PETITIONER: <NAME> AND ANOTHER Vs. RESPONDENT: CHIEF SECRETARY, GOVERNMENT OF MADRAS AND OTHERS DATE OF JUDGMENT: 27/10/1965 BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. BACHAWAT, R.S. RAMASWAMI, V. CITATION: 1966 AIR 657 1966 SCR (2) 406 CITATOR INFO : R 1966 SC 816 (1) RF 1975 SC2299 (84,85,86,178,365) RF 1976 SC1207 (191,264,265,474,547) ACT: Defence of India Act and Rules, 1962, r. 30(1)(b)-If invalid. Constitution of India, 1950, Arts 352 and 359(1)- Presidential Order suspending right to move <ORG> for enforcement of fundamental rights Petition challenging validity of rule--Maintainability. HEADNOTE: The petitioners were members of <ORG>. They were detained by orders passed by the State Government under r. 30(1) (b) of the Defence of India Rules, 1962. They challenged the validity of the orders of detention on the grounds that : (i) rule 30(1) (b) was invalid because, a legislator cannot be detained so as to prevent him from exercising his constitutional rights as such legislator while the legislative chamber to which he belongs is in session; and- (ii) the impugned orders were passed mala fide as they were passed for the purpose of stifling the; petitioners' political activities which were inconvenient to the State Government. It was also urged that the orders were passed by the Chief Minister of the State without satisfying himself of the necessity of detaining the petitioners merely because the Union Home Minister thought that the petitioners should be detained. The respondent raised a preliminary objection that the petitions were incompetent in view of the Order issued by the President of India under Art. 359(1 ), suspending the rights of any person to move any court for the enforcement of the rights conferred by Arts. 14, 21 and 22 for the period during which the Proclamation of Emergency issued under Art. 352 was in force, if such person had been deprived of any such rights under the Defence of India Act, 1962, for any rule or order made thereunder. HELD : (i) The last clause of the Presidential Order postulates that the Defence of India Act or any rule or order made thereunder is valid. During the pendency of the Presidential Order, the validity of Act, rule or order made thereunder cannot be questioned on the ground that they contravene Arts. 14, 21, (and 22; but this limitation will not preclude a citizen from challenging the validity of the Act, rule or order made thereunder, on any other ground. [410 F-G] The petitioners contended that r. 30(1)(b) under which the impugned orders of detention had been passed was invalid on grounds other than those based on Arts. 14, 19, 21 and 22. If that plea was well-founded, the last clause of the Presidential Order was not satisfied and therefore the bar created by it suspending the citizens' fundamental rights under Arts. 14, 21, and 22 could not be pressed into service by the respondent. The petitions, therefore, were not incompetent. [412 B] <NAME> v. The State of Punjab,  4 S.C.R. 797, followed. (ii) Rule 30(1)(b) is not invalid. [421 A] Articles 79, 85, 86 and 100(1), relied upon by the petitioners cannot be said to deal with any rights which can be, described as 'constitutional 407 rights of the members of <ORG>. The totality of rights cannot claim the status of fundamental rights and the freedom of speech on which reliance was placed is a part of the privileges failing under Art. 105. A plea that a breach has been committed of any of these privileges could not be raised in view of the decision of <ORG> of <ORG> in the case of Captain <NAME>, because the privileges, powers and immunities of the members of <ORG> are the same as those of the members of <ORG> as they existed at the commencement of the Indian Constitution. Besides, freedom of speech would only be available to a member of <ORG> when he attends the session of <ORG>. If an order of detention validly prevents him from attending a session of <ORG>, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded. [415 G-H; 419 B-D] If a person who is convicted and sentenced for a period less than two year such a conviction would not entail disqualification for being a member of <ORG>-has necessarily to forego his right of participating in the business of the legislature to which he belongs, because he is convicted and sentenced it would follow that a person who is detained must likewise forego his right to participate in the business of the <ORG>. Therefore, it could not be contended that so long as the member of <ORG> had not incurred any disqualification, he was entitled to. exercise his rights as such member. [419 H; 420 A-B] The true constitutional position, therefore, is that so far as a valid order of detention is concerned, a member of <ORG> can claim no special status higher than that an ordinary citizen and is as much liable to be arrested and detained under it as any other citizen. [420 E-F] (iii) In view of the facts that the detention of the petitioners formed" part of a larger question about the attitude which the Government of India and the State Governments should adopt in respect of the activities of the party to which the petitioners be-longed, namely, the pro- Peking faction of the Communist party, and that the issue was examined by the, Union Home Minister along with the Chief Ministers of States and only general decisions in relation thereto were, arrived at, and that the Chief Minister of the State had made a clear and unambiguous statement in his affidavit that he had examined the materials in relation to the activities of the petitioners and was satisfied that it was necessary to detain them, there was no substance in the grievance of the petitioners that the impugned orders of detention were made either mala fide or without the. proper satisfaction of the detaining authority. [424 H; 425 A-D, F-G, 426 B] JUDGMENT:

CRIMINAL JURISDICTION : Writ Petitions Nos. 47 and 61 of' 1965.

Under Article 32 of the Constitution of India for enforce- ment of Fundamental Rights.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the petitioner (in W.P. No. 47/65).

<NAME>, <NAME>, <NAME> and <NAME>, for the petitioner (in W.P. No. 61/65).

<NAME>, Advocate-General, Madras, <NAME> and <NAME>, for respondent no. 1 (in both the petitions).

<NAME>, Additional Solicitor General,<NAME>, <NAME> and <NAME>, for respondent no. 2 (in ,both the petitions).

<NAME>, <ORG>. Advocate General, 'Punjab and <NAME>, for intervener no. 1.

<NAME>, for the State of Bihar and Union Territory of Tripura.

<NAME>, <NAME>, <NAME> and <NAME>, for the intervener (<NAME>). <NAME> and <NAME> for the interveners (<NAME> and 12 ors.) All the other interveners appeared in person. The Judgment of the Court was delivered by <NAME>, <NAME> Mr. <NAME>, who is a Member of <ORG>, has been detained by <ORG> since the 30th December, 1964. On the 29th December, 1964, an order was passed under Rule 30(1)(b) and (4) of the Defence of India Rules, 1962 in which it was stated that <ORG> were satisfied with respect to the petitioner <NAME> that with a view to preventing him from acting in any manner prejudicial to the defence of India and the public safety, it was necessary to make an order directing that he be detained The said order further directed that the petitioner should be arrested by the police wherever found and detained in <ORG>, Tiruchirapalli. Though this order directed the detention of the petitioner in <ORG>, Tiruchirapalli, it is common ground that he has been detained in fact in <ORG>, Cuddalore. By his present writ petition (No. 47 of 1965) filed under Art. 32 of the Constitution, the petitioner challenges the validity of the said order of detention mainly on two grounds. He contends that Rule 30 ( 1 ) (b) under which the impugned order has been passed is invalid, and in the alternative, he argues that the impugned order is not valid, because it has been passed mala fide and is otherwise not justified by the relevant Rules. Mr. <NAME>, who is also a Member of <ORG>, has ,been similarly detained by the order passed by <ORG> on the 29th December, 1964 and in the same terms. He has also been detained not in <ORG>, Tiruchirapalli, as mentioned in the order, but in <ORG>, Cuddalore, since the 30th December, 1964. By his writ petition (No. 61 of 1965), the petitioner <NAME> has raised the same points before us. Mr. <NAME> has argued the first point of law about the invalidity of the relevant Rule, whereas Mr. <NAME> has argued the other ,point relating to the invalidity of the impugned orders, on behalf of both the petitioners. To these two petitioners are impleaded respondent No. 1, -the Chief Secretary, <ORG>, respondent No. 2, the Superintendent, <ORG>, Cuddalore; and respondent No. 3, <ORG>.

Before-proceeding to deal with the points raised by the petitioners, it is necessary to consider the preliminary objection which has been urged before us by the learned Additional Solicitor General who has appeared for respondent No. 3. He contends that the writ petitions are incompetent in view of the Order issued by the President on the 3rd November, 1962. It will be recalled that on the 26th October, 1962, the President issued a Proclamation of Emergency in exercise of the Powers conferred on him by clause (1) of Art. 352 of the Constitution. This Proclamation declared that a grave emergency existed whereby the security of India was threatened by external aggression. Thereafter, two Orders were issued by the President, one on the 3rd November, 1962 and the other on the 1st November, 1962 in exercise of the powers conferred by clause (1) of Art. 359 of the Constitution. The first Order as amended by the later Order reads thus "In exercise of the powers conferred by clause (1) of Art. 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by Arts. 14, 21 and 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Art. 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962  or any rule or order made thereunder".

It may be added at, this stage that Ordinance No. 4 of 1962 later became an Act called The Defence of India Act, 1962 (No. 51 of 10.62.)'. The argument is that the petitioners are admittedly detained under Rule 30(1)(b) of the Defence of India Rules, 4 10 and so, the said Presidential Order is inevitably attracted; and that means that the petitioners' right to move this <ORG> under Art. 32 is suspended during the pendency of the Proclamation of Emergency.

We are not impressed by this argument. In construing the effect of the Presidential Order, it is necessary to bear in mind the general rule of construction that where an Order purports to suspend the fundamental rights guaranteed to the citizens by the Constitution, the said Order must be strictly construed in favour of the citizens' fundamental rights. It will be noticed that the sweep of the Order is limited by its last clause. This Order can be invoked only in cases where persons have been deprived of their rights under Acts. 14, 21 and 22 under the Defence of India Ordinance or any rule or order made there under. In other words, if the said fundamental rights of citizens are taken away otherwise than under the Defence of India Ordinance or rules or orders made thereunder, the Presidential Order will not come into operation. The other limitation is that the Presidential Order will remain in operation only so long as the Proclamation of Emergency is in force. When these two conditions are satisfied, the citizen's right to move this Court for the enforcement of his rights conferred by Arts. 14, 21 and 22 is no doubt suspended; and that must mean that if the citizen wants to enforce those rights by challenging the validity of the order of his detention, his right to move this Court would be suspended in so far as he seeks to enforce the said rights.

But it is obvious that what the last clause of the Presidential Order postulates is that the Defence of India Ordinance or any rule or order made thereunder is valid. It is true that during the pendency of the Presidential Order, the validity of the Ordinance, rule or order made thereunder cannot be questioned on the ground that,they contravene Arts. 14, 21 and 22; but this limitation mill not preclude a citizen from challenging the validity of the Ordinance, rule or order made thereunder on any other ground. If the petitioner seeks to. challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Arts. 14, 21 and 22, the Presidential Order can-not come into operation. In this connection, we ought to add that the challenge to the Ordinance, rule or order made thereunder cannot also be raised on the ground of the contravention of Art. 19 , because as soon as a Proclamation of Emergency is issued by the President, under Art. 358 the provisions of Art. 19 are automatically suspended. But the point still remains that if a challenge is made to the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by Art. 358 , or the Presidential Order issued Art. 359(1 ), such a challenge is outside the purview of the Presidential Order; and-if a petition is filed by a citizen under Art. 32 on the basis of such a challenge, it cannot be said to be barred, because such a challenge is not covered by the Presidential Order at all.

<CITATION> (1) a Special Bench of this Court has had occasion to consider the effect of the Proclamation of Emergency issued by the President and the Presidential Order with which we are concerned in the present writ petitions. In that case, it was held that the sweep of Art. 359 (1) and the Presidential Order issued under it is wide enough to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce any of the specified fundamental rights and that means the fundamental rights under Arts. 14, 19, 21 and 22. Even so, this Court took the precaution of pointing out that as a result of the issue of the Proclamation of Emergency and the Presidential Order, a citizen would not be deprived of his right to move the appropriate court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. Similarly, it was pointed out that if a detenu contends that the operative provisions of the Defence of India Ordinance under which he is detained suffer from the vice of excessive delegation, the plea thus raised by the detenu cannot, at the threshold, be said to be barred by the Presidential Order, because, in terms, it is not a plea which is relateable to the fundamental rights specified in the said order.

Let us refer to two other pleas which may not fall within the purview of the Presidential Order. If the detenu, who is detained under an order passed under Rule 30(1)(b), contends that the said Order has been passed by a delegate outside the authority conferred on him by the appropriate <ORG> under S. 40 of the Defence of India Act, or it has been exercised inconsistently with the conditions prescribed in that behalf, a preliminary bar against the competance of the detenu's petition cannot be raised under the Presidential Order, because the last clause of the Presidential Order would not cover such a petition, and there is no doubt that unless the case falls under the last clause of the Presi-

(1) [1964] 4 S.C.R. 797.

4 12 dential Order, the bar created by it cannot be successfully invoked against a detenu. Therefore, our conclusion is that the learned Additional Solicitor-General is not justified in contending that the present petitions are incompetent under Art. 32 because of the Presidential Order. The petitioners contend that the relevant Rule under which the impugned orders of detention have been passed, is invalid on grounds other than those based on Arts. 14, 19, 21 & 22; and if that plea is well-founded, the last clause of the Presidential Order is not satisfied and the bar created by it suspending the citizens' fundamental rights under Articles 14, 21 and 22 cannot be press into service.

That takes us to the merits of Mr. <NAME>'s contention that Rule 30(1) (b) of the Defence of India Rules is invalid. The Rule in question has been framed under s. 3 (2) (15) of the Defence of - India Act , and in that sense it can be said, prima facie, to be justified by the said provision. But Mr. <NAME> argues that in so far as it permits a Member of <ORG> to be detained, it con- travenes the Constitutional rights, of Members of <ORG>. According to Mr. <NAME>, a Member of <ORG>, like a Member of any of <ORG>, has constitutional riots to function as such Member and to participate in the business of the <ORG> to which he belongs. He is entitled to attend every Session of <ORG>, to take part in-the debate, and to record his vote. SG long as a member of <ORG> is qualified to be such Member, no law can validly take. away his right to function as such Member. The right to participate in the business of the-legislative chamber to which he belongs, is described by Mr. <NAME> as his constitutional right, and he urges that this constitutional right of a legislator can be regarded as his fundamental right; and inasmuch as the relevant Rule authorises the detention of a legislator preventing him from exercising such right, the Rule is invalid. In the alternative, Mr. <NAME> contends that the Rule should be treated as valid in regard to persons other than those who are Members of Legislatures, and in that sense, the part of it which touches the Members of Legislatures, should be severed from the part which affects other citizens and the invalid part should be struck down. This argument again proceeds on the same basis that a legislator cannot be validly detained so as to prevent him from exercising his rights as such legislator while the legislative chamber to which he belongs is in session. On the same basis, Mr' <NAME> has urged another argument and suggested that we should so construe the Rule as not to apply to legislators. It would be noticed that the common basis of all these alternative arguments is the assump-

tion that legislators have certain constitutional rights which cannot be validly taken away by any statute or statutory rule.

In support of this argument, Mr. <NAME> has referred us to, certain constitutional provisions. The first Article on which he relies is Art. 245(1). This Article provides that subject to the, provisions of this Constitution, <ORG> may make laws for the whole or any part of the territory of India, and <ORG> may make laws for the whole or any part of the State. The argument is that the power to make laws is subject to the provisions of the Constitution and that being so, if there are any constitutional rights which the legislators can claim, no law can be validly passed to take away the said rights. In other words, just as the validity of any law can be challenged on the ground that it contravenes the fundamental rights guaranteed by Art. 19 , so can the validity of the impugned Rule be challenged on the ground that it contravenes the constitutional-cum-fundamental rights of the legislators.

These constitutional rights, according to Mr. <NAME>, are to be found in several Articles of the Constitution. Mr. <NAME>'s argument begins with Art. 79. This article deals with the constitution of <ORG>; it provides that <ORG> of the Union shall consist of the President and two <ORG> to be, known respectively as <ORG> and <ORG>. Article 85 (i) provides, inter alia, that the President shall from time to time summon each <ORG> of <ORG> to meet at such time and place as he thinks fit. In accordance with the provisions of this article, when the President decides to call for the session of <ORG> summons are issued under his directions asking all Members of <ORG> to attend the ensuing-session. The Detitioner <NAME> received such a summons issued on the 9th January, 1965 Article 86(i) gives the President the right to address either <ORG> of <ORG> or both <ORG> assembled together, and it Provides that for that purpose, the President shall require the attendance of members. Mr. <NAME> argues that when a summons is issued by the President requiring the member to attend the ensuing session of <ORG>, it is not only his right, but his constitutional obligation to attend the session and hear the speech of the President. Article 100(i) refers to the voting in the <ORG>, and it provides that save as otherwise provided in this Constitution, all questions at any sitting of either <ORG> or joint sitting of the <ORG> shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker. Article 101 (4) provides that if for a period of sixty days a member of either <ORG> of <ORG> is, without permission of the <ORG>, absent from all meetings thereof, the <ORG> may declare his seat vacant. It is common ground that if a member is detained or otherwise prevented from attending the session of the <ORG> for personal reasons, as asks for permission of the <ORG> and usually, such permission is granted'. Article 105 deals with the powers, privileges and immunities of <ORG> and its Members. Mr. <NAME> strongly relies on the provisions of sub-articles (1) & (2) of Art. 105 which deal with :the freedom of speech inside the <ORG> of <ORG>, and confer ,absolute immunity on the Members of <ORG> in respect of their speeches and votes. If the order of detention prevents a Member of <ORG> from attending the, session of <ORG>, from participating in the debate and from giving his vote, that amounts to a violation of his constitutional rights; that, in substance, is Mr. <NAME>'s argument.

Mr. <NAME> also relied on the fact that this right continues to vest in the Member of <ORG> during the life of the <ORG> unless he is disqualified under Art.102 or under s.7(b) of the Representation of the People Act , 1951 (No. 43 of 1951). Article 84 deals with the qualification for membership of <ORG>. With the provisions of this article we are not concerned in the present proceedings, because we are dealing with the rights of persons who have already been elected to the <ORG> in ,other words, who possess the qualifications prescribed by Art. 84.  Article 102 prescribes disqualifications for membership; it provides, inter alia, that a person shall be disqualified for being a member of either <ORG> of <ORG> if his case falls under any -of its clauses (a) to (e). This disqualification applies for being chosen or for being a member of either <ORG> of <ORG>. In ,other words, if a person incurs the disqualification prescribed by the relevant clauses of Art.102(1) after he is elected to either <ORG> of <ORG>, he will cease to be such a Member as a result ,of the said disqualification. If a disqualification is not incurred as prescribed by Art. 102(1 ), he is entitled to continue to be a member of the <ORG> during its life. Section 7 of the Representation ,of the People Act prescribes disqualifications for membership of <ORG> or of <ORG>. S. 7 (b) is relevant for our purpose. It provides that a person shall be disqualified for being -chosen as, and for being, a member of either <ORG> of <ORG> if, whether before or after the commencement of the Constitution, be has been convicted by a Court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such less' period as <ORG> may allow in any particular case, has elapsed since his release. The argument based on the provisions of s 7 is the same as the -argument based on the provisions of Art. 102. If a Member of <ORG> incurs a disqualification, he may cease to be such member, but if he continues to be qualified to be a member, his constitutional rights cannot be taken away by any law or order. It will be noticed that in substance the claim made is one of exemption from arrest under a detention order and, prima facie, such a claim would normally and legitimately fall under Art. 105(3) of the Constitution. Art. 105(3) deals with the powers, privileges and immunities of <ORG> and its Members, and it provides that in other respects, the powers, privileges and immunities of each <ORG> of <ORG>, and of the members and the committees of each <ORG>, shall be such as may from time to time be defined by <ORG> by law, and until so defined, shall be those of the <ORG> of Commons of the <ORG> of the United Kingdom, and of its members and committees, at the com- mencement of this Constitution. But Mr. <NAME> expressly stated before us that he did not rest his case on the provisions of Art. 105(3) and that obviously is for the very good reason that freedom from arrest under a detention order is not recognised as a privilege which can be claimed by Members of <ORG> of Commons in England. It is because such a claim cannot be based on the provisions of Art. 105(3) that Mr. <NAME> has been driven to adopt the ingenious course of suggesting that the rights of the Members of <ORG> to participate in the business of <ORG> is a constitutional and even a fundamental right which cannot be contravened by any law. The narrow question which thus falls to be considered on this contention is : if a claim for freedom from arrest by a detention order cannot be sustained under the privileges of the Members of <ORG>, can it be sustained on the ground that it is a constitutional right which cannot be contravened ? Before dealing with this point, it is necessary to indicate broadly the position about the privileges of the members of <ORG>, because they will materially assist us in determining the validity of the contention raised before us by Mr. <NAME>. It is common ground that the privileges, powers and immunities of the members of <ORG> are the same as those of the members of the <ORG> of Commons as they existed at the commencement of the Indian Constitution. Let us, therefore, see what was the position about the privileges of the members of the <ORG> of Commons in regard to freedom from arrest by a detention order ?

Sup.CI./66-13 The position about the privileges of the Members of <ORG> in regard to preventive detention is well settled. In this connection, <NAME> observes : "The privilege of freedom from arrest is limited to civil causes, and has not been allowed to interfere with the administration of criminal justice or emergency legislation."(1) In early times the distinction between "civil" and "criminal" was not clearly expressed. It was only to cases of "treason, felony and breach (or surety) of the peace" that privilege was explicitly held not to apply. Originally the classification may have been regarded as sufficiently comprehensive. But in the case of misdemeanours, in the growing list of statutory offences, and, particularly, in the case of preventive detention under emergency legislation in times of crisis, there was a debatable region about which neither <ORG> had until recently expressed a definite view. The development of privilege has shown a tendency to confine it more narrowly to cases of a civil character and to exclude not only every kind of criminal case, but also cases which, while not strictly criminal, partake more of a criminal than of a civil character. This development is in conformity with the principle laid down by the <ORG> in a conference with the <ORG> in 1641 : "Privilege of <ORG> is granted in regard of the service of the <ORG> and is not to be used to the danger of the <ORG>". The last statement of <NAME> is based on the report of the Com- mittee of Privileges of <ORG> which dealt with the case of the detention of Captain <NAME> under Regulation 18B of the Defence (General) Regulations, 1939. Cap. <NAME> who had been detained under the said Regulation, urged before <ORG> that by reason of the said detention, a breach of the privileges of the <ORG> had been committed. This plea was rejected by <ORG>. The Committee found that Reg. 18B under which Cap. <NAME> had been detained, had been made under section 1(2)(a) of the Emergency Powers (Defence) Act, 1939. It examined the question as to whether the arrest and detention of Cap. <NAME> were within the powers of the Regulation and in accordance with its provisions; and it was satisfied that they were within the powers of the Regulation and in accordance with its provisions. The Committee then examined several precedents on which Cap. <NAME> relied, and it found that whereas arrest in civil proceedings is a breach of privilege, arrest on a criminal charge for an indictable (1) <NAME>'s <ORG>ary Practice, 7th Ed. p. 78.

offence is not. The <ORG> then examined the basis of the privilege and the reason for the distinction between arrest in a civil suit and arrest on a criminal charge. It appeared to the <ORG> that the privilege of freedom from arrest originated at a time when English Law made free use of imprisonment in civil proceedings as a method of coercing debtors to pay their debts; and in order to enable the Members of <ORG> to discharge their functions effectively, it was thought necessary to, grant them immunity from such arrest, because they were doing King's business and should not be hindered in carrying out their business by arrest at the suit of another subject of the King. Criminal acts, however, were offences against the King, and the privilege did not apply to arrest for such acts. In this connection, the <ORG> emphasised the fact that consideration of the general history of the privilege showed that the tendency had been to narrow its scope. The <ORG> recognised that there was a substantial difference between arrest and subsequent imprisonment on a criminal charge and detention without trial by executive order under the Regulation or under analogous provisions in the past. It, however, observed that they have this in common that the purpose of both was the protection of the community as a whole, and in that sense, arrest in the course of civil proceedings, on principle, was wholly different from arrest on a criminal charge or arrest for the purpose of detention. It is on these grounds that the <ORG> came to the conclusion that the detention of Cap. <NAME> did not amount to any infringement of his privilege of freedom of speech. A similar question had arisen in India in 1952. It appears that in the early hours of the morning of the 27th May, 1952, Mr. <NAME>, who was then a Member of <ORG>,. was arrested and detained under the Preventive Detention Act, 1950 the <ORG> was then in session; and a question was raised that the said arrest and detention of Mr. <NAME>, when the <ORG> was in session, amounted to a breach of the privilege of the <ORG>. The question thus raised was referred to the <ORG> of Privileges for its report. On the 9th July, 1952, the report made by the said <ORG> was submitted to the <ORG>. The majority view of the <ORG> was that the arrest of' Mr. <NAME> under the Preventive Detention Act did not constitute a breach of the privilege of the <ORG>. In coming to this conclusion, the majority view rested itself primarily on the decision of the <ORG> of Privileges of the <ORG> of Commons in the case of Cap. <NAME>. It is thus plain that the validity of the arrest of the petitioners in the present proceedings cannot be provisions of Art. 105. That is why Mr. <NAME> naturally did not and could not press his case under the said Article. What then is the true legal character of the rights on which' Mr. <NAME> has founded his argument ? They are not rights which can be properly described as constitutional rights of the Members of <ORG> at all. The Articles on which Mr. <NAME> has rested his case clearly bring out this position. Article 79 deals with the constitution of <ORG> and it has nothing to ,do with the individual rights of the Members of <ORG> after they are elected. Articles 85 and 86 confer on the President the power to issue summons for the ensuing session of <ORG> and to address either <ORG> of <ORG> or both <ORG>s as therein specified. These Articles cannot be construed to confer any right -as such on individual Members or impose any obligation on them. It is not as if a Member of <ORG> is bound to attend the session, or is under an obligation to be present in the <ORG> when the President addresses it. The context in which these Articles appear shows that the subject-matter of these articles is not the individual rights of the Members of <ORG>, but they refer to the right of the President to issue a summons for the ensuing session of <ORG> or to address the <ORG> or <ORG>s. Then as to Art. 100(1) : what it provides is the manner in which questions will be determined; and it is not easy to see how the provision that all questions shall be determined by a majority of votes of Members present and voting, can give rise to -a constitutional right as such. The freedom of speech on which Mr. <NAME> lays considerable emphasis by reference to Art. 105(1)  & (2 ), is a part of the privileges, of the Members of the <ORG>. It is no doubt a privilege of very great importance and significance, because the basis of democratic form of Government is that Members of <ORG>s must be given absolute freedom of expression when matters brought before the <ORG> are debated. Undoubtedly, the Members of <ORG> have the privilege of freedom of speech, but that is only when they attend the session of the <ORG> and deliver their speech within the chamber itself. It will be recalled that in Cap. <NAME>'s case, what had been urged before the <ORG> of Privileges was that the detention of Cap. <NAME> had caused a breach of privilege of his freedom of speech, and this plea was rejected by the <ORG>. We are, therefore, satisfied that on a close examination of the articles on which Mr. <NAME> has relied, the whole basis of his argument breaks down, because the rights which he calls constitutional rights are rights accruing to the Members of <ORG> after they are elected, but they are not constitutional rights in, the. strict sense, and quite clearly, they are not fundamental rights at all. It may be that sometimes in discussing the significance or importance of the right of freedom of speech guaranteed by Art. 105 (1)  & (2 ), it may have been described as a fundamental right; but the totality of rights on which Mr. <NAME> relies cannot claim the status of fundamental rights at all, and the freedom of speech on which so much reliance is placed, is a part of the privileges falling under Art. 105 , and a plea that a breach has been committed of any of these privileges cannot, of course, be raised in view of the decision of the <ORG> of Privileges of the <ORG> of Commons to which we have just referred. Besides, the freedom of speech to which Art. 105 (1) and (2) refer, would be available to a Member of <ORG> when he attends the session of the <ORG>. If the order of detention validly prevents him from attending a session of <ORG>, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded.

There is another aspect of this problem to which we would like to refer at this stage. Mr. <NAME> has urged that a Member of <ORG> is entitled to exercise all his constitutional rights as such Member, unless he is disqualified and for the relevant disqualifications, he has referred to the provisions of Art. 102 of the Constitution and S. 7 of the Representation of the People Act. Let us take a case falling under S. 7(b) of this Act. It will be recalled that S. 7(b) provides that if a person is convicted of any offence and sentenced to imprisonment for not less than two years, he would be disqualified for membership, unless a period of five years, or such less period as <ORG> may allow in any particular case, has elapsed since his release. If a person is convicted of an offence and sentenced to less than two years, clearly such conviction and sentence would not entail disqualification. Can it be said that, a person who has been convicted of an offence and sentenced to suffer imprisonment for less than two years, is entitled to claim that notwithstanding the said order of conviction and sentence, he should be permitted to exercise his right as a legislator, because his conviction and sentence do not involve disqualification ? It is true that the conviction of a person at the end of a trial is different from the detention of a person without a trial; but so far as their impact on the alleged constitutional rights of the Member of <ORG> is concerned, there can be no distinction. If a person who is convicted and sentenced, has necessarily to forgo. his right of participating in the business of the <ORG> to which he belongs, 4 2 0 because he is convicted and sentenced, it would follow that a person who is detained must likewise forgo his right to participate in the business of the <ORG>. Therefore, the argument that so long as the Member of <ORG> has not incurred any disqualification, he is entitled to exercise his rights as such Member, cannot be accepted. Besides, if the right on which the whole argument is based is not a fundamental right, it would be difficult to see how the validity of the Rule can be challenged on the ground that it permits an order of detention in respect of a Member of <ORG> and as a result of the said order the Member of <ORG> cannot participate in the business of <ORG>. It appears that a similar question had arisen before the Madras and <ORG>, and the decisions of these High Courts are in accord with the view which we are inclined to take in the present proceedings. <CITATION> (1), it was held by a Division Bench of <ORG> that a Member of the State <ORG> cannot have immunity from arrest in the case of, a preventive detention order. Similarly, in the case of <NAME>), it was held by <ORG> that once a Member of <ORG> is arrested and lawfully detained, though without actual trial, under any Preventive Detention Act, there can be no doubt that under the law as it stands, he cannot be permitted to attend the sittings of the <ORG>. The true constitutional position, therefore, is that so far as a valid order of detention is concerned, a Member of <ORG> can claim no special status higher than that of an ordinary citizen and is as much liable to be arrested and detained under it as any other citizen.

<CITATION> (3), <ORG> has elaborately considered this point and has held that a member of <ORG> cannot claim as such Member any immunity from arrest under the Preventive-Detention Act. Dealing with the argument that a Member of <ORG> cannot, by reason of his detention, be prevented from exercising his rights as such Member, <NAME>, C.J. observed that if this argument is sound, it follows that persons convicted ,of certain offences and duly elected must be allowed to perform their duties and cannot be made to serve their sentence during the life of a <ORG>. We ought to add that in all these cases, the learned Judges took notice of the fact that freedom from crimi-

(1) I.L.R. [1951] Mad. 135 (2) I.L.R. [1953] Mad. 93 (3) I.L.R. [1954] I.Cal. 272 nal arrest was not treated as constituting a privilege of the members of <ORG>-in England. Therefore, we are satisfied that Mr. <NAME> is not right in contending that R.30(1)(b) is invalid.

It now remains to consider the other grounds on which Mr. <NAME> has challenged the validity of the impugned orders of detention. The first contention raised by Mr. <NAME> is that the Presidential Order itself is invalid. This Order has been issued in accordance with the provisions of Art. 77(2) of the Constitution. Mr. <NAME>, however, contends that the Order issued by the President by virtue of the power conferred on him by Art. 359(1) is not an executive action of <ORG> and as such, Art. 77 would not apply. We are not impressed by this argument. In our opinion, Art. 77(2) which refers to orders and other instruments made and executed in the name of the President is wide enough to include the present Order. Besides, it is significant that Art. 359(3) itself requires that every order made under clause (1) shall, as soon as may be after it is made, be laid before <ORG>; 'and it is not alleged that this has not been done. In fact, Mr. <NAME> did not seriously press this point.

The next contention raised by Mr. <NAME> is that the present detention of the two petitioners is invalid inasmuch as the orders of detention passed in both the cases directed that the petitioners should be detained in the Central Jail, Tiruchinapalli, whereas both of them have been detained throughout in the Central Jail, Cuddalore. Mr. <NAME>'s grievance is that it is not shown that a proper order had been passed changing the place of detention of the petitioners from Tiruchinapalli to Cuddalore. This plea has been met by the counter-affidavit filed on behalf of <ORG> on the ground that the original orders of detention indicating that the petitioners should be detained in the Central fail, Tiruchinapalli, were modified by Government by a later Order fixing the venue of detention as the Central Jail, Cuddalore, for reasons of security. The counter:affidavit did not indicate the date on which this Order was passed, and that left an element of ambiguity. At the hearing of these petitions, however, the learned counsel appearing for <ORG> has produced before us an abstract from <ORG> giving all the details about this order. It appears that this later Order was passed on December 30, 1964, and it purported to modify all the orders stated in the preamble;

amongst these orders are the orders of detention passed against both the petitioners. Therefore, -it is clear that by virtue of the powers conferred on it by Rule 30(4), the Government of Madras had changed the venue of the petitioners' detention; and so, there is no substance in the argument that their detention in the Central Jail, Cuddalore, is illegal.

Mr. <NAME>'s main contention against the validity of the orders of detention, however, is in regard to the alleged mala fides in the said orders. He argues that the impugned orders have been passed by <ORG> mala fide for the purpose of stifling the political activities of the petitioners which appeared to <ORG> to be inconvenient. These orders have been passed for that ulterior purpose and not for the purpose set out in the orders of detention. Besides, it is urged that the Chief Minister of Madras passed these orders without satisfying himself that it was necessary to issue them. He was influenced by what the Union Home Minister had already decided in regard to the petitioners. It is not as a result of the satisfaction of the Chief Minister himself that the petitioners had been detained; the orders of detention have been passed against the petitioners solely because the Union Home Minister was satisfied that they should be detained. That, in substance, is the grievance made before us by Mr. <NAME> against the validity of the impugned orders of detention.

It appears that the Union Home Minister made certain state- ments in his broadcast to the <ORG> from <ORG>, on January 1, 1965, and in reply to a debate on the Budget Demands of <ORG> in <ORG> on April 27, 1965. This is what the Union Home Minister is reported to have said in his broadcast :-

"As you are aware, a number of leaders and active workers of <ORG> have been detained during the last three days. We have had to take this step for compelling reasons for internal and external security of the country. It is painful to us to deprive any citizen of this free country of his liberty and it is only after the most careful thought that we have taken this action."

"This very disagreeable decision was taken after giving the most serious thought to all that was at stake".

'We came to the conclusion that we would be taking a serious risk with the external and internal security of the country if we did not act immediately".

This is what the Union Home Minister is reported to have id in <ORG> :-

"It is a matter of regret to me that I have had to make myself responsible for throwing into prison a fairly large number of citizens of this country".

"I look into the cases personally. I may say that it may be that some error may have occurred here and there; that test has to be satisfied. We have to make sure that it is because of our clear appreciation of the activities which we may call pro-Chinese, disloyal activities, subversive activities,, one way or another, that we have to resort to this kind of action. If on any person, any detenu on his part, it can be said that there was a mistake made, that he actually is not pro-Chinese and he is a loyal citizen of the country, I am personally prepared to look into each case and again satisfy myself that no wrong has been done or no injustice has been done".

For the purpose of dealing with the present petitions, we are assuming that the petitioners can rely upon these two statements. The learned Additional Solicitor-General no doubt contended that the statements were not admissible and relevant and had not been duly proved; besides, according to him, some of the statements produced were also inaccurate; even so, he was prepared to argue on the basis that the said statements can be considered by us, and so,,,, we have not thought it necessary to decide the question about the relevance or admissibility or proof of these statements in the present proceedings.

In appreciating the effect of these two statements, it is necessary to refer to the statements made on affidavit by the Chief Minister of Madras and the Chief Secretary to the Government of Madras respectively. This is what the Chief Minister of Madras has stated on oath :-

"Consequent upon the outbreak of hostilities between China and India and declaration of Emergency it was necessary for <ORG> and the various States to watch carefully the movements and activities of those persons, who either individually or as part of any group, were acting or likely to act in a manner prejudicial to the safety of India and the maintenance of public order. <ORG> was rift into two factions and the faction known as <ORG>, which came to be known as the <ORG>, had particularly to be watched. The question of detaining persons belonging to this faction and who were also active, was engaging the attention of the Governments and was also discussed at the Chief Ministers' Conference. Our sources ,of intelligence continued to maintain a watch over the movements and activities of these individuals. <ORG> being an <ORG> with a wide net work, the question of detention had necessarily to be considered on a National level, so that a coordinated and concerted action may be taken. It was in this context that <ORG> communicated with <ORG>".

"I submit that I ordered the petitioners in the above petitions to be detained, on 29th December, 1964. The petitioners are also known to me and their detention was ordered on my personal satisfaction that it was necessary. My satisfaction was both on the general question as to the need for detaining persons like the petitioner and on the individual question namely whether the petitioner was one such, whose detention was necessary".

The Chief Secretary's affidavit is on the same lines. On these statements, the question which falls to be decided is : is it shown, by the petitioners that the impugned orders of detention were passed for an ulterior purpose, or they have been passed by the Chief Minister of Madras without satisfying himself, merely because the Union Home Minister thought that the petitioners should be detained. It is not disputed that if the Union Home Minister wanted to make an order detaining the petitioners, he could have made the order himself. But the contention is that the orders, in fact, have been made by the Government of Madras, and it is, therefore, necessary to consider whether the Chief Minister of Madras satisfied himself or not. In dealing with these pleas, we cannot ignore the fact that the question about detaining the petitioners formed part of a larger question about the attitude which <ORG> and the State Governments should adopt in respect of the activities of the <ORG> to which the petitioners belong. This <ORG> is known as the Left Communist <ORG> of India which came to be known as the <ORG> faction of the Communist <ORG>. It is, therefore, not surprising that this larger issue should have been examined by the Union Home Minister along with the Chief Ministers of the States in India. The sources of intelligence available to <ORG> had given it the relevant information. Similarly, the sources of information available to the Governments of different States had supplied to their respective States the relevant information about the political activities of the Left Communist <ORG> of India. Having considered these reports, the Union Home Minister and the Chief Ministers came to certain decisions in regard to the approach which should be adopted by them in respect of the Left Communist <ORG> in view of the Emergency prevailing in the country. This general decision naturally had no direct relation to any particular individuals as such. The decision in regard to the individual members of the Left Communist <ORG> had inevitably to be left to the State Governments or <ORG> according to their discretion. It is conceded that <ORG> has in fact issued orders of detention against as many as 140 members of the, Left Com- munist <ORG> of India, whereas different orders of detention have been passed by different State Governments against members of the Left Communist <ORG> in their respective States. It is in the background of this position that the statements of the Union Home Minister as well as those of the Chief Minister of Madras have to be considered. Thus considered, we do not see any justification for the assumption that the detention of the petitioners was ordered by the Chief Minister of Madras without considering the matter himself. Indeed, it is not denied that the Chief Minister knows both the petitioners and he has stated categorically that he examined the materials in relation to the activities of the petitioners and he was satisfied that it was necessary to detain them. We see no reason whatever why this clear and unambiguous statement made by the Chief Minister of Madras should not be treated as true. As the Chief Minister states in his affidavit, his satisfaction was both on the general question as to the need for detaining persons like the petitioners, and on the individual question of each one of them. In this connection, it is obvious that when the Union Home Minister spoke in the first person plural, he was speaking for <ORG> and the State Governments as well, and when he spoke in the first person singular, he was referring to cases with which he was concerned as the Union Home Minister, and that would take in cases of persons whose detention has been 42 6 ordered by <ORG>. There is, therefore, no inconsistency or conflict between the statements of the Union Home Minister and the affidavit of the Chief Minister of Madras. That being so, we are satisfied that there is no substance in the grievance made by Mr. <NAME> that the impugned orders of detention passed against the petitioners were made either mala fide or without the proper satisfaction of the detaining authority. In the result, both the writ petitions fail and are dismissed.

Petition dismissed.


PETITIONER: <NAME> AND ANOTHER Vs. RESPONDENT: AMARNATH AND ANOTHER. DATE OF JUDGMENT: 19/01/1954 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, <NAME>, VIVIAN HASAN, <NAME> CITATION: 1954 AIR 215 1954 SCR 565 CITATOR INFO : R 1955 SC 233 (20) R 1958 SC 321 (6) R 1958 SC 398 (30) F 1965 SC1994 (18) F 1972 SC1598 (12) R 1975 SC1297 (7) R 1978 SC 45 (5) RF 1979 SC 1 (11) RF 1986 SC1272 (102) F 1987 SC 117 (17) ACT: Constitution of India, arts. 227 and 241-<ORG>-Whether conferred power of judicial superintendence-Rent Controllerand District Judge-Whether Tribunals within the meaning of art. 227- East Punjab Urban Rent Restriction Act (III of 1949 as extended to Himachal Pradesh, s. 13(2)(i), Proviso Non-payment of arrears of rent on first hearing of application for ejectment-Legal effect thereof. HEADNOTE: <ORG> of Himachal Pradesh exercises jurisdiction in relation to the whole of the territories of Himachal Pradesh. The Rent Controller and the District Judge exercising juris. diction under the East Punjab Rent Restriction Act,,1949, are certainly tribunals it not courts within the meaning of art. 227 of the Constitution and they function within the territories of 566 Himachal Pradesh. Therefore art. 227(1) read with art. 241 confers on <ORG> power of superintendence over such tribunals. The words "in relation to which" in art. 227(1) qualify the word "territories" and not the words "courts and tribunals". There is no force in the contention that cl. (2) of art. 227 only confers on the <ORG> administrative superintendence over the subordinate courts and tribunals because cl. (2) of the article is expressed to be without prejudice to the generality of the provisions in cl. (1). The power of superintendence conferred by art. 227 should be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. In view of the admitted failure by the tenants to pay the rent as provided by the rent deed or at the first hearing of the court under the proviso to s. 13(2)(1) the lower courts had acted arbitrarily in refusing to make an order for ejectment against the tenants who had not done what was incumbent on them to do under the law and thereby refused to exercise jurisdiction vested in them by law and it was a case which called for interference by <ORG> and it acted quite properly in doing so. <CITATION> through <NAME> (I.L.R.  1 All. 558 at p. 567) and <CITATION> (A.I.R. 1951 Cal. 193) referred to. JUDGMENT:

CiviL APPELLATE JURISDICTION: Civil Appeal No. 64 of 1953. Appeal by special leave from the Judgment and Decree, dated the 29th November, 1951, of <ORG> for Himachal Pradesh at Simla in Civil Revision No. 52 of 1951.

<NAME> for the appellants.

<NAME> (<NAME>, with him) for the respondents.

1954. January 19. The Judgment of the Court was delivered by <NAME> is an appeal by special leave against the order made on the 20th November, 1951, by the Judicial Commissioner of Himachal Pradesh in proceedings instituted by the respondents under articles 226 and 227 of the Constitution of India.

There is no substantial dispute as to the facts leading up to the present appeal. The 'appellants were tenants of a certain shop premises situate in Solan Bazar in the district of Mahasu in Himachal Pradesh. On the llth October, 1947, they had executed a rent deed by which they agreed to pay an annual rent of Rs. 175 payable as to Rs. 50 on the last of Baisakh and as to the balance of Rs. 125 in the month of October, in default of which payment,% the respondents, as landlords, would be entitled to recover the whole of the said rent in one lump sum. The tenancy created by the rent deed was only for one year in the first instance but it provided that if the tenants desired to continue in occupation they must execute a further rent deed before the expiration of the said term. The appellants never executed any further rent deed but held over and continued in occupation of the demised premises. The appellants fell into arrears with the payments of rents due for the years 1948 and 1949 and the respondents made applications to the Rent Controller for eviction of the appellants under section 13 (2) (i) of the East Punjab Urban Rent Restriction Act, 1949, as extended to Himachal Pradesh. The appellants, however, paid up the arrears of rent into court and claimed the benefit of the proviso to section 13 (2) (i). The claim was allowed and the said applications were dismissed accordingly on the 18th December, 1950.

The appellants again fell into arrears with the pay- ment of rent due for the year 1950. On the 26th December, 1950, the respondents served on the appellants a notice c alling upon the latter to pay whole of the said rent forthwith but the appellants failed to do so. The respondents thereupon, on the 2nd January, 1951, filed an application under section 13 (2) (i) for the eviction of the appellants on the ground of nonpayment of rent. Thereafter, on the 10th January, 1951, the appellants made an application to the Rent Controller for the fixation of a fair rent under section 4 of the said Act. On the 25th January, 1951, the appellants filed their written statements in the proceedings under section 13 (2) (i) admitting the nonpayment of rent and the receipt of the notice but pleaded (i) that the respondents' application was barred by reason of the rejection of the previous applications for eviction made by the respondents and (ii) that the present application could not be entertained in view of the pendency of their application for fixation of a fair rent under section 4 of the said Act.

On the 20th February, 1951, the Rent Controller framed the following issues:-

(1) Whether the application in question was not entertainable in view of the judgment of the District Judge, dated the 18th December, 1950 Onus on defendants. (2) If issue No. I is not proved, had the opposite party (tenants) not paid the rent and as such were they liable to be ejected? Onus on plaintiffs.

(3) Have the opposite party already filed an application in the said court for the fixation of rent and are they, therefore, not liable for ejectment pending the decision on the application and what is its effect on the said application? Onus on defendants.

By his judgment, dated the 29th May, 1951, the Rent Controller held that as the previous applications related to non-payment of rents for the years 1948 and 1949 the present application which was founded on non-payment of rent for 1950 was not barred under section 14 of the said Act but, although the fact of rent being in arrears was admitted, the Rent Controller did not think fit to make an order directing the appellants to put the respondents in possession of the demised premises. The reasons given by him were as follows:-

" Regarding the non-payment of the rent when the plea of the tenant is only that he is waiting for the fixation of fair rent by the Rent Controller there is not enough ground for ejectment. A civil suit for the recovery of the rent would have been a more appropriate method of obtaining that rent. I therefore dismiss the suit.' The parties should bear their own The respondents preferred an appeal to the District Judge of Mahasu under section 15 of the said Act. The learned District Judge dismissed the appeal observing- "On behalf of the landlord it was urged that under section 13 (2) of the Punjab Urban Rent Restriction Act, as applied to Himachal Pradesh, the Controller, if it came to the finding that rent had not been paid, had no option but to direct the tenant to put the landlord in possession. Undoubtedly, that is the correct legal position, but in the present case the non-payment of rent was due to a misapprehension of the legal position created by the tenant filing an application for fixing fair rent. 1, therefore, think that this case can be distinguished and does not fall within section 13 (2), Punjab Urban Rent Restriction Act." The respondents moved the Judicial Commissioner, Himachal Pradesh, under articles 226 and 227 of the Constitution of India for setting aside the order of the District Judge. The learned Judicial Commissioner held that in view of the admitted failure to pay the rent as provided by the rent deed or at the first hearing of the court under the proviso to section 13 (2) (i) the courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants who had not done what was incumbent on them to do under the law and that such a situation called for inter- ference by the court of the Judicial Commissioner in order to keep the subordinate courts within the bounds of their authority. He accordingly set aside the orders of the courts below and allowed the application for ejectment but gave the appelants three months' time for vacating the premises. The appellants have now come up before this court on appeal by special leave obtained from this court. Learned advocate appearing in support of this appeal urges that the learned Judicial Commissioner acted wholly without jurisdiction inasmuch as (1) the Rent Controller or the District Judge exercising powers under the Act was not amenable to the jurisdiction of <ORG> and, therefore, article 227 confers no power on the court of the Judicial Commissioner over the Rent Controller or the District Judge, and (2) that article 227 read with article 241 confers no power of judicial superintendence on the court of the Judicial Commissioner. Re. l.-The court of the Judicial Commissioner of Himachal Pradesh exercises jurisdiction in relation to the whole of the territories of Himachal Pradesh. The Rent Controller and the District Judge exercising jurisdiction under the Act are certainly tribunals, if not courts, and they function within the territories of Himachal Pradesh. Therefore, article 297 (1) read with article 241 confers on the court of the Judicial Commissioner power of superintendence over such tribunals. The words " in relation to which " obviously qualify the word " territories " and not the words "courts and tribunals".

Re. 2.The material part of article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by the article also to tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are tribunals cannot and has not been controverted. The only question raised is as to the nature of the power of superintendence conferred by the article. Reference is made to clause (2) of the article in support of the contention that this article only confers on the <ORG> administrative superintendence over the subordinate courts and tribunals. We are unable to accept this contention because clause ( 2) is, expressed to be without prejudice to the.generality of the provisions in clause (1). Further, the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the <ORG>s Act, 1861, gave a power of judicial superintendence to the <ORG> apart from and independently of the provisions of other laws conferring revisional jurisdiction on the <ORG>. In this connection it has to be remembered that section 107 of the Government of India Act, 1915, was reproduced in the Government of India Act, 1935, as section 224 . Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the <ORG> any jurisdiction to,question any judgment of any inferior court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different <ORG>s referred to above. Section 224 of the 1935 Act has been reproduced with certain modifications in article 227 of the Constitution. It is significant to note that sub-section (2) to section 224 , of the 1935 Act has been omitted from article 227. This significant omission has been regarded by all <ORG>s in India before whom this question has arisen As having restored to the <ORG> the power of judicial superintendence it had under section 15 of the <ORG>s Act, 186 1, and section 107 of the Government of India Act, 1915. See the cases referred to in - <CITATION> through <NAME>). Our attention has not been drawn to any case which has taken a different view and, as at present advised, we see no reason to take a different view.

This power of superintendence conferred by article 227 is, as pointed out by <NAME>, in <CITATION> (2), to be exercised most sparingly and only in appropriate cases in order to keep <ORG> within the bounds of their authority and not for correcting mere errors. As rightly pointed out by the Judicial Commissioner in the case before us the lower courts in refusing to make an order for ejectment acted arbitrarily. The lower courts realised the legal position but in effect declined to do what was by section 13 (2) (i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It. was, therefore, a case which called for an interference by the court of the Judicial Commissioner and it acted (1) I.L.R.  1 All. 558 at p. 567, (2) A.I.R. 1951 Cal. 193.

quite properly in doing so. In our opinion there is no ground on which in an appeal by special leave under article 136 we should interfere. The appeal, therefore, must stand dismissed with costs.

Appeal dismissed.

Agent for the appellants: <NAME>. Agent for the respondent: <NAME>.


JUDGMENT <NAME>, J.

1. This is an application under Article 226 of the Constitution of India praying that a writ of mandamus, certiorari or such other writ as may be proper be issued declaring that the decision of the <ORG> retiring the petitioner from service prematurely is illegal, void and inoperative, and directing that the petitioner be re-instated in his substantive post. The facts briefly stated are as follows:

2. The petitioner, <NAME>, entered Government service in the office of the Director of Agriculture, Uttar Pradesh, in the year 1923 as an apprentice and having worked on various posts rose to the position of Head Assistant in the pay-scale of Rs. 300-20-400. The petitioner had an unblemished record of service and got honoraria and special pay getting promotions sometimes superseding his seniors. In 1951 <ORG>, opposite party No. 1, on the recommendation of the Director of Agriculture, opposite party no. 2, appointed the petitioner in a leave vacancy as a Personal Assistant to the Director of Agriculture, opposite party No. 2, in the pay-scale of Rs. 350-25-500. This was in consideration of his honest and efficient work and integrity. The work of the petitioner as Personal Assistant was found so satisfactory that in June 1952 the Director of Agriculture, opposite party No. 2, recommended to the Government for the petitioner's appointment to another ex-cadre gazetted post of Personal Assistant to the Principal of <ORG> in the same scale of pay, viz., Rs. 350-25-500.

But this was the turning point in the petitioner's career. For some mysterious reason, according to the petitioner, the said post was ordered to be held in abeyance till the petitioner was got rid of by being compulsorily retired prematurely. As soon as the petitioner was compulsorily retired the post was resurrected and one Sri <NAME>, a Stenographer to the Minister for Agriculture and Revenue, U. P., was appointed to the post in May 1953. What transpired in the meanwhile may now be told. Scenting some trouble the petitioner applied for leave on 15th April 1953. On 18th April 1953, a letter signed by the Director of Agriculture was received by the petitioner intimating to him that "it was the policy of the <ORG> laid down in <ORG> Order" noted therein to retire such officials as have completed more than 25 years of qualifying service and "advising him to proceed on leave preparatory to retirement immediately and to apply for such leave within 7 days from the receipt thereof." On April 25, 1953, a reply to this letter was sent by the petitioner pointing out that he would ,be completing his 30 years of service and 50 years of age on 6-11-1953 and he might, at least, be allowed to continue till that date and might be allowed to proceed on leave as already applied for on 15-4-1953, and the petitioner would then later consider whether it would be in his interest to follow the said advice.

The petitioner, thereupon, was served with an order of 29th May 1953, issued by the Director of Agriculture informing him that the Government had decided to retire him and had sanctioned him four months' leave preparatory to retirement retrospectively from 28-4-1953. Aggrieved by the said order the petitioner sought an interview with the Minister for Agriculture and Revenue, Uttar Pradesh, for securing redress, but it was not granted. Ultimately the petitioner submitted a representation on 20-7-1953 to the Government through the Director of Agriculture, pointing out that the premature compulsory retirement of the petitioner more than five years before time was not warranted by the rules of service or any rule of law or any valid recommendation, made by any legal authority and the action of the opposite parties will cause great financial loss to him to the tune of Rs. 22,000/- or Rs. 23,000/-besides a recurring loss of Rs. 31/- or 32/- per month as his pension would stand reduced by that amount. But no reply was given to the petitioner. Hence he filed the present petition in this Court, on the 20th August 1953.

3. Under Rule 53 of the Financial Handbook, Volume II issued by the authority of <ORG> the rule or normal retirement of a <ORG> servant is as follows:

"Except as otherwise provided in other clauses of this rule the date of compulsory retirement of a <ORG> servant, other than a <ORG> servant in inferior service is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the <ORG> on public grounds, which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances."

4. The rule under which the petitioner was compulsorily retired js Rule 465 of the Civil Service Regulations as adapted in the Uttar Pradesh. The rule after its amendment in 1948 now stands as follows:

"(1) A retiring pension is granted to a Government servant who is permitted to retire after completing qualifying service for 25 years or on attaining the age of 50 years."

(2) A retiring pension is also granted to a <ORG> servant who is required by <ORG> to retire after completing 25 years or more of qualifying service."

Appended to this is a note which, is as follows:

"<ORG> retains the right to retire any government servant after he has completed 25 years' qualifying service without giving any reasons, and no claim to special compensation on this account shall be entertained. This right shall only be exercisable by Government in <ORG>, where it is in the public interest to dispense with the services of a government servant who has outlived his useful ness."

Before its amendment in the year 1948, the period of qualifying service for compulsory retirement was 30 years instead, of 25 years.

5. G. O. No. 0-1297/11-3-25-1948, dated May 3, 1949 provided that before passing an order of compulsory retirement under Rule 465, it was necessary in accordance with the provisions of Section 240(3) of the <ORG> of India Act, 1933, as adapted, to give the <ORG> servant concerned 'a reasonable opportunity' of showing cause against the action proposed to be taken in regard to him. The G. O. went on to add, "It is not, however, necessary for this purpose to adopt the elaborate procedure laid down in Rule 55 of the Civil Services (Classification Control and Appeal) Rules for formal proceedings against <ORG> servants before removing them from service, because such compulsory retirement was conceived as a 'penalty1 under rule 49 of the Civil Services (Classification Control and Appeal) Rules. Nor is any special compensation admissible to the affected official."

Procedure to be followed by the Heads of Departments and other principal Heads of offices was also laid down and this was that "these offices will submit to the Government in <ORG> concerned twice a year a list of officials who will have completed 25 years or more of qualifying service or attained the age of 50 years during the six months ending June 30 and December 31. The list should be in two parts, one for gazetted officers and the other for non-gazetted subordinates and the following particulars should be stated in separate columns

(a) name of Government servant;

(b) designation,

(c) date of completion of 25 years' qualifying service,

(d) date of attaining the age of 50 years, and

(e) recommendations of the Head of Department or '<ORG> about the officials' further retention in service.

Reasons for recommending non-retention of a Government-servant should be succinctly stated. In the case of officials of gazetted rank, their confidential rolls should also accompany the list. In the list of non-gazetted officials the names and other particulars of only those non-gazetted officials and inferior servants should be shown Who are recommended for retirement. The scrutiny of the list of inferior servants should be done at the district or corresponding level.

In order that the Government may have a full picture of the position in regard to non-gazetted personnel, the list for them should also give the following information at the top:

(a) Number of those eligible for compulsory retirement;

(b) Number of those eligible only for voluntary retirement, and

(c) Number of those who have opted to retire during the half year.

Recommendations for retirement should be unhesitatingly made in the case of officials whose integrity has been the subject of doubt. Further, in the case of <ORG> servants who have completed 25 years of qualifying service chronic inefficiency and dull mediocrity would also be valid ground against further continuance in service.

These lists will be scrutinized in <ORG> and orders about the retirement or retention of the officials concerned will issue thereafter,"

Subsequently, by order No. O-3251/II-B-58-52, dated December 30, 1962, it was provided that it was not necessary to give an opportunity to show cause against the proposed action to be taken in, regard to a Government servant who was to be compulsorily retired after completing 25 years' of qualifying service, but that the other procedure laid down in the previous order of 1949 was still to be followed.

6. The relevant constitutional provisions are these:

Under Article 310 of the Constitution of India every person who is a member of a civil service of a <ORG> or holds any civil post under a <ORG>, holds office during the pleasure of the Governor or, as the case may be, tne <NAME> of the <ORG>.

Under Article 311(1) " No person who is a member of a civil service of the <ORG> or an all-India service or a civil service of a <ORG> or holds a civil post under the <ORG> or a <ORG> shall be dismissed or removed by an authority subordinate to that by which he was appointed;" and (2) "no such-person as aforesaid shall be dismissed or removed, or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."

7. It may be noted that the <ORG> did nob give any reasons for the compulsory retirement of the applicant beyond saying that it was the policy of tne <ORG> to retire <ORG> servanis after 25 years of qualifying service. It was not indicated to the petitioner that he was considered to have outlived his usefulness or to be inefficient or mediocre. As the facts narrated in the affidavit of the petitioner have not been controverted, we have to assume them to be correct and therefore it must be held that the applicant was retired although perfectly efficient and fit for service. On behalf of the <ORG> it has not been stated that the procedure prescribed in Notification No. O-1238-II-B-25-1948, dated May 3, 1949, had been followed in the case of the applicant. The ordinary presumption in favour of the <ORG> that the order of compulsory retirement made by it under Rule 465 was made because the applicant was found to have outlived his usefulness cannot be drawn in the present case because of what has been stated in the applicant's uncontroverted affidavit.

8. The petitioner's case is that:

(1) the compulsory retirement under Rule 465 quoted above amounts to 'removal' within the meaning of Article 311 of the Constitution and as the applicant was not given any opportunity of showing cause against his 'removal' as required by the Article his removal was 'ultra vires' and unconstitutional.

(2) that the compulsory retirement of the petitioner was contrary to Rule 465 of the Civil Service Regulations read with the later part of the note thereunder as also read with various Notifications of the Government in that behalf, because it was not stated ana it was not a fact that it was "in the public interest to dispense with the services of" the applicant who has outlived his usefulness,"

(3) that the petitioner having entered service in 1923 is governed with the service rules of those days and not by the new Rule 485 as amended in the year 1948, and (4) that Rule 485 is invalid in so far as it authorises the Government to retire a person without assigning any reasons, and is, therefore, contrary to Articles 14 and 16 of the Constitution.

9. On behalf of the opposite parties, all these contentions are controverted,

10. First, as to whether the compulsory retirement of the applicant under Rule 465 of the Civil Service Regulations as adapted by the State of Uttar Pradesh amounts to removal of the applicant within the meaning of that word in Article 311.

11. A precisely similar question has recently been, decided by a Bench Of this Court, the judgment of which was delivered by me, in -- ' <CITATION> .', AIR 1954 All 235 (A). It was held that the word 'removal' in Article 311 is not used in its wider sense of termination of service but is used in its restricted sense of removal by way of punishment. The reasons for this view may be succinctly stated as follows:

12. Under the Government of India Act of 1915, the services of a Government servant could be terminated at the pleasure of the <ORG>, unless the appointment was made under some Statute which provided otherwise. The Government of India Act was amended in 1919. whereby Section 96-B was introduced in that Act. Under Section 96-B the power of the <ORG> to dismiss Government servants at pleasure was made "subject to the provisions of the Act and rules made thereunder". The Rules made by the Secretary of <ORG> for India in Council under the Government of India Act were the Civil Service (Classification, Control and Appeal) Rules. Rule 49 of this Rule provided several kinds of punishments which could be inflicted for good and sufficient reasons on a civil servant. Three of these punishments were 'dismissal' 'removal from service' and 'reduction in rank'. There was a distinction between "dismissal" and 'removal". "Dismissal" involved loss of pension and other emoluments and a disability for further employment in Government service.

"Removal" involved loss of pension to some extent but not necessarily wholly and it did not involve a disability for future employment in <ORG> service. Under Rule 55 when the three punishments, namely removal, reduction in rank or dismissal were to be inflicted upon a <ORG> servant, he was to be given an opportunity of meeting the charges framed against him. It was held by <ORG> that Rule 55 did not impose a legally enforcible remedy against the <ORG> in favour of a <ORG> servant and that the <ORG> servant could be dismissed even though Rule 55 were not complied with because the phrase in Section 96-B "subject to the provisions of the rules

made under the Act" did not, limit in any way the power of the <ORG> to dismiss a Government servant at pleasure, since the rules were merely administrative rules and the remedy of a Government servant dismissed contrary to the provisions of the rules was political and not legal -- ' <CITATION> ', AIR 1937 PC 27 ( <CITATION> ', AIR 1937 PC 31 (C).

13. This involved a great hardship on civil servants and so when the new Government of India Act was passed in 1935, Section 240(3) made it obligatory upon the <ORG> to give an opportunity o'f showing cause to a Civil servant against the action proposed to be taken against him when the servant was to be "dismissed, or reduced in rank". The word "removal" was not used and one would have thought that Sub-section (3) of Section 240 of the Government of India Act, 1935 covered the case of two punishments only, namely dismissal and 'reduction in rank' and not that at 'removal', because the word 'removal' was not used. But <ORG> in -- 'High Commr. for <CITATION> ', AIR 1948 PC 121 (D), held that removal was comprised within the word 'dismissal'. Thus the position, when the present Constitution was framed, was that there was a statutory protection to a Government servant that when any of the punishments of 'dismissal', 'removal' or 'reduction in rank' were proposed to be inflicted on him, the <ORG> was bound to give him an opportunity of Showing cause why such action should not be taken against him. The same position was retained when the present Constitution was framed, but opportunity was taken to introduce the word "removal" also along with the words 'dismissal' and "reduction in rank" in Article 311.

The words "dismissal" and "reduction in rank"

could not but refer to punishments and from the place of the word "removal" sandwitched as it is between the words "dismissal" and "reduction in rank" the conclusion is inevitable that the word "removal" is also of the same nature as the words "dismissal" and "reduction in rank". .In other words, "removal" here means removal by way of punishment as contemplated in Rules 49 and 55. The fact that Article 311(2) made it obligatory on the <ORG> to give an opportunity of showing cause to a civil servant when he was to be dismissed, removed or reduced in rank also showed that dismissal, removal and reduction in rank must be connected with some misconduct or misbehaviour of a Government servant, so that he might explain his conduct and show cause against the action proposed to be taken against him.

The Courts in India with the exception of one Court have all taken the above view. These authorities are: -- ' <CITATION> ', AIR 1951 All 793 (E), -- 'Kewalmal Singh v. Heta Ram', AIR 1952 Raj 17 (F), --'State of Saurashtra v. <NAME>', AIR 1952 Sau 49 (FB) (G), -- 'Choottor Varadaraja Iyer Narayana Iyer v. The State of Travancore Cochin', AIR 1953 Trav-Co. 140 (H). The latest decision is of <ORG> in --' <CITATION> ', AIR 1953 SC 250 (I) which also tends to support the above view though the facts in that case were different." The only Court which has taken a contrary view is <ORG>. We have four decisions of that Court, viz., -- ' <CITATION> ', AIR 1952 Pepsu 69 (J), -- '<NAME> v. State of Pepsu', AIR 1952 Pepsu 148 (K), -- 'Shambhu Dayal v. Fatiala and East Punjab States Union', AIR 1952 Pepsu 152 ( <CITATION> ', AIR 1953 Fepsu 24 (M), These were all cases decided before the decision of <ORG> in '<NAME> case, (I)', and the Bench deciding '<NAME> case, (A)', did not accept them as correct.

14. Rule 465 as amended by <ORG> in 1948 is not a rule of punishment. It is a rule providing for full pension on voluntary or compulsory retirement on the attainment of a particular period of service. It is similar in nature to the rule of compulsory retirement on attainment of a particular age called the superannuation age which, in the State of Uttar pradesh, under Rule 56 of the Financial Handbook, Volume II, is 55 years. The only difference between the two rules is that whereas on attaining the age of 55 years, all Civil servants are liable to retirement unless the period of their service for reasons to be recorded in writing, is extended, under Rule 465, all Civil servants are liable to be compulsorily retired after they have completed 25 years of meritorious service, if the Government thinks fit to retire them. Rule 465 applies only when the Government makes an order under it in respect of a particular Government servant.

15. For all these reasons, in my judgment, the compulsory retirement of a Government servant under 465 A (sic) is not a "removal" within the m eaning of Article 311 Consequently, the applicant was not entitled to an opportunity of snowing cause as contemplated in that Article,

16. The second point to be decided is whether the applicant nas been removed in disregard of the provisions of Rule 455. Sub-rule (2) of Rule 465 provides that <ORG> may retire any <ORG> servant who has completed 25 years or more of qualifying service. The note appended to that rule clarifies that the <ORG> is not bound to give any reasons for the compulsory retirement under the rule and that no claim to special compensation on this account shall be entertained. The latter part of the note that "this right shall only be exercised by <ORG> in <ORG>, where it is in the public interest to dispense with the services of a <ORG> servant who has outlived his usefulness" is a rule intended for the guidance of the <ORG> in <ORG>. and is not a rule which can be enforced against the <ORG> in a court of law. If this portion of the rule were legally enforcible against the <ORG>, there would be no meaning in laying down in the earlier part of the note that the <ORG> is not bound to give any reasons for the compulsory retirement. The two parts of the note can be consistently read with each other only when the second part of the note is treated as a mere Administrative Rule and not a Statutory Rule. Though in the present case there is no proof that the applicant had outlived his usefulness or that it was in the public interest to dispense with his services, it cannot be said that the statutory part of the rule had been violated by the <ORG> in the applicant's case. The Administrative part of the rule has been violated no doubt, more so because the instructions contained in the <ORG> notifications of 1949 and 1952 have not been followed at all. But these instructions, again, are merely Administrative and are not legally binding on the <ORG>. A <ORG> servant who has been compulsorily retired under Rule 465 without giving any reasons and without following the procedure as laid down in the <ORG> notifications of 1949 and 1952 and contrary to the latter part of the note appended to Rule 465 has no legal right to get his compulsory retirement set aside by <ORG>. His remedy is merely political.

17. Indeed it was argued by the learned counsel for the <ORG> that Rule 465 itself is an Administrative rule and is not a statutory rule and does not affect the undoubted right of the <ORG> to terminate the services of a <ORG> servant at pleasure, unless his case falls within the purview of Article 311. Support for this contention was sought from the two <ORG> decisions already referred to, viz., -- 'AIR 1937 PC 27 (B)', and -- 'AIR 1937 PC 31 (C)'. It is not necessary for me to decide this point in the present case because I find that the compulsory retirement of the applicant in this case was under Rule 465 and the portion of it which was not followed by the <ORG> in the applicant's case was merely an administrative direction.

18. The third point urged by the applicant is that he was not governed by the new Rule 465 as amended in the year 1943 because he entered service in 1923. This contention has no force. Under the <ORG> of India Act of 1919, the Secretary of <ORG> had the power to make rules for the recruitment and conditions of service etc., of the servants of the <ORG>. Both the parties in the present case proceeded on the assumption that Rule 435, as it existed in 1923, was validly made. The authority which could make this rule had also the power to alter or modify it from time to time. This authority is embodied in Section 32(3) of the Interpretation Act, 1889 in relation to English Statutes just as in relation, to <ORG> it is embodied in Section 21 of the General Clauses Act, 10 of 1897, and in relation to Acts of the <ORG> of Uttar Pradesh it is embodied in Section 27 of the U. P. General Clauses Act. Therefore the authority which made Rule 485 had also the authority to amend it. It has not been argued before us that the authority which amended Rule 485 was not the authority which was authorised by law to amend it. It follows, therefore, that every <ORG> servant is bound by any subsequent alterations, amendments or additions made in the rules in existence when he was recruited to the service.

19. The fourth point urged is that Rule 465 is 'ultra vires' of the Constitution, because it authorises the Government to dispense with the services of a Civil servant without assigning any reason. It is urged that the provisions of the rule vest an arbitrary power in Government to select a particular servant for unequal treatment and are, therefore, contrary to the provisions of Article 16 of the Constitution, Clause (1) of Article 16 lays down that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the <ORG>", and Clause (2) lays down that "no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, or any of them, be ineligible for, or discriminated against in respect of any employment or office under the <ORG>." Clause (2) has no application to the present case because the applicant has not been discriminated on account of religion, race, caste or residence. Clause (1) also has no application. It applies to employment or appointment to any office under the <ORG>. There is no question of employment or appointment to any office in the present case. The question is of retirement.

20. Rule 465 undoubtedly vests an unrestricted and arbitrary power in the hands of the <ORG> to dismiss at its pleasure any <ORG> servant who has put in 25 years service without assigning any reason. There is much to be said for the view that this vesting of arbitrary power in the hands of the <ORG> to compulsorily retire a particular public servant without assigning any reason is not to afford him the equal protection of the laws which is afforded to other <ORG> servants who have also put in 25 years of service but who are not so retired. True, the <ORG> has power to make a classification between <ORG> servants who have put in 25 years oi service and those who have not. But the rule does not work evenly on all members of the class of <ORG> servants who have put in 25 years of service. The rule is not automatic. It is not that every <ORG> servant who has put in 25 years of service is automatically retired. The <ORG> may retire one and may not retire another. The <ORG> may choose one particular individual for unequal treatment and retire him compulsorily at its sweet will without any reason. The object of Article 14 is to prevent any person or class of persons from being singled out as a special subject for discrimination and hostile legislation. -- ' <CITATION> ', AIR 1953 SC 215 (N). In my judgment, that portion of Rule 405 which vests arbitrary power in the hands of the <ORG> to single out from the class of <ORG> servants who have completed 25 years of service for special treatment by compulsorily retiring him without, assigning any reason, while not applying the same rule to another <ORG> servant belonging to the same class is violative of the spirit underlying Article 14 of the Constitution. But the question is whether the rule is 'ultra vires' on that account. I have reluctantly come to the conclusion that it is not 'ultra vires' on that account because the rule is consonant with the principle embodied in Article 310 and it is Article 310 which governs the matter and not Article 14.

21. In the matter of termination of the services of a Government servant, the provisions to be considered are Articles 310 and 311. The combined effect of these two provisions is that except as laid down in clauses (1) and (2) of Article 311 and except as laid down in Clause (2) of Article 310 , there is no restraint on the power of the <ORG> to terminate the services of a Government servant at pleasure. Clause (2) of Article 310 and Clause (1) of Article 311 are admittedly inapplicable to the present case. I have already held that Clause (2) of Article 311 also does not apply to the facts of the present case. Therefore, it follows that the services of the applicant could be terminated at the pleasure of the <ORG> which means without assigning any reason. Article 14 , in my judgment, does ndt control Article 310 , The reason is that Article 14 is a general provision relating to all kinds of laws and all kinds of persons, while Article 310 deals with a special or particular matter, namely, Government servants and termination of their services. The maxim 'generalia specialibus non derogant', that is, "Special provisions will control general provisions" applies. As <ORG> observed in -- 'Barker v. Edgar', (1898) AC 748 at p 754 (Q) that-

"When the <ORG> has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms".

There is all the more reason why the above rule should apply when the special provision is contained in the very same enactment in which the general provision finds place. Then, again, Article 14 speaks of "law" and "laws". Article 310 is a constitutional provision and is not included within the term 'law' or 'laws' as mentioned in Article 14. The entire constitution must be read as one whole and every part of it must be given full effect, if Article 310 were to be limited or controlled by Article 14 , it can hardly be said that the Government can terminate the services of its servants 'at pleasure'. In my opinion, Rule 465 is not rendered void by reason of Article 14.

22. The result, therefore, is that the application must fail and I would dismiss it.

23. I cannot leave this case, however, without pointing out that arbitrary exercise of even administrative powers vested in the <ORG> is bound to lead to resentment and dissatisfaction against the <ORG>. Action such as was taken against the applicant in the present case is bound to bring the party in power holding the reins of <ORG> into disrepute. It will be in its own self-interest and the interests of the State as a whole that the administrative directions contained in the <ORG>'s own Notifications and Rules are strictly followed.

<NAME>, J.

24. I agree.