to take a

practical view of the matter instead of relying on abstract, a priori

notions of equality.

17

33. Coming back to the present case, the object of the new policy

adopted by the respondent-Port was to bring about uniformity in the

working hours of the personnel working on the indoor and outdoor

establishment. For achieving that purpose the Port took a policy

decision to lay down a condition in the appointment orders of the

personnel recruited on indoor establishment after 1.11.1996 that they

will have to work for eight hours. For the purpose of classification the

date 1.11.1996 was chosen, because different duty hours were to be

made applicable from the one which were applicable to the existing

personnel working on the indoor establishment in relation to the

persons to be employed after that date. The purpose of this was to

make the organization competitive and efficient.

34. For the purpose of bringing about uniformity in the working

hours of the personnel working on the indoor establishment, two

options were available to the Port; (i) either to take steps to bring

about change in the working hours of the personnel presently working

on the establishment and then apply that change to the personnel

who are recruited in future, or (ii) to apply the changed practice in

case of new recruits after obtaining their consent for adoption of the

new practice and thus introduce the change gradually because 18

personnel recruited before 1.11.1996 were bound to retire sooner or

later with their retirement, and a day would come when in the indoor

establishment the only personnel working will be those who have

been recruited after 1.11.1996.

35. Of these two options the Port appears to have chosen the

second option because in the opinion of the Port it would be relatively

hassle free. It was submitted before us that the Port apprehended

that if it had decided to take the first option, it would have been

involved in labour disputes and that litigation would have prevented

the Port from introducing the change. We do not see anything

unreasonable in the stand of the Port.

36. It is nobody's case before us that the decision of the Port was

not bona fide. In our opinion, the decision of the Port was bona fide,

and hence no fault can be found with the said decision and it cannot

be said that it violates Article 14 of the Constitution.

37. The policy decision of the Port cannot be said to cause any

prejudice to the interest of the personnel recruited after 1.11.1996

because before their recruitment they were clearly given to

understand as to what would be their working hours, in case they 19

accept the appointment. In our opinion the introduction of the new

policy was a bona fide decision of the Port, and the acceptance of the

conditions with open eyes by the appellants and the recruits after

1.11.1996 means that they can now have no grievance. It is well

settled that Courts should not ordinarily interfere with policy

decisions.

38. In our opinion, since the classification with reference to the date

of appointment of typist-cum-computer clerks was for the purpose of

bringing about uniformity in working hours of the personnel working in

indoor and outdoor establishments, and its aim was to make the

organization competitive and efficient, it cannot be said that it was

unreasonable and hence violative of Article 14 of the Constitution.

Also, avoidance of labour disputes is a reasonable basis for the

classification.

39. In our opinion, Article 14 cannot be interpreted in a doctrinaire

or dogmatic manner. Absolute and inflexible concepts are an

anathema to progress and change. As observed by the great Justice

Holmes of the U.S. Supreme Court, the machinery of the government

would not work if it were not allowed some free play in its joints vide 20

Missourie, Kansas and Tennesee Railroad vs. May 194 U.S.

267(1904). Excessive interference by the judiciary in the functions of

the executive is not proper. In several decisions, we have held that

there must be judicial restraint in such matters, vide Divisional

Manager, Aravali Golf Club vs. Chander Hass (2008) 1 SCC 683. In Government of Andhra Pradesh vs. P. Laxmi Devi (2008) 4

SCC 720 the doctrine of judicial review of statutes has been

discussed in great detail, and it has been observed that the judiciary

must show great restraint in this connection.

40. Those who entered service after 1.11.1996 knew that they have

to work for seven and half hours excluding lunch break and with open

eyes they accepted the employment. Hence there is no question of

violation of Article 14 of the Constitution.

41. In our opinion, fixing of hours of work, provided they do not

violate any statutory provision or statutory rule, are really

management functions and this Court must exercise restraint and not

ordinarily interfere with such management functions.

42. Differential treatment in our opinion does not per se amount to

violation of Article 14 of the Constitution. It violates Article 14 only 21

when there is no conceivable reasonable basis for the differentiation.

In the present case, as pointed out above, there is a reasonable basis

and hence in our opinion there is no violation of Article 14 of the

Constitution.

43. In our opinion it is not prudent or pragmatic for the Court to

insist on absolute equality when there are diverse situations and

contingencies, as in the present case. In view of the inherent

complexities involved in modern society, some free play must be

given to the executive authorities in this connection.

44. As regards cut-off dates, this Court in Government of Andhra

Pradesh and Ors. vs. N. Subbarayudu and Ors. 2008(14) SCC

702 has observed vide paragraphs 5 to 9 :

"5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other ad- ministrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab vs. Amar Nath Goyal 2005(6) SCC 754) 22

6. No doubt in D.S. Nakara vs. Union of India 1983(1) SCC 305 this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab vs. Amar Nath Goyal.

7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These consid- erations can be financial, administrative or other considerations. The court must exercise judicial re- straint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.

8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar vs. Ramjee Prasad 1990(3) SCC 368, Union of India vs. Sudhir Kumar Jaiswal 1994(4) SCC 212 (vide SCC 5), Ramrao vs. All In- dia Backward Class Bank Employees Welfare Assn. 2004(2) SCC 76 (vide para 31), University Grants Commission vs. Sadhana Chaudhary 1996(10) SCC 536, etc. It follows, therefore, that even if no reason has been given in the counter-affi- davit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbi- trary and violative of Article 14 unless the said cut- off date leads to some blatantly capricious or outra- geous result.

9. As has been held by this Court in Ar-

avali Golf Club vs. Chander Hass 2008(1) SCC 683 and in Govt. of A.P. vs. P. Laxmi Devi 2008(4) SCC 720 the court must maintain judicial restraint in matters relating to the legislative or executive do- main."

45. In our opinion, there is often a misunderstanding about Article

14 of the Constitution, and often lawyers and Judges tend to construe 23

it in a doctrinaire and absolute sense, which may be totally

impractical and make the working of the executive authorities

extremely difficult if not impossible.

46. As Lord Denning observed :

"This power to overturn executive decision must be exercised very carefully, because you have got to remember that the executive and the local authorities have their very own responsibilities and they have the right to make decisions. The Courts should be very wary about interfering and only interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable. Otherwise you would get a conflict between the courts and the government and the authorities, which would be most undesirable. The courts must act very warily in this matter." (See `Judging the World' by Garry Sturgess Philip Chubb).

47. In our opinion Judges must maintain judicial self restraint while

exercising the powers of judicial review of administrative or legislative

decisions.

48. "In view of the complexities of modern society", wrote Justice

Frankfurter, while Professor of Law at Harvard University, "and the

restricted scope of any man's experience, tolerance and humility in

passing judgment on the worth of the experience and beliefs of others 24

become crucial faculties in the disposition of cases. The successful

exercise of such judicial power calls for rare intellectual

disinterestedness and penetration, lest limitation in personal

experience and imagination operate as limitations of the Constitution.

These insights Mr. Justice Holmes applied in hundreds of cases and

expressed in memorable language : It is misfortune if a judge reads

his conscious or unconscious sympathy with one side or the other

prematurely into the law, and forgets that what seem to him to be first

principles are believed by half his fellow men to be wrong."

49. In writing a biographical essay on the celebrated Justice

Holmes of the U.S. Supreme Court in the dictionary of American

Biography, Justice Frankfurter wrote :

"It was not for him (Holmes) to prescribe for society or to deny it the right of experimentation within very wide limits. That was to be left for contest by the political forces in the state. The duty of the Court was to keep the ring free. He reached the democratic result by the philosophic route of skepticism-by his disbelief in ultimate answers to social questions. Thereby he exhibited the judicial function at its purest." (see `Essays on Legal History in Honour of Felix Frankfurter' edited by Morris D. Forkosch.)

50. In our opinion adjudication must be done within the system of 25

historically validated restraints and conscious minimization of the

Judges' preferences. The Court must not embarrass the

administrative authorities and must realize that administrative

authorities have expertise in the field of administration while the Court

does not. In the words of Chief Justice Neely, former Chief Justice of

the West Virginia Supreme Court of Appeals :

"I have very few illusions about my own limitations as a Judge. I am not an accountant, electrical engineer, financer, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator."

51. In administrative matters the Court should, therefore, ordinarily

defer to the judgment of the administrators unless the decision is

clearly violative of some statute or is shockingly arbitrary. In this

connection, Justice Frankfurter while Professor of Law at Harvard

University wrote in `The Public and its Government' -

"With the great men of the Supreme Court constitutional adjudication has always been statecraft. As a mere Judge, Marshall had his superiors among his colleagues. His supremacy lay in his recognition of the practical needs of government. The great judges are those to whom 26

the Constitution is not primarily a text for interpretation but the means of ordering the life of a progressive people."

52. In the same book Justice Frankfurter also wrote -

"In simple truth, the difficulties that government encounters from law do not inhere in the Constitution. They are due to the judges who interpret it. That document has ample resources for imaginative statesmanship, if judges have imagination for statesmanship."

53. In legal scholarship, Roscoe Pound challenged the rigid

formalism of Justice Field. Pound strongly argued against a

jurisprudence founded upon immutable first principles and sought in

the social sciences and related fields a means for making the law

responsive to a changing world.

54. As observed by Justice Frankfurter :

"It would be comfortable to discover a Procrustean formula........ If such were the process of Constitutional adjudications in this most sensitive field, it would furnish an almost automatic task of applying mechanical formula and would hardly call for the labors of Marshall or Taney, of Holmes or Cardozo. To look for such talismanic formula is to assume that the broad guarantees of the Constitution can fulfill their purpose without the nourishment of history."

27 55. In Keshavanand Bharti vs. State of Kerala AIR 1973 SC

1461 (vide paragraph 1547) Khanna,J. observed :

"In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error."

56. In the present case there was a reasonable basis for the

classification, and hence there is no violative of Article 14 of the

Constitution.

57. For the reasons given above there is no merit in this appeal and

hence it is dismissed.

.....................................J. [Markandey Katju]

.. ..................................J. [Gyan Sudha Misra]

New Delhi:

November 15, 2010