original jurisdiction writ petition  civil  number. 57286308 of 1982.  under article 32 of the companystitution of india

m. tarkunde and s.m. ashri for the petitioners. naunit lal and s.k. bagga for the respondents. the judgment of the companyrt was delivered by
pathak j. the petitioners in these writ petitions ply
cycle rickshaws in amritsar which they hire for the day from
the owners of those vehicles. most of the petitioners belong
to other districts of punjab and also companye from the
neighbouring states of jammu and kashmir himachal pradesh
and uttar pradesh. they carry on that activity for about
eight months in the year and then return to the regions to
which they belong. they observe this practice year after
year. for the hire of cycle rickshaws they pay the owners a
certain sum for the day retaining the balance of the days
income to themselves. it is alleged by the petitioners that
they are number in a position to purchase any cycle rickshaws
and that unless they hire the vehicles they cannumber carry on
that activity. over the years there has been companysiderable agitation in
the state of punjab against the practice of the owners of
cycle
rickshaws hiring people of the poorest stratum in society to
ply the cycle rickshaws for public passenger traffic and to
charge them for each days use of the vehicles. it is said
that oppressed by their poverty the petitioners and those
similarly placed are obliged to enter into this arrangement
with cycle rickshaw owners who through such exploitation
are able quite often to obtain an unduly handsome return on
the paltry investment made in the purchase of the cycle
rickshaws. the agitation led the state government to
consider measures for enabling the pullers of cycle
rickshaws to extricate themselves from such exploitation
and it was thought desirable that the cycle rickshaw pullers
should own their own vehicles and the state government
should arrange interest free loans for them to enable them
to purchase cycle rickshaws. with this object in mind the
punjab legislature enacted the punjab cycle rickshaws
 regulation of licence  act. 1976.
s. 3 provided
licence for cycle-rickshaws.-  1  numberwithstanding
anything companytained to the companytrary in the punjab
municipal act 1911 or any rule or order or bye-
law made thereunder or any other law for the time
being in force numberowner of a cycle-rickshaw shall
be granted any licence in respect of his cycle-
rickshaw number his licence shall be renewed by any
municipal authority after the companymencement of this
act unless the cycle-rickshaw is to be plied by
such owner himself. and s. 5 declared-
penalties.-  1  any person who is found to be in
possession of a cycle-rickshaw without a licence
conforming to the provisions of this act or plies
or causes it to be plied by a person without a
valid drivers licence issued under any law for
the time being in force or plies or causes to be
plied a cycle-rickshaw number meant to be plied for
hire without painting the body thereof in yellow
shall be punishable with imprisonment which may
extend to three months. the petitioners companysidered that the enactment had
resulted in making their companyditions much worse for whereas
formerly they companyld at least ply the cycle-rickshaws or
hiring them from the
owners for a sum they were unable to do so number specially
as they did number have the funds number possessed the
arrangements for obtaining a loan for the purpose. it was
pointed out that as the petitioners were number permanent
residents of amritsar numberone was prepared to stand surety
for the amount which they sought to borrow form the banks
that inasmuch as the banks at amritsar had been unable to
recover about eighty per cent of the amount loaned by them
they had decided to deny this facility to cycle-rickshaw
pullers and that therefore they were number in a position to
purchase cycle-rickshaw. in the circumstances a number of
cycle rickshaw pullers filed civil writ petition number 563 of
1979 nanak chand ors. v. state of punjab ors. and writ
petition number 839 of 1979 azad rickshaw pullers union  regd.  ch. town hall amritsar ors. v. the state of punjab ors. 1981 1 scr 366.
meanwhile and to the same end the municipal
corporation of delhi had amended the cycle-rickshaw bye-laws
of 1960. after amendment bye-law 3 read as follows-
3  1  numberperson shall keep or ply for hire a
cycle rickshaw in delhi unless he himself is the
owner thereof and holds a licence granted in that
behalf by the companymissioner on payment of the fee
that may from time to time be fixed under sub-
section  2  of section 430 provided that numberperson
shall be granted more than one such licence-

numberperson shall drive a cycle rickshaw for
hire unless he holds a driving licence granted in
that behalf by the companymissioner on payment of the
fee that may from time to time be fixed under
sub-section  2  of section 430.
the bye-laws framed by the delhi municipal companyporation were
challenged by cycle rickshaw pullers in writ petition number
841 of 1980 nanhu ors. v. delhi administration ors. 1981 1 scr 373.
the two writ petitions number. 563 and 839 of 1979 filed
by the cycle rickshaw pullers of amritsar were disposed of
by this companyrt on august 5 1980 by a judgement in which the
court decided number to enter into the question of the
constitutional validity of the punjab act but on the
contrary to frame a scheme in furtherance of the act and
for the purpose of giving effect to it. likewise
on the same day this companyrt disposed of writ petitions number. 841 of 1980 and 728 of 1980 pertaining to the cycle rickshaw
pullers of delhi and the judgment proceeded on the same
lines as in amritsar writ petitions. the scheme propounded by the companyrt in azad rickshaw
puller union  supra  was intended to be a self-working
specific scheme which makes the statutory ban number a
negative self-defeating interdict but a positive econumberic
manumission  and to apply to the entire state of punjab. its principle features may be set forth here. every rickshaw puller who had been a licensee in
the amritsar or other municipality within one year of the
coming into force of the punjab act of 1976 would be
entitled to apply to the municipal companymissioner within one
month from the date of the judgment  august 5 1980  for a
certificate testifying that he had
held a licence for rickshaw pulling within that period. the
municipal companymissioner would after verification from the
records grant the certificate within one nth of the date
of application taking a liberal attitude in the matter of
issuing the certificate. on receipt of the certificate or other document
the rickshaw puller companyld apply to the credit guarantee
corporation of india  small loans  under the guarantee
scheme of 1971 requesting the companyporation to stand
guarantee to the punjab national bank or other. mutually
agreed upon schedule bank for advance of a loan upto rs.900
 or for a larger sum if the price of a cycle rickshaw was
more than rs.900 . the rickshaw puller would deposit a sum of rs.50
with the bank as a companydition of eligibility for obtaining
the loan and the balance of the loan would be guaranteed by
the aforesaid companyporation. upon fulfillment of those
conditions the bank would advance the sum required for the
purchase of a cycle rickshaw to the manufacturer or vendor
indicated by the rickshaw puller. upon taking delivery of the cycle rickshaw and
producing before the bank the voucher evidencing purchase
and delivery along with the rickshaw if needed for
physical verification within one week of taking such
delivery and thereafter whenever directed the rickshaw
puller would execute the necessary documents required by the
bank in order to hypothecate the vehicle in favour of the
bank. the rate of interest payable by the rickshaw
puller to a the bank would be governed by the scheme framed
by the state government for loans to rickshaw pullers. the loan would be repaid by the rickshaw puller in
15 monthly instalments. if payment of the instalments is
delay-ed higher rates of interest would be recoverable in
accordance with the 1971 scheme. in the event of the
instalment being duly paid the government would reimburse
the rickshaw puller with the total amount of interest. some further facilities for the rickshaw pullers
would be included within the scheme. for example  1  the
rickshaw puller union would be permitted by the municipality
to set up and run a workshop for repair and allied work and
a service station for the cycle rickshaws. sufficient place
would be allowed in suitable places for rickshaw stands and
for the safe keeping of rickshaws subject to moderate
charges.  2  where during the agricultural season and
rickshaw puller numberinated other unemployed persons to ply
the rickshaws during that season the municipal companymissioner
on satisfaction that the numberination was made bona fide
would issue licences to the numberinees for the duration of the
agricultural season. if group insurance of the life of the rickshaw
pullers and of their rickshaws was feasible the municipal
commissioner would prepare a scheme in that behalf in
consultation with the rickshaw puller unions. likewise the municipal companymissioner would also
draw up a project whereby cycle rickshaws would be replaced
by scooters in successive phases so that the rickshaw
pullers companyld ultimately become scooter drivers owning their
own scooters. the scheme formulated by the companyrt in nanhu ors.  supra  for the delhi cycle rickshaw pullers companytained the
same features. the delhi administration had imposed a
ceiling on the total number of cycle rickshaws permissible
on the road within its territory and the companyrt directed
the delhi administration to companysider applications by
rickshaw pullers for licenses on their merits including
consideration of the period during which the applicants had
carried on such activity. in 1982 the present writ petitions were filed by a number of
rickshaw pullers of amritsar who companyplained that the scheme
propounded by this companyrt had number been implemented by the
amrtisar municipal companyporation and in the result the
provisions of the punjab act of 1976 had companytinued to
operate with unabated severity to their detriment. they pray
that the punjab act be declared ultra vires as an
unconstitutional violation of their fundamental right under
sub-cl.  g  of cl.  1  of article 19 of the companystitution to
carry on their occupation or business. they also companytend
that as a similar restriction is number imposed on taxi
drivers cart load carriers three wheeler auto-rickshaw
drivers and other vehicles plying for public hire the punjab
act violates the fundamental rights of the petitioners
guaranteed by articles 14 and 16 of the companystitution. in
this companynection they also point out that 20000 cycle
rickshaws are being allowed to ply in ahmedabad agra
kanpur varanasi patna calcutta and nagpur cities with a
population number less than that of amritsar by rickshaw
pullers who do number own the vehicles plied by them. the
petitioners say that the scheme propounded by the companyrt has
failed because the municipal administration did number make any
real attempt to implement it. in opposing the writ petitions the amritsar municipal
corporation affirms that the companyt of a cycle rickshaws being
about rs.1200 a person with substantial financial resources
would purchase a number of cycle rickshaws and hire them out
to rickshaw pullers at rs.8 per day irrespective of the
income earned by the rickshaw puller thus earning over 150
per cent interest over his investment after taking into
account expenditure incurred in petty repairs. to protect
poor and needy rickshaw pullers from such exploitation the
punjab legislature had enacted the aforesaid punjab act of
1976 to enable rickshaw pullers to escape from the clutches
of such middle-men. lt was asserted that with the punjab act
coming into force a large number of rickshaw pullers had
taken advantage of the act and purchased their own cycle
rickshaws under the punjab government scheme by securing
loans from the banks. it seems that between the enforcement
of the punjab act and the formulation of the scheme by this
court in azad rickshaw pullers union  supra  the amritsar
municipal companyporation had already renewed more than nine
thousand licences in favour of individual rickshaw pullers
who were owners of the rickshaws plied by them. numberlimit on
the number of cycle rickshaws to be plied had been imposed
by the municipal companyporation. according to the amritsar
municipal companyporation the individual rickshaw pullers failed
to apply to the municipal companyporation for the requisite
certificates enabling them under the scheme to apply to a
schedule banks for a loan. it
transpires however that the azad rickshaw pullers union
deposited 1170 applications purporting to be from
individual rickshaw pullers with the amritsar municipal
corporation for certificates in accordance with the terms of
the scheme and this it was said was done between the first
week of august 1980 and the first week of september 1980.
it is alleged by the petitioner that these applications have
remained pending with the municipal companyporation ever since
and numbercertificate has yet been issued pursuant to any of
those applications. the material on the record however
discloses that on september 16 1980 the municipal
corporation wrote to the azad rickshaw pullers union asking
it to direct the individual applicants to furnish the
license numbers of the previous rickshaw driving licenses
issued within one year of the companying into force of the
punjab act of 1976 in order to enable the municipal
corporation to verify from its records that the respective
applicants were entitled to the certificate. the municipal
corporation has stated on affidavit that the names and
addresses of the applicants set forth in many of the
applications were illegible some of them were number even
signed or bore the impression of the applicants thumb mark
that some of the applications had been submitted in
duplicate or triplicate in order to obtain more than one
certificate for the same applicant that all the
applications were made on the printed form of the azad
rickshaw pullers union and in the circumstances it became
necessary for the municipal companyporation to ask that union to
direct the applicants to furnish the license numbers of
their rickshaw driving licenses 80 that the certificates
could be issued without delay. it is pointed out that the
said union wrote back on october 3 1980 that as it had number
been possible for the rickshaw pullers to preserve the old
licenses they companyld only make a statement that they had been
plying rickshaws in the past and the municipal companyporation
should verify from its records whether the applications were
in order. it is stated that numbere of the applicants presented
himself number produced any licenses or license number
thereafter. the municipal companyporation wrote on december l
1980 again to the said union for the information required
from the applicants 80 that further action companyld be taken in
the matter. it is said that the thing was done by the
applicants or by the said union and ultimately the municipal
corporation after waiting for a companysiderable time for a
response from the applicants decided to attempt to trace
out the names of the applicants from its old records. the
task it appears took a companysiderable time and according to
the municipal companyporation it was hampered by the fact that
the names and addresses of the applicants were number clearly
legible on the
applications and in some cases the addresses were
incomplete. the municipal companyporation affirm that
numberwithstanding the lack of companyperation from the applicants
it was able to prepare as many as 785 certificates by
numberember 22 1983 and a letter was written by the municipal
corporation to the said union asking the applicants to
collect their certificates. it is alleged that numbere of the
applicants turned up. according to the municipal companyporation
the applicants are merely pawns in the hands of the previous
owners of the cycle rickshaws and are being manipulated by
them. it also appears that the municipal companyporation received
a letter dated september 1 1980 from the azad rickshaw
pullers union for permission to use the rickshaw stand
already situate at the general bus stand amritsar as a
rickshaw repairing workshop. there was a further letter
dated september 17 1980 from the azad rickshaw puller union
for allotment of land for rickshaw sheds and rickshaw stands
to enable the rickshaw pullers to keep their rickshaws in
safe custody during their leisure hours and during the
night. the allotment of land was requested in five different
localities of the city 80 that a companyresponding number of
sheds companyld be raised the land required for each shed being
10000 square meters. on october 4 1980 the municipal
corporation replied that there was numbervacant land at the
places mentioned by the said union and that land at some
other suitable places may be suggested. by a letter dated
december 1 1980 the municipal companyporation reminded the said
union that it should suggest alternative places for
providing sheds for the rickshaws. it is alleged that
thereafter there was numberreply. there are other affidavits on
the records some of them having been filed by other
rickshaw puller unions of amritsar alleging that some
rickshaw pullers had already availed of the benefit of the
scheme propounded by this companyrt and were plying rickshaws on
loans taken from the banks. then there are applications for
intervention by rickshaw pullers union belonging to other
municipalities in punjab which suggest that the municipal
committee companycerned purporting to act under the scheme
propounded by this companyrt have entered upon a companyrse of
rampant companyruption granting a number of certificates to a
single applicant behind whom stand the old rickshaw owners
who are thus perverting the scheme for their own greedy
ends. in other words the original rickshaw owners are
attempting through false applications made in the name of
fictitious persons to secure certificates enabling them to
put a number of vehicles on the road. further affidavits
have been filed in support of the writ petition testifying
to the difficulty in obtaining certificates from the
municipal companyporation and there
after loans from the banks and to the impossibility of
plying rickshaws without proper arrangements for safely
parking them for the night. there are allegations on both
sides the petitioners being accused of having been set up
by the original owners of the vehicles in order to have the
punjab act of 1976 struck down by the companyrt and on the other
side the municipal companyporation being accused of
unwillingness to work the scheme propounded by the companyrt. two questions arise before us. the first is whether the
punjab act of 1976 is an instance of incomplete legislation
and cannumber serve the purpose for which it was intended and
in the circumstances because of the prohibitions and
restraints incorporated in it it companystitutes an
unreasonable restriction on the fundamental rights of the
petitioners guaranteed under sub-cl.  g  of cl.  l  of art.19
of the companystitution and also violates articles 14 and 16 of
the companystitution. the second question is whether the scheme
framed by this companyrt in azad rickshaw pullers union  supra
is incapable of proper implementation and therefore of no
legal effect. the punjab act of 1976 regulates the issue of licenses
in respect of cycle rickshaws plying in any municipal area
in the state of punjab. it companytains very few provisions and
essentially provides that numberowner of a cycle rickshaw will
be granted a license in respect of his cycle rickshaw unless
the vehicle is plied by the owner himself. she intention of
the statute is to ensure the plying of cycle rickshaws by
rickshaw pullers who are owners of the vehicle thus
eliminating the middlemen who owns the vehicle. the petitioners companytend that 8.3 o the punjab act
constitutes an unreasonable restriction on their fundamental
right under sub-cl.  g  of clause  1  of article 19 of the
constitution to carry on their occupation of plying cycle
rickshaws because the exercise of that right has been mate
dependent upon their owning the cycle rickshaws piled by
them. it is urged that the companystitutional validity of the
impugned legislation cannumber be sustained on the basis of an
administrative scheme which has number been sanctioned by it
and there is numberhing in the punjab act itself which enables
rickshaw pullers to acquire proprietary rights in cycle
rickshaws plied by them. it is urged that while the object
of the statute has been expressed in 8.3 of the punjab act
there is numberhing in the act which provides the machinery for
achieving that object. it is number sufficient it is said to
provide that
the rickshaw puller should own the cycle rickshaw which he
plies. the statute should have provided the mechanics of a
system which would have enabled rickshaw pullers in their
abject poverty to become the owners of such vehicles. no
such provision having been made in the statute it is
submitted the act represents at best a declaration of
policy and numberhing more. our attention has been invited to
the observations of this companyrt in maneka gandhi v. union of
india 1978 2 s.c.r. 621 where it has been elaborately
explained that article 21 must be read with article 19 in
adjudging the companystitutional validity of an act and in
doing so the companysequences brought about by the impugned
legislation and of the action under it on the citizen must
constitute the test of its validity rather than the object
of the legislature or the form of action. reference was made
in this companynection to the law laid down in b.c. companyper v.
union of india 1970 3 s.c.r. 530 and other cases. it
cannumber be disputed it seems to us that the true test of
the validity of a statute must be the effect and companysequence
of its operation on the fundamental right of the citizen. the object underlying the legislation embodies the intent of
the legislature in enacting it but in companystruing its
validity in the companytext of a citizens fundamental right the
question before the companyrt always must be whether its impact
on that fundamental right can be regarded as a reasonable
restriction on the exercise of the right. the focal point
during such examination is the fundamental right and the
duty of the companyrt must be to companysider the quality and degree
of the encroachment made by the operation of the statute on
the citizens exercise of that right. in the instant case s.3 of the punjab act has the
effect of making it possible for the rickshaw puller to ply
the rickshaw as owner of the vehicle and thereby to be the
full owner of the income earned by him. numberlonger will he be
obliged to part with an appreciable portion of that income
in favour of anumberher who owns the vehicle. the punjab act is
beneficial legislation bringing directly home to the
rickshaw puller the entire fruit of his daily toil. m e
enactment is intended as a social welfare measure against
the exploitation of the poor and unemployed by rapacious
cycle rickshaw owners who by reason of their superior
financial resources fatten their wealth from the sweated
toil or rickshaw pullers. even if we look at the impugned
legislation from the point of view of its impact of the
fundamental right of rickshaw owners who give them on hire
to rickshaw pullers for plying it is plain that the
legislation companystitutes a reasonable restriction on the
right of such rickshaw owners to carry on the
business of hiring out cycle rickshaws inasmuch as the
exercise a of the right is excluded by legislation designed
for the econumberic ant social welfare of rickshaw pullers who
constitute a significant sector of the people a sector 80
pressed by poverty and straitened by the econumberic misery of
their situation that the guarantee of their full days wages
to them seems amply justified. on the question whether the punjab act is incomplete in
itself and 88 it stands has the effect of disabling
rickshaw pullers from carrying on he occupation of plying
cycle rickshaws because of the companydition of ownership in the
cycle rickshaws the companyrt is entitled to companysider the
factual matrix in which the punjab act was enacted for the
purpose of determining its validity. the record of the case
discloses that for several years a powerful movement has
raged aimed at freeing the rickshaw pullers from
exploitation by cycle rickshaw owners. the owner is usually
a person of sufficient wealth enabling him to acquire a
number of cycle rickshaws. the rickshaw puller on the
contrary is a needy person beaten by poverty and companypelled
to ply the rickshaw on terms dictated by the owner who
taking advantage of the desperate plight of the rickshaw
puller is in a position to demand a wholly disproportionate
hire charge for the use of the vehicles the labour and toil
and the sweat and strain involved in pulling the cycle
rickshaw works in a few years serious injury to the health
and stamina and life-span of the rickshaw puller. he must
toil the whole day long in order to earn a small income
most of which he must hand over to the owner in payment of
the hire charge. in the circ circumstances the government
prepared a scheme as early as 1970 to enable the rickshaw
puller to extricate himself from the shackles of a system
which for several decades had debased and companydemned him to
a lamentable existence. the object was to assure him a life
where the entire fruit of his labour and industry would
accrue to his own benefit. we have on the record before us a
circular number rmj/1734/73 dated august 6 1973 issued by the
jullunder circle of the punjab national bank. fr . the very
beginning the scheme extended a number of companycessions to
rickshaw pullers and as it stood in 1973 it provided for
loans by the banks to rickshaw pullers. the loans were
intended for such individuals who did number already own any
rickshaw and who had been issued a certificate to ply a
rickshaw by the municipal authority. the loan was intended
for the purchase of a new cycle rickshaw ant extended to 90
of the total companyt of rickshaw or rs.700 whichever was lower. the rickshaw purchased with the loan was to be hypothecated
to the bank and
registered with the municipal authority in the name of the
borrower as owner and the bank as financier. the advances
would be companyered by a guarantee extended under the credit
guarantee companyporation of india  small loans  guarantee
scheme 1971. the scheme companytained further details relating
to payment of interest the documentation required the
mode of disbursement the terms of repayment of the loan and
so on. it was in this factual companytext and in order to give
statutory recognition to the object underlying the scheme
that the punjab act in 1976 was enacted. but learned companynsel for the petitioners companytends that
the validity of s.3 of the punjab act cannumber be sustained on
the basis of a scheme which can be varied it will by the
authors of the scheme during the operation of the punjab
act. the scheme it is said may be altered to a degree
where it cease to be identifiable with the object of the
impugned legislation. reliance is placed by learned companynsel
on the lord krishna sugar mills limited anr. v. the union of
india anr. 1960 1 s.c.r. 39. in that case the companyrt
laid down that it was permissible to judge the
reasonableness of a law on the basis of the surrounding
circumstances as well as of companytemporaneous legislation
enacted as part of a single scheme. but it also laid down
the limitations circumscribing that principle. subba rao. j
said
but i am clear in my mind that the validity of an
act shall number be made to depend upon anumberher act
unconnected with the impugned act or power
conferred thereunder which might if properly
exercised off-set the evil tendency or the vice
of the impugned act. if the validity of an act is
made to depend upon such a foundation a super-
structure will have been built on shifting sands. to do that is to destroy the stability of
legislation and to introduce an uncertain element
therein. if two or more acts were parts of the
same scheme of plan to implement the same or
common objective or if the impugned act though
it was number originally companyceived at the time when
the earlier act was passed was only as extension
or a further step by the legislature for
implementing the object of the earlier act or if
the legislature by express reference incorporated
in the impugned act the provisions of the earlier
act it would be permissible to rely upon the said
provisions of the earlier act number because they
formed part of the prevailing
conditions but because either the earlier act
formed part of the impugned act by reference or
both of them formed part of the same legislative
plan
but to go beyond this is to destroy the stability
of legislation and to introduce an uncertain
element. to go further and to depend upon a
numberification of a transitory nature issued under
an unconnected act is to place the statute in a
fluid state. in such a situation its validity
would depend upon a statutory order of temporary
duration it would change companyour with the changing
attitudes of an authority empowered to issue the
order. these are valuable dicta valid whenever the
constitutionality of a statute falls to be examined in the
context of companytemporaneous legislation. in the present case
however the punjab act was enacted with an eye to a scheme
already existing and in operation. the scheme supplied the
mechanics for the operation of the punjab act. the two were
number unconnected. they were closely companynected and indeed
constituted an integrated plan. the apprehension that the
validity of the act is dependent on the companytinued operation
of the scheme which was open to subsequent modification at
the will of its authors has numberfoundation. the companysequences
of such modification can be taken care of. the punjab act
confers on the state government by r.7 power to frame
appropriate rules in support of and-for the furtherance of
the object of the act. in the event of the scheme being
altered or modified by its authors to a degree incompatible
with the true operation and success of the punjab act the
situation can always be met by the state government framing
suitable rules under 8.7 of the act. the state government is
number only empowered to do so it is under an obligation to
frame rules appropriate to the successful implementation of
the legislative goal. it seems to us that in a situation
which calls for adjustment from time to time in view of
varying econumberic and social factors a sufficient degree of
flexibility is needed and companysequently it was appropriate
for the legislature to leave the measure of companytrol to the
rule asking power of the state government. that in truth is
one of the primary reasons for delegated legislation. so
long as the rules 80 made serve the object of the act and
fall within the limitations implied thereby numberfault can be
found with them. in our judgment the impugned legislation cannumber be
regarded as an unreasonable restriction on the fundamental
rights of the petitioner under article 21 read with
sub.cl.  g  of clause 1 of article 19 of the companystitution. an attempt was made by learned companynsel for the
petitioners to show that 8.3 of the punjab act created an
invidious distinction between rickshaw pullers and those who
carried on the occupation of plying other vehicle such as
taxi-cabs on hire. we see companyparison. the pathetic
conditions in which rickshaw pullers pursue their burdensome
vocation places them in a class apart from others in their
right to ameliorative and protective treatment from the
state. this challenge must also fail. towards the end we wish to express the view that the
scheme framed by this companyrt in azad rickshaw pullers union
 supra  is a good scheme capable of implementation and
productive of the object for which it was designed. if it
has number been successfully implemented so far it is in the
main largely on account of circumstances which companyld have
been avoided. inherently we see numberfeature in the scheme
which operates against its effectiveness. if the scheme has
number succeeded as was intended by the companyrt it is largely
because appropriate action was number taken by the parties
concerned to implement it. a large number of applications
were made through the azad rickshaw pullers union to the
municipal companyporation for the grant of certificates enabling
the rickshaw pullers to obtain loans from the banks. the
municipal companyporation was anxious to ensure that fraud was
number practised on the scheme by existing- rickshaw owners who
could be tempted to apply for certificates in fictitious
names and secure benefits which should have been companyfined to
rickshaw pullers as owners of the vehicles. the 1170
applications made through the azad rickshaw pullers union
could number be related immediately to bona fide individual
rickshaw pullers and in the absence of the further material
sought by the municipal companyporation from the rickshaw
pullers it would naturally have taken companysiderable time to
take action on those applications. it seems to us that a
fresh opportunity should be provided to rickshaw pullers to
avail of the scheme formulated by this companyrt. a fundamental
condition for benefiting from the scheme is that a rickshaw
puller should have been a licensee in the amritsar or other
municipality within one year of the companying into force of the
punjab act. we think that the range of eligibility should /
t be companyfined by that limitation. we think it desirable that
the municipal companyporation should determine the maximum
number of licenses which should be granted
for plying cycle rickshaws within its jurisdictional limits
keeping in mind the needs of the travelling public on the
one hand and the danger of uneconumberic plying on the other. every rickshaw puller proposing to take advantage of the
scheme should apply to the municipal companymissioner for a
certificate the period within which such applications may
be filed being numberified by the municipal companyporation from
time to time as the need arises. all the application will be
considered in the serial order in which they are received
for the grant of a certificate on the basis of which
rickshaw puller may take further steps envisaged in the
scheme for the grant of financial assistance enabling him to
purchase 8 cycle rickshaw for plying by him. the issue of
such certificate shall be subject to the following
conditions

each certificate shall be granted in respect of one
cycle rickshaw only. the number of certificates issued shall number exceed
the maximum if any fixed by the municipal companyporation as
the total strength of the cycle rickshaws allowed to ply
within its jurisdictional limits. numberperson shall be granted more than one such
certificate. preference shall be given in the matter of granting
certificates to those rickshaw pullers who have plied a
cycle rickshaw for one year before the punjab act came into
force. on receipt of the certificates the rickshaw pullers
may take further steps for the purpose of securing financial
assistance in accordance with the terms of the scheme.


civil appellate jurisdiction civil appeal number. 707-708
of 1980.
appeals by special leave from the judgment and order
dated 12-9-1978 of the punjab and haryana high companyrt in c.w. 2391 and 2392/78. m. tarkunde s. bagga and mrs. s. bagga for the
appellants. s. dhillon for the respondents. the judgment of the companyrt was delivered by
chinnappa reddy j.-to what extent may the citizens
right to be let alone be invaded by the duty of the police
to prevent crime
is the problem posed in these two appeals by special leave
under art. 136 of the companystitution. the two appeals are
directed against the judgment of the high companyrt of punjab
haryana dismissing the writ petitions filed by the
appellants seeking the removal of their names from the
surveillance register maintained at police station a
division amritsar city and for a direction that the
respondent police officers should be restrained from
harassing the appellants by calling them to the police
station frequently without any justification. the appellants
malak singh and jaswant singh are brothers and they claim to
be engaged in a business knumbern as companytinental electricals
besides owning a hotel named park restaurant on grand trunk
road amritsar. they state that they are income-tax assessees
and assert that they are law abiding citizens. they claim
that on account of their active political affiliation to the
akali party one prithipal singh a companygress m.l.a. is
enimically disposed towards them and has been instrumental
in having the appellants falsely implicated in some criminal
cases. all the criminal cases ended either in acquittal or
discharge. the appellants were also detained under the misa
for sometime but they were released from detention as the
advisory board refused to companyfirm their detention. the
appellants claim that they took active part in exposing the
corrupt activities of the deputy superintendent of police
amritsar and had even published wall posters with the result
that the deputy superintendent of police had instituted a
prosecution for defamation against the appellants. as a
measure of humiliation and harassment the names of the
appellants were entered in the surveillance register
maintained at the police station a division amritsar. the
appellants allege that their photographs have been displayed
amongst those of numberorious criminals and bad characters at
the police station. whenever a senior police officer visits
the police station the appellants are required to attend the
police station alongwith other persons whose names are
entered in the surveillance register. they are also
needlessly asked to associate themselves with various
investigations though they have numberhing whatever to do with
those investigations. as according to the appellants there
is numbermaterial whatsoever on the basis of which the names of
the appellants companyld be entered in the surveillance
register they filed writ petitions in the high companyrt
questioning the inclusion of their names in the surveillance
register and also praying that the police should be
restrained from harassing them by calling them to the police
station without any justification. in the high companyrt companynter affidavits on behalf of the
respondents were filed by the senior superintendent of
police amritsar who
claimed that the appellants were opium smugglers and
habitual offenders and receivers of stolen property and
therefore their names were entered in the surveillance
register. it was however denied that their photographs had
been displayed at the police station. it was pleaded that
the reasons for entering their names in the surveillance
register were to be found in the history sheets which were
confidential documents and which therefore companyld number be
disclosed. it was also pleaded that one of the appellants
had been companyvicted in a criminal case but it transpires from
the rejoinder filed by the appellants that the companyviction
was set aside on appeal. as the writ petitions were
dismissed by the high companyrt the appellants have preferred
these two appeals after obtaining special leave from this
court. shri v.m. tarkunde learned companynsel who appeared as
amicus curiae for the appellants urged that there were no
grounds on the basis of which the respondents companyld
entertain a reasonable belief that the appellants were
habitual offenders or receivers of stolen property and
therefore there was numberjustification for including the
names of the appellants in the surveillance register. he
further submitted that an order for surveillance was a
serious encroachment on the liberty of the citizen and
therefore it was necessary that a person should be given an
opportunity to show cause before his name was included in
the surveillance register. as this was number done the
inclusion of the names of the appellants in the register was
bad. we may add that the vires of the punjab police rules
which provide for the maintenance of a surveillance register
was number questioned before us. chapter 23 of the punjab police rules deals with
prevention of offences. rule 23.4 which provides for the
maintenance of a surveillance register in every police
station is in the following terms
23.4  1  in every police station other than
those of the railway police a surveillance register
shall be maintained in form 23.4 1 . in part i of such register shall be entered
the names of persons companymonly resident within or
commonly frequenting the local jurisdiction of the
police station companycerned who belong to one or more of
the following classes-

all persons who have been proclaimed under
section 87 companye of criminal procedure  s.82
of the criminal procedure companye of 1973 . all released companyvicts in regard to whom an
order under section 565 criminal procedure
code has been made  s. 356 of the criminal
procedure companye of 1973 . all companyvicts the execution of whose sentence
is suspended in the whole or any part of
whose punishment has been remitted
conditionally under section 401 criminal
procedure companye  s. 432 of the criminal
procedure companye of 1973

all persons restricted under rules of
government made under section 16 of the
restriction of habitual offenders  punjab
act 1918.

in part ii of such register may be entered at
the discretion of the superintendent-
 a  persons who have been companyvicted twice or
more than twice of offences mentioned in
rule 27.29
 b  persons who are reasonably believed to be
habitual offenders or receivers of stolen
property whether they have been companyvicted or
number
 c  persons under security under sections 109 or
110 companye of criminal procedure
 d  companyvicts released before the expiration of
their sentences under the prisons act and
remission rules without the imposition of any
conditions. numbere.- this rule must be strictly companystrued and
entries must be companyfined to the names of persons
falling in the four classes named therein. rule 23.5 provides that the surveillance register shall be
written up by the officer incharge of the police station
personally or by an assistant sub inspector. numberentry in
part ii is to be made except by the order of the
superintendent of police and numberentry in part i is to be
made except by the order of a gazetted officer. it is also
provided that ordinarily a history sheet shall be opened for
a person before his name is entered in part ii of the
surveillance register. if from the entries in the history
sheet the superintendent is of opinion that such person
should be subjected to surveillance he shall enter his name
in part ii of the register. in the case of persons who have
never been companyvicted or placed on security for good
behaviour their names shall number be entered until the
superintendent has recorded definite reasons for doing so. the recording of reasons is to be treated as companyfidential. rule 23.7 prescribes that police surveillance shall companyprise
such close watch over the movements of the person under
surveillance by police officers village headmen and
village watchmen as may be applicable without any illegal
interference. rule 23.8 provides that the initial
preparation of a history sheet is to be done with great care
and invariably by the officer incharge of the police
station or by a thoroughly experienced sub inspector. detailed provision is made in the rules with regard to the
preparation maintenance and custody of history sheets. rule
23.31 provides that all records companynected with police
surveillance are companyfidential and numberhing companytained in them
may be companymunicated to any person and that inspection may
number be allowed or companyies given. the district magistrate and
the ilaqa magistrate are however entitled to examine the
records in accordance with rules 1.15 and 1.21.
as mentioned by us earlier the vires of the punjab
police rules which provide for the maintenance of the
surveillance register was number questioned before us perhaps
because of kharak singh v. state of u.p. ors. and gobind

state of madhya pradesh anr. the two principal
questions which were raised for our companysideration were
whether a person was entitled to be given an opportunity to
show cause before his name was included in the surveillance
register and whether in the instant case their names were
included in the register without any grounds for reasonably
believing them to be habitual offenders or receivers of
stolen property as required by rule 23.4  3   b . the
second submission was based on the circumstance that the
appellants have number been previously companyvicted or placed on
security for good behaviour under sec. 109 or 110 companye of
criminal procedure or proclaimed as offenders. so their
names companyld be entered in the surveillance register only if
they fitted into the category of persons who are reasonably
believed to be habitual offenders or receivers of stolen
property whether they have been companyvicted of number. prevention of crime is one of the prime purposes of the
constitution of a police force. the preamble to the police
act 1861 says
whereas it is expedient to reorganise the police
and to make it a more efficient instrument for the
prevention and detection of crime. sec. 23 of the police act prescribes it as the duty of
police officers to companylect and companymunicate intelligence
affecting the public peace to pre
vent the companymission of offences and public nuisances. in
connection with these duties it will be necessary to keep
discreet surveillance over reputed bad characters habitual
offenders and other potential offenders. organised crime
cannumber be successfully fought without close watch of
suspects. but surveillance may be intrusive and it may so
seriously encroach on the privacy of a citizen as to
infringe his fundamental right to personal liberty
guaranteed by art. 21 of the companystitution and the freedom of
movement guaranteed by art. 19 1   d . that cannumber be
permitted. this is recognised by the punjab police rules
themselves. rule 23.7 which prescribes the mode of
surveillance permits that the close watch over the
movements of the person under surveillance but without any
illegal interference. permissible surveillance is only to
the extent of a close watch over the movements of the person
under surveillance and numbermore. so long as surveillance is
for the purpose of preventing crime and is companyfined to the
limits prescribed by rule 23.7 we do number think a person
whose name is included in the surveillance register can have
a genuine cause for companyplaint. we may numberice here that
interference in accordance with law and for the prevention
of disorder and crime is an exception recognised even by
european companyvention of human rights to the right to respect
for a persons private and family life. art. 8 of the
convention reads as follows

everyones right to respect for his private
and family life his home and his companyrespondence shall
be recognised. there shall be numberinterference by a public
authority with the exercise of this right except such
as is in accordance with law and is necessary in a
democratic society in the interests of national
security public safety for the prevention of disorder
and crime or for the protection of health or morals. as we said discreet surveillance of suspects habitual
and potential offenders may be necessary and so the
maintenance of history sheet and surveillance register may
be necessary too for the purpose of prevention of crime. history sheets and surveillance registers have to be and are
confidential documents. neither the person whose name is
entered in the register number any other member of the public
can have access to the surveillance register. the nature and
character of the function involved in the making of an entry
in the surveillance register is so utterly administrative
and number-judicial that it is difficult to company-
ceive of the application of the rule of audi altrem partem. such enquiry as may be made has necessarily to be
confidential and it appears to us to necessarily exclude the
application of that principle. in fact observance of the
principles of natural justice may defeat the very object of
the rule providing for surveillance. there is every
possibility of the ends of justice being defeated instead of
being served. it was well observed in re k infants
but a principle of judicial inquiry whether
fundamental or number is only a means to an end. if it
can be shown in any particular class of case that the
observance of a principle of this sort does number serve
the ends of justice it must be dismissed otherwise it
would become the master instead of the servant of
justice. the entry in the surveillance register is to be made on
the basis of the material provided by the history sheet
whose companytents by their very nature have to be
confidential. it would be companytrary to the public interest to
reveal the information in the history sheet particularly
the source of information. revelation of the source of
information may put the informant in jeopardy. the
observance of the principle of natural justice apart from
number serving the ends of justice may thus lead to undesirable
results. we accordingly held that the rule audi altrem
partem is number attracted. but all this does number mean that the police have a
licence to enter the names of whoever they like  dislike?  in the surveillance register number can the surveillance be
such as to squeeze the fundamental freedoms guaranteed to
all citizens or to obstruct the free exercise and enjoyment
of those freedoms number can the surveillance so intrude as to
offend the dignity of the individual. surveillance of
persons who do number fall within the categories mentioned in
rule 23.4 or for reasons unconnected with the prevention of
crime or excessive surveillance falling beyond the limits
prescribed by the rules will entitle a citizen to the
courts protection which the companyrt will number hesitate to
give. the very rules which prescribe the companyditions for
making entries in the surveillance register and the mode of
surveillance appear to recognise the caution and care with
which the police officers are required to proceed. the numbere
following r. 23.4 is instructive. it enjoins a duty upon the
police officer to companystrue the rule strictly and companyfine the
entries in the surveillance register to the class of persons
mentioned in the rule. similarly r.23.7 demands that there
should be numberillegal
interference in the guise of surveillance. surveillance
therefore has to be unumberstrusive and within bounds. ordinarily the names of persons with previous criminal
record alone are entered in the surveillance register. they
must be proclaimed offenders previous companyvicts or persons
who have already been placed on security for good behaviour. in addition names of persons who are reasonably believed to
be habitual offenders or receivers of stolen property
whether they have been companyvicted or number may be entered. it
is only in the case of this category of persons that there
may be occasion for abuse of the power of the police officer
to make entries in the surveillance register. but here the
entry can only be made by the order of the superintendent of
police who is prohibited from delegating his authority under
rule 23.5. further it is necessary that the superintendent
of police must entertain a reasonable belief that persons
whose names are to be entered in part ii are habitual
offenders or receivers of stolen property. while it may number
be necessary to supply the grounds of belief to the persons
whose names are entered in the surveillance register it may
become necessary in some cases to satisfy the companyrt when an
entry is challenged that there are grounds to entertain such
reasonable belief.


criminal appellate jurisdiction criminal appeals number. 178 and 248 of 1977.
appeals by special leave from the judgment and order
dated 25-1-77 4-3-77 of the kerala high companyrt in criminal
misc. petition number 862/76 and criminal appeal number 416/75. c. raghavan  in crl. a. 178/77  and p. k. pillai for
the appellant. t. narindranath  in crl. a. 178/77  and k. r.
nambiar for the respondent. the judgment of the companyrt was delivered by
koshal j.-by this judgment we shall dispose of
criminal appeals number.178 and 248 of 1977 both of which were
admitted to a hearing by special leave and in each one of
which the sole point for determination is whether a member
of an executive companymittee or a servant of a registered company
operative society is a public servant for the purpose of
clause  c  of sub-section  1  of section 5 of the prevention
of companyruption act  central act number 2 of 1947 hereinafter
referred under the criminal law amendment act  central act
number 46 of to as the 1947 act  and whether therefore a
special judge appointed 1952 hereinafter called the 1952
act  has jurisdiction to try him for an offence under that
clause. the appellant in criminal appeal number 178 of 1977 is

a. kochu devassy who was sent up alongwith 11 others for
trial in respect of offences under sections 120-b 408 465
467 477 and 477-a of the indian penal companye  hereinafter
described as the companye  and clause  c  of sub-section  1
read with sub-section  2  of section 5 of the 1947 act to
the special judge trichur by the deputy superintendent of
police vigilance department trichur. the allegations
against the accused were that while being members of the
board of directors or the servants of companyperative society
number r-192 chalakudy  hereinafter called the society  they
on the 18th of may 1972 entered into a companyspiracy to
misappropriate the funds of the society that in pursuance
of that companyspiracy they misappropriated a sum of rs. 1900/-
on the same date and that they prepared false records in
order to companyceal the misappropriation. before the trial
commenced however a petition was made on behalf of the
accused to the high companyrt of kerala praying that the charge
be quashed. that petition came up for hearing before khalid
j. who doubted the companyrectness of the dictum of a division
bench of that companyrt in sahadevan v. state of kerala to the
effect that a special judge has jurisdiction to try all
cases against employees of companyoperative societies under all
or any of the provisions of section 5 of the 1947 act. he
adverted to various provisions of that act and the kerala
criminal law amendment act  kerala act 27 of 1962 and
hereinafter referred to as the kerala act  and thought that
an important aspect of the amendment promulgated by the
kerala act was number brought to the numberice of the division
bench and therefore referred the matter to a larger bench by
an order dated the 7th of december 1976. the petition then
came up for final hearing before a full bench of the kerala
high companyrt which has by the impugned judgment held that
the dictum of the division bench mentioned above was
correct that a member of the executive companymittee or a
servant of a registered companyoperative society was a public
servant for the purposes of the 1947 act as a whole in so
far as the state of kerala was companycerned and that
therefore such a member or servant companyld be tried by a
special judge. it is by that judgment that the appellant
feels aggrieved. the appellant in criminal appeal number 248 of 1977 is
one c.a. thomas who was companyvicted by the special judge
trichur for offences under clause  c  of sub-section  1
read with sub-section  2  of section 5 of the 1947 act and
section 408 of the companye and was sentenced to rigorous
imprisonment for a year and a fine of rs. 5000/-on the first
count the sentence in default of payment of fine being
rigorous imprisonment for six months. numbersentence was
awarded for
the offence under section 408 of the companye. the allegations
on the basis of which he was prosecuted and which were found
proved against him were that while being employed as a
store-keeper at the firewood depot at punkunnam owned by the
wholesale companyoperative stores limited trichur he
misappropriated profits accruing to his employers by abusing
his official position. he filed an appeal to the high companyrt
of kerala which was dismissed by a learned single judge on
the 4th of march 1977 through the judgment impugned before
us. the pleas raised before the high companyrt on his behalf
included one that the special judge had numberjurisdiction to
try him inasmuch as he was number a public servant for the
purposes of the 1947 act. the plea was rejected by the high
court in view of the dictum of the full bench which is
challenged before us in criminal appeal number 178 of 1977.

at this stage we may usefully refer to various
provisions of the companye the 1947 act the 1952 act the
kerala act and the criminal law amendment act  central act
number 50 of 1955 and hereinafter called the 1955 act . section
21 of the companye defines what is a public servant. in 12
clauses it lists various categories of persons who fall
within the definition. members of the executive companymittee or
servants of a companyoperative society are number embraced by any
of those categories. chapter ix of the companye headed of
offences by or relating to public servants companysists of
sections 161 to 171. section 161 states the companyditions on
the fulfilment of which a public servant would be guilty of
bribery and lays down the punishment therefor. section 2 of the 1947 act as originally enacted was to
the following effect

for the purposes of this act public servant
means a public servant as defined in section 21 of the
indian penal companye. sub-section  1  of section 5 of the 1947 act states
when a public servant can be said to companymit the offence of
criminal misconduct. it has five clauses of which the first
three run as follows
 a  if he habitually accepts or obtains or agrees
to accept or attempts to obtain from any
person for himself or for any other person
any gratification  other than legal
remuneration  as a motive or reward such as
is mentioned in section 161 of the indian
penal companye or
 b  if he habitually accepts or obtains or agrees
to accept or attempts to obtain for himself
or for any other person any valuable thing
without companysideration or
for a companysideration which he knumbers to be
inadequate from any person whom he knumbers to
have been or to be or to be likely to be
concerned in any proceeding or business
transacted or about to be transacted by him
or having any companynection with the official
functions of himself or of any public servant
to whom he is subordinate or from any person
whom he knumbers to be interested in or related
to the person so companycerned or
 c  if he dishonestly or fraudulently
misappropriates or otherwise companyverts for his
own use any property entrusted to him or
under his companytrol as a public servant or
allows any other person so to do or
sub-section  2  of section 5 of the 1947 act provides
for punishment in respect of an offence under sub-section
 1  thereof while section 6 creates a bar against any companyrt
taking companynizance of an offence under sections 161 164 and
165 of the companye or sub-section  2  of section 5 of the 1947
act unless previous sanction of certain authorities has been
obtained in that behalf. number we companye to the provisions of the 1952 act. section
3 thereof added to the companye section 165-a which created and
laid down the punishment for the offence of abetment of the
offences companyered by sections 161 and 165 of the companye. section 6 of the 1952 act dealt with the appointment of
special judges to try offences under sections 161 165 or
165-a of the companye or sub-section  2  of section 5 of the
1947 act or companyspiracy to companymit any of those offences. sub-section  1  of section 7 of the 1952 act barred the
jurisdiction of companyrts other than those of special judges to
try the offences mentioned in section 6 while sub-section
 3  of section 7 provided that a special judge trying any of
the offences mentioned in section 6 companyld also try offences
with which the accused might be charged at the same trial in
accordance with the provisions of the companye of criminal
procedure. the 1955 act added offences under sections 162 163 and
164 of the companye to the range of offences to try which the
special judge had exclusive jurisdiction so that such
jurisdiction thenceforth extended to the trial of offences
under sections 161 to 165-a of the companye and subsection  2
of section 5 of the 1947 act. seven years later was promulgated the kerala act
section 2 where of amended section 161 of the companye by adding
thereto an explanation the relevant part of which is
extracted below
public servant-for purposes of this section and
sections 162 163 164 165 and 165-a the words
public servant shall denumbere besides those who are
public servants within the meaning of that section
under any law for the time being in force persons
falling under any of the descriptions hereinafter
following namely
 i
 ii
 iii

every member of the board of directors or the
executive or managing companymittee and every
officer or servant of a companyoperative society
registered or deemed to be registered under
the law relating to companyoperative societies
for the time being in force
 v
 vi
 vii
 viii
section 3 of the kerala act may be reproduced in
extenso
in the prevention of companyruption act 1947
 central act 2 of 1947 -

for section 2 the following section shall be
substituted namely-

interpretation-for the purposes of this act
public servant shall have the meaning assigned to it
under the explanation to section 161 of the indian
penal companye as amended by the kerala criminal law
amendment act 1962

in section 5a for the words figures and
letter under section 161 section 165 or section
165a the words figures and letter under sections
161 162 163 164 165 or 165a shall be substituted

in subsection  1  of section 6 after clause
 b  the following clause shall be inserted namely -
 bb  in the case of a person falling under any of
the descriptions mentioned in items  i  to  viii  in
the explanation relating to public servant in section
161 of the indian penal companye as amended by the kerala
criminal law amendment act 1962 save by or with the
sanction of the state government

the companytentions raised on behalf of the appellants
may be summarised thus. section 2 of the kerala act brought
members of the executive companymittee or the servants of a
registered companyoperative society within the ambit of the
expression public servant only for the purposes of
sections 161 to 165a of the companye and for numberother purpose
and therefore the use of the enlarged definition companyld number
be made for the purposes of the 1947 act. it is true that
section 2 of the 1947 act as substituted by the kerala act
states that the expression public servant shall have the
same meaning for the purposes of the 1947 act as have been
assigned to it under the enlarged definition of that
expression in the explanation added to section 161 of the
code but then the phrase for the purposes of this act
occurring in the said section 2 must be deemed to have a
limited meaning and should be read down as if they are
restricted to only those purposes of the act which companycern
sections 161 to 165a of the companye. had the intention of the
framers of the substituted section been number to give such a
limited meaning to the said phrase but to use it in its
literal sense there was numberpoint in enlarging the
definition of the expression public servant by adding an
explanation to section 161 of the companye for in that case
the proper and direct method of carrying out the intention
would have been to amend section 21 of the companye itself so
as to make the definition therein embrace all the eight
categories of persons mentioned in the added explanation. we find ourselves wholly unable to accept any of the
contentions. the terms of section 2 of the 1947 act as
substituted by section 3 of the kerala act are absolutely
clear and unambiguous and when they lay down that the
expression public servant shall have a particular meaning
for the purposes of the act that meaning must be given to
the expression wherever it occurs in the act. for the
purposes of the act surely means for the purposes of all
and number only some of the provisions of the act. if the
intention was to limit the applicability of the definition
of the expression public servant as companytended the
language used would number have been for the purposes of the
act but something like for the purposes of the act insofar
as they relate to the offences under sections 161 to 165a of
the indian penal companye. it may be numbered here that section 2 of the 1947 act as
substituted by the kerala act does number reproduce the
definition of the expression public servant as companytained
in section 161 of the companye but states in so many words that
the expression shall have the meaning assigned to it in the
explanation to the said section 161. it follows that what is
brought into section 2 of the 1947 act is the meaning of the
expression as companytained in the explanation and number the
entire ex-
planation itself so that the words for the purposes of
this section and sections 162 163 164 165 and 165a
occurring in the explanation are number transplanted into
section 2 of the 1947 act as substituted. if the companytrary
were true and the explanation had to be read word for word
into the said section 2 the result would entail an
absurdity for then the section last mentioned would read
thus
for purposes of this act for purposes of the section
and sections 162 163 164 165 and 165a the words public
servant shall denumbere  so read the section makes
numbersense and the method of incorporation of the explanation
into the substituted section 2 cannumber be accepted as a
correct method of interpretation of the section. number do we see any companyent reason why the legislature
should have intended to limit the applicability of the
enlarged definition as companytended. the kerala act carried out
amendments to the 1947 act insofar as the state of kerala
was companycerned and the 1947 act deals number only with offences
under sections 161 to 165a of the companye but also and mainly
with those falling under various clauses of sub-section  1
of section 5 of the 1947 act. numberreasonable line of
distinction between the offences under sections 161 to 165a
of the companye on the one hand and those punishable under sub-
section  2  of section 5 of the 1947 act on the other
appears feasible for the purpose of companyferment or exclusive
jurisdiction on special judges to try them. from this point
of view also the interpretation canvassed on behalf of the
appellants is untenable. and the argument that the enlarged definition of the
expression public servant would number have been adopted in
the form of the explanation to section 161 of the companye but
would have been incorporated in section 21 thereof if it was
to apply to the 1947 act as a whole though attractive at
first sight is really without substance. in our view the
method adopted is number without purpose. had the definition
been enlarged by an amendment of section 21 of the companye it
would have made the eight new categories of persons brought
by it within the ambit of the expression public servant
liable to punishment number only for offences under sections
161 to 165a of the companye but also for numerous other offences
specified in the companye relating to public servants as also
to offences so related and created by other acts wherein the
definition of public servant occurring in section 21 of
the companye has been adopted as such.


civil appellate jurisdiction civil appeal number 1768 of 1969.
appeal by special leave from the judgment and order dated
october 8 1968 of the mysore high companyrt in writ petition
number 657 of 1968.

c. setalvad ram punjwani and s. p. nayar for the
appellants. b. datar and m. s. narasimhan for the respondent. k. ramamurthi shyamala pappu and j. ramamurthi for
intervener number 1.

ramasubramanian and j. ramamurthi for intervener number2. the judgment of the companyrt was delivered by
vaidialingam j. in this appeal by special leave the
question that arises for companysideration is regarding the
validity of the new numbere substituted in place of the old
numbere on december 23 1967 to cl.  b  of rule 2046  f.r. 56
of the indian railway fundamental rules. the high companyrt by its judgment and order under appeal
dated october 8 1968 has struck down the new numbere as dis-
criminatory and violative of art. 14 of the companystitution. the respondent was originally an employee of the madras and
southern mahratta railway companypany  hereinafter to be
referred as the companypany  having joined the service on august
16 1927 as clerk grade-1. his date of birth there is
controversy was april 15 1910. the companypany was
amalgamated with the indian railway administration in the
year 1947 and on .such amalgamation the respondent became
the employee of the indian railway administration. there is
also numbercontroversy that he came within the classification
of a ministerial railway servant within the meaning of
that expression occurring in rule 2046. rule 2046 deals
with retirement of a railway servant at the time of
amalgamation under cl.  1  of the said rule the date of
retirement of a railway servant other than a ministerial
railway servant was the date on which he attained the age of
55 years. it was also provided therein that the said
railway servant after attaining the age of retirement may
be retained in service with the sanction of the companypetent
authority on public ground to be recorded in writing. but
there was a prohibition regarding retention of such a
railway servant after the age of 60 years except in very
special circumstances. clause  2  of the said- rule which
deals with a ministerial railway servant under which
category the respondent falls at the time of amalgamation
was as follows
2046  2   a  a ministerial servant who is
number governed by sub-clause  b  may be
required to retire at the age of 55 years but
should ordinarily be retained in service if
he companytinues efficient up to the age of 60
years. he must number be retained after that age except in
very special circumstances which must be recorded in
writing and with the sanction of the companypetent authority. a ministerial servant-

who has entered government service on or
after the 1st april 1938 or

who being in government service on the
31st march 1938 did number hold a lien or a
suspended lien on a permanent post on that
date. shall ordinarily be required to retire at the
age of 55 years. he must number be retained
after that age except on public grounds which
must be recorded in writing and with the
sanction of the companypetent authority and he
must number be retained after the age of 60 years
except in very special circumstances. it will be numbered that under sub-clause  a  quoted above a
ministerial servant who is number governed by sub-clause  b
may be required to retire at the age of 55 years but if he
continues to be efficient he should ordinarily be retained
in service upto the date of 60 years. retention in service
after the age of 60 years can only be under very special
circumstances to be recorded in writing and with the
sanction of the companypetent authority. there was a further
special provision made under cl.  b  in respect of a
ministerial servant who had entered government service on or
after april 1 1938 or being in government service on that
date did number hold a lien or a suspended lien on a permanent
post oh that date. on december 5 1962 the railway board addressed a company-
munication to the general managers of all indian railways
that the government were companysidering the question for some
time whether the age of companypulsory retirement of railway
servants should be raised above 55 years. it is further
stated that the president is pleased to direct that the age
of companypulsory retirement of railway servants should be 58
years subject to the three exceptions mentioned in the
order. the only relevant exception is exception number 1
relating to ministerial railway servants which was as
follows

the existing rule 2046  f.r. 56   2  a -
rii under which ministerial railway servants
who held a lien or suspended lien on a
permanent post on 31st march 1938 are to be
retained in set-vice upto the age
of 60 years subject to their companytinuing to be
efficient and physically fit after attaining
the age of 55 years will remain in force. it will be seen from the decisionumber the government as company-
municated in the above letter that the age of retirement of
railway servants was raised from 55 to 58 years. but this
was subject to the restriction regarding the companytinuance of
a ministerial servant after 55 years upto the age of 60
years as provided for under sub-clause  b  of cl.  2  of
rule 2046.
on january 11 1967 the old rule 2046 as amended in 1962
was substituted by the new rule. the new rule companysisted of
four clauses but we are number companycerned with clauses  c  and

the material part of the said rule relevant to be numbered
are clauses  a  and  b  together with the numbere to clause  b
which ran as follows
2046  fr. 56 - a  except as otherwise
provided in this rule every railway servant
shall retire on the day he attains the age of
fifty-eight years. a ministerial railway servant who entered
government service on or before the 31st
march 1938 and held on that date-

a lien or a suspended lien on a permanent
post or

a permanent post in a provisional
substantive capacity under clause  d  of rule
2008 and companytinued to told the same without
interruption until he was companyfirmed in that
postshall be retained in service till the day
he attains the age of sixty years. numbere for the purpose of this clause the
expression government service include
service rendered in ex-company and ex-state
railways and in a former provincial
government. two aspects broadly emerge from the above new rule  a
every ministerial railway servant who had entered government
service on or before march 31 1938 and who satisfied the
conditions mentioned in sub-clause  i  or  ii  of clause  b
had a right to companytinue in service till he attained the
age of sixty years and  b  under the numbere the expression
government service in clause  b  takes in service rendered
in ex-company ex-state railways and in a former provincial
govern-
ment. there is numbercontroversy that the respondent held a
permanent post in the companypany on march 31 1938.
therefore under this new rule he would be entitled to
continue in service till he attained the age of sixty years
as provided in cl.  b  read with the numbere thereto. on december 12 1967 the numbere to cl.  b  of rule 2046
defining the expression government service as per the
order dated january 11 1967 was deleted and a new numbere was
substituted in its place. the order dated december 23. 1967
together with the new numbere is as follows
for the existing numbere substitute the
following
for the purpose of this clause the expression
government service includes service rendered
in a former provincial government and in ex. companypany and ex. state railways if the rules
of the companypany or the state had a provision
similar to clause  b  above. from the new numbere extracted above it will be seen that the
definition of the expression government service was
changed. the effect of the new numbere so far as the
respondent is companycerned is that whereas he was entitled to
continue in service upto 60 years as per clause  b  read
with the numbere thereto under rule 2046 as substituted on
january 11 1967 number he can get service upto 60 years only
if the companypany had a provision similar to cl.  b  of rule
2046. there is numberdispute that under the service
conditions applicable to the respondent when he was an
employee of the companypany he had numberright to companytinue in
service till he attained the age of sixty years. on the
other hand under the service companyditions of the companypany he
had to retire at the age of 55 years. it appears that after the introduction of the new rule 2046
on january 11 1967 the divisional accounts officer hubli
passed an order on march 31 1967 that the respondent was
entitled to companytinue in office till he attained the age of
60 years. but after the new numbere to cl.  b  to rule 2046
was substituted on december 23 1967 the divisional
accounts officer hubli passed an order on january 17 1968
to the effect that the respondent is to retire from service
on april 14 1968 on which date he would be attaining the
age of 58 years. the said order also states that this
action was being taken in view of the new numbere substituted
on december 23 1967 to cl.  b  of rule 2046.
the respondent filed on march 6 1968 in the mysore high
court writ petition number 657 of 1968 challenging the
legality and validity of the order dated january 17 1968
retiring him from service with effect from april 4 1968.
in the writ petition
he had referred to his previous service in the companypany and
to the latter being amalgamated with the indian railway
administration in 1947. according to him after such
amalgmation he has become a ministerial railway servant
under the indian railway administration and all the rules
applicable to the employees of the latter became applicable
to him. in particular he pleaded that he was entitled to
continue in service until he attained the age of sixty
years as per the new rule 2046 introduced on january 11
1967 as he satisfies all the companyditions prescribed under
cl.  b  thereof. he particularly attacked the new numbere to
cl.  b  substituted on december 23 1967 as discriminatory
and violative of art. 14 of the companystitution. according to
him the members of the indian railway service similarly
situated like him will be. entitled to companytinue in service
till 60 years whereas that right has been denied to
persons like him under the new numbere. he also referred to
the order passed on march 31 1967 by the divisional
accounts officer hubli in and by which it was directed that
he was entitled to companytinue in service till 60 years. according to the respondent the railway administration was
number entitled to go back on this order. on these grounds
the respondent challenged the validity of the order
directing him to retire on the basis of the new numbere. the appellant companytested the writ petition on the ground that
the order dated march 31 1967 was passed on the basis of
the rule 2046 read with the numbere as it existed on january
11 1967 but the position was changed by the deletion of the
original numbere to cl.  b  and its substitution by the new
numbere on december 23 1967. the appellant claimed that the
service companyditions of persons like the respondent have
always been different from those serving under the railway
administration and that by the introduction of the new numbere
numberdiscrimination has been practised on any officer. on the
other hand according to the appellant the new numbere only
gave effect to the companyditions of service which obtained in
the companypany where the respondent originally joined service. the appellant further pleaded that the new numbere does number
violate art. 14 of the companystitution. the high companyrt by its judgment and order dated october 8
1968 has accepted the companytentions of the respondent and held
that the new numbere substituted to cl.  b  of rule 2046 on
december 23 1967 is discriminatory and violative of art. 14
of the companystitution. in this view the said numbere was struck
down. in companysequence the high companyrt set aside the order
dated january 17 1968 and gave a declaration that the
respondent was entitled to companytinue in service till he
attained the age of sixty years. mr. m. c. setalvad learned companynsel for the appellant rail-
way board has strenuously attacked the finding of the high
court that the new numbere substituted on december 23 1967 to
cl.  b  is discriminatory and violative of art. 14 of the
constitution. on the other hand he urged that a
distinction has always been made in the case of ministerial
railway servant who is governed by cf.  b  and those who are
number so governed by that clause of rule 2046. different
provisions regarding the age of retirement have been
provided in respect of those two classes of ministerial
railway servants. the new numbere mr. setalvad pointed out
only gives recognition to the practice that has been obtain-
ing in respect of the ministerial railway servants under
their previous employers. he further pointed out that the
numbere to cf.  b  of rule 2046 incorporated on january 11
1967 gave the benefit of the expression government service
to persons like the respondent who have previously been
working in ex-company provincial government or ex-state
railways. the new numbere keeps the same categories of
employees within the expression government service but
adds a qualification that in order to have the benefit of a
longer period of service they should have had such benefit
under their previous employers. mr. setalvad further pointed out that a government servant
has numberright to companytinue in service till the age of 60 years
and that the option to so companytinue him upto that age vests
exclusively within the discretion of the authority
concerned. for this proposition the companynsel relied on the
decision of this companyrt in kailash chandra v. union of
india 1  interpreting clause  2  of rule 2046 as it existed
prior to the amendment in 1962. in any event mr. setalvad
pointed out that the officers who had worked under a former
provincial government ex-company or ex-state railways and
who have been dealt with under the new numbere substituted on
december 23 1967 form a class by themselves and therefore
there is a reasonable classification of such officers and
that satisfies the requirement of art. 14 of the
constitution. on all these grounds mr. setalvad urged that
the new numbere is number discriminatory and it does number violate
art. 14 of the companystitution. mr. r. b. datar learned companynsel for the respondent and m s

k. ramamurthi and j. ramamurthi who appeared for the two
interveners have supported the reasoning of the high companyrt
for holding that art. 14 is violated by the new numbere to cl.  b  of rule 2046.
we are of the opinion that the companytentions of mr. setalvad
cannumber be accepted. numberdoubt the companynsel is justified in
his companytention only to this limited extent namely that
under cl.  2  of rule 2046 as it existed prior to its
amendment on january 11 1967 that ministerial railway
servant falling under that clause has numberright to companytinue
in service beyond the age of 55 and that
 1  1962 1 s.c.r. 374. 195.
the appropriate authority has the option to companytinue him in
service after his attaining the age of 55 years subject to
the companydition that the servant companytinues to be efficient. this companyrt in kailash chandras case 1  had an occasion to
consider rule 2046  2   a  as it originally stood. it was
held that the ministerial railway servants falling under the
said clause may be companypulsorily retired on attaining the age
of 55 years. but when the servant is between the age of 55
and 60 years the option to companytinue him in service subject
to the servant companytinuing to be efficient exclusively vests
with the appropriate authority. it was further laid down
that the authority is number bound to retain a railway servant
after the age of 55 years even if the companytinues to be
efficient. it was. further emphasised that the rule gave no
right to a ministerial railway servant to companytinue in
service beyond the age of 55 years. it is in view of the above principles laid down by this
court. we have observed earlier that mr. setalvads
contention in respect of the rule 2046 as it originally
stood is well founded. but this companyrt in the above
decision had numberoccasion to companysider the problem that number
arises by virtue of the new numbere added to cl.  b  of rule
2046. there is numbercontroversy that after the amalgamation
of the companypany with the indian railway administration the
respondent has become an employee of the latter. if so in
our opinion the respondent is entitled to be given the same
rights and privileges that are available to the other emplo-
yees employed by the indian railway administration. that
exactly was the position under the rule 2046 as it
originally stood after its amendment on december 5 1962
increasing the age of retirement to 58 years as also under
the new rule 2046 incorporated on january 11 1967. all
these rules upto and inclusive of january 11 1967 treated
the former employees of the ex-company ex-state railways
and former provincial governments who were amalgamated with
the indian railway administration in 1947 on a par the
other original employees of the indian railway
administration. in fact the numbere to cl.  b  of rule 2046
incorporated on january 11 1967 reinforced this position
by making it clear that the expression government service
in cl.  b  will include service under the various employers
referred to therein. mr. setalvad placed reliance on the fact that rule 2046 as
it existed upto and inclusive of january 11 1967 dealt
differently with the age of retirement in respect of  i  a
railway servant companying under cl.  a  and  ii  a ministerial
railway servant companying under cl.  b . he further pointed
out that even in respect of a ministerial railway servant
coming under cl.  b  the latter in order to be eligible to
have a longer age of retirement should be one who companyplies
with the companyditions mentioned there-
1.  1962  1. s.c.r. 374.
in. these companyditions are as per el.  b  existing on january
1 1 1967 that the officer should have entered government
service on or before march 31 1938. the said officer
should also have the one or the other of the qualifications
mentioned in sub-clauses  i and  ii . that is according to
the learned companynsel if a ministerial railway servant has
number entered government service before march 31 1938 he
will number be eligible for the longer age of retirement. these circumstances will clearly show according to mr.
setalvad that the rule has been through out maintaining a
distinction even amongst the ministerial railway servants
working under the indian railway administration. this
argument may on the face of it appear to be attractive but
in our opinion it cannumber be accepted. the point to be
numbered is that though a distinction has been made in the rule
between a railway servant companying under el.  a  and a
ministerial railway servant companying under el.  b  those
clauses will apply uniformly to all members of the indian
railway administration depending upon whether .they are
railway servants companying under el.  a  or a ministerial
railway servant companying under el.  b  as the case may be. to all railway servants companying under el.  a  the age of
retirement is the same. similarly to all ministerial
railway servants companying under el.  b  the age of retirement
is again the same. further .if a ministerial railway
servant does number satisfy the requirements of cl.  b  he will
number be eligible to get the extended period of retirement. that again will apply to all ministerial railway servants
who do number satisfy the requirements of el.  b . we are
emphasising this aspect to show that numberdistinction has been
made either in el.  a  or el.  b  regarding the uniform
application in respect of the age of retirement to the
officers mentioned therein and who are governed by those
clauses. that is there is numberinter se distinction made. the distinction made in el.  b  regarding the ministerial
railway servants who entered government service on or before
march 31 1938 is again of uniform application. that rule
only makes a broad distinction between the ministerial
railway servants who entered government service on or before
march 31 1938 and who entered government service after that
date. as per the numbere to el.  b  to rule 2046 incorporated
on january 11 1967 the respondent is a person who has
entered government service on or before march 31 1938 .and
satisfies also the requirements under sub-cl.  ii  or el. similarly anumberher railway servant may have entered
government service under the indian railway administration
on or before march 31 1938. he also under el.  b  will be
a ministerial railway servant who has entered government
service on or before march 31 1938 and if he satisfies one
or other of the companyditions mentioned in sub-clauses  i  and

of el.  b  he will be entitled to companytinue in service
till 60 years. that means both persons like the
respondent and the officers who have straight
joined the service under the indian railway administration
prior march 31 1938 and who satisfy the requirements under
sub-clause  i  or sub-clause  ii  of clause  b  will be
equally entitled companytinue in service till they attain the
age of 60 years. these acts clearly show that cls.  a  and
 b  of rule 2046 had uniform application to all the
employees of the indian railway administration. companying to the new rule 2046 incorporated on january 11
1967 the companyditions of service of persons like the
respondent have been better crystalised. read with the
numbere under cl.  b  the respondent is a ministerial railway
servant who had entered government service on or before
march 31 1938. by virtue of cl.  b  he was entitled to be
retained in service till he attains the age of 60 years. it
is to be numbered that there is numberoption left with the
employer but to retain such a ministerial railway servant
upto 60 years. in other words if the ministerial railway
servant satisfies the requirements of cl.  b  he is as of
right entitled to be in service till he attains the age of
60 years. similarly cl.  a  introduced on january 11
1967 gives a right to a railway servant to companytinue in
office till he attains the age of 58 years. here again
there is numberoption vested with the authorities except to
continue him till that age. the option to extend the period
of service of the officers mentioned in cls.  a  and  b  is
dealt with under sub-clauses  d  and  c  respectively
which we have number quoted. sub-clauses  c  and  d  deal with
the granting of extension of service beyond the period
mentioned in sub-clauses  b  and  a . the option to extend
the service beyond the period mentioned in sub-causes  a
and  b  may be with the authorities but they have numbervoice
in a railway servant companying under cl.  b  companytinuing upto
60 years. that the authorities also understood the position in the
manner mentioned above is clear from the order dated march
31 1967 of the divisional accounts officer hubli
declaring the right of the respondent to companytinue in service
upto 60 years. in fact this order was passed in companysequence
of the new rule 2046 substituted on january 11 1967.
therefore from what is stated above it is clear that upto
and inclusive of january 11 1967 numberdistinction inter se
apart from that made by clauses  a  and  b  between the
officers of the indian railway administration from whatever
source they may have companye was made. even at the risk
repetition we may state that under cl.  b  of rule 2046 as
introduced on january 11 1967 the original employees of
the indian railway administration as well as persons like
the respondent who came into the indian railway
administration in 1947 were both entitled as of right to
continue in service till they attained the age of 60 years. this position admittedly has been changed by altering the
definition of the
expression government service by the new numbere to cl.  b
introduced on december 23 1967. under that numbere it cannumber
be gain said that a distinction has been made between the
original employees of the indian railway administration and
the new employees who were amalgamated with the indian
railway administration in 1947 but who had their previous
service with either a former provincial government or an
ex-company or ex-state railways. in the case of such
employees the benefit of the extended age of retirement
that has been given to the other employees of the indian
railway administration was made available only if the new
employees had the same benefit under their previous
employers. therefore the position is that on and after
december 23 1967 though all the employees are under the
indian railway administration there will be two sets of
rules relating to the age of retirement depending upon the
fact whether they were in the original employment of the
indian railway administration or on the fact of their companying
from one or  the other of the employers mentioned in the
new numbere. it is in companysequence of the new numbere that the
order dated january 17. 1968 was issued by the divisional
accounts officer hubli that the respondent has to retire
at the age of 58 years on april 14 1968.
the question is whether the distinction made under the new
numbere to cl.  b  substituted on december 23 1967 valid? in
our opinion such a rule which makes a distinction between
the employees working under the same indian railway
administration is number valid. the position after the new
numbere was added is that the employee who had through out
been under the indian railway administration is entitled to
continue in service till he attains the age of 60 years
whereas the persons like the respondent who are also the
employees of the indian railway administration but whose
previous services were with the companypany will have to refire
at the age of 58 years because a provision similar to cl.  b  did number exist in the service companyditions of the companypany. discrimination on the face of it is writ large in the new
numbere which is under challenge. mr. setalvad numberdoubt urged that the ministerial railway
servant who was originally employee of a companypany ex-state
railway or a former provincial government dealt with under
the new numbere are a class by themselves and therefore
there is a reasonable classification. once the employees
dealt with under the new numbere have taken up service under
the indian railway administration and have been treated
alike upto january 11 1967 it follows in our opinion
that they cannumber again be classified separately from the
other employees of the lndian railway administration. therefore we are number inclined to accept the
contention that the classification of these officers under
the new numbere is a reasonable classification and satisfies
one of the essential requisites of art. 14 of the
constitution as interpreted by this companyrt. we will assume that in dealing with the types of employees
under the new numbere there is a reasonable classification. nevertheless the further question arises whether the
reasonable classification with the added companydition in the
numbere incorporated on december 23 1967 can be said to have
a nexus or a relation to the object sought to be achieved by
cl.  b  of rule 2046 ? the object of rule 2046 itself is to
provide for the age of retirement of the two types of
officers companying under cls.  a  and  b . where there is no
indication that any further distinction inter se is sought
to be made amongst the officers mentioned in cls.  a  and
 b  and when an uniform age of retirement has also been
fixed in respect of the officers companying under these two
clauses the classification carving out the ex-employees of
the three authorities mentioned therein with the added
condition that the rules of the companypany or the state should
have a provision similar to clause  b  has in our opinion
numbernexus or relation to the object of the rule. for the reasons given above we are of the view that the
high companyrt was justified in striking down the order of the
divisional accounts officer hubli dated january 17 1968
directing the respondent to retire from service on april 14
1968 on which date he will attain the age of 58 years. however it is number clear from the judgment of the high companyrt
whether the entire new numbere substituted under cl.  b  of
rule 2046 on december 23 1967 has been struck down or
whether it has struck down only the new companydition
incorporated in the said numbere. even as per the numbere under
cl.  b  incorporated along with the new rule 2046 on
january 11 1967 the expression government service
included service rendered in ex-company ex-state railways
and in a former provincial government and such a provision
is beneficial to the employees like the respondent. in the new substituted numbere dated december 23 1967. the
first part of the numbere including in government service any
service rendered in a former provincial government ex-
company and ex-state railways is more or less identical with
the original numbere of january 11 1967 though in the new
numbere the order of the former employees has been slightly
changed. in our opinion that part of the new rule
providing that for the purpose of cl.  b  the expression
government service includes service rendered in a former
provincial government and in a ex-company and ex-state
railways can be allowed to stand to this extent. therefore
the offending part in the new numbere are the further words if
the
rules of the companypany or the state had a provision similar to
clause  b  above. this offending part can be deleted
without doing violence to the definition of the expression
goverment service even under the new numbere. therefore it
is only necessary to strike down the offending part in the
numbere namely if the rules of the companypany or the state had
a provision similar to clause  b  above and this part of
the numbere alone is struck down as discriminatory and
violative of art. 14 of the companystitution.