PETITIONER: ANAND PARKASH SAKSENA Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 14/12/1967 BENCH: <NAME>, R.S. BENCH: <NAME>, R.S. WANCHOO, <NAME>, J.M. MITTER, G.K. VAIDYIALINGAM, C.A. CITATION: 1968 AIR 754 1968 SCR (2) 311 CITATOR INFO : R 1976 SC2345 (16) RF 1980 SC1275 (24) ACT: Indian Administrative Service-I.A.S. Extension to <ORG>s Scheme-Officer in the junior scale of pay if has a right to a post in the senior scale-All India Services (Discipline and Appeal) Rules 1955, r. 3-Filling of posts by non-<ORG> officers, if penalty-I.A.S. Recruitment Rules, 1954, r. 4(3), if bad for excessive delegation-Regulation of Seniority Rules, 1954, r. 3(3)(b), Seniority of Special Recruits Regulation, 1960, regulation 3(3), if violative of Constitution of India, Arts. 14, 16. HEADNOTE: <ORG> of <ORG> was constituted in 1951 under the I.A.S. Extension to <ORG>s Scheme. The <ORG> included all senior posts. A number of junior and training posts were provided to be held by officers recruited to the cadre before they acquired the experience and seniority necessary to hold senior posts. The primary source for the initial constitution of the <ORG> was the existing incumbents of <ORG>. They were selected and included in three Lists. Officers in List I, were immediately appointed to the service Officers in List 11 were to be taken in the service only when found suitable and those in List III were not to be absorbed in the service. List 11 and III officers were counted against' senior posts but these posts held by them were excluded from the <ORG> for the period they were held by those officers. The <ORG> was to be maintained on a permanent basis by direct recruitment by competitive examination and promotion of <ORG> Civil Service Officers and twenty-five per cent of the senior posts were reserved for the latter. The <ORG> continued Co be governed by the Scheme until 1954 when the I.A.S. Recruitment, Seniority <ORG> and Pay Rules were made. Rule 9(1) of the <ORG> Rules provides for appointment of non-cadre officers to cadre posts, i.e. senior posts, if suitable cadre officers are not available and the proviso to the rule preserved the arrangement under the Extension to <ORG>s Scheme for the holding of cadre posts by non-<ORG> officers. Under Rule 9(1) of the Recruitment Rules twenty- five per cent of the senior posts are reserved for persons recruited under rule 8, i.e. by promotion of substantive members of <ORG> and by selection of those who hold gazetted posts in connection, with the affairs of a <ORG>. The Special Recruitment Regulations, 1956, made under rule 4 of the Recruitment of Rules, provides for recruitment by promotion to the Service by selection of persons serving in connection with the affairs of a <ORG>. In the matter of seniority, the Regulation of seniority Rules, gives a promote from <ORG> Civil Service the year of allotment of the junior-most direct recruit officiating continuously in a senior post earlier than the date of commencement of such officiation by the promotee. The seniority of Special Recruits Regulation,, 1960, adopts the formula applicable to promotees for fixing the seniority of those recruited by promotion under the Special Recruitment Regulations. The petitioner, a direct recruit by competitive examination,, was appointed to a junior post in the Service on April 2, 1952. He was originally allotted to <ORG> <ORG>, which along with the former <ORG> and Madhya Pradesh <ORG>s merged in the present L2 Sup CI/68-9 612 Madhya Pradesh <ORG> constituted on November 1, 1956. He was not found suitable to hold a senior post till November 17, 1956, when. he was appointed to officiate in a senior post. At the time his appointment to the service there were no vacancies in the senior posts. Vacancies arose before he was appointed to officiate in the senior post and after. Some of the respondents who were officers of <ORG> and the former Madhya Pradesh <ORG> Civil Services were promoted before the integration of the cadres on November 1, 1956 to fill the vacancies against the twenty- five per cent quota and several non-<ORG> officers were appointed under r. 9(1) of the <ORG> Rules. Vacancies were also filled in by promotion under the Special Recruitment Regulations. In the gradation List published on January 1, 1966 all the respondents were shown as senior to the petitioner. In a writ petition, under Art. 32 the petitioner contended that (i) he had a right to hold a post in the senior scale of pay from April 2. 1952 to November 17, 1956, under the Rules and in tile light of this Court's decision in <CITATION> and the filling of the vacancies by non-<ORG> officers amounted to withholding of promotion and penalty within the meaning of r. 3 of the All India Service (Discipline and Appeal) Rules. 1955; (ii) under the rules seventy-five per cent of the total number of senior posts was exclusively reserved for direct recruits and that in computing the twenty-five per cent quota officers in Lists 11 and III and special recruits had to be included; (iii) r. 4(3) of the Recruitment Rules which authorised <ORG> to make regulation for special recruitment was bad on the ground of excessive deletation; (iv) r. 3 (3) (b) of the Regulation of Seniority Rules, 1954, made unjust discrimination between a promotee and a direct recruit in the matter of seniority by arbitrarily allotting a lower year of allotment to a promotee and therefore violated Arts. 14 and 16 of the Constitution; and (v) regulation 3(3) of the Seniority of Special Recruits, Regulation 1960, offended Arts. 14 and 16 inasmuch as the relevant rules and regulations set up an arbitrary double standard for a special recruit enlisted by promotion. HELD : Dismissing the petition. (i) The filling of a vacancy by a non-<ORG> officer under r. 9 of the <ORG> Rules does not infringe any right of the <ORG> officer nor does it amount to withholding of Promotion or a Penalty within the meaning of r. 3 of All India Service (Discipline and Appeal) Rules, 1955. A <ORG> Officer in the junior scale of pay cannot claim 'a right to fill a vacancy in the senior scale if he is not 'suitable and no <ORG> officer junior to him is Promoted to fill the vacancy. The decision in <NAME>'s case is distinguishable. That case only decided that the reversion of a <ORG>, office, while <ORG> officers junior to him continued in the senior scale amounted not only to reduction in rank but also to withholding of promotion. Rule 6 A(2) of the Recruitment Rules introduced in 1965 after the decision in <NAME>'s case now makes explicit what was always implicit in r. 9(i) of the <ORG> Rules. In the instant case no <ORG> Officer junior to the Petitioner was promoted to the <ORG> post be-fore his Promotion on November 17, 1956 and after Promotion he was neither reverted nor reduced in rank nor was his promotion withheld. [619 F-H: 620 E-F] P. C. <NAME> v. Union of India,  4 S.C.R. 598. distinguished. 613 (ii) Seventy-five per cent of the senior posts may be filled by recruits other than those recruited by promotion or selection under r. 8 of the Recruitment Rules. Special recruits are appointed against the seventy-five per cent quota and rule 9(3)(b)(iv) added in 1965 makes explicit what was always implicit in r. 9(1) of the Recruitment Rules. Under the Extension. to <ORG> Scheme officers in Lists II and III were not counted against the twenty-five per cent quota. Rule 9(3)(b)(iii) of the Recruitment Rules make it clear that in computing the twenty-five per cent quota the appointments of officers in List 11 will be excluded. [620 G, H] (iii) Assuming that the doctrine of excessive delegation of Legislative power applies to rules, r. 4(3) does not suffer from the vice of excessive delegation. in making .'he regulations under the rule <ORG> is to be guided by the exigencies of the service and the advice of the <ORG> Governments 'and (,he <ORG>. There authorities are the best judges of the appropriate regulations to be made in the matter [622 A-C] (iv) Rule 3(3)(b) of the Regulation of Seniority Rules is not violative of Arts. 14 or 16 of the Constitution. The object of the rule is to fix the seniority of the promotees who obtained promotion after long service in <ORG>, in relation to direct recruits. The 'rule attempts to strike a just balance between the- conflicting claims of the promotees and direct recruits. [622 F-G] (v) Regulation 3(3) of the Special Recruits Seniority Regulations is not violative of Arts. 14 and 16. Special recruits 'are neither direct recruits nor promotees. They form a distinct class. The regulation, properly adopts the formula applicable to promotees for fixing the seniority of special recruits enlisted by promotion so that in the matter of seniority all officers recruited from <ORG>s 'are placed on the same footing. [623 A-C] JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition No. 58 of 1967. Petition under Article 32 of the Constitution of India for the enforcement of the Fundamental Rights. <NAME>, <NAME>, <NAME> and <NAME>, for the petitioner.

<NAME>, Solicitor-General, <NAME> and <NAME> for <NAME>, for respondent No. 1. <NAME> and <NAME>, for respondents Nos. 2 to 18,, The Judgment of the Court was delivered by <NAME>, J. The petitioner is a member of <ORG> having been appointed to a junior post therein on April 2, 1952 on the basis of a competitive examination held by <ORG> in the year 1951. He completed his probation on October 2, 1953. He was originally allotted to <ORG> of <ORG> which along with the former Vindhya Pradesh and Madhya Pradesh cadres, merged in the present Madhya Pradesh cadre of <ORG> constituted on November 1, 1956.

He was appointed to officiate in a senior post on November 17, 1956. In the gradation list published on January 1, 1966, hi,; number is 70. In this writ petition under Art. 32 of the Constitution he claims that (a) he had the right to hold a post in the senior scale of pay from April 2, 1952 up to November 17, 1956 under the relevant rules read in the light of the decision in <CITATION> (1) and that (b) he is entitled to a higher place in the gradation list. He asks for the issue of appropriate writs declaring his rights and giving him consequential reliefs. The <ORG> cadre of <ORG>: was constituted on June 1, 1951 under <ORG> Extension to States Scheme. The cadre included all senior posts. A number of junior and training posts were provided, to be held by officers recruited to the cadre before the) acquired the experience and seniority necessary for holding senior posts. The initial constitution of the cadre was made from (1) the existing incumbents and (2) emergency recruits. The existing incumbents were considered to be the first and primary source of recruitment. They were selected by <ORG> and divided in three lists. Officers in List I were considered fit for immediate appointment to the <ORG>. Officers in List II were to continue to hold their present posts, their work was to be watched for 5 years and were to be absorbed in the <ORG> as and when they were found fit. Officers in List III were to hold their present posts or posts of equivalent rank until they retired but they were not to be absorbed in the <ORG>. The posts held by officers in Lists 11 and III were excluded from the cadre for the period during which they were held by those officers. The cadre was to be maintained on a permanent basis by (a) direct recruitment on the result of the competitive examination and (b) promotion from amongst officers of the State Civil <ORG>. As in the case of the Provincial cadres, 25 per cent of the senior posts were earmarked for promotion of officers of the State Civil <ORG>.

On June 1, 195 1, the number of senior posts in the <ORG> cadre was 25. On selection by <ORG>, 6 officers were placed in List I and were appointed to the Service from January 1, 1951. Four officers were placed in List II and 11 officers were placed in List III and they continued to hold their posts under the Extension to States Scheme.. The remaining 4 senior posts were held by 4 emergency recruits. On April 2, 1952, there was thus no available vacancy for the petitioner in the senior posts. As a matter of fact, 2 direct recruits senior to the petitioner were in the junior scale of pay. (1) [1964] 4 S.C.R. 598.

In September 1954, <ORG> framed the <ORG> Cadre Rules, 1954, <ORG> Recruitment Rules, 1954, <ORG> Pay Rules, 1954 and <ORG> Regulation of Seniority Rules, 1954 in exercise of its powers under s. 3(1) of the All India Services Act, 1951. These rules were amended from time to time. Under r. 2 (a) of the Cadre Rules, a cadre officer means a member of <ORG>. Under r. 2(b), a cadre post means a senior cadre post under <ORG>. Under r. 3, an <ORG> cadre is constituted for each State or group of <ORG>. Under r. 4, the strength and composition of each cadre is determined by regulations made by <ORG>. Rule 8 provides that "Save as otherwise provided in these rules, every cadre post shall 'be filled by a cadre officer." Rule 9(1) provides that "A cadre post in a State may be filled by a person who is not a cadre officer if <ORG> is satisfied (a) that the vacancy is not likely to last for more than three months; or (b) that there is no suitable cadre officer available for filling the vacancy." If a person other than a cadre officer is appointed to a cadre post for a period exceeding three months, the fact shall be reported to <ORG> who may, on receipt of the report, direct <ORG> to terminate his appointment and if he is likely to fill a cadre post for a period exceeding six months, <ORG> must seek the advice of <ORG> and in the light of its advice, give suitable directions to <ORG>. It was provided that r. 9 would not affect the existing arrangements made by <ORG> in connection with the Governments of Part B <ORG> and the State of Vindhya Pradesh at the time of the initial constitution of the cadre for certain cadre posts to be filled by non-cadre officers.

Rule 3 of the I.A.S. Recruitment Rules, 1954 gives the cons- titution of the service. Rule 4 specifies the methods of recruitment. Sub-rule (1) of r. 4, as amended, provides that "Recruitment to the Service, after the commencement of these rules, shall be by the following methods, namely: (a) by a competitive examination; (aa) by selection of persons from among released Emergency <ORG>ed Officers and Short Service <ORG>ed Officers, commissioned in <ORG> after the 1st November, 1962; (b) by promotion of substantive members of a <ORG> Civil Service; (c) by selection, in special cases from among persons, who hold in a substantive capacity gazetted posts in connection with the affairs of a <ORG> and who are not members of a <ORG> Civil Service." Sub-rule (3) of r. 4 provides that "Notwithstanding anything contained in sub- rule (1), if in the opinion of <ORG> the exigencies of the service so require, <ORG> may, after consultation with the <ORG> Governments and the <ORG>, adopt such methods of recruitment to the Service other than those specified in the said sub-rules as it may by regulations made in this behalf prescribe." Rule 6 provides that no appointment to the Service shall be made except after recruitment by one of the methods specified by r. 4 Rules 6A(2) introduced with effect from September 24, 1966 after the decision in <NAME> case(1) provides that "A direct recruit in the junior time-scale of pay shall be appointed to a post in the senior time-scale of pay if, having regard to his length of service, experience, and performance in the junior time-scale of pay, the <ORG> Government is satisfied that he is suitable for appointment to a post in the senior time-scale of pay." Rules 7. 7A, 8(1) and 8(2) deal with the four methods of recruitment specified in r. 4 and empowers <ORG> to make appropriate regulations. Rule 8(1) deals with recruitment by promotion of substantive members of the <ORG> Civil Service. Rule 8(2) deals with recruitment by selection in special cases from amongst persons who hold, in a substantive capacity, gazetted posts in connection with the affairs of the <ORG> and who are not members of the <ORG> Civil Service. Rule 9(1), as amended, provides inter alia that "the number of persons recruited under rule 8 in any <ORG> or group of <ORG>s shall not, at any time, exceed 25 per cent of the number of" senior posts in relation to that <ORG> or group of <ORG>s. Rule 9(3)(b) provides that "for the purpose of determining the percentage specified in sub-rule (1)(b) the following category of officers shall 'be excluded namely :- (i) officers of a <ORG> Civil Service appointed to the Service under the Emergency Recruitment Scheme otherwise than against the 25 per -cent quota; (iii) officers of a <ORG> Civil Service appointed to the Service from List II, prepared by <ORG> under the Indian Administrative Service (Extension to <ORG>s) Schemes; (iv) officers of a <ORG> Civil Service appointed to the Service under the Indian Administrative Service (Special Recruitment) Regulations, 1956." Rule 9 (3)

(b) (iv) was added oil October 15, 1965.

The I.A.S. (Special Recruitment) Regulations, 1956 were made under r. 4(3) of the Recruitment Rules. Regulation 3 pro- vides that special recruitment will be made (a) by direct recruitment by selection and (b) by promotion to the Service by selection of persons serving in connection with the affairs of the <ORG>. Regulations 8 and 9 adopt for the purposes of special recruitment the regulations for appointment by competitive examination, promotion and selection made under rules 7, 8(1) and 8(2) of the Recruitment Rules with appropriate modifications. Rule 3 of I.A.S. (Pay) Rules, 1954 prescribes the scales of pay admissible to the members of the Service. The _junior scale is (1)[1964] 4 S.C.R. 598.

scale is Rs. 900 (6th year or under)-50-1000-60-1600-50-1800 (22 years). The selection grade is Rs. 1800-100-2000. Rule 4(1) provides that the initial pay of a direct recruit shall be fixed at the minimum of the junior time-scale. Rule 4(2) provides that the pay of a member of the Service in the junior time-scale shall on appointment to a post on the senior time-scale, be fixed at the corresponding stage of the senior time-scale as shown in Sch. 1. The two scales of pay are given in Sch. 1 in parallel columns against the years of service. The increments, withholding of increments and grant of advance increments are regulated by rules 5, 6 and 7.

Rule 3(1) of I.A.S. (Regulation of Seniority) Rules, 1954 provides that every officer shall be assigned a year of allotment. Rule 3 (3) (a) provides inter alia that the year of allotment of an officer appointed to the Service after the commencement of these rules, shall be-where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held." Rule 3 (3) (b) provides that the year of allotment of an officer shall be "where the officer is appointed to the Service by promotion in accordance with subrule (1) of rule 8 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with rule 7 of those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former." The proviso to r. 3 (3) (b) lays down that "the year of allotment of an officer appointed to the Service in accordance with sub-rule (1) of rule 8 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than 'the date on which any of the officer recruited to the Service in accordance with rule 7 of those Rules so started officiating shall be determined ad hoc by <ORG> in consultation with the State Government concerned." Rule 5A authorises the making of regulations for fixing the seniority of special recruits. Rule 6 provides for preparation of a gradation list of all officers borne on the cadre arranged in order of seniority. Regulation 3 of the I.A.S. (Seniority of Special Recruits) Regulation, 1960 made under r. 5A of the Regulation of Seniority Rules fixes the seniority of special recruits. Rule 3(3) provides that "In the case of officers recruited by promotion from <ORG> under clause (b) of regulation 3 read with regulation 9 of the Indian Administrative Service (Special Recruitment) Regulations, 1956, the year of allotment shall be fixed in accordance with the provisions of clause (b) of sub-rule (3) of rule 3 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954."

The relevant provisions of the parallel Cadre, Recruitment, Pay and Regulation of Seniority Rules of <ORG> were considered by this Court in <CITATION> (1). There, the appellant was a member of <ORG>. He joined the Service in 1952 and was confirmed in 1953. In 1958 he was promoted to officiate in the senior time-scale as Additional Superintendent of Police at Ferozepore in place of the permanent incumbent who was on leave. In July 1964, he was served with a charge- sheet and he submitted a reply. Before the enquiry started he was reverted to his substantive rank of Assistant Superintendent of Police. The reversion was not due to the return of the permanent incumbent from leave or deputation or for any administrative reason. Other officers junior to him continued to officiate in the senior scale while he was reverted. His personal file revealed a note by the Senior Superintendent of Police to the effect that a regular en- quiry into his conduct would take a long time and it was advisable to revert him. He was not given any opportunity of showing cause against the action taken against him. He filed a writ petition in <ORG> asking for the issue of a writ quashing the order of reversion. <ORG> dismissed the petition. On appeal, this Court set aside the order of <ORG> and allowed the petition. This Court held that the reversion was made in contravention of Art. 311 of the Constitution. The majority held that the reversion was by way of punishment and amounted to reduction in rank and withholding of promotion on grounds which may be summarised thus : There is only one cadre in <ORG>. A person in the junior time-scale of the Service is as much a cadre officer as one holding a post in the senior time-scale or a post above the time-scale. The transition of a member of the Service from one scale to another does not depend upon selection or the consideration of the comparative merits of the officers in the junior scale inter se but only upon a consideration of his seniority. <NAME>, J. said that "the whole scheme of the rules indicates that a person borne on the junior scale of pay has a right to hold a post on the senior scale of pay depending upon the availability of a post and his seniority in the junior scale of pay." The learned Judge added : "Despite the fact that he holds a certain rank in the gradation list persons who also belong to <ORG> and who were recruited to it subsequent to him have continued to hold or have been appointed to hold posts carrying salary in the senior scale. This would itself indicate that the action taken against him was by way of penalty or punishment. For, he has not only been reduced in rank but his promotion to the senior scale has also been withheld."

(1) [1964] 4 S.C.R. 598.

In this background, the petitioner says that he was deprived of his right to hold a senior post during the period from April 2, 1952 up to November 17, 1956. We have found already that on April 2, 1952 there was no available vacancy in the senior post to which he should be appointed. <ORG> continued to be governed by the Extension to States Scheme until September 1954 when the Cadre, Recruitment, Pay and Regulation of Seniority Rules were made. The proviso to r. 9 of the Cadre Rules preserved the existing arrangements under the I.A.S. Extension to States Scheme for the holding of certain cadre posts by non- cadre, officers. On June 24, 1955, the strength of the <ORG> cadre was revised and increased to 46. Respondents Nos. 14, 15 and 16 belonged to the <ORG> State Service. Respondent No. 14 was appointed on June 24, 1955 and respondents Nos. 15 and 16 were appointed on April 25, 1956 to senior posts against vacancies in the 25 per cent quota. Several non-cadre officers were appointed to fill vacancies in the senior posts under r. 9 of the Cadre Rules. The petitioner was not found suitable to fill a vacancy in a senior post until November 17, 1956. The petitioner contends that (1) he had the absolute right to be appointed to a vacancy in the senior posts on and after April 2, 1952, (2) the filling of the vacancies by non-cadre officers on the ground that he was not suitable was an infringement of his right and amounted to withholding of promotion and a penalty within the meaning of r. 3 of the All India Services (Discipline and Appeal) Rules, 1955, (3) 75 per cent of the total number of senior posts was reserved exclusively for direct recruits and (4) in computing the 25 per cent quota under r. 9(1) of the Recruitment Rules officers in Lists 11 and III and special recruits should be included. These contentions must be rejected. Vis a vis another cadre officer junior to him, a cadre officer in the junior scale of pay has the right of promotion to a post in the senior scale on the ground of seniority. This right is infringed if the junior cadre officer is promoted to fill a vacancy in the senior scale, while he continues to hold a post in the junior scale of pay. But he cannot claim the right to fill the, vacancy if he is not suitable and no cadre officer junior to him is promoted to fill the vacancy. An officer in the junior scale of pay has no right to a senior post as soon as he joins the Service. He may be appointed to a senior post only when he is found suitable having regard to his length of service, experience and performance in the junior scale of pay. Rule 6A(2) of the Recruitment Rules now makes explicit what was always implicit in r. 9 of the Cadre Rules.

Under r. 9(1) of the Cadre Rules, a senior cadre post may be filled by a non-cadre officer if there is no suitable officer available for filling the vacancy. Similar provision is to be found in paragraph 3 of the memorandum regarding constitution of <ORG> and paragraph 5 of the Indian Civil Administrative Cadre Rules, 1950. The appointment of a non-cadre officer to a cadre post under r. 9(1) of the Cadre Rules is a temporary arrangement which may be terminated at any time when the Government finds a cadre officer suitable for filling the vacancy. Until the cadre officer is found suitable, a non- cadre officer may be appointed to fill the vacancy in a" post in the senior scale of pay. The cadre officer has no right to fill the vacancy if he is not suitable. The filling of the vacancy by a non-cadre ,officer under r. 9 does not infringe any right of the cadre officer nor does- it amount to a withholding of promotion or a penalty within the meaning of r. 3 of the All India Services (Discipline and Appeal) Rules, 1955.

The decision in <NAME> case(1) is distinguishable. There, a cadre officer in the junior scale of pay was promoted to officiate in a post in the senior scale of pay and was thereafter reverted to his substantive post while other cadre officers junior to him continued to officiate in posts in the senior scale of pay. As against cadre officers junior to him,,he had the right to hold :the post in the senior scale of pay. The reversion while cadre officers junior to him continued in the senior scale amounted to not only reduction in rank but also withholding of promotion. This is all that <NAME> case(1) decided. The fact in the present case are entirely different. The petitioner was not suitable to fill the vacancies in the senior posts and non-cadre officers were appointed to fill the vacancies under r. 9 of the Cadre Rules. No cadre officer junior to the petitioner was promoted to the cadre post before his promotion on November 17, 1956. Nor was he reverted after his promotion, while officers junior to him continued to hold senior posts. The petitioner was not reduced in rank nor was his promotion withheld. He had no right to fill a vacancy in the senior posts or to draw salary in the senior scale between April 2, 1952 and November 17, 1956. There is no merit in the contention that 75 per cent of the total number of senior posts is reserved exclusively for direct recruits. Under r. 9(1) of the Recruitment Rules, the number of persons recruited to senior posts under r. 8 of the Recruitment Rules by promotion or by selection cannot exceed 25 per cent of the total number of senior posts. The remaining 75 per cent of the senior posts may be filled by other recruits. Special recruits under r. 4 of the Recruitment Rules are appointed against the 75 per cent quota. Their appointments are not counted against the 25 per cent quota reserved for persons recruitment under r.8. (1) [1964] 4 S.C.R. 598.

Rule 9(3)(b)(iv) now expressly provides what was already implicit in r. 9(1).

Paragraph 4(iv) of the I.A.S. !Extension to States Scheme provided that the posts held by officers included in Lists 11 and III would be excluded from the cadre for the period they were held by those officers and would revert to the cadre as and when they ceased to be required for that purpose. The posts held by the officers in List III were excluded from the cadre until they retired and were not counted against the 25 per cent quota. The posts held by the officers in List 11 pending absorption in the service were excluded from the cadre. They were absorbed in the service as and when they were found fit. Rule 9 (3) (b)

(iii) provides that in computing the 25 per cent quota the appointments of officers from List 11 will be excluded. There were vacancies in the 25 per cent quota which were filled up by promotion of respondents Nos. 14, 15 and 16 from <ORG>. Respondents Nos. 4, 6, 11, 12, 13, 17 and 18 were from the former <ORG>. Some of them were promoted to <ORG> against the 25 per cent quota in the <ORG> cadres before the integration of the cadres on November 1, 1956. No appointments were made between November 1, 1956 and November 17, 1956 when the petitioner was appointed to officiate in a senior post Other respondents were appointed after November 17, 1956. None of the appointments is open to any challenge. It is surprising that the petitioner seeks to challenge the appointments after a long lapse of time. He has not given any adequate explanation as to the delay in filing the writ petition. The petitioner next challenges the seniority assigned to the respondents. In the gradation list, all the respondents are shown as senior to him Respondents Nos. 10, 11, 12 and 13 are special recruits and their seniority has been fixed under Regulation 3(3) of the I.A.S. (Seniority of Special Recruits) Regulation, 1960 read with r. 3 ( 3 ) (b) of the Regulation of Seniority Rules, 1 9 5 4. The other respondents are promotees and their seniority has been fixed under r. 3 (3) (b) of the Regulation of Seniority Rules and the proviso thereto.

The petitioner challenges the vires of r. 4(3) of the Recruitment Rules under which <ORG> framed the Special Recruitment Regulations. The Recruitment Rules were made under s. 3 of the All India Services Act, 1951. <CITATION> (1), this Court held that s. 3 was not bad on the ground of excessive delegation of legislative power. The petitioner submits that r. 4(3) of the (1)  Sup, 1 S.C.R. 72 Recruitment Rules is bad on the ground of excessive delegation, of legislative power. Assuming that the doctrine of excessive delegation of legislative power applies to rules, we think that r. 4(3) does not suffer from the vice of excessive delegation. Rule 4(3) .authorities <ORG> to make regulations for special recruitment. In making the regulations, <ORG> is to be guided by the exigencies of the service and the advice of the State Governments and <ORG>. These authorities are the best judges of the appropriate regulations to be made in the matter. In the light of their expert knowledge they can adapt for this purpose the existing regulations for other methods of recruitment with suitable modifications or make other appropriate regulations having regard to the exigencies of the service. As a matter, of fact, the Special Recruitment Regulations 1960 framed under r. 4(3) have adapted for the purposes of special recriutment the regulations for recruitment by competitive examination, promotion and selection with appropriate modifications, The petitioner next contends that r. 3 (3) (b) of the Regulation of Seniority Rules makes unjust discrimination between a promotee and a direct recruit in the matter of seniority by arbitrarily assigning a lower year of allotment to a promotee and is violative of Arts. 14 and 16 of the constitution. This contention is devoid of merit. The seniority of direct recruits inter se and promotees inter se is fixed by r. 4. The object of r. 3 (3) (b) is to fix the seniority of the promotees in relation to direct -recruits. The promotees obtain promotion after long service in <ORG>. From the point of view of the promotee, his seniority should be counted from the date of his joining <ORG>. From the point of view of the direct recruit the seniority of the promotee should be counted from the date of his appointment to <ORG>. Rule, 3 (3) (b) attempts to strike a just balance between the conflicting claims. It gives the promotee the year of allotment of the junior-most direct recruit officiating continuously in a senior post earlier than the date of commencement of such officiation by the promotee. If no direct recruit was officiating continuously in a senior post on an earlier date. the seniority of the promotee is determined ad hoc. In our opinion, the rule is not arbitrary or discriminatory and is not violative of Arts. 14 and 16 of the Constitution.

The petitioner next challenges the validity of ]Regulation 3(3) of the Special Recruitment Seniority Regulations, 1960 on the ground that it offends Arts. 14 and 16 of the Constitution. According to the petitioner, the relevant rules and regulations have set up an arbitrary double standard for a special recruit enlisted by promotion because Regulation 3(3) of the Special Recruit-

ment Seniority Regulations read with r. 3 (3) (b) of the Regulation of Seniority Rules treats him as a promotee for the purpose of seniority while r. 9 (3) (b) (iv) of the Recruitment Rules treats him as a direct recruit for the purpose of recruitment. There is no substance in this contention. Special recruits form a distinct class. They are neither direct recruits nor promotees. Rule 9 of the Recruitment Rules does not treat them as direct recruits. Regulation 3 (3) of the Special Recruits Seniority Regulations properly adopts the formula applicable to promotees for fixing the seniority of special recruits enlisted by promotion. so that in the matter of seniority all officers recruited from <ORG> are placed on the same footing. The regulation is not arbitrary nor violative of Arts. 14 and 16 of the Constitution. The seniority of the respondents was fixed in accordance with Regulation 3 (3) of the Special Recruitment Seniority Regulations, r. 3 (3) (b) of the Regulation of Seniority Rules and the proviso thereto, and is not open to any challenge.

The writ petition is dismissed. There will be no order as to costs.

Y.P. Petition dismissed.


PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF U. P. AND OTHERS.(With Connected Appeal) DATE OF JUDGMENT: 13/10/1954 BENCH: <NAME>, B.K. BENCH: <NAME>, B.K. HASAN, GHULAM MAHAJAN, MEHAR CHAND (CJ) DAS, SUDHI RANJAN BOSE, VIVIAN CITATION: 1954 AIR 728 1955 SCR 707 CITATOR INFO : RF 1954 SC 743 (2) R 1955 SC 781 (7,8,10) E&D 1956 SC 298 (15,16) R 1958 SC 578 (186) RF 1958 SC 731 (20,29) R 1959 SC 308 (6,7) D 1959 SC 648 (22,23,38) R 1959 SC 694 (5) R 1960 SC 430 (15) R 1960 SC1080 (23) RF 1961 SC 14 (6) RF 1961 SC 82 (13) R 1961 SC 232 (58) D 1961 SC 365 (15,21) RF 1962 SC1371 (74) RF 1962 SC1796 (31) E 1963 SC 90 (16) R 1963 SC1019 (13,16,17,22) D 1963 SC1047 (25) R 1964 SC 925 (35,67) D 1967 SC 295 (72) RF 1967 SC 856 (9) RF 1967 SC1643 (227) R 1970 SC 129 (10) R 1970 SC 564 (69) R 1971 SC1594 (9) R 1971 SC1737 (48) R 1972 SC 425 (11,17,20) D 1972 SC2205 (26) MV 1973 SC 87 (30,53,67) RF 1973 SC 974 (7,8) D 1974 SC1940 (4,46) RF 1978 SC1457 (61) E 1980 SC 898 (64) R 1981 SC 873 (12,33) R 1982 SC 902 (19) MV 1982 SC1325 (31,32) R 1983 SC1115 (13,18,20,23,25) RF 1984 SC 953 (1) RF 1986 SC 319 (3) R 1989 SC1988 (31) RF 1991 SC1094 (10) R 1992 SC 443 (10) ACT: Constitution of India, Arts. 14, 19(1) (g), 19(6), 31(2), 301--Highway-Its origin and use-Citizen's rights in respect of highwas-Vis-a-vis the <ORG>-<ORG>'s right to control highway-Limit of such control-Constitution of India (First Amendment) Act, 1951 -U. P. Road Transport Act, 1951 (U. P. Act II of 1951)-- Whether ultra vires the Constitution--Subsequent amendment of Constitution if can validate a prior unconstitutional Act. 708 HEADNOTE: A highway has its origin, apart from statute, in dedication either express or implied, by the owner of land of a right of passage over it to the public and the acceptance thereof by the public. Dedication is presumed by long and uninterrupted user of a way by the public. The presumption in such cases is so strong as to dispense with all enquiry into the actual ownership of the land or the intention of the owner about its user. All public streets and roads vest in the <ORG>, but the <ORG> holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The <ORG> as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally; but subject to such limitations the the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the <ORG> owns the highways. <CITATION> ([19521 2 M. L. J. 894) referred to with approval. Within the limits imposed by <ORG> regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of vehicles. It is to this carrying on of the trade or business that the guarantee in Art. 19(1) (g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article. Article 19(6) as the result of the Constitution (First Amendment) Act, 1951, enables the <ORG> to carry on any trade or business either by itself or through corporations owned or controlled by the <ORG> to the exclusion of private citizens wholly or in part. This provision of Art. 19(6 ), which was introduced by the amendment of the Constitution in 1951, was not in existence when the U. P. Road Transport Act, 1951 (U. P. Act II of 1951), was passed and therefore the validity of the impugned Act is not to be decided by applying the provisions of the now clause. Amendment of the Constitution which came later cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed, because a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the Constitutional objection but must be reenacted. Although the normal use of the word "restriction" seems to be in the sense of limitation and not extinction but (without expressing any final opinion on the matter) if the word " I restriction" does not include total prohibition then the impugned Act cannot be justified under Art. 19(6) of the Constitution and it would 709 be void unless supported by Art. 31. If however the word Is restriction" in Art. 19(6) be taken in certain circumstances to include prohibition as well then the prohibition of the right of all private citizens to carry on the business of motor transport on public roads within the <ORG> of Uttar Pradesh as laid down by the impugned Act, cannot be justified as reasonable restrictions imposed in the interests of the general public. Whether the restrictions are reasonable or not would depend to a large extent on the nature of the trade and the conditions prevalent in it. There is nothing wrong in the nature of the motor transport trade in the present case which is perfectly innocuous. The U. P. Road Transport Act, (II of 1951) which violates the fundamental rights of the private citizens guaranteed under Art. 19(1) (g) of the Constitution and is not protected by clause (6) of Art. 19 as it stood at the time of enactment must be held to be void under Art. 13(2) of the Constitution. The effect of the prohibition of the trade or business of the citizens by the impugned legislation amounts to deprivation of their property or interest in a commercial undertaking within the meaning of Art. 31(2) of the Constitution and therefore U. P. Road Transport Act, 1951, offends against the provision of that clause inasmuch as no provision for compensation has been made in the Act. The impugned Act is not void on the ground that it offends against the equal protection rule embodied- in Art. 14 of the Constitution. The contention whether the impugned Act conflicts with the guarantee of freedom of inter-<ORG> and intra-state trade, commerce and intercourse provided for by Art. 301 of the Constitution discussed and the points that could be raised and the possible views that could be taken indicated without expressing any final opinion thereupon. <CITATION> , etc. ( S.C.R. 873) distinguished. <CITATION> pal Bose and Others ( S.C.R. 587) and <CITATION> . ( S.C.R. 674) followed. Packard v. <NAME> (68 L.E. 596; 264 U.S. 140), <NAME> v. Railroad Commission (70 L.E. 1101), <NAME> v. <NAME> (77 L.E. 288), Motilal v. Uttar Pradesh Government (I.L.R. 1951 All. 257), <ORG> v. Virgo ( A.C. 88), <CITATION> ( S.C.R. 88), <CITATION> (A.I.R. 1952 Orissa 42), <ORG> v. <ORG> ( A.C. 235) and P. and 0. <CITATION> (1861 5 B.H.C.R. Appendix 1) referred to. 91 710 JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 182 and 183 of 1954.

Appeals under article 132(1) of the Constitution of India from the Judgment and Order, dated the 17th November, 1953, of the High Court of Judicature at Allahabad in Civil Miscellaneous Writ No. 414 of 1953, connected with Civil Miscellaneous Writs Nos. 537, 579 to 582, 587 to 595, 597 to 603, 617 to 620, 622, 623, 626 to 629, 633, 634, 638, 639, 651 to 654, 677 all of 1952 and 339 to 342, 351 to 355, 363, 372 to 374, 397, 416 to 464, 504 and 505 of 1953. <NAME> (<NAME> and <NAME>, with him) for the appellants.

<NAME>, Advocate-General for the State of U.P., and <NAME> (<NAME> and <NAME>, with them) for the respondents.

1954. October 13. The Judgment of the Court was delivered by MUKHERJEA J.-The appellant in these two analogous appeals, along with many others, have been carrying on the business of plying motor vehicles, as ,stage carriages ' on hire, on the Bulandshabr-Delhi route from a number of years past. The running of these vehicles has been regulated so long by the Motor Vehicles Act of 1939 which provides, inter alia, for granting of driving licences, the registration of vehicles and exercising control over transport vehicles through permits granted by <ORG>. Section 42(3) of the Act exempts transport vehicles, owned by or on behalf of <ORG> or <ORG> from the necessity of obtaining permits unless the vehicles were used in connection Path the business of <ORG>. It appears, that some time after 1947 <ORG> conceived the idea of running their own buses on the public thoroughfares. They first started running buses only as competitors with the private operators but later on they decided to exclude all private bus owners from the field and establish a complete <ORG> monopoly in respect to the road transport business. They sought to achieve this object by calling in aid the provisions of the Motor Vehicles Act itself. Under section 42(3) of the Act as mentioned above, the Government had not to obtain permits for their own vehicles and they could run any number of buses as they liked without the necessity of taking out permits for them. <ORG>, in furtherance of -this <ORG> policy, began cancelling the permits already issued to private operators and refusing permits to people who would otherwise have been entitled to them. Upon this, a number of private bus owners filed petitions in <ORG> under article 226 of the Constitution praying for appropriate relief, by way of writs, against what was described as the illegal use of the provisions of the Motor Vehicles Act -by <ORG> These petitions were heard by a Full Bench of five Judges and four judgments were delivered dealing with various questions that were raised by the parties. A majority of the judges expressed the opinion that the <ORG>, purporting to act under section 42(3) of the Motor Vehicles Act, could not 'discriminate against other persons in their own favour and that the sub- section, in so far as it purports to exempt <ORG> Transport buses from the obligation to obtain permits for their use, conflicts with article 14 of the Constitution. All the judges concurred in holding that nationalisation of an industry was not possible by a mere executive order without appropriate legislation and such legislation would probably have to be justified under article 19(6) of the Constitution. As a result of this decision <ORG> were directed to deal with the applications for permits, made by the various private bus owners, in accordance with the provisions of the Motor Vehicles Act , without in any way being influenced by the consideration that the <ORG> Government wanted to run buses of their own on certain routes.

In view of this pronouncement of law, the State Government, which wanted to have the exclusive right to operate Road Transport Services within its territory, sought the assistance of the <ORG> and the U. P. Road Transport Act (Act II of 1951) was passed and became law on and from the 10th of February, 1951. It is the constitutional validity of this enactment which is the subject-matter of contest in these present proceedings. The preamble to the Road Transport Act (hereinafter called " The Act ") says:

"Whereas it is expedient in the interest of the general public and for the promotion of the suitable and efficient road transport to provide -for <ORG> in Uttar Pradesh, it is enacted as follows."

Section 2 gives definitions of certain terms, while section 3 , which is the most material section in the Act, embodies virtually its whole purpose. It provides that where <ORG> is satisfied that it is necessary, in the interest of general public and for sub- serving the common good, so to direct, it may declare that <ORG> in general, or any particular class of such service on any route or portion thereof, shall be 'run and operated by <ORG> exclusively or by <ORG> in conjunction with railway or partly by <ORG> and partly by others in accordance with the provisions of this Act. Section 4 provides for publication of a scheme framed in accordance with the above declaration and objections to such scheme can be made by interested persons in the manner laid down in section 5 . As soon as the scheme is finalised, certain consequences follow which are detailed in section 7 . So long as the scheme continues in force, <ORG> shall have the exclusive right to operate Road Transport Services, or if the scheme so provides, a certain fixed number of transport vehicles belonging to others can also be run on those roads. The State Government shall be authorised in all such cases to direct the dispensation of the <ORG> vehicles from the necessity of taking out permits, or to cancel, alter or modify any existing permits or to add any fresh condition to any permit in respect of any transport vehicle. The remaining portion of the Act purports to lay down how the provisions of the Act are to be worked out and implemented. Sections 8 and 9  provide respectively for the appointment of <ORG> and <ORG>. Under section 10 <ORG> may delegate its powers under the Act to an officer or authority subordinate to it. Section 12 makes it an offence for any person to drive a public service vehicle or allow such vehicle to be used in contravention of the provisions of section 7 . It is not necessary to refer to the provisions of the remaining sections as they are not material for our present purpose.

By a notification dated the 25th of March, 1953, <ORG> published a declaration in terms of section 3 of the Act, to the effect, that the <ORG> carriage services, among others, on the Bulandshar Delhi route, shall be run and operated exclusively by the <ORG> Government. A further notification issued on the 7th of April following set out what purported to be a scheme for the operation of the <ORG> carriage services on these routes. Thereupon the two appel- lants as well as several other private bus owners numbering 106 in all, who plied transport buses on these routes, presented petitions under article 226 of the Constitution before <ORG> at Allahabad praying for writs, in the nature of mandamus, directing <ORG> and the <ORG> Transport Authorities not to interfere with the operation of the stage carriages of the petitioners and to refrain from operating the <ORG> Road Transport Service except in accordance with the provisions of the Motor Vehicles Act . The constitutional validity of the Act was challenged on a number of grounds, the principal contentions being:

(1)that the Act was discriminatory in its character and contravened the provisions of article 14 of the Constitution;

(2)that it conflicted with the fundamental rights of the petitioners guaranteed under article 19(1)(g) of the Constitution; and (3)that it was an invalid piece of legislation as it purported to acquire the interest of the petitioners in a commercial undertaking without making any provision for compensation as is required under article 31(2)  of the Constitution. It was further argued that the Act violated the guarantee of freedom of inter-State and intra- state trade embodied in article 301 of the Constitution.

All these writ petitions were heard by a Division Bench of <ORG> consisting of <NAME> and <NAME>. By two separate but concurring judgments dated the 17th of November, 1953, the learned Judges repelled all the contentions of the petitioners and dismissed the writ petitions. It is against this decision that these two appeals have come up to this <ORG> on the strength of certificates granted by <ORG> and Mr. <NAME> appearing in support of the appeals has reiterated practically all the grounds which were urged on behalf of his clients in the <ORG> below. We will take up these points in proper order and it will be convenient first of all to address ourselves to the two allied questions, viz., whether the appellants could claim any fundamental right under article 19(1)(g) of the Constitution which can be said to have been violated by the impugned legislation, and whether the Act has deprived them of any 'property' which would attract the operation of article 31 of the Constitution?

Mr. <NAME> argues that a right to carry on any occupation, trade or business is guaranteed to all citizens by article 19(1)(g) of the Constitution. The appellants in the present cases were carrying on the business of plying buses on hire on a public highway until now and the Act which prevents them from pursuing that trade or business conflicts therefore with the fundamental right guaranteed under article 19(1)(g) of the Constitution. It is said also that this beneficial interest of the appellants in the commercial undertaking is 'property' within the meaning of article 31(2) of the Constitution and as the Act does not conform to the requirements of that article, it must be held to be void.

Mr. <NAME> put forward another and a somewhat novel argument that the right of the appellants to use a public highway for purposes of trade is in the nature of an easement and as such can be reckoned as property in law; consequently there has been a deprivation of property by the impugned legislation in this sense also. This contention seems to us to be untenable and it was rightly abandoned by the learned counsel. The Advocate-General appearing for <ORG> did not and could not dispute that a right to pursue any trade, business or occupation of one's choice is guaranteed by the Constitution. He says however that this does not mean that a citizen can carry on his trade or business anywhere he likes and such right is also guaranteed by the Constitution. He must have a legal right to use a particular place for purposes of his trade or business, before he can resist any encroachment upon it on the strength of the constitutional guarantee. His argument in substance is, that the bus owners, as members of the public, have no legal right to ply buses on hire on any public road. The only right which a member of the public can assert in respect of a highway is the right of passing and repassing over it. The <ORG> in which all public ways vest under the law has the sole right to determine whether it would allow any citizen to carry on a trade or business upon a public highway and if so, to what extent. The citizen has no inherent right in this respect apart from any <ORG> sanction. The position, therefore is, that the rights of the appellants, as indeed those of the other bus owners, are created entirely by <ORG> legislation and by <ORG> legislation they could be deprived of the same. There is no question of any conflict with the fundamental right guaranteed under article 19(1)(g) of the Constitution in such cases. The argument requires careful consideration.

It is not disputed that the Bulandshahr-Delhi route is a part of the Grand Trunk Road which is a public highway. According to English law, which has been applied all along in India, a highway has its origin, apart from statute, in dedication, either express or implied, by the owner of land of a right of passage over it to the public and the acceptance of that right by the public (1). In the large majority of cases this dedication is presumed from long and uninterrupted (1) Vide Pratt & Mackenzie on Law of Highways, 19th edn. p.

13. user of a way by the public, and the presumption in such cases is so strong as to dispense with all enquiry into the actual intention of the owner of the soil and it is not even material to enquire who the owner was (). The fact that the members of the public have a right of passing and repassing over a highway does not mean however that all highways could be legitimately used as foot passages only and that any other user is possible only with the permission or sufferance of the State. It is from the nature of the user that the extent of the right of passage has to be inferred and the settled principle is that the right extends to all forms of traffic which have been usual and accustomed and also to all which are reasonably similar and incidental thereto ( 2). The law has thus been stated in Halsbury's Laws of England(1):

"Where a highway originates in an inferred dedication, it is a question of fact what kind of traffic it was so dedicated for, having regard to the character of the way and the nature of the user prior to the date at which -they infer dedication; and a right of passage once acquired will extend to more modern forms of traffic reasonably similar to those for which the highway was originally dedicated, so long as they do not impose a substantially greater burden on the owner of the soil."

There can be no dispute that the Grand Trunk Road which, as a public highway, has been in existence since the 15th Century A. D. has been used for all sorts of vehicular traffic that were in vogue at different times. Motor vehicles were certainly not known when the road came into existence but the use of motor vehicles in modern times as means of locomotion and transport could not, on the principle stated above, amount to an unwarrantable extension of the accustomed user to which the highway is subjected. If there is any danger to the road by reason of such user, or if such user by one interferes with the user by others, it is up to the State to regulate the motor traffic or reduce the number or weigh of vehicles on the road in any way it

(i) Ibid page 28.

(2) <ORG> page 35.

(3) Vol. i 6, p. 185.

likes, and to that no objection can possibly be taken. But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act . The right exists anterior to any legislation on this subject as an incident of public rights over a highway. The <ORG> only controls and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is not in any way affected thereby and we cannot agree with the learned AdvocateGeneral that the user of a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the <ORG>.

The learned Advocate-General in support of his contention has referred us to a few American cases on the point. In the case of <NAME> v. Banton(1), <NAME> observed as follows:

" The streets belong to the public and are primarily for the use of the public in the ordinary way. Their use for purposes of gain is special and extraordinary and generally at least may be prohibited or conditioned as the <ORG> deems proper. "

This decision was approved in <NAME> v. <ORG>), and again in <NAME> v. Binford(3), where <NAME> practically reiterated his observations in the previous case as follows:

" It is a well established law that the highways of the State are public property; that their primary and preferred use is for private purposes; and that their use for purposes of gain is special and extraordinary which generally at least the <ORG> may prohibit or condition as it sees fit.

(1)68 L.E. 596; 264 U.S 140. (3) 77 L.E. 288, 294 (2) 7o L.E. 1101 1108. (4) I.L.R. 1951 All. 257.

We do not think that this is the law of India under our Constitution. The cases referred to above were noticed by <ORG> in the <ORG> decision of <NAME> v. <ORG>), and two of the learned Judges constituting the <ORG> expressed their opinion that this 'doctrine of exceptional user' might have been evolved by <ORG> in the same way as they evolved the 'doctrine of police powers.' They both held that this American rule did not embody the English or the Indian law on the subject.

This identical point was investigated with considerable thoroughness in a recent decision of <ORG> in <CITATION> (2), and it was pointed out by <NAME> who delivered the judgment of the <ORG>, that the rule of special or extraordinary use of highways in America had its roots in the doctrine of 'franchise', which is still a recognised institution in that country. The doctrine of 'franchise' or 'privilege' has its origin in English Common Law and was bound up with the old prerogative of the <ORG>. This doctrine continued to live in the American legal world as a survival of the pre-independence days, though in an altered form. The place of the royal grants under the English Common Law was taken by the legislative grants in America and the grant of special rights by legislation to particular individuals or companies is regarded there as a 'franchise' or 'Privilege' differing from the ordinary liberties of a citizen. The carrying on of transport buses by common carriers on the public road in America is a 'franchise' and not a common law right, which could be claimed by all citizens and a distinction is made, as the cases cited above will show, between contract carriers who carry passengers or goods under particular contracts and common carriers whose business is affected with public interest. Over the latter the <ORG> claims and exercises a plenary power of control. <NAME> has, in our opinion, rightly pointed out that this doctrine of 'franchise' has no place in our Constitution. Under the Indian Constitution the contract

(i) I.L.R. 1951 All. 257.

(2) (1952) 2 M.L.J. 894.

<NAME>

carries as well as the common carriers would occupy the same position so far as the guaranteed right under article 19(1)

(g) is concerned and both are liable to be controlled by appropriate regulations under clause (6) of that article. The law on the point, as it stands at present, has been thus summed up by the learned Judge :

"The true position then is, that all public streets and roads vest in the <ORG>, but that the <ORG> holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The <ORG> as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally ;......... but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the <ORG> owns the highways. "

We are in entire agreement with the statement of law made in these passages. Within the limits imposed by <ORG> regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on of the trade or business that the guarantee in article 19(1) (g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article. The legislation in the present case has excluded all private bus owners from the field of transport business. Prima facie it is an infraction of the provision of article 19(1) (g) of the Constitution and the question for our consideration therefore is whether this invasion by the <ORG> of the fundamental right can be justified under the provision of clause (6) of article 19 on the ground that it imposes reasonable restrictions on the exercise of the right in the interests of the general public.

Article 19(6) of the Constitution, as it stands after the amendment of 1951, makes a three-fold provision by way of exception to or limitation upon clause (1) (g) of the article. In the first place it empowers the <ORG> to impose reasonable restrictions upon the freedom of trade, business, occupation or profession in the interests of the general public. In the second place it empowers the <ORG> to prescribe the professional and technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business. Thirdly,-and this is the result of the Constitution (First) Amendment Act of 1951-it enables the <ORG> to carry on any trade or business either by itself or through a corporation owned or controlled by the <ORG> to the exclusion of private citizens wholly or in part. It is not disputed that the third provision which was introduced by the amendment of the Constitution in 1951 was not in existence when the impugned Act was passed and <ORG> rightly held that the validity of the Act is not to be decided by applying the provision of the new clause. The learned Judges held however that quite apart from the new provision, the creation of a <ORG> monopoly in regard to transport service, as has been done under the Act, could be justified as reasonable restrictions upon the fundamental right enunciated in article 19(1) (g) of the Constitution imposed in the interests of the general public. The question is, whether the view taken by <ORG> is right?

To answer this question three things will have to be considered. The first is, whether the expression "restriction" as used in article 19(6) and for the matter of that in the other sub-clauses of the article, means and includes total deprivation as well? If the answer is in the affirmative, then only the other two questions would arise, namely, whether these restrictions are reasonable and have been imposed in the interests of the general public ? According to the meaning given in the Oxford Dictionary, the word "restriction" con. notes a 'limitation' imposed upon a person or a thing, a 'condition or regulation' of this nature, though the use of the word in the sense of suppression is not altogether unknown. In the case of <ORG> v. Virgo(1), Lord <NAME> while discussing a statutory power conferred on <ORG> to make bye-laws for regulating and governing a trade made the following observation:

" No doubt the regulation and governance of a trade may involve the imposition of restrictions on its exercise...... where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think that there is a marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed."

This line of reasoning receives support from the observations made by some of the learned Judges of this Court in their respective judgments in the case of <CITATION> (2). The question for consideration in that case was the constitutional validity of the Preventive Detention Act and one of the contentions raised by the learned counsel for the appellant in attacking the validity of the legislation was, that it invaded the right of free movement guaranteed under article 19(1)(d) of the Constitution ; and as the restrictions imposed by it could not be regarded as reasonable restrictions within the meaning of clause (5) of the article, the enactment should be held to be void. This argument was repelled by the majority of the Judges inter alia on the ground that a law which authorises the deprivation of personal liberty did not fall within the purview of article 19 and its validity was not to be judge d by the criteria indicated in that article but depended on its compliance with the requirements of articles 21 and 22 of the Constitution. The expression Personal liberty" as used in article 21 , it was said, was sufficiently comprehensive to include the particular freedoms enumerated in article 19(1) and its deprivation therefore in accordance with the provision of article 21 would result in automatic extinction of the other freedoms also. In this connection reference was made to (1)  A.C. 88,93.

(2) [1950] S.C.R. 88.

the several sub-clauses of article 19 and <NAME> expressed his views in the following words:

"The use of the word 'restrictions' in the various sub- clauses seems to imply, in the context, that the rights guaranteed by the Article are still capable of being exercised, and to exclude the idea of incarceration though the words 'restriction and deprivation' are sometimes used as inter- changeable terms, as restriction may reach a point where it may well amount to deprivation. Read as a whole and viewed in its setting among the group of provisions relating to 'right to freedom', Article 19 seems to my mind to presuppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests."

The point for consideration in that case was undoubtedly different from the one that has arisen in the present case and the question whether the restrictions enumerated in the several sub-clauses of article' 19 could go to the length of total deprivation of these liberties was neither raised nor decided in that case. But a distinction was drawn by the majority of learned Judges between negation or deprivation of a right and a restriction upon it and although it was said. that restriction may reach a point where it might amount to deprivation, yet restrictions would normally pre- suppose the continued existence-no matter even in a very thin and attenuated form-of the thing upon which the restrictions were imposed. <NAME> in his judgment (vide page 106) expressly said:

Therefore Article 19(5) cannot apply to a substantive law depriving a citizen of personal liberty. I am unable to accept the contention that the word 'deprivation' includes within its scope 'restriction' when interpreting Article

Against this view it may be urged that the use of the words 'deprivation" and "restrictions" as interchangeable expressions is not altogether unusual in ordinary language and the nature and extent of restrictions might in some cases amount to a negation of the right. The Orissa, High Court in the care of <CITATION> (1) accepted this view and made a distinction between "regulation" and "restriction". In the opinion of the learned Judges the observations of Lord <NAME> in <ORG> v. <NAME> (supra) referred to above could be distinguished on the ground that the expression used in that article was not 'restriction' but regulation' and 'governing'. It is said that the framers of the Constitution were aware of the distinction between the power to 'regulate' and the power to 'restrict' and this would be apparent from a scrutiny of sub-clause 'a) of clause (2) of article 25 of the Constitution where the words "regulating" and "restricting" occur in juxtaposition indicating thereby that they were not intended to convey the same meaning.

On behalf of the respondents much reliance has also been placed on a decision of this Court in <CITATION> , etc. (2) where the point for consideration was the validity of the Excise Regulation I of 1915. It was contended, inter alia, on behalf of the appellant in that case that the Excise Regulation and the auction sales made thereunder were ultra vires, as the law purported to grant monopoly of that trade to a few persons and this was inconsistent with article 19(1)(g) of the Constitution. This contention was negatived and this Court held that for the purpose of determining reasonable restrictions within the meaning of article 19(6) of the Constitution on the right given under article 19(1)(g ), regard must be had to the nature of the business and the conditions prevailing in a particular trade. The <ORG> has certainly the right to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. The relevant portion of the judgment runs as follows:

" Article 19(1)(g) of the Constitution guarantees that all citizens have the right to practise any profession or to carry on any occupation or trade or business, and clause (6) of the article authorises legislation which imposes reasonable restrictions on this right in the interests of the general public. It was not disputed that in order to determine the reasonableness (1) A.I.R. 1952 Orissa 42, (2)  S.C. R. 873.

of the restriction regard must be had to the nature of the business and the conditions prevailing in that trade.......... It can also not be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation."

It is contended on behalf of the respondents that these observations clearly indicate that the expression "reasonable restriction" as used in article 19(6) of the Constitution might, in certain circumstances, include total prohibition. It may be mentioned here that the Excise Regulation is not a prohibitory statute which prohibits trading in liquor by private citizens altogether. It purports to regulate the trade in a particular way, namely, by putting up the right of trading in liquor in specified areas to the highest bidder in auction sale. The general observations occurring in the judgment cited above must therefore have to be taken with reference to the facts of that case.' Be that as it may, although in our opinion the normal use of the word "restriction" seems, to be in the sense of "limitation" and not "extinction", we would on this occasion prefer not to express any final opinion on this matter. If the word, "restriction" does not include total prohibition then the law under review cannot be justified under article 19(6). In that case the law would be void unless it can be supported by article 31. That point will be dealt with under the other point raised in the appeal. If however the word "restriction" in article 19(6) of the Constitution be taken in certain circumstances to include prohibition as well, the point for consideration then would be, whether the prohibition of the right of all private citizens to carry on the business of motor transport on public roads within the State of Uttar Pradesh as laid down by the Act can be justified as reasonable restrictions imposed in the interests of the general public.

As has been held by this Court in the case of <NAME> v. The <ORG>, Commissioner, etc.(1) whether (I) [1954] S.C.R. 873.

the restrictions are reasonable or not would depend to a large extent on the nature of the trade and the conditions prevalent in it. There in nothing wrong in the nature of the trade before us, which is perfectly innocuous. The learned Judges of <ORG> have upheld the validity of the legislation substantially on two grounds. In the first place, they have relied on what may be said to be an abstract proposition of law, that prohibition with a view to <ORG> monopoly is not per se unreasonable. "In my opinion", thus observes one of the learned Judges, "even this total stoppage of trade on public places and thoroughfares cannot always be said to be an unreasonable restriction". In the second place, it has been said that the transport services are essential to the life of the community and it is conducive to the interests of the general public to have an efficient system of transport on public roads. It is pointed out that the preamble to the Act indicates that the legislation was' passed in the interests of the general public who are undoubtedly interested in a suitable and efficient road transport service, and it was\ not proved by the petitioners that the monopoly, which was contemplated in favour of the <ORG> in regard to this particular business, was not conducive to the common welfare. As a proposition of law, the first ground may not admit of any dispute but we think that the observations of Lord <NAME> in the <ORG> case of <ORG> v. <ORG> (1) upon which considerable reliance has been placed by <ORG> would indicate the proper way of approach to this question' "Their Lordships do not intend to lay it down", thus observed Lord <NAME>, "that in no circumstances could the exclusion of competition so as to create a monopoly either in a <ORG> or <ORG> agency or in some other body be justified. Every case must be judged,on its own facts and in its own setting of time and circumstance, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to <ORG> monopoly was the only practical and reasonable (1) [1950] A. C. 235, 311.

manner of regulation". In order to judge whether State monopoly is reasonable or not, regard therefore must be had to the facts of each particular case in its own setting of time and circumstances. It is not enough to say that as an efficient transport service is conducive to the interests of the people, a legislation which makes provision for such service must always be held valid irrespective of the fact as to what the effect of such legislation would be and irrespective of the particular conditions and circumstances under which the legislation was passed. It is not enough that the restrictions are for the benefit of the public, they must be reasonable as well and the reasonableness could be decided only on a conspectus of all the relevant facts and circumstances.

With regard to the second point also we do not think that the learned Judges have approached the question from the proper stand point. There is undoubtedly a presumption in favour of the constitutionality of a legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under article 19(1)(g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause (6) of the article. If the respondents do not place any materials before the <ORG> to establish that the legislation comes within the permis- sible limits of clause (6), it is surely not for the appel- lants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community. In the present case we have absolutely no materials before us to say in which way the establishment of <ORG> monopoly in regard to road transport service in the particular areas would be conducive to the general welfare of the public. We do not know the conditions of the bus service at the present moment or the conveniences or inconveniences of the public in regard to the same; nor we are told how the position is likely to improve if the <ORG> takes over the road transport service and what additional amenities or advantages the general public would enjoy in that event. We mention these matters only to show that these are relevant facts which might help the <ORG> in coming to a decision as to the reasonableness or otherwise of the prohibition, but unfortunately there are no materials in the record relating to any one of them. One thing, however, in our opinion, has a decided bearing on the question of reasonableness and that is the immediate effect which the legislation is likely to produce. Hundreds of citizens are earning their livelihood by carrying on this business on various routes within the <ORG> of Uttar Pradesh. Although they carry on the business only with the aid of permits, which are granted to them by the authorities under the Motor Vehicles Act , no compensation has been allowed to them under the statute. It goes without saying that as a result of the Act they will all be deprived of the means of supporting themselves and their families and they will be left with their buses which will be of no further use to them and which they may not be able to dispose of easily or at a reasonable price. It may be pointed out in this connection that in Part IV of the Constitution which enunciates the directive principles of <ORG> policy, article 39(a) expressly lays down that the <ORG> shall direct its policy towards securing "that the citizens, men and women equally, have the right to an adequate means of livelihood." The new clause in article 19(6) has no doubt been introduced with a view to provide that a <ORG> can create a monopoly in its own favour in respect of any trade or business; but the amendment does not make the establishment of such monopoly a reasonable restriction within the meaning of the first clause of article 19(6). The result of the amendment is that the <ORG> would not have to justify such action as reasonable at all in a <ORG> of law and no objection could be taken to it on the ground that it is an infringement of the right guaranteed under article 19(1)(g) of the Constitution. It is quite true that if the present statute was passed after the coming into force of the new clause in article 19(6) of the Constitution, the question of reasonableness would not have arisen at all and the appellants' case on this point, at any rate, would have been inarguable. These are however considerations which cannot affect our decision in the present case. The amendment of the Constitution, which came later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed: As Professor <NAME> has stated in his work on Constitutional Limitations(1) "a statute void for u`constitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted". We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under article 19(1)(g) of the Constitution and is not shown to be protected by clause (6) of the article, as it stood at the time of the enactment, must be held to be void under article 13(2) of the Constitution.

We now come to the second point which is in a manner connected with the first and the question is: If the effect of prohibition of the trade or business of the appellants by the impugned legislation amounts to deprivation of their property or interest in a commercial undertaking within the meaning of article 31(2) of the Constitution, does not the legislation offend against the provision of that clause inasmuch as no provision for compensation has been made in the Act ? It is not seriously disputed on behalf of the respondents that the appellants' right to ply motor vehicles for gain is, in any event, an interest in a commercial undertaking. There is no doubt also that the appellants have been deprived of this interest. In the opinion of <ORG>, in the circumstances of the present case, there is no scope for operation of article 31(2) of the Con- stitution and the reason for taking this view is thus given in the judgment of one of the learned Judges:

"The question is whether by depriving the private operators of their right to run buses on certain routes and by deciding to run the routes itself the <ORG> acquired the right which was of the petitioners ? To me it appears that it could not be said that there was by the <ORG> any acquisition of the right which was formerly of the petitioners, whether such right was (1) VOl. 1, P. 384 note.

property or an interest in a commercial or industrial undertaking. The vehicles which were being operated by the private operators have not been acquired by the <ORG> nor has any other tangible property which was used by the petitioners for their business been acquired. What has been done is that the petitioners have been prohibited from operating their buses on certain routes. This right of the petitioners has in no way been vested in the <ORG> inasmuch as the <ORG> always had an equal right with the petitioners to run their buses on these routes."

According to <ORG>, therefore, mere depriv- ation of the petitioners' right to run buses or their interest in a commercial undertaking is not sufficient to attract the operation of article 31(2) of the Constitution as the deprivation has been by the authority of law within the meaning of clause (1) of that article. Clause (2) could be attracted only if the <ORG> had acquired or taken possession of this very right or interest of the petitioners or in other words if the right of the petitioners to run buses had been acquired by or had become vested in the <ORG>. The <ORG>, it is pointed out, has an undoubted right to run buses of its own on the public thoroughfares, and they do not stand on the rights of the petitioners. This argument, we think, is not tenable having regard to the majority decision of this Court in the case of <CITATION> and Others (1) and <CITATION> . (2). In view of that majority decision it must be taken to be settled now that clauses (1) and (2) of article 31 are not mutually exclusive in scope but should be read together as dealing with the same subject, namely, the protection of the right to property by means of limitations on the <ORG>'s powers, the deprivation contemplated in clause (1) being no other than acquisition or taking possession of the property referred to in clause (2). The learned Advocate-General co n. needed this to be the true legal position after the pronouncements of this Court referred to above. The fact that the buses belonging to the appellants have (1)  S.C.R. 587.

(2) [1954] S.C.R. 674.

not been acquired by the <ORG> is also not material. The property of a business may be both tangible and intangible. Under the statute the <ORG> may not deprive the appellants of their buses or any other tangible property but they are depriving them of the business of running buses on hire on public roads. We think therefore that in these circumstances the legislation does conflict with the provision of article 31(2) of the Constitution and as the requirements of that clause have not been complied with, it should be held to be invalid on that ground. The next point that requires consideration is, whether the Act or any of its provisions are discriminatory in their character and conflict with the rule of equal protection embodied in article 14 of the Constitution ? Mr. <NAME> has raised a two-fold contention on this point. He has argued in the first place that no discrimination could be made in favour of the <ORG> as against private individuals in the matter of carrying on the business of plying buses for hire on public roads. The <ORG> as a person, it is conceded, comes under a different class or category from private citizens; but the contention is that when the <ORG> carries on trade as merchants it occupies the same position as private traders and its acts in this respect cannot be regarded as acts of the sovereign. Much reliance has been placed by the learned counsel in sup-port of this view on the judgment of Sir <NAME> in <CITATION> (1). The other objection taken by the learned counsel is, that the Act gives an unguided and unfettered discretion to the <ORG> to associate such persons as it likes in the transport business and thereby allows it to discriminate between one citizen and another. No rules are laid down to regulate the choice of the <ORG> in such cases.

So far as the first ground is concerned, it is well settled that mere differentiation does not make a legislation obnoxious to the equal protection clause. The <ORG> has always the power to make classification and all that is necessary is that the classification should not be arbitrary but must bear a reasonable (1) (1861) 5 B.H.C.R. Appendix 1.

relation to the object which the legislation has in view. There is no doubt that classification is inherent in the concept of a monopoly; and if the object of legislation is to create monopoly in favour of the <ORG> with regard to a particular business, obviously the <ORG> cannot but be differentiated from ordinary citizens and placed in a separate category so far as the running of the business is concerned and this classification would have a perfectly rational relation to the object of the statute. No doubt if the creation of a monopoly in favour of the <ORG> is itself bad on the ground of violating some constitutional provisions, the statute would be invalid for those reasons and the question of discrimination would not be material at all. In our opinion, the argument of Mr. <NAME> that the <ORG> ceases to function as a <ORG> as soon as it engages itself in a trade like ordinary trader cannot be accepted as a sound proposition of law under the Constitution of India at the present day. In the last century, when the laissez faire doctrine held the field, the primary function of a <ORG> was considered to be maintenance of law and order and all other activities were left to private competitors. That conception is now changed and in place of the 'police <ORG>' of old, we are now having a 'welfare <ORG>.' Chapter IV of our Constitution which lays down the Directive Principles of <ORG> Policy clearly indicates what the functions of a <ORG> should be and many things which could not have been considered as <ORG> functions when the case of P. and 0. Steam Navigation Co. v. The Secretary of <ORG> (<NAME>), was decided would certainly come within the legitimate scope of <ORG> duties. <NAME> in this connection <CITATION> (supra).

The other contention of Mr. <NAME> in regard to article 14 though somewhat plausible at first sight does -not appear to us to be sound. Section 3 of the Act authorises <ORG> to declare that the road transport service in general or on particular routes should be run and operated by <ORG> exclusively or by <ORG> in conjunction with railway or partly by <ORG> and partly by others in accordance with the provisions of the Act The whole question is how is the last part of the section to be implemented and carried out? If the <ORG> can choose any and every person it likes for the purpose of being associated with the transport service and there are no rules to guide its discretion, plainly the provision would offend against article 14 of the Constitution. The learned Advocate-General pointed out however that the <ORG> is only to choose the routes or portions of routes on which the private citizens would be allowed to operate and the number of persons to whom permits should be given, and that the granting of permits would necessarily be regulated by the provisions of Motor Vehicles Act . This does not appear to us to be an unreasonable construction to be put upon the relevant portion of section 3 of the Act and it receives support from what is laid down in section 7(c) of the Act. On this construction the discretion to be exercised by the <ORG> would be a regulated discretion guided by statutory rules. We hold therefore that the appellant cannot make any grievance on this score and that the statute does not offend against article 14 of the Constitution.

The last point that remains to be considered is, whether the Act conflicts with the guarantee of freedom of inter- State and intrastate trade, commerce and intercourse provided for by article 301 of the Constitution ? Article 301 runs as follows:

" Subject to the other provisions of this Part, trade' commerce and intercourse throughout the territory of India shall be free. "

Article 302 authorises the <ORG> to impose such restrictions on the freedom of trade, commerce and intercourse between one <ORG> and another or within any part of the territory of India as may be required in the public interests. Under article 304(b) it is competent even for the <ORG> of a <ORG> to impose reasonable restrictions upon the freedom of trade, commerce and intercourse mentioned above in the interests of the public, but it is necessary that any bill or amendment for this purpose should first receive the sanction of the President before it is moved or introduced in the <ORG> of a <ORG>. Article  corresponds to section 92 of the Australian Constitution and is even wider than the latter inasmuch as the Australian Constitution provides for the freedom of inter-<ORG> trade only. <ORG> has negatived the contention of the appellants on this point primarily on the ground that article 301 of the Constitution has no application to the present case. What is said is, that article 301 provides safeguards for carrying on trade as a whole as distinguished from the rights of an individual to carry it on. In other words, this article is concerned with the passage of commodities or persons either within or outside the <ORG> frontiers but not directly with individuals carrying on the commerce or trade. The right of individuals, it is said, is dealt with under article 19(1) (g) of the Constitution and the two articles have been framed in order to secure two different, objects.

The question is not quite free from difficulty and in view of the fact that we have declared the Act to be unconstitutional on the two grounds mentioned above, we do not consider it necessary to record our decision on this point. We would only desire 'to indicate the contentions that have been or could be raised upon this point and the different views that are possible to be taken in respect to them so that the <ORG> might take these matters into consideration if and when they think of legislating on this subject.

We desire to point out that in regard to section 92 of the Australian Constitution, which so far as inter. <ORG> trade is concerned adopts almost the same language as article 301 of our Constitution, it has been definitely held by <ORG> in the case of <ORG> v. <ORG> (supra), that the rights of individuals do come within the purview of the section. It is true, as Lord <NAME> observed, that section 92 does not create any new juristic rights but it does give the citizens of the <ORG> or the <ORG>, as the case may be, the right to ignore and, if necessary, to call on the judicial power to help him to resist legislative- or executive actions which offend against the section. It follows from this, as his Lordship pointed out, that  the application of section 92 does not involve calculations as to the actual present or possible future effect upon the total value of inter-<ORG> trade, the difficulty in applying such a criterion being too obvious. If this view is adopted in regard to article 301 of our Constitution it can plausibly be argued that the legislation in the present case is invalid as contravening the terms of the article. The question of reasonable restrictions could not also arise in this case, as the bill was not introduced with the previous sanction of the President as required by the proviso to section 304(b) . It is true that the consent of the President was taken subsequently but the proviso expressly insists on the sanction being taken previous to the introduction of the bill.

It may be argued that freedom of trade does not, as Lord <NAME> observed in the <ORG> case referred to above, mean unrestricted or unrestrained freedom and that regulation of trade is quite compatible with its freedom. As against this it may be pointed out that the Constitution itself has provided in articles 302 and 304(b) how reasonable restrictions could be imposed upon freedom of trade and commerce and it would not be proper to hold that restrictions can be imposed aliunde these provisions in the Constitution. The question would also arise as to what interpretation should be put upon the expression "reasonable restrictions" and whether or not we would have to apply the same tests as we have applied in regard to article 19(6) of the Constitution. One material thing to consider in this connection would be that although the Constitution was amended in 1951 by insertion of an additional clause in article 19(6) by which State monopoly in regard to trade or business was taken out of the purview of article 19(1) (g) of the Constitution, yet no such addition was made in article 301 or article 304 of the Constitution and article 301 , as it stands, guarantees freedom of trade, commerce and intercourse subject only to Part XIII of the Constitution and not the other parts of the Constitution including that dealing with fundamental rights.

The Australian Constitution indeed has no provision like article 19(1) (g) of the Indian Constitution and it is certainly an arguable point as to whether the rights of individuals alone are dealt with in article 19(1) (g) of the Constitution leaving the freedom of trade and commerce, meaning by that expression 'only the free passage of persons and goods' within or without a <ORG> to be dealt with under article 301 and the following articles.

We have thus indicated only the points that could be raised and the possible views that could be taken but as we have said already, we do not desire to express any final opinion on these points as it is unnecessary for purposes of the present case. The result is that in our opinion the appeals should be allowed and the judgment of <ORG> set aside A writ in the nature of mandamus shall issue against the respondents in these appeals restraining them from enforcing the provisions of the U. P. State Road Transport Act, 1951, against the appellants or the men working under them. There will be no order as to costs.

Appeals allowed.